II

103D CONGRESS

1ST SESSION S. 1636

To authorize appropriations for the Marine Mammal Protection Act of 1972

and to improve the program to reduce the incidental taking of marine

mammals during the course of commercial fishing operations, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 8 (legislative day, NOVEMBER 2), 1993

Mr. KERRY (for himself, Mr. STEVENS, and Mr. PACKWOOD) introduced the

following bill; which was read twice and referred to the Committee on

Commerce, Science, and Transportation

A BILL

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 1993’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are to—
2

S 1636 IS

1 (1) authorize appropriations to carry out the

2 Marine Mammal Protection Act of 1972 for the fis3 cal years 1994 through 1998;

4 (2) ensure that the incidental take of marine

5 mammals in any fishery, by itself and in combina6 tion with other human activities, does not cause any

7 species or stock of marine mammals to be reduced

8 to or maintained at, for significant periods of time,

9 a level that is below the lower limit of its optimum

10 sustainable population range;

11 (3) avoid restrictions on fishing operations

12 when such restrictions are not necessary to meet the

13 purpose described in paragraph (2);

14 (4) prohibit international lethal taking during

15 commercial fishing, except as authorized through a

16 waiver under section 101(a)(3) of the Marine Mam17 mal Protection Act of 1972 (16 U.S.C. 1371(a)(3));

18 (5) focus efforts on identifying and addressing

19 the most significant problems involving fishery-ma20 rine mammal interactions, considering both the sta21 tus of the affected marine mammal stocks and the

22 numbers of marine mammals that are taken inciden23 tally in each fishery;

24 (6) streamline the procedure for authorizing the

25 incidental taking of marine mammals in commercial
3

S 1636 IS

1 fisheries, consistent with the long-term objective of

2 identifying and taking such steps as may be prac3 ticable to reduce mortality and serious injury inci4 dental to commercial fishing operations to insignifi5 cant levels approaching zero; and

6 (7) develop a cost-effective program for reliably

7 monitoring (A) the levels of incidental take of ma8 rine mammals in commercial fisheries and (B) the

9 size and current population trends of the affected

10 marine mammals stocks.

11 SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

12 (a) COMMERCE DEPARTMENT.—Section 7(a) of the

13 Act entitled ‘‘An Act to improve the operation of the Ma14 rine Mammal Protection Act of 1972, and for other pur15 poses’’, approved October 9, 1981 (16 U.S.C. 1384(a)),

16 is amended to read as follows:

17 ‘‘(a) DEPARTMENT OF COMMERCE.—There are au18 thorized to be appropriated to the Department of Com19 merce, for purposes of carrying out such functions and

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

21 the Marine Mammal Protection Act of 1972, $21,636,000

22 for fiscal year 1994, $22,502,000 for fiscal year 1995,

23 $23,402,000 for fiscal year 1996, $24,338,000 for fiscal

24 year 1997, and $25,311,000 for fiscal year 1998.’’.
4

S 1636 IS

1 (b) INTERIOR DEPARTMENT.—Section 7(b) of the

2 Act entitled ‘‘An Act to improve the operation of the Ma3 rine Mammal Protection Act of 1972, and for other pur4 poses’’, approved October 9, 1981 (16 U.S.C. 1384(b)),

5 is amended to read as follows:

6 ‘‘(b) DEPARTMENT OF INTERIOR.—There are author7 ized to be appropriated to the Department of Interior, for

8 purposes of carrying out such functions and responsibil9 ities as it may have been given under title I of the Marine

10 Mammal Protection Act of 1972, $8,000,000 for fiscal

11 year 1994, $8,600,000 for fiscal year 1995, $9,000,000

12 for fiscal year 1996, $9,400,000 for fiscal year 1997, and

13 $9,900,000 for fiscal year 1998.’’.

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

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

16 Marine Mammal Protection Act of 1972, and for other

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

18 is amended to read as follows:

19 ‘‘(c) MARINE MAMMAL COMMISSION.—There are au20 thorized to be appropriated to the Marine Mammal Com21 mission, for purposes of carrying out such functions and

22 responsibilities as it may have been given under title II

23 of the Marine Mammal Protection Act of 1972,

24 $1,350,000 for fiscal year 1994, $1,400,000 for fiscal year
5

S 1636 IS

1 1995, $1,450,000 for fiscal year 1996, $1,500,000 for fis2 cal year 1997, and $1,550,000 for fiscal year 1998.’’.

3 SEC. 4. INCIDENTAL TAKING OF ENDANGERED AND

4 THREATENED SPECIES.

5 (a) IN GENERAL.—Section 101(a)(4) of the Marine

6 Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(4))

7 is amended to read as follows:

8 ‘‘(4)(A) The Secretary may allow the incidental, but

9 not the intentional, taking, by citizens of the United

10 States while engaging in commercial fishing operations, of

11 marine mammals from a species or stock designated under

12 the Act as depleted because of its listing as an endangered

13 or threatened species under the Endangered Species Act

14 of 1973 (16 U.S.C. 1531 et seq.) if the Secretary, after

15 notice and opportunity for public comment, determines

16 that such taking is pursuant to a statement issued by the

17 Secretary for such taking under section 7 of such Act (16

18 U.S.C. 1536).

19 ‘‘(B) Sections 103 and 104 shall not apply to the tak20 ing of marine mammals under the authority of this para21 graph.’’.

