Calendar No. 348

103D CONGRESS

2D SESSION S. 1636

[Report No. 103–220]

A BILL

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

JANUARY 25, 1994

Reported with amendments
II

Calendar No. 348

103D CONGRESS

2D SESSION S. 1636

[Report No. 103–220]

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

JANUARY 25, 1994

Reported by Mr. HOLLINGS, with amendments

[Omit the part struck through and insert the part printed in italic]

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Marine Mammal Pro3 tection Act Amendments of 1993’’.

4 SEC. 2. PURPOSES.

5 The purposes of this Act are to—

6 (1) authorize appropriations to carry out the

7 Marine Mammal Protection Act of 1972 for the fis8 cal years 1994 through 1998;

9 (2) ensure that the incidental take of marine

10 mammals in any fishery, by itself and in combina11 tion with other human activities, does not cause any

12 species or stock of marine mammals to be reduced

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

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

15 sustainable population range;

16 (3) avoid restrictions on fishing operations

17 when such restrictions are not necessary to meet the

18 purpose described in paragraph (2);

19 (4) prohibit international lethal taking during

20 commercial fishing, except as authorized through a

21 waiver under section 101(a)(3) of the Marine Mam22 mal Protection Act of 1972 (16 U.S.C. 1371(a)(3));

23 (5) focus efforts on identifying and addressing

24 the most significant problems involving fishery-ma25 rine mammal interactions, considering both the sta26 tus of the affected marine mammal stocks and the
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1 numbers of marine mammals that are taken inciden2 tally in each fishery;

3 (6) streamline the procedure for authorizing the

4 incidental taking of marine mammals in commercial

5 fisheries, consistent with the long-term objective of

6 identifying and taking such steps as may be prac7 ticable to reduce mortality and serious injury inci8 dental to commercial fishing operations to insignifi9 cant levels rates approaching zero; and

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

11 monitoring (A) the levels of incidental take of ma12 rine mammals in commercial fisheries and (B) the

13 size and current population trends of the affected

14 marine mammals stocks.

15 SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

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

17 Act entitled ‘‘An Act to improve the operation of the Ma18 rine Mammal Protection Act of 1972, and for other pur19 poses’’, approved October 9, 1981 (16 U.S.C. 1384(a)),

20 is amended to read as follows:

21 ‘‘(a) DEPARTMENT OF COMMERCE.—There are au22 thorized to be appropriated to the Department of Com23 merce, for purposes of carrying out such functions and

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

25 the Marine Mammal Protection Act of 1972, $21,636,000
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1 for fiscal year 1994, $22,502,000 for fiscal year 1995,

2 $23,402,000 for fiscal year 1996, $24,338,000 for fiscal

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

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

5 Act entitled ‘‘An Act to improve the operation of the Ma6 rine Mammal Protection Act of 1972, and for other pur7 poses’’, approved October 9, 1981 (16 U.S.C. 1384(b)),

8 is amended to read as follows:

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

10 authorized to be appropriated to the Department of Inte11 rior, for purposes of carrying out such functions and re12 sponsibilities as it may have been given under title I of

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

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

15 $9,000,000 for fiscal year 1996, $9,400,000 for fiscal year

16 1997, and $9,900,000 for fiscal year 1998.’’.

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

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

19 Marine Mammal Protection Act of 1972, and for other

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

21 is amended to read as follows:

22 ‘‘(c) MARINE MAMMAL COMMISSION.—There are au23 thorized to be appropriated to the Marine Mammal Com24 mission, for purposes of carrying out such functions and

25 responsibilities as it may have been given under title II
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1 of the Marine Mammal Protection Act of 1972,

2 $1,350,000 for fiscal year 1994, $1,400,000 for fiscal year

3 1995, $1,450,000 for fiscal year 1996, $1,500,000 for fis4 cal year 1997, and $1,550,000 for fiscal year 1998.’’.

5 SEC. 4. INCIDENTAL TAKING OF ENDANGERED AND

6 THREATENED SPECIES.

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

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

9 is amended to read as follows:

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

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

12 States while engaging in commercial fishing operations, of

13 marine mammals from a species or stock designated under

14 the this Act as depleted because of its listing as an endan15 gered or threatened species under the Endangered Species

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

17 after notice and opportunity for public comment, deter18 mines that such taking is pursuant to a statement issued

19 by the Secretary for such taking under section 7 of such

20 Act (16 U.S.C. 1536).

21 ‘‘(B) Sections 103 and 104 shall not apply to the tak22 ing of marine mammals under the authority of this para23 graph.’’.

