Full Statute Name:  Legislative History of the MMPA (1981); House Report No. 97-228

THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, TO WHOM WAS REFERRED THE BILL (H.R. 4084) TO IMPROVE THE OPERATION OF THE MARINE MAMMAL PROTECTION ACT OF 1972, AND FOR OTHER PURPOSES, HAVING CONSIDERED THE SAME, REPORT FAVORABLY THEREON WITH AN AMENDMENT AND RECOMMEND THAT THE BILL AS AMENDED DO PASS.

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LEGISLATIVE HISTORY

DURING HEARINGS IN APRIL ON H.R. 2948, PROVIDING THE FISCAL YEAR 1982 AUTHORIZATION OF APPROPRIATIONS FOR THE MARINE MAMMAL PROTECTION ACT, THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRONMENT HEARD TESTIMONY FROM SEVERAL WITNESSES ADVOCATING AMENDMENTS TO THE ACT. IN MAY 1981, THE COMMITTEE REPORTED H.R. 2948 TO THE HOUSE BUT STATED ITS INTENTION TO HOLD ADDITIONAL HEARINGS IN AN ATTEMPT TO DEVELOP SOLUTIONS TO THE PROBLEMS ADDRESSED BY WITNESSES AND TO REMEDY CERTAIN PROBLEMS WHICH MAKE ADMINISTRATION OF THE ACT DIFFICULT. AS A RESULT OF THE APRIL AUTHORIZATION HEARINGS AND THE COMMITTEE'S COMMITMENT TO DEVELOP AN AMENDMENT PACKAGE WHICH WOULD BE REPORTED TO THE FLOOR OF THE HOUSE BEFORE THE END OF THE FIRST SESSION OF THE 97TH CONGRESS, MR. BREAUX AND MR. FORSYTHE INTRODUCED H.R. 4084 ON JULY 9, 1981, FOR THE PURPOSE OF IMPROVING THE OPERATION OF THE MARINE MAMMAL PROTECTION ACT AND EXTENDING THE AUTHORIZATION OF APPROPRIATIONS THROUGH FISCAL YEAR 1984. ON JULY 13, THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRONMENT HELD HEARINGS ON THE LEGISLATION. TESTIMONY WAS RECEIVED FROM THE FISHING INDUSTRY, THE ALASKA FEDERATION OF NATIVES, STATE FISH AND GAME AGENCIES, THE FUR INDUSTRY, THE OIL AND GAS INDUSTRY, REPRESENTATIVES OF THE ENVIRONMENTAL AND CONSERVATION COMMUNITY, THE DEPARTMENTS OF COMMERCE AND THE INTERIOR, AND THE MARINE MAMMAL COMMISSION.

AFTER GIVING CAREFUL CONSIDERATION TO THE EVIDENCE PRESENTED AT THE HEARING, THE SUBCOMMITTEE, ON JULY 21, UNANIMOUSLY ORDERED H.R. 4084 REPORTED, WITH AN AMENDMENT, TO THE FULL COMMITTEE. ON JULY 31, 1981, THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, BY VOICE VOTE, UNANIMOUSLY ORDERED H.R. 4084 REPORTED TO THE HOUSE WITH AN AMENDMENT.

THE AMENDMENT

THE AMENDMENT TO H.R. 4084 WAS ACCOMPLISHED BY STRIKING OUT ALL AFTER THE ENACTING CLAUSE AND INSERTING NEW LANGUAGE. THE AMENDMENT:

DELETES THE DEFINITION OF 'OPTIMUM CARRYING CAPACITY', SINCE IT IS INDISTINGUISHABLE FROM OPTIMUM SUSTAINABLE POPULATION (OSP AND BECAUSE BOTH ARE USED INTERCHANGEABLY THROUGHOUT THE ACT. WHEREVER 'OPTIMUM CARRYING CAPACITY' APPEARS IT IS REPLACED WITH 'CARRYING CAPACITY'.

REDEFINES THE TERM 'DEPLETED' TO MEAN ANY CASE IN WHICH THE SECRETARY, OR A STATE TO WHICH MANAGEMENT AUTHORITY HAS BEEN RETURNED, DETERMINES THAT A SPECIES OR POPULATION STOCK IS BELOW ITS OSP, OR IS LISTED AS ENDANGERED OR THREATENED UNDER THE ENDANGERED SPECIES ACT.

RETAINS THE ACT'S GOAL OF REDUCING THE INCIDENTAL TAKING OF MARINE MAMMALS PURSUANT TO COMMERCIAL FISHING OPERATIONS TO INSIGNIFICANT LEVELS APPROACHING A ZERO MORTALITY AND SERIOUS INJURY RATE BUT CLARIFIES THAT THIS GOAL SHALL BE SATISFIED IN THE CASE OF PURSE SEINE FISHING FOR YELLOWFIN TUNA BY 'A CONTINUATION OF THE APPLICATION OF THE BEST MARINE MAMMAL SAFETY TECHNIQUES AND EQUIPMENT THAT ARE ECONOMICALLY AND TECHNOLOGICALLY PRACTICABLE'. DIRECTS THE SECRETARY TO ALLOW THE INCIDENTAL, BUT NOT THE INTENTIONAL, TAKING BY U.S. NON-TUNA COMMERCIAL FISHERMEN OF SMALL NUMBERS OF MARINE MAMMALS IF (1) THE POPULATION IS NOT DEPLETED, (2) THE TOTAL OF SUCH TAKING WILL HAVE A NEGLIGIBLE IMPACT ON THE STOCK, AND (3) THERE IS A SYSTEM ESTABLISHED AMONG THE FISHERMEN FOR MONITORING SUCH TAKING. THE SECRETARY MUST WITHDRAW THE PERMISSION TO TAKE MARINE MAMMALS UNDER THIS SECTION IF HE FINDS THAT THE TAKE IS HAVING MORE THAN A NEGLIGIBLE IMPACT ON THE SPECIES OR THAT THE POLICIES, PURPOSES AND GOALS OF THE ACT WOULD BE BETTER SERVED THROUGH IMPLEMENTATION OF THE OTHER SECTIONS OF THE ACT. DIRECTS THE SECRETARY TO ALLOW THE TAKING OF SMALL NUMBERS OF A NON-DEPLETED SPECIES BY U.S. CITIZENS WHO ENGAGE IN SPECIFIED ACTIVITIES (OTHER THAN COMMERCIAL FISHING) WITHIN SPECIFIED GEOGRAPHICAL AREAS, IF HE (1) FINDS THAT THE TOTAL OF SUCH TAKING WILL HAVE A NEGLIGIBLE IMPACT ON THE SPECIES, ON ITS HABITAT, AND ON THE AVAILABILITY OF SUCH SPECIES FOR SUBSISTENCE USES IN ALASKA, AND (2) PRESCRIBES REGULATIONS WHICH SET FORTH PERMISSIBLE METHODS OF TAKING AND OTHER MEANS OF EFFECTING THE LEAST PRACTICABLE ADVERSE IMPACT ON THE SPECIES OR ITS HABITAT (WITH PARTICULAR ATTENTION GIVEN TO ROOKERIES, MATING GROUNDS, AND OTHER AREAS OF SIGNIFICANCE) AND WHICH SET OUT THE REQUIREMENTS FOR MONITORING AND REPORTING THE TAKINGS. THE SECRETARY MUST WITHDRAW HIS PERMISSION TO TAKE MARINE MAMMALS PURSUANT TO THIS SECTION IF THE REGULATIONS ARE NOT SUBSTANTIALLY COMPLIED WITH OR IF HE FINDS SUCH TAKING IS HAVING MORE THAN A NEGLIGIBLE IMPACT ON THE SPECIES CONCERNED.

MAKES IT UNLAWFUL FOR ANY PERSON TO TRANSPORT, PURCHASE, SELL OR OFFER TO PURCHASE OR SELL ANY MARINE MAMMAL OR MARINE MAMMAL PRODUCT UNLESS OTHERWISE PROVIDED UNDER THE ACT. AUTHORIZES THE SECRETARY TO ALLOW INDIVIDUALS TO ABANDON MARINE MAMMAL IMPORTS MADE FOR PERSONAL OR FAMILY USE TO THE ENFORCEMENT OFFICER AT THE PORT OF ENTRY WITHOUT THE INDIVIDUAL GOING THROUGH A FORMAL NOTICE OF VIOLATION AND FORFEITURE PROCEEDING.

ESTABLISHES A PROCEDURE TO RETURN MARINE MAMMAL MANAGEMENT TO ANY STATE. THE SECRETARY MAY TRANSFER MANAGEMENT AUTHORITY TO A STATE IF THE STATE HAS DEVELOPED AND WILL IMPLEMENT A PROGRAM WHICH: (1) IS CONSISTENT WITH THE PURPOSES, POLICIES AND GOALS OF THE ACT AND WITH INTERNATIONAL TREATY OBLIGATIONS; (2) REQUIRES THAT ALL TAKING BE HUMANE; (3) DOES NOT PERMIT TAKING UNTIL THE STATE DETERMINES (THROUGH A SIMPLIFIED HEARING PROCESS) THE OSP OF THE POPULATION AND THE MAXIMUM NUMBER OF ANIMALS THAT MAY BE TAKEN WITHOUT REDUCING THE SPECIES BELOW ITS OSP; (4) PROVIDES PROCEDURES FOR ACQUIRING DATA RELATING TO THE OSP OF THE SPECIES AND THE MAXIMUM ALLOWABLE TAKE AND FOR AMENDING THE DETERMINATIONS MADE DURING THE INFORMAL HEARING PROCESS; (5) PROVIDES PROCEDURES FOR RESOLVING THE DIFFERENCES BETWEEN THE STATE AND THE SECRETARY WHICH MAY ARISE REGARDING THE ALLOCATION OF THE ALLOWABLE TAKE BETWEEN THE STATE AND THE FEDERAL GOVERNMENT; AND (6) PROVIDES FOR AN ANNUAL REPORT TO THE SECRETARY CONCERNING THE ADMINISTRATION OF THE STATE PROGRAM. THE SECRETARY CANNOT TRANSFER MANAGEMENT AUTHORITY TO THE STATE OF ALASKA UNLESS THE STATE HAS ADOPTED A STATUTE AND REGULATIONS WHICH INSURE THAT TAKING FOR SUBSISTENCE WILL BE THE PRIORITY CONSUMPTIVE USE OF THE SPECIES AND THAT SUCH TAKING WILL BE ACCOMPLISHED IN A NONWASTEFUL MANNER. ANY OTHER CONSUMPTIVE USES-- SUCH AS SPORT HUNTING-- CAN BE AUTHORIZED ONLY IF IT WOULD NOT HAVE AN ADVERSE EFFECT ON SUBSISTENCE USES. DURING THE INTERIM PERIOD WHEN THE SECRETARY HAS TRANSFERRED MANAGEMENT AUTHORITY TO A STATE BUT BEFORE THE STATE IS ABLE TO IMPLEMENT ITS PROGRAM, THE SECRETARY WOULD CONTINUE TO REGULATE ALL TAKINGS OF MARINE MAMMALS WITHIN THE STATE. ONCE THE STATE IS ABLE TO IMPLEMENT ITS PROGRAM, THE SECRETARY WOULD STILL BE RESPONSIBLE FOR REGULATING ANY TAKINGS IN THE 200-MILE ZONE AND ALL TAKINGS FOR SCIENTIFIC RESEARCH OR PUBLIC DISPLAY PURPOSES IN STATE AND FEDERAL WATERS.

AUTHORIZES THE SECRETARY TO REVOKE THE TRANSFER OF MANAGEMENT AUTHORITY FOR ANY SPECIES IF THE STATE DOES NOT IMPLEMENT ITS APPROVED PROGRAM OR IF THE PROGRAM IS NOT BEING IMPLEMENTED CONSISTENTLY WITH THE PROVISIONS OF THE STATE PLAN. BEFORE THE SECRETARY CAN REVOKE THE TRANSFER OF MANAGEMENT AUTHORITY, HE MUST FIRST CONSULT WITH THE STATE AND PROVIDE THE STATE WITH THE OPPORTUNITY TO TAKE ANY REMEDIAL MEASURES THE SECRETARY CONSIDERS NECESSARY. PERMITS THE SECRETARY TO PRESCRIBE MARKING, TAGGING AND REPORTING REQUIREMENTS APPLICABLE TO THE SUBSISTENCE TAKE OF ALASKA NATIVES AT ANY TIME THE STATE IS NOT EXERCISING MANAGEMENT AUTHORITY OVER THE SPECIES CONCERNED. EXPANDS THE SECRETARY'S AUTHORITY TO MAKE GRANTS TO THE STATES FOR DEVELOPING THEIR PROGRAMS. UNDER EXISTING PROVISIONS OF THE ACT, SUCH GRANTS CAN ONLY BE MADE TO ADMINISTER THE STATE PROGRAM UPON THE TRANSFER OF MANAGEMENT AUTHORITY.

ADDS A NEW SENTENCE TO THE RESEARCH SECTION OF THE ACT TO DIRECT THE SECRETARY TO UNDERTAKE, AND PROVIDE ASSISTANCE FOR, RESEARCH INTO NEW METHODS OF LOCATING AND CATCHING YELLOWFIN TUNA WITHOUT THE INCIDENTAL TAKING OF MARINE MAMMALS.

AUTHORIZES TO BE APPROPRIATED $8.0 MILLION IN FISCAL YEAR 1983 AND $8.8 MILLION IN FISCAL YEAR 1984 TO THE DEPARTMENT OF COMMERCE, $1.76 MILLION IN FISCAL YEAR 1983 AND $2.0 MILLION IN FISCAL YEAR 1984 TO THE DEPARTMENT OF THE INTERIOR, AND $1.0 MILLION IN FISCAL YEAR 1983 AND $1.1 MILLION IN FISCAL YEAR 1984 TO THE MARINE MAMMAL COMMISSION TO CARRY OUT THEIR RESPONSIBILITIES UNDER THE ACT.

FOR FURTHER DETAILS OR CLARIFICATION OF THE AMENDMENT, SEE THE SECTION-BY- SECTION ANALYSIS.

BACKGROUND AND NEED

THE MARINE MAMMAL PROTECTION ACT (MMPA) WAS ENACTED IN 1972 FOR THE PURPOSE OF ENSURING THAT MARINE MAMMALS ARE MAINTAINED AT HEALTHY POPULATION LEVELS. IN PASSING THE ACT, CONGRESS RESPONDED TO THE GROWING CONCERN ABOUT THE DECLINE OF CERTAIN SPECIES AND RECOGNIZED THE IMPORTANT ROLE THAT MARINE MAMMALS PLAY IN THE ECOSYSTEM AS WELL AS THEIR ECONOMIC, AESTHETIC AND RECREATIONAL VALUE.

UNDER THE MMPA THE DEPARTMENT OF COMMERCE IS CHARGED WITH RESPONSIBILITY FOR WHALES, DOLPHINS (PORPOISES), SEA LIONS AND SEALS. THE DEPARTMENT OF THE INTERIOR HAS RESPONSIBILITY FOR POLAR BEARS, WALRUSES, SEA OTTERS, MANATEES AND DUGONGS. THE ACT ESTABLISHES A MORATORIUM ON THE TAKING OF MARINE MAMMALS UNLESS THE POPULATION OF AN ANIMAL IS DETERMINED TO BE AT ITS OPTIMUM SUSTAINABLE LEVEL. STATE MANAGEMENT OF RESIDENT MARINE MAMMAL POPULATIONS IS PREEMPTED UNTIL SUCH TIME AS A STATE PREPARES A MARINE MAMMAL MANAGEMENT PROGRAM CONSISTENT WITH THE ACT. CRIMINAL AND CIVIL PENALTIES ARE PRESCRIBED FOR VIOLATIONS OF THE ACT AND THE IMPORTATION OF MARINE MAMMALS AND THEIR PRODUCTS IS SUBJECT TO REGULATION. THE ACT CREATED A THREE-MEMBER MARINE MAMMAL COMMISSION WHICH IS CHARGED WITH MONITORING THE IMPLEMENTATION OF THE ACT, RECOMMENDING POLICIES TO THE TWO SECRETARIES, AND UNDERTAKING SUCH RESEARCH AS IS DEEMED APPROPRIATE.

