IB
Union Calendar No. 112
109th CONGRESS
1st Session
H. R. 2130
[Report No. 109–180]
IN THE HOUSE OF REPRESENTATIVES
May 5, 2005
Mr. Gilchrest introduced the following bill; which was referred to the Committee on Resources
July 21, 2005
Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
A BILL
To amend the Marine Mammal Protection Act of 1972 to authorize research programs to better understand and protect marine mammals, and for other purposes.
Short title
This Act may be cited as the Marine Mammal Protection Act Amendments of 2005
.
Amendment references
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to such section or other provision of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.).
Technical corrections
Committee references
The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) is amended by striking Committee on Merchant Marine and Fisheries
each place it appears and inserting Committee on Resources
.
Obsolete reference to section
Section 118(c)(3)(A)(i) (16 U.S.C. 1387(c)(3)(A)(i)) is amended by striking , except that
and all that follows through is valid
.
Limited authority to export marine mammal products
In general
Section 101(a)(6) (16 U.S.C. 1371(a)(6)) is amended by redesignating subparagraph (B) as subparagraph (C), and by inserting after subparagraph (A) the following:
A marine mammal product may be exported from the United States if the product—
is legally possessed, and exported by, a citizen of the United States for noncommercial purposes in conjunction with travel outside the United States and the product is imported into the United States by the same person upon the termination of travel;
is legally possessed, and exported by, a person that is not a citizen of the United States for noncommercial purposes;
is legally possessed and exported as part of a cultural exchange, by an Indian, Aleut, or Eskimo residing in Alaska; or
is owned by a Native inhabitant of Russia, Canada, or Greenland and is exported for noncommercial purposes—
in conjunction with, and upon the completion of, travel within the United States; or
as part of a cultural exchange with an Indian, Aleut, or Eskimo residing in Alaska.
.
Conforming amendment
Section 101(a)(6)(A)(i) (16 U.S.C. 1371(a)(6)(A)(i)) is amended by inserting for noncommercial purposes
after United States
the first place it appears.
Captive release prohibition
Section 102(a) (16 U.S.C. 1372(a)) is amended—
in paragraph (4) by striking subsection 104(c); and
and inserting section 104(c);
;
in paragraph (5) by striking the period and inserting ; and
; and
by adding at the end the following:
for any person that is subject to the jurisdiction of the United States to release any captive marine mammal unless specifically authorized to do so under section 104(c)(3)(A), 104(c)(4)(A), or 109(h), except that this paragraph shall not apply to the temporary release of any marine mammal that is—
maintained in captivity under section 7524 of title 10, United States Code (including any progeny of a marine mammal maintained under that section); or
the progeny of a marine mammal excluded from coverage under this Act by section 102(e).
.
Annual report requirement
Section 103 (16 U.S.C. 1373(f)) is amended—
in subsection (f) in the first sentence, by inserting and notwithstanding Public Law 104–66,
after thereafter
; and
by adding at the end the following:
The head of each Federal agency that conducts and provides funds for research on marine mammals shall report annually to the Committee on Resources of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate on funding provided and research conducted regarding marine mammals during the preceding year.
.
Permit clarifications
Clarifications
Section 104 (16 U.S.C. 1374) is amended as follows:
Subsection (c)(7) is amended by inserting notwithstanding any other provision of law
after requesting the permit
.
Subsection (c)(9) is amended to read as follows:
No marine mammal may be exported—
for the purpose of public display, unless the Secretary of Agriculture evaluates and verifies, and thereafter notifies the Secretary, that the receiving facility meets standards that are comparable to the requirements that a person must meet to receive a permit under this subsection for that purpose; or
for the purpose of scientific research or enhancing the survival or recovery of a species or stock, unless the receiving facility meets standards that are comparable to the requirements that a person must meet to receive a permit under this subsection for that purpose.
The Secretary may not require or request, through comity or any other means, that any marine mammal or its progeny remain subject to the jurisdiction of the United States when located in waters or on lands that are subject to the jurisdiction of another country.