22 (b) CONFORMING AMENDMENT.—Section 7(b)(4)(C)

23 of the Endangered Species Act of 1973 (16 U.S.C.

24 1536(b)(4)(C)) is amended by inserting ‘‘101(a)(4) or’’

25 immediately before ‘‘101 (a)(5)’’ each place it appears.
6

S 1636 IS

1 SEC. 5. CONSERVATION PLANS.

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

3 of 1972 (16 U.S.C. 13836(b)) is amended by adding at

4 the end the following new paragraph:

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

6 taking plan is necessary to reduce the incidental taking

7 of marine mammals in the course of commercial fishing

8 operations from a stock identified as a critical stock under

9 section 118(c), any conservation plan required under this

10 subsection for such stock shall only address non-incidental

11 takings.’’.

12 SEC. 6. TAKING OF MARINE MAMMALS INCIDENTAL TO

13 COMMERCIAL FISHING OPERATIONS.

14 Title I of the Marine Mammal Protection Act of 1972

15 (16 U.S.C. 1371 et seq.) is amended by adding at the end

16 the following new section:

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

18 COMMERCIAL FISHING OPERATIONS.

19 ‘‘(a) IN GENERAL.—(1) Except as provided in section

20 114 and in paragraphs (2), (3), and (4) of this section,

21 and notwithstanding section 101, the provisions of this

22 section shall govern the incidental taking of marine mam23 mals in the course of commercial fishing operations by

24 persons using vessels of the United States or vessels which

25 have valid fishing permits issued by the Secretary in ac26 cordance with section 204(b) of the Magnuson Fishery
7

S 1636 IS

1 Conservation and Management Act (16 U.S.C. 1824(b)).

2 The Secretary shall develop and implement incidental tak3 ing plans under this section to reduce the incidental lethal

4 taking of marine mammals, from stocks listed as critical

5 stocks under subsection (c), to a level below the calculated

6 acceptable removal level.

7 ‘‘(2) Section 101(a)(4), and not this section, shall

8 govern the incidental taking of marine mammals from spe9 cies or stocks designated under this Act as depleted on

10 the basis of their listing as threatened or endangered spe11 cies under the Endangered Species Act of 1973.

12 ‘‘(3) Sections 104(h) and 306, and not this section,

13 shall govern the taking of marine mammals in the course

14 of commercial purse seine fishing for yellowfin tuna in the

15 eastern tropical Pacific Ocean.

16 ‘‘(4) This section shall not govern the taking of ma17 rine mammals from an experimental population of Califor18 nia sea otters to which the Act of November 7, 1986 (Pub19 lic Law 99–625; 100 Stat. 3500) applies.

20 ‘‘(5) Sections 103 and 104 shall not apply to the inci21 dental taking of marine mammals under the authority of

22 this section.

23 ‘‘(b) SCIENTIFIC CONSULTATION.—In implementing

24 the incidental taking program under this section, the Sec25 retary shall seek the advice of individuals with expertise
8

S 1636 IS

1 in marine mammal biology and ecology, population dy2 namics and modeling, and commercial fishing technology

3 and practices. Such advice should be sought with respect

4 to information available, and actions proposed, for such

5 implementation, including—

6 ‘‘(1) information provided in connection with

7 stock assessments under this section;

8 ‘‘(2) studies needed to resolve uncertainties re9 garding stock separation, stock abundance, or trends

10 and factors affecting distribution, size, or productiv11 ity of stocks;

12 ‘‘(3) studies needed to resolve uncertainties in

13 determining marine mammal species, numbers, ages,

14 and gender, and the reproductive status of stocks;

15 and

16 ‘‘(4) research to identify modifications in fish17 ing gear and fishing practices likely to reduce the

18 mortality and serious injury of marine mammals in19 cidental to commercial fishing operations.

20 ‘‘(c) STOCK ASSESSMENTS.—(1) Using the best sci21 entific information available and in accordance with this

22 subsection, the Secretary shall prepare and issue, and

23 thereafter (as appropriate) revise, a stock assessment for

24 each marine mammal stock which occurs in waters under
9

S 1636 IS

1 the jurisdiction of the United States. The stock assess2 ment shall include—

3 ‘‘(A) a definition of the stock by species of sub4 species and its spatial and temporal distribution;

5 ‘‘(B) the best available estimates of the stock’s

6 population abundance, realistic minimum population

7 size, and current population trend;

8 ‘‘(C) estimates of the total lethal take from the

9 stock by source and, for a stock designated under

10 this subsection as a critical stock, other factors that

11 may impede recovery of the stock, including impacts

12 on marine mammal habitat and prey; and

13 ‘‘(D) a description of any commercial fishery

14 that interacts with the stock, including—

15 ‘‘(i) the approximate number of vessels

16 participating in the fishery;

