H. Res. 412
In the House of Representatives, U. S.,
April 26, 1994.
Resolved, That upon the adoption of this resolution the
bill (S. 1636), entitled ‘‘An Act to authorize appropriations
for the Marine Mammal Protection Act of 1972 and to im-
prove the program to reduce the incidental taking of marine
mammals during the course of commercial fishing 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 the same is hereby, agreed to
with an amendment as follows:
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 Protec-
tion Act Amendments of 1994’’.
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SEC. 2. AMENDMENT OF MARINE MAMMAL PROTECTION ACT
OF 1972.
(a) REFERENCES.—Except as otherwise expressly pro-
vided, whenever in this Act an amendment or repeal is ex-
pressed in terms of an amendment to, or repeal of, a section
or other provision, the reference shall be considered to be
made to a section or other provision of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361 et seq.).
(b) RELATIONSHIP TO OTHER LAW.—Except as other-
wise 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 habi-
tats, including’’ after ‘‘made to protect’’; and
(2) in paragraph (5) in the matter following sub-
paragraph (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 follows:
‘‘(1) Consistent with the provisions of section 104,
permits may be issued by the Secretary for taking, and
importation for purposes of scientific research, public
display, photography for educational or commercial pur-
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poses, 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 permits 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 Commission and Committee shall recommend any
proposed taking or importation, other than importation
under section 104(c)(5), which is consistent with the
purposes and policies of section 2 of this Act. If the Sec-
retary issues such a permit for importation, the Sec-
retary shall issue to the importer concerned a certificate
to that effect in such form as the Secretary of the Treas-
ury prescribes, and such importation may be made upon
presentation of the certificate to the customs officer con-
cerned.’’;
(2) in paragraph (2) in the first sentence, by insert-
ing before the period at the end the following: ‘‘, or in
lieu of such permits, authorizations may be granted
therefor under section 118, subject to regulations pre-
scribed under that section by the Secretary without re-
gard to section 103’’;
(3) in paragraph (3)(B)—
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(A) by inserting ‘‘, photography for educational
or commercial purposes,’’ after ‘‘purposes’’; 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 follows:
‘‘(4)(A) Except as provided in subparagraphs (B)
and (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 ma-
rine mammal from damaging the gear or catch;
‘‘(ii) by the owner of other private property, or
an agent, bailee, or employee of such owner, to
deter a marine mammal from damaging private
property;
‘‘(iii) by any person, to deter a marine mam-
mal from endangering personal safety; or
‘‘(iv) by a government employee, to deter a ma-
rine mammal from damaging public property,
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 opportunity for
public comment, publish in the Federal Register a list of
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guidelines for use in safely deterring marine mammals.
In the case of marine mammals listed as endangered
species or threatened species under the Endangered Spe-
cies 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 or specific measures shall not be a
violation of this Act.
‘‘(C) If the Secretary determines, using the best sci-
entific information available, that certain forms of deter-
rence have a significant adverse effect on marine mam-
mals, the Secretary may prohibit such deterrent meth-
ods, after notice and opportunity for public comment,
through regulation under this Act.
‘‘(D) The authority to deter marine mammals pur-
suant to subparagraph (A) applies to all marine mam-
mals, including all stocks designated as depleted under
this Act.’’;
(5) in paragraph (5) by adding at the end the fol-
lowing 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 geographic re-
gion, the Secretary shall authorize, for periods of not
more than 1 year, subject to such conditions as the Sec-
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retary may specify, the incidental, but not intentional,
taking by harassment of small numbers of marine mam-
mals 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
concerned—
‘‘(I) will have a negligible impact on such spe-
cies or stock, and
‘‘(II) will not have an unmitigable adverse im-
pact 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 pre-
scribe, where applicable—
‘‘(I) permissible methods of taking by harass-
ment pursuant to such activity, and other means of
effecting the least practicable impact on such spe-
cies or stock and its habitat, paying particular at-
tention to rookeries, mating grounds, and areas of
similar significance, and on the availability of such
species or stock for taking for subsistence uses pur-
suant to subsection (b) or section 109(f) or pursu-
ant to a cooperative agreement under section 119,
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‘‘(II) the measures that the Secretary deter-
mines are necessary to ensure no unmitigable ad-
verse impact on the availability of the species or
stock for taking for subsistence uses pursuant to
subsection (b) or section 109(f) or pursuant to a co-
operative agreement under section 119, and
‘‘(III) requirements pertaining to the monitor-
ing and reporting of such taking by harassment, in-
cluding requirements for the independent peer re-
view of proposed monitoring plans or other research
proposals where the proposed activity may affect
the availability of a species or stock for taking for
subsistence uses pursuant to subsection (b) or sec-
tion 109(f) or pursuant to a cooperative agreement
under section 119.
‘‘(iii) The Secretary shall publish a proposed au-
thorization not later than 45 days after receiving an ap-
plication under this subparagraph and request public
comment through notice in the Federal Register, news-
papers of general circulation, and appropriate electronic
media and to all locally affected communities for a pe-
riod of 30 days after publication. Not later than 45 days
after the close of the public comment period, if the Sec-
retary makes the findings set forth in clause (i), the Sec-
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retary shall issue an authorization with appropriate con-
ditions to meet the requirements of clause (ii).
‘‘(iv) The Secretary shall modify, suspend, or revoke
an authorization if the Secretary finds that the provi-
sions of clauses (i) or (ii) are not being met.
‘‘(v) A person conducting an activity for which an
authorization has been granted under this subparagraph
shall not be subject to the penalties of this Act for tak-
ing by harassment that occurs in compliance with such
authorization.
‘‘(E)(i) During any period of up to 3 consecutive
years, the Secretary shall allow the incidental, but not
the intentional, taking by persons using vessels of the
United States or vessels which have valid fishing permits
issued by the Secretary in accordance with section
204(b) of the Magnuson Fishery Conservation and Man-
agement Act (16 U.S.C. 1824(b)), while engaging in
commercial fishing operations, 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 oppor-
tunity for public comment, determines that—
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‘‘(I) the incidental mortality and serious injury
from commercial fisheries will have a negligible im-
pact on such species or stock;
‘‘(II) a recovery plan has been developed or is
being developed for such species or stock pursuant
to the Endangered Species Act of 1973; and
‘‘(III) where required under section 118, a
monitoring program is established under subsection
(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 Sec-
retary 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 para-
graph applies. Vessels engaged in a fishery included in
the notice published by the Secretary under this clause
which are not required 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 para-
graph applies, so long as the owner or master of such
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vessel 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 inci-
dental mortality or serious injury from commercial fish-
eries for which a determination was made under clause
(i) has resulted or is likely to result in an impact that
is more than negligible on the endangered or threatened
species or stock, the Secretary shall use the emergency
authority granted under section 118 to protect such spe-
cies or stock, and may modify any permit granted under
this paragraph as necessary.
‘‘(iv) The Secretary may suspend for a time certain
or revoke a permit granted under this subparagraph only
if the Secretary determines that the conditions or limita-
tions 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 deter-
mines there has been a significant change in the infor-
mation or conditions used to determine such list.
‘‘(v) Sections 103 and 104 shall not apply to the
taking of marine mammals under the authority of this
subparagraph.