.
Subsection (c)(10) is amended—
in the first sentence by inserting held within the lands and waters of the United States
after marine mammals
each place it appears;
by inserting after the first sentence the following: The Secretary shall update the inventory on an annual basis.
; and
in subparagraph (D) by inserting ownership, or other
after date of
.
Review and report regarding inventory
Review
The Secretaries of Commerce and the Interior shall, by not later than 12 months after date of the enactment of this Act, jointly conduct a review of the inventory maintained under section 104(c)(10) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1374(c)(10)), the use of the information in the inventory, and the costs, benefits, and issues associated with the development of an online inventory.
Consultation
In conducting the review, the Secretary shall consult and solicit input from persons who are required to provide information for the inventory.
Report
The Secretary shall submit a report to Committee on Resources of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate on the findings of the review under this subsection. The report shall include the following:
Recommendations on whether the inventory should be maintained by the Secretary or by another person under contract.
How the Secretary would oversee maintenance of the inventory carried out under contract.
How public access and access by Federal agencies to the inventory can be maintained if the inventory is maintained under contract.
How the Secretary can minimize duplication on the information the Secretary receives from public display facilities and reduce the paper work burden on those facilities.
An estimate of the cost of maintaining the inventory.
A description of how the Secretary will ensure the secure maintenance of the data in the inventory.
An analysis of the potential that online availability of the information in the inventory could adversely affect the safety of the animals.
Limitation on notification requirements
Section 104(c) (16 U.S.C. 1374(c)) is amended in paragraph (2)(E) in the first sentence, and in paragraph (8)(B)(II), by inserting before the period at the end the following: , except that if the transport is for purposes of public display and the transfer is between facilities where the ownership and care of the marine mammal will be under the same license or registration issued under the Animal Welfare Act (7 U.S.C. 2131 et seq.) then only a notice of transport is required
.
Fines and penalties
Fines and penalties, generally
Section 105 (16 U.S.C. 1375) is amended—
in subsection (a)(1) by striking $10,000
and inserting $20,000
; and
in subsection (b) by striking $20,000
and inserting $30,000
.
Vessel penalty
Section 106(b) (16 U.S.C. 1376(b)) is amended by striking $25,000
and inserting $35,000
.
Marine mammal research grants
Section 110 (16 U.S.C. 1380) is amended—
by amending subsection (a) to read as follows:
Authorization of assistance; annual report
Authorization of assistance
The Secretary may make grants, or provide financial assistance in such other form as the Secretary considers appropriate, to any Federal or State agency, public or private institution, or other person for the purpose of assisting such agency, institution, or person to undertake research in subjects that are relevant to the protection and conservation of marine mammals, and the ecosystems upon which they depend, including, but not limited to, the Bering/Chukchi Sea ecosystem and the California coastal marine ecosystem.
Inclusion of information in reports
The Secretary shall include a description of the annual results of research carried out with assistance under this section in the report required under section 103(f).
Contributions
For purposes of carrying out this section, the Secretary may accept, solicit, receive, hold, administer, and use gifts, devises, and bequests.
; and
by striking subsections (c) and (d) and inserting the following:
Authorization of Appropriations
To carry out this section there is authorized to be appropriated to the Secretary $1,500,000 for each of fiscal years 2006 through 2010.
.
Fisheries gear development
Section 111 (16 U.S.C. 1381) is amended as follows:
Subsection (a) is amended to read as follows:
Research and development program
In general
The Secretary of Commerce (in this section referred to as the Secretary
) shall—
carry out a program of research and development for the purpose of devising improved fishing methods and gear so as to reduce to the maximum extent practicable the incidental taking of marine mammals in connection with fishing operations; and
make every practicable effort to develop, evaluate, and make available to owners and operators of fishing vessels such gear and fishing method improvements as quickly as possible.