17 ‘‘(ii) the approximate incidental lethal and

18 serious injury take from the stock by such fish19 ery;

20 ‘‘(iii) seasonal or area differences in levels

21 of such incidental lethal or serious injury take;

22 and

23 ‘‘(iv) the rate of incidental mortality in the

24 stock caused by such fishing, based on a unit

25 of fishing effort;
10

S 1636 IS

1 ‘‘(E) a determination as to the status of the

2 stock, including whether the stock is determined to

3 be within its optimum sustainable population range,

4 is designated as depleted under this Act, is listed as

5 threatened or endangered under the Endangered

6 Species Act of 1973, or is proposed for listing as a

7 critical stock under subparagraph (G);

8 ‘‘(F) a determination of the calculated accept9 able removal level for the stock and the factors used

10 to calculate it, including a recovery factor if the

11 stock is below its optimum sustainable population;

12 and

13 ‘‘(G) designation of the stock (based on a sci14 entific analysis of the stock’s population trend and

15 population size, the level of total lethal take from the

16 stock from all sources, and the best available esti17 mates of net productivity at the maximum net pro18 ductivity level) for listing in one of the following cat19 egories:

20 ‘‘(i) Class 1, consisting of stocks whose

21 population size is declining, or whose population

22 trend is unknown and whose realistic minimum

23 population is less than 10,000, and from which

24 the total annual lethal take exceeds the net pro-
11

S 1636 IS

1 ductivity of the population when it is at its

2 maximum net productivity level.

3 ‘‘(ii) Class 2, consisting of stocks—

4 ‘‘(I) whose population size is declin5 ing, or whose population trend is unknown

6 and whose realistic minimum population is

7 less than 10,000; and from which the total

8 annual lethal take is between 20 percent

9 and 100 percent of the net productivity of

10 the stock’s population when it is at its

11 maximum net productivity level; or

12 ‘‘(II) whose population size is stable,

13 or whose population trend is unknown and

14 the realistic minimum population is greater

15 than 10,000 but less than 100,000; and

16 from which the total annual lethal take ex17 ceeds the net productivity of the stock’s

18 population when it is at its maximum net

19 productivity level.

20 ‘‘(iii) Class 3, consisting of stocks—

21 ‘‘(I) whose population size is declin22 ing, or whose population trend is unknown

23 and whose realistic minimum population is

24 less than 10,000; and from which the total

25 annual lethal take is less than 20 percent
12

S 1636 IS

1 of the net productivity of the stock’s popu2 lation when it is at its maximum net pro3 ductivity level;

4 ‘‘(II) whose population size is stable,

5 or whose population trend is unknown and

6 whose realistic minimum population is

7 greater than 10,000 but less than 100,000;

8 and from which the total annual lethal

9 take is between 20 percent and 100 per10 cent of the net productivity of the stock’s

11 population when it is at its maximum net

12 productivity level; or

13 ‘‘(III) whose population size is in14 creasing, or whose population trend is un15 known and whose realistic minimum popu16 lation is greater than 100,000; and from

17 which the total annual lethal take exceeds

18 the net productivity of the stock’s popu19 lation when it is at its maximum net pro20 ductivity level.

21 ‘‘(iv) Class 4, consisting of stocks—

22 ‘‘(I) whose population size is stable, or

23 whose population trend is unknown and

24 the realistic minimum population is greater

25 than 100,000; and from which the total
13

S 1636 IS

1 annual lethal take is between 20 percent

2 and 100 percent of the net productivity of

3 the stock’s population when it is at its

4 maximum net productivity level; or

5 ‘‘(II) whose population size is increas6 ing, or whose population trend is unknown

7 and whose realistic minimum population is

8 greater than 100,000; and from which the

9 total annual lethal take is between 20 per10 cent and 100 percent of the net productiv11 ity of the stock’s population when it is at

12 its maximum net productivity level.

13 ‘‘(v) Class 5, consisting of stocks whose

14 population size is increasing, or whose popu15 lation trend is unknown and the realistic mini16 mum population is greater than 100,000; and

17 from which the total annual lethal take is less

18 than 20 percent of the net productivity of the

19 stock’s population when it is at its maximum

20 net productivity level.

21 ‘‘(2) Not later than 240 days after the date of enact22 ment of this section, the Secretary shall issue a draft of

23 each stock assessment required by this subsection, after

24 seeking advice from the experts described in subsection

25 (b). The Secretary shall publish in the Federal Register
14

S 1636 IS

1 a notice of availability of the draft and provide an oppor2 tunity for public review and comment during a period of

3 not to exceed 60 days.

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

5 public comment period on such preliminary stock assess6 ment, the Secretary shall publish in the Federal Register

7 a final stock assessment, after consideration of advice, rec8 ommendations, and comments of experts and the general

9 public and the best scientific information available.

10 ‘‘(4) The Secretary shall review stock assessments in

11 accordance with this subsection, and obtain advice and

12 recommendations from experts—

13 ‘‘(A) on an annual basis for stocks listed as

14 critical stocks or for which new information is avail15 able; and

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

17 marine mammal stocks.

