103D CONGRESS

2D SESSION S. 1636

AN ACT

To authorize appropriations for the Marine Mamfishing operations, and for other purposes. rine mammals during the course of commercial program to reduce the incidental taking of ma- mal Protection Act of 1972 and to improve the
103D CONGRESS

2D SESSION S. 1636

AN ACT

To authorize appropriations for the Marine Mammal Protection Act of 1972 and to improve the program to reduce

the incidental taking of marine mammals during the

course of commercial fishing operations, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Marine Mammal Pro5 tection Act Amendments of 1994’’.
2

S 1636 ES

1 SEC. 2. PURPOSES.

2 The purposes of this Act are to—

3 (1) authorize appropriations to carry out the

4 Marine Mammal Protection Act of 1972 for the fis5 cal years 1994 through 1999;

6 (2) ensure that the incidental mortality and se7 rious injury of marine mammals in commercial fish8 eries does not cause any species or stock of marine

9 mammals to be reduced to or maintained at, for sig10 nificant periods of time, a level that is below the

11 lower limit of its optimum sustainable population

12 range;

13 (3) prohibit intentional killing of marine mam14 mals during commercial fishing;

15 (4) improve efforts to identify and address the

16 most significant problems involving incidental mor17 tality and serious injury of marine mammals in com18 mercial fishing operations, considering the popu19 lation size and status of the affected marine mam20 mal stocks and the numbers of marine mammals

21 that are incidentally killed or injured in commercial

22 fisheries;

23 (5) ensure that the procedure for authorizing

24 the incidental taking of marine mammals in com25 mercial fisheries is consistent with the long-term ob26 jective of identifying and taking such steps as may
3

S 1636 ES

1 be practicable to reduce incidental mortality and se2 rious injury from commercial fishing operations to

3 insignificant rates approaching zero; and

4 (6) continue cost-effective programs for reliably

5 monitoring (A) the levels of incidental mortality and

6 serious injury of marine mammals in commercial

7 fisheries and (B) the size and current population

8 trends of the affected marine mammal stocks.

9 SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

10 (a) DEPARTMENT OF COMMERCE.—Section 7(a) of

11 the Act entitled ‘‘An Act to improve the operation of the

12 Marine Mammal Protection Act of 1972, and for other

13 purposes’’, approved October 9, 1981 (16 U.S.C.

14 1384(a)), is amended to read as follows:

15 ‘‘(a) DEPARTMENT OF COMMERCE.—(1) There are

16 authorized to be appropriated to the Department of Com17 merce, for purposes of carrying out such functions and

18 responsibilities as it may have been given under title I of

19 the Marine Mammal Protection Act of 1972 (other than

20 sections 117 and 118 of that Act), $12,138,000 for fiscal

21 year 1994, $12,623,000 for fiscal year 1995, $13,128,000

22 for fiscal year 1996, $13,653,000 for fiscal year 1997,

23 $14,200,000 for fiscal year 1998, and $14,768,000 for fis24 cal year 1999.
4

S 1636 ES

1 ‘‘(2) There are authorized to be appropriated to the

2 Department of Commerce, for purposes of carrying out

3 sections 117 and 118 of the Marine Mammal Protection

4 Act of 1972, $15,000,000 for each of the fiscal years 1994

5 through 1999.’’.

6 (b) DEPARTMENT OF THE INTERIOR.—Section 7(b)

7 of the Act entitled ‘‘An Act to improve the operation of

8 the Marine Mammal Protection Act of 1972, and for other

9 purposes’’, approved October 9, 1981 (16 U.S.C.

10 1384(b)), is amended to read as follows:

11 ‘‘(b) DEPARTMENT OF THE INTERIOR.—There are

12 authorized to be appropriated to the Department of the

13 Interior, for purposes of carrying out such functions and

14 responsibilities as it may have been given under title I of

15 the Marine Mammal Protection Act of 1972, $8,000,000

16 for fiscal year 1994, $8,600,000 for fiscal year 1995,

17 $9,000,000 for fiscal year 1996, $9,400,000 for fiscal year

18 1997, $9,900,000 for fiscal year 1998, and $10,296,000

19 for fiscal year 1999.’’.

20 (c) MARINE MAMMAL COMMISSION.—Section 7(c) of

21 the Act entitled ‘‘An Act to improve the operation of the

22 Marine Mammal Protection Act of 1972, and for other

23 purposes’’, approved October 9, 1981 (16 U.S.C. 1407),

24 is amended to read as follows:
5

S 1636 ES

1 ‘‘(c) MARINE MAMMAL COMMISSION.—There are au2 thorized to be appropriated to the Marine Mammal Com3 mission, for purposes of carrying out such functions and

4 responsibilities as it may have been given under title II

5 of the Marine Mammal Protection Act of 1972,

6 $1,350,000 for fiscal year 1994, $1,400,000 for fiscal year

7 1995, $1,450,000 for fiscal year 1996, $1,500,000 for fis8 cal year 1997, $1,550,000 for fiscal year 1998, and

9 $1,600,000 for fiscal year 1999.’’.

10 SEC. 4. MORATORIUM AND EXCEPTIONS.

11 (a) IN GENERAL.—In introductory matter of section

12 101(a) of the Marine Mammal Protection Act of 1972 (16

13 U.S.C. 1371(a)) is amended—

14 (1) by inserting ‘‘, harassment,’’ immediately

15 before ‘‘and importation’’; and

16 (2) by inserting ‘‘or harassment’’ immediately

17 after ‘‘for the taking’’.

18 (b) PERMITS FOR RESEARCH, DISPLAY, ENHANCING

19 SURVIVAL OR RECOVERY.—Section 101(a)(1) of the Ma20 rine Mammal Protection Act of 1972 (16 U.S.C.

21 1371(a)(1)) is amended to read as follows:

22 ‘‘(1) Consistent with the provisions of section

23 104, permits may be issued by the Secretary for the

24 taking, harassment, and importation of marine

25 mammals for purposes of scientific research, public
6

S 1636 ES

1 display, or enhancing the survival or recovery of a

2 species or stock. Such permits may be issued if the

3 taking, harassment, or importation proposed to be

4 made is first reviewed by the Marine Mammal Com5 mission and the Committee of Scientific Advisors on

6 Marine Mammals established under title II. The

7 Commission and the Committee shall recommend

8 any proposed taking, harassment, or importation

9 which is consistent with the purpose and policies of

10 section 2. The Secretary shall, if the Secretary

11 grants approval for importation, issue to the im12 porter concerned a certificate to that effect which

13 shall be in such form as the Secretary of Treasury

14 prescribes and such importation may be made upon

15 presentation of the certificate to the customs officer

16 concerned.’’.

17 (c) AUTHORIZATION FOR INCIDENTAL TAKING DUR18 ING COMMERCIAL FISHERIES.—The first sentence of sec19 tion 101(a)(2) of the Marine Mammal Protection Act of

20 1972 (16 U.S.C. 1371(a)(2)) is amended by inserting

21 immediately before the period at the end the following: ‘‘,

22 or in lieu of such permits, authorizations may be granted

23 therefor under section 118, subject to regulations pre24 scribed under that section by the Secretary without regard

25 to section 103.’’.
7

S 1636 ES

1 (d) TAKING OR IMPORTATION FROM DEPLETED

2 STOCKS.—(1) Section 101(a)(3)(A) of the Marine Mam3 mal Protection Act of 1972 (16 U.S.C. 1371(a)(3)(A)) is

4 amended by inserting ‘‘, except as provided in paragraph

5 (6),’’ after ‘‘that’’ in the second proviso.

6 (2) Section 101(a)(3)(B) of the Marine Mammal Pro7 tection Act of 1972 (16 U.S.C. 1371(a)(3)(B)) is amended

8 by inserting ‘‘, or as provided for under paragraph (5) of

9 this subsection,’’ immediately after ‘‘subsection,’’.

10 (e) AUTHORIZATION FOR HARASSMENT OF SMALL

11 NUMBERS OF MARINE MAMMALS.—Section 101(a)(5) of

12 the Marine Mammal Protection Act of 1972 (16 U.S.C.

13 1371(a)(5)) is amended—

14 (1) in subparagraph (A), by inserting ‘‘or har15 assment’’ immediately after ‘‘taking’’ each place it

16 appears; and

17 (2) by adding at the end the following new sub18 paragraph:

19 ‘‘(D)(i) Upon request therefor by citizens of the

20 United States who engage in a specified activity

21 (other than commercial fishing) within a specific ge22 ographic region, the Secretary shall authorize, for

23 periods of not more than one year, subject to such

24 conditions as the Secretary may specify, the inciden25 tal, but not intentional, harassment of small num-
8

S 1636 ES

1 bers of marine mammals of a species or population

2 stock by such citizens while engaging in that activity

3 within that region if the Secretary finds that such

4 harassment during each period concerned—

5 ‘‘(I) will have a negligible impact on such

6 species or stock; and

7 ‘‘(II) will not have an unmitigable adverse

8 impact on the availability of such species or

9 stock for taking for subsistence uses pursuant

10 to subsection (b), or section 109(f), or pursuant

11 to a cooperative agreement under section 120.

12 ‘‘(ii) The authorization for such activity shall

13 prescribe, where applicable—

14 ‘‘(I) permissible methods of taking pursu15 ant to such activity, and other means of

16 effecting the least practicable impact on such

17 species or stock and its habitat, paying particu18 lar attention to rookeries, mating grounds, and

19 areas of similar significance, and on the avail20 ability of such species or stock for subsistence

21 uses pursuant to subsection (b), or section

22 109(f), or pursuant to a cooperative agreement

23 under section 120;

24 ‘‘(II) the measures that the Secretary de25 termines are necessary to ensure no unmitigable
9

S 1636 ES

1 adverse impact on the availability of the species

2 or stock for subsistence uses pursuant to sub3 section (b), or section 109(f), or pursuant to a

4 cooperative agreement under section 120; and

5 ‘‘(III) requirements pertaining to the mon6 itoring and reporting of such taking, including

7 requirements for the independent peer review of

8 proposed monitoring plans or other research

9 proposals where the proposed activity may af10 fect the availability of a species or stock for

11 taking for subsistence uses pursuant to sub12 section (b), or section 109(f), or pursuant to a

13 cooperative agreement under section 120.

14 ‘‘(iii) The Secretary shall publish a proposed

15 authorization not later than 45 days after receiving

16 an application under this subparagraph and request

17 public comment through notice in the Federal Reg18 ister, newspapers of general circulation, and appro19 priate electronic media and to all locally affected

20 communities for a period of 30 days after publica21 tion. Not later than 45 days after the close of the

22 public comment period, if the Secretary makes the

23 findings set forth in clause (i), the Secretary shall

24 issue an authorization with appropriate conditions to

25 meet the requirements of clause (ii).
10

S 1636 ES

1 ‘‘(iv) The Secretary shall modify, suspend, or

2 revoke an authorization if the Secretary finds that

3 the provisions of clauses (i) and (ii) are not being

4 met.

5 ‘‘(v) A person conducting an activity for which

6 an authorization has been granted under this sub7 paragraph shall not be subject to the penalties of

8 this Act for harassment that occurs in compliance

9 with such authorization.’’.

