IV
103D CONGRESS
2D SESSION
H. RES. 412
Providing for the concurrence by the House with an amendment in the
amendment of the Senate to the amendment of the House to S. 1636.
IN THE HOUSE OF REPRESENTATIVES
APRIL 26, 1994
Mr. STUDDS submitted the following resolution; which was considered under
suspension of the rules and agreed to
RESOLUTION
Providing for the concurrence by the House with an amend-
ment in the amendment of the Senate to the amendment
of the House to S. 1636.
Resolved, That upon the adoption of this resolution
the bill (S. 1636), entitled ‘‘An Act to authorize appropria-
tions 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 fish-
ing operations, and for other purposes’’, with the Senate
amendment to the House amendment thereto, shall be
considered to have been taken from the Speaker’s table
to the end that the Senate amendment thereto be, and
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the same is hereby, agreed to with an amendment as fol-
lows:
In lieu of the matter proposed to be inserted by the
amendment of the Senate, insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Marine Mammal Pro-
tection Act Amendments of 1994’’.
SEC. 2. AMENDMENT OF MARINE MAMMAL PROTECTION
ACT OF 1972.
(a) REFERENCES.—Except as otherwise expressly
provided, whenever in this Act an amendment or repeal
is expressed in terms of an amendment to, or repeal of,
a section or other provision, the reference shall be consid-
ered to be made to a section or other provision of the Ma-
rine Mammal Protection Act of 1972 (16 U.S.C. 1361 et
seq.).
(b) RELATIONSHIP TO OTHER LAW.—Except as oth-
erwise expressly provided, nothing in this Act is intended
to amend, repeal, or otherwise affect any other provision
of law.
SEC. 3. FINDINGS AND DECLARATION OF POLICY.
Section 2 (16 U.S.C. 1361) is amended—
(1) in paragraph (2) by inserting ‘‘essential
habitats, including’’ after ‘‘made to protect’’; and
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(2) in paragraph (5) in the matter following
subparagraph (B) by inserting ‘‘and their habitats’’
before ‘‘is therefore necessary’’.
SEC. 4. MORATORIUM AND EXCEPTIONS.
(a) IN
GENERAL.—Section 101(a) (16 U.S.C.
1371(a)) is amended—
(1) by amending paragraph (1) to read as fol-
lows:
‘‘(1) Consistent with the provisions of section
104, permits may be issued by the Secretary for tak-
ing, and importation for purposes of scientific re-
search, public display, photography for educational
or commercial purposes, or enhancing the survival or
recovery of a species or stock, or for importation of
polar bear parts (other than internal organs) taken
in sport hunts in Canada. Such permits, except per-
mits issued under section 104(c)(5), may be issued
if the taking or importation proposed to be made is
first reviewed by the Marine Mammal Commission
and the Committee of Scientific Advisors on Marine
Mammals established under title II. The Commis-
sion and Committee shall recommend any proposed
taking or importation, other than importation under
section 104(c)(5), which is consistent with the pur-
poses and policies of section 2 of this Act. If the
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Secretary issues such a permit for importation, the
Secretary shall issue to the importer concerned a
certificate to that effect in such form as the Sec-
retary of the Treasury prescribes, and such importa-
tion may be made upon presentation of the certifi-
cate to the customs officer concerned.’’;
(2) in paragraph (2) in the first sentence, by
inserting before the period at the end the following:
‘‘, or in lieu of such permits, authorizations may be
granted therefor under section 118, subject to regu-
lations prescribed under that section by the Sec-
retary without regard to section 103’’;
(3) in paragraph (3)(B)—
(A) by inserting ‘‘, photography for edu-
cational or commercial purposes,’’ after ‘‘pur-
poses’’; and
(B) by inserting ‘‘or as provided for under
paragraph (5) of this subsection,’’ after ‘‘sub-
section,’’;
(4) by amending paragraph (4) to read as fol-
lows:
‘‘(4)(A) Except as provided in subparagraphs
(B) and (C), the provisions of this Act shall not
apply to the use of measures—
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such guidelines or specific measures shall not be a
violation of this Act.