18 The Secretary shall revise such assessments after notice

19 and opportunity for public comment, if the review indi20 cates revision is necessary.

21 ‘‘(d) INCIDENTAL TAKING PLAN.—(1) The Secretary

22 shall develop and implement an incidental taking plan de23 signed to assist in the recovery of each marine mammal

24 stock that is listed as a critical stock and interacts with

25 commercial fisheries. Such plan shall be developed in con-
15

S 1636 IS

1 sultation with the incidental take team established for the

2 plan under this subsection. If there is insufficient funding

3 available to develop and implement an incidental taking

4 plan for all critical stocks that interact with commercial

5 fisheries, the Secretary shall give highest priority to the

6 development and implementation of Class 1 stocks. Within

7 a particular class of critical stocks that interact with com8 mercial fisheries, the Secretary shall give highest priority

9 to the development and implementation of plans for stocks

10 that the Secretary considers the most critical within the

11 class.

12 ‘‘(2) Each incidental taking plan developed under this

13 subsection for a critical stock shall include the following:

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

15 contained in the stock assessment published under

16 subsection (c) and any new information that may be

17 available.

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

19 number and percentage of animals from the stock

20 that are being killed or seriously injured each year

21 as a result of commercial fishing activities.

22 ‘‘(C) Proposed management measures or vol23 untary actions for the reduction of incidental taking

24 by commercial fisheries. Such proposed measures

25 and actions shall be developed in light of the plan’s
16

S 1636 IS

1 immediate objective of reducing incidental lethal and

2 serious injury take by commercial fisheries by the

3 same proportion as their proportion of the total le4 thal and serious injury take from all sources.

5 ‘‘(D) A long-term strategy to reduce, to insig6 nificant rates approaching zero within 10 years, the

7 incidental mortality and serious injury within the

8 stock that results from commercial fishing oper9 ations.

10 ‘‘(3) Each incidental taking plan shall include pro11 jected dates for achieving the objectives of the plan. If the

12 total lethal take exceeds the calculated acceptable removal

13 level, the plan shall include measures the Secretary ex14 pects will reduce, within 6 months after commencement

15 of fishing, the share of the lethal take that exceeds the

16 calculated acceptable removal level and is attributable to

17 commercial fisheries.

18 ‘‘(4)(A) At the earliest possible time (not later than

19 120 days) after the Secretary issues a final stock assess20 ment listing a stock as a critical stock, the Secretary

21 shall—

22 ‘‘(i) establish an incidental take team for such

23 critical stock and appoint the members of such team

24 in accordance with subparagraph (C); and
17

S 1636 IS

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

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

3 appointed members, the full geographic range of

4 such critical stock, and all the commercial fisheries

5 that have lethal incidental takings from such stock.

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

7 team to deal with a stock that extends over one or more

8 regions, or multiple stocks within a region, if the Secretary

9 determines that doing so would facilitate the development

10 and implementation of plans required under this sub11 section.

12 ‘‘(C) Members of incidental take teams shall be indi13 viduals knowledgeable and experienced regarding the

14 measures to conserve such stocks and to reduce any

15 takings from such stock incidental to commercial fishing

16 operations. Members may include representatives of Fed17 eral and State agencies, regional fishery management

18 councils and commissions, academic and scientific organi19 zations, environmental and fishery groups, and others as

20 the Secretary considers appropriate. Incidental take teams

21 shall, to the maximum extent practicable, consist of an

22 equitable balance among representatives of government,

23 resource user interests, and non-user interests. Incidental

24 take teams shall not be subject to the Federal Advisory

25 Committee Act (5 App. U.S.C.) but their meetings shall
18

S 1636 IS

1 be open to the public, after timely publicity on the time

2 and place of such meetings.

3 ‘‘(D) Members of incidental take teams shall serve

4 without compensation, but shall be reimbursed by the Sec5 retary for reasonable travel costs and expenses incurred

6 in performing their duties as members of the team.

7 ‘‘(E) Nothing in this section shall be construed to

8 constrain the Secretary from establishing priority among

9 classes of critical stocks covered by this subsection and

10 exercising discretion (in consultation with scientific ex11 perts) to address such stocks in any fiscal year according

12 to that priority.

13 ‘‘(5) Where the total lethal take from such a critical

14 stock is estimated to be greater than the calculated accept15 able removal level established in the stock assessment, the

16 following procedures shall apply in the development of the

17 incidental taking plan for the stock:

18 ‘‘(A) Not later than 6 months after the date of

19 establishment of an incidental take team for the

20 stock, the team shall submit a draft incidental tak21 ing plan for the critical stock to the Secretary, con22 sistent with the other provisions of this section.

23 ‘‘(B)(i) The Secretary shall take the draft inci24 dental taking plan into consideration and, not later

25 than 60 days after the submission of the draft plan
19

S 1636 IS

1 by the team, the Secretary shall publish in the Fed2 eral Register a proposed incidental taking plan and

3 proposed regulations to implement such plan, for

4 public review and comment.

