I
103D CONGRESS
1ST SESSION
H. R. 2760
To authorize the Marine Mammal Protection Act for a period of 6 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.
IN THE HOUSE OF REPRESENTATIVES
JULY 27, 1993
Mr. STUDDS (for himself, Mr. YOUNG of Alaska, Mr. FIELDS of Texas, Mr.
MANTON, and Mr. SAXTON) introduced the following bill; which was re-
ferred to the Committee on Merchant Marine and Fisheries
A BILL
To authorize the Marine Mammal Protection Act for a period
of 6 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 1993’’.
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. SMALL TAKE PROVISIONS.
(a) Section 101(a)(4) (16 U.S.C. 1371(a)(4)) is
amended to read as follows:
‘‘(4)(A) The Secretary shall allow the inciden-
tal, but not the intentional, lethal taking by citizens
of the United States while engaging in commercial
fishing operations of small numbers of marine mam-
mals listed as endangered species under the Endan-
gered Species Act of 1973 if the Secretary deter-
mines, after notice and opportunity for public com-
ment, that the total of such taking will not exceed
the potential biological removal level established for
that marine mammal stock or species under section
118(c).
‘‘(B) For the purposes of this paragraph, a re-
quest for an authorization to incidentally lethally
take marine mammals that have been listed as en-
dangered species under the Endangered Species Act
of 1973 shall be considered to be sufficient to initi-
ate a consultation under section 7 of that Act.’’.
SEC. 4. PERMITS.
Section 104 (16 U.S.C. 1374) is amended by striking
the period at the end of subsection (a) and inserting ‘‘ex-
cept for the incidental taking of marine mammals during
the course of commercial fishing operations.’’.
SEC. 5. CONSERVATION PLANS.
Section 115(b) is amended—
(1) by striking the word ‘‘and’’ after the semi-
colon at the end of subparagraph (B);
(2) by striking the period at the end of sub-
paragraph (C) and inserting ‘‘; and’’; and
(3) by adding at the end the following new sub-
paragraph:
‘‘(D) within 6 months after determination of
critical status, for any species or stock determined to
be a critical stock under section 118.’’.
SEC. 6. TAKING OF MARINE MAMMALS INCIDENTAL TO
COMMERCIAL FISHING OPERATIONS.
Title I (16 U.S.C. 1371 et seq.) is amended by adding
at the end the following new section:
‘‘SEC. 118. (a) TAKING OF MARINE MAMMALS INCI-
DENTAL TO COMMERCIAL FISHING OPERATIONS.—
tally lethally taken in the course of commercial fish-
ing operations; and
‘‘(E) research to identify modifications in fish-
ing gear and fishing practices likely to reduce the
mortality and serious injury of marine mammals in-
cidental to commercial fishing operations.
‘‘(2) The Federal Advisory Committee Act shall not
apply to the Scientific Working Group.
‘‘(c) STOCK ASSESSMENTS.—(1) Not later than 120
days after the date of the enactment of the Marine Mam-
mal Protection Act Amendments of 1993, the Secretary
shall provide to the Scientific Working Group established
under subsection (b) a preliminary stock assessment of all
marine mammal populations which occur in waters under
the jurisdiction of the United States. The preliminary
stock assessment shall include—
‘‘(A) the area in which each stock or population
is located;
‘‘(B) the best available estimates of minimum
population abundance, distribution, stock separation,
and current trend;
‘‘(C) estimates of total lethal take by source for
each stock and other factors that may impede recov-
ery of that stock, including impacts on marine mam-
mal habitat and prey;
‘‘(D) a list of commercial fisheries interacting
with each marine mammal stock, which includes—
‘‘(i) the approximate number of vessels
participating in the fishery;
‘‘(ii) the level of interaction, specifying fre-
quent, occasional, or rare incidental takes;
‘‘(iii) seasonal or area changes in level of
take; and
‘‘(iv) the rate at which takes occur, speci-
fying on a per day or per fishing operation
basis;
‘‘(E) the stock’s status, specifying whether a
species, stock, or population has been identified as
having reached its optimum sustainable population,
is depleted, threatened, endangered, or critical; and
‘‘(F) a potential biological removal level for
each stock and the factors used to calculate it.
