[From the U.S. Government Printing Office, www.gpo.gov]







                     The Marine Mammal
                     Protection Act of 1972
                     As Amended


                     March 1993
















                     Compiled and annotated by the
           QL
           713.2
           N37       Marine Mammal Commission
           1993      1825 Connecticut Avenue, N.W.
                     Washington, D.C. 20009









                                                                                             The Marine Mammal Protection Act of 1972 as Amended






                             The Marine Mammal
  I     CIO                  Protection Act of 1972
                             As Amended


                             March 1993



                 C'<














                             Compiled and annotated by the


                             Marine Mammal Commission
                             1825 Connecticut Avenue, N.W.
                             Washington, DC. 20009









                                                                                  The Mafine Marnmal Ptotecfion Act of 1972 as Amen&d


                                    The Marine Mammal Protection Act of 1972
                                                              as Amended,


                          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  . .........................                 5
                          Sec. 3.    Definitions . .........................................                         6
                          Sec. 4.    Effective date . .......................................                        8


                                       Title I-Conservation and Protection of Marine Mammals


                          Sec. 101.  Moratorium and exceptions     ...............................                   9
                          See. 102.  Prohibitions ............      :--**********-***                 ......    *  14
                          Sec. 103.  Regulations on taking of marine mammals      . ...................            16
                          Sec. 104.  Permits  .............................................                        17
                          Sec. 105.  Penalties  ............................................                       24
                          Sec. 106.  Vessel fine, cargo forfeiture, and rewards   .....................            24
                          Sec. 107.  Enforcement  . ........................................                       25
                          Sec. 108.  International program  ...................................                    27
                          See. 109.  Federal cooperation with States   ............................                29
                          Sec. 110.  Marine mammal research grants      ............................               35
                          Sec. 111.  Commercial fisheries gear development     . .....................             36
                          Sec. 112.  Regulations and administration   . ...........................                37
                          Sec. 113.  Application to other treaties and conventions  ...   ................         38
                          Sec. 114.  Interim exemption for commercial fisheries.?      ..................          38
                          Sec. 115.  Status review; conservation plans   ...........................               47
                          Sec. 116.  Authorization of appropriations  . ...........................                49
                          Sec. 117.  Dolphin protection   .....................................                    49

                                                  Title H-Marine Mammal Commission


                          Sec. 201. Establishment of Commission     . ............................                 52
                          Sec. 202. Duties of Commission    ...................................                    53
                          Sec. 203. Committee of Scientific Advisors on Marine Mammals          ............       54
                          Sec. 204. Commission reports    . ...................................                    54
                          See. 205. Coordination with other Federal agencies    . ....................             55
                          Sec. 206. Administration of Commission      .............................                55
                          Sec. 207. Authorization of appropriations.     ...........................               55







                                                                        3










                  Marine Mammal Commission


                                                                                                                                          01
                                                 Title III-Global Moratorium to Prohibit
                                                    Certain Tuna Harvesting PracticeS3
                                                            [16 U.S.C. 1411-14181

                          Sec. 301. Findings and policy   .....................................                    56
                          Sec. 302. International agreements to establish global moratorium to prohibit
                                     certain tuna harvesting practices  ............................               57
                          Sec. 303. Research program    ......................................                     57
                          Sec. 304. Reviews, reports, and recommendations      .......................             59
                          Sec. 305. International commitments    ................................                  60
                          Sec. 306. Permits for taking dolphins  . ..............................                  61
                          Sec. 307. Prohibitions . .........................................                       62
                          Sec. 308. Authorization of appropriations  . ...........................                 64

                                      Title M-Marine Mammal Health and Stranding Response
                                                           [16 U.S.C. 1421-1421h]

                          Sec. 301. Establishment of program   . ...............................                   65
                          Sec. 302. Determination; data collection and dissemination   . ...............           65                     oil
                          Sec. 303. Stranding response agreements    .............................                 66
                          Sec. 304. Unusual mortality event response   ........................            *. . .  66
                          Sec. 305. Unusual mortality event activity funding   ......................              68
                          Sec. 306. Liability . ...........................................                        69
                          Sec. 307. National Marine Mammal Tissue Bank and tissue analysis       . ........        70
                          Sec. 308. Authorization of appropriations  . ...........................                 71
                          Sec. 309. Definitions  ...........................................                       72


                          Notes        ..................................................                          73


                          Endnotes     ..................................................                          76



                          This copy of the Marine Mammal Protection Act is providedfor information only.
                          Before relying on any portion of the Act as it appears here, reference should be made
                          to the official report of the Act in the United States Code.


                          Please note that Public Law 102-523 and Public Law 102-587 each added a new Title
                          III to the Marine Mammal Protection Act. Pending fitrther legislation, the Act will
                          contain two titles designated as Title III, each with ififferent provisions designated as
                          sections 301 through 308. Thefirst Title III has been codified at 16 U.S.C. 1411-
                          1418. The second Title III has been codified at 16 U.S.C. 1421-1421h. To minimize
                          confusion, all references to Title III or to sections 301-308 arefollowed in the text by
                          the appropriate United States Code citation.

                          Please note further that, as amended in 1992, the Act contains two different deflnitions
                          of the term "intermediary nation" (section 3(5) and section 3(17)) and two different
                          definitions (for the terms "waters under the jurisdiction of the United States" and
                          'fishery") designated as section 3(15).






                                                                       4









                                                                               The Marine Mammal Protection Act of 1972 as Amended


                                             Findings and Declaration of Policy

                                                            16 U.S.C. 1361


                         Sec. 2. The Congress finds that-

                            (1) certain species and population stocks of marine mammals are, or may be, in
                         danger of extinction or depletion as a result of man's activities;

                            (2) such species and population stocks should not be permitted to diminish beyond
                         the point at which they cease to be a significant functioning element in the ecosystem
                         of which they are a part, and, consistent with this major objective, they should not be
                         permitted to diminish below their optimum sustainable population. Further measures
                         should be immediately taken to replenish any species or population stock which has
                         already diminished below that population. In particular, efforts should be made to
                         protect the rookeries, mating grounds, and areas of similar significance for each
                         species of marine manimal from the adverse effect of man's actions;

                            (3) there is inadequate knowledge of the ecology and population dynamics of such
                         marine mammals and of the factors which bear upon their ability to reproduce
                         themselves successfully;

                            (4) negotiations should be undertaken immediately to encourage the development of
                         international arrangements for research on, and conservation of, all marine mammals;

                            (5) marine mammals and marine marnmal products either-

                                 (A) move in interstate commerce, or

                                 (B) affect the balance of marine ecosystems in a manner which is important to
                            other animals and animal products which move in interstate commerce,

                         and that the protection and conservation of marine mammals is therefore necessary to
                         insure the continuing availability of those products which move in interstate com-
                         merce; and


                            (6) marine mammals have proven themselves to be resources of great international
                         significance, esthetic and recreational as well as economic, and it is the sense of the
                         Congress that they should be protected and encouraged to develop to the greatest
                         extent feasible commensurate with sound policies of resource management and that the
                         primary objective of their management should be to maintain the health and stability
                         of the marine ecosystem. Whenever consistent with this primary objective, it should
                         be the goal to obtain an optimum sustainable population keeping in mind the carrying
                         capacity of the habitat!









                                                                     5









                Marine Mammal Commission


                                                           Derinitions


                                                         16 U.S.C. 1362


                        Sec. 3. For the purposes of this Act-

                           (1) The term "depletion" or "depleted" means any case in which-

                               (A) the Secretary, after consultation with the Marine Mammal Commission and
                           the Committee of Scientific Advisors on Marine Mammals established under title II
                           of this Act, determines that a species or population stock is below its optimum
                           sustainable population;

                               (B) a State, to which authority for the conservation and management of a
                           species or population stock is wansferred under section 109, determines that such
                           species or stock is below its optimum sustainable population; or

                               (C) a species or population stock is listed as an endangered species or a
                                                                                       5
                           threatened species under the Endangered Species Act of 1973.

                           (2) The terms "conservatioW' and "management" mean the collection and applica-
                        tion of biological information for the purposes of increasing and maintaining the
                        number of animals within species and populations of marine mammals at their
                        optimum sustainable population.6 Such terms include the entire scope of activities
                        that constitute a modem scientific resource program, including, but not limited to,
                        research, census, law enforcement, and habitat acquisition and improvement. Also
                        included within these terms, when and where appropriate, is the periodic or total
                        protection of species or populations as well as regulated taking.

                           (3) The term "district court of the United States" includes the District Court of
                        Guam, District Court of the Virgin Islands, District Court of Puerto Rico, District
                        Court of the Canal Zone, and, in the case of American Samoa and the Trust Territory
                        of the Pacific Islands, the District Court of the United States for the District of Hawaii.

                           (4) The term "humane" in the context of the taking of a marine mammal means that
                        method of taking which involves the least possible degree of pain and suffering
                        practicable to the mammal involved.

                           (5) The term "intermediary nation" means a nation that exports yellowfin tuna or
                        yellowfin tuna products to the United States and that imports yellowfin tuna or
                        yellowfin tuna products that are subject to a direct ban on importation into the United
                        States pursuant to section 101(a)(2)(B).'

                           (6) The term "marine mammal" means any mammal which (A) is morphologically
                        adapted to the marine environment (including sea otters and members of the orders
                        Sirenia, Pinnipedia and Cetacea), or (B) primarily inhabits the marine environment
                        (such as the polar bear); and, for the purposes of this Act, includes any part of any
                        such marine mammal, including its raw, dressed, or dyed fur or skin.

                           (7) The term "marine mammal product" means any item of merchandise which
                        consists, or is composed in whole or in part, of any marine mammal.


                                                                  6









                                                                            The Marine Mammal Protection Act of 1972 as Amended


                           (8) The term "moratorium" means a complete cessation of the taking of marine
                       mammals and a complete ban on the importation into the United States of marine
                       mammals and marine mammal products, except as provided in this Act.

                           (9) The term "optimum sustainable population" means, with respect to any popula-
                       tion stock, the number of animals which will result in the maximum productivity of
                       the population or the species, keeping in mind the carrying capacity of the habitat and
                       the health of the ecosystem of which they form a constituent element!

                           (10) The term "person" includes (A) any private person or entity, and (B) any
                       officer, employee, agent, departinent, or instrumentality of the Federal Government, of
                       any State or political subdivision thereof, or of any foreign government.

                           (11) The term "population stock!' or "stock" means a group of marine mammals of
                       the same species or smaller taxa in a common spatial arrangement, that interbreed
                       when mature.


                           (12)(A) Except as provided in subparagraph (B), the term "Secretary" means---

                                  (i) The Secretary of the department in which the National Oceanic and
                               Atmospheric Administration is operating, as to all responsibility, authority,
                               funding, and duties under this Act with respect to members of the order
                               Cetacea and members, other than walruses, of the order Pinnipedia, and

                                  (ii) The Secretary of the Interior as to all responsibility, authority, funding,
                               and duties under this Act with respect to all other marine mammals covered by
                               this Act.


                               (B) in title 111 [16 U.S.C. 1421 et seq.] the term "Secretary" means the Secre-
                           tary of Commerce.'

                           (13) The term "take" means to harass, hunt, capture, or kill, or attempt to harass,
                       hunt, capture, or kill any marine mammal.

                           (14) The term "United States" includes the several States, the District of Columbia,
                       the Commonwealth of Puerto Rico, the Virgin Islands of the United States, American
                       Samoa, Guam, and Northern Mariana Islands.10

                           (15) The term "waters under the jurisdiction of the United States" means-

                               (A) the territorial sea of the United States;

                               (B) the waters included within a zone, contiguous to the territorial sea of the
                           United States, of which the inner boundary is a line coterminous with the seaward
                           boundary of each coastal State, and the outer boundary is a line drawn in such a
                           manner that each point on it is 200 nautical miles from the baseline from which the
                           tenitorial sea is measured; and

                               (C) the areas referred to as eastern special areas in Article 3(l) of the Agree-
                           ment between the United States of America and the Union of Soviet Socialist
                           Republics on the Maritime Boundary, signed June 1, 1990; in particular, those areas
                           east of the maritime boundary, as defined in that Agreement, that lie within 200


                                                                  7










                 Marine Marmal Cmurnission


                            nautical miles of the baselines from which the breadth of the territorial sea of
                            Russia is measured but beyond 200 nautical miles of the baselines from which the
                            breadth of the territorial sea of the United States is measured."


                            (15) The term "fishery" means--

                                 (A) one or more stocks of fish which can be treated as a unit for purposes of
                            conservation and management and which are identified on the basis of geographi-
                            cal, scientific, technical, recreational, and economic characteristics; and

                                 (B) any fishing for such stocks."

                            (16) The term "competent regional organization'@-

                                 (A) for the tuna fishery in the eastern tropical Pacific Ocean, means the Inter-
                            American Tropical Tuna Commission; and

                                 (B) in any other case, means an organization consisting of those nations
                            participating in a tuna fishery, the purpose of which is the conservation and
                            management of that fishery and the management of issues relating to that fishery.

                            (17) The term "intermediary nation" means a nation that exports yellowfin tuna or
                         yellowfin tuna products to the United States and that imports yellowfin tuna or
                         yellowfin tuna products that are subject to a direct ban on importation into the United
                         States pursuant to section 101(a)(2)(B). If such nation certifies and provides reason-
                         able proof to the Secretary that it has not imported, within the preceding six months,                      L
                         any yellowfin tuna or yellowfin tuna products that are subject to a direct ban on
                         importation to the United States pursuant to this section, the Secretary shall, as soon as
                         practicable after receiving complete information regarding certification and proof,
                         make an affirmative finding that such nation does not constitute an intermediary nation
                         for purposes of this section.

                                                           Effective Date

                         Sec. 4. The provisions of this Act shall take effect upon the expiration of the sixty-
                         -day period following the date of its enactment.


















                                                                     8









                                                                                ne Mafine Mammal ProwWon Act of 1972 as Amen&d


                                        Title I-Conservation and Protection
                                                      of Marine Mammals

                                                  Moratorium and Exceptions

                                                            16 U.S.C. 1371


                         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) Consistent with the provisions of section 104, permits may be issued by the
                         Secretary for taking and importation for purposes of scientific research, public display,
                         or enhancing the survival or recovery of a species or stock if--"

                                 (A) the taking proposed in the application for any such permit, or

                                 (B) the importation proposed to be made, is first reviewed by the Marine
                            Mammal Commission and the Committee of Scientific Advisors on Marine Mam-
                            mals established under title 11 of this Act. The Commission and Committee shall
                            recommend any proposed taking or importation which is consistent with the
                            purposes and policies of section 2 of this Act. The Secretary shall, if he grants
                            approval for importation, issue to the importer concerned a certificate to that effect
                            which shall be in such form as the Secretary of the Treasury prescribes and such
                            importation may be made upon presentation of the certificate to the customs officer
                            concerned.


                            (2) Marine mammals may be taken incidentally in the course of commercial fishing
                         operations and permits may be issued therefor under section 104 subject to regulations
                         prescribed by the Secretary in accordance with section 103. In any event it shall be
                         the immediate goal that the incidental kill or incidental serious injury of marine
                         mammals permitted in the course of commercial fishing operations be reduced to
                         insignificant levels approaching a zero mortality and serious injury rate; provided that
                         this goal shall be satisfied in the case of the incidental taking of marine mammals in
                         the course of purse seine fishing for yellowfin tuna by a continuation of the application
                         of the best marine mammal safety techniques and equiptnent that are economically and
                         technologically practicable. 14 The Secretary of the Treasury shall ban the importation
                         of commercial fish or products from fish which have been caught with commercial
                         fishing technology which results in the incidental kin or incidental serious injury of
                         ocean mammals in excess of United States standards. For purposes of applying the
                         preceding sentence, the Secretary-

                                 (A) shall insist on reasonable proof from the government of any nation from
                            which fish or fish products will be exported to the United States of the effects on
                            ocean mammals of the commercial fishing technology in use for such fish or fish
                            products exported from such nation to the United States;

                                 (B) in the case of yellowfin tuna harvested with purse seines in the eastern
                            tropical Pacific Ocean, and products therefrom, to be exported to the United States,

                                                                     9









                  Marine Manunal Corarnission


                              shall require that the government of the exporting nation provide documentary
                              evidence that-


                                      (i) the government of the harvesting nation has adopted a regulatory
                                   program governing the incidental taking of marine mammals in the course of
                                   such harvesting that is comparable to that of the United States; and

                                      (ii) the average rate of that incidental taking by the vessels of the harvest-
                                   ing nation is comparable to the average rate. of incidental taking of marine
                                   mammals by United States vessels in the course of such harvesting,     15

                              except that the Secretary shall not find that the regulatory program, or the average
                              rate of incidental taking by vessels, of a harvesting nation is comparable to that of
                              the United States for purposes of clause (i) or (ii) of this paragraph unless-

                                           (1) the regulatory program of the harvesting nation includes, by no
                                      later than the beginning of the 1990 fishing season, such prohibitions
                                      against encircling pure schools of species of marine mammals, conducting
                                      sundown sets, and other activities as are made applicable to United States
                                      vessels;


                                           (H) the average rate of the incidental taking by vessels of the harvest-
                                      ing nation is no more than 2.0 times that of United States vessels during the
                                      same period by the end of the 1989 fishing season and no more than 1.25
                                      times that of United States vessels during the same period by the end of the
                                      1990 fishing season and thereafter,

                                           (Ell) the total number of eastern spinner dolphin (Stenella longirostris)
                                      incidentally taken by vessels of the harvesting nation during the 1989 and
                                      subsequent fishing seasons does not exceed 15 percent of the total number
                                      of all marine mammals incidentally taken by such vessels in such year and
                                      the total number of coastal spotted dolphin (Stenella attenuata) incidentally
                                      taken by such vessels in such seasons does not exceed 2 percent of the total                         L
                                      number of all marine mammals incidentally taken by such vessels in such
                                      year,


                                           (IV) the rate of incidental taking of marine manimal by the vessels of
                                      the harvesting nation during the 1989 and subsequent fishing seasons is
                                      monitored by the porpoise mortality observer program of the InterAmerican
                                      Tropical Tuna Commission or an equivalent intemational program in which
                                      the United States participates and is based upon observer coverage that is
                                      equal to that achieved for United States vessels during the same period,
                                      except that the Secretary may approve an alternative observer program if
                                      the Secretary determines, no less than sixty days after publication in the
                                      Federal Register of the Secretary's proposal and reasons therefor, that such
                                      an alternative observer program will provide sufficiently reliable documen-
                                      tary evidence of the average rate of incidental taking by a harvesting
                                      nation; and


                                           (V) the harvesting nation complies with all reasonable requests by the
                                      Secretary for cooperation in carrying out the scientific research program
                                      required by section 104(h)(3) of this title;"

                                                                        10









                                                                                 The Marine Mammal Protection Act of 1972 as Amended


                                  (C) shall require the government of any intermediary nation to certify and
                             provide reasonable proof to the Secretary that it has not imported, within the
                             preceding six months, any yellowfin tuna or yellowfm tuna products that are
                             subject to a direct ban on importation to the United States under subparagraph (B);

                                  (D) shall, six months after importation of yellowfin tuna or tuna products has
                             been banned under this section, certify such fact to the President, which certifica-
                             tion shall be deemed to be a certification for the purposes of section 8(a) of the
                             Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as such ban is
                             in effect" and

                                  (E)(i) except as provided in clause (ii), in the case of fish or products contain-
                             ing fish harvested by a nation whose fishing vessels engage in high seas driftnet
                             fishing, shall require that the government of the exporting nation provide documen-
                             tary evidence that the fish or fish product was not harvested with a large-scale
                             driftnet in the South Pacific Ocean after July 1, 1991, or in any other water of the
                             high seas after January 1, 1993, and

                                     (ii) in the case of tuna or a product containing tuna harvested by a nation
                                  whose fishing vessels engage in high seas driftnet fishing, shall require that the
                                  government of the exporting nation provide documentary evidence that the
                                  tuna or tuna product was not harvested with a large-scale driftnet anywhere on
                                  the high seas after July 1, 1991.

                             For purposes of subparagraph (E), the term "driftnet" has the meaning given such
                             term in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control
                             Act of 1987 (16 U.S.C. 1822 note), except that, until January 1, 1994, the term
                             "driftnet" does not include the use in the northeast Atlantic Ocean of gillnets with a
                             total length not to exceed five kilometers if the use is in accordance with regula-
                             tions adopted by the European Community pursuant to the October 28, 1991,
                             decision by the Council of Fisheries Ministers of the Community."

                             (3)(A) The Secretary, on the basis of the best scientific evidence available and in
                         consultation with the Marine Mammal Commission, is authorized and directed, from
                         time to time, having due regard to the distribution, abundance, breeding habits, and
                         times and lines of migratory movements of such marine mammals, to determine when,
                         to what extent, if at all, and by what means, it is compatible with this Act to waive the
                         requirements of this section so as to allow taking, or importing of any marine mam-
                         mal, or any marine mammal product, and to adopt suitable regulations, issue permits,
                         and make determinations in accordance with sections 102, 103, 104, and I I I of this
                         title permitting and governing such taking and importing, in accordance with such
                         determinations: Provided, however, That the Secretary, in making such determinations,
                         must be assured that the taking of such marine mammal is in accord with sound
                         principles of resource protection and conservation as provided in the purposes and
                         policies of this Act: Provided fiurther, however, That no marine mammal or no marine
                         mammal product may be imported into the United States unless the Secretary certifies
                         that the program for taking marine mammals in the country of origin is consistent with
                         the provisions and policies of this Act. Products of nations not so certified may not be
                         imported into the United States for any purpose, including processing for exportation.

                                  (B) Except for scientific research purposes or enhancing the survival or
                             recovery of a species-or stock as provided for in paragraph (1) of this subsection,









                  Marffie Manmal Conmission


                             during the moratorium no permit may be issued for the taking of any marine
                             mammal which has been designated by the Secretary as depleted, and no importa-
                             tion may be made of any such mammal."

                             (4)(A) During any period of five consecutive years, the Secretary shall allow the
                          incidental, but not the intentional, taking, by citizens of the United States while
                          engaging in commercial fishing operations, of small numbers of marine mammals of a
                          species or population stock that is not depleted if the Secretary, after notice and
                          opportunity for public comment-

                                      (i) finds that the total of such taking during such five-year period will have
                                  a negligible impact on such species or stock; and

                                      (ii) provides guidelines pertaining to the establishment of a cooperative
                                  system among the fishermen involved for the monitoring of such taking.

                                  (B) The Secretary shall withdraw, or suspend for a time certain, the permission
                             to take marine mammals under subparagraph (A) if the Secretary finds, after notice
                             and opportunity for public comment, that-

                                      (i) the taking allowed under subparagraph (A) is having more than a
                                  negligible impact on the species or stock concerned; or

                                      (ii) the policies, purposes and goals of this Act would be better served
                                  through the application of this title without regard to this subsection.

                          Sections 103 and 104 shall not apply to the taking of marine mammal under the
                          authority of this paragraph.

                             (5)(A) Upon request therefor by citizens of the United States who engage in a
                          specified activity (other than commercial fishing) within a specified geographical
                          region, the Secretary shall allow, during periods of not more dian five consecutive
                          years each, the incidental, but not intentional, taking by citizens while engaging in that
                          activity within that region of small numbers of marine mammals of a species or
                          population stock if the Secretary, after notice (in the Federal Register and in newspa-
                          pers of general circulation, and through appropriate electronic media, in the coastal
                          areas that may be affected by such activity) and opportunity for public comment-

                                      (i) finds that the total of such taking during each five-year (or less) period
                                  concerned will have a negligible impact on such species or stock and 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,
                                  in the case of a cooperative agreement under both this Act and the Whaling
                                  Convention Act of 1949, pursuant to section 112(c); and

                                      (ii) prescribes regulations setting forth--

                                           (1) permissible methods of taking pursuant to such activity, and other
                                      means of effecting the least practicable adverse 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; and


                                                                       12
                                                                                                                                         M









                                                                               ne Marine Mammal Protection Act of 1972 as Amended


                                         (H) requirements pertaining to the monitoring and reporting of such
                                    takin .20


                                 (B) The Secretary shall withdraw, or suspend for a time certain (either on an
                            individual or class basis, as appropriate) the permission to take marine mammals
                            under subparagraph (A) pursuant to a specified activity within a specified geograph-
                            ical region if the Secretary finds, after notice and opportunity for public comment
                            (as required under subparagraph (A) unless subparagraph (C)(i) applies), that-

                                    (i) the regulations prescribed under subparagraph (A) regarding methods of
                                 taking, monitoring, or reporting are not being substantially complied with by a
                                 person engaging in such activity; or

                                    (ii) the taking allowed under subparagraph (A) pursuant to one or more
                                 activities within one or more regions is having, or may have, more than a
                                 negligible impact on the species or stock concerned.

                                 (C)(i) The requirement for notice and opportunity for public comment in
                            subparagraph (B) shall not apply in the case of a suspension of permission to take
                            if the Secretary determines that an emergency exists which poses a significant risk
                            to the well-being of the species or stock concerned.

                                    GO Sections 103 and 104 shall not apply to the taking of marine mammals
                                                                       21
                                 under the authority of this paragraph.

                         (b) Except as provided in section 109, the provisions of this Act shall not apply with
                         respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who
                         resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic
                         Ocean if such taking-

                            (1) is for subsistence purposes; or22

                            (2) is done for purposes of creating and selling authentic native articles of handi-
                         crafts and clothing: Provided, That only authentic native articles of handicrafts and
                         clothing may be sold in interstate commerce: And providedfurther, That any edible
                         portion of marine mammals may be sold in native villages and towns in Alaska or for
                         native consumption. For the purposes of this subsection, the term "authentic native
                         articles of handicrafts and clothing" means items composed wholly or in some
                         significant respect of natural materials, and which are produced, decorated, or fash-
                         ioned in the exercise of traditional native handicrafts without the use of panto-graphs,
                         multiple carvers, or other mass copying devices. Traditional native handicrafts
                         include, but are not limited to weaving, carving, stitching, sewing, lacing, beading,
                         drawing, and painting; and

                            (3) in each case, is not accomplished in a wasteful manner.

                         Notwithstanding the preceding provisions of this subsection, when, under this Act, the
                         Secretary determines any species or stock of marine mammal subject to taking by
                         Indians, Aleuts, or Eskimos to be depleted, he may prescribe regulations upon the
                         taking of such marine mammals by any Indian, Aleut, or Eskimo described in this
                         subsection. Such regulations may be established with reference to species or stocks,
                         geographical description of the area included, the season for taking, or any other


                                                                     13









                  Marine Mmmal Conunission


                          factors related to the reason for establishing such regulations and consistent with the
                          purposes of this Act. Such regulations shall be prescribed after notice and hearing
                          required by section 103 of this title and shall be removed as soon as the Secretary
                          determines that the need for their imposition has disappeared.

                          (c) In order to minimize undue economic hardship to persons subject to this Act, other
                          than those engaged in commercial fishing operations referred to in subsection (a)(2) of
                          this section, the Secretary, upon any such person filing an application with him and
                          upon filing such information as the Secretary may require showing, to his satisfaction,
                          such hardship, may exempt such person or class of persons from provisions of this Act
                          for no more than one year from the date of the enactment of this Act, as he determines
                          to be appropriate.



                                                              Prohibitions


                                                             16 U.S.C. 1372


                          Sec. 102. (a) Except as provided in sections 101, 103, 104, 109, 111, 113, and 114 of
                          this title or title 111 [16 U.S.C. 1421 et seq.], it is unlawful--P

                             (1) for any person subject to the jurisdiction of the United States or any vessel or
                          other conveyance subject to the jurisdiction of the United States to take any marine
                          mammal on the high seas;

                             (2) except as expressly provided for by an international treaty, convention, or
                          agreement to which the United States is a party and which was entered into before the
                          effective date of this title or by any statute implementing any such treaty, convention,
                          or agreement-

                                  (A) for any person or vessel or other conveyance to take any marine mammal
                             in waters or on lands wider the jurisdiction of the United States; or

                                  (B) for any person to use any port, harbor, or other place under the jurisdiction
                             of the United States for any purpose in any way connected with the taking or
                             importation of marine mammals or marine mammal products; and

                             (3) for any person, with respect to any marine mammal taken in violation of this
                          title, to possess that mammal or any product from that mammal;

                             (4) for any person to transpoM purchase, sell, or offer to purchase or sell any
                          marine mammal or marine mammal product; and

                             (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.24

                          (b) Except pursuant to a permit for scientific research, or for enhancing the survival or
                          recovery of a species or stock, issued under section 104(c) of this title, it is unlawful
                          to import into the United States any marine mammal if such mammal was-


                                                                      14









                                                                            ne Mafine Mammal Prolecfion Act of 1972 as Amended


                           (1) pregnant at the time of taking;

                           (2) nursing at the time of taking, or less than eight months old, whichever occurs
                        later;


                           (3) taken from a species or population stock which the Secretary has, by regulation
                        published in the Federal Register, designated as a depleted species or stock; oF5

                           (4) taken in a manner deemed inhumane by the Secretary.

                        Notwithstanding the provisions of paragraphs (1) and (2), the Secretary may issue a
                        permit for the importation of a marine mammal, if the Secretary determines that such
                                                                                          26
                        importation is necessary for the protection or welfare of the animal.

                        (c) It is unlawful to import into the United States any of the following:

                           (1) Any marine mammal which was-

                                (A) taken in violation of this title; or

                                (B) taken in another country in violation of the law of that country.

                           (2) Any marine mammal product if-

                                (A) the importation into the United States of the marine mammal from which
                           such product is made is unlawful under paragraph (1) of this subsection; or

                                (B) the sale in commerce of such product in the country of origin of the
                           product is illegal;

                           (3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught
                        in a manner which the Secretary has proscribed for persons subject to the jurisdiction
                        of the United States, whether or not any marine mammals were in fact taken inci-
                        dene' to the catching of the fish.

                        (d) Subsections (b) and (c) of this section shall not apply-

                           (1) in the case of marine mammals or marine mammal products, as the case may
                        be, to which subsection (b)(3) of this section applies, to such items imported into the
                        United States before the date on which the Secretary publishes notice in the Federal
                        Register of his proposed rulemaking with respect to the designation of the species or
                        stock concerned as depleted; oF'

                           (2) in the case of marine mammals or marine mammal products to which subsec-
                        tion (c)(1)(B) or (c)(2)(B) of this section applies, to articles imported into the United
                        States before the effective date of the foreign law making the taking or sale, as the
                        case may be, of such marine mammals or marine mammal products unlawful.

                        (e) This Act shall not apply with respect to any marine mammal taken before the
                        effective date of this Act, or to any marine mammal product consisting of, or com-
                        posed in whole or in part of, any marine mammal taken before such date.



                                                                  15










                 Marine Mammal Commission


                         (f) It is unlawful for any person or vessel or other conveyance to take any species of
                         whale incidene9 to commercial whaling in waters subject to the jurisdiction of the
                         United States."



                                      Regulations On Taking Of Marine Mammals

                                                           16 U.S.C. 1373


                         Sec. 103. (a) The Secretary, on the basis of the best scientific evidence available and
                         in consultation with the Marine Mammal Commission, shall prescribe such regulations
                         with respect to the taking and importing of animals from each species of marine
                         mammal (including regulations on the taking and importing of individuals within
                         population stocks) as he deems necessary and appropriate to insure that such taking
                         will not be to the disadvantage of those species and population stocks and will be
                         consistent with the purposes and policies set forth in section 2 of this Act.

                         (b) In prescribing such regulations, the Secretary shall give full consideration to all
                         factors which may affect the extent to which such animals may be taken or imported,
                         including but not limited to the effect of such regulations on-

                            (1) existing and future levels of marine mammal species and population stocks;

                            (2) existing international treaty and agreement obligations of the United States;

                            (3) the marine ecosystem and related environmental considerations;

                            (4) the conservation, development, and utilization of fishery resources; and

                            (5) the economic and technological feasibility of implementation.

                         (c) The regulations prescribed under subsection (a) of this section for any species or
                         population stock of marine mammal may include, but are not limited to, restrictions
                         with respect to-

                            (1) the number of animals which may be taken or imported in any calendar year
                         pursuant to permits issued under section 104 of this title;

                            (2) the age, size, or sex (or any combination of the foregoing) of animals which
                         may be taken or imported, whether or not a quota prescribed under paragraph (1) of
                         this subsection applies with respect to such animals;

                            (3) the season or other period of time within which animals may be taken or
                         imported;

                            (4) the manner and locations in which animals may be taken or imported; and

                            (5) fishing techniques which have been found to cause undue fatalities to any
                         species of marine mammal in a fishery.



                                                                   16









                                                                            The Marine Mammal Notection Act of 1972 as Amended


                        (d) Regulations prescribed to carry out this section with respect to any species or stock
                        of marine mammals must be made on the record after opportunity for an agency
                        hearing on both the Secretary's determination to waive the moratorium pursuant to
                        section 101(a)(3)(A) of this title and on such regulations, except that, in addition to
                        any other requirements imposed by law with respect to agency rulemaking, the
                        Secretary shall publish and make available to the public either before or concurrent
                        with the publication of notice in the Federal Register of his intention to prescribe
                        regulations under this section-

                           (1) a statement of the estimated existing levels of the species and population stocks
                        of the marine mammal concerned;


                           (2) a statement of the expected impact of the proposed regulations on the optimum
                        sustainable population of such species or population stock;

                           (3) a statement describing the evidence before the Secretary upon which he
                        proposes to base such regulations; and

                           (4) any studies made by or for the Secretary or any recommendations made by or
                        for the Secretary or the Marine Mammal Commission which relate to the establishment
                        of such regulations.

                        (e) Any regulation prescribed pursuant to this section shall be periodically reviewed,
                        and may be modified from time to time in such manner as the Secretary deems
                        consistent with and necessary to carry out the purposes of this Act.

                        (f) Within six months after the effective date of this Act and every twelve months
                        thereafter, 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 ACL 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.




                                                              Permits


                                                          16 U.S.C. 1374


                        Sec. 104. (a) The Secretary may issue permits which authorize the taking or importa-
                        tion of any marine mammal.

                        (b) Any permit issued under this section shall-

                           (1) be consistent with any applicable regulation established by the Secretary under
                        section 103 of this title, and


                           (2) specify-




                                                                  17










                 Marine Marnmal Conunission


                                 (A) the number and kind of animals which are authorized to be taken or
                             imported,

                                 (B) the location and manner (which manner must be determined by the
                             Secretary to be humane) in which they may be taken, or from which they may be
                             imported,

                                 (C) the period during which the permit is valid, and

                                 (D) any other terms or conditions which the Secretary deems appropriate.

                         In any case in which an application for a permit cites as a reason for the proposed
                         taking the overpopulation of a particular species or population stock, the Secretary
                         shall first consider whether or not it would be more desirable to transplant a number of
                         animals (but not to exceed the number requested for taking in the application) of that
                         species or stock to a location not then inhabited by such species or stock but previous-
                         ly inhabited by such species or stock.

                         (c)(1) Any permit issued by the Secretary which authorizes the taking or importation                       OP
                         of a marine mammal for purposes of scientific research, public display, or enhancing
                         the survival or recovery of a species or stock shall specify, in addition to the condi-
                         tions required by subsection (b) of this section, the methods of capture, supervision,
                         care, and transportation which must be observed pursuant to and after such taking or
                         importation. Any person authorized to take or import a marine mammal for purposes
                         of scientific research, public display, or enhancing the survival or recovery of a species
                         or stock shall furnish to the Secretary a report on all activities carried out by him                      16
                         pursuant to that authority.

                             (2) A permit may be issued for public display purposes only to an applicant which
                         offers a program for education or conservation purposes that, based on professionally
                         recognized standards of the public display community, is acceptable to the Secretary
                         and which submits with the permit application information indicating that the appli-
                         cant's facilities are open to the public on a regularly scheduled basis and that access to
                         the facilities is not limited or restricted other than by charging of an admission fee.

                             (3) A permit may be issued for scientific research purposes only to an applicant
                         which submits with its permit application information indicating that the taking is
                         required to further a bona fide scientific purpose and does not involve unnecessary
                         duplication of research. No permit issued for purposes of scientific research shall
                         authorize the killing of a marine mammal unless the applicant demonstrates that a
                         nonlethal method for carrying out 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.

                             (4)(A) A permit may be issued for enhancing the survival or recovery of a species
                         or stock only with respect to a species or stock for which the Secretary, after consul-
                         tation with the Marine Mammal Commission and after notice and opportunity for
                         public comment, has first determined that-




                                                                    18









                                                                                The Marine Mammal Protection Act of 1972 as Amended


                                     (i) taking or importation is likely to contribute significantly to maintaining
                                 or increasing distribution or numbers necessary to ensure the survival or
                                 recovery of the species or stock; and

                                     (ii) taking or importation is consistent (I) with any conservation plan
                                 adopted by the Secretary under section 115(b) of this title or any recovery plan
                                 developed under section 4(f) of the Endangered Species Act of 1973 for the
                                 species or stock, or (11) if there is no conservation or recovery plan in place,
                                 with the Secretary's evaluation of actions required to enhance the survival or
                                 recovery of the species or stock in light to the factors that would be addressed
                                 in a conservation plan or a recovery plan.

                                 (B) A permit issued in accordance with this paragraph may allow the captive
                            maintenance of a marine mammal from a depleted species or stock only if the
                            Secretary-

                                     (i) determines that captive maintenance is likely to contribute to the surviv-
                                 al or recovery of the species or stock by maintaining a viable gene pool,
                                 increasing productivity, providing biological information, or establishing
                                 animal reserves;

                                     (ii) determines that the expected benefit to the affected species or stock
                                 outweighs the expected benefit of alternatives which do not require removal of
                                 animals from the wild; and

                                     (iii) requires that the marine mammal or its progeny be returned to the
                                 natural habitat of the species or stock as soon as feasible, consistent with the
                                 objectives of any applicable conservation plan or recovery plan, or of any
                                 evaluation by the Secretary under subparagraph (A).

                            The Secretary may allow the public display of such a marine mammal only if the
                            Secretary determines that such display is incidental to the authorized maintenance
                            and will not interfere with the attainment of the survival or recovery objectives."

                         (d)(1) The Secretary shall prescribe such procedures as are necessary to carry out this
                         section, including the form and manner in which application for permits may be made.

                            (2) The Secretary shall publish notice in the Federal Register of each application
                         made for a permit under this section. Such notice shall invite the submission from
                         interested parties, within thirty days after the date of the notice, of written data or
                         views, with respect to the taking or importation proposed in such application.

                            (3) The applicant for any permit under this section must demonstrate to the
                         Secretary that the taking or importation of any marine mammal under such permit will
                         be consistent with the purposes of this Act and the applicable regulations established
                         under section 103 of this title.


                            (4) If within thirty days after the date of publication of notice pursuant to paragraph
                         (2) of this subsection with respect to any application for a permit any interested party
                         or parties request a hearing in connection therewith, the Secretary may, within sixty
                         days following such date of publication, afford to such party or parties an opportunity
                         for such a hearing.


                                                                     19










                 Marine Mammal Commission


                             (5) As soon as practicable (but not later than thirty days) after the close of the
                          hearing or, if no hearing is held, after the last day on which data, or views, may be
                          submitted pursuant to paragraph (2) of this subsection, the Secretary shall (A) issue a
                          permit containing such terms and conditions as he deems appropriate, or (B) shall deny
                          issuance of a permit. Notice of the decision of the Secretary to issue or to deny any
                          permit under this paragraph must be published in the Federal Register within ten days
                          after the date of issuance or denial.


                             (6) Any applicant for a permit, or any party opposed to such permit, may obtain
                          judicial review of the terms and conditions of any permit issued by the Secretary under
                          this section or of his refusal to issue such a permit. Such review, which shall be
                          pursuant to chapter 7 of Title 5, United States Code, may be initiated by filing a
                          petition for review in the United States district court for the district wherein the
                          applicant for a permit resides, or has his principal place of business, or in the United
                          States District Court for the District of Columbia, within sixty days after the date on
                          which such permit is issued or denied.

                          (e)(1) The Secretary may modify, suspend, or revoke in whole or part any permit
                          issued by him under this section-                                                                             or

                                 (A) in order to make any such permit consistent with any change made after
                             the date of issuance of such permit with respect to any applicable regulation
                             prescribed under section 103 of this title, or

                                  (B) in any case in which a violation of the terms and conditions of the permit
                             is found.


                             (2) Whenever the Secretary shall propose any modification, suspension, or revoca-
                          tion of a permit under this subsection, the permittee shall be afforded opportunity, after
                          due notice, for a hearing by the Secretary with respect to such proposed modification,
                          suspension, or revocation. Such proposed action by the Secretary shall not take effect
                          until a decision is issued by him after such hearing. Any action taken by the Secretary
                          after such a hearing is subject to judicial review on the same basis as is any action
                          taken by him with respect to a permit application under paragraph (5) of subsection (d)
                          of this section.


                             (3) Notice of the modification, suspension, or revocation of any permit by the
                          Secretary shall be published in the Federal Register within ten days from the date of
                          the Secretary's decision.

                          (f) Any permit issued under this section must be in the possession of the person to
                          whom it is issued (or an agent of such person) during-

                             (1) the time of the authorized or taking importatior 132;

                             (2) the period of any transit of such person or agent which is incident to such
                          taking or importation; and

                             (3) any other time while any marine mammal taken or imported under such permit
                          is in the possession of such person or agent.




                                                                      20









                                                                                      The Marine Mammal Protection Act of 1972 as Amended


                           A duplicate copy of the issued permit must be physically attached to the container,
                           package, enclosure, or other means of containment, in which the marine mammal is
                           placed for purposes of storage, transit, supervision, or care.

                           (g) The Secretary shall establish and charge a reasonable fee for permits issued under
                           this section.


                           (h)(1) Consistent with the regulations prescribed pursuant to section 103 of this title
                           and to the requirements of section 101 of this title, the Secretary may issue general
                           permits for the taking of such marine mammals, together with regulations to cover the
                           use of such general permits.

                               (2)(A) Subject to subparagraph (B), the general permit issued under paragraph (1)
                           on December 1, 1980 to the American Tunaboat Association is extended to authorize
                           and govern the taking of marine mammals incidental to commercial purse seine fishing
                           for yellowfin tuna during each year after December 31, 1984.

                                    (B) The extension granted under subparagraph (A) is subject to the following
                              conditions:


                                        (i) The extension shall cease to have force and effect at the time the general
                                    pen-nit is surrendered or terminated.

                                        (ii) The permittee and certificate holders shall use the best marine mammal
                                    safety techniques and equipment that are economically and technologically
                                    practicable.

                                        (iii) During the period of the extension, the terms and conditions of the
                                    general permit that are in effect on the date of the enactment of this paragraph
                                    shall apply, except that-

                                             (1) the Secretary may make such adjustments as may be appropriate to
                                        those terms and conditions that pertain to fishing gear and fishing practice
                                        requirements and to permit administration;

                                             (111) any such term and condition may be amended or terminated if the
                                        amendment or termination is based on the best scientific information
                                        available, including that obtained under the monitoring program required
                                        under paragraph (3)(A); and

                                             (III) during each year of the extension, not to exceed 250 coastal
                                        spotted dolphin (Stenella attenuata) and not to exceed 2,750 eastern spinner
                                        dolphin (Stenella longirostris) may be incidentally taken under the general
                                        permit, and no accidental taking of either species is authorized at any time
                                        when incidental taking of that species is permitted.

                                        (iv) The Secretary shall, by January 1, 1989, prescribe regulations to ensure
                                    that the backdown procedure during sets of the purse seine net on marine
                                    mammals is completed and rolling of the net to sack up has begun no later
                                    than thirty minutes after sundown. The Secretary may waive or otherwise
                                    modify such regulations for-



                                                                           21










                  Marine Mammal Commission


                                           (1) a designated certificate holder on an observed trip if the Secretary
                                      determines, based on observer reports, that such restriction is not necessary
                                      because the certificate holder has consistently utilized fishing techniques
                                      and equipment so as to result in an incidental marine mammal mortality
                                      rate during sundown sets that is no higher than the average such rate for the
                                      fleet during daylight sets; or

                                           (11) all certificate holders on observed trips if the Secretary determines
                                      that such restriction is not necessary because all certificate holders have
                                      developed and are utilizing fishing techniques and equipment that assure
                                      that the incidental marine mammal mortality rate during sundown sets will
                                      be no higher than such rate during daylight sets.

                                      (v) The Secretary may authorize, after public notice and opportunity for
                                  comment, designated certificate holders to conduct experimental fishing
                                  operations on observed trips, under such terms and conditions as the Secretary
                                  may prescribe, for the purpose of testing proposed improvements in fishing
                                  techniques and equipment that may reduce the incidental mortality of marine
                                  mammals in the course of commercial yellowfin tuna fishing operations, and
                                  the Secretary may waive such terms and conditions of the general permit and
                                  this section, other than the quotas on incidental taking of marine mammals and
                                  the prohibition against encircling pure schools of certain species of marine
                                  mammals, as the Secretary determines to be necessary and appropriate for the
                                  conduct of such experimental fishing.

                                      (vi) The Secretary, after public notice and opportunity for comment and
                                  consultation with the skippers' panel of experts established pursuant to the
                                  general permit, shall develop and implement by not later than the beginning of
                                  the 1990 fishing season a system of performance standards to maintain the
                                  diligence and proficiency of certificate holders in the use of the best marine
                                  mammal safety techniques and equipment that are economically and technolog-
                                  ically practicable. The system shall include such arrangements as are neces-
                                  sary for the identification of certificate holders whose incidental marine
                                  mammal mortality rate is consistently and substantially higher than the average
                                  rate of the fleet, and for the supplemental training and observation of such
                                  certificate holders, and provisions for suspension or revocation of certificates
                                  of inclusion of those certificate holders whose unacceptably high rate of
                                  incidental taking reflects a lack of diligence or proficiency in the use of the
                                  best marine mammal safety techniques and equipmenL

                                      (vii) It shall be unlawful to use any explosive devices other than class C
                                  explosive pest control devices in the course of commercial yellowfin tuna
                                  fishing subject to the general permit. The Secretary shall prescribe regulations,
                                  effective April 1, 1990, to prohibit or restrict the use of class C explosive pest
                                  control devices in the course of commercial yellowfin tuna fishing unless the
                                  Secretary determines, based on a study which the Secretary shall undertake,
                                  that the use of such devices does not result in physical impairment or increased
                                  mortality of marine mammals.

                                      (viii) During the 1989 and subsequent fishing seasons, each certificated
                                  vessel shall carry on every fishing trip subject to this subsection an official
                                  observer certified by the Secretary or by the Inter-American Tropical Tuna


                                                                       22









                                                                                 Ile Marine Mammal Protection Act of 1972 as Amended


                                  Commission for the purpose of conducting research and observing fishing
                                  operations unless, for reasons beyond the control of the Secretary, an observer
                                  is not available for such purpose. The Secretary may waive this requirement
                                  after the 1991 fishing season and establish a less extensive observer program if
                                  the Secretary, after notice and opportunity for comment, determines that such
                                  an alternative program will provide sufficiently reliable information.

                                     (ix) The Secretary shall annually convene meetings with representatives of
                                  conservation and environmental organizations, the commercial tuna fishing
                                  industry, and other interested persons for the purpose of discussing the results
                                  of efforts to reduce the incidental mortality and serious injury of marine
                                  marnmals under this subsection as well as throughout the international fleet as
                                  a whole and developing plans for such efforts during the next year. On or
                                  before April 1, 1992, the Secretary shall submit to the Committee on Com-
                                  merce, Science, and Transportation of the Senate and the Committee on
                                  Merchant Marine and Fisheries of the House of Representatives a comprehen-
                                  sive report on the results of such efforts. The report shall discuss the results of
                                  the scientific research programs, performance standards, observer program,
                                  prohibition on sundown sets, development of alternative fishing techniques,
                                  and other efforts required by this section, and shall include recommendations
                                  for such action as the Secretary considers necessary and desirable to reduce
                                  furlher the total mortality and serious injury of marine mammals in the course
                                  of commercial yellowfin tuna fishing thmughout the international fleet."

                                  (C) The quota on the incidental taking of coastal spotted dolphin and eastern
                             spinner dolphin under paragraph (2)(B)(iii)(Ill) shall be treated-

                                     (i) as within, and not in addition to, the overall annual quota under the
                                  general pennit on the incidental taking of marine marnmals; and

                                     (ii) for purposes of paragraph (2)(B)(iii)(H), as a term of the general permit
                                  in effect on the date of the enactment of this paragraph.

                             (3)(A) The Secretary shall, commencing on January 1, 1985, undertake a scientific
                         research program to monitor for at least five consecutive years, and periodically as
                         necessary thereafter, the indices of abundance and trends of marine mammal popula-
                         tion stocks which are incidentally taken in the course of commercial purse seine
                         fishing for yellowfin tuna in the eastern tropical Pacific Ocean.

                                  (B) If the Secretary determines, on the basis of the best scientific information
                             available (including that obtained under the monitoring program), that the incidental
                             taking of marine marnmals permitted under the general permit referred to in
                             paragraph (2) is having a significant adverse effect on a marine mammal population
                             stock, the Secretary shall take such action as is necessary, after notice and an
                             opportunity for an agency hearing on the record, to modify the applicable incidental
                             take quotas or requirements for gear and fishing practices (or both such quotas and
                             requirements) for such fishing so as to ensure that the marine mammal population
                             stock is not significantly adversely affected by the incidental taking.

                                  (C) For each year after 1984, the Secretary shall include in his annual report to
                             the public and the Congress under section 103(f) a discussion of the proposed



                                                                      23









                Marine Ma=al Commission


                           activities to be conducted each year as part of the monitoring program required by
                           subparagraph (A).

                                (D) There are authorized to be appropriated to the Department of Commerce
                           for purposes of carrying out the monitoring program required under this paragraph
                           not to exceed $4,000,000 for the period beginning October 1, 1984, and ending
                           September 30, 1988.'



                                                              Penalties


                                                          .16 U.S.C. 1375


                        See. 105. (a)(1) Any person who violates any provision of this title or of any permit
                        or regulation issued thereunder may be assessed a civil penalty by the Secretary of not
                        more than $10,000 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.

                           (2) In any case involving an alleged unlawful importation of a marine mammal or
                        marine mammal product, if such importation is made by an individual for his own
                        personal or family use (which does not include importation as an accommodation to
                        others or for sale or other commercial use), the Secretary may, in lieu of instituting a
                        proceeding under paragraph (1), allow the individual to abandon the marnmal or
                        product, under procedures to be prescribed by the Secretary, to the enforcement officer
                                           31
                        at the port of entry.

                        (b) Any person who knowingly violates any provision of this title or of any permit or
                        regulation issued thereunder shall, upon conviction, be fined not more than $20,000 for
                        each such violation, or imprisoned for not more than one year, or both



                                      Vessel Fine, Cargo Forfeiture, and Rewards

                                                          16 U.S.C. 1376

                        Sec. 106. (a) Any vessel or other conveyance subject to the jurisdiction of the United
                        States that is employed in any manner in the unlawful taking of any marine mammal
                        shall have its entire cargo or the monetary value thereof subject to seizure and
                        forfeiture. All provisions of law relating to the seizure, judicial forfeiture, and
                        condemnation of cargo for violation of the customs laws, the disposition of such cargo,
                        and the proceeds from the sale thereof, and the remission or mitigation of any such
                        forfeiture, shall apply with respect to the cargo of any vessel or other conveyance



                                                                   24









                                                                               ne Marine Mammal Notection Act of 1972 as Amended


                         seized in connection with the unlawful taking of a marine mammal insofar as such
                         provisions of law are applicable and not inconsistent with the provisions of this title.

                         (b) Any vessel subject to the jurisdiction of the United States that is employed in any
                         marmer in the unlawful taking of any marine mammal shall be liable for a civil penalty
                         of not more than $25,000. 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.


                         (c) Upon the recommendation of the    Secretary, the Secretary of the Treasury is
                         authorized to pay an amount equal to one-half of the fine incurred but not to exceed
                         $2,500 to any person who furnishes information which leads to a conviction for a
                         violation of this title. Any officer or employee of the United States or of any State or
                         local government who furnishes information or renders service in the performance of
                         his official duties shall not be eligible for payment under this section.



                                                             Enforcement


                                                            16 U.S.C. 1377


                         Sec. 107. (a) Except as otherwise provided in this title, the Secretary shall enforce the
                         provisions of this title. The Secretary may utilize, by agreement, the personnel,
                         services, and facilities of any other Federal agency for purposes of enforcing this title.

                         (b) The Secretary may also designate officers and employees of any State or of any
                         possession of the United States to enforce the provisions of this title. When so
                         designated, such officers and employees are authorized to function as Federal law
                         enforcement agents for these purposes, but they shall not be held and considered as
                         employees of the United States for the purposes of any laws administered by the
                         Director of the Office of Personnel Managernent.36

                         (c) The judges of the district courts of the United States and the United States magis-
                         trates may, within their respective jurisdictions, upon proper oath or affirmation
                         showing probable cause, issue such warrants or other process, including wan-ants or
                         other process issued in admiralty proceedings in United States district courts, as may
                         be required for enforcement of this title and any regulations issued thereunder.

                         (d) Any person authorized by the Secretary to enforce this title may execute any
                         warrant or process issued by any officer or court of competent jurisdiction for the
                         enforcement of this title. Such person so authorized may, in addition to any other
                         authority conferred by law-

                            (1) with or without warrant or other process, arrest any person committing in his
                         presence or view a violation of this title or the regulations issued thereunder,



                                                                    25









                 Marine Manmal Cwnrnission


                             (2) with a warrant or other process, or without a warrant if he has reasonable cause
                          to believe that a vessel or other conveyance subject to the jurisdiction of the United
                          States or any person on board is in violation of any provision of this title or the
                          regulations issued thereunder, search such vessel or conveyance and arrest such person;

                             (3) seize the cargo of any vessel or other conveyance subject to the jurisdiction of
                          the United States used or employed contrary to the provisions of this title or the
                          regulations issued hereunder or which reasonably appears to have been so used or
                          employed; and

                             (4) seize, whenever and wherever found, all marine mammals and marine mammal
                          products taken or retained in violation of this title or the regulations issued thereunder
                          and shall dispose of them in accordance with regulations prescribed by the Secretary.

                          (e)(1) Whenever any cargo or marine mammal or marine mammal product is seized
                          pursuant to this section, the Secretary shall expedite any proceedings commenced
                          under section 105(a) or (b) of this title. All marine mammals or marine mammal
                          products or other cargo so seized shall be held by any person authorized by the
                          Secretary pending disposition of such proceedings. The owner or consignee of any                                or
                          such marine mammal or marine mammal product or other cargo so seized shall, as
                          soon as practicable following such seizure, be notified of that fact in accordance with
                          regulations established by the Secretary.

                             (2) The Secretary may, with respect to any proceeding under section 105(a) or (b)
                          of this title, in lieu of holding any marine mammal or marine mammal product or
                          other cargo, permit the person concerned to post bond or other surety satisfactory to
                          the Secretary pending the disposition of such proceeding.

                             (3)(A) Upon the assessment of a penalty pursuant to section 105(a) of this title, all
                          marine mammals and marine mammal products or other cargo seized in connection
                          therewith may be proceeded against in any court of competent jurisdiction and
                          forfeited to the Secretary for disposition by him in such manner as he deems appropri-
                          ate.


                                  (B) Upon conviction for violation of section 105(b) of this title, all marine
                             mammals and marine mammal products seized in connection therewith shall be
                             forfeited to the Secretary for disposition by him in such manner as he deems
                             appropriate. Any other property or item so seized may, at the discretion of the
                             court, be forfeited to the United States or otherwise disposed of.

                             (4) If with respect to any marine mammal or marine mammal product or other
                          cargo so seized-

                                  (A) a civil penalty is assessed under section 105(a) of this title and no judicial
                             action is commenced to obtain the forfeiture of such mammal or product within
                             thirty days after such assessment, such marine mammal or marine mammal product
                             or other cargo shall be immediately returned to the owner or the consignee; or

                                  (B) no conviction results from an alleged violation of section 105(b) of this
                             title, such marine mammal or marine mammal product or other cargo shall immedi-
                             ately be returned to the owner or consignee if the Secretary does not, with37 thirty
                             days after the final disposition of the case involving such alleged violation, com-


                                                                       26









                                                                                The Marine Mammal Protection Act of 1972 as Amended


                            mence proceedings for the assessment of a civil penalty under section 105(a) of this
                            title.




                                                      International Program

                                                             16 U.S.C. 1378


                         Sec. 108. (a) The Secretary, through the Secretary of State, shall-

                            (1) initiate negotiations as soon as possible for the development of bilateral or
                         multinational agreements with other nations for the protection and conservation of all
                         marine mammals covered by this Act;

                            (2) initiate-

                                 (A) negotiations as soon as possible with all foreign goveniments which are
                            engaged in, or which have persons or companies engaged in, commercial fishing
                            operations which are found by the Secretary to be unduly harmful to any species or
                            population stock of marine mammal, for the purpose of entering into bilateral and
                            multilateral treaties with such countries to protect marine mammals, with the
                            Secretary of State to prepare a draft agenda relating to this matter for discussion at
                            appropriate international meetings and forums; and

                                 (B) discussions with foreign governments whose vessels harvest yellowfin tuna
                            with purse seines in the eastern tropical Pacific Ocean, for the purpose of conclud-
                            ing, through the Inter-American Tropical Tuna Commission or such other bilateral
                            or multilateral institutions as may be appropriate, international arrangements for the
                            conservation of marine mammals taken incidentally in the course of harvesting such
                            tuna, which should include provisions for (i) cooperative research into alternative
                            methods of locating and catching yellowfin tuna which do not involve the taking of
                            marine mammals, (ii) cooperative research on the status of affected marine manunal
                            population stocks, (iii) reliable monitoring of the number, rate, and species of
                            marine mammals taken by vessels of harvesting nations, (iv) limitations on inciden-
                            tal take levels based upon the best scientific information available, and (v) the use
                            of the best marine mammal safety techniques and equipment that are economically
                            and technologically practicable to reduce the incidental kill and serious injury of
                            marine mammals to insignificant levels approaching a zero mortality and serious
                            injury rate;"

                            (3) encourage such other agreements to promote the purposes of this Act with other
                         nations for the protection of specific ocean and land regions which are of special
                         significance to the health and stability of marine mammals;

                            (4) initiate the amendment of any existing international treaty for the protection and
                         conservation of any species of marine mammal to which the United States is a party in
                         order to make such treaty consistent with the purposes and policies of this Act;

                            (5) seek the convening of any international ministerial meeting on marine mammals
                         before July 1, 1973, for the purposes of (A) the negotiation of a binding international


                                                                     27









                 Marine Marnrnal Commission


                         convention for the protection and conservation of all marine mammals, and (B) the
                         implementation of paragraph (3) of this section; and

                            (6) provide to the Congress by not later than one year after the date of the enact-
                         ment of this Act a full report on the results of his efforts under this section.

                         (b)(1) In addition to the foregoing, the Secretary shall-

                                 (A) in consultation with the Marine Mammal Commission established by
                            section 201 of this Act, undertake a study of the North Pacific fur seals to deter-
                            mine whether herds of such seals subject to the jurisdiction of the United States are
                            presently at their optimum sustainable population and what population trends are
                            evident; and

                                 (B) in consultation with the Secretary of State, promptly undertake a compre-
                            hensive study of the provisions of this Act, as they relate to North Pacific fur seals,
                            and the provisions of the North Pacific Fur Seal Convention signed on February 9,
                            1957, as extended (hereafter referred to in this subsection as the "Convention"), to
                            determine what modifications, if any, should be made to the provisions of the
                            Convention, or of this Act, or both, to make the Convention and this Act consistent
                            with each other.


                         The Secretary shall complete the studies required under this paragraph not later than
                         one year after the date of enactment of this Act and shall immediately provide copies
                         thereof to Congress.

                            (2) If the Secretary finds-

                                 (A) as a result of the study required under paragraph (1)(A) of this subsection,
                            that the North Pacific fur seal herds are below their optimum sustainable population
                            and are not trending upward toward such level, or have reached their optimum
                            sustainable population but are commencing a downward trend, and believes the
                            herds to be in danger of depletion; or

                                 (B) as a result of the study required under paragraph (1)(B) of this subsection,
                            that modifications of the Convention are desirable to make it and this Act consis-
                            tent;


                         he shall, through the Secretary of State, immediately initiate negotiations to modify the
                         Convention so as to (i) reduce or halt the taking of seals to the extent required to
                         assure that such herdsattain and remain at their optimum sustainable population, or (ii)
                         make the Convention and this Act consistent; or both, as the case may be. If negotia-
                         tions to so modify the Convention are unsuccessful, the Secretary shall, through the
                         Secretary of State, take such steps as may be necessary to continue the existing
                         Convention beyond its present termination date so as to continue to protect and
                         conserve the North Pacific fur seals and to prevent a return to pelagic sealing.

                         (c) The Secretary shall include a description of the annual results of discussions
                         initiated and conducted pursuant to subsection (a)(2)(B), as well as any proposals for
                         further action to achieve the purposes of that subsection, in the report required under
                                                   39
                         section 103(f) of this title.



                                                                    28









                                                                              Ile Mafine Mammal Notecdon Act of 1972 as Amended



                                              Federal Cooperation with States

                                                           16 U.S.C. 1379


                        Sec. 109. (a) No State may enforce, or attempt to enforce, any State law or regulation
                        relating to the taking of any species (which term for purposes of this section includes
                        any population stock) of marine mammal within the State unless the Secretary has
                        transferred authority for the conservation and management of that species (hereinafter
                        referred to in this section as "management authority") to the State under subsection
                        (b)(1).

                        (b)(1) Subject to paragraph (2) and subsection (f), the Secretary shall transfer manage-
                        ment authority for a species of marine mammal to a State if the Secretary finds, after
                        notice and opportunity for public comment, that the State has developed and will
                        implement a program for the conservation and management of the species that-

                                (A) is consistent with the purposes, policies, and goals of this Act and with
                           international treaty obligations;

                                (B) requires that all taking of the species be humane;

                                (C) does not permit the taking of the species unless and until-

                                   (i) the State has determined, under a process consistent with the standards
                                set forth in subsection (c@-

                                        (1) that the species is at its optimum sustainable population (hereinafter
                                   in this section referred to as "OSP"), and

                                        (H) the maximum number of animals of that species that may be taken
                                   without reducing the species below its OSP, and

                                   (ii) the determination required under clause (i) is final and implemented
                                under State law, and, if a cooperative allocation agreement for the species is
                                required under subsection (d)(1), such an agreement is implemented;

                                (D) does not permit the taking of a number of animals of the species that
                           exceeds the maximum number determined pursuant to subparagraph (C)(i)(11), and,
                           in the case of taking for subsistence uses (as defined in subsection (f)(2)), does not
                           permit the taking of a number of animals that would be inconsistent with the
                           maintenance of the species at its OSP;

                                (E) does not permit the taking of the species for scientific research, public
                           display, or enhancing the survival or recovery of a species or stock, except for
                           takimg for such purposes that is undertaken by, or on behalf of, the State-, 40

                                (F) provides procedures for acquiring data, and evaluating such data and other
                           new evidence, relating to the OSP of the species, and the maximum take that would
                           maintain the species at that level, and, if required on the basis of such evaluation,
                           for amending determinations under subparagraph (Q(i);


                                                                   29










                 Marine Mammal Commission


                                  (G) provides procedures for the resolution of differences between the State and
                             the Secretary that might arise during the development of a cooperative allocation
                             agreement under subsection (d)(1); and

                                  (M provides for the submission of an annual report to the Secretary regarding
                             the administration of the program during the reporting period.

                             (2) During the period between the transfer of management authority for a species to
                         a State under paragraph (1) and the time at which the implementation requirements
                         under paragraph (1)(C)(ii) are complied with--

                                  (A) the State program shall not apply with respect to the Liking of the species
                             within the State for any purpose, or under any condition, provided for under section
                             101; and


                                  (B) the Secretary shall continue to regulate, under this title, all takings of the
                             species within the State.

                             (3) After the determination required under paragraph (1)(C)(i) regarding a species is
                         final and implemented under State law and after a cooperative allocation agreement
                         described in subsection (d)(1), if required, is implemented for such species--

                                  (A) such determination shall be treated, for purposes of applying this title
                             beyond the territory of the State, as a determination made in accordance with
                             section 103 and as an applicable waiver under section 101(a)(3);

                                  (B) the Secretary shall regulate, without regard to this section other than the
                             allocations specified under such an agreement, the taking of the species-

                                     (i) incidentally in the course of commercial fishing operations (whether
                                  provided for under section 101(a)(2) or (4)), or in the course of other specified
                                  activities provided for under section 101(a)(5), in the zone described in section
                                  3(14)(B), and

                                     (ii) for scientific research, public display, or enhancing the survival or
                                  recovery of a species or stock (other than by, or on behalf of, the State),
                                  except that any taking authorized under a permit issued pursuant to section
                                  101(a)(1) after the date of the enactment of the 1981 amendment to this sub-
                                  section allowing the removal of live animals from habitat within the State shall
                                  not be effective if the State agency disapproves, on or before the date of
                                  issuance of the permit, such taking as being inconsistent with the State pro-
                                  gram; an&'

                                  (C) section 101(b) shall not apply.

                         (c) The State process required under subsection (b)(1)(C) must comply with the
                         following standards:

                             (1) The State agency with management authority for the species (hereinafter in this
                         section referred to as the "State agency") must make an initial determination regarding
                         the factors described in clause (i) of that subsection. The State agency must identify,
                         and make available to the public under reasonable circumstances, the documentation


                                                                     30









                                                                              The Marine Mammal Protection Act of 1972 as Amended


                        supporting such initial determination. Unless request for a hearing under paragraph (2)
                        regarding the initial determination is timely made, the initial determination shall be
                        treated as final under State law.


                           (2) The State agency shall provide opportunity, at the request of any interested
                        party, for a hearing with respect to the initial determination made by it under para-
                        graph (1) at which interested parties may-

                                (A) present oral and written evidence in support of or against such determi-
                           nation; and


                                (B) cross-examine persons presenting evidence at the hearing.

                        The State agency must give public notice of the hearing and make available to the
                        public within a reasonable time before commencing the hearing a list of the witnesses
                        for the State and a general description of the documentation and other evidence that
                        will be relied upon by such witnesses.

                           (3) The State agency, solely on the basis of the record developed at a hearing held
                        pursuant to paragraph (2), must make a decision regarding its initial determination
                        under paragraph (1) and shall include with the record a statement of the findings and
                        conclusions, and the reason or basis therefor, on all material issues.

                           (4) Opportunity for judicial review of the decision made by the State agency on the
                        record under paragraph (3), under scope of review equivalent to that provided for in
                        section 706(2) (A) through (E) of Title 5, United States Code, must be available under
                        State law. The Secretary may not initiate judicial review of any such decision.

                        (d)(1) If the range of a species with respect to which a determination under paragraph
                        (1)(C)(i) of subsection (b) is made extends beyond the territorial waters of the State,
                        the State agency and the Secretary (who shall first coordinate with the Marine Mam-
                        mal Commission and the appropriate Regional Fishery Management Council estab-
                        lished under section 302 of the Act of April 13, 1976 (16 U.S.C. 1852)) shall enter
                        into a cooperative allocation agreement providing procedures for allocating, on a
                        timely basis, such of the number of animals, as determined under paragraph
                        (1)(C)(i)(11) of subsection (b), as may be appropriate with priority of allocation being
                        given firstly to taking for subsistence uses in the case of the State of Alaska, and
                        secondly to taking for purposes provided for under section 101(a) within the zone
                        described in section 3(14)(B).

                           (2) If the State agency requests the Secretary to regulate the taking of a species to
                        which paragraph (1) applies within the zone described in section 3(14)(B) for subsis-
                        tence uses or for hunting, or both, in a mariner consistent with the regulation by the
                        State agency of such taking within the State, the Secretary shall adopt, and enforce
                        within such zone, such of the State agency's regulatory provisions as the Secretary
                        considers to be consistent with his administration of section 101(a) within such zone.
                        The Secretary shall adopt such provisions through the issuance of regulations under
                        section 553 of Title 5, United States Code, and with respect to such issuance the
                        Regulatory Flexibility Act, the Paperwork Reduction Act, Executive Order No. 12291,
                        dated February 17, 1981, and the thirty-day notice requirement in subsection (d) of
                        such section 553 shall not apply. For purposes of sections 105, 106, and 107, such
                        regulations shall be treated as having been issued under this title.


                                                                   31









                  Mafme Mammal Commission


                          (e)(1) Subject to paragraph (2), the Secretary shall revoke, after opportunity for a
                          hearing, any transfer of management authority made to a State under subsection (b)(1)
                          if the Secretary finds that the State program for the conservation and management of
                          the species concerned is not being implemented, or is being implemented in a manner
                          inconsistent with the provisions of this section or the provisions of the program. The
                          Secretary shall also establish a procedure for the voluntary return by a State to the
                          Secretary of species management authority that was previously transferred to the State
                          under subsection (b)(1).

                             (2)(A) The Secretary may not revoke a transfer of management authority under
                          paragraph (1) unless-

                                      (i) The Secretary provides to the State a written notice of intent to revoke
                                  together with a statement, in detail, of those actions, or failures to act, on
                                  which such intent is based; and

                                      (ii) during the ninety-day period after the date of the notice of intent to
                                  revoke-


                                           (1) the Secretary provides opportunity for consultation between him
                                      and the State concerning such State actions or failures to act and the
                                      remedial measures that should be taken by the State, and                                             IF

                                           (111) the State does not take such remedial measures as are necessary, in
                                      the judgment of the Secretary, to bring its conservation and management
                                      program, or the administration or enforcement of the program, into compli-
                                      ance with the provisions of this section.

                                  (B) When a revocation by the Secretary of a transfer of management authority
                             to a State becomes final, or the State voluntarily returns management authority to
                             the Secretary, the Secretary shall regulate the taking, and provide for the conserva-
                             tion and management, of the species within the State in accordance with the
                             provisions of this Act (and in the case of Alaskan Natives, section 101(b) and
                             subsection (i) of this section shaU apply upon such revocation or return of manage-
                             ment authority).

                          (f)(1) The Secretary may not transfer management authority to the State of Alaska
                          under subsection (b)(1) for any species of marine mammal unless-

                                  (A) the State has adopted and will implement a statute and regulations that
                             insure that the taking of the species for subsistence uses-

                                      (i) is accomplished in a nonwasteful manner,

                                      (ii) will be the priority consumptive use of the species, and

                                      (iii) if required to be restricted, such restriction will be based upon-

                                           (I) the customary and direct dependence upon the species as the
                                      mainstay of livelihood,

                                           (11) local residency, and

                                                                       32









                                                                              The Marine Mammal Protection Act of 1972 as Amended


                                         (IM the availability of alternative resources; and

                                 (B) the State has adopted a statute or regulation that requires that any con-
                            sumptive use of marine mammal species, other than for subsistence uses, will be
                            authorized during a regulatory year only if the appropriate agency first makes
                            findings, based on an administrative record before it, that-

                                    (i) such use will have no significant adverse impact upon subsistence uses
                                 of the species, and

                                    (ii) the regulation of such use, including, but not limited to, licensing of
                                 marine mammal hunting guides and the assignment of guiding areas, will, to
                                 the maximum extent practicable, provide economic opportunities for the
                                 residents of the rural coastal villages of Alaska who engage in subsistence uses
                                 of that species.

                            (2) For purposes of paragraph (1), the term "subsistence uses" means the customary
                        and traditional uses by rural Alaska residents of marine mammals for direct personal or
                        family consumption as food, shelter, fuel, clothing, tools, or transportation; for the
                        making and selling of handicraft articles out of nonedible byproducts of marine
                        mammals taken for personal or family consumption; and for barter, or sharing for
                        personal or family consumption. As used in this paragraph-

                                 (A) The term "family" means all persons related by blood, marriage, or adop-
                            tion, or any person living within a household on a permanent basis.

                                 (B) The term "barter" means the exchange of marine mammals or their parts,
                            taken for subsistence uses-


                                    (i) for other wildlife or fish or their parts, or

                                    (ii) for other food or for nonedible items other than money if the exchange
                                 is of a limited and noncommercial nature.


                        (g) Neither the transfer of management authority to a State under subsection (b)(1), nor
                        the revocation or voluntary return of such authority under subsection (e), shall be
                        deemed to be an action for which an environmental impact statement is required under
                        section 102 of the National Environmental Policy Act of 1969.

                        (h)(1) Nothing in this title or title 111 [16 U.S.C. 1421 et seq.]' shall prevent a
                        Federal, State, or local government official or employee or a person designated under
                        section 112(c) from taking, in the course of his or her duties as an official, employee,
                        or designee, a marine mammal in a humane manner (including euthanasia) if such
                        taking is for-

                                 (A) the protection or welfare of the mammal,

                                 (B) the protection of the public health and welfare, or

                                 (C) the nonlethal removal of nuisance animals.




                                                                    33










                 Marine Mammal Commission


                             (2) Nothing in this title shall prevent the Secretary or a person designated under
                          section 112(c) from importing a marine mammal into the United States if such
                          importation is necessary to render medical treatment that is not otherwise available.

                             (3) In any case in which it is feasible to return to its natural habitat a marine
                          mammal taken or imported under circumstances described in this subsection, steps to
                          achieve that result shall be taken@'

                          (i) The Secretary may (after providing notice thereof in the Federal Register and in
                          newspapers of general circulation, and through appropriate electronic media, in the
                          affected area and providing opportunity for a hearing thereon in such area) prescribe
                          regulations requiring the marking, tagging, and reporting of animals taken pursuant to
                          section 101(b).

                             The Secretary may make grants to States to assist them-

                             (1) in developing programs, to be submitted for approval under subsection (b), for
                          the conservation and management of species of marine mammal ; and

                             (2) in administering such programs if management authority for such species is
                          transferred to the State under such subsection.


                          Grants made under this subsection may not exceed 50 per centum of the costs of
                          developing a State program before Secretarial approval, or of administering the
                          program thereaftm"

                          (k) The Secretary is authorized and directed to enter into cooperative arrangements
                          with the appropriate officials of any State for the delegation to such State of the
                          administration and enforcement of this title: Provided, That any such arrangement
                          shall contain such provisions as the Secretary deems appropriate to insure that the
                          purposes and policies of this Act will be carried out.

                          (1)(1) There are authorized to be appropriated to the Departinent of the Interior, for the
                          purposes of carrying out this section, not to exceed $400,000 for each of the fiscal
                          years ending September 30, 1979, September 30, 1980, and September 30, 1981.

                             (2) There are authorized to be appropriated to the Department of Commerce, for the
                          purposes of carrying out this section, not to exceed $225,000 for each of the fiscal
                          years ending September 30, 1979, September 30, 1980, and September 30, 198         1 .45













                                                                       34









                                                                                 The Marine Mammal PYoteWon Act of 1972 as Amended


                                               Marine Mammal Research Grants


                                                             16 U.S.C. 1380


                         Sec. 110. (a)(1) 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).46

                             (2) For purposes of identifying appropriate research into promising new methods of
                         locating and catching yellowfin tuna without the incidental taking of marine mammals,
                         the Secretary shall contract for an independent review of information pertaining to
                         such potential alternative methods to be conducted by the National Academy of
                         Sciences with individuals having scientific, technical, or other expertise that may be
                         relevant to the identification of promising alternative fishing techniques. The Secretary
                         shall request that the independent review be submitted to the Secretary on or before
                         September 8, 1989, and the Secretary shall submit the report of the independent
                         review, together with a proposed plan for research, development, and implementation
                         of alternative fishing techniques, 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 or before December 5, 1989.47

                         (b) Any grant or other financial assistance provided by the Secretary pursuant to this
                         section shall be subject to such terms and conditions as the Secretary deems necessary
                         to protect the interests of the United States and shall be made after review by the
                         Marine Mammal Commission.


                         (c) There are authorized to be appropriated, for the purposes of carrying out this
                         section, not to exceed the following surns for the following fiscal years:

                             (1) $2,500,000 for each of the fiscal years ending June 30, 1973, June 30, 1974,
                         June 30, 1975, September 30, 1976, and September 30, 1977, of which one-third of
                         the sum appropriated for any such fiscal year shall be available to the Secretary of the
                         Interior and two-thirds of any such sum shall be available to the Secretary of Com-
                         merce.


                             (2) $1,200,000, all of which shall be available to the Secretary of the Interior, for
                         the fiscal year ending September 30, 1978.

                             (3) $200,000, all of which shall be available to the Secretary of Commerce, for the
                                                                  41
                         fiscal year ending September 30, 1978.

                             (4)(A) $1,300,000 which shall be available to the Secretary of the Interior for the
                         fiscal year ending September 30, 1979.



                                                                      35









                  Marine Manunal Commission


                                  (B) $2,700,000 which shall be available to the Secretary of Commerce for the
                             fiscal year ending September 30, 1979.

                             (5)(A) $1,500,000 which shall be available to the Secretary of the Interior for the
                          fiscal year ending September 30, 1980.

                                  (B) $2,700,000 which shall be available to the Secretary of Commerce for the
                             fiscal year ending September 30, 1980.

                             (6)(A) $2,100,000 which shall be available to the Secretary of the Interior for the
                          fiscal year ending September 30, 1981.

                                  (B) $2,700,000 which shall be available to the Secretary of Commerce for the
                             fiscal year ending September 30, 1981.49



                                           Commercial Fisheries Gear Development

                                                              16 U.S.C. 1381


                          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.

                          (b) The Secretary, after consultation with the Marine Mammal Commission, is
                          authorized and directed to issue, as soon as practicable, such regulations, covering the
                          twenty-four-month period referred to in section 101(a)(2) of this title, as he deems
                          necessary or advisable, to reduce to the lowest practicable level the taking of marine
                          mammals incidental to commercial fishing operations. Such regulations shall be
                          adopted pursuant to section 553 of Title 5, United States Code. In issuing such
                          regulations, the Secretary shall take into account the results of any scientific research
                          under subsection (a) of this section and, in each case, shall provide a reasonable time
                          not exceeding four months for the persons affected to implement such regulations.
                          (c) Additionally, the'Secretary and Secretary of State are directed to commence
                          negotiations within the Inter-American Tropical Tuna Commission in order to effect
                          essential compliance with the regulatory provisions of this Act so as to reduce to the
                          maximum extent feasible the incidental taking of marine mammals by vessels involved
                          in the tuna fishery. The Secretary and Secretary of State are further directed to request
                          the Director of Investigations of the Inter-American Tropical Tuna Commission to
                          make recommendations to all member nations of the Commission as soon as is



                                                                      36









                                                                                77w Marine Mammal Protection Act of 1972 as Amended


                         practicable as to the utilization of methods and gear devised under subsection (a) of
                         this section.


                         (d) Furthermore, after timely notice and during the period of research provided in this
                         section, duly authorized agents of the Secretary are hereby empowered to board and to
                         accompany any commercial fishing vessel documented under the laws of the United
                         States, there being space available, on a regular fishing trip for the purpose of conduct-
                         ing research or observing operations in regard to the development of improved fishing
                         methods and gear as authorized by this section. Such research and observation shall
                         be carried out in such manner as to minimize interference with fishing operations. The
                         Secretary shall provide for the cost of quartering and maintaining such agents. No
                         master, operator, or owner of such a vessel shall impair or in any way interfere with
                         the research or observation being carried out by agents of the Secretary pursuant to
                         this section.



                                                Regulations and Administration

                                                             16 U.S.C. 1382


                         Sec. 1.12. (a) The Secretary, in consultation with any other Federal agency to the
                         extent that such agency may be affected, shall prescribe such regulations as are
                         necessary and appropriate to carry out the purposes of this title.

                         (b) Each Federal agency is authorized and directed to cooperate with the Secretary, in
                         such manner as may be mutually agreeable, in carrying out the purposes of this title.

                         (c) The Secretary may enter into such contracts, leases, cooperative agreements, or
                         other transactions as may be necessary to carry out the purposes of this title or title In
                         [16 U.S.C. 1421 et seq.] and on such terms as he deems appropriate with any Federal
                                                                                        50
                         or State agency, public or private institution, or other person.

                         (d) The Secretary shall review annually the operation of each program in which the
                         United States participates involving the taking of marine mammals on land. If at any
                         time the Secretary finds that any such program cannot be administered on lands owned
                         by the United States or in which the United States has an interest in a manner consis-
                         tent with the purposes of 51 policies of this Act, he shall suspend the operation of that
                         program and shall include in the annual report to the public and the Congress required
                         under section 103(f) of this Act his reasons for such suspension, together with
                         recommendations for such legislation as he deems necessary and appropriate to resolve
                         the problern.52










                                                                     37










                 Marine Mammal Corrunission


                                      Application to Other Treaties and Conventions

                                                              16 U.S.C. 1383


                          Sec. 113. The provisions of this title shall be deemed to be in addition to and not in
                          contravention of the provisions of any existing international treaty, convention, or
                          agreement, or any statute implementing the same, which may otherwise apply to the
                          taking of marine mammals. Upon a finding by the Secretary that the provisions of any
                          international treaty, convention, or agreement, or any statute implementing the same
                          has been made applicable to persons subject to the provisions of this title in order to
                          effect essential compliance with the regulatory provisions of this Act so as to reduce to
                          the lowest practicable level the taking of marine mammals incidental to commercial
                          fishing operations, section 105 of this title may not apply to such persons.



                                       Interim Exemption for Commercial Fisheries'9

                                                             16 U.S.C. 1383a


                          Sec. 114. (a)(1) During the period beginning on the date of enactment of this section
                          and ending October 1, 1993, except as provided in paragraph (2), the provisions of this
                          section, rather than sections 101, 103, and 104, shall govern the incidental taking of
                          marine mammals in the course of commercial fishing operations by persons using
                          vessels of the United States and 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 kill or serious injury of marine mammals permitted in the course of
                          commercial fishing operations be reduced to insignificant levels approaching a zero
                          mortality and serious injury rate.

                             (2) The provisions of this section other than subsection (e)(6)(A) shall not govern
                          the incidental taking of marine mammals in the course of commercial yellowfin tum
                          fishing subject to section 104(h)(2) of this title.

                          (b)(1)The Secretary shall, after consultation with the Marine Mammal Commission---

                                  (A) publish in the Federal Register, for public comment, not later than sixty
                             days after the date of enactment of this section a proposed list of those fisheries,
                             along with a statement of the marine mammals and the approximate number of
                             vessels or persons involved in each such fishery, that have-

                                     (i) frequent incidental taking of marine mammals;

                                     (ii) occasional incidental taking of marine mammals; or

                                     (iii) a remote likelihood of or no known incidental taking of marine
                                  mammals;

                                  (B) publish in the Federal Register not later than one hundred and twenty days
                             after the date of enactment of this section a final list of the fisheries and other


                                                                      38









                                                                                The Marine Mammal Protection Act of 1972 as Amended


                            information required by paragraph (A), together with a summary of the provisions
                            of this section and information sufficient to advise vessel owners on how to obtain
                            an exemption 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 from the program
                            established under subsections (c), (d), (e), and (f), and other relevant sources and
                            after notice and opportunity for public comment, the classification of fisheries and
                            other determinations required under subparagraph (A) and publish in the Federal
                            Register any necessary changes.

                            (2)(A) An exemption shall be granted by the Secretary in accordance with this
                         section for a vessel engaged in a fishery identified under paragraph (1)(A) (i) or (ii),
                         upon receipt by the Secretary of a completed registration form providing the name of
                         the vessel owner, the name and description of the vessel, the fisheries in which it will
                         be engaged, and such other information as the Secretary considers necessary. A decal
                         or other physical evidence that the exemption is current and valid shall be issued by
                         the Secretary at the time an exemption is granted, and so long as the exemption
                         remains current and valid, shall be reissued annually thereafter.

                                 (B) No exemption 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) Notwithstanding any other provision of this title, exemptions granted under
                            this section shall authorize the incidental taking of marine mammals, other than
                            California sea otters, from any species or stock, including a population stock
                            designated as depleted, but shall not authorize the intentional lethal taking of any
                            Steller sea lion, any cetacean, or any marine mammals from a population stock
                            designated as depleted.

                            (3)(A) Beginning two hundred and forty days after the date of enactment of this
                         section, each owner of a vessel engaged in any fishery identified under paragraph
                         (1)(A) (i) or (ii) shall, in order to engage lawfully in that fishery-

                                     (i) have registered with the Secretary in order to obtain for each such vessel
                                 owned an exemption for the purpose of incidentally taking marine mammals in
                                 accordance with this section;


                                     (ii) ensure that a decal or such other physical evidence of a current and
                                 valid exemption 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 (c).





                                                                     39










                  Marine Mammal Commission


                                   (B) Any owner of a vessel receiving an exemption under this section for any
                              fishery identified under paragraph (1)(A)(i) shall, as a condition of that exemption,
                              take on board a natural resource observer if requested to do so by the Secretary.

                                   (C) An owner of a vessel engaged in a fishery identified under paragraph
                              (1)(A) (i) or (ii) who--

                                      (i) fails to obtain from the Secretary an exemption under this section;

                                      (ii) fails to maintain a current and valid exemption; or

                                      (iii) fails to ensure that a decal or other physical evidence of such exemp-
                                   tion issued by the Secretary is displayed on or is in possession-"4 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, and shall be subject to the penalties of this title except in the case of
                          unknowing violations before January 1, 1990.

                                   (D) If the owner of a vessel has obtained and maintains a current and valid
                              exemption from the Secretary under this section and meets the requirements set
                              forth in 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 inciden-
                              tal taking of marine mammals while such vessel is engaged in a fishery to which
                              the exemption applies.

                                   (E) Each owner of a vessel engaged in any fishery not identified in 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 such form and mariner as the
                              Secretary may require, instances of lethal incidental taking in the course of that
                              fishery.

                              (4) The Secretary shall suspend or revoke an exemption granted under this section
                          and shall not issue a decal or other physical evidence of the exemption for any vessel
                          until the owner of such vessel complies with the reporting requirements under subsec-
                          tion (c) and such requirements to take on board a natural resource observer under
                          paragraph (3)(B) as are applicable to such vessel.

                              (5)(A) The Secretary shall develop, in consultation with the appropriate States,
                          Regional Fishery Management Councils, and other interested parties, the means by
                          which the granting and administration of exemptions 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 exemp-
                              tion under this subsection. The level of fees charged under this subparagraph shall

                                                                        40









                                                                                 The Marine Mammal Protection Act of 1972 as Amended


                            not exceed the administrative costs incurred in granting an exemption. 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 exemptions under this section.

                         (c) The owner of each vessel holding an exemption granted under subsection (b) of
                         this section shall regularly compile information which shall be used in a report to be
                         submitted to the Secretary at the close of the fishing season or annually, as the
                         Secretary may prescribe. Such report shall be submitted in such form as the Secretary
                         may require and shall include the following:

                            (1) the type of fishery engaged in by the owner's vessel;

                            (2) the date and approximate time of any incidental taking of a marine mammal,
                         together with the -area in which the incidental taking occurred, the fishing gear used at
                         the time of the incidental taking, and the species of fish involved; and

                            (3) for each incidental taking, the number and species of marine mammals in-
                         volved, whether the marine mammals were deterred from gear or catch, incidentally
                         injured, incidentally killed, or lethally removed to protect gear, catch, or human life.

                         If there was no incidental taking of marine mammals during the reporting period, a
                         report stating that fact shall be filed with the Secretary.

                         (d)(1) The Secretary shall establish a program to enhance the quality of and verify
                         information received from reports submitted by owners of vessels who have been
                         granted an exemption under subsection (b) of this section. The program shall include,
                         but not be limited to-


                                 (A) education efforts regarding the information that must be submitted;

                                 (B) interviews with fishermen; and

                                 (C) other such information gathering and verification activities that will enable
                            the Secretary to determine reliably the nature, type, and extent of the incidental
                            taking of marine mammals that occurs in a fishery.

                         Except to the "tent authorized by the provisions of subsection (e), the program shall
                         not include placement of observers aboard exempted vessels.

                            (2) Information obtained under this subsection shall be subject to the confidentiality
                         provisions of subsection 0).

                         (e)(1) For each fishery identified under subsection (b)(1)(A)(i) of this section, the
                         Secretary shall, after consultation with the appropriate Regional Fishery Management
                         Councfls, other Federal and State agencies, and other interested parties, and subject to
                         paragraph (6), place observers on board exempted vessels so as to monitor not less
                         than 20 percent nor more than 35 percent of the fishing operations by vessels in the
                         fishery to obtain statistically rehable information on the species and number of marine
                         mammals incidentally taken in the fishery. If the Secretary determines that fewer than
                         20 percent of the fishing operations by vessels in the fishery will be monitored during
                         the course of the fishing season, the Secretary shall implement the alternative observa-


                                                                      41










                  Marine Mammal Commission


                          tion program described in subsection (f) to the extent necessary to supplement the
                          observer program described in this subsection.

                              (2) When determining the distribution of observers among fisheries and between
                          vessels in a particular fishery, the Secretary shall be guided by the following standards:

                                   (A) the requirement to obtain the best scientific information available;

                                   (B) the requirement that assignment of observers is fair and equitable among
                              fisheries and among vessels in a fishery;

                                   (C) consistent with paragraph (1), 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.

                              (3) If the Secretary finds that, for reasons beyond his or her control, the Secretary
                          cannot assign observers to all the fisheries identified under subsection (b)(1)(A)(i) of
                          this section at the level of observer coverage set forth in paragraph (1), the Secretary
                          shall allocate available observers among such fisheries, consistent with paragraph (2),
                          according to the following priority:                                                                            JP

                                   (A) those fisheries that incidentally take marine mammals from any population
                              stock designated as depleted;

                                   (B) those fisheries that incidentally take marine mammals from population
                              stocks that the Secretary believes are declining;

                                   (C) those fisheries other than those described in subparagraphs (A) and (B) in
                              which the greatest incidental take of marine mammals occur, and

                                   (D) any other fishery identified under subsection (b)(1)(A)(i).

                          The Secretary may, with the consent of the vessel owner, station an observer on board
                          a vessel engaged in a fishery not identified under subsection (b)(l)(A)(i).

                              (4) Information gathered by observers shall be subject to the provisions of subsec-
                          tion Q). Consistent with the requirements of paragraph (1), the Secretary shall, if
                          requested by the Appropriate Regional Fishery Management Council, or in the case of
                          a State fishery, the State, require observers to collect additional information, including
                          but not limited to the quantities, species, and physical condition of target and non-
                          target fishery resources and, if requested by the Secretary of the Interior, seabirds.

                              (5) Notwithstanding the provisions of paragraph (4), the Secretary may decline to
                          require observers to collect information described in such paragraph, if the Secretary
                          finds in writing, following public notice and opportunity for comment, that such
                          information will not contribute to the protection of marine mammals or the under-
                          standing of the marine ecosystem, including fishery resources and seabirds.

                              (6) The Secretary shall not be required to place an observer on a vessel in a fishery
                          if the Secretary finds that-


                                                                       42









                                                                                     The Marine Mammal Protection Act of 1972 as Amended


                                   (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 the 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 avail-
                              able.


                              (7)(A) An observer on a vessel (or the observer's personal representative) under the
                           requirements of this section or section 104 that is W, disabled, injured, or killed from
                           service as an observer on that vessel may not bring a civil action under any law of the
                           United States for that illness, disability, injury, or death against the vessel or vessel
                           owner, except that a civil action may be brought against the vessel owner for the
                           owner's willful misconduct.


                                   (B) This paragraph does not apply if the observer is engaged by the owner,
                              master, or individual in charge of a vessel to perform any duties in service to the
                              vessel.


                              (8) There are authorized to be appropriated to the Department of Commerce for the
                           purposes of carrying out this subsection not to exceed $2,700,000 for fiscal year 1989
                           and not to exceed $8,000,000 for each of the fiscal years 1990, 1991, 1992, and 1993.

                           (f)(1) The Secretary shall establish an alternative observation program to provide
                           statistically reliable information on the species and number of marine mammals
                           incidentally taken in those fisheries identified pursuant to subsection (b)(1)(A)(i) of
                           this section for which the required level of observer coverage has not been met or for
                           any other fisheries about which such reliable information is not otherwise available.
                           The alternative program shall include, but not be limited to, direct observation of
                           fishing activities from vessels, airplanes, or points on shore.

                              (2) Individuals engaged in the alternative observation program shall collect scientif-
                           ic information on the fisheries subject to observation, consistent with the requirements
                           of paragraph (1) and subsection (e) (4) and (5). All information collected shall be
                           subject to the provisions of subsection 0).

                           (g)(1) The Secretary shall review information regarding the incidental taking of marine
                           mammals and evaluate the effects of such incidental taking on the affected population
                           stocks of marine mammals.


                              (2) If the Secretary finds, based on the information received from the programs
                           established under subsections (c), (d), (e), and (f), that the incidental taking of marine
                           mammals in a fishery is having an immediate and significant adverse impact on a
                           marine mammal population stock or, in the case of Steller sea lions and North Pacific
                           fur seals, that more than 1;350 and 50, respectively, will be incidentally killed during a
                           calendar year, the Secretary shall consult with appropriate Regional Fishery Manage-
                           ment Councils and State fishery managers and prescribe emergency regulations to


                                                                         43









                 Marine Manunal Corranission


                         prevent to the maximum extent practicable any further taking. Any emergency
                         regulations prescribed under this paragraph-

                                 (A) shall, to the maximum extent practicable, avoid interfering with existing
                            State or regional fishery management plans;

                                 (B) shall be published in the Federal Register together with the reasons
                            therefor,

                                 (C) shall remain in effect for not more than one hundred and eighty days or
                            until the end of the fishing season, whichever is earlier, and

                                 (D) 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.

                         In prescribing emergency regulations under this paragraph, 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.

                            (3) If the Secretary finds, based on information received from the programs estab-
                         lished under subsections (c), (d), (e), and (f), that incidental taking of marine mammals
                         in a fishery is not having an immediate and significant adverse impact on a marine
                         mammal population stock but that it will likely have a significant adverse impact over
                         a period of time longer than one year, the Secretary shall request the appropriate
                         Regional Fishery Management Council or State to initiate, recommend, or take such
                         action within its authority as it considers necessary to mitigate the adverse impacts,
                         including adjustments to requirements on fishing times or areas or the imposition of
                         restrictions on the use of vessels or gear.

                            (4) The Secretary shall impose appropriate conditions and restrictions on an exemp-
                         tion granted under subsection (b) if-

                                 (A) a Regional Fishery Management Council or State does not act in a
                            reasonable period of time on a request made by the Secretary under paragraph (3);
                            or

                                 (B) if the Secretary determines after notice and opportunity for public com-
                            ment that the purposes of this section would be better served by such action.

                         (h) The Secretary shall design and implement an information management system
                         capable of processing and analyzing reports received from the programs established
                         under subsections (c), (d), (e), and (f), and other relevant sources, including Federal
                         and State enforcement authorities, marine mammal stranding networks, and the marine
                         mammal researchers. The information shall be made accessible to the public on a
                         continuing basis, but in any case no later than six months after it is received, subject to
                         the provisions of subsection 0).

                         (i) When carrying out the Secretary's responsibilities under subsections (b), (d), (e),
                         (f), and (h) of this section, the Secretary shall, to the maximum extent practicable,
                         utilize the services and programs of State agencies, Federal agencies (including
                         programs established by Regional Fishery Management Councils), marine fisheries


                                                                   44









                                                                                 The Marine Mammal Protection Act of 1972 as Amended


                         commissions, universities, and private entities, on a reimbursable basis or otherwise.
                         'Me Secretary is authorized to enter into contracts and agreements to carry out his or
                         her responsibilities and shall establish appropriate guidelines to ensure that other
                         programs used or contracted for will meet the same standards as a program established
                         by the Secretary. A person contracting with the Secretary to provide observer services
                         under subsection (e) of this section must provide evidence of financial responsibility in
                         an amount and form prescribed by the Secretary to compensate employees (or their
                         survivors) adequately for any illness, disability, injury, or death from service on a
                         vessel.


                         0)(1) Any information collected under subsection (c), (d), (e), (f), or (h) of this section
                         shall be confidential and shall not be disclosed except-

                                 (A) to Federal employees whose duties require access to such information;

                                 (B) to State 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
                            Regional Fishery Management Councils who are responsible for fishery manage-
                            ment plan development and monitoring.

                            (2) The Secretary shall prescribe such procedures as may be necessary to preserve
                         such confidentiality, except that the Secretary shall release or make public any such
                         information in aggregate, summary, or other form which does not directly or indirectly
                         disclose the identity or business of any person.

                         (k) The Secretary, in consultation with any other Federal agency to the extent that such
                         agency may be affected, shall prescribe such regulations as necessary and appropriate
                         to carry out the purposes of this section.

                         (1)(1) The Chairman of the Marine Mammal Commission shall, after consultation with
                         interested parties and not later than February 1, 1990, transmit to the Secretary and
                         make available to the public recommended guidelines to govern the incidental taking
                         of marine mammals in the course of commercial fishing operations, other than those
                         subject to section 104(h)(2), after October 1, 1993. Such guidelines shall be developed
                         by the Commission and its Committee of Scientific Advisers@5      on Marine Mammals
                         and shall-


                                 (A) be designed to provide a scientific rationale and basis for determining how
                            many marine mammals may be incidentally taken under a regime to be adopted to
                            govern such taking after October 1, 1993;

                                 (B) be based on sound principles of wildlife management, and be consistent
                            with and in furtherance of the purposes and policies set forth in this Act; and

                                 (C) to the maximum extent practicable, include as factors to be considered and
                            utilized in determining permissible levels of such taking-

                                    (i) the status and trends of the affected marine mammal population stocks;


                                                                     45 *










                 Marine Mammal Commission


                                    (ii) the abundance and annual net recruitment of such stocks;

                                    (iii) the level of confidence in the knowledge of the affected stocks; and

                                    (iv) the extent to which incidental taking will likely cause or contribute to
                                 their decline or prevent their recovery to optimum sustainable population
                                 levels.


                            (2) The Secretary shall advise the Chairman of the Commission in writing if the
                         Secretary determines that any additional information or explanation of the Chairman's
                         recommendations is needed, and the Chairman shall respond in writing to any such
                         request by the Secretary.

                            (3) On or before February 1, 1991, the Secretary, after consultation with the Marine
                         Mammal Commission, Regional Fishery Management Councils, and other interested
                         governmental and nongovernmental organizations, shall publish in the Federal Regis-
                         ter, for public comment, the suggested regime that the Secretary considers should, if
                         authorized by enactment of any additional legislation, govern incidental taking of
                         marine mammals, other than those subject to section 104(h)(2), after October 1, 1993.
                         The suggested regime shall include-

                                 (A) the scientific guidelines to be used in determining permissible levels of
                            incidental taking;

                                 (B) a description of the arrangements for consultation and cooperation with
                            other Federal agencies, the appropriate Regional Fishery Management Councils and
                            States, the commercial fishing industry, and conservation organizations; and

                                 (C) a summary of such regulations and legislation as would be necessary to
                            implement the suggested regime.

                            (4) On or before January 1, 1992, the Secretary, after consultation with the Maxine
                         Mammal Commission, and consideration of public comment, shall transmit to the
                         Committee on Commerce, Science, and Transportation of the Senate and the Commit-
                         tee on Merchant Marine and Fisheries of the House of Representatives recommenda-
                         tions 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) the suggested regime developed under paragraph (3) of Us subsection as
                            modified after comment and consultations;


                                 (B) a proposed schedule for implementing the suggested regime; and

                                 (C) such recommendations for additional legislation as the Secretary considers
                            necessary or desirable to implement the suggested regime.

                         (m) The Secretary shall consult with the Secretary of the Interior prior to taking
                         actions or making determinations under Us section that affect or relate to species or
                         population stocks of marine mammals for which the Secretary of the Interior is
                         responsible under this title.




                                                                   46









                                                                                 The Marine Mammal Protection Act of 1972 as Amended


                         (n) For the purposes of this section, the owner of fixed or other commercial fishing
                         gear that is deployed with or without the use of a vessel shall be deemed to be an
                         owner of a vessel engaged in the fishery in which that gear is deployed.

                         (o) As used in this section-

                            (1) the term "fishery" has the same meaning as it does in section 3(8) of the
                         Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802(8)).

                            (2) the term "Secretary" means the Secretary of Commerce.

                            (3) the term "vessel engaged in a fishery" means a fishing vessel as defined in
                         section 2 101 (11 a) of Title 46, United States Code, or a fish processing vessel as
                                                                                                  16
                         defined in section 2101(11b) of that title, which is engaged in fishery.

                            (4) the term "vessel of the United States" has the same meaning as it does in
                         section 3(27) of the Magnuson Fishery Conservation and Management Act (16 U.S.C.
                         1802(27)).



                                             Status Review; Conservation PlanS17

                                                             16 U.S.C. 1383b


                         Sec. 115. (a)(1) In any action by the Secretary to determine if a species or stock
                         should be designated as depleted, or should no longer be designated as depleted,
                         regardless of whether such action is taken on the initiative of the Secretary or in
                         response to a petition for a status review, the Secretary shall only make such a
                         determination by issuance of a rule, after notice and opportunity for public comment
                         and after a call for information in accordance with paragraph (2).

                            (2) The Secretary shall make any determination described in paragraph (1) solely
                         on the basis of the best scientific information available. Prior to the issuance of a
                         proposed rule concerning any such determination, the Secretary shall publish in the
                         Federal Register a call to assist the Secretary in obtaining scientific information from
                         individuals and organizations concerned with the conservation of marine mammals,
                         from persons in industry which might be affected by the determination, and from
                         academic institutions. In addition, the Secretary shall utilize, to the extent the Secre-
                         tary detennines to be feasible, informal working groups of interested parties and other
                         methods to gather the necessary information.

                            (3)(A) If the Secretary receives a petition for a status review as described in
                         paragraph (1), the Secretary shall publish a notice in the Federal Register that such a
                         petition has been received and is available for public review.

                                 (B) Within sixty days after receipt of the petition, the Secretary shall publish a
                            finding in the Federal Register as to whether the petition presents substantial
                            information indicating that the petitioned action may be wan-anted.




                                                                      47










                 Marine Manunal Conunission


                                  (C) If the Secretary makes a positive finding under subparagraph (B), the
                             Secretary shall include in the Federal Register notice, a finding that-

                                     (i) a review of the status of the species or stock will be commenced
                                  promptly; or

                                     (ii) a prompt review of the petition is precluded by other pending status
                                  determination petitions and that expeditious progress is being made to process
                                  pending status determination petitions under this title.

                          In no case after making a finding under this subparagraph shall the Secretary delay
                          commencing a review of the status of a species or stock for more than one hundred
                          and twenty days after receipt of the petition.

                                  (D) No later than two hundred and ten days after the receipt of the petition,
                             the Secretary shall publish in the Federal Register a proposed rule as to the status
                             of the species or stock, along with the reasons underlying the proposed status
                             determination. Persons shall have at least sixty days to submit comments on such a
                             proposed rule.

                                  (E) Not later than ninety days after the close of the comment period on a
                             proposed rule issued under subparagraph (D), the Secretary shall issue a final rule
                             on the status of the species or stock involved, along with the reasons for the status
                             determination. If the Secretary finds with respect to such a proposed rule that there
                             is substantial disagreement regarding the sufficiency or accuracy of the available
                             information relevant to a status determination, the Secretary may delay the issuance
                             of a final rule for a period of not more than six months for purposes of soliciting
                             additional information.


                                  (F) Notwithstanding subparagraphs (D) and (E) of this paragraph and section
                             553 of Title 5, United States Code, the Secretary may issue a final rule as to the
                             status of a species or stock any time sixty or more days after a positive finding
                             under subparagraph (B) if the Secretary determines there is substantial information
                             available to wan-ant such final status determination and further delay would pose a
                             significant risk to the well-being of any species or stock. Along with the final rule,
                             the Secretary shall publish in the Federal Register detailed reasons for the expedited
                             determination.


                          (b)(1) The Secretary shall prepare conservation plans-

                                  (A) by December 31, 1989, for North Pacific fur seals;

                                  (B) by December 31, 1990, for Steller sea lions; and

                                  (C) as soon as possible, for any species or stock designated as depleted under
                             this title, except that a conservation plan need not be prepared if the Secretary
                             determines that it will not promote the conservation of the species or stock.

                             (2) Each plan shall have the purpose of conserving and restoring the species or
                          stock to its optimum sustainable population. The Secretary shall model such plans on
                          recovery plans required under section 4(f) of the Endangered Species Act of 1973 (16
                          U.S.C. 1533(f)).


                                                                      48









                                                                               ne Marine Mammal Protection Act of 1972 as Amended


                            (3) The Secretary shall act expeditiously to implement each conservation plan
                        prepared under paragraph (1). Each year, the Secretary shall specify in the annual
                        report prepared under section 103(f) of this title what measures have been taken to
                        prepare and implement such plans.



                                              Authorization of Appropriations"

                                                            16 U.S.C. 1384


                        Sec. 116. (a) 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 (other than section 104(h)(3)) of the Marine Mammal Protection Act
                        of 1972, $7,223,000 for fiscal year 1982, $8,000,000 for fiscal year 1983, and
                        $8,800,000 for each of fiscal years 1984, 1985, 1986, 1987, and 1988. 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 such
                        title (other than section 114(e)(8)), $12,250,000 for fiscal year 1989, $12,740,000 for
                        fiscal year 1990, $13,250,000 for fiscal year 1991, $13,780,000 for fiscal year 1992,
                                                               59
                        and $14,331,000 for fiscal year 1993  .

                        (b) 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 such title 1, $1,600,000 for fiscal year 1982, $1,760,000 for fiscal year 1983, and
                        $2,000,000 for fiscal year 1984, $2,500,000 for fiscal year 1985, $3,000,000 for each
                        of fiscal years 1986, 1987, 1988, and 1989, $3,120,000 for fiscal year 1990,
                        $3,240,000 for fiscal year 1991, $3,370,000 for fiscal year 1992, and $3,500,000 for
                        fiscal year 19WO



                                                       Dolphin Protection         61

                                                            16 U.S.C. 1385


                        Sec. 117. (a) This section may be cited as the "Dolphin Protection Consumer Informa-
                        tion Act".


                        (b) The Congress finds that-

                            (1) dolphins and other marine mammals are frequently killed in the course of tuna
                        fishing operations in the eastern tropical Pacific Ocean and high seas driftnet fishing in
                        other parts of the world;

                            (2) it is the policy of the United States to support a worldwide ban on high seas
                        driftnet fishing, in part because of the harmful effects that such driftnets have on
                        marine mammals, including dolphins; and

                            (3) consumers would like to know if the tuna they purchase is falsely labeled as to
                        the effect of the harvesting of the tuna on dolphins.


                                                                    49









                  Marine Mammal Commission


                          (c) For the purposes of this section-

                             (1) the terms "driftnet" and "driftnet fishing" have the meanings given those terms
                          in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of
                          1987 (16 U.S.C. 1822 note);

                             (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, and the western coastlines of North, Central, and sought America;

                             (3) the term "label" means a display of written, printed, or graphic matter on or
                          affixed to the immediate container of any article;

                             (4) the term "Secretary" means the Secretary of Commerce; and

                             (5) the term "tuna product!' means a food item which contains tuna and which has
                          been processed for retail sale, except perishable sandwiches, salads, or other products
                          with a shelf life less than 3 days.

                          (d)(1) It is a violation of section 5 of the Federal Trade Commission Act for any
                          producer, importer, exporter, distributor, or seller of any tuna product that is exported
                          from or offered for sale in the United States to include on the label of that product the
                          term "Dolphin Safe" or any other term or symbol that falsely claims or suggests that
                          the tuna contained in the product was harvested using a method of fishing that is not
                          harmful to dolphins if the product contains-

                                   (A) tuna harvested on the high seas by a vessel engaged in driftnet fishing;

                                   (B) tuna harvested in the eastern tropical Pacific Ocean by a vessel using purse
                             seine nets which do not meet the requirements for being considered dolphin safe
                             under paragraph (2).

                             (2) For purposes of paragraph (1)(B), a tuna product that contains tuna harvested in
                          the eastern tropical Pacific Ocean by a fishing vessel using purse seine nets is dolphin
                          safe if-


                                   (A) the vessel is of a type and size that the Secretary has determined is not
                             capable of deploying its purse seine nets on or to encircle dolphins; or

                                   (B)(i) the product is accompanied by a written statement executed by the
                             captain of the vessel which harvested the tuna certifying that no tuna were caught
                             on the trip in which such tuna were harvested using a purse seine net intentionally
                             deployed on or to encircle dolphin;

                                     (ii) the product is accompanied by a written statement executed by-

                                          (I) the Secretary or the Secretary's designee, or

                                          (H) a representative of the Inter-American Tropical Tuna Commission,
                                     which states that there was an approved observer on board the vessel during
                                     the entire trip and that purse seine nets were not intentionally deployed
                                     during the trip on or to encircle dolphin; and


                                                                      50









                                                                              Ile Marine Manunal Protection Act of 1972 as Amended


                                   (iii) the statements referred to in clauses (i) and (ii) are endorsed in writing
                                by each exporter, importer, and processor of the product.

