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108th Congress (2003-2004)

House Report 108-464

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MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 2004

29-006

108TH CONGRESS

REPORT

HOUSE OF REPRESENTATIVES

2d Session

108-464

--MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 2004

APRIL 20, 2004- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. POMBO, from the Committee on Resources, submitted the following

R E P O R T

together with

SUPPLEMENTAL VIEWS

[To accompany H.R. 2693]

[Including cost estimate of the Congressional Budget Office]

SECTION 1. SHORT TITLE.

SEC. 2. AMENDMENT REFERENCES.

SEC. 3. TECHNICAL CORRECTIONS.

SEC. 4. LIMITED AUTHORITY TO EXPORT MARINE MAMMAL PRODUCTS.

SEC. 5. MISCELLANEOUS AUTHORIZATIONS OF APPROPRIATIONS.

SEC. 6. TAKE REDUCTION PLANS.

SEC. 7. PINNIPED RESEARCH.

SEC. 8. MARINE MAMMAL COMMISSION.

`SEC. 207. AUTHORIZATION OF APPROPRIATIONS.

SEC. 9. SCRIMSHAW EXEMPTION.

SEC. 10. POLAR BEAR PERMITS.

SEC. 11. CAPTIVE RELEASE PROHIBITION.

SEC. 12. STRANDING AND ENTANGLEMENT RESPONSE.

`SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.'

`Sec. 403. Stranding or entanglement response agreements.'.

SEC. 13. DEFINITION OF HARASSMENT.

SEC. 14. INCIDENTAL TAKINGS OF MARINE MAMMALS.

SEC. 15. TUNA-DOLPHIN PROVISIONS.

SEC. 16. PERMIT CLARIFICATIONS.

SEC. 17. FISHERIES GEAR DEVELOPMENT.

SEC. 18. MARINE MAMMAL RESEARCH GRANTS.

SEC. 19. FINES AND PENALTIES.

PURPOSE OF THE BILL

The purpose of H.R. 2693 is to reauthorize the Marine Mammal Protection Act of 1972, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

In general

The Marine Mammal Protection Act (MMPA) was enacted in 1972 to ensure that marine mammals are maintained at, or in some cases restored to, healthy population levels. The original Act established a moratorium on the `taking' or importing of marine mammals and marine mammal products except for certain activities which are regulated and permitted. The MMPA defines `take' as `to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill any marine mammal.'

Under the MMPA, jurisdiction over marine mammals in the wild is split between two agencies, the U.S. Fish and Wildlife Service (USFWS) (under the Department of the Interior) and the National Marine Fisheries Service (NMFS) (under the National Oceanic and Atmospheric Administration within the Department of Commerce). USFWS has jurisdiction over sea otters, polar bears, manatees, dugongs, and walrus, while NMFS has jurisdiction over all other marine mammals. The Animal and Plant Health Inspection Service (APHIS) (under the Department of Agriculture) has jurisdiction over the care and maintenance of captive animals under the Animal Welfare Act. The MMPA was substantially amended in 1994, and those amendments transferred authority for the care and management of captive marine mammals from NMFS and USFWS to APHIS.

The 1994 amendments also established a new incidental take regime for commercial fisheries and required NMFS to institute marine mammal stock assessments and abundance estimates to provide the necessary scientific basis for a new incidental take regime. A captive marine mammal inventory was also established and is maintained by NMFS. The permit process was eased for scientific research and for educational and commercial photography. The permit process was also eased for the public display community, allowing them to notify the agency 15 days prior to a transfer, export, or sale of a marine mammal instead of applying for additional permits. Furthermore, no additional permits were to be required for the progeny of captive marine mammals. Permits for the importation of legally harvested polar bear trophies from certain regions of Canada were also authorized. A process authorizing cooperative agreements between Alaska natives and the agency of jurisdiction for the management and conservation of marine mammals was also established. The Pinniped-Fishery Interaction Task Forces were authorized to review the interactions of marine mammals with fish populations on the west coast with regard to listed salmon stocks, and for the Gulf of Maine with respect to aquaculture facilities. A prohibition on human activities within 100 yards of a humpback whale in waters surrounding Hawaii was included in the amendments. Finally, an authorization of appropriations was included for the Departments of Commerce and the Interior and the Marine Mammal Commission for fiscal years 1994-1999.

The definition of harassment under the MMPA

The 1994 amendments also included a definition of `harassment.' The 1994 two-part definition of `harassment' is any act of pursuit, torment, or annoyance of marine mammals which: has the potential to injure a marine mammal or marine mammal stock in the wild (this is termed level A harassment); or has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (this is termed Level B harassment).

This definition was included in the MMPA to clarify what activities constitute harassment and to assist the agencies in enforcing actions that may adversely affect marine mammals. However, the definition has not led to better enforcement of the Act. The Secretaries have been unable to prosecute non-permitted activities that have been directed at specific animals due to the two-tiered requirement of the definition. Under his approach, the Secretary concerned has been required to determine first if an action is an act of pursuit, torment, or annoyance. If so, then the relevant Secretary then makes a determination if the action was level A or level B harassment.

President Clinton and then later under President Bush proposed amending the definition of harassment, as proposed in the Administration's draft MMPA reauthorization bill. The Administration bill recommended removing the first tier of the definition--`pursuit, torment, or annoyance'--and modifying the definition to raise the threshold of what is considered harassment away from those activities that cause minor changes in behavior. In addition, a number of scientists recommended changes to the definition of `harassment.'

The National Research Council (NRC) has issued three reports on the effects of sound as harassment of marine mammals: Low Frequency Sound and Marine Mammals: Current Knowledge and Research Needs, 1994; Marine Mammals and Low Frequency Sound: Progress Since 1994, 2000; and Ocean Noise and Marine Mammals, 2003. In its 2000 report, the NRC concluded that regulating activities that cause minor changes in behavior having no adverse impact did not make sense; instead, MMPA regulations must focus on significant disruption of behaviors critical to survival and reproduction. The 2000 report recommended amending level B harassment to reflect these conclusions. The 2003 NRC report expanded further on the changes to level B harassment and recommended that level B harassment should be modified to focus on biologically significant disruption of behaviors critical to survival and reproduction (i.e. adverse impacts), instead of any detectable change in behavior.

