II
Calendar No. 394
103D CONGRESS
2D SESSION
H. R. 2760
IN THE SENATE OF UNITED STATES
MARCH 23 (legislative day, FEBRUARY 22), 1994
Received; read twice and placed on the calendar
AN ACT
To authorize the Marine Mammal Protection Act of 1972
for 6 fiscal years, to establish a new regime to govern
the incidental taking of marine mammals in the course
of commercial fishing operations, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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.
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 provi-
sion, the reference shall be considered to be made to a
section or other provision of the Marine Mammal Protec-
tion Act of 1972 (16 U.S.C. 1361 et seq.).
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
(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) 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
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
striking ‘‘and permits may’’ and all that follows
through ‘‘section 103.’’ and inserting ‘‘and author-
izations may be granted therefor under section 118
subject to regulations prescribed by the Secretary.’’;
(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 subparagraph
(C), the provisions of this Act shall not apply to the
use of measures—
‘‘(i) by the owner of fishing gear or catch,
or an employee or agent of such owner, to deter
a marine mammal from damaging the gear or
catch;
‘‘(ii) by the owner of other private prop-
erty, or an agent, bailee, or employee of such
owner, to deter a marine mammal from damag-
ing private property;
‘‘(iii) by any person, to deter a marine
mammal from endangering personal safety; or
‘‘(iv) by a government employee, to deter a
marine mammal from damaging public prop-
erty,
so long as such measures do not result in the death
or serious injury of a marine mammal.
‘‘(B) The Secretary shall, through consultation
with appropriate experts, and after notice and op-
portunity for public comment, publish in the Federal
Register a list of guidelines for use in safely deter-
ring marine mammals. In the case of marine mam-
mals listed as endangered species or threatened spe-
cies under the Endangered Species Act of 1973, the
Secretary shall recommend specific measures which
may be used to nonlethally deter marine mammals.
Actions to deter marine mammals consistent with
such guidelines 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)(A) by inserting ‘‘, other
than by harassment,’’ after ‘‘taking’’ the first place
it appears;
(6) 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
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 119.
‘‘(ii) The authorization for such activity shall
prescribe, where applicable—
‘‘(I) permissible methods of taking pursu-
ant to such activity, and other means of
effecting the least practicable impact on such
species or stock and its habitat, paying particu-
lar attention to rookeries, mating grounds, and
areas of similar significance, and on the avail-
ability of such species or stock for subsistence
uses pursuant to subsection (b) or section
109(f) or 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 subsistence uses pursuant to sub-
section (b) or section 109(f) or 119, and
‘‘(III) requirements pertaining to the mon-
itoring and reporting of such taking, including
requirements for the independent peer review of
proposed monitoring plans or other research
proposals where the proposed activity may af-
fect the availability of a species or stock for
taking for subsistence uses pursuant to sub-
section (b) or section 109(f) or 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).
‘‘(iv) The Secretary may annually renew an au-
thorization issued under this subparagraph after
providing for 30 days of public comment and con-
sulting with the parties affected by the authoriza-
tion, if the Secretary finds that the requirements of
clause (i) continue to be met.
‘‘(v) The Secretary shall establish additional
conditions or restrictions on an authorization re-
newed under clause (iv) if the Secretary finds, based
on public comment, that such conditions or restric-
tions are necessary to meet the provisions of clause
(ii).
‘‘(vi) 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.
‘‘(vii) 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) The Secretary may issue a permit under
this paragraph for periods of up to 3 years for the
incidental, but not the intentional, taking by persons
using vessels of the United States and 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)), while engaging in commercial fish-
ing operations, of small numbers of marine mam-
mals from a species or population stock that is listed
as an endangered species or threatened species
under the Endangered Species Act of 1973. Such
permit may be issued only if the Secretary deter-
mines, after notice and opportunity for public com-
ment, that—
‘‘(i) such taking will have a negligible im-
pact on the species or stock;
‘‘(ii) a program is in place which will allow
reliable estimation and monitoring of the level
of incidental take; and
‘‘(iii) a recovery plan has been developed or
is in the process of being developed for the spe-
cies or stock pursuant to the Endangered Spe-
cies Act of 1973. A permit may be issued under
this subparagraph to an organization represent-
ing more than 1 individual or fishing vessel.