5 ‘‘(ii) In the event that the incidental take team

6 does not submit a draft plan to the Secretary within

7 6 months, the Secretary shall, not later than 8

8 months after the establishment of the team, publish

9 in the Federal Register a proposed incidental taking

10 plan and implementing regulations, for public review

11 and comment.

12 ‘‘(C) Not later than 60 days after the close of

13 the comment period required under subparagraph

14 (B), the Secretary shall issue a final incidental tak15 ing plan and implementing regulations, consistent

16 with the other provisions of this section.

17 ‘‘(D) The Secretary and the incidental take

18 team shall meet every 6 months to monitor the im19 plementation of the final incidental taking plan until

20 such time that the Secretary determines that meet21 ings are no longer necessary.

22 ‘‘(E) The Secretary may, in consultation with

23 the incidental take team, amend the incidental tak24 ing plan and implementing regulations as necessary,
20

S 1636 IS

1 consistent with the procedures in this section for the

2 issuance of such plans and regulations.

3 ‘‘(6) Where the total lethal take from a critical stock

4 to which this subsection applies is estimated to be less

5 than the calculated acceptable removal level established in

6 the stock assessment, the following procedures shall apply

7 in the development of the incidental taking plan for the

8 stock:

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

10 of establishment of an incidental take team for the

11 stock, the team shall submit a draft incidental tak12 ing plan for the stock to the Secretary, consistent

13 with the other provisions of this section.

14 ‘‘(B)(i) The Secretary shall take the draft inci15 dental taking plan into consideration and, not later

16 than 60 days following the submission of the draft

17 plan by the team, the Secretary shall publish in the

18 Federal Register a proposed incidental taking plan

19 and implementing regulations, for public review and

20 comment.

21 ‘‘(ii) In the event that the incidental take team

22 does not submit a draft plan to the Secretary within

23 11 months, the Secretary shall, not later than 13

24 months after the establishment of the team, publish

25 in the Federal Register a proposed incidental taking
21

S 1636 IS

1 plan and implementing regulations, for public review

2 and comment.

3 ‘‘(C) Not later than 60 days after the close of

4 the comment period required under subparagraph

5 (B), the Secretary shall issue a final incidental tak6 ing plan and implementing regulations, consistent

7 with the other provisions of this section.

8 ‘‘(D) The Secretary and the incidental take

9 team shall meet on an annual basis to monitor the

10 implementation of the final incidental taking plan

11 until such time that the Secretary determines that

12 formal meetings are no longer necessary.

13 ‘‘(E) The Secretary may, in consultation with

14 the incidental take team, amend the incidental tak15 ing plan and implementing regulations as necessary,

16 consistent with the procedures in this section for the

17 issuance of such plans and regulations.

18 ‘‘(7) If the Secretary finds, prior to the issuance of

19 a final incidental taking plan, that the incidental taking

20 of marine mammals in a commercial fishery is having an

21 immediate and significant adverse impact on the stock to

22 which the plan would apply, the Secretary may, after con23 sultation with appropriate Regional Fishery Management

24 Councils and State fishery managers, prescribe emergency

25 regulations to reduce, to the maximum extent practicable,
22

S 1636 IS

1 such incidental taking. In prescribing such emergency reg2 ulations, the Secretary shall take into account the econom3 ics of the fishery concerned and the availability of existing

4 technology to prevent or minimize incidental taking of ma5 rine mammals, and shall conform such regulations, to the

6 maximum extent practicable, with existing State or re7 gional fishery management plans. Such regulations—

8 ‘‘(A) shall be published in the Federal Register

9 together with the reasons therefor;

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

11 180 days, until such time as a final incidental taking

12 plan for the stock is issued, or until the end of the

13 applicable fishing season, whichever is earlier; and

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

15 earlier date by publication in the Federal Register of

16 a notice of termination if the Secretary determines

17 the reasons for the emergency regulations no longer

18 exist.

19 ‘‘(e) REGULATORY MEASURES.—(1)(A) The Sec20 retary shall, after notice and opportunity for public com21 ment, promulgate regulations to implement an incidental

22 taking plan necessary to accomplish the objectives set

23 forth in subsection (i).

24 ‘‘(B) Nothing in this paragraph shall be construed

25 to limit the authority of the Secretary to modify the inci-
23

S 1636 IS

1 dental taking plan at the request of the appropriate Re2 gional Fishery Management Council or State or tribal

3 management authority.

4 ‘‘(2) In implementing an incidental taking plan issued

5 pursuant to this section, the Secretary may promulgate

6 regulations which include, but are not limited to, measures

7 to—

8 ‘‘(A) establish fishery-specific incidental lethal

9 taking limits or restrict commercial fisheries by time

10 or area;

11 ‘‘(B) register commercial fishing vessels as set

12 forth in subsection (f);

13 ‘‘(C) require the use of alternative gear tech14 niques and new technologies, encourage the develop15 ment of such gear or technology, or convene expert

16 skippers’ panels;

17 ‘‘(D) educate commercial fishermen and other

18 individuals, through workshops and other means, on

19 the importance of reducing the incidental lethal tak20 ing of marine mammals from critical stocks; and

21 ‘‘(E) monitor the level of the incidental lethal

22 taking of marine mammals in the course of commer23 cial fishing operations, as set forth in subsection (h).

