II Calendar No. 628 117th CONGRESS 2d Session S. 3664 IN THE SENATE OF THE UNITED STATES February 16, 2022 Mr. Booker (for himself, Mr. Carper , Mr. Blumenthal , Mr. Whitehouse , Mr. Padilla , Mr. Van Hollen , and Mrs. Feinstein ) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation December 12, 2022 Reported by Ms. Cantwell , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To assist in the conservation of the North Atlantic right whale by supporting and providing financial resources for North Atlantic right whale conservation programs and projects of persons with expertise required for the conservation of North Atlantic right whales, and for other purposes.

1. Short title This Act may be cited as the Right Whale Coexistence Act of 2022 . 2. Findings; sense of Congress (a) Findings Congress finds that— (1) North Atlantic right whales (Eubalaena glacialis) are critically endangered, with fewer than 340 remaining at the time of the introduction of this Act; (2) historically, the North Atlantic right whale population was decimated by the whaling industry, although the whale population received protections from such industry in the 1930s; (3) despite a modest recovery prior to 2010, the North Atlantic right whale is one of the most endangered whales in the world and has experienced a significant decline since 2010; (4) the North Atlantic right whale has been listed as an endangered species under the Endangered Species Conservation Act of 1969 ( Public Law 89–669 ; 80 Stat. 926) and its successor the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) since 1970 and is designated as depleted under the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq. ); (5) because North Atlantic right whales are long-lived and highly migratory, and at present rates females give birth to a single calf only once every 5 to 10 years, they are highly vulnerable to the impacts of human activity and habitat degradation, with female whales and calves particularly vulnerable to vessel strikes; (6) North Atlantic right whales frequently cross paths with high vessel traffic areas and fishing grounds, leaving the whales particularly vulnerable to vessel collisions and fishing gear entanglements, the leading causes of injury and death to the species; (7) even when North Atlantic right whales do not die as a result of fishing gear entanglement or vessel strike, those whales can still experience significant sub-lethal effects such as chronic stress and reproductive failure; (8) this ongoing decline due to human impacts resulted in a further 30 percent decline in the population between 2019 and 2020 resulting in the lowest population estimate in the past 2 decades; (9) based on the current rate of mortality of North Atlantic right whales, and because of the small number of breeding females in the population and low birth rates, recent analysis suggests the species will lose its ability to recover in merely a few decades if human-caused mortality is not reduced immediately; (10) under the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq. ), United States fishermen in certain locations have been required to modify their fishing gear and behavior to minimize the likelihood of entanglements, including by using sinking groundlines, having weak links in buoy lines, using multiple traps per buoy, appropriately marking fishing gear, and complying with seasonal area-specific closures in North Atlantic right whale habitats; (11) vessels in United States waters that are 65 feet or more in length have been required to comply with a seasonal 10-knot speed limit in certain locations to reduce the threat of vessel collisions; and (12) ongoing mortalities, driven in part by shifts in North Atlantic right whale distribution caused by climate change, indicate that additional actions are necessary to reverse this species’ population decline. (b) Sense of Congress It is the sense of Congress that— (1) the Governments of the United States and Canada must work together to reduce lethal and sub-lethal effects of human activities on North Atlantic right whales; and (2) effectively addressing the threats to the long-term viability of the North Atlantic right whales will require a joint commitment and effort from government entities, local communities, marine scientists and conservationists, fishermen, owners and operators of commercial and recreational vessels and others in the boating and shipping industries, and other stakeholders. 3. Purposes The purposes of this Act are the following: (1) To rebuild healthy populations of the North Atlantic right whale. (2) To assist in the conservation and protection of North Atlantic right whales by supporting North Atlantic right whale conservation programs that minimize conflicts between North Atlantic right whales and human activities. I North Atlantic Right Whale Conservation 101. North Atlantic right whale conservation assistance (a) Assistance (1) In general Subject to the availability of funds and in consultation with other Federal officials, the Secretary of Commerce (in this title referred to as the Secretary ) shall provide competitive financial assistance, including multiyear grants, for projects designed to reduce the lethal and sub-lethal effects of human activities on North Atlantic right whales for which project proposals are approved by the Secretary in accordance with this section. (2) Use of existing authorities Assistance provided under this section shall be carried out in a manner consistent with authorities available to the Secretary under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) and the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq. ). (b) Project proposals (1) Eligible applicants A project proposal may be submitted to the Secretary