‘‘(C) If the Secretary determines, using the best
scientific information available, that certain forms of
deterrence have a significant adverse effect on ma-
rine mammals, the Secretary may prohibit such de-
terrent methods, after notice and opportunity for
public comment, through regulation under this Act.
‘‘(D) The authority to deter marine mammals
pursuant to subparagraph (A) applies to all marine
mammals, including all stocks designated as de-
pleted under this Act.’’;
(5) in paragraph (5) by adding at the end the
following new subparagraphs:
‘‘(D)(i) Upon request therefor by citizens of the
United States who engage in a specified activity
(other than commercial fishing) within a specific ge-
ographic region, the Secretary shall authorize, for
periods of not more than 1 year, subject to such
conditions as the Secretary may specify, the inciden-
tal, but not intentional, taking by harassment of
small numbers of marine mammals of a species or
population stock by such citizens while engaging in
that activity within that region if the Secretary finds
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that such harassment during each period con-
cerned—
‘‘(I) will have a negligible impact on such
species or stock, and
‘‘(II) will not have an unmitigable adverse
impact on the availability of such species or
stock for taking for subsistence uses pursuant
to subsection (b), or section 109(f) or pursuant
to a cooperative agreement under section 119.
‘‘(ii) The authorization for such activity shall
prescribe, where applicable—
‘‘(I) permissible methods of taking by har-
assment pursuant to such activity, and other
means of effecting the least practicable impact
on such species or stock and its habitat, paying
particular 
attention 
to 
rookeries, 
mating
grounds, and areas of similar significance, and
on the availability of such species or stock for
taking for subsistence uses pursuant to sub-
section (b) or section 109(f) or pursuant to a
cooperative agreement under section 119,
‘‘(II) the measures that the Secretary de-
termines are necessary to ensure no unmitigable
adverse impact on the availability of the species
or stock for taking for subsistence uses pursu-
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ant to subsection (b) or section 109(f) or pursu-
ant to a cooperative agreement under section
119, and
‘‘(III) requirements pertaining to the mon-
itoring and reporting of such taking by harass-
ment, including requirements for the independ-
ent peer review of proposed monitoring plans or
other research proposals where the proposed ac-
tivity may affect the availability of a species or
stock for taking for subsistence uses pursuant
to subsection (b) or section 109(f) or pursuant
to a cooperative agreement under section 119.
‘‘(iii) The Secretary shall publish a proposed
authorization not later than 45 days after receiving
an application under this subparagraph and request
public comment through notice in the Federal Reg-
ister, newspapers of general circulation, and appro-
priate electronic media and to all locally affected
communities for a period of 30 days after publica-
tion. Not later than 45 days after the close of the
public comment period, if the Secretary makes the
findings set forth in clause (i), the Secretary shall
issue an authorization with appropriate conditions to
meet the requirements of clause (ii).
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‘‘(iv) The Secretary shall modify, suspend, or
revoke an authorization if the Secretary finds that
the provisions of clauses (i) or (ii) are not being met.
‘‘(v) A person conducting an activity for which
an authorization has been granted under this sub-
paragraph shall not be subject to the penalties of
this Act for taking by harassment that occurs in
compliance with such authorization.
‘‘(E)(i) During any period of up to 3 consecu-
tive years, the Secretary shall allow the incidental,
but not the intentional, taking by persons using ves-
sels of the United States or vessels which have valid
fishing permits issued by the Secretary in accord-
ance with section 204(b) of the Magnuson Fishery
Conservation and Management Act (16 U.S.C.
1824(b)), while engaging in commercial fishing oper-
ations, of marine mammals from a species or stock
designated as depleted because of its listing as an
endangered species 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—
‘‘(I) the incidental mortality and serious
injury from commercial fisheries will have a
negligible impact on such species or stock;
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‘‘(II) a recovery plan has been developed or
is being developed for such species or stock pur-
suant to the Endangered Species Act of 1973;
and
‘‘(III) where required under section 118, a
monitoring program is established under sub-
section (d) of such section, vessels engaged in
such fisheries are registered in accordance with
such section, and a take reduction plan has
been developed or is being developed for such
species or stock.