The 2000 report also recommended the removal of `small numbers' from the incidental take authorization in section 101 of the MMPA. Under current law, section 101 requires the relevant Secretary to make three findings before issuing an authorization: whether the activity will harass a small number of marine mammals; the specified geographic area in which the activity will occur; and whether the activity will have a negligible impact on the species or stock. The panel stated `if such a change is not made, it is conceivable under the current MMPA language there would be two tests for determining takes by harassment, small numbers first, and if that test were met, negligible impact from that take of small numbers.' The panel went on to

state, `the removal of `small numbers' would prevent the denial of research permits that might insignificantly harass large numbers of animals and would leave the `negligible impact' test intact.'

The `small numbers' finding was included in section 101(a)(5) of the MMPA when it was amended in 1981. The Committee report accompanying these changes to the MMPA stated the intent of this requirement was to minimize the impact an activity might have on marine mammals. The Committee recognized `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 imprecision of the term has led to problems with how the MMPA has been implemented and has resulted in lawsuits against NMFS which resulted in the courts interpreting the language. In Natural Resources Defense Council, et al. v. Donald L. Evans, et al., 1

[Footnote] the court raised concerns with how the Secretary of Commerce defined `harassment' and `small numbers' in the final rule for the Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) sonar permit and the MMPA implementing regulations, respectively. The court stated that the `plantiffs argue that NMFS has re-written the definition of `harassment' from an activity that has the potential to disturb to an activity that actually causes such a disturbance.' The court agreed that the agency used an erroneous definition of `harassment' in the final rule, but stated that `it does not appear that this erroneous definition caused any harm.' The court further stated that NMFS' interpretation of the statutory language `disruption of behavior patterns' as `a significant behavioral change in a biologically important behavior or activity' was within the agency's discretion and granted the NMFS summary judgment on the issue of whether NMFS applied the wrong standard for level B harassment in preparing the regulatory definition.

[Footnote 1: 279 F. Supp. 1129 (N.D. Cal. 2003). See also Natural Resources Defense Council In. v. Donald Evans (N.D. Cal. October 21, 2002) (No. C-02-3805) (order granting preliminary injunction).]

Those regulations also defined `small numbers' as `a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.' The ruling in the NRDC v. Evans case concluded that NMFS improperly collapsed the two standards and eliminated the possibility that the two standards will serve as separate safeguards restricting the extent of the takes. The agency was directed to redefine `small numbers' as a separate standard.

MMPA section 101(a)(5) also requires the relevant Secretary to make a finding on the `specified geographic region' in which an activity is to occur. This requirement was included in the 1981 amendments to the MMPA and also came under review in NRDC v. Evans. When Congress included the `specified geographical region' language in the MMPA in 1981, the Committee report addressed the issue in this manner: `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.'

The judge in NRDC v. Evans ruled against the way NMFS applied the `specified geographic region' requirement in the permit for the Navy's SURTASS LFA sonar. In this permit, NMFS created 15 biomes, with 54 provinces within the biomes, using a schematic developed for plankton by Longhurst (1998). The term `biome' is used by scientists to describe areas on earth with similar climate, plants, and animals. The agency argued that the Longhurst data was the best scientific application available for designating these specified geographic regions. However, the plaintiffs in the case argued that the agency did not include all of the relevant Offshore Biologically Important Areas (OBIAs) within these biomes in the final rule. The public comments to the proposed rule raised the issue of the list of OBIAs being inadequate. The NMFS response to these comments was that `it is unnecessary to expand the list of OBIAs prior to making the required determinations under section 101(a)(5)(A).' In addition, NMFS stated `a delay in the rulemaking process to implement new OBIAs is unwarranted.' However, NMFS would accept petitions for additional OBIAs. The permit at issue in the case required the Navy to inform NMFS as to which biomes would be in use in any one year. The permit also included mitigation measures that were a condition of receiving the permit. The court in NRDC v. Evans struck down this approach. The negotiated settlement of the case ultimately restricted the Navy to one large area of the Pacific ocean in which it could test its SURTASS LFA sonar.

The National Defense Authorization Act for Fiscal Year 2004 (NDAA) included language that created a new definition of harassment for military readiness activities and for research performed by a federal agency or by independent government researchers which benefits military operations. The NDAA struck the `specified geographical region' and `small number' requirements for military readiness activities in section 101(a)(5) of the MMPA. This action maintained the requirement that the relevant Secretary find that the action would have a `negligible impact' on any marine mammals that might be affected by the action. The NDAA also created a national defense exemption under which the Secretary of Defense may exempt certain activities from the MMPA, in consultation with the Secretaries of Commerce and the Interior, for national defense reasons for periods no longer than two years.

MMPA and fisheries interactions

The 1994 amendments also included a new fisheries regime in section 118 of the MMPA. While this new regime reiterated the Act's goal of reducing the incidental lethal take or serious injury of marine mammals, it also authorized interactions between commercial fisheries and marine mammals. The regime created three categories which list fisheries with frequent interactions (category I), occasional interactions (category II), and remote interactions (category III) with marine mammals. It also required commercial fishermen to register and adhere to specific requirements prior to fishing, including: holding a valid permit and authorization; adhering to emergency regulations or take reduction plans; reporting requirements; and carrying observers if requested by the relevant Secretary. The new regime also authorized the creation of take reduction teams, which include representatives from commercial fishing, environmental groups, academics and agency officials, to develop measures to reduce the incidental take of marine mammals in those fisheries that interact with strategic or depleted stocks.

The 1994 amendments created new stock assessment requirements for NMFS to assist in the development of the new fishery regime. NMFS was required to develop stock assessments for each marine mammal in waters under the jurisdiction of the United States. This was recognized by Congress as a substantial task, which is why the Committee report directed the Secretary of Commerce to give a lower priority to those stocks taken only by harassment. The House Committee on Merchant Marine and Fisheries (the predecessor in jurisdiction to the Committee on Resources) understood that the stock assessments were the underpinnings of successful management.