under this section by— (A) relevant State and tribal agencies, research institutions, and nonprofit organizations with expertise required for the conservation of North Atlantic right whales; and (B) any other individual or entity, as determined appropriate by the Secretary, with the expertise required for the conservation of North Atlantic right whales, including— (i) large whale disentanglement teams approved by the National Oceanic and Atmospheric Administration and members in good standing of the National Marine Mammal Health and Stranding Response Program; (ii) an owner or operator of a vessel, as defined under section 3 of title 1, United States Code; and (iii) participants within sectors of the maritime industry, such as boating, shipping, fishing, fishing gear and rope manufacturing, and other maritime activities. (2) Federal partnership opportunities A Federal agency may not be a lead entity or receive funding for a project under this section, but may be included as a partner or collaborator on a project that receives such funding. (c) Annual grant project proposal solicitation, review, and approval (1) In general The Secretary shall annually— (A) solicit project proposals for grants under this section; (B) provide to other Federal officials, as appropriate, copies of each proposal submitted in response to the solicitation; and (C) review each such proposal on a timeline that recognizes the urgency of the declining North Atlantic right whale population to determine whether the proposal meets the criteria specified in subsection (d). (2) Consultation; approval or disapproval Subject to the availability of funds, the Secretary shall, with respect to each project proposal submitted under this section, and after consulting with other Federal officials, as appropriate— (A) consult, with respect to the proposal, with the government of each State and foreign country in which the project is to be conducted; (B) take into consideration any comments resulting from the consultation and input from fishing and other stakeholders on the potential impacts as a result of the proposal; and (C) approve or disapprove the proposal in accordance with subsections (d) and (e) and provide written notification of the approval or disapproval to the individual or entity that submitted the proposal, other Federal officials, and each State and foreign country described in subparagraph (A). (d) Criteria for approval The Secretary may approve a project proposal under this section that is likely to aid in the recovery and sustainability of a viable population of North Atlantic right whales in the wild. Such projects shall— (1) address the unintentional conflicts between humans and North Atlantic right whales through development, testing, and use of innovative technology or other methods to reduce the lethal and sub-lethal effects on North Atlantic right whales from fishing gear entanglements and vessel collisions; and (2) (A) promote cooperative projects on such topics with foreign governments; or (B) promote cooperative projects on such topics with affected local communities, small businesses such as fishermen, others in the maritime private sector, or nongovernmental organizations. (e) Priority In determining whether to fund project proposals under this section, the Secretary shall prioritize projects— (1) with a substantial likelihood of reducing lethal and sub-lethal effects on North Atlantic right whales from fishing gear entanglements or vessel collisions; (2) that include cooperation with private sector stakeholders; and (3) that demonstrate, or have the potential to provide, economic benefits to small businesses based in the United States. (f) Matching requirement (1) In general Except as provided in paragraph (3), the non-Federal share of the costs of an activity conducted with financial assistance under this section shall be 25 percent of such costs. (2) In-kind contributions The Secretary may apply to the non-Federal share of an activity conducted with financial assistance under this section the amount of funds, and the fair market value of property and services, provided by non-Federal sources and used for the activity. (3) Waiver of requirements The Secretary may waive the application of paragraph (1) if the Secretary finds that such waiver is necessary to support a conservation project that the Secretary has identified as of high priority. (g) Project reporting (1) In general Each individual or entity that receives assistance under this section for a project shall submit to the Secretary periodic reports (at such intervals as the Secretary may require) that include all information that the Secretary, after consultation with other government officials, determines is necessary to evaluate the progress and success of the project for the purposes of ensuring positive results, assessing problems, and fostering improvements. (2) Availability to the public Reports under paragraph (1), and any other documents relating to projects for which financial assistance is provided under this Act, shall be made available to the public in a timely manner. 102. Report to Congress Not later than 2 years after the date of enactment of this Act, and every 5 years thereafter, the Secretary shall submit to Congress a report on the results and effectiveness of projects receiving assistance provided under this title, including recommendations concerning how this title might be improved and whether funding for this title should be continued in the future. 