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103D CONGRESS 2d Session

SENATE

REPORT

103-220

MARINE MAMMAL PROTECTION ACT
AMENDMENTS OF 1993

Mr. HOLLINGS, from the Committee on Commerce, Science, and Transportation, submitted the following

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Mr. HOLLINGS, from the Committee on Commerce, Science, and Transportation, submitted the following

REPORT

[To accompany S. 1636]

The Committee on Commerce, Science, and Transportation, to which was referred the bill (S. 1636) to authorize appropriations for the Marine Mammal Protection Act of 1972 and to improve the program to reduce the incidental taking of marine mammals during the course of commercial fishing operations, and for other purposes, having considered the same, reports favorably thereon with amendments and recommends that the bill as amended do pass.

PURPOSE OF THE BILL

S. 1636, the Marine Mammal Protection Act Amendments of 1993, as reported, would extend the authorization of appropriations through fiscal year (FY) 1998 for Federal marine mammal protection programs, and would establish a new regime governing the incidental taking of marine mammals in commercial fishing operations.

BACKGROUND AND NEEDS

The Marine Mammal Protection Act

The Marine Mammal Protection Act of 1972 (MMPA) was enacted in response to increasing popular sentiment and growing concern regarding the welfare of marine mammals. The MMPA recognizes that marine mammals have an important role in marine ecosystems and that they are significant recreational, aesthetic, and economic resources. The MMPA also notes the adverse impact of human activities on some marine mammal populations, and the

need to restore those populations that have been severely depleted. The MMPA is unique in that it confers protected status upon a group of animals containing more than 100 species, based solely on their identification as marine mammals.

The Secretaries of Commerce and the Interior have primary responsibility for implementing the MMPA. The Department of Commerce (DOC), through the National Oceanic and Atmospheric Administration (NOAA), has authority with respect to whales, porpoises, seals, and sea lions. The remaining marine mammal species (walruses, polar bears, sea otters, and manatees) are managed by the Department of the Interior (DOI) through the Fish and Wildlife Service (FWS). Both agencies are responsible for the promulgation of regulations, the issuance of permits, the conduct of scientific research, and enforcement.

In carrying out these responsibilities, both agencies are required to consult with the Marine Mammal Commission (Commission), an independent advisory agency created by the MMPA. The purpose of the Commission is to review and develop recommendations concerning actions and policies which affect marine mammals. It is also required to conduct a continuing review of all marine mammal stocks. The Commission consists of three part-time Commissioners who must be experts in marine ecology and is supported in its duties by a permanent staff of about 10 people and a statutorily created Committee of Scientific Advisors on Marine Mammals.

The MMPA establishes a comprehensive Federal program to conserve marine mammals, preempting State management authority. The central feature of the Federal program is a moratorium on the taking of all marine mammals by persons subject to U.S. jurisdiction. This protection prohibits harassment of animals, as well as the hunting or capturing of them. In addition, imports of marine mammals or marine mammal products into the United States are banned.

While the MMPA preempts State authority over marine mammals, it also establishes procedures through which States may regain that authority, together with Federal financial assistance for carrying out an approved State program. In addition, the moratorium on the taking or importation of marine mammals may be waived or does not apply under certain conditions. Waiver of the moratorium is most commonly achieved through issuance of a permit. The MMPA provides for the following exceptions: (1) the taking or importation of marine mammals for public display and for scientific research; (2) the incidental taking of marine mammals in the course of commercial fishing operations; (3) the incidental taking of marine mammals during activities such as oil and gas exploration, if the taking is determined to have a negligible impact on the species; and (4) the MMPA does not apply to takings by Alaskan Natives, provided that the species are taken for subsistence

purposes.

In most instances, the MMPA relies upon the condition of a marine mammal population to determine whether such exceptions should be made. A stated goal of the MMPA is to maintain marine mammals at optimum sustainable population (OSP) levels. Although not clearly defined in the MMPA, a species or stock is usually considered to be at the OSP level if its numbers are at least

60 percent of historic or unexploited population levels. Species listed as endangered or threatened under the Endangered Species Act of 1973 (ESA) and species which are below OSP levels are designated as depleted under the MMPA. For the most part, exceptions to the moratorium have not been allowed for depleted species or populations.

Incidential Take of Marine Mammals by Commercial Fishermen

General permits for the incidental taking of marine mammals in the course of commercial fishing were issued to U.S. fishermen in 1983, for a period of 5 years. In July 1986, the Federation of Japan Salmon Fisheries Cooperative Association applied for a 5-year general permit to allow the incidental taking of Dall's porpoise, northern fur seals, and sea lions in the course of its Bering Sea salmon driftnet fishery. NOAA issued a permit allowing the take of Dall's porpoise, but denied one for northern fur seals and sea lions because insufficient information was available to assess the status of those populations.

After the issuance of this general permit, lawsuits to enjoin the permit were filed by the Kokechik Fishermen's Association and several environmental groups. On June 15, 1987, the U.S. District Court for the District of Columbia ruled that issuance of the permit violated the MMPA. The Court's decision (Kokechik Fishermen's Association v. Secretary of Commerce) held that NOAA could not issue the permit to take Dall's porpoise if it were likely that northern fur seals also would be taken because the MMPA prohibits the issuance of a permit and any taking for a population that is below its OSP level. The decision affected NOAA's discretion to issue or renew general permits to U.S. fishermen for the incidental taking of small numbers of marine mammals from depleted populations or from those populations for which the status was uncertain.

The MMPA Amendments of 1988 (Public Law 100-711) addressed the Kokechik decision by adding section 114 to the MMPA, which provided for the issuance of a new 5-year Interim Exemption for Commercial Fisheries. Section 114 implemented a negotiated agreement between commercial fishing organizations and environmental groups, and created a 5-year period during which the nonintentional killing of marine mammals during most commercial fishing operations was permitted in exchange for an agreement by fishermen to carry observers and report all interactions with marine mammals during most commercial fishing operations. This statutory exemption would have expired on October 1, 1993. However, Congress recently passed legislation (P.L. 103-86) extending the exemption for an additional 6 months, until April 1, 1994.

Public Display and Scientific Research

With respect to public display and scientific research, NOAA issues permits under the MMPA for taking or importing marine mammals for public display, scientific research, or enhancement of the survival or recovery of a species or stock. NOAA reviews applications and decides whether to issue the requested permits, monitoring the animals as long as they are maintained under the authority of a permit. Currently, the agency is monitoring about 400 permits for scientific research and public display.

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