24 ‘‘(f) REGISTRATION OF VESSELS.—(1) Subject to the

25 provisions of this subsection, the Secretary may develop
24

S 1636 IS

1 a system to register commercial fishing vessels and to as2 sess fishery effort, where such system is necessary, to un3 derstand the interaction between commercial fisheries and

4 marine mammal stocks in a region.

5 ‘‘(2) In developing a registration system to under6 stand such interactions, the Secretary shall rely upon ex7 isting Federal, State, or tribal data bases which provide

8 the following information about an affected commercial

9 fishery:

10 ‘‘(A) The approximate number of vessels par11 ticipating in the fishery.

12 ‘‘(B) The identity of specific vessels to be reg13 istered.

14 ‘‘(C) The owner of operator, or both, of such

15 vessels.

16 ‘‘(D) The time period in which the fishery oc17 curs.

18 ‘‘(E) The approximate geographic location, or

19 its official reporting area where the fishery occurs.

20 ‘‘(F) The description of fishing gear, including

21 the appropriate unit of fishery effort.

22 ‘‘(3) The incidental take teams shall advise the Sec23 retary as to whether existing Federal, State, or tribal data

24 bases are capable of being utilized to understand the inter25 action between commercial fisheries and critical stocks in
25

S 1636 IS

1 a region. If the Secretary determines, after consultation

2 with such a team, that data bases for specific fisheries

3 which provide the information required under paragraph

4 (2) are not available to the Secretary or the team, the

5 Secretary may require through regulation separate reg6 istration to obtain the information set forth in paragraph

7 (2).

8 ‘‘(4)(A) The Secretary may, as a condition of accept9 ing a Federal, State, or tribal registration as adequate for

10 the purposes of this section, require such registration to

11 be supplemented by the requirement that the vessels so

12 registered display a decal or other evidence, issued by the

13 registering authority, that indicates the registration is cur14 rent.

15 ‘‘(B) To the extent the Secretary determines that

16 separate registration is required for a specific fishery pur17 suant to paragraph (3), the Secretary is authorized to

18 charge a fee for the issuance of a decal or other evidence

19 indicating the registration is current. The fee charged

20 under this subparagraph shall not exceed the administra21 tive costs incurred in issuing the decal or other evidence.

22 Fees collected under this subparagraph shall be available

23 to the Under Secretary of Commerce for Oceans and At24 mosphere for expenses incurred in the issuances of such

25 decal or other evidence.
26

S 1636 IS

1 ‘‘(5) The costs of maintaining a separate registry sys2 tem for a specific fishery pursuant to paragraph (3) shall

3 be covered through Federal appropriations.

4 ‘‘(6) The Secretary may include within a registration

5 system under this subsection only those vessels that fish

6 in a fishery that has frequent or occasional incidental tak7 ing of marine mammals.

8 ‘‘(g) REPORTING REQUIREMENT.—The owner or op9 erator of a commercial fishing vessel subject to this Act

10 shall report all incidental lethal and serious injury takings

11 of marine mammals in the course of commercial fishing

12 operations to the Secretary at the end of each fishing trip

13 on a standard form to be developed by the Secretary under

14 this section. Such form shall be readable by computer or

15 other machine and shall require the vessel owner or opera16 tor to provide the following:

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

18 tribal registration numbers of the registered vessel.

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

20 or operator.

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

22 ‘‘(4) The species of marine mammal incidentally

23 killed or seriously injured, and the date and time of

24 such incidental taking.
27

S 1636 IS

1 ‘‘(5) The time and period in which the fishery

2 occurred.

3 ‘‘(6) The approximate geographic location of

4 the incidental taking.

5 ‘‘(h) MONITORING.—(1) The Secretary may establish

6 a vessel observer program to monitor incidental lethal and

7 serious injury takings of marine mammals during the

8 course of commercial fishing operations. The purpose of

9 the monitoring program shall be to develop independent

10 information on interactions between commercial fisheries

11 and marine mammals and to verify reporting of incidental

12 lethal and serious injury takings under subsection (g). Ob13 servers may perform other tasks including, but not limited

14 to—

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

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

17 sighted during the observation period; and

18 ‘‘(C) other scientific investigations, including

19 collection of marine mammal tissues.

20 ‘‘(2) Commercial fishing vessels shall carry observers

21 on board, when requested by the Secretary, to the extent

22 that the vessel can safely accommodate the observer. The

23 owner or operator of a vessel who refuses to carry an ob24 server shall be subject to a civil penalty, pursuant to sub25 section (j).
28

S 1636 IS

1 ‘‘(3)(A) The Secretary may establish an incidental

2 take monitoring program to achieve the objectives of this

3 paragraph which may include, but not be limited to, direct

4 observation of fishing activities from vessels, airplanes,

5 video observation, or points on shore.

6 ‘‘(B) Individuals engaged in such monitoring pro7 gram shall collect scientific information on fisheries con8 sistent with the requirements of this paragraph.

