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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1636 Reported in Senate (RS)]

                                                       Calendar No. 348

103d CONGRESS

  2d Session

                                S. 1636

                          [Report No. 103-220]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            January 25, 1994

                        Reported with amendments

                                                       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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Marine Mammal Protection Act 
Amendments of 1993''.

SEC. 2. PURPOSES.

    The purposes of this Act are to--
            (1) authorize appropriations to carry out the Marine Mammal 
        Protection Act of 1972 for the fiscal years 1994 through 1998;
            (2) ensure that the incidental take of marine mammals in 
        any fishery, by itself and in combination with other human 
        activities, does not cause any species or stock of marine 
        mammals to be reduced to or maintained at, for significant 
        periods of time, a level that is below the lower limit of its 
        optimum sustainable population range;
            (3) avoid restrictions on fishing operations when such 
        restrictions are not necessary to meet the purpose described in 
        paragraph (2);
            (4) prohibit international lethal taking during commercial 
        fishing, except as authorized through a waiver under section 
        101(a)(3) of the Marine Mammal Protection Act of 1972 (16 
        U.S.C. 1371(a)(3));
            (5) focus efforts on identifying and addressing the most 
        significant problems involving fishery-marine mammal 
        interactions, considering both the status of the affected 
        marine mammal stocks and the numbers of marine mammals that are 
        taken incidentally in each fishery;
            (6) streamline the procedure for authorizing the incidental 
        taking of marine mammals in commercial fisheries, consistent 
        with the long-term objective of identifying and taking such 
        steps as may be practicable to reduce mortality and serious 
        injury incidental to commercial fishing operations to 
        insignificant -l-e-v-e-l-s rates approaching zero; and
            (7) develop a cost-effective program for reliably 
        monitoring (A) the levels of incidental take of marine mammals 
        in commercial fisheries and (B) the size and current population 
        trends of the affected marine mammals stocks.

SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

    (a) Commerce Department.--Section 7(a) of the Act entitled ``An Act 
to improve the operation of the Marine Mammal Protection Act of 1972, 
and for other purposes'', approved October 9, 1981 (16 U.S.C. 1384(a)), 
is amended to read as follows:
    ``(a) Department of Commerce.--There are authorized to be 
appropriated to the Department of Commerce, for purposes of carrying 
out such functions and responsibilities as it may have been given under 
title I of the Marine Mammal Protection Act of 1972, $21,636,000 for 
fiscal year 1994, $22,502,000 for fiscal year 1995, $23,402,000 for 
fiscal year 1996, $24,338,000 for fiscal year 1997, and $25,311,000 for 
fiscal year 1998.''.
    (b) Interior Department.--Section 7(b) of the Act entitled ``An Act 
to improve the operation of the Marine Mammal Protection Act of 1972, 
and for other purposes'', approved October 9, 1981 (16 U.S.C. 1384(b)), 
is amended to read as follows:
    ``(b) Department of the Interior.--There are authorized to be 
appropriated to the Department of Interior, for purposes of carrying 
out such functions and responsibilities as it may have been given under 
title I of the Marine Mammal Protection Act of 1972, $8,000,000 for 
fiscal year 1994, $8,600,000 for fiscal year 1995, $9,000,000 for 
fiscal year 1996, $9,400,000 for fiscal year 1997, and $9,900,000 for 
fiscal year 1998.''.
    (c) Marine Mammal Commission.--Section 7(c) of the Act entitled 
``An Act to improve the operation of the Marine Mammal Protection Act 
of 1972, and for other purposes'', approved October 9, 1981 (16 U.S.C. 
1407), is amended to read as follows:
    ``(c) Marine Mammal Commission.--There are authorized to be 
appropriated to the Marine Mammal Commission, for purposes of carrying 
out such functions and responsibilities as it may have been given under 
title II of the Marine Mammal Protection Act of 1972, $1,350,000 for 
fiscal year 1994, $1,400,000 for fiscal year 1995, $1,450,000 for 
fiscal year 1996, $1,500,000 for fiscal year 1997, and $1,550,000 for 
fiscal year 1998.''.

SEC. 4. INCIDENTAL TAKING OF ENDANGERED AND THREATENED SPECIES.

    (a) In General.--Section 101(a)(4) of the Marine Mammal Protection 
Act of 1972 (16 U.S.C. 1371(a)(4)) is amended to read as follows:
    ``(4)(A) The Secretary may allow the incidental, but not the 
intentional, taking, by citizens of the United States while engaging in 
commercial fishing operations, of marine mammals from a species or 
stock designated under -t-h-e this Act as depleted because of its 
listing as an endangered or threatened species under the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.) if the Secretary, after 
notice and opportunity for public comment, determines that such taking 
is pursuant to a statement issued by the Secretary for such taking 
under section 7 of such Act (16 U.S.C. 1536).
    ``(B) Sections 103 and 104 shall not apply to the taking of marine 
mammals under the authority of this paragraph.''.
    (b) Conforming Amendment.--Section 7(b)(4)(C) of the Endangered 
Species Act of 1973 (16 U.S.C. 1536(b)(4)(C)) is amended by inserting 
``101(a)(4) or'' immediately before ``101 (a)(5)'' each place it 
appears.

SEC. 5. CONSERVATION PLANS.