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

25 of the Endangered Species Act of 1973 (16 U.S.C.
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1 1536(b)(4)(C)) is amended by inserting ‘‘101(a)(4) or’’

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

3 SEC. 5. CONSERVATION PLANS.

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

5 of 1972 (16 U.S.C. 13836(b)) 1383b(b)) is amended by

6 adding at the end the following new paragraph:

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

8 taking plan is necessary to reduce the incidental taking

9 of marine mammals in the course of commercial fishing

10 operations from a stock identified as a critical stock under

11 section 118(c), 117(c), any conservation plan required

12 under this subsection for such stock shall only address

13 non-incidental takings.’’.

14 SEC. 6. TAKING OF MARINE MAMMALS INCIDENTAL TO

15 COMMERCIAL FISHING OPERATIONS.

16 Title I of the Marine Mammal Protection Act of 1972

17 (16 U.S.C. 1371 et seq.) is amended by adding at the end

18 the following new section:

19 ‘‘SEC. 118. 117. TAKING OF MARINE MAMMALS INCIDENTAL

20 TO COMMERCIAL FISHING OPERATIONS.

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

22 114 and in paragraphs (2), (3), and (4) of this section,

23 and notwithstanding section 101, the provisions of this

24 section shall govern the incidental taking of marine mam25 mals in the course of commercial fishing operations by
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1 persons using vessels of the United States or vessels which

2 have valid fishing permits issued by the Secretary in ac3 cordance with section 204(b) of the Magnuson Fishery

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

5 The Secretary shall develop and implement incidental tak6 ing plans under this section to reduce the incidental lethal

7 taking of marine mammals, from stocks listed as critical

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

9 acceptable removal level.

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

11 govern the incidental taking of marine mammals from spe12 cies or stocks designated under this Act as depleted on

13 the basis of their listing as threatened or endangered spe14 cies under the Endangered Species Act of 1973.

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

16 shall govern the taking of marine mammals in the course

17 of commercial purse seine fishing for yellowfin tuna in the

18 eastern tropical Pacific Ocean.

19 ‘‘(4) This section shall not govern the taking of ma20 rine mammals from an experimental population of Califor21 nia sea otters to which the Act of November 7, 1986 (Pub22 lic Law 99–625; 100 Stat. 3500) applies.

23 ‘‘(5) Sections 103 and 104 shall not apply to the inci24 dental taking of marine mammals under the authority of

25 this section.
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1 ‘‘(b) SCIENTIFIC CONSULTATION.—In implementing

2 the incidental taking program under this section, the Sec3 retary shall seek the advice of individuals with expertise

4 in marine mammal biology and ecology, population dy5 namics and modeling, and commercial fishing technology

6 and practices. Such advice should be sought with respect

7 to information available, and actions proposed, for such

8 implementation, including—

9 ‘‘(1) information provided in connection with

10 stock assessments under this section;

11 ‘‘(2) studies needed to resolve uncertainties re12 garding stock separation, stock abundance, or trends

13 and factors affecting distribution, size, or productiv14 ity of stocks;

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

16 determining marine mammal species, numbers, ages,

17 and gender, and the reproductive status of stocks;

18 and

19 ‘‘(4) research to identify modifications in fish20 ing gear and fishing practices likely to reduce the

21 mortality and serious injury of marine mammals in22 cidental to commercial fishing operations.

23 ‘‘(c) STOCK ASSESSMENTS.—(1) Using the best sci24 entific information available and in accordance with this

25 subsection, the Secretary shall prepare and issue, and
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1 thereafter (as appropriate) revise, a stock assessment for

2 each marine mammal stock which occurs in waters under

3 the jurisdiction of the United States. The stock assess4 ment shall include—

5 ‘‘(A) a definition of the stock by species of or

6 subspecies and its spatial and temporal distribution;

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

8 population abundance, realistic minimum population

9 size, and current population trend;

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

11 stock by source and, for a stock designated under

12 this subsection as a critical stock, other factors that

13 may impede recovery of the stock, including impacts

14 on marine mammal habitat and prey; and

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

16 that interacts with the stock, including—

17 ‘‘(i) the approximate number of vessels

18 participating in the fishery;

19 ‘‘(ii) the approximate incidental lethal and

20 serious injury take from the stock by such fish21 ery;

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

23 of such incidental lethal or serious injury take;

24 and
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1 ‘‘(iv) the rate of incidental mortality in the

2 stock caused by such fishing, based on a unit

3 of fishing effort;

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

5 stock, including whether the stock is determined to

6 be within its optimum sustainable population range,

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

8 threatened or endangered under the Endangered

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

10 critical stock under subparagraph (G);

11 ‘‘(F) a determination of the calculated accept12 able removal level for the stock and the factors used

13 to calculate it, including a recovery factor if the

14 stock is below its optimum sustainable population;

15 and

16 ‘‘(G) designation of the stock (based on a sci17 entific analysis of the stock’s population trend and

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

19 stock from all sources, and the best available esti20 mates of net productivity at the maximum net pro21 ductivity level) for listing in one of the following cat22 egories:

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

24 population size is declining, or whose population

25 trend is unknown and whose realistic minimum
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1 population is less than 10,000, and from which

2 the total annual lethal take exceeds the net pro3 ductivity of the population when it is at its

4 maximum net productivity level.