‘‘(ii) Upon a determination by the Secretary
that the requirements of clause (i) have been met,
the Secretary shall publish in the Federal Register
a list of those fisheries for which such determination
was made, and, for vessels required to register under
section 118, shall issue an appropriate permit for
each authorization granted under such section to
vessels to which this paragraph applies. Vessels en-
gaged in a fishery included in the notice published
by the Secretary under this clause which are not re-
quired to register under section 118 shall not be
subject to the penalties of this Act for the incidental
taking of marine mammals to which this paragraph
applies, so long as the owner or master of such ves-
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sel reports any incidental mortality or injury of such
marine mammals to the Secretary in accordance
with section 118.
‘‘(iii) If, during the course of the commercial
fishing season, the Secretary determines that the
level of incidental mortality or serious injury from
commercial fisheries for which a determination was
made under clause (i) has resulted or is likely to re-
sult in an impact that is more than negligible on the
endangered or threatened species or stock, the Sec-
retary shall use the emergency authority granted
under section 118 to protect such species or stock,
and may modify any permit granted under this para-
graph as necessary.
‘‘(iv) The Secretary may suspend for a time
certain or revoke a permit granted under this sub-
paragraph only if the Secretary determines that the
conditions or limitations set forth in such permit are
not being complied with. The Secretary may amend
or modify, after notice and opportunity for public
comment, the list of fisheries published under clause
(ii) whenever the Secretary determines there has
been a significant change in the information or con-
ditions used to determine such list.
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‘‘(v) Sections 103 and 104 shall not apply to
the taking of marine mammals under the authority
of this subparagraph.
‘‘(vi) This subparagraph shall not govern the
incidental taking of California sea otters and shall
not be deemed to amend or repeal the Act of No-
vember 7, 1986 (Public Law 99–625; 100 Stat.
3500).’’; and
(6) by adding at the end the following new
paragraph:
‘‘(6)(A) A marine mammal product may be im-
ported into the United States if the product—
‘‘(i) was legally possessed and exported by
any citizen of the United States in conjunction
with travel outside the United States, provided
that the product is imported into the United
States by the same person upon the termination
of travel;
‘‘(ii) was acquired outside of the United
States as part of a cultural exchange by an In-
dian, Aleut, or Eskimo residing in Alaska; or
‘‘(iii) is owned by a Native inhabitant of
Russia, Canada, or Greenland and is imported
for noncommercial purposes in conjunction with
travel within the United States or as part of a
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cultural exchange with an Indian, Aleut, or Es-
kimo residing in Alaska.
‘‘(B) For the purposes of this paragraph, the
term—
‘‘(i) ‘Native inhabitant of Russia, Canada,
or Greenland’ means a person residing in Rus-
sia, Canada, or Greenland who is related by
blood, is a member of the same clan or ethno-
logical grouping, or shares a common heritage
with an Indian, Aleut, or Eskimo residing in
Alaska; and
‘‘(ii) ‘cultural exchange’ means the sharing
or exchange of ideas, information, gifts, cloth-
ing, or handicrafts between an Indian, Aleut, or
Eskimo residing in Alaska and a Native inhab-
itant of Russia, Canada, or Greenland, includ-
ing rendering of raw marine mammal parts as
part of such exchange into clothing or handi-
crafts through carving, painting, sewing, or
decorating.’’.
(b) ACTIONS AFFECTING SECTION 101(b).—Section
101(b) (16 U.S.C. 1371(b)) is amended by adding at the
end the following new sentences: ‘‘In promulgating any
regulation or making any assessment pursuant to a hear-
ing or proceeding under this subsection or section
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117(b)(2), or in making any determination of depletion
under this subsection or finding regarding unmitigable ad-
verse impacts under subsection (a)(5) that affects stocks
or persons to which this subsection applies, the Secretary
shall be responsible for demonstrating that such regula-
tion, assessment, determination, or finding is supported
by substantial evidence on the basis of the record as a
whole. The preceding sentence shall only be applicable in
an action brought by one or more Alaska Native organiza-
tions representing persons to which this subsection ap-
plies.’’.