    Section 115(b) of the Marine Mammal Protection Act of 1972 (16 
U.S.C. -1-3-8-3-6-(-b-)-) 1383b(b)) is amended by adding at the end the 
following new paragraph:
    ``(4) If the Secretary determines that an incidental taking plan is 
necessary to reduce the incidental taking of marine mammals in the 
course of commercial fishing operations from a stock identified as a 
critical stock under section -1-1-8-(-c-)-, 117(c), any conservation 
plan required under this subsection for such stock shall only address 
non-incidental takings.''.

SEC. 6. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING 
              OPERATIONS.

    Title I of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371 
et seq.) is amended by adding at the end the following new section:

``SEC. -1-1-8-. 117. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL 
              FISHING OPERATIONS.

    ``(a) In General.--(1) Except as provided in section 114 and in 
paragraphs (2), (3), and (4) of this section, and notwithstanding 
section 101, the provisions of this section shall govern the incidental 
taking of marine mammals in the course of commercial fishing operations 
by persons using vessels of the United States or vessels which have 
valid fishing permits issued by the Secretary in accordance with 
section 204(b) of the Magnuson Fishery Conservation and Management Act 
(16 U.S.C. 1824(b)). The Secretary shall develop and implement 
incidental taking plans under this section to reduce the incidental 
lethal taking of marine mammals, from stocks listed as critical stocks 
under subsection (c), to a level below the calculated acceptable 
removal level.
    ``(2) Section 101(a)(4), and not this section, shall govern the 
incidental taking of marine mammals from species or stocks designated 
under this Act as depleted on the basis of their listing as threatened 
or endangered species under the Endangered Species Act of 1973.
    ``(3) Sections 104(h) and 306, and not this section, shall govern 
the taking of marine mammals in the course of commercial purse seine 
fishing for yellowfin tuna in the eastern tropical Pacific Ocean.
    ``(4) This section shall not govern the taking of marine mammals 
from an experimental population of California sea otters to which the 
Act of November 7, 1986 (Public Law 99-625; 100 Stat. 3500) applies.
    ``(5) Sections 103 and 104 shall not apply to the incidental taking 
of marine mammals under the authority of this section.
    ``(b) Scientific Consultation.--In implementing the incidental 
taking program under this section, the Secretary shall seek the advice 
of individuals with expertise in marine mammal biology and ecology, 
population dynamics and modeling, and commercial fishing technology and 
practices. Such advice should be sought with respect to information 
available, and actions proposed, for such implementation, including--
            ``(1) information provided in connection with stock 
        assessments under this section;
            ``(2) studies needed to resolve uncertainties regarding 
        stock separation, stock abundance, or trends and factors 
        affecting distribution, size, or productivity of stocks;
            ``(3) studies needed to resolve uncertainties in 
        determining marine mammal species, numbers, ages, and gender, 
        and the reproductive status of stocks; and
            ``(4) research to identify modifications in fishing gear 
        and fishing practices likely to reduce the mortality and 
        serious injury of marine mammals incidental to commercial 
        fishing operations.
    ``(c) Stock Assessments.--(1) Using the best scientific information 
available and in accordance with this subsection, the Secretary shall 
prepare and issue, and thereafter (as appropriate) revise, a stock 
assessment for each marine mammal stock which occurs in waters under 
the jurisdiction of the United States. The stock assessment shall 
include--
            ``(A) a definition of the stock by species -o-f or 
        subspecies and its spatial and temporal distribution;
            ``(B) the best available estimates of the stock's 
        population abundance, realistic minimum population size, and 
        current population trend;
            ``(C) estimates of the total lethal take from the stock by 
        source and, for a stock designated under this subsection as a 
        critical stock, other factors that may impede recovery of the 
        stock, including impacts on marine mammal habitat and prey; and
            ``(D) a description of any commercial fishery that 
        interacts with the stock, including--
                    ``(i) the approximate number of vessels 
                participating in the fishery;
                    ``(ii) the approximate incidental lethal and 
                serious injury take from the stock by such fishery;
                    ``(iii) seasonal or area differences in levels of 
                such incidental lethal or serious injury take; and
                    ``(iv) the rate of incidental mortality in the 
                stock caused by such fishing, based on a unit of 
                fishing effort;
            ``(E) a determination as to the status of the stock, 
        including whether the stock is determined to be within its 
        optimum sustainable population range, is designated as depleted 
        under this Act, is listed as threatened or endangered under the 
        Endangered Species Act of 1973, or is proposed for listing as a 
        critical stock under subparagraph (G);
            ``(F) a determination of the calculated acceptable removal 
        level for the stock and the factors used to calculate it, 
        including a recovery factor if the stock is below its optimum 
        sustainable population; and
            ``(G) designation of the stock (based on a scientific 
        analysis of the stock's population trend and population size, 
        the level of total lethal take from the stock from all sources, 
        and the best available estimates of net productivity at the 
        maximum net productivity level) for listing in one of the 
        following categories:
                    ``(i) Class 1, consisting of stocks whose 
                population size is declining, or whose population trend 
                is unknown and whose realistic minimum population is 
                less than 10,000, and from which the total annual 
                lethal take exceeds the net productivity of the 
                population when it is at its maximum net productivity 
                level.
                    ``(ii) Class 2, consisting of stocks--
                            ``(I) whose population size is declining, 
                        or whose population trend is unknown and whose 
                        realistic minimum population is less than 
                        10,000; and from which the total annual lethal 
                        take is between 20 percent and 100 percent of 
                        the net productivity of the stock's population 
                        when it is at its maximum net productivity 
                        level; or
                            ``(II) whose population size is stable, or 
                        whose population trend is unknown and -t-h-e 