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

6 ‘‘(I) whose population size is declin7 ing, or whose population trend is unknown

8 and whose realistic minimum population is

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

10 annual lethal take is between 20 percent

11 and 100 percent of the net productivity of

12 the stock’s population when it is at its

13 maximum net productivity level; or

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

15 or whose population trend is unknown and

16 the whose realistic minimum population is

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

18 and from which the total annual lethal

19 take exceeds the net productivity of the

20 stock’s population when it is at its maxi21 mum net productivity level.

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

23 ‘‘(I) whose population size is declin24 ing, or whose population trend is unknown

25 and whose realistic minimum population is
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1 less than 10,000; and from which the total

2 annual lethal take is less than 20 percent

3 of the net productivity of the stock’s popu4 lation when it is at its maximum net pro5 ductivity level;

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

7 or whose population trend is unknown and

8 whose realistic minimum population is

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

10 and from which the total annual lethal

11 take is between 20 percent and 100 per12 cent of the net productivity of the stock’s

13 population when it is at its maximum net

14 productivity level; or

15 ‘‘(III) whose population size is in16 creasing, or whose population trend is un17 known and whose realistic minimum popu18 lation is greater than 100,000; and from

19 which the total annual lethal take exceeds

20 the net productivity of the stock’s popu21 lation when it is at its maximum net pro22 ductivity level.

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

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

25 whose population trend is unknown and
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1 the whose realistic minimum population is

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

3 and from which the total annual lethal

4 take is between less than 20 percent and

5 100 percent of the net productivity of the

6 stock’s population when it is at its maxi7 mum net productivity level; or

8 ‘‘(II) whose population size is increas9 ing, or whose population trend is unknown

10 and whose realistic minimum population is

11 greater than 100,000; and from which the

12 total annual lethal take is between 20 per13 cent and 100 percent of the net productiv14 ity of the stock’s population when it is at

15 its maximum net productivity level.

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

17 population size is increasing, or whose popu18 lation trend is unknown and the whose realistic

19 minimum population is greater than 100,000;

20 and from which the total annual lethal take is

21 less than 20 percent of the net productivity of

22 the stock’s population when it is at its maxi23 mum net productivity level.

24 ‘‘(2) Not later than 240 days after the date of enact25 ment of this section, the Secretary shall issue a draft of
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1 each stock assessment required by this subsection, after

2 seeking advice from the experts described in subsection

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

4 a notice of availability of the draft and provide an oppor5 tunity for public review and comment during a period of

6 not to exceed 60 days.

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

8 public comment period on such preliminary stock assess9 ment, the Secretary shall publish in the Federal Register

10 a final stock assessment, after consideration of advice, rec11 ommendations, and comments of experts and the general

12 public and the best scientific information available.

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

14 accordance with this subsection, and obtain advice and

15 recommendations from experts—

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

17 critical stocks or for which new information is avail18 able; and

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

20 marine mammal stocks.

21 The Secretary shall revise such assessments after notice

22 and opportunity for public comment, if the review indi23 cates revision is necessary.

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

25 shall develop and implement an incidental taking plan de-
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1 signed to assist in the recovery of each marine mammal

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

3 commercial fisheries. Such plan shall be developed in con4 sultation with the incidental take team established for the

5 plan under this subsection. If there is insufficient funding

6 available to develop and implement an incidental taking

7 plan for all critical stocks that interact with commercial

8 fisheries, the Secretary shall give highest priority to the

9 development and implementation of incidental taking

10 plans for Class 1 stocks. Within a particular class of criti11 cal stocks that interact with commercial fisheries, the Sec12 retary shall give highest priority to the development and

13 implementation of plans for stocks that the Secretary con14 siders the most critical within the class.

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

16 subsection for a critical stock shall include the following:

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

18 contained in the stock assessment published under

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

20 available.

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

22 number and percentage of animals from the stock

23 that are being killed or seriously injured each year

24 as a result of commercial fishing activities.
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1 ‘‘(C) Proposed management measures or vol2 untary actions for the reduction of incidental taking

3 by commercial fisheries. Such proposed measures

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

5 immediate objective of reducing incidental lethal and

6 serious injury take by commercial fisheries by the

7 same proportion as their proportion of the total le8 thal and serious injury take from all sources.

9 ‘‘(D) A long-term strategy to reduce, to insig10 nificant rates approaching zero within 10 years, the

11 incidental mortality and serious injury within the

12 stock that results from commercial fishing oper13 ations.

14 ‘‘(3) Each incidental taking plan shall include pro15 jected dates for achieving the objectives of the plan. If the

16 total lethal take exceeds the calculated acceptable removal

17 level, the plan shall include measures the Secretary ex18 pects will reduce, within 6 months after commencement

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

20 calculated acceptable removal level and is attributable to

21 commercial fisheries.