                        (e) Any per-son who knowingly and willfully makes a statement or endorsement
                        described in subsection (d)(2)(B) that is false is liable for a civil penalty of not to
                        exceed $100,000 assessed in an action brought in any appropriate district court of the
                        United States on behalf of the Secretary.

                        (f) The Secretary, in consultation with the Secretary of the Treasury, shall issue
                        regulations to implement this section not later than 6 months after the date of the
                        enactment of this Act, including regulations establishing procedures and requirements
                        for ensuring that tuna products are labeled in accordance with subsection (d).

                        (g) [codified at Section 101(a)(2)(E).]

                        (h) The Secretary of State shall immediately seek, through negotiations and discussions
                        with appropriate foreign governments, to reduce and, as soon as possible, eliminate the
                        practice of harvesting tuna through the use of purse seine nets intentionally deployed
                        to encircle dolphins.

                        (i) Subsections (d) and (e) of this section shall take effect 6 months after the date of
                        the enactment of this Act.









































                                                                    51










                 Mafine Mammal Commission


                                      Title 11-Marine Mammal Commission

                                                Establishment of Commission


                                                           16 U.S.C. 1401


                         Sec. 201. (a) There is hereby established the Marine Mammal Commission (hereafter
                         referred to in this title as the "Commission").

                         (b)(1) Effective September 1, 1982, the Commission shall be composed of three
                         members who shall be appointed by the President, by and with the advice and consent
                         of the Senate.6' The President shall make his selection from a list of individuals
                         knowledgeable in the fields of marine ecology and resource management, and who are
                         not in a position to profit from the taking of marine mammals. Such list shall be
                         submitted to him by the Chairman of the Council on Environmental Quality and
                         unanimously agreed to by that Chairman, the Secretary of the Smithsonian Institution,
                         the Director of the National Science Foundation and the Chairman of the National
                         Academy of Sciences.63 No member of the Commission may, during his period of
                         service on the Commission, hold any other position as an officer or employee of the
                         United States except as a retired officer or retired civilian employee of the United
                         States.


                            (2) The term of office for each member shall be three years; except that of the
                         members initially appointed to the Commission, the term of one member shall be for
                         one year, the term of one member shall be for two years, and the term of one member
                         shall be for ffiree years. No member is eligible for reappointment; except that any
                         member appointed to fill a vacancy occurring before the expiration of the term for
                         which his predecessor was appointed (A) shall be appointed for the remainder of such
                         term, and (B) is eligible for reappointment for one full term. A member may serve
                         after the expiration of his term until his successor has taken office.

                         (c) The President shall designate a Cliairman of the Commission (hereafter referred to
                         in this title as the "Chairman") from among its members.

                         (d) Members of the Commission shall each be compensated at a rate equal to the daily
                         equivalent of the rate for GS-18 of the General Schedule under section 5332 of Title 5,
                         United States Code, for each day such member is engaged in the actual performance of
                         duties vested in the Commission. Each member shall be reimbursed for travel
                         expenses, including per them in lieu of subsistence, as authorized by section 5703 of
                         Title 5, United States Code, for persons in Government service employed intermittent-
                         ly.

                         (e) The Commission shall have an Executive Director, who shall be appointed (without
                         regard to the provisions of Title 5, United States Code, governing appointments in the
                         competitive service) by the Chairman with the approval of the Commission and shall
                         be paid at a rate not in excess of the rate for GS-18 of the General Schedule under
                         section 5332 of Title 5, United States Code. The Executive Director shall have such
                         duties as the Chairman may assign.





                                                                   52









                                                                              Ile Marine Mammal Protection Act of 1972 as Amended


                                                      Duties of Conmiission


                                                           16 U.S.C. 1402


                        Sec. 202. (a) The Commission shall-

                            (1) undertake a review and study of the activities of the United States pursuant to
                        existing laws and international conventions relating to marine mammals, including, but
                        not limited to, the International Convention for the Regulation of Whaling, the
                        Whaling Convention Act of 1949, the Interim Convention on the Conservation of
                        North Pacific Fur Seals, and the Fur Seal Act of 1966;

                            (2) conduct a continuing review of the condition of the stocks of marine mammals,
                        of methods for their protection and conservation, of humane means of taking marine
                        mammals, of research programs conducted or proposed to be conducted under the
                        authority of this Act, and of all applications for permits for scientific research, public
                        display, or enhancing the survival or recovery of a species or stock;64

                            (3) undertake or cause to be undertaken such other studies as it deems necessary or
                        desirable in connection with its assigned duties as to the protection and conservation of
                        marine mammals;


                            (4) recommend to the Secretary and to other Federal officials such steps as it deems
                        necessary or desirable for the protection and conservation of marine mammals;

                            (5) recommend to the Secretary of State appropriate policies regarding existing
                        international arrangements for the protection and conservation of marine mammals, and
                        suggest appropriate international arrangements for the protection and conservation of
                        marine mammals;

                            (6) recommend to the Secretary such revisions of the endangered species list and
                        threatened species list published pursuant to section 4(c)(1) of the Endangered Species
                        Act of 1973, as may be appropriate with regard to marine mammals;65 and

                            (7) recommend to the Secretary, other appropriate Federal officials, and Congress
                        such additional measures as it deems necessary or desirable to further the policies of
                        this Act, including provisions for the protection of the Indians, Eskimos, and Aleuts
                        whose livelihood may be adversely affected by actions taken pursuant to this Act.

                        (b) The Commission shall consult with the Secretary at such intervals as it or he may
                        deem desirable, and shall provide each annual report required under section 204,
                        before submission to Congress, to the Secretary for comment.   66

                        (c) The reports and recommendations which the Commission makes shall be matters of
                        public record and shall be available to the public at all reasonable times. All other
                        activities of the Commission shall be matters of public record and available to the
                        public in accordance with the provisions of section 552 of Title 5, United States Code.

                        (d) Any recommendations made by the Commission to the Secretary and other Federal
                        officials shall be responded to by those individuals within one hundred and twenty
                        days after receipt thereof. Any recommendations which are not followed or adopted


                                                                    53









                Marine Marnmal Cornrnission


                        shall be referred to the Commission together with a detailed explanation of the reasons
                        why those recommendations were not followed or adopted.



                              Committee of Scientific Advisors On Marine Mammals


                                                         16 U.S.C. 1403


                        See. 203. (a) The Commission shall establish, within ninety days after its establish-
                        ment, a Committee of Scientific Advisors on Marine Mammals (hereafter referred to in
                        this title as the "Committee"). Such Committee shall consist of nine scientists
                        knowledgeable in marine ecology and marine mammal affairs appointed by the
                        Chairman after consultation with the Chairman of the Council on Environmental
                        Quality, the Secretary of the Smithsonian Institution, the Director of the National
                        Science Foundation, and the Chairman of the National Academy of Sciences.

                        (b) Except for United States Government employees, members of the Committee shall
                        each be compensated at a rate equal to the daily equivalent of the rate for GS-18 of
                        the General Schedule under section 5332 of Title 5, United States Code, for each day
                        such member is engaged in the actual performance of duties vested in the Committee.
                        Each member shall be reimbursed for travel expenses, including per them in lieu of
                        subsistence, as authorized by section 5703 of Title 5, United States Code, for persons
                        in Government service employed intermittently.

                        (c) The Commission shall consult with the Committee on all studies and recommenda-
                        tions which it may propose to make or has made, on research programs conducted or
                        proposed to be conducted under the authority of this Act, and on all applications for
                        permits for scientific research. Any recommendations made by the Committee or any
                        of its members which are not adopted by the Commission shall be transmitted by the
                        Commission to the appropriate Federal agency and to the appropriate committees of
                        Congress with a detailed explanation of the Commission's reasons for not accepting
                        such recommendations.



                                                     Commission Reports

                                                         16 U.S.C. 1404


                        Sec. 204. The Commission shall transmit to Congress, by January 31 of each year, a
                        report which shall include-

                           (1) a description of the activities and accomplishments of the Commission during
                        the immediately preceding year, and

                           (2) all the findings and recommendations made by and to the Commission pursuant
                        to section 202 of this Act together with the responses made to these recommendations.





                                                                 54









                                                                            The Mafine Mammal Protection Act of 1972 as Amended


                                      Coordination With Other Federal Agencies

                                                          16 U.S.C 1405


                        Sec. 205. The Commission shall have access to all studies and data compiled by
                        Federal agencies regarding marine mammals. With the consent of the appropriate
                        Secretary or Agency head, the Commission may also utilize the facilities or services of
                        any Federal agency and shall take every feasible step to avoid duplication of research
                        and to carry out the purposes of this Act.



                                               Administration of Commission


                                                          16 U.S.C. 1406


                        Sec. 206. The Commission, in carrying out its responsibilities under this title, may-

                           (1) employ and fix the compensation of such personnel;

                           (2) acquire, furnish, and equip such office space;

                           (3) enter into such contracts or agreements with, or provide such grants to, other
                        organizations, both public and private;67

                           (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   .68
                        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.



                                             Authorization of Appropriations

                                                          16 U.S.C. 1407


                        See- 207. There are authorized to be appropriated to the Marine Mammal Commis-
                        sion, for purposes of carrying out title U of such Act of 1972, $672,000 for fiscal year
                        1982, $1,000,000 for fiscal year 1983, $1,100,000 for each of fiscal years 1984, 1985,
                        1986, 1987, 1988, and 1989, $1,140,000 for fiscal year 1990, $1,190,000 for fiscal
                        year 1991, $1,230,000 for fiscal year 1992, and $1,280,000 for fiscal year 1993.69



                                                                  55










                 Mafine Mwmal Cwmission


                                     Title III-Global Moratorium to Prohibit
                                         Certain Tuna Harvesting Practices"

                                                       Findings and Policy

                                                            16 U.S.C. 1411


                         Sec. 301. (a) The Congress finds the following:

                            (1) The yellowfin tuna fishery of the eastern tropical Pacific Ocean has resulted in
                         the deaths of millions of dolphins.

                            (2) Sigrifficant awareness and increased concern for the health and safety of dolphin
                         populations has encouraged a change in fishing methods worldwide.

                            (3) United States tuna fishing vessels have led the world in the development of
                         fishing methods to reduce dolphin mortalities in the eastern tropical Pacific Ocean and
                         United States tuna processing companies have voluntarily promoted the marketing of
                         tuna that is dolphin safe.

                            (4) Nations harvesting yellowfin tuna in the eastem tropical Pacific Ocean have
                         indicated their willingness to participate in appropriate multilateral agreements to
                         reduce, and eventually eliminate, dolphin mortality in that fishery.

                         (b) It is the policy of the United States to--

                            (1) eliminate the marine mammal mortality resulting from the intentional encircle-
                         ment of dolphins and other marine mammals in tuna purse seine fisheries;                                  A,

                            (2) secure appropriate multilateral agreements to reduce, and eventually eliminate,
                         the mortality referred to in paragraph (1);

                            (3) ensure that the market of the United States does not act as an incentive to the
                         harvest of tuna caught in association with dolphins or with driftnets;

                            (4) secure appropriate multilateral agreements to ensure that United States tuna
                         fishing vessels shall have continued access to productive tuna fishing grounds in the
                         South Pacific Ocean and elsewhere; and


                            (5) encourage observer coverage on purse seine vessels fishing for tuna outside of
                         the eastern tropical Pacific Ocean in a fishery in which the Secretary has determined
                         that a regular and significant association occurs between marine mammals and tuna,
                         and in which tuna is harvested through the use of purse seine nets deployed on or to
                         encircle marine mammals.                                                                                  46









                                                                    56









                                                                                Ile Marine Manunal Protection Act of 1972 as Amended



                            International Agreements to Establish Global Moratorium to
                                        Prohibit Certain Tuna Harvesting Practices

                                                             16 U.S.C. 1412


                         Sec. 302. (a) The Secretary of State, in consultation with the Secretary, may enter into
                         international agreements which establish, in accordance with this title, a global
                         moratorium of at least 5 years duration to prohibit harvesting tuna through the use of
                         purse seine nets deployed on or to encircle dolphins or other marine mammals.

                         (b) Any agreement, entered into under this section shall-

                             (1) establish a moratorium described in subsection (a) which takes effect on March
                         1, 1994;

                             (2) include an international research program and, notwithstanding the moratorium,
                         authorize harvesting of tuna under that program;

                             (3) provide for reviews and reports in accordance with section 304 [16 U.S.C.
                         1414] on results of research conducted under the research program;

                             (4) require each country that is a party to the agreement to take all the necessary
                         and appropriate steps to ensure compliance with the moratorium; and

                             (5) encourage each country that is a party to the agreement to seek, through
                         bilateral and multilateral negotiations, to encourage other countries that participate in
                         fisheries to which the agreement applies to become parties to the agreement.

                         (c) The moratorium authorized under subsection (a) may be terminated prior to
                         December 31, 1999, with respect to the United States for the harvesting of tuna in the
                         eastern tropical Pacific Ocean only if-

                             (1) the Secretary submits to the Congress in accordance with section 304(b) (16
                         U.S.C. 1414(b)] a recommendation that the moratorium be terminated; and

                             (2) the recommendation is approved by enactment of a joint resolution of approval.



                                                         Research Programs

                                                             16 U.S.C. 1413


                         Sec. 303. (a) An agreement entered into under section 302 [16 U.S.C. 1412) shall-

                             (1) establish an international research program to develop methods of fishing for
                         large yellowfin tuna-

                                  (A) without setting nets on dolphins or other marine mammals; or



                                                                      57









                 Marine Mammal Commission


                                (B) by setting nets on dolphins or other marine mammals with zero set-caused
                            mortality;

                            (2) require that proposals for research under the program be reviewed and autho-
                         rized by a competent regional organization;

                            (3) require that research under the program be conducted by dedicated vessels
                         that-


                                (A) are authorized to conduct that research by a competent regional organiza-
                            tion; and


                                (B) have on board in accordance with section 305(a)(2) [16 U.S.C.
                            1415(a)(2)] an observer who is responsible to, and supervised by, a competent
                            regional organization.

                         (b) For the eastern tropical Pacific Ocean, an agreement entered into under section 302
                         [16 U.S.C. 14121 shall require that-

                            (1) the total number of research sets on dolphins conducted pursuant to this section
                         during the period beginning March 1, 1994, and ending December 31, 1999, shall not
                         exceed 400 annually, and that the total annual dolphin mortality shall not exceed
                         1,000;


                            (2) the Inter-American Tropical Tuna Commission shall establish a panel to review
                         and report on the compliance of the international yellowfin tuna fishery fleet with the
                         limits established in paragraph (1) and make recommendations as appropriate; and

                            (3) the Inter-American Tropical Tuna Commission shall establish an Advisory
                         Board of technical specialists from the international communities of scientists, govern-
                         ment agencies, environmental groups, and the fishing industry, to assist that comnlis-
                         sion in efforts to coordinate, facilitate, and guide research.

                         (c) (1) An agreement entered into under section 302 [16 U.S.C. 1412] shall establish
                         fair and equitable mechanisms for funding research conducted pursuant to this section.

                            (2) An agreement entered into under section 302 [16 U.S.C. 1412] shall provide
                         that the proceeds of any tuna harvested for the purpose of research conducted pursuant
                         to this section should, to the extent possible, be used for funding research conducted
                         pursuant to this section.

                            (3) Funding provided by the United States for research shall be used only for the
                         purpose of developing methods of fishing for large yellowfin tuna that do not involve
                         intentionally encircling dolphins or other marine mammals.

                         (d) The Marine Mammal Commission established under section 201 shall-

                            (1) review all research proposals submitted to the Inter-American Tropical Tuna
                         Commission; and


                            (2) recommend an appropriate response to each of those proposals, to the United
                         States Commissioners on the Inter-American Tropical Tuna Commission.


                                                                   58







                                                                            ne MaMe Mammal Pr@ieaion Act of 1972 as Amended


                                       Reviews, Reports, and Recommendations

                                                          16 U.S.C. 1414


                       Sec. 304. (a) The Secretary shall submit annual reports to the Congress which
                       include-


                           (1) results of research conducted pursuant to section 303 [16 U.S.C. 1413];

                           (2) a description of the status of stocks of yellowfin tuna;

                           (3) an assessment of the economic impacts on the tuna industry and consumers
                       caused by the moratorium established by agreements entered into under section 302
                       [16 U.S.C. 14121;

                           (4) an assessment of the effectiveness of the moratorium in protecting dolphin
                       populations in the eastern tropical Pacific Ocean,

                           (5) results of reviews conducted under section 305(c) [16 U.S.C. 1415(c)];

                           (6) copies of any international agreements or undertakings authorized by or related
                       to this title;

                           (7) an assessment of the impact on fishery resources, other than yellowfin tuna, of
                       methods of fishing for large yellowfin tuna in the eastern tropical Pacific Ocean that
                       do not involve the intentional encirclement of dolphins; and

                           (8) any other relevant information.

                       (b) If a competent regional organization under the auspices of which research is
                       conducted pursuant to section 303 [16 U.S.C. 1413], or any country which participates
                       in such an organization, submits to the United States a recommendation that a morato-
                       rium established by agreements entered into under section 302 [16 U.S.C. 14121
                       should be tenninated prior to December 31, 1999, the Secretary shall-

                           (1) review the information on which the recommendation is based;

                           (2) consult with relevant Federal agencies, including the Marine Mammal Commis-
                       sion, and other interested persons; and

                           (3) submit to the Congress a recommendation regarding the termination of the
                       moratorium.
















                                                                  59






                                                                                                                                          01



                  Marine Mammal Commission


                                                    International Commitments


                                                              16 U.S.C. 1415


                          Sec. 305. (a) Except as provided in subsection (b), the Secretary of the Treasury shall
                          not, under section 101(a)(2) (A) and (B), ban the importation of yellowfin tuna or                             jP
                          yellowfin tuna products from a country that transmits to the Secretary of State a formal
                          communication in which the country commits

                             (1) implement a moratorium of at least 5 years duration beginning March 1, 1994,
                          on the practice of harvesting tuna through the use of purse seine nets deployed on or
                          to encircle dolphins or other marine mammals unless the moratorium is terminated in
                          accordance with section 302(c) [16 U.S.C. 1412(c)];

                             (2) require an observer on each vessel of the country larger than 400 short tons
                          carrying capacity which engages in purse seine fishing for yellowfin tuna in the eastern
                          tropical Pacific Ocean, and ensure that at least 50 percent of all such observers are
                          responsible to, and supervised by, a competent regional organization;

                             (3) reduce the dolphin mortality resulting from purse seine net operations conducted
                          by vessels of the country in 1992 to a level that is lower than such mortality in 1991
                          by a statistically significant margin; and

                             (4) reduce the dolphin mortality resulting from purse seine net operations conducted
                          by vessels of the country in the period beginning January 1, 1993, and ending Febru-
                          ary 28, 1994, to a level that is lower than such mortality in 1992 by a statistically
                          significant margin.

                          (b)(1) The Secretary, in consultation with the Secretary of State, shall periodically
                          determine whether each country which has transmitted a formal communication
                          expressing the commitments described in subsection (a) is fully implementing those
                          commitments. If the Secretary determines that any such country is not implementing
                          those commitments-


                                  (A) the Secretary shall notify the President and the Congress of that detennin-
                             ation; and

                                  (B) 15 days after such notification, the Secretary of the Treasury shall ban the
                             importation from that country of all yellowfin tuna and yellowfin tuna products.

                             (2)(A) If-

                                     (i) a country does not, within 60 days after the establishment with respect
                                  to that country of a ban on importation under paragraph (1)(B), certify and
                                  provide reasonable proof to the Secretary that the country has fully imple-                            AL
                                  mented the commitment described in subsection (a)(1) or has taken the
                                  necessary actions to remedy its failure to comply with the commitments
                                  described in subsection (a)(2), (3), and (4); and

                                     (ii) the Secretary does not, before the end of that 60-day period, certify to
                                  the President that the country has provided such certification and proof;


                                                                      60









                                                                            The Marine Mammal Protection Act of 1972 as Amended


                           the President shall direct the Secretary of the Treasury to ban the importation from
                           that country of all articles (other than those subject to an importation ban under
                           paragraph (1)(B) that are classified under one or more of those fish and fish
                           product categories that the President, subject to subparagraph (B), considers
                           appropriate to carry out this paragraph.

                               (B) The one or more fish and fish product categories to which the President
                           imposes an import ban under subparagraph (A) with respect to a country must be a
                           fish and fish product category or categories with respect to which the articles
                           classified thereunder and imported from that country in the base year bad an
                           aggregate customs valuation equal to 40 percent of the aggregate customs valuation
                           of all articles classified under all fish and fish product categories that were imported
                           from that country during the base year.

                               (C) For purposes of subparagraph (B), the term "base year" means the calendar
                           year immediately occurring before the calendar year in which the import ban under
                           subparagraph (A) commences with respect to the country.

                           (3) Bans on importation imposed under paragraphs (1) and (2) with respect to a
                       country shall continue in effect until the Secretary determines that the country is
                       implementing the commitments described in subsection (a).

                           (4) The Secretary of the Treasury shall take such action as may be necessary or
                       appropriate to implement importation bans imposed under paragraphs (1) and (2).

                       (c) The Secretary, in consultation with the Secretary of State, shall-

                           (1) periodically review the activities of countries which have transmitted to the
                       Secretary of State formal communications expressing the commitments described in
                       subsection (a), to determine whether those countries are complying with those commit-
                       ments; and


                           (2) include the results of those reviews in annual reports submitted to the Congress
                       pursuant to section 304(a) [16 U.S.C. 1414(a)].



                                                Permits for Taking Dolphins

                                                          16 U.S.C. 1416


                       Sec. 306. (a) Notwithstanding section 104(h), the general permit issued to the
                       American Tunaboat Association on December 1, 1980, shall be subject to the follow-
                       ing additional restrictions:

                           (1) Total dolphin mortalities (including mortalities resulting from research) autho-
                       rized by the permit shall not exceed 1,000 during the period beginning January 1,
                       1992, and ending December 31, 1992, and 800 during the period beginning January 1,
                       1993, and ending March 1, 1994.




                                                                  61









                 Marine Marnxnal Cornrnission


                             (2) No purse seine net may be deployed under the permit on or to encircle any
                          school of dolphins in which any eastern spinner dolphin (Stenella longirostris) or
                          coastal spotted dolphin (Stenella attenuata) is observed prior to release of the net skiff.

                             (3) The permit shall expire March 1, 1994, unless no major purse seine tuna fishing
                          country enters into an agreement with the Secretary in accordance with section 302 [16
                          U.S.C. 1412] before that date (notwithstanding any agreement under that section with a
                          country that is not a major purse seine tuna fishing country).

                             (4) If no major purse seine tuna fishing country enters into an agreement with the
                          Secretary in accordance with section 302 [16 U.S.C. 1412] before March 1, 1994, and
                          notwithstanding any agreement under that section with a country that is not a major                         ir
                          purse seine tuna fishing country-

                                  (A) the total dolphin mortalities authorized by the permit for each year after
                             1992, including mortalities caused by research, shall not exceed the number of
                             dolphin mortalities which occurred under the permit during the preceding year,

                                  (B) the total dolphin mortalities occurring under the permit each year shall
                             continue to be reduced by statistically significant amounts each year to levels
                             approaching zero by December 31, 1999;

                                  (C) the permit shall be subject to any additional restrictions that the Secretary
                             considers appropriate; and

                                  (D) the permit shall expire December 31, 1999.

                          (b) An agreement entered into under section 302 [16 U.S.C. 1412) shall not supersede
                          or be interpreted to supersede any provision of this Act under which a permit under
                          this Act is required for activities conducted pursuant to this title.

                          (c) For purposes of this section, the term "major purse seine tuna fishing country"
                          means a country which on the effective date of this title has an active purse seine tuna
                          fishing fleet of 20 or more vessels.




                                                              Prohibitions


                                                             16 U.S.C. 1417


                          Sec. 307. (a) It is unlawful-

                             (1) for any person, after June 1, 1994, to sell, purchase, offer for sale, transport, or
                          ship, in the United States, any tuna or tuna product that is not dolphin safe;

                             (2) for any person or vessel that is subject to the jurisdiction of the United States,
                          intentionally to set a purse seine net on or to encircle any marine mammal during any
                          tuna fishing operation after February 28, 1994, except-




                                                                     62









                                                                                The Marine Mammal Protection Act of 1972 as Amended


                                 (A) as necessary for scientific research approved by the Inter-American
                             Tropical Tuna Commission;

                                 (B) in accordance with a recommendation that is approved under section
                             302(c)(2) [16 U.S.C. 1412(c)(2)]; or

                                 (C) as authorized by the general permit issued to the American Tunaboat
                             Association on December 1, 1980 (including any additional restrictions applicable
                             under section 306(a) [16 U.S.C. 1416(a)]), notwithstanding any agreement under
                             section 302 [16 U.S.C. 1412) with a country that is not a major purse seine tuna
                             fishing country (as that tenn is defined in section 306(c) [16 U.S.C. 1416(c)]);

                             (3) for any person to import any yellowfin tuna or yellowfin tuna product or any
                         other fish or fish product in violation of a ban on importation imposed under section
                         305(b) (1) or (2) [16 U.S.C. 1415(b) (1) or (2)];

                             (4) for any person to violate any regulation promulgated under this title;

                             (5) for any person to refuse to permit any duly authorized officer to board a vessel
                         subject to that person's control for purposes of conducting any search or inspection in
                         connection with the enforcement of this title; and

                             (6) for any person to assault, resist, oppose, impede, intimidate, or interfere with
                         any such authorized officer in the conduct of any search or inspection described in
                         paragraph (5).

                         (b)(1) A person that knowingly and willfiffly violates subsection (a) (1), (2), (3), (4),
                         or (5) shall be subject to a civil penalty under section 105(a).

                             (2) A person that knowingly and willfully violates subsection (a)(6) shall be subject
                         to a criminal penalty under section 105(b).

                         (c) Any vessel (including its fishing gear, appurtenances, stores, and cargo) used, and
                         any fish (or its fair market value) taken or retained, in any manner, in connection with
                         or as a result of the commission of any act prohibited by this section shall be subject
                         to forfeiture to the United States in the manner provided in section 3 10 of the
                         Magnuson Fishery Conservation and Management Act.

                         (d) For purposes of this section, tuna or a tuna product is dolphin safe if-

                             (1) it does not contain tuna that was harvested on the high seas by a vessel engaged
                         in driftnet fishing, as that term is defined in section 4003 of the Drifinet Impact,
                         Monitoring, Assessment, and Control Act of 1987;

                             (2) in the case of tuna or a tuna product that contains tuna harvested in the eastern
                         tropical Pacific Ocean, it is dolphin safe under subsection (d)(2) of the Dolphin
                         Protection Consumer Information Act;


                             (3) in the case of tuna or a tuna product that contains tuna harvested outside the
                         eastern tropical Pacific Ocean by a purse seine vessel, it is accompanied by a written
                         statement executed by the captain of the vessel certifying that no purse seine net was



                                                                      63









                 Maiine M=mal Coi@ssion


                         intentionally deployed on or to encircle dolphins during the particular voyage on which
                         the tuna was harvested; and


                             (4) in the case of tuna or a product that contains tuna harvested outside the eastem
                         tropical Pacific Ocean by a purse seine vessel in a fishery in which the Secretary has
                         determined that a regular and significant association occurs between marine mammals
                         and tuna, and in which tuna is harvested through the use of purse seine nets deployed
                         on or to encircle marine mammals, it is accompanied by a written statement executed
                         by the captain of the vessel and by an observer, certifying that no purse seine net was
                         intentionally deployed on or to encircle marine mammals during the particular voyage
                         on which the tuna. was harvested.

                                                                                                                                      01


                                                Authorization of Appropriations

                                                            16 U.S.C. 1418


                         Sec. 3M. There are authorized to be appropriated to the National Marine Fisheries
                         Service for carrying out section 303 [16 U.S.C. 1413], $3,000,000 for each of the
                         fiscal years 1993, 1994, 1995, 1996, 1997, and 1998.

































                                                                     64









                                                                       The Marine Mararnal Protection Act of 1972 as Amended


                                  Title 111-Marine Mammal Health and
                                               Stranding Response

                                             Establishment of Program

                                                     16 U.S.C 1421


                      See. 301. (a) The Secretary shall, in consultation with the Secretary of the Interior, the
                      Marine Mammal Commission, and individuals with knowledge and experience in
                      marine science, marine mammal science, marine mammal veterinary and husbandry
                      practices, and marine conservation, including stranding network participants, establish
                      a program to be known as the "Marine Mammal Health and Stranding Response
                      Program".

                      (b) The purposes of the Program shall be to-

                         (1) facilitate the collection and dissemination of reference data on the health of
                      marine niammals and health trends of marine mammal populations in the wild;

                         (2) correlate the health of marine mammals and marine mammal populations, in the
                      wild, with available data on physical, chemical, and biological environmental parame-
                      ters; and

                         (3) coordinate effective responses to unusual mortality events by establishing a
                      process in the Department of Commerce in accordance with section 304 [16 U.S.C.
                      1421c].



                               Determination; Data Collection and Dissemination

                                                     16 U.S.C. 1421a


                      Sec. 302. (a) The Secretary shall, in consultation with the Secretary of the Interior, the
                      Marine Mammal Commission, and individuals with knowledge and experience in
                      marine science, marine mammal science, marine mammal veterinary and husbandry
                      practices, and marine conservation, including stranding network participants, develop
                      objective criteria, after an opportunity for public review and comment, to provide
                      guidance for determining at what point a rehabilitated marine mammal is releasable to
                      the wild.


                      (b) 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 marine mammals, including criteria
                         used by stranding network participants, on a species-by-species basis, for determin-
                         ing at what point a marine mammal undergoing rescue and rehabilitation is retum-
                         able to the wild; and


                                                             65









                 Marine Mararnal Cmnraission


                                 (B) collecting, preserving, labeling, and transporting marine mammal tissues
                            for physical, chemical, and biological analyses;

                            (2) appropriate scientific literature on marine mammal health, disease, and rehabili-
                         tation;

                            (3) strandings, which the Secretary shall compile and analyze, by region, to monitor
                         species, numbers, conditions, and causes of illnesses and deaths of stranded marine
                         mammals; and


                            (4) other life history and reference level data, including marine mammal tissue
                         analyses, that would allow comparison of the causes of illness and deaths in stranded
                         marine mammals with physical, chemical, and biological environmental parameters.

                         (c) The Secretary shall make information collected under this section available to
                         stranding network participants and other qualified scientists.



                                               Stranding Response Agreements

                                                          16 U.S.C. 1421b


                         Sec. 303. (a) 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.

                         (b) An agreement authorized by subsection (a) shall-

                            (1) specify each person who is authorized to perform activities under the agree-
                         ment; and

                            (2) specify any terms and conditions under which a person so specified may
                         delegate that authority to another person.

                         (c) The Secretary shall. periodically review agreements under section 112(c) that are
                         entered into pursuant to this title, for performance adequacy and effectiveness.



                                             Unusual Mortality Event Response

                                                           16 U.S.C. 1421c


                         Sec. 304. (a)(1)(A) The Secretary, acting through the Office, shall establish, in
                         consultation with the Secretary of the Interior, a marine mammal unusual mortality
                         event working group, consisting of individuals with knowledge and experience in
                         marine science, marine mammal science, marine mammal veterinary and husbandry
                         practices, marine conservation, and medical science, to provide guidance to the
                         Secretary and the Secretary of the Interior for-

                                    (i) determining whether an unusual mortality event is occurring;


                                                                    66









                                                                                                    The Marine Mammal Protection Act of 1972 as Amended


                                              (ii) determining, after an unusual mortality event has begun, if response
                                          actions with respect to that event are no longer necessary; and

                                              (iii) developing the contingency plan in accordance with subsection (b), to
                                          assist the Secretary in responding to unusual mortality events.

                                          (B) The Federal Advisory Committee Act (5 App. U.S.C.) shall not apply to
                                   the marine mammal unusual mortality event working group established under this
                                   paragraph.

                                   (2) The Secretary, in consultation with the Secretary of the Interior, shall to the
                               extent necessary and practicable-

                                          (A) within 24 hours after receiving notification from a stranding network
                                   participant that an unusual mortality event might be occurring, contact as many
                                   members as is possible of the unusual mortality event working group for guidance;
                                   and

                                          (B) within 48 hours after receiving such notification---

                                              (i) make a determination as to whether an unusual mortality event is
                                          occurring;

                                              (H) inform the stranding network participant of that determination; and

                                              (iii) if the Secretary has determined an unusual mortality event is occurring,
                                          designate an Onsite Coordinator for the event, in accordance with subsection
                                          (c).

                               (b)(1) The Secretary shall, in consultation with the Secretary of the Interior and the
                               unusual mortality event working group, and after an opportunity for public review and
                               comment, issue a detailed contingency plan for responding to any unusual mortality
                               evem


                                   (2) The contingency plan required under this subsection shall include-

                                          (A) a list of persons, including stranding network participants, at a regional,
                                   State, and local level, who can assist the Secretary in implementing a coordinated
                                   and effective response to an unusual mortality event;

                                          (B) the types of marine mammal tissues and analyses necessary to assist in
                                   diagnosing causes of unusual mortality events;

                                          (C) training, mobilization, and utilization procedures for available personnel,
                                   facilities, and other resources necessary to conduct a rapid and effective response to
                                   unusual mortality events; and

                                          (D) such requirements as are necessary to--

                                              (i) minimize death of marine marnmals in the wild and provide appropriate
                                          care of marine mammals during an unusual mortality event;



                                                                                       67










                 Mafine Mammal ComrWssion


                                     (ii) assist in identifying the cause or causes of an unusual mortality event;

                                     (iii) determine the effects of an unusual mortality event on the size esti-
                                  mates of the affected populations of marine mammals; and

                                     (iv) identify any roles played in an unusual mortality event by physical,
                                  chemical, and biological factors, including contaminants.

                          (c)(1)(A) The Secretary shall, in consultation with the Secretary of the Interior,
                          designate one or more Onsite Coordinators for an unusual mortality event, who shall
                          make immediate recommendations to the stranding network participants on how to
                          proceed with response activities.

                                  (B) An Onsite Coordinator so designated shall be one or more appropriate
                             Regional Directors of the National Marine Fisheries Service or the United States
                             Fish and Wildlife Service, or their designees.

                                  (C) If, because of the wide geographic distribution, multiple species of marine
                             mammals involved, or magnitude of an unusual mortality event, more than one
                             Onsite Coordinator is designated, the Secretary shall, in consultation with the
                             Secretary of the Interior, designate which of the Onsite Coordinators shall have
                             primary responsibility with respect to the event.

                             (2)(A) An Onsite Coordinator designated under this subsection shall coordinate and
                          direct the activities of all persons responding to an unusual mortality event in accor-
                          dance with the contingency plan issued under subsection (b), except that-

                                     (i) with respect to any matter that is not covered by the contingency plan,
                                  an Onsite Coordinator shall use his or her best professional judgment; and

                                     (ii) the contingency plan may be temporarily modified by an Onsite
                                  Coordinator, consulting as expeditiously as possible with the Secretary, the
                                  Secretary of the Interior, and the unusual mortality event working group.

                                  (B) An Onsite Coordinator may delegate to any qualified person authority to
                             act as an Onsite Coordinator under this title.




                                          Unusual Mortality Event Activity Funding

                                                             16 U.S.C. 1421d


                          Sec@ 305. (a) There is established in the Treasury a fund to be known as the "Marine
                          Mammal Unusual Mortality Event Fund", which shall consist of amounts deposited
                          into the Fund under subsection (c).

                          (b)(1) Amounts in the Fund-

                                  (A) shall be available only for use by the Secretary, in consultation with the
                             Secretary of the Interior-


                                                                       68









                                                                              Ile Marine Mammal Protection Act of 1972 as Amended


                                    (i) to compensate persons for special costs incurred in acting in accordance
                                 with the contingency plan issued under section 304(b) [16 U.S.C. 1421c(b)] or
                                 under the direction of an Onsite Coordinator for an unusual mortality event;
                                 and


                                    (ii) for reimbursing any stranding network participant for costs incurred in
                                 preparing and transporting tissues collected with respect to an unusual mortali-
                                 ty event for the Tissue Bank; and

                                 (B) shall remain available until expended.

                            (2) If sufficient amounts are not available in the Fund to satisfy any authorized
                         pending claim, such claim shall remain pending until such time as sufficient amounts
                         are available. All authorized pending'claims shall be satisfied in the order received.

                         (c) There shall be deposited into the Fund-

                            (1) amounts appropriated to the Fund;

                            (2) other amounts appropriated to the Secretary for use with respect to unusual
                         mortality events; and
                            (3) amounts received by the United States in the form of gifts, devises, -and
                         bequests under subsection (d).

                         (d) For purposes of carrying out this title, the Secretary may accept, solicit, and use
                         the services of volunteers, and may accept, solicit, receive, hold, administer, and use
                         gifts, devises, and bequests.



                                                              Liability

                                                          16 U.S.C. 1421e


                         See. 306. (a) A person who is authorized to respond to a stranding pursuant to an
                         agreement entered into under section 112(c) is deemed to be an employee of the
                         govenitnent for purposes of chapter 171 of title 28, United States Code, with respect to
                         actions of the person that are-

                            (1) in accordance with the agreement; and

                            (2) in the case of an unusual mortality event, in accordance with-

                                 (A) the contingency plan issued under section 304(b) [16 U.S.C. 1421c(b)];

                                 (B) the instructions of an Onsite Coordinator designated under section 304(c)
                            [16 U.S.C. 1421001; or

                                 (C) the best professional judgment of an Onsite Coordinator, in the case of any
                            matter that is not covered by the contingency plan.


                                                                   69










                 Marine Mammal Commission


                        (b) Subsection (a) does not apply to actions of a person described in that subsection
                        that are grossly negligent or that constitute willful misconduct.



                            National Marine Mammal Tissue Bank and Tissue Analysis

                                                          .16 U.S.C. 1421f

                        Sec. 307. (a)(1) The Secretary shall make provision for the storage, preparation,
                        examination, and archiving of marine mammal tissues. Tissues archived pursuant to
                        this subsection shall be known as the "National Marine Mammal Tissue Bank".


                            (2) The Secretary shall, in consultation with individuals with knowledge and
                        expertise in marine science, marine mammal science, marine mammal veterinary and
                        husbandry practices, and marine conservation, issue guidance, after an opportunity for
                        public review and comment, for marine mammal tissue collection, preparation,
                        archiving, and quality control procedures, regarding-

                                (A) appropriate and uniform methods and standards for those activities to
                            provide confidence in marine mammal tissue samples used for research; and

                                (B) documentation of procedures used for collecting, preparing, and archiving
                            those samples.

                            (3) In addition to tissues taken during marine mammal unusual mortality events, the
                        Tissue Bank shall incorporate tissue samples taken from other sources in the wild,
                        including-

                                (A) samples from marine mammals taken incidental to commercial fishing
                            operations;

                                (B) samples from marine mammals taken for subsistence purposes;

                                (C) biopsy samples; and

                                (D) any other samples properly collected.

                        (b) The Secretary shall, in consultation with the Marine Mammal Commission, the
                        Secretary of the Interior, and individuals with knowledge and experience in marine
                        science, marine mammal science, marine mammal veterinary and husbandry practices,
                        and marine conservation, issue guidance, after an opportunity for public review and
                        comment, for analyzing tissue samples (by use of the most effective and advanced
                        diagnostic technologies and tools practicable) as a means to monitor and measure
                        overall health trends in representative species or populations of marine mammals,
                        including-

                            (1) the levels of, and if possible, the effects of, potentially harmful contaminants;
                        and






                                                                  70









                                                                             Ile Marine Mammal Pmtection Act of 1972 as Amended


                            (2) the frequency of, and if possible, the causes and effects of abnon-nal lesions or
                        anomalies.


                        (c)(1) The Secretary shall maintain a central data base which provides an effective
                        means for tracking and accessing data on marine mammals, including relevant data on
                        marine mammal tissues collected for and maintained in the Tissue Bank.


                            (2) The data base established under this subsection shall include-

                                (A) reference data on the health of marine mammals and populations of marine
                            mammals; and

                                (B) data on species of marine mammals that are subject to unusual mortality
                            events.


                        (d) The Secretary shall, in consultation with the Secretary of the Interior, establish
                        criteria, after an opportunity for public review and comment, for access to-

                            (1) marine mammal tissues in the Tissue Bank;

                            (2) analyses conducted pursuant to subsection (b); and

                            (3) marine mammal data in the data base maintained under subsection (c);

                        which provide for appropriate uses of the tissues, analyses, and data by qualified
                        scientists, including stranding network participants.



                                              Authorization of Appropriations

                                                          16 U.S.C. 1421g

                        Sec@ 308. There is authorized to be appropriated-

                            (1) to the Secretary for carrying out this title (other than sections 305 [16 U.S.C.
                        1421d] and 307 [16 U.S.C. 1421f]) $250,000 for each of fiscal years 1993 and 1994;

                            (2) to the Secretary for carrying out section 307 [16 U.S.C. 1421f], $250,000 for
                        each of fiscal years 1993 and 1994; and

                            (3) to the Fund, $500,000 for fiscal year 1993.












                                                                   71






                                                                                                                                  0



                 Marine Mmmal Cminission


                                                            Derinitions


                                                          16 U.S.C. 1421h


                        Sec. 309. In this title, the following definitions apply:

                            (1) The term "Fund" means the Marine Mammal Unusual Mortality Event Fund
                        established by section 305(a) [16 U.S.C. 1421d].

                            (2) The term "Office" means the Office of Protected Resources, in the National
                        Marine Fisheries Service.


                            (3) The term "stranding" means an event in the wild in which-

                                (A) a marine mammal is dead and is-

                                   (i) on a beach or shore of the United States; or

                                   (ii) in waters under the jurisdiction of the United States (including any
                                navigable waters); or

                                (B) a marine mammal is alive and is-

                                   (i) on a beach or shore of the United States and unable to return to the
                                water,


                                   (ii) on a beach or shore of the United States and, although able to return to
                                the water, is in need of apparent medical attention; or

                                   (iii) in the waters under the jurisdiction of the United States (including any
                                navigable waters), but is unable to return to its natural habitat under its own
                                power or without assistance.

                            (4) 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) The term "Tissue Bank" means the National Marine Tissue Bank provided for
                        under section 307(a) [16 U.S.C. 1421f].

                            (6) The term "unusual mortality event" means a stranding that-

                                (A) is unexpected;

                                (B) involves a significant die-off of any marine mammal population; and

                                (C) demands immediate response.







                                                                  72









                                                                            The Marine Mammal Protection Act'of 1972 as Amended


                                                               Notes


                                                       16 U.S.C. 1361 note


                        The following section 7, of Pub. L. 100-711, approved November 23, 1988, has not
                        been codified.

                                              Study on Mortality of Atlantic Dolphin

                        Sec. 7. (a) The Secretary of Commerce shall conduct a study regarding the east coast
                        epidemic during 1987 and 1988 which has caused substantial mortality within the
                        North Atlantic coastal population of Atlantic bottle-nosed dolphirL The study shall
                        examine-


                           (1) the cause or causes of the epidemic;

                           (2) the effect of the epidemic on coastal and offshore populations of Atlantic
                        bottle-nosed dolphin;

                           (3) the extent to which pollution may have contributed to the epidemic;

                           (4) whether other species and populations of marine marnmals were affected by
                        those factors which contributed to the epidemic; and

                           (5) any other matters pertaining to the causes and effects of the epidemic.

                        (b) On or before January 1, 1989, 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 plan for conducting the study
                        required in subsection (a).


                                                       16 U.S.C 1361 note


                        The following section 306, of Pub. L. 102-567, enacted October 29, 1992, has, not
                        been codified.


                        Study on Effects of Dolphin Feeding

                        Sec. 306. (a) The Secretary of Commerce shall conduct a study in the eastern Gulf of
                        Mexico on the effects of feeding of noricaptive dolphins by human beings. The study
                        conducted pursuant to this section shall be designed to detect any behavior or diet
                        modification resulting from this feeding and to identify the effects, if any, of these
                        modifications on the health and well-being of the dolphins.

                        (b) In design and conduct of the study required under subsection (a), the Secretary
                        shall consult with the National Academy of Sciences and the Marine Mammal
                        Commission.


                        (c) Within 18 months after the date of the enactment of this Act, the Secretary shall
                        submit to the Committee on Merchant Marine and Fisheries of the House of Represen-


                                                                  73









                 Marine Mammal Commission


                         tatives and the Committee on Commerce, Science, and Transportation of the Senate a
                         report on the results of the study conducted pursuant to subsection (a).


                                                          16 U.S.C. 1373 note


                         The following section 1101, of Pub. L. 101-627, approved November 28, 1990, has
                         not been codified.


                         Report on Marine Mammal Populations

                         Sec..1101. The Secretary of Commerce, in consultation with the Secretary of the
                         Interior, shall provide to the Committee on Commerce, Science, and Transportation of
                         the Senate and the Committee on Merchant Marine and Fisheries of the House of
                         Representatives within 12 months after the date of enactment of this Act a report-

                             (1) assessing population sizes and trends of harbor seals, sea otters, California sea
                         lions, and northern sea lions off the coast of the State of Washington, which assess-
                         ment shall include the historic, present, and projected population sizes and the overall
                         health of current populations of such marine mammals;

                             (2) assessing the effectiveness of sections 101(a)(3)(A) and 109(h) of the Marine
                         Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(3)(A) and 1379(h)) with particular
                         emphasis on the management of the lower Columbia River and Puget Sound marine
                         mammal populations, which assessment shall describe how the agencies are interpret-
                         ing and implementing such sections, how often such sections have been invoked, and
                         whether such sections have been effective in the management of marine mammal
                         populations and in responding to the problems which such sections were intended to
                         address; and


                             (3) specifying long range management plans for the species of marine mammals
                         listed in paragraph (1).


                                                          16 U.S.C. 1379 note


                         The following section 4(b), of Pub. L. 97-58, approved October 9, 1981, does not
                         amend the Act, but should be linked with it.

                         No Effect on Certain Cooperative Agreements

                         Sec. 4. (b) Nothing in the amendments made by subsection (a) shall be construed as
                         affecting in any manner, or to any extent, any cooperative agreement entered into by a
                         State under section 6(c) of the Endangered Species Act of 1973 (16 U.S.C. 1535(c))
                         before, on, or after the date of the enactment of Us Act.









                                                                      74









                                                                          The Marine Mammal Protection Act of 1972 as Amended


                                                     16 U.S.C. 1421a note


                       The following section 3003(b), of Pub. L. 102-587, enacted November 4, 1992, has
                       not been codified.


                       Marine Mammal Health and Stranding Response Program

                       Sec. 3003. (b) The Secretary of Commerce shall-

                          (1) in accordance with section 302 (a) and (b) of the Marine Mammal Protection
                       Act of 1972, as amended by this Act [16 U.S.C. 1421a (a) and (b)], and not later than
                       24 months after the date of enactment of this Act-


                               (A) develop and implement objective criteria to determine at what point a
                          marine mammal undergoing rehabilitation is returnable to the wild; and

                               (B) collect and make available information on marine mammal health and
                          health trends; and


                          (2) in accordance with section 30.4(b) of the Marine Mammal Protection Act of
                       1972, as amended by this Act [16 U.S.C. 1421c(b)], issue a detailed contingency plan
                       for,responding to any unusual mortality event-

                               (A) in proposed form by not later than 18 months after the date of enactment
                          of this Act; and

                               (B) in final form by not later than 24 months after the date of enactment of
                          this Act.



































                                                                75










                  Mafine Mmmal C=mission


                               Endnotes for The Marine Mammal Protection Act
                                                       of 1972 as Amended



                          1.  The Act (Pub. L. 92-522), approved October 21, 1972, has been amended also by
                              Pub. L. 93-205 (the Endangered Species Act), December 28, 1973; Pub. L. 94-265
                              (the Magnuson Fisheries Conservation and Management Act), April 13, 1976; Pub.
                              L. 95-136, October 18, 1977; Pub. L. 95-316, July 10, 1978; Pub. L. 96-470 (the
                              Congressional Reports Elimination Act of 1980), October 19, 1980; Pub. L. 97-58,
                              October 9, 1981; Pub. L. 97-389 (the Fisheries Amendments of 1982), December
                              29, 1982; Pub. L. 98-364, July 17, 1984; Pub. L. 99-659, November 14, 1986;
                              Pub. L. 100-711 (the Marine Mammal Protection Act Amendments of 1990),
                              November 23, 1988; Pub. L. 101-627 (the Fishery Conservation Amendments of
                              1990), November 28, 1990; Pub. L. 102-251, March 9, 1992; Pub. L. 102-523 (the
                              International Dolphin Conservation Act of 1992), October 26, 1992; Pub. L. 102-
                              582 (the High Seas Driftnet Fisheries Enforcement Act), November 2, 1992; and
                              Pub. L. 102-587 (the Oceans Act of 1992), November 4, 1992.

                          2.  The table of contents was amended by Pub. L. 100-711, Sec. 2(c), to insert new
                              sections 114 and 115 and to redesignate former section 114 as section 116.

                          3.  The table of contents was amended by Pub. L. 102-523, Sec. 2(b), and by Pub. L.
                              102-587. Each of these laws added a new title III to the Act. Please note that,
                              pending further amendment, both titles (Global Moratorium to Prohibit Certain
                              Tuna Harvesting Practices and Marine Mammal Health and Stranding Response)
                              will be designated as title III. The first title III (Global Moratorium to Prohibit
                              Certain Tuna Harvesting Practices) has been codified at 16 U.S.C. 1411-1418. The
                              second title III (Marine Mammal Health and Stranding Response) has been
                              codified at 16 U.S.C. 1421-1421h. To minimize any confusion, the corresponding
                              United States Code citation has been included in the text of the Act next to any
                              reference to title III or to sections 301-308.


                          4. Section 2(6) amended by Pub. L. 97-58, Sec. 1(b)(1).

                          5.  Section 3(l) amended by Pub. L. 97-58, Sec. 1(b)(2). (The Pub. L. 97-58 amend-
                              ment supersedes the previous amendment made by Pub. L. 93-205, Sec. 13(e)(1)).

                          6.  Section 3(2) amended by Pub. L. 97-58, Sec. 1(b)(2).

                          7.  Section (3)(5) was added and former paragraphs (5) through (14) were redesignated                          M
                              as paragraphs (6) through (15) by Pub. L. 102-582, Sec. 401(a). Note that a
                              second definition of the term "intermediary nation" is set forth at section 3(17) of
                              the Act.


                          8.  The original section 3(8) was repealed by Pub. L. 97-58, Sec. l(a). The original
                              .paragraphs (9) through (15) were redesignated as paragraphs (8) through (14)
                              respectively by Pub. L. 97-58, Sec. 1(b)(2), but were again designated as para-
                              graphs (9) through (15) by Pub. L. 102-582, Sec. 401(a). Current section 3(9) was
                              amended by Pub. L. 97-58, Sec. 1(b)(2).

                          9. Section 3(12) amended by Pub. L. 102-587, Sec. 3004(b).


                                                                      76









                                                                            The Marine Mammal ProtecLion Act of 1972 as Amended


                        10. Section 3(15) amended by Pub. L. 97-58, Sec. 1(b)(2).

                        11. Section 3(15)(B) amended by Pub. L. 94-265, Sec. 404(a); effective date March 1,
                            1977, and section 3(15)(C) added by Pub. L. 102-251, Sec. 304.

                        12. Paragraphs (15), (16), and (17) added by Pub. L. 102-523, Sec. 2(c). Please note
                            that, as enacted, two separate definitions have been designated as section 3(15).
                            Also note that the term "intermediary nation," defined in section 3(17), is also
                            defined in section 3(5) of the Act

                        13. Section 101(a)(1) amended by Pub. L. 100-711, Sec. 5(c).

                        14. Section 101(a)(2) amended by Pub. L. 97-58, Sec. 2.

                        15. Section 101(a)(2) amended by Pub. L. 98-364, Sec. 101.

                        16. Section 101(a)(2)(B) amended by Pub. L. 100-711, Sec. 4(a)(2).

                        17. Subparagraphs: (C) and (D) of section 10 1 (a)(2) added by Pub. L. 100-711,
                            Sec. 4(a)(3). Subparagraph (C) amended by Pub. L. 102-582, Sec. 401(b).

                        18. Section 101(a)(2)(E) added by Pub. L. 101-627, Sec. 901(g), and amended by
                            Pub. L. 102-582, Sec. 103.

                        19. Section 10 1 (a)(3)(B) amended by Pub. L. 97-5 8, Sec. 2 and by Pub. L. 100-711,
                            Sec. 5(e)(1).).

                        20. Section 101(a)(5)(A) amended by Pub. L. 99-659, Sec. 411(a).

                        21. Paragraphs (4) and (5) added to section 101(a) by Pub. L. 97-58, Sec. 2.

                        22. Section 101(b) and (b)(1) amended by Pub. L. 97-58, Sec. 2.

                        23. Section 102(a) amended by Pub. L. 97-5 8, Sec. 3(a), by Pub. L. 100-711, Sec.
                            2(b), and by Pub. L. 102-587, Sec. 3004(a)(1).

                        24. Original paragraph (3) of section 102(a) struck, new paragraphs (3) and (4) added,
                            and previous paragraph (4) redesignated as paragraph (5) by Pub. L. 97-58, Sec.
                            3(a).

                        25. Section 102(b)(3) amended by Pub. L. 97-58, Sec. 3(a). (The Pub. L. 97-58
                            amendment supersedes the previous amendment made by Pub. L. 93-205, Sec.
                            13(e)(3)).

                        26. Section 102(b) amended by Pub. L. 100-711, Sec. 5(b) and 5(e)(2).

                        27. As in original, probably intended to be "whether or not any marine marnmals
                            were in fact taken incidental to the catching of fish."

                        28. Section 102(d)(1) amended by Pub. L. 97-58, Sec. 3(a).




                                                                  77










                 Mafine NUmmal Commission


                         29. As in original, probably intended to be "species of whale incidental to commercial
                              whaling....

                         30. Section 102(f) added by Pub. L. 95-136, Sec. 4.

                         3 1. Section 104(c)(1) amended and paragraphs (2), (3), and (4) added by Pub. L.
                              100-711, Sec. 5(d).

                         32.  As in original, probably intended to be "the authorized taking or importation; ......

                         33.  Clauses (iv)-(ix) added to section 104(h)(2)(B) by Pub. L. 100-711, Sec. 4(d).

                         34.  Section 104(h)(2)(A), (B), and (C) and Section 104(h)(3)(A), (B), (C), and (D)
                              added by Pub. L. 98-364, Sec. 102.

                         35.  Section 105(a)(1) amended and 105(a)(2) added by Pub. L. 97-58, Sec. 3(b).

                         36.  "Director of the Office of Personnel Management" was substituted for "Civil
                              Service Commission" in section 107(b) in accordance with Reorganization Plan
                              No. 2 of 1978, Sec. 102.

                         37.  As in original, probably intended to be "within thirty days ......

                         38.  Section 108(a)(2) amended by Pub. L. 100-711, Sec. 4(b).

                         39.  Section 108(c) added by Pub. L. 100-711, Sec. 4(c).

                         40.  Section 109(b)(1)(E) amended by Pub. L. 100-711, Sec. 5(e)(3)(A).

                         41.  Section 109(b)(3)(B)(ii) amended by Pub. L. 100-711, Sec. 5(e)(3)(B).

                         42.  Section 109(h)(1) amended by Pub. L. 102-587, Sec. 3004(a)(2).

                         43.  Section 109(h)(1), (2), and (3) redesignated as section 109(h)(1)(A), (B), and (C)
                              respectively, section 109(h)(1) amended, and section 109(h)(2) and section
                              109(h)(3) added by Pub. L. 100-711, Sec. 5(a).

                         44.  Subsections (c) and (d) of section 109 redesignated as subsections (k) and (1)
                              respectively and original subsections (a) and (b) struck by Pub. L. 97-58, Sec.
                              4(a). Also, new subsections (a) through 0) added by Pub. L. 97-58, Sec. 4(a).

                         45.  Section 109(l)(1) and (2) (formerly subsection (d)(1) and (2)) added by Pub. L.
                              95-316, Sec. 1.


                         46.  Section I 10(a)(1) amended by Pub. L. 97-58, Sec. 5

                         47.  Section 1 10(a) redesignated as 1 10(a)(1) and paragraph (2) added by Pub. L.
                              100-711, Sec. 4(e).

                         48.  Section 1 10(c) amended and paragraphs (1), (2), and (3) added by Pub. L. 95-136,
                              Sec. 1.




                                                                   78









                                                                              ne Marine Mammal Notection Act of 1972 as Amended


                        49. Paragraphs (4), (5), and (6) added to section 1 10(c) by Pub. L. 95-316, Sec. 2.

                        50.  Section 112(c) amended by Pub. L. 102-587, Sec. 3004(a)(3).

                        51.  As in original, probably intended to be "with the purposes or policies ......

                        52.  Section 112(d) amended by Pub. L. 96-470, title H, Sec. 201(e).

                        53.  Section 114 added and former section 114 redesignated as section 116 by Flub. L.
                             100-711, Sec. 2(a).

                        54.  As in original, probably intended to be "or is in the possession of the master .....

                        55.  As in original, probably intended to be "Advisors," as used elsewhere in the Act.

                        56.  As in original, probably intended to be "which is engaged in a fishery."

                        57.  Section 115 added by Pub. L. 100-711, Sec. 3(a).

                        58.  Former section 114 redesignated as section 116 by Pub. L. 100-711, Sec. 2(a)(1).

                        59.  Section 116(a) was not enacted as part of the Marine Mammal Protection Act of
                             1972, but as section 7(a) of Pub. L. 97-58, superseding prior section 114(a). This
                             section was amended by Pub. L. 98-364, title 1, Sec. 104(l) and Pub. L. 100-711,
                             Sec. 6(l).

                        60.  Section 116(b) was not enacted as part of the Marine Mammal Protection Act of
                             1972, but as section 7(b) of Pub. L. 97-58, superseding prior section 114(b). This
                             section was amended by Pub. L. 98-364, title 1, Sec. 104(2) and Pub. L. 100-711,
                             See. 6(2).

                        61.  Section 117 added by Pub. L. 101-627, Sec. 901(a)-(f) and Sec. 901(h)-O).

                        62.  First sentence of section 201(b)(1) amended by Pub. L. 97-389, title II, Sec. 202.

                        63.  Second sentence of section 201(b)(1) amended by Pub. L. 98-364, title 1, Sec.
                             103(a).

                        64.  Section 202(a)(2) amended by Pub. L. 100-711, Sec. 5(e)(4).

                        65.  Section 202(a)(6) amended by Pub. L. 93-205, Sec. 13(e)(4).

                        66.  Section 202(b) amended by Pub. L. 97-58, Sec. 6(l).

                        67.  Section 206(3) amended by Pub. L. 97-58, Sec. 6(2).

                        68.  Section 206(5) amended by Pub. L. 98-364, title 1, Sec. 103(b).

                        69.  Section 207 was not enacted as part of the Marine Mammal Protection Act of
                             1972, but as section 7(c) of Pub. L. 97-58, superseding prior section 207. This
                             section was amended by Pub. L. 98-364, title 1, Sec. 104(3) and Pub. L. 100-711,
                             Sec. 6(3).


                                                                   79










                 Marine Mammal Commission

                                                                                                                                 01
                         70. Title In (Global Moratorium to Prohibit Certain Tuna Harvesting Practices) added
                             by Pub. L. 102-523, Sec. 2(a). It is codified at 16 U.S.C. 1411-1418. Please note
                             that a second title In (Marine Mammal Health and Stranding Response) was
                             enacted as part of Pub. L. 102-587. It is codified at 16 U.S.C. 1421-1421h. To
                             minimize any confusion, the corresponding United States Code citation has been
                             included in the text of the Act next to any reference to title In or sections 301-
                             308.


                         71. Title III (Marine Mammal Health and Stranding Response) added by Pub. L. 102-
                             587. Please see endnotes 3 and 70 for further explanation.















































                                                                  80







                                               Excerpts from Congressional Reports
                                                                    Pertaining to the
                               Marine Mammal Protection Act of 1972 As Amended



                              1972         Public Law 92-522
                                              1. House of Representatives - Report 92-707
                                              2. Senate - Report 92-863
                                              3. Conference Committee - Report 92-1488

                              1977         Public Law 95-136
                                              1. House of Representatives - Report 95-336
                                              2. Senate - Report 95-177
                              1978         Public Law 95-316
                                              1. House of Representatives - Report 95-1028
                                              2. Senate - Report 95-888

                              1981         Public Law 97-58
                                              1. House of Representatives - Report 97-228

                              1984         Public Law 98-364
                                              1. House of Representatives - Report 98-758
                              1986         Public Law'99-659
                                              Marine mammal provisions not addressed in reports

                              1988         Public Law 100-711
                                              1. House of Representatives - Report 100-970
                                              2. Senate - Report 100-592
                              1990         Public Law 101-627
                                              1. House of Representatives - Report 101-579
                              1992         Public Law 102-523
                                              1. House of Representatives - Report 102-746, Parts I and II

                                           Public Law 102-582
                                              1. House of Representatives - Report 102 -262, Parts I and II

                                           Public Law 102-587
                                              1. House of Representatives - Report 102-758
                                              2. Senate - Report 102438


                              To improve the legibility of the excerpted Congressional reports, the reportsfrom 1972 to 1988 have been
                              re-typeset for inclusion in this publication. Every effort has been made to recreate the reports as
                              accurately as possible. Before relying on any portion of these reports, however, reference should be made
                              to the official committee reports. While it was not possible to keep every line intact, the pagination of the
                              original reports has been retained. Typographical errors in the original reports have also been retained
                              and are identified by addition of the term "[sic]".

                              Excerpts from the 1990 and subsequent reports are photocopies of the original committee reports and
                              may be relied upon as such.                          81



       md"MMMMMMMMMMIM11A



             92D CONGRESS               HOUSE OF REPRE        SENTATIVES                    REPORT
                 Ist Session                                                          No. 92-707







                           MARINE MAMMAL PROTEC77ON ACT OF 1971



                 DECEM13ER 4, 1971-Committed to the Committee of the Whole House on the
                                  State of the Union and ordered to be printed


                     Mr. GARMATZ from the Committee on Merchant Marine and
                                     Fisheries, submitted the following

                                                  REPORT

                                                 together with

                                      SUPPLEMENTAL VIEWS

                                          [To accompany H.R. 104201

      00
      UJ         The Committee on Merchant Marine and Fisheries, to whom was
             referred the bill (H.R. 10420) to protect marine mammals; to estab-
             lish a Marine Mammal Commission; and for other purposes, having
             considered the same, report favorably thereon with an amendment and
             recommend that the bill as amended do pass.
                 The amendment is as follows:
                 Strike out all after the enacting clause and insert in lieu thereof
             the following:

             That this Act may be cited as the "Marine Mammal Protection Act of 1971".

                                   FINDINGS AND DECLARATION OF POLICY

             SEC. 2. The Congress finds that-                                                                                                          PURPOSE OF THE LEGISLATION
                  (1) certain species and population stocks of marine mammals are, or may be,
                 in danger of disappearance or depiction as a result of man's activities;                                       The purpose of this legislation is to prohibit the harassing, catch-
                  (2) such species and population stocks should not be permitted to diminish
                 beyond the point at which they contribute effectively to the health and stability                           ing and killing of marine mammals by U.S. citizens or within the
                 of the ecosystem of which they are a part, and, consistent with this major objec-                           jurisdiction of the United States, unless taken under the authority of
                 tive, they should not be permitted to diminish beyond the point at which they                               a permit issued by an agency of the Executive Branch. The bill
                 can maintain that equilibrium at which they may be managed on an optimum                                    would also create an independent Commission to review the operation
                 sustained yield basis. Further, measures should be immediately taken to replenish                           of the program and to recommend ways in which it might be im-
                 any species or population stock which has already diminished beyond that point;                             proved.
                  (3) there is inadequate knowledge of the population dynamics of such marine
                 mammals and of the factors which bear upon their ability to reproduce them-
                 selves successfully;                                                                                                                    LEGISLATIVE BACKGROUND
                  (4) negotiations should be undertaken, as soon as possible, to encourage the
                 development of international arrangements for research on, and conservation of,                                Recent history indicates that man's impact upon marine mammals
                 all marine mammals:
                  (5) marine mammals and marine mammal products either-                                                      has ranged from what might be termed malign neglect to virtual geno-
                      (A) move in interstate commerce, or                                                                    cide. These animals, including whales, porpoises, scals, sea otters,
                                                                                                                             polar bears, manatees and others, have only rarely benefittcd from









                                                12                                                                                                   13

           our interest: they have been shot, blown up, clubbed to death, run down                                In essence, the bill gives to the Secretaries of Interior and Com-
           by boats, poisoned, and exposed to a multitude of other indignities, all in                         merce the authority and direction to establish general limitations upon
           the interests of profit or recreation, with little or no consideration of the                       the taking of all marine mammals, and within those limitations, to
           potential impact of these activities on the animal populations involved.                            issue permits for their taking, Criminal and civil penalties are pre-
              Interest in the welfare of marine mammals is manifested through-                                 scribed for violations of the act, and the importation of marine mam-
           out the world. Recent investigations into the intelligence of animals                               mals and their products will be subject to strict regulation. The
           such as whales, porpoises and seals have spurred protests in Ottawa,                                public is assured of the right to be informed of actions taken or pro-
           New York, London, and Paris against their wanton killing. Groups                                    posed to be taken by the Secretaries, and must be told of the evi-
           have been formed with the express purpose of advocating stronger                                    dence upon which the Secretaries propose to base their decisions.
           protective measures, and their memberships have mushroomed.                                            Faced with the decision of the proper location of this program, the
              Some of these groups have been criticized as unrealistic: as failing                             Committee elected to maintain the present division of authority be-
           to recognize that the principal significance of these animals lies in                               tween the National Oceanic and Atmospheric Administration (NOAA)
           their usefulness to men and, by inference, that any use by man is                                   in the Department of Commerce, and the Department of the Interior.
           therefore justifiable. This attitude, it seems to the committee, is no                              NOAA's involvement in marine mammals is derived from its subordi-
           more realistic than that of those on the other end of the spectrum-                                 nate agency, the National Marine Fisheries Service, formerly the Bu-
           that animals must be left alone altogether. Both fail to recognize that                             reau of Commercial Fisheries. This agency has been assigned
           man's thumb is already on the balance of Nature, and that solicitous                                responsibilities for research and some management of cetaceans
           and decent treatment for the animals may well also be in the long-                                  (whales, porpoises and dolphins), and seals, and H.R. 10420 assigns
           term best interests of man.                                                                         NOAA the continuing authority for the management and protection of
              A number of bills have been introduced in the House dealing with                                 such animals.
           the general subject of marine mammal protection. The bills on which                                    The other animals covered under the bill are walruses, sea otters,
           most of the testimony was directed were essentially two: bills to cre-                              polar bears and manatees. The Department of the Interior presently
           ate a flat prohibition against the taking or importing of these marine                              has the authority that exists within the Federal government with re-
           mammals, with a few relatively minor exceptions, introduced by Mr.                                  spect to these animals, and will retain this authority under H.R.
    00     Pryor and by a number of other Members. This group of bills was                                     10420. It might be added that the Committee is not satisfied that the
           opposed by the Executive Branch as too restrictive and unworkable.                                  jurisdictional split between agencies is helpful or useful; it retained
              Messrs. Anderson of California, Pelly and others introduced H.R.                                 the status quo largely upon the hope and expectation that a Depart-
           10420 as an alternative proposal, designed to give the Department of                                ment of Natural Resources would be shortly forthcoming, at which
           the Interior more flexible authority to permit the taking of marine                                 point the two programs would be merged into one. If such a Depart-
           mammals under circumstances which might be more closely control-                                    ment is not created within the reasonably near future, the Committee
           led, and subject to public review and independent oversight by an                                   is prepared to reexamine the question and to consider the virtues of
           independent Marine Mammal Commission.                                                               consolidating the program within a single department.
              Both measures were before the Committee when the Subcommittee                                       Existing research and management programs within the Federal
           on Fisheries and Wildlife Conservation began hearings        on the legisla-                        government dealing with marine mammals are quite small. Most of
           tion on September 9. In all, four days were devoted to hearings on                                  our present efforts are directed toward the Alaska fur seals, them-
           the issue. Subsequent to the hearings and extensive          executive ses-                         selves the subjects of international treaties and supporting Federal
           sions, the Committee unanimously ordered reported            the Anderson-                          legislation. HEW, the Department of the Navy and the National Sci-
           Pelly bill, H.R. 10420, with an amendment.                                                          ence Foundation all have programs which affect marine mammals, and
              The Committee was impressed by the wide support           for the princi-                        the present legislation does not touch upon these programs in any
           ple of broader and more adequate protection for marine mammals,                                     way. Interior and Commerce research and management programs for
           expressed by representatives of conservation and environmental or-                                  all other marine mammals have not exceeded $200,000 in the aggre-
           ganizations, humane groups, independent scientists, state agencies and                              gate. H.R. 10420 would authorize the expenditure of $15.3 million
           agencies of the Federal Gov      'ernment and others. As reported, the                              over a five-year period in order to carry out the research and man-
           Committee believes the bill satisfies the needs of the animals con-                                 agement responsibilities assigned to the management agencies, to-
           cerned, and meets the expressed concerns,of virtually every witness                                 gether with authority to engage in grant programs with the states; it
           on the question.                                                                                    would also authorize the sum of $5 million to the Marine Mammal
              H.R. 10420 takes the strong position that marine mammals and the                                 Commission authorized to be created under Title 11 of the Act.
           marine ecosystems upon which they depend for survival require addi-                                    The Marine Mammal Commission would be a threc-man group,
           tional protection from man's activities. There can be no question of                                with staggered three-year membership. Its primary function would be
           the constitutional power of the Congress to regulate traffic in these                               to review existing and proposed programs affecting marine mammals
           animals and their products, deeply involved as they are in interstate                               and to propose such changes to this program as may appear advisable.
           and foreign commerce.                                                                               This Commission would be aided in its efforts by a nine-member
                                                                                                               Scientific Advisory Committee composed of members qualified to







                                                 14                                                                                                  15

            review management and research programs and, if necessary, to carry out                               Still another problem to which marine mammals may be inadver-
            its own research.                                                                                  tently exposed is the operation of high-speed boats. Manatees and sea
               Mindful of the temptation to use such a Commission as yet another                               otters have been crippled and killed by motorboats and at present the
            bureaucracy, the Committee has taken the unusual step of recommend-                                Federal government is essentially powerless to force these boats to
            ing that its annual appropriations be restricted by permitting only up                             slow down or to curtail their operations.
            to one fourth of each year's appropriated funds to be used for opera-                                 When to these hazards there is added the additional stress of delib-
            tion and staffing of the Commission; the balance must be directed to                               erate taking, it becomes clear that many marine mammals may indeed
            developing the research deemed necessary by the Commission in or-                                  be in urgent need of protection, such as would be available through
            der to carry out its responsibilities.                                                             passage of H.R. 10420. Man's taking alone, without these factors,
               The Executive Branch of the government gave strong support to                                   might be tolerated by animal species or populations, but in conjunc-
            the principles of H.R. 10420, while recommending some revisions in                                 tion with them, it could well prove to be the proverbial straw added
            specific language. To a large extent, the recommendations of these                                 to the camel's back.
            agencies were followed in the development of H.R. 10420 although                                      Given the inadequacy of present knowledge, it is only conjecture-
            those suggestions were not followed which the Committee felt would                                 but a case might be made that the failure of some whale stocks to
            weaken the bill. The Committee did not feel, for example, that mak-                                recover in spite of a worldwide ban on their taking which has existed
            ing the Commission a less independent agency would serve a useful                                  for several years, may be due to just such a combination of factors
            purpose. Similarly, the Committee felt it to be of vital significance to                           as these. It is, of course, also possible that the failure of the blue
            include strong language exhorting the Department of State to develop                               and humpback whales to respond to the ban on their taking may be
            more effective international treaties for the protection of these ani-                             due to still other factors, not yet clearly identified.
            mals, which today have little or no protection.                                                       In the teeth of this lack of knowledge of specific causes, and of
               In brief, the Committee feels that H.R. 10420, if enacted into law,                             the certain knowledge that these animals are almost all threatened in
            would have the effect of placing the United States in the forefront of                             some way, it seems elementary common sense to the Committee that
            the development of effective meaningful measures for the protection                                legislation should be adopted to require that we act conservatively-
            of marine mammals.                                                                                 that no steps should be taken regarding these animals that might
     co                                                                                                        prove to be adverse or even irreversible in their effects until more is
     Ln                  BACKGROUND AND NEED FOR THIS LEGISLATION                                              known. As far as could be done, we have endeavored to build such a
                                                                                                               conservative bias into the legislation here presented.
               Man has   boon involved with mammals of the sea since        at least the                          There was no division of opinion of testimony before the Commit-
            beginning of recorded history, as sources of food, clothing and even                               tee that some legislation is required to provide additional protection
            of recreation. The dolphin was highly regarded in ancient Rome and                                 and research authority to the executive branch with respect to marine
            there are even today parts of the world in which marine mammals are                                mammals. There was considerable discussion as to the best means of
            treated with reverence.                                                                            bringing about an end that all considered desirable; the optimum pro-
               With few exceptions, this is not the case in the "civilized world."                             tection of the marine mammals affected by the bill.
               Extensive hearings by the Subcommittee on Fisheries and Wildlife                                   The hearings developed considerable information on the animals
            Conservation underscored the hazards and problems to which marine                                  covered by the act. An extended discussion on these animals may be
            mammals are exposed today. Probably the most pervasive and threat-                                 found at pp. 55-65 of the Committee hearings.
            ening of these is the degradation of the environment upon which they                                  Very briefly, the bill covers all mammals who spend part or all of
            depend. To some extent, this Committee has already begun to move                                   their lives in the sea. The largest category of animals covered also
            to halt this degradation, in acting upon the Ocean Dumping bill (H.R.                              contains the largest members: the Cetaceans, or whales, including air-
            9727) which recently passed the House. Ocean dumping is not, how-                                  breathing dolphins and porpoises. U.S. citizens have never deliber-
            ever, the only way in which marine ecosystems may be contaminated.                                 ately set out to kill these latter animals, although in recent years
            Witnesses informed the Subcommittee that the incidence of pesticide                                many have been caught by U.S. fishermen as an inadvertent conse-
            and heavy metal contamination of the oceans seemed to be increasing,                               quence of commercial fishing for tuna with purse seines. It appears
            as indicated by biopsies on animals such as sea lions and sea otters.                              that many porpoises caught by tuna nets have been killed in the
            An additional problem is posed by man's increased take of fish                                     past-general estimates vary from 200 to 400 thousand per year. They
            stocks upon which these animals depend. The Alaska fur seals spend                                 have been killed because they panicked when surrounded by the tuna
            several months on and near their hauling grounds on the Pribilof Is-                               nets and have attempted to escape by diving; diving, they have then
            lands, and the females cannot venture far from their babies in order                               become entangled and drowned.
            to feed themselves. Traditionally, the seal herd has depended upon an                                 Commercial fishermen testified that they have gone to considerable
            extensive Bering Sea herring population for food, and it appears that                              lengths to permit porpoises to escape unharmed, occasionally jumping
            man's increasing herring fishing activities in the area may be presenting                          into the water themselves to untangle the trapped animals. More
            problems for the fur seals that they are poorly equipped to handle.                                recently, new techniques have been developed involving smaller








                                                16                                                                                                   17

           mesh nets, and the industry is hopeful that the excessive kills of the past                         walruses which escape into the sea are lost, while those who remain dead
           will now be stopped. The Committee took pains in its consideration of                               or immobile are taken. It also appears that the principal, or at least a
           this bill to see that the legitimate needs of the tuna industry were not                            principal, purpose of walrus hunting today is for their ivory tusks. Walrus
           ignored, while accepting the clear requirement that porpoises be given                              meat had previously constituted a staple commodity for the Eskimos as a
           every reasonable protection.                                                                        source of food for their dog teams, but since the dog teams have largely
              Another large category of animals covered under this legislation is                              been replaced by snowmobiles, this incentive for killing has almost disap-
           seals, many species of which are hunted and killed for their skins.                                 peared.
           There has been great public concern and indignation over the annual                                    Sea otters are also covered by this legislation. Formerly hunted to
           seal "hunt" off the Canadian coast, where thousands of baby harp                                    a point of virtual extinction, the sea otters recovered after the slaugh-
           seals have been killed each Spring, at less than a week old. Wit-                                   ter was terminated as commercially impracticable, shortly after the
           nosses urged the Committee to establish an absolute ban on the U.S.                                 close of the nineteenth century. The sea otter has recovered, and is
           import of skins from these animals, and the bill provides such a ban.                               now found in populations in the Aleutians, chiefly in the neighbor-
           Although it does not appear that the U.S. market is a significant por-                              hood of Amchitka Island, and in Southern California waters. It ap-
           tion of the world market for harp seat skins, to the extent that any of                             pears that pressures are beginning to build up for the commercial
           these skins are presently sold in this country the Committee was of                                 harvest of these animals, and so this need for more adequate protec-
           the opinion that it should stop.                                                                    tion becomes more pressing.
              There was much testimony on the conduct of the Alaska fur seal                                      From every indication, the polar bear has reached a point where
           program. Here the evidence is      persuasive that, by and large, the pro-                          the additional protection which would be provided by H.R. 10420 has
           gram has operated to the advantage of the fur seal herd. As a result                                become almost essential. There is a scholarly dispute on the question
           of uncontrolled killing by citizens of many nations in the last cen-                                of whether there are one or more subspecies of polar bears, but the
           tury, the world population of fur seals declined from several million                               uncontroverted testimony before the Committee is that the Alaskan
           to approximately 200,000 members. Accordingly, the United States,                                   members of the species are becoming scarcer. The major reason for
           Japan, Great Britain (later Canada) and Russia developed a treaty in                                this decline in numbers may be the method of hunting presently em-
           1911 to regulate the taking of fur seals. As a result of this treaty, the                           ployed by Alaskan and other trophy hunters-this involves hunting by
    co     herd has increased to a level of some 1.3 to 1.5 million, under what                                airplane and has developed into a highly efficient method of reducing
           is generally considered to be a policy of enlightened and effective                                 the Alaskan polar bear population.
           management.                                                                                            There are little hard data on the effect of this type of hunting, but
              This is not to say that the fur seat herd is free from problems. It                              it does appear that the bears killed are becoming increasingly
           appears that these numbers are not growing as fast as they should be,                               younger-this, in turn, indicates that the hunters may be cutting
           given the current permitted level of taking, and the reasons for this                               deeply into the breeding stock of these animals. If so, the end may
           failure to increase are not clear. But it is also true that our level of                            not be far away.
           knowledge and relatively benign management is far superior to that                                     The Soviet Union has been attempting for years to have the United
           which presently exists with respect to all other species of marine                                  States and other circumpolar nations halt their hunting activities, and
           mammals.                                                                                            to declare a ban on the hunting of polar bears. The United States has
              U.S. knowledge and research programs devoted to the rest of the                                  resisted these overtures, chiefly on the basis that we did not yet have
           seals, including the sea lions and the walruses, is tiny-as have been                               sufficient information to tell just what was happening to the bears.
           our efforts to control significantly the activities of man affecting                                For the same reasons, we have also declined to put the bears on the
           these animals. The management activities that have taken place to                                   endangered species list, pursuant to the Endangered Species Act.
           date have been almost exclusively handled by the states. Many of                                    While this Committee is not in agreement with either this philosophy
           these state programs are soundly based, and should be encouraged.                                   or this reading of the Act, it is not necessary to develop this issue
           Other state management programs involved the payment of bounties                                    further at this time since enactment of this bill will put the bears
           on marine mammals of various types. There is, in brief, little sem-                                 under more stringent federal protection and will clearly result in a de
           blance of any sort of integrated rational program for management of                                 facto prohibition of trophy hunting for sufficient time for the bears to
           all marine mammals within the United States; given the divided na-                                  develop out of the depleted state in which they now exist.
           ture of the regulatory structure which affects them, this is scarcely                                  The other principal category of animals covered by the bill is the
           surprising.                                                                                         Sirenians, the American members of which order are Florida niana-
              The only American stocks of walruses are found off the Alaska                                    tees. These animals are protected from hunting by state law, although
           coast in the Bering Sea. Walruses are not significantly taken by U.S.                               the testimony before the Committee indicated that the animals are still
           citizens other than Eskimos, although they are not thereby assured of                               exposed to serious hazards. These hazards are principally a) the opera-
           protection. There are no hard figures, either of the size of the walrus                             tion of powerboats in areas where the manatees are found, and b) the
           herd, or of the extent of native taking. The most commonly used                                     excessive use of herbicides in areas draining into these waters, which in
           hunting technique, according to the evidence before the Committee,                                  turn destroys the habitat and food supply of the manatees. While
           is for groups of Eskimos to float down upon a number of walruses                                    H.R. 10420 would provide the Secretary of the Interior with adequate
           on ice floes, and then to fire indiscriminately into the herd. Those







                                                 18                                                                                                   19

            authority to regulate or even to forbid the use of.powerboats in waters                                  Committee reserves the option of developing new and less discretion-
            where mana  'tees are found, the Committee did not feel that matters had                                 ary methods of reaching these objectives.
            yet reached the state where additional authority would be required to al-                                   7. The bill provides wide authority and direction to the appropri-
            low the Secretary to forbid the use of herbicides, when used with ordi-                                  ate Secretaries to restrict or to prohibit the importation of marine
            nary care and prudence. The definition of taking, however, includes the                                  mammals or animals taken by methods or in circumstances which
            concept of harassment, and it is intended that this term be construed suf-                               would not be permitted to persons subject to U.S. jurisdiction.
            ficiently broadly to allow the regulation of excessive or wanton use of                                     8. The bill establishes reasonable protection for Alaskan natives
            these chemical compounds, as well as the operation of powerboats.                                        taking marine mammals for purposes of food or clothing, where the
               As approved by the Committee, the bill involves a number of basic                                     primary purpose is not commercial sale. It couples this protection
            concepts and techniques:                                                                                 with adequate tools to allow the Secretaries to prevent abuse of these
                    1. Before any marine mammal may be taken, the appropriate Sec-                                   privileges or to limit the taking in order to protect endangered or
                retary must first establish general limitations on the taking, and must                              depleted species or stocks.
                issue a permit which would allow that taking. In every case, the                                   In adapting the bill to the circumstances involved in the present
                burden is placed upon those seeking permits to show that the taking                             taking of marine mammals, the Committee gave careful consideration
                should be allowed and will not work to the disadvantage of the spe-                             to alternative legislation urged upon it by dedicated and sincere indi-
                cies or stock of animals involved. If that burden is not carried-and                            viduals and groups which would have provided a flat prohibition
                it is by no means a light burden-the permit may not be issued. The                              against the taking or importing of marine mammals, with a few rela-
                effect of this set of requirements is to insist that the management of                          tively minor exceptions. The first day of hearings was dedicated al-
                the animal populations be carried out with the interests of the ani-                            most exclusively to testimony from such individuals and groups
                mals as the prime consideration.                                                                endorsing the alternative proposal.
                    2. The bill creates a strong regulatory responsibility in the agen-                            While the basic premises underlying this legislation are certainly
                cies involved, coupled with a Congressional directive that far more                             appealing, on close examination of the issue the Committee simply
                adequate knowledge must be developed on what is actually happening                              found itself unable to accept the thesis that a flat ban would inevita-
                to these animals.                                                                               bly operate to the benefit of the animals concerned. Experienced, in-
     CO             3. The public is invited and encouraged to participate fully in the                         dependent scientists, not representing hunters, entrepreneurs or other
                agency decision-making process. The agencies are further required to                            interest groups, argued persuasively that animal populations may in-
                provide full information to interested members of the public on what                            deed require management in order to prevent them from exceeding the
                the implications of the program and of any proposed agency actions                              carrying capacity of their environment and thus destroying it and
                may be.                                                                                         themselves in the process. "Nature's way" of regulating animal popu-
                    4. The bill permits and indeed requires the development of an                               lations is very often less humane than man's way.
                extensive management program in the agencies concerned, with full                                  The scientists made the point that man's thumb is already on the
                opportunity for cooperative federal-state management programs de-                               balance of nature and that to remove it altogether might be far more
                signed to carry out the purposes and policies of the act. There is no                           cruel and damaging than would be the effects of a responsible man-
                intention or desire within the Committee to remove any incentive                                agement program. Witnesses called to the attention of the Committee
                from the states to carry out necessary research or to protect animals                           the situation in the British-held Farne Islands, where a strict "hands-
                residing within their jurisdictions; in point of fact, the bill gives                           off" policy has resulted in thousands of starving and disease-ridden
                authority to the Secretaries to develop grant programs to further the                           seals. And it is unfortunately a fact of life that the class of animals
                objectives of the legislation, within broad federal guidelines.                                 which suffers the most in these circumstances is the young.
                    5. The bill creates an independent Marine Mammal Commission,                                   In these circumstances the Committee simply could not accept the
                to be aided by a scientific advisory body, charged with responsibility                          philosophy that inaction in the circumstances is the best policy.
                for reviewing existing national and international programs affecting                            Granted that our level of knowledge of these animals is in almost
                marine mammals, and given the authority to make recommendations                                 every case minimal, and that management action in the past with re-
                to the responsible officials on ways in which those programs may be                             spect to many animal species has resulted in mismanagement-such as
                made more consistent with the purposes and policies of the Act.                                 the federal predator control program-it is nonetheless the strong
                    6. The bill puts a strong injunction on the Department of State,                            feeling of the Committee that the answers to these problems lie not
                which has not yet visibly taken an interest in more adequate                                    in abolition of the concept of management, but rather in making the
                protection for marine mammals, to begin to develop new arrange-                                 management that does take place more responsive to the true needs of
                ments for protection of these animals and of ocean ecosystems that                              the situation.
                are significant to their welfare;    it also sets dates by which action                            It is for this reason that the Committee endorsed the concept of
                must be taken in this regard. Should these dates not be met, the                                wide public review of the activities of the federal management agen-
                                                                                                                cies, coupled with the creation of an independent Marine Mammal
                                                                                                                Commission charged with responsibility for reviewing the manage-








                                              20                                                                                             21

           ment activities. Abuses by the federal managers, if any, will be highly                        the Committee that there is little information today and that a great deal
           visible, both to the public in general and to the Commission. They will                        must be learned. It is the expectation of the Committee that the Secretary
           also be visible to this Committee, which proposes to maintain vigilant                         of Commerce will continue his current research efforts in cooperation
           oversight on the program to see that it fulfills the high expectations of                      with the fishing industry into more effective techniques for catching tuna
           the Congress in bringing this program into existence.                                          which involve lessened hazards for the porpoises who are caught as an
              It is undeniable that the levels of knowledge of scientists on ma-                          incident to their operations. At the current time, it appears to the Com-
           rine mammals are very low. The situation must be changed, and H.R.                             mittee that the tuna fleet would be an appropriate recipient of general
           10420 provides a vehicle for doing so. It is not contemplated that the                         permits, under the authority of Section 103(i) of Title 1, keyed not to
           research authority provided to the Secretaries or to the Marine Mam-                           specific numbers of porpoises which might be taken but to the techniques
           mal Commission will replace or supplant existing research authority                            that should be used in fishing operations. Certainly no one can disagree
           in other organizations, such as the National Science Foundation, the                           that the best available techniques should be used, in order to avoid or
           U.S. Navy, or others. What is intended is that the research programs                           minimize damage to porpoises, and to its credit, the tuna industry has
           should be integrated and coordinated to the maximum extent possible                            given every indication of its willingness to cooperate to achieve this ob-
           consistent with their several purposes.                                                        jective. It is the Committee's view that the language of the bill will en-'_
              The programs contemplated by this    bill are not long in duration, at                      courage the industry and the agencies of government to work together,
           least at their inception. The Committee feels that the five year period                        and will impose no barriers to that work. If these expectations are not
           for which authorizations have been provided is sufficiently long to                            met, the Committee is prepared to take the necessary steps to see that
           enable the development of adequate scientific programs, but not so                             they will be met.
           long as to give the agencies what amounts to a blank check upon the                               In its deliberations, the Committee gave careful thought to the pos-
           Federal treasury. We do need more information if we are adequately                             sibility of imposing restrictions upon U.S. citizens and companies en-
           to discharge our responsibilities to the animals affected, and this bill                       gaging in activities in foreign countries which would not be permitted
           provides the vehicle for the beginning of our efforts to obtain that                           to them in the United States. This was done as the result of sugges-
           knowledge.                                                                                     tions made during the course of the hearings which indicated that
              A sincere effort was made in the Committee deliberations to                                 there might be significant U.S. investments in companies taking ani-
    00     amend the bill by providing a two-year moratorium on the taking of                             mals from depleted or endangered species or stocks. Ultimately, the
    00     most categories of marine mammals. The proposal was rejected, not                              decision was made not to include the authority to require the repatria-
           because the Committee was unsympathetic with its objectives, but                               tion of funds used for this purpose, largely on the basis that there
           rather because it was felt that the situation of the animals demanded                          was no solid information available on which a judgement might be
           a more flexible means of handling problems that may arise. As a                                made. The matter does continue to be of considerable interest, how-
           practical matter, with regard to practically all of the species and                            ever, and it is the expectation of the Committee that the affected
           stocks involved, there will exist a de facto moratorium for at least                           Departments of the government and the Marine Mammal Commission
           two years, and very probably longer. The reasoning underlying this                             will look into this question and will report back on the need for
           conclusion depends upon a number of elements of the bill:                                      legislation to plug what may or may not be a loophole in H.R.
                  1. the requirement that no marine mammal may be taken without a                         10420.
               permit [Sec. 101 (a)];                                                                                          SECTION-BY-SECTION ANALYSIS
                  2. the fact that no permit may be issued until the appropriate Sec-
               retary has issued appropriate limitations [Sec. 103 (b)];                                  Short Title
                  3. the fact that such limitations must be based upon scientific evi-
               dence, and must be issued to insure that any taking     is not to the                         SEC. 1. The Act may be cited as the "Marine Mammal Protection
               disadvantage of the species or stock, and is consistent with the pur-                      Act of 1971".
               poses and policies of the Act [Sec. 102(a)];                                               Findings and Declaration of Policy
                  4. the fact that, with respect to almost every species and stock of                        SEC. 2. (1) This subsection makes the point that certain species
               animals today, there is little evidence to indicate what should be                         and stocks of marine mammals may be threatened with depletion or
               done one way or the other, and that the development of this evidence                       extinction by man's uncontrolled activities.
               will take time-in most cases more than two years.                                             (2) This subsection stresses the value and importance of marine
              There is information on a number of these animals which will sup-                           mammals to the ecological stability of the oceans and makes the
           port fairly prompt activity on the part of the Secretary. The Alaska                           point that these animals should never be permitted to diminish be-
           fur seal has been the subject of extended inquiry for years, and while                         yond the point where they constitute a functioning element of marine
           more could and should be known, certainly enough is known at this                              ecosystems; if they do go below this point, efforts should be made to
           date to support the development of a working permit program.                                   increase the stocks.
              As to the question of the stocks of porpoises currently taken, and for                         (3) This subsection states that not enough is known about virtually
           the most part released by the commercial tuna fleet, it is the feeling of                      every species and stock of marine mammals and that more knowledge
                                                                                                          is essential.


                                                                        or







                                                22                                                                                                  23

               (4) This subsection urges prompt negotiations for the development                                  (9) "Secretary" within the context of this Act refers to the Secre-
            of more adequate international treaties for the protection of marine                               taries of Interior or of Commerce, depending on the animals for which
            mammals.                                                                                           they are given responsibility. The Secretary of Commerce is given
               (5) This subsection states that Congress has a legitimate interest in                           responsibility for all cetaceans and all pinnipeds, other than walruses;
            acting in this area since the animals are highly significant to inter-                             the Secretary of Interior is given responsibility for all other marine
            state commerce.                                                                                    mammals.
               (6) This subsection states that marine mammals are resources of                                    (10) "Sustained yield" means that point in which the animal re-
            great significance and that it is congressional policy that they should                            cruitment to animal population equals the annual taking from that
            be protected and encouraged to develop consistent with sound policies                              population.
            of resource management. The primary objective of this management                                      (11) "Take" is defined broadly by the Act, as including harassing,
            must be to maintain the health and stability of the marine ecosystem;                              hunting, capturing, or killing any marine mammal or attempting to do
            this in turn indicates that the animals must be managed for their                                  so. The act of taking need not be intentional: the operation of motor
            benefit and not for the benefit of commercial exploitation.                                        boats in waters in which these animals are found can clearly consti-
            Definitions                                                                                        tute harassment.
                                                                                                                  (12) "United States" includes all lands over which the United
               SEC. 3. This section defines the various terms used in the bill.                                States government has jurisdiction.
               (1) "Depletion" or "depleted" refers to the situation in which        spe-                         (13) "Waters under the jurisdiction of the United States" means
            cies or stocks of animals have declined significantly or have reached                              waters out to the twelve mile limit.
            a point at which their future may be in jeopardy. The concept is
            broader than that of "endangered species" within the meaning of the                                    TITLE I -CONSERVATION AND PROTECTION OF MARINE MAMMALS
            Endangered Species Conservation Act of 1969. It provides the Secre-
            taries of Interior and Commerce with authority to step in to protect                               Prohibitions
            animals from species and stocks which have declined significantly be-
            fore they have become formally endangered or actually extinct.                                        SEC. 101. (a) This section states that it is unlawful, without a per-
               (2)"District Court of the United States" means the various U.S.                                 mit or an exception as provided by Section 107 of the Act, for any
                                                                                                               person or vessel subject to the jurisdiction of the United States to
            District Courts.
               (3) "Humane" in the context of taking marine mammals means the                                  take any marine mammal on the high seas or for any person or ves-
            method of taking which involves the least possible amount of pain                                  sel, or other conveyance (such as an airplane) to take any marine
            and suffering which can be inflicted upon the animals involved. It is                              mammal on waters or lands under the jurisdiction of the United
            not a simple concept and involves factors such as minimizing trauma                                States unless expressly provided for by an existing international
            to groups of highly intelligent, social animals such as whales and                                 agreement. The only such agreement of which this Committee is
            porpoises where the taking of any member may be distressing to the                                 aware is a treaty between the United States and Japan referred to in
            group. In many cases, where an animal may not be taken humanely                                    the Department of State's comments on this legislation.
            the bill will prevent that animal from being taken at all.                                            It is also unlawful for any person to use any port, harbor, or other
               (4) "Marine mammals" means mammals which are physiologically                                    place under the jurisdiction of the United States in any way con-
            adapted to the oceans, such as sirenians (manatees and sea cows),                                  nected with a prohibited act unless a permit has been obtained or the
            cetaceans (whales, porpoises, and air breathing dolphins) and pin-                                 exceptions in Section 107 are applicable. The section further prohibits
            nipeds (seals, sea lions, walruses and others). The term also includes                             any person subject to United States jurisdiction from processing,
            animals such as polar bears which are adapted to an intermittent                                   transporting or attempting to sell any marine mammal taken unlaw-
            land-sea environment. For the purpose of the Act, the term includes                                fully.
            parts of marine mammals, including but not limited to their fur and                                   (b) This subsection makes it illegal to import any marine mammal
            skins.                                                                                             within certain specified categories unless that mammal is imported for
               (5) "Marine mammal product" means processed or unprocessed                                      legitimate scientific research. These animals may not be imported for
            merchandise made from marine mammals.                                                              any commercial purposes. The categories are those animals which are
               (6) "Optimum sustained yield" means a sustained yield resulting in                              (1) pregnant when taken, (2) nursing (either parent or young), or less
            an optimum, usually close to maximum, number of animals, bearing                                   than eight months old, whichever occurs later, (3) taken from a spe-
            in mind the primary goal of ecosystem health and productivity.                                     cies or stock which has been designated by the appropriate Secretary
               (7) "Person" means individuals, corporate entities, or employees of                             as depleted or endangered or (4) taken inhumanely.
            any government.                                                                                       This section will bar the import of skins taken from the baby Ca-
               (8) "Population stock" involves a new concept, permitting and re-                               nadian harp seal, the slaughter of which has occasioned considerable
            quiring the Secretaries to discriminate between different groups of                                and, in the opinion of the Committee, justified public criticism in
            animals distinguishable from other populations of the same species.                                recent years. It will also prevent capture of animals such as whales
            The Alaskan polar bear, for example, is clearly a population stock                                 and porpoises, who are occasionally caught by capturing the baby in
            within the general worldwide species classification for polar bears.                               order to take the mother.








                                                24                                                                                                   25

              (c) This subsection poses an absolute and permanent ban on the                                    his proposed limitations, the Secretary is required to make available to
           importation of animals taken in violation of any law, of marine mam-                                 the public a number of documents: (1) his statement of the size of the
           mal products from such animals, or of marine mammals which may                                       population affected, (2) his statement describing the impact of his pro-
           not be sold in their country of origin. It also prohibits the importing                              posed limitations, (3) the evidence on which he proposes to act, and (4)
           of fish caught outside of the United States where the fish were caught                               any studies or recommendations relating to these limitations. At this point
           by techniques which the Secretary concludes are injurious to marine                                  in the development of the permit program, the public is given the right
           mammals. Fleets of tuna fishermen already catch tuna fish by catch-                                  and the necessary information to participate, and if it considers such ac-
           ing porpoises in the process. This section will prohibit the itnporta-                               tion appropriate, to protest against the establishment of these limitations.
           tion of any tuna caught by this method once the Secretary has been                                      (e) This subsection permits and requires the Secretary to revise
           informed that porpoises are being taken by methods which are deemed                                  limitations under the Act as deemed necessary.
           unreasonably injurious to those porpoises. If foreign fleets elect to                                Permits
           continue to catch tuna fish by these methods, this section will close
           the United States market to the tuna fish caught in this fashion.                                       Sec. 103 (a) This subsection allows the Secretary to issue permits
              (d) This subsection limits the impact of the subsections banning                                  authorizing the taking of any marine mammal. As already indicated,
           importations to articles imported after this Act becomes operative and                               no one may take any marine mammal without such a permit, except
           after the effective date of the events which make their importation                                  natives in specified circumstances.
           illegal. It will serve to protect those with inventories of products at                                 (b) This subsection requires permits issued under the authority of
           the time these actions become unlawful.                                                              the Act to be consistent with the limitations prescribed in Sec. 102
                                                                                                                and states that such permits must specify the various terms and con-
           Limitations on Taking of Marine Mammals                                                              ditions under which the animals may be taken. Wherever the reason
              Sec. 102. (a) This section establishes the basic, underlying theme                                for such taking is overpopulation, before issuing any such permit the
           of this Act. It states that the Secretaries of Interior and Commerce,                                Secretary must first consider the possibility of transporting excess
           once it is determined on the basis of scientific evidence that there is                              members of this population to other areas which were formerly the
           a need for such limitations, shall issue limitations on the taking of                                habitat of such animals. It would, for example, require prior consid-
    ID     marine mammals to insure that such taking does not occur to the dis-                                 eration to moving sea otters to any area within the Bering Sea or off
    c)     advantage of the species or stocks from which the animals are taken and                              the Pacific Coast before sea otters might be taken for commercial
           that such taking would be consistent with the policies of the Act. It                                purposes.
           requires, in effect, that limitations be established which will be de-                                  (c) Scientific research permits or permits for the display of marine
           signed to act for the benefit of the animals in question. While clearly                              mammals by profit and non-profit institutions must be issued by the
           it is not to the benefit of an individual animal to be taken, the Com-                               Secretary subject to his supervision of the manner in which those
           mittee was persuaded by overwhelming scientific evidence that there                                  animals may be captured, transported and cared for. These permittees
           are, in fact, cases in which animal species or stocks may be benefited                               must also report to the Secretary when required to do so, on the
           by removing excess members. In these cases, the Secretary will establish                             ways in which these requirements have been carried out. If the Secre-
           appropriate limitations which will permit the taking of these animals.                               tary is not satisfied with these activities or these reports, he may take
              (b) This subsection lists the general criteria which may be consid-                               appropriate action, which includes the revocation of permits and as-
           ered by the Secretary in the process of prescribing limitations under                                sessment of penalties.
           the Act. These include a wide range of factors such as the effect of                                    (d) This subsection authorizes the Secretary to prescribe procedures
           limitations on present and future animal populations. U.S. treaty re-                                to carry out his permit authority. It requires him to make public no-
           quirements, ecological and environmental considerations, the conserva-                               tice of permit applications received and to invite comments from in-
           tion and development of fishery resources and economic and                                           terested members of the public. Permit applicants carry the burden of
           technological feasibility.                                                                           showing that the taking of marine mammals will be consistent with
              The Secretary, for example, in regulating the operations of the                                   the purposes of this Act as indicated above and with the limitations
           tuna industry with respect to the catching of porpoises must consider                                established under Sec. 102. The failure to sustain this burden must
           the technical capability of these fishermen to avoid injury to por-                                  result in the denial of a permit. The subsection authorizes the Secre-
           poises. It is not the intention of the Committee to shut down or sig-                                tary to grant public hearings upon request of any interested party, if
           nificantly to curtail the activities of the tuna fleet so long as he is                              the request is made on a timely basis. The Secretary is instructed to
           satisfied that the tuna fishermen are using the best available technol-                              act in an expeditious fashion and to make full public disclosure of
           ogy to assure minimal hazards to marine mammal populations.                                          his action in issuing or denying a permit requested. The subsection
              (c) The limitations prescribed by the Secretary may include a num-                                also authorizes permit applicants to obtain judicial review under the
           ber of factors: the number of animals to be taken, what animals may                                  Administrative Procedure Act.
           be taken, and when and where this taking may take place.                                                (e) This subsection authorizes the Secretary to modify, suspend or
              (d) This subsection requires the establishment of limitations to                                  revoke permits to make them consistent with revised limitations under
           take place after full agency review open to public comment and                                       Sec. 102, or where the permit has been violated. Such actions by the
           hearing pursuant to the Administrative Procedure Act. In announcing                                  Secretary will take effect when the permittee is notified. The permittee







                                                   26                                                                                                       27

            may then apply for prompt hearing and review by the Secretary. Notice                                       (b) The Secretaries are also authorized to designate state officers
            of such modification, suspension or revocation must be published in the                                  and employees as enforcement agents, although they are not so con-
            Federal Register.                                                                                        sidered for purposes of federal employment laws.
               (f) This subsection requires permits issued by the Secretary to be                                       (c) This subsection authorizes United States judges and magistrates
            in the possession of the authorized person during the process of the                                     to issue warrants or other process required for enforcement of the
            authorized taking or at any other time incidental to that taking. The                                    Act.
            copy of the permit must be physically attached to any container in                                          (d) The subsection authorizes appropriate officials to execute prop-
            which the marine mammal is placed.                                                                       erly issued warrants or processes. It further authorizes those officials
               (g) The Act prescribes a sixty day period following the issuance of                                   to arrest persons violating the law within their presence or view, with
            limitations under Sec. 102, during which no permit may be issued.                                        or without a warrant, and permits searches of vessels or conveyances
            This will allow the Secretary sufficient time to obtain all permit ap-                                   with or without warrants with reasonable cause. Such officials may
            plications and to judge which should be granted rather than forcing                                      also seize vessels or other conveyances and appropriate additional
            him to act on a first-come, first-served basis.                                                          equipment where such have been used in violation of the Act or rea-
               (h) This subsection authorizes the Secretary to charge a fee for                                      sonably appear to have been so used. Marine mammals taken in viola-
            permits issued, related to the cost of the permit program.                                               tion of the Act may also be seized and disposed of in accordance
               (i) This subsection authorizes the Secretary to issue general per-                                    with appropriate regulations.
            mits under appropriate regulations covering the use of such permits.                                        (e) This subsection requires the Secretary to expedite proceedings
            Fishermen, Eskimos, and others who may have a continuing problem                                         when a seizure has taken place. He is required to notify the owner or
            may thus obtain general permits from the Secretary covering situ-                                        consignee of the seizure of these goods as soon as possible. Where
            ations in which it is anticipated that permission is required, subject to                                appropriate, the Secretary may either hold marine mammals or prod-
            those regulations which the Secretary considers consistent with the                                      ucts, or permit the person concerned to retain them after posting
            purposes and policies of the Act.                                                                        bond. After assessment of civil penalties, the subsection permits the
            Penalties                                                                                                Secretary to proceed against the marine mammals and products con-
               Sec. 104. (a) This subsection authorizes the assessment of civil                                      cerned and forfeited for appropriate disposition. The subsection re-
                                                                                                                     quires marine mammals and products seized in connection with a
            penalties by the appropriate Secretary for violation of the Act or per-                                  criminal violation to be forfeited to the Secretary. It allows the for-
            mits or regulations issued under the Act, in the amount of not more                                      feiture of property or other items taken in conjunction with the viola-
            than $10,000 for each violation. If the penalty is not paid, the Secre-                                  tion. Marine mammal products which have been seized must be
            tary is authorized to refer the matter to the Department of Justice for                                  returned to the owner or consignee, if (a) a civil penalty is assessed,
            action.                                                                                                  but no action is taken to recover that penalty, or (b) if criminal ac-
               (b)  This subsection authorizes criminal action and fines up to                                       tion is unsuccessful and the Secretary has not thereafter commenced
            $20,000 or up to one year imprisonment for any person who know-                                          proceedings for the imposition of civil penalties.
            ingly violates the Act or permits or regulations issued thereunder.
            The term "knowingly violates" is intended to refer to a conscious act                                    Exceptions for Certain Natives
            or a conscious omission of the offender which amounts to a violation                                        Sec. 107. (a) This section allows taking by Indians, Aleuts, or Es-
            of the law, regulation, or permit. It does not require that the offender                                 kimos dwelling on the coast of the North Pacific Ocean or the Arctic
            know that the Act which he consciously commits or omits constitutes                                      Ocean, under certain circumstances. These natives may not take ma-
            a violation. Should a fine be assessed following a conviction resulting                                  rine mammals from endangered species, but they may take marine
            from information supplied by any person other than one who has the                                       mammals without permits if the taking is for subsistence purposes in
            legal duty to report such an incident, the person or persons furnishing                                  accordance with traditional customs, is not done wastefully, and is
            the information are entitled to receive one-half of the assessed fine,                                   not done for purposes of direct or indirect commercial sale. If a na-
            or $2,500, whichever is less.                                                                            tive kills a walrus for subsistence purposes, the bill does not prohibit
            Vessel Forfeiture                                                                                        the use of ivory from that walrus' tusks so long as his primary pur-
                                                                                                                     pose for taking was that of subsistence. If, on the other hand, an
               Sec. 105. This section makes vessels or other conveyances under                                       Eskimo wishes to take a number of walruses primarily for the pur-
            U.S. jurisdiction subject to seizure and forfeiture when employed in                                     pose of selling their tusks, he may not do so without a permit.
            any way in the unlawful taking of any marine mammal. Existing cus-                                          (b) This subsection authorizes the Secretary, in cases where he de-
            toms laws relating to seizure, forfeiture, and condemnation of vessels                                   termines that species or stocks of marine mammals require protection
            are applicable where appropriate.                                                                        from native taking, to prescribe appropriate limitations upon this tak-
            Enforcement                                                                                              ing. It was recommended as an additional management tool by the
               Sec. 106. (a) The Secretaries      of Interior or Commerce are charged                                State of Alaska. Once the need for such limitations has been re-
            with basic responsibilities for enforcement of Title 1, except as other-                                 moved, as for example, following the regrowth of a depleted stock,
            wise provided. They may, however, utilize other federal agencies,                                        the limitations must be removed.
            such as the Coast Guard, for purposes of enforcement.