                        whose realistic minimum population is greater 
                        than 10,000 but less than 100,000; and from 
                        which the total annual lethal take exceeds the 
                        net productivity of the stock's population when 
                        it is at its maximum net productivity level.
                    ``(iii) Class 3, consisting of stocks--
                            ``(I) whose population size is declining, 
                        or whose population trend is unknown and whose 
                        realistic minimum population is less than 
                        10,000; and from which the total annual lethal 
                        take is less than 20 percent of the net 
                        productivity of the stock's population when it 
                        is at its maximum net productivity level;
                            ``(II) whose population size is stable, or 
                        whose population trend is unknown and whose 
                        realistic minimum population is greater than 
                        10,000 but less than 100,000; and from which 
                        the total annual lethal take is between 20 
                        percent and 100 percent of the net productivity 
                        of the stock's population when it is at its 
                        maximum net productivity level; or
                            ``(III) whose population size is 
                        increasing, or whose population trend is 
                        unknown and whose realistic minimum population 
                        is greater than 100,000; and from which the 
                        total annual lethal take exceeds the net 
                        productivity of the stock's population when it 
                        is at its maximum net productivity level.
                    ``(iv) Class 4, consisting of stocks--
                            ``(I) whose population size is stable, or 
                        whose population trend is unknown and -t-h-e 
                        whose realistic minimum population is greater 
                        than 10,000 but less than 100,000; and from 
                        which the total annual lethal take is 
                        -b-e-t-w-e-e-n less than 20 percent -a-n-d 
                        -1-0-0 -p-e-r-c-e-n-t of the net productivity 
                        of the stock's population when it is at its 
                        maximum net productivity level; or
                            ``(II) whose population size is increasing, 
                        or whose population trend is unknown and whose 
                        realistic minimum population is greater than 
                        100,000; and from which the total annual lethal 
                        take is between 20 percent and 100 percent of 
                        the net productivity of the stock's population 
                        when it is at its maximum net productivity 
                        level.
                    ``(v) Class 5, consisting of stocks whose 
                population size is increasing, or whose population 
                trend is unknown and -t-h-e whose realistic minimum 
                population is greater than 100,000; and from which the 
                total annual lethal take is less than 20 percent of the 
                net productivity of the stock's population when it is 
                at its maximum net productivity level.
    ``(2) Not later than 240 days after the date of enactment of this 
section, the Secretary shall issue a draft of each stock assessment 
required by this subsection, after seeking advice from the experts 
described in subsection (b). The Secretary shall publish in the Federal 
Register a notice of availability of the draft and provide an 
opportunity for public review and comment during a period of not to 
exceed 60 days.
    ``(3) Not later than 90 days after the close of the public comment 
period on such preliminary stock assessment, the Secretary shall 
publish in the Federal Register a final stock assessment, after 
consideration of advice, recommendations, and comments of experts and 
the general public and the best scientific information available.
    ``(4) The Secretary shall review stock assessments in accordance 
with this subsection, and obtain advice and recommendations from 
experts--
            ``(A) on an annual basis for stocks listed as critical 
        stocks or for which new information is available; and
            ``(B) at least once every 3 years for all other marine 
        mammal stocks.
The Secretary shall revise such assessments after notice and 
opportunity for public comment, if the review indicates revision is 
necessary.
    ``(d) Incidental Taking Plan.--(1) The Secretary shall develop and 
implement an incidental taking plan designed to assist in the recovery 
of each marine mammal stock that is listed as a critical stock and 
interacts with commercial fisheries. Such plan shall be developed in 
consultation with the incidental take team established for the plan 
under this subsection. If there is insufficient funding available to 
develop and implement an incidental taking plan for all critical stocks 
that interact with commercial fisheries, the Secretary shall give 
highest priority to the development and implementation of incidental 
taking plans for Class 1 stocks. Within a particular class of critical 
stocks that interact with commercial fisheries, the Secretary shall 
give highest priority to the development and implementation of plans 
for stocks that the Secretary considers the most critical within the 
class.
    ``(2) Each incidental taking plan developed under this subsection 
for a critical stock shall include the following:
            ``(A) A review and evaluation of the information contained 
        in the stock assessment published under subsection (c) and any 
        new information that may be available.
            ``(B) An evaluation and estimate of the total number and 
        percentage of animals from the stock that are being killed or 
        seriously injured each year as a result of commercial fishing 
        activities.
            ``(C) Proposed management measures or voluntary actions for 
        the reduction of incidental taking by commercial fisheries. 
        Such proposed measures and actions shall be developed in light 
        of the plan's immediate objective of reducing incidental lethal 
        and serious injury take by commercial fisheries by the same 
        proportion as their proportion of the total lethal and serious 
        injury take from all sources.
            ``(D) A long-term strategy to reduce, to insignificant 
        rates approaching zero within 10 years, the incidental 
        mortality and serious injury within the stock that results from 
        commercial fishing operations.
    ``(3) Each incidental taking plan shall include projected dates for 
achieving the objectives of the plan. If the total lethal take exceeds 
the calculated acceptable removal level, the plan shall include 
measures the Secretary expects will reduce, within 6 months after 
commencement of fishing, the share of the lethal take that exceeds the 
calculated acceptable removal level and is attributable to commercial 
fisheries.
