Full Statute Name:  H.R. No. 100-970

The Committee on Merchant Marine and Fisheries to whom was referred the bill (H.R. 4189) to authorize appropriations to carry out the Marine Mammal Protection Act of 1972 for fiscal years 1989 through 1993, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

PURPOSE OF THE LEGISLATION

The legislation has several major purposes, the first of which is to provide a five year interim exemption for commercial fisheries from the Marine Mammal Protection Act's [MMPA] general taking prohibitions. Through the creation of a new section in the Act, the bill establishes new requirements and procedures for fishermen who may incidentally take marine mammals in the course of commercial fishing.  Through these new procedures, it is anticipated that sufficient information will be obtained to improve the overall management and protection of marine mammal populations.

Another purpose of the legislation is to require the Secretary of Commerce to make determinations about the status of certain marine mammal populations to determine whether they are depleted. The bill requires the development of conservation plans for the purpose of providing guidelines for restoring and conserving certain population stocks of marine mammals.

The legislation is also intended to reduce the number of propoise killed or seriously injured in the course of yellowfin tuna fishing in the eastern tropical Pacific Ocean.  By imposing additional requirements on both domestic and foreign tuna fishermen, the Committee expects that the overall mortality of dolphins will decrease, thus furthering the goals of the Act.

Finally, the bill modifies the requirements which must be met by a permit applicant for the Secretary to issue permits for scientific research and public display; authorizes appropriations for an additional five years; requires a study of the effects of seal control devices on porpoise; and requires a study on the die-off of east coast Atlantic bottlenosed dolphins.

BACKGROUND AND NEED FOR LEGISLATION

The MMPA was enacted in 1972 for the purpose of ensuring that marine mammals are maintained at healthy population levels.  In passing the Act, Congress responded to the growing concern about the decline of certain species and recognized the important role that marine mammals play in the ecosystem as well as their economic, aesthetic and recreational value.

Under the MMPA, the Department of Commerce is charged with responsibility for whales, dolphins (porpoise), sea lions and seals. The Department of the Interior has responsibility for polar bears, walruses, sea otters, manatees and dugongs.  The Act establishes a moratorium on the taking of marine mammals unless the population of a mammal is determined to be at its optimum sustainable level. State management of resident marine mammal populations is preempted until such time as a state prepares a marine mammal management program consistent with the Act.  Criminal and civil penalties are prescribed for violations of the Act and the importation.  of marine mammals and their products is subject to regulation.  The Act created a three-member Marine Mammal Commission which is charged with monitoring the implementation of the Act, recommending policies to the two Secretaries and undertaking such research as is deemed appropriate.

In order to minimize the impact of commercial fishing on populations of marine mammals, the Act directed the Secretary of Commerce to establish a permit system and issue regulations which would ensure that the techniques and equipment used by fishermen would produce the least practicable hazard to marine mammals.  As stated in the original Act (section 101), it shall be the conservation goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.

The 1972 statute also directed the Secretary of Treasury to ban the importation of commercial fish or fish products that have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of marine mammals in excess of United States standards.  The Act required the Secretary of Commerce to obtain reasonable proof from foreign governments in order to make a finding that foreign commercial fishing techniques were not resulting in kills or injuries in excess of U.S. standards.

Historically, the tuna/porpoise conflicts have given rise to some of the most controversial issues relating to the MMPA.  For 30 years, purse seining has been an effective method of catching yellowfin tuna in the eastern tropical Pacific Ocean [ETP]. In the ETP, unlike other areas, yellowfin tuna swim beneath schools of porpoise or dolphins.

In order to catch these valuable tuna, fishermen encircle schools of porpoise with a seine net and, in the process, many porpoise become seriously injured or killed.  The most current data shows that in 1987 60 percent of the tuna caught and more than 80 percent of the porpoise killed in the ETP were taken by foreign purse seiners.  In terms of numbers, the U.S. tuna fleet killed 13,992 porpoise in 1987 while the foreign fleets killed over 103,000 porpoise.