‘‘(F) If the Secretary determines that the issu-
ance of a permit under this paragraph for a species
or stock has resulted or is likely to result in levels
of incidental takes which will have an impact that is
more than negligible on the species or stock, the
Secretary shall modify, suspend, or revoke the per-
mit. In making a determination under this subpara-
graph, the Secretary shall consider the level of inci-
dental takes by each permit holder in a fishery and
whether a permit holder has failed to comply with
the terms and conditions of the permit. The Sec-
retary shall notify the permit holder before modify-
ing, suspending, or revoking a permit.
‘‘(G) The Secretary shall prescribe such proce-
dures as are necessary to carry out this paragraph,
including the form and manner in which application
for permits may be made.
‘‘(H) This paragraph shall not govern the inci-
dental taking of California sea otters and shall not
be deemed to amend or repeal the Act of November
7, 1986 (Public Law 99–625; 100 Stat. 3500).’’.
(7) 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 and is registered at the time of export
and import;
‘‘(ii) was acquired outside of the United
States as part of a cultural exchange by an In-
dian, Aleut, or Eskimo residing in Alaska, and
is registered at the time of import; or
‘‘(iii) is owned by a Native inhabitant of
Russia, Canada, or Greenland and is imported
in conjunction with travel within the United
States or as part of a cultural exchange with an
Indian, Aleut, or Eskimo 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 to, is a member of the same clan or eth-
nological grouping as, or shares a common her-
itage 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 for the purpose of rendering of raw marine
mammal parts into clothing or handicrafts
through carving, painting, sewing, or decorating
but does not include an exchange for commer-
cial purposes.
‘‘(C) Raw marine mammal parts imported
under subparagraph (A)(ii) or (iii) shall be marked
or tagged under the requirements of section
109(i).’’.
(b) Section 101(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.’’.
SEC. 5. DEPLETION DETERMINATION.
Section 101(b) (16 U.S.C. 1371) is amended by add-
ing the following at the end: ‘‘Before making a determina-
tion under this subsection that a species or stock of ma-
rine mammal is depleted, the Secretary shall identify and
make available to the public the reasons for making a de-
termination and provide opportunity, at the request of any
interested party, for a hearing on the record with respect
to the determination.’’.
SEC. 6. PERMITS.
(a) PROHIBITIONS.—Section 102(a) (16 U.S.C.
1372(a)) is amended—
(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 inserting ‘‘except for
the incidental taking of marine mammals in the
course of commercial fishing operations’’ before the
period at the end;
(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; 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—
‘‘(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
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
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
that may result in a taking of a marine mammal to
an applicant which submits with its permit applica-
tion 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 harm to a spe-
cies, population, or individual, or in loss of unique
research 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
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) Geographic location of the research.
‘‘(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 may notify the ap-
plicant that the proposed research is likely to result
in the taking, including Level A harassment, of a
marine mammal, and that subparagraph (A) applies.
If no such notification is received, the proposed re-
search shall be covered under the general authoriza-
tion.’’; and
(D) by adding at the end the following new
paragraphs:
‘‘(5)(A) The Secretary may issue a permit for
the importation of polar bear parts (other than in-
ternal organs) taken in sport hunts in Canada, in-
cluding polar bears taken prior to the date of enact-
ment of the Marine Mammal Protection Act Amend-
ments of 1994, to an applicant which submits with
its permit application proof that the polar bear was
legally harvested in Canada. Such a permit shall be
issued if the Secretary, in consultation with the Ma-
rine Mammal Commission and after notice and op-
portunity for public comment, finds that—
‘‘(i) Canada has a monitored and enforced
sport hunting program consistent with the pur-
poses of the Agreement on the Conservation of
Polar Bears;
‘‘(ii) Canada has a sport hunting program
based on scientifically sound quotas ensuring
sustainable populations;
‘‘(iii) the export and subsequent import are
consistent with the provisions of the Convention
on International Trade in Endangered Species
of Wild Fauna and Flora and other inter-
national agreements and conventions; and
‘‘(iv) the export and subsequent import are
not likely to contribute to illegal trade in bear
parts.