10 (f) PERMITS CONCERNING ENDANGERED OR

11 THREATENED MARINE MAMMAL STOCKS.—Section

12 101(a)(5) of the Marine Mammal Protection Act of 1972

13 (16 U.S.C. 1371(a)(5)), as amended by this Act, is further

14 amended by adding at the end the following new subpara15 graph:

16 ‘‘(E)(i) During any period of three consecutive

17 years, the Secretary shall allow the incidental, but

18 not the intentional, taking or harassment by persons

19 using vessels of the United States or vessels which

20 have valid fishing permits issued by the Secretary in

21 accordance with section 204(b) of the Magnuson

22 Fishery Conservation and Management Act (16

23 U.S.C. 1824(b)), while engaging in commercial fish24 ing operations, of marine mammals from a species

25 or stock designated as depleted because of its listing
11

S 1636 ES

1 as an endangered or threatened species under the

2 Endangered Species Act of 1973 (16 U.S.C. 1531 et

3 seq.) if the Secretary, after notice and opportunity

4 for public comment, determines that—

5 ‘‘(I) the incidental mortality and serious

6 injury from commercial fisheries will have a

7 negligible impact on such species or stock;

8 ‘‘(II) a recovery plan has been developed or

9 is being developed for such species or stock pur10 suant to the Endangered Species Act of 1973;

11 and

12 ‘‘(III) where required under section 118, a

13 monitoring program is established under sub14 section (d) of such section, vessels engaged in

15 such fisheries are registered in accordance with

16 such section, and an incidental take reduction

17 plan has been developed or is being developed

18 for such species or stock.

19 ‘‘(ii) Upon a determination by the Secretary

20 that the requirements of clause (i) have been met,

21 the Secretary shall publish in the Federal Register

22 a list of those fisheries for which such determination

23 was made, and, for vessels required to register under

24 section 118, shall issue an appropriate permit for

25 each authorization granted under such section to
12

S 1636 ES

1 vessels to which this paragraph applies. Vessels en2 gaged in a fishery included in the notice published

3 by the Secretary under this clause which are not re4 quired to register under section 118 shall not be

5 subject to the penalties of this Act for the incidental

6 taking of marine mammals to which this paragraph

7 applies, so long as the owner or master of such ves8 sel reports any incidental mortality or injury of such

9 marine mammals to the Secretary in accordance

10 with section 118.

11 ‘‘(iii) If, during the course of the commercial

12 fishing season, the Secretary determines that the

13 level of incidental mortality or serious injury from

14 commercial fisheries for which a determination was

15 made under clause (i) has resulted or is likely to re16 sult in an impact that is more than negligible on the

17 endangered or threatened species or stock, the Sec18 retary shall use the emergency authority granted

19 under section 118 to protect such species or stock,

20 and may modify any permit granted under this para21 graph as necessary.

22 ‘‘(iv) The Secretary may suspend for a time

23 certain or revoke a permit granted under this sub24 paragraph only if the Secretary determines that the

25 conditions or limitations set forth in such permit are
13

S 1636 ES

1 not being substantially complied with. The Secretary

2 may amend or modify, after notice and opportunity

3 for public comment, the list of fisheries published

4 under clause (ii) whenever the Secretary determines

5 there has been a substantial change in the informa6 tion or conditions used to determine such list.

7 ‘‘(v) Sections 103 and 104 shall not apply to

8 the taking of marine mammals under the authority

9 of this subparagraph.’’.

10 (g) IMPORTATION OF CERTAIN PRODUCTS.—Section

11 101(a) of the Marine Mammal Protection Act of 1972 (16

12 U.S.C. 1371(a)) is amended by adding at the end the fol13 lowing new paragraph:

14 ‘‘(6)(A) A marine mammal product may be imported

15 into the United States if the product—

16 ‘‘(i) was owned and exported by any person in

17 conjunction with travel outside the United States;

18 ‘‘(ii) was acquired outside of the United States

19 as part of a cultural exchange by an Indian, Aleut,

20 or Eskimo residing in Alaska; or

21 ‘‘(iii) is owned by a Native inhabitant of Russia,

22 Canada, or Greenland and is imported for non23 commercial purposes in conjunction with travel with24 in the United States or as part of a cultural ex-
14

S 1636 ES

1 change with an Indian, Aleut, or Eskimo residing in

2 Alaska.

3 ‘‘(B) For the purposes of this paragraph, the term—

4 ‘‘(i) ‘Native inhabitant of Russia, Canada, or

5 Greenland’ means a person residing in Russia, Can6 ada, or Greenland who is related by blood, is a mem7 ber of the same clan or ethnological grouping, or

8 shares a common heritage with an Indian, Aleut, or

9 Eskimo residing in Alaska; and

10 ‘‘(ii) ‘cultural exchange’ means the sharing or

11 exchange of ideas, information, gifts, clothing, or

12 handicrafts between an Indian, Aleut, or Eskimo re13 siding in Alaska and a Native inhabitant of Russia,

14 Canada, or Greenland, including rendering of raw

15 marine mammal parts as part of such exchange into

16 clothing or handicrafts through carving, painting,

17 sewing, or decorating.’’.

18 (h) ACTIONS AFFECTING SECTION 101(b).—Section

19 101(b) of the Marine Mammal Protection Act of 1972 (16

20 U.S.C. 1371(b)) is amended by adding at the end the fol21 lowing new sentence: ‘‘In promulgating any regulation or

22 making any assessment pursuant to a hearing or proceed23 ing under this subsection or section 117(b)(2), or in mak24 ing any determination or finding under this Act that af25 fects stocks or persons to which this subsection applies,
15

S 1636 ES

1 the Secretary shall be responsible for demonstrating that

2 such regulation, assessment, determination, or finding is

3 supported by substantial evidence on the basis of the

4 record as a whole. The preceding sentence shall only be

5 applicable in an action brought by one or more Alaska Na6 tive organizations representing persons to which this sub7 section applies.’’.

8 (i) TAKING IN DEFENSE OF SELF OR ANOTHER PER9 SON.—Section 101(c) of the Marine Mammal Protection

10 Act of 1972 (16 U.S.C. 1371(c)) is amended to read as

11 follows:

12 ‘‘(c) It shall not be a violation of this Act to take

13 a marine mammal if—

14 ‘‘(1) such taking is imminently necessary in

15 self-defense or to save the life of a person in imme16 diate danger; and

17 ‘‘(2) such taking is reported to the Secretary

18 within 48 hours and, whenever feasible, any carcass

19 is made available to the Secretary intact.’’.

20 SEC. 5. PERMITS.

21 (a) PROHIBITIONS.—Section 102(a) of the Marine

22 Mammal Protection Act of 1972 (16 U.S.C. 1372(a)) is

23 amended—

24 (1) in paragraph (2)(B), by striking ‘‘for any

25 purpose in any way connected with the taking or im-
16

S 1636 ES

1 portation of’’ and inserting in lieu thereof ‘‘to take

2 or import’’; and

3 (2) by amending paragraph (4) to read as fol4 lows:

5 ‘‘(4) for any person to transport, purchase, sell,

6 export, or offer to purchase, sell, or export any ma7 rine mammal or marine mammal product—

8 ‘‘(A) that is taken in violation of this Act;

9 or

10 ‘‘(B) for any purpose other than public

11 display, scientific research, or enhancing the

12 survival of a species or stock as provided for

13 under section 104(c); and’’.

14 (b) PERMITS.—(1) Section 104(a) of the Marine

15 Mammal Protection Act of 1972 (16 U.S.C. 1374(a)) is

16 amended—

17 (A) by inserting ‘‘, harassment,’’ immediately

18 after ‘‘taking’’; and

19 (B) by inserting ‘‘except for the incidental tak20 ing of marine mammals during the course of com21 mercial fishing operations’’ immediately before the

22 period at the end.

23 (2) Section 104(c)(1) of the Marine Mammal Protec24 tion Act of 1972 (16 U.S.C. 1374(c)(1) is amended by

25 striking ‘‘and after’’ in the first sentence.
17

S 1636 ES

1 (3) Paragraph (2) of section 104(c) of the Marine

2 Mammal Protection Act of 1972 (16 U.S.C. 1374(c)) is

3 amended to read as follows:

4 ‘‘(2)(A) A permit may be issued to take or im5 port a marine mammal for the purpose of public dis6 play only to a person which the Secretary deter7 mines—

8 ‘‘(i) offers a program for education or con9 servation purposes that is based on profes10 sionally recognized standards of the public dis11 play community;

12 ‘‘(ii) is registered or holds a license issued

13 under the Animal Welfare Act (7 U.S.C. 2131

14 et seq.); and

15 ‘‘(iii) maintains facilities for the public dis16 play of marine mammals that are open to the

17 public on a regularly scheduled basis and that

18 access to such facilities is not limited or re19 stricted other than by charging of an admission

20 fee.

21 ‘‘(B) A permit under this paragraph shall grant

22 to the person to which it is issued the right, without

23 obtaining any additional permit or authorization

24 under this Act, to—
18

S 1636 ES

1 ‘‘(i) take, import, purchase, offer to pur2 chase, possess, or transport the marine mam3 mal that is the subject of the permit; and

4 ‘‘(ii) sell, export, or otherwise transfer pos5 session of the marine mammal, or offer to sell,

6 export, or otherwise transfer possession of the

7 marine mammal—

8 ‘‘(I) for the purpose of public display,

9 to a person that meets the requirements of

10 clauses (i), (ii), and (iii) of subparagraph

11 (A);

12 ‘‘(II) for the purpose of scientific re13 search, to a person that meets the require14 ments of paragraph (3); or

15 ‘‘(III) for the purpose of enhancing

16 the survival or recovery of a species or

17 stock, to a person that meets the require18 ments of paragraph (4).

19 ‘‘(C) A person to which a marine mammal is

20 sold or exported or to which possession of a marine

21 mammal is otherwise transferred under the author22 ity of subparagraph (B) shall have the rights and re23 sponsibilities described in subparagraph (B) with re24 spect to the marine mammal without obtaining any
19

S 1636 ES

1 additional permit or authorization under this Act.

2 Such responsibilities shall—

3 ‘‘(i) for the purpose of public display, be

4 limited to the responsibility to meet the require5 ments of clauses (i), (ii), and (iii) of subpara6 graph (A);

7 ‘‘(ii) for the purpose of scientific research,

8 be limited to the responsibility to meet the re9 quirements of paragraph (3); and

10 ‘‘(iii) for the purpose of enhancing the sur11 vival or recovery of a species or stock, be lim12 ited to the responsibility to meet the require13 ments of paragraph (4).

14 ‘‘(D) If the Secretary—

15 ‘‘(i) finds, in concurrence with the Sec16 retary of Agriculture, that a person that holds

17 a permit under this paragraph for a marine

18 mammal, or a person exercising rights under

19 subparagraph (C), no longer meets the require20 ments of subparagraph (A)(ii) and is not rea21 sonably likely to meet those requirements in the

22 near future, or

23 ‘‘(ii) finds that a person that holds a per24 mit under this paragraph for a marine mam25 mal, or a person exercising rights under sub-
20

S 1636 ES

1 paragraph (C), no longer meets the require2 ments of subparagraph (A) (i) or (iii) and is

3 not reasonably likely to meet those require4 ments in the near future,

5 the Secretary may revoke the permit in accordance

6 with section 104(e), seize the marine mammal, or

7 cooperate with other persons authorized to hold ma8 rine mammals under this Act for disposition of the

9 marine mammal. The Secretary may recover from

10 the person expenses incurred by the Secretary for

11 that seizure.

12 ‘‘(E) No marine mammal held pursuant to a

13 permit issued under subparagraph (A) may be sold,

14 purchased, exported, or transported unless the Sec15 retary is notified of such action no later than 15

16 days before such action, and such action is for pur17 poses of public display, scientific research, or en18 hancing the survival or recovery of a species or

19 stock. The Secretary may only require the notifica20 tion to include the information required for the in21 ventory established under paragraph (10).’’.

22 (4) Paragraph (3) of section 104(c) of the Marine

23 Mammal Protection Act of 1972 (16 U.S.C. 1374(c)) is

24 amended to read as follows:
21

S 1636 ES

1 ‘‘(3)(A) A permit may be issued, for scientific

2 research purposes that are likely to result in the tak3 ing or harassment of a marine mammal, to an appli4 cant who submits information with the permit appli5 cation indicating that the taking or harassment is

6 required to further a bona fide scientific purpose.