IN MANY RESPECTS, THE MARINE MAMMAL PROTECTION ACT HAS BEEN A REMARKABLY SUCCESSFUL PIECE OF LEGISLATION. IN THE AREA OF REDUCING THE INCIDENTAL TAKE OF PORPOISES IN TUNA FISHING OPERATIONS, FOR EXAMPLE, THE NUMBER OF PORPOISES KILLED HAS DROPPED FROM AN ESTIMATED 368,000 ANIMALS IN 1972 TO AN ESTIMATED 15,303 PORPOISES IN 1980. THIS DRAMATIC ACCOMPLISHMENT HAS BEEN ACHIEVED BECAUSE OF IMPROVEMENTS IN GEAR DESIGN AND FISHING TECHNIQUES. A NUMBER OF OTHER SPECIES, SUCH AS THE CALIFORNIA SEA OTTER AND THE WEST INDIAN MANATEE, ALSO SEEM TO BE BENEFITING FROM THE PROTECTION PROVIDED PURSUANT TO THE ACT. HOWEVER, DURING HEARINGS HELD ON APRIL 7, 1981, ON LEGISLATION TO REAUTHORIZE THE MMPA, THE COMMITTEE RECEIVED TESTIMONY REGARDING A NUMBER OF PROBLEMS ASSOCIATED WITH THE IMPLEMENTATION AND ADMINISTRATION OF THE ACT.

THE MOST NOTABLE DIFFICULTY EXPERIENCED IN THE ADMINISTRATION OF THE ACT OCCURRED WHEN THE DEPARTMENTS OF COMMERCE AND THE INTERIOR ATTEMPTED TO RETURN MANAGEMENT OF CERTAIN MARINE MAMMAL SPECIES TO THE STATE OF ALASKA, AS PROVIDED FOR IN SECTION 109 OF THE ACT. ON JANUARY 31, 1973, ALASKA REQUESTED THE SECRETARIES OF COMMERCE AND THE INTERIOR TO GRANT A WAIVER OF THE MORATORIUM TO PERMIT THE HUNTING OF NINE SPECIES OF MARINE MAMMALS AND TO RETURN MANAGEMENT OF THE SPECIES TO THE STATE. SIX OF THE SPECIES WERE UNDER COMMERCE'S JURISDICTION AND THREE WERE UNDER INTERIOR'S JURISDICTION. PURSUANT TO THE ACT, THE STATE'S REQUEST REQUIRED FORMAL HEARINGS BEFORE AN ADMINISTRATIVE LAW JUDGE CONCERNING THE STATUS OF THE POPULATION OF EACH SPECIES, AS WELL AS CONSIDERATION OF THE STATE'S PROPOSED LAWS AND REGULATIONS THAT WOULD GOVERN THE TAKING OF THAT SPECIES. THE PROPOSED WAIVER OF THE MORATORIUM TO ALLOW A TAKING OF MARINE MAMMALS ALSO REQUIRED COMPLIANCE WITH THE PROVISIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT. THE PROCEEDINGS INVOLVING WALRUS ARE PARTICULARLY INSTRUCTIVE REGARDING THE DEFICIENCY OF THE PROCESS UNDER WHICH MANAGEMENT CAN BE RETURNED TO A STATE. IN DECEMBER 1975, APPROXIMATELY THREE YEARS AFTER THE STATE'S INITIAL REQUEST, THE RETURN OF MANAGEMENT OF WALRUS WAS CONDITIONALLY APPROVED BY THE DEPARTMENT OF THE INTERIOR. AFTER THE STATE MADE SOME CHANGES IN ITS LAWS AND REGULATIONS AFFECTING THE MANAGEMENT OF WALRUS, FINAL APPROVAL WAS GRANTED IN APRIL OF 1976.

PUBLIC HEARINGS, AS REQUIRED UNDER THE MMPA, WERE HELD IN JUNE, JULY, AND OCTOBER 1976, TO DISCUSS RETURNING MANAGEMENT OF THE OTHER EIGHT SPECIES TO THE STATE. IN JUNE 1977, THE ADMINISTRATIVE LAW JUDGE WHO CONDUCTED THE HEARINGS RECOMMENDED TO BOTH SECRETARIES THAT MANAGEMENT BE RETURNED TO THE STATE. ABOUT ONE AND ONE-HALF YEARS AFTER THE ADMINISTRATIVE LAW JUDGE RECOMMENDED RETURNING MANAGEMENT TO THE STATE, THE TWO SECRETARIES, UNDER CERTAIN CONDITIONS, AGREED TO RETURN MANAGEMENT OF THE OTHER EIGHT SPECIES TO THE STATE. IN RETURNING WALRUS MANAGEMENT TO THE STATE OF ALASKA, THE SECRETARY STIPULATED THAT THE STATE COULD ALSO REGULATE THE SUBSISTENCE HARVEST OF WALRUS BY ALASKAN NATIVES. THE ACT, HOWEVER, SPECIFICALLY PROVIDES THAT ALASKAN NATIVES MAY TAKE MARINE MAMMALS FOR SUBSISTENCE AND NATIVE HANDICRAFTS WITHOUT REGULATION IF THE TAKING IS NOT WASTEFUL AND IF THE SPECIES IS NOT DEPLETED. THE NATIVE PEOPLE OF TOGIAK, ALASKA, BROUGHT SUIT IN FEDERAL DISTRICT COURT CLAIMING THAT THE STATE MUST GUARANTEE THE CONTINUED RIGHT OF NATIVES TO TAKE MARINE MAMMALS AND ARGUING THAT THE FEDERAL GOVERNMENT COULD NOT TRANSFER MANAGEMENT UNDER THE ACT WITHOUT SUCH ASSURANCES. THE COURT HELD FOR THE PEOPLE OF TOGIAK, STATING THAT THE ACT PREEMPTS ANY STATE REGULATION OF THE NATIVE TAKE. BECAUSE ALASKA'S CONSTITUTION PROHIBITS ANY DISCRIMINATION AMONG ITS CITIZENS, THE STATE COULD NOT COMPLY WITH THE COURT'S DECISION THAT THE NATIVES BE GIVEN A PREFERRED STATUS WITH RESPECT TO THE TAKING OF MARINE MAMMALS. THE STATE RETURNED MANAGEMENT OF WALRUS TO THE FEDERAL GOVERNMENT IN JULY, 1979, AND RETRACTED ITS REQUEST TO MANAGE THE OTHER MARINE MAMMALS SPECIES. IT MUST BE NOTED THAT DURING THE PERIOD BETWEEN 1973 AND 1976, WHEN THE STATE OF ALASKA WAS AWAITING APPROVAL OF ITS REQUEST TO HAVE MANAGEMENT OF THE WALRUS RETURNED, THE FISH AND WILDLIFE SERVICE DID LITTLE TO MANAGE THE WALRUS BECAUSE THE SERVICE EXPECTED THE STATE WOULD SOON RESUME MANAGEMENT.

THEREFORE, A PERIOD OF ABOUT FOUR YEARS AFTER THE ACT WAS PASSED THERE WAS NEITHER FEDERAL NOR STATE MANAGEMENT OF WALRUS. AFTER THE STATE RETURNED WALRUS MANAGEMENT TO THE SECRETARY, THERE WAS NO EFFECTIVE MANAGEMENT OF THIS SPECIES BECAUSE OF THE INADEQUATE FEDERAL RESOURCES WHICH ARE DEVOTED TO MARINE MAMMAL MANAGEMENT AND BECAUSE THE FEDERAL GOVERNMENT HAS NO AUTHORITY TO REGULATE THE TAKE OF NON-DEPLETED MARINE MAMMALS BY ALASKAN NATIVES. THE RESULT IS THAT THE CURRENT POPULATION OF WALRUS, ESTIMATED AT 250,000, IS CONSIDERED BY MANY SCIENTISTS TO BE LARGER THAN ITS HABITAT CAN EFFECTIVELY SUPPORT. FROM AN ECOLOGICAL VIEWPOINT, IT IS BOTH UNHEALTHY AND ENVIRONMENTALLY DESTABILIZING TO HAVE A POPULATION AT A LEVEL HIGHER THAN THE RELEVANT HABITAT CAN SUSTAIN. THE LENGTHY PROCESS ENTAILED IN THE RETURN OF MANAGEMENT PROVISIONS OF THE ACT, HAVE, IN THE CASE OF THE WALRUS, RESULTED IN A SITUATION IN WHICH THE GOALS OF THE MARINE MAMMAL PROTECTION ACT-- THE MAINTENANCE OF HEALTHY POPULATIONS OF MARINE MAMMALS-- COULD NOT BE MET. THE CONCLUSIONS REACHED BY A RECENT GENERAL ACCOUNTING OFFICE STUDY OF THE ACT CLEARLY ILLUSTRATE THE EXTENT OF THE PROBLEM. THIS STUDY STATED THAT:

FOR THE MOST PART, MARINE MAMMAL INTEREST GROUPS BELIEVE THAT THE WALRUS MANAGEMENT PROBLEMS STEM FROM THE LARGE WALRUS POPULATION WHICH IS HAVING AN ADVERSE IMPACT ON THE CARRYING CAPACITY OF THE MARINE ECOSYSTEM . . . IN JANUARY, 1973 THE STATE OF ALASKA, DESIRING TO CONTINUE ITS MANAGEMENT OF MARINE MAMMALS, REQUESTED, UNDER THE PROVISIONS OF MMPA, THAT A WAIVER OF THE MORATORIUM ON THE TAKING OF NINE MARINE MAMMALS (INCLUDING THE WALRUS) BE GRANTED AND MANAGEMENT BE RETURNED TO IT. REACHING A DECISION ON THIS REQUEST HAS BEEN A SLOW PROCESS AND THE END RESULT IS THAT SOME EIGHT YEARS AFTER THE STATE'S REQUEST MANY OF THE PROBLEMS AND ISSUES . . . REMAIN UNRESOLVED. ADMITTEDLY, THE WAIVER PROCESS IS BURDENSOME AND, IN THE CASE OF ALASKA'S REQUEST, WAS NOT MADE ANY EASIER WITH SPLIT FEDERAL AGENCY JURISDICTION REQUIRING REVIEW AND FORMAL HEARINGS BY TWO SEPARATE AGENCIES . . . BECAUSE THE FISH AND WILDLIFE SERVICE DID LITTLE TO MANAGE THE WALRUS WHILE THE STATE'S REQUEST WAS PENDING (THE SERVICE ASSUMED THAT THE STATE WOULD SOON BE GRANTED MANAGEMENT CONTROL), THE WALRUS WAS NOT MANAGED OR CONTROLLED BY EITHER A FEDERAL OR STATE AGENCY. THE FEDERAL AGENCIES NEED TO ACT FASTER ON STATES' REQUESTS FOR A WAIVER ON THE TAKING OF MARINE MAMMALS AND RETURN OF MANAGEMENT.

THE COMMITTEE CONCURS WITH THE GAO CONCLUSION AND FINDS THAT ONE OF THE MAJOR REASONS FOR THE FAILURE OF FEDERAL AGENCIES TO EXPEDITE ACTION ON STATE REQUESTS FOR RETURN OF MANAGEMENT AND WAIVER OF THE MORATORIUM IS THE CUMBERSOME PROCEDURES MANDATED UNDER THE MARINE MAMMAL PROTECTION ACT WHICH REQUIRE EXTENSIVE FORMAL HEARINGS. TO REMEDY THIS PROBLEM AND TO ENSURE THAT EFFECTIVE CONSERVATION OF MANAGEMENT PROGRAMS FOR MARINE MAMMALS ARE IMPLEMENTED, H.R. 4084 ESTABLISHES A SIMPLIFIED PROCEDURE UNDER WHICH A STATE COULD RESUME MANAGEMENT OF MARINE MAMMAL SPECIES.

THE COMMITTEE ALSO RECEIVED TESTIMONY THAT, DESPITE THE DRAMATIC DECLINE IN THE NUMBER OF PORPOISES INCIDENTALLY TAKEN IN TUNA FISHING OPERATIONS, THE ADMINISTRATION OF THE PROVISIONS OF THE ACT RELATING TO INCIDENTAL TAKE HAVE BEEN CHARACTERIZED BY EXCESSIVE LITIGATION. THE TUNA INDUSTRY IS OPERATING IN FEAR OF BEING SHUT DOWN BY LAW SUITS, A FEAR WHICH HAMPERS INVESTMENT IN AMERICA'S DISTANT-WATER TUNA FLEET. THIS FEAR IS GENERATED BY THOSE PROVISIONS OF THE ACT WHICH ESTABLISH AS THE IMMEDIATE GOAL OF THE ACT THAT THE INCIDENTAL KILL OR SERIOUS INJURY OF MARINE MAMMALS PURSUANT TO COMMERCIAL FISHING OPERATIONS BE REDUCED TO INSIGNIFICANT LEVELS APPROACHING A ZERO MORTALITY AND SERIOUS INJURY RATE. IT IS THE TUNA INDUSTRY'S CONTENTION THAT SO LONG AS THE INDUSTRY IS USING THE BEST ECONOMICALLY AND TECHNOLOGICALLY FEASIBLE EQUIPMENT AND METHODS TO REDUCE INCIDENTAL PORPOISE MORTALITY, THE FLEET CAN DO NO MORE. IT HAS BEEN ARGUED BY OTHERS, HOWEVER, THAT ZERO MORTALITY MEANS PRECISELY WHAT IT SAYS AND THAT THE INDUSTRY SHOULD BE TAKING VIRTUALLY NO PORPOISES. THE THREAT OF LITIGATION IN THIS REGARD IS OF CONSTANT AND CONTINUING CONCERN TO THE U.S. DISTANT-WATER TUNA FLEET. THE TUNA INDUSTRY, WHICH CONTRIBUTES APPROXIMATELY $1.2 BILLION ANNUALLY TO THE GROSS NATIONAL PRODUCT, WOULD BE FACED WITH SEVERE ECONOMIC CONSEQUENCES IF A COURT INTERPRETED THE ZERO MORTALITY GOAL IN THE STRICTEST SENSE AND FAILED TO TAKE INTO ACCOUNT THE ECONOMIC AND TECHNOLOGICAL PRACTICABILITY OF ACHIEVING THAT GOAL. BESIDES THE AFOREMENTIONED PROBLEMS RELATING TO THE INCIDENTAL TAKE OF PORPOISES IN TUNA FISHING OPERATIONS AND THE RETURN OF MANAGEMENT TO THE STATES, THE BILL ADDRESSES SEVERAL OTHER MAJOR PROBLEMS ASSOCIATED WITH THE ACT. FIRST, THE DEPARTMENTS OF COMMERCE AND THE INTERIOR, THE TUNA INDUSTRY, AND THE STATES RAISED QUESTIONS CONCERNING THE DEFINITIONS OF 'OPTIMUM SUSTAINABLE POPULATION' (OSP), 'OPTIMUM CARRYING CAPACITY' (OCC), AND 'DEPLETED'. UNDER THE ACT, A SPECIES IS SAID TO BE 'DEPLETED' IF IT HAS DECLINED TO A SIGNIFICANT DEGREE OVER A NUMBER OF YEARS, IS LIKELY TO BECOME ENDANGERED, OR IS BELOW THE OCC OF ITS ENVIRONMENT. 'OCC' MEANS THE ABILITY OF THE HABITAT TO SUPPORT A SPECIES AT ITS 'OSP'. HOWEVER, OSP IS DEFINED AS THE LEVEL WHERE THE STOCK IS REPRODUCING AT A MAXIMUM RATE, BASED ON THE OCC FOR THE SPECIES. THE DEFINITIONS ARE CIRCULAR. FURTHER, TRANSLATING OCC AND OSP INTO NUMBERS REQUIRES ESTIMATES OF POPULATION LEVELS PRIOR TO COMMERCIAL EXPLOITATION. SUCH CALCULATIONS HAVE DEMANDED COMPLEX SCIENTIFIC ANALYSIS, POSTULATING ENTIRELY UNKNOWN BALANCES WITHIN A FORMER MARINE ECOSYSTEM. IT WAS ALLEGED THAT THESE DEFINITIONS ARE UNWORKABLE AND MUST BE REPLACED BY MORE TRADITIONAL MANAGEMENT CONCEPTS AND H.R. 4084 CLARIFIES THESE DEFINITIONS. IT WAS ALSO BROUGHT TO THE COMMITTEE'S ATTENTION THAT NON-TUNA COMMERCIAL FISHING OPERATIONS AND OTHER ACTIVITIES WHICH OCCUR IN AREAS OCCUPIED BY MARINE MAMMALS RESULT IN THE TAKE OF SOME OF THESE ANIMALS INCIDENTALLY, ALTHOUGH AT A RATE FAR BELOW THE LEVEL OF TUNA-PORPOISE MORTALITIES. HOWEVER, THE SAME LENGTHY REGULATIONS REQUIRING OSP DETERMINATIONS AND PERMITS WHICH ARE APPLICABLE TO THE TUNA INDUSTRY ALSO APPLY TO ACTIVITIES INVOLVING SMALL NUMBERS OF INCIDENTAL TAKES. ONLY A FRACTION OF NON-TUNA FISHERMEN APPLY FOR A PERMIT BECAUSE OF THE CUMBERSOME PROCEDURES REQUIRED UNDER THE ACT. THE RESULT HAS BEEN A LOSS OF DATA BECAUSE MOST OF THESE INCIDENTAL TAKES GO UNREPORTED. THIS SYMPTOM OF 'OVER MANAGEMENT' HAS SUGGESTED THE NEED FOR A TWO-TIERED MANAGEMENT SCHEME, DISTINGUISHING SIGNIFICANT FROM INSIGNIFICANT TAKES, WHICH IS CONTAINED IN H.R. 4084. IN ADDITION TO THESE MAJOR CONCERNS, A NUMBER OF MORE NARROW, BUT EQUALLY IMPORTANT, ISSUES WERE RAISED. FOR EXAMPLE, WITH REGARD TO THE TAKE OF MARINE MAMMALS BY ALASKAN NATIVES UNDER THE PROVISIONS OF SECTION 101(B) OF THE ACT, IT IS QUESTIONABLE WHETHER THE FEDERAL AGENCIES HAVE THE AUTHORITY TO MONITOR THE HARVEST IN ORDER TO PROVIDE THE CRITICAL DATA NEEDED IN ANY MANAGEMENT PROGRAM. THE INCREASING EXTENT OF THE NATIVE HARVEST NECESSITATES THAT ADEQUATE INFORMATION ON THE NATURE OF THIS HARVEST BE AVAILABLE IN ORDER TO MONITOR THE IMPACT OF THE HARVEST ON MARINE MAMMAL SPECIES. IN THE CASE OF THE WALRUS HARVEST, FOR EXAMPLE, ALL LEGAL HUNTING IS DONE BY THE NATIVES. ANY NON-NATIVE HARVEST IS ILLEGAL UNDER THE MMPA. SINCE THE ACT WAS PASSED IN 1972 THE NUMBER OF WALRUS THAT THE NATIVES KILL HAS INCREASED SIGNIFICANTLY. FROM 1959 TO 1971, AN AVERAGE OF ABOUT 3,300 WAS TAKEN EACH YEAR. THE CURRENT NUMBER IS ESTIMATED AT 10,000 A YEAR. THE GENERAL ACCOUNTING OFFICE, IN ITS RECENT REPORT ON THE ACT, NOTES THAT A MONITORING PROGRAM WOULD PROVIDE ESSENTIAL MANAGEMENT DATA ON THE STATUS AND CONDITION OF THE WALRUS POPULATION. UNFORTUNATELY, AS NOTED ABOVE, IT IS LESS THAN CLEAR UNDER THE EXISTING ACT WHETHER THE APPROPRIATE FEDERAL AGENCIES HAVE THE AUTHORITY TO MONITOR THE NATURE AND EXTENT OF THE NATIVE TAKE OF MARINE MAMMALS. IN ADDITION, IT IS FEARED THAT THE PROHIBITION SECTION CONTAINS A LOOPHOLE THAT WILL ALLOW FOR THE COMMERCIALIZATION OF MARINE MAMMAL PRODUCTS BY NATIVES, WHICH GOES FAR BEYOND THE OBVIOUS INTENT OF THE ACT.