9 ‘‘(4) The cost of the monitoring program shall be

10 funded by Federal appropriations, and Secretary shall al11 locate available observers among fisheries consistent with

12 the following priority:

13 ‘‘(A) The highest priority shall be given to fish14 eries that incidentally lethally take or seriously in15 jure animals from (i) stocks designated as depleted

16 on the basis of their listing as endangered or threat17 ened species under the Endangered Species Act of

18 1993, or (ii) critical stocks.

19 ‘‘(B) The second highest priority shall be given

20 to fisheries other than those described in subpara21 graph (A) in which the greatest incidental lethal

22 take and serious injury of marine mammals occurs.

23 When the Secretary determines the sufficient observation

24 of a specific fishery has occurred, the Secretary may dis25 continue such observation and direct available observer re-
29

S 1636 IS

1 sources to the next fishery in priority. Nothing in this sub2 section precludes the Secretary from resuming observation

3 of a fishery when necessary to achieve additional verifica4 tion of the nature of interactions with marine mammal

5 stocks.

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

7 may initiate, where necessary, additional monitoring pro8 grams to gather information on the interaction between

9 commercial fisheries and marine mammal stocks not iden10 tified as critical stocks. Such information may be used to

11 verify—

12 ‘‘(A) the numbers of incidental lethal and seri13 ous injury takings of marine mammals in a commer14 cial fishery, and the rate of such takings;

15 ‘‘(B) impacts on marine mammals of changes in

16 fishing patterns or technologies; and

17 ‘‘(C) the accuracy of reporting, by vessel owners

18 and operators, of the lethal and serious injury

19 takings of commercial fishing vessels.

20 ‘‘(i) ZERO MORTALITY RATE GOAL.—(1) Commercial

21 fisheries shall reduce their rates of incidental lethal or se22 rious injury taking, to insignificant rates approaching zero

23 within 10 years after the date of enactment of this section.
30

S 1636 IS

1 ‘‘(2) Fisheries which maintain insignificant serious

2 injury and mortality rate levels approaching zero shall not

3 be required to further reduce their mortality rates.

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

5 Secretary shall review the progress, by fishery, toward re6 ducing mortality and serious injury rates to insignificant

7 rates approaching zero. The Secretary shall submit to the

8 Committee on Commerce, Science, and Transportation of

9 the Senate and the Committee on Merchant Marine and

10 Fisheries of the House of Representatives a report setting

11 forth the results of such review within 1 year after com12 mencement of the review. The Secretary shall note any

13 fishery for which no information exists on its incidental

14 serious injury or mortality rate of marine mammals.

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

16 paragraph (3) that the rate of incidental lethal and serious

17 injury taking in a fishery is not consistent with paragraph

18 (1), then the Secretary shall make recommendations to the

19 Committee on Commerce, Science, and Transportation of

20 the Senate and the Committee on Merchant Marine and

21 Fisheries of the House of Representatives on further ac22 tions to achieve the goal specified in paragraph (1).

23 ‘‘(j) PENALTIES.—(1) Except as provided in para24 graph (2), a person who violates this section, or any regu25 lations thereunder, may be assessed a civil penalty of not
31

S 1636 IS

1 more than $5,000 for each violation, and shall not be sub2 ject to penalty under any other provision of this Act. The

3 penalty shall reflect the severity of the violation in relation

4 to preventing the reduction of incidental lethal taking of

5 marine mammals, or the accomplishment of other express

6 objectives of this section.

7 ‘‘(2) Intentional killing of marine mammals, or fail8 ure to report incidental lethal takings of marine mammals

9 as required by this section, shall be subject to the penalties

10 in section 105.

11 ‘‘(3) Each owner or operator of a vessel engaged in

12 a fishery that has a remote likelihood of or no known inci13 dental taking of marine mammals, and the master and

14 crew members of such vessel, shall not be subject to pen15 alties under this section or any other provision of this Act

16 for the incidental taking of marine mammals if such owner

17 or operator reports to the Secretary in accordance with

18 subsection (f)(4).

19 ‘‘(k) VOLUNTARY MEASURES.—Nothing in this sec20 tion shall be construed to limit the Secretary’s authority

21 to permit voluntary measures to be utilized in reducing

22 the incidental taking of marine mammals in commercial

23 fisheries.

24 ‘‘(l) DEFINITIONS.—For purposes of this section—
32

S 1636 IS

1 ‘‘(1) the term ‘calculated acceptable removal

2 level’ means the realistic minimum population of a

3 stock, multiplied by the net productivity rate of the

4 stock, multiplied (if applicable) by a recovery factor;

5 ‘‘(2) the term ‘critical stock’ means a marine

6 mammal stock that is listed as a Class 1 or 2 stock

7 pursuant to subsection (c)(1)G);

8 ‘‘(3) the term ‘incidental take team’ means an

9 incidental take team established under subsection

10 (d)(4);

11 ‘‘(4) the term ‘incidental taking plan’ means an

12 incidental taking plan developed under subsection

13 (d);

14 ‘‘(5) the term ‘maximum net productivity level’

15 means the population size of a stock which results

16 in the greatest net productivity;