7 The Secretary is authorized to issue permits under

8 this paragraph prior to the end of the mandatory

9 public review and comment period if delaying the is10 suance of such permit could result in harm to a spe11 cies, stock, or individual marine mammal, or result

12 in loss of unique research opportunities.

13 ‘‘(B) No permit issued for purposes of scientific

14 research under subparagraph (A) shall authorize the

15 lethal taking of a marine mammal unless the appli16 cant submits documentation to the Secretary that a

17 nonlethal method of conducting the research is not

18 feasible. The Secretary shall not issue a permit for

19 research which involves the lethal taking of a marine

20 mammal from a species or stock designated as de21 pleted, unless the Secretary determines that the re22 sults of such research will directly benefit that spe23 cies or stock, or that such research fulfills a criti24 cally important research need.
22

S 1636 ES

1 ‘‘(C) Not later than 60 days after the date of

2 enactment of the Marine Mammal Protection Act

3 Amendments of 1994, the Secretary shall grant a

4 general authorization and shall issue implementing

5 regulations allowing bona fide scientific research

6 that is not likely to result in the taking or harass7 ment of a marine mammal. Such authorization shall

8 apply to persons who submit, at least 60 days prior

9 to commencement of the research, a letter of intent

10 to the Secretary specifying—

11 ‘‘(i) the species or stock of marine mam12 mal on which the research will be conducted;

13 ‘‘(ii) the geographic location of the re14 search;

15 ‘‘(iii) the period of time over which the re16 search will be conducted;

17 ‘‘(iv) the purpose of the research, including

18 a description of how the definition of bona fide

19 research as established by the Secretary under

20 this Act would apply; and

21 ‘‘(v) the methods used to conduct the re22 search.

23 Not later than 30 days after receipt of a letter of

24 intent to conduct scientific research under the gen25 eral authorization, the Secretary may notify the ap-
23

S 1636 ES

1 plicant that the proposed research is likely to result

2 in the taking or harassment of a marine mammal,

3 and that the provisions of subparagraph (A) apply.

4 If no such notification is received, the proposed re5 search shall be covered under the general authoriza6 tion.’’.

7 (5) Section 104(c) of the Marine Mammal Protection

8 Act of 1972 (16 U.S.C. 1374(c)) is amended by adding

9 at the end the following new paragraphs:

10 ‘‘(7) Upon request by a person for a permit

11 under paragraph (2), (3), or (4) for a marine mam12 mal which is in the possession of any person author13 ized to possess it under this Act and which is deter14 mined under guidance under section 402(a) not to

15 be releasable to the wild, the Secretary shall issue

16 the permit to the person requesting the permit if

17 that person—

18 ‘‘(A) meets the requirements of clauses (i),

19 (ii), and (iii) of paragraph (2)(A), in the case

20 of a request for a permit under paragraph (2);

21 ‘‘(B) meets the requirements of paragraph

22 (3), in the case of a request for a permit under

23 that paragraph; or
24

S 1636 ES

1 ‘‘(C) meets the requirements of paragraph

2 (4), in the case of a request for a permit under

3 that paragraph.

4 ‘‘(8)(A) No additional permit or authorization

5 shall be required to possess, sell, purchase, trans6 port, export, or offer to sell or purchase the progeny

7 of marine mammals taken or imported under this

8 subsection, if such possession, sale, purchase, trans9 port, export, or offer to sell or purchase is—

10 ‘‘(i) for the purpose of public display, and

11 by or to, respectively, a person which meets the

12 requirements of clauses (i), (ii), and (iii) of

13 paragraph (2)(A);

14 ‘‘(ii) for the purpose of scientific research,

15 and by or to, respectively, a person which meets

16 the requirements of paragraph (3); or

17 ‘‘(iii) for the purpose of enhancing the sur18 vival or recovery of a species or stock, and by

19 or to, respectively, a person which meets the re20 quirements of paragraph (4).

21 ‘‘(B)(i) A person which has possession of a ma22 rine mammal pursuant to a permit under paragraph

23 (2), or a person exercising rights under paragraph

24 (2)(C), that gives birth to progeny shall—
25

S 1636 ES

1 ‘‘(I) notify the Secretary of the birth of

2 such progeny within 30 days after the date of

3 birth; and

4 ‘‘(II) notify the Secretary of the sale, pur5 chase, or transport of such progeny no later

6 than 15 days before such action.

7 ‘‘(ii) The Secretary may only require notifica8 tion under clause (i) to include the information re9 quired for the inventory established under paragraph

10 (10).

11 ‘‘(C) Any progeny of a marine mammal born in

12 captivity before the date of enactment of the Marine

13 Mammal Protection Act Amendments of 1994 and

14 held in captivity for the purpose of public display

15 shall be treated as though born after that date of

16 enactment.

17 ‘‘(9) No marine mammal may be exported for

18 the purpose of public display, scientific research, or

19 enhancing the survival or recovery of a species or

20 stock unless the receiving facility meets standards

21 that are comparable to the requirements that a per22 son must meet to receive a permit under this sub23 section for that purpose.

24 ‘‘(10) The Secretary shall establish and main25 tain an inventory of all marine mammals possessed
26

S 1636 ES

1 pursuant to permits issued under paragraph (2) and

2 all progeny of such marine mammals. The inventory

3 shall contain, for each marine mammal, only the fol4 lowing information, which shall be provided by a per5 son holding a marine mammal under this Act:

6 ‘‘(A) The name of the marine mammal or

7 other identification.

8 ‘‘(B) The sex of the marine mammal.

9 ‘‘(C) The estimated or actual birth date of

10 the marine mammal.

11 ‘‘(D) The date of acquisition or disposition

12 of the marine mammal by the permit holder.

13 ‘‘(E) The source from whom the marine

14 mammal was acquired, including the location of

15 the take from the wild, if applicable.

16 ‘‘(F) If the marine mammal is transferred,

17 the name of the recipient.

18 ‘‘(G) A notation if the animal was acquired

19 as the result of a stranding.

20 ‘‘(H) The date of death of the marine

21 mammal and the cause of death when deter22 mined.’’.

23 (c) EXISTING PERMITS.—Any permit issued under

24 section 104(c)(2) of the Marine Mammal Protection Act

25 of 1972 (16 U.S.C. 1374(c)(2)) before the date of the en-
27

S 1636 ES

1 actment of this Act is hereby modified to be consistent

2 with that section, as amended by this Act.

3 SEC. 6. CONSERVATION PLANS.

4 Section 115(b) of the Marine Mammal Protection Act

5 of 1972 (16 U.S.C. 1383b(b)) is amended by adding at

6 the end the following new paragraph:

7 ‘‘(4) If the Secretary determines that an incidental

8 take reduction plan is necessary to reduce the incidental

9 taking of marine mammals in the course of commercial

10 fishing operations from a stock specified under section

11 117(a)(7), or for stocks which interact with a commercial

12 fishery for which the Secretary has made a determination

13 under section 118(b)(1), any conservation plan prepared

14 under this subsection for such stock shall incorporate the

15 incidental take reduction plan required under section 118

16 for such stock.’’.

17 SEC. 7. STOCK ASSESSMENTS.

18 (a) IN GENERAL.—Title I of the Marine Mammal

19 Protection Act of 1972 (16 U.S.C. 1371 et seq.) is amend20 ed by adding at the end the following new section:

21 ‘‘SEC. 117. STOCK ASSESSMENTS.

22 ‘‘(a) IN GENERAL.—Not later than August 1, 1994,

23 the Secretary shall, after consultation with the appropriate

24 regional scientific working group established under sub25 section (d), prepare a draft stock assessment for each ma-
28

S 1636 ES

1 rine mammal stock which occurs in waters under the juris2 diction of the United States. Each draft stock assessment,

3 based on the best scientific information available, shall—

4 ‘‘(1) describe the geographic range of the af5 fected stock, including any seasonal or temporal var6 iation in such range;

7 ‘‘(2) provide for such stock the minimum popu8 lation estimate, current and maximum net productiv9 ity rates, and current population trend, including a

10 description of the information upon which these are

11 based;

12 ‘‘(3) estimate the annual anthropogenic mortal13 ity and serious injury of the stock and, for a stock

14 specified under paragraph (7), other factors that

15 may be causing a decline or impeding recovery of the

16 stock, including effects on marine mammal habitat

17 and prey;

18 ‘‘(4) describe commercial fisheries that interact

19 with the stock, including—

20 ‘‘(A) the approximate number of vessels

21 actively participating in each such fishery;

22 ‘‘(B) the estimated level of incidental mor23 tality and serious injury of the stock by each

24 such fishery on an annual basis;
29

S 1636 ES

1 ‘‘(C) seasonal or area differences in such

2 incidental mortality or serious injury; and

3 ‘‘(D) the rate, based on a unit of fishing

4 effort, of such incidental mortality and serious

5 injury, and an analysis stating whether such

6 level is insignificant and is approaching a zero

7 mortality and serious injury rate;

8 ‘‘(5) categorize the status of the stock as one

9 that either—

10 ‘‘(A) has a level of anthropogenic mortality

11 and serious injury that is not likely to cause the

12 stock to be reduced below its optimum sustain13 able population; or

14 ‘‘(B)(i) meets the criteria described under

15 paragraph (7);

16 ‘‘(ii) is listed as threatened or endangered

17 under the Endangered Species Act of 1973 (16

18 U.S.C. 1531 et seq.), or designated as depleted

19 under this Act; or

20 ‘‘(iii) meets the criteria specified in both

21 clauses (i) and (ii);

22 ‘‘(6) estimate the calculated removal level for

23 the stock, describing the information used to cal24 culate it, including the recovery factor; and
30

S 1636 ES

1 ‘‘(7) specify whether the Secretary has reason

2 to believe that the level of anthropogenic mortality

3 and serious injury for the stock is such that it may

4 cause the stock to be reduced or maintained below

5 its optimum sustainable population.

6 ‘‘(b) PUBLIC COMMENT.—(1) The Secretary shall

7 publish in the Federal Register a notice of the availability

8 of a draft stock assessment or any revision thereof and

9 provide an opportunity for public review and comment

10 during a period of 90 days. Such notice shall include a

11 summary of the assessment and a list of the sources of

12 information or published reports upon which the assess13 ment is based.

14 ‘‘(2) Subsequent to the notice of availability required

15 under paragraph (1), if requested by a person to which

16 section 101(b) applies, the Secretary shall conduct a pro17 ceeding on the record prior to publishing a final stock as18 sessment or any revision thereof for any stock subject to

19 taking under section 101(b).

20 ‘‘(3) After consideration of the best scientific infor21 mation available, the advice of the appropriate regional

22 scientific review group established under subsection (d),

23 and the comments of the general public, the Secretary

24 shall publish in the Federal Register a notice of availabil-
31

S 1636 ES

1 ity and a summary of the final stock assessment or any

2 revision thereof, not later than 90 days after—

3 ‘‘(A) the close of the public comment period on

4 a draft stock assessment or revision thereof; or

5 ‘‘(B) final action on an agency proceeding pur6 suant to paragraph (2).

7 ‘‘(c) REVIEW AND REVISION.—(1) The Secretary, in

8 consultation with the appropriate regional scientific review

9 group established under subsection (d), shall review stock

10 assessments under this section—

11 ‘‘(A) annually for stocks specified under sub12 section (a)(7) or for which substantial new informa13 tion is available; and

14 ‘‘(B) at least once every 3 years for all other

15 marine mammal stocks.

16 ‘‘(2) If the review under paragraph (1) indicates that

17 the status of the stock has changed or can be more accu18 rately determined, the Secretary shall revise the stock as19 sessment in accordance with subsection (b).