However, due to an increase in litigation burdens, many legislative burdens, and other factors, the Secretary of Commerce has had a difficult time maintaining up-to-date stock assessments for stocks under his jurisdiction. The commercial fishing industry testified that the lack of accurate or up-to-date stock assessments presents potential litigation concerns since fishery restrictions are made based on the available stock assessment data.

When developing the stock assessment, NMFS determines the geographic range, a minimum population estimate, an estimate of the human-caused mortality and serious injury, and a description of the fisheries that interact with the stock. For strategic stocks, the information is supposed to be updated annually; other stocks are updated every three years. Regional scientific review groups were also created in 1994 to advise the Secretary on population estimates, research needs, and potential modifications to fishing gear and practices to reduce interactions.

One of the main goals of the MMPA is to maintain marine mammal populations at their optimum sustainable population (OSP). The potential biological removal level (PBR) for a stock, which is determined in the stock assessment process, meets this goal. PBR is defined in the MMPA as `the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.' PBR is calculated by taking a marine mammal population's minimum population count and multiplying it by 50 percent of the annual net reproduction rate. The resulting number is then reduced by multiplying it by a recovery factor of 0.1 for endangered species, 0.5 for threatened or status uncertain species, and 1.0 for others. This complicated calculation of PBR includes three levels of precaution, which many have argued is overly precautionary.

While PBR takes into account all human-caused mortalities, this mortality limit is used only to restrict commercial fisheries. No matter how many marine mammals are taken from a population by other sources of mortality, the commercial fishing industry faces the restrictions to keep mortality at or below PBR.

In addition to adhering to PBR, the MMPA established a goal for commercial fisheries `to further reduce the incidental mortality and serious injury of marine mammals to an insignificant level approaching a zero mortality and serious injury rate' (ZMRG). During recent hearings on the reauthorization of the MMPA, the Committee heard testimony from the commercial fishing industry that achieving ZMRG is overly burdensome when fishing mortalities at or below PBR already meet the goal of maintaining marine mammal populations at OSP.

Congress enacted the MMPA in 1972, in part, to address the high mortality rate of marine mammals occurring in the yellowfin tuna purse seine fishery in the eastern tropical Pacific Ocean. In response to these high mortality levels, Congress created ZMRG for this fishery. At the time, Congress was very specific in how ZMRG should be applied to the fishery. The goal was not to shut down fisheries, but reduce the incidental mortality and serious injury rate of marine mammals. In this case, once the Secretary of Commerce was satisfied that the tuna fishermen were using the best available technology to assure minimal hazards to marine mammal populations, the goal of ZMRG was met. This standard also allowed the Secretary to take into account the economic and technological practicability of the best available technology.

In the 1980s, Congress reaffirmed the intent of ZMRG. Congress recognized the progress made by the purse seine fishery to reduce its mortality rates and maintained the technology standard for this fishery. The House of Representatives report accompanying the 1982 amendments to the MMPA stated ZMRG `is satisfied . . . by a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable.'

It was not until the 1990s that Congress applied dolphin mortality limits to the yellowfin tuna purse seine fishery. These limits were based on the International Dolphin Conservation Act of 1992 and the International Dolphin Conservation Program Act of 1997. It is important to note that the mortality limits established in the 1992 Act were based on reductions that could be achieved by the gear currently being used in the fishery.

For other fisheries, Congress maintained the zero mortality rate goal as a means to promote new technology to reduce the incidental taking of marine mammals. In the 1994 amendments to the MMPA, Congress created a new fishery regime which authorized limited incidental takes of marine mammals in commercial fisheries and retained the economic and technological practicability finding. In MMPA section 118(f)(2), which guides the take reduction plan process, it specifically states, `the long-term goal of the plan shall be to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology and existing State or regional fishery management plans.'

To implement the 1994 amendments, NMFS published a proposed rule on June 16, 1995, to implement section 118 and included a definition of ZMRG. However, when the final rule was published in August 30, 1995, the provisions relating to the zero mortality rate goal were not included. The agency stated in the rule that it needed more time to determine the appropriate goal for zero mortality rate.

In 2002, NMFS was sued by a number of environmental groups for not complying with the requirements of section 118, and as part of the settlement NMFS was required to define the zero mortality rate goal. On July 9, 2003, NMFS published an advance notice of proposed rulemaking on this issue.

COMMITTEE ACTION

H.R. 2693 was introduced on July 10, 2003, by Congressman Wayne T. Gilchrest (R-MD). The bill was referred to the Committee on Resources, and within the Committee to the Subcommittee on Fisheries Conservation, Wildlife and Oceans. On July 24, 2003, the Subcommittee held a hearing on the bill. On September 25, 2003, the Subcommittee met to mark up the bill. Mr. Gilchrest offered an amendment in the nature of a substitute which modified the definition of harassment, struck `small numbers' and `specified geographic region' from MMPA section 101(a)(5) and created a general authorization for activities that incidentally take marine mammals, clarified the take reduction plan process in MMPA section 118, clarified the export provisions in MMPA section 101, made technical changes to the polar bear trophy permit process in MMPA section 104, and added a new section which clarifies the tuna-dolphin provisions in the MMPA and the Dolphin Protection Consumer Information Act. Congressman Frank Pallone (D-NJ) offered and withdrew an amendment to the amendment in the nature of a substitute to change the definition of harassment. Mr. Pallone also offered an amendment to the amendment in the nature of a substitute to strike section 14 of the bill. This amendment was withdrawn. Congresswoman Madeleine Bordallo (D-GU) offered and withdrew an amendment to the amendment in the nature of a substitute to strike the time extensions made to the take reduction team process. Mr. Pallone offered and withdrew an amendment to the amendment in the nature of a substitute to increase the fines and penalties assessed in the MMPA. The amendment in the nature of a substitute was adopted by voice vote. The bill was then ordered favorably reported to the Full Committee by voice vote.