ANOTHER RELATIVELY NARROW ISSUE WAS RAISED BY FEDERAL OFFICIALS WHO EXPRESSED CONCERN BECAUSE PERSONS WHO UNINTENTIONALLY VIOLATE THE IMPORT PROVISIONS OF THE ACT ARE OFTEN REQUIRED TO GO THROUGH CIVIL PENALTY PROCEEDINGS, WHEN SIMPLY ABANDONING THE ITEM AT THE PORT OF ENTRY WOULD PROVIDE A SUFFICIENT DETERRENT.

FINALLY, MEMBERS OF THE SCIENTIFIC COMMUNITY REQUESTED BROADER AUTHORITY TO DEAL WITH STRANDED ANIMALS. ALL OF THESE ISSUES ARE ADDRESSED IN THE LEGISLATION.

H.R. 4048, AS REPORTED BY THE COMMITTEE, HAS THE ENDORSEMENT OF THE MAJOR INDUSTRIES AFFECTED BY THE ACT AND OF THE MAJOR ENVIRONMENTAL ORGANIZATIONS CONCERNED WITH THE ACT. THE BILL MAINTAINS THE NOBLE PURPOSE OF THE ACT TO PRESERVE STRONG, HEALTHY POPULATIONS OF ALL MARINE MAMMALS. AT THE SAME TIME IT ENCOURAGES GREATER STATE PARTICIPATION IN MARINE MAMMAL MANAGEMENT AND REDUCES THE REGULATORY BURDEN ON THOSE ACTIVITIES WHICH HAVE A MINIMAL IMPACT ON MARINE MAMMALS.

SECTION-BY-SECTION ANALYSIS

THERE FOLLOWS A SECTION-BY-SECTION ANALYSIS OF H.R. 4084 ACCOMPANIED, WHERE APPROPRIATE, BY ADDITIONAL DISCUSSION.

SECTION 1

SECTION 1 OF H.R. 4084 AMENDS SECTION 3 OF THE ACT BY DELETING THE DEFINITION OF 'OPTIMUM CARRYING CAPACITY', AMENDING THE DEFINITION OF 'DEPLETED', AND MAKING THE CONFORMING AMENDMENTS REQUIRED BY THESE CHANGES.

IN DELETING THE TERM OPTIMUM CARRYING CAPACITY, IT IS NOT THE COMMITTEE'S INTENT TO SUBSTANTIVELY CHANGE THE ACT OR TO ALTER THE MEANING OF, OR METHODS BY WHICH, OPTIMUM SUSTAINABLE POPULATION IS CALCULATED. SINCE THE PASSAGE OF THE ACT IN 1972, THERE HAVE BEEN A NUMBER OF WORKSHOPS AND CONFERENCES WHICH HAVE ADDRESSED SCIENTIFIC ISSUES ARISING UNDER THE ACT. AT ALL OF THESE MEETINGS, SCIENTISTS HAVE TREATED THE DEFINITION OF OPTIMUM CARRYING CAPACITY AS INTERCHANGEABLE WITH THE DEFINITION OF OPTIMUM SUSTAINABLE POPULATION. IN FACT, NEITHER THE REGULATIONS OF THE FISH AND WILDLIFE SERVICE NOR THOSE OF THE NATIONAL MARINE FISHERIES SERVICE DEFINE THE TERM OPTIMUM CARRYING CAPACITY. FURTHER, IN THE FIRST DECISION OF THE ADMINISTRATOR OF THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION REGARDING THE TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING OPERATIONS, THE ADMINISTRATOR STATED THAT: OPTIMUM CARRYING CAPACITY IS A CHARACTERISTIC OF THE HABITAT. THIS TERM, HOWEVER, IS DEFINED IN THE ACT AS THE 'ABILITY OF A GIVEN HABITAT TO SUPPORT THE OPTIMUM SUSTAINABLE POPULATION OF A SPECIES OR POPULATION STOCK IN A HEALTHY STATE WITHOUT DIMINISHING THE ABILITY OF THE HABITAT TO CONTINUE THAT FUNCTION.' OPTIMUM SUSTAINABLE POPULATION IS DEFINED IN TERMS OF THE NUMBER OF ANIMALS THAT MAY EXIST IN A PARTICULAR HABITAT. THEREFORE, I HAVE CONCLUDED AS A MATTER OF LAW THAT A SPECIES OR STOCK IS BELOW THE HABITAT'S OPTIMUM CARRYING CAPACITY WHEN THE NUMBER OF INDIVIDUALS IS BELOW THE OPTIMUM SUSTAINABLE POPULATION, AND CONSEQUENTLY IS DEPLETED. THE EFFECT OF THE ADMINISTRATOR'S DECISION, WHICH HAS BEEN FOLLOWED BY BOTH AGENCIES SINCE 1977, IS TO MAKE THE TERM OPTIMUM CARRYING CAPACITY ESSENTIALLY IDENTICAL TO THE TERM OPTIMUM SUSTAINABLE POPULATION. GIVEN THIS HISTORY, THE COMMITTEE BELIEVED THAT THE TERM OPTIMUM CARRYING CAPACITY WAS UNNECESSARY TO THE OPERATION OF THE ACT AND COULD BE DELETED.

THE DEFINITION OF THE TERMS 'DEPLETED' OR 'DEPLETION' IS AMENDED TO MEAN ANY CASE IN WHICH:

(1) THE SECRETARY, OR A STATE TO WHICH MANAGEMENT AUTHORITY IS TRANSFERRED UNDER SECTION 109, DETERMINES THAT A SPECIES IS BELOW ITS OPTIMUM SUSTAINABLE POPULATION; OR

(2) A SPECIES IS LISTED AS ENDANGERED OR THREATENED PURSUANT TO THE ENDANGERED SPECIES ACT OF 1973.

THE CURRENT DEFINITION OF THESE TERMS IS UNCLEAR IN BOTH LANGUAGE AND PURPOSE. THE COMMITTEE BELIEVED THAT THE ADOPTION OF A SINGLE MANAGEMENT STANDARD-- THE MAINTENANCE OF SPECIES AT THEIR OPTIMUM SUSTAINABLE POPULATION-- WAS CONSISTENT WITH THE ACT AND WOULD REDUCE CONFUSION. THE COMMITTEE ALSO RECOGNIZED THAT SPECIES THAT ARE LISTED UNDER THE ENDANGERED SPECIES ACT ARE, A FORTIORI, NOT AT THEIR OPTIMUM SUSTAINABLE POPULATION AND, THEREFORE, SHOULD BE CONSIDERED DEPLETED.

IN DRAFTING H.R. 4084, AND THE AMENDMENTS THERETO, THE COMMITTEE GAVE SERIOUS CONSIDERATION TO AMENDING THE EXISTING DEFINITION OF OPTIMUM SUSTAINABLE POPULATION. AFTER CAREFULLY REVIEWING VARIOUS ALTERNATIVE DEFINITIONS PROPOSED BY THE CONCERNED PARTIES, THE COMMITTEE DECIDED NOT TO AMEND THE DEFINITION. IN REACHING THIS DECISION, THE COMMITTEE REVIEWED THE CURRENT REGULATORY DEFINITION OF OPTIMUM SUSTAINABLE POPULATION CONTAINED IN 50 CFR 216.3 AND DETERMINED THAT, GIVEN THE PRESENT STATE OF SCIENTIFIC KNOWLEDGE, THIS DEFINITION ACCURATELY REFLECTS THE MEANING OF THE TERM OPTIMUM SUSTAINABLE POPULATION AND THE INTENT OF THE CONGRESS IN PASSING THE ORIGINAL ACT. THE COMMITTEE RECOGNIZES, HOWEVER, THAT NEW SCIENTIFIC KNOWLEDGE MAY RESULT IN CHANGES TO THE EXISTING REGULATORY DEFINITION. UNDER THE EXISTING REGULATIONS, OPTIMUM SUSTAINABLE POPULATION IS ANY POPULATION LEVEL WITHIN A RANGE OF POPULATION LEVELS. THE UPPER BOUND OF THE RANGE IS THE LARGEST AVERAGE SUPPORTABLE LEVEL WITHIN THE ECOSYSTEM (CARRYING CAPACITY). THE LOWER BOUND OF THE RANGE IS THE POPULATION LEVEL FOR A GIVEN SPECIES OR STOCK THAT RESULTS IN MAXIMUM NET PRODUCTIVITY.

SECTION 2

SECTION 101(A)(2) OF THE ACT STATES THAT IT SHALL BE THE IMMEDIATE GOAL THAT THE INCIDENTAL KILL OR SERIOUS INJURY OF MARINE MAMMALS PERMITTED IN THE COURSE OF COMMERCIAL FISHING OPERATIONS BE REDUCED TO INSIGNIFICANT LEVELS APPROACHING A ZERO MORTALITY AND SERIOUS INJURY RATE. SECTION 2 OF H.R. 4084 AMENDS SECTION 101(A)(2) OF THE ACT TO PROVIDE THAT THIS GOAL IS SATISFIED IN THE CASE OF PURSE SEINE FISHING FOR YELLOWFIN TUNA BY A CONTINUATION OF THE APPLICATION OF THE BEST MARINE MAMMAL SAFETY TECHNIQUES AND EQUIPMENT THAT ARE ECONOMICALLY AND TECHNOLOGICALLY PRACTICABLE. IN ADOPTING THIS LANGUAGE, THE COMMITTEE CAREFULLY CONSIDERED THE MATTER OF THE INCIDENTAL TAKING OF MARINE MAMMALS IN THE COURSE OF COMMERCIAL FISHING OPERATIONS AND DETERMINED THAT THE AMENDMENT TO SECTION 101(A)(2) IS AN APPROPRIATE CLARIFICATION OF THE ACT. IN MAKING THIS DETERMINATION, THE COMMITTEE RESTATES ITS ORIGINAL VIEW THAT IT IS NOT THE INTENTION OF THE COMMITTEE TO SHUT DOWN, OR TO SIGNIFICANTLY CURTAIL, THE ACTIVITY OF THE TUNA FLEET SO LONG AS THE SECRETARY IS SATISFIED THAT TUNA FISHERMEN ARE USING THE BEST ECONOMICALLY AND TECHNOLOGICALLY PRACTICABLE MARINE MAMMAL SAFETY TECHNIQUES. ALTHOUGH THE AMENDMENT TO SECTION 101(A)(2) RETAINS THE ACT'S GOAL OF REDUCING THE INCIDENTAL TAKING OF MARINE MAMMALS TO INSIGNIFICANT LEVELS APPROACHING A ZERO MORTALITY AND SERIOUS INJURY RATE, THE COMMITTEE BELIEVES A CLARIFICATION IS APPROPRIATE IN LIGHT OF THE LENGTHY HISTORY OF THE REGULATION OF INCIDENTAL TAKING IN THE PURSE SEINE YELLOWFIN TUNA FISHERY AND THE SUBSTANTIAL PROGRESS THAT HAS BEEN MADE IN DEVELOPING NEW TECHNIQUES AND EQUIPMENT FOR AVOIDING THE INCIDENTAL KILL AND SERIOUS INJURY OF MARINE MAMMALS. THE COMMITTEE DOES NOT, HOWEVER, INTEND THAT THIS AMENDMENT SHALL AFFECT ANY AUTHORITY THE SECRETARY MAY HAVE TO PROMULGATE REGULATIONS GOVERNING THE INCIDENTAL TAKING OF MARINE MAMMALS, INCLUDING REGULATIONS PRESCRIBING ANNUAL QUOTAS, WHICH ARE FOUND NECESSARY TO FULFILL THE OBLIGATIONS PLACED ON THE SECRETARY BY THE ACT. WHILE RECOGNIZING THE SUBSTANTIAL PROGRESS THAT HAS BEEN MADE IN DEVELOPING IMPROVED MARINE MAMMAL SAFETY TECHNIQUES AND EQUIPMENT, THE COMMITTEE IS COGNIZANT OF THE NEED TO ENSURE THAT THE BEST MARINE MAMMAL SAFETY TECHNIQUES AND EQUIPMENT ARE USED IN THE FUTURE. WITH THIS IN MIND, THE COMMITTEE INTENDS THAT ITS AMENDMENT BE UNDERSTOOD TO REQUIRE THE USE OF NEW AND IMPROVED MARINE MAMMAL SAFETY TECHNIQUES AND EQUIPMENT ONCE THEY HAVE BEEN DEVELOPED, TESTED IN THE YELLOWFIN TUNA FISHERY, AND DETERMINED, BY THE SECRETARY, TO BE ECONOMICALLY AND TECHNOLOGICALLY PRACTICABLE. THE AMENDMENT TO SECTION 110, DESCRIBED BELOW, WILL FACILITATE SUCH DEVELOPMENT. IN CONSIDERING THIS ISSUE, THE COMMITTEE DECIDED TO MODIFY OR ELABORATE UPON THE ACT'S GOAL WITH RESPECT TO OTHER FISHERIES WHICH INCIDENTALLY TAKE MARINE MAMMALS. THIS DOES NOT MEAN THAT SIMILAR ACTION COULD NOT BE TAKEN IN THE FUTURE WHEN FURTHER DATA IS AVAILABLE. THE CONTRAST BETWEEN THE SUBSTANTIAL PROGRESS MADE BY THE TUNA FLEET IN DEVELOPING NEW TECHNIQUES AND EQUIPMENT FOR REDUCING MARINE MAMMAL MORTALITY AND THE FAILURE OF THE FOREIGN HIGH SEAS SALMON GILLNET FISHERY, FOR EXAMPLE, TO DEVELOP NEW TECHNIQUES AND EQUIPMENT FOR REDUCING INCIDENTAL MORTALITY JUSTIFIES LIMITING THE AMENDMENT TO THE YELLOWFIN TUNA FISHERY. THE EXISTING GOAL IN THE ACT CAN PROPERLY BE USED TO STIMULATE NEW TECHNOLOGY FOR REDUCING THE INCIDENTAL TAKING OF MARINE MAMMALS.