‘‘(2) The Scientific Working Group shall review the
preliminary stock assessment and provide comments and
recommendations to the Secretary not later than 60 days
from receipt.
‘‘(3) The Secretary shall take the recommendations
of the Scientific Working Group into account and, not
later than 45 days after the receipt of such comments and
recommendations, shall make the revised stock assessment
available for public review and comment.
‘‘(4) Not later than 1 year after the date of the enact-
ment of the Marine Mammal Protection Act Amendments
of 1993, the Secretary shall publish a final stock assess-
ment of all marine mammal stocks which occur in United
States waters. The assessment shall include all informa-
tion required under paragraph (1) and any other informa-
tion which the Secretary deems appropriate.
‘‘(5) The Secretary shall review and publish, in con-
sultation with the Marine Mammal Commission, the Sec-
retary of the Interior, and the Scientific Working Group,
updated stock assessments—
‘‘(A) on an annual basis for those stocks con-
sidered to be critical; and
‘‘(B) at least once every 3 years for all other
marine mammal stocks.
‘‘(d) AUTHORIZATION
TO
TAKE
MARINE
MAM-
MALS.—(1) Not later than 30 days after the date of the
publication of the final stock assessment as required under
subsection (c), the Secretary shall issue a general author-
ization for the incidental taking of marine mammals in
the course of commercial fishing operations. Such author-
ization shall be accompanied by regulations issued by the
Secretary requiring—
‘‘(A) each vessel owner operating in a fishery
identified in the final stock assessment as interact-
ing with a marine mammal stock which has been—
‘‘(i) listed as an endangered species or
threatened species under the Endangered Spe-
cies Act of 1973;
‘‘(ii) designated as depleted under this Act;
or
‘‘(iii) identified as critical under this sec-
tion,
to register with the Secretary by biennially complet-
ing a registration form providing the name of the
vessel owner, the name and description of the vessel,
the fisheries in which it will be engaged, and such
other information as the Secretary deems necessary;
‘‘(B) each vessel required to register under sub-
paragraph (A) to display a decal or other physical
evidence issued by the Secretary indicating that the
registration is current;
‘‘(C) all lethal takes of marine mammals to be
reported to the Secretary at the end of each fishing
trip;
‘‘(D) each vessel to comply with all monitoring
requirements established by the Secretary as pro-
vided in subsection (f); and
‘‘(E) any other terms and conditions which the
Secretary deems appropriate.
‘‘(2) The Secretary is authorized to charge a fee for
the granting of an authorization under this section. The
level of fees charged under this paragraph shall not exceed
the administrative costs incurred in granting an authoriza-
tion. Fees collected under this paragraph shall be available
to the Under Secretary of Commerce for Oceans and At-
mosphere for expenses incurred in the granting and ad-
ministration of authorizations under this section.
‘‘(3) The Secretary shall review information regard-
ing the incidental taking of marine mammals under the
general authorization and evaluate the effects of such inci-
dental taking on the affected marine mammal stocks. Inci-
dental lethal takes for each marine mammal stock shall
not exceed the potential biological removal level estab-
lished in the final stock assessment required under sub-
section (c). If the Secretary finds that the incidental tak-
ing of marine mammals in a fishery is likely to exceed
the potential biological removal level, the Secretary shall
immediately consult with the appropriate conservation
team established under subsection (e), Regional Councils,
and States, and prescribe emergency regulations to pre-
vent to the maximum extent practicable any further tak-
ing. Any emergency regulations prescribed under this
paragraph shall—
‘‘(A) to the maximum extent practicable, avoid
interfering with existing State, interstate, or regional
management plans;
‘‘(B) be published in the Federal Register; and
‘‘(C) remain in effect until the Secretary deter-
mines that the reasons for the emergency regula-
tions no longer exist, or the end of the year for
which the annual potential biological removal was
calculated, whichever is earlier.