                                                   28                                                                                                        29

            International Program                                                                                     Regulations; Administration
               Sec. 108. This section requires the Secretaries of Interior and                                           Sec. 111. (a) This subsection authorizes the Secretaries, in consul-
            Commerce, acting through the Secretary of State, to- (1) encourage                                        tation with other appropriate federal agencies, if any, to adopt regula-
            the development of international laws and treaties for the protection                                     tions to carry out the purposes of the Title.
            of specific regions significant to marine mammals, such as the Ant-                                          (b) All federal agencies are authorized to cooperate on mutually
            arctic Ocean and the Bering Sea, (2) encourage the strengthening of                                       agreeable terms with the Secretaries in carrying out the purposes of
            existing treaties which relate to marine mammals in order to make                                         the Title.
            them consistent with the purposes of this Title. (An obvious case in                                         (c) This subsection authorizes the Secretaries to enter into agree-
            point is the International Whaling Treaty which was entered into not                                      ments, as necessary, with any person or agency of government in or-
            for the benefit of the whales, but for the benefit of the companies                                       der to carry out the purpose of Title I of the Act.
            exploiting them. This inadequate measure should clearly be strength-                                         (d) This subsection authorizes the Secretaries to review annually
            ened.) (3) seek an international meeting, not later than June 1, 1973,                                    all programs in which the United States participates, involving the
            for the purpose of signing international treaties for the protection of                                   taking of marine mammals on land. If the U.S. activities are impaired
            marine mammals, and implementing subparagraph (2) of the section,                                         by reason of a failure to own the necessary lands or interests therein,
            and (4) provide a full report to the Congress within a year of enact-                                     the Secretary must thereupon suspend the program and notify the
            ment of this Act on the results of efforts undertaken pursuant to this                                    Congress, recommending such additional legislation is deemed neces-
            section.                                                                                                  s ary.
            Federal Preemption; Cooperation with States                                                               Application to other Treaties and Conventions: Repeal
               Sec.  109. (a) This subsection preempts         state laws and regulations                                Sec. 112. This section makes it clear that the Act is to be applied
            relating to the taking of marine mammals,         except as provided in sub-                              as supplemental to and not in violation of existing international trea-
            section (b).                                                                                              ties or conventions which otherwise apply to marine mammals such as
               (b) This subsection authorizes the Secretary to develop effective                                      those applying to whaling and fur seals. It also repeals the,proviso in
            working cooperative arrangements with state agencies and officials in                                     the Act regarding the protection of sea lions 'in Alaskan waters.
     to     order to carry out the purposes of this Act. It is not the intention of                                   Authorizations
            this Committee to foreclose effective state programs and protective
            measures such as sanctuaries; it is rather our intention to allow the                                        Sec. 113. (a) This subsection authorizes an appropriation of $1.5
            development of a unified integrated system of management for the                                          million for each of the five fiscal years after enactment of this Act to
            benefit of the animals and to encourage the states to take all actions                                    enable the Department of Commerce to carry out its responsibilities
            which are consistent with this objective.                                                                 under Title 1. This figure is consistent with budget estimates provided
                                                                                                                      to the Congress by the Department of Commerce.
            Marine Mammal Research Grants                                                                                (b) This subsection authorizes the sum of $700,000 for the first
               Sec. 110. (a) This subsection authorizes the Secretary to make                                         year after the date of enactment of the Act, and $525,000 for the
            grants or to provide other appropriate financial assistance to state and                                  next four years, to enable the Department of the Interior to carry out
            other agencies in order to assist them in carrying out research on                                        its responsibilities under Title 1. This is consistent with budget esti-
            subjects relevant to the protection and management of marine mam-                                         mates submitted by that Department.
            mals.
               (b) This subsection authorizes the Secretary to make grants to                                                           TITLE II-MARINE MAMMAL COMMISSION
            states to enable them to develop programs for the protection of ma-
            rine mammals which are consistent with the purposes and policies of                                       Establishment of Commission
            this Title.                                                                                                  Sec. 201. (a) Establishes the Marine Mammal Commission.
               (c) This subsection authorizes the Secretary to establish such rea-                                       (b) The commission is composed of three members serving three
            sonable terms and conditions upon grants provided under the Act as                                        year staggered terms, appointed by the President from a list submitted
            may be deemed appropriate to protect the interests of the United                                          by the Chairman of the Council on Environmental Quality, of indi-
            States.                                                                                                   viduals who are knowledgeable in the fields of marine ecology and
               (d) This subsection authorizes, for the fiscal year in which the sec-                                  research management and who are not then or will be thereafter in a
            tion takes effect and for the next four fiscal years, up to $500,000                                      position to benefit from the taking of marine mammals. The section
            each to the Secretaries of Interior and of Commerce, in order to carry                                    bars existing government employees from service as a member of the
            out the purposes of this section of the Act. It appears to the Commit-                                    Commission. Members of the Commission may not be reappointed un-
            tee that this figure may well prove to be insufficient; as state and                                      less serving as a replacement to fill a vacancy.
            other agency research and administration programs are developed, im-                                         (c) The President shall designate the Chairman of the Commission
            plimented [sic) and expanded. If an increase in the authorization level                                   from among the members.
            proves necessary, the Committee is prepared to take appropriate steps.



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                                              30                                                                                            31

              (d) Members of the Commission shall be compensated on a daily                              tion, the Chairman of the National Academy of Sciences, and the Secre-
           rate equivalent of a GS-18 ($138.48 at this time) for each day the                            tary of the Smithsonian Institution.
           members are engaged in the actual performance of their duties. They                              (b) The members of the Scientific Committee are to be compen-
           are also entitled to reimbursement for travel expenses.                                       sated in like manner as the members of the Marine Mammal Commis-
              (e) The Title requires the appointment of an Executive Director                            sion.
           who will be a full time employee of the Commission, paid at a rate                               (c) The Commission is required to consult with the Scientific Com-
           not in excess of that established for a GS-18.                                                mittee on studies and recommendations on research programs con-
           Duties of Commission                                                                          ducted under the authority of the Act and all applications for
              Sec. 202. (a) The  Commission is required to do the following:                             scientific research permits. Recommendations made by the Committee,
              (1) Review existing federal laws and international treaties relating                       or members of the Committee, to the Commission which are not
                                                                                                         adopted by the Commission must be transmitted to the appropriate
           to marine mammals, including those dealing with whales and fur                                federal agency and the Congress with an explanation of the Commis-
           seals.                                                                                        sion's reasons for not accepting such recommendations.
              (2) Review existing information on the stocks of marine mammals
           and ways in which they may be managed consistent with the purposes                            Commission Reports
           of the Act and of the most humane possible ways of taking marine                                 SEC. 204. This section requires the Commission to transmit to the
           mammals; it shall also review the research programs carried out under                         Congress an annual report describing its activities, including findings
           the Act and all applications for research permits, authorized under                           and recommendations by and to the Commission, together with the
           Sec. 103.                                                                                     responses to those recommendations.
              (3) Carry out a (sic] necessary studies in connection with the pro-                        Coordination with other Federal Agencies
           tection and management of marine mammals.
              (4) Recommend to the appropriate Secretary, and to other officials,                           SEC. 205. This section authorizes the Commission to have access
           such additional steps as it considers desirable in the interest of ma-                        to all federal studies and data relating to marine mammals. It author-
           rine mammals.                                                                                 izes the Commission to utilize the facilities of federal agencies, under
              (5) Recommend appropriate policies to the Secretary of State for                           cooperative arrangements, and directs the Commission to take every
                                                                                                         feasible step to avoid duplication of research and to carry out the
           strengthening existing international treaties and recommend additional
           measures for protection of marine mammals.                                                    purposes of this Act.
              (6) Recommend to the Secretary of the Interior revisions to the                            Administration of Commission
           Endangered Species List as they may affect marine mammals, and                                   SEC. 206. This section authorizes the Commission to do the neces-
              (7) Recommend to the Secretary, other officials, and the Congress,                         sary things in order to carry out its administrative responsibilities un-
           measures deemed necessary or desirable to carry out the purposes of                           der the Act. Its financial and administrative services are to be
           this Act, including those which it deems appropriate to protect Alas-                         provided by the General Services Administration and appropriate re-
           kan natives who may be adversely affected by the Act.                                         imbursement made therefor.
              (b) The Commission is required to consult with the Secretaries at                          Authorizations
           their request, and shall furnish its reports and recommendations be-
           fore publication to them for comment,                                                            SEC. 207. This section authorizes the sum of not to exceed $1 million
              (c) The Commission's reports and recommendations are specifically                          for the fiscal year in which Title 11 is enacted, and for the next four
           designated as public records, to be available to the public on reason-                        fiscal years thereafter. Not more than one-fourth of the total amount
           able terms and conditions. Other activities of the Commission are                             of any sums appropriated to the Marine Mammal Commission pursu-
           also matters of public record, subject to the provisions of the Free-                         ant to this Title shall be expended on activities other than research
           dom of Information Act.                                                                       and studies conducted under the authority of 202(a) (2) and 3. This
              (d) Where the Commission has made recommendations to federal                               limitation was added to minimize the temptation on the part of the
           officials, those officials must respond to those recommendations on a                         Commission to develop another paper-shuffling bureaucracy. It is the
           substantive basis within 120 days. Where those recommendations have                           express intent of the Committee that the administrative activities of
           not been followed or adopted, the appropriate official is required to                         the Committee be held to a irreducible minimum; the Commission is
           return them to the Commission together with a detailed explanation of                         expected to make every effort to see that its program is carried out
           his reasons for his failure to follow these recommendations.                                  accordingly.
           Committee of Scientific Advisors on Marine Mammals
              Sec. 203. (a) This section authorizes and directs the establishment
           of a Scientific Committee of nine independent scientists knowledge-
           able in marine ecology and marine mammals affairs. The members of
           this Committee are to be appointed by the Chairman of the Commis-
           sion, with the advice of the Director of the National Science Founda-








                                                                                                                                              56

                                                                                                             The reasons for this are abundately [sic] clear. Again, we do not
                                                                                                          know enough about these animals and their place in the ecological
                                                                                                          system to sanction their excessive and unnecessary killing or use in
                                                                                                          this country. The word "unnecessary" is used advisedly-for there is
                                                                                                          no indication whatever that the products from any of these marine
                     SUPPLEMENTAL VIEWS OF CONGRESSMAN                                                    mammals are in any way needed by American citizens. Indeed, by
                                     PETER N. KYROS                                                       discouraging the use of luxury furs from animals in danger of becom-
                                                                                                          ing extinct, the United States would have the opportunity of setting a
             While H.R. 10420 constitutes a much-needed and unquestionably                                precedent and example for the entire world. The issue here is simply
           well-intentioned effort to preserve and protect the marine mammal                              humaneness, and it ought not to be overlooked.
           population of the world, that effort ought to have been-and could                                 In conclusion, I would like to commend our Chairman John D.
           reasonably have bccn-strengthened in at least two vital areas.                                 Dingell of the Subcommittee on Fisheries and Wildlife Conservation,
             First and foremost, the sixty-day moratorium provided by the bill                            for exercising fairness throughout these long proceedings and patience
           on the taking of marine mammals is insufficient, and should have                               in seeing that all viewpoints were heard from, and, indeed, for setting
           been established for at least two years for the following good reasons:                        the entire framework whereby some of the things I have discussed
             (1) As the bill itself states, "The Congress finds that there is in-                         here might be put into effect in the near future.
           adequate knowledge of the population dynamics of such marine mam-                                                                                         PFTER KyRos.
           mals and of the factors which bear upon their ability to reproduce                                                                 C)
           themselves successfully." We simply do not know enough about these
           animal species, neither with regard to their levels of intelligence nor
           how useful they may be to man. More important, we do not know
           how many animals can be killed before we do irreparable damage to
           our ecological system; the risk is not worth the taking.
             (2) Most, if not all, animal species need a chance to replenish
           their stocks. Man is fast making diminishing species out of almost all
    4@-    animals; for whatever purpose-whether scientific research or moral-
           ity and humaneness-we might give these animal stocks the chance to
           replenish.
             (3) The economic repercussions of a two-year moratorium could
           hardly be deemed serious. In view of the fact that we do not know
           what long-range harm we might be doing to our ecological system,
           the reasonable and conservative thing to do-in our own best inter-
           ests-is to accelerate our research and study during a sufficiently
           lengthy period of time in which no further killing is permitted.
             (4) Man's decimation of the environment is placing the animal
           world under great stress. We spoil our fresh waters with pollutants,
           and cover our foligae [sic] with pesticides which are then transported
           by birds to far-reaching areas-all with devastating effects upon the
           animal world. A moratorium would allow us to determine the specific
           effects of toxic and non-toxic pollutants on marine mammals. This
           would, of course, include not only living adult animals, but also their
           eggs or unborn young.
             In short, exploitation of our marine mammals must first depend
           upon an adequate study of the living animals and their ecological
           relationships. Only then can sound management practices ensue.
             The second area in which H.R. 10420 ought to have been strength-
           ened is in the import restrictions and limitations it provides. While
           the bill establishes certain categories of endangered species or prod-
           ucts therefrom which may not be imported into this country, I suggest
           that an across-the-board ban on importation, possession, or transporta-
           tion of these animals or their products-except for scientific research
           under the expressed terms of the Act-would be both tenable and
           entirely legitimate.
                                              (55)


                                                                                    01









                                                                                                                                                           Calendar No. 824
                                                                                                           92D CONGRESS                     SENATE                           REPORT
                                                                                                            2d Session                                             f    No. 92-863




                                                                                                                     MARINE MAMMAL PROTECTION ACT OF 1972



                                                                                                                              JuNH 15, 1972-Ordered to be printed


                                                                                                                      Mr. HOLLINGS@ from the Committee on Commerce,
                                                                                                                                   submitted the following

                                                                                                                                         REPORT
                                                                                                                                         together with

                                                                                                           SUPPLEMENTAL INDIVIDUAL, AND MINORITY VIEWS

                                                                                                                                    [To accompany S. 28711

                                                                                                             The Committee on Commerce, to which was referred the bill (S.
                                                                                                           2871), to protect marine mammals; to establish a Marine Mammal
                                                                                                           Commission; and for other purposes, having considered the same, re-
                                                                                                           ports favorably thereon with an amendment in the form of a substi-
                                                                                                           tute and recommends that the bill as amended do pass.

                                                                                                                                           PURPOSE

                                                                                                             The purpose of this bill is to conserve and protect marine mam-
                                                                                                           mals by regulating activities of U.S. citizens and activities of all per-
                                                                                                           sons carried on within the jurisdiction of the United States. The
                                                                                                           principal mechanism is a permit system administered by the Secretary
                                                                                                           of the Interior or the Administrator of the National Oceanic and At-
                                                                                                           mospheric Administration of the Department of Commerce. The Ma-
                                                                                                           rine Mammal Commission is created to assist in achieving this goal.

                                                                                                                       BACKGROUND AND NEED FOR NEw LEGISLATION

                                                                                                             The committee has learned that man's dealings with marine mam-
                                                                                                           mals have in many areas resulted in over-utilization of this precious na-
                                                                                                                                              (1)








                                                  2                                                                                                     3

            tural resource. Many of the great whales which once populated the oceans                             received a report from the Canadian Committee on Seals and Scaling,
            now have dwindled to the edge of extinction and although they have been                              which concluded that between 1950 and 1970 the stock of harp seals has
            placed on the U.S. endangered species list, are still being hunted by other                          been cut in half and that the trend toward decrease is continuing, and
            nations. Eight species of whales currently on the endangered list include                            recommended a moratorium be established. However, no U.S. citizens
            the blue, gray, bowhead, right, fin, sei, and humpback, all of which are                             participate in this hunt, and only a small proportion of the product of the
            baleen whales; and the sperm whale, which is a toothed whale. The com-                               Canadian hair seal industry does reach the U.S. market at this time.
            mercial hunting of whales has reduced these great mammals to the point                                  The present estimate on the population of the walrus is around
            that many may never be able to return to their original population size                              100,000, all living in the Bering Sea. These animals appear             to per-
            and balance in nature. Commercial whaling since 1948 has been under the                              form an important function because their methods of bottom              feeding
            jurisdiction'of the International Whaling Commission. Much of the testi-                             stir up valuable nutrients. Partly because of this, the Bering Sea is
            mony heard by the Subcommittee on Oceans and Atmosphere indicated                                    three to four times more productive than any other open ocean on the
            that the job being done by this Commission has been far from successful.                             globe. There is no current agreement between nations on the taking
               The porpoises and dolphins are small toothed whales. Few are                                      of the walrus, and Russian vessels allegedly have been seen             killing
            taken deliberately at this time, but as many as 100,000 to 300,000                                   these mammals on the pack ice. Natives do take the walrus,              and at-
            porpoises per year may have been killed by the U.S. tuna industry                                    tempts have been made to begin sport hunting of walrus.
            incidental to the catching of yellowfin tuna. The vessels of 12 na-                                     The eared seals include sea lions and fur seals. Although sea lions
            tions, Bermuda, Cuba, Canada, Costa Rica, Ecuador, France, Japan,                                    themselves are not commercially utilized to any significant extent by
            Mexico, Panama, Peru, Spain, and the United States, are involved in                                  citizens of the United States, the fur seal population of the North
            the porpoise-related, purse-seining of yellowfin tuna in the eastern                                 Pacific Ocean is harvested annually. Estimates of the size of the fur
            tropical Pacific Ocean. Porpoises have drowned in the purse-seine                                    seal herd have ranged from a low of several hundred thousand shortly
            nets because fishermen encircle the schools in order to capture the                                  after the turn of the century, when pelagic, or open ocean, scaling
            tuna which are associated with the porpoise. Because of expanding                                    nearly wiped out the herd, to a present population estimated between
            awareness of this problem, the industry has worked with scientists                                   1.3 and 1.5 million. It has been the desirability of the dressed fur of
            from the National Marine Fisheries Service to employ methods which                                   the Alaska fur seal which made this animal subject to substantial
            reduce the hazard to the three species involved: spinners, spotters and                              over- commercialization in the period prior to 1911. History shows
            white bellies. All of these aforementioned nations are members of the                                that one of the major incentives for the purchase of Alaska by the
            Inter-American Tropical Tuna Commission, but only the U.S.-flag                                      United States from Russia was the fur seal resource. Since 1911,
            vessels would be subject to domestic law to regulate the taking of                                   there has been a treaty between the United States, the Soviet Union,
            tuna. Additionally, it is known that the Japanese are taking more than                               Canada and Japan regulating the taking of fur seals and banning pe-
            50,000 porpoises annually for human consumption and are considering                                  lagic harvesting of these animals. It has been this treaty which is
            expanding this fishery.                                                                              responsible for returning this herd to its present day size. The annual
               The legislation also addresses itself to other marine mammals, in-                                kill of fur seals takes place on St. Paul and St. George Islands in the
            cluding both fur seals     and hair seals, the walrus, the sea otter, the                            Pribilof Islands of the Aleutian Chain and certain other Islands under
            polar bear, and the manatee. Hair seals, or the earless or true seals,                               the jurisdiction of the U.S.S.R. Since the fur seal is polygamous by
            are little utilized by U.S. citizens other than natives of Alaska. These                             nature, scientists maintain there is a number of bachelor males which
            include the harbor seal, the ring seal, the gray seal, the monk seal,                                can be taken annually without damaging the reproductive capacity of
            Ross' seal, leopard seal, the hooded seal and the sea elephant. Few of                               the herd.
            these are considered endangered. The Department of the Interior does                                    A major reason for the controversy involved in this situation has
            list the Caribbean monk seal as endangered, and it is probably ex-                                   been the method by which seals are killed. Crews of Aleuts separate
            tinct. The, ribbon and Hawaiian monk seal are designated as "rare.9'                                 and drive a number of bachelor males to a killing area each morning
            The most well known of these species is the Canadian harp seal,                                      during the 6-week season. The killing is accomplished by striking the
            which is the subject of an annual spring hunt by the Canadian and                                    seals over the head with a long wooden club. Efforts are made to
            Norwegian governments. This year, the International Commission on                                    take only 3- and 4-year-old bachelor seals. Scientists and repre-
            the Northwest Atlantic Fisheries (ICNAF), in cooperation with the                                    sentatives of the government have maintained that the fur seal herd
            Canadian and Norwegian governments, reduced by nearly one-half the                                   management program in the Pribilof Islands is one of the finest ex-
            allowed taking of the harp seal, down to 150,000. The hunt was con-                                  amples in the world of conservation of wildlife. The Fouke Fur Com-
            ducted between March 12 and April 24, 1972, and this committee was                                   pany of Greenville, S.C., has the sole contract on the processing of
            informed that 123,000 were actually taken, compared to 222,000 the                                   fur seal skins, because it is the only firm in the world which has the
            year before. Harp seal pups are born on the ice flows on the Gulf of                                 process capable of changing the raw fur seal pelt into a finished gar-
            St. Lawrence, and is is the killing of these "Whitecoat" pups, from                                  inent of high fashion beauty.
            several days to several weeks of age, which has aroused public indig-
            nation. On January 18, 1972, the Canadian Ministry of Environment



                          wig                  @t              I         I   IFF              I        I







                                                   4                                                                                                     5

                The Department of Commerce, National Oceanic and Atmospheric                                          In an effort to determine the current status of various species and
             Administration, conducts the fur seal operation on the Pribilof Islands,                              population stocks of marine mammals, the Committee on Commerce,
             providing the primary source of employment to the 600 persons who                                     Subcommittee on Oceans and Atmosphere, conducted five 'sessions of
             inhabit the islands. These native Aleuts are employed to kill the seals                               hearings in Washington and held additional hearings in Alaska, on
             and perform preliminary treatment of the skins before their shipment                                  May 13, 14, and 15. The Committee has determined that man's hand
             to the mainland for final processing.                                                                 upon the environment has been severely heavy for some species of
                The polar bear is one of the marine mammals covered by this leg-                                   marine mammals. Polar bears have been rounded up by airplane to be
             islation which is considered to be the closest to endangerment. Its                                   shot by sportsmen. Whales have been hunted to the brink of extinc-
             only natural predator is man and other bears, and it has been hunted                                  tion. Commercial fishermen have utilized the dolphin to catch certain
             for years by natives and by big game hunters. This legislation would                                  species of tuna, to the detriment of the dolphin itself.
             complement Public Law 92-159, which the committee worked on in                                           The only international agreement affecting any marine mammals
             1971, aimed at banning the hunting of wildlife from aircraft. Polar                                   under the jurisdiction of the United States is the North Pacific Fur
             bears are found in Russia, the United States, Denmark (Greenland),                                    Seal Convention. This treaty provides that seals may be taken only in
             Norway, and Canada. The committee received testimony which indi-                                      their rookeries. The agreement provides 70 percent of the share of
             cated for the first time that there are separate and distinct populations                             the operation on St. George and St. Paul islands to the United States
             of bears off the Alaska coast and in the other Arctic nations as well.                                and 15 percent each to Canada and Japan. Russia receives 70 percent
             Although the committee received information that polar bear herds under                               of the seals taken on its islands, while Canada and Japan get 15 per-
             the jurisdiction of the United States maintain a good rate of reproduc-                               cent each. The present treaty does not expire until 1976.*
             tion, testimony also indicated a decline in the size of the bears taken.                                 The committee has considered not only S. 2871, but H.R. 10420,
             Witnesses stated that the use of aircraft to hunt and harass these ani-                               the bill which passed the House of Representatives March 9, 1972,
             mals may have a direct impact upon the bear population. Bear cubs                                     and a number of other Senate bills. These include S. 1315, introduced
             remain with their mothers approximately 2 years after birth and fe-                                   Match 23, 1971, and S. 2579, introduced September 24, 1971, by
             males breed every 3 years. When the State of Alaska recognized that                                   Senator Fred Harris; S. 685 and S. 2639, introduced by Senator Bob
             the size and age of the bears being shot by hunters was going down,                                   Packwood of Oregon; Senator Ernest F. Hollings of South Carolina
             it instituted a permit system and reduced the kill. Russia, however,                                  introduced S. 3112; and Senator Ted Stevens of Alaska introduced
             has banned the hunting of polar bears since 1956, claiming stocks                                     S. 3161 at the request of several wildlife groups.
             have been depleted, and Norway plans to stop hunting of polar bears                                      The basic issue before the Committee was whether to ban outright
             from vessels. Only natives are permitted to take bears in Greenland.                                  the killing of any marine mammal under the jurisdiction of the
             Canada has a sophisticated management program dividing polar bear                                     United States, or whether the government should continue to allow
             areas into regions and granting quotas to the villages of each region.                                supervised and restricted taking of certain mammals. No doubt, a
             Motorized vehicles are not allowed to be used in the hunting of polar                                 sizeable segment of public opinion in the United States opposes the
             bears in Canada. These nations have considered drafting an interna-                                   indiscriminate slaughter of marine mammals. But a strong body of
             tional treaty, which was first proposed by Russia. However, as of                                     evidence was presented to the committee that total and complete pro-
             June, 1972, no action has been taken on this matter.                                                  tection without scientific management is not necessarily the best an-
                Once hunted almost to extinction, the sea otter has made a tremen-                                 swer to solving the problems of marine mammals. The committee has
             dous resurgence of population in California and Alaska waters. The                                    determined that the best answer to questions on the conservation of
             southern sea otter, however, faces a definite threat to its health and                                marine mammals must be the application of scientific principles and
             safety from pollutants and increasing small craft traffic in the Mon-                                 knowledge separately for each species of marine mammals. The com-
             terey, Calif., area. Scientific studies have indicated a correlation be-                              mittee believes it can justify the need for protection of the polar bear
             tween the high level of chlorinated hydrocarbons and heavy metals                                     because there is evidence that the polar bear population has gone
             present in the tissues of many of these otters and a corresponding                                    down steadily in recent years through increased game hunting, result-
             reduction in the reproductive rate.                                                                   ing in ever smaller "trophies" for hunters. On the other hand, the fur
                With a total population that may number no more than 1,000 the                                     seal population in the Pribilofs seems to be holding its own. Com-
             future of the manatee in the United States is definitely in a precari-                                plete protection of the fur seal would require abrogation of the Fur
             ous situation. Living members of the order Sirenia include three spe-                                 Seal Convention and a probable return to pelagic sealing by the Japa-
             cies of manatees and the dugong, all of which are dwindling and all                                   nese, who have sought quota increases recently.
             of which are listed as rare or endangered by the International Union                                     The Committee has asked our scientists about the populations of
             for the Conservation of Nature and Resources. An animal which once                                    various marine mammals and a host of complex questions relating to
             ranged from the coast of the Carolinas all the way to Texas, mana-                                    their environmental health. In seeking answers, the committee found
             tees are now found only in coastal waters around the Florida penin-
             sula. These animals are also jeopardized by new forces-development,                                      *The Committee was pleased to note that the Secretary of Commerce on June 7,
             pollution, and watercraft.                                                                            1972, proposed making a fur seal sanctuary out of St. George Island for further
                                                                                                                   study of fur seal population dynamics.







                                                6                                                                                                  7

           confusion between social decisions and scientific knowledge. A good ex-                            competitive, labor-intensive bait boat and long-line fishing. Since this is
           ample of the confusion is the matter of the fur seal. Some groups insist                           completely unrealistic, the industry, we are convinced, would shift from
           that the present population is only one-third of what it was 20 years ago,                         the American flag to a flag of convenience and simply avoid the regula-
           and that man's commercial exploitation is the cause for the alleged de-                            tions. Tuna is now a worldwide commodity. Loss of the American market
           cline. The committee determined that previous high estimates of the fur                            would be a severe blow, but one which would not decrease fishing in the
           seal population (appearing in a popular encyclopedia) were based upon                              Southwest Pacific, and certainly more dolphins will be killed as more
           population dynamics methods which are now considered completely erro-                              nations compete for fish.
           neous. The committee has concluded that our knowledge of marine mam-                                  (3) During the moratorium, the Secretary is granted authority, sub-
           mals is not nearly great enough for either proper conservation or                                  ject to procedures of the Act on hearings and judicial review, to make
           commercial utilization as we have known it in the past. Additionally, it is                        wildlife management decisions permitting exception to the moratorium
           found that an unfortunate argument has developed over the concepts of "pro-                        when such decisions would be in accordance with the policy of the
           tection" and "management." The committee, however, agrees with an eminent                          Act to preserve and conserve the animals involved. This authority
           scientist who has explained, "man has already perturbed all of the earth's                         would include the power to determiine [sic] that a State's laws on
           ecosystems and it is now our clear duty, as conservationists, to protect the                       marine mammals could apply. The criterion which must be met in any
           future health of these ecosystems by managing them wisely at an interna-                           decision to waive the moratorium, or to defer to State law, is that the
           tional level."                                                                                     principles of resource protection and conservation embodied in this
                                                                                                              Act must be maintained. Should a decision to make an exception to
                                      GENERAL DESCRIPTION                                                     allow taking or importation pursuant to the Federal Act be made by
                                                                                                              the Secretary, then the sections of the Act on prohibitions, regula-
              The bill as reported by the committee would establish the follow-                               tions and permits will apply. If a decision is made to defer to State
           ing framework for protection and conservation of marine mammals :                                  law, then the provisions of State law will apply. In the case of im-
              There is created a 15-year moratorium to provide enough time for                                portations, an additional requirement must be met; namely, that the
           certain species of animals to reproduce and proceed through a life                                 mammal program of the country of origin must be consistent with the
           cycle without the threat of commercial or sport hunting.                                           policies of the Act. If it is found not to be consistent, then the im-
              There are certain important exceptions to this moratorium:                                      portation cannot be allowed for any purpose whatsoever. The whole
     00       (1) The prohibitions of the Act do not apply to the taking or im-                               concept of subsection (a) (3) (A) of section 101 is to give the Secre-
           portation of mammals or marine mammal products pursuant to inter-                                  tary leeway to act. Fifteen years is a long time, and there certainly
           national agreements. Thus, no permit is necessary (and therefore the                               will be instances when he will find it necessary, even helpful, to
           moratorium does not apply) for the taking of Alaska fur seals pursu-                               issue permits for taking or importation. An example might be permis-
           ant to the North Pacific Fur Seal Convention. Since this harvest of                                sion for the importation of a marine mammal product, not specifically
           fur seals will be under the strict control and management of the Na-                               prohibited in section 102. The Secretary would have authority, work-
           tional Oceanic and Atmospheric Administration and has as its goal                                  ing in consultation with the Marine Mammal Commission, to issue a
           the conservation of this species, the committee has determined that                                permit for such importation. But, as mentioned before, the nation of
           the permit system shall not apply.                                                                 origin would have to meet the stern test of conserving its marine
              (2) Permits are not required for commercial fishermen who take                                  mammals in a way consistent with the Act. Of course, any application
           marine mammals incidental to their fishing operations during the 2-                                for importation would be required to meet the tests prescribed in the
           year research period provided in the Act. However, this is not to be                               prohibitions, regulation and permit sections of the Act, including judi-
           interpreted as permission for the fishing industry to continue the un-                             cial review and public participation.
           regulated killing of thousands of dolphins. To the contrary, it is the                               Another example might be exercise of authority granted under sec-
           committee's intent that regulations be imposed as soon as practicable                              tion 109 to cooperate with States. The committee believes that in
           to minimize marine mammal fatalities through the use of currently                                  some cases, during the moratorium, states may be better equipped to
           available technology, which might include the Medina net with escape                               conduct marine mammal management programs than the Federal Gov-
           panel. Results of research in the yellowfin tuna fishery in 1972 show                              ernment. It is envisioned that the Secretary, upon making such a find-
           that with careful utilization of known technology, porpoise mortality                              ing, could exercise his authority under this subsection to allow the
           can be significantly reduced. The committee is convinced that the in-                              States to enforce their laws if these laws are consistent with the Act
           dustry will comply with strong Federal regulation and will cooperate                               or any rules issued by Federal authorities pursuant to this Act. Once
           with scientific research to find the safest practicable tuna fishing                               this determination is made, the States would have to comply with the
           methods. After the 2-year research period, permits are required and                                moratorium and all other sections as specified. But the granting of
           are authorized to be issued in accordance with the Act. While it                                   this authority would give the States authority, within their jurisdic-
           should be the goal of Congress and the Executive eventually to elimi-                              tion, to issue management decisions along the same lines as specified
           nate totally the killing of porpoises, present technology is not ade-                              for Federal authorities.
           quate to the task. Imposing a ban on incidental taking of porpoises                                  (4) Additionally, during the moratorium, permits may be issued for
           would require the American tuna industry to scrap hundreds of millions                             the taking or importation of marine mammals for scientific research or
           of dollars of investment in purse-seining tuna clippers to return to un-

                         No                            @1        I         or -I          a     or -1         1%







                                                  8                                                                                                  9

               (5) for display  in public or privately owned oceanariums. However,                             (whales and porpoises) and the order Pinnipedia (seals), except walruses.
            strict  regulations are to be imposed by this legislation on such prac-                            All other marine mammals, including the walrus, sea otter, manatee, and
            tices.                                                                                             polar bear, are delegated to the Secretary of the Interior. The argument
               (6) Finally, the committee has, within certain limitations, exempted                            was made to the committee that since the Department of Commerce is
            from the Act the    taking of marine mammals by native Alaskan Eski-                               commercially oriented, all responsibility should be turned over to the Sec-
            mos, Aleuts and Indians. The Subcommittee on Oceans and Atmos-                                     retary of the Interior to enforce the provisions of the bill. The committee
            phere conducted     3 days of exhaustive hearings in Alaska, taking                                determined that the National Oceanic and Atmospheric Administration
            testimony from more than 90 native villagers. The findings were that                               (NOAA) is the agency presently best equipped to deal with marine mam-
            most villages of northern Alaska depend upon marine mammals not                                    mals on an ecosystem basis in the oceans. Virtually all the laboratories,
            only for food, clothing and implements, but utilize products from                                  experienced personnel and other facilities needed to deal with the marine
            seals, whales, and walruses as the basis for their small cash economy.                             mammals now under the Department of Commerce have been transferred
            An Eskimo hunter may bring in a seal, which is cut up for food, pelt                               to that Department. The Department of Interior is best equipped to deal
            and seal oil. Any excess beyond family needs can be sold to neigh-                                 with those mammals which maintain a close proximity to land, such as
            bors or turned in at a village store for credit on gasoline, fuel oil or                           the walrus and polar bear. NOAA is a new agency. Its main purpose, as
            ammunition. Carvings and native handmade crafts, and clothing, cre-                                sanctioned by Congress in Reorganization Plan No. 4, was to consolidate,
            ated from marine mammals, are a continuing manifestation of ances-                                 rationalize and thereby improve, the principal civilian Federal programs in
            toral cultural patterns, and must not be extinguished by act of                                    the oceans and atmosphere (including conservation of living creatures,
            Congress.                                                                                          such as marine mammals). It has begun to create a strong environmental
               There is additional authority for the Secretary to exempt persons                               record for itself, and appears to be making progress toward fulfilling the
            from the provisions of the Act for no more than I year from the date                               goals set for it by Congress. To remove ocean mammals from its jurisdic-
            it takes effect. This concept comes directly from the Endangered Spe-                              tion now is unwarranted and would undermine its whole purpose. There-
            cies Conservation Act and is aimed at preventing cases of undue cco-                               fore, the committee has determined to retain the allocation of
            nomic hardship. A case in point could be an importer with a                                        responsibilities between the two departments.
            warehouse full of marine mammal products which would be banned                                        There are some advantages, of course, in placing all marine mam-
            from importation under the Act. Obviously, the committee does not                                  mals under the aegis of a single agency which deals with the natural
            intend economic ruin for anyone as the Act begins to take effect.                                  resources of the nation. President Nixon has proposed a Department
               In addition to the special rules applicable during the moratorium,                              of Natural Resources, but should such a department not become a
            the bill authorizes and directs the Secretary and Administrator to es-                             reality within the reasonably near future, the committee is prepared to
            tablish general regulations on taking and importing by species of ma-                              reexamine the issue of marine mammal jurisdiction along with the
            rine mammals, and to invite full public participation in this                                      virtues of consolidation of the program under a single department.
            decision-making process.                                                                              The bill provides $4,500,000 annually for research. Typical areas
               Once these regulations are established and affirmed, should they be                             of research may include Alaska; the Pacific Northwest and Califor-
            tested in court, permits then may be issued. However, the applicant                                nia, both of which have local mammals as well as fleets involved in
            must prove to the satisfaction of the Secretary or Administrator that                              the porpoise related tuna fishery; the eastern tropical Pacific high
            the proposed action will not be inconsistent with the purposes and                                 seas where the bulk of the tuna fisheries are located; the eastern At-
            policies of the legislation.                                                                       lantic high seas area where there is a growing tuna fishery; and the
               In addition, the Departments of Commerce and Interior are directed                              New England area and Florida, which have small local populations of
            to mount immediate research programs on marine mammals. As part                                    marine mammals. In addition, of course, whales occur throughout the
            of the research and regulatory responsibility, the agencies are author-                            global oceans. The committee believes that it has provided sufficient
            ized to work closely with states. Should any state adopt laws and                                  funds within this legislation to launch a marine mammal research pro-
            regulations relating to individual species and these laws are found by                             gram to gain sufficient knowledge to make intelligent conservation
            the Secretary or Administrator to be consistent with the provisions of                             decisions. Knowledge gained from this research will ultimately be
            the Act, the State laws could prevail. There is no intention of the                                used to develop an overall understanding of ocean ecology. Any re-
            committee to provide unnecessary Federal preemption of State laws in                               search program should include the following basic objectives specially
            cases where States are fully capable of carrying out aggressive en-                                referred to in section 112 of the Act: the incidental taking of certain
            forcement procedures.                                                                              species of porpoise in the tuna fishery must be reduced to the lowest
               The committee was faced by the question of divided jurisdiction                                 level practicable, consistent with the latest and most competent tech-
            between the Department of the Interior and the Department of Com-                                  nology that science can devise. The committee has authorized a $2
            merce's National Oceanic and Atmospheric Administration. Consider-                                 million, 2-year program to devise new methods of netting and tuna
            able study was made of the job now being done by both                                              boat operating procedures which will reduce the killing of marine mam-
            Departments, and a decision was reached to maintain the division                                   mals. The committee has provided a 2-year period because it is
            created under Reorganization Plan No. 4, which delegates to the
            Department of Commerce, all responsibility affecting the order Cetacca








                                               10                                                                                               11

           believed that science can come up with new systems within that time.                             research affecting marine mammals. The Commission will be assisted by
              Additionally, our scientists might consider the overexploitation of                           a nine-member Scientific Advisory Committee. Since the role of the Com-
           the depleted stocks of large whales. This could include a detailed                               mission is consultative, it was determined that the amount specified for
           review of population dynamics of exploited whales as well as a pro-                              the Marine Mammal Commission should be no more than $500,000 per
           gram to monitor the abundance of all whales, including methods of                                year, a fund sufficient to provide for the review of research, permits, and
           defining stocks, biochemical analysis and use of other techniques                                regulations as well as other items of concern to marine mammal protec-
           such as satellites and sonar.                                                                    tion and conservation. It was agreed that the Commission should not be-
              The United States needs increased knowledge of the distribution,                              come a separate funding agency, and that research should be carried out
           range, numbers and biology of marine mammals in low abundance,                                   by existing agencies and universities or other groups. It is believed, how-
           including the Hawaiian monk seal, ribbon seal, Florida manatee,                                  ever, that the Commission itself can be a major source of assistance to
           Guadaloupe fur seal, some whales and, in local areas, the gray and                               the Government in identifying and solving the problems now faced by
           harp seals. (The Caribbean monk seal may already be extinct.) Addi-                              various species of marine mammals.
           tionally, there should be close observations of increasing reports of                               The committee considers that the adoption of this bill will place
           Soviet staling and walrus killing expeditions in the Bering Sea.                                 the United States in a position of world leadership in protection and
           NOAA estimates that the Soviets and Alaskans are estimated to har-                               conservation of marine mammals. The committee wishes to emphasize
           vest 50,000 to 75,000 ice seals and about 4,000 walruses annually.                               the need for international cooperation. The laudable but unilateral de-
           And there are indications that the U.S.S.R. is constructing 23 new                               cision to place whales on the endangered species list has not resulted
           combination sealing-fishing vessels.                                                             in significant reduction in the harvest of whales by the major whaling
              Contaminants are being concentrated in the flesh of marine mam-                               nations, Japan and the Soviet Union. Moreover, with sealing in the
           mals in increasing amounts. Premature birth among California sea li-                             Antarctic a pending reality, even further communication and coopera-
           ons has occured [sic] frequently with almost no survival among those                             tion are needed between nations to prevent an increased slaughter of
           pups which are born prematurely. Studies on nutrition and diseases of                            these animals for commercial purposes without a complete under-
           marine mammals should be carried out, including close study of pesti-                            standing of the population dynamics of those animals in that part of
           cides and contaminant residues in tissues.                                                       the world. It is believed that this legislation can provide a start to
              Basic life history and population information ought to be obtained                            assure that future generations will be able to enjoy a world populated
    CD     for each marine mammal of concern to the United States. This should                              by all species of marine mammals.
           include all previously mentioned mammals as well as the small ceta-
           ceans, elephant seals, sea lions, harbor seals, Antarctic seals and sea                                                SECTION-BY-SECTIoN ANALYsis
           otters. All of these animals are a part of the ocean biomass and are
           important in maintaining an ecological balance.                                                  Short Title
              Finally, information should be obtained on marine mammals so that                                Section 1. The Act may be cited as the "Marine Mammal Protec-
           science can make an adequate interpretation of the entire marine envi-                           tion Act of 1972".
           ronment to predict what will happen to marine mammals under differ-
           ent management programs and increasing utilization of marine                                     Findings and Declaration of Policy
           resources by society and industry.                                                                  Sec. 2. (1) This subsection finds that certain species and stocks of
                                                                                                            marine mammals may be threatened with extinction or depletion by
                                                                                                            man's uncontrolled activities.
              The committee has proposed what it considers to be a strong inter-                               (2) This subsection stresses the value and importance of marine
           national program affecting marine mammals. One of the major find-                                mammals to the stability of the ecosystem of which they are a part
           ings of the committee study is that unilateral action by the United                              and provides that they should not be permitted to diminish below
           States affecting any species or subspecies of marine mammal could be                             their optimum sustainable population. Emphasis is placed on the need
           fruitless unless other nations involved in the taking of marine mam-                             to protect those geographic areas of significance for each species of
           mals work with the United States to preserve and protect these crea-                             marine mammals from adverse activities.
           tures. A good example of this is the involvement of the tuna industry                               (3) This subsection states that not enough is known of the ecology
           with the porpoises in the Southwest Pacific. The use of the purse-                               and population dynamics of all marine mammals.
           seine method to catch tuna is expanding rapidly. France, Mexico,                                    (4) This subsection finds that immediate negotiations should be un-
           Spain, Japan, Canada, and Panama are building tuna clippers to take                              dertaken to encourage the development of internatinal (sic] arrange-
           advantage of the improved technology and to compete in the world                                 ments for research on and conservation of all marine mammals.
           tuna market. Should the United States act alone in protecting por-                                  (5) This subsection indicates that marine mammals and their prod-
           poises there is nothing to indicate that other nations will follow suit.                         ucts either move in interstate commerce or affect the ecosystems of
           Therefore, the Act includes strong directives on international coopera-                          which they are a part in such a way as to affect other animals and
           tion and coordination.                                                                           products, and the protection and conservation of marine mammals is
              The Act also creates a Marine Mammal Commission, which will be                                necessary to insure the continuing availability of such products which
           a five-member group to review existing and proposed programs and                                 move in interstate commerce.

                                            10W       I Pr -I







                                                   12                                                                                                      13

                (6) This subsection states that marine mammals are resources of                                         (12) "Take" is defined as harassing, hunting, capturing, or killing
             great significance and that it is Congressional policy that they should                                 any marine mammal or attempting to do so.
             be protected and encouraged to develop to the greatest extent feasi-                                       (13) "United States" includes all lands over which the U.S. Gov-
             ble, commensurated with sound policies of resource management. It is                                    emment has jurisdiction.
             further stated that the primary objective of their management should                                       (14) "Waters under the jurisdiction of the United States" means
             be to achieve an optimum sustainable population keeping in mind the                                     waters out to the 12-mile limit.
             health and stability of the marine ecosystem, as well as the optimum                                       (15) "Management" and "conservation" refer to the collection and
             carrying capacity of their habitat.                                                                     application of biological information necessary to keep animals within
             Definitions                                                                                             a given species or population at the optimum carrying capacity of
                                                                                                                     their habitat. The scope of this definition includes all those activities
                Sec. 3. This section defines various terms used in the bill.                                         which are part of a modern scientific resource program. This term
                (1) "Depleted" means any case in which (i) a species or population                                   further includes, as appropriate, the periodic or total protection as
             stock is determined either to be threatened with extinction, or (ii)                                    well as regulated taking of any species or population.
             numbers have declined and the decline is continuing or is likely to
             continue, and as a result the species or stock would become threat-                                           TTrLB I-CONSERVAMN AND PROTEMON OF MAME MAMMMS
             ened with extinction within the foreseeable future.
                (2) "District court of the United States" means the various U.S.                                     Moratorium
             district courts.                                                                                           Sec. 101. (a) (1) This subsection provides for a 15-year morato-
                (3) "Humane" in reference to the taking of marine mammals means                                      rium on the taking and importation of any marine mammal or marine
             that method of taking which involves the least possible degree of                                       mammal product subject to certain exceptions. These exceptions in-
             pain and suffering practicable to the animals involved.                                                 clude provision for permits, which may be issued for the taking and
                (4) "Marine mammal" means mammals which are morphologically                                          importation of marine mammals or marine mammal products for pur-
             adapted to the marine environment. The term also includes animals                                       poses of display or scientific research during the moratorium under
             such as polar bears which primarily inhabit the marine environment.                                     certain specific conditions;
             The term also includes parts of marine mammals, including but not                                          (a) (2) provides another exception allowing the incidental taking of
             limited to their fur and skins.                                                                         marine mammals in commercial fishing operations. This exception
                (5) "Marine mammal product" means merchandise composed in                                            would apply to the killing of porpoises in the course of tuna fishing
             whole or in part of marine mammals.                                                                     as well as killing of seals or sea lions when they interfere with
                (6) "Optimum sustainable population" is defined as the number of                                     salmon or other commercial fisheries. During the first 2 years after
             animals which will result in the maximum productivity of the popula-                                    effectiveness of the Act, these takings would be governed by regula-
             tion or species when considered in the context of the health of the                                     tions issued under section 111. Thereafter, they would be permitted
             ecosystem of which the particular species or stock is a part, as well                                   under the usual regulations and permit provisions of sections 103 and
             as the carrying capacity of the habitat.                                                                104.
                (7) "Optimum carrying capacity" refers to the ability of a given                                        (a) (3) (A) grants additional authority to the Secretary, during the
             habitat to support the optimum sustainable population of a species or                                   moratorium, to make decisions affecting marine mammals. It provides
             stock without adversely affecting the ability of that habitat to con-                                   that the Secretary may permit exceptions to the moratorium when
             tinue that function.                                                                                    such exceptions would be in accordance with the policy of the Act to
                (8) "Person" means a private individual or corporate entity or any                                   preserve and conserve the animals involved. The Secretary's authority
             employee of any government.                                                                             would include the power to determine that a State's laws on marine
                (9) "Population stock" or "stock" refers to a group of marine mam-                                   mammals apply in lieu of the Act. The criterion which must be met
             mals of the same species that interbreed when mature. This concept                                      in any decision to waive the moratorium or defer to State law is that
             permits a discrimination between different groups of animals distin-                                    the principles of resource protection and conservation embodied in
             guishable from other populations of the same species.                                                   the Act must be maintained. Should a decision to make an exception
                (10) "Secretary" within the context of this Act refers to the Secre-                                 to allow taking or importation pursuant to the Federal Act be made,
             tary of the Interior or the Administrator of the National Oceanic and                                   then the sections of the Act on prohibitions, regulations and permits
             Atmospheric Administration (NOAA), Department of Commerce, dc-                                          will apply. (In the case of importation, an additional requirement
             pending on the animals for which they are given responsibility. The                                     must be met; namely, that the program for taking marine mammals in
             Administrator of NOAA is given responsibility for all cetaceans and                                     the country of origin must be consistent with the prohibitions and
             all pinnipeds, other than walruses; the Secretary of Interior is given                                  policies of the Act. If it is found not to be consistent, then the im-
             responsibility for all other marine mammals.                                                            portation cannot be allowed for any purpose.) If a decision is made
                (11) "Moratorium" is defined as the cessation of the taking of ma-                                   to defer to State law, then the provisions of that law will apply;
             rine mammals and a ban on the importation of marine mammals and                                         provided, of course, that the State law has been found to comply with
             their products.                                                                                         the Act and continues to do so.








                                                14                                                                                                15

              (a) (3) (B) provides that during the moratorium, except for research                            dangered Species Act authorizes the Secretary of Interior, in order to
            purposes indicated in subparagraph 101 (a) (1), no permit may be is-                              minimize undue economic hardship to a person importing a species of
            sued for the taking of any marine mammal classified as an endan-                                  fish or wildlife that is placed upon the endangered species list, to con-
            gered species or as depleted, and additionally no importation may be                              tinue such importation in such quantities and for such periods not to ex-
            made of any such marine mammal.                                                                   ceed one year as the Secretary deems appropriate. The situation which
              (b) This subsection excepts from the moratorium and other provi-                                will arise upon enactment of the Marine Mammal Protection Act is analo-
            sions of this Act the taking of marine mammals by native Alaskan                                  gous to the situation which occurs under the Endangered Species Act
            Eskimos, Indians or Aleuts who live on the coast of the North Pacific                             when a new animal is placed on the Endangered Species List. Substantial
            or the Arctic Ocean, but only if the taking (1) is for subsistence                                adjustments will be required to take account of the new law just as an
            purposes by natives living in Alaska or (2) is done for purposes of                               importer of an endangered animal which suddenly is placed on the list
            creating and selling authentic native articles of handicrafts and cloth-                          will need to make adjustments in his contracts, etc. The situation is di-
            ing, and (3) in either case is not done in a wasteful manner. This                                rectly analagous[sic] in the case of tunafish processors since, without the
            exemption does not extend to any marine mammal, the taking of                                     special exception, it could happen that a processor would be forbidden to
            which has been prohibited as one belonging to an endangered species                               import tunafish for which he may have contracted because of section
            pursuant to the Endangered Species Conservation Act of 1969. Such                                 102(c).
            subsistence purposes include taking for food, clothing, heating, and                              Prohibitions
            other necessities of life. The subsection specifically defines the term
            "authentic native articles of handicrafts and clothing" to permit sales                              Sec. 102. (a) This section states that it is unlawful, except as pro-
            in interstate and foreign commerce.                                                               vided in sections 101 (moratorium), 103 (regulations), 104 (permits),
              As defined, "authentic native articles of handicrafts and clothing"                             III (gear development research) and 113 (treaties) or any person or
            must be manufactured without the use of mass copying devices in the                               vessel subject to the jurisdiction of the United States to take any
            exercise of traditional native handicrafts, including improved methods                            marine mammals on the high seas. It also prohibits any person or
            of production utilizing modern implements, such as sewing machines,                               vessel or conveyance from taking any marine mammal on waters or
            so long as no large scale mass production industry results. The for-                              lands under the jurisdiction of the United States unless expressly pro-
            mation of traditional native groups, such as cooperatives is permitted                            vided for by an existing international treaty, convention, or agreement
            under the Act. This subsection also permits the sale of edible por-                               to which the United States is a party.
            tions of marine mammals, such as meat, skin, and seal oil in Alaska                                  In addition, it is unlawful for any person to use any port, harbor,
            native villages and towns or for consumption by Alaskan natives                                   or other place under the jurisdiction of the United States in connec-
            presently residing outside the state. It is intended that federal and                             tion with a prohibited taking or to use such port for unlawful impor-
            state authorities both will work with the natives to insure that the                              tation of marine mammals or marine mammal products. The
            taking of any species of marine mammal is accomplished without un-                                subsection further prohibits any person subject to United States juris-
            due loss of such mammals. Examples of some areas in which such                                    diction from possessing, transporting, selling or offering for sale any
            governmental cooperation may be undertaken are the taking of bow-                                 marine mammal taken unlawfully. It also makes it unlawful for any
            head whales, some of which are lost beneath the ice, and alleged                                  person to use, in a commercial fishery, any fishing techniques that
            infrequent incidents of indiscriminate firing into walrus herds by na-                            are in violation of any regulations issued by the Secretary for the
            tive hunters.                                                                                     purposes of carrying out this Act.
              This subsection also allows the Secretary (or the State of Alaska if                               (b) This subsection makes it illegal to import any marine mammal
            such authority is delegated) to place limitations upon the taking of                              within certain specified categories unless that mammal is imported
            any marine mammal by Alaskan Eskimos, Indians or Aleuts if the                                    pursuant to permit issued for legitimate scientific research. The cate-
            Secretary determines any species or stock of marine mammal to be                                  gories of animals are those: 1) pregnant when taken, (2) nursing
            depleted. It is intended that the Secretary, in establishing such limita-                         (either parent or young) or less than eight months old, whichever oc-
            tions, shall designate the species or the stock of the species in ques-                           curs later, (3) taken from a species or stock which has been desig-
            tion, as well as a description of the geographical area involved, the                             nated by the Secretary as depleted or from a species which is listed
            season for taking, or any other factors contributing to such limita-                              as endangered or (4) taken inhumanely. This subsection will bar the
            tions. The limitations shall be lifted as soon as the need for imposing                           import of marine mammals or products taken from the baby Canadian
            them has disappeared.                                                                             harp seal.
              (c) This subsection qualifies the moratorium section further by per-                               (c) This subsection imposes an absolute and permanent ban on the
            mitting the Secretary  to allow persons up to one year as a grace pe-                             importation of animals taken in violation of this title or taken in a
            riod during which they need not comply with provisions of the Act,                                foreign country in violation of the laws of that country. Importation
            as the Secretary determines. It does not apply, however, to persons                               of marine mammal products is banned in cases where importation
            covered by section 101 (a) (2). This exception to the Act only operates                           of the mammal would be banned and in cases where the sale of
            at the discretion of the Secretary, and is designed to minimize undue                             the product is prohibited by the country of origin. Once the Secre-
            economic hardship. The concept is taken directly from section 3(b) (16                            tary has taken steps to control the types of gear that can be used
            U.S.C., 668cc-3(b)) of the present Endangered Species Act. The En-                                in commercial fishing, this section would also ban importation of fish



                                               Wmi                                                                                                               "moo $-Miiii


                                                  16                                                                                                   17

            caught by methods proscribed for fishermen subject to U.S. jurisdiction.                             information, to participate, and if it considers such action appropriate, to
            This subsection will close the United States market to the tuna fish                                 protest against the establishment of these regulations.
            caught in this fashion.                                                                                 (e) This subsection requires the Secretary to report on the status of
               (d) This subsection makes the subsections banning importations                                    marine mammals to the public and the Congress within six months of
            prospective only. It will serve to protect those with inventories of                                 the effective date of the Act and once a year thereafter, and in his
            products at the time these actions become unlawful.                                                  report the Secretary shall outline the actions he has taken, and those
               (e) This subsection states that provisions of the Act will not affect                             measures believed necessary to assure the well being of such marine
            any marine mammal or marine mammal product which was taken be-                                       mammals.
            fore the date that the Act goes into effect.                                                         Permits
            Regulations on taking of Marine Mammals                                                                 Sec. 104. (a) This subsection allows the Secretary to issue permits
               Sec. 103. (a) This section establishes the basic theme of this Act.                               authorizing the taking or importation of any marine mammal.
            It states that the Secretary, on the basis of the best available scien-                                 (b) This subsection requires permits issued under the authority of
            tific evidence and after consultation with the Marine Mammal Com-                                    the Act to be consistent with the regulations prescribed in Sec. 103
            mission, shall issue regulations on the taking or importing of marine                                and states that such permits specify terms and conditions under which
            mammals to insure that such taking or importing would be consistent                                  the animals may be taken or imported. Whenever the reason for such
            with the policies of the Act. There are undoubtedly some cases in                                    taking is overpopulation, before issuing any permit to take a mammal
            which taking or importation are permissable. Indeed there may be in-                                 the Secretary must first consider the possibility of transporting excess
            stances where animal species or stocks may be benefited by removing                                  members of this population to other areas which were formerly the
            excess members or where the health of the ecosystem would be served                                  habitat of such animals.
            by a selected harvesting of members of certain species or stocks. In all                                (c) Scientific research permits or permits for the display of marine
            these cases, the Secretary will establish appropriate regulations which                              mammals by profit and non-profit institutions must be issued by the
            will permit the taking or importing of these animals.                                                Secretary subject to his requirements as to the manner in which those
               (b) This subsection lists the general criteria which may be consid-                               animals may be captured, transported and cared for. These permittees
            ered by the Secretary in the process of prescribing regulations under                                must also report to the Secretary on the ways in which these require-
            the Act. These include a wide range of factors such as the effect of                                 ments have been carried out.
            limitations on present and future animal populations, U.S. treaty re-                                   (d) This subsection authorizes the Secretary to prescribe procedures
            quirements, ecological and environmental considerations, the conserva-                               to carry out his permit authority. It requires him to make public no-
            tion and development of fishery resources and economic and                                           tice of permit applications received and to invite comments from in-
            technological feasibility.                                                                           terested members of the public. Permit applicants must show that the
               The Secretary, for example, in regulating the operations of the tuna                              taking or importation of marine mammals will be consistent with the
            industry with respect to the incidental catching of porpoises must con-                              purposes of this Act as indicated above and with regulations estab-
            sider the technical capability of these fishermen to avoid injury to                                 lished under Sec. 103. The subsection authorizes the Secretary to
            porpoises. It is not the intention of the Committee to shut down or                                  grant public hearings upon request of any interested party, if the re-
            significantly to curtail the activities of the tuna fleet so long as the                             quest is made on a timely basis. The Secretary is instructed to act in
            Secretary is satisfied that the tuna fishermen are using economically                                an expeditious fashion and to make full public disclosure of his ac-
            and technologically practicable measures to assure minimal hazards to                                tion in issuing or denying a permit requested. The subsection also
            marine mammal populations.                                                                           authorizes permit applicants or opposing parties to obtain judicial re-
               (c) The regulations prescribed by the Secretary may include a num-                                view of the issuance or refusal to issue a permit under this section.
            ber of factors: the number of animals to be taken or imported, what                                     (e) This subsection authorizes the Secretary to modify, suspend or
            animals may be taken or imported, when and from where this taking                                    revoke permits to make them consistent with revised regulations un-
            or importing may take place and restrictions on certain fishing tech-                                der sec. 103, or where the permit has been violated. Such actions by
            niques which he has found to cause undue fatalities to marine mam-                                   the Secretary can only take effect after the permittee has had an op-
            mals in the particular fishery involved.                                                             portunity for a hearing. Notice of such modification, suspension or
               (d) This subsection requires the establishment of regulations to be                               revocation must be published in the Federal Register.
            made on the record after opportunity for hearing. Before or at the                                      (f) This subsection requires permits issued by the Secretary to be
            time of announcing proposed regulations, the Secretary is required to                                in the possession of the authorized      person during the process of the
            make available to the public a number of documents: (1) a statement                                  authorized taking or importation or at any other time incidental to
            of the size of the population affected, (2) a statement on the impact                                that taking or importation. The copy of the permit must be physically
            of his proposed regulations on the optimum sustainable population of                                 attached to any container in which       the marine mammal is placed or
            the species or stock involved, (3) the scientific evidence upon which                                be aboard the vessel involved.
            he proposes to base his regulations, and (4) any studies or recommen-                                   (g) This subsection requires the      Secretary to charge a reasonable
            dations relating to these regulations. At this point in the development of                           fee for permits issued, to be done through an informal rulemaking
            the rulemaking procedure the public is given the right, and the necessary                            procedure allowing interested parties to comment.








                                                 18                                                                                                  19

              (h) This subsection authorizes the Secretary to issue general per-                                marine mammal products taken in violation of the Act may also be seized
           mits to persons found to have common needs requiring them to take                                    and disposed of in accordance with appropriate regulations.
           marine mammals, and to promulgate appropriate regulations covering                                      (e) This subsection requires the Secretary to expedite proceedings
           the use of such permits. Fishermen, Eskimos, and others who may                                      when a seizure has taken place. He is required to notify the owner or
           have a continuing problem or need may thus obtain general permits                                    consignee of the seizure of these goods as soon as possible. When
           from the Secretary covering situations which occasionally arise requir-                              appropriate, the Secretary may either hold marine mammals or prod-
           ing them to take mammals destroying their catch or gear. It would                                    ucts, or other cargo, or permit the person concerned to retain them
           also cover incidental taking in fishing operations. While the taking of                              after posting bond. After assessment of civil penalties, the subsection
           some mammals is intentional and not incidental to the fishing opera-                                 permits the Secretary to proceed against the marine mammals and
           tion, there is no way of predicting exactly when these emergency type                                products or other cargo concerned, and forfeited, for appropriate dis-
           situations may arise. The permit would be subject to those regulations                               position. The subsection requires marine mammals and products, and
           which the Secretary requires consistent with the purposes and policies                               other cargo, seized in connection with a criminal violation to be for-
           of the Act and would permit taking only where circumstances require it.                              feited to the Secretary. It allows the forfeiture of property or other
           Penalties                                                                                            items taken in conjunction with the violation. Marine mammal prod-
                                                                                                                ucts, or other cargo, which have been seized must be returned to the
              Sec. 105. (a) This subsection authorizes the assessment of civil                                  owner or consignee, if (a) a civil penalty is assessed, but no action is
           penalties by the Secretary for violation of the Act or permits or regu-                              taken to recover that penalty, or (b) if criminal action is unsuccessful
           lations issued under the Act, in the amount of not more than $10,000                                 and the Secretary has not thereafter commenced proceedings for the
           for each violation. If the penalty is not paid, the Secretary is author-                             imposition of civil penalties.
           ized to refer the matter to the Department of Justice for action.
              (b) This subsection authorizes criminal action and fines up to                                    International Program
           $20,000 for each violation or up to one year imprisonment, or both,                                     See. 109. This section requires the Secretary, acting through the
           for any person who knowingly violates the Act or permits or regula-                                  Secretary of State, to: (1) initiate negotiations for bilateral or multi-
           tions issued thereunder.                                                                             lateral agreements for the protection and conservation of the marine
           Cargo For                                                                                            mammals covered by this Act, (2) initiate negotiations with foreign
     4,               feiture                                                                                   governments that either through their own involvement, or that of
              Sec. 106. This section makes the cargo or the monetary value                                      their citizens or companies, are engaged in commercial fishing opera-
           thereof any vessel or other conveyance under U.S. jurisdiction subject                               tions which the Secretary has found to be unduly harmful to any spe-
           to seizure and forfeiture when such vessel or other conveyance is                                    cies of marine mammals, in order to develop bilateral or multilateral
           employed in any way in the taking of any marine mammal which is                                      treaties for the purposes of protecting such marine mammals, (3) en-
           made unlawful under the Act. Existing customs laws relating to sei-                                  courage the development of other international agreements for the
           zure, forfeiture, and condemnation of cargo are applicable where ap-                                 protection of specific ocean and land regions which are of special
           propriate.                                                                                           significance to marine mammals, (4) initiate the amendment of any
           Enforcement                                                                                          existing international treaties for the protection and conservation of
              Sec. 107.   (a) The Secretary is charged with basic responsibilities                              marine mammals in order to make such treaties consistent with this
           for enforcement of Title 1, except as otherwise provided. He is ex-                                  Act, (5) seek the convening of an international meeting on marine
           pected, however, to utilize other Federal agencies, such as the Coast                                mammals before July 11 1973, for among other things, the signing of
           Guard, for purposes of enforcement.                                                                  a binding international convention for the protection and conservation
              (b) The Secretary may also designate State officers and employees                                 of all marine mammals and further, for the implementation of para-
           as enforcement agents, although they are not considered as U.S. em-                                  graph 3 of this section, and (6) report to Congress within one year of
           ployees for purposes of laws administered by the Civil Service                                       the enactment of this Act on the results of the activities called for
           Commission.                                                                                          under section 108.
              (c) This subsection authorizes U.S. judges and magistrates to issue                                  In addition, the Secretary shall, in consultation with the Marine
           warrants or other process required for enforcement of this Act.                                      Mammal Commission, initiate a study of the North Pacific Fur Seals.
              (d) Ile subsection authorizes appropriate officials to execute warrants                           The study would have as its principal objective the determination of the
           or processes. It further authorizes those officials to arrest persons violat-                        present  status of the population of the fur seal herd. If it is found that
           ing the law in their presence or view, with or without a warrant, and                                the fur seal herd is below the optimum sustainable population and is not
           permits searches of vessels or conveyances either with a warrant or other                            moving   upward toward such level, or has reached that level and is be-
           process, or if the officials has reasonable cause to believe a violation                             ginning  a significant downward trend which is not merely a normal fluc-
           has occurred or is occurring. Such officials may also seize the cargo                                tuation, and he believes the herds to be in danger of depletion, he shall,
           of any vessel where such vessel has been used in violation of the                                    through  the Secretary of State, initiate negotiations for the modifica-
           Act or reasonably appears to have been so used. Marine mammals or                                    tion of  the North Pacific Fur Seal Convention. The principal objec-
                                                                                                                tive of  such modification would be to reduce or halt the taking of
                                                                                                                fur seals to the extent necessary to ensure that the herd will obtain,


      Mali     06M @Nk orm a Irma I I ir                                                                         IT    '_  'N'        '%@ -    -0         1        -q' I       -      - I



                                                                                                                                                                        moo mom


                                                   20                                                                                                       21

             and remain at, the optimum sustainable population. If studies indicate                                   tive of reducing the level of incidental taking of marine mammals. At the
             changes are not necessary in the Convention, or if negotiations to modify                                end of two full years the Administrator shall report to Congress the re-
             the treaty are unsuccessful, steps should be taken to assure the continu-                                sults of his research and development activities. If new fishing methods
             ation of the Convention in order to prevent a return to pelagic scaling.                                 or gear are developed, which are capable of feasible application, the Ad-
             Federal Cooperation With States                                                                          ministrator shall by regulations require the same to be adopted by persons
                                                                                                                      engaged in commercial fishing operations. Persons following the regula-
                Sec. 109. (a) Provides that no state may adopt or enforce any              law                        tions established by the Secretary under this section need not obtain per-
             or regulation on the taking of marine mammals unless it is consistent                                    mits for incidental taking of marine mammals during the first two years
             with this Act and the regulations issued thereunder. If the Secretary                                    of the moratorium. The Secretary is authorized $1,000,000 for the fiscal
             determines that a state's laws are consistent with the Act, the State's                                  year ending June 30, 1973, to carry out this subsection, and a like
             laws prevail and the Act does not apply within that state's jurisdic-                                    amount for the next following fiscal year.
             tion except that the provisions of this section, section 110 and                                            The Administrator and the Secretary of State are further directed
             111(b)(2) through the end of that section apply. The reference in sec-                                   to commence negotiations within the Inter-American Tropical Tuna
             tion 109(a) to section 101 is designed to emphasize that, in order to                                    Commission in order to obtain essential compliance with the Act. The
             qualify, a state's law must provide for a moratorium of the same                                         Administrator and Secretary of State are also authorized and directed
             nature required under the Act. However, the discretionary judgments                                      to request the Director of Investigations of this Commission to make
             and rulemaking activities during the moratorium which the Act pro-                                       recommendations to the member nations of the Commission to utilize
             vides for could be carried on by state authorities and not the Secre-                                    any new commercial fishing method and gear. Additionally, author-
             tary. However, it is the intent that the Secretary does not waive all                                    ized agents of the Secretary are empowered to accompany U.S. com-
             jurisdiction under this section. He should closely monitor the states to                                 mercial fishing vessels, if space is available, on fishing trips for
             make sure that the purposes and policies of the Act are fulfilled and                                    purposes of research and observation.
             be prepared to reassert jurisdiction when and if necessary.                                                 (b) This subsection authorizes the Secretary to guarantee loans
                (b) This subsection authorizes the Secretary to make grants to the                                    made to private borrowers by private lending institutions for the cost
             states to develop and implement laws and programs for the conserva-                                      of equipping, altering, modifying, or improving commercial fishing
             tion of marine mammals consistent with the purposes and policies of                                      vessels in order to comply with any requirements imposed by this Act
             the Act.                                                                                                 or any rules, regulations, limitations, or permits issued by the Secre-
     Ln         (c) Provides that the Secretary shall enter into cooperative agree-                                   tary pursuant to this Act for the purpose of reducing the taking of
             ments with state officials to delegate administration of the Act to the                                  marine mammals incidental to commercial fishing. Minimum restric-
             States.                                                                                                  tions and limitations are established relative to any loan guarantees
             Marine Mammal Research Grants                                                                            made under this subsection, including such things as the interest
                Sec.  110. (a) This subsection authorizes the Secretary to make                                       rates, maturity dates, security or other assurance of repayment, eco-
             grants or to provide other appropriate financial assistance to state and                                 nomic soundness and efficient and wise use of fisheries resources,
             other agencies, public or private institutions, or other persons in or-                                  premium charges, investigation fees, citizenship requirements, and re-
             der to assist them in carrying out research on subjects relevant to the                                  quirements related to the ability, experience, resources, and other
             protection and conservation of marine mammals.                                                           qualifications possessed by the applicant.
                (b) This subsection authorizes the Secretary to establish reasonable                                    This subsection also creates a loan guarantee fund to be used as a
             terms and conditions upon grants provided under the section 110 as                                       revolving fund for the purpose of carrying out the provisions of this
             appropriate to protect the interests of the United States. Any grant                                     subsection. The Secretary is authorized $1,000,000 for the loan guar-
             shall be reviewed by the Marine Mammal Commission prior to being                                         antee fund for the fiscal year ending June 30, 1973, and a like
             given out.                                                                                               amount for the next following fiscal year. The full faith and credit of
                (c) This subsection authorizes annually, for the fiscal year in                                       the United States is pledged to the payment of all loan guarantees
             which the section takes effect and for each of the next four fiscal                                      made under this subsection. Upon repayment of the guarantee, the
             years, $1,000,000 to the Secretary of the Interior and $2,000,000 to                                     Administrator shall be entitled to take on assignment any collateral or
             the Administrator of NOAA.                                                                               security given by the borrower in connection to the loan. Loan guar-
                                                                                                                      antee payments shall be made in cash. If sufficient monies are not
             Commercial Fisheries Gear Development and Financial Assistance                                           available at any given time in the loan guarantee fund, the Adminis-
                Sec. 111. (a) The Administrator of NOAA is authorized to carry                                        trator may through appropriate transactions with the Secretary of the
             out a research and development program in order to devise better                                         Treasury, in effect, borrow sufficient funds to cover any obligations.
             fishing methods and gear with the objective of reducing to maximum                                       A limit of $20,000,000 is set on the amount of loans guaranteed that
             extent practicable the incidental taking of marine mammals during                                        can be outstanding at any given time. An authorization to cover ad-
             commercial fishing operations. The Administrator is authorized to                                        ministrative expenses is included.
             issue such regulations as he deems necessary to carry out this objec-








                                                22                                                                                                  23

           Regulations; Administration                                                                         Environmental Quality, the Secretary of the Interior, the Administrator of
              Sec. 112. (a) This subsection authorizes the Secretary in consul-                                NOAA, and the heads of the National Science Foundation and the Na-
           taion with other appropriate federal agencies, if any, to adopt regula-                             tional Academy of Sciences of individuals who are knowledgeable in the
           tions to carry out the purposes of the Title.                                                       fields of marine ecology and resource management and who are not in a
              (b) All federal agencies are authorized to cooperate on mutually agree-                          position to benefit from the taking of marine mammals. The subsection
           able terms with the Secretary in carrying out the purposes of the Title.                            bars existing government employees from service as a member of the
              (c) This subsection authorizes the Secretary to enter into agree-                                Commission. Members of the Commission may not be reappointed unless
           ments, as necessary, with any person or agency of government in or-                                 serving as a replacement to fill a vacancy.
           der to carry out the purposes of Title I of the Act.                                                   (c) The President shall designate the Chairman of the Commission
              (d) This subsection requires the Secretary to review annually all                                from among the members.
           programs in which the United States participates, involving the taking                                 (d) Members of the Commission shall be compensated on a daily
           of marine mammals on land. If the U.S. activities cannot be adminis-                                rate equivalent of a GS-18 ($138.48 at this time) for each day the
           tered on lands owned by the United States in a manner consistent                                    members are engaged in the actual performance of their duties. They
           with the Act, the Secretary must thereupon suspend the program and                                  are also entitled to reimbursement for travel expenses.
           notify the Congress, recommending legislation to resolve the problem.                                  (e) The Title requires the appointment of an Executive Director
                                                                                                               who will be a full-time employee of the Commission, paid at a rate
           Application to other Treaties and Conventions; Repeal                                               not in excess of that established for a GS-18.
              Sec. 113. This section makes it clear that the Act       is to be applied                        Duties of Commission
           as supplemental to and not in violation of existing international trea-
           ties, conventions or agreements, or any statutes which implement the                                   Sec. 202. (a) The Commission is required to do the following:
           same, which otherwise apply to marine mammals such as those apply-                                     (1) Review existing federal laws and international treaties relating
           ing to whaling and fur seals. Thus the Act does not apply to the                                    to marine mammals, including those dealing with whales and fur
           North Pacific fur seal because this mammal is covered by the North                                  seals.
           Pacific Fur Seal Convention. It also repeals the proviso in the Act                                    (2) Review existing information on the stocks of marine mammals
           (16 U.S.C. 659) regarding the protection of sea lions in Alaskan waters.                            and ways in which they may be managed consistent with the purposes
              This section also grants authority to the Secretary to issue a find-                             of the Act and of the most humane possible ways of taking marine
           ing as to whether this Act shall apply to a violator or whether the                                 mammals; it shall also review the research programs carried out under
           penalties under any international treaty, convention or agreement with                              the Act and all applications for research permits, authorized under
           respect to the protection of marine mammals from takings incidental                                 Sec. 103.
           to commercial fishing operations shall apply. An example might be                                      (3) Review and make recommendations concerning studies made in
           that the Inter-American Tropical Tuna Commission may adopt regula-                                  connection with the protection and conservation of marine mammals.
           tions effecting essential compliance with this Act. In such a case the                                 (4) Recommend to the Secretary, and to other officials, such addi-
           Secretary may declare that section 105 of this Act does not apply and                               tional steps as it considers desirable in the interest of marine mam-
           that penalties provided in the international agreement, treaty or con-                              mals.
           vention do apply.                                                                                      (5) Recommend appropriate policies to the Secretary of State for
                                                                                                               strengthening existing international treaties and recommend additional
           Authorizations                                                                                      measures for protection and conservation of marine mammals.
              Sec. 114. (a) This subsection authorizes $2,000,000 to be appropri-                                 (6) Recommend to the Secretary of the Interior revisions to the
           ated annually for fiscal year ending June 30, 1973, and for the next                                Endangered Species List as they may affect marine mammals, and
           four following fiscal years, to enable the Department of Commerce to                                   (7) Recommend to the Secretary, other officials, and the Congress
           carry out its responsibilities under Title 1.                                                       measures deemed necessary or desirable to carry out the purposes of
              (b) This subsection authorizes the sum of $700,000 for the fiscal                                this Act, including those which it deems appropriate to protect Alas-
           year ending June 30, 1973, and $525,000 for each of the next four                                   kan natives who may be adversely affected by the Act.
           years to be appropriated, to enable the Department of the Interior to                                  (b) The Commission is required to consult with the Secretary at
           carry out its responsibilities under Title 1.                                                       either's request, and shall furnish its reports and recommendations be-
                                                                                                               fore publication to them for comment.
                            TITLE II-MARINE MAMMAL COMMISSION                                                     (c) The Commission's reports and recommendations are specifically
                                                                                                               designated as public records, to be available to the public at all rea-
           Establishment of Commission                                                                         sonable times. Other activities of the Commission are also matters of
              Sec. 201 (a) Establishes the Marine Mammal Commission.                                           public record available to the public in accordance with the provi-
              (b) The Commission is composed of five members serving            five-year                      sions of the Freedom of Information Act.
           staggered terms (except for those initially selected),     appointed by the                            (d) Where the Commission has made recommendations to federal
           President from a list submitted by the Chairman of the Council on                                   officials, those officials must respond within 120 days. Where those
                                                                                                               recommendations have not been followed or adopted, the appropriate

               Our.      am        lilms      I& M                          or                                 IN,       V          N1.   __ V                                @i



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                                                 24

            official is required to return them to the Commission together with a
            detailed explanation of his reasons for his failure to follow these rccom-
            mendations.
            Committee of Scientific Advisors on Marine Mammals
               See. 203. (a) This section authorizes and directs the establishment                                              MINORITY VIEWS OF MR. STEVENS
            of a Scientific Committee of nine independent scientists knowledge-
            able in marine sciences and the commercial fishing industry with                                       This Committee has worked hard to draft workable and scientifi-
            emphasis on marine ecology and marine mammals affairs. The mem-                                     cally accurate legislation that will establish sound programs for the
            bers of this Committee are to be appointed by the Chairman of the                                   future welfare of our valuable ocean mammal resources. And, I com-
            Commission, after consultation with the Director of the National Sci-                               pliment the Chairman of the Subcommittee, the distinguished Senator
            ence Foundation, the Chairman of the National Academy of Sciences,                                  from South Carolina (Mr. Hollings)-and other members of the full
            the Secretary of the Smithsonian Institution and the chairman of the                                Committee-for their interest and diligence in attempting to reach a
            Council on Environmental Quality, and, unlike the Commission, may                                   workable solution to this controversial problem. This bill is basically
            include government employees.                                                                       a good beginning. It is an attempt toward improved conservation
               (b) The members of the Scientific Committee are to be compensated                                practices which might assist in the restoration and maintenance of
            in like manner as the members of the Marine Mammal Commission.                                      marine animal populations.
               (c) The Commission is required to consult with the Scientific Com-                                  However, under this bill, two problems are not completely solved.
            mittee on studies and recommendations on research programs con-                                     First, I was hopeful that the bill could have excluded entirely those
            ducted under the authority of the Act and all applications for permits                              citizens whose culture and very existence is dependent upon marine
            authorizing the taking of marine mammals for scientific purposes un-                                mammals-the Alaska Natives. I am pleased, of course, that the
            der section 103 of the Act. Recommendations made by the Commit-                                     Chairman of the full Commerce Committee-Senator Magnuson-
            tee, or members of the Committee, to the Commission which are not                                   authorized hearings to be held in Alaska so that the hearing record
            adopted by the Commission must be transmitted to the appropriate                                    would reflect Alaska's Native people. Second, this bill does not do
            federal agency and the Congress with an explanation of the Commis-                                  justice to those who will carry out the bulk of protection and man-
            sion's reasons for not accepting such recommendations.                                              agement activity, State fish and wildlife agencies.
            Commission Reports                                                                                     Alaska Natives are not totally exempt under this bill. They should
               Sec. 204. This section requires the Commission to transmit to the Con-                           be. If the problems of these citizens were fully recognized and their
            gress an annual report describing its activities, including findings and rec-                       needs provided for, they would be.
            ommendations by and to the Commission, together with the responses to                                  Many Alaska Natives are completely dependent upon ocean mam-
            those recommendations.                                                                              mal resources for their existence. For these people, ocean mammals
                                                                                                                provide not only food and clothing, but also, through the sale of
            Coordination with other Federal Agencies                                                            meat, seal oil, handicrafts, and clothing, the only available source of
               Sec. 205. This section authorizes the     Commission to have access to                           money income with which they may purchase a few of the basic hu-
            all Federal studies and data relating to marine mammals. It authorizes                              man needs taken for granted by everyone else in America. I feel our
            the Commission to utilize, with the consent of the appropriate Secre-                               nation is morally bound to respect the traditions and life style of
            tary, the facilities of federal agencies, under cooperative arrangements,                           these people. They do not waste these mammals. They live in an area
            and directs the Commission to take every feasible step to avoid duplica-                            of the world as harsh as any on the face of the globe. They cannot
            tion of research and to carry out the purposes of this Act.                                         afford to waste any animal, nor even any part of one.
            Administration of Commission                                                                           @tate fish and wildlife agencies posess [sic] greater expertise,
                                                                                                                equipment and manpower to protect and manage ocean mammals than
               Sec. 206. This section authorizes the Commission to         do the neces-                        does the federal government. Without the full participation of the
            sary things in order to carry out its administrative responsibilities un-                           states, any national ocean mammal program is doomed to failure. Our
            der the Act. Its financial and administrative services are to be                                    total national interest in protecting marine mammals requires that the
            provided by the General Services Administration and appropriate re-                                 maximum opportunity be provided for the scientific management of
            imbursement made therefor.                                                                          these animals through full utilization of the manpower and knowledge
            Authorizations                                                                                      of the appropriate state agencies within their jurisdiction.
               Sec. 207. This section authorizes to be appropriated the sum of not                                 Under the bill, scientific management contemplates complete or
            to exceed $500,000 for the fiscal year in which Title 11 is enacted,                                partial prohibition against taking when proven necessary for the well-
            and for the next four fiscal years thereafter.                                                      being of species or population stocks. The bill calls for state assis-
                                                                                                                tance in enforcing the provisions of the Act. But, it also infringes
            Effective Date                                                                                      upon the states' long-recognized right to protect and manage resident
               Sec. 208. The provisions of this Act became effective 60 days after                              species within state jurisdiction.
            enactment.                                                                                                                               (57)








                                              58

              As a matter of national policy, the separation of federal and state
           authority as it pertains to wildlife management was spelled out in a
           regulation signed on September 10, 1970 by then Secretary of the
           Interior Walter J. Hickel. The regulation stated in part: "The several
           states have the authority to control and regulate the capturing, taking
           and possession of fish and resident wildlife by the public within state                                    SUPPLEMENTAL VIEWS OF MR. COTTON
           boundaries." Many populations of ocean mammals-including those of
           sea otters, sea lions, and walrus-are resident animals, wholly or in                              I wish   to associate myself with the position taken by my distin-
           part.                                                                                          guished colleague from Alaska (Mr. Stevens) on the second problem
              I do not believe this bill should disrupt the long-standing coopera-                        which he raises in his Minority Views on this bill, S. 287 1. 1 share
           tive arrangements between federal and state agencies regarding resi-                           his concern that this bill does not do justice to the State fish and wild-
           dent or migratory species of wildlife. Those agreements recognize the                          life agencies which will carry out the bulk of protection and manage-
           rights of states to manage fish and game resources within their bor-                           ment activity. I know that this is a very real concern shared by the Fish
           ders. This bill encroaches on state authority to manage resident ape-                          and Game Department of my own State of New Hampshire.
           cies-as such, it creates a problem rather than solves one.                                                                                              NORRIS COTTON.
              Marine mammals themselves will benefit most from maximum at-                                                                   (59)
           tention by both state and federal agencies responsible for wildlife.
           The federal government does not have adequate personnel nor capabil-
           ity to administer this marine mammal program within state borders.
           As written, this bill will require, annually, millions of additional fed-
           eral dollars for enforcement and protection of marine mammals.
              I had hoped that the bill as reported would adopt the language of
           Section 109 of S. 3161 which provides for federal-state cooperation
           in this field. That bill has been widely acclaimed by wildlife profes-
    8      sionals from all parts of the country as a sound program for the con-
    OD     servation of ocean mammals. Many professional wildlife organizations
           and agencies have passed resolutions in support of S. 3161. 1 regret
           that the Committee did not accept Section 109 of that bill.
              The principle involved here is identical to that involved in S. 1232
           introduced in the 91st Congress by Senators Morse, Bible, Cannon,
           and Church. Legislation similar to S. 1232 has passed the Senate repeat-
           edly. As pointed out in Senate Report No. 91-551 accompanying
           S. 1232, states must have the right to regulate and manage all fish
           and wildlife within their borders. There are historic patterns that have
           evolved in this country under which the states have exercised primary
           responsibility and jurisdiction with respect to resident fish and wild-
           life. Such authority resides in the states "in trust for the benefit of
           their people independent of jurisdiction over or ownership of land, . .
           . it is essential to the conservation programs of the states that pri-
           mary authority over wildlife not be eroded and that the responsibili-
           ties of federal departments and agencies with respect to conservation
           and development of natural resources, including fish and wildlife on
           federally-owned lands, should be exercised in accordance with State
           laws and regulations."
              The same principle applies, whether the animals are on federally-
           owned land or in the ocean. The states must have primary authority
           within their borders in either case.
                                                                       TED STEVENS.



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                ADDITIONAL VIEWS OF MESSRS. HART AND GRIFFIN                                                                 ADDITIONAL VIEWS OF MR. SPONG

               Although many of the provisions of S. 3871 have aroused consid-                                  Although the bill reported by the Committee represents an im-
            erable controversy both within and outside the Congress. We believe                              provement in existing authority to curb the taking of marine mam-
            that the bill as reported could, if properly administered, enhance our                           mals, I am apprehensive over those sections of the measure relating
            effort to protect marine mammals. With regard to most of the contro-                             to the importation of such species.
            versial issues resolved by the Committee, creditable arguments on                                   The House version of this legislation sought to dampen the Ameri-
            either side of the question resulted in the "close case" which is so                             can market for seal skins by permitting imports solely for processing.
            often presented to legislators. In on area, however, we believe the                              Such imports could be admitted only under a bond requiring that they
            Committee's action was clearly contrary to the public interest. The                              be exported within two years. There is no comparable provision in
            committee decided that authority over marine mammal protection un-                               the bill approved by the Committee. Instead, the measure 'gives broad
            der S. 2871 should be divided between the Department of the Interior                             authority to the Secretary of Commerce to waive the provisions of
            and the Commerce Department's National Oceanic and Atmospheric                                   the moratorium section of the bill so as to permit the taking of ocean
            Administration (NOAA). Under the committee bill, NOAA would ad-                                  mammals, and to allow both imports and exports.
            minister the program as it relates to whales, porpoises and seals; Inte-                            Such broad administrative discretion might be acceptable if it were
            rior would be authorized to protect polar bears, walruses, manatees                              to be exercised by the Department of the Interior. That agency, in my
            and sea otters. It is our view that the program should not be split,                             view, is oriented toward the conservation of wildlife. The Commerce
            and that Interior is the proper government agency in which to place                              Department has a history of being oriented toward commercial devel-
            all the authority granted by the bill.                                                           opment.
               The administrative discretion allowed by S. 2871, we would argue,                                Jurisdiction is divided under the Committee bill. The Department
            should be exercised by the Secretary of the Interior, whose depart-                              of Commerce (NOAA) would have authority over seals, whales, and
            ment has expertise in the conservation of wildlife, rather than by the                           porpoises. Interior would administer the legislation as it relates to
            Administrator of NOAA, whose parent department has a commercial                                  walruses, sea otters, manatees and polar bears. In my judgment, juris-
            orientation. While it may be that NOAA has done a creditable job                                 diction should not be divided. I believe authority would be more ap-
            thus far without interference from the commercial interests within the                           propriately vested entirely in the Department of the Interior. I voted
            Department of Commerce, this does not justify preserving the possi-                              accordingly within the Committee, but the amendment to give juris-
            bility of such interference when it could be eliminated by granting                              diction to the Interior Department was defeated.
            the Department of the Interior sole jurisdiction.                                                   The discretionary provisions of the permit section of the bill are
               Placing all ocean mammals under one department is not likely to                               especially troublesome if jurisdiction is to be entrusted to the Com-
            result in any great duplication of effort, because the Interior Depart-                          mcrce Department. Under the Committee bill, a person having a per-
            ment would be able to enter into agreements with NOAA to utilize                                 mit to take marine mammals must be afforded an opportunity for a
            their personnel, facilities and expertise. We are confident that Inte-                           hearing whenever the Secretary proposes to modify, suspend or re-
            rior, with the addition of a few marine mammal scientists and the                                voke such permit. In other words, if a permittee wants a hearing, he
            cooperation of NOAA, would be able to administer the Act effec-                                  must be given one.
            tively. In the past, we have traditionally entrusted the protection of                              However, there is no requirement for a hearing which may be re-
            wildlife to the Department of the Interior. We see no reason to break                            quested by a person opposed to the original issuance of a permit.
            from that tradition in this area.                                                                This seems to me to be inconsistent, and unfair. If a hearing is not
                                                                   PHILIP A. HART.                           required for the issuance of a permit, it should not be required for a
                                                                   ROBERT P. GRIFFIN.                        revocation, modification, or suspension of a permit, despite the eco-
                                                (60)                                                         nomic interest that may be involved. A hearing ought to be required
                                                                                                             in both instances if affected or interested persons want a hearing.
                                                                                                                                                                  WILLIAm B. SPONG, Jr.
                                                                                                                                                 (61)

                                                                                                                                                  0



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                                                                                                                                     92D CONG@ESS              HOUSE OF REPRESENTATIVES                                 RF-PoRT
                                                                                                                                       2d Session          I                                                    No. 92-1488




                                                                                                                                                   MARINE MAMMAL PROTECTION ACT OF 1972



                                                                                                                                                             OCTOBER 2 1972-Ordered to be printed


                                                                                                                                                    Mr. GARMATZ, from the committee of conference,
                                                                                                                                                                    submitted the following

                                                                                                                                                              CONFERENCE REPORT

                                                                                                                                                                   [To accompany H.R. 104201

                                                                                                                                         The committee of conference on the disagreeing votes of the two
                                                                                                                                     Houses on the amendment of the Senate to the bill (H.R. 10420) to
                                                                                                                                     protect marine mammals; to establish a Marine Mammal Commission;
                                                                                                                                     and for other purposes, having met, after full and free conference,
                                                                                                                                     have agreed to recommend and do recommend to their respective
                                                                                                                                     Houses as follows:
                                                                                                                                         That the House recede from its disagreement to the amendment of
                                                                                                                                     the Senate and agree to the same with an amendment as follows:
                                                                                                                                         In lieu of the matter proposed to be inserted by the Senate amend-
                                                                                                                                     ment insert the following:
                                                                                                                                     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.
                                                                                                                                     Sec. 3. Definitions.
                                                                                                                                     Sec. 4. Effective date.
                                                                                                                                                   TITLE I-CONSERVATION AND PROTECTION OF MARINE MAAMALS
                                                                                                                                     See. 101. Moratorium and exceptions.
                                                                                                                                     Sec. 102. Prohibitions.
                                                                                                                                     Sec. 103. Regulations on taking of marine mammals.
                                                                                                                                     Sec. 104. Permits.
                                                                                                                                     Sec. 105. Penalties.
                                                                                                                                     Sec. 106. Vessel fine, cargo forfeiture, and rewards.
                                                                                                                                     Sec. 107. Enforcement.
                                                                                                                                     Sec. 108. International program.
                                                                                                                                     See. 109. Federal cooperation with States.
                                                                                                                                     Sec. 110. Marine mammal research grants.
                                                                                                                                                                                 (1)








                                                                                                                                              23

                                                                                                           species by species, that a waiver is appropriate; once that determination
                                                                                                           has been made, he would then be in a position to set general regulations
                                                                                                           on the taking of mammals, subject to the protective devices incorporated
                                                                                                           into both the House bill and the Senate amendment, involving public re-
                                                                                                           view and participation, before any permits might be issued. The confer-
                     JOINT EXPLANATORY STATEMENT OF THE                                                    ence substitute adopts the Senate approach. The conferees declined to
                             COMMITTEE OF CONFERENCE                                                       follow the precise formula adopted in the Senate version, however, which
                                                                                                           mandated public hearings on the Secretary's decision to waive the mora-
              The managers on the part of the House and Senate at the confer-                              torium. Since Section 103 requires those procedures to be followed in any
           ence on the disagreeing votes of the two Houses on the amendments                               case before general regulations are issued, it seemed duplicative to re-
           of the Senate to the bill (H.R. 10420), to protect marine mammals, to                           quire that the same steps be taken twice. By the same token, the Secre-
           establish a Marine Mammal Commission and for other purposes, sub-                               tary's decision to waive the moratorium would not be a final action, from
           mit the following joint statement to the House and to the Senate in                             which appeal might be taken: recourse to the courts must await action
           explanation of the effect of the action agreed upon by the conferees                            under Section 103 of the Act. The conference substitute requires that the
           and recommended in the accompanying conference report:                                          hearings to be held by the Secretary on the regulations which he proposes
              The Senate struck out all of the House bill after the enacting                               to adopt would also encompass his decision to waive the moratorium.
           clause and inserted a substitute amendment. The committee of confer-                              The House bill required permits (in almost every case general per-
           ence has agreed to a substitute for both the House bill and the Senate                          mits) covering commercial fishing operations to insure minimal risk
           amendment. Except for technical, clarifying and conforming changes,                             to marine mammals. The Senate allowed regulations by the Secretary
           the following statement explains the differences between the House,                             to the same end without the formal issuance of permits during the
           bill and the Senate amendments thereto.                                                         two-year period after date of enactment of the Act, and expressed a
                                                                                                           general goal that damage to marine mammals shall be "reduced to
                     PROVISIONS OF THE CONFERENCE SUBSTITUTE                                               insignificant levels approaching a zero mortality and serious injury
                                                                                                           rate." The Senate amendment also provided that during and after this
                TITLE 1--CONSERVATION AND PROTECTION OF MARINE MAMMALS                                     two-year period, the objective of regulation would be to approach as
                                                                                                           closely as is feasible the goal of zero mortality and injury to marine
           Section 3. Definitions                                                                          mammals. The conferees agreed to the Senate approach. It may never
              To a large extent,  the Senate amendment's definition of "depleted"                          be possible to achieve this goal, human fallibility being what it is,
           is similar in scope to the language of the proposed Administration                              but the objective remains clear.
           amendment to the Endangered Species Act of 1969. The House bill                                   The House bill exempted Alaskan Indians, Aleuts and Eskimos
           would have allowed a species or stock to be termed depleted and                                 from the moratorium and the permit requirements to the extent they
           become protected before becoming threatened with extinction. The                                take an animal for subsistence purposes, not wastefully and not for
           conference substitute requires consultation with the Marine Mammal                              direct or indirect commercial sale. The Senate amendment extended
           Commission and the Committee on Scientific Advisors on Marine                                   the exemption to allow for the so-called "cottage industries" of the
           Mammals before a designation of a "depleted" species or stock is                                Alaskan natives. The House bill would prohibit the taking, by natives
           made. The conference substitute will allow species or stocks to be                              or anyone else, of animals belonging to an endangered species,
           protected before they have reached endangered status.                                           whereas the Senate amendment would allow such animals to be taken
              The designation of a species or stock as depleted under the confer-                          by natives. The conferees essentially adopted the provisions of the
           ence substitute, however, will not   automatically qualify an animal for                        Senate amendment.
           protection under the Endangered     Species Act of 1969 and will not                              The conferees were aware of the relatively small amount of solid
           expand that Act, as it is presently  written, to cover endangered stocks                        data on the effects of native taking of marine mammals, and given
           within otherwise abundant species.                                                              that lack of information were not disposed unilaterally to terminate
                                                                                                           the present levels of taking by Alaskan Indians, Aleuts      and Natives
           Section 101. Moratorium                                                                         of marine mammals, including endangered species such         as bowhead
              The House bill included a five-year moratorium, with certain ex-                             whales. The Secretary is given the authority to curtail or   to terminate
           ceptions (scientific research, commercial fishing, Alaska fur seals and                         the native taking whenever he concludes that such taking     is endanger-
           processing of skins). The Senate amendment provided for a permanent                             ing, depleting or inhibiting the restoration of endangered or depleted
           moratorium, except for scientific research and commercial fishing,                              stocks. The actions of the Secretary in administering the provisions
           and added a provision that allows the Secretary to waive the morato-                            relating to taking by natives will be subject to review by the public
           rium when such waiver would be compatible with the Act. The effect of                           and by the Congress, in order to see that his responsibilities have
           the Senate amendment is to allow the Secretary to make a determination,                         adequately been met.
                                              (22)



                                            ow,       Not       9WR       mob      6W







                                               24                                                                                               25

               By retention of the phrase permitting "subsistence" taking by                                 mits while the Senate amendment required hearings on permits as well.
            Alaska Natives, the conferees intend to permit taking not only for                               The conference substitute adopted the House version. The agencies have
            food but also for clothing, shelter, transportation, and the other ne-                           indicated that the costs of compliance with the Senate version would per-
            cessities of life.                                                                               haps double the cost of the program, to no purpose. In addition, the con-
               The Senate amendment provided a one-year exemption for reasons                                ference substitute adopts House language on general permits which the
            of financial hardship for persons other than commercial fishermen                                Secretary may issue as class permits to groups of persons such as com-
            (who have a two-year exemption, already described) in language simi-                             mercial fishermen or non-Native Alaskans who depend on marine mam-
            lar to that in the Endangered Species Act. The House has no such                                 mals for subsistence.
            exemption. The conference substitute adopts the Senate language.                                 Section 106. Vessel Fine, Cargo Forfeiture, and Rewards
            Section 102. Prohibitions                                                                          The House bill allowed the forfeiture of a vessel involved in the ille-
               The House bill provided that no permits might be issued during                                gal taking of marine mammals, while the Senate amendment allowed
            the sixty-day period following the date of enactment of the Act; the                             cargo forfeiture, but restricted the liability of vessel owners to not more
            Senate amendment indicated, on the other hand, that the Act itself                               than $25,000. The conference substitute adopts the Senate provision.
            would not be effective for sixty days, in order to allow the agencies                              An "unlawful taking," for the purposes of this section, would in-
            involved time to prepare to administer the Act. The Conference sub-                              volve an intentional or wanton taking of a marine mammal by a ves-
            stitute followed the Senate bill, but provided that the one year period                          sel operator. It is not intended to mean the killing of a marine mammal
            allowed for hardship and the two-year period for research purposes                               by a vessel or its appurtenances as the result of an accident or Act of
            should begin at the date of enactment, since as of that date those                               God, as for example, in the case of a steamship accidentally running
            involved will have been put on notice that the Act will affect them.                             into a marine mammal and injuring or killing it with its propellers.
               The conferees discussed the provision prohibiting importation of                              Careless operations of motorboats, on the other hand, in waters where
            any pregnant marine mammal. It is known that some marine mammals                                 mammals such as manatees or sea otters are known to exist, could con-
            are technically pregnant almost year-round, and in the cases of oth-                             stitute an unlawful taking within the meaning of the section.
            ers, it is extremely difficult for even trained observers to detect preg-                        Section 108. International Program
            nancy except in the latter stages or in seasons when such animals are
            known to give birth. It is the intent of the conferees that the term                               Both the House and Senate versions required that the Secretaries
            "pregnant" be interpreted as referring to animals pregnant near term                             initiate international negotiations in order to expand the principles of
            or suspected of being pregnant near term as the case may be.                                     H.R. 10420  . to the high seas and to other countries. In general, the
                                                                                                             Senate version was more explicit in its requirements and was adopted
            Section 103. Regulations on Taking of Marine Mammals                                             by the conferees.
               The Senate amendment requires an annual report from the respec-                                 The House bill required permits to take Alaska fur seals, whereas the
            tive Secretaries on the marine mammal stocks within their jurisdiction                           Senate bill did not; instead, it required a study of the problem in the
            and on steps taken to implement the Act. The conferees accepted the                              light of the purposes and effects of the Interim Convention for the Con-
            Senate version with the understanding that it would not require a                                servation of the North Pacific Fur Seal. The conference substitute fol-
            complete restudy each year of every species and stock covered, but                               lows the Senate version, but amplifies the study to include ways in
            would rather permit the Secretary to update, where appropriate, what                             which the Act may be modified to meet the convention, or the conven-
            had been done since the last report was filed.                                                   tion to meet the Act. At the conclusion of this study, the Secretary is
               As a prerequisite to the issuance of regulations and the subsequent                           expected to report back to Congress with recommendations.
            issuance of permits under the Act, the House bill required the Secre-                            Section 109. Federal Cooperation With States
            tary to make a finding that the taking of marine mammals pursuant to
            such regulations would not be to the disadvantage of the species or                                The House bill preempted State law, but allowed cooperative
            stocks involved and would be consistent with the purposes and poli-                              agreements with the States in harmony with the purposes of the Act.
            cies of this Act. The conferees accepted the House language. While                               The Senate amendment allowed the Secretary to review State laws
            clearly it would not be to the advantage of an individual animal to be                           and to accept those that are consistent with the policy and purpose of
            removed from a population, the evidence was clear that in some cir-                              the Act. The conference substitute clarifies the Senate version to as-
            cumstances it would be to the advantage of a species or stock to                                 sure that the Secretary's determination will control as to whether or
            allow taking as part of a scientific management program. An obvious                              not the State laws are in compliance. Once granted authority to im-
            example would be the taking of animals from an overpopulated group,                              plement its laws relating to marine mammals, the State concerned
            or removal of animals surplus to breeding needs.                                                 may issue permits, handle enforcement, and engage in research.
                                                                                                               The precise point at which State programs may take effect will
            Section 104. Permits                                                                             vary with the requirements imposed by the Act; where a permit must
               Under both the House bill and the Senate amendment, hearings must                             be issued for an animal to be taken or imported, approved State pro-
            be held on the establishment of general regulations affecting a given                            grams may be implemented following opportunity for public hearings
            category of marine mammals. However, the House version made hear-                                and the issuance of regulations under section 103, and, where appro-
            ings discretionary with relation to the subsequent issuance of per-                              priate, waiver of the moratorium under section 101(a)(3).








                                                 26                                                                                                     27

            Where no permit is required, State programs may be approved without prior                                                                     EDWARD A. GARMATZ,
            Federal compliance with section 103 or waiver of the moratorium. Because                                                                      JOHN D. DINGELL,
            of the special nature of the programs involved, however, it is not contem-                                                                    GLENN M. ANDERSON,
            plated that the States will issue permits for scientific research or display                                                                  GEo. A. GOODLING,
            under section 101(a)(1), or authorize hardship exemptions from the Act under                                                                  PAUL N. McCLOSKEY, Jr.,
            section 101(c). It is contemplated, however, that the Secretary could issue                                                               Managers on the Part of the House.
            general permits to State agencies which would, in turn, be authorized to                                                                      JOHN 0. PASTORE,
            assign, for example, scientific research permits to State employees or repre-                                                                 ERNEST F. HOLLINGS,
            sentatives of State universities for the taking of marine mammals.                                                                            DANIEL K. INOUYE,
               The Secretary would not in any case, however, thereby waive all                                                                            PHILIP A. HART,
            subsequent Federal jurisdiction over any such marine mammals. He                                                                              TED STEVENS,
            must continue to monitor State programs to make sure the purposes
            and policies of the Act continue to be fulfilled, and be prepared to                                                                          MARLOW W. COOK,
            reassert Federal control if he deems it appropriate to accomplish                                                                             LOWELL P. WEICKER, Jr.,
            these purposes and policies.                                                                                                              Managers on the Part of the Senate.
            Section 111. Commercial Fisheries Gear Development                                                                                          0
               The Senate amendment authorized $1 million annually for two
            years for research on improved fishing methods which will minimize
            hazards to marine mammals. It also authorized the Secretary to regu-
            late commercial fishing operations (and to board and observe vessels),
            to enter into negotiations with the Inter-American Tropical Tuna
            Commission and to guarantee private loans to private fishermen for
            the purpose of equipment to meet the requirements of the Act the
     --t    House bill had no comparable provisions. The conference substitute
            adopts the Senate version, but eliminates the loan-guarantee program
            because it duplicates existing law.

                              TITLE II MARINE MAMMAL COMMISSION

               The House bill would establish a three-member Commission, ap-
            pointed by the President from a list submitted by the Council on En-
            vironmental Quality, and would give the Commission various powers,
            including the power to undertake studies on problems within its juris-
            diction. The House bill authorizes funds of $1 million annually with
            no more than one quarter for administrative expenses. The Senate
            amendment would create a five-member commission, would require a
            list of members recommended by CEQ and other agencies, would not
            provide research authority and would limit annual authorizations to
            $500,000. The conference substitute follows the House version gener-
            ally, although a widened list provision is included and the funds
            available for internal administration are increased to one-third of up
            to $1 million, with the balance to be spent on research purposes.












                                                                              or



                  maw M woOmm" Imm-, mmm mom MW M M


             95TH CONGRESS            HOUSE OF REPRESENTATIVES                           REPORT                                                                  2
                Ist Session                                                        No. 95-336
                                                                                                                           Amend the title so as to read:
                                                                                                                                  A bill to increase the appropriations authorization for fiscal year
                                                                                                                               1977 and to authorize appropriations for fiscal year 1978 to carry
                                                                                                                               out the Marine Mammal Protection Act of 1972.