THE LANGUAGE CONTAINED IN THE AMENDMENT TO SECTION 101(A)(2) REGARDING THE RIGHTS OF THE SECRETARY OF THE TREASURY TO BAN THE IMPORTATION OF FISH OR FISH PRODUCTS UNDER CERTAIN CIRCUMSTANCES MERELY INCORPORATES THE PRESENTLY EXISTING LANGUAGE IN THE ACT. THE COMMITTEE IS AWARE THAT THE UNITED STATES PRESENTLY REQUIRES THOSE COUNTRIES DESIROUS OF IMPORTING TUNA PRODUCTS TO COMPLY WITH A SPECIFIED CERTIFICATION PROGRAM. IT IS THE INTENT OF THE COMMITTEE THAT THIS CERTIFICATION PROGRAM BE CONTINUED.

SECTION 2 FURTHER AMENDS SECTION 101(A) OF THE ACT BY ADDING NEW PARAGRAPHS (4) AND (5). NEW SECTION 101(A)(4) PROVIDES THAT DURING ANY FIVE-YEAR PERIOD THE SECRETARY SHALL ALLOW THE INCIDENTAL, BUT NOT THE INTENTIONAL, TAKING BY UNITED STATES COMMERCIAL FISHERMEN OF SMALL NUMBERS OF MARINE MAMMALS. BEFORE ALLOWING SUCH A TAKE, THE SECRETARY, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC COMMENT, MUST FIND THAT THE TOTAL OF SUCH TAKING WILL HAVE A NEGLIGIBLE IMPACT ON THE SPECIES AND MUST PROVIDE GUIDELINES PERTAINING TO THE ESTABLISHMENT OF A COOPERATIVE SYSTEM AMONG THE FISHERMEN INVOLVED FOR MONITORING THE TAKE. A FINDING OF NEGLIGIBLE IMPACT CANNOT BE MADE IF THE SPECIES IS DEPLETED. THE SECRETARY IS DIRECTED TO WITHDRAW OR SUSPEND THE PERMISSION TAKE MARINE MAMMALS UNDER THIS PROVISION IF HE FINDS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC COMMENT, THAT THE TAKING IS HAVING MORE THAN A NEGLIGIBLE IMPACT ON THE SPECIES OR THAT THE PURPOSES, POLICIES AND GOALS OF THE ACT WOULD BE BETTER SERVED BY APPLYING THE PERMIT PROCEDURES OTHERWISE PROVIDED FOR UNDER THE ACT. COMMERCIAL FISHERMEN AUTHORIZED TO TAKE MARINE MAMMALS PURSUANT TO THIS NEW PROVISION WOULD NOT BE REQUIRED TO SEEK PERMITS PURSUANT TO SECTION 104 IN ACCORDANCE WITH REGULATIONS PROMULGATED UNDER SECTION 103 OF THE ACT. NEW SECTION 101(A)(5) PROVIDES THAT THE SECRETARY SHALL ALLOW, UPON REQUEST BY UNITED STATES CITIZENS WHO ENGAGE IN A SPECIFIED ACTIVITY (OTHER THAN COMMERCIAL FISHING) WITHIN A SPECIFIED GEOGRAPHICAL REGION, THE INCIDENTAL, BUT NOT THE INTENTIONAL, TAKING OF SMALL NUMBERS OF MARINE MAMMALS. THIS PERMISSION MAY BE GRANTED FOR PERIODS OF 5 YEARS OR LESS. SUCH TAKING MAY BE ALLOWED ONLY IF THE SPECIES INVOLVED IS NOT DEPLETED AND IF THE SECRETARY, AFTER NOTICE AND OPPORTUNITY OF PUBLIC COMMENT, (1) FINDS THAT THE TOTAL OF SUCH TAKING WILL HAVE A NEGLIGIBLE IMPACT ON THE SPECIES AND ITS HABITAT, AND ON THE AVAILABILITY OF THE SPECIES FOR SUBSISTENCE USES, (2) PRESCRIBES REGULATIONS SETTING FORTH PERMISSIBLE METHODS OF TAKING AND OTHER MEANS OF EFFECTING THE LEAST PRACTICABLE ADVERSE IMPACT ON THE SPECIES AND ITS HABITAT, PAYING PARTICULAR ATTENTION TO ROOKERIES, MATING GROUNDS, AND OTHER AREAS OF SIMILAR SIGNIFICANCE, AND (3) PRESCRIBES REGULATIONS PERTAINING TO THE MONITORING AND REPORTING OF SUCH TAKING. THE SECRETARY IS DIRECTED TO WITHDRAW OR SUSPEND THE PERMISSION TO TAKE MARINE MAMMALS UNDER THIS PROVISION IF HE FINDS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC COMMENT, THAT (1) THE REGULATIONS REGARDING METHODS OF TAKING, MONITORING, OR REPORTING ARE NOT BEING SUBSTANTIALLY COMPLIED WITH, OR (2) THE TAKING IS HAVING OR MAY HAVE, MORE THAN A NEGLIGIBLE IMPACT ON THE SPECIES. PERMISSION TO TAKE UNDER THIS PROVISION MAY BE SUSPENDED WITHOUT NOTICE OR PUBLIC COMMENT IF THE SECRETARY DETERMINES THAT AN EMERGENCY EXISTS WHICH POSES A SIGNIFICANT RISK TO THE SPECIES CONCERNED.

SECTIONS 103 AND 104 OF THE ACT DO NOT APPLY TO THE TAKING OF MARINE MAMMALS OCCURRING UNDER THE AUTHORITY OF SECTION 101(A)(5).

BOTH SECTIONS 101(A)(4) AND (5) AUTHORIZE THE INCIDENTAL, BUT NOT THE INTENTIONAL, TAKING OF SMALL NUMBERS OF MARINE MAMMALS. THE PHRASE 'INCIDENTAL, BUT NOT INTENTIONAL' IS INTENDED TO MEAN ACCIDENTAL TAKING. THE WORDS 'NOT INTENTIONAL' SHOULD NOT BE READ TO MEAN THAT PERSONS WHO KNOW THERE IS SOME POSSIBILITY OF TAKING MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING OPERATIONS OR OTHER SPECIFIED ACTIVITIES ARE PRECLUDED FROM PROCEEDING UNDER THE AUTHORITY OF SECTIONS 101(A)(4) OR (5).

THE TAKING AUTHORIZED UNDER THESE NEW PROVISIONS IS THE TAKING OF SMALL NUMBERS OF MARINE MAMMALS. THE COMMITTEE RECOGNIZES THE IMPRECISION OF THE TERM 'SMALL NUMBERS', BUT WAS UNABLE TO OFFER A MORE PRECISE FORMULATION BECAUSE THE CONCEPT IS NOT CAPABLE OF BEING EXPRESSED IN ABSOLUTE NUMERICAL LIMITS. THE COMMITTEE INTENDS THAT THESE PROVISIONS BE AVAILABLE FOR PERSONS WHOSE TAKING OF MARINE MAMMALS IS INFREQUENT, UNAVOIDABLE, OR ACCIDENTAL.

IT SHOULD ALSO BE NOTED THAT THESE NEW PROVISIONS OF THE ACT PROVIDE AN ADDITIONAL AND SEPARATE SAFEGUARD IN THAT THE SECRETARY MUST DETERMINE THAT THE INCIDENTAL TAKINGS OF SMALL NUMBERS OF MARINE MAMMALS HAVE A 'NEGLIGIBLE' IMPACT UPON THE SPECIES FROM WHICH SUCH TAKINGS OCCUR. THIS ADDITIONAL TEST IS MEANT TO SERVE AS A SEPARATE STANDARD RESTRICTING THE AUTHORITY OF THE SECRETARY. THE TERM 'NEGLIGIBLE' IS INTENDED TO MEAN AN IMPACT WHICH IS ABLE TO BE DISREGARDED. IN THIS REGARD, THE COMMITTEE NOTES THAT WEBSTER'S DICTIONARY DEFINES THE TERM 'NEGLIGIBLE' TO MEAN 'SO SMALL OR UNIMPORTANT OR OF SO LITTLE CONSEQUENCE AS TO WARRANT LITTLE OR NO ATTENTION.' UNLESS A PARTICULAR ACTIVITY TAKES ONLY SMALL NUMBERS OF MARINE MAMMALS, AND THAT TAKING HAS A NEGLIGIBLE IMPACT ON THE SPECIES, THE NEW PROVISIONS OF SECTIONS 101(A)(4) AND (5) ARE NOT APPLICABLE TO THAT ACTIVITY.

IT IS THE INTENTION OF THE COMMITTEE THAT BOTH THE SPECIFIED ACTIVITY AND THE SPECIFIED REGION OF REFERRED TO IN SECTION 101(A)(5) BE NARROWLY IDENTIFIED SO THAT THE ANTICIPATED EFFECTS WILL BE SUBSTANTIALLY SIMILAR. THUS, FOR EXAMPLE, IT WOULD NOT BE APPROPRIATE FOR THE SECRETARY TO SPECIFY AN ACTIVITY AS BROAD AND DIVERSE AS OUTER CONTINENTAL SHELF OIL AND GAS DEVELOPMENT. RATHER, THE PARTICULAR ELEMENTS OF THAT ACTIVITY SHOULD BE SEPARATELY SPECIFIED AS, FOR EXAMPLE, SEISMIC EXPLORATION OR CORE DRILLING. SIMILARLY, THE SPECIFIED GEOGRAPHICAL REGION SHOULD NOT BE LARGER THAN IS NECESSARY TO ACCOMPLISH THE SPECIFIED ACTIVITY, AND SHOULD BE DRAWN IN SUCH A WAY THAT THE EFFECTS ON MARINE MAMMALS IN THE REGION ARE SUBSTANTIALLY THE SAME. THUS, FOR EXAMPLE, IT WOULD BE INAPPROPRIATE TO IDENTIFY THE ENTIRE PACIFIC COAST OF THE NORTH AMERICAN CONTINENT AS A SPECIFIED GEOGRAPHICAL REGION, BUT IT MAY BE APPROPRIATE TO IDENTIFY PARTICULAR SEGMENTS OF THAT COAST HAVING SIMILAR CHARACTERISTICS, BOTH BIOLOGICAL AND OTHERWISE, AS SPECIFIED GEOGRAPHICAL REGIONS.

FURTHER, THE COMMITTEE EXPECTS THAT PERSONS OPERATING UNDER THE AUTHORITY OF SECTION 101(A)(5) SHALL ENGAGE IN APPROPRIATE RESEARCH DESIGNED TO REDUCE THE INCIDENTAL TAKING OF MARINE MAMMALS PURSUANT TO THE SPECIFIED ACTIVITY CONCERNED. SECTIONS 101(A)(4) AND (5) EACH PROVIDE A MECHANISM FOR THE SECRETARY TO WITHDRAW OR SUSPEND THE PERMISSION TO TAKE MARINE MAMMALS GRANTED UNDER THESE PROVISIONS. BECAUSE SUCH PERMISSION CAN BE GRANTED FOR FIVE-YEAR PERIODS, IT IS NOT THE COMMITTEE'S INTENT THAT THE SECRETARY MUST WAIT UNTIL THE EXPIRATION OF THAT PERIOD BEFORE DETERMINING WHETHER TO WITHDRAW OR SUSPEND THIS PERMISSION TO TAKE. HOWEVER, ASSUMING THE ABSENCE OF MORE THAN A NEGLIGIBLE IMPACT, THE SECRETARY MUST ALLOW A SUFFICIENT TIME FOR THE VOLUNTARY REPORTING SYSTEM PROVIDED FOR IN SECTION 101(A)(4) TO BE ESTABLISHED AND PUT TO USE. THE COMMITTEE NOTES WITH RESPECT TO COMMERCIAL FISHERMEN OPERATING UNDER SECTION 101(A)(4) THAT THE ESTABLISHMENT OF A VOLUNTARY REPORTING SYSTEM IS IN RESPONSE TO THE FAILURE OF THE CURRENT ACT TO PROVIDE ADEQUATE DATA REGARDING THE INCIDENTAL TAKING OF MARINE MAMMALS WHICH OCCURS IN NON-TUNA COMMERCIAL FISHING OPERATIONS. IF THIS VOLUNTARY SYSTEM FAILS TO PRODUCE SUCH DATA AFTER A REASONABLE PERIOD OF TIME, THE COMMITTEE INTENDS TO FASHION A MORE APPROPRIATE RESPONSE WHICH WILL REFLECT THE EXPERIENCE THAT SUCH A VOLUNTARY SYSTEM CANNOT WORK. IN THE CASE OF A SPECIFIED ACTIVITY OCCURRING UNDER SECTION 101(A)(5), THERE MAY BE MORE THAN ONE PERSON PARTICIPATING IN THAT SPECIFIED ACTIVITY. THE FACT THAT ONE PERSON OF THE CLASS IS NOT IN COMPLIANCE WITH THE REGULATIONS ISSUED PURSUANT TO THE SECTION IS NOT A SUFFICIENT BASIS FOR WITHDRAWING OR SUSPENDING PERMISSION FOR ALL PERSONS TO CONTINUE TO OPERATE UNDER THIS SECTION. THERE MUST BE SUBSTANTIAL COMPLIANCE BY EITHER A PERSON OR BY THE CLASS AS A WHOLE, IN ORDER FOR THAT PERSON OR FOR THE ENTIRE CLASS, RESPECTIVELY, TO PROCEED UNDER THE AUTHORITY OF SECTION 101(A)(5).

SECTION 2 FURTHER AMENDS SECTION 101 BY AMENDING SECTION 101(B) TO CLARIFY THAT THE NATIVE EXEMPTION ESTABLISHED BY SECTION 101(B) DOES NOT APPLY TO INDIANS, ALEUTS OR ESKIMOS WHO RESIDE TEMPORARILY OR PERMANENTLY IN STATES OTHER THAN ALASKA. IT WAS NOT INTENDED THAT SECTION 101(B) BE APPLICABLE TO NATIVES IN OTHER STATES WHO MIGHT TAKE MARINE MAMMALS FOR SUBSISTENCE PURPOSES.