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

23 120 days) after the Secretary issues a final stock assess24 ment listing a stock as a critical stock, the Secretary

25 shall—
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1 ‘‘(i) establish an incidental take team for such

2 critical stock and appoint the members of such team

3 in accordance with subparagraph (C); and

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

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

6 appointed members, the full geographic range of

7 such critical stock, and all the commercial fisheries

8 that have lethal incidental takings from such stock.

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

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

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

12 determines that doing so would facilitate the development

13 and implementation of plans required under this sub14 section.

15 ‘‘(C) Members of incidental take teams shall be indi16 viduals knowledgeable and experienced regarding the

17 measures to conserve such stocks and to reduce any

18 takings from such stock incidental to commercial fishing

19 operations. Members may include representatives of Fed20 eral and State agencies, regional fishery management

21 councils and commissions, academic and scientific organi22 zations, environmental and fishery groups, and others as

23 the Secretary considers appropriate. Incidental take teams

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

25 equitable balance among representatives of government,
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1 resource user interests, and non-user interests. Incidental

2 take teams shall not be subject to the Federal Advisory

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

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

5 and place of such meetings.

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

7 without compensation, but shall be reimbursed by the Sec8 retary for reasonable travel costs and expenses incurred

9 in performing their duties as members of the team.

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

11 constrain the Secretary from establishing priority among

12 classes of critical stocks covered by this subsection and

13 exercising discretion (in consultation with scientific ex14 perts) to address such stocks in any fiscal year according

15 to that priority.

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

17 stock is estimated to be greater than the calculated accept18 able removal level established in the stock assessment, the

19 following procedures shall apply in the development of the

20 incidental taking plan for the stock:

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

22 establishment of an incidental take team for the

23 stock, the team shall submit a draft incidental tak24 ing plan for the critical stock to the Secretary, con25 sistent with the other provisions of this section.
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1 ‘‘(B)(i) The Secretary shall take the draft inci2 dental taking plan into consideration and, not later

3 than 60 days after the submission of the draft plan

4 by the team, the Secretary shall publish in the Fed5 eral Register a proposed incidental taking plan and

6 proposed regulations to implement such plan, for

7 public review and comment.

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

9 does not submit a draft plan to the Secretary within

10 6 months, the Secretary shall, not later than 8

11 months after the establishment of the team, publish

12 in the Federal Register a proposed incidental taking

13 plan and implementing regulations, for public review

14 and comment.

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

16 the comment period required under subparagraph

17 (B), the Secretary shall issue a final incidental tak18 ing plan and implementing regulations, consistent

19 with the other provisions of this section.

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

21 team shall meet every 6 months to monitor the im22 plementation of the final incidental taking plan until

23 such time that the Secretary determines that meet24 ings are no longer necessary.
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1 ‘‘(E) The Secretary may, in consultation with

2 the incidental take team, amend the incidental tak3 ing plan and implementing regulations as necessary,

4 consistent with the procedures in this section for the

5 issuance of such plans and regulations.

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

7 to which this subsection applies is estimated to be less

8 than the calculated acceptable removal level established in

9 the stock assessment, the following procedures shall apply

10 in the development of the incidental taking plan for the

11 stock:

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

13 of establishment of an incidental take team for the

14 stock, the team shall submit a draft incidental tak15 ing plan for the stock to the Secretary, consistent

16 with the other provisions of this section.

17 ‘‘(B)(i) The Secretary shall take the draft inci18 dental taking plan into consideration and, not later

19 than 60 days following the submission of the draft

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

21 Federal Register a proposed incidental taking plan

22 and implementing regulations, for public review and

23 comment.

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

25 does not submit a draft plan to the Secretary within
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1 11 months, the Secretary shall, not later than 13

2 months after the establishment of the team, publish

3 in the Federal Register a proposed incidental taking

4 plan and implementing regulations, for public review

5 and comment.

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

7 the comment period required under subparagraph

8 (B), the Secretary shall issue a final incidental tak9 ing plan and implementing regulations, consistent

10 with the other provisions of this section.

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

12 team shall meet on an annual basis to monitor the

13 implementation of the final incidental taking plan

14 until such time that the Secretary determines that

15 formal meetings are no longer necessary.

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

17 the incidental take team, amend the incidental tak18 ing plan and implementing regulations as necessary,

19 consistent with the procedures in this section for the

20 issuance of such plans and regulations.