                                                                                                                                                     PURPOSE OF THE BILL
                         MARINE MAMMAL PROTECTION ACT OF 1972
                                            AUTHORIZATION                                                                  The purpose of H.R. 4740 is to extend the authorization period for
                                                                                                                        the Marine Mammal Protection Act of 1972 through fiscal year 1978
                                                                                                                        and to increase the authorization level under the Act for Fiscal Year
                  May 16, 1977-Committed to the Committee of the Whole House on the                                     1977.
                                State of the Union and ordered to be printed                                                                       LEGISLATIVE BACKGROUND

                                                                                                                           H.R. 4740 was introduced on March 9, 1977 by Mr. Leggett and
                Mr. MURPHY of New York, from the Committee on Merchant Marine                                           cosponsored by Mr. Forsythe. The legislation was referred to the De-
                                 and Fisheries, submitted the following                                                 partments of the Interior and Commerce and the Marine Mammal
                                                                                                                        Commission for comments.
                                               REPORT                                                                      The Subcommittee on Fisheries, Wildlife Conservation, and the En-
                                                                                                                        vironment held hearings on the legislation on March 15, 1977. The
                        [Including Cost Estimate of the Congressional Budget Office]                                    subcommittee received testimony from representatives of the Depart-
                                                                                                                        ment of Commerce, Department of the Interior, Marine Mammal Com-
                                         [To accompany H.R. 47401                                                       mission, Monitor Inc., and The Society for Animal Protective
                                                                                                                        Legislation.
                The Committee on Merchant Marine and Fisheries to whom was                                                 All of the witnesses appearing before the subcommittee expressed
             referred the bill (H.R. 4740) to increase the appropriations authoriza-                                    their strong support for extending the authorization for appropriations
             tion for fiscal year 1978 and authorize appropriations for fiscal year                                     for the act. The Department of the Interior suggested continuing the
             1978 to carry'out the Marine Mammal Protection Act of 1972, having                                         authorization level for their activities under the act at the level
             considered the same, report favorably thereon with amendments and                                          authorized for the past four fiscal years. The Department of Com-
             recommend that the bill as amended do pass.                                                                merce suggested an authorization level of $5.5 million for fiscal year
                The amendments are as follows:                                                                          1977 under section 114 of the act and $7 million for fiscal year 1978
                On page 2, line 6, strike "$1,100,000," and insert in lieu thereof                                      under section 114. The Marine Mammal Commission testified that
             "$1,200,000,".                                                                                             they supported an authorization level of $1 million.
                On page 2,    line 8, strike "1978   ...... and insert "1978."                                             The witness for the Society for Animal Protective Legislation
                On  page 2,   between lines 8 and 9, add a new subsection to read:                                      strongly supported increasing the authorization levels in order to pro-
                     (3) $200,000, all of which shall be available to the Secretary                                     vide for a Department of Commerce observer on every tuna purse
                 of Commerce, for the fiscal year ending September 30, 1978.                                            seine vessel fishing for yellowfin tuna by setting on porpoise.
                On page 2, line 16, strike "$10,000,000" and insert "$11,500,000".                                         The subcommittee gave careful consideration to the evidence pre-
                On page 2, line 22, strike "$700,000" and insert "$850,000".                                            sented at the hearings and the departmental reports. The subcommittee
                On page 3, strike all of lines I through 10 and insert the follow-                                      unanimously ordered H.R. 4740 reported to the full committee with
             ing in lieu thereof:                                                                                       two amendments. The subcommittee adopted an amendment which in-
                    SEC. 3. Section 207 of the Marine Mammal Protection Act of 1972                                     creased the authorization level to the Department of Commerce under
                           (16 U.S.C. 1407) is amended to read as follows:                                              section 114 in fiscal year 1978 by $1.5 million. This increase is
                                                                                                                        needed to cover the operation and maintenance costs of a vessel sup-
                                 "AUTHORIZATIONS OF APPROPRIATIONS                                                      plied by the tuna industry to the Department of Commerce to conduct
                                                                                                                        research on reducing the incidental mortality of porpoise during yel-
                "SEC. 207. There are authorized to be appropriated for the fiscal year                                  lowfin tuna purse seine fishing operations.
             in which this title is enacted and for the next five fiscal years thereafter                                  Several bills now pending before the Committee on Merchant Ma-
             such sums as may be necessary to carry out this title, but the sums ap-                                    rine and Fisheries require the industry to supply the Department of
             propriated for any fiscal year other than the fiscal year ending September                                 Commerce with such a designated research vessel. In 1976 the De-
             30, 1978, shall not exceed $1,000,000, and the sum appropriated for the                                    partment of Commerce and the tuna industry jointly chartered a vessel
             fiscal year ending September 30, 1978, shall not exceed $2,000,000."                                       to develop techniques that might reduce the mortality of porpoise cap-


                                                                                                                                                                                      H.R. 336








                                                3                                                                                               4

           tured incidentally in the course of fishing operations. This cruise of the                          The Department of the Interior is currently engaged in a number of
           Elizabeth C. J. developed vitally important new information about gear                          research projects designed to provide information on the species un-
           technology and porpoise behavior.                                                               der their jurisdiction. These projects are designed to obtain basic in-
               The subcommittee also adopted an amendment which struck the                                 formation on the marine mammal environment. Current studies of
           second sentence of section 207 of the act requiring the Marine Mam-                             community interactions and ecosystem functions of marine mammals
           mal Commission to spend two-thirds of its funds on research activi-                             will expand into modeling approaches that will allow us to predict
           ties. The committee feels that it would be impossible for the Marine                            what will happen to given population segments under expected cir-
           Mammal Commission to meet this requirement in light of the Com-                                 cumstances. As an example, the Department of the Interior is engaged
           mission's fixed operating costs. These fixed operating costs cannot be                          in an analysis of the population status of polar bears, biological and
           reduced without severely impairing the Commission's ability to oper-                            reproductive studies, and the effects of environmental pollution on the
           ate.                                                                                            animals. This research has concentrated on studies of distribution and
               The Full Committee on Merchant Marine and Fisheries unani-                                  general movements as well as den ecology and location. Cooperative
           mously ordered H.R. 4740 reported to the House with amendments. In                              studies with Canada and the U.S.S.R. have been utilized to avoid du-
           addition to the amendments adopted by the subcommittee, which the                               plicative efforts.
           full committee concurred in, the full committee further amended the                                 A large part of the time, money and effort of the Marine Mammal
           bill to increase the authorization level to the Department of the Inte-                         Commission and the Department of Commerce has been spent in an
           rior under section 110 by $100,000; to provide authorized appropria-                            attempt to find a solution to the tuna-porpoise problem. The tuna-por-
           tions to the Department of Commerce under section 110 of $200,000;                              poise controversy results from fishing practices which make use of
           and to increase the authorization level to the Department of the Inte-                          the little understood relationship between yellowfin tuna and certain
           rior under section 114 by $150,000.                                                             species of porpoise. Commercial tuna purse-seiners herd porpoise, en-
               The committee feels that the increased funds added by the Full                              close them with nets, and thereby catch the yellowfin tuna which
           Committee should, if appropriated, be used to provide matching                                  swim beneath and behind them. Thousands of porpoise, incidentally
           grants to States under section 109 of the act and research grants un-                           taken in order to catch the tuna, are killed when they become entan-
           der section 110. Specifically, the committee is concerned that States                           gled in the nets.
           such as Alaska and California, which have regained management re-                                   A great deal of effort has gone into accumulating and analyzing
           sponsibilities over various species of mammals, receive adequate as-                            data on the status of porpoise populations in order to establish a per-
           sistance from the Federl [sic] Government to effectively administer                             missible quota of animals to be taken by the tuna fishermen. The
           their marine mammal conservation programs.                                                      Marine Mammal Commission and the Department of Commerce are
                                                                                                           extensively involved in developing fishing gear and techniques which
                         BACKGROUND AND NEED FOR THE       LEGISLATION                                     reduce the incidental kill of porpoise.
                                                                                                               A major portion of the funds authorized for the Department of
               The Marine Mammal Protection Act was        enacted in   1972 for the                       Commerce would go, if appropriated, to fund a 100 percent observer
           purpose of ensuring that marine mammals          did not diminish below                         program on all large tuna purse seine vessels. The Department of
           their optimum sustainable population. In passing the act, Congress re-                          Commerce has indicated to the committee that $5 million would ade-
           sponded to the growing concern about man's impact on marine mam-                                quately fund a full observer program. The committee feels that the
           mals which include whales, porpoises, seals, sea otters, polar bears,                           institution of a full observer program is vitally necessary to collect
           and manatees.                                                                                   much-needed data on porpoise mortality and porpoise population lev-
               The act gave to the Secretaries of the Interior, and Commerce the                           els.
           authority and direction to establish general limitations upon the tak-                              H.R. 4740 would permit the agencies to continue and accelerate
           ing of all marine mammals. Criminal and civil penalties are pre-                                these various research and management programs. The bill provides a
           scribed for violations of the act, and the importation of marine                                total authorization to the Department of the Interior of $2.05 million,
           mammals and their products is subject to regulation. The act created                            of which $1.2 million will be spent on research under section 110.
           a three member Marine Mammal Commission which is charged with                                   The bill authorizes appropriations of up to $11.5 million for the De-
           responsibility of monitoring the implementation of the act, recom-                              partment of Commerce under section 114 for all activities. The Ma-
           mending policies to the two Secretaries, and undertaking such re-                               rine Mammal Commission is authorized to be appropriated up to $2
           search as is deemed appropriate.                                                                million in fiscal year 1978.
               Since the passage of the act the agencies have engaged in a wide
           variety of research and management activities dealing with marine                                           FISCAL YEAR 1977 SUPPLEMENTAL AUTHORIZATION
           mammals. The Department of Commerce is currently engaged in re-
           search on fur seals and their ecosystems, whales and related species,                               H.R. 4740 would increase from $2 million to $8 million the amount
           and the population status of several species of porpoise.                                       of  funds authorized to be appropriated for the Secretary of Commerce
                                                                                                           under section 114 for fiscal year 1977. This is an emergency an-


                                                                                                                                                                   H.R. 336
                                                                          or                 V-            N     A   14,



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                                                                                 5                                                                                                                                                                6

                     thorization intended to enable the Secretary to meet expanded responsi-                                                                                                                             SECTION-BY-SECTION ANALYSIS
                     bilities mandated by the Federal courts in the tuna-porpoise controversy.
                          The supplemental authorization would allow the Secretary to ex-                                                                                                 There follows a section-by-section summary of H.R. 4740 accom-
                     pand the tuna-porpoise observer program as required by recent court                                                                                             panied by discussion where appropriate:
                     decisions. The House has already passed a supplemental appropriation                                                                                            Section I
                     for the Department of Commerce in this area.
                          The need for this supplemental authorization arose out of a series                                                                                              Section I of the legislation would authorize $1.2 million to be ap-
                     of judicial decisions in 1976. In 1976, several environmental groups                                                                                            propriated to the Secretary of the Interior for carrying out his func-
                     challenged the legality of the 1976 regulations governing the fishing                                                                                           tions under section 110(c) of the act in fiscal year 1978. Section
                     of yellowfin tuna by setting on porpoise, in litigation brought in the                                                                                          110(a) of the act authorizes the Secretary to make research grants for
                     District Court for the District of Columbia.                                                                                                                    the conservation and protection of marine mammals. There would be
                          On May 11, 1976 Judge Charles R. Richey issued an opinion and                                                                                              authorized to be appropriated to the Secretary of Commerce $200,000
                     order declaring the Commerce regulations, general permit and certifi-                                                                                           under section 110(c) of the act for fiscal year 1978.
                     cates of inclusion issued to tuna fishermen void as contrary to the                                                                                             Section 2
                     provision of the Marine Mammal Protection Act. (Committee on Hit-                                                                                                    Section 2 of the legislation would authorize to be appropriated $8
                     matte Legislation, Inc. v. Elliot L. Richardson, et al. (C.A. No.                                                                                               million to the Secretary of Commerce for fiscal year 1977 and $11.5
                     74-1465) and Fund for Animals et al. v. Elliot L. Richardson, et                                                                                                million for fiscal year 1978 under section 114 of the act. As pre-
                     al., 414 F. Supp. 296 (D.D.C. 1976).                                                                                                                            viously explained, the 1977 supplemental authorization is required by
                          The court found that the Department of Commerce had granted the                                                                                            the Department of Commerce to expand their tuna-porpoise observer
                     tuna industry an unrestricted general permit, without limitation as to                                                                                          program to satisfy recent court decisions. Section 114 of the act
                     the number or kind of porpoise which might be killed, in contraven-                                                                                             authorizes funds to be appropriated to the Secretaries of the Interior
                     tion of the act. The court found that the Department failed to comply                                                                                           and Commerce to carry out their responsibilities under the act.
                     with the provisions of the act which require the agency to determine                                                                                                 In addition, section 2 would also authorize to be appropriated to the Secre-
                     and publish reasonable estimates of the existing population levels of                                                                                           tary of the Interior $850,000 in fiscal year 1978 under section 114 of the act.
                     each species affected by the regulations, the optimum sustainable
                     population of each of those species, and the expected impact of those                                                                                           Section 3
                     regulations on the effort to achieve an optimum sustainable popula-                                                                                                  Section 3 of the legislation would authorize to be appropriated un-
                     tion level for each species. On August 6, 1976 the court of appeals                                                                                             der section 207 of the act $2 million to the Marine Mammal Commis-
                     affirmed the decision of the district court.                                                                                                                    sion in fiscal year 1978 to carry out its responsibilities under the act.
                          In order to satisfy these rulings, the Department of Commerce
                     must greatly expand its observer program to monitor the porpoise                                                                                                                                            COST OF LEGISLATION
                     population levels. In addition, observer data is necessary to determine
                     compliance with the act and regulations promulgated under the act.                                                                                                   In the event this legislation is enacted into law and fully appropri-
                          The committee considers this supplemental authorization as vitally                                                                                         ated the maximum cost to the Federal Government in fiscal year 1977
                     necessary to enable Commerce to comply with the court decisions and                                                                                             would be $6 million, and the maximum cost in fiscal year 1978
                     prevent wholesale disruption of the American tuna industry.                                                                                                     would be $15,750,000.
                          The following is a chart of the authorizations and appropriations
                     under the Marine Mammal Protection Act since fiscal year 1974:                                                                                                                                   INFLATIONARY IMPACT STATEMENT

                          AUTHORIZATIONS AND APPROPRIATIONS UNDER THE                         MARINE MAMMAL PROTECTION ACT                                                                Pursuant to clause 2(l) (4) of rule XI of the Rules of the House of
                                           Fiscal year 1974           Fiscal year 1975           Fiscal year 1976             Fiscal year 1977                                       Representatives, the committee estimates that the enactment of H.R.
                                                                                                                                                                                     4740 would have no significant inflationary impact on the prices and
                     Section-Agency         Authorize-      Appro-    Authoriza-       Appro-    Authoriza-         Appro-    Authoriza-         Appro-                              cost in the national economy.
                                                  tion prIallon              tion priation               tlon      prIallon           lion       priallon
                     110-Intetior           $833,000     $833,000     $833,000     $833,000      $833,000        $833,000     $833,000       $833,000                                                      COMPLIANCE WITH CLAUSE 2(l) (3) OF RULE XI
                     t14-Intorlor             525,000     525,000        525.000    525,000         525,000       525,000        525.000         525,000
                     IN-Commerce            1,666,667             0   1,666,667     700,000      1,666,667      1,100,000     1,666,667      1,666.667                                    (A) The         Subcommittee on Fisheries, Wildlife Conservation and the
                     1114-Commerce          2,000,000     986.000     2,000,000     350,000      2,000,000      1.382,000     2,000,000      1,778,000                               Environment held oversight hearings on this act on February 17, 1977
                     207-Marlne Mammal                                                                                                                                               and March 2, 1977. The subcommittee does intend to hold further
                       Commission             825,000     412,000     1,000,000     750,000      1,000,000        900,000     1,000,000      1,000,000                               oversight hearings on the administration of this act from time to time
                                                                                                                                                                                     during the 95th Congress.
                                                                                                                                                                                          (B) The requirements of section 308(a) of the Congressional
                                                                                                                                                                                     Budget Act of 1974 are not applicable to this legislation.

                                                                                                                                                                                                                                                                                  MR, 336









                                                      7

                 (C) The Committee on Government Operations has sent no report
             to the Committee on Merchant Marine and Fisheries pursuant to
             clause 2(b)(2) of rule X.
                 (D) A letter was received from the Director of the Congressional
             Budget Office, pursuant to section 403 of the Congressional Budget
             Act of 1974 in reference to H.R. 4740 and follows herewith.

                                                       CONGRESSIONAL BUDGET OFFICE,
                                                                        U. S. CONGRESS,.
                                                       Washington, D.C., May 16, 1977.

             Hon. JOHN M. MURPHY,
             Chairman, Committee on Merchant Marine and Fisheries,
             Washington, D.C.
                 DEAR MR. CHAIRMAN: Pursuant to Section 403 of the Congressional
             Budget Act of 1974, the Congressional Budget Office has prepared
             the attached cost estimate for H.R. 4740, a bill to increase the appro-
             priations authorization for the fiscal year 1978 and authorize appro-
             priations for fiscal year 1978 to carry out the Marine Mammal
             Protection Act of 1972.
                 Should the committee so desire, we would be pleased to provide
             further details on the attached cost estimate.
                       Sincerely,
                                                       ALICE M. RIVLIN, Director.

     00
                           CONGRESSIONAL BUDGET        OFFICE-COST ESTIMATE

                                                                             MAY 16, 1977.
                 1. Bill number: H.R. 4740.
                 2. Bill title: To increase the appropriations authorization for the
             fiscal year 1978 and authorize appropriations for fiscal year 1978 to
             carry out the Marine Mammal Protection Act of 1972.
                 3. Bill status: As reported by the House Committee on Merchant
             Marine and Fisheries.
                 4. Bill purpose: The purpose of this bill is to authorize appropria-
             tions to carry out the purposes of the Marine Mammal Protection Act
             of 1972. New authorizations are made for Marine Mammal Research
             Grants, for the purposes of title I of the act (Conservation and Pro-
             tection of Marine Mammals), and for the Marine Mammal Commis-
             sion (MMC). In addition to the fiscal year 1978 authorizations, this
             bill also provides for increased authorizations for fiscal year 1977 for
             title 1. This bill is authorizing legislation which requires subsequent
             appropriation action.
                 5. Budget impact:

                                            [In millions of dollars)


             Net additional authorization, fiscal year:
                 1977  .........................................                            $6.00
                 1978  .........................................                            15.75
                 1979  ........................................                          -
                 1980  ........................................                          -
                 1981  ........................................                          -
                 1982  ........................................                          -


                                                                             H.R. 336
                                                                              )    OP-



                                                                            MM MM MMMM'm


                                                                        Calendar No. 1,%                                                                                  2
              95TH CONGRESS                            SENATE                                REPORT                                                         BACKGROUND AND NEED
                Ist Session                                                            No. 95-177                                 The Marine Mammal Protection Act was enacted in 1972 to pro-
                                                                                                                               vide increased protection to marine mammals found within U.S. juris-
                                                                                                                               diction; to restrict the importation and taking of marine mammals;
                                                                                                                               and to create the Marine Mammal Commission to do research and
                                                                                                                               review agency actions under the act. In passing the act, Congress Te-
                                                                                                                               sponded to the growing concern about man's impact on marine mam-
                     MARINE MAMMAL PROTEC71ON ACT AUTHORIZATION                                                                mals which include whales, porpoises, seals, sea otters, polar bears,
                                                                                                                               and manatees.
                                                                                                                                  The act gave to the Secretaries of Interior and Commerce the
                                                                                                                               authority and direction to establish general limitations upon the tak-
                                     MAY 16, 1977-Ordered to be printed                                                        ing of all marine mammals, and within those limitations, to issue per-
                                                                                                                               mits for their taking. Criminal and civil penalties are prescribed for
                   Mr. MAGNUSON from the Committee on Commerce, Science, and                                                   violations of the act, and the importation of marine mammals and
                                  Transportation, submitted the following                                                      their products is subject to regulation. The act created a three mem-
                                                                                                                               ber Marine Mammal Commission which is charged with responsibility
                                                                                                                               for monitoring the implementation of the act, recommending policies
                                                  REPORT                                                                       to the two Secretaries, and undertaking such research as is deemed
                                                                                                                               appropriate.
                                             [To accompany S. 15221                                                               Since the passage of the act the agencies have engaged in a wide
                                                                                                                               variety of research and management activities dealing with marine
                 The Committee on Commerce, Science, and Transportation reports                                                mammals. The Department of Commerce is currently engaged in re-
              the bill (S. 1522), to increase the appropriations authorization for fis-                                        search on fur seals and their ecosystems, whales and related species,
              cal years 1977 and 1978 and to authorize appropriations for fiscal                                               and the population status of several species of porpoises.
              year 1978 to carry out the Marine Mammal Protection Act of 1972,                                                    The Department of the Interior is currently engaged in a number of
              and for other purposes, and recommends that the bill do pass.                                                    research projects designed to provide information on the species un-
                                                                                                                               der their jurisdiction. These projects hopefully will obtain background
                                                    PURPOSE                                                                    information which serves as basic information for further studies on
                                                                                                                               the marine mammal environment. Current studies of community inter-
                 The purpose of the proposed legislation is to extend the authoriza-                                           actions and ecosystem functions of marine mammals will expand into
              tion period for the Marine Mammal Protection Act of 1972 through                                                 modeling approaches that will allow us to predict what will happen to
              fiscal year 1978 and to increase the authorization level under the act.                                          given population segments under expected circumstances. As an exam-
              The bill would also prohibit the taking of any species of whale in the                                           ple, the Department of Interior is engaged in an analysis of the popu-
              fishery conservation zone established by the Fishery Conservation and                                            lation status of polar bears, biological and reproductive studies, and
              Management Act.                                                                                                  the effects of environmental pollution on the animals. This research
                                                                                                                               has concentrated on studies of distribution and general movements as
                                          DESCRIPTION OF THE BILL                                                              well as den ecology and location. Cooperative studies with Canada
                                                                                                                               and the U.S.S.R. have been utilized to avoid duplicative efforts.
                 The original bill of the committee reauthorizes the provisions of                                                A large part of the time, money and effort of the Marine Mammal
              the Marine Mammal Protection Act for an additional 1 year (through                                               Commission and the Department of Commerce has been spent in an
              1978) at the following levels:                                                                                   attempt to find a solution to the tuna-porpoise problem. The tuna-por-
                                                                                                                               poise controversy results from fishing practices which make use of
              Section 110   .......      $1.1 million to the Department of Interior.                                           the little understood relationship between yellowfin tuna and certain
              Section 114(a)  .....      $8 million for the Department of Commerce for fiscal                                  species of porpoise. Commercial tuna purse-seiners herd yellowfin
                                             year 1977, and $11.5 million for fiscal year 1978.                                tuna which swim beneath and behind them. Thousands of porpoise,
              Section 114(b)  .....      $700,000 to the Department of the Interior for fiscal
                                             year 1978.                                                                        incidentally taken in order to catch the tuna are killed when they
              Section 207   .......      $1  million for the Marine Mammal Commission for                                      become entangled in the nets.
                                             fiscal year 1977, and $2 million for fiscal year 1978.                               A great deal of effort has gone into accumulating and analyzing
                                                                                                                               data on the status of porpoise populations in order to establish a
                 Section 4    of the bill    would amend the Marine Mammal Protection                                          permissable [sic] quota of animals to be taken by the tuna fishermen.
              Act to make     it unlawful for any person or vessel to take any species
              of whale in     the fishery conservation zone of the United States, the
              so-called 200-mile limit.

                                                                                                                                                                                                          S.R. 177








                                                                             3                                                                                                                                                          4

                  The Marine Mammal Commission and the Department of Commerce are                                                                                                  In order to satisfy these rulings, the Department of Commerce
                  extensively involved in developing fishing gear and techniques which re-                                                                                   must greatly expand its observer program to monitor the porpoise
                  duce the incidental kill of porpoise.                                                                                                                      population levels. In addition, observer data is necessary to determine
                       The bill would permit the agencies to continue and accelerate these                                                                                   compliance with the act and regulations promulgated under the act.
                  various research and management programs. The bill provides a total                                                                                              The committee considers this supplemental authorization as vitally
                  authorization to the Department of Interior of $1.8 million, of which                                                                                      necessary to enable Commerce to comply with the court decisions and
                  $1.1 million will be spent on research under section 110. The bill                                                                                         prevent wholesale disruption of the American tuna industry.
                  authorizes appropriations of up to $11.5 million for the Department                                                                                              The following is a chart of the authorizations and appropriations
                  of Commerce under section 114 for all activities. The Marine Mam-                                                                                          under the Marine Mammal Protection Act since fiscal year 1974:
                  mal Commission is authorized to be appropriated up to $2 million in
                  fiscal year 1978.                                                                                                                                                AUTHORIZATIONS AND APPROPRIATIONS UNDER THE MARINE MAMMAL PROTECTION ACT
                       A major portion of the funds authorized for the Department of                                                                                                                Fiscal year 1974          Fiscal year 1975          Fiscal par 1976              Fiscal year 1977
                  Commerce would go, if appropriated, to fund a 100 percent observer
                  program on all large tuna purse-seine vessels. The Department of                                                                                                 Agency           Authoriza-      Appro-    Authoriza-      Appro-    Authoriza-        Appro-     Authoriza-        Appro-
                  Commerce has indicated to the committee that $5 million would ade-                                                                                                                      tions  priations         lions pdations             lions     priallons          lions     pdations
                  quately fund a full observer program. The committee feels that the
                  institution of a full observer program is vitally necessary to collect                                                                                     Sec.110-Interior.      $833,000     $633,000     $833,000     $833,000     $833,000        $833,000     $833,000       $833,000
                  much-needed data on porpoise mortality and porpoise population levels.                                                                                     Sec.114-Interior.         525,000   525,000        525,000    525,000         525,000       525,000       525,000       525,000
                                                                                                                                                                             Sec.110-Commerce       1,666,667             0   1,666,667    700,000      1,666,687      1,100,000     1,666,667     1,666,667
                                                                                                                                                                             Sec.114-Commerce       2,000,000    986,000      2,000,000    350,000      2,000.000      1,382.000     2,000,000     1,778,000
                                     FISCAL YEAR 1977 SUPPLEMENTAL AUTHORIZATION                                                                                             Sec.207-MarIne Mammal
                                                                                                                                                                               Commission . .         825,000    412,000      1,000,000    750,000      1,000,000        900,000     1,000,000     1,000,000
                       The bill would increase from $2 million to $8 million the amount
                  of funds authorized to be appropriated for the Secretary of Commerce                                                                                                                           SECTION-BY-SECTION ANALYSIS
                  under section 114 for fiscal year 1977. This is an emergency authori-
                  zation intended to enable the Secretary to meet expanded responsibili-                                                                                                                                         SECTION I
                  ties mandated by the Federal courts in the tuna-porpoise controversy.
                       The supplemental authorization would allow the Secretary to ex-                                                                                             Section I would authorize $1.1 million for the Secretary of Inte-
                  pand the tuna-porpoise observer program as required by recent court                                                                                        rior to carry out its function under section 110 of the act in fiscal
                  decisions. The Congress has already passed a supplemental appropria-                                                                                       year 1978. Section 110 of the act authorizes the Secretary to make
                  tion for the Department of Commerce in thie [sic] area.                                                                                                    research grants for the conservation and protection of marine mam-
                       The need for this supplemental authorization arose out of a series                                                                                    mals. The Secretary of Commerce would be authorized to be appro-
                  of judicial decisions in 1976. In 1976, several environmental groups                                                                                       priated $200,000 under section 110 of the act for fiscal year 1978.
                  challenged the legality of the 1976 regulations governing the fishing                                                                                                                                          SECTION 2
                  of yellowfin tuna by setting on porpoise, in litigation brought in the
                  District Court for the District of Columbia.                                                                                                                     Section 2 of the legislation would authorize to be appropriated $8
                       On May 11, 1976 Judge Charles R. Richey issued an opinion and                                                                                         million to the Department of Commerce for fiscal year 1977 and
                  order declaring the Commerce regulations, general permit and certifi-                                                                                      $11.5 million for fiscal year 1978 under section 114 of the act. As
                  cates of inclusion issued to tuna fisherman [sic) void as contrary to                                                                                      previously explained, the 1977 supplemental authorization is required
                  the provision of the Marine Mammal Protection Act. (Committee on                                                                                           by the Department of Commerce to expand their tuna-porpoise ob-
                  Humane Legislation, Inc. v. Elliot L. Richardson, et al. (C.A. No.                                                                                         server program to satisfy recent court decisions. Section 114 of the
                  74-1465) and Fund for Animals et al. v. Elliot L. Richardson, et                                                                                           act authorizes funds to be appropriated to the Departments of Interior
                  al., 414 F. Supp. 296 (D.D.C. 1976).                                                                                                                       and Commerce to carry out their responsibilities under the act.
                       The court found that the Department of Commerce had granted the                                                                                             Section 2 would also authorize the Secretary of Interior to be ap-
                  tuna industry an unrestricted general permit, without limitation as to                                                                                     propriated $700,000 in fiscal year 1978 under section 114 of the act.
                  the number or kind of porpoise which might be killed, in contraven-
                  tion of the act. The court found that the Department failed to comply                                                                                                                                          SECTION 3
                  with the provisions of the act which require the Agency to determine                                                                                             Section 3 of the legislation would authorize the Marine Mammal
                  and publish reasonable estimates of the existing population levels of                                                                                      Commission to be appropriated $2 million in fiscal year 1978 under
                  each species affected by the regulations, the optimum sustainable                                                                                          section 207 of the act. Section 207 of the act authorizes                                               the Marine
                  population of each of those                     species, and the expected impact of those                                                                  Mammal Commission to be appropriated funds to carry out its respon-
                  regulations on the effort to achieve an optimum sustainable popula-                                                                                        sibilities under the act.
                  tion level for each species. On August 6, 1976 the Court of Appeals
                  affirmed the decision of the                     District court.


                                                                                                                                                                                                                                                                                     S.R. 177
         ali            low             IIII    I       @l     I        al 9            1     -0



                                                                                                                                                            M                           M, so gal


                                                                  5


                                                            SECTION 4

                    Section 4 of the legislation would amend section 102 of the Ma-
                rine Mammal Protection Act to make it unlawful for any person or
                vessel or other conveyance to take any species of whale in the fish-
                ery conservation zone of the United States, as defined in section 3(8)
                of the Fishery Conservation and Management Act of 1976 (16 U.S.C.
                1802(8)).

                                                       ESTIMATED COSTS

                    Pursuant to the requirements of section 252 of the Legislative Re-
                organization Act of           1970, the committee estimates that the cost of the
                proposed legislation would be               as follows:

                                                                                                   Fiscal Year-
                                                                                                    1977          1978

                Sec. 110                                                                                    $11,1100,000
                See. 114(a) ........................................                           $8,00D,000    11,500,000
                Sec. 114(b) .                                                                                  700,000
                Sec. 207  .........................................                             1,000,000     2,000,000


                    1 Including an Increase In the authorization for fiscal year 1977 on an emergency basis.







































                                                                                                      S.R. 177









                                                                                                                            95TH CONGRESS             HOUSE OF REPRESENTATIVES                            REPoRT
                                                                                                                              2d Session                                                           No. 95-1028







                                                                                                                                               MARINE MAMMAL PROTECTION ACT
                                                                                                                                                       OF 1972 AUTHORIZATION



                                                                                                                                 MARcH 31, 1978-Committed to the Committee of the Whole House on the
                                                                                                                                                State of the Union and ordered to be printed.


                                                                                                                                    Mr. MURPHYof New York, from the Committee on Merchant
                                                                                                                                             Marine and Fisheries, submitted the following

                                                                                                                                                                REPORT

                                                                                                                                                         [To accompany H.R. 107301

                                                                                                                                        fIncluding cost estimate of the Congressional Budget Office)

                                                                                                                               The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                                            referred the bill (H.R. 10730) to authorize appropriations to carry out
                                                                                                                            the Marine Mammal Protection Act of 1972 during fiscal years 1979,
                                                                                                                            1980, and 1981, having considered the same, report favorably thereon
                                                                                                                            with an amendment and recommend that the bill as amended do pass.
                                                                                                                               The amendment is as follows:
                                                                                                                               Strike out all after the enacting clause and insert in lieu thereof
                                                                                                                            the following:

                                                                                                                            That section 109 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1379)
                                                                                                                            is amended by adding at the end thereof the following new subsection:
                                                                                                                              "(d)(1) There are authorized to be appropriated to the Department of the Interior,
                                                                                                                            for the purposes of carrying out this section, not to exceed the following sums for
                                                                                                                            the following fiscal years:
                                                                                                                                    ..(A) $400,000 for each of the fiscal years ending September 30, 1979,
                                                                                                                                 September 30, 1980, and September 30, 1981.
                                                                                                                              "(2) There are authorized to be appropriated to the Department of Commerce, for
                                                                                                                            purposes of carrying out this section, not to exceed the following sums for the
                                                                                                                            following fiscal years:
                                                                                                                                    '(A) $225,000  for each of the fiscal years ending September 30, 1979, Sep-
                                                                                                                                 tember 30, 1980,  and September 30, 1981."
                                                                                                                              Sec. 2. Section 110(c) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
                                                                                                                            1380(c)), is amended by adding at the end thereof the following new paragraphs:
                                                                                                                                    "(4)(A) $1,300,000 which shall be available   to the Secretary of the Interior
                                                                                                                                 for the fiscal year ending September 30, 1979.
                                                                                                                                    "(B) $1.600,000 which shall be available to   the Secretary of Commerce for
                                                                                                                                 the fiscal year ending September 30, 1979.
                                                                                                                                    "(5)(A) $1,500,000 which shall be available   to the Secretary of the Interior
                                                                                                                                 for the fiscal year ending September 30, 1980.
                                                                                                                                    "(B) $2,000,000 which shall be available to   the Secretary of Commerce for
                                                                                                                                 the fiscal year ending September 30, 1980.








                                                                                                                                                     3

                                                                                                                and such sums as may be necessary for fiscal year 1980. Representatives
                                                                                                                of the conservation groups supported the legislation, although they ex-
                                                                                                                pressed their strong support for increasing the funding for enforcement
                                                                                                                activities under the act.
                                                                                                                   The witness for the Marine Mammal Commission testified that the.
                                                                                                                Commission supported an authorization level of $800,000.
                                                                                                                   The subcommittee gave careful consideration to the evidence pre-
                                                                                                                sented at the hearings and the Departmental reports. On March 14,
                                                                                                                1978, the subcommittee unanimously ordered H.R. 10730 reported to
                                                                                                                the full committee with an amendment. The amendment adopted by
                                                                                                                the subcommittee, which was accomplished by striking out all after
                                                                                                                the enacting clause and substituting new language, would accomplish
                                                                                                                the following:
                                                                                                                       Authorize appropriations of $400,000 to the Department of the In-
                                                                                                                    terior under section 109 for each of fiscal years 1979, 1980, and
                                                                                                                    1981;
                                                                                                                       Authorize appropriations of $225,000 to the Department of Com-
                                                                                                                    merce under section 109 for each of fiscal years 1979, 1980, and
                                                                                                                    1981;
                                                                                                                       Authorize appropriations of $1.3 million for fiscal year 1979, $1.5
                                                                                                                    million for fiscal year 1980, and $2.1 million for fiscal year 1991 to
                                                                                                                    enable the Department of the Interior to carry out its responsibilities
                                                                                                                    under section 110;
                                                                                                                       Authorize appropriations of $1.6 million for fiscal year 1979, $2.0
                                                                                                                    million for fiscal year 1980, and $2.5 million for fiscal year 1981 to
                                  PURPOSE OF THE LEGISLATION                                                        enable the Department of Commerce to carry out its responsibilities
              The purpose of H.R. 10730 is to authorize appropriations for fiscal                                   under section 110;
           years 1979, 1980 and 1981 to carry out the Marine Mammal Protec-                                            Authorize appropriations of $8.5 million for fiscal year 1979, $9.0
                                                                                                                    million for fiscal year 1980, and $9.5 million for fiscal year 1981 to
           tion Act of 1972.                                                                                        the Department of Commerce under section 114;
                                                                                                                     1 Authorize appropriations of $650,000 for fiscal year 1979,
                                    LEGISLATIVE BACKGROUND                                                          $760,000 for fiscal year 1980, and $876,000 for fiscal year 1981 to
                                                                                                                    the Department of the Interior under section 114; and
              H.R. 10730 was introduced on February 2, 1978, by Mr. Murphy of                                          Authorize appropriations to the Marine Mammal Commission un-
           New York and cosponsored by Mr. Leggett, Mr. Ruppe, Mr. Biaggi, Mr.                                      der section 207 of $1.0 million for each of fiscal years 1979, 1980
           Anderson of California, Mr. Forsythe, Mr. de la Garza, Mr. Metcalf, Mr.                                  and 1991.
           McCloskey, Mr. Breaux, Mr. Ginn, Mr. Pritchard, Mr. Studds, Mr.                                         The Committee on Merchant Marine and Fisheries unanimously or-
           Bowen, Mr. Lent, Mr. de Lugo, Mr. Hubbard, Mr. Emery, Mr. Bonker,                                    dered reported H.R. 10730, as amended, to the House on March 16,
           Mr. AuCoin, Mr. Bauman, Mr. D'Amours, Mr. Patterson of California,                                   1978.
           Mr. Zeferetti, and Mr. Oberstar. An identical bill, H.R. 10731, was in-
           troduced on February 2, 1978, by Mr. Murphy of New York, and co-                                                   BACKGROUND AND NEED FOR THE LEGISLATION
           sponsored by Mr. Akaka, Mr. Trible, and Ms. Mikulski.
              The Subcommittee on Fisheries and Wildlife Conservation and the                                      The Marine Mammal Protection Act was enacted in 1972 for the
           Environment held hearings on the legislation on February 7, 1978.                                    purpose of insuring that marine mammals do not diminish below their
           The subcommittee received testimony from representatives of the De-                                  optimum sustainable population. In passing the act, Congress re-
           partment of Commerce, Department of the Interior, Marine Mammal                                      sponded to the growing concern about man's impact on marine mam-
           Commission, Defenders of Wildlife, Monitor, Inc., and the Society for                                mals such as whales, dolphins, seals, sea otters, polar bears, and
           Animal Protective Legislation.                                                                       manatees.
              All the witnesses appearing before the Subcommittee expressed                                        The act directed the Secretary of the Interior and the Secretary of
           their strong support for extending the authorization of appropriations                               Commerce to establish general limitations on the taking of all marine
           under the act. The Department of Commerce witness suggested an                                       mammals. Criminal and civil penalties are prescribed for viola-
           authorization of $6.748 million for fiscal year 1979 and such sums as                                tions of the act and the importation of marine mammals and
           may be necessary for fiscal year 1980. 'Me Department of the Interior                                their products is subject to regulation. The act created a three-
           witness suggested an authorization level of $1.6 million for fiscal year 1979                        member Marine Mammal Commission which is charged with the
                                                                   Km-       111 1      1,       V              N         'V       - 1@                   4          -



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                                                   4                                                                                                       5

            responsibility of monitoring the implementation of the act, recommending                                   In addition to the specific accomplishments noted above, the Ma-
            policies to the two secretaries, and undertaking such research as is                                    rine Mammal Protection Act has focused national attention on the
            deemed appropriate.                                                                                     need to protect and conserve marine mammals. Research conducted
                Since passage of the act, the agencies have engaged in a wide                                       under the act has often provided the first detailed information on the
            variety of research and management activities dealing with marine                                       population status of marine mammals. This expanded knowledge has
            mammals. The Department of Commerce, which has responsibility for                                       enabled us to better assess the impact of various ocean-related devel-
            whales, dolphins, sea lions, and seals, is currently engaged in research                                opment activities on marine mammals. An understanding of these im-
            designed to provide information on the population status of several of                                  pacts and of the relationship of marine mammals to their ecosystem
            these species as well as their relationship to their ecosystems.                                        permits the development of programs to ensure that these species re-
               The Department of the Interior, which is vested with the responsi-                                   main a functioning part of their ecosystem. H.R. 10730 will permit a
            bility for polar bears, walruses, sea otters, manatees, and dugongs, is                                 continuation of this important work.
            currently engaged in a number of projects designed to provide essen-                                       H.R. 10730, as amended, establishes a line item authorization under
            tial biological data on these species. Current studies of community                                     section 109 of the act. Section 109 authorizes matching grants to states
            interactions and ecosystem functions of marine mammals will expand                                      which have adopted approved management programs for marine mam-
            into modeling approaches that will allow scientists to predict what                                     mals under their jurisdiction. The committee feels that insufficient atten-
            will happen to these species under given circumstances. A number of                                     tion has been given to the needs of these states. The authorization
            research projects being conducted by both Departments are aimed at                                      provided in H.R. 10730 reflects information received from California,
            developing solutions to specific marine mammal problems. The cur-                                       Alaska, and Florida regarding the nature and extent of their needs for
            rent research and development activities are a continuation of a suc-                                   marine mammal funds. The State of Alaska indicated to the committee
            cessful program under the act.                                                                          that it will seek section 109 matching funds of $204,800 for the manage-
               A list of the major accomplishments under the Marine Mammal                                          ment of sea otters, walruses, and polar bears. The State of California
            Protection Act of 1972 includes the following:                                                          indicated to the committee that it will seek matching funds of $125,000
                    The development of dolphin-saving tuna nets which have been a                                   for the management of sea otters and marine mammal enforcement activi-
                 major factor in reducing the level of dolphin mortality incidental to                              ties. The State of Florida indicated to the committee that it will seek
                 commercial fishing operations.                                                                     matching funds of $75,000 for the management of manatees.
                    Research on the behavior of dolphins in tuna nets. This effort led                                 H.R. 10730, as amended, authorizes appropriations to the Depart-
                 to several modifications of fishing techniques which further reduced                               ments of the Interior and Commerce under section 110 of the act.
                 incidental dolphin mortality.                                                                      Section 110 authorizes these departments to make grants to Federal
                    The completion of several experimental cruises to determine addi-                               and State agencies, public or private institutions, or other individuals
                 tional methods of reducing incidental dolphin mortality. This program                              to perform research relevant to the protection and conservation of ma-
                 is a cooperative effort with the U.S. tuna industry which financed the                             rin& mammals. The authorizations figures in H.R. 10730, as amended,
                 cost of providing a dedicated research vessel.                                                     differ substantially from the amounts requested by the Administration
                    Biological research on the endangered Florida manatee.                                          under section 110. The Department of Commerce did not request any
                    The establishment of a joint United States-U.S.S.R. marine mam-                                 funding under section 110, preferring to have all of its authorization
                 nial research program which has focused primarily on the distribution                              included under section 114. However, placement of all research fund-
                 and behavior of polar bears.                                                                       ing under section 114 has leadfsic] to a substantial amount of re-
                    Studies of the interaction between marine mammals and commer-                                   search being done in-house. The committee feels that inadequate
                 cially harvested fish.                                                                             attention has been given by the Department of Commerce to the exper-
                    Research on the impact of oil spills, in particular the Nantucket                               tise available outside of the Department. In addition, by funneling its
                 oil spill, on marine mammals.                                                                      entire research program through section 114, the Department is able to
                    Research which led to the listing of the Hawaiian monk seal as                                  avoid the requirement contained in section 110 that all outside research
                 endangered and the development of a program to protect the species.                                contracts be reviewed by the Marine Mammal Commission. H.R. 10730,
                    The development of care and maintenance standards for marine                                    as amended, makes it clear that all research grants that are contracted to
                 mammals held in captivity.                                                                         agencies and individuals outside the Department of Commerce should be
                    Research on the population status of whales which provided the                                  funded under section 110 and subject to review by the Marine Mammal
                 biological data leading to a substantial reduction in the international                            Commission. The authorization levels provided in H.R. 10730 for the
                 harvest of whales.                                                                                 Department of Commerce under section 110 reflect information re-
                    The development of information on the impact of development ac-                                 ceived from states as to their anticipated marine mammal research
                 tivitics on the lagoons where gray whales breed.                                                   needs, as well as information provided by the Department of Com-
                    Research on the population status of killer whales in Puget Sound.                              merce on significant unfunded research programs.
                 Ibis effort led to the development of a radio tracking system which                                   The Department of Commerce indicated to the committee that nor-
                 has greatly assisted scientists in determining the migration patterns                              mally 25 percent of its research funds are contracted to institutions
                 and population size of marine mammals.                                                             and individuals outside the Department of Commerce. The section
                                                                                                                    110 authorization in H.R. 10730, as amended, includes 25 percent








                                                           6                                                                                                                        7

              of the research funds in the Administration's fiscal year 1979 marine                                                         research on these species. There is a pressing need for basic baseline
              mammal budget which had been requested under section 114. It also in-                                                         biological data without which the U.S. and Mexico will not be able
              cludes 25 percent of the funds for projects which would not be funded in                                                      to evaluate the impact of offshore activities on these species.
              the Department's request but which the Committee feels should receive                                                       The Department of the Interior requested an authorization of $1
              funding. These projects include:                                                                                         million for section 110 research. The authorization level provided in
                       East Coast whale research.-Many species of great whales, nota-                                                  H.R. 10730, as amended, includes this amount as well as the amount
                   bly the humpback whale, the bryde's whale, the fin whale, and the                                                   necessary for additional significant unfunded research on the endan-
                   sperm whale, are found along th[sic] east coast of the United States.                                               gered manatee.
                   Unfortunately, little is known about the migration patterns of these                                                   H.R. 10730 also authorizes appropriations to the Department of the
                   species. Without baseline biological data, the Department of Commerce                                               Interior and the Department of Commerce under section 114 of the
                   is unable to adequately assess the impact of activities such as oil explo-                                          Act. Section 114 authorizes appropriations to these Departments to
                   ration and ocean dumping on these whale populations.                                                                carry out their responsibilities under the Act. These responsibilities
                       Bottlenose dolphin research.-Since the passage of the Marine                                                    include administration of the Act, enforcement efforts, as well as re-
                   Mammal Protection Act, approximately 25 bottlenose dolphins per                                                     search and management programs other than those funded under sec-
                   year have been taken for public display facilities. Although available                                              tion 109 or 110. The authorization levels provided in H.R. 10730, as
                   data suggests this level of taking constitutes no threat to the existing                                            amended, reflect the amounts requested by the Departments as welt as
                   population, additional data is necessary to confirm that belief. In cer-                                            the amounts necessary to fund the significant unfunded research pro-
                   tain locations, the population of bottlenose dolphins has fallen dra-                                               grams mentioned above. In addition, the Committee has provided an
                   matically, although the overall population has remained high. 'Me                                                   additional $600,000 for research on the marine mammals of the Ant-
                   reason for these sudden declines in the population is not known. To                                                 arctic Ocean. With the pending negotiation of a treaty for the conser-
                   prevent further decline and to prevent similar declines in other areas,                                             vation of the living marine resources of the Antarctic, it is critical
                   it is necessary to establish a comprehensive program for gathering                                                  that the United States expand its research efforts on the population
                   baseline biological data.                                                                                           status of these species. The Section 114 funding level for the Depart-
                       Dail porpoise research.-Foreign fishing vessels operating within                                                ment of Commerce also includes an increase of $1.2 million for gen-
                   the United States' 200-mile fishing zone are taking marine mammals                                                  eral enforcement of the Act and $500,000 for enforcement of
                   incidental to fishing operations. The Marine Mammal Commission es-                                                  regulations governing the taking of bowhead whales by Alaskan na-
                   timates that prior to the passage of the Fishery Conservation Manage-                                               tives. Finally, the committee has provided $400,000 per year under
                   ment Act of 1976 (FCMA) approximately 10,000 to 20,000 porpoises                                                    section 114 for the Department of Commerce to fund the U.S. share
                   were taken incidental to Japanese fishing operations in the northern                                                of the international observer program sponsored by the Inter-Ameri-
                   Pacific alone. The Marine Mammal Protection Act, as amended by                                                      can Tropical Tuna Commission. This program provides for the place-
                   the FCMA, requires that these countries obtain a permit to take these                                               ment of observers on vessels of other nations which are taking
                   species. Before a permit can be granted, the Secretary of Commerce                                                  dolphins incidental to commercial tuna fishing. Although the U.S.
                   must find that the taking will not be to the disadvantage of the spe-                                               agreed to the international observer program last fall, it has not yet
                   cies involved. Last year the Government of Japan applied for a ma-                                                  provided its share of funding for the program.
                   rine mammal permit but their application was rejected on the grounds                                                   Section 207 of the Marine Mammal Protection Act authorizes ap-
                   that the Secretary lacked the data with which to make the necessary                                                 propriations to the Marine Mammal Commission. H.R. 10730 author-
                   findings under the Marine Mammal Protection Act. The Department                                                     izes appropriations of $1 million to the Commission for each of fiscal
                   of Commerce has not requested any funds to accomplish the needed                                                    years 1979, 1980 and 1981. The fiscal year 1979 authorization level
                   research on this and other species which are taken incidentally by                                                  in the bill is $300,000 more than recommended by the Administra-
                   foreign fishermen operating in the United States' 200-mile zone.                                                    tion.
                       Marine mammal strandings. In recent years, there has been a sub-                                                   The Administration over the last few years has been attempting to
                   stantial number of strandings of marine mammals. These strandings                                                   reduce the funding for the Marine Mammal Commission. The Commit-
                   offer the opportunity for scientists to engage in opportunistic re-                                                 tee strongly feels that the Commission has played a major role in the
                   search. Because of budgetary restraints, many research institutions are                                             resolution of several marine mammal controversies, and that the Com-
                   unable to respond to such opportunities.                                                                            mission should continue to be fully funded. If the Commission's
                       United States/Mexico whale and seal research. Numerous ma-                                                      budget is reduced from the existing $900,000 level, the Commission's
                   rine mammal species-including the gray whale, the Guadalupe                                                         important contribution to marine mammal research will be signifi-
                   fur seal and the elephant seal-inhabit the waters off the                                                           cantly reduced. An authorization of $1 million for each year would
                   United States and Mexico.                   The Department of Commerce's                                            provide $488,000 for research in fiscal year 1979 and $457,000 for
                   fiscal year 1979 budget request provides inadequate funding for                                                     research in fiscal year 1980. These sums are adequate to maintain a
                                                                                                                                       strong and useful research program within the Commission.
                                                                                                                                          The committee notes that the Marine Mammal Commission has
                                                                                                                                       played a valuable role in resolving the tuna-dolphin program by pro-
                                                                                                                                       viding important research funding. In 1976 the Commission invested

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                                                                       MARINE MAMMAL PROTECTION ACT-AUTHORIZATIONS AND APPROPRIATIONS

                                                                                                              [Fiscal years]


                                                                                        1974                                 1975                               1976                                 1977
                         Agency                                            Authorization     Appropriation      Authorization     Appropriation      Authorization     Appropriation     Authorization      Appropriation
                 Interior Department
                     Sec. 110 (Research)    ..............                     $833,000           $833,000         $833,000           $833,000          $833.000          $833,000            $833,000         $833,000
                     Sec. 114 (Adminstration)    ...........                    525,000            525,000          525,000            525.000            525,000           525.000           525.000            525,000
                 Commerce Department
                     Sec. 110 (Research)    ..............                     1,666,667                  0        1,666,667           700,000          1,666,667         1,100,000           1,666,667        1,666.667
                     Sec. 114 (Administration)   ...........                  2,000,000            986,000         2,000,000           350,000          2,000,000         1,382,000           2.000,000        2778000
                 Marine Mammal Commission: Sec207                . .             826,000           4112,000        1,000,000           750,000          1,000,000           9DO,000           1,000,000        1:000:000



                                                                MARINE MAMMAL PROTECTION ACT-AUTHORIZATIONS AND APPROPRIATIONS-Corninued


                                                                                                   Fiscal year 1978            H.R. 10703 as                           H.R. 19730,   as amended
                                                                                                                                 intioduced in
                                                                                                                                each of 1979,
                        Agency                                                                Authorization     Appropriation       1980,1981     Section                       1979          -  -1980              1981
                 Interior Department:                                                                                                             109   ......            $400,000            $400,000         $400,000
                     See. 110 (Research)    .........................                           $1,200,000         $950,000           $933,000    110   ......            1,300,000           1,500,000        2.100,000
                     Sec. 114 (Administration)   ........         .............                    850,000          589,000            425,000    114   ......              650,000           760,000            876,000
                 Commerce Department:                                                                                                             109   ......              225.000           225,000            225,000
                     Sec. 110 (Research)    .........................                              200,000                 .0          200,000    110   ......            1,600,000           21000.000        2,500,000
                     Sec. 114 (Administration)   ......................                         11,500,000         4,872,000         6,162,000    114   ......            8,500,000           9,000,000        9,500.000
                 Marine Mammal Commission: Sec. 207          ................                    2,000,000          900,000            702,000    107   ......            1,000,000           1,000,000        1,000,000


                 *Commerce Department requested all appropriations be included under Sec. 114 and the entire amount of $4,872,000                 was appropriated under that section.








                                                10                                                                                                 11

                                 SECTION-BY-SECTION ANALYSIS                                                  gressional Budget Office) for the 3-year extension of the act would be
                                                                                                              $13.675 million for fiscal year 1979, $14.885 million for fiscal year
              There follows a section-by -section summary         of H.R. 10730, as                           1980, and $16.601 million for fiscal year 1981.
           amended, accompanied by discussion where appropriate.
           Section I
              Section I of the legislation would authorize $400,000 to the De-
           partment of the Interior for each of fiscal years 1979, 1980, and 1981
           to carry out its functions under section 109 of the act. This section
           would also authorize $225,000 to the Department of Commerce to
           carry out its responsibilities under section 109 in each of fiscal years
           1979, 1980 an [sic) 1991.
              Section 109 of the Marine Mammal Protection Act authorizes the
           Departments of the Interior and Commerce to provide matching grants
           to states which have resumed management of marine mammals under
           the act.
           Section 2
              Section 2 of the legislation would authorize appropriations to the
           Secretary of the Interior under section 110 of $1,300,000 in fiscal
           year 1979, $1,500,000 in fiscal year 1980 and $2,100,000 in fiscal
           year 1981. This section would also authorize to the Secretary of
           Commerce under section 110 $1,600,000 in fiscal year 1979,
           $2,000,000 in fiscal year 1980 and $2,500,000 in fiscal year 1981.
              Section 110 of the Marine Mammal Protection Act authorizes the
           Secretaries of the Interior and Commerce to make grants or to pro-
    00
           vide financial assistance to any Federal or state agency, public or
           private institution, or other persons 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.
           Section 3
              Section 3 of the legislation would authorize to the Department of
           Commerce under section 114 of the act $8,500,000 in fiscal year
           1979, $9,000,000 in fiscal year 1980, and $9,500,000 in fiscal year
           1981. Section 3 would also authorize to the Department of the Inte-
           rior to carry out its responsibilities under section 114 of the act
           $650,000 in fiscal year 1979, $760,000 in fiscal year 1980, and
           $876,000 in fiscal year 1981.
              Section 114 provides funds to the Secretary of the Interior and the
           Secretary of Commerce to conduct research not provided for in Sec-
           tion 110 and to administer and enforce the act.
           Section 4
              Section 4 of the legislation would authorize to be appropriated to
           the Marine Mammal Commission $1,000,000 under section 207 in
           each of fiscal years 1979, 1980, and 1981 to carry out the Commis-
           sion's responsibilities under the act.

                                   COST OF THE LEGISLATION

              In the event the legislation is enacted into law and money author-
           ized are fully appropriated, the Committee estimates the maximum
           cost to the Federal Government (after considering the information sup-
           plied by the Government agencies and their representatives and the Con-







                                                                                                                                                   Calendar No. 818
                                                                                                    95TH CON@RESS                    SENATE                          REPoRT
                                                                                                      2d Session       J                                        No. 95-888







                                                                                                          MARINE MAMMAL PROTECTION ACT AUTHORIZATION



                                                                                                            MAY 15 (legislative day, APRu, 24), 1978-Ordered to be printed


                                                                                                          Mr. CANNOK from the Committee. on Commerce, Science, and
                                                                                                                     Transportation, submitted the following

                                                                                                                                  REPORT

                                                                                                                            [To accompany H.R. 107301

                                                                                                       The Committee on Commerce, Science, and Transportation, to
                                                                                                    which was referred the bill (H.R. 10730), to authorize appropriations
                                                                                                    to carry out the Marine Mammal Protection Act of 1972 during fiscal
                                                                                                    years 1979, 1980, and 1981, having considered the same, reports fa-
                                                                                                    vorably thereon with an amendment in the nature of a substitute and
                                                                                                    recommends that the bill as amended do pass.

                                                                                                                                   PURPOSE

                                                                                                       The purpose of H.R. 10730, as amended, is to extend the authori-
                                                                                                    zation period for the Marine Mammal Protection Act of 1972 through
                                                                                                    fiscal years 1979, 1980, and 1981, and to increase the authorization
                                                                                                    levels under the act.


                                                                                                                           BACKGROUND AND NEEDS


                                                                                                    Background
                                                                                                       The Marine Mammal Protection Act was enacted in 1972 to pro-
                                                                                                    vide increased protection to marine mammals found within U.S. juris-
                                                                                                    diction; to restrict the importation and taking of marine mammals;
                                                                                                    and to create the Marine Mammal Commission to do research and
                                                                                                    review agency actions under the act. In passing the act, Congress re-
                                                                                                    sponded to the growing concern about man's impact on marine mam-
                                                                                                    mals which include whales, porpoises, seals, sea otters, polar bears,
                                                                                                    and manatees.
                                                                                                       The act gave to the Secretaries of Interior and Commerce the
                                                                                                    authority and direction to establish general limitations upon the tak-
                                                                                                    ing of all marine mammals, and within those limitations, to issue per-
                                                                                                    mits for their taking. Criminal and civil penalties are prescribed for viola-


                                                                                                                                                                S.R. 888








                                               2                                                                                                3

           tions of the act, and the importation of marine mammals and their prod-                          Commerce and the U.S. Tuna Foundation for utilization of a dedicated
           ucts is subject to regulation. The act created a three member Marine                             research vessel provided by the tuna industry. In addition to these activi-
           Mammal Commission which is charged with responsibility for monitoring                            ties, the commission reviewed research efforts of Federal agencies, and
           the implementation of the act, recommending policies to the two Secretar-                        made a series of recommendations on a variety of actions affecting ma-
           ies, and undertaking such research as is deemed appropriate.                                     rine mammals, such as cooperative research and conservation agreements
              Since the passage of the act, the agencies have engaged in a wide                             with Mexico, Alaska's request to waive the moratorium on nine marine
           variety of research and management activities dealing with marine                                mammal species, and permit applications to take marine mammals for sci-
           mammals. The Department of Commerce is currently engaged in re-                                  entific research and public display.
           search on competition between marine mammals and fishermen for                                   Committee Action
           fishery resources, incidental catch of marine mammals in fisheries                                  H.R. 10730 was passed by the House on April 10, 1978. The Com-
           other than the yellowfin tuna fishery, and the size and migration pat-
           terns of bowhead whale off the North Slope of Alaska. The Depart-                                mittee on Commerce, Science, and Transportation held a full commit-
           ment of Commerce is continuing its research and regulatory efforts                               tee hearing on the bill on May 3, 1978. The committee received
           with regard to the tuna-porpoise problem. Significant progress has                               testimony from representatives of the Department of Commerce, De-
           been made in this area with the cooperation and support of the tuna                              partment of the Interior, Marine Mammal Commission, Monitor, Inc.,
           industry and the Marine Mammal Commission. The incidental take of                                and Defenders of Wildlife.
           porpoise recently has dropped to 0.25 animals per ton of yellowfin                                  All the witnesses appearing before the committee expressed their
           tuna caught on porpoise. In the first 4 months of this year, that has                            strong support for extending the authorization of appropriations under
           decreased further to 0.24 animals per ton.                                                       the act. The hearing examined in some detail whether the authoriza-
              The Department of the Interior is currently engaged in extensive                              tion levels requested by the administration and those contained in
           research on polar bear distribution, den location, and environment.                              H.R. 10730 would be adequate to maintain the level of research, pol-
           Two distinct populations of sea otters, those in California and Alaska,                          icy development, and enforcement envisioned by the act. This point
           are being studied in regard to community studies, with particular em-                            was stressed in regard to the Marine Mammal Commission authoriza-
           phasis in the California population on the shellfish-sea otter relation-                         tion. The committee feels that the authorization level requested by the
           ship. Although management of the Pacific walrus has been returned to                             Administration is too low to permit the commission to continue to
           the State of Alaska, the Fish and Wildlife Service is continuing to                              provide policy review of the activities of the Federal agencies, and
           cooperate with the State in its research program.                                                continue research projects on a need basis, which are intended to be
              The state of the manatee population in Florida has been of special                            taken over by the departments as their efforts gain more comprehen-
           concern to the Fish and Wildlife Service, which has continued the                                siveness. For these reasons, the committee feels that the authorization
           research into the distribution of the population and environmental                               level proposed in H.R. 10730 of $1 million for each of the next 3
           conditions, and stepped up enforcement, in cooperation with the State                            fiscal years is much more realistic in terms of the variety of tasks
           of Florida, to provide protection for this endangered species from mo-                           which the Marine Mammal Commission is responsive[sic] for carry-
           torboat traffic in protected areas. Research is underway in cooperation                          ing out than is the administration request.
           with the Florida Power and Light Co. on the influence of warm water                                 Under section 109, the Secretaries of Commerce and Interior may
           effluents from powerplants. Areas which receive these effluents seem                             make grants to States to develop and implement management plans
           to be effecting a change of winter population distribution of the                                for the purpose of marine mammal management if the Secretaries de-
           manatee, with mortality connected with a drop in water temperature                               termine that State laws and regulations are in keeping with the poli-
           when the warm water effluents are reduced in correspondence with                                 cies of the act. These grants can provide up to 50 percent of the
           the power output requirements from the plants.                                                   cost. In the past, this segment of the act has not received a separate
              The Department of the Interior is involved     internationally in coop-                       authorization. The bill provides for an authorization under section
           erative efforts with the Soviet Union on polar    bears, in implementing                         109, and the committee believes that this is a necessary and wise step
           the five-nation agreement on the Conservation of Polar Bears for the                             to assist those States with the capability to assume management re-
           United States, with population and distribution    studies of the dugong,                        sponsibilities.
           and in cooperative efforts with Mexico to examine the status of                                     In the committee's review of the Marine Mammal Protection Act,
           manatees.                                                                                        particular attention has been given to the bowhead whale controversy
              The Marine Mammal Commission has been          involved in a wide va-                         involving subsistence hunting of this species by Alaskan Natives. The
           riety of activities affecting the protection of marine mammals both                              Department of Commerce currently has underway a comprehensive
           domestically and internationally. In 1977 the     Commission supported                           research and monitoring effort in Alaska in response to concerns
           more than $500.000[sic] in research and studies concerning marine                                voiced by the International Whaling Commission (IWC) concerning
           mammals. In regard to the tuna-porpoise controversy, the commission                              the status of the bowhead population, and the Alaskan Natives con-
           helped to develop a project, in cooperation with the Department of                               cerning the cultural and nutritional needs to continue the hunt. As
                                                                                                            a result of a quota for taking of bowheads applied by the IWC in



                                                                                                                                                                           S.R. 888
                                                      loin      I    I



                                                        =                                                                                                                       M W, ill


                                                            4                                                                                                                    5

               December 1977, and a ruling by the             Department of Commerce, the hunt                                          5. Cost Estimate:
               is being limited to 12 landed or 18            struck, whichever occurs first. Ile                                   Fiscal year 1979:                                                                    Millions
               major basis for the controversy has           been incomplete data on population                                          Authorization level   ...............................                            $14.8
                                                                                                                                         Estimated cost     .................................                               12.5
               levels of the bowhead whale. In light of this, the committee recommends                                              Fiscal year 1980:
               additional funding under section 110 for the Department of Commerce to                                                    Authorization level   ...............................                              15.6
               be utilized for research and monitoring of this species. The committee                                                    Estimated cost     .................................                               15.4
               amended H.R. 10730 to raise the levels of authorization of appropriations                                            Fiscal year 1981:
               for each of the next 3 fiscal years to $2,700,000, from levels of                                                         Authorization level   ...............................                              16.8
                                                                                                                                         Estimated cost     .................................                               16.7
               $1,600,000 for fiscal year 1979          , $2,000,000 for fiscal year 1980, and                                      Fiscal year 1982:
               $2,500,000 for fiscal year 1981.                                                                                          Authorization level   ...............................                            - - -
                                                                                                                                         Estimated cost     .................................                               2.4
                      ESTIMATED COSTS BY THE CONGRESSIONAL BUDGET OFFICE                                                            Fiscal year 1983:
                                                                                                                                         Authorization level   ...............................                            -
                  Pursuant to section 403 of the Congressional Budget Act of 1974,                                                       Estimated cost    ..................................                                   .2
               the following estimate of costs was prepared by the Director of the                                                      The cost of this bill fall within budget function 300.
               Congressional Budget Office:                                                                                             6. Basis of estimate: The authorization levels are those stated in
                                                                                                                                    the bill. It is assumed that this bill and the subsequent appropriation
                                                             CONGRESSIONAL BUDGET OFFICE,                                           required for 1979 will be passed before the beginning of fiscal year
                                                                                 U.S. CONGRESS,                                     1979 and the appropriations for 1980 and 1981 will be made before
                                                              Washington, D.C., May 10, 1978.                                       the beginning of each fiscal year. The rates at which outlays would
               Hon. HOWARD W. CANNON,                                                                                               be made from these authorizations were estimated after consultation
               Chairman, Committee on Commerce, Science, and Transportation, U.S.                                                   with the Departments of Commerce and Interior and with the Marine
                    Senate, 5202 Dirksen Senate Office Building, Washington,                         D.C.                           Mammal Commission. With two exceptions they are based on histori-
                    20510                                                                                                           cal spendout patterns for the respective activities. Exceptions were
                  DEAR MR. CHAIRMAN: Pursuant to section 403 of the Congressional                                                   made in the cases of section 109 and section 110 authorizations for
               Budget Act of 1974, the Congressional Budget Office has prepared                                                     the Department of Commerce for 1979, 1980, and 1981.
               the attached cost estimate for H.R. 10730, a bill to authorize appro-                                                    The section 109 authorization represents requirements for a new
               priations to carry out the Marine Mammal Protection Act of 1972                                                      grant to the State of Alaska, all of which is expected to be spent in
               during fiscal years 1979, 1980, and 1981.                                                                            the year it is appropriated. The 1979 authorization for section 110 of
                  Should the committee so desire, we would be pleased to provide                                                    $2.7 million represents a substantial increase in funds allocated spe-
               further details on the attached cost estimate.                                                                       cifically for grants for research and since the Department has had
                         Sincerely,                                                                                                 very little experience with this kind of grant it was impossible to use
                                                                       ALICE M. RIVLIN,                                             historical trends. Therefore, the spendout rate used for this estimate was
                                                                             Director.                                              based on the assumption that these funds would be obligated through
                                                                                                                                    contracts to outside researchers, and spent at a rate of 60 percent the
                             CONGRESSIONAL BUDGET OFFICE-COST ESTIMATE                                                              first year, 35 percent the second year, and 2 percent the third year.
                                                                                                                                        7. Estimate Comparison: None.
                                                                                      MAY 10, 1978.                                     8. Previous CBO Estimate: On March 20, 1978, CBO prepared a
                  1. Bill Number: H.R. 10730.                                                                                       cost estimate for H.R. 10730, as ordered reported by the House Com-
                  2. Bill Title: A bill to authorize appropriations to carry out the                                                mittee on Merchant Marine and Fisheries. That bill included lower
               Marino Mammal Protection Act of 1972 during fiscal years 1979,                                                       authorization levels for section 110 activities.
               1980, and 1981.                                                                                                          9. Estimate Prepared by: Susan Cirillo.
                  3. Bill Status: As ordered reported by the Senate Committee on                                                        10. Estimate Approved by:
               Commerce, Science, and Transportation May 9, 1978.                                                                                                                             JAMES L. BLUM,
                  4. Bill Purpose: The purpose of this bill is to authorize appropria-                                                                                         Assistant Director for Budget Analysis.
               tions to carry out the provisions of the Marine Mammal Protection
               Act of 1972 for fiscal years 1979, 1980, and 1981. Funds are specifi-                                                                        REGULATORY IMPACT STATEMENT
               cally authorized to both the Department of Commerce and the Depart-
               ment of the Interior to make grants under sections 109 and 110 of                                                        In compliance with paragraph 5 of rule XXIX of the Standing
               the 1972 Act. Additional funds are provided to both Departments to                                                   Rules of the Senate, the committee states that the Marine Mammal
               carry out all other general conservation and protection activities pro-                                              Protection Act of 1972 contains a comprehensive regulatory program
               vided by the original law.                                                                                           aimed at protecting marine mammals. This bill, H.R. 10730, as amended,
                                                                                                                                    would neither add to nor subtract from that body of regulations.

                                                                                                                                                                                                                  S.R. 888








                                                6


                                SECTION-BY-SECTION ANALYSIS


           Section I
              Section I authorizes to the Department of the Interior $400,000 for
           each of fiscal years 1979, 1980, and 1981 to carry out functions un-
           der section 190 of the act. The Department of Commerce is author-
           ized $225,000 for the same purpose for each of the next 3 fiscal
           years.
              Section 109 authorizes the two Departments to provide matching
           grants to States which have resumed management of marine mammals
           under the act.
           Section 2
              Section 2 authorizes to the Secretary of the Interior appropriations
           of $1,300,000 for fiscal year 1979, $1,500,000 for fiscal year 1980,
           and $2,100,000 for fiscal year 1981 to carry out responsibilities un-
           der section 110 of the act. The Secretary of Commerce is authorized
           appropriations of $2,700,000 for the same purpose for each of the
           next 3 fiscal years.
              Section 110 authorizes the Secretaries of Commerce and the Inte-
           rior to make grants or provide financial assistance to any Federal or
           State agency, public or private institution, or other person to under-
           take research in subjects which are relevant to the protection and
           conservation of marine mammals.
           Section 3
              Section 3 authorizes to the Department of Commerce appropria-
           tions of $8,500,000 for fiscal year 1979, $9,000,000 for fiscal year
           1980, and $9,500,000 for fiscal year 1981 to carry out responsibilities
           under section 114 of the act. The Department of the Interior is
           authorized $650,000 for fiscal year 1979, $760,000 for fiscal year
           1980, and $876,000 for fiscal year 1981 for the same purpose.
              Section 114 of the act provides funds to the Secretaries of Com-
           merce and the Interior to administer and enforce the act, as well as
           for research which cannot    be accommodated under section 110.
           Section 4
              Section 4 authorizes to   the Marine Mammal Commission appropria-
           tions of $1 million under     section 207 for each of fiscal years 1979,
           1980, and 1981 to carry out the Commission's responsibilities under
           the act.


                                     LEGISLATIVE HISTORY

              H.R. 10730 was considered by the Committee on Commerce, Sci-
           ence, and Transportation on May 9, 1978, and was ordered favorably
           reported with an amendment in the nature of a substitute.








                                                                            S.R. 888
                                                                            V                   Or









                                                                                                                           97TH CONGRESS             HOUSE OF REPRESENTATIVES                            REPORT
                                                                                                                             1st Session                                                           No. 97-229








                                                                                                                                    MARINE MAMMAL PROTECTION ACT AMENDMENT



                                                                                                                             SEPTEMBER 16, 1981-Committed to the Committee of the Whole House on the
                                                                                                                                               State of the Union and ordered to be printed


                                                                                                                                 Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                                                           Marine and Fisheries, submitted the following

                                                                                                                                                               REPORT

                                                                                                                                                        [To accompany H.R. 4084]

                                                                                                                                       [Including cost estimate of the Congressional Budget Office]

                                                                                                                              The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                                           referred the bill (H.R. 4084) to improve the operation of the Marine
      W                                                                                                                    Mammal Protection Act of 1972, and for other purposes, having con-
                                                                                                                           sidered the same, report favorably thereon with an amendment and
                                                                                                                           recommend that the bill as amended do pass.
                                                                                                                              The amendment is as follows:
                                                                                                                              Strike out all after the enacting clause and insert the following:

                                                                                                                           SECTION 1. OP71MUM SUSTAINABLE POPULATION.
                                                                                                                             (a) BASIC AMENDMENT.-Paragraph (8) of section 3 of the Marine Mammal Pro-
                                                                                                                           tection Act of 1972 (16 U.S.C. 1362(8)) (which Act shall hereafter in this Act be
                                                                                                                           referred to as the "Act of 197T) is repealed.
                                                                                                                             (b) CONFORMINo AMBNDMENTS.-(I) Section 2(6) of the Act of 1972 (16 U.S.C.
                                                                                                                           1361(6)) is amended by striking out "optimum carrying capacity" and inserting in
                                                                                                                           lieu thereof "carrying capacity".
                                                                                                                             (2) Section 3 of the Act of 1972 (16 U.S.C. 1362) is further amended-
                                                                                                                             (A) by amending paragraph (1) to read as follows:
                                                                                                                             "(1) The term 'depletion' or 'depleted' means any case in which-
                                                                                                                                  "(A) the Secretary, after consultation with the Marine Mammal Commission
                                                                                                                                and the Committee of Scientific Advisors on Marine Mammals established un-
                                                                                                                                der title 11 of this Act, determines that a species or population stock is below
                                                                                                                                its optimum sustainable population;
                                                                                                                                  "(B) a State, to which authority for the conservation and management of a
                                                                                                                                species or population stock is transferred under section 109, determines that
                                                                                                                                such species or stock is below its optimum sustainable population ; or
                                                                                                                                  "(C) a species or population stock is listed as an endangered species or a
                                                                                                                                threatened species under the Endangered Species Act of 1973." ;
                                                                                                                                  (B) by striking out "the optimum carrying capacity of their habitat" in para-
                                                                                                                                graph (2) and inserting in lieu thereof "their optimum sustainable population";
                                                                                                                                  (C) by redesignating paragraphs (9) through (15) as paragraphs (8) through
                                                                                                                                (14), respectively








                                                 8                                                                                                    9

                                                                                                                       Retains the Act's goal of reducing the incidental taking of marine
                                                                                                                    mammals pursuant to commercial fishing operations to insignificant
                                                                                                                    levels approaching a zero mortality and serious injury rate but clari-
                                                                                                                    fies that this goal shall be satisfied in the case of purse seine fishing
                                                                                                                    for yellowfin tuna by "a continuation of the application of the best
                                       LEGISLATIVE HISTORY                                                          marine mammal safety techniques and equipment that are economi-
                                                                                                                    cally and technologically practicable".
              During hearings in April on H.R. 2949, providing the Fiscal Year                                         Directs the Secretary to allow the incidental, but not the inten-
           1982 authorization of appropriations for the Marine Mammal Protec-                                       tional, taking by U.S. non-tuna commercial fishermen of small num-
           tion Act, the Subcommittee on Fisheries and Wildlife Conservation                                        bers of marine mammals if (1) the population is not depleted, (2) the
           and the Environment heard testimony from several witnesses advocat-                                      total of such taking will have a negligible impact on the stock, and
           ing amendments to the Act. In May 1981, the Committee reported                                           (3) there is a system established among the fishermen for monitoring
           H.R. 2948 to the House but stated its intention to hold additional                                       such taking. The Secretary must withdraw the permission to take ma-
           hearings in an attempt to develop solutions to the problems addressed                                    rine mammals under this section if he finds that the take is having
           by witnesses and to remedy certain problems which make administra-                                       more than a negligible impact on the species or that the policies,
           tion of the Act difficult.                                                                               purposes and goals of the Act would be better served through imple-
              As a result of the April authorization hearings and the Commit-                                       mentation of the other sections of the Act.
           tee's commitment to develop an amendment package which would be                                             Directs the Secretary to allow the taking of small numbers of a
           reported to the Floor of the House before the end of the First Session                                   non-depleted species by U.S. citizens who engage in specified activi-
           of the 97th Congress, Mr. Breaux and Mr. Forsythe introduced H.R.                                        ties (other than commercial fishing) within specified geographical ar-
           4084 on July 9, 1981, for the purpose of improving the operation of                                      eas, if he (1) finds that the total of such taking will have a
           the Marine Mammal Protection Act and extending the authorization of                                      negligible impact on the species, on its habitat, and on the availabil-
           appropriations through Fiscal Year 1984.                                                                 ity of such species for subsistence uses in Alaska, and (2) prescribes
              On July 13, the Subcommittee on Fisheries and Wildlife Conserva-                                      regulations which set forth permissible methods of taking and other
                                                                                                                    means of effecting the least practicable adverse impact on the species
           tion and the Environment held hearings on the legislation. Testimony                                     or its habitat (with particular attention given to rookeries, mating
           was received from the fishing industry, the Alaska Federation of Na-                                     grounds, and other areas of significance) and which set out the re-
           tives, state fish and game agencies, the fur industry, the oil and gas                                   quirements for monitoring and reporting the takings. The Secretary
           industry, representatives of the environmental and conservation com-                                     must withdraw his permission to take marine mammals pursuant to
           munity, the Departments of Commerce and the Interior, and the Ma-                                        this section if the regulations are not substantially complied with or
           rine Mammal Commission.                                                                                  if he finds such taking is having more than a negligible impact on
              After giving careful consideration to the evidence presented at the                                   the species concerned.
           hearing, the Subcommittee, on July 21, unanimously ordered H.R.                                             Makes it unlawful for any person to transport, purchase, sell or
           4084 reported, with an amendment, to the Full Committee. On July                                         offer to purchase or sell any marine mammal or marine mammal
           31, 1981, the Committee on Merchant Marine and Fisheries, by voice                                       product unless otherwise provided under the Act.
           vote, unanimously ordered H.R. 4084 reported to the House with an                                           Authorizes the Secretary to allow individuals to abandon marine
           amendment.                                                                                               mammal imports made for personal or family use to the enforcement
                                         THE AMENDMENT                                                              officer at the port of entry without the individual going through a
                                                                                                                    formal notice of violation and forfeiture proceeding.
              The amendment to H.R. 4084 was accomplished by striking out all                                          Establishes a procedure to return marine mammal management
           after the enacting clause and inserting new language. The amendment:                                     to any state.   The Secretary may transfer management authority
                  Deletes the definition of "optimum carrying capacity", since it                                   to a state if   the state has developed and will implement a pro-
               is indistinguishable from optimum sustainable population (OSP)                                       gram which:     (1) is consistent with the purposes, policies and
               and because both are used interchangeably throughout the Act.                                        goals of the    Act and with international treaty obligations: (2)
               Wherever "optimum carrying capacity" appears it is replaced with                                     requires that   all taking be humane: (3) does not permit taking
               46 carrying capacity".                                                                               until the state determines (through a simplified hearing process)
                  Redefines the term "depleted" to mean any case in which the Sec-                                  the OSP of the population and the maximum number of animals
               retary, or a State to which management authority has been returned,                                  that may be taken without reducing the species below its OSP; (4)
               determines that a species or population stock is below its OSP, or is
               listed as endangered or threatened under the Endangered Species Act.





               1 0        1         1         1     1         1    OF   [    or



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                                                10                                                                                                 it

                provides procedures for acquiring data relating to the OSP of the                                                       BACKGROUND AND NEED
                species and the maximum allowable take and for amending the deter-
                minations made during the informal hearing process; (5) provides                                 The Marine Mammal Protection Act (MMPA) was enacted in 1972
                procedures for resolving the differences between the state and the                             for the purpose of ensuring that marine mammals are maintained at
                Secretary which may arise regarding the allocation of the allowable                            healthy population levels. In passing the Act, Congress responded to
                take between the state and the Federal Government; and (6) provides                            the growing concern about the decline of certain species and recog-
                for an annual report to the Secretary concerning the administration of                         nized the important role that marine mammals play in the ecosystem
                the state program. The Secretary cannot transfer management author-                            as well as their economic, aesthetic and recreational value.
                ity to the State of Alaska unless the state has adopted a statute and                            Under the MMPA the Department of Commerce is charged with
                regulations which insure that taking for subsistence will be the prior-                        responsibility for whales, dolphins (porpoises), sea lions and seals.
                ity consumptive use of the species and that such taking will be ac-                            The Department of the Interior has responsibility for polar bears, wal-
                complished in a nonwasteful manner. Any other consumptive                                      ruses, sea otters, manatees and dugongs. The Act establishes a mora-
                uses-such as sport hunting-can be authorized only if it would not                              torium on the taking of marine mammals unless the population of an
                have an adverse effect on subsistence uses. During the interim period                          animal is determined to be at its optimum sustainable level. State
                when the Secretary has transferred management authority to a state                             management of resident marine mammal populations is preempted un-
                but before the state is able to implement its program, the Secretary                           til such time as a state prepares a marine mammal management pro-
                would continue to regulate all takings of marine mammals within the                            gram consistent with the Act. Criminal and civil penalties are
                state. Once the state is able to implement its program, the Secretary                          prescribed for violations of the Act and the importation of marine
                would still be responsible for regulating any takings in the 200-mile                          mammals and their products is subject to regulation. The Act created
                zone and all takings for scientific research or public display purposes                        a three-member Marine Mammal Commission which is charged with
                in state and Federal waters.                                                                   monitoring the implementation of the Act, recommending policies to
                   Authorizes the Secretary to revoke the transfer of management                               the two Secretaries, and undertaking such research as is deemed ap-
                authority for any species if the state does not implement its approved                         propriatc.
                program or if the program is not being implemented consistently with                             In many respects, the Marine Mammal Protection Act has been a
     LZ         the provisions of the state plan. Before the Secretary can revoke the                          remarkably successful piece of legislation. In the area of reducing the
     Un         transfer of management authority, he must first consult with the state                         incidental take of porpoises in tuna fishing operations, for example,
                and provide the state with the opportunity to take any remedial meas-                          the number of porpoises killed has dropped from an estimated
                ures the Secretary considers necessary.                                                        368,000 animals in 1972 to an estimated 15,303 porpoises in 1980.
                   Permits the Secretary to prescribe marking, tagging and reporting                           This dramatic accomplishment has been achieved because of improve-
                requirements applicable to the subsistence take of Alaska natives at                           ments in gear design and fishing techniques. A number of other spe-
                any time the state is not exercising management authority over the                             cies, such as the California sea otter and the West Indian manatee,
                species concerned.                                                                             also seem to be benefiting from the protection provided pursuant to
                   Expands the Secretary's authority to make grants to the states for                          the Act. However, during hearings held on April 7, 1981, on legisla-
                developing their programs. Under existing provisions of the Act, such                          tion to reauthorize the MMPA, the Committee received testimony re-
                grants can only be made to administer the state program upon the                               garding a number of problems associated with the implementation and
                transfer of management authority.                                                              administration of the Act.
                   Adds a new sentence to the research section of the Act to direct                              The most notable difficulty experienced in the administration of
                the Secretary to undertake, and provide assistance for, research into                          the Act occurred when the Departments of Commerce and the Interior
                new methods of locating and catching yellowfin tuna without the in-                            attempted to return management of certain marine mammal species to
                cidental taking of marine mammals.                                                             the State of Alaska, as provided for in section 109 of the Act. On
                   Authorizes to be appropriated $8.0 million in fiscal year 1983 and                          January 31, 1973, Alaska requested the Secretaries of Commerce and
                $8.8 million in fiscal year 1984 to the Department of Commerce,                                the Interior to grant a waiver of the moratorium to permit the hunting
                $1.76 million in fiscal year 1983 and $2.0 million in fiscal year 1984                         of nine species of marine mammals and to return management of the
                to the Department of the Interior, and $1.0 million in fiscal year                             species to the state. Six of the species were under Commerce's juris-
                1983 and $1.1 million in fiscal year 1984 to the Marine Mammal                                 diction and three were under Interior's jurisdiction. Pursuant to the
                Commission to carry out their responsibilities under the Act.                                  Act, the state's request required formal hearings before an administra-
               For further details or clarification of the amendment, see      the See-                        tive law judge concerning the status of the population of each spe-
            tion-By-Section Analysis.                                                                          cies, as well as consideration of the state's proposed laws and
                                                                                                               regulations that would govern the taking of that species. The pro-
                                                                                                               posed waiver of the moratorium to allow a taking of marine mammals
                                                                                                               also required compliance with the provisions of the National Environ-
                                                                                                               mental Policy Act.








                                               12                                                                                               13

              The proceedings involving walrus are particularly instructive re-                                The conclusions reached by a recent General Accounting Office
           garding the deficiency of the process under which management can be                              study of the Act clearly illustrate the extent of the problem. This
           returned to a state. In December 1975, approximately three years af-                             study stated that:
           ter the state's initial request, the return of management of walrus was
           conditionally approved by the Department of the Interior. After the                                     For the most part, marine mammal interest groups believe that
           state made some changes in its laws and regulations affecting the                                    the walrus management problems stem from the large walrus
           management of walrus, final approval was granted in April of 1976.                                   population which is having an adverse impact on the carrying
              Public hearings, as required under the MMPA, were held in June,                                   capacity of the marine  ecosystem . . . In January, 1973 the state
           July, and October 1976, to discuss returning management of the other                                 of Alaska, desiring to  continue its management of marine mam-
           eight species to the state. In June 1977, the administrative law judge                               mals, requested, under  the provisions of MMPA, that a waiver of
           who conducted the hearings recommended to both secretaries that                                      the moratorium on the   taking of nine marine mammals (including
           management be returned to the state. About one and one-half years                                    the walrus) be granted  and management be returned to it. Reach-
           after the administrative law judge recommended returning management                                  ing a decision on this  request has been a slow process and the
           to the state, the two secretaries, under certain conditions, agreed to                               end result is that some eight years after the state's request many
           return management of the other eight species to the state.                                           of the problems and issues . . . remain unresolved. Admittedly,
              In returning walrus management to the State of Alaska, the Secre-                                 the waiver process is burdensome and, in the case of Alaska's
           tary stipulated that the State could also regulate the subsistence har-                              request, was not made any easier with split Federal agency juris-
           vest of walrus by Alaskan natives. The Act, however, specifically                                    diction requiring review and formal hearings by two separate
           provides that Alaskan natives may take marine mammals for subsis-                                    agencies . . . Because the Fish and Wildlife Service did little to
           tence and native handicrafts without regulation if the taking is not                                 manage the walrus while the state's request was pending (the
           wasteful and if the species is not depleted. The native people of                                    Service assumed that the state would soon be granted manage-
           Togiak, Alaska, brought suit in Federal District Court claiming that                                 ment control), the walrus was not managed or controlled by
           the state must guarantee the continued right of natives to take marine                               either a Federal or state agency. The Federal agencies need to
           mammals and arguing that the Federal Government could not transfer                                   act faster on states' requests for a waiver on the taking of ma-
           management under the Act without such assurances. The Court held                                     rine mammals and return of management.
           for the people of Togiak, stating that the Act preempts any state
           regulation of the native take. Because Alaska's constitution prohibits                              The Committee concurs with the GAO conclusion and finds that
           any discrimination among its citizens, the state could not comply with                           one of the major reasons for the failure of Federal agencies to expe-
           the Court's decision that the natives be given a preferred status with                           dite action on state requests for return of management and waiver of
           respect to the taking of marine mammals. The state returned manage-                              the moratorium is the cumbersome procedures mandated under the
           ment of walrus to the Federal Government in July, 1979, and retracted                            Marine Mammal Protection Act which require extensive formal hear-
           its request to manage the other marine mammal species.                                           ings. To remedy this problem and to ensure that effective conserva-
              It must be noted that during the period between 1973 and 1976,                                tion of management programs for marine mammals are implemented,
           when the State of Alaska was awaiting approval of its request to                                 H.R. 4084 establishes a simplified procedure under which a state
           have management of the walrus returned, the Fish and Wildlife Serv-                              could resume management of marine mammal species.
           ice did little to manage the walrus because the Service expected the                                The Committee also received testimony that, despite the dramatic
           state would soon resume management. Therefore, for a period of                                   decline in the number of porpoises incidentally taken in tuna fishing
           about four years after the Act was passed there was neither Federal                              operations, the administration of the provisions of the Act relating to
           nor state management of walrus. After the state returned walrus man-                             incidental take have been characterized by excessive litigation. The
           agement to the Secretary, there was no effective management of this                              tuna industry is operating in fear of being shut down by law suits, a
           species because of the inadequate Federal resources which are de-                                fear which hampers investment in America's distant-water tuna fleet.
           voted to marine m ammal management and because the Federal Gov-                                     This fear is generated by those provisions of the Act which establish
           ernment has no authority to regulate the take of non-depleted marine                             as the immediate goal of the Act that the incidental kill or serious injury
           mammals by Alaskan natives. The result is that the current popula-                               of marine mammals pursuant to commercial fishing operations be re-
           tion of walrus, estimated at 250,000, is considered by many scientists                           duced to insignificant levels approaching a zero mortality and serious
           to be larger than its habitat can effectively support. From an ecologi-                          injury rate. It is the tuna industry's contention that so long as the
           cal viewpoint, it is both unhealthy and environmentally destabilizing                            industry is using the best economically and technologically feasible
           to have a population at a level higher than the relevant habitat can                             equipment and methods to reduce incidental porpoise mortality, the
           sustain. The lengthy process entailed in the return of management                                fleet can do no more. It has been argued by others, however, that
           provisions of the Act, have, in the case of the walrus, resulted in a                            zero mortality means precisely what it says and that the industry
           situation in which the goals of the Marine Mammal Protection Act-                                should be taking virtually no porpoises. The threat of litigation in
           the maintenance of healthy populations of marine mammals-could                                   this regard is of constant and continuing concern to the U.S. distant-
           not be met.



                                               M M,= = = =                                                                                   =.= M = = M,


                                                  14                                                                                                   15

            water tuna fleet. The tuna industry, which contributes approximately $1.2                            General Accounting Office, in its     recent report on the Act, notes that a
            billion annually to the gross national product, would be faced with severe                           monitoring program would provide essential management data on the
            economic consequences if a court interpreted the zero mortality goal in                              status and condition of the walrus population. Unfortunately, as noted
            the strictest sense and failed to take into account the economic and tech-                           above, it is less than clear under the existing Act whether the appropriate
            nological practicability of achieving that goal.                                                     Federal agencies have the authority to monitor the nature and extent of
               Besides the aforementioned problems relating to the incidental take                               the native take of marine mammals. In addition, it is feared that the
            of porpoises in tuna fishing operations and the return of management                                 prohibition section contains a loophole that will allow for the commer-
            to the states, the bill addresses several other major problems associ-                               cialization of marine mammal products by natives, which goes far beyond
            ated with the Act.                                                                                   the obvious intent of the Act.
               First, the Departments of Commerce and the Interior, the tuna in-                                    Another relatively narrow issue was raised by Federal officials
            dustry, and the states raised questions concerning the definitions of                                who expressed concern because persons who unintentionally violate
            "optimum sustainable population" (OSP), "optimum carrying capacity"                                  the import provisions of the Act are often required to go through
            (OCC), and "depleted". Under the Act, a species is said to be                                        civil penalty proceedings, when simply abandoning the item at the
            "depleted" if it has declined to a significant degree over a number of                               port of entry would provide a sufficient deterrent.
            year [sic], is likely to become endangered, or is below the OCC of its                                  Finally, members of the scientific community requested broader
            environment. "OCC" means the ability of the habitat to support a spe-                                authority to deal with stranded animals. All of these issues are ad-
            cies at its "OSP". However, OSP is defined as the level where the                                    dressed in the legislation.
            stock is reproducing at a maximum rate, based on the OCC for the                                        H.R. 4048, as reported by the Committee, has the endorsement of
            species. The definitions are circular. Further, translating OCC and                                  the major industries affected by the Act and of the major environ-
            OSP into numbers requires estimates of population levels prior to                                    mental organizations concerned with the Act. The bill maintains the
            commercial exploitation. Such calculations have demanded complex                                     noble purpose of the Act to preserve strong, healthy populations of
            scientific analysis, postulating entirely unknown balances within a                                  all marine mammals. At the same time it encourages greater state par-
            former marine ecosystem. It was alleged that these definitions are un-                               ticipation in marine mammal management and reduces the regulatory
            workable and must be replaced by more traditional management con-                                    burden on those activities which have a minimal impact on marine
            cepts and H.R. 4084 clarifies these definitions.                                                     mammals.
               It was also brought to the Committee's attention that non-tuna
            commercial fishing operations and other activities which occur in ar-                                                       SECTION-BY-SECTION ANALYSIS
            eas occupied by marine mammals result in the take of some of these
            animals incidentally, although at a rate far below the level of tuna-                                   There follows a section -by-section analysis of H.R. 4084 accompa-
            porpoise mortalities. However, the same lengthy regulations requiring                                nied, where appropriate, by additional discussion.
            OSP determinations and permits which are applicable to the tuna in-
            dustry also apply to activities involving small numbers of incidental                                                                  SECTION I
            takes. Only a fraction of non-tuna fishermen apply for a permit be-
            cause of the cumbersome procedures required under the Act. The re-                                      Section I of H.R. 4084 amend.s Section 3 of the Act by deleting
            sult has been a loss of data because most of these incidental takes go                               the definition of "optimum carrying capacity", amending the defini-
            unreported. This symptom of "over management" has suggested the                                      tion of "depleted", and making th6 conforming amendments required
            need for a two-tiered management scheme, distinguishing significant                                  by these changes.
            from insignificant takes, which is contained in H.R. 4084.                                              In deleting the term optimum carrying capacity, it is not the Com-
               In addition to these major concerns, a number of more narrow, but                                 mittee's intent to substantively change the Act or to alter the mean-
            equally important, issues were raised. For example, with regard to the                               ing of, or methods by which, optimum sustainable population is
            take of marine mammals by Alaskan natives under the provisions of                                    calculated. Since the passage of the Act in 1972, there have been a
            section 101 (b) of the Act, it is questionable whether the Federal agen-                             number of workshops and conferences which have addressed scientific
            cies have the authority to monitor the harvest in order to provide the                               issues arising under the Act. At all of these meetings, scientists have
            critical data needed in any management program. The increasing extent                                treated the definition of optimum carrying capacity as interchangeable
            of the native harvest necessitates that adequate information on the na-                              with the definition of optimum sustainable population. In fact, neither
            ture of this harvest be available in order to monitor the impact of the                              the regulations of the Fish and Wildlife Service nor those of the Na-
            harvest on marine mammal species. In the case of the walrus harvest,                                 tional Marine Fisheries Service define the term optimum carrying ca-
            for example, all legal hunting is done by the natives. Any non-native                                pacity. Further, in the first decision of the Administrator of the
            harvest is illegal under the MMPA.         Since the Act was passed in                               National Oceanic and Atmospheric Administration regarding the tak-
            1972 the number of walrus that the         natives kill has increased sig-                           ing of marine mammals incidental to commercial fishing operations,
            nificantly. From 1959 to 1971, an average of about 3,300 was                                         the Administrator stated that:
            taken each year. The current number is estimated at 10,000 a year. The                                       Optimum carrying capacity is a characteristic of the habi-
                                                                                                                      tat. This term, however, is defined in the Act as the 'ability of








                                                    16                                                                                                        17

                 a given habitat to support the optimum sustainable population of                                                                         SECTION 2
                 a species or population stock in a healthy state without diminish-
                 ing the ability of the habitat to continue that function.' Optimum                                       Section 101(a) (2) of the Act states that it shall be the immediate
                 sustainable population is defined in terms of the number of ani-                                     goal that the    incidental kill or serious injury of marine mammals per-
                 mals that may exist in a particular habitat.         Therefore, I have                               mitted in the course of commercial fishing operations be reduced to
                 concluded as a matter of law that a species or stock is below the                                    insignificant levels approaching a zero mortality and serious injury
                 habitat's optimum carrying capacity when the number of indi-                                         rate. Section 2 of H.R. 4084 amends section 101(a) (2) of the Act to
                 viduals is below the optimum sustainable population, and conse-                                      provide that    this goal is satisfied in the case of purse seine fishing
                 quently is depleted.                                                                                 for yellowfin tuna by a continuation of the application of the best
                                                                                                                      marine mammal safety techniques and equipment that are economi-
               The effect of the Administrator's decision, which has been                  fol-                       cally and technologically practicable.
            lowed by both agencies since 1977, is to make the term optimum                                                In adopting this language, the Committee carefully considered the
            carrying capacity essentially identical to the term optimum sustainable                                   matter of the incidental taking of marine mammals in the course of
            population.                                                                                               commercial fishing operations and determined that the amendment to
               Given this history, the Committee believed that the term optimum                                       section 101(a) (2) is an appropriate clarification of the Act. In mak-
            carrying capacity was unnecessary to the operation of the Act and                                         ing this determination, the Committee restates its original view that it
            could be deleted.                                                                                         is not the intention of the Committee to shut down, or to signifi-
               The definition    of the terms "depleted" or "depletion" is amended                                    cantly curtail, the activity of the tuna fleet so long as the Secretary
            to mean any case     in which:                                                                            is satisfied that tuna fishermen are using the best economically and
                    (1) The Secretary, or a State to which management authority is                                    technologically practicable marine mammal safety techniques. Al-
                 transferred under section 109, determines that a species is below its                                though the amendment to section 101 (a) (2) retains the Act's goal of
                 optimum sustainable population; or                                                                   reducing the incidental taking of marine mammals to insignificant lev-
                    (2) A species is listed as endangered or threatened pursuant to the                               els approaching a zero mortality and serious injury rate, the Commit-
                 Endangered Species Act of 1973.                                                                      tee believes a clarification is appropriate in light of the lengthy
     UJ        The current definition of these terms is unclear in both language                                      history of the regulation of incidental taking in the purse seine yel-
     00     and purpose. The Committee believed that the adoption of a single                                         lowfin tuna fishery and the substantial progress that has been made in
            management standard-the maintenance of species at their optimum                                           developing new techniques and equipment for avoiding the incidental
            sustainable population-was consistent with the Act and would reduce                                       kill and serious injury of marine mammals. The Committee does not,
            confusion. The Committee also recognized that species that are listed                                     however, intend that this amendment shall affect any authority the
            under the Endangered Species Act are, a fortiori, not at their opti-                                      Secretary may have to promulgate regulations governing the incidental
            mum sustainable population and, therefore, should be considered de-                                       taking of marine mammals, including regulations prescribing annual
            pleted.                                                                                                   quotas, which are found necessary to fulfill the obligations placed on
               In drafting H.R. 4084, and the amendments thereto, the Committee                                       the Secretary by the Act.
            gave serious consideration to amending the existing definition of opti-                                       While recognizing the substantial progress that has been made in
            mum sustainable population. After carefully reviewing various alterna-                                    developing improve [sic] marine mammal safety techniques and equip-
            tive definitions proposed by the concerned parties, the Committee                                         ment, the Committee is cognizant of the need to ensure that the best
            decided not to amend the definition. In reaching this decision, the                                       marine mammal safety techniques and equipment are used in the fu-
            Committee reviewed the current regulatory definition of optimum sus-                                      ture. With this in mind, the Committee intends that its amendment be
            tainable population contained in 50 CFR 216.3 and determined that,                                        understood to require the use of new and improved marine mammal
            given the present state of scientific knowledge, this definition accu-                                    safety techniques and equipment once they have been developed,
            rately reflects the meaning of the term optimum sustainable popula-                                       tested in the yellowfin tuna fishery, and determined, by the Secretary,
            tion and the intent of the Congress in passing the original Act. The                                      to be economically and technologically practicable. The amendment to
            Committee recognizes, however, that new scientific knowledge may                                          section 110, described below, will facilitate such development.
            result in changes to the existing regulatory definition.                                                      In considering this issue, the Committee decided to modify or
               Under the existing regulations, optimum sustainable population is                                      elaborate upon the Act's goal with respect to other fisheries which
            any population level within a range of population levels. The upper                                       incidentally take marine mammals. This does not mean that similar
            bound of the range is the largest average supportable level within the                                    action could not be taken in the future when further data is available.
            ecosystem (carrying capacity). The lower bound of the range is the                                        The contrast between the substantial progress made by the tuna fleet
            population level for a given species 'or stock that results in maximum                                    in developing new techniques and equipment for reducing marine niam-
            net productivity.



      MM MM MMM MMMMMMMMM M M M,



                                                18                                                                                               19

            mal mortality and the failure of the foreign high seas salmon gillnet fish-                     lations regarding methods of taking, monitoring, or reporting are not be-
            ery, for example, to develop now techniques and equipment for reducing                          ing substantially complied with, or (2) the taking is having, or may have,
            incidental mortality justifies limiting the amendment to the yellowfin tuna                     more than a negligible impact on the species. Permission to take under
            fishery. The existing goal in the Act can properly be used to stimulate                         this provision may be suspended without notice or public comment if the
            new technology for reducing the incidental taking of marine mammals.                            Secretary determines that an emergency exists which poses a significant
              The language contained in the amendment to section 101(a)(2) re-                              risk to the species concerned.
            garding the rights of the Secretary of the Treasury to ban the impor-                              Sections 103 and 104 of the Act do not apply to the taking of
            tation of fish or fish products under certain circumstances merely                              marine mammals occurring under the authority of section 101 (a) (5).
            incorporates the presently existing language in the Act. The Commit-                               Both sections 101 (a) (4) and (5) authorize the incidental, but not
            tee is aware that the United States presently requires those countries                          the intentional, taking of small numbers of marine mammals. The
            desirous of importing tuna products to comply with a specified certi-                           phrase "incidental, but not intentional" is intended to mean accidental
            fication program. It is the intent of the Committee that this certifica-                        taking. The words "not intentional" should not be read to mean that
            tion program be continued.                                                                      persons who know there is some possibility of taking marine mam-
              Section 2 further amends section 101(a) of the Act by adding new                              mals incidental to commercial fishing operations or other specified
            paragraphs (4) and (5). New section 101(a) (4) provides that during                             activities are precluded from proceeding under the authority of sec-
            any five-year period the Secretary shall allow the incidental, but not                          tions 101(a)(4) or (5).
            the intentional, taking by United States commercial fishermen of                                   The taking authorized under these new provisions is the taking of
            small numbers of marine mammals. Before allowing such a take, the                               small numbers of marine mammals. The Committee recognizes the im-
            Secretary, after notice and opportunity for public comment, must find                           precision of the term "small numbers", but was unable to offer a
            that the total of such taking will have a negligible impact on the                              more precise formulation because the concept is not capable of being
            species and must provide guidelines pertaining to the establishment of                          expressed in absolute numerical limits. The Committee intends that
            a cooperative system among the fishermen involved for monitoring                                these provisions be available for persons whose taking of marine
            the take. A finding of negligible impact cannot be made if the spe-                             mammals is infrequent, unavoidable, or accidental.
            cies is depleted. The Secretary is directed to withdraw or suspend the                             It should also be noted that these new provisions of the Act pro-
            permission take marine mammals under this provision if he finds, af-                            vide an additional and separate safeguard in that the Secretary must
     ko     ter notice and opportunity for public comment, that the taking is hav-                          determine that the incidental takings of small numbers of marine
            ing more than a negligible impact on the species or that the purposes,                          mammals have a "negligible" impact upon the species from which
            policies and goals of the Act would be better served by applying the                            such takings occur. This additional test is meant to serve as a sepa-
            permit procedures otherwise provided for under the Act. Commercial                              rate standard restricting the authority of the Secretary. The term "neg-
            fishermen authorized to take marine mammals pursuant to this new                                ligible" is intended to mean an impact which is able to be
            provision would not be required to seek permits pursuant to section                             disregarded. In this regard, the Committee notes that Webster's Dic-
            104 in accordance with regulations promulgated under section 103 of                             tionary defines the term "negligible" to mean "so small or unimpor-
            the Act.                                                                                        tant or of so little consequence as to     warrant little or no attention."
              New section 10 (a) (5) provides that the Secretary shall allow, upon                          Unless a particular activity takes only    small numbers of marine mam-
            request by United States citizens who engage in a specified activity                            mals, and that taking has a negligible     impact on the species, the new
            (other than commercial fishing) within a specified geographical re-                             provisions of sections 101(a) (4) and (5) are not applicable to that
            gion, the incidental, but not the intentional, taking of small num-                             activity.
            bers of marine mammals. This permission may be granted for                                         It is the intention of the Committee    that both the specified activity
            periods of 5 years or less. Such taking may be allowed only if the                              and the specified region referred to in    section 101(a) (5) be narrowly
            species involved is not depleted and if the Secretary, after notice                             identified so that the anticipated effects will be substantially similar.
            and opportunity for public comment, (1) finds that the total of such                            Thus, for example, it would not be appropriate for the Secretary to
            taking will have a negligible impact on the species and its habitat,                            specify an activity as broad and diverse as outer continental shelf oil
            and on the availability of the species for subsistence uses, (2) pre-                           and gas development. Rather, the particular elements of that activity
            scribes regulations setting forth permissible methods of taking and                             should be separately specified as, for example, seismic exploration or
            other means of effecting the least practicable adverse impact on                                core drilling. Similarly, the specified geographical region should not
            the species and its habitat, paying particular attention to rookeries,                          be larger than is necessary to accomplish the specified activity, and
            mating grounds, and other areas of similar significance, and (3)                                should be drawn in such a way that the effects on marine mammals
            prescribes regulations pertaining to the monitoring and reporting of                            in the region are substantially the same. Thus, for example, it would
            such taking. The Secretary is directed to withdraw or suspend the                               be inappropriate to identify the entire Pacific coast of the North
            permission to take marine mammals under this provision if he finds,                             American Continent as a specified geographical region, but it may be
            after notice and opportunity for public comment, that (1) the regu-                             appropriate to identify particular segments of that coast having simi-
                                                                                                            lar characteristics, both biological and otherwise, as specified geo-
                                                                                                            graphical regions.








                                               20                                                                                                21

              Further, the Committee expects that persons operating under the                                elude actions authorized under section 109 in the list of activities ex-
           authority of section 101 (a) (5) shall engage in appropriate research                             empted from the coverage of section 102.
           designed to reduce the incidental taking of marine mammals pursuant                                  Section 3 (a) (1) further amends section 102 (a) by making it ille-
           to the specified activity concerned.                                                              gal for any person to possess a marine mammal, or any product from
              Sections 101(a) (4) and (5) each provide a mechanism for the Sec-                              that mammal, and for any person to transport, purchase, sell, or offer
           retary to withdraw or suspend the permission to take marine mammals                               to purchase or sell any marine mammal or marine mammal product.
           granted under these provisions. Because such permission can be                                    Section 102 as currently written makes the possession, transport, or
           granted for five-year periods, it is not the Committee's intent that the                          sale, etc. of a marine mammal or its parts and products illegal only if
           Secretary must wait until the expiration of that period before deter-                             the marine mammal was taken illegally. This has presented enforce-
           mining whether to withdraw or suspend this permission to take. How-                               ment difficulties in the context of the taking for subsistence purposes
           ever, assuming the    absence of more than a negligible impact, the                               where the taking itself is legal while the subsequent use of the ma-
           Secretary must allow a sufficient time for the voluntary reporting sys-                           rine mammal is in violation of the Act. H.R. 4084 makes it clear that
           tem provided for in section 101(a) (4) to be established and put to                               the Secretary need not prove that the taking was illegal in order to
           use. The Committee notes with respect to commercial fishermen oper-                               proceed against individuals who are otherwise in violation of the Act.
           ating under section   101(a) (4) that the establishment of a voluntary                            The Committee does not view this language as a new provision but
           reporting system is   in response to the failure of the current Act to                            rather as a clarification of what Congress always intended. In particu-
           provide adequate data regarding the incidental taking of marine mam-                              lar, the Committee reaffirms the fact that the disposition of the Na-
           mals which occurs in non-tuna commercial fishing operations. If this                              tive harvest is specifically provided for in section 101 (b) and any
           voluntary system fails to produce such data after a reasonable period                             other use is illegal, regardless of the circumstances under which the
           of time, the Committee intends to fashion a more appropriate re-                                  animal was taken. This provision is not intended to effect the trans-
           sponse which will reflect the experience that such a voluntary system                             portation of legally taken marine mammals from the high seas into
           cannot work.                                                                                      the territorial sea.
              In the case of a specified activity occurring under section 101(a)                                The Committee takes note that both the Fish and Wildlife Service
           (5), there may be more than one person participating in that specified                            and the National Marine Fisheries Service, in their regulations imple-
           activity. The fact that one person of the class is not in compliance                              menting the Marine Mammal Protection Act, have included the collec-
           with the regulations issued pursuant to the section is not a sufficient                           tion of dead animals or their parts as a form of taking. In this
           basis for withdrawing or suspending permission for all persons to                                 regard, the definition of marine mammals includes the parts of marine
           continue to operate under this section. There must be substantial com-                            mammals because the protection of these animals necessarily requires
           pliance by either a person or by the class as a whole, in order for                               the control of commerce in the valuable products derived from them.
           that person or for the entire class, respectively, to proceed under the                           The Committee, therefore, agrees that including the collection of dead
           authority of section 101 (a) (5).                                                                 animals or their parts in the definition of take is proper because it
              Section 2 further amends section 101 by amending section 101(b)                                would be impossible under any circumstances to distinguish between
           to clarify that the Native exemption established by section 101(b)                                parts derived from animals which have been killed and those which
           does not apply to Indians, Aleuts or Eskimos who reside temporarily                               died from natural causes.
           or permanently in states other than Alaska. It was not intended that                                 Section 105 (a) of the Act provides that any person who violates
           section 101(b) be applicable to Natives in other states who might                                 the Act may be assessed a civil penalty, except that no such penalty
           take marine mammals for subsistence purposes.                                                     may be assessed unless the person is given notice, and an opportunity
              Section 2 further amends section 101(b) by providing that section                              for a hearing, with respect to the violation. Any person who pur-
           101(b) shall govern the taking of marine mammals by Alaskan Na-                                   chases a marine mammal product while overseas and who brings that
           tives for subsistence uses except as provided in section 109. The pur-                            product into the United States without a permit is in violation of the
           pose of this language is to explicitly overrule the decision of the                               Act.   It is not appropriate to subject individuals who unknowingly
           United States District Court in People of Togiak v. United States,                                violate the Act by entering the United States with marine mammal
           470 F. Supp. 423 (DC 1979), which determined that section 101 (b)                                 products to a formal and lengthy notice of violation procedure. There-
           exempted Alaskan Natives from all state regulation. It is the Commit-                             fore, section 3 (b) of H.R. 4084 amends section 105 (a) of the Act to
           tee's intent to make it clear that Alaskan Natives are subject to state                           authorize the Secretary, in lieu of instituting a formal notice of viola-
           regulation pursuant to the provisions of section 109.                                             tion proceeding, to allow an individual to abandon the item at the
                                                                                                             port of entry if the importation was made for that individual's per-
                                           SECTION 3                                                         sonal or family use and   was not an importation for others or for sale
              Section 102 of the Act specifies the activities which are prohibited                           or commercial use. This    provision is intended to clarify that the Sec-
           under the Act. Section 102(a) makes clear that these prohibitions ap-                             retary has the authority to allow individuals to voluntarily abandon
           ply except to the extent that they are permitted under other sections                             seized items at the port   of entry without the necessity of further ad-
           of the Act. Section 3(a) (1) of H.R. 4084 amends section 102(a) to in-                            ministrativc proceedings. It is not intended to limit in any way the en-
                                                                                                             forcement authority of the Secretary under this or any other Federal law.



