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Marine Mammal Protection Act Amendments of 1994
94-751 ENR
CONTENTS SUMMARY The Marine Mammal Protection Act (MMPA) of 1972 was reauthorized by the Marine Mammal Protection Act Amendments of 1994 (Public Law 103-238) as signed by President Clinton on April 30, 1994. These Amendments reauthorize appropriations for the Marine Mammal Commission, the Department of Commerce, and the Department of the Interior -- the agencies responsible for implementing the Marine Mammal Protection Act -- through fiscal year 1999. In addition, substantial changes were made to many of the Act's provisions, incorporating contributions from commercial fishers, conservation groups, public display institutions, scientific researchers, the National Marine Fisheries Service, the Fish and Wildlife Service, the Marine Mammal Commission, animal protection groups, and the Alaska Native community. The most significant amendments involved establishing a new regime to govern the taking of marine mammals incidental to commercial fishing, replacing the Interim Exemption in place since 1988. Three new sections were added to the Act to address commercial fishing: the preparation of stock assessments for all marine mammal stocks in waters under U.S. jurisdiction; development and implementation of take reduction plans for stocks that may be reduced or are being maintained below their optimum sustainable population levels due to interactions with commercial fisheries; and studies of pinniped-fishery interactions. Maintaining the original aspirations of the Marine Mammal Protection Act, the Amendments continue to protect marine mammals, seeking to maintain stocks at, or recover stocks to, their optimum sustainable population levels. To achieve that goal, protection of essential habitats including rookeries, mating grounds, and areas of similar significance is emphasized by including specific "habitat" language in the bill. Other major changes include a mechanism for authorizing importation of polar bear parts (other than internal organs) from Canada (provided the required findings are made); revised permit provisions for public display and scientific research; establishment of permits for purposes of photography; procedures for authorizing the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative effect on salmonid fishery stocks; eliminated jurisdiction over the care and maintenance of captive marine mammals held for purposes of public display at registered or licensed facilities; and authority for providing grants to Alaska Native organizations for the purpose of developing co-management structures for marine mammal stocks taken for subsistence purposes. This CRS Report summarizes provisions of the Marine Mammal Protection Act Amendments of 1994 and outlines this Act's implementation schedule for use by Members of Congress and their staff.
AMENDING THE MARINE MAMMAL PROTECTION ACT (2) The 103d Congress amended the Marine Mammal Protection Act (MMPA) of 1972 to reflect the concerns of various interest groups, and revised the existing management regime to increase its effectiveness in protecting marine mammals. The major debate was over developing a new regime to govern interactions between marine mammals and commercial fishing operations, since a five-year interim exemption for marine mammal taking (3) by commercial fishing operations was expiring.(4) The House Merchant Marine and Fisheries Subcommittee on Environment and Natural Resources held a hearing on general MMPA issues on April 20, 1993, with additional hearings on H.R. 2760 to reauthorize the MMPA on August 4, 1993, and on February 10, 1994. The Senate Committee on Commerce, Science, and Transportation (National Ocean Policy Study) held hearings on general MMPA issues on July 14 and 28, 1993, prior to the introduction of S. 1636 on November 8, 1993. The Senate Commerce Committee reported S. 1636 with amendments on January 25, 1994.(5) on March 9, 1994, the House Merchant Marine Subcommittee marked up H.R. 2760, including amendments providing for polar bear trophies to be imported from Canada and establishing a process whereby Federal permission might be granted to intentionally kill individually identifiable pinnipeds having a significant negative effect on certain salmonid fishery stocks, without first having to determine that the marine mammal stock was within its optimum sustainable population range. Full Committee markup was held March 16, and the bill was reported on March 21.(6) on March 21, both the House and Senate passed MMPA reauthorization bills (H.R. 2760 and S. 1636, respectively). on March 22, the House amended and passed S. 1636, incorporating most of the changes reflected in H.R 2760. On March 24, the Senate agreed to the House-amended version of S. 1636 with a further amendment requiring a study after 2 years of the polar bear trophy imports for possible adverse effects and eliminating a controversial proposal to add "harm" to the Act's definition of "take" and to define "harm" to include some types of habitat modification. On April 26, 1994, the House and Senate adopted compromise language; President Clinton signed the measure into law as Pub.L. 103-238 on April 30, 1994. Incidental Mortality During Commercial FishingMarine Mammal Stock Assessments The National Marine Fisheries Service (NMFS) in the Department of Commerce and the U.S. Fish and Wildlife Service (FWS) in the Department of the Interior, as appropriate, are required to prepare reports, in consultation with Regional Scientific Review Groups,(7) that describe the status of each