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

22 a final incidental taking plan, that the incidental taking

23 of marine mammals in a commercial fishery is having an

24 immediate and significant adverse impact on the stock to

25 which the plan would apply, the Secretary may, after con-
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1 sultation with appropriate Regional Fishery Management

2 Councils and State fishery managers, prescribe emergency

3 regulations to reduce, to the maximum extent practicable,

4 such incidental taking. In prescribing such emergency reg5 ulations, the Secretary shall take into account the econom6 ics of the fishery concerned and the availability of existing

7 technology to prevent or minimize incidental taking of ma8 rine mammals, and shall conform such regulations, to the

9 maximum extent practicable, with existing State or re10 gional fishery management plans. Such regulations—

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

12 together with the reasons therefor;

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

14 180 days, until such time as a final incidental taking

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

16 applicable fishing season, whichever is earlier; and

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

18 earlier date by publication in the Federal Register of

19 a notice of termination if the Secretary determines

20 the reasons for the emergency regulations no longer

21 exist.

22 ‘‘(e) REGULATORY MEASURES.—(1)(A) The Sec23 retary shall, after notice and opportunity for public com24 ment, promulgate regulations to implement an incidental
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1 taking plan necessary to accomplish the objectives set

2 forth in subsection (i). subsections (d) and (i).

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

4 to limit the authority of the Secretary to modify the inci5 dental taking plan at the request of the appropriate Re6 gional Fishery Management Council or State or tribal

7 management authority.

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

9 pursuant to this section, the Secretary may promulgate

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

11 to—

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

13 taking limits or restrict commercial fisheries by time

14 or area;

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

16 forth in subsection (f);

17 ‘‘(C) require the use of alternative gear tech18 niques and new technologies, encourage the develop19 ment of such gear or technology, or convene expert

20 skippers’ panels;

21 ‘‘(D) educate commercial fishermen and other

22 individuals, through workshops and other means, on

23 the importance of reducing the incidental lethal tak24 ing of marine mammals from critical stocks; and
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1 ‘‘(E) monitor the level of the incidental lethal

2 taking of marine mammals in the course of commer3 cial fishing operations, as set forth in subsection (h).

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

5 provisions of this subsection, the Secretary may develop

6 a system to register commercial fishing vessels and to as7 sess fishery effort, where such system is necessary, to un8 derstand the interaction between commercial fisheries and

9 marine mammal stocks in a region.

10 ‘‘(2) In developing a registration system to under11 stand such interactions, the Secretary shall rely upon ex12 isting Federal, State, or tribal data bases which provide

13 the following information about an affected commercial

14 fishery:

15 ‘‘(A) The approximate number of vessels par16 ticipating in the fishery.

17 ‘‘(B) The identity of specific vessels to be reg18 istered.

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

20 vessels.

21 ‘‘(D) The time period in which the fishery oc22 curs.

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

24 its official reporting area where the fishery occurs.
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1 ‘‘(F) The description of fishing gear, including

2 the appropriate unit of fishery effort.

3 ‘‘(3) The incidental take teams shall advise the Sec4 retary as to whether existing Federal, State, or tribal data

5 bases are capable of being utilized to understand the inter6 action between commercial fisheries and critical stocks in

7 a region. If the Secretary determines, after consultation

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

9 which provide the information required under paragraph

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

11 Secretary may require through regulation separate reg12 istration to obtain the information set forth in paragraph

13 (2).

14 ‘‘(4)(A) The Secretary may, as a condition of accept15 ing a Federal, State, or tribal registration as adequate for

16 the purposes of this section, require such registration to

17 be supplemented by the requirement that the vessels so

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

19 registering authority, that indicates the registration is cur20 rent.

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

22 separate registration is required for a specific fishery pur23 suant to paragraph (3), the Secretary is authorized to

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

25 indicating the registration is current. The fee charged
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1 under this subparagraph shall not exceed the administra2 tive costs incurred in issuing the decal or other evidence.

3 Fees collected under this subparagraph shall be available

4 to the Under Secretary of Commerce for Oceans and At5 mosphere for expenses incurred in the issuances issuance

6 of such decal or other evidence.

7 ‘‘(5) The costs of maintaining a separate registry sys8 tem for a specific fishery pursuant to paragraph (3) shall

9 be covered through Federal appropriations.

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

11 system under this subsection only those vessels that fish

12 in a fishery that has frequent or occasional incidental tak13 ing of marine mammals.

14 ‘‘(g) REPORTING REQUIREMENT.—The owner or op15 erator of a commercial fishing vessel subject to this Act

16 shall report all incidental lethal and serious injury takings

17 of marine mammals in the course of commercial fishing

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

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

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

21 other machine and shall require the vessel owner or opera22 tor to provide the following:

23 ‘‘(1) The vessel name, and Federal, State State,

24 or tribal registration numbers of the registered ves25 sel.
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1 ‘‘(2) The name and address of the vessel owner

2 or operator.

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

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

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

6 such incidental taking.

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

8 occurred.

9 ‘‘(6) The approximate geographic location of

10 the incidental taking.