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                                                 22                                                                                                    23

                                              SECTION 4                                                             Section 109 (b), as amended, authorizes the taking of marine mam-
                                                                                                                 mals for subsistence uses provided that the taking is not inconsistent
               Section 4 makes several amendments to section 109 of the Act.                                     with the maintenance of the species at its optimum sustainable popu-
            Subsection (a) amends section 109 (a) to provide that no state may                                   lation. The purpose of this language is to permit the taking of marine
            enforce, or attempt to enforce, any law or regulation relating to the                                mammals for subsistence uses even when the population is below its
            taking of any marine mammal except as provided under section 109.                                    optimum sustainable population. The Committee recognizes the par-
               Subsection (a) also amends section 109 (b) to provide that the Sec-                               ticular dependence of local rural residents in Alaska on marine mam-
            retary shall transfer management authority for any species of marine                                 mals and does not wish to preclude the taking of marine mammals
            mammal to a state if the Secretary finds, after notice and opportunity                               when a species is below its optimum sustainable population, provided
            for public comment, that the state has developed and will implement                                  that the level of taking will permit the species to increase toward its
            a program for the conservation and management of the species that:                                   optimum sustainable population. A level of take which will not per-
                    (a) Is consistent with the purposes, policies, and goals of the Act                          mit the species to increase toward its optimum sustainable population
                 and with international treaty obligations,                                                      shall not be allowed. The Committee wishes to stress that the decline
                    (b) Requires that that[sic] all taking of the species be humane,                             of a species to a level under its optimum sustainable population
                    (c) Does not permit the taking of the species unless-                                        should be a rare occasion. The State, under the provisions of section
                          (1) The state has determined, under a process consistent with                          109 (f), should begin to restrict non-subsistence and even nonessential
                       the standards set forth in section 109 (c), that the species is at                        subsistence uses before a species becomes depleted.
                       its optimum sustainable population and has specified the maxi-                               Section 109 (b), as amended, also makes it clear that a state may
                       mum number of animals that may be taken without reducing                                  not permit the taking of marine mammals for scientific research and
                       the species below its optimum sustainable population; and                                 public display purposes unless such taking is done by, or for, the
                          (2) The determinations required in (1) above are final and                             state. Management of this take is retained at the Federal level except
                       implemented under state law and, if appropriate, a cooperative                            that, pursuant to section 109 (b) (3) (B) (ii), the Secretary may not
                       allocation agreement provided for in section 109(d) has been                              permit the removal of live animals from a state to which management
                       implemented;                                                                              authority has been returned if that state disapproves the taking as
                    (d) Does not permit the taking of a number of animals that ex-                               inconsistent with its program. This state consistency determination
                 ceeds the maximum number determined pursuant to (c) above and, in                               must be made within 30 days of the date the permit is issued. The
                 the case of subsistence uses, does not permit the taking of a number                            Committee expects that a state will be kept fully informed regarding
                 of animals that would be inconsistent with maintaining the species at                           permit applications and that the state will make its consistency find-
                 its optimum sustainable population;                                                             ing, to the maximum extent practicable, prior to the permit being is-
                    (e) Does not permit the taking of the species for scientific re-                             sued. To facilitate this objective the Secretary should make copies of
                 search and public display purposes, except for taking by, or for, the                           permit applications available to the state as soon as they are received
                 state;                                                                                          by the Secretary. Where this is not possible, the state should make its
                    (f) Provides procedures for acquiring and evaluating data relating                           consistency finding promptly after the permit is issued. The Commit-
                 to the optimum sustainable population of the species and to the maxi-                           tee also expects the state to provide a mechanism whereby permittees
                 mum   take which could be allowed and, if required, for amending                                can request the state to reconsider a finding that the pcrmittee be-
                 those determinations;                                                                           lieves to be in error. The Committee notes that the state's review and
                    (g) Provides procedures for the resolution of any differences be-                            approval authority only applies to permits approved after management
                 tween the state and the Secretary that may arise during the develop-                            authority is returned to the state. Permits approved prior to that time
                 ment of a cooperative allocation agreement under section 109 (d); and                           are not subject to state review even if the taking occurs after man-
                    (h) Provides for the submission of an annual report to the Secre-                            agement authority is returned. Finally, the Committee wishes to make
                 tary regarding the administration of the program.                                               it clear that once state approval is given, it is valid for the duration
               Section 109 (b) sets forth the program requirements a state must                                  of the permit.
            comply with before management authority is returned. It is the Com-                                     The Committee wishes to emphasize that section 109 (b) (2), as
            mittee's intent that the state have the burden of persuasion when the                                amended, specifically provides that until the state determination of a
            Secretary reviews the state program to determine if it is consistent                                 species' optimum sustainable population and the maximum allowable
            with the requirements of section 109 (b). In this regard, the Commit-                                take is final and implemented, the state program shall not apply with
            tee expects that the state program will be presented in a clear and                                  respect to the taking of that species and the Secretary shall continue
            coherent manner. Simply submitting a copy of the relevant state laws                                 to regulate all taking consistent with the Act.
            and regulations to the Secretary may not be sufficient to permit the                                    However, pursuant to section 109 (b) (3), after these determinations
            Secretary to evaluate the state program.                                                             are final and implemented under state law and after a cooperative
                                                                                                                 allocation agreement, if required, is implemented, the state's optimum
                                                                                                                 sustainable population and maximum take determinations shall be








                                                24                                                                                                  25

           treated, for purposes of applying this title beyond the territory of the                                 notes that the state may not call witnesses and present documentation
           state, as a section 103 Federal waiver of the moratorium on taking within                                at the hearing unless the advance notice requirements are met.
           the Fishery Conservation Zone. Where management authority has been re-                                      (3) If a hearing is requested on the initial determinations, the state
           turned to the state and where the required determinations and agreements                                 must make its final determinations solely on the basis of the record
           have been made, the state will have exclusive authority to manage marine                                 developed at the hearing. The word "solely" is intended to mean ex-
           mammals within the state, including its territorial waters, except for sci-                              clusively. A state may not rely on evidence, oral or written, which is
           entific and public display takings described above. Section 109 (b) (3) (B)                              not presented at the hearing. All written documentation, therefore,
           is intended to make this explicit.                                                                       must be entered into the record by a person able, by virtue of train-
              Section 4 (a) further amends     section 109 by adding a new subsec-                                  ing and experience, to respond fully to cross-examination regarding
           tion (c). New subsection (c) sets forth the process a state must com-                                    the facts and conclusions contained in the written material.
           plete before any determination of the optimum sustainable population                                        (4) Opportunity for judicial review of the state's final decision
           and the maximum allowable take for a marine mammal species is fi-                                        must be available under state law. However, the Secretary may not
           nal under section 109 (b). The process required must comply with the                                     initiate judicial review of any such decisions.
           following standards:                                                                                   Once the state program has been approved and the section 109 (c)
                   (1) The state must make an initial determination of whether the                             process completed, the Secretary retains no residual authority to
                species is at its optimum sustainable population and the maximum                               waive the moratorium and permit takings within state boundaries in
                take which will be consistent with maintaining the species at its opti-                        addition to those which may be allowed by the state. With respect to
                mum sustainable population. In making these determinations the state                           the section 109 (c) process, it is not the Committee's intent that the
                must make available, under reasonable circumstances, the documenta-                            state be required to comply with that process on an annual basis. It
                tion supporting the determinations. This requirement is satisfied only                         may be that the management of the species will require annual deter-
                if the public has reasonable access to the documentation. A state is                           minations of optimum sustainable populations and maximum permissi-
                neither required to duplicate, at its own expense, this documentation                          ble take. However, this may not necessarily be the case, even though
                nor provide it to any member of the public who requests it. How-                               state regulations setting different levels of take within the maximum
                ever, access to the documentation should be readily available, and if                          number allowed and state regulations establishing seasons, areas, man-
                any interested party requests copies and agrees to pay the costs of                            ner, etc. of take may change from year to year. Finally, the Commit-
    NJ          duplication, the state should provide actual copies of the documents.                          tee wishes to make it clear that the procedure required under section
                If a request for a hearing regarding the initial determinations is not                         109 (c) is applicable only to the determination of the optimum sus-
                made, those determinations shall be treated as final. The Committee                            tainable population of a species and the maximum take of that species
                expects that the State will establish a reasonable time period, such as                        which may be allowed in order to maintain the optimum sustainable
                30 days, in which a request for a hearing can be made.                                         population. The section 109 (c) process is not applicable to other de-
                  (2) The state shall provide an opportunity, at the request of any                            cisions made by the state respecting marine mammals. For example, a
                interested party, for a hearing with respect to the initial determina-                         state's decision regarding the seasons, areas, manner of take, etc. is
                tions. At any such hearing, interested parties may present evidence                            not subject to the section 109 (c) process.
                regarding the determinations and may cross-examine persons present-                               Section 109 (d) (1), as amended by section 4 (a) of H.R. 4084, es-
                ing evidence. Prior to the hearing, the state must give public notice                          tablishes a procedure for integrating Federal management of marine
                of the hearing and make available and distribute upon request a list                           mammal species in the Fishery Conservation Zone with state manage-
                of witnesses for the state and a general description of the documenta-                         ment of such species in the territorial sea once management authority
                tion and other evidence that will be relied upon by such witnesses. It                         has been returned to the state. Section 109 (b) (3) states that if the
                is essential that the state, prior to the hearing, make available and                          range of a species with respect to which an optimum sustainable
                distribute these lists and descriptions, for without such advance no-                          population determination is made under section 109 (b) (1) (C) extends
                tice, the right of cross-examination is significantly diluted. Persons                         beyond the territorial waters of the state, then the state's optimum
                serving notice that they wish to cross-examine witnesses at the hear-                          sustainable population and maximum allowable take determination
                ing must be given sufficient time to familiarize themselves with the                           shall be treated within the Fishery Conservation Zone as a Secretarial
                evidence which the state will present and to prepare appropriate ques-                         determination made in accordance with section 103 and as an applica-
                tions. The fact that section 109 (c) (2) states that interested parties                        ble waiver of the moratorium under section 101 (a). Section 109 (b)
                may present oral evidence and cross-examine at the hearing does not                            (3) further provides that in this situation, no taking of a marine
                mean that only those persons presenting evidence are entitled to cross-                        mammal may be allowed until a cooperative allocation agreement
                examine. There is not a condition precedent to the right of cross-exami-                       is entered into between the state and the Secretary. The purpose of
                nation except that the state may require persons desiring to exercise                          the agreement is to establish how many of the allowable number of
                that right to notify the state of their intent. Finally, the Committee                         marine mammals which the state determines can be taken will be
                                                                                                               taken in the Fishery Conservation Zone and how many will be




                                    IIIIIIN   IMI        win       I                                            '1        14        14                    N         N         I          I



                                              MMM MM MMM MMM M M M M,


                                                26                                                                                                 27

            taken in lands and waters under state jurisdiction. The cooperative alloca-                           Section 109 (e) establishes a procedure under which the Secretary
            tion agreement may cover two, and only two, types of taking: (1) subsis-                           can revoke any management authority returned to a state under sec-
            tence uses, and (2) takings provided for under section 101 (a) which                               tion 109 (b). The Secretary is directed to revoke any such authority if
            occur within the Fishery Conservation Zone. Taking within the territorial                          he finds that the state program for the conservation and management
            sea or on land within the state is solely within the discretion of the state                       of a species is not being implemented, or is being implemented in a
            after the two priorities established in the cooperative allocation agreement                       manner inconsistent with the provisions of section 109 or the provi-
            are satisfied.                                                                                     sions of the program. The Secretary may not revoke any management
               The Committee notes that one purpose of the cooperative alloca-                                 transfer unless he first provides a written notice of his intent to re-
            tion agreement and the dispute resolution mechanism provided for in                                voke together with a statement indicating his reasons therefor and un-
            section 109 (b) (1) (G) is to ensure that the state does not assert the                            less, during the ninety-day period following that notice of intent, the
            need for a number of mammals for subsistence uses which is not                                     Secretary provides opportunity for consultation with the state and the
            supported by historical experience or fact and which will preclude the                             state does not implement the necessary remedial measures. When a
            occurrence within the Fishery Conservation Zone of commercial fish-                                revocation by the Secretary becomes final, or if a state voluntarily
            ing and other specified activities involving the incidental taking of                              returns management authority, the Secretary shall regulate the taking
            marine mammals. A second purpose is to ensure that the Secretary                                   of a species within the state in accordance with this Act and, in the
            does not make unjustifiable claims regarding the number of marine                                  case of Alaskan Natives, pursuant to sections 101 (b) and 109 (i). In
            mammals necessary for the Secretary to carry out his responsibilities                              such a situation, the Federal moratorium as described in section
            pursuant to section 101 (a). It is not intended that the cooperative                               101(a) shall become effective until waived.
            allocation agreement be a vehicle by which the Secretary can assert                                   One of the bases for the Secretary to revoke state management
            that the state has provided inadequate numbers of marine mammals                                   authority is the failure of the state to comply with that part of its
            for subsistence uses. That issue is to be resolved by the state and                                program requiring that the state have a procdure [sic] for evaluating
            subsistence users pursuant to the state's subsistence laws and regula-                             new data and evidence relating to the optimum sustainable population
            tions.                                                                                             of the species and the maximum take that would maintain the species
               Finally, it should be noted that the taking which is the subject of                             at that level and, if required on the basis of that evaluation, for
            the cooperative allocation agreement is taking which results in the                                amending these determinations. A state may not be found in compli-
     4@-    killing or serious injury of marine mammals. It is not necessary that                              ance with its program if it simply has procedures for acquiring data
     UJ
            the cooperative allocation agreement address other forms of taking                                 and evaluating that data. The state has an affirmative burden to alter
            within the meaning of that term.                                                                   its determinations pursuant to the process described in section 109 (c)
               Section 109 (d) (2) provides that if a state agency requests the Sec-                           if the new data and other evidence indicates a need to do so. Failure
            retary to regulate the taking of a species subject to a cooperative                                to do so constitutes a basis for revocation of management authority
            allocation agreement within the Fishery Conservation Zone for subsis-                              by the Secretary.
            tence uses or for hunting in a manner consistent with state regula-                                   The Committee carefully considered the question of whether it was
            tions, the Secretary shall adopt and enforce such of the state's                                   necessary to include in the bill a provision expressly authorizing judi-
            regulations as the Secretary considers to be consistent with his ad-                               cial review of action by the Secretary under section 109 (b) approving
            ministration of section 101 (a). This section is intended to provide a                             or disapproving a proposed state management program or revoking or
            mechanism for the Federal adoption of state regulations in areas be-                               refusing to revoke such approval pursuant to section 109 (e). The
            yond state territorial waters and is included in the language of H.R.                              Committee concluded that it was unnecessary to do so, although the
            4084 in light of possible questions regarding the extra- territorial ap-                           Committee does not intend to preclude judicial review at the request
            plication of state law. However, the Secretary shall adopt the state                               -of interested parties. If the Secretary's action or inaction is unlawful
            regulations only to the extent that they are consistent with the Secre-                            under the applicable standards of review prescribed by the Adminis-
            tary's responsibilities under section 101 (a). For example, it is ex-                              trative Procedures Act, then the affected state or other interested
            pected that State regulations relating to the caliber of a rifle which                             party will be able to seek appropriate relief. Jurisdiction and venue
            may be used to take a marine mammal would not affect the Secre-                                    over any such action would be governed by statutes of general appli-
            tary's responsibilities under section 101(a). On the other hand, a state                           cability codified in Title 28 of the United States Code.
            regulation restricting the area or season for taking marine mammals                                   Section 4(a) further amends section 109 by adding a new subsec-
            could, if applied in the Fishery Conservation Zone, seriously impact                               tion (f) which provides that the Secretary may not tarnsfer[sic) man-
            the ability of the Secretary to permit commercial fishermen and other                              agement authority to the state of Alaska for any species of marine
            parties to take marine mammals within that zone. Such regulations                                  mammal unless the state has adopted and will implement a statute and
            would have to be carefully evaluated to determine if they should be                                regulations that ensure the taking of such species for subsistence uses is
            adopted. Any regulation issued by the Secretary pursuant to this sec-                              accomplished in a non-wasteful manner, will be the priority consumptive
            tion shall be done under 5 U.S.C. 553 and any such regulations need                                use of the species, and if subsistence taking must be restricted,
            not comply with the Regulatory Flexibility Act, the Paperwork Reduc-                               that such restriction will be based on: (1) the customary and direct
            tion Act, Executive Order No. 12291, and the thirty-day notice re-
            quirement of 5 U.S.C. 553(d).








                                                 28                                                                                                    29

            dependence upon the species as the mainstay of livelihood, (2) local resi-                           diminish the Committee's recognition of the importance of customary
            dency and (3) the availability of alternative resources. In addition, the                            trade of marine mammals in many rural Alaska villages.
            Secretary must find that the state has adopted a statute or regulation re-                              With respect to the non-subsistence harvest of marine mammals,
            quiring that any consumptive use of marine mammal species, other than                                section 109 (f) (1) (B) (i) requires the State of Alaska to determine
            for subsistence uses, will be authorized only if the appropriate state                               that all subsistence uses will be satisfied and that a non-subsistence
            agency first makes findings based on an administrative record (which                                 harvest will not adversely affect the subsistence harvest to a signifi-
            need not be the type of proceeding carried out before an administrative                              cant degree before the State may adopt any regulations authorizing a
            law judge), that such use will have no significant adverse impact upon                               non-subsistence harvest. Section 109 (f) (1) (13) (ii) requires that the regu-
            subsistence uses of the species and the regulations of such use will, to                             lation of non-subsistence uses provide, to the maximum extent practica-
            the maximum extent practicable, provide economic opportunities for the                               ble, economic opportunities for the residents of the rural coastal villages
            residents of rural coastal villages of Alaska who engage in subsistence                              of Alaska who engage in subsistence uses because the economies of cer-
            uses of that species.                                                                                tain villages are substantially dependent upon the harvest of marine
               Section 109 (f) (2) defines the term "subsistence uses" as the cus-                               mammals. If, for example, the State determines that all subsistence uses
            tomary and traditional uses by rural Alaska residents of marine mam-                                 of walrus in a particular area can be satisfied and still allow a non-sub-
            mals for direct personal or family consumption as food, shelter, fuel,                               sistence harvest, the State must determine whether the residents of the
            clothing, tools or transportation; for the making and selling of handi-                              local villages desire and are capable of harvesting all of the non-sub-
            craft articles out of non-edible by-products taken for personal or fam-                              sistence surplus. If so, section 109 (f) (1) (B) (ii) requires that State
            ily consumption; and for barter, or sharing for personal or family                                   regulations structure the non-subsistence harvest so as to provide eco-
            consumption.                                                                                         nomic opportunities for the residents of rural coastal villages who
               The Committee believes that the issue of subsistence taking must                                  engage in subsistence uses of that species. The economic opportuni-
            be addressed in Alaska's management program, given the importance                                    ties referred to include not only the opportunity to take the animals,
            of that take to persons dependent upon subsistence taking and given                                  but also the opportunity to serve as marine mammal hunting guides.
            the history of court cases surrounding the authority of the state to                                 The State may not authorize a guided hunt for any marine mammal
            regulate subsistence taking by Alaskan Natives. If management of a                                   species until the state has done everything practicable to license the
            marine mammal species is returned to the State of Alaska, Native                                     residents of coastal villages of the affected area. If competent and
            takings should be blended into the overall state regulatory regime. It                               knowledgable [sic] local residents are available, they must be licensed.
            should be emphasized that H.R. 4084 submits Native taking to state                                      Section 109 (g), as amended by section 4 (a), provides that the Na-
            regulation only as part of a state management program which has                                      tional Environmental Policy Act shall not be applicable to the trans-
            been approved by the Secretary and only for so long as that program                                  fer of management authority to a state or to the revocation or
            is in effect. Prior to implementation of the Alaska State program or                                 voluntary return of such authority from the state to the Federal Gov-
            subsequent to revocation of state management authority by the Secre-                                 ernment. The Committee wishes to emphasize that section 109 (g) also
            tary, Native taking of a species shall be subject to the provisions of                               applies to the process provided for in section 109 (c).
            sections 101 (b) and 109 (i).                                                                           Section 109 (h) essentially restates existing law, except that, as re-
              The Committee is cognizant of the similarity of section 109 (f) to                                 written, subsection (h) clarifies that Federal, as well as state or local
            certain provisions in Title 8 of the Alaska National Interest Lands                                  employees, may take marine mammals in the course of their official
            Conservation Act (ANILCA), P.L. 96-487. Section 109 (f) (1) (A), for                                 duties and clarifies that the non-lethal removal of nuisance animals
            example, is intended to establish a subsistence priority similar, but                                may also be carried out by Federal, state or local government em-
            not identical, to the subsistence priority established in section 804 of                             ployees. For example, the appropriate governmental employees may
            ANILCA. The Committee wishes to emphasize that this subsistence                                      remove harbor seals trapped in fish ladders.
            priority is intended to operate in the same manner as the subsistence                                   Section 109 (i) authorizes the Secretary, after providing notice and
            priority set forth in section 804 of ANILCA. The priority requires                                   opportunity for a hearing in the affected area, to prescribe regulations
            that all subsistence uses of a species be satisfied before the state may                             requiring the marking, tagging, and reporting of marine mammals
            authorize any non-subsistence taking. It should be noted, however,                                   taken by Alaskan natives pursuant to section 101 (b). This provision
            that the Marine Mammal Protection Act subsistence priority differs                                   is designed to enable the Secretary to gather sufficient data on the
            from the ANILCA priority in that customary trade is not included                                     taking of marine mammals by Alaskan Natives to determine what
            within the purview of section 109. The section 109 (f) (2) definition                                effect such taking is having on marine mammal populations. The
            of subsistence uses is identical to the definition of the same term in                               marking and tagging of animals will also provide the Secretary with
            section 803 of ANILCA in that it defines subsistence uses as the cus-                                a means of monitoring the disposition of the Native harvest to en-
            tomary and traditional uses by rural Alaska residents for the personal                               sure that any commercial use of marine mammal products meets
            and family consumption purposes set forth in section 803. The removal                                the criteria set forth in section 101(b) (2). In addition to the normal
            of customary trade from the subsistence use definition is not intended to




                          I         I     I   I          PF        Or         OF        r         I     I                                                                        I







                                                   30                                                                                                        31

             rulemaking requirements of the Administrative Procedures Act, section                                    for the government to participate in, or support, that research as well as
             109 (i) requires rulemaking to be preceded by public notice (which is                                    other projects to discover better technology to avoid conflicts between
             reasonably calculated to reach the residents of Alaska's rural villages in a                             marine mammals and the fishing industry.
             timely manner) and by an opportunity for a public hearing in the affected
             area. These additional procedural requirements recognize the unique logis-                                                                  SECTION 6
             tical and communications problems in rural Alaska, and the importance of                                    Section 6 of H.R. 4084 makes technical amendments to Title 11 of
             providing local village people-many of whom are unfamiliar with normal                                   the Act which establishes, and specifies the functions of, the Marine
             written rulemaking procedures-with an opportunity to express their                                       Mammal Commission. Specifically, section 6 repeals the requirement
             views orally on proposed rulemaking within their own communities. It is                                  that the Commission submit a copy of any report or recommendation
             not intended that the requirement to provide notification through "appro-                                to the Secretary before publication and clarifies that the Commission,
             priate electronic media" mandate the use of expensive television and radio                               in carrying on its responsibilities under the Act may make grants to
             commercials.
                Section 109 0) rewrites existing law to authorize the Secretary to                                    persons.
             make grants to assist states in developing, as well as in implement-                                                                        SECTION 7
             ing, state management programs. Current law restricts eligibility for
             these grants to implementing an approved state program. It was the                                          Section 7 of H.R. 4084 amends the Act to authorize $8,000,000
             Committee's view that it would be in the best interest of the Act to                                     for fiscal year 1983 and $8,800,000 for fiscal year 1984 for the De-
             permit states to receive funds for the development of management                                         partment of Commerce. Section 7 further amends the Act to author-
             programs. Grants made under this subsection may not exceed 50 per-                                       ize, for the Department of the Interior, $1,760,000 for fiscal year
             cent of the costs of developing or implementing state programs.                                          1983 and $2,000,000 for fiscal year 1984. Finally, section 7 author-
                Section 4 (b) of H.R. 4084 provides that nothing in the amend-                                        izes the appropriation of $1,000,000 in fiscal year 1983 and
             ments made by section 4 (a) shall be construed as affecting in any                                       $1,100,000 in fiscal year 1984 for the Marine Mammal Commission
             manner any cooperative agreement entered into by a state under sec-                                      to carry out its responsibilities under the Act.
             tion 6 (c) of the Endangered Species Act of 1973. Of particular con-                                        The Committee decided to eliminate the division of authorizations
             cern to the Committee was the possibility that H.R. 4084 would be                                        of appropriations for research and authorizations for other purposes.
      V1     interpreted as invalidating section 6 (c) cooperative agreements en-                                     For bureaucratic reasons peculiar to their own institutions, the Depart-
             tered into for the conservation and management of the endangered                                         ments of Commerce and the Interior interpreted these provisions dif-
             manatee in the State of Florida. Section 4 (b) will preclude this re-                                    ferently. The Committee intends that the agencies continue to carry
             sult. The Committee also notes that section 17 of the Endangered                                         on active research programs at approximately the same level as their
             Species Act provides that, in the case of conflicts between the Endan-                                   current programs. The Committee also notes that return of manage-
             gered Species Act and the Marine Mammals Protection Act, the more                                        ment of a species of marine mammals to a state should not preclude
             restrictive provision applies. Nothing in H.R. 4084 is intended to al-                                   Federal research on that species. Almost all marine mammals spend
             ter that result.                                                                                         some portions of their life cycle in Federal waters. Their role in the
                                                                                                                      marine ecosystem and their aesthetic and economic values are factors
                                               SECTION 5                                                              which make them appropriate subjects for research on the Federal
                Section 5 of H.R. 4084 amends section 110 (a) of the Act to direct                                    level. The Committee also notes that, because the Federal Government
             the Secretary to undertake a program of, and provide financial assis-                                    may be called upon to resume management at any time, Federal re-
             tance for, research into new methods of locating and catching yellow-                                    search, in cooperation with state agencies, should continue.
             fin tuna without the incidental taking of marine mammals. At present,
             section 110 (a) authorizes the Secretary to make grants to other agen-                                                             COST OF THE LWISLATION
             cies or persons for marine mammal research. As amended, section
             110 (a) would direct the Secretary to continue that function as well as                                     In the event that this legislation is enacted into law, the Commit-
             to undertake a program of research on his own. The marine mammal                                         tee estimates the cost to the Federal Government to be not in excess
             research required by this section specifically includes research into                                    of $10,760,000 in fiscal year 1983 and $11,900,000 in fiscal year
             new methods of locating and catching yellowfin tuna by purse seine                                       1984.
             vessels without the incidental take of marine mammals. Research in-
             volving aggregating devices is now being undertaken and the purpose of                                                         INFLATIONARY IMPACT STATEMENT
             this amendment, among other things, is to encourage the continuation of                                     Pursuant to clause 2 (1) (4) of Rule XI of the Rules of the House
             that research. The tuna industry is presently engaged in such research,
             and the amendment to section 110 (a) would expressly make it possible                                    of Representatives, the Committee estimates that the enactment of
                                                                                                                      H.R. 4084 would have no significant inflationary impact on the prices
                                                                                                                      and cost in the national economy.









                                                                                                                        98TH CONGRESS           HOUSE OF REPRESENTATIVES                           REPORT
                                                                                                                           2d Session                                                              98-758







                                                                                                                           MARINE MAMMAL PROTECTION ACT AUTHORIZATION FOR
                                                                                                                                                 FISCAL YEARS 1985-1988



                                                                                                                            MAY 15, 1984-Committed to the Committee of the Whole House on the
                                                                                                                                           State of the Union and ordered to be printed


                                                                                                                             Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                                                       Marine and Fisheries, submitted the following

                                                                                                                                                          REPORT

                                                                                                                                                   [To accompany H.R. 49971

                                                                                                                                     [Including cost estimate of the Congressional Budget Office]

                                                                                                                           The Committee on Merchant Marine and Fisheries to whom was
                                                                                                                        referred the bill (H.R. 4997) to authorize appropriations to carry out
                                                                                                                        the Marine Mammal Protection Act of 1972 for fiscal years 1985,
                                                                                                                        1986, and 1987, having considered the same, report favorably thereon
                                                                                                                        with amendments and recommend that the bill as amended do pass.
                                                                                                                           The amendments are as follows:
                                                                                                                           Strike out all after the enacting clause and insert the following:

                                                                                                                        11at the last sentence of section 101(a)(2) of the Marine Mammal Protection Act of
                                                                                                                        1972 (16 U.S.C. 1371(a)(2)) is amended to read as follows: "For purposes of apply-
                                                                                                                        ing the preceding sentence, the Secretary-
                                                                                                                            "(A) shall insist on reasonable proof from the government of any nation from
                                                                                                                           which fish or fish products will be exported to the United States of the effects
                                                                                                                           on ocean mammals of the commercial fishing technology in use for such fish or
                                                                                                                           fish products exported from such nation to the United States; and
                                                                                                                            "(B) in the case of yellowfin tuna harvested with purse seines in the eastern
                                                                                                                           tropical Pacific Ocean, and products therefrom, to be exported to the United
                                                                                                                           States, shall require that the government of the exporting nation provide docu-
                                                                                                                           mentary evidence that-
                                                                                                                              "(i) the government of the harvesting nation has adopted a regulatory pro-
                                                                                                                            gram governing the incidental taking of marine mammals in the course of such
                                                                                                                            harvesting that is comparable to that of the United States; and
                                                                                                                              "(ii) the average rate of that incidental taking by the vessels of the
                                                                                                                            harvesting nation is comparable to the average rate of incidental taking of








                                             2                                                                                            3

















                                                                                                                                 LEGISLATIVE HISTORY

                                                                                                          H.R. 4997, a simple three-year reauthorization of the Marine Mam-
                                                                                                       mal Protection Act (MMPA) at existing levels, was introduced on
                                                                                                       March 1, 1984, by Mr. Breaux and Mr. Forsythe, and was referred to
                                                                                                       the Committee on Merchant Marine and Fisheries.
                                                                                                          A hearing was held by the Subcommittee on Fisheries and Wildlife
                                                                                                       Conservation and the Environment on March 15, 1984, at which testi-
                                                                                                       mony was received from representatives of the National Marine Fish-
                                                                                                       eries Service (NMFS), the U.S. Fish and Wildlife Service, the Marine
                                                                                                       Mammal Commission (MMC), various conservation groups, the tuna
                                                                                                       fishing industry, Sea World, Inc., and the Western Oil and Gas Asso-
    00                                                                                                 ciation. Without exception, these witnesses supported reauthorization
                                                                                                       of the MMPA.
                                                                                                          Issues other than reauthorization which were discussed during the
                                                                                                       course of this hearing included: a recent court decision relating to the
                                                                                                       use of observers on tuna vessels for the enforcement of MMPA regu-
                                                                                                       lations; the calculation of optimum sustainable population (OSP) and
                                                                                                       whether it should be permissible to allow some take of marine mam-
                                                                                                       mals whose populations are below OSP but increasing in size; entan-
                                                                                                       glement of marine mammals in net fragments, packing bands, and
                                                                                                       other debris lost or discarded at sea; and options, including transloca-
                                                                                                       tion, for the recovery of the California Sea Otter, a threatened spe-
                                                                                                       cies under the Endangered Species Act of 1973.
                                                                                                          Testimony was also received from Congressmen Rod Chandler and
                                                                                                       Norm Dicks of the State of Washington and representatives of NMFS
                                                                                                       Office of Protected Species and Habitat Conservatibn, MMC Commit-
                                                                                                       tee of Scientific Advisors, Greenpeace U.S.A., The Whale Center, and
                                                                                                       Sea World, Inc., regarding H.R. 4457, a bill to prohibit the taking
                                                                                                       and importation of killer whales for public display purposes, which
                                                                                                       would invalidate a permit for this purpose previously issued to Sea
                                                                                                       World, Inc.
                                                                                                          After consideration of the aforementioned testimony, the Subcom-
                                                                                                       mittee marked up H.R. 4997 on May 9, 1984. Amendments in the
                                                                                                       nature of a substitute and to revise the title of the bill were adopted
                                                                                                       and the bill was favorably reported to the full Committee, both by
                                                                                                       unanimous voice vote.
                                                                                                          On May 10, 1984, the full Committee marked up H.R. 4997, as
                                                                                                       amended, and ordered it favorably reported to the House by a unani-
                                                                                                       mous voice vote.




                                                                                                        I        I          I







                                                   4                                                                                                    5

                                          TuE AmENDmENTs                                                          the eastern tropical Pacific Ocean. The number of porpoises killed or seri-
                                                                                                                  ously injured has dropped from an estimated 368,600 in 1972 to an esti-
                The amendments:                                                                                   mated 8,258 in 1983. On December 1, 1980, the National Marine
                (a) extend the authorization of appropriations from three to four                                 Fisheries Service (NMFS) within the Department of Commerce issued a
             years, through Fiscal Year 1988;                                                                     general permit for a total annual incidental take of porpoise in the U.S.
                (b) increase the Interior Department authorization by $.5 million                                 yellowfin tuna fishery of up to 20,500 animals of all species combined.
             for Fiscal Year 1985 and $1 million for each of the next three years;                                This level of take is not viewed by scientists for NMFS, the tuna indus-
                (c) tighten the import requirements for fish and fish products har-                               try, or major environmental groups as likely to significantly adversely
             vested by foreign tuna vessels in the eastern tropical Pacific Ocean;                                affect the porpoise stocks in question. Ibis general permit is due to ex-
                (d) freeze the existing general permit of the American Tunaboat                                   pire in 1985.
             Association for the incidental taking of porpoise in connection with                                    During a hearing held on the MMPA by the Subcommittee on Fish-
             the commercial purse seine tuna fishery in that ocean;                                               eries and Wildlife Conservation and the Environment on March 15,
                (e) set a limit of 250 coastal spotted dolphin and 2;750 eastern                                  1984, it became clear that the current process for issuing permits for
             spinner dolphin that may be taken incidental to that fishery and pro-                                incidental take of porpoises in the tuna fishery remains as lengthy
             hibit any accidental take of these species;                                                          and complex as when the level of take was many times greater, Fur-
                (f) direct the Secretary of Commerce to carry out a scientific re-                                ther, there are continuing disputes about the validity of data and as-
             search program to monitor, for at least five years, population abun-                                 sumptions used in calculations of present and historic stock size
             dance and trends for related marine mammal stocks and authorize a                                    necessary under current permitting procedures. These dispute [sic] pre-
             $4 million appropriation to carry out such research;                                                 cipitated extensive legal and administrative proceedings over the issu-
                (g) direct the Secretary of Commerce to make appropriate modifi-                                  ance of the current general permit for incidental take, and it appears
             cations to the incidental take quotas or other requirements of the gen-                              likely that similar disputes would again arise in the issuance of future
             eral permit, if it is determined that the existing incidental take is                                permits.
             having a significant adverse effect on a marine mammal population                                       Under the terms of the MMPA, the incidental take of animals from
             stock; and                                                                                           various porpoise stocks is allowed only if the given stock is deter-
                (h) revise the title of the bill to reflect the foregoing changes.                                mined to be at the Optimum Sustainable Population (OSP) level. The
                                                                                                                  MMPA defines OSP as the number of animals which results in the
                             BACKGROUND AND NEED FOR LEGISLATION                                                  maximum productivity of the stock, keeping in mind the carrying ca-
                                                                                                                  pacity of the environment and the health of the ecosystem of which it
                The Marine Mammal Protection Act (MMPA) was enacted in 1972                                       is a constituent part.
             for the purpose of ensuring that marine mammals are maintained at                                       For regulatory purposes, NMFS has determined that OSP is a range
             healthy population levels. In passing the Act, Congress responded to                                 of population levels between maximum net productivity and carrying
             the growing concern about the decline of certain species and recog-                                  capacity. For porpoise stocks taken incidentally in the purse seine
             nized the important role that marine mammals play in the ecosystem                                   fishery, NMFS considers carrying capacity to be synonymous with
             as well as their economic, aesthetic and recreational value.                                         historic marine mammal stock levels prior to extensive development
                Under the MMPA, the Department of Commerce is charged with                                        of the tuna purse seine fishery (i.e. 1959). Using the historic stock
             responsibility for whales, dolphins (porpoises), sea lions and seals.                                level estimate of carrying capacity as an upper bound, NMFS defines
             The Department of the Interior has responsibility for polar bears, wal-                              the lower limit of the OSP range as 60 percent of this historic popu-
             ruses, sea otters, manatees and dugongs. The Act establishes a mora-                                 lation level. This percentage designation of the maximum net produc-
             torium on the taking of marine mammals unless the population of an                                   tivity level is based on theoretical considerations of porpoise
             animal is determined to be at its optimum sustainable level. State                                   population dynamics. In effect, this interpretation of OSP requires es-
             management of resident marine mammal populations is preempted un-                                    timation of historic stock size in order to numerically define the
             til such time as a state prepares a marine mammal management pro-                                    lower limit of OSP and determine if the current stock size is suffi-
             gram consistent with the Act. Criminal and civil penalties are                                       cient to allow for an incidental take under terms of the MMPA.
             prescribed for violations of the Act and the importation of marine                                      The Committee recognizes that if NMFS could estimate both cur-
             mammals and their products is subject to regulation. The Act created                                 rent and historic stock sizes with a high degree or [sic] precision, the
             a three-member Marine Mammal Commission which is charged with                                        current controversy over the status of various porpoise stocks might
             monitoring the implementation of the Act, recommending policies to                                   well not exist. However, this is unfortunately not possible given the
             the two Secretaries, and undertaking such research as is deemed ap-                                  paucity of mortality data for the period 1959-1972, variable estimates
             propriate.                                                                                           of net recruitment, and the technical problems inherent in estimation
                Perhaps the most visible success of the Marine Mammal Protection                                  of stock levels over so large an expanse of ocean. In essence, it has
             Act has been the dramatic reduction in U.S. take of porpoises                                        become apparent that the available data base is inadequate to support
             incidental to the purse seine fishing operations for yellowfin tuna in                               the calculations necessary for this method to be an effective manage-
                                                                                                                  ment tool.







                                                 6                                                                                                   7

              Members of the environmental community, the tuna industry, and                                   mental Impact Statement (EIS) to examine alternatives for sea otter con-
            the Federal government all recognize that an alternative approach for                              servation. Should amendments to either the MMPA or the Endangered
            issuance of a general permit for incidental take of porpoise in the                                Species Act (ESA) prove necessary to more effectively implement sea
            purse seine fishery for tuna is desirable. Such an alternative should                              otter recovery plans after completion of the EIS process, such amend-
            be designed to provide strong protection for affected porpoise stocks                              ments may be developed by the Committee when it addresses reauthoriza-
            while reducing the need for extensive administrative and legal pro-                                tion of the ESA in 1985.
            ceedings. In addition, any alternative approach should be consistent                                  A clear intent of Congress in development of the MMPA was that
            with the MMPA goal to reduce the incidental take of porpoise in the                                states should assume management responsibility for resident marine
            tuna fishery to the lowest level which is economically and technologi-                             mammals within their jurisdiction through development of manage-
            cally practicable.                                                                                 ment programs consistent with the purposes of the MMPA. No state
              During the March 15, 1984, Subcommittee hearing, and in discus-                                  currently has management authority over any marine mammal species,
            sion with concerned domestic interests, concerns were also expressed                               despite amendment of the MMPA in 1981 to facilitate such return of
            about the degree to which foreign nations engaged in the tuna purse                                management authority.
            seine fishery in the eastern tropical Pacific Ocean are taking appro-                                 At the Subcommittee hearing, it was learned that the Department
            priate steps to minimize the incidental taking of porpoises. The                                   of the Interior had failed to develop regulations regarding the mark-
            MMPA provides that the Secretary of the Treasury shall ban the im-                                 ing and tagging of Alaskan marine mammals and their parts and prod-
            portation of commercial fish or products from fish which have been                                 ucts. These regulations arc necessary to gain essential information on
            caught with commercial fishing technology which results in the inci-                               the level of native subsistence take and to control illegal traffic in
            dental kill or serious injury of ocean mammals in substantial excess                               marine mammal parts and products. The Department of the Interior
            of United States standards. In carrying out this mandate, the Secre-                               has been hesitant to implement regulations due to anticipation that the'
            tary is required to insist on reasonable proof from the government of                              State, of Alaska would, at any time, apply to resume management
            an exporting nation of the effects on ocean mammals of the commer-                                 authority. The State has not yet applied for such a resumption of
            cial fishing technology in use for such fish or fish products. The                                 management, and does not appear likely to do so within the immedi-
            Subcommittee determined that it was necessary to strengthen the re-                                ate future. Therefore, the Department of the Interior has informed the
     Ln     quirements of the Act with respect to documentation of compliance                                  Committee that it intends to begin development and implementation
            by foreign nations with the essential features of the MMPA.                                        of such regulations for walrus, polar bear and sea otter in Alaska
              In addition to the aforementioned problems relating to incidental                                under its management authority. The Committee, noting the potential
            take of porpoise in the tuna fishery, testimony at the Subcommittee                                for adverse impacts on these marine mammal stocks due to the failure
            hearing revealed potential problems with recovery of the threatened                                to promulgate such regulations, suggests that these regulations be de-
            California sea otter and with inadequate Federal management of ma-                                 veloped and implemented as expeditiously as possible.
            rine mammals in Alaska.
              The Marine Mammal Protection Act, in conjunction with the En-                                                           SECTION-BY-SECTION ANALYsis
            dangered Species Act, has been an important contributor to the health
            of a number of marine mammal populations, including that of the                                                                     SECTION I
            threatened California sea otter. The future of the sea otter remains
            uncertain, however, primarily due to perceived threats resulting from                                 Section I of H.R. 4997 amends section 101(a)(2) of the Marine
            incidental mortality in coastal fisheries, conflicts with shellfish indus-                         Mammal Protection Act (MMPA) to ensure that nations exporting yel-
            tries, and potential impacts of Outer Continental Shelf oil and gas                                lowfin tuna harvested with purse seines in the eastern tropical Pacific
            exploration and tanker traffic. The status of the California sea otter                             Ocean have in place a regulatory program for marine mammal protec-
            and the nature of these potential threats were addressed by as [sic]                               tion measures which is comparable to that of the United States. Cur-
            number of witnesses at the Subcommittee hearing. To counter these                                  rent law directs the Secretary of the Treasury to ban the importation
            threats, particularly in regard to oil and gas activities, the U.S. Fish                           of fish or products from fish which have been caught with commer-
            and Wildlife Service has proposed the translocation of a group of sea                              cial fishing technology which results in the incidental kill or serious
            otters to a location outside the current sea otter range. These animals                            injury of ocean mammals in excess of U.S. standards. The MMPA
            would form a nucleus for development of an independent population                                  directs the Administration to insist on reasonable proof from the govern-
            which would be spatially separated from any potentially catastrophic                               ment of the exporting nation relative to the effects on marine mammals
            event affecting the primary sea otter population. One of the Channel                               of the commercial fishing technology utilized by that nation.
            Islands, San Nichols, has figured prominently as a potential transloca-                               The amendment requires that, in making the determination with re-
            tion site.                                                                                         spect to yellowfin tuna caught in the eastern tropical Pacific, the
              The translocation proposal has generated serious controversy                                     Administration shall require documentary evidence from the gov-
            among the Federal and state governments, the oil and shellfish in-                                 ernment of the exporting nation that the government of the har-
            dustries, and sea otter protection groups. However, these parties                                  vesting nation has adopted a regulatory program governing the in-
            have recently agreed to participate in development of an Environ-


                                                                                                     N



                                              MM M= == MMMMM



                                                 8                                                                                                  9

            cidental taking of marine mammals in its fishery that is comparable to                                The third condition states that the terms and conditions of the gen-
            that of the United States. It further requires documentation that the aver-                        eral permit shall remain in force for the duration of the permit with
            age rate of incidental taking of marine mammals by the harvesting nation                           several exceptions. The first exception allows the Secretary to make
            in the fishery is comparable to that of the United States.                                         adjustments in the requirements relating to fishing gear, fishing prac-
               The Committee notes that the regulatory program of the U.S. relat-                              tices and permit administration as may be appropriate. The intent of
            ing to the incidental take of marine mammals in the yellowfin tuna                                 this paragraph is to allow the Secretary to alter the permit require-
            fishery is quite extensive and detailed. The Committee does not in-                                ments in ways that are consistent with the goals of the Act. The
            tend to require that the regulatory program of foreign countries                                   Committee is aware that the Secretary is considering changing a num-
            should be identical to that of the United States. Programs which re-                               ber of regulations and permit requirements to guidelines and believe
            quire the basic equipment and techniques used to protect porpoises                                 such a change would fall within the scope of this exception. Simi-
            and have as their purpose the minimization of the number of animals                                larly, if new porpoise saving equipment or techniques that are eco-
            incidentally taken would be comparable as long as they provided a                                  nomically and technologically paracticable [sic] are discovered, the
            level of protection that is substantially equivalent to that of the U.S.                           permit conditions could be altered to require their use. The Commit-
            program. Similarly, the average rate of incidental taking will vary                                tee does not intend that this exception be read to authorize major
            from year to year. The Committee does not intend that the import of                                changes in the program or changes that would not further the goals
            tuna products should be banned if the rate of incidental taking is                                 of the Act.
            slightly higher in any given year. However, the report of levels of                                   The second exception allows the terms and conditions to be
            incidental take being consistently higher than that of the U.S. or sig-                            amended or terminated if the decision to do so is based on the best
            nificantly higher in a given year should result in the prohibition of                              scientific information available, including that obtained from the
            imports. The Committee expects that the Administration will require                                monitoring program established under the legislation. The third excep-
            reliable estimates of incidental take that are consistent with observer                            tion provides a limited quota for incidental take of two species for
            data provided to the Inter-American Tropical Tuna Commission                                       which no quota is provided under the current permit. It allows an
            (IATTC). The Committee further intends that NMFS should, as part                                   incidental take of up to 250 coastal spotted dolphin and up to 2750
            of its regulatory program, encourage foreign nations which have not                                easterm [sic) spinner dolphin. These quotas are to be included within
            done so to implement an observer program, either on their own or in                                the overall annual quota of 20,500 dolphins in the general permit. In
            cooperation with the IATTC.                                                                        addition, during that period when an incidental take quota is in ef-
                                                                                                               fect, the accidental take policy relating to these two species would
                                            SECTION 2                                                          not apply.
               In general, Section 2 of H.R. 4997 extends the current permit for                                  While other amendments to the Marine Mammal Protection Act
            the incidental taking of marine mammals in the purse seine fishery                                 were considered, it was the opinion of the Committee that further
            for yellowfin tuna and institutes a special five year study to gather                              amendments not be addressed at this time. The Committee is cogni-
            additional and more accurate data relative to porpoise abundance and                               zant of the fact that a specific request was made that an amendment
            population trends in the area where the fishery occurs.                                            be considered to clarify Congressional intent with regard to the place-
                                                                                                               ment of Federal observers on board U.S. purse seine vessels. The
               Specifically, section 2 amends subsection (h) of Section 104 of the                             Committee decided against such an amendment pending a ruling by
            MMPA which authorizes the issuance of general permits for the tak-                                 the U.S. Supreme Court in the matter of BALELO vs. BALDRIGE.
            ing of marine mammals. The current law relating to general permits                                    Section 2 further directs the Secretary of Commerce to conduct
            would become paragraph (1) and new paragraphs would be added.                                      ongoing studies to assess trends in porpoise stock levels for stocks
            New paragraph 2(A) would extend the permit in force, which was                                     affected by incidental take in the purse seine fishery for yellowfin
            granted to the American Tunaboat, Association on December 1, 1980,                                 tuna in the eastern tropical Pacific Ocean, and to develop indices of
            for an indefinite period subject to a number of specific conditions.                               abundance for these stocks. It is the intent of the Committee that the
               The first condition is that the permit would cease to have force                                results of these trend analyses and changes in stock abundance indi-
            and effect if it were terminated or surrendered. The second permit                                 ces be used as a primary, though not exclusive, source of information
            condition incorporates the standard in Section 101(a)(2) of the MMPA                               for monitoring and assessment of the health and status of affected
            which states that the goal of the Act is to reduce the incidental kill                             porpoise stocks. The Secretary is directed to consider the results of
            and incidental serious injury of marine mammals to insignificant lev-                              this monitoring program and other scientific information in determina-
            els approaching zero, but provides that the goal is satisfied in the                               tion of the effects of incidental take on marine mammal stocks. The
            case of purse seine fishing for yellowfin tuna by the continuation of                              Committee encourages the Secretary to develop the theoretical bases
            the application of the best marine mammal safety techniques that are
            economically and technologically practicable.                                                      to allow the use of these data to the fullest extent practicable in the
                                                                                                               assessment of trends in porpoise stock abundance.
                                                                                                                  The Committee notes the failure of existing methods to pro-
                                                                                                               duce determinations of current and historic stock status of sufficient








                                                           10

              precision to be of merit in rational regulation of incidental take of marine                                                  (B) The requirements of Section 308(a) of the Congressional
              mammals. The Committee intends that the study provide a basis for a ra-                                                   Budget Act of 1974 are not applicable to this legislation.
              tional method for determining if marine mammal stocks are being adversely                                                     (C)   The Committee on Government Operations has sent no report
              affected by incidental take. Reports to Congress during the period of the                                                 to the Committee on Merchant Marine and Fisheries pursuant to
              study should include discussions of alternative methods for making the nec-                                               clause    2(b)(2) of Rule X.
              essary determinations relating to incidental take. In addition, during the pe-                                                (D)   A letter was received from the Director of the Congressional
              riod of the permit, assessments of affected porpoise stocks, for purposes of                                              Budget Office, pursuant to Section 403 of the Congressional Budget
              determining whether or not the permit should be modified, should not rely                                                 Act of    1974 in reference to H.R. 4997 and follows herewith:
              on methods that require calculations which are dependent on extensive ex-
              trapolation from a limited data base.                                                                                                                                                   U.S. CONGRESS,
                  Should the Secretary determine from the best available scientific in-                                                                                                  CONGRESSIONAL BUDGET OFFICE,
              formation that the level of incidental take of porpoises authorized under                                                                                                  Washington, D.C., May 11, 1984.
              the general permit is having a significant adverse effect on the stock in                                                 Hon. WALTER B. JONES,
              question, the legislation mandates modification of the take quota and/or                                                  Chairman, Committee on Merchant Marine and Fisheries, U.S.
              requirements concerning fishing gear or practices to the extent necessary                                                       House of Representatives, Washington, D.C.
              to protect the stock so affected. The Department of Commerce is author-                                                       DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
              ized to be appropriated up to a total of $4 million over the four-year                                                    pared the attached cost estimate for H.R. 4997, a bill to authorize
              period of fiscal year 1985 through fiscal year 1988 to develop and con-                                                   appropriations to carry out the Marine Mammal Protection Act of
              duct the necessary monitoring program requiredby this section.                                                            1972 for fiscal years 1985 through 1988, and for other purposes.
                                                      SECTION 3                                                                             If you wish further details on this estimate, we will be pleased to
                                                                                                                                        provide them.
                  Section 3 of the amendment authorizes appropriations for the pur-                                                          Sincerely,
              poses of the MMPA of $2.5 million for fiscal year 1985 and $3.0                                                                                                                          ERIC HANUSHER
              million annually for fiscal year 1996 through fiscal year 1988 for the                                                                                                                  (for Rudolph G. Penner).
      Ln
              Department of the Interior. The Department of Commerce is author-
              ized to be appropriated $8.8 million for each of fiscal years 1985                                                                         CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
              through 1988. These sums are in addition to the authorization pro-
              vided in Section 2 for monitoring studies on porpoise stocks in the                                                           1. Bill number: H.R. 4997.
              eastern tropical Pacific Ocean. The Marine Mammal Commission is                                                               2. Bill title- A bill to authorize appropriations to carry out the
              authorized appropriations of $1.1 million annually for each of fiscal                                                     Marine Mammal Protection Act of 1972 for fiscal years 1985 through
              years 1985 through 1988.                                                                                                  1988, and for other purposes.
                                                                                                                                            3. Bill status: As ordered reported by the House Committee on
                                            COST OF THE LEGISLATION                                                                     Merchant Marine and Fisheries, May 10, 1984.
                                                                                                                                            4. Bill purpose: H.R. 4997 authorizes appropriations for marine
                  In the event that this legislation is enacted               into-law, the Commit-                                     mammal conservation and management activities of the Marine Mam-
              tee estimates the cost to the Federal government to be not in excess                                                      mal Commission and the Departments of Commerce and the Interior
              of $13.4 million in fiscal year 1985 and $13.9 million in fiscal years                                                    for fiscal years 1985 through 1988. In addition, the bill would re-
              1986, 1987, 1988.                                                                                                         quire the Secretary of Commerce to monitor marine mammal popula-
                                                                                                                                        tions and would authorize the appropriation of $4 million over the
                                       INFLATIONARY IMPACT STATEMENT                                                                    period ending September 30, 1988 for that purpose.
                                                                                                                                            5. Estimated cost to the Federal Government:
                  Pursuant to clause 2(l)(4) of Rule XI of the Rules of the House of                                                                                   IBV fiscal years; In millions of dollars)
              Representatives, the Committee estimates that the enactment of H.R.
              4997 would have no significant inflationary impact on the prices and                                                                                                       1965     `1986      1987       11988       1989
              costs in the national economy.                                                                                            Authodzallon level                               13.4      13.9      13.9       13.9       -
                               COMPLIANCE WITH CLAUSE 2(l)(3) OF RULE XI                                                                Estimated outlays                                 9.8      13.0                 13.8         5.2
                                                                                                                                            The costs of this bill fall within           budget function 300.
                  With respect to the requirements of clause 2(l)(3) of                      Rule XI of                                     Basis of Estimate.-Authorization levels are as stated                             in    the
              the Rules of the House of Representatives:                                                                                bill. For purposes of this estimate, it is assumed that the                                full
                  (A) A day of hearings was held on the legislation on March 15,                                                        amounts authorized will be appropriated prior to the beginning of
              1984, by the Subcommittee on Fisheries and Wildlife Conservation                                                          each fiscal year. It is further assumed that the $4 million authorized for
              and the Environment.


        WON        NINE!                                1111111011111, NINE!     IN           IF



                                               MM M@ mm                                                                                     MM



                                                 12                                                                                                   13

            the monitoring of marine mammal populations will be appropriated at a                                          1985, and such sums as may be necessary for fiscal year 1986
            rate of $1 million per year. Outlays are estimated on the basis of histori-                                    and 1987.".
            cal spending patterns for these and similar activities.                                                           See. 2. Section 7(b) is amended-
               6. Estimated cost to State and local governments: None.                                                        (a) by striking out "and" after "1983," where it appears; and
               7. Estimate comparison: None.                                                                                  (b) by striking out "1984." where it appears     and inserting in
               8. Previous CBO estimated: None.                                                                            lieu thereof "1984, $2,230,000 for fiscal year      1985, and such
               9. Estimate prepared by, Deb Reis.                                                                          sums as may be necessary for fiscal years 1986      and 1987.".
               10. Estimate approved by C. G. Nuckols for James L. Blum, Assis-                                               Sec. 3. Section 7(c) is amended-
            tant Director for Budget Analysis.                                                                                (a) by striking out "and" after "1983," where    it appears; and
                                                                                                                              (b) by striking out "1984." where it appears     and inserting in
                                      DEPARTMENTAL REPORTS                                                                 lieu thereof "1984, $648,000 for fiscal year 1985, and such
                                                                                                                           sums as may be necessary for fiscal years 1986      and 1997.".
               The bill, H.R. 4997, was referred to several different Departments,
            but no Departmental reports were received. However, the Committee                                                        STATEMENT OF PURPOSE AND NEED
            received an Executive Communication from the Department of Com-
            merce, the Department of the Interior and the Marine Mammal Com-                                        The Marine Mammal Protection Act of 1972 (Pub. L. No. 92-522,
            mission, which follows herewith:                                                                     as amended; 16 U.S.C. ï¿½ï¿½ 1361-1407) (the "Act") was enacted to es-
                                                THE SECRETARY OF COMMERCE,                                       tablish a Federal responsibility for the conservation of marine mam-
                                                 Washington, D. C., April 11, 1984.                              mal populations. The Act establishes a moratorium on the taking and
                                                                                                                 importation of designated marine mammals and marine mammal prod-
                                           [Ex. Comm. 3198)                                                      ucts, contains procedures for waiving this moratorium and transferring
                                                                                                                 management to the States, establishes a permitting system, and pro-
            Hon. THomAs P. O'NEILL, Jr.,                                                                         vides for enforcement by the Departments of Commerce and the Inte-
            Speaker of the House of Representatives,                                                             rior. In addition, the Act provides for Federal cooperation with
            Washington, D.C.                                                                                     States, marine mammal research grants, and a program to develop
               D                                                                                                 fisheries gear and methods to reduce to the maximum extent practica-
                 EAR MR. SPEAKER: Enclosed are six copies of a draft bill-"To
            extend the authorization of appropriations    for the Marine Mammal Pro-                             ble incidental takings of marine mammals. The Act also provides for
            tection Act of 1972 through fiscal year 1987," together with its state-                              the support of the Marine Mammal Commission and its Committee of
            ment of purpose and need and section-by-section analysis.                                            Scientific Advisors on Marine Mammals.
               We have been advised by the Office Of Management and Budget                                          Under the Act, the Department of Commerce, acting through the
            that there is no objection to the submission of this legislation to the                              National Oceanic and Atmospheric Administration (NOAA), is respon-
            Congress, and that enactment of this legislation would be in accord                                  sible for whales, porpoises, seals and sea lions. NOAA has been in-
            with the program of the President.                                                                   strumental in reducing incidental taking of porpoise in the course of
                   Sincerely,                                                                                    commercial tuna fishing operations from in excess of 400,000 per
                                                    MALCOLM BALDRIGE,                                            year to slightly in excess of 20,000 per year. This reduction has been
                                                       Secretary of Commerce,                                    achieved to a great extent through research conducted by NOAA sci-
                                                   WILLIAM CLARK,                                                entists pursuant to the Act.
                                                       Secretary of the Interior,                                   Under the Act, the Secretary of the Interior, through the U.S. Fish
                                                   JOHN R. Twiss, Jr.,                                           and Wildlife Service, is responsible for protecting, conserving, and
                                                       Executive Director, Marine                                managing polar bears, sea and marine otters, walruses, dugongs, and
                                                       Mammal Commission.                                        manattes [sic]. The Service has worked closely with the States to pro-
                   Enclosures.                                                                                   tect and manage these species. For example, the Service, in coopera-
                          A Bill To extend the authorization of appropriations for the                           tion with the State of Florida and other public and private agencies,
                       Marine Mammal Protection Act of 1972 through fiscal year                                  has been successful in reducing the number of manatee deaths due to
                       1987.                                                                                     navigation locks and flood gates. The number of manatee sanctuaries
                          Be it enacted by the Senate and House of Representatives                               where boat speeds are controlled have been increased. Increased law
                       of the United States of America in Congress assembled, That                               enforcement has further reduced manatee harassment and aided sal-
                       section 7(a) of the Act of October 9, 1981 (Pub. L. No. 97-58;                            vage opportunities, and ccnsusing techniques have been improved
                       16 U.S.C. ï¿½ 1384(a)) is amended-                                                          through research.
                          (a) by striking out "and" after "1983," where it appears; and
                          (b) by striking out "1984." where it appears and in-
                       serting in lieu thereof "1984, $6,092,000 for fiscal year









                                            14

             Under the Act, the Marine Mammal Commission and its Committee
          of Scientific Advisors are responsible for stimulating, coordinating
          and reviewing the implementation of the Act. The Commission has
          been instrumental in developing marine mammal management policies,
          developing biologically and legally constructive approaches to re-
          quests for waivers of the moratorium, carefully directing support of
          research to further conserve marine mammals, developing a body of
          information on which to base international negotiations related to ma-
          rine mammal conservation, carefully and objectively exercising its
          overview responsibilities, guiding agencies in responsibly addressing
          critical issues, ensuring that agencies effectively enforce the provi-
          sions of the Act, promoting effective Federal-state cooperation, and
          responsibly providing an overview of activities being conducted pur-
          suant to the Act.
             Authorizations to carry out the Act will expire September 30,
          1984. The draft bill would extend for three years, until September 30,
          1987, the authorization of appropriations provided to the two Depart-
          ments and the Commission under the Act. For fiscal year 1985, it
          would authorize a total of $6.092 million for the Department of Com-
          merce, $2.23 million for the Department of the Interior, and $648,000
          for the Marine Mammal Commission. These amounts are at the level
          contained in the President's budget request and would allow the two
          Departments and the Commission to carry out their research, manage-
          ment, enforcement, and administrative activities for marine mammals.
    Z@    With respect to fiscal years 1986 and 1987, the draft bill would sim-
    41    ply authorize appropriations of such sums as may be necessary to
          implement the Act. This would enable the Departments and the Com-
          mission to take into consideration up-to-date resource requirements
          and the status of efforts to return management of marine mammal
          species to State jurisdiction.



                                                                                                                                                                                                                          'A




                                                                                                                              100TH CONGRESS              HOUSE OF REPRESENTATIVES                           REPORT
                                                                                                                                2d Session                                                                 100-970








                                                                                                                                      MARINE MAMMAL PROTECTION ACT AMENDMENTS
                                                                                                                                                                    OF 1988



                                                                                                                                   SEPTEMBER 23, 1988-Committed to the Committee of the Whole House
                                                                                                                                              on the State of the Union and ordered to be printed


                                                                                                                                    Mr. ]ONES of North Carolina, from the Committee on Merchant
                                                                                                                                              Marine and Fisheries, submitted the following

                                                                                                                                                                  REPORT

                                                                                                                                                           [To accompany H.R. 41891

                                                                                                                                          [Including cost estimate of the Congressional Budget Office]
      Zn'                                                                                                                        The Committee on Merchant Marine and Fisheries to whom was
      Ul                                                                                                                      referred the bill (H.R. 4189) to authorize appropriations to carry out
                                                                                                                              the Marine Mammal Protection Act of 1972 for fiscal years 1989
                                                                                                                              through 1993, having considered the same, report favorably thereon
                                                                                                                              with an amendment and recommend that the bill as amended do pass.
                                                                                                                                 The amendment is as follows:
                                                                                                                                 Strike all after the enacting clause and insert the following:

                                                                                                                              SECTION 1. SHORT TInE
                                                                                                                                This Act may be cited as the Marine Mamma) Protection Act Amendments of
                                                                                                                              1988.
                                                                                                                                SEC. 2. (a) The Marine Mammal Protection Act (16 U.S.C. 1361 et seq.) is
                                                                                                                              amended-
                                                                                                                                   (1) by redesignating section 114 as section 116; and
                                                                                                                                   (2) by inserting immediately after section 113 the following new section:

                                                                                                                                              "INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

                                                                                                                                SEC. 114.(a)(1) During the period beginning on the date of enactment of this
                                                                                                                              section and ending October 1, 1993, except as provided in paragraph (2), the provi-
                                                                                                                              sions of this section, rather than sections 101, 103, and 104, shall govem the inci-
                                                                                                                              dental taking of marine mammals in the course of commercial fishing operations by
                                                                                                                              persons using vessels of the United States and 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 kill or serious injury of marine
                                                                                                                              mammals permitted in the course of commercial fishing operations be reduced to
                                                                                                                              insignificant levels approaching a zero mortality and serious injury rate.








                                          12                                                                                      13














































                                                                                                                      PU"OSE OF THE LEoISLATION

                                                                                                    The legislation has several major purposes, the first of which is
                                                                                                 to provide a five year interim exemption for commercial fisheries
                                                                                                 from the Marine Mammal Protection Act's [MMPAI general taking
                                                                                                 prohibitions. Through the creation of a new section in the Act,
                                                                                                 the bill establishes new requirements and procedures for fisher-
                                                                                                 men who may incidentally take marine mammals in the course of
                                                                                                 commercial fishing. Through these new procedures, it is anticipated



                                        liimiv.  low      WW                                      N      -          1                           1    -



      mwmmw@mw                                                                                                                                                                                  _1d


                                                 14                                                                                                  15

            that sufficient information will be obtained to improve the overall man-                               The 1972 statute also directed the Secretary of Treasury to ban the
            agement and protection of marine mammal populations.                                                importation of commercial fish or fish products that have been caught
               Another purpose of the legislation is to require the Secretary of                                with commercial fishing technology which results in the incidental
            Commerce to make determinations about the status          of certain marine                         kill or incidental serious injury of marine mammals in excess of
            mammal populations to determine whether they are depleted. The bill                                 United States standards. The Act required the Secretary of Commerce
            requires the development of conservation plans for the purpose of                                   to obtain reasonable proof from foreign governments in order to make
            providing guidelines for restoring and conserving certain population                                a finding that foreign commercial fishing techniques were not result-
            stocks of marine mammals.                                                                           ing in kills or injuries in excess of U.S. standards.
               The legislation is also intended to reduce the number of porpoise                                   Historically, the tuna/porpoise conflicts have given rise to some of
            killed or seriously injured in the course of yellowfin tuna fishing in                              the most controversial issues relating to the MMPA. For 30 years,
            the eastern tropical Pacific Ocean. By imposing additional require-                                 purse scining has been an effective method of catching yellowfin tuna
            ments on both domestic and foreign tuna fishermen, the Committee                                    in the eastern tropical Pacific Ocean [ETP). In the ETP, unlike other
            expects that the overall mortality of dolphins will decrease, thus fur-                             areas, yellowfin tuna swim beneath schools of porpoise or dolphins.
            thering the goals of the Act.                                                                          In order to catch these valuable tuna, fishermen encircle schools of
               Finally, the bill modifies the requirements which must be met by a                               porpoise with a seine net and, in the process, many porpoise become
            permit applicant for the Secretary to issue permits for scientific re-                              seriously injured or killed. The most current data shows that in 1987
            search and public display; authorizes appropriations for an additional                              60 percent of the tuna caught and more than 80 percent of the por-
            five years; requires a study of the effects of seal control devices on                              poise killed in the ETP were taken by foreign purse seiners. In terms
            porpoise; and requires a study on the die-off of east coast Atlantic                                of numbers, the U.S. tuna fleet killed 13,992 porpoise in 1987 while
            bottlenosed dolphins.                                                                               the foreign fleets killed over 103,000 porpoise.
                                                                                                                   In addition to the United States, approximately 18 other nations
                            BACKGROUND AND NEED FOR LEGISLATION                                                 have purse seined in the ETP for yellowfin tuna. In order for these
                                                                                                                countries to import tuna into the United States, the Secretary of Com-
               The MMPA was enacted in 1972 for the purpose of ensuring that                                    merce, in accordance with section 101 of the MMPA, is required to
            marine mammals are maintained at healthy population levels. In pass-                                make a finding that the fishermen from these countries are using
            ing the Act, Congress responded to the growing concern about the                                    techniques and equipment that prevents mortalities of marine mam-
            decline of certain species and recognized the important role that ma-                               mals in excess of U.S. standards. The Congo, El Salvador, Mexico,
            rine mammals play in the ecosystem as well as their economic, aes-                                  Peru, Senegal, and the U.S.S.R. have been prohibited from exporting
            thetic and recreational value.                                                                      yellowfin tuna to the United States during some period of time since
               Under the MMPA, the Department of Commerce is charged with                                       the MMPA was enacted because they did not meet U.S. standards.
            responsibility for whales, dolphins (porpoise), sea lions and seals.                                Other countries such as Canada, New Zealand, Bermuda, and the Re-
            The Department of the Interior has responsibility for polar bears, wal-                             public of Korea have stopped fishing in the ETP altogether. Cur-
            ruses, sea otters, manatees and dugongs. The Act establishes a mora-                                rently, the requisite findings under section 101 arc in effect for the
            torium on the taking of marine mammals unless the population of a                                   Cayman Islands, Costa Rica, Eduador [sic], Mexico, Panama, Spain,
            mammal is determined to be at its optimum sustainable level. State                                  Vanuatu, and Venezuela. Therefore, these are the only countries fish-
            management of resident marine mammal populations is preempted un-                                   ing for yellowfin tuna in the ETP which are allowed to export their
            til such time as a state prepares a marine mammal management pro-                                   catch to the United States.
            gram consistent with the Act. Criminal and civil penalties are                                         In the 97th Congress, the MMPA was reauthorized and, in the
            prescribed for violations of the Act and the importation of marine                                  process, the Subcommittee on Fisheries and Wildlife Conservation and
            mammals and their products is subject to regulation. The Act created                                the Environment closely examined the tuna/porpoise issue. The Com-
            a three-member Marine Mammal Commission which is charged with                                       mittee report (H. Rept. 97-228) discussed the success of the Act in
            monitoring the implementation of the Act, recommending policies to                                  reducing the mortality of porpoise caused by domestic fishermen from
            the two Secretaries and undertaking such research as is deemed ap-                                  368,000 in 1972 to 18,573 in 1980. It was noted that the dramatic
            propriate.                                                                                          reduction was accomplished through improvements in gear design and
               In order to minimize the impact of commercial fishing on populations                             fishing techniques. The report also discussed the issue of whether the
            of marine mammals, the Act directed the Secretary of Commerce to es-                                goal fo [sic] the Act was being fulfilled because the incidental kill of
            tablish a permit system and issue regulations which would ensure that                               porpoise had not been reduced to insignificant levels approaching
            the techniques and equipment used by fishermen would produce the least                              zero. The tuna industry contended that by using the best technologi-
            practicable hazard to marine mammals. As stated in the original Act                                 cally feasible equipment and methods to reduce incidental porpoise
            (section 101), it shall be the conservation goal that the incidental kill or                        mortality, the industry was meeting the mandate of the Act.
            incidental serious injury of marine mammals permitted in the course of
            commercial fishing operations be reduced to insignificant levels ap-
            proaching a zero mortality and serious injury rate.








                                              16                                                                                              17

              In 1981, the Congress approved amendments which stated that the                                All commercial fishermen, including those purse seining for yel-
           goal of the Act would be satisfied in the case of purse seine fishing                           lowfin tuna, are prohibited from incidentally taking marine mammals
           for yellowfin tuna by the application of the best marine mammal                                 without a Federal permit authorizing such take. the [sic] National Ma-
           safety techniques and equipment that are economically and technologi-                           rine Fisheries Service [NMFS] on behalf of the Secretary of Com-
           cally practicable. The Committee report stated that the existing goal                           merce is authorized by the Act to allow the take of marine mammals
           of the Act could properly be used to stimulate new technology for                               by the fishing industry through two mechanisms- the issuance of
           reducing the incidental taking of marine mammals. To ensure that ef-                            .general permits" for the take of relatively large numbers of marine
           forts to discover new technology would be undertaken, Congress                                  mammals by U.S. and foreign fishermen; and the issuance of "small
           adopted a provision which directed the Secretary to undertake a pro-                            take exemptions" for the take of small numbers of marine mammals
           gram of, and provode [sic] financial assistance for, research into new                          by U.S. fishermen only. "Taking" of marine mammals, as defined in
           methods of locating and catching yellowfin tuna without the inciden-                            the Act, is not limited to capturing or killing them, but includes har-
           tal taking of marine mammals.                                                                   assment of the mammals as well.
              The 98th Congress approved legislation to reauthorize the MMPA                                 The small take exemption provisions for commercial fishermen
           and made further amendments to those sections of the Act concerning                             (section 101(a)(4)) were added in the 1981 amendments. The purpose
           yellowfin tuna and porpoise mortalities. One of the most significant                            of these measures was to allow U.S. fishermen who may in the
           changes was to strengthen section 102(a), which ensures that nations                            course of fishing incidentally take small numbers of marine mammals
           exporting to the U.S. yellowfin tuna harvested with purse seines in                             to receive a permit to do so without NMFS following the lengthy
           the ETP have an adequate marine mammal protection program. The                                  procedures required for general permits. This Committee intended that
           1984 amendments directed the Secretary to require documentary evi-                              these new provisions be available to fishermen whose taking of ma-
           dence from foreign governments that they have adopted regulatory                                rine mammals was infrequent, unavoidable and accidental. The taking
           programs governing the incidental taking of marine mammals that are                             authorized by the small take provisions was narrowly defined to
           comparable to those of the U.S. Furthermore, the amendments re-                                 maintain the goals of the Act of reducing to insignificant levels ap-
           quired this documentation to include proof that the average rate of                             proaching zero, mortalities caused by commercial fishermen. The tak-
           incidental taking of marine mammals was comparable to that of the                               ing was required to be small in numbers and NMFS was required to
    Z;;    United States.                                                                                  make a finding that the taking would have a negligible impact upon
    00        The 1984 amendments also statutorily extended the general permit                             the affected species.
           issued to the American Tunaboat Association (ATA) for an indefinite                               Unlike the small take exemptions, general permits require NMFS to
           period, subject to a number of specific conditions. These conditions                            estimate the population of the marine mammals for which the permits
           included changes in fishing gear, techniques and practices if required.                         are issued, and to determine whether those populations are healthy or,
           by the Secretary. Also, in order to protect the coastal spotted and                             in the terms of the Act, at "otpimum [sic] sustainable population"
           eastern spinner dolphins, quotas of 250 and 2,750 respectively, were                            [OSPI levels. NMFS has made OSP determinations for several spe-
           incorporated into the law. Unlike past practice, the amendments re-                             cies, but it has not made them for many of the mammals that are
           quired that mortalities of these species be within, not in addition to,                         likely to be taken during fishing operations. For example, OSP deter-
           the overall annual quota established by the Secretary and incorporated                          minations have not been made for harbor porpoises or harbor seals,
           into the permit. If either of these subquotas is exceeded, even if the                          both of which are incidentally taken in the gillnet fisheries in Alaska
           overall quota had not been reached, fishing in the ETP would be ter-                            and California.
           minated.                                                                                          Populations of marine mammals that are below OSP are, by defini-
              During reauthorization hearings held in 1984, it became apparent                             tion, "depleted." There is no mechanism in the Act to allow the inci-
           that the National Marine Fisheries Service did not have the necessary                           dental take of depleted species by the fishing industry either through
           data on which to calculate the impact of incidental mortality on the                            a general permit or a small take exemption. NMFS has designated
           populations of different stocks of porpoise. In order to obtain this                            northern fur seals as depleted and is considering such a designation
           information, the Act was amended to direct the Secretary of Com-                                for Steller sea lions. These two species are present in many of the
           merce to carry out a scientific research program to monitor, for at                             fishing grounds in the Pacific northwest and Alaska and it is likely
           least 5 years, population abundance and trends for ETP stocks of por-                           that they are taken by a number of northwest Pacific fisheries. Should
           poise. The purpose of the five year program was to provide the basis                            both these species be designated as depleted, fishermen in these fish-
           for determining if porpoise are being adversely affected by incidental                          eries would be unable to fish. Also, NMFS recently announced it is
           takes.                                                                                          preparing an Advanced Notice of Proposed Rulemaking on depletion
              In recognition of the information expected from the 5-year study,                            of the coastal migratory stock of bottlenose dolphins in the mid-At-
           the Act was amended to direct the Secretary ot[sic] make appropriate                            lantic region. Such a designation would have serious impacts on the
           modifications to the incidental take quotas and other requirements of                           ability of several east coast fisheries to obtain permits or exemptions.
           the ATA general permit, if it is determined that incidental take levels                           In addition to the general permit issued to the tuna industry,
           are having a significant adverse effect on a marine mammal popula-                              general permits have been issued to the North Pacific Fishing
           tion.                                                                                           Vessel Owners Association for the fisheries in Alaska waters and



                                                                                                           IN     I IN                             I        I      -  I







                                                 18                                                                                                  19
            1@ the North Pacific Fishing Vessel Operators for the fisheries in Califor-                         pears to strictly limit the Secretary's ability to issue a permit or exemp-
            @ia, Washington, and Oregon waters. Small take exemptions have been                                 tion. The implication of this interpretation of the Act is to render "de
            issued to two groups on the east coast: the groundfish gillnet fleet in the                         facto depleted" status for all these marine mammals for which population
            northeast and the menhaden purse seine fleet located in the Atlantic and                            determinations have not been made.
            Gulf of Mexico. All current permits and exemptions allowing domestic
            commercial fisheries (other than the tuna industry permit) to take marine                                                       CommirrEE AcriON
            mammals expire at the end of 1988.
               Within the last year, a lawsuit brought under the MMPA has com-                                     H.R. 4189, a simple five-year reauthorization of the Marine Mam-
            plicated the relationship of the MMPA to commercial fishing opera-                                  mal Protection Act at existing levels, was introduced on March 16,
            tions. In July 1986, the Federation of Japan Salmon Fisheries                                       1988, by Mr. Studds, for himself, and Mr. Jones of North Carolina,
            Cooperative Association applied for a new general permit to inciden-                                Mr. Davis, and Mr. Young of Alaska. The bill was referred to the
            tally take 5,500 Dall's porpoise, 450 northern fur seals and 25 sea                                 Merchant Marine and Fisheries Committee and further referred to the
            lions in each of the next 5 years in the course of their Bering Sea                                 Subcommittee on Fisheries and Wildlife Conservation and the Envi-
            salmon gillnet fishery. After a year of administrative proceedings,                                 ronment.
            NMFS issued a permit to allow the Federation to take 6,039 Dall's                                      On May 10, 1988, the Subcommittee held its first hearing on the
            porpoise over a 3-year period. NMFS denied the request to take                                      bill during which testimony was received from representatives of the
            northern fur seals and sea lions because insufficient information ex-                               fishing industry, the environmental community, the National Oceanic
            isted on the record to ascertain whether the populations were at OSP.                               and Atmospheric Administration and the Marine Mammal Commis-
               Following the issuance of the Federation's general permit, lawsuits                              sion. Issues discussed during the hearing included permits and exemp-
            were filed by the Kokechik Fishermen's Association, representing                                    tions for commercial fishermen, the need to reduce dolphin mortality,
            Alaskan subsistence fishermen, and several environmental groups to                                  scientific research and public display permits.
            enjoin the permit. In 1987 the U.S. District Court for the District of                                 The primary purpose of the hearing was to examine the joint
            C.olumbia enjoined the issuance of the permit on the grounds that it                                agreement reached between the environmental and fishing communi-
            violated the MMPA. The court reasoned that NMFS violated the Act                                    ties. Witnesses explained that the failure of the Act to allow any take
            because it had failed to establish limits in the permit on the other                                of depleted marine mammals, coupled with the Kokechik decision and
            marine mammals that would likely be taken in the course of the fish-                                the fact that all general permits and small take exemptions expire at
     ko
            ery and since it was clear that these mammals would be taken, the                                   the end of 1988, led to a series of meetings between industry repre-
            Court also found that NMFS failed to make the formal findings re-                                   sentatives and conservationists beginning in late 1987. The common
            quired by the MMPA that the conduct of the fishery would have neg-                                  goal of these meetings was to arrive at some agreement on amend-
            ligible effects on these other species. The decision was upheld on                                  ments to the MMPA which continued the protections accorded marine
            appeal.                                                                                             mammals under the Act and assured that commercial fishing opera-
               During the yearlong controversy over the Federation's permit,                                    tions would continue to operate while the necessary information to
            NMFS' marine mammal permit process has been in a state of paraly-                                   fulfill the purposes of the Act was compiled.
            sis. Several important issues have arisen as a result of the Kokechik                                  The joint proposal, presented on behalf of 25 environmental and
            decision with implications far beyond this one specific permit. At the                              17 commercial fishing organizations, contained the following ele-
            heart of the issue is the Secretary's ability to issue a MMPA permit                                ments:
            in the absence of a finding, based on adequate scientific information,                                     A three year limited exemption to the moratorium to allow inci-
            that the mammal involved is at the OSP level. If insufficient data                                      dental take of small numbers of marine mammals for which OSP
            exists to make a determination on the population level of any marine                                    cannot be determined or which are depleted;
            mammal likely to be taken during a fishing operation, the decision                                         An industry wide education program;
            suggests that a permit could not be issued. A recent decision by                                           A revised and invigorated reporting system;
            NOAA to refuse to grant a small take exemption to the east coast                                           A verification system including a living marine resource observer
            menhaden purse seine fishery, because it may take bottlenose dol-                                       corps;
            phins, illustrates just some of the shortcomings of the current Act.                                       A new data analysis system;
               In summary, the provisions of the Act concerning commercial                                             A research program focused on specific problems;
            fishing operations and the take of marine mammals are inade-                                               Recovery plans, habitat protection zones and mitigation mecha-
            quate. Presently the Act does not provide for any taking of ma-                                         nisms; and
            rine mammals declared depleted, even if this taking is unlikely                                            Definite time lines and procedures to assure that the population
            or is very small with negligible impacts on the species. In cases                                       status determination process is open, complete and efficient.
            where there is inadequate information to make a population detemi-                                     On September 8, 1988, the Subcommittee held its second hearing
            nation [sic] or a negligible impact finding, the Kokechik decision ap-                              on H.R. 4189 for the purpose of reviewing proposed amendments to
                                                                                                                the Act concerning reducing the mortality of porpoise in the course








                                             20                                                                                           21

           of yellowfin tuna fishing in the ETP. Testimony was received from repre-                                          SECTION-BY-SEcTION ANALYSIS
           sentatives of NOAA, the Tuna/Dolphin Environmental Coalition, the
           United States Tuna Foundation,  the Inter-American Tropical Tuna Com-                        Section I
           mission and the Marine Mammal Commission.                                                      This section establishes the short title of the Act as the Marine
             Issues discussed during the hearing included the comparability                             Mammal Protection Act Amendments of 1988.
           standards required by the 1984 amendments, observer coverage, sun-
           down sets by purse seiners, new or alternative fishing techniques, the                       Section 2
           status of porpoise populations, skipper performance standards and the                          This section creates a new section 114 of the MMPA which pro-
           phaseout of the U.S. quota of porpoise. Most witnesses were in agree-                        vides for an interim exemption for commercial fisheries other than
           ment that further steps could and should be taken to reduce mortality                        commercial yellowfin tuna fishing. This new section supersedes, until
           by both foreign and domestic tuna fishermen. However, on the issue                           October 1, 1993, other sections of the Act governing the incidental
           of legislating a reduction to zero of the U.S. quota of porpoise, every                      taking of marine mammals by commercial fishermen to whom it ap-
           witness except the representative from the environmental coalition tes-                      plies.
           tified that this action could very well lead to an overall increase in                         Subsection (a) specifies that the new section 114 will take effect
           porpoise mortality due to foreign fishermen abandoning their efforts                         immediately on the date of enactment of this Act and will remain in
           to develop additional programs to protect porpoise comparable to U.S.                        effect until October 1, 1993. During that time period, this section,
           programs.                                                                                    rather than sections 101, 103, and 104 of the MMPA, shall govern
             The Subcommittee conducted a markup of H.R. 4189 on September                              the incidental taking of marine mammals by commercial fishermen
           14, 1988. Mr. Studds and Mr. Young introduced an amendment in the                            other than tuna fishermen. The subsection also provides that this in-
           nature of a substitute. After adopting a series of technical amend-                          terim regime will be available only to persons using vessels of the
           ments, the Subcommittee adopted an amendment offered by Mr.                                  United States and vessels which have valid fishing permits issued un-
           Miller which clarified the duties of natural resource observers to be                        der section 204(b) of the Magnuson Fishery Conservation and Man-
           placed onboard U.S. fishing vessels.                                                         agement Act. By limiting the exception in this way, the Committee
             Mr. Studds then offered an amendment calling for further reduc-                            intends that the Japanese salmon gillnet fleet which has been pre-
           tions in the mortality of porpoise. Mrs. Saiki offered a perfecting                          eluded from operation in the U.S. Exclusive Economic Zone by a de-
           amendment which would have statutorily reduced to zero the quota of                          cision of the U.S. Court of Appeals in Kokechik Fishermen's
           porpoise. The Saiki amendment was defeated on a voice vote after                             Association v. Secretary of Commerce will not have the provisions
           which the Studds amendment was approved by a division vote of 9 to                           of section 114 available to it. The Committee does not intend section
           7.                                                                                           114 of [sic] disturb the holding in that case as it applies to the Japa-
             Mr. Anderson offered an amendment to eliminate the seal bomb                               nese salmon gillnet fleet.
           prohibition in the Studds-Young substitute. The amendment was                                  The Committee also notes that representatives of commercial fish-
           adopted by a division vote of 10 to 4.                                                       ing organizations have agreed to undertake and fund a special re-
             Mrs. Saiki offered another amendment directing the Secretary to                            search program on germ technology and fishing practices designed to
           provide the National Academy of Science with all current information                         minimize the incidental taking of marine mammals, and have commit-
           on porpoise populations. The amendment was adopted by voice vote.                            ted to an educational effort to inform fishermen of their rights and
             Mr. Carper offered an amendment adopted by voice vote that di-                             responsibilities under the MMPA. The Committee commends the fish-
           rects the Secretary to do a study on the bottlenose dolphin die off on                       ing industry for this effort and hopes that as a result futurer [sic]
           the east coast. The bill as amended was then reported to the Commit-                         amendments to the MMPA will be developed with a broad consensus
           tee by a unanimous voice vote.                                                               among commercial fishermen and the environmental community.
             On September 15, the Committee held a markup session during                                  Finally, subsection (a) retains the general goal of the MMPA that
           which H.R. 4189, as amended by Subcommittee, was considered. Mr.                             the incidental kill or serious injury of marine mammals incidentally
           Studds offered an amendment to prohibit the use of seal bombs and                            taken should be reduced to insignificant levels approaching a zero
           other explosives by yellowfin tuna fishermen. The amendment was de-                          mortality and serious injury rate.
           feated on a rollcall vote of 23 to 18. Mr. Brennan then offered an                             Subsection (b) generally describes the procedure to be used for
           amendment to change the name of observers onboard U.S. vessels to                            identifying categories of fisheries and registering vessels and vessel
           marine manimal observers. The amendment was adopted by voice                                 owners in order to "engage lawfully" in a fishery. The term "engage
           vote. The bill, as amended, was favorably reported to the House by a                         lawfully" refers solely to compliance with the MMPA and failure to
           unanimous voice vote.                                                                        comply subjects fishermen only to the penalties of the MMPA.
                                                                                                          The Secretary is required to compile three lists of fisheries
                                                                                                        based on the frequency of incidental taking of marine mammals by
                                                                                                        vessels in those fisheries. It is the Committee's intent that these
                                                                                                        lists be compiled with the maximum amount of public participation








                                                 22                                                                                                  23

            given the time periods involved. Further, the Committee recognizes that                             fees which cover the cost of research, or in any other way use this
            for the first year that this section is in effect, the Secretary may not have                       authority to fund programs for which authorizations are made available.
            time to conduct adequate research to determine which fisheries should be                               Subsection (c) imposes a reporting requirement on fishermen hold-
            included in which list. Therefore, the Committee intends that the list in                           ing an exemption issued under subsection (b) and generally describes
            paragraph (1)(A)(i) at a minimum include the following fisheries: Bering                            the information which must be submitted to the Secretary. The Com-
            Sea and Gulf of Alaska groundfish trawl fisheries, Prince William                                   mittee intends the process to be simple incorporating, for example
            Sound/Copper River salmon set and drift gillnet fisheries, Unimak Pass                              existing logbook recording mechanism. Such reports should include
            and False Pass salmon drift gillnet fisheries, Columbia River salmon drift                          any information on marine mammals released unharmed from fishing
            gillnet fisheries, and Washington/Oregon thresher shark drift gillnet fish-                         gear, marine mammal sightings of possible, and any physical contact
            ery; and that the list in paragraph (1)(A)(iii) include the shrimp trawl                            and intentional harassment such as intentional pursuit or use of
            fishery in the southeastern United States and the Gulf of Mexico and the                            acoustic deterrence devices. The Committee expects the Secretary to
            mid and south Atlantic menhaden purse seine fishery. Other fisheries                                make use of this information and not ignore it, as has occurred in the
            should be included in the appropriate categories based on available data                            past.
            and with opportunity for public comment.                                                               Subsection (d) requires the Secretary to establish a program to en-
               In addition, this subsection makes clear that fishermen have a 240                               hance the quality of and to verify information received from reports
            day grace period available to them in order to allow time for the                                   submitted by vessel owners. The key to this program is the estab-
            Secretary to establish the caregories [sic) mentioned above and put in                              lishment of an education program so that vessel owners will submit
            place the registration and reporting system. Along with the grace pe-                               reports containing useful information. The Committee expects the Sec-
            riod, the Committee provided that only a knowing violation of the                                   retary to work closely with fishermen's organizations and utilize the
            requirements in subparagraph (3)(C) that takes place before January                                 services of the Marine Advisory Program to accomplish this goal.
            1, 1990, will subject a fisherman to a penalty. The Committee would                                    Subsection (e) establishes and authorizes funds for an observer
            not consider a knowing violation to include failure on the part of a                                program to conduct onboard data-gathering activities on vessels en-
            fisherman to obtain an exemption because he was involved in a fish-                                 gaged in those fisheries with a frequent incidental taking of marine
            ery the start of which occurred before the Secretary could make                                     mammals. Obsevers (sic] are to be deployed so that a minimum of 20
            available appropriate exemption forms and decals or because of the                                  percent and a maximum of 25 percent of the effort in given fishery is
     T      remote location of the fishery, the fisherman had no way of knowing                                 observed during the course of a fishing season. The percentage
            of the requirements imposed or [sic] him or did not have the ability                                should be determined based upon the average number of vessels in
            to obtain the appropriate forms.                                                                    the fishery during the season. This could result in the number of ob-
               The Committee notes that subparagraph (3)(E) exempts vessel own-                                 servers deployed in a fishery changing during the course of a fishing
            ers whose vessels are engaged in fisheries identified in paragraph                                  season. The Committee notes that representatives of the commercial
            (1)(A)(iii) from penalties for incidental taking if such taking is re-                              fishing industry from the Pacific Northwest and Alaska and repre-
            ported. The Committee intends that vessel owners in this category                                   sentatives of environmental organizations, in testimony before the
            make all reasonable efforts to release animals unharmed.                                            House and the Senate, jointly agreed that that (sic] trawl fisheries of
               Further, notwithstanding the grace period, the incidental taking of                              the Bering Sea and the Gulf of Alaska that are listed under subsec-
            California sea otters and the intentional lethal taking of Steller sea                              tion (b)(1)(A)(i) should be covered by at least 24 observers during
            lions, cetaceans, or any marine mammal from a population stock des-                                 the first two years that the observer program is in effect.
            ignated as depleted is strictly prohibited. In this regard, the Commit-                                In distributing observers among fisheries and among vessels within
            tee intends that the provisions of this section do not supersede, or                                a fishery, the Secretary is to be guided by specific standards listed in
            otherwise affect, any provisions of the Endangered Species Act or                                   paragraph (2) to ensure fair and equitable treatment. Further, when
            section I of Public Law 99-625 which established a California sea                                   assigning observers to specific vessels, the Committee intends that the
            otter translocation and zonal management program designed to bring                                  Secretary work with Regional Fishery Management Councils or States,
            about their recovery. In addition, the exemption to allow intentional                               as appropriate, and with the fishermen's organizations to ensure that
            lethal taking must be exercised only in the most limited circum-                                    the program runs smoothly and with a minimum cost. Thus, for exam-
            stances when, after all reasonable nonlethal methods of deterrence                                  ple, the Secretary should consult with fishermen's organizations to
            have been exhausted, killing an animal is necessary to protect catch,                               see what vessels are available and suitable for carrying observers. At
            gear, or human life.                                                                                the same time, the Secretary must ensure that, by accepting the sug-
               Finally, paragraph (5)(C) of subsection (b) authorizes the Secre-                                gestions of organizations regarding vessel suitability, the data ob-
            tary to charge a fee to cover the administrative costs of granting                                  tained will be reliable and not biased by differences in vessel
            an exemption. It is the clear intent of the Committee that the amount                               operation or fishing location.
            of any fee shall not exceed reasonable administrative costs; in other
            words, the Secretary cannot use this provision to offset the cost of
            an observer program or a data management system, charge








                                              24                                                                                              25

              Although the primary purpose of the observer program is to collect                           voluntarily provides minimal assistance in the operation of a vessel, such
           data on incidental take of marine mammals, observers are not neces-                             as by handling a line or cooking a meal, will not be considered to be
           sarily limited to this activity. In certain instances, a Regional Fishery                       engaged unless he is paid or employed to do so. This paragraph also
           Management Council or a State may wish to take advantage of the                                 applies the limitation on liability to owners of tuna vessels required to
           presence of an observer to obtain other scientific or biological infor-                         carry observers under section 104 of the MMPA.
           mation that will assist them in performing their resource conservation                             Finally, the Committee does not intend that observers deployed un-
           and management duties. In such instances, they can request that the                             der this subsection necessarily meet other requirements for observer
           Secretary have observers collect such other data. It is the Commit-                             coverage that may be mandated under other laws or regulations. Thus,
           tee's intent that the Secretary honor such requests. In the case of a                           for example, the requirement for 100 percent observer coverage on
           Regional Fishery Management Council such a request should be made                               foreign fishing vessels under subsection 201(i) of the Magnuson Fish-
           by the Council as a whole in accordance with Council procedures in                              ery Conservation and Management Act are not altered by the require-
           the exercise of its authority under section 302(b)(6) of the Magnuson                           ments of this subsection, nor are any similar requirements imposed by
           Fishery Conservation and Management Act and not by an individual                                State law or applicable fishery management plans. At the same time,
           Council or staff member.                                                                        if the Secretary can effectively utilize observers deployed under other
              The Committee recognizes that situations may occur where deploy-                             authorities to meet the provisions of this subsection, he should do so.
           ment of an observer is not possible or practical. Thus, the require-                               Subsection (f) requires the Secretary to establish an alternative ob-
           ment for observer coverage is conditioned in paragraph (5). For                                 server program for those fisheries where observer coverage is re-
           example, the Secretary may be able to achieve the need to obtain                                quired but where deployment of observers on board fishing vessels in
           statistically reliable information in a fishery that involves the delivery                      sufficient numbers to meet the 20 percent minimum standard cannot
           of fish directly to a floating processor by stationing an observer on                           be accomplished. For example, salmon gillnet fishermen in Alaska
           board the processor rather than on one or several catcher vessels.                              must by State law use vessels which are too small to carry observers
           This is particularly true in the case of over-thc-side joint ventures                           safely. Thus, observation could probably best be accomplished by us-
           where the foreign processing vessel already has an observer on board                            ing a patrol vessel stationed in the area from which observers can
           under the provisions of other law. However, an observer on board a                              observe fishing operations. The alternative program should also be
    Cn     processor must be able to accurately verify incidental taking of ma-                            used for fisheries where observer coverage is not required but where
           rine mammals or obtain other biological data if requested to do so by                           the use of the alternative program will provide the Secretary with
           a Council or a State. If needed data cannot be obtained, then ob-                               valuable marine mammal data. This program can be used to collect
           servers must be deployed on the harvesting vessel.                                              other biological data if an appropriate request is made by a Council
              Situations may also occur where a vessel is too small to carry an                            or State.
           observer safely, where an observer will displace a crewmember, or                                  Subsection (g) provides the Secretary with both emergency and
           where fishing gear cannot be operated safely because of the presence                            general authority to impose conditions and restrictions on exemptions
           of an observer. Such situations also absolve the Secretary of observer                          issued to fishermen in order to prevent significant adverse impacts on
           deployment requirements. However, this does not necessarily preclude                            marine mammal population stock.
           placement of an observer on board a vessel with insufficient space to                              The Committee intends that the Secretary's emergency authority be
           quarter the observer if the vessel does not remain at sea overnight.                            used only when no alternative is available to prevent an immediate
              The Committee also recognizes that the Secretary may not be able                             and significant adverse impact on a marine mammal population stock.
           to employ, or contract for sufficient personnel to fully staff the ob-                          Further, the Secretary must consult fully with appropriate Regional
           server program, or that funds may not be appropriated to cover the                              Fishery Management Councils and State fishery managers before tak-
           full cost of an observer program. The Committee considers these                                 ing any emergency action. In addition, such action shall not, unless
           events to be beyond the control of the Secretary. In such circum-                               absolutely necessary, interfere in any way with existing fishery man-
           stances, paragraph (3) lists priorities that should be met in allocating                        agement plans or State conservation and management programs. Any
           the limited resources of the Secretary.                                                         action taken should be as brief in duration and nonintrusive in nature
              Paragraph (6) stipulates that vessel owners shall not be held li-                            as possible and shall take into account the economics of the fisheries
           able for injuries or fatalities suffered by observers while deployed                            that may be affected and the availability of existing technology to
           on board a vessel with two exceptions: an observer may bring a                                  resolve emergency problems. At the same time, the Secretary may
           civil action against an owner for the owner's willful misconduct;                               also promulgate emergency regulations which restrict the number of
           and the exemption from liability does not apply if the observer is                              marine mammals that may be taken, the season or other period of
           formally engaged by the owner to perform duties on board the ves-                               time when marine mammals may be taken, the manner and location in
           sel of the sort that would normally be performed by a crewmember.                               which marine mammals may be taken, and the use of fishing tech-
           The term "engaged" is used in the sense that a formal contract                                  niques which are found to cause undue fatalities to any species of
           or an exchange of money is involved. Thus, an observer who                                      marine mammals.







                                               26                                                                                               27

              The Committe   e recognizes that a situation may arise where a large                          bound by the other restrictions on public release of data in this subsec-
            number of Steller sea lions or northern fur seals may be lethally taken                         tion. Further, the Committee understands that requests for data have been
            by a fishery occurring early in the year, thus potentially preventing                           submitted to the Secretary under other authorities and those requests have
            other fisheries from operating. If such a situation occurs, the Commit-                         been denied because the Secretary did not wish to provide data in the
            tee intends that the Secretary work with the North Pacific Fishery                              form requested, even though release of the data would not have violated
            Management Council, the State of Alaska, and affected fishermen to                              confidentiality provisions. The Committee intends that data collected un-
            develop a system of allocating lethal takes among fisheries. Such a                             der this section be made available to the public as long as the identity or
            system shall not be used to accomplish other fishery management or                              business of any person is not disclosed.
            social or economic objectives, nor shall it relieve the Secretary of the                           Subsection (k) requires the Secretary to issue appropriate regula-
            legal obligation to protect marine mammals as required by this Act.                             tions to carry out the purposes of this section. As is generally pro-
              This subsection also provides the Secretary with general authority                            vided for in the MMPA, the Committee expects that the Secretary
            to impose conditions and restrictions on exemptions. This authority                             will consult with the Marine Mammal Commission regarding such
            shall be used where appropriate to meet the requirements of this Act.                           regulations and the Secretary of the Interior where appropriate.
            Any conditions or restrictions imposed which affect fishing operations                             Subsection (1) sets up a mechanism whereby the Congress, based
            shall avoid affecting State fishery management authority or fishery                             on scientific information, public participation, and recommendations
            management plans and shall only be imposed after full consultation                              from the Secretary, can, if it chooses, establish a permanent system
            with Councils and States and notice and opportunity for public com-                             to deal with the incidental taking of marine mammals in the course of
            ment. The range of conditions and restrictions which may be imposed                             commercial fishing.
            include those noted above in the discussion of the Secretary's emer-                               By February 1, 1990, the Chairman of the Marine Mammal Com-
            gency authority.                                                                                mission is required to transmit to the Secretary and make available to
              By enacting this subsection, the Committee does not intend to alter                           the public recommended guidelines to govern the incidental taking of
            the Secretary's clear statutory authority to manage and protect marine                          marine mammals by commercial fishermen after October 1, 1993. Be-
            mammals. The Committee recognizes that authority for fisheries man-                             cause the Marine Mammal Commission is a scientific body, the Com-
            agement lies with the States and, to the extent established by law,                             mittee intends that these guidelines be scientific in nature; that is,
            with the Regional Fishery Management Councils. The Committee in-                                they should not deal with the economics of fisheries or allocation of
            tends the Secretary to work cooperatively with such management enti-                            fishing privileges. Further, they must be based on sound principles of
            ties on matters affecting fisheries but not to ignore his                                       wildlife management and must only be issued after full consultation
            responsibilities under this Act.                                                                with all interested parties, including but not limited to those individu-
              Subsection (h) requires the    Secretary to design and implement an                           als and groups interested in the conservation of marine mammals and
            information management system capable of analyzing and processing                               those involved in all segments of the U.S. commercial fishing indus-
            information on incidental taking of marine mammals. Because infor-                              try.
            mation must be made available to the public in a timely manner, the                                No later than February 1, 1991, the Secretary shall publish in that
            Committee intends that the Secretary develop procedures to ade-                                 Federal Register for public comment a suggested regime that, if
            quately analyze reports received from fishermen and not simply ig-                              authorized by further action of the Congress, should govern the inci-
            nore them.                                                                                      dental taking of marine mammals by commercial fishermen. The Com-
              Subsection (i) provides the Secretary with authority to enter into                            mittee intends that publication be preceded by extensive consultation
            contracts to carry out certain of his responsibilities under this Act                           with all interested parties, including all segments of the U.S. commer-
            and to utilize the services and programs of other entities such as                              cial fishing industry and especially the Secretary of the Interior in
            States, universities, Regional Fishery Management Councils, and other                           regard to those species under the jurisdiction of that Secretary. The.
            Federal agencies. The Committee intends that the Secretary utilize                              Committee intends that the Secretary include in the consideration of
            this authority and not attempt, for example, to create a new licensing                          permissible biological levels of take discussions of the economic and
            system if a State licensing system can be used to register fishing                              sociological impacts of the regime.
            vessel owners and issue exemptions. Further, the Committee recog-                                  Following consideration of public comment and after consultation
            nizes that the Secretary already has a program established to collect                           the Marine Mammal Commission on any scientific aspects of the sug-
            and compile observer data from foreign fishing vessels. If practicable,                         gested regime, but in no event any later than January 1, 1992, the
            the Secretary should utilize this program in carrying out the require-                          Secretary shall submit his recommendations to Congress.
            ments of subsection (e).                                                                           Subsection (m) requires the Secretary to consult with the Secre-
              Subsection (j) imposes restrictions on releasing confidential or                              tary of the Interior prior to taking actions or making determinations
            proprietary business information to the public. If the Secretary en-                            under this section which may affect population stocks of marine
            ters into a contract or other agreement to collect or analyze data                              mammals that are the responsibility of the Secretary of the Inte-
            submitted by observers or obtained from reports, the Committee in-                              rior. The Committee recognizes that the Secretary of the Interior
            tends that the contractor or other entity be considered a Federal                               is responsible for certain species of marine mammals, such as
            employee and thus entitled to receive the data in raw form but be                               Alaskan sea otters, that may be affected by commercial fishing op-








                                                  28                                                                                                     29

           erations and the Committee does not intend to reduce or alter that respon-                              ensure that changes in status designations are efficient, provide for timely
           sibility. At the same time, the Committee recognizes that the Secretary of                              input from interested parties-including the fishing industry and environ-
           Commerce has clear authority over matters relating to marine fisheries                                  mental community-and occur in a timely manner. The Secretary is di-
           and does not intend by this subsection to reduce or alter that responsibil-                             rected to comply with the requirements of paragraph (2) of this
           ity. Given these respective responsibilities, the Committee expects the                                 subsection for all status reviews. The Committee notes that this process is
           Secretary of Commerce to communicate to the maximum extent practica-                                    similar but not identical to the process by which species are determined
           ble with the Secretary of the Interior on matters involving those species                               to be threatened or endangered under the Endangered Species Act of 1973
           under the jurisdiction of that Secretary. Thus in the case of any species                               (16 U.S.C. 1533).
           under the jurisdiction of the Secretary of the Interior, the Committee ex-                                 Paragraph (2) of this subsection directs the Secretary, prior to the
           pects the Secretary of the Interior to notify the Secretary of Commerce of                              issuance of any proposed rule regarding a status determination, to
           any problems that may be occurring regarding commercial fisheries and                                   publish a call for information from concerned parties and academic
           to provide suggestions for resolving those problems. The Committee in-                                  institutions. This is to ensure that the Secretary has access to all the
           tends the Secretary of Commerce to give significant weight and due def-                                 best data available on a species early in the status review process
           erence to the advice and recommendations from the Secretary of the                                      before even an initial determination has been made. The Committee
           Interior, given the expertise of the Secretary of the Interior on species                               intends the Secretary to utilize, to the extent feasible, informal work-
           under that Secretary's jurisdiction. However, the Committee intends that                                ing groups. The Committee is aware that the convening of similar
           the Secretary of Commerce have ultimate administrative authority for tak-                               groups on an informal basis has been useful in the past in making
           ing action involving marine fisheries. The Committee suggests that the                                  status determinations and encourages the use of such groups as early
           Departments enter into a formal memorandum of understanding to further                                  as possible in the review process. The Committee intends that the
           delineate this division of responsibility.                                                              Secretary issue general invitations to enable all interested parties to
               Subsection (n) clarifies that the owner of fixed fishing gear, such                                 the extent practicable, to participate in any such working group and
           as a set gillnet attached to the shore which incidentally takes marine                                  that a record of any working group meeting be made available to the
           mammals, shall be considered a vessel owner for the purposes of this                                    public.
           section and thus will be subject to the same requirements and restric-                                     Paragraph (3) of this subsection outlines the procedures the Secre-
           tions as any other vessel owner.                                                                        tary shall follow upon receipt of a petition to complete the status
               Subsection (o) defines terms used in this section.                                                  review as expeditiously as possible. It further allows the Secretary to
               Finally, the Committee recognizes that due to the extent of com-                                    expedite the issuance of final rule under this subsection, if it is de-
           mercial fishing operations and the number of marine mammal popula-                                      termined that there is substantial information warranting issuance of
           tion stocks off the coast of Alaska, future decisions on how to                                         such a rule and that delay would post a significant risk to the health
           govern the incidental take of marine mammals in the course of com-                                      of the marine mammal species or population stock.
           mercial fishing will be especially important in this area. As a result,                                    Section 3(b) directs the Secretary to develop conservation plans for
           the Committee finds that there is an immediate need to expand con-                                      North Pacific fur seals by December 31, 1989, for Steller sea lions
           sultation and cooperation in the conservation of marine mammals off                                     by December 31, 1990, and for any depleted species or stocks as
           the coast of Alaska. This area is inhabited by large and internation-                                   soon as possible. Each plan shall have the purpose of conserving and
           ally significant populations of marine mammals. Effective consultation                                  restoring the species or stock to its optimum sustainable population,
           and coordination can help to ensure that the populations of marine                                      shall be modeled on recovery plans required under the Endangered
           mammals remain healthy and abundunt [sic]. Where there are concerns                                     Species Act, and shall be expeditiously implemented and regularly up-
           with some species, planning can address those problems.                                                 dated. It is the Committee's intent that conservation plans outline
               The Secretaries of Commerce and Interior should work closely                                        specific, achievable actions to further the purposes of the plan. The
           with the State of Alaska and affected user groups, especially Alaskan                                   Committee itends [sic) that conservation plans not be an assessment
           Natives, to develop effective conservation programs for marine mam-                                     of the current situation, but rather provide a clear strategy, including
           mals. These could include assessments of populations and their fluc-                                    research needs, of the conservation and restoration of the species.
           tuations, essential habitat, threats to species and habitat, and research                                  In the event of an unanticipated crisis regarding a species other
           and management needs.                                                                                   than North Pacific fur seals or Steller sea lions, the Secretary of
           Section 3                                                                                               Commerce is expected to give priority to preparing a conservation
               Section 3(a) adds a     new subsection 115(a) to the MMPA which                                     plan for that species after opportunity for public comment.
           directs the Secretary in     reviewing the status of any population stock                               Section 4
           of marine mammals to follow a prescribed series of steps designed                                          Section 4 adds a number of provisions to the Act for the specific
           to ensure early and adequate public notice, comment and partici-                                        purpose of reducing the morality [sic] of porpoise in the course of
           pation in the review process. The purpose of this subsection is to                                      fishing for yeIlowfin tuna in the ETP.
                                                                                                                      Subsection (a) adds additional requirements that the Secretary
                                                                                                                   must consider when making a finding as to whether a foreign



      MWMI MMMM am MMMMMMM


                                                 30                                                                                                    31

            nation is taking measures comparable to that of the United States in re-                                 Subsection (c) directs the Secretary to include a description of the
            ducing the take of porpoise. The Secretary shall not find that a foreign                              results of these discussions in the annual MMPA report to Congress.
            nation is comparable unless it has met the following standards: it has                                   Subsection (d) amends the conditions under which the extension of
            adopted a regulatory program containing the same prohibitions applicable                              the general permit issued to the ATA is granted. Specifically, the
            to U.S. vessels, within 180 days after the United States has imposed such                             Secretary is directed, by January 1, 1989, to promulgate regulations
            restriction on its vessels; that the average kill rate of its fleet is no more                        to ensure that purse seine fishing is completed no later than 30 min-
            than two times the U.S. rate during the same period of time by the end                                utes after sundown, thus preventing the high porpoise mortality asso-
            of 1989 and no more than 1.25 the U.S. rate by the end of 1990; the                                   ciated with sundown sets. The Committee expects that in
            percentage of eastern spinners and coastal spotted dolphin does not ex-                               implementing this provision, the Secretary may prohibit the net skiff
            ceed 15 percent and 2 percent respectively of its total number of marine                              from being deployed at a certain time before sundown in order to
            mammals taken in any year; its fishing operations are monitored, to the                               ensure that fishing is completed by 30 minutes after sundown. The
            same degree as U.S. vessels, by an observer program of the Inter-Ameri-                               Secretary may also require the use of certain gear, such as snap
            can Tropical Tuna Commission [IATTC] or an equivalent international                                   rings, to expedite fishing operations, thus minimizing the impact on
            program; and it complies with all reasonable requests by the Secretary for                            porpoise. The Committee has not specifically defined the phrase "sets
            cooperation in scientific research.                                                                   of the purse seine net on marine mammals are completed", because it
               While the Commission is disappointed that the interim final regula-                                expects the Secretary to do so through the rule-making process. How-
            tions implementing the 1984 comparability amendments to the Act                                       ever, it is the Committee's intent in banning sundown sets to elimi-
            were just recently issued, it expects that these new amendments will                                  nate those fishing operations which lead to higher than average
            be incorporated into the final regulations immediately. Recognizing                                   mortality rates and would expect that the regulations not be based on
            that the foreign fleets harvest 60 percent of the yellowfin tuna in the                               the average time that it takes to complete a tuna set. Rather, the
            ETP but kill 80 percent of the porpoise, the Committee intends these                                  Committee intends that the back-down procedures would be completed
            new requirements to reduce the foreign take of marine mammals,                                        and the net would be close to the seine vessel by 30 minutes after
            similar to those reductions made by the U.S. fleet.                                                   sundown, recognizing that the net may not be totally aboard the ves-
               Subsection (a) also directs the Secretary to initiate embargo pro-                                 sel. This would ensure that tuna fishermen have completed those pro-
            ceedings against any intermediary nation wishing to export yellowfin                                  cedures necessary to release porpoise in the net before dark while
            tuna to the United States if the nation does not prohibit, within 60                                  allowing them to finish taking tuna out of the net.
     t.n    days of the date the United States has imposed an embargo, the im-                                       Subsection (d) also authorizes the Secretary to waive any terms or
            portation of yellowfin tuna into its own country from those nations                                   conditions of the general permit to a specific certificate holder for
            embargoed by the United States. The Committee strongly supports                                       the purpose of conducting experimental fishing operations. The Com-
            this provision in order to prevent embargoed nations from circumvent-                                 mittee anticipates these provisions will be useful in the development
            ing U.S. restrictions, thus weakening the effectiveness of U.S. law. If                               of new or alternative fishing gear and techniques.
            the United States embargoes yellowfin tuna and tuna products from                                        Subsection (d) also requires the Secretary, before the beginning of
            any nation, the Committee expects that all yellowfin tuna products,                                   the 1990 season, to develop and implement a system of performance
            including canned tuna containing any yellowfin, whether caught in the                                 standards for certificate holders. The purpose of this system is to al-
            ETP or not, will be embargoed. If a third party nation does not em-                                   low the Secretary to identify certificate holders whose incidental rate
            bargo the same products, they will not have access to the U.S. market                                 of marine mammal mortality is consistently and substantially higher
            for those products.                                                                                   than the average rate of the fleet. By identifying these skippers, or in
               Finally, subsection (a) requires the Secretary, within 6 months af-                                some cases vessels, the Secretary will be able to more effectively use
            ter any embargo of yellowfin tuna, to certify such fact to the Presi-                                 the authority to require training, physical improvements on vessels, or
            dent. This certification will then allow the President to ban any type                                to suspend or revoke certificates.
            of fish and fish product from the embargoed nation, in accordance                                        The Committee is aware of the progress made by the skippers
            with the "Pelly Amendments" to the Pishermen's Protective Act of                                      panel established under the ATA general permit. However, testi-
            1967.                                                                                                 mony was received that indicated the continuing and substantial
               Subsection (b) directs the Secretary, through the Secretary of State,                              differences in mortality rates among various skippers and vessels.
            to initiate negotiations with foreign nations, for the purpose of pro-                                The performance standards, which shall include levels and rates of
            tecting marine mammals. For those nations whose vessels          harvest yel-                         incidental mortality, are intended to assist the Secretary and the
            lowfin tuna in the ETP, the Secretary is directed to work         through the                         industry to narrow these differences. The terms "consistently" and
            TATTC or similar international organizations, to develop agreements                                   "substantially" are used to make clear that the Committee does
            on cooperative research into alternative fishing methods         and popula-                          not want a skipper who may have an excellent record but sub-
            tion studies, limitations on incidental take levels, and the use of best                              sequently suffers one disaster set to be identified as a poor per-
            marine mammal safety techniques and equipment for the purpose of                                      former. Rather, by using these terms or standards, the Committee
            reducing mortality.                                                                                   expects the Secretary to identify those skippers or vessels having a








                                                 32                                                                                                      33

            continuing and significant incidental mortality rate above the fleet aver-                             tary shall consult with the attending veterinarian and curatorial staff of
            age.                                                                                                   the institutions providing the medical treatment. He shall also consider
               Subsection (d) requires 100 percent observer coverage for all cer-                                  the likelihood of whether the animal will successfully readapt to life in
            tificated yellowfin tuna vessels through 1991. After the 1991 fishing                                  the wild and the possibility that the animal may transmit a contagious
            season, the Secretary may require a less extensive observer program,                                   disease to animals in the wild.
            so long as it does not prevent the purposes and policies of the Act                                       Subsection (b) amends section 102(b) of the MMPA by creating an
            from being satisfied.                                                                                  exemption to the prohibition against the importation of marine mam-
               Lastly, this subsection requires the Secretary, in addition to his                                  mals that were pregnant or nursing at the time of taking, or that are
            present responsibility to consult with the Marine Mammal Commis-                                       less than eight months old, if the importation is necessary for the
            sion, to convene annual meetings with representatives from the con-                                    protection or welfare of the animal. This waiver would permit the
            servation and scientific communities, as well as the tuna industry, to                                 importation of animals which have been orphaned and could not Sur-
            review the results of efforts to reduce porpoise mortality. Before                                     vive in the wild or immature animals which are sick or wounded if
            April 1, 1992, the Secretary is required to submit to the Senate Com-                                  the Secretary determines that the importation is necessary for the pro-
            merce Committee and the House Merchant Marine and Fisheries Com-                                       tection or welfare of the animal.
            mittee a comprehensive report on the results of the research                                              Currently, under the MMPA, such marine mammals cannot be im-
            programs, performance standards, observer programs, prohibition on                                     ported even if the alternative is the death of the animal. In some
            night fishing and development of alternative fishing techniques and a                                  instances, an adult animal of the same species could be imported for
            discussion of whether further reductions of porpoise mortality are                                     public display. This anomaly has recently been demonstrated in the
            economically and technologically feasible. If porpoise mortality has                                   case of orphaned polar bear cubs from Canada. Canadian officials
            not been substantially reduced by these efforts, the Secretary is re-                                  have found it necessary to remove nuisance adult polar bears which
            quired to recommend specific legislative proposals and other action to                                 represent a threat to public safety. In some instances, the lethal re-
            accomplish the goals of the Act.                                                                       moval of a female bear results in a cub being orphaned and Canada
               Subsection (c) requires the Secretary, before        the beginning of the                           does not have adequate facilities for the permanent care of captured
            1990 fishing season and annually thereafter, to determine the avail-                                   bears and cubs. This amendment would allow importation of these
            ability of alternative fishing techniques in order      to reduce the mortal-                          marine mammals if all other conditions for a public display permit
            ity of porpoise. Based on this determination            and consistent with                            are met.
            section 104(h)(2)(B), the Secretary is required,        before the beginning                              A permit would not be issued in instances which are inconsistent
            of the 1990 season and every season thereafter, to modify the terms                                    with the purposes of the MMPA. Furthermore, all importations of ma-
            of the general permit issued to the tuna industry. In order to meet the                                rinc mammals, including those pursuant to this section, are subject to
            goals of the Act, these modifications must include a reduction in the                                  the requirements of the Lacey Act and other applicable law regarding
            number of marine mammals taken incidental to yellowfin tuna fishing,                                   humane and healthful transport of wild mammals and birds.
            a reduction in the percentage of sets made on marine mammals, or a                                        Subsection (c) amends section 101(a) of the MMPA by authorizing
            requirement to use alternative fishing gear or techniques. The Com-                                    the instance of permits for taking and importing marine mammals for
            mittee expects that as a result of these annual modifications, consis-                                 purposes of enhancing the survival or recovery of a species or stock.
            tent with the other provisions of the Act, further reductions in the                                      Subsection (d), in general, amends section 104(c) of the MMPA by
            mortality of porpoise will be realized and the goals of the Act ful-                                   modifying the requirements for the issuance of public display and sci-
            filled.                                                                                                entific research permits and by establishing requirements for the issu-
               Subsection (f) directs the Secretary to request the National Acad-                                  ance of permits for enhancing the survival or recovery of a species or
            emy of Sciences, though the issuance of a contract, to identify new                                    stock.
            alternative tuna fishing techniques designed to reduce or eliminate the                                   Subsection (d)(2) provides that to be eligible for a public display
            incidental mortality of porpoise and, within one year, submit a re-                                    permit, an applicant must offer a program which includes education
            search, development, and implementation plan of alternative fishing                                    or conservation as a component of such program. It is clear, however,
            techniques to the Congress. Also, the Academy is directed to include                                   that education or conservation need not be the sole component of a
            in the report a review of the most recent data on porpoise popula-                                     qualifying program. In addition, this paragraph requires that the Sec-
            tions, trends, and abundances.                                                                         retary determine that the program is based on professionally recog-
            Section 5                                                                                              nized standards of the public display community for it to be
               Subsection (a) amends section 109(h) of the MMPA to allow the                                       acceptable, and that the applicant's facilities be open to the public on
            importation of marine mammals into the United States for the pur-                                      a regularly scheduled basis. This new requirement will be applicable
                                                                                                                   only to permits issued or modified after the date or enactment of this
            pose of providing medical treatment not otherwise available to them                                    provision.
            in the country of export. It also requires that marine mammals                                            Education is an important tool that can be used to teach the
            imported under such circumstances be returned to their natural                                         public that marine mammals are resources of great aesthetic, rec-
            habitat in those cases in which it is feasible. In determining
            whether it is feasible to return an animal to the wild, the Secre-


                                                          I   I I              V,    I      or



                                                mmm MIM = M@ M = M



                                                   34                                                                                                     35

            reational and economic significance, as well as an important part of the                                he determines that the taking or importation is likely to contribute signifi-
            marine ecosystem. It is important, therefore, that public display permits                               cantly to the survival of the species and is consistent with any applicable
            be issued to entities that help inform the public about marine mammals,                                 conservation or recovery plan. If no recovery or conservation plan exists,
            as well as perform other functions. However, it is the intent of the Com-                               the Secretary is required to evaluate the proposal on the basis of the
            mittee that the Secretary not use this section to regulate the content of                               factors that would be addressed in such plan.
            eduation[sicl or conservation programs.                                                                    The amendment allows for captive maintenance of depleted species,
                Public display programs should be based on professionally recog-                                    if the Secretary first makes a number of determinations. Also, the
            nized standards of the Public display community. Such standards in-                                     Secretary may allow the public display of such marine mammals only
            clude, but are not limited to those of the American Association of                                      if he determines that the display is incidental to the authorized main-
            Zoological Parks and Aquariums [AAZPAI. AAZPA accredited facili-                                        tenance and will not interfere with the attainment of the survival or
            ties are permanent institutions which own and maintain captive wild                                     recovery objectives.
            animals that represent more than a token collection, are under the                                      Section 6
            direction of a professional staff, provide its collection with appropri-
            ate care, and exhibit them in an esthetic manner to the public on a                                        Section 6 authorizes appropriations to the Department of Com-
            regularly scheduled basis for the purposes of education, conservation,                                  merce, the Department of the Interior, and the Marine Mammal Com-
            scientific studies and recreation. Standards which approximate those                                    mission to carry out their responsibilities under this Act, other than
            of the AAZPA, or which the Secretary otherwise finds acceptable,                                        the Secretary of Commerce's responsibility to provide observer cover-
            meet the requirements of this section.                                                                  age for commercial fishing vessels, through fiscal year 1993.
                An applicant's facilities must also be open to the public on a regu-                                Section 7
            larly scheduled basis. This is intended to mean regular and predict-                                       Section 7 requires the Secretary of Commerce to conduct a study
            able hours so that access is reasonably convenient to the public. A                                     on the effects of seal control devices (so-called "seal bombs") and
            seasonal facility open to the public on a regularly scheduled basis                                     other explosive devices used in the course of commercial yellowfin
            during its open season will meet this requirement.                                                      tuna fishing. The study should determine whether the use of such
                Permits may continue to be issued to public and privately owned                                     devices during yellowfin tuna fishing operations causes damage to the
            zoological parks and oceanariums, as well as other qualifying institu-                                  auditory system of porpoise or cause mortality. The study should also
            tions. Further, it is clear that appropriate enterprises include both                                   look at alternatives to these devices, including different fishing tech-
            profit and nonprofit institutions.                                                                      niques, if it is determined that they cause harm or increase mortality.
                Finally, subsection (d)(3) provides that permits for scientific re-                                 The results of the study must be transmitted to the House and the
            search may be issued only to an applicant conducting research to fur-                                   Senate no later than 2 years after date of enactment of this Act. The
            ther a bona fide scientific purpose that does not involve unnecessary                                   Committee notes that the requirement for conducting this study does
            duplication. The National Marine Fisheries Service regulations already                                  not absolve the Secretary of any other requirements imposed on him
            use the term "bona fide" as one of the criteria to be considered be-                                    under the MMPA.
            fore issuing a scientific research permit (50 CFR 2167.31(a) [sic]).                                    Section 8
            The addition of this language is not intended to substantively change
            the criteria for granting scientific permits and is merely codifying the                                   Section 8 requires the Secretary of Commerce to conduct a study
            regulations. The Committee expects the Secretary of the Interior to                                     regarding the die-off of east coast Atlantic bottlenosed dolphins
            use a similar standard when promulgating his regulations under this                                     which occurred in 1987 and 1988. A plan for conducting the study
            section.                                                                                                must be submitted to the House and the Senate before January 1,
                Research permits may not be issued for unnecessary duplication of                                   1989, and the final report on the study must be submitted before
            research. This is to ensure that permits are not issued for numerous                                    January 1, 1990. The Committee notes that the Secretary has already
            requests for takings of marine mammals if the research is not ex-                                       begun preparations for such a study and does not intend this section
            pected to enhance the body of scientific knowledge. Unnecessary du-                                     to disrupt or unduly modify existing study plans.
            plication is not synonymous with replication. The repetition of an
            experiment or procedure to test the results of the research is recog-                                                        INFLATIONARY IMPACT STATEMENT
            nized as crucial to science.
                In the case of scientific research that would involve the killing of                                   Pursuant to Clause 2(l)(4) of Rule XI of the Rules of the House
            marine mammals, permits may only be issued if it is determined that                                     of Representatives, the Committee estimates that the enactment of
            the research cannot reasonably be done using alternative, nonlethal                                     H.R. 4189 would have no significant inflationary impact upon prices
            techniques. Further, in the case of lethal research involving depleted                                  and costs in the operation of the national economy.
            marine mammals, the research must either fulfill a critically important
            research need or directly benefit the effected species or population
            stock.
                Subsection (d)(4) provides that the Secretary may issue a permit
            for enhancing the survival or recovery of a species or stock only if







                                                                                                                                                   Calendar No. 1126
                                                                                                       100TH CO@GRESS                   SENATE                       REPORT
                                                                                                        2d Session                                                     100-592







                                                                                                            MARINE MAMMAL PROTECTION ACT AMENDMENTS OF
                                                                                                                                        1988



                                                                                                            OCTOBER 7 (legislative day, OCTOBER 6), 1988-Ordered to be printed


                                                                                                            Mr. HOLLINGS, from the Committee on Commerce, Science, and
                                                                                                                        Transportation, submitted the following

                                                                                                                                     REPORT

                                                                                                                                [To accompany S. 28101

                                                                                                         The Committee on Commerce, Science, and Transportation, to
                                                                                                       which was referred the bill (S. 2810) to amend the Marine Mammal
                                                                                                       Protection Act of 1972 and to authorize appropriations for that Act,
                                                                                                       and for other purposes, having considered the same, reports favorably
                                                                                                       thereon with amendments and recommends that the bill do pass.