‘‘(B) The Secretary shall establish and charge
a reasonable fee for permits issued under this para-
graph. All fees collected under this paragraph shall
be available to the Secretary for use in developing
and implementing cooperative research and manage-
ment programs for the conservation of polar bears in
Alaska and Russia pursuant to section 113(d).
‘‘(6) A permit may be issued for photography
for educational or commercial purposes involving
marine mammals in the wild only to an applicant
which submits with its permit application informa-
tion indicating that the taking will be limited to
Level B harassment, and the manner in which the
products of such activities will be made available to
the public.
‘‘(7) Upon request by a person for a permit
under paragraph (2), (3), or (4) for a marine mam-
mal which is in the possession of any person author-
ized to possess it under this Act and which is deter-
mined under guidance under section 402(a) not to
be releasable to the wild, the Secretary shall issue
the permit to the person requesting the permit if
that person—
‘‘(A) meets the requirements of clauses (i),
(ii), and (iii) of paragraph (2)(A), in the case
of a request for a permit under paragraph (2);
‘‘(B) meets the requirements of paragraph
(3), in the case of a request for a permit under
that paragraph; or
‘‘(C) meets the requirements of paragraph
(4), in the case of a request for a permit under
that paragraph.
‘‘(8)(A) No additional permit or authorization
shall be required to possess, sell, purchase, trans-
port, export, or offer to sell or purchase the progeny
of marine mammals taken or imported under this
subsection, if such possession, sale, purchase, trans-
port, export, or offer to sell or purchase is—
‘‘(i) for the purpose of public display, and
by or to, respectively, a person which meets the
requirements of clauses (i), (ii), and (iii) of
paragraph (2)(A);
‘‘(ii) for the purpose of scientific research,
and by or to, respectively, a person which meets
the requirements of paragraph (3), or
‘‘(iii) for the purpose of enhancing the sur-
vival or recovery of a species or stock, and by
or to, respectively, a person which meets the re-
quirements of paragraph (4).
‘‘(B)(i) A person which has a permit under
paragraph (2), or a person exercising rights under
paragraph (2)(C), which has possession of a marine
mammal that gives birth to progeny shall—
‘‘(I) notify the Secretary of the birth of
such progeny within 30 days after the date of
birth; and
‘‘(II) notify the Secretary of the sale, pur-
chase, or transport of such progeny no later
than 15 days before such action.
‘‘(ii) The Secretary may only require notifica-
tion under clause (i) to include the information re-
‘‘(B) The sex of the marine mammal.
‘‘(C) The estimated or actual birth date of
the marine mammal.
‘‘(D) The date of acquisition or disposition
of the marine mammal by the permit holder.
‘‘(E) The source from whom the marine
mammal was acquired including the location of
the take from the wild, if applicable.
‘‘(F) If the marine mammal is transferred,
the name of the recipient.
‘‘(G) A notation if the animal was acquired
as the result of a stranding.
‘‘(H) The date of death of the marine
mammal and the cause of death when deter-
mined.’’; and
(3) in subsection (e)(1) by—
(A) striking ‘‘or’’ at the end of subpara-
graph (A);
(B) striking the period at the end of sub-
paragraph (B) and inserting ‘‘, or’’; and
(C) adding at the end the following new
subparagraph:
‘‘(C) if, in the case of a permit under sub-
section (c)(5) authorizing importation of polar bear
parts, the Secretary, in consultation with the appro-
priate authority in Canada, determines that the sus-
tainability of Canada’s polar bear populations are
being adversely affected or that sport hunting may
be having a detrimental effect on maintaining polar
bear populations throughout their range.’’.
(c) EXISTING PERMITS.—Any permit issued under
section 104(c)(2) of the Marine Mammal Protection Act
of 1972 (16 U.S.C. 1374(c)(2)) before the date of the en-
actment of this Act is hereby modified to be consistent
with that section as amended by this Act.
SEC. 7. PURPOSE AND USE OF THE FUND.
