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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. = = == = = @ =I M = = 11A 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 so woo M.WMM04 mwww"w 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. as moo M on" " M 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 a* so low, 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, M'M W " W M, M WIN = " W W W W 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 - WWW@m 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 $457,000 for fiscal year 1979 budget request provides inadequate funding for research in fiscal year 1980. These sums are adequate to maintain a strong and useful research program within the Commission. The committee notes that the Marine Mammal Commission has played a valuable role in resolving the tuna-dolphin program by pro- viding important research funding. In 1976 the Commission invested iiiiiiiiiia, iiiiiiiiiin isinisi miiiinm@ lion Wi IN - 1V 4 1 LZI, 0 0 @.r ;r Fr 9$ oa CR t, 0t, 0 0 0 12. 0 Cr C3 co CD 0- 0 9 .0 2 0.0.0 =S 00 CI. :z 0 > C.0 CD "M go 5 a > @2 to 0 4 0. a .0 0 & 0 .0 to 0 0 -0 CD w .4 5 OQ QQ 40 5. 0 CLOQ 0 0 g "a - G* CD CD 00 C, :3 0 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 = M M W = M 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. mmmm = M = =I 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. �� 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. � 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". 0=111's WWI 'N' 1\ 14, '1 N N no WE aw W am' W M. ow M16 M 0" 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) V 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 low lilm W 'V V M, ow MO. ow an "a, ow ao W no M, 00 ow, so 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 mokm Amw ofin I mom, Imt film, I I i N WOO M"Wwmw 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 go, imit 121111 dw, rM tin @ ) @@- ,, 1 , V, 1 4 N i , v * I 'V I @ " M M" @m W M M 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 MM MM mmm W mmmm 12 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) /N *.N. I I I I I I I I I I I I I iliniiiiiiiiiiiiii 1 3 6668 14108 8361