    ``(4)(A) At the earliest possible time (not later than 120 days) 
after the Secretary issues a final stock assessment listing a stock as 
a critical stock, the Secretary shall--
            ``(i) establish an incidental take team for such critical 
        stock and appoint the members of such team in accordance with 
        subparagraph (C); and
            ``(ii) publish in the Federal Register a notice of the 
        team's establishment, the names of the team's appointed 
        members, the full geographic range of such critical stock, and 
        all the commercial fisheries that have lethal incidental 
        takings from such stock.
    ``(B) The Secretary may charge an incidental take team to deal with 
a stock that extends over one or more regions, or multiple stocks 
within a region, if the Secretary determines that doing so would 
facilitate the development and implementation of plans required under 
this subsection.
    ``(C) Members of incidental take teams shall be individuals 
knowledgeable and experienced regarding the measures to conserve such 
stocks and to reduce any takings from such stock incidental to 
commercial fishing operations. Members may include representatives of 
Federal and State agencies, regional fishery management councils and 
commissions, academic and scientific organizations, environmental and 
fishery groups, and others as the Secretary considers appropriate. 
Incidental take teams shall, to the maximum extent practicable, consist 
of an equitable balance among representatives of government, resource 
user interests, and non-user interests. Incidental take teams shall not 
be subject to the Federal Advisory Committee Act (5 App. U.S.C.) but 
their meetings shall be open to the public, after timely publicity on 
the time and place of such meetings.
    ``(D) Members of incidental take teams shall serve without 
compensation, but shall be reimbursed by the Secretary for reasonable 
travel costs and expenses incurred in performing their duties as 
members of the team.
    ``(E) Nothing in this section shall be construed to constrain the 
Secretary from establishing priority among classes of critical stocks 
covered by this subsection and exercising discretion (in consultation 
with scientific experts) to address such stocks in any fiscal year 
according to that priority.
    ``(5) Where the total lethal take from such a critical stock is 
estimated to be greater than the calculated acceptable removal level 
established in the stock assessment, the following procedures shall 
apply in the development of the incidental taking plan for the stock:
            ``(A) Not later than 6 months after the date of 
        establishment of an incidental take team for the stock, the 
        team shall submit a draft incidental taking plan for the 
        critical stock to the Secretary, consistent with the other 
        provisions of this section.
            ``(B)(i) The Secretary shall take the draft incidental 
        taking plan into consideration and, not later than 60 days 
        after the submission of the draft plan by the team, the 
        Secretary shall publish in the Federal Register a proposed 
        incidental taking plan and proposed regulations to implement 
        such plan, for public review and comment.
            ``(ii) In the event that the incidental take team does not 
        submit a draft plan to the Secretary within 6 months, the 
        Secretary shall, not later than 8 months after the 
        establishment of the team, publish in the Federal Register a 
        proposed incidental taking plan and implementing regulations, 
        for public review and comment.
            ``(C) Not later than 60 days after the close of the comment 
        period required under subparagraph (B), the Secretary shall 
        issue a final incidental taking plan and implementing 
        regulations, consistent with the other provisions of this 
        section.
            ``(D) The Secretary and the incidental take team shall meet 
        every 6 months to monitor the implementation of the final 
        incidental taking plan until such time that the Secretary 
        determines that meetings are no longer necessary.
            ``(E) The Secretary may, in consultation with the 
        incidental take team, amend the incidental taking plan and 
        implementing regulations as necessary, consistent with the 
        procedures in this section for the issuance of such plans and 
        regulations.
    ``(6) Where the total lethal take from a critical stock to which 
this subsection applies is estimated to be less than the calculated 
acceptable removal level established in the stock assessment, the 
following procedures shall apply in the development of the incidental 
taking plan for the stock:
            ``(A) Not later than 11 months after the date of 
        establishment of an incidental take team for the stock, the 
        team shall submit a draft incidental taking plan for the stock 
        to the Secretary, consistent with the other provisions of this 
        section.
            ``(B)(i) The Secretary shall take the draft incidental 
        taking plan into consideration and, not later than 60 days 
        following the submission of the draft plan by the team, the 
        Secretary shall publish in the Federal Register a proposed 
        incidental taking plan and implementing regulations, for public 
        review and comment.
            ``(ii) In the event that the incidental take team does not 
        submit a draft plan to the Secretary within 11 months, the 
        Secretary shall, not later than 13 months after the 
        establishment of the team, publish in the Federal Register a 
        proposed incidental taking plan and implementing regulations, 
        for public review and comment.
            ``(C) Not later than 60 days after the close of the comment 
        period required under subparagraph (B), the Secretary shall 
        issue a final incidental taking plan and implementing 
        regulations, consistent with the other provisions of this 
        section.
            ``(D) The Secretary and the incidental take team shall meet 
        on an annual basis to monitor the implementation of the final 
        incidental taking plan until such time that the Secretary 
        determines that -f-o-r-m-a-l meetings are no longer necessary.
            ``(E) The Secretary may, in consultation with the 
        incidental take team, amend the incidental taking plan and 
        implementing regulations as necessary, consistent with the 
        procedures in this section for the issuance of such plans and 
        regulations.
    ``(7) If the Secretary finds, prior to the issuance of a final 
incidental taking plan, that the incidental taking of marine mammals in 
a commercial fishery is having an immediate and significant adverse 
impact on the stock to which the plan would apply, the Secretary may, 
after consultation with appropriate Regional Fishery Management 
Councils and State fishery managers, prescribe emergency regulations to 
reduce, to the maximum extent practicable, such incidental taking. In 
prescribing such emergency regulations, the Secretary shall take into 
account the economics of the fishery concerned and the availability of 
existing technology to prevent or minimize incidental taking of marine 