Section 405 (16 U.S.C. 1421d) as amended by this
Act is further amended—
(1)(A) in subsection (b)(1)(A) by striking
‘‘and’’ at the end of clause (i); and
(B) by inserting a new clause (iii) as follows:
‘‘(iii) for care and maintenance of a marine
mammal seized under section 104(c)(2)(C);
and’’; and
(2) in subsection (d) by striking ‘‘For purposes
of carrying out this title, the’’ and inserting ‘‘The’’.
SEC. 8. APPLICATION TO OTHER TREATIES AND CONVEN-
TIONS.
Section 113 (16 U.S.C. 1383) is amended by—
(1) designating the existing paragraph as sub-
section (a); and
(2) adding at the end the following new sub-
sections:
‘‘(b) Not later than 1 year after the date of enact-
ment of the Marine Mammal Protection Act Amendments
of 1994, the Secretary of the Interior shall, in consultation
with the contracting parties, initiate a review of the effec-
tiveness of the Agreement on the Conservation of Polar
Bears, as provided for in Article IX of the Agreement, and
establish a process by which future reviews shall be con-
ducted.
‘‘(c) The Secretary of the Interior, in consultation
with the Secretary of State and the Marine Mammal Com-
mission, shall review the effectiveness of United States im-
plementation of the Agreement on the Conservation of
Polar Bears, particularly with respect to the habitat pro-
tection mandates contained in Article II. The Secretary
shall report the results of this review to the Committee
on Merchant Marine and Fisheries of the House of Rep-
resentatives and the Committee on Commerce, Science,
and Transportation of the Senate not later than April 1,
1995.
‘‘(d) Not later than 6 months after the date of enact-
ment of the Marine Mammal Protection Act Amendments
of 1994, the Secretary of the Interior, acting through the
Secretary of State and in consultation with the Marine
Mammal Commission and the State of Alaska, shall con-
sult with the appropriate officials of the Russian Federa-
tion on the development and implementation of enhanced
cooperative research and management programs for the
conservation of polar bears in Alaska and Russia. The
Secretary shall report the results of this consultation and
provide periodic progress reports on the research and
management programs to the Committee on Merchant
Marine and Fisheries of the House of Representatives and
the Committee on Commerce, Science and Transportation
of the Senate.’’.
SEC. 9. TAKING OF MARINE MAMMALS INCIDENTAL TO
COMMERCIAL FISHING OPERATIONS; COOP-
ERATIVE AGREEMENTS IN ALASKA.
(a) IN GENERAL.—Title I (16 U.S.C. 1371 et seq.)
is amended by adding at the end the following new sec-
tions:
‘‘SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO
COMMERCIAL FISHING OPERATIONS.
‘‘(a) IN GENERAL.—
‘‘(1) Effective on the date of enactment of the
Marine Mammal Protection Act Amendments of
1994 and except as provided in paragraphs (2), (3),
and (4), 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 and 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)). It shall be the immediate goal that
the incidental kill or serious injury of marine mam-
mals permitted in the course of commercial fishing
operations be reduced to insignificant levels ap-
proaching a zero mortality and serious injury rate
within 5 years after the date of enactment of the
Marine Mammal Protection Act Amendments of
1994.
‘‘(2) Section 101 and not this section shall gov-
ern the incidental taking of a marine mammal listed
as an endangered species or threatened species
under the Endangered Species Act of 1973.
‘‘(3) Section 104(h) and title III 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 incidental
taking of California sea otters and shall not be
deemed to amend or repeal the Act of November 7,
1986 (Public Law 99–625; 100 Stat. 3500).
‘‘(5) Except as provided in section 101(c), the
intentional lethal take of any marine mammal in the
course of commercial fishing operations is prohib-
ited.