(c) TAKING IN DEFENSE OF SELF OR OTHERS.—
Section 101(c) (16 U.S.C. 1371(c)) is amended to read
as follows:
‘‘(c) It shall not be a violation of this Act to take
a marine mammal if such taking is imminently necessary
in self-defense or to save the life of a person in immediate
danger, and such taking is reported to the Secretary with-
in 48 hours. The Secretary may seize and dispose of any
carcass.’’.
SEC. 5. PERMITS.
(a) PROHIBITIONS.—Section 102(a) (16 U.S.C.
1372(a)) is amended—
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(1) in paragraph (2)(B) by striking ‘‘for any
purpose in any way connected with the taking or im-
portation of’’ and inserting ‘‘to take or import’’; and
(2) in paragraph (4) by—
(A) striking ‘‘or offer to purchase or sell’’
and inserting ‘‘export, or offer to purchase, sell,
or export’’;
(B) striking ‘‘product; and’’ and inserting
‘‘product—’’; and
(C) inserting after and below the text of
the paragraph the following:
‘‘(A) that is taken in violation of this Act;
or
‘‘(B) for any purpose other than public
display, scientific research, or enhancing the
survival of a species or stock as provided for
under subsection 104(c); and’’.
(b) PERMITS.—Section 104 (16 U.S.C. 1374) is
amended—
(1) in subsection (a) by adding at the end the
following: ‘‘Permits for the incidental taking of ma-
rine mammals in the course of commercial fishing
operations may only be issued as specifically pro-
vided for in sections 101(a)(5) or 306, or subsection
(h) of this section.’’;
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(2) in subsection (c)—
(A) in paragraph (1) in the first sentence
by striking ‘‘and after’’;
(B) by amending paragraph (2) to read as
follows:
‘‘(2)(A) A permit may be issued to take or im-
port a marine mammal for the purpose of public dis-
play only to a person which the Secretary deter-
mines—
‘‘(i) offers a program for education or con-
servation purposes that is based on profes-
sionally recognized standards of the public dis-
play community;
‘‘(ii) is registered or holds a license issued
under 7 U.S.C. 2131 et seq.; and
‘‘(iii) maintains facilities for the public dis-
play of marine mammals that are open to the
public on a regularly scheduled basis and that
access to such facilities is not limited or re-
stricted other than by charging of an admission
fee.
‘‘(B) A permit under this paragraph shall grant
to the person to which it is issued the right, without
obtaining any additional permit or authorization
under this Act, to—
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‘‘(i) take, import, purchase, offer to pur-
chase, possess, or transport the marine mam-
mal that is the subject of the permit; and
‘‘(ii) sell, export, or otherwise transfer pos-
session of the marine mammal, or offer to sell,
export, or otherwise transfer possession of the
marine mammal—
‘‘(I) for the purpose of public display,
to a person that meets the requirements of
clauses (i), (ii), and (iii) of subparagraph
(A);
‘‘(II) for the purpose of scientific re-
search, to a person that meets the require-
ments of paragraph (3); or
‘‘(III) for the purpose of enhancing
the survival or recovery of a species or
stock, to a person that meets the require-
ments of paragraph (4).
‘‘(C) A person to which a marine mammal is
sold or exported or to which possession of a marine
mammal is otherwise transferred under the author-
ity of subparagraph (B) shall have the rights and re-
sponsibilities described in subparagraph (B) with re-
spect to the marine mammal without obtaining any
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additional permit or authorization under this Act.
Such responsibilities shall be limited to—
‘‘(i) for the purpose of public display, the
responsibility to meet the requirements of
clauses (i), (ii), and (iii) of subparagraph (A),
‘‘(ii) for the purpose of scientific research,
the responsibility to meet the requirements of
paragraph (3), and
‘‘(iii) for the purpose of enhancing the sur-
vival or recovery of a species or stock, the re-
sponsibility to meet the requirements of para-
graph (4).