                                                                                                                                PURPOSE OF THE BILL

                                                                                                          The primary objective of the legislation is to provide for assess-
                                                                                                       ment and reduction of adverse effects of commercial fishing opera-
                                                                                                       tions on marine mammal populations. The bill amends the Marine
                                                                                                       Mammal Protection Act (MMPA) and establishes a five-year program
                                                                                                       to allow incidental taking of marine mammals by commercial fisher-
                                                                                                       men and to collect information regarding fishery-marine mammal in-
                                                                                                       teractions. Specific measures to reduce the number of porpoise killed
                                                                                                       or injured by tuna fishermen in the eastern tropical Pacific Ocean are
                                                                                                       included. In addition, S. 2810 extends the authorization of appropria-
                                                                                                       tions for five additional years; establishes procedures for determining
                                                                                                       the status of marine mammal populations; modifies permit require-
                                                                                                       ments for scientific research, public display, and population enhance-
                                                                                                       ment activities; and requires a study on the epidemic affecting
                                                                                                       Atlantic bottlenose dolphin. Finally, the bill amends the Fishermen's
                                                                                                       Protective Act of 1967 and the Fur Seal Act of 1966.







                                                                      2                                                                                                                                           3
                                                    BACKGROUND AND NEEDS                                                                                         The authorization of appropriations for the MMPA expires at the
                                                                                                                                                             end of the current fiscal year. In the 1984 reauthorization legislation,
                     The MMPA was enacted in 1972, in response to increasing popular                                                                         the Department of Commerce was authorized to receive annual funds
                 sentiment and growing concern for the welfare of marine mammals.                                                                            of $8.8 million for the five-year period. Funding for the Department
                 The Act recognizes that marine mammals play an important role in                                                                            of the Interior was authorized to increase incrementally from $2 mil-
                 marine ecosystems and that they are significant recreational and aes-                                                                       lion in fiscal year (FY) 1984 to $3 million in FY 1986,                                   remaining at
                 thetic resources. The MMPA also notes the adverse impact of human                                                                           that level thereafter. The authorization of appropriations for the Ma-
                 activities on some marine mammal populations, and the need to re-                                                                           rine Mammal Commission has remained constant, at $1                                      million each
                 store those populations that have been severely depleted. The central                                                                       year, since FY 1983. The table below shows the amounts                                     appropriated
                 feature of the Act is a moratorium on the taking of all marine mam-                                                                         for marine mammal-related activities. Figures given for FY 1999 are
                 mals by persons subject to the jurisdiction of the United States. This                                                                      the President's budget request:
                 protection prohibits harassment of animals, as well as hunting or cap-
                 turing them. In addition, imports of marine mammals or marine mam-                                                                                                                  (Dollar amounis In millions]
                 mal products into the United States art banned.                                                                                                                                                                         Fiscal year-
                     While the Act places a moratorium on the taking or importation of
                 marine mammals, it also establishes procedures through which that                                                                                                                                   1985      1986         1987         1988         1989
                 moratorium may be waived. Such a waiver is most commonly
                 achieved through issuance of a permit which indicates the number and                                                                                                                               $8.13     $8.63        $9.28        $8.68        $7.32
                 types of marine mammals which may be taken. Limited exceptions to                                                                           FWS                                                     1.29       1.82         2.38         2.67        1.89
                 the moratorium are provided for scientific and public display pur-                                                                          Commission                                              0.93       0.86         0.90        0.95         0.93
                 poses, for taking by Alaskan natives of the north Pacific and Arctic
                 coasts, and for takings incidental to commercial fishing and other op-                                                                      INCIDENTAL TAKE OF MARINE MAMMALS BY COMMERCIAL FISHERMEN
                 erations or pursuant to international treaty obligations.
                     In most instances, the MMPA relies upon the condition of a ma-                                                                              Although the Act permits the incidental taking of marine mammals
                 rine mammal population to determine whether taking may be permit-                                                                           in  the course of commercial fishing operations, the immediate goal is
      CD         ted. A stated goal of the MMPA is to maintain marine mammals at                                                                             to  reduce such taking of insignificant levels approaching a zero mor-
                 optimum sustainable population (OSP) levels. As defined in regula-                                                                          tality and serious injury rate. Consistent with this goal, the Act di-
                 tions, a species or stock is considered to be at its OSP level if it is                                                                     rected the Secretary of Commerce (Secretary) to establish a permit
                 within a range between its maximum net production level (MNP) and                                                                           system and issue regulations which would ensure that the techniques
                 the carrying capacity of the environment. The MNP is often consid-                                                                          and equipment used by fishermen minimize hazards to marine mam-
                 ered to be 60 percent of historic, unexploited population levels. Spe-                                                                      mals. All commercial fishermen, including those purse scining for
                 cies listed as endangered or threatened under the Endangered Species                                                                        yellowfin tuna, are prohibited from incidentally taking marine mam-
                 Act, and species which are below OSP levels, are designated as de-                                                                          mals without a Federal authorization for the taking.
                 pleted under the MMPA. For the most part, taking of animals from                                                                                The Act provides two mechanisms through which NOAA, on behalf
                 depleted species or populations is prohibited.                                                                                              of the Secretary, may provide such an authorization. First, a "general
                     Primary responsibility for implementing the MMPA is shared by                                                                           permit" may be issued which provides for the take of relatively large
                 the Secretaries of Commerce and Interior. The Commerce Department,                                                                          numbers of marine mammals by U.S. and foreign fishermen. Second,
                 through the National Marine Fisheries Service within the National                                                                           a "small-take exception" may be issued to citizens of the United
                 Oceanic and Atmospheric Administration (NOAA), has authority with                                                                           States to take small numbers of marine mammals if such taking has
                 respect to whales, porpoises, seals, and sea lions. The remaining ma-                                                                       only a negligible effect on the population. Under existing provisions
                 rine mammal species (walruses, polar bears, sea otters, and manatees)                                                                       of the MMPA, neither general permits nor small-take exceptions may
                 are managed by the Department of the Interior through the U.S. Fish                                                                         be issued to fishermen for the incidental take of marine mammals
                 and Wildlife Service (FWS). Each promulgates regulations, issues per-                                                                       from populations that are depleted.
                 mits, conducts scientific research, and enforces the provisions of the                                                                          Added to the MMPA in 1981, the small-take exception is available
                 Act relating to species under its jurisdiction. In carrying out their                                                                       to those U.S. fishermen who accidentally take small numbers of ma-
                 responsibilities, the Secretaries consult with the Marine Mammal                                                                            rine mammals. The Secretary is not required to find that the affected
                 Commission, an independent advisory agency created by the MMPA.                                                                             population is at it OSP level in order to make a determination of
                 Consisting of three part-time Commissioners, the Commission reviews                                                                         negligible impact and grant the exception. As a result, procedures for
                 and develops recommendations concerning actions and policies which                                                                          obtaining such an exception are simpler and require less time than
                 affect marine mammals.                                                                                                                      those required for obtaining a general permit.
                                                                                                                                                                 By contrast, before issuing a general permit, the Secretary is
                                                                                                                                                             required to estimate the abundance of the marine mammals for








                                                 4                                                                                                 5

            which the permit is required, and to determine whether the affected popu-                         fisheries will also be jeopardized if they take fur seals or other marine
            lation is at its OSP level. Such determinations have been made for sev-                           mammals from populations that are either known to be below OSP or are
            eral species, but have not been made for many of the mammals that are                             not clearly at OSP levels. It has also stated that it may not be able to
            likely to be taken during fishing operations. For example, no OSP deter-                          renew general permits to U.S. fishermen, and that it may have to enforce
            minations have been completed for harbor porpoises or harbor seals, both                          the prohibitions of the Act against accidental taking of small numbers of
            of which are incidentally taken in the gillnet fisheries in Alaska and Cali-                      marine mammals from depleted populations or from those for which the
            fornia.                                                                                           status is so uncertain as to preclude a finding of negligible impact under
               Excluding the tuna fishery, general permits and small-take excep-                              the small-take exception.
            tions were issued to U.S. fishermen in 1983, for a period of five                                    Concurrently with the legal proceedings, action has been taken re-
            years. These domestic marine mammal permits expire at the end of                                  garding the status of two marine mammal populations that are rou-
            the current calendar year. Two organizations, in addition to the tuna                             tinely taken by fishermen in the North Pacific Ocean. On May 18,
            industry, currently hold general permits for most fishing activities oc-                          1988, NOAA issued a final rulemaking designating the Pribilof Island
            curring in the Pacific Ocean. The North Pacific Fishing Vessel Own-                               population of northern fur seals as depleted. A similar rulemaking
            ers Association holds four general permits for fisheries in the North                             procedure is underway to designate Steller sea lions as depleted. Po-
            Pacific and Bering Sea. The Pacific Coast Federation of Fishermen's                               tential East Coast fishery conflicts with depleted species are also pre-
            Associations holds similar permits for fisheries operating off the                                sent. Disease has severely reduced some populations of Atlantic
            coasts of California, Washington, and Oregon. In addition, small-take                             bottlenose dolphins over the past two years, and the North Atlantic
            exceptions have been issued for two East Coast fisheries: the ground-                             coastal stock appears to be well below historic population levels.
            fish gillneet[sic) fleet in the Northeast; and the Gulf of Mexico and                                As a result of the Kokechik litigation and the designation of spe-
            Atlantic menhaden purse seine fleet.                                                              cies as depleted, no new permits for foreign fishing operations have
               As the expiration date of marine mammal permits for the domestic                               been issued in the last year. In addition, NOAA has indicated that
            fleet approaches, legal proceedings have brought NOAA's authority to                              renewal of permits or issuance of new permits to replace those of
            reissue those permits into question. In July 1986, the Federation of                              domestic fishermen which expire at the end of the year will not be
            Japan Salmon Fisheries Cooperative Association (Federation) applied                               possible, under existing provisions of the MMPA. In the absence of
            for a five-year general permit to allow the annual incidental take of                             Congressional action, this situation could result in the closing of fish-
            5,500 Dail's porpoise, 450 northern fur seals, and 25 sea lions in the                            eries in the North Pacific and elsewhere.
            course of its Bering Sea salmon driftnet fishery. Following a year of                                Last spring, concern regarding the seriousness of this situation led
            administrative proceedings, NOAA issued a permit allowing the Fed-                                to a series of discussions among representatives from the fishing in-
            eration to take 6,039 Dail's porpoise over a three-year period.                                   dustry and environmental groups. The result of these discussions was
            Authority to incidentally take northern fur seals and sea lions was                               a joint proposal to amend and extend authorization of appropriations
            denied, however, because inadequate information was available to as-                              for the MMPA for three years. The proposal outlined suggestions for
            sess the status of those populations.                                                             a program to maintain protection for marine mammals while allowing
               After the issuance of the general permit, lawsuits to enjoin the                               continued commercial fishing operations. The goal of the proposal
            permit were filed by the Kokechik Fishermen's Association and sev-                                was to provide for improved collection, reporting, and analysis of in-
            eral environmental groups. On June 15, 1987, the U.S. District Court                              formation to assess and reduce interactions between marine mammals
            for the District of Columbia ruled that issuance of the permit violated                           and fishing gear. Principal elements of the agreement included the
            the MMPA. Although it was known that northern fur seals are occa-                                 following:
            sionally taken by the Japanese driftnet fishery, NOAA did not author-                                     (1) Exemption for fishermen.-The proposal called for a limited
            ize them to be taken under the permit, since they are below the                                        exemption from the permit requirements of the MMPA for domestic
            desired OSP level. NOAA believed that it had discretion under the                                      fisheries which have a continuing, documented interaction with speci-
            Act to authorize the taking of Dail's porpoise, which were found to                                    fied marine mammals and which do not qualify for either a small-
            be at the OSP level, even though some other species would be taken                                     take exception or a general permit.
            occasionally. The District Court's decision (Kokechik Fishermen's                                         (2) Assessment of fishery-marine mammal interactions.-Ile
            Association v. Secretary of Commerce) held that NOAA could not                                         agreement also called for improvement of information regarding inci-
            issue the permit to take Dail's porpoise if it were likely that    northern                            dental take of marine mammals, including an observer program for
            fur seals would also be taken, because the act prohibits the       issuance                            specified fisheries, monitoring and reporting requirements, and a cen-
            of a permit and any taking of a population that is below           its OSP                             tralized non-federal data management system.
            level. This decision has been affirmed on appeal.                                                         (3) Conservation measures.-Procedures would be established
               The effect of the decision denying NOAA's discretion            to issue                            to implement emergency protection measures for marine mam-
            permits for any taking if some of the animals to be taken are not                                      mals and for critical habitat zones. In addition, the proposal
            at OSP extends beyond the Japanese fishery that was in             dispute.                            called for modifying the population status review process to es-
            NOAA has stated that this interpretation means that domestic








                                                6                                                                                                 7

                tablish a timetable and facilitate participation by fishermen, environ-                      the Secretary to carry out a scientific research program to monitor, for at
                mentalists, and State resource managers.                                                     least five years, population abundance and trends of affected porpoise
                                                                                                             stocks. The amendments also required appropriate modifications to the in-
                   SETTING ON PORPOISE IN THE YELLOWFIN TUNA FISHERY                                         cidental take quotas and other conditions of the general permit, if the
              For unknown reasons, yellowfin tuna tend to congregate beneath                                 Secretary determined that authorized take levels were having a significant
           schools of porpoise in the eastern tropical Pacific Ocean (ETP). Tuna                             adverse effect on marine mammal populations.
           fishermen have long recognized this relationship and use the visible                                 While the U.S. industry has made dramatic improvements since en-
           .schools of mammals to lead them to the tuna. To catch the tuna,                                  actment of the MMPA, unregulated tuna fleets of foreign        nations now
           large purse-seine nets are drawn around the schools of tuna and por-                              present a far more serious source of porpoise mortality.       In 1987, 70
           poise. During this operation, porpoise can become entangled in the                                foreign vessels from eight different nations fished for        tuna in the
           netting and may drown or die from shock or injuries. This practice of                             ETP and were estimated to kill over 100,000 porpoise.          By contrast,
           ..setting on porpoise" was estimated to kill several hundred thousand                             the U.S. fleet had an incidental take of 13,992 porpoise       in 1987, the
           porpoise a year in the 1960's and early 1970's.                                                   second lowest on record. The figures for the year show         that 60 per-
              Since enactment of the MMPA in 1972, the number of porpoise                                    cent of the tuna caught and more than 80 percent of            the porpoise
           deaths in U.S. tuna fishing operations has been significantly reduced.                            killed in the ETP were taken by foreign purse seiners. The foreign
           This decrease has been achieved through: (1) a general permit as de-                              fleet is approximately twice the size of the U.S. fleet in the eastern
           scribed earlier; (2) regulations requiring the use of porpoise-saving                             Pacific and has estimated porpoise mortality rates which are about
           gear and fishing practices; (3) on-board Federal observers; and (4)                               four times as high.
           numerical quotas setting maximum numbers of porpoises permitted to                                   The original Act directed the Secretary of the Treasury to ban the
           be killed each year. In 1980, NOAA issued a general permit for the                                importation of commercial fish or fish products that have been caught
           years 1981 through 1984 with an annual quota of 20,500 porpoise for                               with commercial fishing technology which results in the incidental
           the U.S. tuna purse seine fishery. The purpose of the quota was to                                kill or incidental serious injury of marine mammals in excess of U.S.
           ensure that the porpoise stocks would not be harmed while providing                               standards. The Act required the Secretary to obtain reasonable proof
           a limit which was economically and technologically achievable by the                              from foreign governments in order to make a finding that foreign
                                                                                                             commercial fishing techniques were not resulting in kills or injuries
           tuna industry.                                                                                    in excess of U.S. standards. Currently, the requisite findings are in
              In 1981, the Congress adopted amendments which stated that the                                 effect for the Cayman Islands, Costa Rica, Ecuador, Mexico, Panama,
           goal of the Act would be satisfied in the case of purse seine fishing                             Spain, Vanuatu, and Venezuela. Consequently, these arc the only
           for yellowfin tuna by the continued application of the best marine                                countries fishing for yellowfin tuna in the ETP which are allowed to
           mammal safety techniques and equipment that are economically and                                  export their catch to the United States.
           technologically practicable. At that time, the Committee anticipated                                 In 1984, the Committee expressed concern that U.S. vessels had
           that the "zero goal" of the Act could serve to stimulate such new                                 been subject to tuna-porpoise regulations for years while foreign ves-
           technology for reducing the incidental mortality rate of porpoise                                 sels had not. Tougher restrictions were determined to be necessary to
           taken by tuna fishermen. To ensure that efforts to discover new tech-                             ensure that nations seeking to import tuna into the United States re-
           nology would be undertaken, provisions were adopted which directed                                quired their own fishermen to adhere to standards for porpoise protec-
           the Secretary to undertake a program of, and provide financial assis-                             tion comparable to our own. Amendments adopted in 1984 established
           tance for, research into alternative methods of locating and catching                             a two-part test for each nation exporting yellowfin tuna to the United
           yellowfin tuna without the incidental taking of marine mammals.                                   States. First, the foreign nation was required to adopt a program for
              In the 1984 reauthorization legislation, the general permit held by                            protecting porpoise tuna fishing operations comparable to the U.S.
           the American Tunaboat Association was extended statutorily at the                                 program. Second, the average rate of porpoise mortality by a foreign
           1980 quota level for an indefinite period, subject to a number of con-                            fleet had to be comparable to that of the U.S. fleet. On March 18,
           ditions. In considering the permit extension, the Commission recog-                               1988, NOAA issued an interim final rule providing regulations to
           nized that the industry had done a very commendable job of reducing                               govern the importation of tuna taken in association with marine mam-
           porpoise mortality since the 1970s. Also, in order to protect the                                 mals. The interim regulations implement the 1984 legislation. They
           coastal spotted and eastern spinner dolphins, quotas of 250 and 2,750,                            would allow foreign nations until 1991 to show that the porpoise kill
           respectively, were incorporated into the law. Departing from past                                 rates of their fishermen are comparable to that of the U.S. fleet.
           practices, the 1984 amendments to the MMPA required that mortali-                                    The Inter-American Tropical Tuna Commission (IATTC) is the
           ties of these species be counted as within, not in addition to, the                               principal international organization involved in efforts to monitor
           overall annual quota.                                                                             and reduce porpoise mortality by the international fleet in the ETP.
              During the hearings on reauthorization of the Act in 1984, it                                  The IATTC was established by convention in 1949,               to study the
           also became apparent that NOAA did not have the necessary data                                    biology and population dynamics of tunas in the eastern Pacific
           to assess the effect of fishing mortality on porpoise populations in                              Ocean. In recent years, the IATTC has developed a marine
           the ETP. To obtain this information, the Act was amended to direct








                                                   8                                                                                                     9

             mammal program which includes observer placement and training of for-                                 that the Act should be amended to     authorize the FWS, the National Ma-
             eign crews regarding the use of porpoise-saving gear and techniques. Last                             rine Fisheries Service, or another    appropriate authority to regulate the
             year, IATTC observers were carried on about 30 percent of foreign tuna                                native take of nondepleted species.
             vessels in the ETP.                                                                                      Based on this testimony, the      Committee makes two observations.
                                                                                                                   As to the first one, during the      1981 reauthorization legislation, the
                             OTHER EXCEPTIONS TO THE MORATORIUM                                                    Act was amended to establish a       procedure to enable the Federal gov-
                Permits may be issued for the taking or importation of marine                                      ernment to transfer regulatory      authority over the taking of marine
             mammals for public display and for scientific research. In the case of                                mammals to the State of Alaska. The amendment established stand-
             depleted stocks, permits may be issued for scientific research but not                                ards governing the exercise of that authority which include a subsis-
             for display. The MMPA does not allow the taking or importation of                                     tence hunting priority and a directive that the State regulate
             marine mammals for the purpose of enhancing the propagation or sur-                                   nonsubsistence hunting in a manner that to the "maximum extent
             vival of a depleted species or population. By contrast, authority to                                  practicable" provides economic opportunities for residents of rural
             issue permits for captive breeding programs exists in the Endangered                                  coastal villages. To date, the State has not applied for and does not
             Species Act. Zoo and aquarium professionals have suggested that the                                   intend to apply for that regulatory authority. However, the State has
             MMPA authority to issue permits for scientific research be expanded                                   indicated that, on a species -by -species basis, a cooperative effort
             to include such enhancement activities. In addition, they have re-                                    would be initiated to develop management plans to assist in the im-
             quested that import restrictions be relaxed to allow importation of                                   plementation of Federal management responsibilities. The Committee
             mammals from depleted populations for medical treatment, and of                                       supports cooperative efforts of this nature, and encourages Federal
             young or nursing animals for their protection or welfare.                                             management agencies, environmental organizations, the Eskimo Wal-
                Recognizing the importance of subsistence hunting and use of ma-                                   rus Commission, the North Slope Borough, and other interested or-
             rine mammals to the continued physical health and economic well-be-                                   ganizations to work with the State to pursue such an approach.
             ing of natives who live in coastal villages, the Act exempts Alaskan                                     Second, with respect to the various proposals for amendments to
             natives dwelling on the coasts of the Arctic and North Pacific                                        the Act, the Committee urges representatives of the native and envi-
             Oceans. Consequently, so long as takings are not wasteful, section                                    ronmental organizations that presented testimony and other interested
             101(b) of the Act authorizes Alaska natives to take marine mammals                                    parties to develop a joint recommendation as to whether, and if so
             for two purposes: for subsistence; and to obtain by-products for the                                  how, the Act should be amended. The Committee is aware that this
             purpose of creating and selling authentic articles of native handicrafts                              will not be an easy task. For that reason, the parties are urged to
             and clothing. Nonwasteful native hunting of non-depleted marine                                       begin discussions to develop a joint recommendation in an expedi-
             mammals in Alaska conducted pursuant to section 101(b) may not be                                     tious manner.
             limited, but the Secretary may regulate the taking of a species or                                                      FISHERMEN'S PROTECTIVE ACT OF 1967
             stock that is depleted. In addition, recent regulations (50 CFR
             18.23(f)) require marking and tagging of polar bears, walruses, and                                      The Pelly Amendment of the Fishermen's Protective Act provides
             sea otters, as well as reporting to the FWS of the number of animals                                  the President with discretionary authority to embargo fish. products
             taken.                                                                                                from nations whose citizens are certified by the Secretary to be con-
                During its recent hearings, the Committee received testimony from                                  ducting fishing operations that diminish the effectiveness of an inter-
             the Alaska Federation of Natives, the Eskimo Walrus Commission,                                       national fishery conservation program. The President has discretion to
             and several other native organizations that, in the 16 years the native                               embargo all, some, or none of the fish products from a certified na-
             exemption has controlled native hunting, marine mammal populations                                    tion, and any such embargo must be consistent with the General
             that are the subject of the directed native hunt (and are not subject to                              Agreement on Tariffs and Trade.
             takings by commercial fishermen) have increased. Testimony also in-                                      Enacted in 1971, the Pelly Amendment was designed to provide for
             dicated that, through organizations such as the Eskimo Walrus Com-                                    sanctions against Denmark, Norway, and the Federal Republic of Ger-
             mission and the North Slope Borough, Alaskan natives are actively                                     many, all of which had refused to refrain from high seas salmon fish-
             involved in self-regulation through their participation in cooperative                                ing in compliance with a ban on such fishing by the International
             management agreements. Finally, the organizations expressed their                                     Commission for the Northwest Altantic [sic] Fisheries. After being ad-
             view that the Act should be amended to enable Alaskan natives to                                      vised of the potential applicability of the Pelly Amendment, all three
             sell walrus meat in local commerce and to use by-products to manu-                                    nations agreed to a phase-out of their fisheries.
             facture contemporary handicrafts.                                                                        Subsequently, the Pelly Amendment has been utilized to main-
                The Committee also has received testimony from the Sierra Club                                     tain the effectiveness of the whale conservation program of the In-
             and other environmental organizations which are concerned that na-                                    ternational Whaling Commission (IWC). Japan and the U.S.S.R.
             tive hunting of a species or stock cannot be regulated until a                                        were certified in 1974 for killing minke whales in violation of
             species or stock is depleted . The organizations expressed their view                                 IWC quotas. The President did not impose an embargo because both na-








                                              10                                                                                              11

           tions agreed to adhere to IWC quotas in the future. Chile, Peru, and the                                                  LEGISLATIVE HISTORY
           Republic of Korea were certified in 1978 for whaling in violation of IWC
           quotas. No embargo was imposed because all three nations pledged to                                Over the past year,    the full Committee and the National Ocean
           join the IWC and abide by its quotas. The U.S.S.R. was certified again in                       Policy Study have held two hearings on the reauthorization of the
           1985 for killing minke whales in excess of IWC quotas. No embargo was                           MMPA. The first hearing was held on April 13, 1988, for the pur-
           imposed, but its allocations for fishing in the U.S. 200-mile zone were                         pose of evaluating Federal marine mammal programs, identifying
           ended until it announced that it would not conduct further whaling activi-                      reauthorization issues, and discussing in detail the incidental taking
           ties. Norway was certified in 1986 for killing minke whales in violation                        of porpoise by tuna fishermen in the ETP. Witnesses included repre-
           of the IWC moratorium. The President did not impose an embargo be-                              sentatives of NOAA, FWS, the Marine Mammal Commission, the In-
           cause Norway announced that it would not resume commercial whaling.                             teramerican [sic] Tropical Tuna Commission, the Environmental
           Finally, Japan was certified in February 1988 for killing whales in viola-                      Defense Fund, Earth Island Institute, Greenpeace, the United States
           tion of an IWC resolution calling upon it to refrain from such whaling.                         Tuna Foundation, and the American Tunaboat Association. Tuna-por-
           No embargo was imposed, but its allocations for fishing in the U.S. zone                        poise issues covered in the hearing included the comparability stand-
           have been reduced.                                                                              ards required by the 1984 amendments, observer coverage, sundown
              Thus the history of the Pelly Amendment is one of mixed results.                             sets by purse seiners, new or alternative fishing techniques, the status
           In the early years, the threat of an embargo on fish products seems                             of porpoise populations, skipper performance standards, and the
           to have persuaded offending nations to cease violations of interna-                             phasedown of the U.S. porpoise quota. Most witnesses were in agree-
           tional conservation programs and to have persuaded others to refrain                            ment that further steps could and should be taken to reduce mortality
           from violations they would have otherwise committed. It has been                                by both foreign and domestic tuna fishermen. However, on the issue
           suggested, however, that the significance of the Pelly Amendment has                            of legislating a reduction to zero of the U.S. quota of porpoise, con-
           declined as the U.S. exports more fish products than it imports from                            cern was expressed that this action could lead to a net increase rather
           some nations, and foreign nations have been excluded from the U.S.                              than a decrease in porpoise mortality.
           zone, thereby eliminating the associated threat that they would be dc-                             A second hearing was held on May 19, 1988, at which time testi-
           nied allocations as a result of certification. Some nations appear to                           mony was received from representatives of the fishing industry, the
           have concluded that the threat of an embargo is an empty one, and                               environmental community, NOAA, and the Marine Mammal Commis-
           violations of the IWC's conservation program have become more,                                  sion. The primary purpose of the second hearing was to examine the
           rather than less frequent. An amendment to the Pelly Amendment is                               joint agreement reached between the environmental and fishing com-
           needed to increase deterrence.                                                                  munities. Witnesses explained that concern regarding the Act's in-
                                                                                                           flexibility in prohibiting any take from depleted marine mammal
                                    FUR SEAL ACT OF 1966                                                   stocks, the District Court decision, and the pending expiration of do-
              The Fur Seal Act of 1966, together with the MMPA,             provides                       mestic general permits and small-take exceptions led to a series of
           authority to the Federal Government to manage and harvest        northern                       meetings between conservationists and industry representatives begin-
           fur seals on the Pribilof Islands. The Federal Government        has em-                        ning in late 1987. The joint proposal outlined earlier was presented at
           ployed Aleut natives on the Pribilof Islands of St. Paul and St.                                the hearing, on behalf of 25 environmental and 17 commercial fishing
           George to carry out this harvest since 1910. Involvement of      the Fed-                       organizations.
           eral Government in sealing activities has raised objections      over the                          S. 2810 was introduced by Senator Kerry on September 20, 1988,
           years, however, and in 1983, the Fur Seal Act was amended        to phase                       and is cosponsored by Senators Adams, Breaux, Stevens, Hollings,
           out Federal employment of the Aleuts for that purpose. To        compen-                        Packwood, Wilson, Kasten, and Inouye. Later that day, the Committee
           sate the Aleuts for the loss of their primary source of income, the                             considered S. 2810 in open Executive Session and agreed to two
           Fur Seal Act established a $20 million trust fund for the Pribilof                              amendments by voice vote. The first was offered by Senator Stevens
           Islanders to "promote the development of a stable, self-sufficient, en-                         to provide an authorization of appropriations in.FY 1990 for the St.
           during, and diversified economy not dependent on sealing".                                      George Trust. The second was offered by Senator Breaux and requires
              Consistent with this purpose, both St. George and St. Paul have                              the Secretary to have observers collect information on living marine
           undertaken construction of harbor facilities to allow them to supply                            resources in addition to marine mammals, based on consultation with
           services and shelter to the growing U.S. fishing fleet in the Bering                            fishery management councils and State agencies. The Committee then
           Sea. A particularly severe set of winter storms has delayed comple-                             ordered the bill reported favorably, as amended, without objection.
           tion of the harbors by two years, and both communities need addi-
           tional funds to allow them to operate essential services in the interim                                              SUMMARY OF MAJOR PROVISIONS
           while work on the port facilities is completed.                                                               MARINE MAMMAL PROTECTION ACT OF 1972

                                                                                                              The legislation includes the following amendments to the MMPA.




                                                                                                                 1   11,       IN                                      I         I








                                                                        12                                                                                                                                                 13

                  1. Authorization of appropriations.-                                                                                                                                                    FUR SEAL ACT OF 1966
                                                            IDollar amounts In millions]                                                                                Additional appropriations of $3,200,000 in PY 1989 and
                                                                                                                                                                    $1,800,000 in FY 1990 would be authorized for the St. Paul Island
                                                                                                 Fiscal year-                                                       Trust, and $3,700,000 in PY 1990 for the St. George Island Trust.

                                                                           1989       1990          119911       1992         1993                                                                             ESTIMATED COSTS
                  NOAA base program      ..................              $112.25    $12.74        $13.25       $13.78       $14.33
                    Now observer program . .                                2.70      8.00          8.00         8.00         8.00                                      In accordance with paragraph 11(a) of rule XXVI of the Standing
                  FWS .                                                     3.00      3.12          3.24         3.37         3.50                                  Rules of the Senate and section 403 of the Congressional Budget Act
                  Commission.                                               1.10      1.14          11.119       1.23         1.28                                  of 1974, the Committee provides the following cost estimate, prepared
                                                                                                                                                                    by the Congressional Budget Office.
                      2. Interim exemption for                     commercial fish erm en.-B ased                       on    the                                                                                                      U.S. CONGRESS,
                  agreement among commercial                       fishing and conservation organizations,                                                                                                                    CONGRESSIONAL BUDGET OFFICE,
                  the bill would establish a system through which commercial fishermen                                                                              Hon. ERNEST P. HOLLINGS,                             Washington, DC, September 27, 1988.
                  could obtain exemptions authorizing the incidental taking of marine                                                                               Chairman, Committee on Commerce, Science, and Transportation,
                  mammals in the course of fishing activities. Under this system, ves-
                  sel owners would have to meet certain registration and reporting re-                                                                                    U.S. Senate, Washington, DC.
                  quirements to qualify for an exemption. The requirements themselves                                                                                   DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
                  would depend on whether the incidental take of marine mammals in                                                                                  pared the attached cost estimate for S. 2810, the Marine Mammal
                  the fishery was frequent, occasional, or rare. Implementation of an                                                                               Protection Act Amendments of 1988.
                  observer program would be required for those fisheries which fre-                                                                                     If you wish further details on this estimate, we will be pleased to
                  quently kill or seriously injure marine mammals. Other elements of                                                                                provide them.
                  the five-year program would provide for compiling and assessing in-                                                                                   Sincerely,                                                         JAMES L. BLUM,
                  formation collected and mitigating adverse impacts of the fisheries on
        V1        marine mammal populations. Finally, the Marine Mammal Commission                                                                                                                                                          Acting Director.
                  would be required to develop guidelines to be used in determining
                  permissible levels of incidental taking by fishermen.                                                                                                                CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
                      3. Status reviews and conservation plans.-The bill would pro-
                  vide specific timetables and procedures for the Secretary to follow in                                                                                1. Bill number: S. 2810.
                  conducting status reviews and preparing conservation plans for                                        marine                                          2. Bill title: Marine Mammal Protection Act Amendments of 1988.
                  mammals.                                                                                                                                              3. Bill status: As ordered reported by the Senate Committee on
                      4. Reducing porpoise mortality in tuna fisheries.-With                                            respect                                     Commerce, Science, and Transportation, September 20, 1988.
                  to foreign tuna fishing operations, the bill would define and clarify                                                                                 4. Bill purpose: S. 2810 would amend and reauthorize programs
                  requirements for comparing the porpoise protection programs of the                                                                                under the Marine Mammal Protection Act (MMPA). Section 2 of the
                  United States and foreign nations. In addition, intermediary                                          nations                                     bill would authorize the Secretary of Commerce to grant exemptions
                  which buy tuna from other nations for export to the United States                                                                                 to commercial fisheries for the incidental taking of marine mammals;
                  would be expected to show that they had complied with any U.S.                                                                                    the Secretary would be authorized to charge fees covering the admin-
                  ban. With respect to the U.S. tuna fishery, the bill would require                                                                                istrative costs of granting these exemptions. Section 2 would also
                  skipper performance standards, restrict sundown sets and the use of                                                                               authorize appropriations of $2.7 million for fiscal year 1989, and $8
                  certain explosive devices, and initiate a National Academy of Sci-                                                                                million for fiscal years 1990, 1991, and 1992 for a fishing vessel
                  ences assessment of alternative methods of locating tuna.                                                                                         observer program.
                      5. Permits for public display and scientific research.-The bill                                                                                   Other sections of S. 2810 would establish procedures for rulemak-
                  would modify the requirements for the issuance of public display per-                                                                             ings related to the conservation of marine mammals and would re-
                  mits and scientific research permits and authorize the issuance of per-                                                                           quire the preparation of several conservation plans and studies. To
                  mits for enhancing the survival or recovery of a species or stock.                                                                                fund these activities and others under the MMPA, the bill would
                                                                                                                                                                    authorize appropriations to the Department of Commerce, the Depart-
                                           FISHERMEN'S PROTECTIVE ACT OF 1967                                                                                       ment of the Interior, and the Marine Mammal Commission. S. 2810
                                                                                                                                                                    would also authorize appropriations to the Secretary of Commerce for
                      The bill would broaden the embargo authority under the Pelly                                                                                  trust funds established for the Pribilof Islands.
                  Amendment to include any product from a certified nation.                                                                                             5. Estimated cost to the Federal Government:








                                                                   14                                                                                                                                       15
                                                  [By fl;cal year, In mililons of dollars]                                                                                                      ECONOMIC IMPACT
                                                                     1989       1990         1991         1992        1993                                    The Departments of Commerce and the Interior, and the Marine
                Authorization level    . . . . . . . . . . . . . . . . . .22.3  30.5         25.7         26.4         27.1                               Mammal Commission, will incur some costs in fulfilling Federal re-
                Estimated outlays  .....................              MS        27.2         24.3         25.6         26.4                               sponsibilities required under this legislation. The funding necessary to
                                                                                                                                                          carry out these responsibilities should be modest and is not expected
                                                                                                                                                          to have an inflationary impact on the Nation's economy. A portion of
                    The costs of this bill fall within budget                    function 300.                                                            these funds will be incurred in the administration of exemptions and
                    Basis of Estimate: This estimate assumes that the                                 full amounts                                        may be recovered through the charging of fees to vessel owners. A
                authorized would be appropriated for each fiscal year. The estimated                                                                      modest sum of money is also authorized for funding the Pribilof Is-
                outlays are based on historical spending patterns.                                                                                        land Trust Funds.
                    Based on information provided by the National Oceanic and At-                                                                                                                       PRIVACY
                mospheric Administration (NOAA), CBO estimates that the exemption
                process required by Section 2 would cost about $1 million a year.                                                                             This legislation will not have any adverse impact on the personal
                Fees authorized by the bill would cover these costs, and these activi-                                                                    privacy of the individuals involved.
                ties therefore would have no net effect on the federal budget.
                    6. Estimated cosi to State and local governments: None.                                                                                                                          PAPERWORK
                    7. Estimate comparison: None.
                    8. Previous CBO estimate: On September 23, 1988, CBO prepared                                                                             Some additional paperwork will be required from the commercial
                a   cost estimate for H.R. 4189, the Marine Mammal Protection Act                                                                         fishing industry in order to comply with the registration, exemption,
                Amendments, as ordered reported by the House Committee on Mer-                                                                            and reporting requirements outlined in this legislation. Similar paper-
                chant and Fisheries. The estimated cost of S. 2810 is greater than                                                                        work is already required for some existing fisheries programs and the
                that of H.R. 4189, because it includes an authorization for Pribilof                                                                      legislation requires coordination and integration with such programs
                Islands trust funds, which was not in the House bill.                                                                                     to reduce unnecessary duplication. Therefore, the resulting increase in
                    9. Estimate prepared by: Michael Sieverts.                                                                                            paperwork should be minimized.
                    10. Estimate approved by- James L. Blum, Assistant Director for
                Budget Analysis.                                                                                                                                                         SECTION-BY-SECTIoN ANALysis
                                             REGULATORY IMPACT STATEMENT                                                                                                                    SECTION I.-SHORT TITLE
                    In accordance with paragraph 11(b) of rule XXVI of the Standing                                                                           This section provides the short title, the "Marine Mammal Protec-
                Rules of the Senate, the Committee provides the following evaluation                                                                      tion Act Amendments of 1988".
                of the regulatory impact of the legislation, as reported.                                                                                       SECTION 2.-INTERIM EXEMPTION FOR COMMERCIAL FISHERIES
                                    NUMBER AND TYPE OF PERSONS REGULATED                                                                                      This section establishes a new section 114 of the MMPA to pro-
                    Regulations to implement section 2 of this bill, which provides in-                                                                   vide an interim exemption for commercial fisheries other than the yel-
                terim exemptions for commercial fisheries, would apply to owners,                                                                         lowfin tuna fishery in the ETP. This new section supersedes, until
                operators, and crew members of U.S. fishing vessels and of foreign                                                                        October 1, 1993, the permit requirements and incidental taking prohi-
                vessels with valid fishing permits issued under the Magnuson Fishery                                                                      bitions of the Act that would otherwise be applicable.
                Conservation and Management Act. The status review and conserva-                                                                              Subsection (a) of new section 114 specifies that the new section
                tion plan process established under section 3 would only affect indi-                                                                     114 will take effect immediately on the date of enactment of this
                viduals who take marine mammal species or stocks covered by these                                                                         legislation and will remain in effect until October 1, 1993. During
                reviews and plans. Regulations issued under section 4 concerning the                                                                      that time period, this section, rather than sections 101, 103, and 104
                taking of porpoise in the tuna fishery would apply to: owners, opera-                                                                     of the MMPA, would govern the incidental taking of marine mammals
                tors, and crew members of U.S. tuna purse seine vessels fishing for                                                                       by commercial fishermen other than tuna fishermen. The Committee
                yellowfin tuna in the ETP; foreign vessels desiring to market yellow-                                                                     intends that the new section 114 be the sole basis for authorizing,
                fin tuna from the ETP in the United States; and intermediate nations                                                                      regulating, and penalizing incidental taking in the course of commer-
                from which yellowfin tuna is exported to the United States. Regula-                                                                       cial fishing operations, and that no new permits or other authoriza-
                tions issued under section 5 would pertain to individuals and institu-                                                                    tions shall be granted under section 101(a)(4) or 104 for incidental
                tions involved in scientific research and public display of marine                                                                        taking by fishermen during the interim period. The subsection also
                mammals. Finally, the amendments to the Fishermen's Protective Act                                                                        provides that this interim system would be available only to persons
                contained in section 7 would affect persons involved in the importa-                                                                      using vessels of the United States and vessels which have valid fish-
                tion of goods from countries certified under the Act.                                                                                     ing permits issued under section 204(b) of the Magnuson Fishery
                                                                                                                                                          Conservation and Management Act.








                                              16                                                                                             17

              The Committee is aware of the decision in Kokechik Fishermen's                                Paragraph (1)(A)(iii) of Subsection (b) covers those fisheries in
           Association v. Secretary of Commerce, which is pending before the                              which the incidental taking of marine mammals is an exceptional
           Supreme Court on a petition for certiorari. The Committee does not                             event for any individual fishermen. The Committee expects that fish-
           intend that this section affect the result of that litigation, as it ap-                       eries such as the shrimp trawl fishery and menhaden purse seine fish-
           plies to the Japanese salmon driftnet fleet. It is the intention of the                        ery in the Atlantic Ocean and Gulf of Mexico, where hundreds of
           Committee that the provisions of the new section 114 not be made                               thousands or millions of individual sets or tows may result in a small
           available to that fleet because the litigation is still pending and be-                        total mortality of animals annually, would be included in this cate-
           cause of continuing uncertainties and concerns about the extent to                             gory. Other fisheries should be included in the appropriate categories
           which its operations outside the U.S. EEZ affect marine mammals and                            based on available data and after opportunity for public comment.
           other living marine resources.                                                                   Exemptions will be granted by the Secretary upon receipt of com-
              During the exemption period, the immediate goal of the Act will                             pleted registrations from the vessel owners and, if reporting require-
           continue to*be the reduction of the incidental kill or serious injury of                       ments and other conditions of the exemption are met, will be reissued
           marine mammals in the course of commercial fishing operations to                               in subsequent years. These exemptions, except where restricted by
           insignificant levels approaching a zero mortality and serious injury                           other provisions of this section, shall authorize the incidental taking
           rate. The Committee anticipates that progress toward this goal can be                          of marine mammals, including those listed as depleted, in the course
           achieved through, among other things, education programs and the de-                           of commercial fishing operations. However, the taking of California
           velopment of alternative fishing gear and techniques. The Committee                            sea otters is not provided for by the interim exemption. In this re-
           commends and supports the commitment by representatives of com-                                gard, the Committee intends that the provisions of this section do not
           mercial fishing organizations to undertake and fund a special research                         supersede, or otherwise affect, any provisions of the Endangered Spe-
           program on gear technology and fishing practices, and to educate and                           cics Act or section I of P.L. 99-625, which established a California
           inform fishermen of their rights and responsibilities under the MMPA.                          sea otter translocation and zonal management program designed to
           The Committee also would encourage the ongoing cooperation and                                 bring about their recovery. Purthermorc, no intentional lethal taking
           consensus among commercial fishermen and the environmental com-                                of Steller sea lions or any cetacean, or any marine mammal from a
           munity to assist in effectively implementing the interim system.                               depleted stock, is permitted. The intentional lethal taking of other ma-
              Subsection (b) of new Section 114 identifies the types of fisheries                         rine mammals is exempted only when such taking is necessary to pro-
           that will be subject to observer and reporting requirements, estab-                            tect gear, catch, or human life, consistent with the provisions of
           lishes a vessel registration system, and provides for penalties under                          current regulations, e.g. 50 CPR 216.24(d)(1) (ii) and (iii).
           the MMPA for failure to comply with registration and reporting re-                               This subsection also makes clear that fishermen have a 240-day
           quirements. Vessel owners must comply with the registration and re-                            grace period available to them in order to allow time for the Secrc-
           porting requirements set by the Secretary in each category to engage                           tary to establish the categories mentioned above and put in place the
           lawfully in a particular fishery. Failure to do so will be a violation                         registration and reporting system. The intention of the Committee is
           subject to the penalties of the Act. This subsection also provides the                         that the owner of a vessel eligible for an exemption under this sub-
           Secretary with authority to charge fees to cover the administrative                            section, as well as the master and crew, will not be subject to the
           costs of operating the exemption and reporting system. The Commit-                             penalties for incidentally taking marine mammals (other than Califor-
           tee intends that the term "incidental taking", as used in this section,                        nia sea otters) during the 240-day period following the passage of
           should be considered to mean the entanglement, serious injury, or                              this reported bill.
           death of a marine mammal in the course of normal fishing operations.                             In addition to the grace period, the Committee intends that before
              The Secretary is required to compile three lists of fisheries, based                        January 1, 1990, only a knowing violation of the requirements in
           on the frequency of incidental taking of marine mammals by vessels                             paragraph (3)(C) of this subsection will subject a fisherman to a pen-
           in those fisheries. It is the Committee's intent that these lists be com-                      alty. The Committee would not consider a knowing violation to in-
           piled with the maximum amount of public participation given the time                           clude failure on the part of a fisherman to obtain an exemption
           periods involved. Further, the Committee recognizes that for the first                         because he was involved in a fishery the start of which occurred be-
           year that this section is in effect, the Secretary may not have time to                        fore the Secretary could make available appropriate exemption forms
           conduct adequate research to determine which fisheries should be in-                           and decals or, because of the remote location of the fishery, the fish-
           cluded in each list. Therefore, the Committee intends that the list                            erman had no way of knowing of the requirements imposed on him or
           compiled under paragraph (1)(A)(i) of 'this subsection at a minimum                            was unable to obtain the appropriate forms. Vessel owners should ap-
           include the following fisheries: Bering Sea and Gulf of Alaska                                 ply for an exemption to cover each fishery in which they intend to
           groundfish trawl fisheries; Prince William Sound/Copper River salmon                           engage.
           set and drift gillnet fisheries; Unimak Pass and False Pass purse seine                          Paragraph (3)(E) of subsection (b) exempts vessel owners whose
           and salmon drift gillnet fisheries; Columbia River salmon drift gillnet                        vessels are engaged in fisheries identified in paragraph (1)(A)(iii) of
           fisheries; and Washington/Oregon thresher shark drift gillnet fishery.                         this subsection from penalties for incidental taking if such taking
                                                                                                          is reported. The Committee expects vessel owners in all categories








                                                 18                                                                                                   19

           to make all reasonable efforts to release animals unharmed. In addition,                                Subsection (e)(4) ensures that observers placed on vessels pursuant
           the Committee does not anticipate that fishermen who are engaged in                                  to this section can be utilized to collect data relevant to the manage-
           category (iii) fisheries would often find themselves in a situation requir-                          ment of marine resources other than marine mammals. At the request
           ing intentional lethal take to protect their gear, catch, or lives. The occur-                       of a Regional Fishery Management Council, state agency in the case
           rence of such lethal takings would strongly suggest that the fishery                                 of a fishery conducted in state waters, or the Secretary of the Interior
           should be reviewed and assigned to another category.                                                 regarding seabirds, the Secretary must require the observers to collect
              Finally, paragraph (5)(C) of subsection (b) authorizes the Secretary                              additional information on target and non-target species, including
           to charge a fee to cover the administrative costs of granting an ex-                                 quantity, type, and physical condition.
           emption. The amount of any fee should not exceed reasonable admin-                                      Following public notice and opportunity for comment, if the Secre-
           istrative costs. Revenues recovered under this provision may not be                                  tary finds that the requested information will not contribute to the
           used to offset the cost of an observer program, data management sys-                                 protection of marine mammals, or the overall understanding of the
           tem, research, or any other authorized activity.                                                     marine ecosystem including fishery resources and seabirds, a request
              Subsection (c) of new section 114 imposes reporting requirements                                  under paragraph (4) of subsection (e) may be declined. This provision
           on fishermen holding exemptions issued under subsection (b) and                                      ensures that the Secretary retains discretionary authority with respect
           specifies the information that a vessel owner must compile and sub-                                  to fishery management. The Committee finds that it is appropriate in
           mit to the Secretary. The Committee intends the process to be simple                                 this specific instance to require that the exercise of Secretarial discre-
           and time-sensitive, using, for example, existing logbook recording                                   tion be contingent on the finding described above, because such a
           mechanisms. Such reports should include any information on marine                                    requirement is consistent with the goals of this legislation and the
           mammals released unharmed from fishing gear, marine mammal sight-                                    MMPA to improve understanding and protection of marine resources.
           ings, and any physical contact and intentional harassment such as use                                   The Committee recognizes that situations may arise in which de-
           of acoustic pest control devices. The Committee expects the Secretary                                ployment of an observer is not possible or practicable. Paragraph (6)
           to regularly compile, analyze, and make all feasible and appropriate                                 of subsection (c) provides conditions under which observer require-
           use of these reports.                                                                                ments may be waived for a vessel. First, the requirements may be
              Subsection (d) of new section 114 requires the Secretary to estab-                                waived in the case of a vessel which delivers fish directly to a float-
           lish a program to enhance and verify the quality of information in                                   ing processor without bringing the fish on board, if reliable informa-
     00    reports received from fishermen. The enhancement program should in-                                  tion on marine mammal interactions may be obtained from an
           clude education regarding the relevant statutes and regulations, possi-                              observer stationed on the processor rather than on the catcher vessel.
           ble penalties for non-compliance, and the purposes behind the                                        This is particularly likely for joint ventures in which the foreign
           applicable laws, as well as a clear explanation of the reporting re-                                 processing vessel already has an observer on board under the provi-
           quirements. The Secretary is expected to work with fishery organiza-                                 sions of other law. However, an observer on board a processor must
           tions and the Marine Advisory Program to accomplish this goal.                                       be able to assess incidental taking of marine mammals in the fishery.
              Subsection (e) of new section 114 establishes and authorizes funds                                If an accurate assessment cannot be made, then observers must be
           for an observer program to conduct onboard data-gathering activities                                 deployed on the harvesting vessel. Nothing in this section should be
           on vessels engaged in those fisheries with a frequent incidental taking                              construed to prevent the Secretary from placing observers on fishing
           of marine mammals. Observers are to be deployed so that no less                                      vessels that deliver to a floating processor, should the Secretary de-
           than 20 percent nor more than 35 percent of the effort in a given                                    sire to do so to enhance the collection of natural resource data.
           fishery is observed during the course of a fishing season. The Secre-                                   An exception to the observer placement requirement also is pro-
           tary is provided with flexibility in establishing levels of observer                                 vided if the facilities for quartering an observer are inadequate or
           coverage within that range to ensure a statistically reliable sample of                              unsafe. On many small vessels, most of the available space is used
           the level of incidental taking in a fishery. However, it is anticipated                              for the gear and catch, and there may be no area of the vessel avail-
           that the higher coverage levels will be provided in response to identi-                              able in which to quarter or place an observer. Under such circum-
           fied problems which require additional information. The Committee                                    stances, an alternative observer program may be used. Similarly, the
           notes that representatives of the commercial fishing industry from the                               Committee does not intend to require a vessel with limited space to
           Pacific Northwest and Alaska and representatives of environmental or-                                take an observer if such placement would preclude safe operation of
           ganizations jointly agreed that the trawl fisheries of the Bering Sea                                the vessel and gear, or require replacement of a crewmember. How-
           and the Gulf of Alaska that are listed under subsection (b)(1)(A)(i)                                 ever, the Secretary may require the owner to make reasonable im-
           should be covered by 24 observers during each of the first two years                                 provements to allow future placement of observers.
           that the observer program is in effect.                                                                 Finally, the Committee recognizes that the Secretary may not be
              In distributing observers among fisheries and among vessels within                                able to employ, or contract for, sufficient personnel to fully staff
           a fishery, the Secretary is to be guided by specific standards listed in                             the observer program, or that funds may not be appropriated to
           paragraph (2) of subsection (c) to ensure fair and equitable treatment.                              cover the full cost of an observer program. These events are be-
                                                                                                                yond the control of the Secretary. In such circumstances, paragraph (3)



                          limit     I     I   go         11 1 1    1    11    r    I                                                  I                              '%                    I








                                                 20                                                                                                   21

            of subsection (c) lists priorities that should be met in allocating the lim-                        ies that may be affected and the availability of existing technology to
            ited resources of the Secretary.                                                                    resolve emergency problems. In requiring such considerations, the Com-
               Paragraph (7) of subsection (e) stipulates that vessel owners shall                              mittee does not intend to modify the results of the decision in Committee
            not be subject to a civil action for injuries on board a vessel with                                for Humane Legislation v. Richardson, which established that the pri-
            two exceptions: an observer may bring a civil action against an                                     mary purpose of the Act is to protect marine mammals, and that eco-
            owner for the owner's willful misconduct; and the exemption from                                    nomic considerations are not dispositive. Emergency restrictions may
            liability does not apply if the observer is formally engaged by the                                 include, but are not limited to, restriction on: the number of marine mam-
            owner to perform duties on board the vessel of the sort that would                                  mals that may be taken; the season or other period of time when marine
            normally be performed by a crewmember. The term "engaged" is used                                   mammals may be taken; the manner and location in which marine mam-
            in the sense that a formal contract or an exchange of money or other                                mals may be taken; and the use of fishing techniques which are found to
            consideration is involved. Thus, an observer who voluntarily provides                               cause undue fatalities to any species of marine mammals.
            minimal assistance in the operation of a vessel, such as by handling a                                 In addition, a situation may arise in which a large number of Stel-
            line or cooking a meal, will not be considered to be engaged unless                                 ler sea lions or northern fur seals are lethally taken by a fishery
            he is paid or employed to do so. This paragraph also applies the                                    occurring early in the year, thereby potentially preventing other fish-
            limitation on liability to owners of tuna vessels required to carry ob-                             eries which occur later in the year from operating. If such a situation
            servers under section 104 of the Act.                                                               occurs, the Committee anticipates that the Secretary would work with
               Finally, the observer program requirements provided in subsection                                the North Pacific Fishery Management Council, the State of Alaska,
            (e) are independent of the requirements for observer coverage man-                                  and affected fishermen to develop a system of allocating lethal takes
            dated by other Federal or State laws or regulations, and are not in-                                among fisheries. Such a system shall not be used to accomplish other
            tended to supersede, or in any way limit, such other requirements.                                  fishery management or social or economic objectives, nor shall it re-
            Thus, for example, the requirement for 100 percent observer coverage                                lieve the Secretary of the legal obligation to protect marine mammals
            on foreign fishing vessels under subsection 201(i) of the Magnuson                                  as required by the Act.
            Fishery Conservation and Management Act is not altered by the re-                                      This subsection also gives the Secretary general authority to im-
            quirements of this subsection. At the same time, if the Secretary can                               pose conditions and restrictions on exemptions granted to vessel own-
            effectively utilize observers deployed under other authorities to meet                              ers, including operational or gear restrictions of the type outlined
            the provisions of this subsection, then the Secretary should do so.                                 under the Secretary's emergency authority. In addition, the Secretary
            The Secretary may, with the consent of the vessel owner, place an                                   is required to impose such restrictions in cases where a Regional
            observer on board vessels in a fishery where observer coverage is not                               Fishery Management Council or a State has not taken action neces-
            required by this section.                                                                           sary to mitigate adverse impacts of a fishery on a marine mammal
               Subsection (f) of new section 114 requires the Secretary to estab-                               species or stock. The Secretary should consult to the fullest extent
            lish an alternative observer program for those fisheries where ob-                                  practicable with Councils and States on the nature of such conditions
            server coverage is required but where deployment of observers on                                    or restrictions.
            board fishing vessels in sufficient numbers to meet the 20 percent                                     Subsection (h) of new section 114 requires the Secretary to design
            minimum requirement cannot be accomplished. An example of a fish-                                   and implement an information management system capable of analyz-
            ery in which the alternative program would be appropriate is the                                    ing and processing information on incidental taking of marine mam-
            Alaskan salmon gillnet fisheries, which, by law, have boats too small                               mals. In developing such a system, the Committee anticipates that the
            to carry observers. The alternative observer program may include di-                                Secretary will make cost-effective use of available NOAA capabili-
            rect observation of fishing operations from other vessels, airplanes, or                            ties, including the environmental data management expertise and fa-
            points on shore. The alternative program may also be used for fisher-                               cilities of the National Environmental Satellite       Data and Information
            ies where observer coverage is not required but where the use of                                    Service, as well as existing regional information      management systems.
            alternative observation methods would provide the Secretary with                                       Subsection (i) of new section 114 grants the        Secretary authority to
            valuable marine mammal data.                                                                        contract for services and recognizes that some         States, Federal agen-
               Subsection (g) of new section 114 provides the Secretary with                                    cies, and private organizations already have related programs in
            emergency authority to impose conditions and restrictions on exemp-                                 place. The Secretary is required to make use of        these programs where
            tions issued to fishermen if a fishery is having an immediate and                                   possible and appropriate. Use of existing programs, to the extent
            significant adverse impact on marine mammal populations, or if more                                 practicable, should encourage cooperation among State and Federal re-
            than 1,350 Steller sea lions or 50 northern fur seals will be taken                                 source managers and is expected to minimize the cost of implement-
            in a year by all fisheries combined. The Secretary's emergency                                      ing the reported bill. In addition, the Committee recognizes that a
            authority should be used only when no alternative is available and                                  program is in place to collect and compile observer data from foreign
            the Secretary should consult to the maximum extent practicable                                      fishing vessels. If practicable, the Secretary should expand on this
            with appropriate Regional Fishery Management Councils and State                                     program in carrying out the requirements of subsection (e).
            fishery managers before taking such action. Any action taken
            should minimize interference with existing fishery management
            programs and should take into account the economics of the fisher-








                                               22                                                                                                23
              Subsection 0) of new Section 114 imposes restrictions on releasing                                Section (m) of new Section 114 stipulates that the Secretary of
           confidential or proprietary business information to the public. If the                            Commerce is required to consult with, and give due deference to rec-
           Secretary enters into a contract or other agreement to collect or ana-                            ommendations by, the Secretary of the Interior before taking action or
           lyze data submitted by observers or obtained from reports, the con-                               making determinations on any activities authorized under this section
           tractor or other entity should be considered a Federal employee who                               which affect species or population stocks of marine mammals for
           is entitled to receive the data in raw form, and who is bound by the                              which the Secretary of the Interior is responsible under the MMPA.
           other restrictions on public release of data in this subsection. Further,                            The term "Secretary" under subsection (o)(2) of new section 114
           the Committee understands that requests for data have been submitted                              has been defined to mean the Secretary of Commerce for the sake of
           to the Secretary under other authorities and those requests have been                             administering the interim exemption for commercial fisheries. The
           denied because the Secretary did not wish to provide data in the form                             Committee recognizes, however, that the Secretary of the Interior has
           requested, even though release of the data would not have violated                                responsibility for administering the Act with respect to species such
           confidentiality provisions. The data collected under this section                                 as sea otters. Although responsibility for implementing the interim ex-
           should be made available to the public, in the form requested if pos-                             emption is vested in the Department of Commerce, the committee is
           sible, as long as the identity of any person or business is not dis-                              cognizant that the Department of the Interior must have a role in
           closed.                                                                                           making decisions which will affect species under its jurisdiction. Con-
              Subsection (k) of new Section 114 requires the Secretary to issue                              sultations are particularly important with respect to the issuance of
           appropriate regulations to carry out the purposes of this section. As                             regulations to mitigate adverse impacts, and the development of
           is generally provided for in the Act, the Committee expects that the                              guidelines to govern incidental take after the exemption period.
           Secretary will consult with the Marine Mammal Commission regard-                                  Should the Secretary of the Interior determine that the incidental tak-
           ing such regulations and the Secretary of the Interior where appropri-                            ing of marine mammals in a fishery is having an adverse impact on
           ate.                                                                                              species under its jurisdiction, the Secretary of the Interior is expected
              Subsection (1) of new Section 114 requires development of recom-                               to initiate consultation with the Secretary of Commerce and to work
           mendations, based on scientific information, public participation, and                            with the Secretary of Commerce in determining appropriate measures
           government evaluation, for establishing a long-term system to govern                              to reduce such adverse impact. The Committee suggests that a Memo-
           the incidental taking of marine mammals in the course of commercial                               randum of Understanding between the Department of Commerce and
           fishing after October 1, 1993.                                                                    the Department of the Interior may be helpful in defining procedures
              By February 1, 1990, the Chairman of the Marine Mammal Com-                                    and timetables for implementing this section.
           mission is required to transmit to the Secretary and make available to                               Subsection (n) of new Section 114 clarifies that the owners of
           the public recommended guidelines for such a system. The purpose of                               fixed fishing gear such as fish weirs or beach seines will be consid-
           the guidelines is to provide a scientific rationale for determining the                           ered vessel owners for the purposes of this section, and thus will be
           number of marine mammals which may be taken in fishing opera-                                     subject to the same requirements and restrictions as any other vessel
           tions, based on the best biological information available. The guide-                             owner.
           lines must embody sound principles of wildlife management and may                                    Subsection (o) of new section 114 provides definitions for terms
           only be issued after full consultation with all interested parties, in-                           used in the section.
           cluding but not limited to those individuals and groups interested in                                Finally, section 2(b) of this legislation amends section 102(a) of
           the conservation of marine mammals and those involved in all seg-                                 the MMPA to make it clear that persons in compliance with new sec-
           ments of the U.S. commercial fishing industry.                                                    tion 114 are not in violation of the prohibition on taking in section
              No later than February 1. 1991, the Secretary shall publish in the                             102.
           Federal Register for public comment a suggested regime that, if
           authorized by further action of the Congress, would govern the inci-                                                    SECTION 3-STATUS REVIEW
           dental taking of marine mammals by commercial fishermen. The Com-                                    This section adds   a new section 115 and provides specific timeta-
           mittee expects publication to be preceded by extensive consultation
           with all interested parties, including all segments of the U.S. commer-                           bles and procedures    for the Secretary to follow in conducting status
           cial fishing industry and especially the Secretary of the Interior in                             reviews and preparing conservation plans for marine mammals. Sub-
           regard to those species under the jurisdiction of that Secretary. In                              section (a) of new section 115 directs the Secretary, in determining
           determining permissible levels of take, the Secretary should consider                             the status of any marine mammal stock or species, to follow a pre-
           the economic and social, as well as the biological impacts, of the                                scribed series of steps designed to ensure early and adequate public
           proposed regime.                                                                                  notice, comment, and participation in the status review process.
              After reviewing public comments and consulting with the Marine                                    Subsection (b) of new section 115 directs the Secretary to prepare
           Mammal Commission on any scientific aspects of the suggested re-                                  conservation plans for North Pacific fur seals and Steller sea lions by
           gime, but in any event not later than January 1. 1992, the Secretary                              specific dates and as soon as possible for other depleted species.
           shall submit his recommendations to Congress.







                                                  24                                                                                                      25

             The Secretary is encouraged to prepare and to begin implementing such                                 the total number of marine mammals taken by its vessels in any year.
             plans before those deadlines to the extent possible. The Secretary is fur-                            The fishing operations of a foreign nation's vessels must be monitored, to
             ther encouraged to establish priorities for preparing conservation plans for                          the same extent as U.S. vessels, by an observer program of the IATTC or
             depleted species other than Steller sea lions and North Pacific fur seals                             an equivalent international program unless the Secretary determines that
             and to publish a schedule for the preparation of such plans. Although not                             an alternative program will provide sufficiently reliable documentary evi-
             specifically required, the Secretary may prepare conservation plans for                               dence. Finally, the harvesting nation must comply with all reasonable re-
             other species that may benefit from   such plans.                                                     quests by the Secretary for cooperation in scientific research.
               The Secretary of the Interior is also charged with preparing conser-                                    While the Committee is disappointed that the interim final regula-
             vation plans for depleted species under that department's jurisdiction.                               tions implementing the 1984 comparability amendments to the Act
             Since recovery plans are already in place for the manatee and the                                     were issued only recently, it expects that these new amendments will
             California sea otter, the Secretary may wish to consider whether non-                                 be incorporated into the final regulations immediately. Recognizing
             depleted species would benefit from the preparation of conservation                                   that the foreign fleets harvest 60 percent of the yellowfin tuna in the
             plans.                                                                                                ETP but kill 80 percent of the porpoise, the Committee intends these
               Conservation plans will be modelled on recovery plans developed                                     new requirements to reduce the foreign take of marine mammals,
             under the Endangered Species Act and will have the purpose of con-                                    similar to those reductions made by the U.S. fleet.
             serving and restoring species or stocks to optimum sustainable popu-                                      Subsection (a) also directs the Secretary to initiate embargo pro-
             lation levels. Among other things, conservation plans should include:                                 ceedings against any intermediary nation wishing to export yellowfin
             (1) an assessment of the status of the species or stock and its essen-                                tuna to the United States if that nation does not prohibit, within 60
             tial habitat; (2) a description of the nature, magnitude, and causes of                               days of the effective date of an embargo by the United States, the
             any population declines or loss of essential habitat; (3) an assessment                               importation of yellowfin tuna into its own country from those nations
             of existing and possible threats to the species and its habitat; (4) a                                embargoed by the United States. The Committee strongly supports
             discussion of critical information gaps; (5) a description and discus-                                this provision in order to prevent embargoed nations from circumvent-
             sion of research and management that could be undertaken to meet                                      ing U.S. restrictions, thereby weakening the effectiveness of U.S. law.
             the objectives of the plan; and (6) a schedule for implementing the                                   If the United States embargoes yellowfin tuna and tuna products from
             research and management actions identified in the plan.                                               any nation, the Committee expects that all yellowfin tuna products
                                                                                                                   exported from that nation, including canned tuna containing any yel-
                       SECTION 4.-TAKING OF PORPOISE IN TUNA FISHERY                                               lowfin, whether caught in the ETP or not, will be embargoed. If a
               Section 4 adds a number of provisions to the MMPA for the spe-                                      third nation does not embargo the same products, they will not have
             cific purpose of reducing the mortality of porpoise in the course of                                  access to the U.S. market for those products.
             fishing for yellowfin tuna in the ETP.                                                                    Finally, subsection (a) requires the Secretary, within six months
               Subsection (a) adds additional requirements to and clarifies what                                   after any embargo of yellowfin tuna, to certify such fact to the Presi-
             the Secretary must consider when making a finding as to whether a                                     dent. This certification will then allow the President to ban any type
             foreign nation is taking measures comparable to those of the United                                   of fish and fish product from the embargoes nation, under the current
             States in reducing the take of porpoise. The Secretary shall not find                                 provisions of the Pelly Amendment to the Fishermen's Protective Act
             that a foreign nation is comparable unless it has met the standards set                               of 1967, and to ban the importation of any product under the terms
             forth in this subsection in addition to the requirements already im-                                  of the Pelly Amendment as it is amended by section 8 of the reported
             posed by section 101(a)(2) of the MMPA and implementing regula-                                       bill.
             tions. The harvesting nation's regulatory program must include, by no                                     Subsection (b) directs the Secretary, through the Secretary of State,
             later than the beginning of the 1990 fishing season, the same prohibi-                                to initiate negotiations with foreign nations, for the purpose of pro-
             tions that are made applicable to U.S. vessels. The delay in effective                                tecting marine mammals. New subsection 108(a)(2)(A) of the MMPA
             date until the beginning of the 1990 season is designed to provide the                                is essentially the same as current section 108(a)(2), while paragraph
             foreign nation with sufficient lead time to implement those new pro-                                  (B) is a new provision. For those nations whose vessels harvest yel-
             hibitions of which it has not had previous notice. It is not intended                                 lowfin tuna in the ETP, the Secretary is directed to work through the
             to relieve the foreign government of the need to include in its regula-                               IATTC or a similar international organization, to develop agreements
             tory program those prohibitions of which it has been given notice                                     on cooperative research into alternative fishing methods and popula-
             through the interim final regulations. The average kill rate of its fleet                             tion studies, limitations on incidental take levels, and the use of the
             must be not more than two times the U.S. rate during the same period                                  best marine mammal safety techniques and equipment for the purpose
             of time by the end of 1989 and no more than 1.25 times the U.S. rate                                  of reducing mortality.
             by the end of 1990, and the percentage of eastern spinners and coastal                                    Subsection (c) directs the Secretary to include a description of the
             spotted dolphin must not exceed 15 percent and 2 percent, respectively, of                            results of these discussions in the annual report to Congress on the
                                                                                                                   MMPA.







                                               26                                                                                                27

              Subsection (d) amends the conditions under which the extension of                              the Secretary to identify those skippers or vessels having a continuing
           the general permit issued to the American Tunaboat Association is                                 incidental mortality rate that is above the fleet average. Those so idcnti-
           granted. Specifically, the Secretary is directed, by January 1, 1989, to                          fied would be subject to supplemental training and observation. A contin-
           promulgate regulations to ensure that the backdown procedure during                               ued, unacceptable high rate of porpoise mortality would warrant
           sets on porpoise is completed, and that rolling of the purse seine net                            suspension or revocation of the certificate of inclusion unless the certifi-
           to sack-up has begun no later than 30 minutes after sundown, thereby                              cate holder discharges the burden to show that it is not the result of a
           preventing the high porpoise mortality associated with sundown sets.                              lack of diligence and proficiency.
           The Committee expects that in implementing this provision, the Secre-                                This subsection also bans the use of any explosive devices, other
           tary may prohibit the net skiff from being deployed at a certain time                             than those classified as Class C Explosive Pest Control Devices, in
           before sundown in order to ensure that backdown is completed and                                  the course of tuna fishing subject to the general permit. The permissi-
           rolling has begun by 30 minutes after sundown. The Secretary may                                  ble explosive pest control devices, defined by regulations of the De-
           also require the use of certain gear, such as snap rings, to expedite                             partment of Transportation (49 CFR 173.100(ii)), may not contain
           fishing operations and minimize the impact on porpoise. It is the                                 more than 40 grains of explosive material. Moreover, the Secretary is
           Committee's intent that the Secretary ensure through such regulations                             required to prohibit or restrict the use of those devices defined above
           that tuna fishermen have completed those procedures necessary to re-                              by April 1, 1990, unless the Secretary finds that their use does not
           lease porpoise in the net before dark while allowing them to finish                               result in the physical impairment or increased mortality of porpoise.
           taking tuna out of the net thereafter.                                                               Subsection (d) also requires 100 percent observer coverage for all
              The Secretary is authorized to waive or modify the regulations so                              certificated yellowfin tuna vessels through 1991. After the 1991 fish-
           as to allow sundown sets under two circumstances. First, individual                               ing season, the Secretary may require a less extensive observer pro-
           skippers may be authorized to conduct operations that would other-                                gram, so long as it will provide sufficiently reliable information for
           wise be prohibited if they have demonstrated the consistent ability to                            the effective monitoring of porpoise mortality, as well as compliance
           prevent high mortality during sundown sets, based upon data that                                  with the provisions of the Act and implementing regulations.
           have been collected on observed trips. This waiver would be granted                                  Finally, this subsection requires the Secretary, in addition to his
           on a trip-by-trip basis for so long as that ability continues to be                               present responsibility to consult with the Marine Mammal Commis-
    FO     demonstrated. Second, the Secretary may grant such a waiver for the                               sion, to convene annual meetings with representatives from the con-
           entire fleet in the event that a breakthrough in techniques or equip-                             servation and scientific communities, as well as the tuna industry, to
           ment renders the prohibitions no longer necessary.                                                review the results of efforts to reduce porpoise mortality and develop
              Subsection (d) also authorizes the Secretary to grant a waiver of                              plans for further efforts relating to the domestic and foreign fleets.
           any terms or conditions of the general permit to a specific certificate                           Before April 1, 1992, the Secretary is required to submit to the Sen-
           holder for the purpose of conducting experimental fishing operations.                             ate Committee on Commerce, Science, and Transportation and the
           The Committee intends that these provisions be used to authorize test-                            House Merchant Marine and Fisheries Committee a comprehensive re-
           ing and development of new or alternative fishing gear and tech-                                  port on the results of the research programs, performance standards,
           niques that will reduce porpoise mortality.                                                       observer programs, prohibition on night fishing, development of alter-
              Subsection (d) also requires the Secretary, before the beginning of                            native fishing techniques, and other efforts. The Committee fully ex-
           the 1990 season, to develop and implement a system of performance                                 pects these efforts to result in a reduction of porpoise mortality
           standards for certificate holders. The purpose of this system is to al-                           throughout the international fleet. The report also is to include any
           low the Secretary to identify certificate holders whose incidental rate                           recommendations the Secretary considers necessary and desirable to
           of marine mammal mortality is consistently and substantially higher                               reduce further the porpoise mortality throughout that international
           than the average rate of the fleet. By identifying these skippers or                              fleet.
           vessels, the Secretary will be able to use his or her authority more                                 Subsection (e) directs the Secretary to request the National Acad-
           effectively to require training or improvements in vessel maintenance,                            emy of Sciences, through the issuance of a contract, to identify prom-
           or to suspend or revoke certificates.                                                             ising alternative tuna fishing techniques designed to reduce or
              The Committee is aware of the progress made by fishermen and                                   eliminate the incidental mortality of porpoise and, within one year,
           the efforts of the skippers' panel established under the general per-                             submit a research, development, and implementation plan on alterna-
           mit to minimize porpoise mortalities. However, testimony was re-                                  tive fishing techniques to the Congress. The Committee remains con-
           ceived that indicated the continuing and substantial differences in                               vinced that the ultimate solution to the tuna-porpoise issue depends
           mortality rates among various skippers and vessels. The perform-                                  upon the development and implementation of such techniques, and ex-
           ance standards are intended to assist the Secretary and the industry                              pects the Secretary and the Marine Mammal Commission to devote
           to narrow these differences. The terms "consistently and substan-                                 more vigorous efforts to the identification and development of such
           tially" arc used to make clear that the Committee does not intend                                 techniques.
           that a skipper who may have an excellent record but subsequently
           suffers one disaster set be identified as a poor performer.
           Rather, by using these terms or standards, the Committee expects







                                                28                                                                                                 29

               SECTION 5-SCIENTIFIC DISPLAY AND PUBLIC RESEARCH PERMITS                                        qualifying applicant. In addition, this paragraph requires that the Secre-
               Subsection (a) amends section 109(h) of the MMPA to allow the                                   tary determine, based on professionally recognized standards of the public
                                                                                                               display community, that the program is acceptable.
            importation of marine mammals into the United States for the purpose                                  Effective public display of marine mammals provides an opportu-
            of providing medical treatment not otherwise available to them in the                              nity to inform the public about the great aesthetic, recreational, and
            country of export. It also requires that marine mammals imported un-                               economic significance of marine mammals and their role in the ma-
            der such circumstances be returned to their natural habitat in those                               rine ecosystem. It is important, therefore, that public display facilities
            cases in which it is feasible. In determining whether it is feasible to                            educate the public about the life history, behavior, unusual sensory
            return an animal to the wild, the Secretary shall consult with the                                 capabilities, and other aspects of marine mammals through literature,
            attending veterinarian and curatorial staff of the institutions providing                          films, or other techniques in conjunction with display. The Committee
            the medical treatment, as well as such other experts as the Secretary                              recognizes the diversity of public display facilities and the methods
            considers appropriate. The Secretary shall also consider the likelihood                            available to them for public education. The Secretary should recog-
            of whether the animal will successfully readapt to life in the wild                                nize and foster this diversity. This section is not intended to deny the
            and the possibility that the animal may transmit a contagious disease                              Secretary flexibility or to require the Secretary to regulate the spe-
            to animals in the wild.                                                                            cific content of or methods used in education or conservation pro-
               Subsection (b) amends section 102(b) of the MMPA by creating an                                 grams.
            exception to the prohibition against the importation of marine mam-                                   Public display programs should be based on professionally recog-
            mals that were pregnant, nursing, or less than eight months old at the                             nized standards of the public display community, such as those of the
            time of taking, if the importation is necessary for the protection or                              American Association of Zoological Parks and Aquariums (AAZPA).
            welfare of the animal. The purpose of the subsection is to permit the                              AAZPA accredited facilities are permanent institutions which own and
            importation of young animals that have been orphaned or wounded, or                                maintain captive wild animals that represent more than a token collec-
            are sick, and could not survive in the wild.                                                       tion, are under the direction of a professional staff, provide their col-
               The Act currently prohibits the importation of such animals, even                               lections with appropriate care, and exhibit them in an aesthetic
            if the alternative is the death of the animal, and despite the fact that                           manner to the public on a regularly scheduled basis for the purposes
            in some instances, an adult animal of the same species could be im-                                of education, conservation, scientific studies, and recreation. Programs
     00     ported for public display. This dilemma has recently arisen in the                                 that approximate those of the AAZPA, or which the Secretary other-
            case of orphaned polar bear cubs from Canada. Canadian officials                                   wise finds acceptable, will meet the requirements of this section. The
            have found it necessary to remove nuisance adult polar bears that                                  Committee anticipates that programs based on the standards of other
            represent a threat to public safety. In some instances, the lethal re-                             public display professional organizations will be acceptable to the
            moval of a female bear results in a cub being orphaned, and Canada                                 Secretary as well. The Secretary's determination should be guided by
            does not have adequate facilities for the permanent care of captured                               the fact that it is not the intent of this legislation to prohibit the
            bears and cubs. This amendment would allow importation of these                                    display of marine mammals in zoos, aquaria, or amusement parks that
            marine mammals if all other conditions for a public display permit                                 comply with applicable regulations and standards. The Committee rec-
            are met. A permit could not be issued, for example, if the program                                 ognizes that the recreational experience is an important component of
            for taking marine mammals in the country of origin were not consis-                                public display and that public display has served a useful educational
            tent with the provisions and policies of the Act. Furthermore, all im-                             purpose, exposing tens of millions of people to marine mammals and
            portations of marine mammals, including those pursuant to this                                     thereby contributing to the awareness and commitment of the general
            section, are subject to the requirements of the Lacey Act and other                                public to protection of marine mammals and their environment.
            applicable law regarding humane and healthful transport of wild mam-                                  In addition, an applicant's facilities must be open to the public on
            mals and birds.                                                                                    a regularly scheduled basis. This is intended to mean regular and pre-
               Subsection (c) amends section 101(a) of the Act to include an                                   dictable hours so that access is reasonably convenient to the public.
            authorization for the issuance of permits to take and import marine                                A seasonal facility open to the public on a regularly scheduled basis
            mammals for    purposes of enhancing the survival or recovery of a spe-                            during its open season will meet this requirement.
            cies or stock.                                                                                        Finally, new paragraph (3) of section 104(c) of the MMPA pro-
               Subsection (d), in general, amends section 104(c) by modifying the                              vides that permits for scientific research may be issued only to an
            requirements for the issuance of public display and scientific research                            applicant conducting research to further a bona fide scientific pur-
            permits, and by establishing requirements for the issuance of permits                              pose that does not involve unnecessary duplication. The National
            for enhancing the survival or recovery of a species or stock.                                      Marine Fisheries Service regulations already use the term "bona
               New paragraph (2) of section 104(c) provides that to be eligible                                fide" as one of the criteria to be considered before issuing a scien-
            for a public display permit, an applicant must offer a program for                                 tific research permit (50 CFR 216.31(a)). The addition of this lan-
            education or conservation purposes as a component of its overall                                   guage is not intended to substantively change the criteria for
            program. It is clear, however, that the education or conservation                                  granting scientific permits, and is merely codifying the regulations.
            program need not be the sole or primary purpose or program of a







                                                 30                                                                                                   31

            The Committee expects the Secretary of the Interior to use a similar                                 and does not intend this section to disrupt or unduly modify existing
            standard in implementing this section.                                                               study plans.
               Research permits may not be issued for unnecessary duplication of
            research. This is to ensure that permits are not issued for numerous,                                SECTION 8.-AMENDMENTS To FISHERMEN'S PROTECTIVE ACT OF 1967
            duplicative requests for takings of marine mammals if the research is                                  This section amends section 8(a)(4) of the Fishermen's Protective
            not expected to enhance the body of scientific knowledge. Unneces-
            sary duplication is not synonymous with replication. The repetition of                               Act by deleting the word "fish" and inserting the word "any" in its
            an experiment or procedure to confirm or test the results of the re-                                 place. In addition, the definition of "fish products" is deleted in sec-
            search is recognized as fundamental and crucial to science. Section                                  tion 8(h) because it is no longer needed in light of the deletion of
            205 of the MMPA already directs the Marine Mammal Commission to                                      "fish" from section 8(a)(4).
            take every feasible step to avoid duplication of research. This subsec-                                The result of these amendments is to provide the President with a
            tion clarifies the application of this standard to scientific research                               wider range of options from which to choose sanctions that may be
            permits.                                                                                             warranted against a foreign nation that diminishes the effectiveness of
               In the case of scientific research that would involve the killing of                              an international fishery conservation program. The President is
            marine mammals, permits may only be issued if it is determined that                                  authorized to embargo any product, rather than only fish products,
            the research cannot reasonably be done using alternative, nonlethal                                  from a certified nation. The decision by the President as to whether
            techniques. The Committee encourages the development of such tech-                                   to embargo any product, however, would remain entirely discretion-
            niques. Further, in the case of lethal research involving depleted ma-                               ary, and any embargo would still have to be consistent with the Gen-
            rine mammals, the research must either fulfill a critically important                                eral Agreement on Tariffs and Trade.
            research need or directly benefit the affected species or population                                   The Committee expects that the expanded range of discretionary
            stock.                                                                                               sanctions provided by this section will encourage foreign governments
               New paragraph (4) of section 104(c) provides that the Secretary                                   to consult and consider their decisions more carefully before proceed-
            may issue a permit for enhancing the survival or recovery of a spe-                                  ing with actions that diminish the effectiveness of international fish-
            cies or stock only if the Secretary determines that the taking or im-                                ery conservation programs. The goal is not to sanction nations, but to
     ;'o    portation is likely to contribute significantly to the survival of the                               encourage cooperation and compliance with such programs so that
            species, and is consistent with any applicable conservation or recov-                                sanctions are not necessary.
            ery plan. If no recovery or conservation plan exists, the Secretary is                                 The need for more effective international efforts to secure the pro-
            required to evaluate the proposal on the basis of the factors that                                   tection of whales, porpoise, and other fishery resources is increas-
            would be addressed in such plan.                                                                     ingly evident. The objective of this section is to contribute to the
               The amendment allows for captive maintenance of depleted species                                  success of those efforts.
            if the Secretary first makes a number of determinations. Also, the                                                  SECTION 9.-PRIBILOF ISLAND TRUST FUNDS
            Secretary may allow the public display of such marine mammals only
            he or she determines that the display is incidental to the authorized                                  Consistent   with the desire of Congress to see that the Pribilof Is-
            maintenance and will not interfere with the attainment of the survival                               landers are able to establish an enduring and diversified economy,
            or recovery objectives.                                                                              this section authorizes additional funds for the St. Paul and St.
                       SECTION 6-AUTHORIZATION OF APPROPRIATIONS                                                 George Trusts for the following purposes: (1) $1,700,000 for St. Paul
                                                                                                                 Trust for FY 1989 to be used to provide essential services for the
               Section 6 authorizes appropriations to the Department of Com-                                     people of that island, and an additional $1,500,000 which may be
            merce, the Department of the Interior, and the Marine Mammal Com-                                    appropriated for the purpose of providing collateral to guarantee the
            mission to carry out their responsibilities under this Act, other than                               purchase of fuel oil, should present efforts to guarantee the purchase
            the Secretary of Commerce's responsibility to provide observer cover-                                through private sources continue to be unsuccessful; (2) $1,800,000
            age for commercial fishing vessels, through fiscal year 1993, for                                    for the St. Paul Trust for FY 1990 to allow continued funding of
            which appropriations are authorized under new section 114(e) of the                                  essential services through June 1990, at which time it is anticipated
            MMPA.                                                                                                that revenue from the newly completed harbor will begin to be avail-
                                                                                                                 able; and (3) $3,700,000 to the St. George Trust for FY 1990 to
                  SECTION 7.-STUDY ON MORTALITY OF ATLANTIC DOLPHIN                                              provide essential services and allow completion of the St. George
                                                                                                                 Harbor project. Of this amount, the Committee understands that
               Section 7 requires the Secretary of Commerce to conduct a            study                        $1,900,000 is needed for essential services, while the remaining
            regarding the epidemic and high mortality of east coast Atlantic                                     $1,800,000 would be used for the purchase of construction equipment.
            bottlenosed dolphins which occurred in 1987 and 1988. A plan for
            conducting the study must be submitted to the House and the
            Senate before January 1, 1989, and the final report on the study
            must be submitted before January 1, 1990. The Committee notes
            that the Secretary has already begun preparations for such a study

               M          on        Milo       M                   111   1         1                        i                                   '%                   1          N









                                                                                                                                      1019T CC-0-0.0                                                     12-- Ifil-W70
                                                                                                                                        2d                  HOUSE OF REPRESENTATIVES
                                                                                                                                                ton






                                                                                                                                        DOLPHIN PROTECTION AND CONSUMER INFORMATION
                                                                                                                                                                       ACT OF 1990




                                                                                                                                                            JuLy 10, 1990-Ordered to be printed



                                                                                                                                        Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                                                                 Marine and Fisheries, submitted the following


                                                                                                                                                                        REPORT

                                                                                                                                                                       together with

                                                                                                                                                    ADDITIONAL AND DISSENTING VIEWS


                                                                                                                                         (To accompany H.R. 2926 which on July 19, 1989 was referred jointly to the
                                                                                                                                         Committe6s on Energy and Commerce and Merchant Marine and Fisheries)
      Ln

                                                                                                                                            -    [Including cost estimate of the Congressional Budget Office]
                                                                                                                                        The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                                                      referred the bill (H.R. 2926) to require tuna products to be labeled
                                                                                                                                      respecting the method used to catch the tuna and for other pur-
                                                                                                                                      poses, having considered the same, report favorably thereon with
                                                                                                                                      amendments and recommend that the bill as amended do pass.
                                                                                                                                        The amendments are as follows:
                                                                                                                                        Strike all after the enacting clause and insert the following:
                                                                                                                                      SECTION 1. SHORT TITI.E.
                                                                                                                                        This Act may be cited as the "Dolphin Protection and Consumer Information Act
                                                                                                                                      of 1990".

                                                                                                                                      S
                                                                                                                                      1
                                                                                                                                      EC. 2. FINDINGS.
                                                                                                                                        The Congress finds that-
                                                                                                                                           (1) dft@ins and other marine mammals are frequently killed in the course of
                                                                                                                                         tuna fis ing operations in the eastern tropical Pacific Ocean and high seas
                                                                                                                                         dr,ftnet fishing in other parts of the world;
                                                                                                                                           (2) it is the policy of the United States to support a worldwide ban on high
                                                                                                                                         seas driftnet fishing, in part because of the harmful effects that these driftnets
                                                                                                                                         have on marine mammals, including doTlihins-
                                                                                                                                           (3) the largest processors of tuna pro  acts ior the American market have re-
                                                                                                                                         cently adopted a policy of not purchasing tuna harvested with high seas drift-
                                                                                                                                         nets or with purse seine nets intentionally deployed to encircle dolphins; and
                                                                                                                                           (4) consumers should have the opportunity to know whether the tuna that
                                                                                                                                         they purchase was harvested with methods known to harm dolphins.
                                                                                                                                         39-006









                                                                                                                                               5

                                                                                                            was not likely to be achieved soon in this fishery. In recognition of
                                                                                                            this, Congress approved an amendment to the MMPA in 1981 pro-
                                                                                                            viding that the goal of reduced dolphin mortality "shall be satisfied
                                                                                                            in the case of the incidental taking of marine mammals in the
                                                                                                            course of purse seine fishing for yellowfin tuna by a continuation of
                                                                                                            the application of the best marine mammal safety techniques and
                                                                                                            equipment that are economically and technologically practicable."
                                                                                                              Since 1981, the U.S. tuna fleet has operated under a permit that
                                                                                                            allows up to 20,500 dolphins to be killed annually.
                                                                                                              Unfortunately, the reduction in dolphin deaths attributable to
                                                                                                            the U.S. fleet has been partially offset by a significant increase in
                                                                                                            the number of deaths attributable to foreign fishing vessels operat-
                                                                                                            ing in the ETP. This figure increased throughout the early and
                                                                                                            mid-1980's, reaching 112,482 in 1986.
                                                                                                              In an effort to further reduce dolphin mortality, Congress en-
                                                                                                            acted new amendments to the MMPA in 1988. The amendments in-
                                                                                                            cluded a ban on the use of certain explosives, a prohibition on sets
                                                                                                            at sundown when mortality rates have historically been high, and
                                                                                                            the establishment of a skipper performance system designed to pe-
                                                                                                            nalize captains whose record of implementing dolphin protection
                                      PURPOSE OF THE LEGISLATION                                            measures is substantially below the fleet average.
                                                                                                              Even more important, the 1988 amendments required the Secre-
                    The purpose of H.R. 2926 is to protect dolphins by limiting the                         tary of Commerce (the Secretary) to certify annually whether the
                  sale, and requiring the labeling of, tuna products processed or sold                      tuna fishing vessels of foreign nations operating in the ETP have
                  in the United States if the products contain tuna harvested on the                        established and implemented dolphin-protection measures "compa-
                  high seas by large-scale driftnets or by purse seine nets intentional-                    rable" to those in the United States. The importation into the
                  ly deployed to encircle dolphins.                                                         United States of yellowfin tuna, or products made from yellowfin
                                BACKGROUND AN    .D NEED FOR LEGISLATION                                    tuna, is prohibited from any nation operating in the ETP which is
                                                                                                            not certified by the Secretary as having a "comparable" record of
                         PURSE SEINE FISHING IN THE EASTERN TROPICAL PACIFIC                                dolphin protection.
                                                                                                              Although the 1988 amendments have not yet been fully imple-
                    The Marine Mammal Protection Act (MMPA) was enacted in                                  mented, it appears that they have made progress towards their
                  1972 for the purpose of protecting marine mammals, including dol-                         goal of a substantial reduction in dolphin mortality. In 1989, the
                  phins, from the adverse effects of human activities. The law states                       number of dolphin deaths attributable to the U.S. fleet dropped
                  that "it shall be the immediate goal that the incidental kill or seri-                    from 19,712 to 12,643, or 36%, and the National Marine Fisheries
                  ous injury of marine mammals permitted in the course of commer-                           Service has estimated that a comparable reduction took place in
                  cial fishing operations shall be reduced to insignificant levels ap-                      mortality caused by the foreign fleet.
                  proaching a zero mortality and serious injury rate."                                        Despite. the progress that has been made under the MMPA,
                    One factor that prompted enactment of the MMPA was the mas-                             many conservation and animal rights groups have continued to
                  sive mortality of dolphins occurring as a result of purse seine fish-                     argue that the original purpose of the MMPA as it affects dolphins
                  ing for yellowfin tuna in the eastern tropical Pacific Ocean (ETP).                       should be respected, and that the practice of intentionally deploy-
                  For reasons that remain unknown to science, schools of large yel-                         ing nets to encircle dolphins should be ended. A major obstacle to
                  lowfin tuna frequently swim beneath schools of dolphins in this                           such a change has been the difficulty of.imposing itupon the fish-
                  region. During the purse seine fishing operation, dolphins are sur-                       ing fleets of nations other than the United States.
                  rounded by the seine. Some become entangled in the net and
                  drown. During the early 1970's, a process known as the "backdown                                             LARGE-SCALE DRIFTNET FISHING
                  procedure" Was developed to help dolphins escape over the top of                            Another major   source of fishing-caused dolphin mortality is the
                  the net, while the tuna remain trapped below.                                             use of large-scale driftnets, primarily by the fishing vessels of
                  . Although the number of dolphins killed by U.S. tuna fishermen                           Japan, the Republic of Korea, and Taiwan. Large-scale driftnet
                  in the ETP dropped from 360,000 in 1972 to about 20,000 in 1980 as                        fishing is a method of fishing using a net or a combination of nets
                  a result of the backdown procedure and other improvements in                              intended to be held in a more or less vertical position by floats and
                  gear design and fishing techniques, it became clear by 1980 that                          weights, whose purpose is to entangle fish by drifting in the water.
                  the MMPA's goal of a death and injury rate "approaching zero"                             The nets can measure 30 miles or longer and constitute an exreme-








                                                    6
                                                                                                                                             7
                  ly indiscriminate and wasteful fishing method due to the large                                                  n
                  number of seabirds, marine mammals, and non-target fish species                          policy of not purchasi g any fish caught with driftnets, and that it
                  caught in the nets. Large-scale driftnet fishing has expanded dra-                       would begin labeling cans of Starkist tuna sold in the United
                  matically in recent years, and now involves approximately 1,000                          States with "dolphin safe" symbols bearing the message: "No
                  vessels operating in the Pacific, Atlantic and Indian Oceans and                         Harm to Dolphins". Within hours, two other major tuna processing
                  elsewhere on the high seas.                                                              companies, Van Camp Seafood (Chicken of the Sea) and Bumblebee
                    Although precise data are not yet available, the National Marine                       announced that they, too, would refuse to buy tuna caught in asso-
                  Fisheries Service has estimated that "tens of thousands" of marine                       ciation with dolphins and would begin labeling their tuna as "dol-
                  mammals, primarily dolphins, are killed annually by large-scale                          phin-safe". Taken together, these three companies supply approxi-
                  driftnet fishing operations in the North Pacific alone.                                  mately 84% of the canned tuna sold in the United States.
                    Because of the harmful effects that large-scale driftnet fishing                         During the succeeding weeks, several smaller suppliers of U.S.
                  has on fisheries and marine marnmal conservation, efforts have                           canned tuna, including Mitsubishi Foods, Mitsui Foods, and the
                  been made in recent years to ban or restrict the practice. In 1987,                      Ocean Packing Corporation announced they would no longer pur-
                  Congress enacted the Driftnet Impact Monitoring, Assessment and                          chase tuna considered "dolphin-unsafe".
                  Control Act (16 U.S.C. 1821 et al.) to require the Secretary of State                      These voluntary actions transformed     dramatically and immedi-
                  to negotiate international agreements that would place observers                         ately the two-decades long controversy    that had existed over the
                  on foreign driftnet vessels to gather information about the environ-                     setting of purse seine nets on dolphin in the ETP. The U.S. tuna
                  mental impact of driftnet fishing. In February, 1990, the House ap-                      fleet, which had been able since 1980 to operate under a special
                  proved legislation (H.R. 2061) to prohibit U.S. vessels from engag-                      MMPA permit allowing it to kill as many as 20,500 dolphins a
                  ing in large-scale driftnet fishing and calling upon the Secretary of                    year, found itself deprived overnight of its major customers. The in-
                  State to negotiate a worldwide ban.                                                      centives contained within the MMPA to encourage foreign fisher-
                    Overseas opposition to driftnet fishing was manifested in the                          men to improve their record of dolphin protection while still fish-
                  Declaration of Tarawa, signed on     July 11, 1989 by the heads of                       ing on dolphin were weakened. An enormous new premium was
                  state of the South Pacific nations, and by the adoption of the Con-                      placed on the sale of tuna that were harvested in a manner consid-
                  vention for the Prohibition of Fishing with Long Driftnets in the                        ered "dolphin-safe".
                  South Pacific at Wellington, Australia, on November 24, 1989. In                           The action by the processors will influence significantly the size
                  addition, the United Nations General Assembly approved a Resolu-                         and scope of operations of the 28 U.S. tuna boats previously operat-
                  tion on December 11, 1989 (A/C.2/44/L.81) calling for a cessation of                     ing in the ETP. The owners of more than a dozen of these boats
                  all large-scale pelagic driftnet fishing in the South Pacific no later                   have sought the right to operate in the "dolphin-safe" western Pa-
                  than July 1, 1991, and for a moratorium on such activities else-                         cific; several are considering operating in the Atlantic; some will
                  where on the high seas by June 30, 1992, unless effective conserva-                      probably choose to remain in the ETP and either not set on dol-
                  tion and management measures can be taken to avoid unacceptable                          phin or continue fishing as usual and sell to foreign markets; and
                  impacts on other marine resources.                                                       some may change flags.
                                       INTRODUCTION OF H.R. 2926                                             The effect of the "dolphin-safe" purchasing policies on the opera-
                    H.R. 2926 was introduced on July 19, 1989 by Rep. Barbara                              tors of foreign flag tuna fishing vessels is not yet clear. The incen-
                  Boxer of California. As introduced, the bill requires that the label                     tive for these vessels to comply with MMPA-type dolphin protec-
                  of any product made from tuna which has been caught with drift-                          tion procedures may be diminished because any tuna harvested
                  nets or with purse seine nets set on dolphin bear a statement indi-                      through the setting of purse seine nets on dolphin will be consid-
                  cating that the tuna was captured with technologies known to kill                        ered "dolphin-safe". On the other hand, the U.S. provides almost
                  dolphins (hereafter referred to as "Dolphin-unsafe"), Tuna products                      50% of the world's market for canned tuna and western Europe an-
                  otherwise harvested are required to bear a label indicating that the                     other 25%. If the time should soon come when all or most of that
                  tuna was "Dolphin-safe". The bill applies to both domestic and im-                       market is off-limits to driftnet or "dolphin-unsafe" tuna from the
                  ported tuna and would be enforced by the Food and Drug Adminis-                          ETP, some adjustments in foreign fishing practices may be expect-
                  tration, in consultation with the Department of Commerce. Misla-                         ed.
                  beling is considered a criminal violation, with offenders subject to                                              COMMITTEE ACTION
                  imprisonment. Any citizen has standing to seek a restraining@ order
                  against the sale of mislabeled products.                                                   H.R. 2926 was introduced on July 19, 1989, by Mrs. Boxer, and
                                         RECENT DEVELOPMENTS                                               was referred to the Committee on Merchant Marine and Fisheries
                                                                                                           and the Committee on Energy and Commerce. Within the Mer-
                    On April 12, 1990, Starkist Seafood Company, an affiliate of H.J.                      chant Marine and Fisheries Committee, the bill was referred to the
                  Heinz Company, announced that it would no longer purchase any                            Subcommittee on Fisheries and Wildlife. Conservation and the En-
                  tuna caught in association with dolphins, that it would continue its                     vironment, (the Subcommittee) on July 24, 1989.