‘‘(b) SCIENTIFIC CONSULTATION.—
‘‘(1) Not later than 60 days after the date of
enactment of the Marine Mammal Protection Act
Amendments of 1994, the Secretary shall, in con-
sultation with the Marine Mammal Commission, es-
tablish independent scientific review groups rep-
resenting Alaska, the Pacific coast (including Ha-
waii), the Gulf of Mexico, and the Atlantic coast
consisting of individuals with expertise in marine
mammal biology and ecology, population dynamics
and modeling, and commercial fishing technology
and practices, and representatives of coastal States,
for the purposes of reviewing proposed actions under
this section. The groups shall advise the Secretary
on—
‘‘(A) population estimates for those marine
mammal stocks taken incidental to commercial
fishing operations;
‘‘(B) the population status and trends of
such stocks;
‘‘(C) uncertainties and research needed re-
garding stock separation, abundance, or trends,
and factors affecting the distribution, size, or
productivity of the stock;
‘‘(D) uncertainties and research needed re-
garding the species, number, ages, gender, and
reproductive status of marine mammals taken
incidental to commercial fishing operations;
‘‘(E) research needed to identify modifica-
tions in fishing gear and practices likely to re-
duce the mortality and serious injury of marine
mammals incidental to commercial fishing oper-
ations;
‘‘(F) the potential impacts of habitat de-
struction, including marine pollution and natu-
ral environmental change, on specific marine
mammal species or stocks; and
‘‘(G) any other issue which the Secretary
or the groups consider appropriate.
‘‘(2) The scientific review groups established
under this subsection shall not be subject to the
Federal Advisory Committee Act (5 App. U.S.C.).
‘‘(3) Members of the scientific review groups
shall serve without compensation, but may be reim-
bursed by the Secretary, upon request, for reason-
able travel costs and expenses incurred in perform-
ing their obligations.
‘‘(c) STOCK ASSESSMENTS AND DETERMINATIONS OF
STRATEGIC STOCKS.—
‘‘(1) Not later than 60 days after the establish-
ment of the scientific review groups under subsection
(b), the Secretary shall, in consultation with the sci-
entific review groups, prepare proposed stock assess-
ments of each marine mammal stock which occurs in
waters under the jurisdiction of the United States
and which is taken incidental to commercial fishing
operations, and shall publish notice of its availability
in the Federal Register for public review and com-
ment for a period which shall not exceed 60 days.
Each proposed stock assessment shall include—
‘‘(A) the area in which each stock is lo-
cated and, if migratory, the season of its loca-
tion in that area;
‘‘(B) the best available estimates of mini-
mum population size, most likely population
size, stock separation, productivity, current pop-
ulation trend, and estimated optimum sustain-
able population range if available;
‘‘(C) estimates of total lethal and serious
injury take from each stock by source and, for
depleted stocks, other factors that may cause
the further decline or impede the recovery of
that stock, including impacts on marine mam-
mal habitat and prey;
‘‘(D) a description of the commercial fish-
eries that may incur incidental lethal and seri-
ous injury takes from each stock, including—
‘‘(i) the approximate number of ves-
sels actively participating in each fishery;
‘‘(ii) the best available estimates of in-
cidental lethal and serious injury take from
the stock by each fishery on an annual
basis;
‘‘(iii) seasonal or area differences in
levels of such take; and
‘‘(iv) the rate at which such take oc-
curs, based on the appropriate standard
unit of fishing effort, with an analysis of
whether the rate at which the take occurs
is exceeding or has achieved insignificant
levels approaching a zero mortality and se-
rious injury rate;
‘‘(E) the status of each stock, specifying—
‘‘(i) whether the stock has been deter-
mined to be within its optimum sustainable
population range, is depleted, is listed as a
threatened species or endangered species
under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.), or is a strategic
stock; or
‘‘(ii) that the status of the stock is
unknown;
‘‘(F) the estimated potential biological re-
moval level for each stock and the factors used
to calculate it; and
‘‘(G) the information or sources of infor-
mation upon which the assessment is based.
‘‘(2) Not later than 90 days after the close of
the public comment period on a proposed stock as-
sessment, the Secretary shall publish a final stock
assessment and make it available to the public.
‘‘(3) The Secretary shall review stock assess-
ments in accordance with this subsection—
‘‘(A) at least annually for stocks which
are—
‘‘(i) specified as strategic stocks in a
final stock assessment under this sub-
section;
‘‘(ii) listed as a threatened species or
endangered species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et
seq.);
‘‘(B) at least annually for stocks for which
significant new information is available; and
‘‘(C) at least once every 3 years for all
other stocks.
‘‘(4) Nothing in this subsection shall prevent
the Secretary from publishing stock assessments for
strategic stocks in an expedited fashion.