SECTION 2 FURTHER AMENDS SECTION 101(B) BY PROVIDING THAT SECTION 101(B) SHALL GOVERN THE TAKING OF MARINE MAMMALS BY ALASKAN NATIVES FOR SUBSISTENCE USES EXCEPT AS PROVIDED IN SECTION 109. THE PURPOSE OF THIS LANGUAGE IS TO EXPLICITLY OVERRULE THE DECISION OF THE UNITED STATES DISTRICT COURT IN PEOPLE OF TOGIAK V. UNITED STATES, 470 F.SUPP. 423 (DC 1979), WHICH DETERMINED THAT SECTION 101(B) EXEMPTED ALASKAN NATIVES FROM ALL STATE REGULATION. IT IS THE COMMITTEE'S INTENT TO MAKE IT CLEAR THAT ALASKAN NATIVES ARE SUBJECT TO STATE REGULATION PURSUANT TO THE PROVISIONS OF SECTION 109.

SECTION 3

SECTION 102 OF THE ACT SPECIFIES THE ACTIVITIES WHICH ARE PROHIBITED UNDER THE ACT. SECTION 102(A) MAKES CLEAR THAT THESE PROHIBITIONS APPLY EXCEPT TO THE EXTENT THAT THEY ARE PERMITTED UNDER OTHER SECTIONS OF THE ACT. SECTION 3(A)(1) OF H.R. 4084 AMENDS SECTION 102(A) TO INCLUDE ACTIONS AUTHORIZED UNDER SECTION 109 IN THE LIST OF ACTIVITIES EXEMPTED FROM THE COVERAGE OF SECTION 102.

SECTION 3(A)(1) FURTHER AMENDS SECTION 102(A) BY MAKING IT ILLEGAL FOR ANY PERSON TO POSSESS A MARINE MAMMAL, OR ANY PRODUCT FROM THAT MAMMAL, AND FOR ANY PERSON TO TRANSPORT, PURCHASE, SELL, OR OFFER TO PURCHASE OR SELL ANY MARINE MAMMAL OR MARINE MAMMAL PRODUCT. SECTION 102 AS CURRENTLY WRITTEN MAKES THE POSSESSION, TRANSPORT, OR SALE, ETC. OF A MARINE MAMMAL OR ITS PARTS AND PRODUCTS ILLEGAL ONLY IF THE MARINE MAMMAL WAS TAKEN ILLEGALLY. THIS HAS PRESENTED ENFORCEMENT DIFFICULTIES IN THE CONTEXT OF THE TAKING FOR SUBSISTENCE PURPOSES WHERE THE TAKING ITSELF IS LEGAL WHILE THE SUBSEQUENT USE OF THE MARINE MAMMAL IS IN VIOLATION OF THE ACT. H.R. 4084 MAKES IT CLEAR THAT THE SECRETARY NEED NOT PROVE THAT THE TAKING WAS ILLEGAL IN ORDER TO PROCEED AGAINST INDIVIDUALS WHO ARE OTHERWISE IN VIOLATION OF THE ACT. THE COMMITTEE DOES NOT VIEW THIS LANGUAGE AS A NEW PROVISION BUT RATHER AS A CLARIFICATION OF WHAT CONGRESS ALWAYS INTENDED. IN PARTICULAR, THE COMMITTEE REAFFIRMS THE FACT THAT THE DISPOSITION OF THE NATIVE HARVEST IS SPECIFICALLY PROVIDED FOR IN SECTION 101(B) AND ANY OTHER USE IS ILLEGAL, REGARDLESS OF THE CIRCUMSTANCES UNDER WHICH THE ANIMAL WAS TAKEN. THIS PROVISION IS NOT INTENDED TO EFFECT THE TRANSPORTATION OF LEGALLY TAKEN MARINE MAMMALS FROM THE HIGH SEAS INTO THE TERRITORIAL SEA.

THE COMMITTEE TAKES NOTE THAT BOTH THE FISH AND WILDLIFE SERVICE AND THE NATIONAL MARINE FISHERIES SERVICE, IN THEIR REGULATIONS IMPLEMENTING THE MARINE MAMMAL PROTECTION ACT, HAVE INCLUDED THE COLLECTION OF DEAD ANIMALS OR THEIR PARTS AS A FORM OF TAKING. IN THIS REGARD, THE DEFINITION OF MARINE MAMMALS INCLUDES THE PARTS OF MARINE MAMMALS BECAUSE THE PROTECTION OF THESE ANIMALS NECESSARILY REQUIRES THE CONTROL OF COMMERCE IN THE VALUABLE PRODUCTS DERIVED FROM THEM. THE COMMITTEE, THEREFORE, AGREES THAT INCLUDING THE COLLECTION OF DEAD ANIMALS OR THEIR PARTS IN THE DEFINITION OF TAKE IS PROPER BECAUSE IT WOULD BE IMPOSSIBLE UNDER ANY CIRCUMSTANCES TO DISTINGUISH BETWEEN PARTS DERIVED FROM ANIMALS WHICH HAVE BEEN KILLED AND THOSE WHICH DIED FROM NATURAL CAUSES. SECTION 105(A) OF THE ACT PROVIDES THAT ANY PERSON WHO VIOLATES THE ACT MAY BE ASSESSED A CIVIL PENALTY, EXCEPT THAT NO SUCH PENALTY MAY BE ASSESSED UNLESS THE PERSON IS GIVEN NOTICE, AND AN OPPORTUNITY FOR A HEARING, WITH RESPECT TO THE VIOLATION. ANY PERSON WHO PURCHASES A MARINE MAMMAL PRODUCT WHILE OVERSEAS AND WHO BRINGS THAT PRODUCT INTO THE UNITED STATES WITHOUT A PERMIT IS IN VIOLATION OF THE ACT. IT IS NOT APPROPRIATE TO SUBJECT INDIVIDUALS WHO UNKNOWINGLY VIOLATE THE ACT BY ENTERING THE UNITED STATES WITH MARINE MAMMAL PRODUCTS TO A FORMAL AND LENGTHY NOTICE OF VIOLATION PROCEDURE. THEREFORE, SECTION 3(B) OF H.R. 4084 AMENDS SECTION 105(A) OF THE ACT TO AUTHORIZE THE SECRETARY, IN LIEU OF INSTITUTING A FORMAL NOTICE OF VIOLATION PROCEEDING, TO ALLOW AN INDIVIDUAL TO ABANDON THE ITEM AT THE PORT OF ENTRY IF THE IMPORTATION WAS MADE FOR THAT INDIVIDUAL'S PERSONAL OR FAMILY USE AND WAS NOT AN IMPORTATION FOR OTHERS OR FOR SALE OR COMMERCIAL USE. THIS PROVISION IS INTENDED TO CLARIFY THAT THE SECRETARY HAS THE AUTHORITY TO ALLOW INDIVIDUALS TO VOLUNTARILY ABANDON SEIZED ITEMS AT THE PORT OF ENTRY WITHOUT THE NECESSITY OF FURTHER ADMINISTRATIVE PROCEEDINGS. IT IS NOT INTENDED TO LIMIT IN ANY WAY THE ENFORCEMENT AUTHORITY OF THE SECRETARY UNDER THIS OR ANY OTHER FEDERAL LAW.

SECTION 4

SECTION 4 MAKES SEVERAL AMENDMENTS TO SECTION 109 OF THE ACT. SUBSECTION (A) AMENDS SECTION 109(A) TO PROVIDE THAT NO STATE MAY ENFORCE, OR ATTEMPT TO ENFORCE, ANY LAW OR REGULATION RELATING TO THE TAKING OF ANY MARINE MAMMAL EXCEPT AS PROVIDED UNDER SECTION 109.

SUBSECTION (A) ALSO AMENDS SECTION 109(B) TO PROVIDE THAT THE SECRETARY SHALL TRANSFER MANAGEMENT AUTHORITY FOR ANY SPECIES OF MARINE MAMMAL TO A STATE IF THE SECRETARY FINDS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC COMMENT, THAT THE STATE HAS DEVELOPED AND WILL IMPLEMENT A PROGRAM FOR THE CONSERVATION AND MANAGEMENT OF THE SPECIES THAT:

(A) IS CONSISTENT WITH THE PURPOSES, POLICIES, AND GOALS OF THE ACT AND WITH INTERNATIONAL TREATY OBLIGATIONS,

(B) REQUIRES THAT ALL TAKING OF THE SPECIES BE HUMANE,

(C) DOES NOT PERMIT THE TAKING OF THE SPECIES UNLESS--

(1) THE STATE HAS DETERMINED, UNDER A PROCESS CONSISTENT WITH THE STANDARDS SET FORTH IN SECTION 109(C), THAT THE SPECIES IS AT ITS OPTIMUM SUSTAINABLE POPULATION AND HAS SPECIFIED THE MAXIMUM NUMBER OF ANIMALS THAT MAY BE TAKEN WITHOUT REDUCING THE SPECIES BELOW ITS OPTIMUM SUSTAINABLE POPULATION; AND

(2) THE DETERMINATIONS REQUIRED IN (1) ABOVE ARE FINAL AND IMPLEMENTED UNDER STATE LAW AND, IF APPROPRIATE, A COOPERATIVE ALLOCATION AGREEMENT PROVIDED FOR IN SECTION 109

(D) HAS BEEN IMPLEMENTED;

(D) DOES NOT PERMIT THE TAKING OF A NUMBER OF ANIMALS THAT EXCEEDS THE MAXIMUM NUMBER DETERMINED PURSUANT TO (C) ABOVE AND, IN THE CASE OF SUBSISTENCE USES, DOES NOT PERMIT THE TAKING OF A NUMBER OF ANIMALS THAT WOULD BE INCONSISTENT WITH MAINTAINING THE SPECIES AT ITS OPTIMUM SUSTAINABLE POPULATION;

(E) DOES NOT PERMIT THE TAKING OF THE SPECIES FOR SCIENTIFIC RESEARCH AND PUBLIC DISPLAY PURPOSES, EXCEPT FOR TAKING BY, OR FOR, THE STATE;

(F) PROVIDES PROCEDURES FOR ACQUIRING AND EVALUATING DATA RELATING TO THE OPTIMUM SUSTAINABLE POPULATION OF THE SPECIES AND TO THE MAXIMUM TAKE WHICH COULD BE ALLOWED AND, IF REQUIRED, FOR AMENDING THOSE DETERMINATIONS;

(G) PROVIDES PROCEDURES FOR THE RESOLUTION OF ANY DIFFERENCES BETWEEN THE STATE AND THE SECRETARY THAT MAY ARISE DURING THE DEVELOPMENT OF A COOPERATIVE ALLOCATION AGREEMENT UNDER SECTION 109(D); AND

(H) PROVIDES FOR THE SUBMISSION OF AN ANNUAL REPORT TO THE SECRETARY REGARDING THE ADMINISTRATION OF THE PROGRAM. SECTION 109(B) SETS FORTH THE PROGRAM REQUIREMENTS A STATE MUST COMPLY WITH BEFORE MANAGEMENT AUTHORITY IS RETURNED. IT IS THE COMMITTEE'S INTENT THAT THE STATE HAVE THE BURDEN OF PERSUASION WHEN THE SECRETARY REVIEWS THE STATE PROGRAM TO DETERMINE IF IT IS CONSISTENT WITH THE REQUIREMENTS OF SECTION 109(B). IN THIS REGARD, THE COMMITTEE EXPECTS THAT THE STATE PROGRAM WILL BE PRESENTED IN A CLEAR AND COHERENT MANNER. SIMPLY SUBMITTING A COPY OF THE RELEVANT STATE LAWS AND REGULATIONS TO THE SECRETARY MAY NOT BE SUFFICIENT TO PERMIT THE SECRETARY TO EVALUATE THE STATE PROGRAM. SECTION 109(B), AS AMENDED, AUTHORIZES THE TAKING OF MARINE MAMMALS FOR SUBSISTENCE USES PROVIDED THAT THE TAKING IS NOT INCONSISTENT WITH THE MAINTENANCE OF THE SPECIES AT ITS OPTIMUM SUSTAINABLE POPULATION. THE PURPOSE OF THIS LANGUAGE IS TO PERMIT THE TAKING OF MARINE MAMMALS FOR SUBSISTENCE USES EVEN WHEN THE POPULATION IS BELOW ITS OPTIMUM SUSTAINABLE POPULATION. THE COMMITTEE RECOGNIZES THE PARTICULAR DEPENDENCE OF LOCAL RURAL RESIDENTS IN ALASKA ON MARINE MAMMALS AND DOES NOT WISH TO PRECLUDE THE TAKING OF MARINE MAMMALS WHEN A SPECIES IS BELOW ITS OPTIMUM SUSTAINABLE POPULATION, PROVIDED THAT THE LEVEL OF TAKING WILL PERMIT THE SPECIES TO INCREASE TOWARD ITS OPTIMUM SUSTAINABLE POPULATION. A LEVEL OF TAKE WHICH WILL NOT PERMIT THE SPECIES TO INCREASE TOWARD ITS OPTIMUM SUSTAINABLE POPULATION SHALL NOT BE ALLOWED. THE COMMITTEE WISHES TO STRESS THAT THE DECLINE OF A SPECIES TO A LEVEL UNDER ITS OPTIMUM SUSTAINABLE POPULATION SHOULD BE A RARE OCCASION. THE STATE, UNDER THE PROVISIONS OF SECTION 109(F), SHOULD BEGIN TO RESTRICT NON-SUBSISTENCE AND EVEN NONESSENTIAL SUBSISTENCE USES BEFORE A SPECIES BECOMES DEPLETED.

SECTION 109(B), AS AMENDED, ALSO MAKES IT CLEAR THAT A STATE MAY NOT PERMIT THE TAKING OF MARINE MAMMALS FOR SCIENTIFIC RESEARCH AND PUBLIC DISPLAY PURPOSES UNLESS SUCH TAKING IS DONE BY, OR FOR, THE STATE. MANAGEMENT OF THIS TAKE IS RETAINED AT THE FEDERAL LEVEL EXCEPT THAT, PURSUANT TO SECTION 109(B)(3)(B)(II), THE SECRETARY MAY NOT PERMIT THE REMOVAL OF LIVE ANIMALS FROM A STATE TO WHICH MANAGEMENT AUTHORITY HAS BEEN RETURNED IF THAT STATE DISAPPROVES THE TAKING AS INCONSISTENT WITH ITS PROGRAM. THIS STATE CONSISTENCY DETERMINATION MUST BE MADE WITHIN 30 DAYS OF THE DATE THE PERMIT IS ISSUED. THE COMMITTEE EXPECTS THAT A STATE WILL BE KEPT FULLY INFORMED REGARDING PERMIT APPLICATIONS AND THAT THE STATE WILL MAKE ITS CONSISTENCY FINDING, TO THE MAXIMUM EXTENT PRACTICABLE, PRIOR TO THE PERMIT BEING ISSUED. TO FACILITATE THIS OBJECTIVE THE SECRETARY SHOULD MAKE COPIES OF PERMIT APPLICATIONS AVAILABLE TO THE STATE AS SOON AS THEY ARE RECEIVED BY THE SECRETARY. WHERE THIS IS NOT POSSIBLE, THE STATE SHOULD MAKE ITS CONSISTENCY FINDING PROMPTLY AFTER THE PERMIT IS ISSUED. THE COMMITTEE ALSO EXPECTS THE STATE TO PROVIDE A MECHANISM WHEREBY PERMITTEES CAN REQUEST THE STATE TO RECONSIDER A FINDING THAT THE PERMITTEE BELIEVES TO BE IN ERROR. THE COMMITTEE NOTES THAT THE STATE'S REVIEW AND APPROVAL AUTHORITY ONLY APPLIES TO PERMITS APPROVED AFTER MANAGEMENT AUTHORITY IS RETURNED TO THE STATE. PERMITS APPROVED PRIOR TO THAT TIME ARE NOT SUBJECT TO STATE REVIEW EVEN IF THE TAKING OCCURS AFTER MANAGEMENT AUTHORITY IS RETURNED. FINALLY, THE COMMITTEE WISHES TO MAKE IT CLEAR THAT ONCE STATE APPROVAL IS GIVEN, IT IS VALID FOR THE DURATION OF THE PERMIT.