‘‘(D) If the Secretary—
‘‘(i) finds in concurrence with the Sec-
retary of Agriculture, that a person that holds
a permit under this paragraph for a marine
mammal, or a person exercising rights under
subparagraph (C), no longer meets the require-
ments of subparagraph (A)(ii) and is not rea-
sonably likely to meet those requirements in the
near future, or
‘‘(ii) finds that a person that holds a per-
mit under this paragraph for a marine mam-
mal, or a person exercising rights under sub-
paragraph (C), no longer meets the require-
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ments of subparagraph (A) (i) or (iii) and is
not reasonably likely to meet those require-
ments in the near future,
the Secretary may revoke the permit in accordance
with section 104(e), seize the marine mammal, or
cooperate with other persons authorized to hold ma-
rine mammals under this Act for disposition of the
marine mammal. The Secretary may recover from
the person expenses incurred by the Secretary for
that seizure.
‘‘(E) No marine mammal held pursuant to a
permit issued under subparagraph (A), or by a per-
son exercising rights under subparagraph (C), may
be sold, purchased, exported, or transported unless
the Secretary is notified of such action no later than
15 days before such action, and such action is for
purposes of public display, scientific research, or en-
hancing the survival or recovery of a species or
stock. The Secretary may only require the notifica-
tion to include the information required for the in-
ventory established under paragraph (10).’’;
(C) by amending paragraph (3) to read as
follows:
‘‘(3)(A) The Secretary may issue a permit
under this paragraph for scientific research purposes
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to an applicant which submits with its permit appli-
cation information indicating that the taking is re-
quired to further a bona fide scientific purpose. The
Secretary may issue a permit under this paragraph
before the end of the public review and comment pe-
riod required under subsection (d)(2) if delaying is-
suance of the permit could result in injury to a spe-
cies, stock, or individual, or in loss of unique re-
search opportunities.
‘‘(B) No permit issued for purposes of scientific
research shall authorize the lethal taking of a ma-
rine mammal unless the applicant demonstrates that
a nonlethal method of conducting the research is not
feasible. The Secretary shall not issue a permit for
research which involves the lethal taking of a marine
mammal from a species or stock that is depleted,
unless the Secretary determines that the results of
such research will directly benefit that species or
stock, or that such research fulfills a critically im-
portant research need.
‘‘(C) Not later than 120 days after the date of
enactment of the Marine Mammal Protection Act
Amendments of 1994, the Secretary shall issue a
general authorization and implementing regulations
allowing bona fide scientific research that may result
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only in taking by Level B harassment of a marine
mammal. Such authorization shall apply to persons
which submit, by 60 days before commencement of
such research, a letter of intent via certified mail to
the Secretary containing the following:
‘‘(i) The species or stocks of marine mam-
mals which may be harassed.
‘‘(ii) The geographic location of the re-
search.
‘‘(iii) The period of time over which the re-
search will be conducted.
‘‘(iv) The purpose of the research, includ-
ing a description of how the definition of bona
fide research as established under this Act
would apply.
‘‘(v) Methods to be used to conduct the re-
search.
Not later than 30 days after receipt of a letter of
intent to conduct scientific research under the gen-
eral authorization, the Secretary shall issue a letter
to the applicant confirming that the general author-
ization applies, or, if the proposed research is likely
to result in the taking (including Level A harass-
ment) of a marine mammal, shall notify the appli-
cant that subparagraph (A) applies.’’; and
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‘‘(b) PUBLIC COMMENT.—(1) The Secretary shall
publish in the Federal Register a notice of the availability
of a draft stock assessment or any revision thereof and
provide an opportunity for public review and comment
during a period of 90 days. Such notice shall include a
summary of the assessment and a list of the sources of
information or published reports upon which the assess-
ment is based.
‘‘(2) Subsequent to the notice of availability required
under paragraph (1), if requested by a person to which
section 101(b) applies, the Secretary shall conduct a pro-
ceeding on the record prior to publishing a final stock as-
sessment or any revision thereof for any stock subject to
taking under section 101(b).
‘‘(3) After consideration of the best scientific infor-
mation available, the advice of the appropriate regional
scientific review group established under subsection (d),
and the comments of the general public, the Secretary
shall publish in the Federal Register a notice of availabil-
ity and a summary of the final stock assessment or any
revision thereof, not later than 90 days after—
‘‘(A) the close of the public comment period on
a draft stock assessment or revision thereof; or
‘‘(B) final action on an agency proceeding pur-
suant to paragraph (2).