Coordination with other countries
The Secretary may coordinate with other countries to foster gear technology transfer initiatives to reduce to the maximum extent practicable the incidental mortality and serious injury of marine mammals throughout the full extent of their range.
.
By adding at the end the following:
Gear research mini-grant program
In general
Subject to the availability of appropriations, the Secretary may establish a grant program to provide financial assistance for developing, manufacturing, testing, or designing new types of fishing gear designed to reduce to the maximum extent practicable the incidental taking (including incidental mortality and serious injury) of marine mammals.
Grant amount and purposes
The amount of a grant under this subsection may not exceed $20,000.
Grant applications
To receive a grant under this section, an applicant must submit an application in such form and manner as the Secretary may prescribe.
Consultation regarding criteria
The Secretary shall consult with the Secretary of the Interior and the Marine Mammal Commission regarding the development of criteria for the awarding of grants under this subsection.
Administrative costs
Of amounts available each fiscal year to carry out this subsection, the Secretary may expend not more than $40,000 to pay the administrative expenses necessary to carry out this subsection.
Contributions
For purposes of carrying out this section, the Secretary may accept, solicit, receive, hold, administer, and use gifts, devises, and bequests.
Authorization of Appropriations
To carry out this section there is authorized to be appropriated to the Secretary $1,500,000 for each of fiscal years 2006 through 2010.
.
Tropical Treaty conforming amendment
Subsection (c) of the Dolphin Protection Consumer Information Act (16 U.S.C. 1385) is amended in paragraph (2) by striking 160 degrees west longitude
and inserting 150 degrees west longitude
.
Take reduction plans
In general
Section 118 (16 U.S.C. 1387) is amended as follows:
In subsection (a) by striking commercial
each place it appears in paragraphs (1) and (5).
In subsection (c)(1) by striking so much as precedes subparagraph (B) and inserting the following:
Registration and authorization
The Secretary shall, within 90 days after the date of enactment of the Marine Mammal Protection Act Amendments of 2005—
publish in the Federal Register for public comment, for a period of not less than 90 days, any necessary changes to the Secretary’s list of fisheries published under section 114(b)(1) in the Federal Register on August 24, 1994 (along with an explanation of such changes and a statement describing the marine mammal stocks interacting with, and the approximate number of vessels or persons actively involved in, each such fishery), with respect to—
commercial and recreational fisheries that have frequent incidental mortality and serious injury of marine mammals;
commercial and recreational fisheries that have occasional incidental mortality and serious injury of marine mammals; or
commercial fisheries that have a remote likelihood of or no known incidental mortality or serious injury of marine mammals;
.
In subsection (c)(1) in subparagraphs (B) and (C) by striking commercial
.
In subsection (c)(2)(A) by striking commercial
.
In subsection (c)(3)(A) in the matter preceding clause (i) by striking a commercial fishery
and inserting that fishery
.
In subsection (c)(3)(E) by inserting commercial
after any
.
In subsection (c)(5)(B) by striking commercial
.
In subsection (d)(1) in the matter preceding subparagraph (A) by striking commercial fishing operations
and inserting fishing operations in a fishery listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (d)(3) in the matter preceding subparagraph (A) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (d)(4) as follows:
In the matter preceding subparagraph (A) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subparagraph (A) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subparagraph (B) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subparagraph (C) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (d)(5) by striking commercial fishing operations
and inserting fishing operations in fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (e) in the matter preceding paragraph (1)—
by striking commercial
each place it appears; and
by striking this Act
and inserting this section
.
In subsection (f) by striking so much as precedes paragraph (2) and inserting the following:
Take reduction plans
The Secretary shall develop and implement a take reduction plan designed to assist in the recovery or prevent the depletion of each strategic stock which interacts with a fishery listed under subsection (c)(1)(A)(i) or (ii), unless the Secretary determines, after notice and opportunity for public comment, that the level of fishery related mortality and serious injury is having a negligible impact on that stock. The Secretary may develop and implement a take reduction plan for any other marine mammal stocks which interact with a fishery listed under subsection (c)(1)(A)(i) which the Secretary determines, after notice and opportunity for public comment, has a high level of mortality and serious injury across a number of such marine mammal stocks.