                                                       8                                                                                                9

                                                  HEARINGS                                                         during which purse seine nets were not used to encircle dolphins
                                                                                                                   and this fact is certified by the skipper and verified by an observer.
                     The Subcommittee has conducted three hearings on H.R. 2926                                       The testimony of Mr. Fullerton and Mr. Bricklemyer was direct-
                  and related issues.                                                                              ed at progress in implementing the 1988 MMPA amendments.
                     On October 4, 1989, the Subcommittee conducted a hearing on                                      The second Subcommittee hearing on H.R. 2926 was held on
                  H.R. 2926 and a similar bill, H.R. 2948, introduced by Mr. Levine.                               April 4, 1990. Like the first, this hearing also focused on the imple-
                  The hearing also focused on the Administration's progress in im-                                 mentation of the 1988 MMPA amendments as they relate to dol-
                  plementing the 1988 MMPA amendments relating to the reduction                                    phin protection. Those testifying included Dr. William Fox, Assist-
                  of marine mammal mortality in the purse seine tuna fishery. Testi-                               ant Administrator for Fisheries, National Marine Fisheries Service;
                  fying were Mrs. Barbara Boxer and Mr. Mel Levine, U.S. Repre-                                    Mr. David Burney, Executive Director, U.S. Tuna Foundation; Mr.
                  sentatives from the State of California; Mr. James Douglas, Acting                               Robert Hoffman, Scientific Program Director, Marine Mammal
                  Assistant Administrator for Fisheries, National Marine Fisheries                                 Commission; Mr. August Felando, President, American Tunaboat
                  Service; Mr. Charles Fullerton, Director, Southwest Region, Nation-                              Association; Mr. Vance Hughes, representing a coalition of conser-
                  al Marine Fisheries Service; Mr. David Burney, Executive Director,                               vation organizations; and Mrs. Barbara Boxer, a U.S. Representa-
                  U.S. Tuna Foundation; Mr. August Felando, President, American                                    tive from the state of California.
                  Tunaboat Association; Mr. Eugene Bricklemeyer, Greenpeace; Mr.                                      Dr. Fox, testifying in behalf of the Administration, expressed op-
                  Dennis King, ICF, Inc.; and Mr. Vance Hughes, representing a coa-                                position to H.R. 2926 and a preference, instead, for seeking to
                  lition of environmental organizations.                                                           reduce dolphin mortality through continued implementation of the
                     Representative Boxer testified in support of H.R. 2926, arguing                               MMPA.
                  that the public would be willing to pay a higher price for tuna                                     Mr. Burney testified against the bill and argued that its passage
                  products in return for the assurance that the tuna was not harvest-                              would lend credibility to a "scurrilous" campaign directed by some
                  ed using methods harmful to dolphins. She said that American con-                                groups against the U.S. tuna industry. He cited a number of allega-
                  sumers want and deserve the. right to decide whether or not they                                 tions against the tuna industry which he characterized as false,
                  wish to contribute to the death of a particular species.                                         and said that approval of H.R. 2926 would assist those planning to
                                                                                                                   boycott supermarkets selling "dolphin-unsafe" tuna. thereby help-
     60,             Representative Levine also testified in support of H.R. 2926 on                               ing to put U.S. tuna boats out of business.
     00           the grounds that consumers should have the opportunity to know                                      Mr. Hughes expressed support for the bill and said that the of-
                  what impact a product has had on the quality of the environment.                                 fices of environmental groups have been flooded with requests from
                     Mr. Douglas testified in opposition to H.R. 2926, arguing that it                             the public about how to distinguish "dolphin-safe" from "dolphin-
                  would be very difficult to enforce, that it would undermine the ef-                              unsafe" tuna. He said that it is impossible to answer that question
                  fectiveness of the MMPA and that it would affect adversely the do-                               without passage of H.R. 2926. Mr. Hughes also made several recom-
                  mestic tuna processing industry. He      'also urged that Congress con-                          mendations for improving the enforceability of the labeling re-
                  sider carefully the precedent of requiring labeling legislation that                             quirements of the bill.
                  is unrelated to the character, wholesomeness, and nutritional value                                 Mr. Felando opposed the bill and argued that an end to purse
                  of the food product involved.                                                                    seine fishing on dolphin would harm efforts to conserve yellowfin
                     Mr. Felando expressed opposition to H.R. 2926, which he charac-                               tuna because it would force fishermen to catch the younger, small-
                  terized as unfair to the American tuna industry and an unwarrant-                                er tuna that are not found in association with dolphins. He also
                  ed intervention into the marketplace. He said that the bill would                                said that H.R. 2926 reflected an emotional, rather than a rational,
                  harm the U.S. tuna fleet and thereby increase, rather than de-                                   response to the tuna-dolphin problem.
                  crease, dolphin mortality.                                                                          Representative Boxer testified in support of the bill, and argued
                     Mr. King told the Subcommittee that H.R. 2926 would provide                                   that only a fraction of the tuna caught in the world would be la-
                  consumers with information many desire and recommended that                                      beled "dolphinmunsafe" under H.R. 2926 and that tuna caught by
                  "dolphin-safe" tuna be separated from "dolphin-unsafe" tuna on a                                 any foreign vessel operating without an observer in the ETP would
                  trip by trip basis.                                                                              be considered "dolphin-unsafe". For these reasons, she argued, the
                     Mr. Burney testified in opposition to H.R. 2926 and recommend-                                bill would not unfairly harm or discriminate against the U.S. tuna
                  ed a continuation of the "balanced" approach to marine mammal                                    fleet.
                  protection that is required under the MMPA. He also critized "pro-                                  Mr. Hoffman's testimony focused on implementation of the
                  tectionists" for distributing false information about the tuna-                                  MMPA amendments of 1988.
                  dolphin controversy.                                                                                The Subcommittee conducted its third and final hearing on H.R.
                     Mr. Hughes testified in support of H.R. 2926 and suggested that                               2926 on May 3, 1990. The focus of the hearing was the announce-
                  the bill be amended so that it would apply to a driftnet only if the                             inent on April 12 b the three largest rocessors of tuna for the
                  driftnet were longer than one and one-half miles. He also recom-                                 American market Zat they would no longer purchase "dolphin-
                  mended that all tuna caught using purse seine nets in the ETP be                                 unsafe" tuna. Those testifying were Mrs. Barbara Boxer and Mr.
                  considered "dolphin-unsafe" unless the tuna were caught on a trip                                Jim Bates, United States Representatives from the State of Califor-


                                                                                        Sim        I    I    I     I                   N         14        1%










                                                        10
                                                                                                               100%, and that funding for research and development be provided
                      nia; Mr. Keith Hauge, President, StarKist Company; Mr. Jose                              to improve "dolphin-safe" fishing techniques.
                      Munoz, President, Van Camp Seafood Company; Mr. Dan Sullivan,                              Mr. Virissimo praised the U.S. tuna fleet for its efforts to reduce
                      President, Bumblebee Seafood, Inc.; Dr. William Fox, Assistant Ad-                       dolphin mortality under the MMPA, and said that a lot of the
                      ministrator for Fisheries, National Oceanic and Atmospheric Ad-                          public concern about dolphin deaths was based on false informa-
                      ministration; Mr. John Fitzgerald, Counsel, Defenders of Wildlife,                       tion. He said that the only labeling requirement for tuna products
                      representing the Dolphin Coalition; Mr. Manuel Silva, Chairman,                          that would make sense would be a label indicating whether or not
                      Board of Directors, U.S. Tuna Foundation; Ms. Lesley Scheele,                            the tuna had been harvested in a manner consistent with the
                      International Small Cetacean Coordinator, Greenpeace; and Mr.                            MMPA.
                      Robert Virissinio, Chairman, Board of Directors, American Tuna-
                      boat Association.                                                                                            SUBCOMMITTEE CONSIDERATION
                        Representative Boxer testified that the decision by the tuna proc-
                      essors will make tuna. labeling a reality within months. She                               On May 15, 1990, the Subcommittee met to consider H.R. 2926.
                      argued, however, that without H.R. 2926 there will be widespread                         Mr. Studds and Mrs. Unsoeld offered an amendment in the nature
                      consumer confusion and considerable potential for fraud. Mrs.                            of a substitute, which was to be considered as original text. The
                      Boxer also discussed the growing support around the world for pur-                       substitute added a new section 8 to the bill which would amend the
                      chasing tuna only if it is "dolphin-safe".                                               MMPA to require that anyone seeking to export to the United
                        Representative Bates suggested that a ban be imposed on the im-                        States a fish or fish product harvested by a nation whose fishing
                      portation of "dolphin-unsafe" tuna into the United States in order                       vessels engage in high seas driftnet fishing provide certain docu-
                      to provide an incentive.for foreign fishermen to switch to "dolphin-                     mentary evidence to the Secretary. The evidence must indicate
                      safe" fishing methods. He also expressed support for legislation                         that the fish or fish product was not harvested by a driftnet in the
                      Ahat he had introduced to authorize the Secretary of Commerce to                         South Pacific after July 1, 1991 or in other areas of the high seas
                      make grants and low interest loans to U.S. tuna fishermen to con-                        after July 1, 1992.
                      duct research into "dolphin-safe" fishing technologies,                                    The substitute also (1) clarified the definitions, the penalties, and
                        Mr. Hauge testified in support of H.R. 2926 in order. to ensure                        the procedures to be used by the Secretary in enforcing the Act; (2)
                      uniform compliance by the tuna industry with the labeling guide-                         eliminated the requirement that "dolphin-safe" tuna be labeled ac-
                                                                                                               cordingly; and (3) added a provision requiring the Secretary of
                      lines that Starkist and the two other companies had voluntarily
                      adopted.                                                                                 State to seek international agreements to end the practice of har-
                        Mr. Munoz expressed support for H.R. 2926 and recommended                              vesting tuna through the intentional deployment of purse seine
                      several steps, including the institution of a loan program, to help                      nets to encircle dolphins.
                      the U.S. tuna fleet,                                                                       Mr. Young offered three amendments. The first, in the nature of
                        Mr. Sullivan urged the Subcommittee to approve the bill with an                        a substitute for sections 1 through 7, would have prohibited the la-
                      amendment that would delay the effective date until 180 days after                       beling of any food product as environmentally safe unless the prod-
                      the date of enactment.                                                                   uct and its package met the definition of environmentally safe as
                        .Dr. Fox commended the three tuna processors for their decision                        determined by the Secretaries of the Interior, Commerce, Agricul-
                      not to purchase "dolphin-unsafe" tuna and said that this would                           ture, and Health and Human Services and the Administrator of
                      contribute substantially to a reduction in dolphin mortality caused                      the Environmental Protection Agency. The amendment was defeat-
                      by U.S. tuna fishermen in the ETP. He also re-stated the Adminis-                        ed by voice vote.
                      tration's view that H.R. 2926 is unnecessary legislation.                                  Mr. Young's second amendment would have deleted the provi-
                        Mr. Fitzgerald argued that the enactment of H.R. 2926 is neces-                        sions in the bill authorizing citizen suits. The amendment was de-
                      sary to prevent tuna products from being falsely labeled as "dol-                        feated on a division vote, 4-10.
                      phin-safe". He also expressed support for technical and financial                          Mr. Young's third amendment would have deleted the provisions
                      assistance to help the U.S. tuna fleet make a transition to "dol-                        of the bill authorizing criminal penalties. The amendment was de-
                      phin-safe" fishing practices.                                                            feated by voice vote.
                        Mr. Silva criticized the Subcommittee for its failure, in recent                         Mr. Weldon then offered an amendment in behalf of Mr. Goss,
                      years, to act in a balanced manner on issues affecting the U.S. dis-                     who is not a Member of the Subcommittee. Mr. Weldon's amend-
                      tant water tuna fleet. He said further that the decision by the tuna                     ment would have amended the MMPA to prohibit the Secretary
                      processors to revise their purchasing practices would seriously and                      from issuing a permit under section 104(c)(2) of that Act for the
                      unfairly hurt U.S. tuna fishermen. Finally, he praised U.S. tuna                         taking of a marine mammal in state waters for purposes of public
                      fishermen for their past efforts to reduce dolphin mortality and                         display if the Governor of that state has notified the Secretary of
                      cited the death of a cousin who had bee n' killed by a shark while                       the state's disapproval -of the permit within 30 days of the time
                      helping dolphins escape from a purse seine net.                                          notice of application for the permit has been given. The amend-
                        Ms. Scheele testified in support of H.R. 2926, urged that observer                     ment was adopted by a roll call vote of 14 to 8.
                      coverage for foreign vessels operating in the ETP be increased to







                                                      12                                                                                            13
                     The bill, as. amended, was favorably reported to the full Commit-                          safe" under section 4(b). Mr. Davis then offered an amendment to
                  tee by voice vote.                                                                            the amendment offered by Mr. Young expanding the applicability
                                                                                                                of the limitation to include any tuna product sold in the United
                                      FULL COMMITTEE CONSIDERATION                                              States, whether or not the product is imported. The amendment to
                                                                                                                the amendment was adopted by voice vote. The amendment, as
                     On May 23, 1990, the Committee on Merchant Marine and Fish-                                amended, was adopted on a roll call vote of 26-19.
                  eries met to consider the bill.                                                                 Mr. Goss then offered an amendment to modify the                        n
                     Mr. Studds offered a series of amendments en bloc. Although                                                                                                provi8io
                                                                                                                added to the bill during Subcommittee consideration of an amend
                  some of the amendments were purely of a technical or clarifying                               ment offered   by Mr. Weldon. Mr. Weldon's amendment allowed
                  nature, others were more substantive. The latter category included:                           state Governors to object to, and essentially veto, an application
                         (1) an amendment providing that a civil penalty would be as-                           under the MMPA for a permit to take a marine mammal in the
                       sessed under section 5(a)(2) against someone making a false                              waters of that state for public display purposes. The amendment of-
                       certification under the Act only if the false statement were                             fered by Mr. Goss would have given the Secretary the ability to
                       knowingly and willfully made. In other words, if a tuna proces-                          overrule a Governor if the permit applicant, is unable to obtain a
                       sor relies on a'false certification made by a vessel captain with                        marine mammal elsewhere in U.S. waters.
                       respect to a supply of tuna, the processor would not be subject                            Mr. Manton then offered an amendment in the nature of a sub-
                       to the maximum $100,000 penalty for endorsing that certifica-                            stitute to the amendment offered by Mr. Goss. The substitute delet-
                       tion unless it could be established that he or she knew the cap-                         ed the language of the amendment offered by Mr. Goss and also
                       tain's certification was false.                                                          the language of the amendment offered during Subcommittee con-
                         (2) an amendment modifying the citizen's suit provision to                             sideration by Mr. Weldon. The substitute was adopted by voice
                       make it conform more closely to comparable provisions con-                               vote. The amendment, as amended, was also adopted by voice vote.
                       tained in other laws.                                                                      The Committee then approved by voice vote a motion offered by
                         (3) an amendment eliminating a provision in the bill that                              Mr. Young to report H.R. 2926, as amended, to the House of Repre-
                       would have required the Secretary of State to negotiate access                           sentatives.
                       agreements for U.S. tuna fishermen to waters within the exclu-
                       sive economic zones of foreign countries. Mr. Studds said he                                                 SECTION-BY-SECTION ANALYSIS
                       war, reluctant to delete this provision, because he believes it is
                       both important and necessary that negotiations for this pur-                                                    SECTION ONE. SHORT TITLE
                       pose be undertaken. However, the United States does not cur-                               This section provides that the Act may be cited as the "Dolphin
                       rently recognize the right of any nation to assert management                            Protection and Consumer Information Act of 1990".
                       authority over tuna outside its territorial waters. Although the
                       House of Representatives has adopted amendments to the Mag-                                                      SECTION TWO. FINDINGS
                       nuson Fisheries Conservation and Management Act (MFCMA)                                    This section states four findings of the Congress:
                       that would alter the juridical position of the United States on                            First, that dolphins and other marine mammals are frequently
                       this point, it would be premature, said Mr. Studds, for the                              killed in the course of tuna fishing operations in the eastern tropi-
                       Committee to base a provision in this bill on the assumption                             cal Pacific Ocean and high seas driftnet fishing in other parts of
                       that the amendment proposed to the MFCMA will be enacted.                                the world.
                         (4) an amendment establishing an effective date for the re-                              Second, that it is the policy of the United States to support a
                       quirements of the bill.                                                                  worldwide ban on high seas driftnet fishing, in part because of the
                     The amendments offered en bloc by Mr. Studds were adopted by                               harmful effects that driftnets have on marine mammals, including
                  voicevote.                                                                                    dolphins.
                     Mr. Young offered an amendment to require the Secretary to                                   Third, that the largest processors of tuna products for the Ameri-
                  report within two years to the Committee on Merchant Marine and                               can market have adopted a policy of not purchasing tuna harvested
                  Fisheries concerning the costs to U.S. consumers and tuna fisher-                             with high seas driftnets or with purse seine nets intentionally de-
                  men of implementing the Act. The amendment was adopted by                                     ployed to encircle dolphins.
                  voice vote.                                                                                     Fourth, that consumers should have the opportunity to know
                     Mr. Young then offered an amendment to place a limitation on                               whether the tuna they purchase was harvested with methods
                  the importation of tuna products into the United States pending                               known to harm dolphins.
                  the successful conclusion of international negotiations to end the
                  practice of harvesting tuna through the use of purse seine nets in-                                                 SECTION THREE. DEFINITIONS
                  tentionally deployed to encircle dolphins. During this period, the
                  amendment would prohibit the importation of a tuna product into                                 This section defines terms used in the Act.
                  the United States unless the Secretary certifies that the tuna con-                             The terms "driftnet" and "driftnet fishing" have the meanings
                  tained in the product was harvested in a manner that is "dolphin                              given those terms in section 4003 of the Driftnet Impact Monitor-


                                                                                       Milli                    'T        'I    1              11    1                        14



                                                                                                                    ow M m



                                                      14                                                                                           15
                    ing, Assessment, and Control Act of 1987 (16 U.S.C. 1822 note).                             statements must be endorsed in writing by each exporter, importer
                    Thus, the term "driftnet" means a gillnet composed of a panel of                            or processor of the product.
                    plastic webbing one and one-half miles or more in length. The term                            The Committee expects that the designee of the Secretary and
                    "driftnet fishing" means a fish-harvesting method in which a drift-                         the representative of the Inter-American Tropical Tuna           Commis-
                    net is placed in water and allowed to drift with the currents and                           sion will be the approved observer that was onboard the vessel
                    winds for the purpose of entangling fish in the webbing.                                    during the trip.
                     The term "Secretary" means the Secretary of Commerce.                                        The requirement that an observer be onboard the vessel during
                     The term "tuna product" means a food item, including pet food,                             the entire trip is intended to make certain that no tuna will be
                    which contains tuna and which has been processed for retail sale,                           considered "dolphin-safe" if purse seine nets were intentionally de-
                    except perishable sandwiches, salads, or other products with a shelf                        ployed to encircle dolphins at any time during the trip. The Com-
                    life of less than 3 days. This exception is not intended to apply to                        mittee notes that, although U.S. flag vessels operating in the ETP
                    frozen tuna products, including fresh frozen tuna steaks.                                   already have 100% observer coverage, the average rate of coverage
                     The other terms defined in this section are the "eastern tropical                          for foreign vessels is only about 40%. Any tuna caught by a foreign
                    Pacific Ocean" and "label".                                                                 vessel that is capable of using its nets to encircle dolphin and that
                                   SECTION FOUR. LABELING REQUIREMENT                                           is operating in the ETP without an observer will be considered
                                                                                                                "dolphin-unsafe".
                     This section establishes a labeling requirement that applies to                                                   SECTION FIVE. PENALTIES
                    tuna products exported from or offered for sale in the United
                    States and serves as a point of reference for section 10, which pro-                          This section establishes civil and criminal penalties for violations
                    hibits the sale in the United States of any tuna product unless the                         of the Act.
                    Secretary certifies that the tuna in that product is "dolphin-safe"                           Subsection (a)(1) establishes a general civil penalty of not to
                    under section 4(b).                                                                         exceed $10,000 for any person who violates a provision of the Act,
                     Under subsection (a)(1), the labels of certain tuna products are                           or a regulation issued under the Act.
                    required to include the statement: "THE TUNA IN THIS PROD-                                    Subsection (a)(2) establishes a civil penalty of not to exceed
                    UCT WAS CAUGHT WITH METHODS THAT KILL DOLPHINS."                                            $100,000 for any vessel captain, exporter, importer, or processor
                    The products to which this requirement applies are those that are                           who knowingly and willfully makes a false certification under sec-
                    exported from or offered for sale in the United States and which                            tion 4. Under this subsection, a vessel captain would be liable for
                    contain tuna (1) harvested on the high seas by a vessel engaged in                          the penalty if he or she executes a false statement concerning
                    driftnet fishing; or (2) harvested in the eastern tropical Pacific                          whether or not a vessel using purse seine nets in the eastern tropi-
                    Ocean by a vessel using purse seine nets if the tuna is not consid-                         cal Pacific Ocean intentionally deployed its nets on or to encircle
                    ered "dolphin-safe" under subsection (b). As a practical matter, the                        dolphin at any point during the trip in question. An exporter, im-
                    prohibition in section 10 on the sale in the United States of any                           porter, or processor would be-liable if he or she knowingly endorses
                    tuna product that is not "dolphin-safe" will limit the applicability                        a counterfeit statement or a false statement made by the captain of
                    of this provision to tuna products exported from the United States.                         the vessel or by the Secretary of Commerce or the Secretary's des-
                     Subsection (a)(2) describes the specific size and location of the                          ignee (or a representative of the IATTC) confirming the captain's
                    statement required on the label of a tuna product to which this sec-                        statement and affirming the presence of an observer onboard the
                    tion applies.                                                                               vessel during the entire trip.
                     Subsection (b) describes a category of tuna that is harvested. in                            Subsection (b) establishes criminal and civil penalties for any
                    the eastern tropical Pacific Ocean by a vessel using a purse seine                          person who knowingly and willfully produces a tuna product that
                    net that is nonetheless considered "dolphin-safe" and therefore not                         does not include on its label a statement required for that product
                    subject to the labeling requirement in subsection (a). Under the                            under section 4(a). Such a person would be liable for a civil penalty
                    subsection, tuna is considered "dolphin-safe" under two circum-                             of not more than the greater of $20,000 or twice the fair market
                    stances. First, if it is harvested by a vessel that is of a type and size                   value of the tuna product, whichever is greater; and may be impris-
                    that the Secretary finds is not capable of deploying its nets on or to                      oned for not more than 1 year, or fined under title 18 of the United
                    encircle dolphin. Second, if the product is accompanied by a writ-                          States Code, or both.
                    ten statement executed by the captain of the vessel certifying that                                                SECTION SIX. REGULATIONS
                    no tuna was caught on that trip using a purse seine net intention-
                    ally deployed on or to encircle dolphin. In this event, the product                           This section requires the Secretary, in consultation with the Sec-
                    must also be accompanied by a statement executed by the Secre-                              retary of the Treasury and the Commissioner of the Food and Drug
                    tary or the Secretary's designee, or by a representative of the                             Administration, to issue regulations not later than six months after
                    Inter-American Tropical Tuna Commission, confirming the state-                              the date of enactment to implement this Act.
                    ment of the captain and saying, further, that there was an ap-                                The regulations required by this section shall include, but not be
                    proved observer on board the vessel during the entire.trip. The two                         limited to, those necessary to:









                                                   16                                                                                               17

                      (1) clarify which food items meet the definition of "tuna                                    The dates cited in this section reflect a Resolution adopted on
                    product" used in the Act;                                                                    December 11, 1989 by the General Assembly of the United Nations.
                      (2) specify the format of the statements to be executed under                              That Resolution recommends that all members of the international
                    section 4(b)(2); and                                                                         community agree to (1) take immediate action to reduce large-scale
                      (3) provide a means of determining which vessels operating                                 pelagic driftnet fishing activities in the south Pacific region leading
                    in the ETP, if any, are of a type and size that are capable of                               to the cessation of such activities no later than July 1, 1991 and (2)
                    deploying their nets on or to encircle dolphins. The Committee                               a moratorium on large-scale driftnet fishing on the high seas gen-
                    expects that the Secretary will make this determination based                                erally no later than June 30, 1992, unless effective conservation
                    on vessel size and equipment, and that vessels with more than                                and management measures can be taken to avoid unacceptable im-
                    one speedboat or with a helicopter onboard, for example, would                               pacts on other marine resources.
                    be considered capable of fishing "on-dolphin."                                                                    SECTION NINE. NEGOTIATIONS
                                    SECTION SEVEN. ENFORCEMENT                                                     This section requires the Secretary of State to seek immediately,
                 Subsection (a) provides that any person may commence a civil                                    through negotiations and discussions with appropriate foreign. gov-
                suit on his or her own behalf against a person who is alleged to be                              ernments, to reduce and, as soon as possible, eliminate the practice
                in violation of this Act, or to compel the Secretary to perform any                              of harvesting tuna through the use of purse seine nets intentional-
                duty required by the Act which is not discretionary with the Secre-                              ly deployed to encircle dolphins.
                tary. No action may commence under this subsection unless the
                plaintiff has given 60 days prior notice of the violation to the Secre-                                     SECTION TEN. TUNA PRODUCT SALES LIMITATION
                tary and to the alleged violator; if the Attorney General has com-                                 This section provides that, until the negotiations called for in sec-
                menced a civil action to require compliance with the statutory or                                tion nine are successfully concluded, no tuna product may be sold
                regulatory violation at issue; or if the United States has com-                                  in the United States unless the Secretary certifies that the tuna
                menced a criminal action for that purpose.                                                       harvested for that product was harvested in a manner that is dol-
                 Subsection (b) provides that the district courts of the United                                  phin safe under section 4(b).
                States shall have jurisdiction over any action arising under this
    NJ          Act, and that a suit under the Act may be brought in the judicial                                                       SECTION ELEVEN. REPORT
                district in which the violation occurs.                                                            This section requires the Secretary to report to the Committee on.
                 Subsection (c) provides that the Attorney General may intervene                                 Merchant Marine and Fisheries within two years concerning the
                as a matter of right in any suit under this section in which the                                 cost to consumers and U.S. tuna fishermen of carrying out this Act.
                United States is not a party, if requested to do so by the Secretary.
                . Subsection (d) provides that the court has the discretion to award                                     SECTION TWELVE. AUTHORIZATION OF APPROPRIATIONS
                the costs of litigation to a* prevailing party in any final order in a
                suit under this section.                                                                           This  section authorizes $4,000,000 to the Secretary, and
                 Subsection (e) clarifies that the injunctive relief provided by this                            $2,000,000 to the Commissioner of the Food and Drug Administra-
                section shall not restrict any other rights that a person, or class of                           tion, for each of the rive fiscal years beginning in 1991, to carry out
                persons, may have under other law to seek enforcement of a re-                                   their responsibilities under the Act.
                quirement of this Act, or to seek any other relief.                                                               SECTION THIRTEEN. EFFECTIVE DATE
                    SECTION EIGHT. TREATMENT OF FISH CAUGHT WITH DRIFTNETS                                         This section provides that sections 4, 5, and 10 of the Act shall
                 This section amends section 101(a)(2) of the MMPA (16 U.S.C.                                    take effect 6 months after the date of enactment or on such later
                1371(a)(2) to require that the governmerit of a nation exporting a                               date, within one year after the date of enactment, as may be speci-
                fish or fish product to the United States provide documentary evi-                               fied by the Secretary for good cause in regulations issued under
                dence that the fish or fish product was not harvested with a drift-                              section 6(a). The Committee intends that the Secretary exercise the
                net in the south Pacific Ocean after July 1, 1991, or in any other                               discretion granted under this section only if necessary to allow
                waters of the high seas after July 1, 1992. This requirement applies                             those acting in good faith to comply with the purposes of the Act to
                only to fish or products made from fish havested by a nation, such                               avoid being subject unfairly or unknowingly to penalties for violat-
                as Japan, the Republic of Korea, or Taiwan, whose fishing vessels                                ing the Act. For example, the processors of tuna products will be
                engage in high seas driftnet fishing. Failure to provide this evi-                               expected to rely on certifications provided to them regarding the
                dence will trigger the sanction imposed by this section of the                                   circumstances under which the tuna in those products was harvet-
                MMPA, which bans the importation of commercial fish or products                                  ed. Thus, it may be necessary to allow some time to elapse between
                from fish which have been caught with commercial fishing technol-                                the effective date of the requirement that vessel captains certify
                ogy which results in the kill or incidental serious injury of ocean                              that tuna is "dolphin-safe" under section 4(b), and the requirement
                mammals in excess of United States standards.                                                    that no tuna product be offered for sale that is not "dolphin-safe".


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                                                                                                                                              25
                                                                                                            section 10. The amendment appears to ban the sale of any tuna in
                                                                                                            the United States unless the Secretary of Commerce affirmatively
                                                                                                            certifies that the tuna was caught using methods that are "dolphin-
                                                                                                            safe", according to the criteria used to make that judgment for
                                                                                                            tuna harvested in the ETP. Thus, every tuna fishing vessel in the
                                ADDITIONAL VIEWS ON H.R. 2926                                               world that wants to sell to America could be required to meet the
                  We strongly support H.R. 2926. We believe that consumers                                  observer and bookkeeping requirements established in the Act to
                should have an opportunity to choose whether the tuna products                              govern the harvesting of tuna in the ETP. Such a requirement is
                they buy are harvested using a fishing method known to injure or                            obviously unnecessary, and it would, for all practical purposes, exm
                kill significant numbers of dolphins.                                                       clude the vast majority of all tuna from the U.S. market, including
                  Large-scale driftnet fishing is responsible for the death of thou-                        tens of millions of dollars' worth of "dolphin-safe" tuna caught by
                sands of marine mammals every year. These deaths are inevitable                             U.S. fishermen in the western Pacific and off the Atlantic coast.
                and the use of driftnets makes them utterly predictable. There is                           Given the mischievous nature of the amendment, we opposed it
                nothing incidental or accidental about it. The fish and fish prod-                          and will work to delete or substantially modify it later in the legis-
                ucts harvested using this damaging and indiscriminate method of                             lative process.
                fishing do not belong on American supermarket shelves.                                        Aside from the need to modify this one section, H.R. 2926 is a
                  Second, for more than two decades, large numbers of dolphins                              good bill. Its passage will maintain the momentum that has been
                have been killed in the course of purse seine fishing operations in                         building in support of worldwide acceptance that tuna should be
                the eastern tropical Pacific Ocean (ETP). Improved fishing tech-                            caught using methods that are dolphin-safe. That momentum is
                niques mandated by the Marine Mammal Protection Act (MMPA)                                  strong in the United States and in western Europe. Together, we
                have dramatically reduced the number of dolphins killed by U.S.                             make up almost seventy-five percent of the world market for
                fishermen. The 1988 MMPA amendments continued that progress,                                canned tuna and together, we have the ability virtually to end fish-
                while providing strong incentives for foreign fishermen to improve                          ing practices that are wantonly destructive of marine mammals
                their record, as well. Nevertheless, the fact remains that tens of                          around the globe. Passage of this bill will take us an important
                thousands of dolphins are killed every year in this fishery. And the                        step in that direction.
                fact remains that these deaths, like those from driftnet fishing, are
                                                                                                                                               GERRY E. STUDDS.
                predictable and avoidable.
                  The message in this bill is that the intentional, foreseeable and                                                            CLAUDINE SCHNEIDER.
                avoidable entanglement of large numbers of marine mammals is no                                                                JIM SAXTON.
                longer acceptable simply for the purpose of making fishing oper-
                ations more efficient. That should be true for the United States
                and for the world.
                  Some have argued that because major U.S. tuna processors have
                decided not to purchase tuna that is "dolphin-unsafe", this bill is
                no longer needed. We disagree. The bill is necessary to make cer-
                tain that "dolphin-safe" tuna is, in fact, dolphin-safe.
                  Without it, our nation could be inundated b foreign-caught, for-
                                                               D
                eign-processed tuna bearing a dolphin-safe III that we have no
                laws to restrict and no procedures to verify.
                  Some have argued that this bill is somehow unfair to American
                fishermen. That is nonsense. The large-scale driftnet fishing oper
                ations that would be Affected by this bill are entirely foreign. And
                that part of the U.S. tuna fleet that has historically operated in the
                ETP is already adjusting4o the voluntary actions taken by the
                processors who supply tuna for the U.S. market. Prices paid to fish-
                ermen for "dolphin-safe" tuna are on the rise. As a result, this bill
                will not affect U.S. fishermen adversely. Instead, it will provide a
                level playing field for U.S. and foreign fishermen seeking access to
                the U.S. market.
                  Although we strongly support the bill, we must add one note of
                caution. During Committee consideration, an amendment offered
                by an opponent of the bill was accepted and included in the text as
                                                 (24)









                                                                                                                                                  27


                                                                                                                                                          labeled as environmentally
                                                                                                               uwciltsd.lifWehhearebitdaot.wSehsotuolpd?cFraarnmbeerrsrieesngbaege in practices which destroy
                                                                                                               unsafe? Animal rights activists are protesting the conditions under
                                                                                                               which poultry and cattle are raised. Should fried chicken be la-
                                                                                                               beled? Food regularly is sold in packages that cannot be recycled or
                                                                                                               whose manufacture contributes to atmospheric ozone depletion.
                DISSENTING VIEWS TO H.R. 2926 OF REPRESENTATIVE DON                                            Should fast food hamburgers come complete with fries, a soft drink,
                                               YOUNG                                                           and a big Federal warning label? Once begun, where does it end?
                                                                                                                 If we are serious about providing the consumer with environmen-
                  H.R. 2926 is a bill crafted with the support of certain elite special                        tal information, then we should look at all of these things. Let's set
                interests that directly attacks a group of American citizens whose                             a single Federal standard for environmental safety all food prod-
                only crime is to obey the laws enacted by the Congress. It should                              ucts so that food producers can determine how to mark those prod-
                never have passed out of Committee and it should never pass the                                ucts if they desire to do so. But let's not single out a particular
                House.                                                                                         group of Americans who have risked life and limb to save marine
                  The Alleged purpose of H.R. 2926 is to inform consumers about
                the food they eat-in this case, tuna. Proponents allege that cer-                              mammals and subject them to arbitrary, mandatory labelling re-
                tain practices used in the harvesting of tuna are inherently bad be-                           quirements just to placate special interests. We should not pass
                cause they can result in -the accidental death of certain marine                               H.R. 2926.
                mammals. Thus, proponents believe that this information should                                                                                         DON YOUNG.
                be emblazoned on every package of tuna sold in a retail establish-
                ment, leading in turn to a consumer revolt against fishing practices                                                             0
                that these groups disagree with. Unfortun       atelY, the facts don't
                match the rhetoric.
                  First, every major tuna canner that sells products in the United
                States has already announced voluntary plans to only buy tuna
                which they consider "dolphin safe". Therefore, there is no need for
                the legislation-its goals have been accomplished.
                  Second, there is no evidence that consumers will react to labels
                reflecting fishing practices-even if they are fully "informed" from
                the environmental special interest point of view about those fishing
                practices-as long as a price differential exists, In fact, in spite of a
                massive campaign against tuna conducted by a variety of special
                interest groups last year, the American consumption of canned
                tuna increased by over 8%; and is still rising! Americans like
                canned tuna because it is an inexpensive, healthy food product that
                is easy to prepare, serve, and store. Simply slapping a "dolphin
                unsafe" label on a can of tuna will not keep the consumers away.
                  What, then, will be the effects of this bill? We have seen some
                already. The decision to change buying practices made by canning
                companies-under intense pressure from special interest groups-
                has shut down one processing plant in Puerto Rico, throwing 5000
                workers out of jobs. It has idled one third of the U.S. tuna fleet.
                Tuna cannery officials have testified that the price of canned tuna
                will increase to U.S. consumers. Yet the bill will do nothing to save
                dolphins which are killed in the tens of thousands by foreign tuna
                vessels over which the U.S. Congress has no control. Further, if
                tuna fleets must now concentrate on harvesting smaller tuna,
                which don't associate with dolphins, there are indications that tuna
                populations will be adversely affected, since tuna will be caught at
                a younger age and thus not contribute to sustaining populations. In
                other words, we may-or may not, depending on foreign reac-
                tions-save the dolphins at the expense of the tuna.
                  Finall , let us consider the precedent we are establishing with
                        y                                                 of food prod-
                Federal requirements on the "environmental safety"
                                                  (26)





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                                                                                              mom W M


                                                                                                     102D CONGRESS                                       REPT. 102-746
                                                                                                       -9d Sessio,     HOUSE OF REPRESENTATIVES             Part 1





                                                                                                       INTERNATIONAL DOLPHIN CONSERVATION ACT OF 1992



                                                                                                                       JuLY 28, 1992-Ordered to be printed



                                                                                                       Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                               Marine and Fisheries, submitted the following


                                                                                                                               REPORT

                                                                                                                               together with

                                                                                                                           DISSENTING VIEWS

                                                                                                                            [To accompany H.R. 54191

                                                                                                               [Including cost estimate of the Congressional Budget Office]
                                                                                                       The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                     referred the bill (H.R. 5419) to amend the Marine Mammal Protec-
                                                                                                     tion Act of 1972 to authorize the Secretary of State to enter into
                                                                                                     international agreements to establish a global moratorium to pro-
                                                                                                     hibit harvesting of tuna through the use of purse seine nets de-
                                                                                                     ployed on or to encircle dolphins or other marine mammals, and
                                                                                                     for other purposes, having considered the same, report favorably
                                                                                                     thereon with an amendment and - recommend that the bill as
                                                                                                     amended do pass.
                                                                                                       The amendment is as follows:
                                                                                                       Strike all after the enacting clause and insert the following:
                                                                                                     SECTION 1. SHORT TITLE.
                                                                                                       This Act may be cited as the "International Dolphin Conservation Act of 1992".
                                                                                                     SEC. 2. GLOBAL MORATORIUM TO PROHIBIT CERTAIN TUNA HARVESTING PRACTICES.
                                                                                                       (a) IN GENERAL.-The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et
                                                                                                     seq.) is amended by adding at the end the following:

                                                                                                     "TITLE III-GLOBAL MORATORIUM TO PROHIBIT CERTAIN
                                                                                                                    .TUNA HARVESTING PRACTICES


                                                                                                     "SEC. 301. FINDINGS AND POLICY.
                                                                                                       "(a) FINDINGs.-The Congress finds the following:
                                                                                                          "(1) The yellowfin tuna fishery of the eastern tropical Pacific Ocean has re-
                                                                                                        sulted in the deaths of millions of dolphins.
                                                                                                        59-006







                                                                                                                                             7

                                                                                                                         BACKGROUND AND NEED FOR LEGISLATION

                                                                                                                                       INTRODUCTION
                                                                                                             The Marine Mammal Protection Act (MM@A) was enacted in
                                                                                                           1972 for the purpose of protecting marine mammals, including dol-
                                                                                                           phins, from the adverse effects of human activities. As originally
                                                                                                           enacted, the law stated that "marine mammals be taken inciden-
                                                                                                           tally in the course of commercial fishing operations", but provided
                                                                                                           that "it shall be the immediate goal that the incidental kill or inci-
                                                                                                           dental serious injury of marine mammals permitted in the course
                                                                                                           of commercial fishing operations be reduced to insignificant levels
                                                                                                           approaching a zero mortality and serious injury rate."
                                                                                                             For reasons not fully understood, schools of large yellowfin tuna
                                                                                                           associate with schools of dolphins in the eastern tropical Pacific
                                                                                                           Ocean (ETP). Since the late 1950's, fishermen have used the dol-
                                                                                                           phins to locate tuna, and then deployed large purse seine nets
                                                                                                           around dolphins to harvest the tuna swimming beneath them.
                                                                                                           During the process, dolphins can become trapped in the nets and
                                                                                                           drown. The National Marine Fisheries Service (NMFS) estimates
                                                                                                           that more than 6,110,000 dolphins have been killed in the course of
                                                                                                           tuna purse seine operations by the U.S. and foreign fleets in the
                                                                                                           ETP since 1959 (Federal Register, Vol. 57, No. 117, pg. 27010, June
                                                                                                           17,1992).
                                                                                                             The number of dolphins killed in the ETP tuna fishery was one
                                                                                                           of the driving factors behind the passage of the MMPA in 1972.
                                                                                                           The requirements of the MMPA and improvements in gear design
                                                                                                           and dolphin release methods have led to significant reductions in
                                                                                                           the number of dolphins killed by U.S. tuna fishermen in the ETP
                                                                                                           (from 360,000 in 1972 to about 20,000 in 1980). However, during the
                                                                                                           same period it became clear that a level of deaths "approaching
                                                                                                           zero", as required by the MMPA, was not likely to be achieved by
                                                                                                           the tuna industry in the near future. Consequently, in 1981 Con-
                                                                                                           gress amended the MMPA by specifying that the goal of the Act in
                                                                                                           approaching zero "shall be satisfied in the case of the incidental
                                                                                                           taking of marine mammals in the course of purse seine fishing for
                                                                                                           yellowfin tuna by a continuation of the application of the best
                                                                                                           marine mammal safety techniques and equipment that are eco-
                                                                                                           nomically and technologically practicable."
                                                                                                             Since 1981, the U.S. tuna fleet has operated under a general
                                                                                                           MMPA permit that allows up to 20,500 dolphins to be killed annu-
                                                                                                           ally. Over time, the regulations which apply to the general permit
                                                                                                           have been strengthened as required by the 1984 and 1988 amend-
                                                                                                           ments to the MMPA. Improvements in dolphin release methods,
                                                                                                           combined with the fact that all but seven vessels in the U.S. purse
                                                                                                           seine fleet have relocated, resulted in an actual U.S. dolphin mor-
                                                                                                           tality in 1991 of 1004 animals (NMFS Dolphin Mortality Status Re-
                                                                                                           ports). During the same period, foreign purse seine fleets in the
                                       PURPOSE OF THE BILL                                                 ETP-primarily those of Mexico and Venezuela-have grown pro-
                                                                                                           portionately, and now number more than 50 vessels. In 1991, the
                 The purpose of H.R. 5419 is to establish an international morato-                         combined foreign fleets were responsible for the deaths of almost
               rium on the practice of harvesting tuna through the use of purse                            25,000 dolphins in the ETP.
               seine nets deployed on or to encircle dolphins or other marine                                The Committee's report on the Dolphin Protection and Consumer
               mammals.                                                                                    Information Act of 1990 (Rept@. 101-579) recognized the growing



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                                                                                                                                                9
                                                    8
                                                                                                             the five-year survey period, stock sizes would have had to increase
                  concerns raised by the level of dolphin kills by the foreign fleets in                     or decrease by approximately 40-50 percent (Marine Mammal Com-
                  the ETP, stating: "Despite the progress that has been made under                           mission Annual Report to Congress, 1991).
                  the MMPA, many conservation and animal rights groups have con-                               On August 2, 1991, a coalition of 24 environmental organizations
                  tinued to argue that the original purpose of the MMPA as it affects                        petitioned NMFS to list one of the ETP dolphin stocks, the eastern
                  dolphins should be respected, and that the practice of intentionally                       spinner dolphin, as "depleted" under the MMPA. On August 30,
                  deploying nets to encircle dolphins should be ended. A major obsta-                        1991, 21 environmental groups petitioned to list the same species as
                  cle to such a change has been the difficulty of imposing it upon the                       "threatened" under the Endangered Species Act (ESA).
                  fishing fleets of nations other than the United States."                                     On October 28, 1991, a coalition of nine environmental groups pe-
                                            TRADE SANCTIO  INS                                               titioned NMFS to list another ETP species, the northern offshore
                                                                                                             spotted dolphin, as depleted. On January 17, 1992, the American
                    In 1984, the MMPA was amended to require that each nation ex-                            Tunaboat Association notified NMFS by letter that it opposed these
                  porting tuna to the U.S. document that it had adopted a dolphin                            listings on the basis that NMFS did not have adequate data to
                  conservation program equivalent to that of the U.S., and that the                          make the determinations.
                  average rate of mortality of its purse seine fleet was comparable to                         On June 17, 1992, NMFS published a notice in the Federal Regis-
                  that of the U.S. fleet. If these requirements were not met, an em-                         ter (Vol. 57, No. 117, pg. 27010) Proposing to list the eastern spin-
                  bargo on the import of yellowfin tuna and tuna products from that                          ner dolphin as depleted. NMFS estimates that 1,362,000 eastern
                  nation would be invoked. In 1988, the MMPA was further amended                             spinner dolphins were killed in the ETP tuna fishery from 1959-
                  by providing more specific standards with respect to equivalent for-                       1990. The current population estimate for this stock is 565,800.
                  eign conservation programs and comparable mortality rates.                                 NMFS is currently considering whether a threatened listing is ap-
                    In August 1990, Mexico's yellowfin tuna was embargoed under                              propriate for the eastern spinner.
                  the comparability provisions. In accordance with the procedures of                           In a June 18, 1992, Federal Register Notice (Vol. 57, No. 118, pg.
                  the General Agreement on Tariffs and Trade (GATT), Mexico then                             27207) NMFS proposed to list the northern stock of the offshore
                  challenged the U.S. embargo, claiming it to be an unfair trade                             spotted dolphin as depleted. The current population estimate for
                  practice. In September 1991, a dispute panel convened by the                               this stock is 1,651,600. NMFS is also currently considering whether
                  GATT issued a preliminary report supporting Mexico's challenge.                            a threatened listing is appropriate for this stock.
                  The panel report now awaits action by the full GATT council of                               During the 1991 fishing season, the kill by the U.S. fleet, by spe-
                  108 member nations.                                                                        cies and stock, was: 636 northern offshore spotted dolphins; 189
                    The 1988 amendments to the MMPA require the government of                                northern whitebelly spinner dolphins (combined population esti-
                  any intermediary nation from which yellowfin tuna or tuna prod-                            mate for northern and southern whitebelly spinners= 1,020,100); 81
                  ucts will be exported to the United States to certify and provide                          eastern spinner dolphins; 93 central tropical common dolphins
                  reasonable proof that it has acted to prohibit the importation of                          (population estimate= 415,000); and five dolphins of other species.
                  tuna and tuna products from embargoed nations. In Earth Island                               Generally, the MMPA does not allow taking of a marine
                  Institute v. Mosbacher (785 F. Supp. 826 (1992)) the court ruled on                        mammal from a stock or species designated as depleted. While the
                  the meaning of the term "intermediary nation" which resulted in a                          1988 MMPA amendments allow the incidental take of small num-
                  secondary embargo of tuna products from more than 20 interme-                              bers of marine mammals from a depleted stock or species during
                  diary nations. While some of the intermediary nations have since                           the course of commercial fishing operations, those amendments do
                  complied with the certification procedure, other nations have con-                         not cover ETP yellowfin tuna purse seine operations. Consequently,
                  sidered themselves to be unfairly embargoed since they do not                              the effect on the U.S. tuna fleet's general permit of a depleted list-
                  import yellowfin tuna from nations under a primarX embargo. As a                           ing for ETP dolphin stocks is unclear.
                  result, the European Community began a second GATT challenge
                  process in June, 1992.                                                                                              DOLPHIN-SAFE POLICY
                                       STATUS OF DOLPHIN STOCKS                                                In April, 1990, StarKist Seafood Company, a division of H.J.
                                                           -ted by the ETP tuna fishery                      Heinz Co., announced that it would no longer purchase any tuna
                    The status of the dolphin stocks affec                                                   caught in association with dolphins and that it would begin label-
                  has been debated for years. Concern regarding the level of kills of                        ing cans of StarKist tuna with "dolphin-safe" symbols. Van Camp
                  two ETP dolphin species, the coastal spotted dolphin and the east-                         Seafood (Chicken of the Sea) and Bumblebee immediately an-
                  ern spinner dolphin, resulted in a 1984 amendment to the MMPA                              nounced that they would adopt the same policy. Together, these
                  further limiting kills of these species by the U.S. fleet. At the same                     three companies supply over 80 percent of the canned tuna sold in
                  time, the Secretary was directed to undertake a five-year research                         the United States, and employ more than 7,000 American workers
                  program to monitor trends in dolphin stocks. NMFS has now com-                             in their dolphin-safe processing plants in Puerto Rico, American
                  pleted most of the surveys mandated by the five- e r research pro-                         Samoa, and California. In addition, Pan Pacific Fisheries, the last
                                                                  of I,
                  gram, and no significant trends in the status       olphin population                      continental U.S. processor and canner to purchase tuna directly
                  have been detected. However, for such trends to be detected over







                                                      10                                                                                                11
                   from the U.S. tuna fleet in the ETP, announced it would adopt a                                 have been completed by September 10, 1990, and it was finally re-
                   dolphin-safe policy. Pan Pacific employs about 300 workers in a                                 leased by the National Academy of Sciences on February 25, 1992.
                   processing plant located in San Diego, California.                                                 Although Congress had requested a review of fishing methods
                     In response to these voluntary actions, Congress enacted the Dol-                             that did not involve encirclement of dolphins, the Academy's analy-
                   phin Protection Consumer Information Act (P.L. 101-627) in 1990,                                sis concluded that "no methods of catching tuna without killing
                   establishing criteria for labeling tuna products as "dolphin-safe".                             dolphins--currently available or capable of rapid development-are
                   To qualify, tuna caught in the ETP (1) must have been caught by a                               as efficient as current methods". Therefore, while it was not specif-
                   vessel too small to deploy its nets on dolphins; or (2) must be ac-                             ically in its charge to do so, the Academy chose to focus on modifi-
                   companied by a certification from a qualified observer that no dol-                             cations of current methods that involve encirclement.
                   phin sets were made for the entire trip on which that tuna was                                     The report contained no new information, but made several rec-
                   caught; or (3) cannot have been harvested using large-scale drift-                              ommendations based on existing fishing practices, including: (1) de-
                                                                                                                   velopment of an international training program for vessel captains;
                   nets.                                                                                           (2) initiation of an international research program to test alterna-
                     In November, 1991, Kraft General Foods, the largest U.S. pur-
                   chaser of canned tuna for the food service market, announced that                               tive fishing methods; and (3) modification of current methods to
                   it would also adopt a dolphin-safe policy.                                                      further reduce dolphin mortality.
                                      SOUTH PACIFIC TUNA ACT OF 1988                                                                      ADMINISTRATION PROPOSAL
                     On June 7, 1988, the President signed the South Pacific Tuna                                     On March 3, 1992, the Departments of State and Commerce sub-
                   Act (P.L. 100-300), which implemented the Treaty on Fisheries Be-                               mitted a legislative proposal to the Congress aimed at promoting
                   tween the Governments of Certain Pacific Island States and the                                  international dolphin protection and resolving the GATT trade
                   Government of the United States. The treaty assured access to the                               issue. The Administration's proposal imposed a five-year global
                   south Pacific Ocean tuna fishing grounds for most of the U.S. fleet                             moratorium on the practice of intentionally encircling dolphins
                   through 1992. Because dblphins, and tuna do not associate in the                                with purse seine nets; lifted the current embargoes on nations that
                   south Pacific Ocean as they do in the ETP, tuna harvested by                                    commit to the moratorium; implemented additional provisions to
                   purse seine vessels in the south Pacific is considered dolphin-safe.                            reduce dolphin mortalities prior to the onset of the moratorium;
                     Under the treaty, the U.S. tuna fleet has contributed $3 million                              and revoked the existing MMPA permit allowing the U.S. tuna
                                                                                                                   fleet to take 20,500 dolphins annually in the ETP effective with the
     00            annually to purchase licenses for approximately 40 vessels, to fund                             beginning of the moratorium on March 1, 1994. The Administra-
                   an observer program and provide other assistance. The treaty also                               tion's proposal was accom anied by letters of commitment to the
                   requires that the United States provide financial assistance to par-                            moratorium from Venezuela and Mexico.
                   ticipating island governments through the Foreign Assistance Act                                   Response to the Administration's proposal is described in the sec-
                   of 1961. These funds averaged $10 million annually from 1988-                                   tion of this report on Committee Action-March 18, 1992, Hearing.
                   1992.
                     The Department of State recently concluded a renegotiation of                                                              IATTC PROPOSAL
                   the treaty through the year 2002. The new terms include a commit-
                   ment from the Department of State to extend its support through                                    On June 18, 1992, the Inter-American Tropical Tuna Commission
                   the Foreign Assistance Act at an average of $14 million annually                                (IATTC) adopted a multilateral program to reduce dolphin mortali-
                   for the next ten years. The U.S. tuna fleet has committed to a con-                             ties in the ETP. The membership of the IATTC consists of nations
                   tribution of $4 million annually for the same period. The successful                            that either fish for, or purchase large quantities of, ETP-tuna: U.S.,
                   renegotiation of the treaty means that all existing U.S. tuna purse                             France, Japan, Venezuela, Panama, Costa Rica, Nicaragua, and
                   seine vessels, including those now fishing in the ETP, will have the                            Vanuatu. In addition, four non-member nations that fish in the
                   op ortunity to fish in dolphin-safe waters for at least the next                                ETP ratified the resolution; Mexico, Colombia, Ecuador, and Spain.
                     p                                                                                                The IATTC resolution contains the following provisions: (1) limit
                   decade.                                                                                         dolphin mortalities in the ETP tuna fishery, beginning with 19,500
                                 REPORT BY NATIONAL ACADEMY OF SCIENCES                                            mortalities in 1993 and reducing to fewer than 5,000 annual mor-
                                                                                                                   talities by 1999; (2) require that these limits be assigned on a per-
                     The 1988 MMPA amendments directed the Secretary of Com                                        vessel basis, and that a vessel cease fishing when it reaches its
                   merce to contract with the National Academy of Sciences for an in-                              quota of dolphin deaths; (3) establish an international research pro-
                   dependent review of alternative tuna fishing methods that do not                                gram on methods of reducing dolphin mortalities; and (4) require
                   involve the intentional encirclement of dolphins. This review was                               observers on all purse seine vessels.
                   to have been completed by September 8, 1989, and the results sub-                                  The Administration supports the basic provisions of the IATTC
                   mitted to Congress by December 5, 1989. However, the Secretary of                               resolution in the event that H.R. 5419 is not enacted into law. The
                   Commerce did not finalize the contract for the review until Sep-                                environmental community is opposed to the resolution because it
                   tember, 1989. Under the terms of the contract, the review was to                                allows 75,000 dolphin mortalities through 1999, and never com-



                               w9m, Memo" aw-M "WIMMOW'so MOO M-00VOINO

                                                                                                        12
                                    pletely eliminates mortalities or the practice of intentionally encir-                                                                                                                                                                                   13
                                    cling dolphins. The American Tunaboat Association, comprised of
                                    boat owners who fish in the ETP and the south Pacific Ocean, sup-                                                                                                                     tives of the American Tunaboat Association, StarKist Seafood Com-
                                    ports the resolution.                                                                                                                                                                 pany, representatives of the governments of Mexico and Venezuela,
                                                                                                                                                                                                                          and the Administration. On June 1, 1992, Mr. Studds and Mr.
                                                                                      Commmrpm ACTION                                                                                                                     Young sponsored a meeting attended by eight national environ-
                                                                                MARCH 18, 1992                    HEARING                                                                                                 mental organizations, the American Tunaboat Association, the U.S.
                                                                                                                                                                                                                          Tuna Foundation (consisting of boat owners and canners), StarKist,
                                        On March 18, 1992, the Subcommittee on Fisheries and Wildlife                                                                                                                     the Office of the U.S. Trade Representative, the EPA, and the De-
                                    Conservation and the Environment conducted a hearing on the Ad-                                                                                                                       partments of Commerce and State. The meeting was chaired by a
                                    ministration's proposed legislation. The Subcommittee heard testi-                                                                                                                    professional mediator, and its purpose was to ascertain ways to im-
                                    mony from two panels of witnesses. The first panel consisted of-                                                                                                                      prove the Administration's proposal and find common areas on
                                    Mr. Curtis Bohlen, Assistant Secretary of State for Oceans, Inter-                                                                                                                    which to base similar legislation.
                                    national Environmental, and Scientiric Affairs who was accompa-                                                                                                                                                                     SUBCOMMITTEE MARKUP
                                    nied by Mr. David Colson, Deputy Assistant Secretary of State for
                                    Oceans and Fisheries Affairs; Ms. Carmen Suro-Bredie, Assistant                                                                                                                           On June 25, 1992, the Subcommittee met to mark up H.R. 5419.
                                    U.S. Trade Representative for Intellectual Property and the Envi-                                                                                                                     Mr. Studds and Mr. Goss offered a series of technical amendments
                                    ronment; and Mr. Jay Johnson, Deputy General Counsel for the                                                                                                                          en bloc which were adopted by voice vote.
                                    National Oceanic and Atmospheric Administration.                                                                                                                                          Mr. Tauzin offered an amendment to extend the bill's sanction
                                        Secretary Bohlen, speaking for the Administration, explained                                                                                                                      provisions to include shrimp and shrimp products. Following a dis-
                                    that the Administration's proposal had been endorsed by the gov-                                                                                                                      cussion on conflicting information relating to Mexico's commit-
                                    ernments of Mexico, Venezuela, and Panama, all of whom agreed                                                                                                                         ments to implement sea turtle conservation practices in its shrimp-
                                    that its enactment would save the lives of 20,000 dolphins each                                                                                                                       ing industry, Mr. Tauzin agreed to withdraw the amendment pend-
                                    year from now into the foreseeable future. He added that the pro-                                                                                                                              esolution of the issue prior to Full Committee markup. There
                                                                                                                                                                                                                          Ing r
                                    posal would also be good for U.S. foreign relations, which had been                                                                                                                   being       no further amendments, the Subcommittee adopted the bill
                                    strained by what the other nations saw as a failure by the U.S. to                                                                                                                    by voice vote and ordered H.R. 5419, as amended, reported to the
                                    comply with its international trade obligations.                                                                                                                                      Full Committee,
                                        The second panel consisted of: Dr. James Joseph, Director of the                                                                                                                                                              FULL COMMITTEE MARKUP
                                    Inter-American Tropical Tuna Commission; Mr. Richard Atchison,
                                    Executive , Director of the American Tunaboat Association; Ms.                                                                                                                            The Full Committee met on July 1, 1992, to consider H.R. 5419 as
                                    Traci Romine, Tuna/Dolphin Project Coordinator for Greenpeace                                                                                                                         reported by the Subcommittee. Mr. Studds and Mr. Goss offered a
                                    International; and Mr. John Fitzgerald from Defenders of Wildlife.                                                                                                                    series of technical amendments en bloc which were adopted by
                                        The witnesses on the second panel each disagreed with various                                                                                                                     voice vote.
                                    aspects of the Administration's proposal. Dr. Joseph recommended                                                                                                                          Mr. Tauzin offered an amendment to extend the bill's sanction
                                    that the Administration allow a much longer time period prior to                                                                                                                      provisions to include a ban on imports of shrimp and shrimp prod-
                                    implementing a moratorium. Mr. Atchison expressed concerns                                                                                                                            ucts from nations who had committed to the moratorium but had
                                    about the impact of the proposal on the U.S. fleet. Ms. Romine rec-                                                                                                                   failed to implement those commitments within 90 days after being
                                    ommended a more multilateral approach, and Mr. Fitzgerald stated                                                                                                                      certified by the Secretary of Commerce. The amendment was
                                    that the propo@al in its current form did not contain enough en-                                                                                                                      adopted by voice vote.
                                    forcement. provisions to ensure international compliance. Both Ms.                                                                                                                        After a discussion regarding the bill's potential impacts on the
                                    Romine and Mr. Fitzgerald assured the Subcommittee of their will-                                                                                                                     tuna fishing industry, Mr. Davis moved to send the bill back to the
                                    ingness to work with the Administration on a better proposal.                                                                                                                         Subcommittee. The motion was defeated by a division vote of 16-8.
                                                                                                                                                                                                                          The Committee then reported the bill favorably to the House of
                                                                           ADDITIONAL COMMITTEE ACTION                                                                                                                    Representatives by a recorded vote of 32 in favor and 12 against.
                                        H.R. 5419, a bill to establish a global moratorium on the practice                                                                                                                    The vote on H.R. 5419, as amended, was recorded as follows:
                                    of harvesting tuna by intentionally encircling dolphins with purse
                                    seine nets, was introduced by Mr. Studds, Mr. Goss, Mrs. Boxer,                                                                                                                                                                    Member                                                             yea                Nay
                                    and Ms. Schroeder on June 17, 1992. The bill was referred to the
                                                                                                                                                                                                                          Walter B. Jones, North Carolina   .................................................................................................X.............................
                                    Committee on Merchant Marine and Fisheries, and the Committee                                                                                                                         Gerry E. Studds, Massachusetts    .................................................................................... ...... .....X ................
                                    referred the bill to the Subcommittee on Fisheries and Wildlife                                                                                                                       Carroll Hubbard, Jr., Kentucky    ...................................................................................................X.............................
                                    Conservation and the Environment.                                                                                                                                                     William J. Hughes, Now Jersey     ................................................  .................................................P........................
                                        Prior to the introduction of the bill, Subcommittee staff held a                                                                                                                  Earl Hutto, Florida ....................................................................; ................      p         .............................
                                                                                                                                                                                                                          W.J. (Billy) Tauzin, Louisiana    ...................................................................................................P.................I...........
                                    series of meetings with the environmental community, representa-                                                                                                                      Thomas M. Foglietta, Pennsylvania     ............................................................................................Pw ......................
                                                                                                                                                                                                                          Dennis M. Hertel, Michigan        ................................................................................................ . X.............................
                                                                                                                                                                                                                          William 0. Litrinski. Illinois ..........................................................  ..............................................P.............................







                                                                                                                          14                                                                                                                                                                                                              15
                                                                                                   Member                                                                 yea                      Nay                                                      methods. This subsection also credits the U.S. tuna fishing industry
                                                                                                                                                                                                                                                            with developing methods to reduce dolphin mortalities and the U.S.
                                           Robert A. Borski, Pennsylvania                 .....................................             .....................         P            .............................                                        tuna processing companies with voluntarily establishing a dolphin-
                                           Thomas R. Carper, Delaware                     ............................................................. ............................X              I......................                                  safe policy. In addition, the subsection recognizes that                                                                                  other gov-
                                           Robin Tallon, South Catarina                   ......................................................................................................P.............................
                                           $Oman P. Ortiz, Texas                          ................. ...............................................................................X.............I...............                                   ernments have indicated their willingness to reduce and eventually
                                           Charles 1. Bennett, Florida                    ...............................................................  .......................................................                                          eliminate dolphin mortalities associated with the purse                                                                                   seine fish-
                                           Thomas J. Manlon, New York                     ....................................................................................................                                                              ery in the ETP.
                                           Owen B. Pickett, Virginia                      -................ ...............................................................................X.............................                                        Subsection (b) determines that it is U.S. policy to eliminate
                                           George J. Hoclibrueckner, New York             ..................... .................  ............... ..................................X             ................-
                                           Stephen ). Solairz, New York                   .......................................................................... __ .......................P   .....................                                    marine mammal mortalities resulting from intentional encircle-
                                           Frank Pallone, Jr., Now jersey                 .......... ..............................................  .........................................P    I..........                                              ment of dolphins in tuna purse seine fisheries. The Committee used
                                           Greg Laughlin, Texas                           ................ ........................... ...............  .....................................................P ..........................                   the term "intentional" to distinguish this practice from other fish-
                                           Nita M. Lowey, New York                        ..........................................................................................  ...........X.............................                             ing methods in which marine mammals may be accidentally killed
                                           Jolene Unsoeld, Washington                              ...............................................................................X       ............_ _
                                           Gene Taylor, Mississippi                       .............................................................................................................X                                                    or injured during the course of normal fishing operations, The
                                           Glenn M. Anderson, California                  ...................................................................................................... ............................X                              Committee recognizes that in other fisheries, including other purse
                                           Jack Reed, Rhode (stand                        ................................ ................................................. .........................                                                                     isheries, marine mammals are not specific
                                                                                                                                                                          X              ..................... ....                                         seine fi                                                                                                                  ally targeted for
                                           William J. Jefferson, Louisiana                .............................................................. ....................................X.............................                                 encirclement or net deployment as they are in the yellowfin tuna
                                           Evil F.H. Falewavaega, American Samoa                   ............... ................  ...........................................X      .............................
                                           0. Martin Lancaster, North Carolina            .......... ............................................ ..................................X  .............................                                        purse seine fishery in the ETP.
                                           Lucien E. Blackwell, Pennsylvania              ............................. ...................................................X           ..........  -1 ................                                           This subsection also establishes that it is U.S. policy to secure
                                           Robert W. Davis, Michigan @                    ............... ............................................ ......................................................  ..........X                                  international agreements to reduce and eventually eliminate dol-
                                           Dan Young, Alaska      ...................................................................... ..........................  ..............................................P                                        phin mortalities in the ETP, to encourage the use of observers on
                                           Norman F. Lent, New York                       .........................   ..........  .......................................................................P
                                           Jack Fields, leas      ...................................... ....................                          ........................ ................   X                                                        non-U.S. purse seine vessels, and to ensure that the U.S. market
                                           Herbert H. Bateman, Virginia                   ..................................................................     _........................................................                                  does not act as an incentive for the harvest of dolphin-unsafe tuna.
                                           Jim Saxton, New Jersey                         .........................................................................................................X............................                            Finally, subsection 301(b) determines that it is policy to ensure that
                                           Helen Delich Bentley, Maryland.                ............................................  ...................................................................................P                                U.S. tuna fishing vessels have access to productive tuna fishing
                                           Howard Coble, North Carolina                   ....................................... .........................................  .................................................P
                                           Curl Weldon, Peimsylvania_                     .........................-...................... ..................................P                     1-1.11 ..............                                    grounds outside of the ETP.
                                           Wally "eigey, California                       .................... .................................................... ......................................................X
                                           James M. Inhofe, Oklahoma                      ................ ........................................................................  ............................................P                          Section 302. International agreements to establish a global morato-
                                           Poder J. Goss, Florida                         ................................ ...............................................................................X.................                                          rium to prohibit certain tuna harvesting practices
                                           Arthur Ravenel, it,, South Catalina            ................................................  ................. .........................X............................I
                                           Sonny Callahan, Alabama                        .................. ................................................................................................ ..,                                                Subsection 302(a) authorizes the Secretary of State to enter into
                                                                                                                                                                                                   P
                                           Wayne T. Gilchrest. Maryland                   ...............        ..........................................................X           ........... I.................                                       international agreements which establish a global moratorium of
                                           John 1. Doolittle, California                  ................................................_............  ..................................................X                                                at least five years' duration on the practice of intentionally encir-
                                           Randy "Duke" Cunningham, California                     .....................................  .......... ___  ____   __ ...............  ...........   X                                                        cling dolphins with purse seine nets during tuna fishing operations.
                                                     Total@  ..................           ......................................................................................................... 32 12                                                   While the Committee recognizes that the Secretary of State does
                                              Note.-Those Members voting by proxy are indicated wilh a ?." Those Members voting in person wt indicated by 1.1'                                                                                              not require Congressional authority to enter into such internation-
                                                                                                                                                                                                                                                            al agreements, the Committee intends that this subsection will
                                                                                                                                                                                                                                                            serve to encourage the Secretary to do so.
                                                                                          SECTION-BY-SECTION ANALYSIS                                                                                                                                            Subsection (b) specifies the terms of international agreements en-
                                                                                                   SECTION 1. SHORT TITLE                                                                                                                                   tered into pursuant to 301(a). The subsection establishes that the
                                                                                                                                                                                                                                                            moratorium is to take effect on March 1, 1994. This date was deter-
                                               This section states that the short title of the bill is the Interna-                                                                                                                                         mined during the initial Department of State negotiations with
                                           tional Dolphin Conservation Act of 1992.                                                                                                                                                                         Mexico and Venezuela which resulted in the Administration's pro-
                                                                                                                                                                                                                                                            posal of March 3, 1992. Terms of agreement shall also include an
                                                      SECTION 2. GLOBAL MORATORIUM TO PROHIBIT CERTAIN TUNA                                                                                                                                                 international research program, and reviews and reports of the re-
                                                                                                   HARVESTING PRACTICES                                                                                                                                     search conducted under that program. This subsection also requires
                                               Section 2 amends the MMPA by creating a new title, Title 111,                                                                                                                                                each country that is a party to the agreement to take whatever
                                           establishing a global moratorium to prohibit certain tuna harvest-                                                                                                                                               steps may be necessary to comply with the moratorium, and to en.
                                           ing practices. New sections 301-308 would be established under the                                                                                                                                               courage other countries to enter into the moratorium.
                                           new title.                                                                                                                                                                                                            Subsection (c) establishes a procedure by which the U.S. could
                                                                                                                                                                                                                                                            withdraw from a five-year moratorium prior to December 31, 1999.
                                           Section 301. Andings and policy                                                                                                                                                                                  Under this procedure, the Secretary of Commerce is required to
                                               Subsection 301(a) of the MMPA, as amended by the new title,                                                                                                                                                  submit a recommendation to the Congress that the moratorium be
                                           finds that the yellowish tuna fishery of the ETP has resulted in                                                                                                                                                 terminated. Section 304 establishes the procedures by which such a
                                           millions of dolphin deaths and that, as a result, increased concern                                                                                                                                              recommendation could be made. The recommendation must then
                                           for dolphin populations has encouraged a global change in fishing                                                                                                                                                be approved by a joint resolution initiated in either House of Con-


                                                                                                                                                                                                              k



                                                                                                                                                   00 M ON OW no


                                                    16                                                                                              17
                 gress. The Committee does not intend that this procedure should be                             Section 305. International commitments
                 used for unilateral action on the part of the U.S. to terminate the                               Subsection 305(a) provides that the existing embargo provisions
                 moratorium without an international agreement to do so, as estab-
                 lished in section 304.                                                                         of section 101 of the MMPA will not apply to nations that formally
                                                                                                                commit to (1) implementing a moratorium on encircling dolphins
                 Section 30S. Resear.ch programs                                                                with purse seine nets effective March 1, 1994; (2) requiring observ-
                   This section requires agreements establishing a moratorium to                                ers on all their tuna purse seine vessels larger than 400 short tons
                 have an international research component. Section 303 introduces                               carrying capacity; and (3) reducing their dolphin mortalities until
                 the concept of a "competent regional organization" into H.R. 5419.                             the effective date of the moratorium.
                 This term is defined in section 308 of the bill.                                                  Subsection (b) requires the Secretaries of State and Commerce to
                   Subsection 303(a) states that the research program must have                                 determine periodically whether countries that have committed to
                 two goals: To develop methods of fishing for large yellowfin tuna (1)                          the moratorium are implementing their commitments. The Com-
                 without encircling dolphins, and (2) by encircling dolphins without                            mittee expects that such determinations will occur at intervals of
                 causing mortalities. This subsection also requires that the interna-                           Po less than six months. This subsection also establishes a series of
                 tional research program be conducted under the auspices of a com-                              import bans on nations that fail to comply with their commitments
                 petent regional organization, and that research cruises be conduct-                            under an international agreement.
                 ed by vessels that encircle dolphins solely for research purposes                                 Paragraph (1) requires that, 15 days after a nation has been cer-
                 and not for commercial harvest. Research cruises must also have                                tified for failing to implement all the commitments described in
                 an observer on board.                                                                          subsection 305(a), its yellowfin tuna and yellowfin tuna products
                   Paragraph (b)(1) limits the total number of research sets during                             will be banned from entry into the U.S.
                 which dolphins are encircled to 400 annually and the total dolphin                                Paragraph (2) extends the ban to all fish and fish products,
                 mortality during research sets to 1,000 annually. Paragraphs (2)                               except shrimp, 60 days after the tuna ban goes into effect. This em-
                 and (3) recognize the role of the IATTC, as the competent regional                             bargo applies only if the nation fails to implement the moratorium
                 organization in the ETP, in reviewing research procedures.                                     or has not taken the necessary actions to remedy its failure to
                   In subsection (c), paragraph (1) requires that funding for research                          comply with the other commitments described in subsection (a).
                 be established in a fair and equitable manner. The Committee in-                               Paragraph (3) extends the embargo to include shrimp and shrimp
                 tends that research funds should be fairly distributed among the                               products after 90 days under the same conditions described in para-
                 nations that participate in, and adhere to the requirements of, an                             graph (2).
                 international research program. Paragraph (2) states that, to the                                 The Committee understands that inadvertent occasional failures
                 extent possible, the proceeds of tuna harvested during research                                to comply with the requirement of 100 percent observer coverage
                 cruises should be used to fund the research program.                                           on purse seine vessels may occur, or that a nation may fail by a
                   Paragraph (3) requires funding provided by the U.S. for research                             small margin to meet the requirement of reducing its dolphin mor-
                 to be used only for developing alternative methods of fishing that                             talities prior to the moratorium by a statistically significant
                 do not involve encircling dolphins. This paragraph does not repre-                             amount. It is the Committee's intent that the bans on imports of
                 sent a change from existing U.S. policy.. @inally, paragraph (4) re-                           fish, fish products, shrimp, and shrimp products will apply only if a
                 quires that the Marine Mammal Commission review research pro-                                  nation is not making a good faith effort to correct these occasional
                 posals to the IATTC and recommend an appropriate response to                                   failures to comply, or if the nation is not complying with the mora-
                 the U.S. Commissioners to the IATTC.                                                           torium on encircling dolphins.
                                                                                                                   Paragraph (4) establishes that the bans will stay in effect until
                 Section 304. Reviews, reports, and recommendations                                             the Secretary of Commerce determines that the country is imple-
                   Subsection (a) requires the Secretary of Commerce to submit                                  menting its commitments.
                 annual reports to the Congress on actions taken pursuant to the                                   Subsection (c) requires the Secretaries of State and Commerce to
                 bill.                                                                                          periodically review the activities of nations who have committed to
                   Subsection (b) establishes the requirements that must be fulfilled                           the moratorium and to include the results of those reviews in the
                 before the Secretary can recommend to the Congress that the mor-                               Secretary's annual report to the Congress.
                 atorium be lifted. The Committee expects that a Secretarial recom-                             Section 306. Permits for taking dolphins
                 mendation to lift. the moratorium prior to December 31, 1999, will                                Subsection 306(a) modifies the existing general MMPA permit
                 be based on proof from a competent regional organization or other                              granted to the A erican Tunaboat Association. Paragraph (1)
                 nation that a method of encircling dolphins without mortalities has                            limits the total number of dolphin mortalities to 1,000 for 1992 and
                 been developed, or that dolphin-safe methods of fishing have nega-                             800 for 1993 and the first three months of 1994.
                 tively affected yellowfin tuna stocks to a major degree. The Com-                                 Paragraph (2) does not represent a change from existing law,
                 mittee also expects the Secretary to consult with the Marine                                   which prohibits encircling any school of dolphins in which eastern
                 Mammal Commission prior to making the recommendation.                                          spinner dolphins or coastal spotted dolphins are observed. The








                                                      18                                                                                                   19

                Committee expects that the Secretary of Commerce will take the                                        nation" went beyond the intent of Congress in the 1988 amend-
                appropriate regulatory actions to condition research sets or encir-                                   ments to the MMPA, and that a clarification of the term is neces-
                clement of other dolphin species consistent with findings on deplet-                                  sary.
                ed or threatened species.
                   Pa,ragraph (3) revokes the general permit effective with the be-                                     SECTION 3. AMENDMENTS TO TUNA CONVENTIONS ACT OF 1950 AND
                ginning of the moratorium'                                                                                                SOUTH PACIFIC TUNA ACT OF 1988
                   Subsection (b) states that the existing requirements of the
                             I                                                                                          Subsection (a) amends the Tuna Conventions Act of 1950 by re-
                MMPA re ative to research permits or other permits to take                                            quiring that one of the U.S. Commissioners to the IATTC be a rep-
                marine mammals apply to this title.                                                                   resentative from a nongovernmental conservation organization,
                Section 307. Prohibitions                                                                             and that nongovernmental conservation organizations be among
                   Subsection 307(a) assures that the U.S. market will not serve as                                   the interests represented on the Advisory Committee to the U.S.
                an incentive for the harvesting of dolphin-unsafe tuna by establish-                                  Commissioners.
                ing a dolphin-safe tuna market in the United States.                                                    Subsection (b) extends the authorization for the South Pacific
                   Paragraph (1) makes it unlawful for anyone to sell, purchase,                                      Tuna Act of 1988 through 2002.
                offer for sale, transport, or ship any dolphin-unsafe tuna product in                                                    INFLATIONARY IMPACT STATEMENT
                the U.S. after June 1, 1994, Given that H.R. 5419 allows tuna to be
                harvested with dolphin-unsafe methods through February 28, 1994,                                        Pursuant to clause 20)(4) of rule XI of the Rules of the House of
                the Committee does not intend that tuna processors, wholesalers,                                      Representatives, the Committee estimates that the enactment of
                or others should be deprived of the ability to sell possible remain-                                  H.R. 5419 would have no significant inflationary impact upon
                ing stocks of such tuna. ThisoNrovision of the bill is therefore in-                                  prices and costs in the operation of the national economy.
                tended to allow a 90-day peri         following the effective date of the
                moratorium for the sale of remaining stocks of dolphin-unsafe                                                                 COST OF THE LEGISLATION
                tuna.
                   Paragraph (2) prohibits U.S. vessels and persons subject to U.S.                                     Clause 7(a) of rule XIII of the Rules of the House of Representa-
                jurisdiction from intentionally encircling dolphins with purse seine                                  tives requires an estimate by the Committee of the costs which
    NJ          nets after the effective date of the moratorium except for research                                   would be incurred in carrying our H.R. 5419. However, clause 7(d)
    C@          purposes or unless the moratorium is terminated under section 302                                     provides that this requirement does not apply when the Committee
    FJ          of this title.                                                                                        has included in its report a timely submitted cost estimate of the
                   Paragraph (3) states that it is unlawful to import into the U.S.                                   bill prepared by the Director of the Congressional Budget Office
                any fish or fish products in violation of a ban on those products                                     under section 403 of the Congressional Budget Act of 1974.
                under section 305.
                   Paragraph (4) states that it is unlawful to violate regulations pro-                                                 COMPLIANCE WITH HOUSE RULE XI
                mulgated under this title, and paragraphs (5) and (6) establish the                                     1. The Subcommittee on Fisheries and Wildlife Conservation and
                enforcement mechanisms of the bill.                                                                   the Environment held hearings on the subject of this legislation on
                   Subsection (b) extends the existing penalty provisions of the                                      March 18, 1992.
                MMPA to this title. The Committee reco           nizes the possibility that                             2. With respect to the requirement of clause 20)(3)(B) of rule XI
                                                                 ly
                tuna processing companies may occasional unknowingly purchase                                         of the Rules of the House of Representatives and section 308(a) of
                tuna products that contain some dolphin-unsafe tuna. The Commit-                                      the Congressional Budget Act of 1974, H.R. 5419 does not contain
                tee intends that the penalty and forfeiture provisions of this title
                will be applied to persons who knowingly and willfully violate sub-                                   any new budget authority, spending authority, credit authority, or
                section (a).                                                                                          an increase or decrease in revenues or tax expenditures.
                   Subsection (c) extends the existing forfeiture provisions of the                                     3. With respect to the requirement of clause 2(l)(3)(D) of rule XI
                Magnuson Fishery Conservation and Management Act to this title,                                       of the Rules of the House of Representatives, the Committee has
                and subsection (d) defines "dolphin-unsafe" tuna.                                                     received no report of oversight findings and recommendations from
                                                                                                                      the Committee on Government Operations on the subject of H.R.
                Section 308. Authorization of appropriations                                                          5419.
                   Subsection (a) authorizes $3,000,000 in each         of the fiscal years                             4. With respect to the requirement of clause 2(l)(3)(C) of rule XI
                1993, 1994, 1995, 1996, 1997, and 1998 to be appropriated to NMFS                                     of the Rules of the House of Representatives and section 403 of the
                to carry out the provisions of this title.                                                            Congressional Budget Act of 1974, the Committee has received the
                   Subsection (b) amends the MMPA table of contents.                                                  following cost estimate for H.R. 5419 from the Director of the Con-
                   Subsection,,(c) defines the terms "fishery", "competent regional                                   gressional Budget Office.
                organization , and "intermediary nation". It is the Committee's
                opinion that the court's intepretation of the term "intermediary



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                                                                                                            DISSENTING VIEWS TO H.R. 5419 OF REPRESENTATIVE
                                                                                                                         RANDY "DUKE" CUNNINGHAM
                                                                                                           I am stront nosed to the International Dolphin Conservation
                                                                                                                        ., 4
                                                                                                         Act of 1992, R. 419, which will substitute a dubious, unilateral
                                                                                                         polic for a truly effective multilateral regime. I believe the bill is
                                                                                                         basel on assumptions which are no longer relevant. H.R. 5419 dis-
                                                                                                             u
                                                                                                         regards the recommendations of a comprehensive National Acade-
                                                                                                         my of Sciences (NAS) report. The bill does not implement the pro-
                                                                                                         visions of the Inter-American Tropical Tuna Commission (IATTC),
                                                                                                         in which nine countries (Colombia, Costa Rica, Ecuador, Mexico,
                                                                                                         Panama, Spain, United States, Vanuatu, and Venezuela) agreed to
                                                                                                         a multilateral approach. Rather, H.R. 5419 relies on a unilateral
                                                                                                         approach, which will damage U.S. industry and world tuna stocks.
                                                                                                         Nevertheless, H.R. 5419 was favorably reported by the Merchant
                                                                                                         Marine and Fisheries Committee.
                                                                                                           This legislation completely ignores the outstanding record of dol-
                                                                                                         phin mortality reduction by the international tuna fleet operating
                                                                                                         in the Eastern Tropical Pacific (ETP) since the 1988 amendments
                                                                                                         to the MMPA. It also disregards the findings of the NAS report
                                                                                                         which concluded that there were in excess of 8 million dolphin in
                                                                                                         the ETP alone, and that the best way for the United States to ad-
                                                                                                         dress the tuna/dolphin issue was to work cooperatively with the
     NJ                                                                                                  other fishing nations of the region to reduce the incidental take of
     Q
     W                                                                                                   dolphins. The NAS report emphasized the need for international
                                                                                                         cooperation and participation in an extensive research program to
                                                                                                         further improve the existing dolphin release technology while in-
                                                                                                         vestigating alternative methods for catching the larger yellowfin
                                                                                                         tuna of the area without encircling dolphins. Yet, H.R. 5419 fails to
                                                                                                         heed the same NAS report which Congress requested several years
                                                                                                         ago.
                                                                                                           More importantly, H.R. 5419 does not even acknowledge the re-
                                                                                                         cently concluded IATTC tuna/dolphin agreement which has been
                                                                                                         endorsed by all of the nations which fish in the ETP and most of
                                                                                                         the nations bordering the ETP fishery. This agreement and the res-
                                                                                                         olution which accompanies it provide a truly multilateral commit-
                                                                                                         ment toward reducing the incidental take of dolphins and increase
                                                                                                         the international commitment to research as recommended in the
                                                                                                         NNS report.
                                                                                                           Proponents of the bill have stated that this legislation is support-
                                                                                                         ed by major tuna fishing nations. However, the Committee ignored
                                                                                                         the fact that I have been told personally by the Venezuelan Minis-
                                                                                                         ter of Fisheries that his government does not endorse the bill and
                                                                                                         strongly supports the IATTC approach. Vanuatu, a major tuna
                                                                                                         fishing nation, also opposes this bill. After conversations with
                                                                                                         senior Mexican officials, I believe that Mexico also disagrees with
                                                                                                         H.R. 5419. As the substance of the bill becomes better known, I
                                                                                                         fully expect additional opposition to emerge.
                                                                                                                                           (33)








                                                    34

                    As a Member of Congress who represents many tuna fishermen,
                  I am proud of their record in reducing the incidental take of dol-
                  phins to just 1,000 last year, with a release rate of 99.8 percent. I
                  @m even more proud of the role that the tuna industry has played
                  in getting all of the ETP nations to enter into the recently conclud-
                  ed IATTC agreement. The IATTC multilateral commitment to
                  lower the dolphin mortality rate over the next seven years insures
                  that the dolphin population will continue to grow and that precious
                  yellowfin tuna stocks will not be damaged by overfishing small, im-
                  mature tuna in the Western Tropical Pacific.
                    Finally, I share the U.S. tuna industry's view that the tuna/dol-
                  phin issue should be addressed on a multilateral basis, and not
                  through unilateral actions by the United States. I cannot support
                  the elimination of our tuna industry in the ETP. In the long run,
                  this bill will increase dolphin mortality, close the ETP to U.S. boats
                  forever, and leave the most valuable mature yellowfin tuna fishery
                  to flags of convenience vessels with little concern for dolphin mor-
                  tality. The United States tuna industry could lose as many as 1,000
                  jobs from this legislation. In the short term, it would lift the em-
                  bargoes against Mexico and Venezuela and allow them to start ex-
                  porting "dolphin-unsafe" canned tuna to the United States.
                    This legislation is unnecessary and counterproductive. I urge the
                  House to reject H.R. 5419.
                                                      RANDY "DUKE" CUNNINGHAM.


                                                    0



              www") NOW$= MM M-OM ww" A= M WM


                                                                                                 102D CONGRESS I __                                REPT. 102-746
                                                                                                    2d Session  I HOUSE OF REPRESENTATIVES       I     Part 2



                                                                                                  INTERNATIONAL DOLPHIN CONSERVATION ACT OF 1992




                                                                                                  JuLy 31, 1992- Committed to the Committee of the Whole House on the State of
                                                                                                                   the Union and ordered to be printed



                                                                                                    Mr. ROSTENKOWSKI, from the Committee on Ways and Means,
                                                                                                                     submitted the following


                                                                                                                          REPORT


                                                                                                                       [To accompany H.R. 54191

                                                                                                          [Including cost estimate of the Congressional Budget Office]
                                                                                                   The Committee on Ways and Means, to whom was referred the
                                                                                                 bill (H.R. 5419) to amend the Marine Mammal Protection Act of
    En                                                                                           1972 to authorize the Secretary of State to enter into international
                                                                                                 agreements to establish a global moratorium to prohibit harvesting
                                                                                                 of tuna through the use of purse seine nets deployed on or to encir-
                                                                                                 cle dolphins or other marine mammals, and for other purposes,
                                                                                                 having considered the same, report favorably thereon with amend-
                                                                                                 ments and recommend that the bill as amended do pass.
                                                                                                   The amendments (to the introduced bill) are as follows:
                                                                                                   In title III of the Marine Mammal Protection Act of 1972, as pro-
                                                                                                 posed to be added by section 2(a) of the bill-
                                                                                                       (1) strike out "PROGRAM." in the heading to proposed sec-
                                                                                                     tion 303 and insert "PROGRAMS.";
                                                                                                       (2) strike out "the agreement" in proposed section 304(a)(3)
                                                                                                     and insert "agreements entered into under section 302";
                                                                                                       (3) strike out "Act" in proposed section 304(a)(6) and insert
                                                                                                     "title";
                                                                                                       (4) strike out "an agreement" in proposed section 304(b) and
                                                                                                     insert "agreements entered into";
                                                                                                       (5) strike out "TUNA AND and insert "YFI,LOWFIN TUNA AND"
                                                                                                     in the sideheading to proposed section 305(b)(1);
                                                                                                       (6) strike out paragraph (3) of proposed section 305(b)(2);
                                                                                                       (7) redesignate paragraph (4) of proposed section 305(b) as
                                                                                                     paragraph (3) and in such redesignated paragraph strike out
                                                                                                     "(1), (2), or (3)" and insert "(1) or (2)";

                                                                                                    57-772







                                                         2                                                                                                     3
                          (8) strike out "international agreement': i      n proposed section                           regulations that permit up to 20,500 dolphins to be killed annually.
                       306(b) and insert "agreement entered into';                                                      However, continually improved technology and the fact that all but
                          (9) strike out paragraph (3) of proposed         section 307(a) and                           seven U.S. tuna vessels from the ETP relocated to the south Pacific
                       insert the following:                                                                            Ocean combined to reduce the kill of the U.S. fleet in 1991 to about
                                                                                                                        1,000 dolphins. At the same time, the foreign fleet in the ETP
                              "(3) for any person to import any yellowfin tuna or                                       killed some 25,000 dolphins in the ETP in 1991.
                            yellowfin tuna product or any other fish or fish prod-                                        In 1984, the MMPA was amended to require that each nation
                            uct in violation of a ban on importation imposed under                                      wishing to export tuna to the United States document that it had
                            section 305(b)(1) or (2);                                                                   adopted a dolphin conservation program "comparable" to that of
                          (10) in the entry for section 302 in the table of contents con-                               the U.S. fleet. This requirement was strengthened in 1990. In
                       tained in section 2(b) of the bill, strike out "agreement" and                                   August 1990, Mexico's yellowfin tuna was embargoed under the
                       insert "agreements"; and                                                                         comparabilit provision. In accordance with GATT procedures,
                          (11) strike out "FISHERY DEFINED" in the sideheading to sec-                                  Mexico cha     enged the U.S. embargo and in September 1991, a
                       tion 2(c) of the bill and insert "DEFINITIONS".                                                  GATT panel found in favor of Mexico. Venezuelan exports of yel-
                    In section 3(a) of the bill-                                                                        lowfin tuna to the United States were also embargoed and Venezu-
                          (1) insert "is amended-" after "Act";                                                         ela began a GATT case against the United States in May 1992. A
                          (2) strike out "952" in subsection (a)(1) and insert "3"; and                                 third GATT challenge was brought b the European Community
                          (3) strike out "953" in subsection (a)(2) and insert 'W'.                                     (EC) in June 1992, after a Federal Yistrict court ruled that the
                                                                                                                        MMPA also required a secondary embargo of tuna products from
                          BACKGROUND, PURPOSE, AND JUSTIFICATION                                                        some 20 intermediary nations, including those of the EC, that had
                    The Marine Mammal Protection Act (MMPA) was enacted in                                              failed to certify and offer reasonable proof that they had acted to
                  1972 for the purpose of protecting marine mammals, including dol-                                     prohibit the importation of tuna from the primary embargoed na-
                  phins, from the adverse effects of human activities. For reasons not                                  tions.
                  fully understood, schools of large yellowfin tuna associate with                                        In the past several years, virtually all U.S. canners of tuna prod-
                  schools of dolphins in the eastern tropical Pacific Ocean (ETP).                                      ucts have announced that they would no longer purchase any tuna
     NJ                                                                                                                 caught in association with dolphins and would henceforth label
                  Since the late 1950's, fishermen have used the dolphins to locate
                                                                                                                        their cans of tuna with "dolphiii-safe" symbols. During the same
                  tuna, and then deployed large purse seine nets around dolphins to                                     time, the Administration successfully negotiated a fisheries treaty
                  harvest the tuna swimming beneath them. During the process, dol-                                      with nations of the South Pacific region which will permit all exist-
                  phins can become trapped in the nets and drown. It has been esti-                                     ing U.S. tuna purse seine vessels, including those now fishing in
                  mated that more than 6 million dolphins have been killed by U.S.                                      the ETP, to fish in the dolphin-safe waters of the South Pacific at
                  and foreign fishermen in the ETP since 1959. Indeed, the number                                       least through the year 2002.
                  of dolphins killed in the ETP tuna fishery was one of the driving                                       On March 3, 1992, the Departments of State and Commerce sub-
                  factors behind passage of the MMPA in 1972.                                                           mitted a legislative proposal to the Congress aimed at promoting
                    The MMPA directs the Secretary of the Treasury to ban the im-                                       international dolphin protection and resolving the GATT trade dis-
                  portation of commercial fish or products from fish which have been                                    putes. After conducting hearings on the proposal and consulting
                  caught with commercial fishing technology which results in the in-                                    further with the Administration and interested private sector
                  cidental kill or incidental serious injury of ocean mammals in                                        groups on the issue, Mr. Studds, Chairman of the Subcommittee on
                  excess of U.S. standards. In carrying out the ban, the Secretary, in                                  Fisheries and Conservation and the Environment, on June 17, 1992,
                  the case of yellowfin tuna harvested with purse seine nets in the                                     introduced H.R. 5419, a bill to establish a global moratorium on the
                  eastern tropical Pacific Ocean, and products therefrom, to be ex-                                     practice of harvesting tuna by intentionally encircling dolphins
                  ported to the United States, shall require that the government of                                     with purse seine nets.
                  the exporting nation provide certain documentary evidence relat-                                        On June 18, 1992, the Interamerican Tropical Tuna Commission
                  ing  to that country's marine mammal conservation programs. The                                       (IATTC) adopted a multilateral resolution to reduce dolphin mor-
                  Secretary shall also require the government of any intermediary                                       talities in the eastern Tropical Pacific. The IATTC consists of na-
                  nation from which yellowfin tuna or tuna products will be exported                                    tions that either fish for tuna in the eastern Tropical Pacific or
                  to the United States to certify and provide reasonable proof that it                                  purchase large quantities of tuna from the region. These countries
                  has acted to prohibit the importation of such tuna and tuna prod-                                     include the United States, France, Japan, Venezuela, Panama,
                  ucts from any nation from which direct export to the United States                                    Costa Rica, Nicaragua, and Vanuatu. In addition, four countries
                  of such tuna and tuna products is banned under the Act.                                               not member to the IATTC adopted the resolution: Mexico, Colom-
                    Due to the requirements of the MMPA and improvements.in                                             bia, Ecuador, and Spain.
                  fishing technology, U.S. tuna fishermen have reduced dramatically                                       The IATTC resolution contains provisions which would limit dol-
                  their kill of dolphins in the ETP (from 360,000 in 1972 to 20,000 in                                  phin mortalities in the eastern Tropical Pacific tuna fishery to
                  1981). Since 1981, the U.S. tuna fleet has operated under MMPA                                        19,500 in 1993, a figure that would gradually fall to less than 5000


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                                                      4                                                                                         5

                   in 1999. These limits would be assigned on a per-vessel basis and                           Section 304 requires the Secretary of Commerce to submit
                   all purse seine vessels would require observers. An international                         annual reports to the Congress on actions taken pursuant to the
                   research program on methods of reducing dolphin mortalities                               bill. It also establishes the requirements that must be fulfilled
                   would be established. The American Tunaboat Association, which                            before the Secretary can recommend to the Congress that the mor-
                   represents boat owners who fish in the eastern Tropical Pacific,                          atorium be lifted.
                   supports the resolution. The Administration supports the resolu-                            Section 305 establishes that the existing embargo provisions of
                   tion if H.R. 5419 is not enacted into law. The environmental com-                         section 101 of the MMPA will not apply to nations that enter into
                   munity is opposed to the resolution due to the fact that it allows                        commitments with the United States to: (1) implement a moratori-
                   75,000 dolphin mortalities through 1999, and never eliminates mor-                        um on encircling dolphins with purse seine nets effective March 1,
                   talities.                                                                                 1994; (2) require observers on all their purse seine vessels larger
                     H.R. 5419 is intended to strengthen international cooperation in                        than 400 short tons; and (3) reduce their dolphin mortalities up
                   the protection of dolphins and other marine mammals, and to                               until the effective date of the moratorium. The Secretaries of State
                   make it possible for the United States to lift the current ban on                         and Commerce must periodically determine whether countries that
                   imports of tuna and tuna products from Mexico, Venezuela, and                             have committed to the moratorium are implementing their com-
                   some twenty other countries.                                                              mitments. The section also establishes a series of import bans on
                                                                                                             nations that fail to comply with their commitments. Fifteen days
                                SUMMARY OF H.R. 5419, AS AMENDED                                             after a country has been certified as having failed to implement its
                     The purpose of H.R. 5419 is to establish an international morato-                       commitments, its yellowfin tuna and yellowfin tuna products will
                   rium on the practice of harvesting tuna through the use of purse                          be banned from entry into the United States. The ban is extended
                   seine nets deployed on or to encircle dolphins or other marine                            to all fish and fish products, except shrimp, after sixty days if the
                   mammals. The bill, as amended, amends the MMPA by creating a                              nation does not bring itself into compliance.
                   new title, Title III, setting forth provisions on a global moratorium                       Section 306 modifies the existing general MMPA permit granted
                   to prohibit certain tuna harvesting practices. New sections 301-308                       to the American Tunaboat Association. It limits the total number
                   would be established under the new title.                                                 of dolphin mortalities to 1,000 for 1992 and 800 for 1993 and the
                     Section 301 sets forth a number of findings and determinations.                         first three months of 1994. It revokes the general permit effective
                                                                                                             with the beginning of the moratorium.
                   Among others, these include: (1) the yellowfin tuna fishery of the
                                                                                                               Section 307 assures that the U.S. market will not serve as an in-
                   ETP has resulted in millions of dolphin deaths; (2) other govern-                         centive for the harvesting of dolphin-unsafe tuna by establishing a
                   ments have indicated their willingness to reduce and eventually                           dolphin-safe tuna market in the United States. It makes it unlaw-
                   eliminate dolphin mortalities associated with the seine fishery in                        ful for anyone to sell, purchase, offer for sale, transport, or ship
                   the ETP; (3) it is U.S. policy to eliminate marine mammal mortali-                        any dolphin-unsafe tuna product in the United States after June 1,
                   ties resulting from intentional encirclement of dolphins in tuna                          1994.
                   purse seine fisheries; (4) it is U.S. policy to secure international                        Section 308 authorizes $3 million to be appropriated to the Na-
                   agreements to reduce and eventually eliminate dolphin mortalities                         tional Marine Fisheries Service to carry out the provisions of this
                   in the ETP; and (5) it is U.S. policy to ensure that U.S. tuna fishing                    title. It also defines several terms. These include the term "inter-
                   vessels have access to productive tuna fishing grounds outside of                         mediary nation," which is defined so as to rectify the recent dis-
                   the ETP.                                                                                  trict court ruling that went beyond the intent of Congress when it
                     Section 302 authorizes the Secretary of State to enter into inter-                      first passed the MMPA.
                   national agreements which establish a global moratorium of at                               The bill also makes several amendments to the Tuna Conven-
                   least 5 years' duration on the practice of intentionally encircling                       tions Act of 1950 and the South Pacific Tuna Act of 1988.
                   dolphins with purse seine nets during tuna fishing operations. Such
                   moratorium is to take effect on March 1, 1994. A procedure is es-                          ACTION ON H.R. 5419 BY THE COMMITTEE ON MERCHANT
                   tablished by which the United States could withdraw from a 5-year                                              MARINE AND FISHERIES
                   moratorium prior to December 31, 1999.
                     Section 303 requires that international agreements establishing a                         Upon introduction, H.R. 5419 was referred to the Committee on
                   moratorium have an international research component. The goals                            Merchant Marine and Fisheries. After the bill was favorably re-
                   of such research are to develop methods of fishing for large yellow-                      ported, with amendments, by the Subcommittee on Fisheries and
                   fin tuna without encircling dolphins and by encircling dolphins                           Conservation and the Environment, it was considered by the full
                   without causing mortalities. Such programs must be conducted                              Committee on Merchant Marine and Fisheries on July 2, 1992.
                   under the auspices of a competent regional organization. Research                         After a discussion regarding the bill's potential impacts on the U.S.
                   cruises in the ETP must be carried out for research purposes only                         tuna fishing industry, a motion to send the bill back to the Sub-
                   and have an observer on board. The number of research sets                                committee was defeated by a division vote of 16-8. The Committee
                   during which dolphins are encircled is limited to 400 annually and                        then ordered the bill to be reported favorably, with amendments, to
                   the total dolphin mortality during research sets to 1000 annually.                        the House by a vote of 32-12.








                                                        6                                                                                               7
                                           COMMITTEE ACTION                                                        section 301(b) determines that it is U.S. policy to ensure that U.S.
                       Chairman Rostenkowski sent a letter to the Speaker on June 29,                              tuna fishing vessels have access to productive tuna fishing grounds
                     1992, requesting sequential referral of H.R. 5419. Sequential refer-                          outside of the ETP.
                     ral was granted to the Committee on July 29, 1992 through August                              Section 302. International agreements to establish a global morato-
                     3, 1992. On July 23, 1992, in anticipation of receiving sequential re-                             rium to prohibit certain tuna harvesting practices
                     ferral on the bill, the Subcommittee, by voice vote, ordered report-
                     ed, with an amendment, H.R. 5419 as it was ordered reported by                                   Subsection 302(a) authorizes the Secretary of State to enter into
                     the Committee on Merchant Marine and Fisheries. The amend-                                    international agreements which establish a global moratorium of
                     ment adopted by the Subcommittee would exclude shrimp and                                     at least 5 years' duration on the practice of intentionally encircling
                     shrimp products from the coverage of the bill's import bans.                                  dolphins with purse seine nets during tuna fishing operations.
                       On July 29, 1992, the Committee on Ways and Means ordered                                   While the Committee recognizes that the Secretary of State does
                     H.R. 5419 favorably reported, with amendments, by voice vote.                                 not require Congressional authority to enter into such internation-
                                                                                                                   al agreements, the Committee intends that this subsection will
                                    SECTION-BY-SECTION ANALYSIS                                                    serve to encourage the Secretary to do so.
                                                                                                                      Subsection (b) specifies the terms of international agreements en-
                                            SECTION 1. SHORT TITLE                                                 tered into pursuant to 301(a). The subsection establishes that the
                       This section states that the short title of the bill   is the Interna-                      moratorium is to take effect on March 1, 1994. This date was deter-
                     tional Dolphin Conservation Act of 1992.                                                      mined during the initial Department of State negotiations with
                                                                                                                   Mexico and Venezuela resulting in the Administration's proposal
                         SECTION 2. GLOBAL MORATORIUM TO PROHIBIT CERTAIN TUNA                                     of March 3, 1992. Terms of agreement shall also include an inter-
                                             HARVESTING PRACTICES                                                  national research program, and reviews and reports of the research
                                                                                                                   conducted under that program. This subsection also requires each
                       Section 2 amends the MMPA by creating           a new title, Title III,                     country that is a party to the agreement to take whatever steps
                     establishing a_global moratorium to prohibit certain tuna harvest-                            may be necessary to comply with the moratorium, and to encour-
                     ing practices. New sections 301-308 would be established under the                            age other countries to enter into the moratorium.
     NJ              new title.                                                                                       Subsection (c) establishes a procedure by which the U.S. could
     00              Section 201. FYndings and policy                                                              withdraw from a five-year moratorium prior to December 31, 1999.
                                                                                                                   Under this procedure, the Secretary of Commerce is required to
                       Subsection 301(a) of the MMPA, as amended by the new title,                                 submit a recommendation to the Congress that the moratorium be
                     finds that the yellowfin tuna fishery of the ETP has resulted in                              terminated. Section 304 establishes the procedures by which such a
                     millions of dolphin deaths and that, as a result, increased concern                           recommendation could be made. The recommendation must then
                     for dolphin populations has encouraged a global change in fishing                             be approved by a joint resolution initiated in either House of Con-
                     methods. This subsection also credits the U.S. tuna fishing industry                          gress. The Committee does not intend that this procedure should be
                     with developing methods to reduce dolphin mortalities, and the                                used for unilateral action on the part of the U.S. to terminate the
                     U.S. tuna processing companies with voluntarily establishing a dol-                           moratorium without an international agreement to do so, as estab-
                     phin-safe policy. In addition, the subsection recognizes that other                           lished in section 304.
                     governments have indicated their will.ingness to reduce and even.tu-
                     ally eliminate dolphin mortalities associated with the purse seine                            Section 303. Research programs
                     fishery in the ETP.                                      y to eliminate                          This section requires agreements establishing a moratorium to
                       Subsection (b) determines that it is U.S. polic                                             have an international research component. Section 303 introduces
                     marine mammal mortalities resulting from international encircle-                              the concept of a "competent regional organization" into H.R. 5419.
                     ment of dolphins in tuna purse seine fisheries. The Committee used                            This term is defined in section 308 of the bill.
                     the term "international' to distinguish this practice from other                                 Subsection 303(a) states that the research program must have
                     fishing methods in which marine mammals may be accidentally                                   two goals: to develop methods of fishing for large yellowfin tuna (1)
                     killed or injured during the course of normal fishing operations.                             without encircling dolphins, and (2) by encircling dolphins without
                     The Committee recognizes that in other fisheries, including other                             causing mortalities. This subsection also requires that the interna-
                     purse seine fisheries, marine mammals are not specifically targeted                           tional research program be conducted under the auspices of a com-
                     for encirclement or net deployment as they are in the yellowfin                               petent regional organization, and that research cruises be conduct-
                     tuna purse seine fishery in the ETP.                                                          ed by vessels that encircle dolphins solely for research purposes
                       This subsection also establishes that it is U.S. policy to secure                           and not for commercial harvest. Research cruises must also have
                     international agreements to reduce and eventually eliminate dol-                              an observer on board.
                     phin mortalities in the ETP, to encourage the use of observers on                                Paragraph (b)(1) limits the total number of research sets during
                     non-U.S. vessels, and to ensure that the U.S. market does not act                             which dolphins are encircled to 400 annually and the total dolphin
                     as an incentive for the harvest of dolphin-unsafe tuna. Finally, Sub-                         mortality during research sets to 1000 annually. Paragraphs (2)



                wmm*w"M so wmmmm woo M so mm

                                                       8                                                                                       9

                     and (3) recognize the role of the IATTC, as the competent regional                      torium or has not taken the necessary actions to remedy its failure
                     organization in the ETP, in reviewing research procedures.                              to comply with the other commitments described in subsection (a).
                       In subsection (c), paragraph (1) requires that funding for research                     The Committee understands that inadvertent occasional failures
                     be established in a fair and equitable manner. The Committee in-                        to comply with the requirement of 100% observer coverage on
                     tends that research funds should be fairly distributed among the                        purse seine vessels may occur, or that a nation mav fail by a small
                     nations that participate in, and adhere to the requirements of, an                      margin to meet the requirement of reducing its dolphin mortalities
                     international research program. Paragraph (2) states that, to the                       prior to the moratorium by a statistically significant amount. It is
                     extent possible, the proceeds of tuna harvested during research                         the Committee's intent that the bans on imports of fish and fish
                     cruises should be used to fund the research program.                                    products, except shrimp, will apply only if a nation is not making a
                       Paragraph (3) requires funding provided by the U.S. for research                      good faith effort to correct these occasional failures to comply, or if
                     to be used only for developing alternative methods of fishing that                      the nation is not complying with the moratorium on encircling dol-
                     do not involve encircling dolphins. This paragraph does not repre-                      phins.
                     sent a change from existing U.S. policy. Finally, paragraph (4) re-                       Paragraph (4) establishes that the bans will stay in effect until
                     quires that the Marine Mammal Commission review research pro-                           the Secretary of Commerce determines that the country is imple-
                     posals to the IATTC and recommend an appropriate response to                            menting its commitments.
                     the U. S. Commissioners to the IATTC.                                                     Subsection (c) requires the Secretaries of State and Commerce to
                                                                                                             periodically review the activities of nations who have committed to
                     Section 304. Reviews, reports, and recommendations                                      the moratorium and to include the results of those reviews in the
                       Subsection (a) requires the Secretary of Commerce to submit                           Secretary's annual report to the Congress.
                     annual reports to the Congress on actions taken pursuant to the                         Section 306. Permits for taking dolphins
                     bill.
                       Subsection (b) establishes the requirement that must be fulfilled                       Subsection 306(a) modifies the existing general MMPA permit
                     before the Secretary can recommend to the Congress that the mor-                        granted to the American Tunaboat Association. Paragraph (1)
                     atorium be lifted. The Committee expects that a Secretarial recom-                      limits the total number of dolphin mortalities to 1000 for 1992 and
                     mendation to lift the moratorium prior to December 31, 1999, will                       800 for 1993 and the first three months of 1994.
                     be based on proof from a competent regional organization or other                         Paragraph (2) does not represent a change from existing law,
                     nation that a method of encircling dolphins without mortalities has                     which prohibits encircling any school of dolphins in which eastern
                     been developed, or dolphin-safe methods of fishing have negatively                      spinner dolphins or coastal spotted dolphins are observed. The
                     affected yellowfin tuna stocks to a major degree. The Committee                         Committee expects that the Secretary of Commerce will take neces-
                     also expects the Secretary to consult with the Marine Mammal                            sary regulatory action to condition research sets or encirclement of
                     Commission prior to making recommendation.                                              other dolphin species consistent with findings on depleted or
                                                                                                             threatened species.
                     Section 805. International commitments                                                    Paragraph (3) revokes the general permit effective with the be-
                       Subsection 305(a) establishes that the existing embargo provi-                        ginning of the moratorium.
                     sions of section 101 of the MMPA will not apply to nations that for-                      Subsection (b) states that the existing requirements of the
                     mally commit to (1) implementing a moratorium on encircling dol-                        MMPA relative to research permits or other permits to take
                     phins with purse seine nets effective March 1, 1994; (2) requiring                      marine mammals apply to this title.
                     observers on all. their tuna purse seine vessels larger than 400                        Section 307. Prohibitions
                     short tons carrying capacity; and (3) reducing their dolphin mor-
                     talities up until the effective date of the moratorium.                                   Subsection 307(a) assures that the U.S. market will not serve as
                       Subsection (b) requires the Secretaries of State and Commerce to                      an incentive for the harvesting of dolphin-unsafe tuna by establish-
                     periodically determine whether countries that have committed to                         ing a dolphin-safe tuna market in the United States.
                     the moratorium are implementing their commitments. The Com-                               Paragraph (1) makes it unlawful for anyone to sell, purchase,
                     mittee expects that such determinations will occur at intervals of                      offer for sale, transport, or ship any dolphin-unsafe tuna product in
                     no less than six months. This subsection also establishes a series of                   the United States after June 1, 1994. Given that H.R. 5419 allows
                     import bans on nations that fail to comply with their commitments                       tuna to be harvested with dolphin-unsafe methods through Febru-
                     under an international agreement.                                                       ary 28, 1994, the Committee does not intend that tuna processors,
                       Paragraph (1) requires that, 15 days after a nation has been cer-                     wholesalers, or others should be deprived of the ability to sell possi-
                     tified for failing to implement all the commitments described in                        ble remaining stocks of such tuna. This provision of the bill is
                     subsection 305(a), its yellowfin tuna and yellowfin tuna products                       therefore intended to allow a 90-day period following the effective
                     will be banned from entry into the U.S.                                                 date of the moratorium for the sale of remaining stocks of dolphin-
                       Paragraph (2) extends the ban to all fish and fish products,                          unsafe tuna.
                     except shrimp, 60 days after the tuna ban goes into effect. This em-                      Paragraph (2) prohibits U.S. vessels and persons subject to U.S.
                     bargo applies only if the nation fails to fully implement the mora-                     jurisdiction from intentionally encircling dolphins with purse seine









                                                       10

                     nets after the effective date of the moratorium except for research
                     purposes or unless the moratorium is terminated under section 302
                     of this title.
                       Paragraph (3) states that it is unlawful to violate regulations pro-
                     mulgated under this title, and paragraphs (4) and (5) establish the
                     enforcement mechanisms of the bill.
                       Subsection (b) extends the existing penalty provisions of the
                     MMPA to this title. The Committee recognizes the possibility that
                     tuna processing companies may occasionally unknowingly purchase
                     tuna products that contain some dolphin-unsafe tuna: The Commit-
                     tee intends that the penalty and forfeiture provisions of this title
                     will be applied to persons who knowingly and willfully violate sub-
                     section (a).
                       Subsection (c) extends the existing forfeiture provisions of the
                     Magnuson Fishery Conservation and Management Act to this title,
                     and subsection (d) defines "dolphin-safe" tuna.
                     Section 308. Authorization of appropriations
                       Subsection (a) authorizes $3,000,000 to be appropriated to NMFS
                     to carry out the provisions of this title.
                       Subsection (b) amends the MMPA table of contents.
                       Subsection (c) defines the terms "fishery" "competent regional
                     organization", and "intermediary nation." it is the Committee's
                     opinion that the court's interpretation of the term "intermediar
                     nation" went beyond the intent of Congress in the 1988 amenY
                     ments to the MMPA, and that a clarification of the term "interme-
    CD               diary nation" is necessary.
                       SECTION 3. AMENDMENTS TO TUNA CONVENTIONS ACT OF 1950 AND
                                       SOUTH PACIFIC TUNA ACT OF 1988
                       Subsection (a) amends the Tuna Conventions Act of 1950 by re-
                     quiring that one of the U.S. Commissioners to the 1ATTC be a rep-
                     resentative from a nongovernmental conservation organization,
                     and that nongovernmental conservation organizations be among
                     the interests represented on the Advisory Committee to the U.S.
                     Commissioners.
                       Subsection (b) extends the authorization for the South Pacific
                     Tuna Act of 1988 through 2002.