marine mammal stock which occurs in waters under the jurisdiction of the United States. These reports include, among other things, the following information: [1] a description of the marine mammal stock and its geographic range; [2] several basic biological parameters of population dynamics; [3] estimates of human-induced mortality, by source; [4] a determination of the status of the stock; and [5] an estimate of a potential biological removal (PBR) level (8) for the affected stock that, if not exceeded, would allow the stock to reach or maintain its optimum sustainable population. During the past five years, while the Federal Government operated under an interim exemption for commercial fisheries, NMFS has collected data on marine mammal stocks and levels of incidental take in commercial fisheries. NMFS's individual stock assessment reports will, as necessary and to the extent possible, be based upon these data. The reports are to be made available for public review and comment and will serve as the basis for Take Reduction Plans for strategic stocks (9) that interact with category I and II fisheries.(10) Take Reduction Teams(11) will be established to develop plans to reduce the incidental mortality and serious injury of marine mammals that interact with category I or II fisheries. The short-term goal of the plans is to reduce mortality and serious injury of marine mammals incidental to commercial fishing operations to levels below the affected stock's PBR. The long-term goal of the plans is to reduce the rates of incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero rate. Authorization To Take Marine Mammals To be authorized to take marine mammals, each commercial fishing vessel participating in a fishery with frequent or occasional interaction with marine mammals (category I and II fisheries) must be registered with NMFS. The Secretary of Commerce is authorized to revoke an individual fisher's permit to take marine mammals if that fisher fails to comply with a Take Reduction Plan, with reporting requirements, with the requirement to carry an observer when requested, or with emergency regulations. In addition, an individual fisher may be fined for not complying with regulations to protect marine mammal stocks. Fishers are no longer required to report fishing effort nor submit reports for trips in which no marine mammal was killed or injured. However, fishers must report all serious marine mammal injuries or mortalities to NMFS within 48 hours of returning from a fishing trip. NMFS is to develop a standardized, postage-paid, computer-readable form to facilitate reporting by fishers and to speed analysis of the data collected. Fishers participating in fisheries which have a remote likelihood of killing or seriously injuring marine mammals incidental to their operations (category III fisheries) are not subject to penalty for such taking under the MMPA, provided they report the serious injury or death of any marine mammal within 48 hours of returning from a fishing trip. All vessels fishing in category I and II fisheries are required to carry on-board observers if requested by the Secretary of Commerce.(12) The Secretary can request the vessel owner's consent for on-board observers to be placed on category III vessels. Under emergency regulatory authority, the Secretary can also require vessels in category III fisheries to carry on-board observers if there is reason to believe that the affected fishery is causing the incidental mortality or serious injury of marine mammals listed as threatened or endangered under the Endangered Species Act (ESA). The 1994 Amendments prohibit the intentional killing of marine mammals during the course of commercial fishing. In addition, new provisions stipulate that the goal of reducing incidental mortality and serious injury of marine mammals to insignificant levels, approaching a zero rate, is to be reached within 7 years. The Secretary of Commerce has been given explicit regulatory authority to monitor the progress of fisheries and to use the Take Reduction Plan process to ensure the success of achieving that goal. Emergency Regulatory Authority When the incidental mortality and serious injury of marine mammals incidental to commercial fishing operations has, or is likely to have, an immediate, significant adverse effect on a stock of marine mammals, the Secretary of Commerce is required to implement emergency regulations to reduce such mortality or injury. The Secretary must also review the current information on the marine mammal stock and take the steps necessary to revise or develop a Take Reduction Plan for that stock. Consultation with the Secretary of the Interior The Secretary of Commerce is required to consult with the Secretary of the Interior prior to taking actions or making determinations about the take of marine mammals in commercial fishing operations for which the Secretary of the Interior is responsible. Although NMFS and the FWS had authority to protect marine mammal habitats under the MMPA prior to the 1994 Amendments and have achieved some progress in protecting marine mammal habitat, MMPA authority for habitat protection was not well defined.