20 ‘‘(d) REGIONAL SCIENTIFIC REVIEW GROUPS.—(1)

21 Not later than 60 days after the date of enactment of this

22 section, the Secretary of Commerce shall, in consultation

23 with the Secretary of the Interior (with respect to marine

24 mammals under that Secretary’s jurisdiction), the Gov25 ernors of affected adjacent coastal States, regional fishery
32

S 1636 ES

1 and wildlife management authorities, Alaska Native orga2 nizations and Indian tribes, environmental and fishery

3 groups, establish at least two independent regional sci4 entific review groups consisting of individuals with exper5 tise in marine mammal biology and ecology, population dy6 namics and modeling, commercial fishing technology and

7 practices, and stocks taken under section 101(b). The Sec8 retary of Commerce shall, to the maximum extent prac9 ticable, attempt to achieve a balanced representation of

10 viewpoints among the individuals on each regional sci11 entific working group. The regional scientific review

12 groups shall advise the Secretary on all aspects of the

13 stock assessments required under this section.

14 ‘‘(2) The regional scientific review groups established

15 under this section shall not be subject to the Federal Advi16 sory Committee Act (5 App. U.S.C.).

17 ‘‘(3) Members of the regional scientific review groups

18 shall serve without compensation, but may be reimbursed

19 by the Secretary, upon request, for reasonable travel costs

20 and expenses incurred in performing their duties as mem21 bers of such regional scientific review groups.

22 ‘‘(4) The Secretary may appoint or reappoint individ23 uals to the regional scientific working groups under para24 graph (1) as needed.
33

S 1636 ES

1 ‘‘(e) EFFECT ON SECTION 101(b).—This section

2 shall not affect or otherwise modify the provisions of sec3 tion 101(b).’’.

4 SEC. 8. TAKING OF MARINE MAMMALS INCIDENTAL TO

5 COMMERCIAL FISHING OPERATIONS.

6 Title I of the Marine Mammal Protection Act of 1972

7 (16 U.S.C. 1371 et seq.), as amended by this Act, is fur8 ther amended by adding at the end the following new sec9 tion:

10 ‘‘SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO

11 COMMERCIAL FISHING OPERATIONS.

12 ‘‘(a) IN GENERAL.—(1) Effective on the date of en13 actment of this section, and except as provided in section

14 114 and in paragraphs (2), (3), and (4) of this section,

15 the provisions of this section shall govern the incidental

16 taking of marine mammals in the course of commercial

17 fishing operations by persons using vessels of the United

18 States or vessels which have valid fishing permits issued

19 by the Secretary in accordance with section 204(b) of the

20 Magnuson Fishery Conservation and Management Act (16

21 U.S.C. 1824(b)). In any event it shall be the immediate

22 goal that the incidental mortality or serious injury of ma23 rine mammals occurring in the course of commercial fish24 ing operations be reduced to insignificant levels approach25 ing a zero mortality and serious injury rate.
34

S 1636 ES

1 ‘‘(2) In the case of the incidental taking of marine

2 mammals from species or stocks designated under this Act

3 as depleted on the basis of their listing as threatened or

4 endangered species under the Endangered Species Act of

5 1973 (16 U.S.C. 1531 et seq.), both this section and sec6 tion 101(a)(5)(E) of this Act shall apply.

7 ‘‘(3) Sections 104(h) and title III, and not this sec8 tion, shall govern the taking of marine mammals in the

9 course of commercial purse seine fishing for yellowfin tuna

10 in the eastern tropical Pacific Ocean.

11 ‘‘(4) This section shall not govern the taking of ma12 rine mammals from the California population of sea otters

13 to which the Act of November 7, 1986 (Public Law 99–

14 625; 100 Stat. 3500) applies.

15 ‘‘(5) Sections 103 and 104 shall not apply to the inci16 dental taking of marine mammals under the authority of

17 this section.

18 ‘‘(6) Except as provided in section 101(c)(2), the in19 tentional killing of any marine mammal in the course of

20 commercial fishing operations is prohibited.

21 ‘‘(b) INCIDENTAL TAKE REDUCTION PLANS.—(1)

22 The Secretary shall develop and implement an incidental

23 take reduction plan designed to assist in the recovery of

24 each marine mammal stock that is specified under section

25 117(a)(7) which interacts with a commercial fishery listed
35

S 1636 ES

1 under subsection (f)(1)(A) (i) or (ii), and may develop and

2 implement such a plan for any other marine mammal

3 stocks which interact with a commercial fishery listed

4 under subsection (f)(1)(A)(i) which the Secretary deter5 mines, after notice and opportunity for public comment,

6 has an excessive rate of mortality and serious injury

7 across a number of such marine mammal stocks.

8 ‘‘(2) If there is insufficient funding available to de9 velop and implement an incidental take reduction plan for

10 all such stocks that interact with commercial fisheries list11 ed under subsection (f)(1)(A) (i) or (ii), the Secretary

12 shall give highest priority to the development and imple13 mentation of incidental take reduction plans for species

14 or stocks whose level of incidental mortality and serious

15 injury exceeds the calculated removal level, those that have

16 a small population size, and those which are declining

17 most rapidly.

18 ‘‘(3) Each incidental take reduction plan developed

19 under this subsection for a stock shall include the follow20 ing:

21 ‘‘(A) A review and evaluation of the information

22 contained in the stock assessment published under

23 section 117 and any substantial new information

24 that may be available.
36

S 1636 ES

1 ‘‘(B) An evaluation and estimate of the total

2 number and percentage of animals from the stock

3 that are being killed or seriously injured each year

4 as a result of commercial fishing activities.

5 ‘‘(C) Proposed management measures and vol6 untary actions for the reduction of incidental mortal7 ity and serious injury of marine mammals in com8 mercial fisheries which interact with such stock.

9 ‘‘(D) A long-term strategy to reduce, to insig10 nificant levels approaching a zero rate within 10

11 years, the incidental mortality and serious injury of

12 marine mammals from the stock in the course of

13 commercial fishing operations.

14 ‘‘(4)(A) Each incidental take reduction plan shall in15 clude projected dates for achieving the objectives of the

16 plan.

17 ‘‘(B) For any stock in which incidental mortality and

18 serious injury from commercial fisheries exceeds the cal19 culated removal level established under section 117, the

20 plan shall include measures the Secretary expects will re21 duce, within 6 months after commencement of operations

22 by commercial fisheries that interact with that stock, such

23 mortality and serious injury to a level below the calculated

24 removal level.
37

S 1636 ES

1 ‘‘(C) For any stock in which anthropogenic mortality

2 and serious injury exceeds the calculated removal level,

3 other than a stock to which subparagraph (B) applies, the

4 plan shall include measures the Secretary expects will re5 duce, to the maximum extent practicable within 6 months

6 after commencement of operations by commercial fisheries

7 that interact with that stock, the incidental mortality and

8 serious injury by such commercial fisheries from that

9 stock. For purposes of this subparagraph, the term ‘maxi10 mum extent practicable’ means to the lowest level that is

11 feasible for such fisheries within the 6-month period.

12 ‘‘(5)(A) At the earliest possible time (not later than

13 60 days) after the Secretary issues a final stock assess14 ment for a stock specified under section 117(a)(7), the

15 Secretary shall, and for stocks that interact with a fishery

16 listed under subsection (f)(1)(A)(i) for which the Sec17 retary has made a determination under paragraph (1), the

18 Secretary may—

19 ‘‘(i) establish an incidental take reduction team

20 for such stock and appoint the members of such

21 team in accordance with subparagraph (C); and

22 ‘‘(ii) publish in the Federal Register a notice of

23 the team’s establishment, the names of the team’s

24 appointed members, the full geographic range of

25 such stock, and a list of all commercial fisheries that
38

S 1636 ES

1 cause incidental mortality and serious injury of ma2 rine mammals from such stock.

3 ‘‘(B) The Secretary may charge an incidental take

4 reduction team to address a stock that extends over one

5 or more regions or fisheries, or multiple stocks within a

6 region or fishery, if the Secretary determines that doing

7 so would facilitate the development and implementation of

8 plans required under this subsection.

9 ‘‘(C) Members of incidental take reduction teams

10 shall be individuals knowledgeable and experienced regard11 ing measures to conserve such stocks and to reduce inci12 dental mortality and serious injury to such stock from

13 commercial fishing operations. Members may include rep14 resentatives of Federal and State agencies, Councils,

15 interstate fishery commissions, academic and scientific or16 ganizations, environmental and fishery groups, Alaska Na17 tive organizations and Indian tribes, and others as the

18 Secretary considers appropriate. Incidental take reduction

19 teams shall include a representative of each affected Coun20 cil and State, and shall, to the maximum extent prac21 ticable, include an equitable balance among representa22 tives of government, resource user interests, and public in23 terest groups. Incidental take reduction teams shall not

24 be subject to the Federal Advisory Committee Act (5 App.
39

S 1636 ES

1 U.S.C.) but their meetings shall be open to the public,

2 after timely notice of the time and place of such meetings.

3 ‘‘(D) Members of incidental take reduction teams

4 shall serve without compensation, but may be reimbursed

5 by the Secretary, upon request, for reasonable travel costs

6 and expenses incurred in performing their duties as mem7 bers of the team.

8 ‘‘(6) Where the anthropogenic mortality and serious

9 injury from a stock specified under section 117(a)(7) is

10 estimated to be equal to or greater than the calculated

11 removal level established under section 117 for such stock

12 and such stock interacts with a fishery listed under sub13 section (f)(1)(A) (i) or (ii), the following procedures shall

14 apply in the development of the incidental take reduction

15 plan for the stock:

16 ‘‘(A)(i) Not later than 6 months after the date

17 of establishment of an incidental take reduction

18 team for the stock, the team shall submit a draft in19 cidental take reduction plan for such stock to the

20 Secretary, consistent with the other provisions of

21 this section.

22 ‘‘(ii) Such draft incidental take reduction plan

23 shall be developed by consensus. In the event con24 sensus cannot be reached, the team shall advise the

25 Secretary in writing on the range of possibilities con-
40

S 1636 ES

1 sidered by the team, and the views of both the ma2 jority and minority.

3 ‘‘(B)(i) The Secretary shall take the draft inci4 dental take reduction plan into consideration and,

5 not later than 60 days after the submission of the

6 draft plan by the team, the Secretary shall publish

7 in the Federal Register the plan proposed by the

8 team, any changes proposed by the Secretary with

9 an explanation of the reasons therefor, and proposed

10 regulations to implement such plan, for public review

11 and comment during a period of not to exceed 90

12 days.

13 ‘‘(ii) In the event that the incidental take re14 duction team does not submit a draft plan to the

15 Secretary within 6 months, the Secretary shall, not

16 later than 8 months after the establishment of the

17 team, publish in the Federal Register a proposed in18 cidental take reduction plan and implementing regu19 lations, for public review and comment during a pe20 riod of not to exceed 90 days.

21 ‘‘(C) Not later than 90 days after the close of

22 the comment period required under subparagraph

23 (B), the Secretary shall issue a final incidental take

24 reduction plan and implementing regulations, con25 sistent with the other provisions of this section.
41

S 1636 ES

1 ‘‘(D) the Secretary and the incidental take re2 duction team shall meet every 6 months, or at such

3 other intervals as the Secretary determines are nec4 essary, to monitor the implementation of the final

5 incidental take reduction plan until such time that

6 the Secretary determines that the objectives of such

7 plan have been met.

8 ‘‘(E) the Secretary shall amend the incidental

9 take reduction plan and implementing regulations as

10 necessary to meet the requirements of this section,

11 in accordance with the procedures in this section for

12 the issuance of such plans and regulations.

13 ‘‘(7) Where the anthropogenic mortality and serious

14 injury from a stock specified under section 117(a)(7) is

15 estimated to be less than the calculated removal level es16 tablished under section 117 for such stock and such stock

17 interacts with a fishery listed under subsection (f)(1)(A)

18 (i) or (ii), or for any marine mammal stocks which interact

19 with a commercial fishery listed under subsection

20 (f)(1)(A)(i) for which the Secretary has made a determina21 tion under paragraph (1), the following procedures shall

22 apply in the development of the incidental take reduction

23 plan for such stock:

24 ‘‘(A)(i) Not later than 11 months after the date

25 of establishment of an incidental take reduction
42

S 1636 ES

1 team for the stock, the team shall submit a draft in2 cidental take reduction plan for the stock to the Sec3 retary, consistent with the other provisions of this

4 section.