‘‘(d) AUTHORIZATION
TO
TAKE
MARINE
MAM-
MALS.—
‘‘(1) Not later than 30 days after the date of
the publication of the final stock assessments under
subsection (c), or September 1, 1995, whichever is
earlier, the Secretary shall issue a general authoriza-
tion and implementing regulations allowing inciden-
tal, but not intentional, taking of marine mammals
in the course of commercial fishing operations sub-
ject to the provisions of this section. The implement-
ing regulations shall identify the fisheries in which
vessels shall be considered to be operating under the
general authorization and shall establish additional
permit requirements for fisheries that are not so
identified under the general authorization.
‘‘(2) The Secretary shall, within 90 days after
the date of enactment of this section—
‘‘(A) publish in the Federal Register for
public comment, for a period of not less than
90 days, any necessary changes to the Sec-
retary’s list of commercial fisheries published
under section 114(b)(1) and which is in exist-
ence on March 31, 1994 (along with an expla-
nation of such changes and a statement of the
marine mammals and the approximate number
of vessels or persons actively involved in each
such fishery), that have—
‘‘(i) frequent incidental taking of ma-
rine mammals;
‘‘(ii) occasional incidental taking of
marine mammals; or
‘‘(iii) a remote likelihood of or no
known incidental taking of marine mam-
mals;
‘‘(B) after the close of the period for such
public comment, publish in the Federal Register
a revised list of commercial fisheries and an up-
date of information required by subparagraph
(A), together with a summary of the provisions
of this section and information sufficient to ad-
vise vessel owners on how to obtain an author-
ization and otherwise comply with the require-
ments of this section; and
‘‘(C) at least once each year thereafter,
and at such other times as the Secretary con-
siders appropriate, reexamine, based on infor-
mation gathered under this Act and other rel-
evant sources and after notice and opportunity
for public comment, the classification of com-
mercial fisheries and other determinations re-
quired under subparagraph (A) and publish in
the Federal Register any necessary changes.
‘‘(3)(A) An authorization shall be granted by
the Secretary in accordance with this section for a
vessel engaged in a commercial fishery listed under
paragraph (2)(A)(i) or (ii), upon receipt by the Sec-
retary of a completed registration form providing the
name of the vessel owner and operator, the name
and description of the vessel, the fisheries in which
it will be engaged, the approximate time, duration,
and location of such fishery operations, and the gen-
eral type and nature of use of the fishing gear and
techniques used. Such information shall be in a
readily usable format that can be efficiently entered
into and utilized by an automated or computerized
data processing system. A decal or other physical
evidence that the authorization is current and valid
shall be issued by the Secretary at the time an au-
thorization is granted, and so long as the authoriza-
tion remains current and valid, shall be reissued an-
nually thereafter.
‘‘(B) No authorization may be granted under
this section to the owner of a vessel unless such ves-
sel—
‘‘(i) is a vessel of the United States; or
‘‘(ii) has a valid fishing permit issued by
the Secretary in accordance with section 204(b)
of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1824(b)).
‘‘(C) Except as provided in subsection (a), an
authorization granted under this section shall allow
the incidental taking of all species and stocks of ma-
rine mammals to which this Act applies.
‘‘(4)(A) An owner of a vessel engaged in any
fishery listed under paragraph (2)(A)(i) or (ii) shall,
in order to engage in the lawful incidental taking of
marine mammals in a commercial fishery—
‘‘(i) have registered as required under
paragraph (3) with the Secretary in order to
obtain for each such vessel owned and used in
the fishery an authorization for the purpose of
incidentally taking marine mammals in accord-
ance with this section, except that owners of
vessels holding valid certificates of exemption
under section 114 are deemed to have reg-
istered for purposes of this subsection for the
period during which such registration is valid;
‘‘(ii) ensure that a decal or such other
physical evidence of a current and valid author-
ization as the Secretary may require is dis-
played on or is in the possession of the master
of each such vessel;
‘‘(iii) report as required by subsection (h);
and
‘‘(iv) comply with a take reduction plan
and emergency regulations issued under this
section.