(13) New explicit habitat protection authority is provided by the 1994 Amendments. The 1994 Amendments encourage these agencies to take further measures to protect marine mammal rookeries, mating grounds, and areas of similar ecological significance. To expand knowledge and comprehension of the impacts of habitat destruction on marine mammal species and stocks, Regional Scientific Review Groups, in consultation with the Marine Mammal Commission (MMC), are to be established to advise the NMFS and FWS on actual, expected, or potential impacts of habitat destruction on marine mammal stocks. If habitat destruction is harming a stock defined as strategic, the Regional Scientific Review Group must recommend appropriate conservation or management measures to alleviate the impact. In addition, NMFS and FWS are provided with explicit discretionary authority to develop and implement the conservation or management measures recommended by the Regional Scientific Review Groups or at the initiative of the Secretary if certain findings are made. NMFS and FWS will regulate the taking of marine mammals from the wild under the MMPA, while subsequent care and maintenance of captive marine mammals held for purposes of public display at registered or licensed facilities will be regulated by the Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture under the Animal Welfare Act (Pub.L. 89-544, as amended). For the taking and importing of marine mammals for public display, permits will be issued only when [1] the effect of the take or importation on wild populations is considered, [2] the method of the taking is humane, [3] an institution is registered or licensed under the Animal Welfare Act (AWA), [4] the institution offers an education or conservation program based upon professionally recognized standards of the public display community, and [5] the institution maintains facilities that are open to the public on a regularly scheduled basis. Although NMFS or FWS must be notified at least 15 days prior to the sale, export, or transport of a captive marine mammal, and NMFS and FWS must maintain an inventory of captive individuals, a permit or other authorization is no longer required to obtain, hold captive, transport, transfer, purchase, sell, or export marine mammals that are being held captive for public display purposes when animals move between facilities that meet the permit criteria. In addition, export of marine mammals is prohibited except as explicitly provided for in the Act. On the Pacific coast, NMFS is to undertake scientific investigations to assess the effects of California sea lions and Pacific harbor seals on endangered and threatened salmonid stocks. In the Gulf of Maine, a pinniped task force is to be established to advise NMFS concerning marine mammal interactions with aquaculture operations. The 1994 Amendments also allow the Secretary of Commerce to authorize the intentional killing of individually identifiable, non-depleted (l4) pinnipeds which can be shown to be having a significant negative effect on the decline or recovery of certain salmonid fish stocks listed as endangered or threatened under the ESA, approaching such status, or that migrate through Ballard Locks at Seattle, WA. Intentional killing can only be authorized after: [1] a Pinniped-Fishery Interaction Task Force has been established by the Secretary to review the situation, consider previous control efforts, and take public comment; and [2] the Task Force has recommended to the Secretary whether to approve or deny the proposed kill along with suggestions for nonlethal alternatives and a recommended course of action. Ecosystem Health and Stability Assessments For the first time, NMFS is directed to develop and implement research plans to assess the health and stability of ecosystems of which marine mammals are a part. Specific activities include: (1) a regional workshop for the Gulf of Maine to assess human-caused factors affecting ecosystem health and stability; (2) development of a research plan to monitor the health and stability of the Bering Sea ecosystem; and (3) assessment of the impact California sea lions and Pacific harbor seals have on salmonids and ecosystem stability in the coastal ecosystems of Washington, Oregon, and California. Cooperative Agreements with Alaska Natives NMFS and the FWS now have the explicit authority to enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and to provide co-management of subsistence use of Alaska marine mammal stocks by Alaska Natives. Agreements may include grants to Alaska Native organizations for: (1) collecting and analyzing data on marine mammal populations, (2) monitoring the harvest of marine mammals for subsistence use, (3) participating in marine mammal research, and (4) developing marine mammal co-management structures with Federal and State agencies. NMFS and FWS are to promulgate regulations authorizing bona fide scientific research involving only Level B harassments without a formal permit. Persons must submit specified information to NMFS or FWS at least 60 days prior to beginning research. Also, expedited scientific research permits will be allowed when delay could cause injury to a marine mammal or loss of unique research opportunities. New permit procedures are to explicitly provide for educational and commercial photography of marine mammals. The 1994 Amendments establish a new mechanisms for authorizing polar bear trophies (other than internal organs) to be imported from Canada, provided the required findings are made. Subsequently, such imports will not be allowed if there is any indication, found in a study begun two years after the enactment, that the issuance of import permits by the United States is having a significant adverse effect on Canadian polar bear stocks. IMPLEMENTING THE 1994 AMENDMENTS (17)The 1994 Amendments contained many implementation deadlines. This section summarizes important deadlines for agency action and reports to Congress. Action is to be completed on or before the date specified. 