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

12 a vessel observer program to monitor incidental lethal and

13 serious injury takings of marine mammals during the

14 course of commercial fishing operations. The purpose of

15 the monitoring program shall be to develop independent

16 information on interactions between commercial fisheries

17 and marine mammals and to verify reporting of incidental

18 lethal and serious injury takings under subsection (g). Ob19 servers may perform other tasks including, but not limited

20 to—

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

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

23 sighted during the observation period; and

24 ‘‘(C) other scientific investigations, including

25 collection of marine mammal tissues.
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1 ‘‘(2) Commercial fishing vessels shall carry observers

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

3 that the vessel can safely accommodate the observer. The

4 owner or operator of a vessel who refuses to carry an ob5 server shall be subject to a civil penalty, pursuant to sub6 section (j).

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

8 take monitoring program to achieve the objectives of this

9 paragraph subsection, which may include, but not be lim10 ited to, direct observation of fishing activities from vessels,

11 airplanes, video observation, or points on shore.

12 ‘‘(B) Individuals engaged in such monitoring pro13 gram shall collect scientific information on fisheries ma14 rine mammal interactions consistent with the require15 ments of this paragraph subsection.

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

17 funded by Federal appropriations, and the Secretary shall

18 allocate available observers among fisheries consistent

19 with the following priority:

20 ‘‘(A) The highest priority shall be given to fish21 eries that incidentally lethally take or seriously in22 jure animals from (i) stocks designated as depleted

23 on the basis of their listing as endangered or threat24 ened species under the Endangered Species Act of

25 1993, 1973, or (ii) critical stocks.
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1 ‘‘(B) The second highest priority shall be given

2 to fisheries other than those described in subpara3 graph (A) in which the greatest incidental lethal

4 take and serious injury of marine mammals occurs.

5 When the Secretary determines the that sufficient observa6 tion of a specific fishery has occurred, the Secretary may

7 discontinue such observation and direct available observer

8 resources to the next fishery in priority. Nothing in this

9 subsection precludes the Secretary from resuming observa10 tion of a fishery when necessary to achieve additional ver11 ification of the nature of interactions with marine mammal

12 stocks.

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

14 may initiate, where necessary, additional monitoring pro15 grams to gather information on the interaction between

16 commercial fisheries and marine mammal stocks not iden17 tified as critical stocks. Such information may be used to

18 verify—

19 ‘‘(A) the numbers of incidental lethal and seri20 ous injury takings of marine mammals in a commer21 cial fishery, and the rate of such takings;

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

23 fishing patterns or technologies; and
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1 ‘‘(C) the accuracy of reporting, by vessel owners

2 and operators, of the lethal and serious injury

3 takings of commercial fishing vessels.

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

5 fisheries shall reduce their rates of incidental lethal or se6 rious injury taking, to insignificant rates approaching zero

7 within 10 years after the date of enactment of this section.

8 ‘‘(2) Fisheries which maintain insignificant serious

9 injury and mortality rate levels approaching zero shall not

10 be required to further reduce their mortality rates.

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

12 Secretary shall review the progress, progress of commercial

13 fisheries, by fishery, toward reducing mortality and serious

14 injury rates to insignificant rates approaching zero. The

15 Secretary shall submit to the Committee on Commerce,

16 Science, and Transportation of the Senate and the Com17 mittee on Merchant Marine and Fisheries of the House

18 of Representatives a report setting forth the results of

19 such review within 1 year after commencement of the re20 view. The Secretary shall note any commercial fishery for

21 which no information exists on its incidental serious injury

22 or mortality rate of marine mammals.

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

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

25 injury taking in a commercial fishery is not consistent with
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1 paragraph (1), then the Secretary shall make rec2 ommendations to the Committee on Commerce, Science,

3 and Transportation of the Senate and the Committee on

4 Merchant Marine and Fisheries of the House of Rep5 resentatives on further actions to achieve the goal speci6 fied in paragraph (1).

7 ‘‘(j) PENALTIES.—(1) Except as provided in para8 graph (2), a person who violates this section, or any regu9 lations thereunder, may be assessed a civil penalty of not

10 more than $5,000 for each violation, and shall not be sub11 ject to penalty under any other provision of this Act. The

12 penalty shall reflect the severity of the violation in relation

13 to preventing the reduction of incidental lethal taking of

14 marine mammals, or the accomplishment of other express

15 objectives of this section.

16 ‘‘(2) Intentional killing of marine mammals, or fail17 ure to report incidental lethal takings of marine mammals

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

19 in section 105.

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

21 a fishery that has a remote likelihood of or no known inci22 dental taking of marine mammals, and the master and

23 crew members of such vessel, shall not be subject to pen24 alties under this section or any other provision of this Act

25 for the incidental taking of marine mammals if such owner
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1 or operator reports to the Secretary in accordance with

2 subsection (f)(4) (g)(4).

3 ‘‘(k) VOLUNTARY MEASURES.—Nothing in this sec4 tion shall be construed to limit the Secretary’s authority

5 to permit voluntary measures to be utilized in reducing

6 the incidental taking of marine mammals in commercial

7 fisheries.