THE COMMITTEE WISHES TO EMPHASIZE THAT SECTION 109(B)(2), AS AMENDED, SPECIFICALLY PROVIDES THAT UNTIL THE STATE DETERMINATION OF A SPECIES' OPTIMUM SUSTAINABLE POPULATION AND THE MAXIMUM ALLOWABLE TAKE IS FINAL AND IMPLEMENTED, THE STATE PROGRAM SHALL NOT APPLY WITH RESPECT TO THE TAKING OF THAT SPECIES AND THE SECRETARY SHALL CONTINUE TO REGULATE ALL TAKING CONSISTENT WITH THE ACT. HOWEVER, PURSUANT TO SECTION 109(B)(3), AFTER THESE DETERMINATIONS ARE FINAL AND IMPLEMENTED UNDER STATE LAW AND AFTER A COOPERATIVE ALLOCATION AGREEMENT, IF REQUIRED, IS IMPLEMENTED, THE STATE'S OPTIMUM SUSTAINABLE POPULATION AND MAXIMUM TAKE DETERMINATIONS SHALL BE TREATED, FOR PURPOSES OF APPLYING THIS TITLE BEYOND THE TERRITORY OF THE STATE, AS A SECTION 103 FEDERAL WAIVER OF THE MORATORIUM ON TAKING WITHIN THE FISHERY CONSERVATION ZONE. WHERE MANAGEMENT AUTHORITY HAS BEEN RETURNED TO THE STATE AND WHERE THE REQUIRED DETERMINATIONS AND AGREEMENTS HAVE BEEN MADE, THE STATE WILL HAVE EXCLUSIVE AUTHORITY TO MANAGE MARINE MAMMALS WITHIN THE STATE, INCLUDING ITS TERRITORIAL WATERS, EXCEPT FOR SCIENTIFIC AND PUBLIC DISPLAY TAKINGS DESCRIBED ABOVE. SECTION 109(B)(3)(B) IS INTENDED TO MAKE THIS EXPLICIT.

SECTION 4(A) FURTHER AMENDS SECTION 109 BY ADDING A NEW SUBSECTION (C). NEW SUBSECTION (C) SETS FORTH THE PROCESS A STATE MUST COMPLETE BEFORE ANY DETERMINATION OF THE OPTIMUM SUSTAINABLE POPULATION AND THE MAXIMUM ALLOWABLE TAKE FOR A MARINE MAMMAL SPECIES IS FINAL UNDER SECTION 109(B). THE PROCESS REQUIRED MUST COMPLY WITH THE FOLLOWING STANDARDS:

(1) THE STATE MUST MAKE AN INITIAL DETERMINATION OF WHETHER THE SPECIES IS AT ITS OPTIMUM SUSTAINABLE POPULATION AND THE MAXIMUM TAKE WHICH WILL BE CONSISTENT WITH MAINTAINING THE SPECIES AT ITS OPTIMUM SUSTAINABLE POPULATION. IN MAKING THESE DETERMINATIONS THE STATE MUST MAKE AVAILABLE, UNDER REASONABLE CIRCUMSTANCES, THE DOCUMENTATION SUPPORTING THE DETERMINATIONS. THIS REQUIREMENT IS SATISFIED ONLY IF THE PUBLIC HAS REASONABLE ACCESS TO THE DOCUMENTATION. A STATE IS NEITHER REQUIRED TO DUPLICATE, AT ITS OWN EXPENSE, THIS DOCUMENTATION NOR PROVIDE IT TO ANY MEMBER OF THE PUBLIC WHO REQUESTS IT. HOWEVER, ACCESS TO THE DOCUMENTATION SHOULD BE READILY AVAILABLE, AND IF ANY INTERESTED PARTY REQUESTS COPIES AND AGREES TO PAY THE COSTS OF DUPLICATION, THE STATE SHOULD PROVIDE ACTUAL COPIES OF THE DOCUMENTS. IF A REQUEST FOR A HEARING REGARDING THE INITIAL DETERMINATIONS IS NOT MADE, THOSE DETERMINATIONS SHALL BE TREATED AS FINAL. THE COMMITTEE EXPECTS THAT THE STATE WILL ESTABLISH A REASONABLE TIME PERIOD, SUCH AS 30 DAYS, IN WHICH A REQUEST FOR A HEARING CAN BE MADE.

(2) THE STATE SHALL PROVIDE AN OPPORTUNITY, AT THE REQUEST OF ANY INTERESTED PARTY, FOR A HEARING WITH RESPECT TO THE INITIAL DETERMINATIONS. AT ANY SUCH HEARING, INTERESTED PARTIES MAY PRESENT EVIDENCE REGARDING THE DETERMINATIONS AND MAY CROSS-EXAMINE PERSONS PRESENTING EVIDENCE. PRIOR TO THE HEARING, THE STATE MUST GIVE PUBLIC NOTICE OF THE HEARING AND MAKE AVAILABLE AND DISTRIBUTE UPON REQUEST A LIST OF WITNESSES FOR THE STATE AND A GENERAL DESCRIPTION OF THE DOCUMENTATION AND OTHER EVIDENCE THAT WILL BE RELIED UPON BY SUCH WITNESSES. IT IS ESSENTIAL THAT THE STATE, PRIOR TO THE HEARING, MAKE AVAILABLE AND DISTRIBUTE THESE LISTS AND DESCRIPTIONS, FOR WITHOUT SUCH ADVANCE NOTICE, THE RIGHT OF CROSS-EXAMINATION IS SIGNIFICANTLY DILUTED. PERSONS SERVING NOTICE THAT THEY WISH TO CROSS-EXAMINE WITNESSES AT THE HEARING MUST BE GIVEN SUFFICIENT TIME TO FAMILIARIZE THEMSELVES WITH THE EVIDENCE WHICH THE STATE WILL PRESENT AND TO PREPARE APPROPRIATE QUESTIONS. THE FACT THAT SECTION 109(C)(2) STATES THAT INTERESTED PARTIES MAY PRESENT ORAL EVIDENCE AND CROSS- EXAMINE AT THE HEARING DOES NOT MEAN THAT ONLY THOSE PERSONS PRESENTING EVIDENCE ARE ENTITLED TO CROSS-EXAMINE. THERE IS NOT A CONDITION PRECEDENT TO THE RIGHT OF CROSS-EXAMINATION EXCEPT THAT THE STATE MAY REQUIRE PERSONS DESIRING TO EXERCISE THAT RIGHT TO NOTIFY THE STATE OF THEIR INTENT. FINALLY, THE COMMITTEE NOTES THAT THE STATE MAY NOT CALL WITNESSES AND PRESENT DOCUMENTATION AT THE HEARING UNLESS THE ADVANCE NOTICE REQUIREMENTS ARE MET.

(3) IF A HEARING IS REQUESTED ON THE INITIAL DETERMINATIONS, THE STATE MUST MAKE ITS FINAL DETERMINATIONS SOLELY ON THE BASIS OF THE RECORD DEVELOPED AT THE HEARING. THE WORD 'SOLELY' IS INTENDED TO MEAN EXCLUSIVELY. A STATE MAY NOT RELY ON EVIDENCE, ORAL OR WRITTEN, WHICH IS NOT PRESENTED AT THE HEARING. ALL WRITTEN DOCUMENTATION, THEREFORE, MUST BE ENTERED INTO THE RECORD BY A PERSON ABLE, BY VIRTUE OF TRAINING AND EXPERIENCE, TO RESPOND FULLY TO CROSS- EXAMINATION REGARDING THE FACTS AND CONCLUSIONS CONTAINED IN THE WRITTEN MATERIAL.

(4) OPPORTUNITY FOR JUDICIAL REVIEW OF THE STATE'S FINAL DECISION MUST BE AVAILABLE UNDER STATE LAW. HOWEVER, THE SECRETARY MAY NOT INITIATE JUDICIAL REVIEW OF ANY SUCH DECISIONS. ONCE THE STATE PROGRAM HAS BEEN APPROVED AND THE SECTION 109(C) PROCESS COMPLETED, THE SECRETARY RETAINS NO RESIDUAL AUTHORITY TO WAIVE THE MORATORIUM AND PERMIT TAKINGS WITHIN STATE BOUNDARIES IN ADDITION TO THOSE WHICH MAY BE ALLOWED BY THE STATE. WITH RESPECT TO THE SECTION 109(C) PROCESS, IT IS NOT THE COMMITTEE'S INTENT THAT THE STATE BE REQUIRED TO COMPLY WITH THAT PROCESS ON AN ANNUAL BASIS. IT MAY BE THAT THE MANAGEMENT OF THE SPECIES WILL REQUIRE ANNUAL DETERMINATIONS OF OPTIMUM SUSTAINABLE POPULATIONS AND MAXIMUM PERMISSIBLE TAKE. HOWEVER, THIS MAY NOT NECESSARILY BE THE CASE, EVEN THOUGH STATE REGULATIONS SETTING DIFFERENT LEVELS OF TAKE WITHIN THE AREAS, MANNER, ETC. OF TAKE MAY CHANGE FROM YEAR TO YEAR. FINALLY, THE COMMITTEE WISHES TO MAKE IT CLEAR THAT THE PROCEDURE REQUIRED UNDER SECTION 109(C) IS APPLICABLE ONLY TO THE DETERMINATION OF THE OPTIMUM SUSTAINABLE POPULATION OF A SPECIES AND THE MAXIMUM TAKE OF THAT SPECIES WHICH MAY BE ALLOWED IN ORDER TO MAINTAIN THE OPTIMUM SUSTAINABLE POPULATION. THE SECTION 109(C), PROCESS IS NOT APPLICABLE TO OTHER DECISIONS MADE BY THE STATE RESPECTING MARINE MAMMALS. FOR EXAMPLE, A STATE'S DECISION REGARDING THE SEASONS, AREAS, MANNER OF TAKE, ETC. IS NOT SUBJECT TO THE SECTION 109(C) PROCESS.

SECTION 109(D)(1), AS AMENDED BY SECTION 4(A) OF H.R. 4084, ESTABLISHES A PROCEDURE FOR INTEGRATING FEDERAL MANAGEMENT OF MARINE MAMMAL SPECIES IN THE FISHERY CONSERVATION ZONE WITH STATE MANAGEMENT OF SUCH SPECIES IN THE TERRITORIAL SEA ONCE MANAGEMENT AUTHORITY HAS BEEN RETURNED TO THE STATE. SECTION 109(B)(3) STATES THAT IF THE RANGE OF A SPECIES WITH RESPECT TO WHICH AN OPTIMUM SUSTAINABLE POPULATION DETERMINATION IS MADE UNDER SECTION 109(B)(1)(C) EXTENDS BEYOND THE TERRITORIAL WATERS OF THE STATE, THEN THE STATE'S OPTIMUM SUSTAINABLE POPULATION AND MAXIMUM ALLOWABLE TAKE DETERMINATION SHALL BE TREATED WITHIN THE FISHERY CONSERVATION ZONE AS A SECRETARIAL DETERMINATION MADE IN ACCORDANCE WITH SECTION 103 AND AS AN APPLICABLE WAIVER OF THE MORATORIUM UNDER SECTION 101(A). SECTION 109(B)(3) FURTHER PROVIDES THAT IN THIS SITUATION, NO TAKING OF A MARINE MAMMAL MAY BE ALLOWED UNTIL A COOPERATIVE ALLOCATION AGREEMENT IS ENTERED INTO BETWEEN THE STATE AND THE SECRETARY. THE PURPOSE OF THE AGREEMENT IS TO ESTABLISH HOW MANY OF THE ALLOWABLE NUMBER OF MARINE MAMMALS WHICH THE STATE DETERMINES CAN BE TAKEN WILL BE TAKEN IN THE FISHERY CONSERVATION ZONE AND HOW MANY WILL BE TAKEN IN LANDS AND WATERS UNDER STATE JURISDICTION. THE COOPERATIVE ALLOCATION AGREEMENT MAY COVER TWO, AND ONLY TWO, TYPES OF TAKING: (1) SUBSISTENCE USES, AND (2) TAKINGS PROVIDED FOR UNDER SECTION 101(A) WHICH OCCUR WITHIN THE FISHERY CONSERVATION ZONE. TAKING WITHIN THE TERRITORIAL SEA OR ON LAND WITHIN THE STATE IS SOLELY WITHIN THE DISCRETION OF THE STATE AFTER THE TWO PRIORITIES ESTABLISHED IN THE COOPERATIVE ALLOCATION AGREEMENT ARE SATISFIED.

THE COMMITTEE NOTES THAT ONE PURPOSE OF THE COOPERATIVE ALLOCATION AGREEMENT AND THE DISPUTE RESOLUTION MECHANISM PROVIDED FOR IN SECTION 109(B)(1)(G) IS TO ENSURE THAT THE STATE DOES NOT ASSERT THE NEED FOR A NUMBER OF MAMMALS FOR SUBSISTENCE USES WHICH IS NOT SUPPORTED BY HISTORICAL EXPERIENCE OR FACT AND WHICH WILL PRECLUDE THE OCCURRENCE WITHIN THE FISHERY CONSERVATION ZONE OF COMMERCIAL FISHING AND OTHER SPECIFIED ACTIVITIES INVOLVING THE INCIDENTAL TAKING OF MARINE MAMMALS. A SECOND PURPOSE IS TO ENSURE THAT THE SECRETARY DOES NOT MAKE UNJUSTIFIABLE CLAIMS REGARDING THE NUMBER OF MARINE MAMMALS NECESSARY FOR THE SECRETARY TO CARRY OUT HIS RESPONSIBILITIES PURSUANT TO SECTION 101(A). IT IS NOT INTENDED THAT THE COOPERATIVE ALLOCATION AGREEMENT BE A VEHICLE BY WHICH THE SECRETARY CAN ASSERT THAT THE STATE HAS PROVIDED INADEQUATE NUMBERS OF MARINE MAMMALS FOR SUBSISTENCE USES. THAT ISSUE IS TO BE RESOLVED BY THE STATE AND SUBSISTENCE USERS PURSUANT TO THE STATE'S SUBSISTENCE LAWS AND REGULATIONS.

FINALLY, IT SHOULD BE NOTED THAT THE TAKING WHICH IS THE SUBJECT OF THE COOPERATIVE ALLOCATION AGREEMENT IS TAKING WHICH RESULTS IN THE KILLING OR SERIOUS INJURY OF MARINE MAMMALS. IT IS NOT NECESSARY THAT THE COOPERATIVE ALLOCATION AGREEMENT ADDRESS OTHER FORMS OF TAKING WITHIN THE MEANING OF THAT TERM.

SECTION 109(D)(2) PROVIDES THAT IF A STATE AGENCY REQUESTS THE SECRETARY TO REGULATE THE TAKING OF A SPECIES SUBJECT TO A COOPERATIVE ALLOCATION AGREEMENT WITHIN THE FISHERY CONSERVATION ZONE FOR SUBSISTENCE USES OR FOR HUNTING IN A MANNER CONSISTENT WITH STATE REGULATIONS, THE SECRETARY SHALL ADOPT AND ENFORCE SUCH OF THE STATE'S REGULATIONS AS THE SECRETARY CONSIDERS TO BE CONSISTENT WITH HIS ADMINISTRATION OF SECTION 101(A). THIS SECTION IS INTENDED TO PROVIDE A MECHANISM FOR THE FEDERAL ADOPTION OF STATE REGULATIONS IN AREAS BEYOND STATE TERRITORIAL WATERS AND IS INCLUDED IN THE LANGUAGE OF H.R. 4084 IN LIGHT OF POSSIBLE QUESTIONS REGARDING THE EXTRA-TERRITORIAL APPLICATION OF STATE LAW. HOWEVER, THE SECRETARY SHALL ADOPT THE STATE REGULATIONS ONLY TO THE EXTENT THAT THEY ARE CONSISTENT WITH THE SECRETARY'S RESPONSIBILITIES UNDER SECTION 101(A). FOR EXAMPLE, IT IS EXPECTED THAT STATE REGULATIONS RELATING TO THE CALIBER OF A RIFLE WHICH MAY BE USED TO TAKE A MARINE MAMMAL WOULD NOT AFFECT THE SECRETARY'S RESPONSIBILITIES UNDER SECTION 101(A). ON THE OTHER HAND, A STATE REGULATION RESTRICTING THE AREA OR SEASON FOR TAKING MARINE MAMMALS COULD, IF APPLIED IN THE FISHERY CONSERVATION ZONE, SERIOUSLY IMPACT THE ABILITY OF THE SECRETARY TO PERMIT COMMERCIAL FISHERMEN AND OTHER PARTIES TO TAKE MARINE MAMMALS WITHIN THAT ZONE. SUCH REGULATIONS WOULD HAVE TO BE CAREFULLY EVALUATED TO DETERMINE IF THEY SHOULD BE ADOPTED. ANY REGULATION ISSUED BY THE SECRETARY PURSUANT TO THIS SECTION SHALL BE DONE UNDER 5 U.S.C. 553 AND ANY SUCH REGULATIONS NEED NOT COMPLY WITH THE REGULATORY FLEXIBILITY ACT, THE PAPERWORK REDUCTION ACT, EXECUTIVE ORDER NO. 12291, AND THE THIRTY-DAY NOTICE REQUIREMENT OF 5 U.S.C. 553(D).