‘‘(4) Until such time as the Secretary issues a general
authorization under this section for the incidental taking
of marine mammals during the course of commercial fish-
ing operations, the provisions of section 114 shall apply.
‘‘(e) CONSERVATION TEAMS.—(1) The Secretary
shall establish a conservation team for each of the follow-
ing regions and the adjacent economic zone in which inci-
dental lethal takes of marine mammals occur:
‘‘(A) NEW ENGLAND.—The New England re-
gion, consisting of the States of Maine, New Hamp-
shire, Massachusetts, Rhode Island, and Connecti-
cut.
‘‘(B) MID-ATLANTIC.—The Mid-Atlantic region,
consisting of the States of New York, New Jersey,
Delaware, Maryland, and Virginia.
‘‘(C) SOUTH
ATLANTIC.—The South Atlantic
region, consisting of the States of North Carolina,
South Carolina, Georgia, and Florida.
‘‘(D) GULF
AND
CARIBBEAN.—The Gulf of
Mexico and Caribbean region, consisting of the
States of Texas, Louisiana, Mississippi, Alabama,
Florida; the Virgin Islands, and the Commonwealth
of Puerto Rico.
‘‘(E) PACIFIC.—The Pacific region, consisting
of the States of California, Washington, and Oregon.
‘‘(F) WESTERN PACIFIC.—The Western Pacific
region, consisting of the State of Hawaii; Guam,
American Samoa, and the Northern Mariana Is-
lands.
‘‘(G) NORTH PACIFIC.—The North Pacific re-
gion, consisting of the State of Alaska.
‘‘(2) For those regions in which a marine mammal
stock has been identified as a critical stock, conservation
teams shall be established not later than 30 days after
the publication of the final stock assessment required
under subsection (c). For those regions in which no stock
has been identified as critical, conservation teams shall be
established not later than 60 days after the publication
of the final stock assessment.
‘‘(3) Conservation team members may be drawn from
the National Marine Fisheries Service, the United States
Fish and Wildlife Service, the Marine Mammal Commis-
sion, States, Regional Councils, environmental organiza-
tions, the fishing industry, universities and scientific orga-
nizations, Alaska Native corporations, treaty tribes, and
others as the Secretary deems appropriate. Each conserva-
tion team shall have at least one member of the coinciding
Regional Council as a member. Conservation teams shall
consist of an equitable distribution of industry and
nonindustry representatives as practicable. Conservation
teams shall not be subject to the Federal Advisory Com-
mittee Act; however, meetings of the conservation teams
shall be open to the public.
‘‘(4) It shall be the immediate goal of each conserva-
tion team to advise the Secretary, through the develop-
ment of a conservation plan, on methods of reducing lethal
incidental takes of marine mammals below the potential
biological removal levels established under subsection (c)
as quickly as possible, and on methods of reducing inciden-
tal lethal takes to insignificant levels approaching zero
within 10 years. In developing a conservation plan, con-
servation teams shall consult with the States and Regional
Councils.
‘‘(5) In the case of those regions in which a marine
mammal stock has been identified as critical, and for
which total lethal takes are estimated to be greater than
the potential biological removal level established in the
stock assessment, the following provisions shall apply:
‘‘(A) Not later than 6 months after the date of
the establishment of a conservation team, the team
shall submit a draft conservation plan for the critical
stock to the Secretary.
‘‘(B) The Secretary shall take the draft con-
servation plan into consideration and, not later than
60 days after the submission of the draft conserva-
tion plan by the conservation team, the Secretary
shall publish a draft conservation plan and imple-
menting regulations for public review and comment.