5 ‘‘(ii) Such draft incidental take reduction plan

6 shall be developed by consensus. In the event con7 sensus cannot be reached, the team shall advise the

8 Secretary in writing on the range of possibilities con9 sidered by the team, and the views of both the ma10 jority and minority.

11 ‘‘(B)(i) The Secretary shall take the draft inci12 dental take reduction plan into consideration and,

13 not later than 60 days after the submission of the

14 draft plan by the team, the Secretary shall publish

15 in the Federal Register the plan proposed by the

16 team, any changes proposed by the Secretary with

17 an explanation of the reasons therefor, and proposed

18 regulations to implement such plan, for public review

19 and comment during a period of not to exceed 90

20 days.

21 ‘‘(ii) In the event that the incidental take re22 duction team does not submit a draft plan to the

23 Secretary within 11 months, the Secretary shall, not

24 later than 13 months after the establishment of the

25 team, publish in the Federal Register a proposed in-
43

S 1636 ES

1 cidental take reduction plan and implementing regu2 lations, for public review and comment during a pe3 riod of not to exceed 90 days.

4 ‘‘(C) Not later than 90 days after the close of

5 the comment period required under subparagraph

6 (B), the Secretary shall issue a final incidental take

7 reduction plan and implementing regulations, con8 sistent with the other provisions of this section.

9 ‘‘(D) The Secretary and the incidental take re10 duction team shall meet on an annual basis, or at

11 such other intervals as the Secretary determines are

12 necessary, to monitor the implementation of the

13 final incidental take reduction plan until such time

14 that the Secretary determines that the objectives of

15 such plan have been met.

16 ‘‘(E) The Secretary shall amend the incidental

17 take reduction plan and implementing regulations as

18 necessary to meet the requirements of this section,

19 in accordance with the procedures in this section for

20 the issuance of such plans and regulations.

21 ‘‘(8) In implementing an incidental take reduction

22 plan developed pursuant to this subsection, the Secretary

23 may, where necessary to implement an incidental take re24 duction plan to protect or restore a marine mammal stock
44

S 1636 ES

1 or species covered by such plan, promulgate regulations

2 which include, but are not limited to, measures to—

3 ‘‘(A) establish fishery-specific limits on inciden4 tal mortality and serious injury of marine mammals

5 in commercial fisheries or restrict commercial fish6 eries by time or area;

7 ‘‘(B) require the use of alternative commercial

8 fishing gear or techniques and new technologies, en9 courage the development of such gear or technology,

10 or convene expert skippers’ panels;

11 ‘‘(C) educate commercial fishermen, through

12 workshops and other means, on the importance of

13 reducing the incidental mortality and serious injury

14 of marine mammals in affected commercial fisheries;

15 and

16 ‘‘(D) monitor the effectiveness of measures

17 taken to reduce the level of incidental mortality and

18 serious injury of marine mammals in the course of

19 commercial fishing operations, as set forth in sub20 section (d).

21 ‘‘(9)(A) Notwithstanding paragraph (5), in the case

22 of any stock to which paragraph (5) applies for which a

23 final stock assessment has not been published under sec24 tion 117(b)(3) by April 1, 1995, due to a proceeding under

25 section 117(b)(2), or any Federal court review of such pro-
45

S 1636 ES

1 ceeding, the Secretary shall establish an incidental take

2 reduction team under paragraph (5) for such stock as if

3 a final stock assessment had been published.

4 ‘‘(B) The draft stock assessment published for such

5 stock under section 117(b)(1) shall be deemed the final

6 stock assessment for purposes of preparing and imple7 menting an incidental take reduction plan for such stock

8 under this section.

9 ‘‘(C) Upon publication of a final stock assessment for

10 such stock under section 117(b)(3) the Secretary shall im11 mediately reconvene the incidental take reduction team for

12 such stock for the purpose of amending the incidental take

13 reduction plan, and any regulations issued to implement

14 such plan, if necessary, to reflect the final stock assess15 ment or court action. Such amendments shall be made in

16 accordance with paragraph (6)(E) or (7)(E), as appro17 priate.

18 ‘‘(D) A draft stock assessment may only be used as

19 the basis for an incidental take reduction plan under this

20 paragraph for a period of not to exceed two years, or until

21 a final stock assessment is published, whichever is earlier.

22 If, at the end of the two-year period, a final stock assess23 ment has not been published, the Secretary shall cat24 egorize such stock under section 117(a)(5)(A) and shall
46

S 1636 ES

1 revoke any regulations to implement an incidental take re2 duction plan for such stock.

3 ‘‘(E) Subparagraph (D) shall not apply for any pe4 riod beyond two years during which a final stock assess5 ment for such stock has not been published due to review

6 of a proceeding on such stock assessment by a Federal

7 court. Immediately upon final action by such court, the

8 Secretary shall proceed under subparagraph (C).

9 ‘‘(10) Incidental take reduction plans developed

10 under this section for a species or stock listed as a threat11 ened or endangered species under the Endangered Species

12 Act of 1973 (16 U.S.C. 1531 et seq.) shall be consistent

13 with any recovery plan developed for such species or stock

14 under section 4 of such Act.

15 ‘‘(c) EMERGENCY REGULATIONS.—(1) If the Sec16 retary finds that incidental mortality and serious injury

17 of marine mammals from commercial fisheries is having,

18 or is likely to have, an immediate and significant adverse

19 impact on a stock or species, the Secretary shall take ac20 tion as follows:

21 ‘‘(A) In the case of a stock or species for which

22 an approved incidental take reduction plan is in ef23 fect, the Secretary shall—

24 ‘‘(i) prescribe emergency regulations that,

25 consistent with such plan to the maximum ex-
47

S 1636 ES

1 tent practicable, reduce such incidental mortal2 ity and serious injury in that fishery; and

3 ‘‘(ii) approve and implement, on an expe4 dited basis, any amendments to such plan that

5 are recommended by the incidental take reduc6 tion team to address such adverse impact.

7 ‘‘(B) In the case of a stock or species for which

8 an incidental take reduction plan is being developed,

9 the Secretary shall—

10 ‘‘(i) prescribe emergency regulations to re11 duce such incidental mortality and serious in12 jury in that fishery; and

13 ‘‘(ii) approve and implement, on an expe14 dited basis, such plan, which shall provide

15 methods to address such adverse impact if still

16 necessary.

17 ‘‘(C) In the case of a stock or species for which

18 an incidental take reduction plan does not exist and

19 is not being developed, or in the case of a commer20 cial fishery listed under subsection (f)(1)(A)(iii)

21 which the Secretary believes may be contributing to

22 such adverse impact, the Secretary shall—

23 ‘‘(i) prescribe emergency regulations to re24 duce such incidental mortality and serious in-
48

S 1636 ES

1 jury in that fishery, to the extent necessary to

2 mitigate such adverse impact;

3 ‘‘(ii) immediately review the stock assess4 ment for such stock or species under section

5 117 and the classification of such commercial

6 fishery under subsection (f)(1)(A) to determine

7 if an incidental take reduction team should be

8 established under this section; and

9 ‘‘(iii) may, where necessary to address

10 such adverse impact, require the placement of

11 observers pursuant to subsection (d) upon ves12 sels in a commercial fishery listed under sub13 section (f)(1)(A)(iii), if the Secretary has rea14 son to believe that such vessels may be causing

15 incidental mortality and serious injury to ma16 rine mammals from such stock.

17 ‘‘(2) Prior to taking action under paragraph (1) (A),

18 (B), or (C), the Secretary shall consult with the Marine

19 Mammal Commission, all appropriate Councils, State fish20 ery managers, and the appropriate incidental take reduc21 tion team (if established).

22 ‘‘(3) Emergency regulations prescribed under this

23 subsection—

24 ‘‘(A) shall be published in the Federal Register,

25 together with an explanation thereof;
49

S 1636 ES

1 ‘‘(B) shall remain in effect for not more than

2 180 days, or until the end of the applicable commer3 cial fishing season, whichever is earlier; and

4 ‘‘(C) may be terminated by the Secretary at an

5 earlier date by publication in the Federal Register of

6 a notice of termination, if the Secretary determines

7 that the reasons for the emergency regulations no

8 longer exist.

9 ‘‘(4) If the Secretary finds that incidental mortality

10 and serious injury of marine mammals in a commercial

11 fishery is continuing to have an immediate and significant

12 adverse impact on a stock or species, the Secretary may

13 extend the emergency regulations for an additional period

14 of not more than 90 days or until reasons for the emer15 gency no longer exist, whichever is earlier.

16 ‘‘(d) MONITORING OF INCIDENTAL TAKES.—(1) The

17 Secretary shall establish a program to monitor incidental

18 mortality and serious injury of marine mammals during

19 the course of commercial fishing operations for commer20 cial fisheries listed under subsection (f)(1)(A) (i) or (ii).

21 The purposes of the monitoring program shall be to—

22 ‘‘(A) obtain statistically reliable estimates of in23 cidental mortality and serious injury;
50

S 1636 ES

1 ‘‘(B) determine the reliability of reports of inci2 dental mortality and serious injury under subsection

3 (g); and

4 ‘‘(C) report on the impacts of changes in com5 mercial fishing methods or technology.

6 ‘‘(2) Pursuant to paragraph (1), the Secretary is au7 thorized to place observers on board vessels as necessary,

8 subject to the provisions of this section. Observers may

9 perform other tasks including, but not limited to—

10 ‘‘(A) recording other sources of mortality;

11 ‘‘(B) recording the number of marine mammals

12 sighted and the behavior of such mammals observed

13 in the vicinity of commercial fishing gear;

14 ‘‘(C) other related scientific or fishery manage15 ment observations; and

16 ‘‘(D) collection of marine mammals tissues,

17 where such collection can be done safely and without

18 interruption of commercial fishing operations.

19 ‘‘(3) When determining the distribution of observers

20 among fisheries and vessels within a fishery, the Secretary

21 shall be guided by the following standards:

22 ‘‘(A) the need to obtain the best scientific infor23 mation available;
51

S 1636 ES

1 ‘‘(B) the requirement that assignment of ob2 servers be fair and equitable among fisheries and

3 among vessels in a fishery;

4 ‘‘(C) the requirement that no individual person

5 or vessel, or group of persons or vessels, be subject

6 to excessive or overly burdensome observer coverage;

7 and

8 ‘‘(D) where practicable, the need to minimize

9 costs and avoid duplication.

10 ‘‘(4) To the extent practicable, the Secretary shall al11 locate observers among commercial fisheries in accordance

12 with the following priority:

13 ‘‘(A) The highest priority for allocation shall be

14 for commercial fisheries that have incidental mortal15 ity or serious injury of marine mammals from stocks

16 designated as depleted on the basis of their listing

17 as endangered or threatened species under the En18 dangered Species Act of 1973 (16 U.S.C. 1531 et

19 seq.).

20 ‘‘(B) The second highest priority for allocation

21 shall be for commercial fisheries that have incidental

22 mortality and serious injury of marine mammals

23 from stocks specified under section 117(a)(7).

24 ‘‘(C) The third highest priority for allocation

25 shall be for commercial fisheries that have incidental
52

S 1636 ES

1 mortality or serious injury of marine mammals from

2 stocks for which the level of incidental mortality and

3 serious injury is uncertain.

4 ‘‘(5) Notwithstanding paragraph (1), the Secretary

5 may establish an alternative observer program to provide

6 statistically reliable information on the species and num7 ber of any marine mammals incidentally taken in the

8 course of commercial fishing operations. The alternative

9 program may include, but need not be limited to, direct

10 observation of fishing activities from vessels, airplanes, or

11 points on shore.