SECTION 109(E) ESTABLISHES A PROCEDURE UNDER WHICH THE SECRETARY CAN REVOKE ANY MANAGEMENT AUTHORITY RETURNED TO A STATE UNDER SECTION 109(B). THE SECRETARY IS DIRECTED TO REVOKE ANY SUCH AUTHORITY IF HE FINDS THAT THE STATE PROGRAM FOR THE CONSERVATION AND MANAGEMENT OF A SPECIES IS NOT BEING IMPLEMENTED, OR IS BEING IMPLEMENTED IN A MANNER INCONSISTENT WITH THE PROVISIONS OF SECTION 109 OR THE PROVISIONS OF THE PROGRAM. THE SECRETARY MAY NOT REVOKE ANY MANAGEMENT TRANSFER UNLESS HE FIRST PROVIDES A WRITTEN NOTICE OF HIS INTENT TO REVOKE TOGETHER WITH A STATEMENT INDICATING HIS REASONS THEREFOR AND UNLESS, DURING THE NINETY-DAY PERIOD FOLLOWING THAT NOTICE OF INTENT, THE SECRETARY PROVIDES OPPORTUNITY FOR CONSULTATION WITH THE STATE AND THE STATE DOES NOT IMPLEMENT THE NECESSARY REMEDIAL MEASURES. WHEN A REVOCATION BY THE SECRETARY BECOMES FINAL, OR IF A STATE VOLUNTARILY RETURNS MANAGEMENT AUTHORITY, THE SECRETARY SHALL REGULATE THE TAKING OF A SPECIES WITHIN THE STATE IN ACCORDANCE WITH THIS ACT AND, IN THE CASE OF ALASKAN NATIVES, PURSUANT TO SECTIONS 101(B) AND 109(I). IN SUCH A SITUATION, THE FEDERAL MORATORIUM AS DESCRIBED IN SECTION 101(A) SHALL BECOME EFFECTIVE UNTIL WAIVED.

ONE OF THE BASES FOR THE SECRETARY TO REVOKE STATE MANAGEMENT AUTHORITY IS THE FAILURE OF THE STATE TO COMPLY WITH THAT PART OF ITS PROGRAM REQUIRING THAT THE STATE HAVE A PROCEDURE FOR EVALUATING NEW DATA AND EVIDENCE RELATING TO THE OPTIMUM SUSTAINABLE POPULATION OF THE SPECIES AND THE MAXIMUM TAKE THAT WOULD MAINTAIN THE SPECIES AT THAT LEVEL AND, IF REQUIRED ON THE BASIS OF THAT EVALUATION, FOR AMENDING THESE DETERMINATIONS. A STATE MAY NOT BE FOUND IN COMPLIANCE WITH ITS PROGRAM IF IT SIMPLY HAS PROCEDURES FOR ACQUIRING DATA AND EVALUATING THAT DATA. THE STATE HAS AN AFFIRMATIVE BURDEN TO ALTER ITS DETERMINATIONS PURSUANT TO THE PROCESS DESCRIBED IN SECTION 109(C) IF THE NEW DATA AND OTHER EVIDENCE INDICATES A NEED TO DO SO. FAILURE TO DO SO CONSTITUTES A BASIS FOR REVOCATION OF MANAGEMENT AUTHORITY BY THE SECRETARY. THE COMMITTEE CAREFULLY CONSIDERED THE QUESTION OF WHETHER IT WAS NECESSARY TO INCLUDE IN THE BILL A PROVISION EXPRESSLY AUTHORIZING JUDICIAL REVIEW OF ACTION BY THE SECRETARY UNDER SECTION 109(B) APPROVING OR DISAPPROVING A PROPOSED STATE MANAGEMENT PROGRAM OR REVOKING OR REFUSING TO REVOKE SUCH APPROVAL PURSUANT TO SECTION 109(E). THE COMMITTEE CONCLUDED THAT IT WAS UNNECESSARY TO DO SO, ALTHOUGH THE COMMITTEE DOES NOT INTEND TO PRECLUDE JUDICIAL REVIEW AT THE REQUEST OF INTERESTED PARTIES. IF THE SECRETARY'S ACTION OR INACTION IS UNLAWFUL UNDER THE APPLICABLE STANDARDS OF REVIEW PRESCRIBED BY THE ADMINISTRATIVE PROCEDURES ACT, THEN THE AFFECTED STATE OR OTHER INTERESTED PARTY WILL BE ABLE TO SEEK APPROPRIATE RELIEF. JURISDICTION AND VENUE OVER ANY SUCH ACTION WOULD BE GOVERNED BY STATUTES OF GENERAL APPLICABILITY CODIFIED IN TITLE 28 OF THE UNITED STATES CODE.

SECTION 4(A) FURTHER AMENDS SECTION 109 BY ADDING A NEW SUBSECTION (F) WHICH PROVIDES THAT THE SECRETARY MAY NOT TRANSFER MANAGEMENT AUTHORITY TO THE STATE OF ALASKA FOR ANY SPECIES OF MARINE MAMMAL UNLESS THE STATE HAS ADOPTED AND WILL IMPLEMENT A STATUTE AND REGULATIONS THAT ENSURE THE TAKING OF SUCH SPECIES FOR SUBSISTENCE USES IN ACCOMPLISHED IN A NON-WASTEFUL MANNER, WILL BE THE PRIORITY CONSUMPTIVE USE OF THE SPECIES, AND IF SUBSISTENCE TAKING MUST BE RESTRICTED, THAT SUCH RESTRICTION WILL BE BASED ON: (1) THE CUSTOMARY AND DIRECT DEPENDENCE UPON THE SPECIES AS THE MAINSTAY OF LIVELIHOOD, (2) LOCAL RESIDENCY, AND (3) THE AVAILABILITY OF ALTERNATIVE RESOURCES. IN ADDITION, THE SECRETARY MUST FIND THAT THE STATE HAS ADOPTED A STATUTE OR REGULATION REQUIRING THAT ANY CONSUMPTIVE USE OF MARINE MAMMAL SPECIES, OTHER THAN FOR SUBSISTENCE USES, WILL BE AUTHORIZED ONLY IF THE APPROPRIATE STATE AGENCY FIRST MAKES FINDINGS BASED ON AN ADMINISTRATIVE RECORD (WHICH NEED NOT BE THE TYPE OF PROCEEDING CARRIED OUT BEFORE AN ADMINISTRATIVE LAW JUDGE), THAT SUCH USE WILL HAVE NO SIGNIFICANT ADVERSE IMPACT UPON SUBSISTENCE USES OF THE SPECIES AND THE REGULATIONS OF SUCH USE WILL, TO THE MAXIMUM EXTENT PRACTICABLE, PROVIDE ECONOMIC OPPORTUNITIES FOR THE RESIDENTS OF RURAL COASTAL VILLAGES OF ALASKA WHO ENGAGE IN SUBSISTENCE USES OF THAT SPECIES. SECTION 109(F)(2) DEFINES THE TERM 'SUBSISTENCE USES' AS THE CUSTOMARY AND TRADITIONAL USES BY RURAL ALASKA RESIDENTS OF MARINE MAMMALS FOR DIRECT PERSONAL OR FAMILY CONSUMPTION AS FOOD, SHELTER, FUEL, CLOTHING, TOOLS OR TRANSPORTATION; FOR THE MAKING AND SELLING OF HANDICRAFT ARTICLES OUT OF NON- EDIBLE BY-PRODUCTS TAKEN FOR PERSONAL OR FAMILY CONSUMPTION; AND FOR BARTER, OR SHARING FOR PERSONAL OR FAMILY CONSUMPTION.

THE COMMITTEE BELIEVES THAT THE ISSUE OF SUBSISTENCE TAKING MUST BE ADDRESSED IN ALASKA'S MANAGEMENT PROGRAM, GIVEN THE IMPORTANCE OF THAT TAKE TO PERSONS DEPENDENT UPON SUBSISTENCE TAKING AND GIVEN THE HISTORY OF COURT CASES SURROUNDING THE AUTHORITY OF THE STATE TO REGULATE SUBSISTENCE TAKING BY ALASKAN NATIVES. IF MANAGEMENT OF A MARINE MAMMAL SPECIES IS RETURNED TO THE STATE OF ALASKA, NATIVE TAKINGS SHOULD BE BLENDED INTO THE OVERALL STATE REGULATORY REGIME. IT SHOULD BE EMPHASIZED THAT H.R. 4084 SUBMITS NATIVE TAKING TO STATE REGULATION ONLY AS PART OF A STATE MANAGEMENT PROGRAM WHICH HAS BEEN APPROVED BY THE SECRETARY AND ONLY FOR SO LONG AS THAT PROGRAM IS IN EFFECT. PRIOR TO IMPLEMENTATION OF THE ALASKA STATE PROGRAM OR SUBSEQUENT TO REVOCATION OF STATE MANAGEMENT AUTHORITY BY THE SECRETARY, NATIVE TAKING OF A SPECIES SHALL BE SUBJECT TO THE PROVISIONS OF SECTIONS 101(B) AND 109(I).

THE COMMITTEE IS COGNIZANT OF THE SIMILARITY OF SECTION 109(F) TO CERTAIN PROVISIONS IN TITLE 8 OF THE ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT (ANILCA). P.L. 96-487. SECTION 109(F)(1)(A), FOR EXAMPLE, IS INTENDED TO ESTABLISH A SUBSISTENCE PRIORITY SIMILAR, BUT NOT IDENTICAL, TO THE SUBSISTENCE PRIORITY ESTABLISHED IN SECTION 804 OF ANILCA. THE COMMITTEE WISHES TO EMPHASIZE THAT THIS SUBSISTENCE PRIORITY IS INTENDED TO OPERATE IN THE SAME MANNER AS THE SUBSISTENCE PRIORITY SET FORTH IN SECTION 804 OF ANILCA. THE PRIORITY REQUIRES THAT ALL SUBSISTENCE USES OF A SPECIES BE SATISFIED BEFORE THE STATE MAY AUTHORIZE ANY NON-SUBSISTENCE TAKING. IT SHOULD BE NOTED, HOWEVER, THAT THE MARINE MAMMAL PROTECTION ACT SUBSISTENCE PRIORITY DIFFERS FROM THE ANILCA PRIORITY IN THAT CUSTOMARY TRADE IS NOT INCLUDED WITHIN THE PURVIEW OF SECTION 109. THE SECTION 109(F)(2) DEFINITION OF SUBSISTENCE USES IS IDENTICAL TO THE DEFINITION OF THE SAME TERM IN SECTION 803 OF ANILCA IN THAT IT DEFINES SUBSISTENCE USES AS THE CUSTOMARY AND TRADITIONAL USES BY RURAL ALASKA RESIDENTS FOR THE PERSONAL AND FAMILY CONSUMPTION PURPOSES SET FORTH IN SECTION 803. THE REMOVAL OF CUSTOMARY TRADE FROM THE SUBSISTENCE USE DEFINITION IS NOT INTENDED TO DIMINISH THE COMMITTEE'S RECOGNITION OF THE IMPORTANCE OF CUSTOMARY TRADE OF MARINE MAMMALS IN MANY RURAL ALASKA VILLAGES.

WITH RESPECT TO THE NON-SUBSISTENCE HARVEST OF MARINE MAMMALS, SECTION 109(F)(1)(B)(I) REQUIRES THE STATE OF ALASKA TO DETERMINE THAT ALL SUBSISTENCE USES WILL BE SATISFIED AND THAT A NON-SUBSISTENCE HARVEST WILL NOT ADVERSELY AFFECT THE SUBSISTENCE HARVEST TO A SIGNIFICANT DEGREE BEFORE THE STATE MAY ADOPT ANY REGULATIONS AUTHORIZING A NON-SUBSISTENCE HARVEST. SECTION 109(F)(1)(B)(II) REQUIRES THAT THE REGULATION OF NON-SUBSISTENCE USES PROVIDE, TO THE MAXIMUM EXTENT PRACTICABLE, ECONOMIC OPPORTUNITIES FOR THE RESIDENTS OF THE RURAL COASTAL VILLAGES OF ALASKA WHO ENGAGE IN SUBSISTENCE USES BECAUSE THE ECONOMIES OF CERTAIN VILLAGES ARE SUBSTANTIALLY DEPENDENT UPON THE HARVEST OF MARINE MAMMALS. IF, FOR EXAMPLE, THE STATE DETERMINES THAT ALL SUBSISTENCE USES OF WALRUS IN A PARTICULAR AREA CAN BE SATISFIED AND STILL ALLOW A NON- SUBSISTENCE HARVEST, THE STATE MUST DETERMINE WHETHER THE RESIDENTS OF THE LOCAL VILLAGES DESIRE AND ARE CAPABLE OF HARVESTING ALL OF THE NON-SUBSISTENCE SURPLUS. IF SO, SECTION 109(F)(1)(B)(II) REQUIRES THAT STATE REGULATIONS STRUCTURE THE NON-SUBSISTENCE HARVEST SO AS TO PROVIDE ECONOMIC OPPORTUNITIES FOR THE RESIDENTS OF RURAL COASTAL VILLAGES WHO ENGAGE IN SUBSISTENCE USES OF THAT SPECIES. THE ECONOMIC OPPORTUNITIES REFERRED TO INCLUDE NOT ONLY THE OPPORTUNITY TO TAKE THE ANIMALS, BUT ALSO THE OPPORTUNITY TO SERVE AS MARINE MAMMAL HUNTING GUIDES. THE STATE MAY NOT AUTHORIZE A GUIDED HUNT FOR ANY MARINE MAMMAL SPECIES UNTIL THE STATE HAS DONE EVERYTHING PRACTICABLE TO LICENSE THE RESIDENTS OF COASTAL VILLAGES OF THE AFFECTED AREA. IF COMPETENT AND KNOWLEDGEABLE LOCAL RESIDENTS ARE AVAILABLE, THEY MUST BE LICENSED.

SECTION 109(G), AS AMENDED BY SECTION 4(A), PROVIDES THAT THE NATIONAL ENVIRONMENTAL POLICY ACT SHALL NOT BE APPLICABLE TO THE TRANSFER OF MANAGEMENT AUTHORITY TO A STATE OR TO THE REVOCATION OR VOLUNTARY RETURN OF SUCH AUTHORITY FROM THE STATE TO THE FEDERAL GOVERNMENT. THE COMMITTEE WISHES TO EMPHASIZE THAT SECTION 109(G) ALSO APPLIES TO THE PROCESS PROVIDED FOR IN SECTION 109(C).

SECTION 109(H) ESSENTIALLY RESTATES EXISTING LAW, EXCEPT THAT, AS REWRITTEN, SUBSECTION (H) CLARIFIES THAT FEDERAL, AS WELL AS STATE OR LOCAL EMPLOYEES, MAY TAKE MARINE MAMMALS IN THE COURSE OF THEIR OFFICIAL DUTIES AND CLARIFIES THAT THE NON-LETHAL REMOVAL OF NUISANCE ANIMALS MAY ALSO BE CARRIED OUT BY FEDERAL, STATE OR LOCAL GOVERNMENT EMPLOYEES. FOR EXAMPLE, THE APPROPRIATE GOVERNMENTAL EMPLOYEES MAY REMOVE HARBOR SEALS TRAPPED IN FISH LADDERS.