17 ‘‘(6) the term ‘net productivity’ means the esti18 mated or theoretical annual increase in population

19 numbers resulting from additions to the population

20 due to reproduction, less the losses due to mortality;

21 ‘‘(7) the term ‘net productivity rate’ means the

22 net annual per capita rate of increase of a stock at

23 is maximum net productivity level;
33

S 1636 IS

1 ‘‘(8) the term ‘non-critical stock’ means a ma2 rine mammal stock that is listed as a Class 3, 4, or

3 5 stock pursuant to subsection (c)(1)(G);

4 ‘‘(9) the term ‘realistic minimum population’

5 means an estimate of the number of animals in a

6 stock that provides reasonable assurance that the

7 population size is equal to or greater than the esti8 mate; and

9 ‘‘(10) the term ‘recovery factor’ means the

10 number that is applied to the calculation of a cal11 culated acceptable removal level to provide reason12 able assurance that a stock will recover to its opti13 mum sustainable population.’’.

14 SEC. 7. PENALTIES; PROHIBITIONS.

15 (a) CIVIL PENALTIES.—Section 105(a)(1) of the Ma16 rine Mammal Protection Act of 1972 (16 U.S.C.

17 1375(a)(1)) is amended by inserting ‘‘, except as provided

18 in section 118(j),’’ immediately after ‘‘thereunder’’.

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

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

21 1375(b)) is amended by inserting ‘‘(except as provided in

22 section 118(j))’’ immediately after ‘‘thereunder’’.

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

24 Mammal Protection Act of 1972 (16 U.S.C. 1372(a)) is
34

S 1636 IS

1 amended by striking ‘‘and 114’’ and inserting in lieu

2 thereof ‘‘114, and 118’’.

3 SEC. 8. ALASKA HARBOR SEALS AND GULF OF MARINE

4 HARBOR PORPOISES.

5 Notwithstanding any other provision of this Act, in6 cluding section 118 of the Marine Mammal Protection Act

7 of 1972 (as added by this Act), the Secretary of Commerce

8 shall establish an incidental take team for the harbor seal

9 stock in Alaska and for the harbor porpoise stock in the

10 Gulf of Maine, within 60 days after the date of enactment

11 of this Act. The incidental take teams shall begin work

12 immediately on a draft incidental taking plan in accord13 ance with such section 118, and shall use the best sci14 entific information available. The draft incidental taking

15 plan shall be reviewed by the Secretary, after consultation

16 with scientific experts as described in subsection (b) of

17 such section 118 and after notice and opportunity for pub18 lic comment, and shall be approved and implemented as

19 quickly as practicable.

20 SEC. 9. AUTHORIZATION TO DETER MARINE MAMMALS.

21 Section 101 of the Marine Mammal Protection Act

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

23 end the following new subsection:
35

S 1636 IS

1 ‘‘(d)(1) Except as provided in paragraph (2), the pro2 visions of this Act shall not apply to the use by any person

3 of measures to deter marine mammals from—

4 ‘‘(A) damaging the gear or catch of commercial

5 or recreational fishermen;

6 ‘‘(B) damaging private or public property; or

7 ‘‘(C) endangering personal safety,

8 so long as such measures do not result in marine mammal

9 death or serious injury.

10 ‘‘(2) If the Secretary determines, using the best sci11 entific information available, that certain forms of deter12 rence have a significant adverse effect on marine mam13 mals, the Secretary may prohibit such deterrent methods

14 through regulation under this Act.

15 ‘‘(3) The authority to deter marine mammals pursu16 ant to paragraph (1) applies to all marine mammals, in17 cluding all stocks designated as depleted under this Act.’’.

18 SEC. 10. TREATY RIGHTS.

19 Nothing in this Act, including any amendments made

20 by this Act, is intended to abrogate or diminish existing

21 Indian treaty fishing or hunting rights, and regulation of

22 Native American fishing and hunting activities shall be

23 limited to measures consistent with existing treaty rights.
36

S 1636 IS

1 SEC. 11. TRANSITION RULE.

2 Section 114(a)(1) of the Marine Mammal Protection

3 Act of 1972 (16 U.S.C. 1383a(a)(1)) is amended by strik4 ing ‘‘ending April 1, 1994,’’ and inserting in lieu thereof

5 ‘‘until superseded by regulations prescribed under section

6 118,’’.

7 SEC. 12. TECHNICAL AMENDMENTS.

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

9 Protection Act of 1972 (16 U.S.C. 1362) is amended by

10 redesignating the last three paragraphs as paragraphs

11 (16), (17), and (18), respectively.

12 (b) MARINE MAMMAL HEALTH AND STRANDING RE13 SPONSE.—The Marine Mammal Protection Act of 1972

14 (16 U.S.C. 1361 et seq.) is amended—

15 (1) by redesignating title III, as added by Pub16 lic Law 102–587 (106 Stat. 5060), as title IV; and

17 (2) by redesignating the sections of that title

18 (16 U.S.C. 1421 through 1421h) as sections 401

19 through 409, respectively.

Æ

S 1636 IS——2

S 1636 IS——3