103. Funding (a) Authorization of appropriations (1) Authorization There is authorized to be appropriated to the Secretary to carry out this title $15,000,000 for each of fiscal years 2022 through 2032. (2) Administrative expenses Of the amounts authorized to be appropriated under this subsection for a fiscal year, the Secretary may expend not more than 5 percent, or up to $80,000, whichever is greater, to pay the administrative expenses necessary to carry out this Act. (3) Supplement not supplant The amount authorized to be appropriated by paragraph (1) shall supplement and not supplant other amounts available to the Secretary. (b) Acceptance and use of donations The Secretary may accept, receive, solicit, hold, administer, and use any gift, devise, or bequest to provide assistance under section 101. II Continuous Plankton Recorder 201. Survey (a) In general Not later than 180 days after the date of enactment of this Act, and on an ongoing basis thereafter, the Secretary of Commerce shall conduct a Continuous Plankton Recorder survey. (b) Required elements For the purpose of conducting the survey required under subsection (a), the Northeast Fisheries Science Center shall— (1) to the extent possible, utilize the resources of and partner with, on a volunteer basis, research institutions, nonprofit organizations, commercial vessels, and other Federal agencies; (2) in as short a time as possible, ensure relevant survey samples and results are analyzed, stored, archived, and made publicly available; (3) prioritize the collection of plankton samples and data that inform the conservation of North Atlantic right whales; and (4) to the extent practicable, coordinate with the Government of Canada to develop a transboundary understanding of plankton abundance and distribution. (c) Authorization of Appropriations To carry out this section there is authorized to be appropriated to the Secretary of Commerce $300,000 for each of fiscal years 2022 through 2032.

1. Short title This Act may be cited as the Right Whale Coexistence Act of 2022 . 2. Purposes The purposes of this Act are the following: (1) To rebuild a healthy population of the North Atlantic right whale. (2) To assist in the conservation and protection of North Atlantic right whales by supporting North Atlantic right whale conservation programs that reduce conflicts between North Atlantic right whales and human activities to sustainable levels. I North Atlantic Right Whale Conservation 101. North Atlantic right whale conservation assistance (a) Assistance (1) In general Subject to the availability of funds and in consultation with other Federal officials, the Secretary of Commerce (in this title referred to as the Secretary ) shall provide competitive financial assistance, including multiyear grants, for projects designed to reduce the lethal and sub-lethal effects of human activities on North Atlantic right whales for which project proposals are approved by the Secretary in accordance with this section. (2) Use of existing authorities Assistance provided under this section shall be carried out in a manner consistent with authorities available to the Secretary under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) and the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq. ). (b) Project proposals (1) Eligible applicants A project proposal may be submitted to the Secretary under this section by— (A) relevant State and Tribal governments, research institutions, and nonprofit organizations with expertise required for the conservation of North Atlantic right whales; and (B) any other individual or entity, as determined appropriate by the Secretary, with the expertise required for the conservation of North Atlantic right whales, including— (i) large whale disentanglement teams approved by the National Oceanic and Atmospheric Administration and members in good standing of the National Marine Mammal Health and Stranding Response Program; (ii) an owner or operator of a vessel, as defined under section 3 of title 1, United States Code; and (iii) participants within sectors of the maritime industry, such as boating, shipping, fishing, fishing gear and rope manufacturing, and other maritime activities. (2) Federal partnership opportunities A Federal agency may not be a lead entity or receive funding for a project under this section, but may be included as a partner or collaborator on a project that receives such funding. (c) Annual grant project proposal solicitation, review, and approval (1) In general The Secretary shall annually— (A) solicit project proposals for grants under this section; (B) provide to other Federal officials, as appropriate, copies of each proposal submitted in response to the solicitation; and (C) review each such proposal on a timeline that recognizes the urgency of the declining North Atlantic right whale population to determine whether the proposal meets the criteria specified in subsection (d). (2) Consultation; approval or disapproval Subject to the availability of funds, the Secretary shall, with respect to each project proposal submitted under this section, and after consulting with other Federal officials, such as the Marine Mammal Commission, as appropriate— (A) consult, with respect to the proposal, with the government of each State, Tribal government, and foreign country in which the project is to be conducted; (B) take into consideration any comments resulting from the consultation and input from fishing and other stakeholders on the potential impacts as a result of the proposal; and (C) approve or disapprove the proposal in accordance with subsections (d) and (e) and provide written notification of the approval or disapproval to the individual or entity that submitted the proposal, other Federal officials, and each State, Tribal government, and foreign country described in subparagraph (A). (d) Criteria for approval The Secretary may approve a project proposal under this section that is likely to aid in the recovery and sustainability of