SECTION 109(I) AUTHORIZES THE SECRETARY, AFTER PROVIDING NOTICE AND OPPORTUNITY FOR A HEARING IN THE AFFECTED AREA, TO PRESCRIBE REGULATIONS REQUIRING THE MARKING, TAGGING, AND REPORTING OF MARINE MAMMALS TAKEN BY ALASKAN NATIVES PURSUANT TO SECTION 101(B). THIS PROVISION IS DESIGNED TO ENABLE THE SECRETARY TO GATHER SUFFICIENT DATA ON THE TAKING OF MARINE MAMMALS BY ALASKAN NATIVES TO DETERMINE WHAT EFFECT SUCH TAKING IS HAVING ON MARINE MAMMAL POPULATIONS. THE MARKING AND TAGGING OF ANIMALS WILL ALSO PROVIDE THE SECRETARY WITH A MEANS OF MONITORING THE DISPOSITION OF THE NATIVE HARVEST TO ENSURE THAT ANY COMMERCIAL USE OF MARINE MAMMAL PRODUCTS MEETS THE CRITERIA SET FORTH IN SECTION 101(B)(2). IN ADDITION TO THE NORMAL RULEMAKING REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURES ACT, SECTION 109(I) REQUIRES RULEMAKING TO BE PRECEDED BY PUBLIC NOTICE (WHICH IS REASONABLY CALCULATED TO REACH THE RESIDENTS OF ALASKA'S RURAL VILLAGES IN A TIMELY MANNER) AND BY AN OPPORTUNITY FOR A PUBLIC HEARING IN THE AFFECTED AREA. THESE ADDITIONAL PROCEDURAL REQUIREMENTS RECOGNIZE THE UNIQUE LOGISTICAL AND COMMUNICATIONS PROBLEMS IN RURAL ALASKA, AND THE IMPORTANCE OF PROVIDING LOCAL VILLAGE PEOPLE-- MANY OF WHOM ARE UNFAMILIAR WITH NORMAL WRITTEN RULEMAKING PROCEDURES-- WITH AN OPPORTUNITY TO EXPRESS THEIR VIEWS ORALLY ON PROPOSED RULEMAKING WITHIN THEIR OWN COMMUNITIES. IT IS NOT INTENDED THAT THE REQUIREMENT TO PROVIDE NOTIFICATION THROUGH 'APPROPRIATE ELECTRONIC MEDIA' MANDATE THE USE OF EXPENSIVE TELEVISION AND RADIO COMMERCIALS.

SECTION 109(J) REWRITES EXISTING LAW TO AUTHORIZE THE SECRETARY TO MAKE GRANTS TO ASSIST STATES IN DEVELOPING, AS WELL AS IN IMPLEMENTING STATE MANAGEMENT PROGRAMS. CURRENT LAW RESTRICTS ELIGIBILITY FOR THESE GRANTS TO IMPLEMENTING AN APPROVED STATE PROGRAM. IT WAS THE COMMITTEE'S VIEW THAT IT WOULD BE IN THE BEST INTEREST OF THE ACT TO PERMIT STATES TO RECEIVE FUNDS FOR THE DEVELOPMENT OF MANAGEMENT PROGRAMS. GRANTS MADE UNDER THIS SUBSECTION MAY NOT EXCEED 50 PERCENT OF THE COSTS OF DEVELOPING OR IMPLEMENTING STATE PROGRAMS. SECTION 4(B) OF H.R. 4084 PROVIDES THAT NOTHING IN THE AMENDMENTS MADE BY SECTION 4(A) SHALL BE CONSTRUED AS AFFECTING IN ANY MANNER ANY COOPERATIVE AGREEMENT ENTERED INTO BY A STATE UNDER SECTION 6(C) OF THE ENDANGERED SPECIES ACT OF 1973. OF PARTICULAR CONCERN TO THE COMMITTEE WAS THE POSSIBILITY THAT H.R. 4084 WOULD BE INTERPRETED AS INVALIDATING SECTION 6(C) COOPERATIVE AGREEMENTS ENTERED INTO FOR THE CONSERVATION AND MANAGEMENT OF THE ENDANGERED MANATEE IN THE STATE OF FLORIDA. SECTION 4(B) WILL PRECLUDE THIS RESULT. THE COMMITTEE ALSO NOTES THAT SECTION 17 OF THE ENDANGERED SPECIES ACT PROVIDES THAT, IN THE CASE OF CONFLICTS BETWEEN THE ENDANGERED SPECIES ACT AND THE MARINE MAMMALS PROTECTION ACT, THE MORE RESTRICTIVE PROVISION APPLIES. NOTHING IN H.R. 4084 IS INTENDED TO ALTER THAT RESULT.

SECTION 5

SECTION 5 OF H.R. 4084 AMENDS SECTION 110(A) OF THE ACT TO DIRECT THE SECRETARY TO UNDERTAKE A PROGRAM OF, AND PROVIDE FINANCIAL ASSISTANCE FOR, RESEARCH INTO NEW METHODS OF LOCATING AND CATCHING YELLOWFIN TUNA WITHOUT THE INCIDENTAL TAKING OF MARINE MAMMALS. AT PRESENT, SECTION 110(A) AUTHORIZES THE SECRETARY TO MAKE GRANTS TO OTHER AGENCIES OR PERSONS FOR MARINE MAMMAL RESEARCH. AS AMENDED, SECTION 110(A) WOULD DIRECT THE SECRETARY TO CONTINUE THAT FUNCTION AS WELL AS TO UNDERTAKE A PROGRAM OF RESEARCH ON HIS OWN. THE MARINE MAMMAL RESEARCH REQUIRED BY THIS SECTION SPECIFICALLY INCLUDES RESEARCH INTO NEW METHODS OF LOCATING AND CATCHING YELLOWFIN TUNA BY PURSE SEINE VESSELS WITHOUT THE INCIDENTAL TAKE OF MARINE MAMMALS. RESEARCH INVOLVING AGGREGATING DEVICES IS NOT BEING UNDERTAKEN AND THE PURPOSE OF THIS AMENDMENT, AMONG OTHER THINGS, IS TO ENCOURAGE THE CONTINUATION OF THAT RESEARCH. THE TUNA INDUSTRY IS PRESENTLY ENGAGED IN SUCH RESEARCH, AND THE AMENDMENT TO SECTION 110(A) WOULD EXPRESSLY MAKE IT POSSIBLE FOR THE GOVERNMENT TO PARTICIPATE IN, OR SUPPORT, THAT RESEARCH AS WELL AS OTHER PROJECTS TO DISCOVER BETTER TECHNOLOGY TO AVOID CONFLICTS BETWEEN MARINE MAMMALS AND THE FISHING INDUSTRY.

SECTION 6

SECTION 6 OF H.R. 4084 MAKES TECHNICAL AMENDMENTS TO TITLE II OF THE ACT WHICH ESTABLISHES, AND SPECIFIES THE FUNCTIONS OF, THE MARINE MAMMAL COMMISSION. SPECIFICALLY, SECTION 6 REPEALS THE REQUIREMENT THAT THE COMMISSION SUBMIT A COPY OF ANY REPORT OR RECOMMENDATION TO THE SECRETARY BEFORE PUBLICATION AND CLARIFIES THAT THE COMMISSION, IN CARRYING ON ITS RESPONSIBILITIES UNDER THE ACT MAY MAKE GRANTS TO PERSONS.

SECTION 7

SECTION 7 OF H.R. 4084 AMENDS THE ACT TO AUTHORIZE $8,000,000 FOR FISCAL YEAR 1983 AND $8,800,000 FOR FISCAL YEAR 1984 FOR THE DEPARTMENT OF COMMERCE. SECTION 7 FURTHER AMENDS THE ACT TO AUTHORIZE, FOR THE DEPARTMENT OF THE INTERIOR, $1,760,000 FOR FISCAL YEAR 1983 AND $2,000,000 FOR FISCAL YEAR 1984. FINALLY, SECTION 7 AUTHORIZES THE APPROPRIATION OF $1,000,000 IN FISCAL YEAR 1983 AND $1,100,000 IN FISCAL YEAR 1984 FOR THE MARINE MAMMAL COMMISSION TO CARRY OUT ITS RESPONSIBILITIES UNDER THE ACT.

THE COMMITTEE DECIDED TO ELIMINATE THE DIVISION OF AUTHORIZATIONS OF APPROPRIATIONS FOR RESEARCH AND AUTHORIZATIONS FOR OTHER PURPOSES. FOR BUREAUCRATIC REASONS PECULIAR TO THEIR OWN INSTITUTIONS, THE DEPARTMENTS OF COMMERCE AND THE INTERIOR INTERPRETED THESE PROVISIONS DIFFERENTLY. THE COMMITTEE INTENDS THAT THE AGENCIES CONTINUE TO CARRY ON ACTIVE RESEARCH PROGRAMS AT APPROXIMATELY THE SAME LEVEL AS THEIR CURRENT PROGRAMS. THE COMMITTEE ALSO NOTES THAT RETURN OF MANAGEMENT OF A SPECIES OF MARINE MAMMALS TO A STATE SHOULD NOT PRECLUDE FEDERAL RESEARCH ON THAT SPECIES. ALMOST ALL MARINE MAMMALS SPEND SOME PORTIONS OF THEIR LIFE CYCLE IN FEDERAL WATERS. THEIR ROLE IN THE MARINE ECOSYSTEM AND THEIR AESTHETIC AND ECONOMIC VALUES ARE FACTORS WHICH MAKE THEM APPROPRIATE SUBJECTS FOR RESEARCH ON THE FEDERAL LEVEL. THE COMMITTEE ALSO NOTES THAT, BECAUSE THE FEDERAL GOVERNMENT MAY BE CALLED UPON TO RESUME MANAGEMENT AT ANY TIME, FEDERAL RESEARCH, IN COOPERATION WITH STATE AGENCIES, SHOULD CONTINUE.

COST OF THE LEGISLATION

IN THE EVENT THAT THIS LEGISLATION IS ENACTED INTO LAW, THE COMMITTEE ESTIMATES THE COST TO THE FEDERAL GOVERNMENT TO BE NOT IN EXCESS OF $10,760,000 IN FISCAL YEAR 1983 AND $11,900,000 IN FISCAL YEAR 1984.

INFLATIONARY IMPACT STATEMENT

PURSUANT TO CLAUSE 2(1)(4) OF RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES, THE COMMITTEE ESTIMATES THAT THE ENACTMENT OF H.R. 4084 WOULD HAVE NO SIGNIFICANT INFLATIONARY IMPACT ON THE PRICES AND COST IN THE NATIONAL ECONOMY.

COMPLIANCE WITH CLAUSE 2(1)(3) OF RULE XI

WITH RESPECT TO THE REQUIREMENTS OF CLAUSE 2(1)(3) OF RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES:

(A) A DAY OF HEARING WAS HELD ON THE LEGISLATION ON JULY 13, 1981, BY THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRONMENT. OVERSIGHT HEARINGS ARE PLANNED IN THE NEXT CONGRESS.

(B) THE REQUIREMENTS OF SECTION 308(A) OF THE CONGRESSIONAL BUDGET ACT OF 1974 ARE NOT APPLICABLE TO THIS LEGISLATION.

(C) THE COMMITTEE ON GOVERNMENT OPERATIONS HAS SENT NO REPORT TO THE COMMITTEE ON MERCHANT MARINE AND FISHERIES PURSUANT TO CLAUSE 2(B)(2) OF RULE X.

(D) A LETTER WAS RECEIVED FROM THE DIRECTOR OF THE CONGRESSIONAL BUDGET OFFICE, PURSUANT TO SECTION 403 OF THE CONGRESSIONAL BUDGET ACT OF 1974 IN REFERENCE TO H.R. 4084 AND FOLLOWS HEREWITH:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, WASHINGTON, D.C., SEPTEMBER 10, 1981. HON. WALTER B. JONES, CHAIRMAN, COMMITTEE ON MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES, LONGWORTH HOUSE OFFICE BUILDING, WASHINGTON, D.C.

DEAR MR. CHAIRMAN:

PURSUANT TO SECTION 403 OF THE CONGRESSIONAL BUDGET ACT OF 1974, THE CONGRESSIONAL BUDGET OFFICE HAS PREPARED THE ATTACHED COST ESTIMATE FOR H.R. 4084, A BILL TO IMPROVE THE OPERATION OF THE MARINE MAMMAL PROTECTION ACT OF 1972, AND FOR OTHER PURPOSES. SHOULD THE COMMITTEE SO DESIRE, WE WOULD BE PLEASED TO PROVIDE FURTHER DETAILS ON THIS ESTIMATE.

SINCERELY, ALICE M. RIVLIN, DIRECTOR.

CONGRESSIONAL BUDGET OFFICE-- COST ESTIMATE

1. BILL NUMBER: H.R. 4084.

2. BILL TITLE: A BILL TO IMPROVE THE OPERATION OF THE MARINE MAMMAL PROTECTION ACT OF 1972, AND FOR OTHER PURPOSES.

3. BILL STATUS: AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, JULY 31, 1981.

4. BILL PURPOSE: THIS BILL CONTAINS NUMEROUS TECHNICAL AND OTHER AMENDMENTS TO THE MARINE MAMMAL PROTECTION ACT OF 1972 (MMPA) TO IMPROVE THE ADMINISTRATION OF THAT ACT. THE BILL PROVIDES TOTAL AUTHORIZATIONS OF $10.8 MILLION IN 1983 AND $11.9 MILLION IN 1984 TO THE DEPARTMENTS OF COMMERCE AND THE INTERIOR AND TO THE MARINE MAMMAL COMMISSION FOR CARRYING OUT THE PROVISIONS OF THE MMPA. THE MARINE MAMMAL COMMISSION PROVIDES OVERVIEW AND REVIEW FUNCTIONS AND MAKES RECOMMENDATIONS TO THE SECRETARIES OF COMMERCE, INTERIOR, AND STATE WITH REGARD TO MARINE MAMMAL CONSERVATION. THE DEPARTMENTS OF COMMERCE AND INTERIOR CONDUCT RESEARCH, PROVIDE GRANTS TO STATES, INSTITUTIONS, AND INDIVIDUALS, PRESCRIBE REGULATIONS, AND ISSUE PERMITS AUTHORIZING THE TAKING OR IMPORTING OF MARINE MAMMALS.

5. COST ESTIMATE:TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE THE COSTS OF THIS BILL FALL WITHIN BUDGET SUBFUNCTION 306.

6. BASIS OF ESTIMATE: THE AUTHORIZATION LEVELS ARE THOSE STATED IN THE BILL. IT IS ASSUMED THAT THE FULL AMOUNTS AUTHORIZED WILL BE APPROPRIATED PRIOR TO THE BEGINNING OF EACH FISCAL YEAR. OUTLAY ESTIMATES ARE BASED ON INFORMATION PROVIDED BY THE DEPARTMENT OF COMMERCE AND HISTORICAL SPENDING PATTERNS.

7. ESTIMATE COMPARISON: NONE.

8. PREVIOUS CBO ESTIMATE: NONE.

9. ESTIMATE PREPARED BY: ANNE E. HOFFMAN.

10. ESTIMATE APPROVED BY:

C. G. NUCKOLS (FOR JAMES L. BLUM, ASSISTANT DIRECTOR FOR BUDGET ANALYSIS).

AGENCY COMMENTS

THE COMMITTEE REQUESTED, BUT DID NOT RECEIVE, ANY OFFICIAL STATEMENT OF AGENCY POSITION ON THE LEGISLATION. REPRESENTATIVES OF THE DEPARTMENTS OF COMMERCE, INTERIOR AND THE MARINE MAMMAL COMMISSION WERE GENERALLY SUPPORTIVE OF THE GOALS OF THE LEGISLATION AT HEARINGS HELD BEFORE THE COMMITTEE.