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

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

10 level’ means the realistic minimum population of a

11 stock, multiplied by the net productivity rate of the

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

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

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

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

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

17 incidental take team established under subsection

18 (d)(4);

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

20 incidental taking plan developed under subsection

21 (d);

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

23 means the population size of a stock which results

24 in the greatest net productivity;
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1 ‘‘(6) the term ‘net productivity’ means the esti2 mated or theoretical annual increase in population

3 numbers resulting from additions to the population

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

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

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

7 is its maximum net productivity level;

8 ‘‘(8) the term ‘non-critical stock’ means a ma9 rine mammal stock that is listed as a Class 3, 4, or

10 5 stock pursuant to subsection (c)(1)(G);

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

12 means an estimate of the number of animals in a

13 stock that provides reasonable assurance that the

14 population size is equal to or greater than the esti15 mate; and

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

17 number that is applied to the calculation of a cal18 culated acceptable removal level to provide reason19 able assurance that a stock will recover to its opti20 mum sustainable population.’’.

21 SEC. 7. PENALTIES; PROHIBITIONS.

22 (a) CIVIL PENALTIES.—Section 105(a)(1) of the Ma23 rine Mammal Protection Act of 1972 (16 U.S.C.

24 1375(a)(1)) is amended by inserting ‘‘, except as provided
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1 in section 118(j),’’ 117(j),’’ immediately after ‘‘there2 under’’.

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

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

5 1375(b)) is amended by inserting ‘‘(except as provided in

6 section 118(j))’’ 117(j))’’ immediately after ‘‘thereunder’’.

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

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

9 amended by striking ‘‘and 114’’ 114 of this title or title

10 III’’ and inserting in lieu thereof ‘‘114, and 118’’. 117 of

11 this title and title IV’’.

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

13 HARBOR PORPOISES.

14 Notwithstanding any other provision of this Act, in15 cluding section 118 117 of the Marine Mammal Protection

16 Act of 1972 (as added by this Act), the Secretary of Com17 merce shall establish an incidental take team for the har18 bor seal stock in Alaska and for the harbor porpoise stock

19 in the Gulf of Maine, within 60 days after the date of

20 enactment of this Act. The incidental take teams shall

21 begin work immediately on a draft incidental taking plan

22 in accordance with such section 118, 117, and shall use

23 the best scientific information available. The draft inciden24 tal taking plan shall be reviewed by the Secretary, after

25 consultation with scientific experts as described in sub-
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1 section (b) of such section 118 117 and after notice and

2 opportunity for public comment, and shall be approved

3 and implemented as quickly as practicable.

4 SEC. 9. AUTHORIZATION TO DETER MARINE MAMMALS.

5 Section 101 of the Marine Mammal Protection Act

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

7 end the following new subsection:

8 ‘‘(d)(1) Except as provided in paragraph (2), the pro9 visions of this Act shall not apply to the use by any person

10 of measures to deter marine mammals from—

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

12 or recreational fishermen;

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

14 ‘‘(C) endangering personal safety,

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

16 death or serious injury.

17 ‘‘(2) If the Secretary determines, using the best sci18 entific information available, that certain forms of deter19 rence have a significant adverse effect on marine mam20 mals, the Secretary may prohibit such deterrent methods

21 through regulation under this Act.

22 ‘‘(3) The authority to deter marine mammals pursu23 ant to paragraph (1) applies to all marine mammals, in24 cluding all stocks designated as depleted under this Act.’’.
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1 SEC. 10. TREATY RIGHTS.

2 Nothing in this Act, including any amendments made

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

4 Indian treaty fishing or hunting rights, and regulation of

5 Native American fishing and hunting activities shall be

6 limited to measures consistent with existing treaty rights.

7 SEC. 11. TRANSITION RULE.

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

9 Act of 1972 (16 U.S.C. 1383a(a)(1)) is amended by strik10 ing ‘‘ending April 1, 1994,’’ and inserting in lieu thereof

11 ‘‘until superseded by regulations prescribed under section

12 118,’’. 117,’’.

13 SEC. 12. TECHNICAL AMENDMENTS.

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

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

16 redesignating the last three paragraphs as paragraphs

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

18 (b) MARINE MAMMAL HEALTH AND STRANDING RE19 SPONSE.—The Marine Mammal Protection Act of 1972

20 (16 U.S.C. 1361 et seq.) is amended—

21 (1) by redesignating title III, as added by Pub22 lic Law 102–587 (106 Stat. 5060), as title IV; and

23 (2) by redesignating the sections of that title

24 (16 U.S.C. 1421 through 1421h) as sections 401

25 through 409, respectively.
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1 SEC. 13. HUMAN ACTIVITIES WITHIN PROXIMITY OF

2 WHALES.

3 (a) LAWFUL Approaches.—It Approachers.—In waters

4 of the United States surrounding the State of Hawaii, it

5 is lawful for a person subject to the jurisdiction of the Unit6 ed States to approach, by any means other than an aircraft,

7 no closer than 100 yards to a humpback whale or any other

8 whale, regardless of whether the approach is made in waters

9 designated under section 222.31 of title 50, Code of Federal

10 Regulations, as cow/calf waters.

11 (b) TERMINATION OF LEGAL EFFECT OF CERTAIN

12 REGULATIONS.—Subsection (b) of section 222.31 of title 50,

13 Code of Federal Regulations, shall cease to be in force and

14 effect.