.
In subsection (f)(2)—
by striking 6 months
and inserting 9 months
; and
by striking commercial fishing operations
each place it appears and inserting fishing operations in fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (f)(3) by striking commercial
.
In subsection (f)(4)(B) by striking commercial fishing operations
and inserting fishing operations in fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (f)(5)—
in subparagraph (A) by striking 6 months
and inserting 9 months
; and
in subparagraphs (A) and (B) by striking commercial
each place it appears.
In subsection (f)(6)(A)—
by striking (not later than 30 days)
; and
in clause (ii) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (f)(6)(C) in the second sentence, by inserting before , and others
the following: , where appropriate a representative of the office of General Counsel of the National Oceanic and Atmospheric Administration, a representative of the National Marine Fisheries Service having responsibilities related to fisheries science, a representative of the National Marine Fisheries Service having responsibilities related to law enforcement, and a representative of the appropriate National Marine Fisheries Service Regional Administrator
.
In subsection (f)(7)—
in subparagraph (A)(i) by striking 6 months
and inserting 9 months
;
in subparagraph (B)(i)—
by striking not later than 60 days
and inserting not later than 120 days
; and
by adding at the end the following: Before publishing any plan that is different than the draft plan proposed by a take reduction team, the Secretary shall reconvene the team and explain to the team the differences between the published plan and the draft plan proposed by the team.
; and
in subparagraph (B)(ii)—
by striking 6 months
and inserting 9 months
; and
by striking not later than 8 months
and inserting not later than 11 months
.
In subsection (f)(7)(C) by striking Not later than 60 days
and inserting Not later than 90 days
.
In subsection (f)(7)(D) by striking commercial
.
In subsection (f)(8)—
in subparagraph (C) by striking Not later than 60 days
and inserting Not later than 180 days
; and
by striking commercial
each place it appears.
In subsection (f)(9) as follows:
In subparagraph (A) by striking commercial fisheries or restrict commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii) or restrict such fisheries
.
In subparagraphs (B) and (C) by striking commercial
each place it appears.
In subparagraph (D) by striking commercial fishing operations
and inserting participation in a fishery listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (g)(1) by striking commercial fisheries
and inserting fisheries listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (g)(3)(B) by striking commercial
.
In subsection (g)(4) by striking commercial fishery
and inserting fishery listed under subsection (c)(1)(A)(i) or (ii)
.
In subsection (j) by inserting including observer, research, and education and outreach programs,
after For purposes of carrying out this section,
.
By amending subsection (d)(1)(C) to read as follows:
identify current fishery regulations and changes in fishing methods or technology that may increase or decrease incidental mortality and serious injury.
.
In subsection (f)(2) in the last sentence by inserting conservation benefits of
before State or regional fishery management plans.
.
By amending subsection (f)(4)(A) to read as follows:
a review of the information in the final stock assessment published under section 117(b), any substantial new information, a review of the conservation benefits from current State and regional fishery management regulations;
.
Stock assessments
Section 117(a)(4) is amended—
by striking and
at the end of subparagraph (C);
by inserting and
at the end of subparagraph (D); and
by adding at the end the following:
potential conservation benefits provided by State and regional fishery management regulations;
.
Zero mortality rate goal amendments
Section 118 (16 U.S.C. 1387) is amended in subsections (a)(1) and (b)(1) by striking within 7 years after the date of enactment of this section
each place it appears.
Conforming amendment
Section 101(a)(5)(E) (16 U.S.C. 1371(a)(5)(E)) is amended by inserting or recreational
after commercial
each place it appears.