6-29-94 NMFS is to establish three independent Regional Scientific Review Groups representing Alaska, the Pacific Coast (including Hawaii), and the Atlantic Coast (including the Gulf of Mexico). Nominations were requested (59 Federal Register 26479, May 20, 1994), and these groups were appointed on June 30, 1994. 7-29-94 NMFS is to publish proposed changes to the list of commercial fisheries which was in existence on March 31, 1994. NMFS published the proposed changes, along with a request for comments on the criteria used to classify fisheries (59 Federal Register 45263, September 1, 1994).(18) 8-1-94 FWS and NMFS, as appropriate, in consultation with the appropriate Regional Scientific Review Group, are to prepare a draft stock assessment for each marine mammal stock in waters under the jurisdiction of the United States. Notices of the availability of these assessments were published and public comment was invited (NMFS, 59 Federal Register 40527, August 9, 1994; FWS, 59 Federal Register 43353, August 23, 1994). 8-28-94 NMFS and FWS are to issue general authorizations and implementing regulations allowing bona Side scientific research involving Level B harassment of marine mammals. 10-27-94 NMFS, in consultation with the FWS, the MMC, and other stakeholders, are to initiate a scientific research program to monitor the health and stability of the Bering Sea ecosystem and to resolve uncertainties concerning the causes of population declines of marine mammals, sea birds, and other living marine resources within that system.(19) 10-30-94 FWS, acting through the Department of State and in consultation with the MMC and the State of Alaska, is to initiate consultation with Russian officials regarding the development and implementation of enhanced cooperative research and management programs for the conservation of polar bears in Alaska and Russia. 1-1-95 Except where other timeframes are specified, NMFS and FWS are to promulgate draft regulations to implement the 1994 Amendments. 1-28-95 NMFS and FWS are to publish final stock assessments.(20) 2-27-95 NMFS is to establish Take Reduction Teams for strategic stocks. 4-1-95 For any strategic stock for which a final stock assessment has not been published because of a hearing requested by Alaska Natives, NMFS, in consultation with the FWS as appropriate for FWS species, is to establish a Take Reduction Team for that stock. 4-30-95 NMFS is to convene a regional workshop for the Gulf of Maine to assess human-caused factors affecting ecosystem health and stability. 4-30-95 FWS is to initiate a review of the effectiveness of the Agreement on the Conservation of Polar Bears (Article IX of the Agreement) by the Parties and establish a process for conducting future reviews. 8-27-95 Take Reduction Teams are to complete draft Take Reduction Plans for "strategic" stocks where human-caused mortality and serious injury are equal to or exceed the potential biological removal (PBR) level. 9-1-95 NMFS is to have promulgated final regulations and completed implementation of the new incidental take regime for commercial fisheries.(21) 10-27-95 Where a Take Reduction Plan has been submitted, NMFS, in consultation with FWS as appropriate for FWS species, is to propose implementing regulations for public review for strategic stocks where human-caused mortality and serious injury is equal to or exceeds the PBR level. 1-27-96 Take Reduction Teams are to complete draft Take Reduction Plans for strategic stocks where human-caused takes are less than PBR level, and for non-strategic stocks. 3-24-96 NMFS is to complete final Take Reduction Plans and implementing regulations for strategic stocks for which human-caused mortality and serious injury exceed the PBR level.(22) 4-30-95 FWS is to initiate a scientific review of the impact of import permits on polar bear stocks in Canada; public comments are to be included in the final report. 5-24-96 Where a Take Reduction Team has not submitted a draft Take Reduction Plan within six months, NMFS, in consultation with FWS as appropriate for FWS species, is to prepare a Take Reduction Plan for strategic stocks where human-caused mortality and serious injury is equal to or exceeds the PBR level. 8-24-96 NMFS is to complete final Take Reduction Plans for strategic stocks where human-caused takes are less than PBR, and for non-strategic stocks. 9-30-96 FWS is to cease issuing permits for importing polar bear parts if it is determined that issuance of permits is harming polar bear stocks in Canada. 4-1-97 NMFS, in developing and implementing a Take Reduction Plan for the Gulf of Maine Harbor porpoise, may (based upon recommendation from the Take Reduction Team) modify the time period required for to reduce incidental mortality and serious injury to numbers below PBR, but not beyond April 1, 1997. 4-30-97 NMFS is to review the progress of each commercial fishery in reducing incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero rate. 4-30-99 Extension of certificates of exemption with respect to pre-ESA finished scrimshaw (23) products expires. 4-30-01 The reduction of incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero rate is to be achieved. no date FWS is to report to Congress on the results of a review of the development and implementation of enhanced cooperative research and management programs for the conservation of polar bears in Alaska and Russia.(24) 4-1-95 FWS is to report to Congress on the results of a review of the effectiveness of the U.S. implementation of the Agreement on the Conservation of Polar Bears with respect to habitat protection mandates (Article II of the Agreement). 