‘‘(C) In the event that the conservation team is
unable to submit a draft plan to the Secretary with-
in 6 months, the Secretary shall publish a proposed
plan and implementing regulations for public review
and comment:
‘‘(D) Not later than 60 days after the close of
the comment period required under subparagraph
(B), the Secretary shall publish a final conservation
plan and implementing regulations.
‘‘(E) The Secretary and the conservation team
shall continue to meet every six months to monitor
the progress of the conservation plan.
‘‘(F) The Secretary may make adjustments to
the conservation plan and implementing regulations
as necessary, which shall be published for public re-
view and comment.
‘‘(6) In the case of those regions in which a marine
mammal stock has been identified as critical, and for
which the total lethal takes are estimated to be less than
the potential biological removal level established in the
stock assessment, the following provisions shall apply:
‘‘(A) No later than 11 months after the estab-
lishment of a conservation team, the team shall sub-
mit a draft conservation plan for the critical stock
to the Secretary.
‘‘(B) the Secretary shall take the draft con-
servation plan into consideration and, not later than
60 days following the submission of the draft con-
servation plan by the conservation team, the Sec-
retary shall publish a draft conservation plan and
implementing regulations for public review and com-
ment.
‘‘(C) in the event that the conservation team is
unable to submit a draft plan to the Secretary with-
in 11 months, the Secretary shall publish a proposed
plan and implementing regulations for public review
and comment.
‘‘(D) Not later than 60 days after the close of
the comment period required under subparagraph
(B), the Secretary shall publish a final conservation
plan and implementing regulations.
‘‘(E) The Secretary and the conservation team
shall continue to meet on an annual basis to monitor
the progress of the conservation plan.
‘‘(F) The Secretary may make adjustments to
the conservation plan and implementing regulations
as necessary, which shall be published for public re-
view and comment.
‘‘(f) MONITORING INCIDENTAL LETHAL TAKES.—(1)
The Secretary shall establish a program to monitor inci-
dental lethal takes of marine mammals during the course
of commercial fishing operations. The purposes of the
monitoring program shall be to—
‘‘(A) determine potential changes in stock sta-
tus;
‘‘(B) identify unusual changes in fishing meth-
ods, including the introduction of new or alternative
fishing gear or practices, and the initiation of experi-
mental fisheries;
‘‘(C) determine methods of reducing incidental
lethal take levels; and
‘‘(D) verify reporting of incidental lethal takes.
‘‘(2) For each fishery operating under the general au-
thorization to incidentally lethally take marine mammals
as provided under subsection (d), and consistent with the
provisions of sections 114(e)(6) and 114(e)(7), the Sec-
retary shall require that vessels operating in that fishery
carry observers in order to obtain statistically reliable in-
formation required under this section. When determining
the distribution of observers among fisheries and vessels
within a fishery, the Secretary shall be guided by the fol-
lowing standards:
‘‘(A) The requirement to obtain the best sci-
entific information available.
‘‘(B) The requirement that assignment of ob-
servers is fair and equitable among fisheries and
among vessels in a fishery.
‘‘(C) The requirement that no individual person
or vessel, or group of persons or vessels, be subject
to excessive or overly burdensome observer coverage.
‘‘(D) Where practicable, the need to minimize
costs and avoid duplication.
‘‘(3) To the extent practicable, the Secretary shall re-
quire that vessels carry observers consistent with the fol-
lowing priorities:
‘‘(A) 20 percent of the vessels in those fisheries
with incidental lethal takes from marine mammal
stocks identified as endangered species or threatened
species under the Endangered Species Act of 1973
shall carry observers.
‘‘(B) 20 percent of the vessels in those fisheries
with incidental lethal takes from marine mammal
stocks identified as critical shall carry observers.
‘‘(C) 10 percent of those fisheries with high lev-
els of incidental lethal takes from any marine mam-
mal stock designated as depleted shall carry observ-
ers.