Pinniped research
Section 120 (16 U.S.C. 1389) is amended by adding at the end the following:
Research on nonlethal removal and control
The Secretary shall conduct research on the nonlethal removal and control of nuisance pinnipeds. The research shall include a review of measures that have been taken to effect such removal and control, the effectiveness of these measures, and the development of new technologies to deter nuisance pinnipeds.
The Secretary shall include, among the individuals that develop the research program under this subsection, representatives of the commercial and recreational fishing industries.
The Secretary is encouraged, where appropriate, to use independent marine mammal research institutions in developing and in conducting the research program.
The Secretary shall, by December 31 of each year, submit an annual report on the results of research under this subsection to the Committee on Resources of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.
Qualified nonlethal control projects
In general
The Secretary may, to the extent amounts are available to carry out this subsection, provide a grant to any eligible applicant to carry out a qualified nonlethal control project in accordance with this subsection.
Applications
The Secretary shall—
publish guidelines for and solicit applications for grants under this subsection not later than 6 months after the date of enactment of this subsection; and
receive, review, evaluate, and approve applications for grants under this subsection.
Eligible applicant
To be an eligible applicant for purposes of paragraph (1), an applicant must—
be a State, local government, or interstate or regional agency; and
have adequate personnel, funding, and authority to carry out and monitor or maintain a nonlethal control of nuisance pinnipeds project.
Qualified control project
To be a qualified control project under this subsection, a project must—
by humane and nonlethal means, remove, deter, and control nuisance pinnipeds in areas where they are a recurrent and persistent threat to public health and safety; and
encourage public notice, education, and outreach on project activities in the affected community.
Grant duration
Each grant under this subsection shall be to provide funding for the Federal share of the cost of a project carried out with the grant for up to 2 fiscal years.
Reporting by grantee
In general
A grantee carrying out a control project with a grant under this subsection shall report to the Secretary at the expiration of the grant.
Report contents
Each report under this subsection shall include specific information on the methods and techniques used to control nuisance pinniped species in the project area, and on the ensuing results.
Cost sharing
Federal share
Except as provided in paragraphs (2) and (3), the Federal share of the cost of a project carried out with a grant under this subsection shall not exceed 75 percent of such cost.
Application of in-kind contributions
The Secretary may apply to the non-Federal share of costs of a control project carried out with a grant under this subsection the fair market value of services or any other form of in-kind contribution to the project made by non-Federal interests that the Secretary determines to be an appropriate contribution equivalent to the monetary amount required for the non-Federal share of the activity.
Derivation of non-federal share
The non-Federal share of the cost of a control project carried out with a grant under this subsection may not be derived from a Federal grant program or other Federal funds.
Authorization of appropriations
There are authorized to be appropriated to the Secretary $1,500,000 for each of fiscal years 2006 through 2010.
Clarification
Nothing in this subsection shall be interpreted as suspending or waiving any requirement under any other provision of this Act.
.
Marine Mammal Commission
Number of employees
Section 206(5) (16 U.S.C. 1406(5)) is amended by striking ; except that no fewer than 11 employees must be employed under paragraph (1) at any time
.
Administration
Section 206 (16 U.S.C. 1406) is amended—
in paragraph (4) by striking (but at rates for individuals not to exceed $100 per diem)
; and
in paragraph (5) by striking Financial
and all that follows through the end of that sentence.
Stranding and entanglement response
Collection and updating of information
Section 402(b)(1)(A) (16 U.S.C. 1421a(b)(1)(A)) is amended by inserting or entangled
after stranded
.
Entanglement response agreements
In general
Section 403 (16 U.S.C. 1421b) is amended—
by amending the section heading to read as follows:
Stranding or entanglement response agreements
; and
in subsection (a) by inserting or entanglement
before the period.
Clerical amendment
The table of contents at the end of the first section is amended by striking the item relating to section 403 and inserting the following:
Sec. 403. Stranding or entanglement response agreements
.
Liability
Section 406(a) (16 U.S.C. 1421e(a)) is amended by inserting or entanglement
after stranding
.