mammals, and shall conform such regulations, to the maximum extent 
practicable, with existing State or regional fishery management plans. 
Such regulations--
            ``(A) shall be published in the Federal Register together 
        with the reasons therefor;
            ``(B) shall remain in effect for not more than 180 days, 
        until such time as a final incidental taking plan for the stock 
        is issued, or until the end of the applicable fishing season, 
        whichever is earlier; and
            ``(C) may be terminated by the Secretary at an earlier date 
        by publication in the Federal Register of a notice of 
        termination if the Secretary determines the reasons for the 
        emergency regulations no longer exist.
    ``(e) Regulatory Measures.--(1)(A) The Secretary shall, after 
notice and opportunity for public comment, promulgate regulations to 
implement an incidental taking plan necessary to accomplish the 
objectives set forth in -s-u-b-s-e-c-t-i-o-n -(-i-)-. subsections (d) 
and (i).
    ``(B) Nothing in this paragraph shall be construed to limit the 
authority of the Secretary to modify the incidental taking plan at the 
request of the appropriate Regional Fishery Management Council or State 
or tribal management authority.
    ``(2) In implementing an incidental taking plan issued pursuant to 
this section, the Secretary may promulgate regulations which include, 
but are not limited to, measures to--
            ``(A) establish fishery-specific incidental lethal taking 
        limits or restrict commercial fisheries by time or area;
            ``(B) register commercial fishing vessels as set forth in 
        subsection (f);
            ``(C) require the use of alternative gear techniques and 
        new technologies, encourage the development of such gear or 
        technology, or convene expert skippers' panels;
            ``(D) educate commercial fishermen and other individuals, 
        through workshops and other means, on the importance of 
        reducing the incidental lethal taking of marine mammals from 
        critical stocks; and
            ``(E) monitor the level of the incidental lethal taking of 
        marine mammals in the course of commercial fishing operations, 
        as set forth in subsection (h).
    ``(f) Registration of Vessels.--(1) Subject to the provisions of 
this subsection, the Secretary may develop a system to register 
commercial fishing vessels and to assess fishery effort, where such 
system is necessary, to understand the interaction between commercial 
fisheries and marine mammal stocks in a region.
    ``(2) In developing a registration system to understand such 
interactions, the Secretary shall rely upon existing Federal, State, or 
tribal data bases which provide the following information about an 
affected commercial fishery:
            ``(A) The approximate number of vessels participating in 
        the fishery.
            ``(B) The identity of specific vessels to be registered.
            ``(C) The owner -o-f or operator, or both, of such vessels.
            ``(D) The time period in which the fishery occurs.
            ``(E) The approximate geographic location, or its official 
        reporting area where the fishery occurs.
            ``(F) The description of fishing gear, including the 
        appropriate unit of fishery effort.
    ``(3) The incidental take teams shall advise the Secretary as to 
whether existing Federal, State, or tribal data bases are capable of 
being utilized to understand the interaction between commercial 
fisheries and critical stocks in a region. If the Secretary determines, 
after consultation with such a team, that data bases for specific 
fisheries which provide the information required under paragraph (2) 
are not available to the Secretary or the team, the Secretary may 
require through regulation separate registration to obtain the 
information set forth in paragraph (2).
    ``(4)(A) The Secretary may, as a condition of accepting a Federal, 
State, or tribal registration as adequate for the purposes of this 
section, require such registration to be supplemented by the 
requirement that the vessels so registered display a decal or other 
evidence, issued by the registering authority, that indicates the 
registration is current.
    ``(B) To the extent the Secretary determines that separate 
registration is required for a specific fishery pursuant to paragraph 
(3), the Secretary is authorized to charge a fee for the issuance of a 
decal or other evidence indicating the registration is current. The fee 
charged under this subparagraph shall not exceed the administrative 
costs incurred in issuing the decal or other evidence. Fees collected 
under this subparagraph shall be available to the Under Secretary of 
Commerce for Oceans and Atmosphere for expenses incurred in the 
-i-s-s-u-a-n-c-e-s issuance of such decal or other evidence.
    ``(5) The costs of maintaining a separate registry system for a 
specific fishery pursuant to paragraph (3) shall be covered through 
Federal appropriations.
    ``(6) The Secretary may include within a registration system under 
this subsection only those vessels that fish in a fishery that has 
frequent or occasional incidental taking of marine mammals.
    ``(g) Reporting Requirement.--The owner or operator of a commercial 
fishing vessel subject to this Act shall report all incidental lethal 
and serious injury takings of marine mammals in the course of 
commercial fishing operations to the Secretary at the end of each 
fishing trip on a standard form to be developed by the Secretary under 
this section. Such form shall be readable by computer or other machine 
and shall require the vessel owner or operator to provide the 
following:
            ``(1) The vessel name, and Federal, -S-t-a-t-e State, or 
        tribal registration numbers of the registered vessel.
            ``(2) The name and address of the vessel owner or operator.
            ``(3) The name and description of the fishery.
            ``(4) The species of marine mammal incidentally killed or 
        seriously injured, and the date and time of such incidental 
        taking.
            ``(5) The time and period in which the fishery occurred.
            ``(6) The approximate geographic location of the incidental 
        taking.
    ``(h) Monitoring.--(1) The Secretary may establish a vessel 
observer program to monitor incidental lethal and serious injury 
takings of marine mammals during the course of commercial fishing 
operations. The purpose of the monitoring program shall be to develop 
independent information on interactions between commercial fisheries 
and marine mammals and to verify reporting of incidental lethal and 
serious injury takings under subsection (g). Observers may perform 
other tasks including, but not limited to--
            ``(A) recording other sources of mortality;
            ``(B) recording the number of marine mammals sighted during 
        the observation period; and
            ``(C) other scientific investigations, including collection 
        of marine mammal tissues.
    ``(2) Commercial fishing vessels shall carry observers on board, 
when requested by the Secretary, to the extent that the vessel can 
safely accommodate the observer. The owner or operator of a vessel who 