15 SEC. 14. PINNIPED-FISHERY INTERACTION TASK FORCE.

16 Title I of the Marine Mammal Protection Act of 1972

17 (16 U.S.C. 1371 et seq.), as amended by this Act, is further

18 amended by adding at the end the following new section:

19 ‘‘SEC. 118. PINNIPED-FISHERY INTERACTION TASK FORCE.

20 ‘‘(a) PINNIPED REMOVAL AUTHORITY.—Notwithstand21 ing any other provision of this title, the Secretary may per22 mit the lethal removal of pinnipeds in accordance with this

23 section.

24 ‘‘(b) APPLICATION.—Any person may apply to the Sec25 retary to authorize the lethal removal of pinnipeds identi26 fied as habitually exhibiting dangerous or damaging behav-
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1 ior that cannot otherwise be deterred. Any such application

2 shall include a means of identifying the individual

3 pinniped or pinnipeds, and shall include a detailed descrip4 tion of the problem interaction and expected benefits of the

5 removal.

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

7 Within 15 days of receiving an application, the Secretary

8 shall determine whether the application has produced suffi9 cient evidence to warrant establishing a Pinniped-Fishery

10 Interaction Task Force to address the situation described

11 in the application. If the Secretary determines that such

12 sufficient evidence has been provided, the Secretary shall

13 establish a Pinniped-Fishery Interaction Task Force and

14 publish a notice in the Federal Register requesting public

15 comment on the application.

16 ‘‘(2) A Pinniped-Fishery Interaction Task Force estab17 lished under paragraph (1) shall consist of designated em18 ployees of the Department of Commerce, scientists who are

19 knowledgeable about the pinniped interaction that the ap20 plication addresses, representatives of affected conservation

21 and fishing community organizations, Indian Treaty

22 tribes, the States, and such other organizations as the Sec23 retary deems appropriate.

24 ‘‘(3) Within 60 days after establishment, and after re25 viewing public comments in response to the Federal Reg-
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1 ister notice, the Pinniped-Fishery Interaction Task Force

2 shall—

3 ‘‘(A) recommend to the Secretary whether to ap4 prove or deny the proposed lethal removal of the

5 pinniped or pinnipeds, including along with the rec6 ommendation a description of the specific pinniped

7 individual or individuals, the proposed location, time,

8 and method of removal, criteria for evaluating the

9 success of the action, and the duration of the author10 ity; and

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

12 and practicable, including a recommended course of

13 action.

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

15 from the Pinniped-Fishery Interaction Task Force, the Sec16 retary shall either approve or deny the application. If such

17 application is approved, the Secretary shall immediately

18 take steps to implement the lethal removal, which shall be

19 performed by Federal or State agencies, or qualified indi20 viduals under contract to such agencies.

21 ‘‘(5) After implementation of an approved application,

22 the Pinniped-Fishery Interaction Task Force shall evaluate

23 the effectiveness of the permitted lethal removal or alter24 native actions implemented. If implementation was ineffec25 tive in eliminating the problem interaction, the Task Force
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1 shall recommend additional actions. If the implementation

2 was effective, the Task Force shall so advise the Secretary

3 and the Secretary shall disband the Task Force.

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

5 application should be approved or denied, the Task Force

6 and the Secretary shall consider—

7 ‘‘(1) population trends, feeding habits, the loca8 tion of the pinniped interaction, how and when the

9 interaction occurs, and how many individual

10 pinnipeds are involved;

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

12 pinnipeds, and whether the applicant has dem13 onstrated that no feasible and prudent alternatives

14 exist and that the applicant has taken all reasonable

15 nonlethal steps without success;

16 ‘‘(3) the extent to which such pinnipeds are caus17 ing undue harm, impact, or imbalance with other

18 species in the ecosystem, including fish populations;

19 and

20 ‘‘(4) the extent to which such pinnipeds are ex21 hibiting behavior that presents an ongoing threat to

22 public safety.

23 ‘‘(e) LIMITATION.—The Secretary shall not approve le24 thal removal for any pinniped from a species or stock that

25 is listed as threatened or endangered under the Endangered
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1 Species Act of 1973, designated as depleted under this Act,

2 or identified by the Secretary as a critical stock under sec3 tion 117 of this Act.’’.

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