On November 5, 2003, the Full Resources Committee met to consider the bill. Mr. Gilchrest offered an amendment in the nature of a substitute which increased the authorized appropriations for the Department of Commerce to the Administration's request, reduced the take reduction team time-line extensions from 11 months to 6 months, barred the Secretary of Commerce from retaining funds beyond those necessary for administrating the Prescott Grant Program, amended MMPA section 104 to clarify certain public display permits, and added two new sections authorizing a research program to improve fishing gear and marine mammal research grants. Congressman Jay Inslee (D-WA) offered an amendment to the amendment in the nature of a substitute which would have made research on sound the priority for marine mammal research grants. The amendment was withdrawn. Congressman Don Young (R-AK) offered and withdrew an amendment to allow the Secretaries and Native Alaskan Corporations to develop harvest management plans as part the their cooperative management agreements to conserve marine mammals and provide co-management of subsistence use by Alaska Natives. Mr. Young also offered an amendment to strike any reference to zero mortality rate goal in the MMPA, leaving potential biological removal as the mechanism to restore marine mammal stocks to their optimum sustainable population--the goal of the MMPA. Mr. Young withdrew the amendment. The amendment in the nature of a substitute was adopted by voice vote. The bill as amended was then ordered favorably reported to the House of Representatives by voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

This section cites the bill as the `Marine Mammal Protection Act Amendments of 2004.'

Section 2. Amendment references

This section states that any amendment or repeal of a section shall be made to such section of the Marine Mammal Protection Act of 1972.

Section 3. Technical corrections

This section replaces `Committee on Merchant Marine and Fisheries' with `Committee on Resources' and deletes an obsolete reference in MMPA section 118.

Section 4. Limited authority to export marine mammal products

This section clarifies that any U.S. citizen who legally possesses a marine mammal product may export it in conjunction with travel outside the U.S. These exports shall be for non-commercial purposes and the product has to be imported back into the U.S. at the termination of travel. It also allows Native handicrafts to be exported for noncommercial purposes if owned by a Native of Canada, Greenland or Russia or if possessed by an Alaska Native and exported as a part of a cultural exchange. The import language in section 101(a)(6)(A)(i) of the MMPA is amended to state that imports shall be for non-commercial purposes. The intent of the Committee is to make it explicitly clear that Alaska Natives, Natives from Canada, Greenland and Russia, as well as U.S. citizens that legally possess a marine mammal product can import and export, for noncommercial purposes, legally possessed marine mammal products as part of cultural exchanges or in conjunction with travel outside the U.S.

Section 5. Miscellaneous authorizations of appropriations

This section authorizes appropriations for the Departments of Commerce and the Interior and for cooperative agreements in Alaska. The Department of Commerce authorization of appropriations are at levels recommended by the Administration. Appropriations for section 119 of the MMPA are also authorized.

Section 6. Take reduction plans

This section amends MMPA section 118 to include recreational fisheries in the list of fisheries that could have interactions with marine mammals that are frequent or occasional and result in the incidental mortality and serious injury of marine mammals. NMFS would be

required to include both commercial and recreational fishermen's interactions with marine mammals in assessing whether a particular fishery should be placed in either category I (frequent incidental mortality or serious injury) or category II (occasional incidental mortality and serious injury). All recreational fishermen who participate in a category I or II fishery would be required to obtain the same annual authorizations and file the same reports regarding marine mammal interactions as are now required of commercial fishermen. In such cases, a recreational fishing representative will also be included in the take reduction plan process.

This section does not alter existing law for category III fisheries where there is only a remote likelihood of or no known incidental mortality or serious injury of marine mammals. By not expanding category III to include the millions of recreational fishermen who only fish with rods and reels, the regulatory burden on both the agency and the public is kept to a minimum. However, the Committee strongly supports the inclusion of those recreational fisheries using commercial-type fishing gear, if they are contributing to the mortality or serious injury to marine mammals in a category I or II fishery. These recreational fishermen should be subject to the same regulatory requirements as commercial fishermen when using the same gear and having the same affect on marine mammals.

The timelines in this section are modified to allow the relevant Secretary additional time to meet the requirements of this section. The Secretary will be given six extra months to complete the take reduction plans. The Committee was concerned with groups using missed timelines as the basis for litigation against the Secretary. The Committee believes the extension to the timelines in this section will not reduce protections for marine mammals, but will provide litigation relief for the Secretary allowing staff and funding to be used for conservation and management activities rather than preparing documents for litigation.

This section requires certain Administration personnel to be in attendance at take reduction team (TRT) meetings. They include representatives from the National Oceanic and Atmospheric Administration General Counsel office and the appropriate Regional Administrator's office, a NMFS fisheries scientist, and a NMFS law enforcement officer.

This section also requires the relevant Secretary to reconvene a take reduction team and explain any differences the Secretary makes between the draft plan, which was drafted by the TRT, and the published plan. It is not the intent of the Committee for a TRT to be reconvened for minor changes to a plan, which might include technical or unsubstantial changes like typographical errors. Instead, the Secretary is required to reconvene a TRT when changes are made to the reduction measures required in the plan which were recommended by the TRT. It is the understanding of the Committee that the involvement of additional agency personnel, as mentioned above, early in the process will help reduce the likelihood that inappropriate measures are included in the TRT's recommendations. In addition, the Secretary could schedule the last TRT meeting during the drafting of regulations and the public comment process.

Language is added to this section to clarify that contributions from private sources can be used for observers, research, education and outreach programs.

This section gives the Secretary some flexibility whether to convene a TRT. After notice and public comment, the Secretary may decide not to convene TRTs for those fisheries that are having a negligible impact on the marine mammal stock and are not the major cause in the decline of a marine mammal population. It is the Committee's intent that this flexibility will allow the Secretary to focus staff time and resources on those fisheries that have high interactions with marine mammals.

This section also clarifies that MMPA section 118(c)(3)(E), which applies to category III fisheries, is a requirement for commercial vessels only. Owners of a vessel are not subject to penalties under the MMPA if they report any incidental mortality or injury of marine mammals in the course of the fishery.

A conforming amendment to MMPA section 101(a)(5)(E) has been included to clarify that both commercial and recreational fisheries can incidentally take endangered marine mammals, as long as the taking would have a negligible effect and is in accordance with a take reduction plan.