                                                                                                                                                    NOM



                                                                                                                                  102D CONGRESS                                                       REPT. 101-262
                                                                                                                                     1st Session         HOUSE OF REPRESENTATIVES                          Part 1





                                                                                                                                     UNITED STATES INTERNATIONAL DRIFTNET FISHERY
                                                                                                                                                         CONSERVATION PROGRAM



                                                                                                                                                        OCT013ER 22, 1991-Ordered to be printed



                                                                                                                                     Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                                                               Marine and Fisheries, submitted the following


                                                                                                                                                                    REPORT


                                                                                                                                                                [To accompany H.R. 21521

                                                                                                                                               [Including cost estimate of the Congressional Budget Office]
                                                                                                                                     The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                                                  referred the bill (H.R. 2152) to enhance the effectiveness of the
                                                                                                                                  United Nations international driftnet fishery conservation pro-
                                                                                                                                  gram, having considered the same, report favorably thereon with
                                                                                                                                  an amendment and recommend that the bill as amended do pass.
                                                                                                                                     The amendment is as follows:
                                                                                                                                     Strike all after the enacting clause and insert the following:

                                                                                                                                     TITLE I-HIGH SEAS LARGE-SCALE DRIFTNET FISHING


                                                                                                                                  SEC. 101. DENIAL OF PORT PRIVILEGES AND SANCTIONS FOR HIGH SEAS LARGE-SCALE DRIFT-
                                                                                                                                            NET FISHING.
                                                                                                                                     (a) DENIAL OF PORT PRIVILEGES-
                                                                                                                                        (1) PUBLICATION OF LIST.-Not later than 10 days after the date of the enact-
                                                                                                                                      ment of this Act and periodically thereafter, the Secretary of Commerce, in con-
                                                                                                                                      sultation with the Secretary of State, shall publish a list of countries that con-
                                                                                                                                      duct, or do not prohibit their nationals from conducting, large-scale driftnet
                                                                                                                                      fishing beyond the exclusive economic zone of any country.
                                                                                                                                        (2) DENIAL OF PORT Piuvn.EaEs.-The Secretary of the Treasury shall, in ac-
                                                                                                                                      cordance with recognized principles of international law-
                                                                                                                                             (A) withhold or revoke the clearance required by section 4197 of the Re-
                                                                                                                                           vised Statutes of the United States (46 App. U.S.C. 91) for; and
                                                                                                                                             (B) deny entry to any place in the United States and to the navigable
                                                                                                                                           waters of the United States to;    .
                                                                                                                                  any large-scale driftnet fishing vessel that is registered under the laws of a country
                                                                                                                                  included in a list published under paragraph (1).
                                                                                                                                        (3) NOTIFICATION OF COUNTRY.-Before the publication of a list of countries
                                                                                                                                      under paragraph (1), the Secretary of State shall notify each country included
                                                                                                                                      in that list regarding-








                                                                                                                                                5

                                                                                                            This goal was especially difficult because the fishery of concern
                                                                                                            was being conducted in the international waters of the North Pacif-
                                                                                                            ic, outside U.S. jurisdiction.
                                                                                                               The major provisions of the Act included requirements that:
                                                                                                                   the Secretary of Commerce immediately negotiate monitor-
                                                                                                                 ing agreements with nations conducting large-scale driftnet
                                                                                                                 fishing in the North Pacific. Under the agreements, U.S. scien-
                                                                                                                 tists were required to be stationed onboard foreign vessels
                                                                                                                 driftnet fishing on the high seas. Acting as observers, the sci-
                                                                                                                 entists would be able to collect statistically reliable informa-
                                         PURPOSE OF THE BILL                                                     tion on the number of U.S.marine resources that were killed or
                   The purpose of H.R. 2152 is to enhance the effectiveness of                                   discarded by these vessels.
                 United Nations Resolution No. 44-225 and bring an end to the                                      the Secretary of Commerce immediately negotiate effective
                 practice of large-scale driftnet fishing on the high seas.                                      enforcement agreements with those same nations for the pur-
                                                                                                                 pose of monitoring compliance with U.S. and foreign laws re-
                               BACKGROUND AND NEED FOR LEGISLATION                                               lated to driftnet fishing.
                                                                                                                   the Secretary of Commerce determine whether an appropri-
                                             INTRODUCTION                                                        ate foreign government has failed to enter into and implement
                   Large-scale driftnet fishing is a method of fishing in which a gill-                          an enforcement agreement. A negative determination man-
                 net composed of a panel or panels of webbing, with a total length                               dates that the Secretary certify that fact to the President for
                 of one and one half miles or more, is placed in the water and al-                               purposes of certification under section 8(a) of the Fishermen's
                 lowed to drift with the currents and winds. These nets, which are                               Protective Act of 1967.
                 usually made of nearly invisible monofilament line, entangle virtu-                           As a result of the 1987 Act, agreements were negotiated with
                 ally everything that comes in contact with them. Often fished in                           Japan, Taiwan, and the Republic of Korea. Those agreements are
                 lengths exceeding 30 miles, large-scale driftnets are distinguished                        scheduled to be terminated on June 30, 1992 when the U.N. mora-
                 by their method of harvest, indiscriminately killing not only non-                         torium enters into force. In July 1991, Taiwan and Korea were
                 targeted fish, but dolphins, whales, turtles and seabirds.                                 both found to be in violation of these agreements and were certi-
                   The fishery of greatest concern today is the large-scale driftnet                        fied as such by the Secretary under section 8(a) of the Fishermen's
                 fishery in the North Pacific Ocean which became commercially im-                           Protective Act of 1967.
                 portant in the mid 1970's and continued to grow until the late                                                  THE WELLINGTON CONVENTION
                 1980's. Fishermen from Japan, Taiwan and the Republic of Korea
                 used large-scale driftnets to target various species of salmon, squid,                        The Convention    for the Prohibition of Fishing with Long Drift-
                 and tuna. This buildup of the foreign driftnet fleets on the high                          nets in the South Pacific, also known as the Wellington Convention
                 seas led to a commensurate increase in the mortality of seabirds,                          [Convention], was agreed to in November 1989 by more than 20
                 marine mammals, and U.S. origin salmon. At the height of the                               South Pacific nations, the U.S., and France. The Convention was
                 high seas large-scale driftnet fishery in the late 1980's over 800 for-                    developed in response to concern by many of the island nations
                 eign vessels were fishing in the North Pacific Ocean. In addition to                       that marine resources in the South Pacific were being eradicated
                 the devastating effects this fishery was having on the returns of                          by large-scale driftnet vessels from Japan, Taiwan, and Korea. The
                 U.S. salmon and steelhead to native streams, National Marine                               Convention prohibits fishermen of member nations from engaging
                 Fisheries Service [NMFS] scientists estimated that tens of thou-                           in large-scale driftnet fishing in the South Pacific and encourages
                 sands of marine mammals were taken in the 50,000 net retrievals                            those member nations to take additional measures to discourage
                 each year.                                                                                 this practice by non-member nations. These measures include pro-
                   Since the mid 1980's several important domestic and internation-                         hibiting nations from drift net fishing within Convention nation's
                 al actions have shaped U.S. policy towards eliminating these drift-                        Seclusive Economic Zones [EEZ]; prohibiting the transshipment,
                 net fishing operations. A discussion of those major events follows.                        landing, or processing of drift net caught fish within areas under
                                           1987 DRIFTNET ACT                                                the jurisdiction of the signatory nations; and encouraging non-sig-
                                                                                                            natory nations comply with or become party to the Convention.
                   In response to concern over the dramatic effects the large-scale,                           The Convention set July 1, 1991, as the date for the cessation of
                 high seas driftnet fishery was having on U.S. marine resources,                            large-scale drift net fishing operations in the South Pacific. As a
                 Congress passed the Driftnet Impact Monitoring, Assessment, and                            result of the Convention, virtually all large-scale drift net fishing
                 Control Act of 1987 (P.L. 100-220). The Act was intended to moni-                          has ceased in the South Pacific Ocean.
                 tor, assess, and reduce the adverse impacts of large-scale driftnets.




        -i     i              i   e         f                             F         e



                                                                                                                                               M M


                                                     6                                                                                         7

                                 UNITED NATIONS RESOLUTION NO. 44-225                                      hibit the importation of any fish or fish products caught with large-
                    Adopted by the U.N. General Assembly on December 22, 1989,                             scale driftnets anywhere on the high seas after July 1, 1992.
                  the Resolution is the single most important statement by the inter-                                             LETTERS TO AMBASSADORS
                  national community concerning the elimination of large-scale drift
                  net fishing on the high seas.                                                               On September 20,     1991, the members of the Subcommittee on
                    The Resolution recognizes international efforts to curb large-                         Fisheries and Wildlife Conservation and the Environment sent let-
                  scale drift net fishing and calls on all countries to respect these ef-                  ters to the ambassadors of each of seven nations whose fishermen
                  forts. It recommends that large-scale drift net fishing in the South                     are known or suspected to be using large-scale driftnets on the
                  Pacific cease by July 1, 1991 reinforcing the Wellington Conven-                         high seas (Japan, Taiwan, the Republic of Korea, Germany, Ire-
                  tion. The Resolution encourages coastal countries to cooperate in                        land, Great Britain and France). The letter expressed the Subcom-
                  collection and submission of scientific information on drift net fish-                   mittee's opposition to the continued use of driftnets longer than 2.5
                                                                                                           kilometers in length and its support of the moratorium called for
                  ing in their own EZZ's.                                                                  by the U.N. Resolution. Explaining that the Subcommittee believes
                    Most important, however, is the recommendation that all mem-                           strict adherence to the U.N. Resolution by all nations is essential
                  bers of the international community agree to cease large-scale, pe-                      to the conservation of marine life, the letter urges each country to
                  lagic driftnet fishing on the high seas by June 30, 1992. Specifically                   fully implement the moratorium and prohibit its fishermen from
                  the Resolution recommends that all nations agree to a:                                   using large-scale driftnets on the high seas after June 30, 1992.
                         Moratorium on all large-scale pelagic driftnet fishing on                            As of October 17, 1991, Ireland, Taiwan, and Great Britain had
                      the high seas by June 30, 1992 with the understanding                                responded to the letter, indicating their intent to prohibit their na-
                      that such a measure will not be imposed in a region, or if                           tionals from high seas driftnet fishing after June 30, 1992.
                      implemented can be lifted, should effective conservation                                                       CURRENT SITUATION
                      and management measures be taken based upon statisti-
                      cally sound analysis to be jointly made by concerned par-                               Despite the letters from Ireland, Taiwan, and Great Britain,
                      ties of the international community with an interest in the                          large-scale driftnet fishing on the high seas is expected to continue
                      fishery resources of the region, to prevent unacceptable                             until the U.N. deadline of June 30, 1992. Furthermore, recent viola-
                      impacts of such fishing practices in that region and to                              tions of existing agreements by Taiwan and the Republic of Korea
                      ensure the conservation of the living marine resources of                            and the re-emergence of Chinese driftnet vessels in the North Pa-
                      that region.                                                                         cific fishery, after an announcement by their government that
                    The language of the Resolution is critical because those nations                       large-scale driftnet fishing would be halted, has lead many to ques-
                  able to demonstrate that large-scale driftnet fishing can be con-                        tion whether the U.N. moratorium will really be fully implement-
                  ducted in a harmless manner would be allowed to continue this                            ed.
                                                                                                              In fact, Japan, has confirmed those doubts, indicating that it in-
                  practice. The U.S. and other concerned nations have already sub-                         tends to continue this practice after the U.N. deadline. On Septem-
                  mitted interpretations of the Resolution to the U.N. While the U.S.                      ber 27, 1991, the government of Japan filed a position paper with
                  has made it clear that it is unaware of any effective conservation                       the U.N. challenging the moratorium called for in Resolution No.
                  measures relating to the use of large-scale driftnets, other coun-                       44-225. It claims that the scientific data does not support the drift-
                  tries such as Japan have indicated they do not believe that the sci-                     net ban and, therefore, according to the language in the Resolu-
                  entific data supports a moratorium.                                                      tion, the moratorium should not be imposed.
                              FISHERY CONSERVATION AMENDMENTS OF 1991                                         In an effort to close this "loophole" in the language of Resolution
                                                                                                           No. 44-225, the U.S. introduced a new Resolution at the U.N. on
                    The 1991 amendments to the Magnuson Fishery Conservation                               October 9, 1991. Noting that evidence has not demonstrated that
                  and Management Act contained several provisions pertaining to                            the unacceptable impacts of large-scale, pelagic driftnet fishing can
                  driftnets. In particular, the amendments direct the Secretary of                         be prevented, the New Resolution calls upon all nations to imple-
                  Commerce, through the Secretary of State, to secure an interna-                          ment the moratorium on June 30, 1992, without exception.
                  tional ban on the use of large-scale driftnets as called for in U.N.                        Anticipating, and in response to, continued resistance to the mor-
                  Resolution No. 44-225, prohibit the use of large-scale driftnets by                      atorium, several members have introduced legislation in the 102nd
                  any vessel within the U.S. EEZ, and prohibit the use of these nets                       Congress aimed at reinforcing Resolution No. 44-225 and halting
                  by U.S. fishermen anywhere in the oceans.                                                large-scale driftnet fishing on the high seas. H.R. 2152 was one of
                    As a means of discouraging driftnet fishing by other nations and                       those bills.
                  to allow our fishermen to compete fairly in our markets, the                                                       COMMITTEE ACTION
                  amendments also prohibit the importation of fish or fish products
                  caught with large-scale driftnets in the South Pacific and tuna                             H.R. 2152, a bill to enhance the effectiveness of the United Na-
                  caught with driftnets on the high seas after July 1, 1991, and pro-                      tions international driftnet fishery conservation program, was in-







                                                       8                                                                                         9
                   troduced by Mr. Studds, Mr. Young of Alaska, Mrs. Unsoeld, and                              All the members of the second panel expressed their unqualified
                   28 other original cosponsors, on April 30, 1991. The bill was re-                          opposition to the continued use of large-scale driftnets on the high
                   ferred to the Committee on Merchant Marine and Fisheries, and                              seas and their support of the legislation before the Subcommittee.
                   on May 3, 1991 the Committee referred the bill to the Subcommit-                           Both Mr. lani and Mr. Benton testified specifically in support of
                   tee on Fisheries and Wildlife Conservation and the Environment.                            mandatory sanctions being placed on fish and other products from
                                                                                                              countries that continue to engage in large-scale driftnet fishing,
                                          AUGUST 6, 1991 HEARING                                              while Mr. Reichman suggested a denial of U.S, port privileges for
                     On August 6, 1991, the Subcommittee conducted a hearing in Se-                           driftnet vessels and their supply ships. Mr. Robinson suggested rev-
                   attle, Washington on H.R. 2152 and two other related bills: H.R.                           ocation of the "most favored nation" trade status for countries that
                   2920, a bill to direct the Coast Guard and the Secretary of Defense                        do not comply with the U.N. moratorium.
                   to enter into an agreement under the Magnuson Fishery Conserva-                                                   SUBCOMMITTEE MARKUP
                   tion and Management Act authorizing the Coast Guard to utilize
                   the resources of the Department of Defense to enforce large scale                           On September 26,      1991, the Subcommittee held a markup on
                   driftnet fishing regulations; and H.R. 2921, a bill to amend the                           H.R. 2152. Mr. Studds and Mr. Young offered an amendment in the
                   Fishermen's Protective Act of 1967 to expand the President's em-                           nature of a substitute which differed significantly from the bill as
                   bargo authority under the Pelly Amendment.                                                 introduced. The amendment was a compilation of several bills in-
                     The Subcommittee heard testimony from two panels of witnesses.                           troduced in the 102nd Congress aimed at ending large-scale driftnet
                   On the first panel were: Mr. David Colson, Deputy Assistant Secre-                         fishing, including H.R. 2152, H.R. 2920, H.R. 2921, and S. 884,
                   tary of Oceans and Fisheries Affairs in the U.S. Department of                             passed by the Senate on August 1, 1991.
                   State; Captain Bernie Miller, Chief of Operations for the 17th Dis-                         Specifically, the substitute amendment proposed to immediately
                   trict of the United States Coast Guard; and Rear Admiral Larry                             deny foreign driftnet vessels access to U.S. ports, mandate sanc-
                   Marsh, Commander of the United States Naval Base in Seattle.                               tions on fish and fish products from countries that continue to
                     During his testimony, Mr. Colson explained that the Administra-                          engage in large-scale driftnet fishing after the U.N. deadline, and
                   tion and the Congress were united in their goal of seeking to end                          expand the Pelly Amendment to give the President new embargo
                   the destructive and wasteful practice of large scale, driftnet fishing                     authorities for other goods. Mrs. Unsoeld offered an amendment to
                   on the high seas. He stated that the Administration supports the                           the substitute, expanding the mandatory sanctions to include sport
                   U.N. ban and has seen no data that support the continuation of                             fishing equipment. Both Mrs. Unsoeld's amendment and the substi-
                   this fishing practice after June 30, 1992.                                                 tute were adopted by voice vote, and the Subcommittee ordered
                     Captain Miller testified that the Coast Guard takes its job of                           H.R. 2152, as amended, reported to the Full Committee.
                   monitoring and enforcement of high seas driftnet fleets, particular-
                   ly in the North Pacific, very seriously. He explained that the Agen-                                             FULL COMMITTEE MARKUP
                   cy's enforcement of bilateral agreements with Japan, Taiwan, and                            The Full Committee met on Thursday, October 3,        1991, to consid-
                   Korea has minimized the probability of driftnet vessels intercept-                         er H.R. 2152 as reported by the Subcommittee. Mr. Studds offered
                   ing salmon of North American origin. He also pointed out that be-                          aseries of en bloc amendments, on behalf of himself and Mr.
                   cause the area of the ocean that must be monitored is over one mil-                        Young, that made several changes to the bill. First, it deleted a
                   lion square miles, the reconnaissance information received from                            provision that allowed for the detention of driftnet vessels, but
                   the Navy facilitated their efforts.                                                        maintained the denial of U.S. port privileges for such vessels.
                     Finally, Admiral Marsh testified that current force levels and                           Second, it added a requirement that countries be notified if their
                   projected reductions in the Department of Defense make it unlike-                          vessels are going to be denied port privileges or their products are
                   ly that U.S. military assets would be specifically available for en-                       to face import embargoes. Finally, it changed the effective date of
                   forcing driftnet agreements. However, Navy ships and DOD air-                              mandatory sanctions for fish products and sport fishing equipment
                   craft could monitor driftnet vessels on a non-to-interfere basis
                   while pursuing their primary mission and could report identity and                         from September 1, 1992, to July 1, 1992, linking the embargo di-
                   location of potential violators to the correct enforcement authori-                        rectly to the U.N. driftnet moratorium deadline of June 30, 1992.
                   ties. DOD recommended that the Navy work with the Coast Guard                               After a discussion in which several Members suggested that the
                   and the National Marine Fisheries Service to develop streamlined                           bill should take even more restrictive measures against driftnet
                   reporting procedures to facilitate enforcement.                                            fishing nations, the amendment was adopted, as introduced, by
                     The second panel consisted of: Mr. Donald Stuart, Executive Di-                          voice vote.
                   rector of Salmon for Washington; Mr. John lani, President of pacif-                         Mr. Studds then offered another amendment on behalf of him-
                   ic Seafood Processors Association; Mr. Alan Reichman, Greenpeace                           self, Mr. Young, Mrs. Unsoeld, and Mrs. Lowey. Recognizing that
                   U.S.A.; Mr. David Benton, Director of External and International                           U.S. trade negotiations should take environmental concerns into
                   Fisheries Affairs for the Alaska Department of Fish and Game;                              account, the amendment directs the President to take an active
                   and Mr. Bill Robinson, Trout Unlimited.                                                    role in modifying the General Agreement on Tariffs and Trade




                  a          1    1         ( 10,          1,             Pr        for       or 10          1    1    1        1*    1             11         1        `4



                                                       MMM mmm

                                                       10

                      [GATT] to recognize and account for the domestic environmental                          high seas, or has retaliated against the U.S. This certification is
                      laws and treaties of the Contracting Parties.                                           deemed to be a certification under section 8(a) of the Fisherman's
                        During discussion of the amendment many Members expressed                             Protective Act as amended by this Act.
                      concern that domestic fishermen and other industries are at a dis-
                      advantage because the U.S. imports products from countries that                         Section 102. Duration of denial of port privileges and sanctions
                      do not have environmental laws that are as restrictive as domestic                        This section mandates that any sanctions levied against a coun-
                      laws. A few members suggested that the language should be                               try will remain in effect until the Secretary certifies to the Presi-
                      strengthened to require nations wishing to sell imports in the U.S.                     dent and the Congress that the country affected has terminated the
                      to comply with U.S. environmental laws. After further discussion,                       use of large-scale driftnets on the high seas.
                      the amendment was adopted, as introduced, by voice vote.                                Section 103. Definitions
                        Mr. Taylor then offered an amendment to include shellfish under
                      the mandatory sanctions provisions of the bill. This motion was                           This section defines the terms used in the first title of this Act.
                      also adopted by voice vote.                                                             These include the definitions for "fish and fish products", "large-
                        Mr. Studds obtained unanimous consent to strike all after the en-                     scale driftnet fishing", and "large-scale driftnet fishing vessel".
                      acting clause and insert the text of the bill as amended to that                                                        TITLE Il
                      point.
                        There being no further amendments, the Committee ordered                              Section 201. Import restrictions under the Fisherman's Protective
                      H.R. 2152, as amended, reported to the House of Representatives                             Act of 1987
                      by voice vote.                                                                            This section amends the Fisherman's Protective Act of 1967 (22
                                         SECTION-BY-SECTION ANALYSIS                                          U.S.C. 1978) to expand the current discretionary powers of the
                                                                                                              President under this Act. These powers include the ability to levy
                                                     TITLE I                                                  import sanctions on any product against a country which is con-
                      Section 101. Denial of port privileges and sanctions for high seas                      ducting fishery practices or engages in trade which diminishes the
                         large-scale driftnet fishing                                                         effectiveness of international programs for fishery conservation or
                                                                                                              programs for endangered or threatened species. The Fisherman's
                        Subsection (a) directs the Secretary of Commerce, in consultation                     Protective Act currently identifies only fish and wildlife products
                      with the Secretary of State, to publish a list of those countries
                                                                                                              as products which may be embargoed under this Act. Additionally,
                      whose nationals are known to be using large-scale driftnets on the                      this section amends the definition of "United States", "Internation-
                      high seas. The Secretary must publish that list within ten days                         al fishery conservation program", and "taking" to conform with
                      after the date of enactment of this Act, and update that list peri-                     current definitions.
                      odically. This subsection directs the Secretary of the Treasury to
                      deny the entry of a driftnet vessel into any U.S. port or U.S. navi-                    Section 202. Memorandum of Understanding
                      gable waters, if that vessel is registered in a country that is includ-                   This section directs the Secretaries of Commerce, Defense, and
                      ed on the published list.                                                               the department in which the Coast Guard is operating to enter into
                        Paragraph (a)(3) directs the Secretary of State to notify each                        a Memorandum Of Understanding (MOU). The purpose of this
                      country that is included on the published list that their driftnet                      MOU is to use the resources available in these departments for en-
                      vessels will be denied port privileges and of any further sanctions                     forcement of domestic laws and international agreements pertain-
                      that may be levied against that country if their vessels continue to                    ing to the conservation and management of living marine re-
                      engage in large-scale driftnet fishing after the July 1, 1992 dead-                     sources. This agreement shall include procedures for the identifica-
                      line.                                                                                   tion and location of vessels violating these laws and agreements.
                        Subsection (b) directs the Secretary of Commerce to identify each                     Additionally, this agreement shall include procedures for the use
                      nation that continues to engage in large-scale driftnet fishing on                      by enforcement agents of information gathered by surveillance re-
                      the high seas after July 1, 1992. The Secretary is also to notify the                   sources of the Department of Defense.
                      President and each country of this identification. The President
                      shall direct the Secretary of the Treasury to immediately prohibit                      Section 203. Environmental Trade Negotiations
                      imports of certain goods from each of those countries identified.                         This section establishes Congressional policy as it relates to the
                      Those goods shall includd shellfish, fish and fish products, and                        role of environmental issues in international trade negotiations.
                      sport fishing equipment. Within fifteen days, the President shall                         Subsection (a) declares it to be the policy of Congress that envi-
                      report to the Secretary of Commerce and the Congress the actions                        ronmental issues should -be addressed during all international
                      taken.                                                                                  trade negotiations. The Committee notes that international trade
                        Paragraph (b)(3) requires the Secretary of Commerce to certify to                     has a major influence on patterns of resource use and related envi-
                      the President, any country (after six months from the identifica-                       ronmental impacts, yet these issues are not always addressed
                      tion) that has not terminated large-scale driftnet fishing on the                       during trade negotiations.








                                                12

                 Subsection (b)(1) directs the President, acting through the office
               of the United States Trade Representative, to pursue changes to
               the General Agreement on Tariffs and Trade (GATT) that would
               result in consideration of, and conformation to, the domestic envi-
               ronmental laws of the Contracting Parties to the GATT. Multilat-
               eral, bilateral, and regional environmental treaties between or
               among Contracting Parties should also be taken into consideration.
               As the GATT currently contains no reference to the environment,
               the Committee notes that these changes would require reforming
               or adding to the Articles of the GATT. It is the intent of the Com-
               mittee that "consideration" of domestic environmental laws does
               not mean ignoring those laws. The Committee is concerned that
               statutes which use trade sanctions to support sound environmental
               policies have been interpreted by the Executive branch in such a
               way as to undermine the intent of Congress. The Committee ex-
               pects the United States Trade Representative to make every effort
               to amend the GATT to allow trade sanctions to be used in support
               of sound and rational environmental policies.
                 Subsection (b)(2) directs the President to seek to secure a working
               party on trade and the environment within the GATT as soon as
               possible. This working party should be convened with a broad man-
               date to consider the environmental ramifications of existing GATT
               policy. The working party should also establish procedures to in-
               clude environmental issues in ongoing and future GATT negotia-
               tions.
                 Subsection (b)(3) directs the President to take an active role in
               developing national and global trade policies which make the
               GATT more responsive to environmental concerns. The Committee
               notes that costs associated with the production of goods under
               strict national environmental protection laws have the potential to
               impose a competitive disadvantage on domestic products from that
               nation in comparison to imports from nations that have less strict
               environmental laws. Contracting Parties should be able to take ac-
               tions domestically to preserve natural resources without fear of
               GATT retaliation. The President should therefore pursue a GATT
               solution to trade disadvantages associated with the costs of nation-
               al environmental protection that is consistent with U.S. environ-
               mental laws.
                 Subsection (b)(4) directs the President to involve federal agencies
               with environmental expertise in all trade negotiations. These agen-
               cies should determine whether and to what extent trade negotia-
               tions will affect domestic environmental law, and advise the U.S.
               Trade Representative accordingly. Agencies should include, but not
               be limited to, the Environmental Protection Agency, the U.S. Fish
               and Wildlife Service, and the National Oceanic and Atmospheric
               Administration.
                 Subsection (b)(5) reflects the Committee's concern over the gener-
               al lack of access to the trade negotiation process. It therefore di-
               rects the President to consult with the Congress and other interest-
               ed parties on a regular basis during negotiations. Such interested
               parties should include industry groups affected by the negotiations,
               States, and non-governmental organizations.




                                                              or







                                                                                                            102D CONGRUS                                           Rmv. 102-262
                                                                                                              2d Semion       HOUSE OF REPRESENTATIM                   Part 2





                                                                                                              UNITED STATES INTERNATIONAL DRIFTNET FISHERY
                                                                                                                              CONSERVATION PROGRAM



                                                                                                            FEBRUARY 19, 1992-Committed to the Committee of the Whole House on the State
                                                                                                                              of the Union and ordered to be printed



                                                                                                              Mr. ROSTENKOWSKI, from the Committee on Ways and Means,
                                                                                                                                 submitted the following


                                                                                                                                       REPORT


                                                                                                                                   [To accompany H.R. 2152]

                                                                                                                     [Including cost estimate of the Congressional Budget Office]
                                                                                                             The Committee on Ways and Means, to whom was referred the
                                                                                                            bill (H.R. 2152) to enhance the effectiveness of the United Nations
                                                                                                            international driftnet fishery conservation program, having consid-
                                                                                                            ered the same, report favorably thereon with amendments and rec-
                                                                                                            ommend that the bill as amended do pass.
                                                                                                             For the amendments made by this committee, see copy of the re-
                                                                                                            ported bill.

                                                                                                                                BACKGROUND AND SUMMARY
                                                                                                             The purpose of H.R. 2152 is to enhance the effectiveness of
                                                                                                            United Nations Resolution Number 46-215 and to bring an end to
                                                                                                            the practice of large-scale driftnet fishing on the high seas. H.R.
                                                                                                            2152 would do so by broadening the import sanctions applicable
                                                                                                            under U.S. law to countries whose nationals or vessels engage in
                                                                                                            large-scale driftnet fishing on the high seas on or after December
                                                                                                            31,1992.
                                                                                                             Large-scale driftnet fishing is a method of fishing in which a gill-
                                                                                                            net composed of a panel or panels of webbing, with a total length
                                                                                                            of one and one half miles or more, is placed in the water and al-
                                                                                                            lowed to drift with the currents and winds. These nets, which are
                                                                                                            usually made of nearly invisible monofilament line, entangle virtu-
                                                                                                            ally everything that comes in contact with them. Often fished in
                                                                                                            lengths exceeding 30 miles, large-scale driftnets ar6 distinguished
                                                                                                            by their method of harvest, indiscriminately killing not only non-
                                                                                                            targeted fish, but dolphins, whales, turtles and seabirds.
                                                                                                               52-464







                                                 .2                                                                                             3
                                                                                                             mends that countries cease, without exception, large-scale driftnet
                  The fishery of greatest concern today is the large-scale driftnet                          fishing on the high seas by December 31, 1992. All countries have
               fishery in the North Pacific Ocean which became commercially im-
               portant in the mid-1970's and contined to grow until the late                                 now indicated that they intend to comply with the new resolution,
               1980's. Fishermen from Japan, Taiwan and the Republic of Korea                                although France, for technical reasons, has been given an addition-
               used large-scale dirftnets to target various species of salmon, squid,                        al year to comply under an EC regulation implementing the new
               and tuna. This buildup of the foreign driftnet fleets on the high                             U.N. resolution.
               seas led to a commensurate increase in the mortality of seabirds,                               H.R. 2152, as amended, seeks to enhance the effectiveness of
               marine mammals, and U.S. origin salmon. At the height of the                                  U.N. Resolution No. 46-215 and to bring an end to the use of large-
               high seas large-scale driftnet fishery in the late 1980's over 800 for-                       scale driftnet fishing on the high seas by broadening the import
               eign vessels were fishing in the North Pacific Ocean. In addition to                          sanctions applicable under U.S. law to countries whose nationals or
               the devastating effects this fishery was having on the returns of                             vessels continue to engage in such fishing on or after December 31,
               U.S. salmon and steelhead to native streams, National Marine                                  1992.
               Fisheries Service scientists estimated that tens of thousands of
               marine mammals were taken in the 50,000 net retrievals each                                                            COMMITTEE ACTION
               year.                                                                                           H.R. 2152 was reported with amendments on October 22, 199 1, by
                  Since the mid-1980's number of domestic and international initia-                          the Committee on Merchant Marine and Fisheries. The bill was se-
               tives have been taken with the objective of eliminating these drift-                          quentially referred to the Committee on Ways and Means for a
               net fishing operations. Domestically, the Congress passed in 1987                             period ending not later than Februar 28, 1992. It should be noted
               the Driftnet Impact Monitoring, Assessment, and Control Act of                                                                        y
                                                                                                             that H.R. 2152 was reported by the Committee on Merchant
               1987 (Public Law 100-20). The Act was intended to monitor assess,                             Marine and Fisheries before the adoption of U.N. Resolution No.
               and reduce the adverse impacts of large-scale driftnets. As a result                          46-215 on December 20, 1991. Thus, some of the effective dates con.
               of this 1987 Act, agreements were negotiated with Japan, Taiwan,                              tained in H.R. 2152 as reported by the Committee on Merchant
               and the Republic of Korea, which were to terminate on June 30,                                Marine and Fisheries became inappropriate since they had been
               1992, when a U.N. moratorium on driftnet fishing was originally                               keyed to dates in the earlier U.N. Resolution No. 44-215.
               slated to enter into force. In July 1991, both Taiwan and Korea                                 The Committee on Ways and Means held a mark-up of H.R. 2152
               were found to be in violation of these agreements and were certi-
    co         fied as such b the Secretary of Commerce under section 8(a) of the                            on February 12, 1992, and, by voice vote, ordered H.R. 2152 favor-
               Fishermen's Protective Act of 1967.                                                           ably reported, with amendments.
                  The Congress also passed several amendments pertaining to                                  SECTION-BY-SECTION ANALYSIS, COMPARISON WITH PRESENT LAW,
               driftnets in the 1991 amendments to the Magnuson Fishery Conser-                                AND JUSTIFICATION OF THOSE PROVISIONS WITHIN THE JURISDIC-
               vation and Management Act. Under these amendments, there is a                                   TION OF THE COMMITTEE ON WAYS AND MEANS
               prohibition on the importation of fish or fish products caught with
               large-scale driftnets in the South Pacific and tuna caught with                                 TITLE I-HIGH SEAS LARGE-SCALE DRIFTNET FISHING
               driftnets on the high seas after July 1, 1991, and a prohibition on
               the importation of any fish or fish products caught with large-scale                          SECTION 101(b). SANCTIONS.
               driftnets anywhere on the high seas after July 1, 1992.                                       Present law
                  Internationally, more than 20 South Pacific nations, the United
               States and France agreed in November 1989 to the Convention for                                 The 1991 amendments to the Magnuson Fishery Conservation
               the Prohibition of Fishing with Long Drift-nets in the South Pacif-                           and Management Act prohibit the importation of fish or fish prod.
               ic, also known as the Wellington Convention. The Wellington Con-                              ucts caught with large-scale driftnets in the South Pacific and tuna
               vention set July 1, 1991, as the date for the cessation of large-scale                        caught with driftnets on the high seas after July 1, 1991, and pro-
               driftnet fishing operations in the South Pacific. As a result of this                         hibit the importation of any fish or fish products caught with large-
               convention, virtually all large-scale driftnet fishing has ceased in                          scale driftnets anywhere on the high seas after July 1, 1991,
               the South Pacific Ocean.
                  In addition, the United Nations General Assembly has adopted                               Explanation of Provision
               two recent resolutions concerning driftnet fishing. The first such                              In general, section 101(b) expands the import sanctions applica-
               resolution, U.N. Resolution No. 44-225, was adopted on December                               ble to countries whose nationals or vessels engage in driftnet fish-
               29, 1989, and recommended that all countries cease large-scale                                ing on the high seas on or after December 31, 1992, and sets forth
               driftnet fishing on the high seas by June 30, 1992. However, this                             the procedures to be followed in applying those import sanctions.
               resolution also contained certain language that could have been                               As amended by the Committee, the effective date of the provision is
               used by countries to justify the continuation of such fishing and                             compatible with U.N. Resolution 46-215, and the procedures set
               several countries had indeed indicated their intent to do so. To                              forth therein provide more flexibility to the Administration in in-
               close the loophole, the United States sought and achieved adoption                            suring compliance by our trading partners with such resolution.
               on December 20, 1991, of U.N. Resolution No. 46-215, which recom-



      mm-wm MMMMMM

                                                   4                                                                                            5
                   Subsection (b)(1) requires the Secretary of Commerce not later                            the bill as reported by the Committee on Merchant Marine and
                 than December 31, 1992, to identify each country the nationals or                           Fisheries to provide the President some flexibility procedurally for
                 vessels of which conduct large-scale driftnet fishing beyond the ex-                        dealing with the unlikely situation that a country may be in viola-
                 clusive economic zone of any country and to notify the President                            tion of the U.N. moratorium after December 31, 1992. For example,
                 and that country of the identification. At any time after December                          a country may find that pirate fishing vessels under its flag have
                 31, 1992, that the Secretary of Commerce has reason to believe that                         resumed using large-scale driftnets and a short period of time is re-
                 the nationals or vessels of any country are conducting large-scale                          quired for the United States and the country in question to agree
                 driftnet fishing beyond the exclusive economic zone of any country,                         on how best to effect the immediate termination of the practice so
                 the Secretary shall identify that country and notify the President                          that the country can avoid having U,S. mandatory import sanc-
                 and that country of the identification.                                                     tions imposed against it.
                   Subsection (b)(2) requires the President to enter into consulta-
                 tions with respect to any country identified after December 31,                             SECTION 103(2). DEFINITION OF LARGE-SCALE DRIFTNET FISHING.
                 1991, within thirty days after the identification. The purpose of                           Present law
                 these consultations is to obtain an agreement that will effect the
                 immediate termination of large-scale driftnet fishing by the nation-                          No provision.
                 als or vessels of that country beyond the exclusive economic zone of
                 any country. It is the Committee's understanding that immediate                             Explanation of provision
                 termination does not necessarily mean instantaneous, although the                             The committee adopted an amendment to the definition of large-
                 termination should be achieved within a matter of no more than                              scale driftnet fishing as contained in the bill as reported by the
                 several weeks if aw phase-down period is justified by the particu-                          Committee on Merchant Marine and Fisheries which creates an ex-
                 lar circumstances o a case.                                                                 ception until January 1, 1994, for the use in the northeast Atlantic
                   Subsection (b)(3) requires the President to direct the Secretary of                       Ocean of gillnets with a total length not to exceed 5 kilometers if
                 the Treasury to prohibit the importation of shellfish, fish and fish                        the use is in accordance with regulations adopted by the European
                 products, and sport fishing equipment from any country that has                             Community pursuant to the October 28, 1991, decision by the Coun-
                 been identified by the Secretary of Commerce under subsection                               cil of Fisheries Ministers of the Community.
                 (b)(1) and, in the case of countries identified after December 31,
                 1991, with which consultations have not been satisfactorily con-                            Reasons for change
                 cluded within 90 days. The Secretary of the Treasury shall imple-                            The Committee agreed that this exception was appropriate to
                 ment any prohibition not later than 30 days after receiving direc-                          avoid having mandatory sanctions go into effect against a country
                 tion from the President and shall provide public notice of the im-                          of the European Communities that had indicated it required an ad-
                 pending prohibition.                                                                        ditional year to comply with U.N. Resolution No. 46-215 and was
                   Subsection (b)(4) requires the Secretary of Commerce to certify to                        granted this additional time by the implementing regulation of the
                 the President any country (after six months from the identifica-
                 tion) that has not terminated large-scale driftnet fishing on the                           Communities.
                 high seas, or has retaliated against the United States. This certifi-                             TITLE 11-FISHERIES CONSERVATION PROGRAMS
                 cation is deemed to be a certification under section 8(a) of the Fish-
                 erman's Protective Act as amended by this Act. This would make                              SECTION 201. IMPORT RESTRICTIONS UNDER THE FISHERMAN'S PROTEC-
                 additional import sanctions available for the President to use on a                                    TIVE ACT OF 1967.
                 discretionary basis if he deemed it appropriate.                                            Present law
                 Reasons for change                                                                           Under the Fisherman's Protective Act of 1967 (22 U.S.C. 1978),
                   The Committee strongly supports recently adopted U.N. Resolu-                             the President has the discretionary authority to impose import
                 tion No. 46-215 banning the use of large-scale driftnet fishing on                          sanctions on any fish and wildlife products from any country which
                 the high seas. The Committee is encouraged that there is unanimi-                           conducts fishery practices or engages in trade which diminishes the
                 ty among all nations to comply with this ban as of December 31,                             effectiveness of international programs for fishery conservation or
                 1992. At the same time, the Committee believes that, since the                              programs for endangered or threatened species.
                 U.N. resolution does not include any enforcement mechanism, it is
                 appropriate to provide for effective enforcement of the resolution                          Explanation ofp,rovision
                 under U.S. law through the use of a combination of mandatory and                             This section amends section 8 of the Fisherman's Protective Act
                 discretionary import sanctions. The bill as reported by the Commit-                         of 1967 to expand the current discretionary powers of the President
                 tee provides for such sanctions and their use in such a way that                            under the Act to include the ability to impose import sanctions on
                 attempts to reflect recent developments at the international negoti-                        any product against an offending country.
                 ating table as well as customary procedures in U.S. trade laws for
                 imposing import sanctions. In this regard, the Committee amended









                                                 6

                Reasons for change
                  The Committee believes that an expansion of the discretionary
                authorities of the President under the Fisherman's Protective Act
                of 1967 will give him additional statutory tools to carry out more
                effectively the objectives of the Act.
                SECTION 203. TRADE NEGOTIATIONS AND THE ENVIRONMENT.

                Present law
                  No provision.
                Explanation of provision
                  As amended by the Committee, section 203 states the sense of
                the Congress that the President, in the carrying out of multilater-
                ial, bilateral, and regional trade negotiations, should seek to ad-
                dress environmental issues relating to the negotiations; reform the
                GATT to reflect contracting parties' environmental laws and inter-
                national treaties; to secure a GATT working party on trade and the
                environment; to work to make GATT more responsive to national
                and international environmental concerns; to include other federal
                agencies with environmental expertise in trade negotiations; and to
                consult with interested parties concerning progress in the negotia-
                tions.
                Reasons for change
                  The Committee believes that there is a growing need to coordi-
                nate U.S. policy in the trade area with U.S. policy in the environ-
    CD
                mental area and vice versa. At the same time, the Committee be-
                lieves that further study and analysis on how best to accomplish
                this policy coordination is warranted before the Congress legislates
                on U.S. negotiating objectives in this field. In light of the above,
                the Committee believes that a sense of Congress resolution address-
                ing this matter is the most appropriate means of expressing its
                views at this time.






















                      OF        Pr                                   or



                                                                                                                MMMMMM mile I J


                                                                                                                                      102D CONGRESS I                                                          REPORT
                                                                                                                                         2d 8,8,,,n       I  HOUSE OF REPRESENTATIVES                         102-758




                                                                                                                                       MARINE MAMMAL HEALTH AND STRANDING RESPONSE
                                                                                                                                                                              ACT




                                                                                                                                        JuLy 30, 1992-Committed to the Committee of the Whole House on the State of
                                                                                                                                                              the Union and ordered to be printed



                                                                                                                                        Mr. JONES of North Carolina, from the Committee on Merchant
                                                                                                                                                   Marine and Fisheries, submitted the following


                                                                                                                                                                        REPORT


                                                                                                                                                                    [To accompany H.R. 3486]

                                                                                                                                                  [Including Cost Estimate of the Congressional Budget Office]
                                                                                                                                        The Committee on Merchant Marine and Fisheries, to whom was
                                                                                                                                      referred the bill (H.R. 3486) to amend the Marine Mammal Protec-
                                                                                                                                      tion Act of 1972 to provide for examination of the health of marine
                                                                                                                                      mammal populations and for effective coordinated response to
                                                                                                                                      strandings and catastrophic events involving marine mammals,
                                                                                                                                      having considered the same, report favorably thereon with amend-
                                                                                                                                      ments and recommend that he bill as amended do pass.
                                                                                                                                        The amendments are as follows:
                                                                                                                                        Strike all after the enacting clause and insert the following:
                                                                                                                                      SECTION 1. SHORT TITLE.
                                                                                                                                        This Act may be cited as the "Marine Mammal Health and Stranding Response
                                                                                                                                      Act".
                                                                                                                                      SEC. 2. FINDINGS.
                                                                                                                                        The Congress rinds the following:
                                                                                                                                            (1) Current stranding network participants have performed an undeniably
                                                                                                                                           valuable and ceaseless job of responding to marine mammal strandings over the
                                                                                                                                           last 15 years.
                                                                                                                                            (2) Insufficient understanding of the connection between marine mammal
                                                                                                                                           health and the physical, chemical, and biological parameters of their environ-
                                                                                                                                           ment prevents an adequate understanding of the causes of marine mammal un-
                                                                                                                                           usual mortality events.
                                                                                                                                            (3) An accurate assessment of marine mammal health, health trends in
                                                                                                                                           marine mammal populations in the wild, and causes of marine mammal unusu-
                                                                                                                                           al mortality events cannot be made without adequate reference data on marine
                                                                                                                                           mammals and the environment in which they live.
                                                                                                                                            (4) A systematic assessment of the sources, presence, levels, and effects of po-
                                                                                                                                           tentially harmful contaminants on marine mammals would provide a better un-
                                                                                                                                           derstanding of some of the cause4 of marine mammal unusual mortality events
                                                                                                                                           59-006



































                                                                                                                                  PURPOSE OF THE BILL
                                                                                                             The purpose of H.R. 3486 is to amend the Marine Mammal Pro-
                                                                                                           tection Act of 1972 to provide for examination of the health of
    NJ                                                                                                     marine mammal populations and for effective, coordinated re-
                                                                                                           sponses to unusual mortality events involving marine mammals.

                                                                                                                        BACKGROUND AND NEED FOR LEGISLATION
                                                                                                             Marine mammals beach and strand themselves regularly along
                                                                                                           the shores and within the waters of the United States. Since the
                                                                                                           passage of the Marine Mammal Protection Act (MMPA) in 1972, ef-
                                                                                                           forts have been made nationwide to assist stranded marine mam-
                                                                                                           mals. These efforts have been conducted largely by stranding net-
                                                                                                           work participants, who, under section 112(c) of the MMPA, hold
                                                                                                           Letters of Agreement (LOAs) from the National Marine Fisheries
                                                                                                           Service (MNFS). These LOAs authorize participants to engage in
                                                                                                           stranding-related activities. Stranding network participants work
                                                                                                           primarily on a volunteer basis, and include both non-profit and for-
                                                                                                           profit organizations and institutions. Among the general goals of
                                                                                                           the stranding network are to derive maximum educational and sci-
                                                                                                           entific benefits from stranded marine mammals, which may lead to
                                                                                                           an improved ability to determine the causes of marine mammal
                                                                                                           strandings.

                                                                                                                            STRANDING NETWORK PARTICIPANTS
                                                                                                             Federal responsibility for marine mammals resides in both the
                                                                                                           Department of Commerce (DOC) and the Department of the Interi-
                                                                                                           or (DOI). DOI is responsible for sea otters, manatees, walruses, and
                                                                                                           polar bears, while DOC is responsible for all other marine main
                                                                                                           mals, including whales, dolphins, seals, and sea lions. Both agencies



      mmmm                                                              mm@=Mmm MM INN I


                   rely heavily on a volunteer network for responding to individual                              (1) Determine when an unusual mortality event is occurring;
                   beachings or stranding events.                                                                (2) Determine the point at which an usual mortality event is
                     Stranding network participants are charged with the care and                              concluded;
                   custody of marine mammals, which includes rescue, rehabilitation,                             (3) Develop a contingency plan which allows for a coordinat-
                   and return to the wild or, if warranted, relocation or euthanasia of                       ed response to an event; and
                   beached or stranded marine mammals. These efforts are financed                                (4) Identify individuals or organizations that can assist the
                   through private and corporate donations and grants, without feder-                         Secretary in a coordinated and effectiveness response.
                   al assistance. The response of stranding network participants to                         The contingency plan will maximize our chances for identifying
                   day-to-day stranding events has been extraordinary, considering                        causes of unusual mortality events and their effects on marine
                   many operate under funding constraints and with only volunteer                         mammal populations. Also, the roles played by physical, chemical
                   help. Stranding network participants report on a monthly basis to                      and biological factors hopefully will be elucidated.
                   the appropriate Regional NMFS office on the marine mammals                               H.R. 3486 authorizes the Secretary, in consultation with the Sec-
                   that have been or are presently in their care. The information is                      retary of the Interior, at the start of any marine mammal unusual
                   then sent from the Regional NMFS Offices to the National NMFS                          mortality event, to choose an Onsite Coordinator, who will be re-
                   Office of Protected Resources in Silver Spring, Maryland.                              sponsible for directing and managing the appropriate response to
                     It is unlawful, under the MMP, for any person to "take" a                            that particular event.
                   marine mammal (i.e., harass, hunt, capture, or kill or attempt to                               MARINE MAMMAL TISSUE BANK AND TISSUE ANALYSIS
                   harass, hunt, capture, or kill any marine mammal) without federal
                   authorization. Because rescuing a stranded marine mammal is con-                         Strandings and unusual mortality events can be used as learning
                   sidered a "take", stranding network participants are given author-                     tools to diagnose the health of marine mammal populations. If a
                   ity to do so under sections 112(c) and 109(h)(1) of the MMPA.                          marine mammal is still live or freshly dead, tissues can be collect-
                     Although H.R. 3486 will not provide direct financial assistance                      ed for analysis, the results of which may lead to an explanation of
                   for day-to-day operations within the stranding network, it will offer                  what caused the marine mammal to strand. During the more than
                   indirect assistance. The Secretary will be required to gather and                      15 years the stranding networks have been operating, tissues have
                   compile information on the rescue and rehabilitation of marine                         been collected, but methods of tissue collection, preparation, stor-
                   mammals, and to develop objective criteria for determining the                         age, and examination have been variable and not standardized.
                   point at which a rehabilitated marine mammal can be returned to                          H.R. 3486 will coordinate existing facilities for the archiving of
                   the wild. H.R. 3486 also requires the Secretary, through the Office                    marine mammal tissues into a National Marine Mammal Tissue
                   of Protected Resources, to produce guidelines for the collection,                      Bank. NMFS, in consultation with the marine mammal scientists,
                   preservation, labeling, transport, and quality-controlled archiving                    will issue recommended guidelines for collection, preparation and
                   of marine mammal tissue samples in the National Marine                                 archiving of tissues, as well as recommended, best-available, tissue
                   Mammal Tissue Bank. These guidelines will also be made available                       analysis techniques. Thus, information from one event will be com-
                   as guidance for day-to-day collections by stranding network partici-                   parable to information from another event, and all these will be
                   pants who wish to use them. The Secretary will provide access to                       able to be referenced to standard samples taken from non-stranded
                   the NMFS information data base for investigations into marine                          marine mammals in the wild. Sources of these samples will be
                   mammal health and population trends, and for relating of those                         marine mammals caught accidentically in fishing operations, taken
                   stranding network participants who request it.                                         by native fishermen under special subsh9tence permits, or sampled
                              MARINE MAMMAL UNUSUAL MORTALITY EVENTS                                      from live marine mammals in the wild and achieved in the Nation-
                                                                                                          al Marine Mammal Tissue Bank.
                     Three specific events triggered the need for this legislation-the                      Of all the provisions in H.R. 3486, it is anticipated that archived
                   stranding of 14 humpback whales off Cape Cod in 1987, the bottlen-                     tissue samples and standardized, quality-controlled tissue analyses
                   ose dolphin die-off along the Atlantic seaboard in 1987-88, and the                    will provide the most insightful evidence for determining why
                   EXXON VALDEZ oil spill in Prince William Sound in 1989. These                          marine mammals strand, how unusual mortality events occur, and
                   unusual mortality events (unexpected marine mammal stranding                           when these events are detrimental to marine mammal populations.
                   events that cause significant die-offs of marine mammal popula-
                   tions and require immediate responses) demonstrated that existing                                              COMMITTEE ACTION
                   law did not provide for effective, coordinated responses to catastro-                    H.R. 3486 was introduced on October 3, 1991, by Mr. Carper, Mr.
                   phes of this nature. H.R. 3486 recognizes that to overcome misman-                     Saxton, Mr. Jones, Mr. Studds, and others.
                   agement and uncoordinated response to these unusual mortality                            The Subcommittee on Fisheries and Wildlife Conservation and
                   events, pre-planning, consistent training, and a known chain of                        the Environment met on June 25, 1992 to consider H.R. 3486. At
                   command are necessary.                                                                 that time Mr. Carper, Mr. Saxton, and Mr. Studds offered an
                     H.R. 3486 requires the Secretary to establish an unusual mortali-                    amendment in the nature of a substitute, which clarified the proc-
                   ty event working group that will-                                                      ess by which the Secretary gathers and compiles information and






                                                       10                                                                                         11
                      specified the protocol the Secretary is required to follow during a                      can be made. Such comparisons will help determine if trends ob-
                      marine mammal unusual mortality event. The bill, as amended,                             served are either normal fluctuations and ranges or statistically
                      was ordered reported to the Full Committee by voice vote.                                significant changes over time within the biological system being ex-
                        The Full Committee met on July 1, 1992, to consider the bill. Mr.                      amined.
                      Saxton and Mr. Carper offered an en bloc amendment that ad-                                Throughout this title, the phrase "in the wild" is used to ensure
                      dressed two issues: (1) development and implementation by the Sec-                       that nothing in this title is meant to regulate any species of marine
                      retary of objective criteria for determining at what point a rehabili-                   mammals currently held in captivity at aquaria, zoos, or other fa-
                      tated marine mammal can be returned to the wild; and (2) liability.                      cilities in the United States.
                        The Committee approved this en bloc amendment by voice vote,                             The Committee expects the Secretary to actively seek out and
                      and ordered H.R. 3486 reported to the House of Representatives.                          consult with other agencies to compile information on "physical,
                                                                                                               chemical, or biological parameters". Examples include: water Sam-
                                         SwTioN-BY-SEcTioN ANALYSIS                                            pling results from the Environmental Protection Agency (EPA); mi-
                                                                                                               crobiological testing from the Centers for Disease Control; oil vis-
                                             SECTION 1. SHORT TITLE                                            cosity and composition testing by the Coast Guard; weather data
                                                                                                               from the National Oceanic and Atmospheric Administration
                        The short title is the "Marine Mammal Health and Stranding                             (NOAA); and habitat degradation, human disturbance, or food
                      Response Act" -                                                                          availability data from the Fish and Wildlife Service, all of which
                                              SECTION 2. FINDINGS                                              could have been documented at or near the same time or location
                                                                                                               as a marine mammal unusual mortality event. The Committee also
                        Section 2 sets forth eight Congressional    findings regarding the                     intends for the Office to gather existing data from programs such
                      lack of effective programs for assessing the health of marine mam-                       as EPA's Environmental Monitoring and Assessment Program and
                      mals in the wild, and for responding to marine mammal strand-                            NOAA's Status and Trends Program,
                      ings, including unusual mortality events (i.e. die-offs).                                  The Committee does not intend that the National Marine Fisher-
                        SECTION 3. MARINE MAMMAL HEALTH AND STRANDING RESPONSE                                 ies Service or the U.S. Fish and Wildlife Service will actually con-
                                                                                                               duct an programs of marine environmental research, but rather
                                                    PROGRAM                                                    they %N @l gather information already being collected from other ap-
                        Section 3(a) adds a new Title III to the Marine Mammal Protee-                         propriate government and private entities and correlate that infor-
                      tion Act, creating the Marine Mammal Health and Stranding Re-                            mation with marine stranding events.
                      sponse Program. The new title is divided into the following subsec-                      Section 302. Determination, data collection, and dissemination
                      tions:                                                                                     Section 302(a) directs the Secretary to, within 24 months of en-
                      Section 301. Establishment of program                                                    actment, develop and implement objective criteria, on a species-by-
                        Section 301(a) would require the Secretary of Commerce ("the                           species basis, for determining at what point a marine mammal that
                      Secretary") to establish the Marine Mammal Health and Stranding                          has been rescued and rehabilitated is returnable to the wild.
                      Response Program.                                                                          Historically, for the past 15 years stranding network participants
                        The Secretary will have full administrative and operational re-                        have been rescuing and rehabilitating marine mammals. Details on
                      sponsibility for ensuring that the procedures in this title are fol-                     how to rescue and rehabilitate marine mammals have grown out of
                      lowed. However, the Committee does not intend for the Secretary                          trial, error, and experience. Criteria for determining at what point
                      to exclude the Secretary of the Interior from the process of being                       these rehabilitated marine mammals are either ready to be re-
                      consulted regularly during an unusual mortality event, if that                           turned to the wild, or if not releasable, ready to be moved to a per-
                      event should involve a marine mammal under the jurisdiction of                           manent display or academic facility, has traditionally fallen within
                      the Department of the Interior. In addition, the Committee expects                       the purview of the stranding network participant in consultation
                      that this program will focus not only on cetaceans (whales and dol-                      with veterinarians and animal care committees. This Title will ex-
                      phins), but equally on pinnipeds (seals, sea lions, walruses), sea                       Eedite that process by requiring that NMFS gather the rescue, re-
                      otters, manatees, and polar bears.                                                        abilitation, and release criteria being used by individual field in-
                        Subsection (b) states that the purposes of the program are to--@I)                     stitutions and compile them into usable objective criteria for stand-
                      facilitate collection and dissemination of reference data on marine                      ardized use. The Committee expects that the criteria developed and
                      mammals; (2) correlate the health of marine mammals in the wild                          implemented by the Secretary will allow relative leeway for veteri-
                      with available data on physical, chemical, and biological param-                         nary best judgment decisions.
                      eters; and (3) coordinate effective responses to marine mammal un-                         In order to develop the criteria as required by sect-ion 302(a), sub-
                      usual mortality events by establishing a process within the Depart-                      section (b) requires that the Secretary and the Secretary of the In-
                                                                                                               terior gather, compile, and periodically update, existing informa-
                      ment of Commerce to do so.                                                               tion on procedures and practices for rescuing, rehabilitating, and
                        By "reference data" the Committee means data, such as biotoxin,                        returning stranded marine mammals to the wild. Additionally, the
                      pollutant, and contaminant tissue levels, from which comparisons



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                     Secretary is directed to collect and catalog appropriate scientific                                                                   13
                     literature and information on marine mammal health, disease, re-
                     habilitation, strandings, life history, and reference level data.                                        00 Determine, once a response has begun, when that par-
                        The Committee intends that the majority of the "life history and                                   ticular response to an unusual mortality event should be con-
                     reference level data" will come out of library collections located at                                 cluded; and
                     the Marine Mammal Commission, the National Marine Mammal                                                 (iii) Develop a contingency plan to assist the Secretary in re-
                     Laboratory Library, and the Smithsonian Institution. In addition,                                     sponding to unusual mortality events,
                     the Committee expects that NMFS will contact the Food and Agri-                                     The unusual mortality event working group will also be responsi-
                     culture Organization of the United Nations and gather whatever                                   ble for determining if an unusual mortality event is occurring, de-
                     information they might have available within their United Nations                                fined as an unexpected, "significant" die-off of any marine
                     Environmental Program Regional Seas Bibliography.                                                mammal population that demands immediate response. There is
                        Subsection (c) directs the Secretary to make all information col-                             the potential if an area is very remote or if a very rare species of
                                                                                                                      marine is involved that only one or a few animals will be consid-
                     lected under section 302 available for stranding network partici-                                ered "significant"; this will be determined by the working group
                     pants and other qualified scientists to utilize while conducting                                 based on the best professional judgment of its members.
                     studies on marine mammal health, disease, and strandings.                                          Subsection (a)(1)(B) states that the Federal Advisory Committee
                     Section 303. Stranding response agreements                                                       Act (FACA) will not appl to the marine mammal unusual mortali-
                                                                                                                      ty event working group. VACA is waived for two reasons:
                        Section 303(a) concerns Letters of Agreement (LOAs) under sec-                                        (1) To allow the Secretary to work with the unusual mortali-
                     tions 112(c) and 109(hXl) of the Marine Mammal Protection Act,                                        ty event working group, particularly when immediate action is
                     which the Secretary is required to enter into in order for a marine                                   required; and
                     mammal to be rescued ("taken") during a stranding or unusual                                             (2) To allow the working group to be a continuum, not sub-
                     mortality event.                                                                                      ject to reappointment on a two-year basis and not subject to
                        Subsection (b) requires that the LOAs contain, at a minimum,                                       the filing of annual reports. The Committee does expect that
                     the name of the person (i.e. stranding network participant perform-                                   minutes will be kept of all formal meetings of the working
                     ing rescue and rehabilitation) who is authorized to take marine                                       group.
                     mammals, and specific terms and conditions for responding, report-                                 Subsection (a)(2) requires specific times within which the Secre-
      NJ                                                                                                              tary must respond     to an
      rQ             ing, and delegating authority to another person. The Committee                                                                unusual mortality event. In general, the
      Ul             anticipates that LOAs will be standardized nationwide.                                           Secretary must contact as many working group members as possi
                        Subsection (c) requires the Secretary to periodically update these                            ble within 24 hours of notification by a stranding network partici-
                     LOAs for performance adequacy and effectiveness. Depending on                                    pant that an unusual mortality event may be occurring. The Secre-
                     the facility's history, the length of time the facility has been in ex-                          tary must also determine the need for and designate an Onsite Co-
                     istence, and the degree of veterinary medical expertise within the                               ordinator within 48 hours, if the Secretary determines that an un-
                     facility, the Secretary may choose to review that facility more or                               usual event is occurring.
                     less often for performance adequacy and effectiveness. The Com-                                    B7 employing the phrase "to the extent necessary and practica-
                     mittee expects that those facilities for which complaints exist will                             ble', the Committee intends that the Secretary shall, within 24
                     be reviewed more frequently.                                                                     hours of a suspected unusual mortality event, contact.as many
                                                                                                                      working group members as possible to query their opinions on
                        Inherent in this section is    the Committee's intent that persons                            whether an unusual mortality event is occurring. For instance, if
                     not authorized by LOAs may not legally respond to a stranding or                                 there is a potential bacterial or viral problem, the Secretary and
                     unusual mortality event without first entering into such an agree-                               the working group may wish to gather additional information on
                     ment with the Secretary or acting under an already authorized                                    numbers, species, sexes, ages, and specific conditions of those ani-
                     stranding network participant's LOA.                                                             mals that might be stranding to aid in their assessment of whether
                     Section 304. Unusual mortality event response                                                    an unusual mortality event is occurring. They have leeway to do
                                                                                                                      this, using what the Committee assumes will be their own best
                        Section 304(a) requires the Secretary, in consultation with the                               judgments based on past experience. The Committee recognizes the
                     Secretary of the Interior, to establish a marine mammal unusual                                  fact that emergency situations may require a degree of flexibility
                     mortality event working group, consisting of individuals with                                    in the process.
                     knowledge and experience in marine science marine mammal sci-                                     For the majority of potential unusual mortality events, however,
                     ence, marine mammal veterinary and husbandry practices, marine                                   the Committee expects the Secretary to contact the unusual mor-
                     conservation, and medical science, to provide guidance to the Secre-                             tality event working group within 24 hours of being contacted by a
                     tary. The working group will help the Secretary:                                                 local stranding network participant, and, with its guidance, decide
                            G) Determine whether an unusual mortality event is occur-                                 whether an event is or is not occurring within 48 hours.
                          ring;                                                                                        If the Secretary determines that an unusual mortality event is
                                                                                                                      pccurring, then the Secretary must within that same 48 hours, and
                                                                                                                      in consultation with the Secretary of the Interior, if appropriate,







                                                 14                                                                                           15
               designate an Onsite Coordinator. The Onsite Coordinator shall im-                            merce's and Interior's purview are involved, if the numbers of ani-
               mediately make recommendations to the stranding network partici-                             mals involved is large, or if the range of the event is wide, more
               pant on now to proceed, whether by following a contingency plan                              than one Onsite Coordinator may be designated. If more than one
               (as detailed below) or (if no contingency plan exists or if the exist-
               ing contingency plan is inappropriate for the situation), by follow-                         Onsite Coordinator is designated, however, one of them will be se-
               ing the best professional judgment of the Onsite Coordinator in re-                          lected by the Secretary to be the primary Onsite Coordinator.
               sponding to the unusual mortality event.                                                       The Onsite Coordinator will be designated within the same time-
                 Subsection (b) details the contents of a contingency plan. The                             frame as the appropriate stranding network participant is in-
               contingency plan will, at a minimum: (1) contain a list of persons,                          formed that an unusual mortality event is indeed occurring. The
               including stranding network participants, and persons at all levels                          Onsite Coordinator will be chosen from appropriate personnel of
               (local, state, and national), who can assist the Secretary in imple-                         the Regional Offices of either the National Marine Fisheries Serv-
               menting a coordinated and effective plan; (2) describe the types of                          ice or the U.S. Fish and Wildlife Service. The Committee antici-
               tissues and tissue analyses necessary to assist in diagnosing causes                          ates that the choice of Regional Director or his/her designee will
               of unusual mortality events; (3) establish procedures for training,                          ge based either on the location of the event or the marine mammal
               mobilizing, and using available personnel, facilities, and other re-                         expertise of the individual so designated. The Onsite Coordinator
               sources; (4) ensure rapid and effective response to emergencies and                          will manage personnel and facility usage, act as a liaison between
               unusual mortality events; and (5) minimize death of marine mam-                              the local stranding network participants and the Office, and coordi-
               mals in the wild and provide appropriate care for marine mammals                             nate public relations. The Onsite Coordinator will also direct the
               durmg@ an unusual mortality event. It is also the intention of the                           response process under the contingency plan, or, if the contingency
               committee that, in developing the "detailed" contingency plan, the                           plan is incomplete, inadequate, or not applicable to the situation at
               specific rescue and rehabilitation techniques of individual species,                         hand, will use his/her best professional judgment. The Onsite Coor-
               as well as the potential geographical ranges of those species, will                          dinator may, in the case of an emergency or unique situation, tem-
               be addressed. As examples, the contingency plan should address                               porarily modify the existing contingency plan using his/her own
               the differences in care and handling between sea otters, polar                               best judgment. In the event that a modification is necessary, the
               bears, and fur seals, while alternatively, it might combine the re-                          Onsite Coordinator must consult as expeditiously as possible with
               sponses to certain coastal small cetaceans or deep-diving seals to-                          the Secretary regarding the reasons for the change, and allow the
                                                                                                            Secretary, consulting with the unusual mortality event working
               gether in family groupings.                                                                  group, to advise on any additional re@yonse procedure changes. The
                 The contingency plan should pinpoint centers of scientific knowl-
               edge (for example, centers with skills in pathology, microbiology,                           phrase "as expeditiously as possible' is meant to give the Onsite
               parasitology, toxicology, immunology, endocrinology, epidemiology,                           Coordinator a small amount of leeway in the event of an emer-
               and ecology) to call on during unusual mortality events, and which                           gency,
               will assist with response implementation and maximization of data                             The Committee does not intend that the authority conveyed by
               utilization.                                                                                 this Act will, in any way, supercede, modify, or limit the duties,
                 The contingency plan is meant to assist in determining the                                 and responsibilities of any person under the Oil Pollution Act of
               causes of an unusual mortality event, the effects any particular                             1990 or the Comprehensive Environmental Response, Compensa-
               event may have on marine mammal populations that are affected                                tion, and Liability Act.
               by the eve-at, and identify influencing roles, if any, that physical,                        Section 305. Unusual mortality event activity funding
               chemical, and/or biological factors may have, including any poten-
               tial roles played by pollutants or contaminants.                                              Section 305(a) establishes a "Marine Mammal Unusual Mortality
                 By "physical, chemical, and biological factors" the Committee                              Event Fund".
               means those situations, such as geophysical catastrophes, chemical                            Subsection (b) establishes uses for the Fund. The Fund is to be
               spills, pollutant or contaminant discharges, biotoxins, microbial or                         made available only to the Secretary and only for responding to
               parasite infestations, and any other unspecified emergencies affect-                         unusual mortality events. However, the Committee intends that
               ing marine mammals in the wild.                                                              the Secretary will consult with the Secretary of the Interior if spe-
                 The contingency plan or other response to an unusual mortality                             cies under the jurisdiction of the DOI are the marine mammals pri-
               event should not invalidate any    existing permits for scientific re-                       marily involved in the unusual mortality event. The Secretary of
               search or public display. During a recent Gulf of Mexico die-off, the                        Commerce will, if that is the case, act administratively and deliver
               public display community instituted a voluntary moratorium on                                the funds required by the Secretary of the Interior for responding
               taking marine mammals for display. The Committee expects that                                to that particular unusual mortality event. Monies from the Fund
               the community will voluntarily continue such practices.                                      will be available to compensate "special costs" incurred in respond-
                 Subsection (c) discusses designation and duties of the Onsite Co-                          ing to these events and costs of preparing and transporting tissues
               ordinator. The Onsite Coordinator is designated by the Secretary in                          collected with respect to an unusual mortality event for the Tissue
               consultation, when appropriate, with the Secretary of the Interior.                          Bank.
               If more than one species is involved, if species from both Com-                               By "special costs" the Committee intends for NMFS to cornpen-
                                                                                                            sate stranding network participants only for those items which



                                                              owl       OK                                                  14        1         N                   I



                                                                                                                   UPS OWN M END M, vim 1A



                                                    16                                                                                              17

                 NMFS recommends the stranding network participant have on                                        Subsection (b) limits the government's liability to simple negli-
                 hand and which are not included as standard rescue or rehabilita-                              gence and not to gross negligence or willful misconduct on the part
                 tion equipment. For example, during the EXXON VALDEZ oil spill                                 of the person responding.
                 in Alaska, emergency washing facilities had to be set up to clean                                For purposes of responding to day-to-day strandings and unusual
                 the otters; purchasing the tubs and plumbing materials might be                                mortality events, any 112(c) letterholder, including any stranding
                 considered a "special cost". The Committee does not anticipate that                            network participant as defined in this title, shall be considered a
                 gasoline or transport vehicles, or even earth-moving equipment or                              Federal employee for the purposes of affording them protection
                 carcass disposal would be "special costs", since local, county, or                             from liability in cases of simple negligence. The stranding network
                 State entities normally take responsibility for these items.                                   participants are actually acting for the Secretary, essentially as
                   An example of costs incurred in preparing and transporting tis-                              good Samaritans. Thus, the Committee intends to provide those
                 sues is liquid nitrogen which, because of its cost and storage re-                             stranding network participants some degree of protection from li-
                 quirements, is not normally a material stranding network partici-                              ability. In the case of simple negligence, it is anticipated the Secre-
                 pants have available for day-to-day responses. The Committee ex-                               tary will be liable, since the letterholder is acting under the contin-
                 pects that NMFS will cover costs such as these, as well as costs for                           gency plan or at the direction of the Onsite Coordinator. Only in
                 shipping properly collected tissues to the Tissue Bank. All reim-                              cases of gross negligence or willful misconduct will a stranding net-
                 bursement by NMFS will be done assuming the stranding network                                  work participant or letterholder not be protected.
                 participant has asked for and received permission or authorization                             Section 307. National marine mammal tissue bank and tissue anal-
                 to purchase or ship the item, saved the receipts, and filed a claim.                               ysis
                   Monies from the Fund will remain available until expended. If
                 the Fund is emptied of monies and pending authorized claims are                                  Section 307(a) requires the Secretary to make provision for the
                 still outstanding, those claims shall remain pending until such                                storage, preparation, examination, and archiving of marine
                 time as there are monies available. The authorized, pending claims                             mammal tissues. The Committee intends that the National Marine
                 shall then be distributed on a first-come, first-served basis.                                 Fisheries Service's Office of Protection Resources will coordinate
                   The "pending claims" subparagraph clarifies that stranding net-                              existing facilities for the archiving of marine mammal tissues into
                 work participants will not be reimbursed by NMFS if they have                                  the National Marine Mammal Tissue Bank. The Secretary will set
     tQ          not received permission for the purchase, if they have not properly                            up an identification, tracking, and routing system for tissues
     Ni                                                                                                         coming into and going out of the Tissue Bank.
                 filed the claim, or if no monies are available in the Fund to satisfy
                 the claim.                                                                                       Presently, there are marine mammal tissues stored at various fa-
                   Subsection (c) details that deposits into the Fund will include:                             cilities around the country, including stranding network facilities,
                      (1) Amounts appropriated to the Fund,                                                     clinical laboratories, academic institutions, the National Marine
                      (2) Other amounts that may be appropriated to the Secretary                               Mammal Laboratory in Seattle, the American Type Culture Society
                     in future years for use in unusual mortality events, and                                   in Baltimore, and the Armed Forces Institute of Pathology and
                      (3) Any monies received specifically for the Fund in the form                             Smithsonian Institution, both in Washington, D.C. However, the
                                                                                                                majority of these marine mammal tissues are not of adequate qual-
                     of gi s, devises, or bequests.                                                             ity for inclusion in the Tissue Bank. Any tissues not collected ac-
                   Subsection (d) permits the Secretary to accept, solicit, and use                             cording to the strict, standard, quality-controlled guidance issued
                 the services of volunteers, and to accept, solicit, receive, hold, ad-                         under this subsection will not be included in the Tissue Bank. The
                 minister, and use any gifts, devises, and bequests. The Committee's                            Committee anticipates that the National Marine Fisheries Service
                 intent in giving the Secretary this authority is to enhance the                                will certainly, if requested by a collector, direct those tissues not
                 methods by which monies can be collected and dispersed during un-                              strictly collected and preserved to other appropriate tissue reposi-
                 usual mortality events involving marine mammals. This section                                  tories around the country.
                 was included to allow the Secretary to accept offers of money and                                Tissues from non-stranded marine mammals will also be includ-
                 volunteer services during times of emergencies, such as unusual                                ed in the Tissue Bank. Sources for these tissues include incidental
                 mortality events involving marine mammals in the wild.                                         takes by fishermen, subsistence hunting activities by native Ameri-
                 Section 306. Liability                                                                         cans, and live animal biopsies in the wild. Only those tissues col-
                                                                                                                lected according to the Secretary's guidance will be included in the
                   Section 306(a) deems a person authorized to respond to a strand-                             Tissue Bank as reference samples. The Committee expects that tis-
                 ing an employee of the government and thus protected by the Fed-                               sues form marine        ammals that die during unusual mortalit
                 eral Tort Claims Act (28 U.S.C. 171). These persons are considered                             events, or during re abilitation following rescue from the wild, will
                 federal employees if they are acting in accordance with a section                              be included for com arative purposes, if collected appropriately.
                 112(c) Letter of Agreement or, in the case of an unusual mortality                               There is the potential that the Tissue Bank will, for some species
                 event, acting pursuant to, and in accordance with, either the con-                             of marine mammali (i.e. endangered or threatened species), be in
                 tingency plan or the best professional judgment of the Onsite Coor-                            dire need of compa@@tive and reference tissues, whereas in other
                 dinator for any matter not covered by the contingency plan.                                    cases the species of marine mammal may be common enough that








                                                     18                                                                                               19

                 the collection of tissues for that species in the National Marine                                fisheries-marine mammal studies will also be incorporated into the
                 Tissue Bank will be adequate. In any case, the Committee expects                                 data bank to assist scientists in population investigations.
                 that superfluous or duplicative efforts will be avoided. These deci-                               The Committee also expects the data base to be compatible with
                 sions, however, will be up to the Secretary and the Secretary of the                             standard hardwaro and software programs that a qualified scientist
                 Interior.                                                                                        or a stranding network participant might have available for his/
                   Currently the National Marine Fisheries Service has responsibil-                               her use.
                 ity for marine mammal tissues, including those tissues from the                                    Subsection (d) directs the Secretary, in consultation with the Sec-
                 Alaska Marine Mammal Tissue Bank, which are stored at the Na-                                    retary of the Interior, to establish criteria, after an opportunity for
                 tional Institute of Standards and Technology (NIST). NIST itself is                              public review and comment, for providing access for qualified scien-
                 under contract from the National Marine Fisheries Service to store                               tists, including stranding network participants, to tissues in the
                 the tissues at their facility. The Committee does not intend that                                Tissue Bank, to tissue analysis results and to other applicable
                 National Marine Fisheries Service will establish any new facility                                marine mammal reference data and literature references in the
                 for the archiving of tissues, but to use existing facilities.                                    data base.
                   Subsection (b) directs the Secretary, utilizing a process similar to                             Of all the provisions in this Act, it is anticipated that archived
                 that in section 307(a), to develop and issue guidelines for use in                               tissue samples, and standardized, quality controlled tissue analyses
                 tissue analysis. These directives will assist collection of blood, bone,                         will provide the most insightful evidence for determining why
                 fat, and other "non-tissue" materials to be analyzed in a manner                                 marine mammals strand themselves, how unusual mortality events
                 that will allow results from one analysis to be compared to other                                occur, and how detrimental these events are to marine mammal
                 analyses similarly collected and prepared. The Committee expects                                 populations.
                 that these tissue analysis guidelines will include the "most-effec-
                 tive and advanced diagnostic technologies and tools practicable" for                             Section 308. Authorization of appropriations
                 assessing overall health or disease in marine mammals. Again, the                                  This section authorizes the following amounts to be appropriated
                 Committee does not intend that either National Marine Fisheries                                  for carrying out this new title to the Marine Mammal Protection
                 Service or the U.S. Fish and Wildlife Service will directly be per-                              Act:
                 forming these analyses, only providing guidance for standardized                                        (1) $250,000 for fiscal 1993 and fiscal 1994 for administrative
     NJ          analysis in the public and private sectors.                                                           activities (all sections except sections 305 and 307);
     r-J           Subsection (c) directs the Secretary to develop and maintain a                                        (2) $250,000 for fiscal 1993 and fiscal 1994 for the Tissue
     00          central data base to ensure an effective means for tracking and ac-                                   Bank, Tissue Analysis and Data Bank (Sec. 307); and
                 cessing data on marine mammals, including relevant data on all                                          (3) $500,000 to the Fund (See. 305) for fiscal 1993.
                 samples collected for, and maintained in the Tissue Bank. Addi-                                    Section 3(b) directs the Secretary to implement, within 24
                 tional examples of data that the Committee minimally expects the                                 months after enactment of this new title: (1) sections 302(a) and
                 National Marine Fisheries Service to include in its computerized                                 302(b) of the new Title III, gathering clearinghouse information and
                 data base are:                                                                                   defining objective criteria for determining at what point a marine
                        (1) A bibliography of recent and current scientific papers and                            mammal is returnable to the wild, for use by stranding network
                      textbooks related to marine mammal strandings, unusual mor-                                 participants; and (2) section 304(b) the preparation of a detailed
                      tality events, health, disease, rehabilitation, and life history re-                        contingency plan for responding to any marine unusual mortality
                      lated to these topics. The Committee estimates approximately                                event.
                      10,000 to 12,000 appropriate references exist in both the scien-                                             SECTION 4. CONFORMING AMENDMENTS
                      tific and government literature, the majority of which is not
                      yet computer-cataloged at the Marine Mammal Commission in                                     This Section adds Title III to the applicable purposes of the
                      Washington, DC and the National Marine Mammal Laboratory                                    MMPA. These amendments to the MMPA will grant an exemption
                      Library in Seattle, Washington;                                                             for authorized stranding network participants to rescue, transport
                        (2) Collated basic minimum information documented by                                      and rehabilitate stranded or beached marine mammals in the time-
                      stranding network participants on a monthly basis and sent to                               liest fashion.
                      their Regional offices, as well as any supplemental information                                                      SECTION 5. DEFINITIONS
                      such as current weather, tides, human/predator activities, etc.;
                        (3) Incidental subsistence take numbers; and                                                Section 5 defines the following terms: Secretary (meaning the
                        (4) Any other tissue samples properly taken, for instance                                 Secretary of Commerce); Fund (the Unusual Mortality Event
                      during the course of any permitted scientific investigation de-                             Fund); Office (the Office of Protected Resources within National
                      signed to study issues unrelated to the Tissue Bank goals.                                  Marine Fisheries Service); -stranding (dead or live marine mammal
                   Marine mammal populations historically have been monitored                                     on the beach or in the water, unable to return to its natural habi-
                 indirectly by NMFS during fishery-marine mammal interaction                                      tat under its own power); stranding network participant (letter-
                 studies. The Committee expects that the information gathered in                                  holders under section 112(c) and 109(h)(D); tissue bank (section








                                               20

               307(a)'s National Marine Mammal Tissue Bank); and, unusual mor-
               tality event (a stranding that is an unexpected, significant die-off of
               marine mammals demanding immediate attention).



     MMMMMMMMMMMMMMMM on I I A

                                                                                                                                                Calendar No. 759
                                                                                                     102D CONC@RESS                                          REPORT
                                                                                                        2d Session                 SENATE                    102-438





                                                                                                      MARINE MAMMAL HEALTH AND STRANDING RESPONSE
                                                                                                                                     ACT




                                                                                                                     SEvmmBFR 30, 1992-ordered to be printed



                                                                                                          Mr. HOULINGS, from the Committee on Commerce, Science,
                                                                                                                and Transportation, submitted the following


                                                                                                                                REPORT


                                                                                                                              [To accompany S. 1898]
                                                                                                        The Committee on Commerce, Science, and Transportation, to
                                                                                                     which was referred the bill (S. 1898) to amend the Marine Mammal
                                                                                                     Protection Act of 1972 to provide for examination of the health of
                                                                                                     marine mammal populations and for effective coordinated response
                                                                                                     to strandings and catastrophic events involving marine mammals
                                                                                                     having considered the same, reports favorably thereon with an
                                                                                                     amendment in the nature of a substitute and recommends that the
                                                                                                     bill as amended do pass.

                                                                                                                            PURPOSE OF THE BiLL
                                                                                                        S. 1898 as reported would amend the Marine Mammal Protection
                                                                                                     Act of 1972 (MMPA) to provide for monitoring of the health of
                                                                                                     marine mammal populations and for coordinated response to the
                                                                                                     stranding and unusual mortality of marine mammals.

                                                                                                                           BACKGROUND AND NEEDS
                                                                                                        Marine mammals beach and strand themselves regularly along
                                                                                                     shorelines throughout the world: In the United States, about 1,400
                                                                                                     seals and sea lions and 600 whales and dolphins are stranded in
                                                                                                     coastal areas each year. To respond to such incidents, the National
                                                                                                     Oceanic and Atmospheric Administration (NOAA) has established
                                                                                                     a series of marine mammal stranding networks. The networks are
                                                                                                     operated independently out of the regional NOAA offices and are
                                                                                                     staffed primarily by volunteers. As network members, the volun-
                                                                                                     teers are issued letters of agreement from NOAA which authorize
                                                                                                         59-010







                                                 2                                                                                            3

              their activities under the MMPA. The volunteers include both non-                            scientific information from dead animals. The legislation also
              profit and for-profit organizations and institutions such as zoos,                           would require development of contingency plans for responding
              aquaria, and universities. They receive little Federal assistance;                           ?uickly and effectively to an unusual event, such as a die-off, and
              their efforts are financed primarily through private and corporate                           (or identifying potential causes of the event. S. 1898 would estab-
              donations and grants.                                                                        lish a National Marine Mammal Tissue Bank (Tissue Bank) for ar-
                The networks respond to strandings of both live and dead marine                            chiving marine mammal tissues using standardized procedures, as
              mammals. Network members rescue and rehabilitate live stranded                               well as a central information system on marine mammals for refer-
              animals. They report monthly to NOAA on the marine mammals                                   ence by both Government and private users. The reported bill au-
              that have been or are presently in their care. After treatment,                              thorizes funding of $500,000 in each of the fiscal years (FY) 1993
              these animals are restored to the wild or used for public display.                           and 1994 for these activities. It also authorizes $500,000 in FY 1993
              Dead stranded animals are useful in advancing scientific informa-                            for a Marine Mammal Unusual Mortality Event Fund (Fund) to
              tion in such areas as marine mammal physiology and ecology and                               compensate persons for costs incurred in responding to strandings
              in assessing effects of human interaction.                                                   and unusual mortality events.
                In addition to the relatively common strandings, unusual mortal-
              ity events occur occasionally, involving larger numbers of marine                                                      ESTIMATED COSTS
              mammals. Three such events attracted widespread public attention                               In accordance with paragraph 11(a) of rule XXVI of the Standing
              in recent years-the 1987 stranding of 14 humpback whales off Cape                            Rules of the Senate and section 403 of the Congressional Budget
              Cod; the 1987-88 bottlenose dolphin die@off along the Atlantic sea-                          Act of 1974, the Committee provides the Following cost estimate,
              board; and the 1989 Exxon Valdez oil spill in Alaska, which caused                           prepared by the Congressional Budget Office:
              injury and death to many marine mammals. These incidents caused
              significant die-offs of marine mammal populations and demon-                                                                             U.S. CONGRESS,
              strated the inadequacy of current Federal response systems to                                                               CONGRESSIONAL BUDGET OFFICE,
              such unexpected events. Further, the incidents exposed the limita-                                                         Washington, DC, September 11, 1992.
              tions of current programs for monitoring trends in the health of                             Hon. ERNEST F. HOLLINGS,
              marine mammal populations and identifying the causes of unusual                              Chairman, Committee on Commerce, Science, and Transportation,
              mortality events.                                                                                US. Senate, Washington, DC,
                In a subsequent review of the agency's handling of these situa-
    W         tions, NOAA officials concluded that two improvements were                                     DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
    hi        needed: (1) development of contingency plans to facilitate a more                            pared the attached cost estimate for S. 1898, the Marine Mammal
              effective initial response that would minimize the deaths of marine                          Health and Stranding Response Act.
              mammals and assist in identifying potential causes; and (2) estab-                             Because enactment of S. 1898 may affect direct spending and re-
              lishment of a "tissue bank" that would provide baseline informa-                             ceipts, this bill would be subject to pay-as-you-go procedures under
              tion on marine mammal populations and allow comparison of con-                               the Budget Enforcement Act of 1990.
              taminant levels in the tissues of stranded animals to those in the                             If you wish further details on this estimate, we will be pleased to
              wild population.                                                                             provide them.
                                                                                                                 Sincerely,
                                      LEGISLATIVE HISTORY                                                                                    ROBERT D. REISCHAUER, Director.
                S. 1898 was introduced on October 31, 1991, by Senator Lauten-                                        CONGRESSIONAL BUDGET OFFICF-COST ESTIMATE
              berg. On July 23, 1992, the full Committee and the National Ocean                              1. Bill number: S. 1898.
              Policy Study held a hearing on pending legislation to strengthen                               2. Bill title: Marine Mammal Health and Stranding Response
              the MMPA and received testimony on S. 1898. The reported bill                                Act.
              makes a number of changes suggested by the testimony, and is                                   3. Bill status: As ordered reported by the Senate Committee on
              very similar to a companion bill, H.R. 3486, which was passed by                             Commerce, Science and Transportation on August 11, 1992.
              the House of Representatives on August 3, 1992. On August 11,                                  4. Bill purpose: S. 1898 would amend the Marine Mammal Pro-
              1992, the Committee, in open executive session ordered the legisla-                          tection Act of 1972 to establish a program to monitor and docu-
              tion reported, without objection and with an amendment in the                                ment marine mammal health trends, to correlate these data with
              nature of a substitute.                                                                      environmental information, and to coordinate effective responses
                                SUMMARY OF MAJOR PROVISIONS                                                when a large number of marine mammals unexpectedly die or are
                                                                                                           stranded in U.S. waters or beaches. To cover the costs of this pro-
                S. 1898 as reported would amend the MMPA to provide a statuto-                             gram, the bill would authorize the appropriation of $250,000 for
              ry basis for NOAA's marine mammal health and stranding re-                                   each of fiscal years 1993 and 1994.
              sponses activities. The reported bill would add a new title III to the                         The bill also would establish a Marine Mammal Unusual Mortal-
              MMPA, establishing a program to provide for the rescue and reha-                             ity Event Fund and would authorize the appropriation of $500,000
              bilitation of live stranded marine mammals and the collection of





                                                     MMI       I         PF       I'






                                                                                                    4                                                                                                                                                                                   5

                               to the fund in 1993 for the costs of responding to marine mammal                                                                                                                         10. Estimate prepared by: Patricia A. Conroy.
                               deaths or strandings. In addition, the bill would authorize the ap-                                                                                                                      11. Estimate approved by: C.G. Nuckols, Assistant Director for
                               propriation of $250,000 for each of fiscal years 1993 and 1994 for                                                                                                                   Budget Analysis.
                               the Secretary of Commerce to establish a National Marine Tissue
                               Bank.                                                                                                                                                                                                                    REGULATORY IMPACT STATEMENT
                                   5. Estimated cost to the Federal Government:                                                                                                                                         In accordance with paragraph 11(b) of rule XXVI of the Standing
                                                                                                                                                                                                                    Rules of the Senate, the Committee provides the following evalua-
                                                                                    tay 6=1 Year, M mlows at 6*131                                                                                                  tion of the regulatory impact of the legislation, as reported.
                                                                                                                                                                                                                        The bill, as reported, would improve existing programs to re-
                                                                                                              1993          1994         1995          1996         W                                               ap d to marine mammal stranding and unusual mortality events
                               Authorizations:                                                                                                                                                                      carried out under the MMPA. It should have no effect on the
                                     Authotization level  ....................................................................... 1.0 0.5  ..........................................................               number or type of individuals and businesses regulated, nor on the
                                     Estimated outlays    ........................................................................ 0.5 0.7   0.2          0.1   ..................                                  personal privacy of such persons or organizations. In addition, the
                               Dinect spding:                                                                                                                                                                       legislation may serve to reduce paperwork and economic costs for
                                     Estimated budget authotity    ......................................................... (1) (1)         (1)          (1)            (1)
                                     Estimated outlays    ........................................................................ (1) (1)   (1)          (1)                                                       persons involved in the regional stranding networks, because the
                               Remues.                                                                                                                                                                              repo=d bill would clarify the chain of authority and response pro-
                                     Estimated vevenues   ..................................................................... 0) (1)       (1)          (1)           (1)                                         cedures,         and establish uniform methods for collecting and process-
                                   Lm Man 150,000.                                                                                                                                                                  ing information and samples under the program.
                                   The costs of this bill fall within budget function 300.                                                                                                                                                                 SECTION-BY-SECTION ANALYSIS
                               Basis of estimate                                                                                                                                                                                                                 SECTION I.---SHORT TITLE
                                   CBO assumes that S. 1898 would be enacted before the end of                                                                                                                          Section 1 designates the short title of the legislation as the
                               fiscal y@ar 1992, and that all funds authorized would be appropri-                                                                                                                   "Marine Mammal Health and Stranding Response Act."
                               ated prior to the beginning of each fiscal year. Estimating when                                                                                                                                                                     SECTION 2.-FINDINGS
                               the $500,000 authorized for the Marine Mammal Unusual Mortali-
                               ty Event Fund would be spent is difficult, because such events are                                                                                                                       Section 2 sets forth                         eight congressional findings regarding the
                               unpredictable. Based on information from the National Fisheries                                                                                                                      need to strengthen programs for assessing the health of marine
                               Management Service, CRO estimates that it is likely that the                                                                                                                         mammals in the wild and for responding to strandings and unusual
                               amounts in the fund would be spent in the first two years. We                                                                                                                        marine mammal mortality events.
                               project that other spending would occur at historical rates for ac-
                               tivities of the National Oceanic and Atmospheric Administration.                                                                                                                         SECTION 3.-MARINE MAMMAL HEALTH AND STRANDING RESPONSE
                               We expect that the Marine Mammal Unusual Mortality Event                                                                                                                                                                                          PROGRAM
                               Fund would use any gifts or donations to pay for claims pending. ip                                                                                                                      Section 3(a) amends the MMP                                      A to add a new title III-Marine
                               that year. CBO expects that the amounts involved would be negligi-                                                                                                                   Mammal Health and Stranding Response Program, The new title
                               ble in each year.                                                                                                                                                                    contains several sections.
                                   6. Pay-as-you-go considerations: The Budget Enforcement Act of
                               1990 sets up pay-as-you-go procedures for legislation affecting                                                                                                                      Section S01. Establishment of the program
                               direct spendi                             ece pts through 1995. S. 1898 would allow the                                                                                                  New section 801(a) calls for the Secretary of Commerce (Secre-
                               Secretary of %mormerceito solicit, accept, and spend private dona-                                                                                                                   tary) to establish a Marine Mammal Health and Stranding Re-
                               tions for the Marine Mammal Unusual Mortality Event Fund. The                                                                                                                        sponse Program. The Secretary is required to consult with the Sec-
                               collection of donations would affect governmental receipts and                                                                                                                       retary of the Interior and Marine Mammal Commission in imple-
                               their use would affect direct spending, but the amounts involved                                                                                                                     menting the program and with knowledgeable and experienced
                               would be small and the budgetary impact in any year would be                                                                                                                         members of the public. The Committee anticipates that public par-
                               negligible.                                                                                                                                                                          ticipants will include public interest organizations with expertise
                                   7. Estimated cost to State and local governments: None.                                                                                                                          related to marine mammals.
                                   8. Estimate comparison: None.                                                                                                                                                        New section 301(b) states the purposes of the program: (1) to im-
                                   9. Previous CBO estimate: On July 21, 1992, CBO prepared an es-                                                                                                                                                                                                                                         ne mammal
                               timate for H.R. 3486, the Marine Mammal Health and Stranding                                                                                                                                                                                                                                                e mammal
                               Response Act, as ordered reported by the House Committee on                                                                                                                                                                                                                                                  and (3) to
                               Merchant Marine and Fisheries. H.R. 3486 is nearly identical to S.                                                                                                                                                                                                                                          lity events.
                               1898. Accordingly, CBO's estimate of the cost of S. 1898 is the same                                                                                                                                                                                                                th               a      animals, in-
                                                                                                                                                                                                                               e     'n         at      n stems             related         to    the heal               of     in    rin
                                                                                                                                                                                                                    prov             1tform     (  io      sy          a       h       'th             da '        wild        marin
                                                                                                                                                                                                                               ula   'On";      2'      to correl         te ea                tren           in
                                                                                                                                                                                                                                                                                                                i f       in        i
                                                                                                                                                                                                                    pop        ul    t-ona      with available                 environmenta n                        or   I    at   on',
                                                                                                                                                                                                                        op
                                                                                                                                                                                                                    p          d1na e           ore effe           i   ely     res      onses to           unusua             morta
                                                                                                                                                                                                                    coor             t in                      ct   v                p
                                                                                                                                                                                                                    The        pro      a       is      intended         to    cover       all.    ty  @es     of    marine           me
                                                                                                                                                                                                                    clu        i     ggr in             sl@             8             dolphins            pinn1peds              (seals
                               as that of the bill reported in the House.                                                                                                                                                      d n cetacean                whale            and                                                            a, sea lions,






                                                       6                                                                                                  7
                  and walruses), sea otters, manatees, and other marine mammals                                     visory Committee Act in order to waive annual reporting require-
                  which may become stranded.                                                                        ments, and to ensure long-term continuity of the group.
                    It is important that the reference data collected under the pro-                                   Subsection (b) of this new section identifies required contingency
                  gram include available information on the levels of biotoxins, pol-                               plan elements, including a list of persons capable of assisting the
                  lutants, and other contaminants in the tissues of marine mammals.                                 Secretary in responding to the event; a description of the types of
                  Collection of such data will allow comparison of contaminant levels                               tissues and tissue analyses necessary to diagnose causes of unusual
                  in stranded marine mammals to levels occurring in animals in the                                  mortality events; procedures for training, mobilizing, and using
                  wild. The information will provide an indicator of the general                                    available resources in a response; and requirements for minimizing
                  health of marine mammal populations, forming the basis for as-                                    marine mammal deaths, providing appropriate care, and identify-
                  sessing trends and fluctuations in marine mammal contaminant                                      ing the cau  -ses and impacts of the event. In developing the contin-
                  levels. Under the legislation, this assessment would focus on trends                              gency plan, specific rescue and rehabilitation techniques for indi-
                  in wild populations. The program established in this new section is                               vidual species and types of marine mammals should be considered.
                  not intended to apply to marine mammals currently held in captiv-                                 For example, different care and handling procedures may be re-
                  ity, at such facilities in the United States as aquaria or zoos.                                  quired for species such as sea otters, polar bears, and fur seals. Al-
                                                                                                                    ternatively, a single response procedure may be appropriate for
                  Section S02. Determinatiow Data collection and dissemination                                      dealing with coastal small cetaceans. Finally, the contingency plan
                    New section 302(a) requires the Secretary, in consultation            with                      should identify scientiflc institutions with expertise that could be
                  the Secretary of the Interior, the Marine Mammal Commission,                                      called upon during an unusual mortality event.
                  and other appropriate individuals, to develop objective criteria for                                 Subsection (c) discusses designation and duties of the Federal
                  releasing a rehabilitated marine mammal to the wild. New section                                  onsite coordinator responsible for implementing the contingency
                  302(b) requires the Secretary, in consultation with the Secretary of                              plan and responding to an unusual mortality event.
                  the Interior, to compile existing information on strandings; prac-
                  tices for rescuing and rehabilitating stranded animals; procedures                                Section S05. Unusual mortality event activity funding
                  for processing marine mammal tissue samples; information for                                         New section 305 would establish the Fund in the General Treas-
                  comparing marine mammal deaths and illnesses with environmen-                                     ury. Moneys in the Fund would be available for use by the Secre-
                  tal parameters; and relevant scientific literature. Finally, new sec-                             tary, in consultation with the Secretary of the Interior, to compen-
     PO           tion 302(c) requires the Secretary to make any information collect-                               sate persons for: (1) special costs incurred in responding to unusual
                  ed under this section available to stranding network participants                                 mortality events; and (2) costs incurred in collecting and transport-
                  and other qualifled scientists.                                                                   ing tissues for archival. The Fund is to be made available only the
                  Section 303. Strunding response agreements                                                        Secretary and only for responding to unusual mortality events.
                                                                                                                    However, the Committee expects that the Secretary will work
                    New section 303 authorizes the Secretary to enter into an agree-                                closely with the Secretary of the Interior in dealing with claims
                  ment, under existing section 112 of the MMPA, to allow the taking                                 from an event in which the marine mammals primarily involved
                  of marine mammals in response to a stranding. Such agreements                                     are species for which the Secretary of the Interior has responsibil-
                  would be required to specify the persons covered under the agree-                                 ity under the MMPA (sea otters, polar bears, walruses, and mana-
                  ment and the terms and conditions under which authority could be                                  tees).
                  delegated. The section also requires periodic review by the Secre-                                   New section 305 also permits the Secretary to accept, solicit, and
                  tary of such agreements.                                                                          use the services of volunteers, and to accept and use gifts, devises,
                  Section 304. Unusual mortality event response                                                     and bequests to the Fund. The Secretary also is authorized to de-
                                                                                                                    posit appropriate moneys in the funds.
                    This section establishes guidelines and procedures to ensure a co-
                  ordinated response to marine mammal die-offs and other unusual                                    Section 906. National marine mammal tissue bank and tissue anal-
                  mortality events. New section 304(a) requires the Secretary, in con-                                   ysis
                  sultation with the Secretary of the Interior, to establish a marine                                  New section 306(a) establishes the Tissue Bank to provide for the
                  mammal unusual mortality event working group, consisting of sci-                                  storage, preparation, examination, and archiving of marine
                                                                                  idance for                        mammal tissues. Samples for the Tissue Bank would be collected
                                                                                  lity event                        during mortality events, from healthy marine mammals caught ac-
                                                                                  ch events.                        cidentally by commercial and subsistence fishermen, and in the
                                                                                  en there is                       course of scientific research.
                                                                                  d to desig-                          Establishment of the Tissue Bank is not intended to provide for
                                                                                  that repre-                       or promote any increase in takes of health marine mammals to
                               rts     he      kin   gr           'd provide   gui  organiza-                       provide samples of tissues. Rather, the Tissue Bank will provide for
                  en *rc    xpe        'T wor      g   oup  wou
                    t''                                                    I @
                  iden      n he n e nd d               n    an n          a      a
                         yi             t a        urat'o of      u  usi   g   0
                      t"    g  t       00s-            s           0  d n
                  nd de e      n       nt n enc     Ian   f r resp  n             u
                                          g     y  p      0
                                                               f
                        ec  Itary      0     r         to    tiy  the      oup whe
                    e S   v re op      gc d be eq,  ed    n
                                       wul         uIr      0
                                       uu       m      t
                  v1dence   tha        annsua      rta     event  has      eFun anc
                  n
                  a         0site      cooj    r.             t
                    te an n            d nato      The   mmi   tee an   Ic pates  tj
                  8     tiv  f
                            a  rom i    r  s       um              imal    w  If  r
                  ents. e              nZ e ted    h  a e  and   an        e ae
                  tions will be considered as potential participants i the workinj                                                                                            a            a
                                                                                                                    greater order and quality in the archiving of tis ue sample cur
                  group. The working group would be exempted from e Federal A





                                                          I in I               OF        I



                                                                                                                                            MMM VA

                                                 8

               rently being taken, and promote more adequate sampling and ar-
               chiving of tissues taken from stranded and dead marine mammals.
                 Subsection (b) requires the Secretary, in consultation with the
               Marine Mammal Commission and the Secretary of the Interior and
               after opportunity for public review and comment, to issue guidance
               on methods for processing and analyzing tissue samples. Presently,
               there are marine mammal tissues stored at various facilities
               around the country. Most of these tissues, however, are not of ade-
               quate quality for inclusion in the Tissue Bank. This section pro-
               vides for establishment of strict, quality-controlled standards for
               Tissue Bank inclusion.
                 Subsection (c) directs the Secretary to develop and maintain a
               central data base to track and access data on marine mammals, in-
               cluding information on all samples contained in the Tissue Bank.
                 Finally, subsection (d) directs the Secretary to establish criteria
               for access by qualified scientists (including stranding network par-
               ticipants) to the Tissue Bank, tissue analysis results, and other ap-
               plicable marine mammal reference material in the data base. The
               Committee expects the Secretary to provide for reasonable public
               access to marine mammal reference materials and information col-
               lected under this program.
               Section 307. Authorization of appropriations
                 New section 307 authorizes appropriations of: (1) $250,000 for
               each FY 1993 and FY 1994 for administration of the program; (2)
               $250,000 annually for FY 1993 and FY 1994 for the Tissue Bank,
               tissue analysis, and data base; and (3) $500,000 in FY 1993 for the
     W         Fund.
     Lq
               Section 808. Definitions
                 New section 808 defines several terms for the purpose of imple-
               menting new title III, including "Fund," "stranding     ... ..  stranding
               network participant," "Tissue Bank," and "unusual mortality
               event."
                 Under section 3(b) of S. 1898 as reported, the Secretary is re-
               quired, within 24 months of the date of enactment of the legisla-
               tion, to: (1) develop and implement objective criteria on returning
               rehabilitated marine mammals to the wild; and (2) collect and
               make available information on marine mammal health and health
               trends. This section also requires the Secretary to issue a detailed
               contingency plan for responding to unusual mortality events in
               proposed form within 18 months of the date of enactment of the
               legislation, and in final form within 24 months of the date of enact-
               ment of the legislation.

                              SECTION 4--CONFORMING AMENDMENTS
                 This section of the reported bill makes three conforming amend-
               ments to existing provisions of title I of the MMPA to reference
               new title III. This section also would clarify the definition of "Sec-
               retary.P)



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