refuses to carry an observer shall be subject to a civil penalty, 
pursuant to subsection (j).
    ``(3)(A) The Secretary may establish an incidental take monitoring 
program to achieve the objectives of this -p-a-r-a-g-r-a-p-h 
subsection, which may include, but not be limited to, direct 
observation of fishing activities from vessels, airplanes, video 
observation, or points on shore.
    ``(B) Individuals engaged in such monitoring program shall collect 
scientific information on -f-i-s-h-e-r-i-e-s marine mammal interactions 
consistent with the requirements of this -p-a-r-a-g-r-a-p-h subsection.
    ``(4) The cost of the monitoring program shall be funded by Federal 
appropriations, and the Secretary shall allocate available observers 
among fisheries consistent with the following priority:
            ``(A) The highest priority shall be given to fisheries that 
        incidentally lethally take or seriously injure animals from (i) 
        stocks designated as depleted on the basis of their listing as 
        endangered or threatened species under the Endangered Species 
        Act of -1-9-9-3-, 1973, or (ii) critical stocks.
            ``(B) The second highest priority shall be given to 
        fisheries other than those described in subparagraph (A) in 
        which the greatest incidental lethal take and serious injury of 
        marine mammals occurs.
When the Secretary determines -t-h-e that sufficient observation of a 
specific fishery has occurred, the Secretary may discontinue such 
observation and direct available observer resources to the next fishery 
in priority. Nothing in this subsection precludes the Secretary from 
resuming observation of a fishery when necessary to achieve additional 
verification of the nature of interactions with marine mammal stocks.
    ``(5) Notwithstanding paragraph (4), the Secretary may initiate, 
where necessary, additional monitoring programs to gather information 
on the interaction between commercial fisheries and marine mammal 
stocks not identified as critical stocks. Such information may be used 
to verify--
            ``(A) the numbers of incidental lethal and serious injury 
        takings of marine mammals in a commercial fishery, and the rate 
        of such takings;
            ``(B) impacts on marine mammals of changes in fishing 
        patterns or technologies; and
            ``(C) the accuracy of reporting, by vessel owners and 
        operators, of the lethal and serious injury takings of 
        commercial fishing vessels.
    ``(i) Zero Mortality Rate Goal.--(1) Commercial fisheries shall 
reduce their rates of incidental lethal or serious injury taking, to 
insignificant rates approaching zero within 10 years after the date of 
enactment of this section.
    ``(2) Fisheries which maintain insignificant serious injury and 
mortality rate levels approaching zero shall not be required to further 
reduce their mortality rates.
    ``(3) Three years after such date of enactment, the Secretary shall 
review the -p-r-o-g-r-e-s-s-, progress of commercial fisheries, by 
fishery, toward reducing mortality and serious injury rates to 
insignificant rates approaching zero. The Secretary shall submit to the 
Committee on Commerce, Science, and Transportation of the Senate and 
the Committee on Merchant Marine and Fisheries of the House of 
Representatives a report setting forth the results of such review 
within 1 year after commencement of the review. The Secretary shall 
note any commercial fishery for which no information exists on its 
incidental serious injury or mortality rate of marine mammals.
    ``(4) If the Secretary determines after review under paragraph (3) 
that the rate of incidental lethal and serious injury taking in a 
commercial fishery is not consistent with paragraph (1), then the 
Secretary shall make recommendations to the Committee on Commerce, 
Science, and Transportation of the Senate and the Committee on Merchant 
Marine and Fisheries of the House of Representatives on further actions 
to achieve the goal specified in paragraph (1).
    ``(j) Penalties.--(1) Except as provided in paragraph (2), a person 
who violates this section, or any regulations thereunder, may be 
assessed a civil penalty of not more than $5,000 for each violation, 
and shall not be subject to penalty under any other provision of this 
Act. The penalty shall reflect the severity of the violation in 
relation to preventing the reduction of incidental lethal taking of 
marine mammals, or the accomplishment of other express objectives of 
this section.
    ``(2) Intentional killing of marine mammals, or failure to report 
incidental lethal takings of marine mammals as required by this 
section, shall be subject to the penalties in section 105.
    ``(3) Each owner or operator of a vessel engaged in a fishery that 
has a remote likelihood of or no known incidental taking of marine 
mammals, and the master and crew members of such vessel, shall not be 
subject to penalties under this section or any other provision of this 
Act for the incidental taking of marine mammals if such owner or 
operator reports to the Secretary in accordance with subsection 
-(-f-)-(-4-) (g)(4).
    ``(k) Voluntary Measures.--Nothing in this section shall be 
construed to limit the Secretary's authority to permit voluntary 
measures to be utilized in reducing the incidental taking of marine 
mammals in commercial fisheries.
        ``(l) Definitions.--For purposes of this section--
            ``(1) the term `calculated acceptable removal level' means 
        the realistic minimum population of a stock, multiplied by the 
        net productivity rate of the stock, multiplied (if applicable) 
        by a recovery factor;
            ``(2) the term `critical stock' means a marine mammal stock 
        that is listed as a Class 1 or 2 stock pursuant to subsection 
        (c)(1)G);
            ``(3) the term `incidental take team' means an incidental 
        take team established under subsection (d)(4);
            ``(4) the term `incidental taking plan' means an incidental 
        taking plan developed under subsection (d);
            ``(5) the term `maximum net productivity level' means the 
        population size of a stock which results in the greatest net 
        productivity;
            ``(6) the term `net productivity' means the estimated or 
        theoretical annual increase in population numbers resulting 
        from additions to the population due to reproduction, less the 
        losses due to mortality;
            ``(7) the term `net productivity rate' means the net annual 
        per capita rate of increase of a stock at -i-s its maximum net 
        productivity level;
            ``(8) the term `non-critical stock' means a marine mammal 
        stock that is listed as a Class 3, 4, or 5 stock pursuant to 
        subsection (c)(1)(G);
            ``(9) the term `realistic minimum population' means an 
        estimate of the number of animals in a stock that provides 
        reasonable assurance that the population size is equal to or 
        greater than the estimate; and
            ``(10) the term `recovery factor' means the number that is 
        applied to the calculation of a calculated acceptable removal 
        level to provide reasonable assurance that a stock will recover 
        to its optimum sustainable population.''.