MMPA section 117(a)(4) is also amended to require that conservation benefits provided by State and regional fishery management regulations be included in the scientific review of marine mammal stocks. Similar changes are made in the take reduction plan process in MMPA section 118 to allow the take reduction teams to review the conservation benefits of State and regional fishery management regulations.

The Committee is concerned that benefits of State and regional management actions may have been overlooked by TRTs in the past and the measures and the benefits these regulations may have had on marine mammal populations have been ignored. The Committee intends that State and regional management measures should be factored into the TRT process. The Committee does not want this process to become burdensome on the TRT; however, every effort should be made to understand what actions have been taken and how commercial fisheries may have changed due to State or regional management measures and if those changes have had a benefit on marine mammal populations. The TRT should work to ensure that measures are developed to protect marine mammals, but it should include an analysis of restrictions already in place from State and regional management actions. In addition, if State and regional management actions have had an adverse impact on marine mammals, NMFS should work with the State or regional body to reduce the impacts on marine mammals of activities governed by those bodies.

The Committee is concerned that NMFS in many cases is using stock assessment data which is older than five years old. The Committee understands that the agency has internal guidance, based on a 1996 GAMMS report, 2

[Footnote] which recommends using data which is no older than five years, and that anything beyond that time frame should be considered outdated and unreliable. The Committee encourages NMFS to use current data when convening a TRT, even if it means conducting a stock assessment in coordination with the development of a take reduction plan to ensure the take reduction plan is based on the most recent and accurate stock assessment data.

[Footnote 2: Guidelines for Assessing Marine Mammal Stocks: The GAMMS Workshop April 3-5, 1996, Seattle, Washington.]

Section 7. Pinniped research

MMPA section 120 is amended to require the relevant Secretary to conduct research on the nonlethal removal and control of nuisance pinnipeds. The Secretary shall include representatives from commercial and recreational fishing industries and where appropriate use independent marine mammal research institutions. The Secretary shall report annually to the House Committee on Resources and the Senate Committee on Commerce, Science and Transportation.

Section 8. Marine Mammal Commission

This section authorizes appropriations for the Commission. It also deletes the $100 per diem rate cap and clarifies the staffing authorization for the Commission.

Section 9. Scrimshaw exemption

This section continues the permits for those individuals with pre-Endangered Species Act ivory to continue to possess, carve, and sell the ivory until October 31, 2007.

Section 10. Polar bear permits

This section changes the date for eligibility to receive a permit under MMPA section 104 from April 30, 1994, to February 18, 1997. This section also allows the Secretary of the Interior to publish on a semiannual basis information concerning permits authorizing the importation of a polar bear trophy or the denial of the permit.

Section 11. Captive release prohibition

This section amends section 102 of the MMPA to make it illegal to release a captive marine mammal without prior approval from the relevant Secretary. The intent of the Committee is to prohibit the release of captive marine mammals if the release has not been permitted by the Secretary. It is the understanding of the Committee that those activities that are permitted by the Secretary, such as military activities which conduct temporary releases, will still be authorized under the permits authorizing those activities under sections 104 and 109 of the MMPA.

Section 12. Stranding and entanglement response

This section amends Title IV of the MMPA to authorize the relevant Secretary to enter into response agreements for marine mammal entanglements in addition to strandings. The term entanglement is also defined in this section. This section also authorizes appropriations for the grant program and the Unusual Mortality Rate Fund which is authorized in MMPA section 409.

Language is added to prohibit the relevant Secretary from retaining funds under section 408, the Prescott Grant Program, except for administration costs. Any remaining funds are required to be issued in the form of grants to stranding facilities.

Section 13. Definition of harassment

This section amends the definition of harassment in the MMPA. These changes are based on recommendations by several reports issued by the National Research Council.

The Committee has removed the `pursuit, torment, or annoy' clause to clarify the definition to allow for better enforcement and implementation of those activities which may harass a marine mammal. The new definition modifies level A harassment to read: `injures or has the potential to injure a marine mammal or marine mammal stock in the wild.' The definition of level B is modified to pertain to as any act that `disturbs or has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of biologically significant behaviors including, but not limited to, surfacing, migration, breeding, care of young, predator avoidance, defense, or feeding to a point where such behavioral patterns are significantly altered.'

The word `potential' has created ambiguities in the application of the `harassment' definition by the Secretaries. While the Committee maintained `potential,' clarification of the term is warranted. All sea-faring activities have the `potential' to harass marine mammals. The question is whether the activity has caused a significant behavioral change or response in a biologically important behavior or activity. The Committee has modified the definition to allow the Secretaries to move away from managing for minor changes in marine mammal behavior to focus more on activities that cause a marine mammal to have a significant behavioral response in a biologically important activity. The Committee intends for the regulations to focus on significant disruptions of behavior critical to survival and reproduction. For instance, it would not be considered `harassment' if a boat passing by a buoy caused a sea lion to leave the buoy. However, it would be `harassment' if an activity caused a marine mammal to vacate its breeding area. This response would rise to the level of a significant alteration of a biologically important behavior. The Committee believes that the modified definition will allow the respective Secretaries to manage and permit activities that take or incidentally take or harass marine mammals to occur, while incorporating appropriate protections for marine mammals.

The definition of level B harassment also includes language regarding activities `directed toward a specific individual, group, or stock of marine mammals in the wild that is likely to disturb the individual, group, or stock of marine mammals by disrupting behavior, including, but not limited to, surfacing, migration, breeding, care of young, predator avoidance, defense or feeding.' The Committee heard testimony from environmental groups and scientists raising concerns with the `directed toward' language--specifically that it may adversely impact scientific research activities. This language was recommended by the Administration in their draft MMPA bill to improve the enforcement of the MMPA, specifically for those non-permitted activities that harass marine mammals. The Committee agreed with the merit of this language and intends for paragraph (iii) to be applied only to those non-permitted activities. Activities like marine mammal research, which receive permits under section 104, or activities that are eligible for incidental take and harassment authorizations under section 101(a)(5), should not be further restricted by this `directed toward' level B harassment language in paragraph (iii). It is the intent of the Committee that permitted activities, like those permitted under sections 101 or 104, fall under paragraph (ii) of the level B harassment definition.