12 ‘‘(6) The Secretary may, with the consent of the ves13 sel owner, station an observer on board a vessel engaged

14 in a commercial fishery not listed under subsection

15 (f)(1)(A) (i) or (ii).

16 ‘‘(7) The Secretary shall not be required to place an

17 observer on a vessel in a commerical fishery if the Sec18 retary finds that—

19 ‘‘(A) in a situation where harvesting vessels are

20 delivering fish to a processing vessel and the catch

21 is not taken on board the harvesting vessel, statis22 tically reliable information can be obtained from an

23 observer on board the processing vessel to which the

24 fish are delivered;
53

S 1636 ES

1 ‘‘(B) the facilities of a vessel for quartering of

2 an observer, or for carrying out observer functions,

3 are so inadequate or unsafe that the health or safety

4 of the observer or the safe operation of the vessel

5 would be jeopardized; or

6 ‘‘(C) for reasons beyond the control of the Sec7 retary, an observer is not available.

8 ‘‘(8) Any proprietary information collected under this

9 subsection shall be confidential and shall not be disclosed

10 except—

11 ‘‘(A) to Federal employees whose duties require

12 access to such information;

13 ‘‘(B) to State or tribal employees pursuant to

14 an agreement with the Secretary that prevents pub15 lic disclosure of the identity or business of any per16 son;

17 ‘‘(C) when required by court order; or

18 ‘‘(D) in the case of scientific information involv19 ing fisheries, to employees of Councils who are re20 sponsible for fishery management plan development

21 and monitoring.

22 ‘‘(9) The Secretary shall prescribe such procedures

23 as may be necessary to preserve the confidentiality of pro24 prietary information collected under this subsection, ex25 cept that the Secretary shall release or make public upon
54

S 1636 ES

1 request any such information in aggregate, summary, or

2 other form which does not directly or indirectly disclose

3 the identity or business of any person.

4 ‘‘(e) ZERO MORTALITY RATE GOAL.—(1) Commer5 cial fisheries shall reduce incidental mortality and serious

6 injury of marine mammals to insignificant levels ap7 proaching a zero mortality and serious injury rate within

8 10 years after the date of enactment of this section.

9 ‘‘(2) Fisheries which maintain insignificant serious

10 injury and mortality levels approaching a zero rate shall

11 not be required to further reduce their mortality rates.

12 ‘‘(3) Three years after such date of enactment, the

13 Secretary shall review the progress of all commercial fish14 eries, by fishery, toward reducing incidental mortality and

15 serious injury to insignificant levels approaching a zero

16 rate. The Secretary shall submit to the Committee on

17 Commerce, Science, and Transportation of the Senate and

18 the Committee on Merchant Marine and Fisheries of the

19 House of Representatives a report setting forth the results

20 of such review within 1 year after commencement of the

21 review. The Secretary shall note any commercial fishery

22 for which inadequate information exists on the level of in23 cidental mortality and serious injury of marine mammals

24 in the fishery.
55

S 1636 ES

1 ‘‘(4) If the Secretary determines after review under

2 paragraph (3) that the rate of incidental mortality and

3 serious injury of marine mammals in a commercial fishery

4 is not consistent with paragraph (1), then the Secretary

5 shall take appropriate action under subsection (b), and

6 shall make recommendations to the Committee on Com7 merce, Science, and Transportation of the Senate and the

8 Committee on Merchant Marine and Fisheries of the

9 House of Representatives on any legislative changes need10 ed to achieve the goal specified in paragraph (1).

11 ‘‘(f) REGISTRATION AND AUTHORIZATION.—(1) The

12 Secretary shall, within 90 days after the date of enactment

13 of this section—

14 ‘‘(A) publish in the Federal Register for public

15 comment, for a period of not less than 90 days, any

16 necessary changes to the Secretary’s list of commer17 cial fisheries published under section 114 (along

18 with an explanation of such changes and a state19 ment of the marine mammals and the approximate

20 number of vessels or persons actively involved in

21 each such fishery) that have—

22 ‘‘(i) frequent incidental mortality and seri23 ous injury of marine mammals;

24 ‘‘(ii) occasional incidental mortality and se25 rious injury of marine mammals; or
56

S 1636 ES

1 ‘‘(iii) a remote likelihood of or no known

2 incidental mortality or serious injury of marine

3 mammals;

4 ‘‘(B) after the close of the period for such pub5 lic comment, publish in the Federal Register a re6 vised list of commercial fisheries and an update of

7 information required by subparagraph (A), together

8 with a summary of the provisions of this section and

9 information sufficient to advise vessel owners on how

10 to obtain an authorization and otherwise comply

11 with the requirements of this section; and

12 ‘‘(C) at least once each year thereafter, and at

13 such other times as the Secretary considers appro14 priate, reexamine, based on information gathered

15 under this Act and other relevant sources and after

16 notice and opportunity for public comment, the clas17 sification of commercial fisheries and other deter18 minations required under subparagraph (A) and

19 publish in the Federal Register any necessary

20 changes.

21 ‘‘(2)(A) An authorization shall be granted by the Sec22 retary in accordance with this section for a vessel engaged

23 in a commercial fishery listed under paragraph (1)(A) (i)

24 or (ii) upon receipt by the Secretary of a completed reg25 istration form providing the name of the vessel owner and
57

S 1636 ES

1 operator, the name and description of the vessel, the fish2 eries in which it will be engaged, the approximate time,

3 duration, and location of such fishery operations, and the

4 general type and nature of use of the fishing gear and

5 techniques used. Such information shall be in a readily

6 usable format that can be efficiently entered into and uti7 lized by an automated or computerized data processing

8 system. A decal or other physical evidence that the author9 ization is current and valid shall be issued by the Sec10 retary at the time an authorization is granted, and so long

11 as the authorization remains current and valid, shall be

12 reissued annually thereafter.

13 ‘‘(B) No authorization may be granted under this sec14 tion to the owner of a vessel unless such vessel—

15 ‘‘(i) is a vessel of the United States; or

16 ‘‘(ii) has a valid fishing permit issued by the

17 Secretary in accordance with section 204(b) of the

18 Magnuson Fishery Conservation and Management

19 Act (16 U.S.C. 1824(b)).

20 ‘‘(C) Except as provided in subsection (a), an author21 ization granted under this section shall allow the inciden22 tal taking of all species and stocks of marine mammals

23 to which this Act applies.

24 ‘‘(3)(A) An owner of a vessel engaged in any fishery

25 listed under paragraph (1)(A) (i) or (ii) shall, in order
58

S 1636 ES

1 to engage in the lawful incidental taking of marine mam2 mals in a commercial fishery—

3 ‘‘(i) have registered as required under para4 graph (2) with the Secretary in order to obtain for

5 each such vessel owned an authorization for the pur6 pose of incidentally taking marine mammals in ac7 cordance with this section, except that owners of

8 vessels holding valid certificates of exemption under

9 section 114 are deemed to have registered for pur10 poses of this subsection for the period during which

11 such registration is valid;

12 ‘‘(ii) ensure that a decal or such other physical

13 evidence of a current and valid authorization as the

14 Secretary may require is displayed on or is in the

15 possession of the master of each such vessel; and

16 ‘‘(iii) report as required by subsection (g).

17 ‘‘(B) Any owner of a vessel receiving an authorization

18 under this section for any fishery listed under paragraph

19 (1)(A) (i) or (ii) shall, as a condition of that authorization,

20 take on board an observer if requested to do so by the

21 Secretary.

22 ‘‘(C) An owner of a vessel engaged in a fishery listed

23 under paragraph (1)(A) (i) or (ii) who—

24 ‘‘(i) fails to obtain from the Secretary an au25 thorization for such vessel under this section;
59

S 1636 ES

1 ‘‘(ii) fails to maintain a current and valid au2 thorization for such vessel; or

3 ‘‘(iii) fails to ensure that a decal or other phys4 ical evidence of such authorization issued by the Sec5 retary is displayed on or is in possession of the mas6 ter of the vessel,

7 and the master of any such vessel engaged in such fishery,

8 shall be deemed to have violated this title. Such owner and

9 master shall be subject to penalty under sections 105 and

10 107 for a violation of clause (i) or (ii), and shall be subject

11 to a fine of not more than $100 for each offense for a

12 violation of clause (iii).

13 ‘‘(D) If the owner of a vessel has obtained and main14 tains a current and valid authorization from the Secretary

15 under this section and meets the requirements set forth

16 in this section, including compliance with any regulations

17 to implement an incidental take reduction plan under this

18 section, the owner of such vessel, and the master and crew

19 members of the vessel, shall not be subject to the penalties

20 set forth in this title for the incidental taking of marine

21 mammals while such vessel is engaged in a fishery to

22 which the authorization applies.

23 ‘‘(E) Each owner of a vessel engaged in any fishery

24 not listed under paragraph (1)(A) (i) or (ii), and the mas25 ter and crew members of such a vessel, shall not be subject
60

S 1636 ES

1 to the penalties set forth in this title for the incidental

2 taking of marine mammals if such owner reports to the

3 Secretary, in the form and manner required under sub4 section (g), instances of incidental mortality or injury of

5 marine mammals in the course of that fishery.

6 ‘‘(4) The Secretary shall suspend or revoke an au7 thorization granted under this section and shall not issue

8 a decal or other physical evidence of the authorization for

9 any vessel until the owner of such vessel complies with

10 the reporting requirements under subsection (g) and such

11 requirements to take on board an observer under para12 graph (3)(B) as are applicable to such vessel. Previous

13 failure to comply with the requirements of section 114

14 shall not bar the grant of an authorization under this sec15 tion for an owner who complies with the requirements of

16 this section. The Secretary may suspend or revoke an au17 thorization granted under this subsection, and may not

18 issue a decal or other physical evidence of the authoriza19 tion for any vessel which fails to comply with regulations

20 implementing an incidental take reduction plan or emer21 gency regulations issued under this section.

22 ‘‘(5)(A) The Secretary shall develop, in consultation

23 with the appropriate States, affected Councils, and other

24 interested persons, the means by which the granting and

25 administration of authorizations under this section shall
61

S 1636 ES

1 be integrated and coordinated, to the maximum extent

2 practicable, with existing fishery licenses, registrations,

3 and related programs.

4 ‘‘(B) The Secretary shall utilize newspapers of gen5 eral circulation, fishery trade associations, electronic

6 media, and other means of advising commercial fishermen

7 of the provisions of this section and the means by which

8 they can comply with its requirements.

9 ‘‘(C) The Secretary is authorized to charge a fee for

10 the granting of an authorization under this section. The

11 level of fees charged under this subparagraph shall not

12 exceed the administrative costs incurred in granting an

13 authorization. Fees collected under this subparagraph

14 shall be available to the Under Secretary of Commerce for

15 Oceans and Atmosphere for expenses incurred in the

16 granting and administration of authorizations under this

17 section.

18 ‘‘(g) REPORTING REQUIREMENT.—The owner or op19 erator of a commercial fishing vessel subject to this Act

20 shall report all incidental mortality and injury of marine

21 mammals in the course of commercial fishing operations

22 to the Secretary by mail or other means acceptable to the

23 Secretary within 48 hours after the end of each fishing

24 trip on a standard postage-paid form to be developed by

25 the Secretary under this section. Such form shall be capa-
62

S 1636 ES

1 ble of being readily entered into and usable by an auto2 mated or computerized data processing system and shall

3 require the vessel owner or operator to provide the follow4 ing:

5 ‘‘(1) The vessel name, and Federal, State, or

6 tribal registration numbers of the registered vessel.

7 ‘‘(2) The name and address of the vessel owner

8 or operator.

9 ‘‘(3) The name and description of the fishery.

10 ‘‘(4) The species of each marine mammal inci11 dentally killed or injured, and the date, time, and

12 approximate geographic location of such occurrence.