Entanglement defined
In general
Section 410 (16 U.S.C. 1421h) is amended—
by redesignating paragraphs (1) through (6) in order as paragraphs (2) through (7); and
by inserting before paragraph (2) (as so redesignated) the following:
The term entanglement means an event in the wild in which a living or dead marine mammal has gear, rope, line, net, or other material wrapped around or attached to it and is—
on a beach or shore of the United States; or
in waters under the jurisdiction of the United States.
.
Conforming amendment
Section 408(a)(2)(B)(i) (16 U.S.C. 1421f–1(a)(2)(B)(i)) is amended by striking section 410(6)
and inserting section 410(7)
.
John H. Prescott Marine Mammal Rescue Assistance Grant Program
Authorization of appropriations for grant program
Section 408(h) (16 U.S.C. 1421f–1(h)) is amended—
by striking $5,000,000 for each of fiscal years 2001 through 2003
and inserting $7,000,000 for each of fiscal years 2006 through 2010
; and
in paragraph (1) by striking $4,000,000
and inserting $6,000,000
.
Administrative costs and expenses
Section 408 (16 U.S.C. 1421f–1) is amended—
by adding at the end of subsection (a)(1) the following: All funds available to implement this section shall be distributed to eligible stranding network participants for the purposes set forth in this paragraph and paragraph (2), except as provided in subsection (f).
; and
by amending subsection (f) to read as follows:
Administrative costs and expenses
Of the amounts available each fiscal year to carry out this section, the Secretary may expend not more than 5 percent or $80,000, whichever is greater, to pay the administrative costs and administrative expenses to implement the grant program under subsection (a). Any such funds retained by the Secretary for a fiscal year for such costs and expenses that are not used for such costs and expenses before the end of the fiscal year shall be provided as grants under subsection (a).
.
Emergency assistance
Section 408 (16 U.S.C. 1421f–1) is amended—
in subsection (a) by redesignating paragraphs (2) and (3) as paragraph (3) and (4), respectively, and by inserting after paragraph (1) the following:
Subject to the availability of appropriations, the Secretary may also enter into cooperative agreements, contracts, or such other agreements or arrangements as the Secretary considers appropriate to address stranding events requiring emergency assistance.
;
in subsection (d) by inserting (1)
before the first sentence, and by adding at the end the following:
Funding for emergency stranding projects shall not be subject to the funding limit established in paragraph (1).
;
in subsection (e)—
in paragraph (1) by striking The non-Federal
and inserting Except as provided in paragraph (2), the non-Federal
;
by redesignating paragraph (2) as paragraph (3); and
by inserting after paragraph (1) the following:
Emergency assistance
No non-Federal contribution shall be required for funding for a response to an emergency stranding event.
; and
in subsection (g) by redesignating paragraph (2) as paragraph (3) and inserting after paragraph (1) the following:
Emergency assistance
The term emergency assistance means assistance provided for a stranding event that—
is not an unusual mortality event as defined in section 409(6);
leads to an immediate increase in required costs for stranding response, recovery, or rehabilitation in excess of regularly scheduled costs;
may be cyclical or endemic; and
may involve out-of-habitat animals.
.
Contributions
Section 408 (16 U.S.C. 1421f–1) is amended by adding at the end the following:
Contributions
For purposes of carrying out this section, the Secretary may solicit, accept, receive, hold, administer, and use gifts, devises, and bequests.
.
Authorization of appropriations for Marine Mammal Unusual Mortality Event Fund
Section 409(3) (16 U.S.C. 1421g(3)) is amended by striking $500,000 for fiscal year 1993
and inserting $125,000 for each of fiscal years 2006 through 2010
.
Scrimshaw exemption
Any valid certificate of exemption referred to in section 18 of Public Law 103–238 (16 U.S.C. 1539 note) that was valid under that section on April 29, 1999, shall be valid during the 11-year period beginning October 31, 1999.
July 21, 2005
Committed to the Committee of the Whole House on the State of the Union and ordered to be printed