‘‘(D) Observers may be required on vessels in
any other fishery in which incidental lethal takes are
likely to occur or in which the Secretary believes in-
cidental takes may be occurring.
‘‘(4) The Secretary shall establish a list of supple-
mentary observer providers which shall consist of private
companies, academic institutions, State agencies, and
other appropriate entities which can provide qualified ob-
servers to a vessel required to carry an observer under
this subsection. A vessel owner may choose to employ a
supplementary observer provider to meet the requirements
of this subsection.
‘‘(5) In order to be included in the list established
under paragraph (4), a supplementary observer provider
must demonstrate that—
‘‘(A) individuals employed by the provider are
citizens or nationals of the United States and have
the requisite education or experience to carry out the
functions required under this subsection;
‘‘(B) standards of conduct for observers have
been established equivalent to those applicable to
Federal personnel; and
‘‘(C) a standard system exists of collecting,
analyzing, and reporting data at such time and in
such form as is satisfactory to the Secretary.
‘‘(6)(A) Any information collected under this sub-
section shall be confidential and shall not be disclosed ex-
cept—
‘‘(i) to Federal employees whose duties require
access to such information;
‘‘(ii) to State employees pursuant to an agree-
ment with the Secretary that prevents public disclo-
sure of the identity or business of any person; or
‘‘(iii) when required by court order.
‘‘(h) CONTRIBUTIONS.—The Secretary may accept
contributions of equipment or services for use in admin-
istering this section.
‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—There
are authorized to be appropriated to the Department of
Commerce, for purposes of carrying out this section,
$15,000,000 for each of the fiscal years 1994, 1995, 1996,
1997, 1998, and 1999.’’.
SEC. 7. ESTABLISHMENT OF PINNIPED INTERACTION TASK
FORCE.
Section 104 (16 U.S.C. 1374) is amended by adding
at the end the following new subsection:
‘‘(i)(1) Not later than 60 days after the date of the
enactment of the Marine Mammal Protection Act Amend-
ments of 1993, the Secretary, in consultation with the Ma-
rine Mammal Commission, shall establish a Pinniped
Interaction Task Force to advise the Secretary on man-
agement practices regarding pinnipeds interacting in a
dangerous or damaging manner with salmonid fishery
resources.
‘‘(2) The Pinniped Interaction Task Force shall con-
sist of designated employees of the Department of Com-
merce, individuals with expertise in pinniped biology and
ecology and commercial fishing technology and practices,
particularly aquaculture technology; and representatives
from States, environmental organizations, Alaska Native
corporations, treaty tribes, and others as the Secretary
deems appropriate.
‘‘(3) The Pinniped Interaction Task Force shall ad-
vise the Secretary regarding—
‘‘(A) the use of available alternative fishing
gear or practices to mitigate the interaction;
‘‘(B) in the event that no alternative gears are
currently available, research into such alternatives;
and
‘‘(C) other means of mitigating the interaction,
including the use of limited intentional lethal
takes.’’.
SEC. 8. TREATY RIGHTS.
Nothing in this Act is intended to abrogate existing
fishing or hunting rights reserved to Indian tribes by trea-
ty with the United States.
SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS.
The Act is amended—
(1) in the table of contents by inserting after
the item relating to section 117 the following:
‘‘Sec. 118. General authorization for commercial fisheries.’’;
(2) in section 101(a)(2) (16 U.S.C. 1371(a)(2))
by striking ‘‘permits may be issued therefor’’ and all
that follows through ‘‘section 103.’’ and inserting
‘‘an authorization may be issued therefor under this
section and section 118 subject to regulations pre-
scribed by the Secretary.’’;
(3) in section 102(a) (16 U.S.C. 1372(a)) by
striking ‘‘and 114’’ and inserting ‘‘114, and 118’’;
(4) by redesignating the title III of that Act
that was added by section 3003 of the Marine Mam-
mal Health and Stranding Response Act (106 Stat.