Section 14. Incidental takings of marine mammals

This section amends MMPA section 101(a)(5) by deleting references to `small numbers.' The Committee believes the removal of the `small numbers' finding is necessary to prevent the denial of research permits that might insignificantly take more than a small number of marine mammals, but would have no long term adverse impact to the population. The Committee intends the `negligible impact' finding to remain the guiding principle for the agencies when issuing permits for activities that incidentally, but not intentionally, take marine mammals. This change does not reduce the applicant's requirement to show that his activities will have a negligible impact on the marine mammal species and populations. Additionally, he will have to demonstrate that his activities will not have an unmitigable adverse impact on the availability of such species or stocks for subsistence uses pursuant to the MMPA. These analyses are the key elements to maintaining the health of marine mammal species and are the premise for take authorizations under the MMPA.

In addition, the Committee believes the change in law will require the Secretary of Commerce to amend the current regulatory definition of `specified activity,' set forth in 50 Code of Federal Regulations 216.103, to ensure consistency with these amendments. `Specific activity' should be redefined to preclude mention of `small numbers.'

H.R. 2693 does not remove the `specified geographic region' finding; however, the Committee believes clarification of this language is necessary to reduce litigation regarding this provision. The 1981 Committee report stated `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.' The Resources Committee notes that the language does not state that the area has to be small, but should be as large as necessary to accomplish the activity. This Committee is not advocating world-wide permits for any one activity. However, there are certain activities, like sonar, which can traverse large expanses of the ocean and are not readily contained in a single `specified geographic region.' The Committee understands the complications these types of activities present, but supports continued permitting of these activities in regions which are as large as necessary to accomplish the activity. In these instances, it is imperative that the permit include mitigation measures to ensure protections for marine mammals throughout the area in which the activity occurs. The Committee supports the development of programmatic Environmental Impact Statements by NMFS to facilitate the permitting of activities authorized in MMPA section 101(a)(5)(A)&(D).

Section 15. Tuna-dolphin provisions

This section makes a technical and clarifying change to the Dolphin Protection Consumer Information Act. The reference to `160 degrees west longitude' is changed to `150 degrees west longitude'. This change is necessary for the U.S. regulations to remain consistent with changes in the international agreement.

Section 16. Permit clarifications

This section amends MMPA section 104(c)(7) to make it clear that the relevant Secretary is required to issue a public display permit to a facility holding a stranded animal that has been determined under the guidelines developed under MMPA section 402(a) to not meet the standards for release. The Committee does not intend that permits be given to those marine mammals that can be legitimately rehabilitated for release in the wild; however, the Committee is very concerned that the Secretary has not been issuing public display permits to facilities caring for stranded animals that are not viable release candidates. The Committee's intent is that facilities shall receive public display permits for animals that do not meet the release requirements. The Committee does not intend for the issuance of these permits to diminish research activities involving these animals and encourages the facilities to continue to work with the Secretaries to allow important research activities to continue on these animals.

The Committee commends the public display community for its role in the conservation and management of marine mammals. Activities sponsored by public display facilities--research, educational programs and presentations, animal husbandry, breeding, and rescue and rehabilitation--are important aspects to the conservation of marine mammals. The rescue and rehabilitation programs run by these facilities are critical to the survival of stranded animals and for many years participating institutions ran these programs using their own funds. In addition, these facilities play an invaluable role for the general public. These public display facilities are the only place for many Americans to view marine mammals and learn about the conservation needs of these animals. The Committee believes the interactions provided at these facilities generate the general public's good will toward marine mammals and develops their support for conservation and management measures for these and many other ocean creatures.

This section amends the export provisions of MMPA section 104 to clarify that the Secretary of Agriculture is the appropriate entity for determining the adequacy of facilities holding captive marine mammals. When the Secretary of Agriculture determines the foreign facility meets the requirements of the Animal Welfare Act and the MMPA, a U.S.-based facility is authorized to export the animal. The Secretary of Agriculture may consult with the Secretaries of Commerce and the Interior when making the MMPA finding for a foreign facility. This section also clarifies that letters of comity are not necessary and that once an animal is transferred to a foreign facility, the animal and its progeny are no longer under the jurisdiction of the United States.

The Committee does not agree with the Administration's interpretation that the MMPA requires comity letters from foreign governments or other foreign entities to NMFS or the FWS prior to marine mammals being exported to foreign facilities. The MMPA applies only in areas under the jurisdiction of the United States unless the Act specifically states otherwise. The Committee believes the Department of Agriculture's process is the only factor to determine whether or not a marine mammal can be exported to a foreign facility. If the facility meets the requirements of the Animal Welfare Act and the MMPA, the marine mammal should be exported.

The inventory provision in subsection (c)(10) is amended to clarify that the inventory is only for marine mammals in facilities under the jurisdiction of the United States. The MMPA still requires the documentation of the initial transfer of an animal to a foreign facility in the inventory. This information will remain in the inventory. However, the foreign facility that receives the marine mammal is not required to report to the U.S. on the location of the animal at its facility or if it transfers the marine mammal to another facility in that country or if the marine mammal is transferred to a facility in another country. The only time the animal will come back into the U.S. inventory is if the marine mammal is imported back into the U.S. In addition, the amendments clarify that the inventory should be updated annually. It is further amended to specify that facilities have ownership of the marine mammals in their care.

The Committee wants to clarify the intent of the 15-day notice reporting requirement established in the 1994 amendments for transfers between facilities. The MMPA currently authorizes the relevant Secretary to issue a permit to a person who meets the requirements of the MMPA for public display. The 15-day notice requirement applies to marine mammals transferred to another facility where care and ownership of the animal changes. The 15-day notice requirement does not apply if the care and ownership of the marine mammal does not change and the animal is moved between facilities owned by the permit holder.

Section 17. Fisheries gear development

This section amends section 111 of the MMPA to authorize the relevant Secretary to carry out a program of research and development for the purpose of devising improved fishing methods and gear to reduce to the maximum extent practicable the incidental taking of marine mammals in connection with fishing operations. It authorizes a mini-grant program, subject to the availability of appropriations, and allows the Secretary to receive donations to carry out the grant program.