13 ‘‘(h) PENALTIES.—Except as provided in subsection

14 (f), any person who violates this section shall be subject

15 to the provisions of section 105 and 107, and may be sub16 ject to section 106 as the Secretary establishes by regula17 tions.

18 ‘‘(i) VOLUNTARY MEASURES.—Nothing in this sec19 tion shall be construed to limit the Secretary’s authority

20 to permit voluntary measures to be utilized in reducing

21 the incidental taking of marine mammals in commercial

22 fisheries.

23 ‘‘(j) CONSULTATION WITH SECRETARY OF THE IN24 TERIOR.—The Secretary shall consult with the Secretary

25 of the Interior on measures promulgated under this sec-
63

S 1636 ES

1 tion which affect species or stocks under such Secretary’s

2 jurisdiction.’’.

3 SEC. 9. PENALTIES; PROHIBITIONS.

4 (a) CIVIL PENALTIES.—Section 105(a)(1) of the Ma5 rine Mammal Protection Act of 1972 (16 U.S.C.

6 1375(a)(1)) is amended by inserting ‘‘, except as provided

7 in section 118,’’ immediately after ‘‘thereunder’’ and by

8 inserting ‘‘, harassment,’’ immediately after ‘‘taking’’.

9 (b) CRIMINAL PENALTIES.—Section 105(b) of the

10 Marine Mammal Protection Act of 1972 (16 U.S.C.

11 1375(b)) is amended by inserting ‘‘(except as provided in

12 section 118)’’ immediately after ‘‘thereunder’’.

13 (c) PROHIBITIONS.—Section 102(a) of the Marine

14 Mammal Protection Act of 1972 (16 U.S.C. 1372(a)) is

15 amended by striking ‘‘and 114 of this title or title III’’

16 and inserting in lieu thereof ‘‘114, and 118 of this title

17 and title IV’’.

18 SEC. 10. AUTHORIZATION TO DETER MARINE MAMMALS

19 NONLETHALLY.

20 Section 101 of the Marine Mammal Protection Act

21 of 1972 (16 U.S.C. 1371) is amended by adding at the

22 end the following new subsection:

23 ‘‘(d)(1) Except as provided in paragraph (2), the pro24 visions of this Act shall not apply to the use of measures—
64

S 1636 ES

1 ‘‘(A) by the owner of fishing gear or catch, or

2 an employee or agent of such owner, to deter a ma3 rine mammal from damaging the gear or catch;

4 ‘‘(B) by the owner of other private property, or

5 an agent, bailee, or employee of such owner, to deter

6 a marine mammal from damaging private property;

7 ‘‘(C) by any person, to deter a marine mammal

8 from endangering personal safety; or

9 ‘‘(D) by a government employee, to deter a ma10 rine mammal from damaging public property,

11 so long as such measures do not result in the death or

12 serious injury of the marine mammal.

13 ‘‘(2) The Secretary shall, through consultation with

14 appropriate experts, and after notice and opportunity for

15 public comment, publish in the Federal Register a list of

16 guidelines for use in safely deterring marine mammals. In

17 the case of marine mammals designated as threatened or

18 endangered under the Endangered Species Act of 1973

19 (16 U.S.C. 1531 et seq.), the Secretary shall recommend

20 specific measures which may be used to nonlethally deter

21 such marine mammals. Actions to deter marine mammals

22 consistent with such guidelines or specific measures shall

23 not be a violation of this Act.

24 ‘‘(3) If the Secretary determines, using the best sci25 entific information available, that certain forms of deter-
65

S 1636 ES

1 rence have a significant adverse effect on marine mam2 mals, the Secretary may prohibit such deterrent methods,

3 after notice and opportunity for public comment, through

4 regulation under this Act.

5 ‘‘(4) The authority to deter marine mammals pursu6 ant to paragraph (1) applies to all marine mammals, in7 cluding all stocks designated as depleted under this Act.’’.

8 SEC. 11. INDIAN TREATY RIGHTS; ALASKA NATIVE SUBSIST9 ENCE.

10 Nothing in this Act, including any amendments to the

11 Marine Mammal Protection Act of 1972 made by this

12 Act—

13 (1) alters or is intended to alter any treaty be14 tween the United States and one or more Indian

15 tribes; or

16 (2) affects or otherwise modifies the provisions

17 of section 101(b) of the Marine Mammal Protection

18 Act of 1972 (16 U.S.C. 1371(b)), except as specifi19 cally provided in the amendment made by section

20 4(h) of this Act.

21 SEC. 12. TRANSITION RULE; IMPLEMENTING REGULA22 TIONS.

23 (a) TRANSITION RULE.—Section 114(a)(1) of the

24 Marine Mammal Protection Act of 1972 (16 U.S.C.

25 1383a(a)(1)) is amended by striking ‘‘ending April 1,
66

S 1636 ES

1 1994,’’ and inserting in lieu thereof ‘‘until superseded by

2 regulations prescribed under section 118, or until Decem3 ber 31, 1996, whichever is earlier,’’.

4 (b) IMPLEMENTING REGULATIONS.—Except as pro5 vided otherwise in this Act, or the amendments to the Ma6 rine Mammal Protection Act of 1972 (16 U.S.C. 1361 et

7 seq.) made by this Act, the Secretary of Commerce or the

8 Secretary of the Interior, as appropriate, shall, after notice

9 and opportunity for public comment, promulgate regula10 tions to implement this Act and the amendments made

11 by this Act within 270 days after the date of enactment

12 of this Act.

13 SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.

14 (a) DEFINITIONS.—Section 3 of the Marine Mammal

15 Protection Act of 1972 (16 U.S.C. 1362) is amended—

16 (1) by striking paragraph (17);

17 (2) by redesignating the second paragraph (15)

18 and paragraph (16) as paragraphs (16) and (17),

19 respectively; and

20 (3) in paragraph (12)(B), by striking ‘‘in title

21 III’’ and inserting in lieu thereof ‘‘In section 118

22 and in title IV’’.

23 (b) MARINE MAMMAL HEALTH AND STRANDING RE24 SPONSE.—The Marine Mammal Protection Act of 1972

25 (16 U.S.C. 1361 et seq.) is amended—
67

S 1636 ES

1 (1) by redesignating title III, as added by Pub2 lic Law 102–587 (106 Stat. 5060), as title IV; and

3 (2) by redesignating the sections of that title

4 (16 U.S.C. 1421 through 1421h) as sections 401

5 through 409, respectively.

6 (c) UNUSUAL MORTALITY EVENT FUND.—Section

7 405(a) of the Marine Mammal Protection Act of 1972 (16

8 U.S.C. 1421d(a)), as so redesignated by subsection (b)(2)

9 of this section, is amended by striking ‘‘a fund’’ and in10 serting in lieu thereof ‘‘an interest bearing fund’’.

11 SEC. 14. DEFINITIONS.

12 Section 3 of the Marine Mammal Protection Act of

13 1972 (16 U.S.C. 1362), as amended by this Act, is further

14 amended—

15 (1) in paragraph (12), as redesignated by sec16 tion 15 of this Act, by striking ‘‘harass,’’ each place

17 it appears; and

18 (2) by adding at the end the following new

19 paragraphs:

20 ‘‘(18) The term ‘calculated removal level’ for a

21 marine mammal stock is the product of the following

22 factors:

23 ‘‘(A) the minimum population estimate of

24 the stock;
68

S 1636 ES

1 ‘‘(B) one-half the maximum theoretical or

2 estimated net productivity rate for the stock at

3 a small population size; and

4 ‘‘(C) if the stock is specified under section

5 117(a)(7), listed as endangered or threatened

6 under the Endangered Species Act of 1973 (16

7 U.S.C. 1531 et seq.), or designated as depleted

8 under this Act, a recovery factor that is no

9 greater than 1.0 to ensure that the stock will

10 recover to its optimum sustainable population.

11 The recovery factor under subparagraph (C) shall

12 not be less than 0.1 for an endangered stock, shall

13 not be less than 0.3 for a threatened or depleted

14 stock, and shall not be less than 0.5 for any other

15 stock.

16 ‘‘(19) The term ‘Council’ means any Regional

17 Fishery Management Council established under sec18 tion 302 of the Magnuson Fishery Conservation and

19 Management Act (16 U.S.C. 1852).

20 ‘‘(20) The term ‘harassment’ means any act of

21 approach, pursuit, torment, or annoyance which—

22 ‘‘(A) has the potential to harm a marine

23 mammal in the wild; or

24 ‘‘(B) has the potential to disturb a marine

25 mammal or marine mammal stock in the wild
69

S 1636 ES

1 by causing disruption of behavioral patterns, in2 cluding but not limited to migration, respira3 tion, nursing, breeding, feeding, and sheltering.

4 ‘‘(21) The term ‘incidental take reduction plan’

5 means a plan developed under section 118.

6 ‘‘(22) The term ‘incidental take reduction team’

7 means a team established under section 118.

8 ‘‘(23) The term ‘net productivity rate’ means

9 the annual per capita rate of increase in a stock re10 sulting from additions due to reproduction, less

11 losses due to mortality.

12 ‘‘(24) The term ‘minimum population estimate’

13 means an estimate of the number of animals in a

14 stock that—

15 ‘‘(A) is based on the best available sci16 entific information on abundance, incorporating

17 the precision and variability associated with

18 such information; and

19 ‘‘(B) provides reasonable assurance that

20 the stock size is equal to or greater than the es21 timate.’’.

22 SEC. 15. HUMAN ACTIVITIES WITHIN PROXIMITY OF

23 WHALES.

24 (a) LAWFUL APPROACHES.—In waters of the United

25 States surrounding the State of Hawaii, it is lawful for
70

S 1636 ES

1 a person subject to the jurisdiction of the United States

2 to approach, by any means other than an aircraft, no clos3 er than 100 yards to a humpback whale or any other

4 whale, regardless of whether the approach is made in wa5 ters designated under section 222.31 of title 50, Code of

6 Federal Regulations, as cow/calf waters.

7 (b) TERMINATION OF LEGAL EFFECT OF CERTAIN

8 REGULATIONS.—Subsection (b) of section 222.31 of title

9 50, Code of Federal Regulations, shall cease to be in force

10 and effect.

11 SEC. 16. PINNIPED-FISHERY INTERACTION TASK FORCE.

12 Title I of the Marine Mammal Protection Act of 1972

13 (16 U.S.C. 1371 et seq.), as amended by this Act, is fur14 ther amended by adding at the end the following new sec15 tion:

16 ‘‘SEC. 119. PINNIPED-FISHERY INTERACTION TASK FORCE.

17 ‘‘(a) PINNIPED REMOVAL AUTHORITY.—Notwith18 standing any other provision of this title, the Secretary

19 may permit the lethal removal of pinnipeds in accordance

20 with this section.

21 ‘‘(b) APPLICATION.—Any person may apply to the

22 Secretary to authorize the lethal removal of pinnipeds

23 identified as habitually exhibiting dangerous or damaging

24 behavior that cannot otherwise be deterred. Any such ap25 plication shall include a means of identifying the individ-
71

S 1636 ES

1 ual pinniped or pinnipeds, and shall include a detailed de2 scription of the problem interaction and expected benefits

3 of the removal.

4 ‘‘(c) ACTIONS IN RESPONSE TO APPLICATION.—(1)

5 Within 15 days of receiving an application, the Secretary

6 shall determine whether the application has produced suf7 ficient evidence to warrant establishing a Pinniped-Fish8 ery Interaction Task Force to address the situation de9 scribed in the application. If the Secretary determines that

10 such sufficient evidence has been provided, the Secretary

11 shall establish a Pinniped-Fishery Interaction Task Force

12 and publish a notice in the Federal Register requesting

13 public comment on the application.