5060) as title IV;
(5) by redesignating each of the sections of that
title in order as sections 401, 402, 403, 404, 405,
406, 407, 408, and 409;
(6) in section 401(b)(3) as redesignated by this
section by striking ‘‘304’’ and inserting in lieu there-
of ‘‘404’’;
(7) in section 405(b)(1)(A)(i) as redesignated
by this section by striking ‘‘304(b)’’ and inserting in
lieu thereof ‘‘404(b)’’;
(8) in section 406(a)(2)(A) as redesignated by
this section by striking ‘‘304(b)’’ and inserting in
lieu thereof ‘‘404(b)’’;
(9) in section 406(a)(2)(B) as redesignated by
this section by striking ‘‘304(c)’’ and inserting in
lieu thereof ‘‘404(c)’’;
(10) in section 408(1) as redesignated by this
section—
(A) by striking ‘‘305’’ and inserting in lieu
thereof ‘‘405’’, and
(B) by striking ‘‘307’’ and inserting in lieu
thereof ‘‘407’’;
(11) in section 408(2) as redesignated by this
section by striking ‘‘307’’ and inserting in lieu there-
of ‘‘407’’;
(12) in section 409(1) as redesignated by this
section by striking ‘‘305(a)’’ and inserting in lieu
thereof ‘‘405(a)’’;
(13) in section 409(5) as redesignated by this
section by striking ‘‘307(a)’’ and inserting in lieu
thereof ‘‘407(a)’’;
(14) in section 102(a) (16 U.S.C. 1372(a)) by
striking ‘‘title III’’ and inserting in lieu thereof
‘‘title IV’’;
(15) 
in 
section 
109(h)(1) 
(16 
U.S.C.
1379(h)(1)) by striking ‘‘title III’’ and inserting in
lieu thereof ‘‘title IV’’;
(16) in section 112(c) (16 U.S.C. 1382(c)) by
striking ‘‘or title III’’ and inserting in lieu thereof
‘‘or title IV’’; and
(17) by amending the table of contents con-
tained in the first section accordingly.
SEC. 10. DEFINITIONS.
Section 3 (16 U.S.C. 1362) is amended—
(1) by inserting the following new paragraphs
(1) and (2) and renumbering all other paragraphs
accordingly:
‘‘(1) The term ‘critical stock’ means a marine
mammal species or population stock—
‘‘(A) which is below its maximum net pro-
ductivity level and is not likely to rebuild to
that level without significant delay unless action
is taken to reduce human-caused mortality or
habitat destruction;
‘‘(B) which currently is above its maximum
net productivity level but is likely to be reduced
below that level unless action is taken to reduce
human-caused mortality or habitat destruction;
or
‘‘(C) the status of which is unknown or un-
certain, and the level of human-caused mortal-
ity is such that, based upon knowledge of com-
parable species or stocks, the Secretary has rea-
son to believe that it may be causing the species
or stock to be reduced or maintained below its
maximum net productivity level.
‘‘(2) The term ‘current carrying capacity’
means the largest average number of animals sup-
ported by the habitat within the historic range of a
species or population stock prior to human-caused
habitat degradation or enhancement, modified to
take into account increases and decreases due to
natural causes or human-caused effects which for all
practical purposes are irreversible.’’;
(3) by inserting the following new paragraph
(10) and renumbering all other paragraphs accord-
ingly—
‘‘(10) The term ‘maximum net productivity
level’ means the population size, age, and gender
composition at which the net annual increase in pop-
ulation size resulting from additions to the popu-
lations due to reproduction, less losses due to natu-
ral mortality, is maximized.’’;
(4) by inserting the following new paragraph
(15) and renumbering all other paragraphs accord-
ingly:
‘‘(15) The term ‘potential biological removal’
means the number of animals that may be removed
from a marine mammal population stock without
causing that stock to be reduced to, or to be main-
tained for a significant period of time at, a level
below its maximum net productivity level. Potential