Section 18. Marine mammal research grants

MMPA section 110 is amended to delete expired provisions and authorize the relevant Secretary to make grants or other financial assistance to federal or State agencies, public or

private institutions, or other persons to undertake research in subjects relevant to the protection and conservation of marine mammals, and the ecosystem upon which they depend. The Secretary is authorized to receive gifts to carry out this section.

Section 19. Fines and penalties

This section increases the fines in MMPA section 105 from $10,000 to $20,000 for civil penalties and from $20,000 to $30,000 for criminal penalties. It also increases the penalty in MMPA section 106 from $25,000 to $35,000.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee on Resources' oversight findings and recommendations are reflected in the body of this report.

FEDERAL ADVISORY COMMITTEE STATEMENT

The functions of the advisory committee reauthorized in the bill are not currently being nor could they be performed by one or more agencies or by enlarging the mandate of a different, existing advisory committee.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, this bill does not contain any new budget authority, credit authority, or an increase or decrease in tax expenditures. H.R. 2693 would provide new authority to the Secretaries of Commerce and the Interior to collect and spend donations to support research programs on fishing methods and other activities related to the conservation of marine mammals. However, the Congressional Budget Office estimates that these donations and subsequent direct spending `would not exceed $500,000 in any year'. In addition, revenues to the federal government could be increased by the larger civil and criminal penalties authorized in section 19 of the bill. Again, the Congressional Budget Office estimates that any additional revenues would total less than $500,000 annually and this increase in revenue would be fully offset by direct spending from the Crime Victims Fund (where criminal penalties are deposited) or the resource management account of the USFWS (where civil fines are deposited and used for rewards to informers and program costs).

3. General Performance Goals and Objectives. As required by clause 3(c)(4) of rule XIII, the general performance goal or objective of this bill is to reauthorize the Marine Mammal Protection Act of 1972.

4. Congressional Budget Office Cost Estimate. Under clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the Director of the Congressional Budget Office:

U.S. Congress,

Congressional Budget Office,

Washington, DC, January 7, 2004.

Hon. RICHARD W. POMBO,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2693, the Marine Mammal Protection Act Amendments of 2003.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Megan Carroll.

Sincerely,

Elizabeth M. Robinson

(For Douglas Holtz-Eakin, Director).

Enclosure.

H.R. 2693--Marine Mammal Protection Act Amendments of 2003

Summary: H.R. 2693 would authorize the appropriation of $345 million over the 2004-2008 period for programs to protect and conserve marine mammals. Assuming appropriation of the specified amounts, CBO estimates that implementing this bill would cost $9 million in 2004 and $254 million over the next five years. The bill could increase direct spending and revenues, but we estimate that any such changes would be minimal and largely offsetting. H.R. 2693 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would impose no costs on state, local, or tribal governments.

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 2693 is shown in the following table. The costs of this legislation fall within budget function 300 (natural resources and environment). 



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                                                                        By fiscal year, in millions of dollars--                     


                                                                                                            2004 2005 2006 2007 2008 


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SPENDING SUBJECT TO APPROPRIATION                                                                                                    


Spending under current law for Marine Mammal Protection Act activities:                                                              


Budget Authority 1                                                                                             5    0    0    0    0 


Estimated outlays                                                                                              5    2    0    0    0 


Proposed changes:                                                                                                                    


Authorization level                                                                                           62   68   69   70   71 


Estimated outlays                                                                                              9   32   63   77   73 


Spending under H.R. 3693 Marine Mammal Protection Act activities:                                                                    


Authorization level 1                                                                                         67   68   69   70   71 


Estimated outlays                                                                                             14   34   63   77   73 


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Basis of estimate: Assuming appropriation of the necessary amounts, CBO estimates that H.R. 2693 would cost $9 million in 2004 and $254 million over the next five years. The bill also would increase direct spending and revenues, but we estimate that any such effects would be small and largely offsetting.

Spending subject to appropriations

H.R. 2693 would reauthorize programs administered by the Department of Commerce (DOC) and the Department of the Interior (DOI) under the Marine Mammals Protection Act. The bill would authorize the appropriation of $335 million over the 2004-2008 period for those agencies to support various activities, including the preparation and execution of plans to manage marine mammals, research and monitoring efforts, and grant programs to support the rescue of marine mammals from life-threatening situations. Based on historical spending patterns for these activities, CBO estimates that appropriation of the specified amounts would result in additional outlays of $7 million in 2004 and $244 million over the next five years. H.R. 2693 also would authorize the appropriation of $2 million a year over the 2004-2008 period for the Marine Mammal Commission, which performs research and advises DOC and DOI on efforts to conserve marine mammals. Assuming appropriation of the specified amounts, CBO estimates that funding that commission would cost $2 million a year for the next five years.

Direct spending and revenues

H.R. 2693 would provide new authority for the Secretaries of Commerce and the Interior to collect and spend donations (which are recorded in the budget as revenues) to support programs to research fishing methods and other activities related to the conservation of marine mammals. Based on information from DOC and DOI, CBO estimates that any such donations and any subsequent direct spending would not exceed $500,000 in any year.

By increasing the level of civil and criminal fines for violations of the Marine Mammals Protection Act, H.R. 2693 could increase revenues from such fines. Based on information from DOI about the relatively small number of cases likely to occur, however, CBO estimates that any such increase would total less than $500,000 annually. Moreover, such changes would be fully, offset by increases in direct spending from the Crime Victims Fund (where criminal fines are deposited) or the resource management account of the U.S. Fish and Wildlife Service (where civil fines are deposited and used for rewards to informers and other program costs.)

Intergovernmental and private-sector impact: H.R. 2693 contains no intergovernmental or private-sector mandates as defined in UMRA and would imposed no costs on state, local, or tribal government.

Estimate prepared by: Federal Costs: Megan Carroll. Impact on State, Local, and Tribal Governments: Marjorie Miller. Impact on the Private Sector: Selena Caldera.

Estimate approved by: Robert A. Sunshine, Assistant Director for Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104-4


This bill contains no unfunded mandates.