‘‘(B) Any owner of a vessel receiving an author-
ization under this section for any fishery listed
under paragraph (2)(A)(i) or (ii) shall, as a condi-
tion of that authorization, take on board an observer
if requested to do so by the Secretary.
‘‘(C) An owner of a vessel engaged in a fishery
listed under paragraph (2)(A)(i) or (ii) who—
‘‘(i) fails to obtain from the Secretary an
authorization for such vessel under this section;
‘‘(ii) fails to maintain a current and valid
authorization for such vessel; or
‘‘(iii) fails to ensure that a decal or other
physical evidence of such authorization issued
by the Secretary is displayed on or is in posses-
sion of the master of the vessel,
and the master of any such vessel engaged in such
fishery, shall be deemed to have violated this title,
and for violations of clauses (i) and (ii) shall be sub-
ject to the penalties of this title, and for violations
of clause (iii) shall be subject to a fine of not more
than $100 for each offense.
‘‘(D) If the owner of a vessel has obtained and
maintains a current and valid authorization from the
Secretary under this section and meets the require-
ments set forth in this section, including compliance
with any regulations to implement a take reduction
plan under this section, the owner of such vessel,
and the master and crew members of the vessel,
shall not be subject to the penalties set forth in this
title for the incidental taking of marine mammals
while such vessel is engaged in a fishery to which
the authorization applies.
‘‘(E) Each owner of a vessel engaged in any
fishery not listed under paragraph (2)(A)(i) or (ii),
and the master and crew members of such a vessel,
shall not be subject to the penalties set forth in this
title for the incidental taking of marine mammals if
such owner reports to the Secretary, in the form and
manner required under subsection (h), instances of
incidental mortality or injury of marine mammals in
the course of that fishery.
‘‘(5) The Secretary shall suspend or revoke an
authorization granted under this section and shall
not issue a decal or other physical evidence of the
authorization for any vessel until the owner of such
vessel complies with the reporting requirements
under subsection (h) and such requirements to take
on board an observer under paragraph (4)(B) as are
applicable to such vessel. Previous failure to comply
with the requirements of section 114 shall not bar
authorization under this section for an owner who
complies with the requirements of this section. The
Secretary may suspend or revoke an authorization
granted under this subsection, and may not issue a
decal or other physical evidence of the authorization
for any vessel which fails to comply with a take re-
duction plan or emergency regulations issued under
this section.
‘‘(6)(A) The Secretary shall develop, in con-
sultation with the appropriate States, affected Re-
gional Fishery Management Councils, and other
interested persons, the means by which the granting
and administration of authorizations under this sec-
tion shall be integrated and coordinated, to the max-
imum extent practicable, with existing fishery li-
censes, registrations, and related programs.
‘‘(B) The Secretary shall utilize newspapers of
general circulation, fishery trade associations, elec-
tronic media, and other means of advising commer-
cial fishermen of the provisions of this section and
the means by which they can comply with its re-
quirements.
‘‘(C) The Secretary is authorized to charge a
fee for the granting of an authorization under this
section. The level of fees charged under this sub-
paragraph shall not exceed the administrative costs
incurred in granting an authorization. Fees collected
under this subparagraph shall be available to the
Under Secretary of Commerce for Oceans and At-
mosphere for expenses incurred in the granting and
administration of authorizations under this section.
‘‘(e) TAKE REDUCTION TEAMS.—
‘‘(1) No later than 30 days after the publication
of a final stock assessment under subsection (c), the
Secretary shall establish take reduction teams for
those marine mammal species or stocks which are
specified as strategic stocks in final stock assess-
ments under subsection (c) and publish notice of
that establishment in the Federal Register. The Sec-
retary shall establish take reduction teams for stocks
which are not specified as strategic stocks in final
stock assessments under subsection (c), as the Sec-
retary considers necessary in accordance with sub-
section (f).
‘‘(2) The Secretary may request a take reduc-
tion team to consider and provide advice on meas-
ures necessary to reduce incidental lethal takes from
a marine mammal stock whose range extends over
more than 1 region, or on multiple marine mammal
stocks within a region.
‘‘(3) Members of take reduction teams shall
have expertise regarding the conservation or biology
of the marine mammal species which the incidental