SEC. 7. PENALTIES; PROHIBITIONS.

    (a) Civil Penalties.--Section 105(a)(1) of the Marine Mammal 
Protection Act of 1972 (16 U.S.C. 1375(a)(1)) is amended by inserting 
``, except as provided in section -1-1-8-(-j-)-,-'-' 117(j),'' 
immediately after ``thereunder''.
    (b) Criminal Penalties.--Section 105(b) of the Marine Mammal 
Protection Act of 1972 (16 U.S.C. 1375(b)) is amended by inserting 
``(except as provided in section -1-1-8-(-j-)-)-'-' 117(j))'' 
immediately after ``thereunder''.
    (c) Prohibitions.--Section 102(a) of the Marine Mammal Protection 
Act of 1972 (16 U.S.C. 1372(a)) is amended by striking ``and -1-1-4-'-' 
114 of this title or title III'' and inserting in lieu thereof ``114, 
and -1-1-8-'-'-. 117 of this title and title IV''.

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

    Notwithstanding any other provision of this Act, including section 
-1-1-8 117 of the Marine Mammal Protection Act of 1972 (as added by 
this Act), the Secretary of Commerce shall establish an incidental take 
team for the harbor seal stock in Alaska and for the harbor porpoise 
stock in the Gulf of Maine, within 60 days after the date of enactment 
of this Act. The incidental take teams shall begin work immediately on 
a draft incidental taking plan in accordance with such section -1-1-8-, 
117, and shall use the best scientific information available. The draft 
incidental taking plan shall be reviewed by the Secretary, after 
consultation with scientific experts as described in subsection (b) of 
such section -1-1-8 117 and after notice and opportunity for public 
comment, and shall be approved and implemented as quickly as 
practicable.

SEC. 9. AUTHORIZATION TO DETER MARINE MAMMALS.

    Section 101 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 
1371) is amended by adding at the end the following new subsection:
    ``(d)(1) Except as provided in paragraph (2), the provisions of 
this Act shall not apply to the use by any person of measures to deter 
marine mammals from--
            ``(A) damaging the gear or catch of commercial or 
        recreational fishermen;
            ``(B) damaging private or public property; or
            ``(C) endangering personal safety,
so long as such measures do not result in marine mammal death or 
serious injury.
    ``(2) If the Secretary determines, using the best scientific 
information available, that certain forms of deterrence have a 
significant adverse effect on marine mammals, the Secretary may 
prohibit such deterrent methods through regulation under this Act.
    ``(3) The authority to deter marine mammals pursuant to paragraph 
(1) applies to all marine mammals, including all stocks designated as 
depleted under this Act.''.

SEC. 10. TREATY RIGHTS.

    Nothing in this Act, including any amendments made by this Act, is 
intended to abrogate or diminish existing Indian treaty fishing or 
hunting rights, and regulation of Native American fishing and hunting 
activities shall be limited to measures consistent with existing treaty 
rights.

SEC. 11. TRANSITION RULE.

    Section 114(a)(1) of the Marine Mammal Protection Act of 1972 (16 
U.S.C. 1383a(a)(1)) is amended by striking ``ending April 1, 1994,'' 
and inserting in lieu thereof ``until superseded by regulations 
prescribed under section -1-1-8-,-'-'-. 117,''.