10-1-95 NMFS is to report to Congress on the results of scientific investigation of the impacts of California sea lions and Pacific harbor seals on salmonids and ecosystem stability. 12-31-95 NMFS is to report to Congress on the results of the Regional Workshop on the Gulf of Maine ecosystem, any proposals for regulatory or research actions, and any recommendations for legislative action. 4-30-96 NMFS is to report to Congress on the interactions between pinnipeds and Gulf of Maine aquaculture operations. 4-30-98 NMFS is to report to Congress on progress in reducing incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero rate. 1. Arlene de Strulle, Master's degree candidate at New York University, researched and prepared a draft of this report. 2. For details on issues and concerns prior to congressional consideration of the MMPA, see CRS Report 93-185 ENR, The Marine Mammal Protection Act: Reauthorization Issues. For a detailed description of the enacted amendments, see U.S. Marine Mammal Commission, Analysis of the 1994 Amendments to the Marine Mammal Protection Act of 1972, June 23, 1994, 19 p. 3. The MMPA defines the term "take" to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 4. In the process, Pub.L. 103-86 was enacted on September 30, 1993, to extend the MMPA's interim exemption for commercial fishing operations until April 1, 1994. This deadline was subsequently extended to May 1, 1994, by Pub.L. 103-228. 5. U.S. Congress. Senate. Committee on Commerce, Science, and Transportation. Marine Mammal Protection Act Amendments of 1993; report on S. 1636. Washington, U.S. Govt. Print. Off., 1994. 37 p. (103d Congress, 2nd Session. Senate Report No. 103-220.) 6. U.S. Congress. House. Committee on Merchant Marine and Fisheries. Marine Mammal Protection Act Amendments of 1994; report on H.R. 2760. Washington, U.S. Govt. Print. Off., 1994. 82 p. (103d Congress, 2nd Session. House Report No. 103-439.) 7. Appointees are to have expertise in marine mammal biology and ecology, population dynamics and modeling, commercial fishing technology and practices, and marine mammals taken by Alaska Natives. 8. PBR level means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. 9. A strategic stock is any marine mammal stock: (1) for which the level of direct human-caused mortality exceeds the potential biological removal level; (2) which is declining and likely to be listed as threatened under the Endangered Species Act; or (3) which is listed as threatened or endangered under the Endangered Species Act or as depleted under the MMPA. 10. Fisheries which cause frequent or occasional incidental mortality and serious injury of marine mammals, respectively. 11. Appointees are to have expertise regarding the conservation or biology of the marine mammal species which the take reduction plan will address, or the fishing practices which result in the incidental mortality and serious injury of such species. 12. However, only a representative subset will, in all likelihood, actually be asked to carry observers. 13. NMFS has exercised authority under the Endangered Species Act to minimize damage to marine mammal habitats by setting approach standards for humpback whales in Hawaiian waters, by establishing speed limits on vessels moving into and out of port to protect right whales along the South Atlantic coast, and by restricting fishing activities near Steller sea lion rookeries in Alaska. FWS has established certain vessel speed limits to protect manatees. In addition, NMFS has used authority under the Magnuson Fishery Conservation and Management Act to close fishing areas to protect harbor porpoise and Hawaiian monk seals. 14. Not listed as threatened or endangered under the ESA, designated as depleted under the MMPA, nor identified as a strategic stock under the MMPA. 15. A definition of harassment was added to the Act differentiating between Level A, which as the potential to injure a marine mammal or stock, and Level B. which has the potential to disturb but not injure a marine mammal or stock. 16. Pre-existing waiver provisions already provided a possible mechanism for securing such authority. 17. For a more detailed description, see U.S. Marine Mammal Commission, Summary of Actions Needed to Implement the 1994 Marine Mammal Protection Act Amendments, June 6, 1994, 6 p. 18. At least once every year thereafter, NMFS must reexamine the classification of commercial fisheries and publish any changes. 19. NMFS, FWS, and the Marine Mammal Commission must also address the status and findings of the research program in their MMPA annual reports. 20. NMFS and FWS, as appropriate, must review stock assessments at least annually for strategic stocks, annually for stocks for which significant new information becomes available, and at least once every three years for all other stocks. 21. Until this date or until superseded by new regulations (whichever is earlier), NMFS has reinstated the regulations implementing the interim exemption from the general prohibition on taking marine mammals for incidental takings of marine mammals by commercial fishers (59 Federal Register 31165, June 17, 1994). The reissued regulations are identical to those that had expired. 22. NMFS or FWS meets with the Take Reduction Team every six months, or as determined, to monitor the implementation of the final Take Reduction Plan for these strategic stocks. 23. Etched, scratched, or carved marine-mammal ivory. 24. Periodic progress reports on the research and management programs must also be provided to Congress. |
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