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW


This bill is not intended to preempt any State, local or tribal law.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED




MARINE MAMMAL PROTECTION ACT OF 1972


AN ACT To protect marine mammals; to establish a Marine Mammal Commission; for other purposes.






TABLE OF CONTENTS

Sec. 2. Findings and declaration of policy.

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Title IV--Marine Mammal Health and Stranding Response

Sec. 401. Establishment of program.

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 [Struck out->][ Sec. 403. Stranding response agreements. ][<-Struck out] 

Sec. 403. Stranding or entanglement response agreements.



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DEFINITIONS






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TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS


MORATORIUM AND EXCEPTIONS






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PROHIBITIONS






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PERMITS




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PENALTIES




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VESSEL FINE, CARGO FORFEITURE, AND REWARDS






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MARINE MAMMAL RESEARCH GRANTS












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COMMERCIAL FISHERIES GEAR DEVELOPMENT














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APPLICATION TO OTHER TREATIES AND CONVENTIONS




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INTERIM EXEMPTION FOR COMMERCIAL FISHERIES




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SEC. 116. AUTHORIZATION OF APPROPRIATIONS.


































SEC. 117. STOCK ASSESSMENTS.






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SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING OPERATIONS.




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SEC. 119. MARINE MAMMAL COOPERATIVE AGREEMENTS IN ALASKA.




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SEC. 120. PACIFIC COAST TASK FORCE; GULF OF MAINE.




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TITLE II--MARINE MAMMAL COMMISSION


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ADMINISTRATION OF COMMISSION






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 [Struck out->][ SEC. 207. AUTHORIZATION OF APPROPRIATIONS. ][<-Struck out]




SEC. 207. AUTHORIZATION OF APPROPRIATIONS.














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TITLE IV--MARINE MAMMAL HEALTH AND STRANDING RESPONSE


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SEC. 402. DETERMINATION; DATA COLLECTION AND DISSEMINATION.










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 [Struck out->][ SEC. 403. STRANDING RESPONSE AGREEMENTS. ][<-Struck out]


SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.




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SEC. 406. LIABILITY.






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SEC. 408. JOHN H. PRESCOTT MARINE MAMMAL RESCUE ASSISTANCE GRANT PROGRAM.










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SEC. 409. AUTHORIZATION OF APPROPRIATIONS.






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SEC. 410. DEFINITIONS.


















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-

DOLPHIN PROTECTION CONSUMER INFORMATION ACT


(Section 901 of Pub. L. 101-627)


DOLPHIN PROTECTION




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SUPPLEMENTAL VIEWS


While this legislation is the product of negotiation and compromise between the Chairman of the full committee and myself, as well as the chairman of the Subcommittee on Fisheries, Conservation, Wildlife and Oceans and that panel's ranking Democratic Member, and was reported in a bipartisan manner, certain provisions of the bill are described in the Committee Report in a way which in my view distorts their intent and purpose. For this reason, I am filing these Supplemental Views. Chiefly among these provisions are:

 15 Day Advance Notice/Captive Marine Mammals: The report states that the 15-day advance notice requirement for transfer of captive marine mammals should not apply to transport between facilities owned and operated by the same permit holder. This statement is without statutory basis and contrary to existing law and policy. Current law prohibits the sale, purchase, export or transport of marine mammals held for the purpose of public display unless the Secretary is notified of such action no later than 15 days before such action. This language clearly includes the transport of marine mammals between facilities, even where the owner of the facilities is the same, because of the explicit prohibition of both `sale' and `transport.' Simply because a permit holder may own and operate multiple facilities is no assurance that all of these facilities meet all requirements for the care and maintenance of marine mammals. Furthermore, transfer and shipping of marine mammals is stressful to the animals and should be monitored to avoid abuse.

 Zero Mortality Rate Goal: The report's discussion concerning the Zero Mortality Rate Goal (ZMRG) reflects views which I do not share. In two instance, the report states that ZMRG is unnecessary once incidental mortality reaches the Potential Biological Removal (PBR) level. The basis for this assertion is that PBR alone is sufficient to attain the Act's goal of maintaining populations at optimal sustainable populations. However, I do not agree with the premise of equating ZMRG with PBR. Such an interpretation would be contrary to the long-term goal of the take reduction team process which is to reduce incidental mortality to levels below PBR. ZMRG therefore functions as a precautionary downward pressure to continue to reduce incidental mortality with consideration of economic and technological factors of the fishery.

 Dolphin Safe: The Majority's dicta equating ZMRG and PBR may have implications concerning ongoing litigation concerning dolphin bycatch in the yellowfin tuna fishery in the Eastern Tropical Pacific Ocean and the `Dolphin Safe' consumer label. When Congress amended the International Dolphin Conservation Act in 1997, it amended the yellowfin tuna provisions of the MMPA to provide an annual mortality cap of 5,000 dolphins and population-specific dolphin mortality limits in the ETP purse seine fishery. However, Congress also renewed a commitment and objective to progressively reduce dolphin mortality to a level approaching zero. Language in the Majority's report should not be read to imply that the Congress considers the practice of setting on dolphins or encirclement by purse seine nets to satisfy a `best available technology' standard, particularly at a time when the matter is in litigation.

 Small Numbers/Negligible Impact: The report's rationale for striking references to `small numbers' as it applies to determinations of `no negligible impact' should be clarified. Fundamental to striking `small numbers' as a test for permit approval is the understanding that any determination of negligible impact must account for the population dynamics of the species. Accordingly, it is my view that it remains the Secretary's responsibility to consider the special circumstance of small sub-populations (i.e., Puget Sound orca or Cook Inlet beluga whale) or listed species (i.e., North Atlantic right whale).

 Specific Geographic Region: The committee report states that in regard to `specified geographic region' an area should be as large as necessary to accomplish the activity. I disagree. Since 1981, it is well established law that the specified geographical region MAY be smaller than the activity's range. The primary purpose of this provision of the Act is to protect marine mammals, not to design a permitting system catering to variously-sized areas of activities. The Majority's unilateral interpretation would be a significant change in current law which holds that regions should be narrowly identified so that anticipated effects will be substantially the same.

NICK RAHALL.











 




 
  
     

        
 
          


          


          

         

      		
    





  
     

       

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