a viable population of North Atlantic right whales in the wild. Such projects shall— (1) address the unintentional conflicts between humans and North Atlantic right whales through development, testing, and use of gear or technology or other methods to reduce the lethal and sub-lethal effects on North Atlantic right whales from fishing gear entanglements and vessel collisions; and (2) (A) promote cooperative projects on such topics with foreign governments; or (B) promote cooperative projects on such topics with affected local communities, small businesses such as fishermen, others in the maritime private sector, or nongovernmental organizations. (e) Priority In determining whether to fund project proposals under this section, the Secretary shall prioritize projects— (1) with a substantial likelihood of reducing lethal and sub-lethal effects on North Atlantic right whales from fishing gear entanglements or vessel collisions; (2) that include cooperation with private sector stakeholders; and (3) that demonstrate, or have the potential to provide, economic benefits to small businesses based in the United States. (f) Matching requirement (1) In general Except as provided in paragraph (3), the non-Federal share of the costs of an activity conducted with financial assistance under this section shall be 25 percent of such costs. (2) In-kind contributions The Secretary may apply to the non-Federal share of an activity conducted with financial assistance under this section the amount of funds, and the fair market value of property and services, provided by non-Federal sources and used for the activity. (3) Waiver of requirements The Secretary may waive the application of paragraph (1) if the Secretary finds that such waiver is necessary to support a conservation project that the Secretary has identified as of high priority. (g) Prohibited uses (1) In general Except as provided in paragraph (2), funds awarded under this section may not be used to distribute resources to an entity or individual that is not a United States person (as defined in section 7701(a)(3) of the Internal Revenue Code of 1986). (2) Exception Funds awarded under this section may be used to distribute resources to a partnership that includes an entity or individual that is not a United States person (as defined in section 7701(a)(30) of the Internal Revenue Code of 1986) if the resources are distributed directly to a partner in the partnership that is a United States person (as so defined). (h) Project reporting (1) In general Each individual or entity that receives assistance under this section for a project shall submit to the Secretary periodic reports (at such intervals as the Secretary may require) that include all information that the Secretary, after consultation with other government officials, determines is necessary to evaluate the progress and success of the project for the purposes of ensuring positive results, assessing problems, and fostering improvements. (2) Availability to the public Reports under paragraph (1) shall be made available to the public in a timely manner. 102. Report to Congress Not later than 2 years after the date of enactment of this Act, and every 5 years thereafter, the Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Natural Resources of the House of Representatives a report on the results and effectiveness of projects receiving assistance provided under this title, including recommendations concerning how this title might be improved and whether funding for this title should be continued in the future. 103. Funding (a) Authorization of appropriations (1) Authorization There is authorized to be appropriated to the Secretary to carry out this title $15,000,000 for each of fiscal years 2023 through 2032. (2) Administrative expenses Of the amounts authorized to be appropriated under this subsection for a fiscal year, the Secretary may expend not more than 5 percent, or up to $80,000, whichever is greater, to pay the administrative expenses necessary to carry out this title. (3) Supplement not supplant The amount authorized to be appropriated by paragraph (1) shall supplement and not supplant other amounts available to the Secretary. (b) Acceptance and use of donations The Secretary may accept, receive, solicit, hold, administer, and use any gift, devise, or bequest, consistent with policy of the Department of Commerce in effect on the date of enactment of this Act, to provide assistance under section 101. II Continuous Plankton Recorder 201. Survey (a) In general Not later than 180 days after the date of enactment of this Act, and on an ongoing basis thereafter, the Secretary of Commerce shall conduct a Continuous Plankton Recorder survey. (b) Required elements For the purpose of conducting the survey required under subsection (a), the Northeast Fisheries Science Center shall— (1) to the extent possible, utilize the resources of and partner with, on a volunteer basis, research institutions, nonprofit organizations, commercial vessels, and other Federal agencies; (2) in as short a time as possible, ensure relevant survey samples and results are analyzed, stored, archived, and made publicly available; (3) prioritize the collection of plankton samples and data that inform the conservation of North Atlantic right whales; and (4) to the extent practicable, coordinate with the Government of Canada to develop a transboundary understanding of plankton abundance and distribution. (c) Authorization of Appropriations To carry out this section there is authorized to be appropriated to the Secretary of Commerce $300,000 for each of fiscal years 2023 through 2032, which shall be derived from existing funds otherwise appropriated to the Secretary.

December 12, 2022 Reported with an amendment