14 ‘‘(2) A Pinniped-Fishery Interaction Task Force es15 tablished under paragraph (1) shall consist of designated

16 employees of the Department of Commerce, scientists who

17 are knowledgeable about the pinniped interaction that the

18 application addresses, representatives of affected con19 servation and fishing community organizations, Indian

20 treaty tribes, the States, and such other organizations as

21 the Secretary deems appropriate.

22 ‘‘(3) Within 60 days after establishment, and after

23 reviewing public comments in response to the Federal

24 Register notice, the Pinniped-Fishery Interaction Task

25 Force shall—
72

S 1636 ES

1 ‘‘(A) recommend to the Secretary whether to

2 approve or deny the proposed lethal removal of the

3 pinniped or pinnipeds, including along with the rec4 ommendation a description of the specific pinniped

5 individual or individuals, the proposed location, time,

6 and method of removal, criteria for evaluating the

7 success of the action, and the duration of the au8 thority; and

9 ‘‘(B) suggest nonlethal alternatives, if available

10 and practicable, including a recommended course of

11 action.

12 ‘‘(4) Within 30 days after receipt of recommendations

13 from the Pinniped-Fishery Interaction Task Force, the

14 Secretary shall either approve or deny the application. If

15 such application is approved, the Secretary shall imme16 diately take steps to implement the lethal removal, which

17 shall be performed by Federal or State agencies, or quali18 fied individuals under contract to such agencies.

19 ‘‘(5) After implementation of an approved applica20 tion, the Pinniped-Fishery Interaction Task Force shall

21 evaluate the effectiveness of the permitted lethal removal

22 or alternative actions implemented. If implementation was

23 ineffective in eliminating the problem interaction, the

24 Task Force shall recommend additional actions. If the im25 plementation was effective, the Task Force shall so advise
73

S 1636 ES

1 the Secretary, and the Secretary shall disband the Task

2 Force.

3 ‘‘(d) CONSIDERATIONS.—In considering whether an

4 application should be approved or denied, the Task Force

5 and the Secretary shall consider—

6 ‘‘(1) population trends, feeding habits, the loca7 tion of the pinniped interaction, how and when the

8 interaction occurs, and how many individual

9 pinnipeds are involved;

10 ‘‘(2) past efforts to nonlethally deter such

11 pinnipeds, and whether the applicant has dem12 onstrated that no feasible and prudent alternatives

13 exist and that the applicant has taken all reasonable

14 nonlethal steps without success;

15 ‘‘(3) the extent to which such pinnipeds are

16 causing undue harm, impact, or imbalance with

17 other species in the ecosystem, including fish popu18 lations; and

19 ‘‘(4) the extent to which such pinnipeds are ex20 hibiting behavior that presents an ongoing threat to

21 public safety.

22 ‘‘(e) LIMITATION.—The Secretary shall not approve

23 lethal removal for any pinniped from a species or stock

24 that is—
74

S 1636 ES

1 ‘‘(1) listed as threatened or endangered under

2 the Endangered Species Act of 1973;

3 ‘‘(2) designated as depleted under this Act; or

4 ‘‘(3) specified under section 117(a)(7) of this

5 Act.

6 ‘‘(f) REGIONWIDE PINNIPED-FISHERY INTERACTION

7 STUDY.—(1)(A) The Secretary shall conduct a study, of

8 not less than three high predation areas in anadromous

9 fish migration corridors within the Northwest Region of

10 the National Marine Fisheries Service, on the interaction

11 between fish and pinnipeds. In carrying out the study, the

12 Secretary shall consult with other State and Federal agen13 cies with expertise in pinniped-fishery interaction. The

14 study shall evaluate—

15 ‘‘(i) fish behavior in the presence of predators

16 generally;

17 ‘‘(ii) holding times and passage rates of anad18 romous fish stocks in areas where such anadromous

19 fish are vulnerable to predation;

20 ‘‘(iii) whether additional facilities exist, or could

21 be reasonably developed, that could improve

22 escapement for anadromous fish; and

23 ‘‘(iv) other issues the Secretary considers rel24 evant.
75

S 1636 ES

1 ‘‘(B) Subject to the availability of appropriations, the

2 Secretary shall, not later than 18 months after the date

3 of enactment of this section, transmit a report on the re4 sults of the study required by this paragraph to the Com5 mittee on Commerce, Science, and Transportation of the

6 Senate and the Committee on Merchant Marine and Fish7 eries of the House of Representatives.

8 ‘‘(C) There are authorized to be appropriated to the

9 Secretary $700,000 for the purpose of carrying out the

10 study required by this paragraph.

11 ‘‘(2) The study conducted under this subsection shall

12 not be considered relevant in any determination under

13 subsection (c), nor reviewed by any task force in connec14 tion with considerations under subsection (d), until such

15 study is completed, and may not be used by the Secretary

16 as a reason for delaying or deferring a determination

17 under subsection (C).’’.

18 SEC. 17. MARINE MAMMAL COOPERATIVE AGREEMENTS IN

19 ALASKA.

20 Title I of the Marine Mammal Protection Act of 1972

21 (16 U.S.C. 1371 et seq.), as amended by this Act, is fur22 ther amended by adding at the end the following new sec23 tion:
76

S 1636 ES

1 ‘‘SEC. 120. MARINE MAMMAL COOPERATIVE AGREEMENTS

2 IN ALASKA.

3 ‘‘(a) IN GENERAL.—The Secretary may enter into co4 operative agreements with Alaska Native organizations to

5 conserve marine mammals and provide co-management of

6 subsistence use by Alaska Natives.

7 ‘‘(b) GRANTS.—Agreements entered into under this

8 section may include grants to Alaska Native organizations

9 for, among other purposes—

10 ‘‘(1) collecting and analyzing data on marine

11 mammal populations;

12 ‘‘(2) monitoring the harvest of marine mam13 mals for subsistence use;

14 ‘‘(3) participating in marine mammal research

15 conducted by the Federal Government, States, aca16 demic institutions, and private organizations; and

17 ‘‘(4) developing marine mammal co-manage18 ment structures with Federal and State agencies.

19 ‘‘(c) EFFECT OF JURISDICTION.—Nothing in this

20 section is intended or shall be construed—

21 ‘‘(1) as authorizing any expansion or change in

22 the respective jurisdiction of Federal, State, or tribal

23 governments over fish and wildlife resources; or

24 ‘‘(2) as altering in any respect the existing po25 litical or legal status or Alaska Natives, or the gov-
77

S 1636 ES

1 ernmental or jurisdictional status of Alaska Native

2 communities or Alaska Native entities.

3 ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—There

4 are authorized to be appropriated for the purposes of car5 rying out this section—

6 ‘‘(1) $1,500,000 to the Secretary of Commerce

7 for each of the fiscal years 1994, 1995, 1996, 1997,

8 1998, and 1999; and

9 ‘‘(2) $1,000,000 to the Secretary of the Interior

10 for each of the fiscal years 1994, 1995, 1996, 1997,

11 1998, and 1999.

12 The amounts authorized to be appropriated under this

13 subsection are in addition to the amounts authorized to

14 be appropriated under section 7 of the Act entitled ‘An

15 Act to improve the operation of the Marine Mammal Pro16 tection Act of 1972, and for other purposes’, approved Oc17 tober 9, 1981 (16 U.S.C. 1384).’’.

18 SEC. 18. BERING SEA MARINE ECOSYSTEM PROTECTION.

19 Section 110 of the Marine Mammal Protection Act

20 of 1972 (16 U.S.C. 1380) is amended by striking sub21 section (c) and inserting in lieu thereof the following:

22 ‘‘(c)(1) The Secretary of Commerce, in consultation

23 with the Secretary of the Interior, the Marine Mammal

24 Commission, the State of Alaska, Alaska Native organiza25 tions, and fishery and environmental groups, shall, not
78

S 1636 ES

1 later than 180 days after the date of enactment of the

2 Marine Mammal Protection Act Amendments of 1994, un3 dertake a scientific research program to monitor the

4 health and stability of the Bering Sea marine ecosystem

5 and to resolve uncertainties concerning the causes of popu6 lation declines of marine mammals, sea birds, and other

7 living resources of that marine ecosystem. The program

8 shall address the research recommendations developed by

9 previous workshops on Bering Sea living marine resources,

10 and shall include research on subsistence uses of such re11 sources and ways to provide for the continued opportunity

12 of such uses.

13 ‘‘(2) To the maximum extent practicable, the re14 search program undertaken pursuant to paragraph (1)

15 shall be conducted in Alaska. The Secretary shall utilize,

16 where appropriate, traditional local knowledge and may

17 contract with a qualified Alaska Native organization to

18 conduct such research.

19 ‘‘(3) The Secretary of Commerce, the Secretary of the

20 Interior, and the Commission shall address the status and

21 findings of the research program in their annual reports

22 to Congress required by sections 103(f) and 204.’’.

23 SEC. 19. INTERJURISDICTIONAL FISHERIES ACT OF 1986.

24 Section 308(b) of the Interjurisdictional Fisheries

25 Act of 1986 (16 U.S.C. 4107(b)) is amended by striking
79

S 1636 ES

1 ‘‘$2,500,000 for each of the fiscal years 1989, 1990, 1991,

2 1992, 1993, 1994, and 1995’’ and inserting in lieu thereof

3 ‘‘$65,000,000 for each of the fiscal years 1994 and 1995’’.

4 SEC. 20. COASTAL ECOSYSTEM HEALTH.

5 (a) REQUIREMENT TO CONVEY.—Not later than Sep6 tember 30, 1994, the Secretary of the Navy shall convey,

7 without payment or other consideration, to the Secretary

8 of Commerce, all right, title, and interest to the property

9 comprising that portion of the Naval Base, Charleston,

10 South Carolina, bounded by Hobson Avenue, the Cooper

11 River, the landward extension of the northwest side of Pier

12 R, and the fenceline between the buildings knows as RTC–

13 1 and 200. Such property shall include Pier R, the build14 ings known as RTC–1 and RTC–4, and all walkways and

15 parking areas associated with such buildings and Pier R.

16 (b) SURVEY; EFFECT ON LIABILITY OF SECRETARY

17 OF THE NAVY.—The acreage and legal description of the

18 property to be conveyed pursuant to this section shall be

19 determined by a survey approved by the Secretary of the

20 Navy. Such conveyance shall not release the Secretary of

21 the Navy from any liability arising prior to, during, or

22 after such conveyance as a result of the ownership or occu23 pation of the property by the United States Navy.

24 (c) USE BY NATIONAL OCEANIC AND ATMOSPHERIC

25 ADMINISTRATION.—The property conveyed pursuant to
80

S 1636 ES

1 this section shall be used by the Secretary of Commerce

2 in support of the operations of the National Oceanic and

3 Atmospheric Administration.

4 (d) REVERSION RIGHTS.—Conveyance of the prop5 erty pursuant to this section shall be subject to the condi6 tion that all right, title, and interest in and to the property

7 so conveyed shall immediately be conveyed to the public

8 entity vested with ownership of the remainder of the

9 Charleston Naval Base, if and when—

10 (1) continued ownership and occupation of the

11 property by the National Oceanic and Atmospheric

12 Administration no longer is compatible with the

13 comprehensive plan for reuse of the Charleston

14 Naval Base developed by the community reuse com15 mittee and approved by the Secretary of the Navy;

16 and

17 (2) such public entity provides for relocation of

18 the programs and personnel of the National Oceanic

19 and Atmospheric Administration occupying such

20 property, at no further cost to the United States
81

S 1636 ES

1 Government, to comparable facility, including adja2 cent waterfront and pier, within the Charleston area.

Passed the Senate March 21 (legislative day, February 22), 1994.

Attest:

Secretary.
82

S 1636 ES

S 1636 ES——2

S 1636 ES——3

S 1636 ES——4

S 1636 ES——5

S 1636 ES——6

S 1636 ES——7

S 1636 ES——8

S 1636 ES——9

S 1636 ES——10