103D CONGRESS
2D SESSION
H. R. 2760
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
‘‘(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