SEC. 12. TECHNICAL AMENDMENTS.

    (a) Definitions.--Section 3 of the Marine Mammal Protection Act of 
1972 (16 U.S.C. 1362) is amended by redesignating the last three 
paragraphs as paragraphs (16), (17), and (18), respectively.
    (b) Marine Mammal Health and Stranding Response.--The Marine Mammal 
Protection Act of 1972 (16 U.S.C. 1361 et seq.) is amended--
            (1) by redesignating title III, as added by Public Law 102-
        587 (106 Stat. 5060), as title IV; and
            (2) by redesignating the sections of that title (16 U.S.C. 
        1421 through 1421h) as sections 401 through 409, respectively.

SEC. 13. HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES.

    (a) Lawful -A-p-p-r-o-a-c-h-e-s-.----I-t Approachers.--In waters of 
the United States surrounding the State of Hawaii, it is lawful for a 
person subject to the jurisdiction of the United States to approach, by 
any means other than an aircraft, no closer than 100 yards to a 
humpback whale or any other whale, regardless of whether the approach 
is made in waters designated under section 222.31 of title 50, Code of 
Federal Regulations, as cow/calf waters.
    (b) Termination of Legal Effect of Certain Regulations.--Subsection 
(b) of section 222.31 of title 50, Code of Federal Regulations, shall 
cease to be in force and effect.

SEC. 14. PINNIPED-FISHERY INTERACTION TASK FORCE.

    Title I of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371 
et seq.), as amended by this Act, is further amended by adding at the 
end the following new section:

``SEC. 118. PINNIPED-FISHERY INTERACTION TASK FORCE.

    ``(a) Pinniped Removal Authority.--Notwithstanding any other 
provision of this title, the Secretary may permit the lethal removal of 
pinnipeds in accordance with this section.
    ``(b) Application.--Any person may apply to the Secretary to 
authorize the lethal removal of pinnipeds identified as habitually 
exhibiting dangerous or damaging behavior that cannot otherwise be 
deterred. Any such application shall include a means of identifying the 
individual pinniped or pinnipeds, and shall include a detailed 
description of the problem interaction and expected benefits of the 
removal.
    ``(c) Actions in Response to Application.--(1) Within 15 days of 
receiving an application, the Secretary shall determine whether the 
application has produced sufficient evidence to warrant establishing a 
Pinniped-Fishery Interaction Task Force to address the situation 
described in the application. If the Secretary determines that such 
sufficient evidence has been provided, the Secretary shall establish a 
Pinniped-Fishery Interaction Task Force and publish a notice in the 
Federal Register requesting public comment on the application.
    ``(2) A Pinniped-Fishery Interaction Task Force established under 
paragraph (1) shall consist of designated employees of the Department 
of Commerce, scientists who are knowledgeable about the pinniped 
interaction that the application addresses, representatives of affected 
conservation and fishing community organizations, Indian Treaty tribes, 
the States, and such other organizations as the Secretary deems 
appropriate.
    ``(3) Within 60 days after establishment, and after reviewing 
public comments in response to the Federal Register notice, the 
Pinniped-Fishery Interaction Task Force shall--
            ``(A) recommend to the Secretary whether to approve or deny 
        the proposed lethal removal of the pinniped or pinnipeds, 
        including along with the recommendation a description of the 
        specific pinniped individual or individuals, the proposed 
        location, time, and method of removal, criteria for evaluating 
        the success of the action, and the duration of the authority; 
        and
            ``(B) suggest nonlethal alternatives, if available and 
        practicable, including a recommended course of action.
    ``(4) Within 30 days after receipt of recommendations from the 
Pinniped-Fishery Interaction Task Force, the Secretary shall either 
approve or deny the application. If such application is approved, the 
Secretary shall immediately take steps to implement the lethal removal, 
which shall be performed by Federal or State agencies, or qualified 
individuals under contract to such agencies.
    ``(5) After implementation of an approved application, the 
Pinniped-Fishery Interaction Task Force shall evaluate the 
effectiveness of the permitted lethal removal or alternative actions 
implemented. If implementation was ineffective in eliminating the 
problem interaction, the Task Force shall recommend additional actions. 
If the implementation was effective, the Task Force shall so advise the 
Secretary and the Secretary shall disband the Task Force.
    ``(d) Considerations.--In considering whether an application should 
be approved or denied, the Task Force and the Secretary shall 
consider--
            ``(1) population trends, feeding habits, the location of 
        the pinniped interaction, how and when the interaction occurs, 
        and how many individual pinnipeds are involved;
            ``(2) past efforts to nonlethally deter such pinnipeds, and 
        whether the applicant has demonstrated that no feasible and 
        prudent alternatives exist and that the applicant has taken all 
        reasonable nonlethal steps without success;
            ``(3) the extent to which such pinnipeds are causing undue 
        harm, impact, or imbalance with other species in the ecosystem, 
        including fish populations; and
            ``(4) the extent to which such pinnipeds are exhibiting 
        behavior that presents an ongoing threat to public safety.
    ``(e) Limitation.--The Secretary shall not approve lethal removal 
for any pinniped from a species or stock that is listed as threatened 
or endangered under the Endangered Species Act of 1973, designated as 
depleted under this Act, or identified by the Secretary as a critical 
stock under section 117 of this Act.''.
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