In addition to the United States, approximately 18 other nations have purse seined in the ETP for yellowfin tuna.  In order for these countries to import tuna into the United States, the Secretary of Commerce, in accordance with section 101 of the MMPA, is required to make a finding that the fishermen from these countries are using techniques and equipment that prevents mortalities of marine mammals in excess of U.S. standards.  The Congo, El Salvador, Mexico, Peru, Senegal, and the U.S.S.R. have been prohibited from exporting yellowfin tuna to the United States during some period of time since the MMPA was enacted because they did not meet U.S. standards. Other countries such as Canada, New Zealand, Bermuda, and the Republic of Korea have stopped fishing in the ETP altogether. Currently, the requisite findings under section 101 are in effect for the Cayman Islands, Costa Rica, Eduador, Mexico, Panama, Spain, Vanuatu, and Venezuela.  Therefore, these are the only countries fishing for yellowfin tuna in the ETP which are allowed to export their catch to the United States.

In the 97th Congress, the MMPA was reauthorized and, in the process, the Subcommittee on Fisheries and Wildlife Conservation and the Environment closely examined the tuna/porpoise issue.  The Committee report (H. Rept. 97- 228) discussed the success of the Act in reducing the mortality of porpoise caused by domestic fishermen from 368,000 in 1972 to 18,573 in 1980.  It was noted that the dramatic reduction was accomplished through improvements in gear design and fishing techniques.  The report also discussed the issue of whether the goal of the Act was being fulfilled because the incidental kill of porpoise had not been reduced to insignificant levels approaching zero.  The tuna industry contended that by using the best technologically feasible equipment and methods to reduce incidental porpoise mortality, the industry was meeting the mandate of the Act.

In 1981, the Congress approved amendments which stated that the goal of the Act would be satisfied in the case of purse seine fishing for yellowfin tuna by the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable.  The Committee report stated that the existing goal of the Act could properly be used to stimulate new technology for reducing the incidental taking of marine mammals. To ensure that efforts to discover new technology would be undertaken, Congress adopted a provision which directed the Secretary to undertake a program of, and provode financial assistance for, research into new methods of locating and catching yellowfin tuna without the incidental taking of marine mammals.

The 98th Congress approved legislation to reauthorize the MMPA and made further amendments to those sections of the Act concerning yellowfin tuna and porpoise mortalities.  One of the most significant changes was to strengthen section 102(a), which ensures that nations exporting to the U.S. yellowfin tuna harvested with purse seines in the ETP have an adequate marine mammal protection program.  The 1984 amendments directed the Secretary to require documentary evidence from foreign governments that they have adopted regulatory programs governing the incidental taking of marine mammals that are comparable to those of the U.S. Furthermore, the amendments required this documentation include proof that the average rate of incidental taking of marine mammals was comparable to that of the United States.

The 1984 amendments also statutorily extended the general permit issued to the American Tunaboat Association (ATA) for an indefinite period, subject to a number of specific conditions.  These conditions included changes in fishing gear, techniques and practices if required by the Secretary.  Also, in order to protect the coastal spotted and eastern spinner dolphins, quotas of 250 and 2,750 respectively, were incorporated into the law.  Unlike past practice, the amendments required that mortalities of these species be within, not in addition to, the overall annual quota established by the Secretary and incorporated into the permit.  If either of these subquotas is exceeded, even if the overall quota had not been reached, fishing in the ETP would be terminated.

During reauthorization hearings held in 1984, it became apparent that the National Marine Fisheries Service did not have the necessary data on which to calculate the impact of incidental mortality on the populations of different stocks of porpoise.  In order to obtain this information, the Act was amended to direct the Secretary of Commerce to carry out a scientific research program to monitor, for at least 5 years, population abundance and trends for ETP stocks of porpoise.  The purpose of the five year program was to provide the basis for determining if porpoise are being adversely affected by incidental takes.

In recognition of the information expected from the 5-year study, the Act was amended to direct the Secretary to make appropriate modifications to the incidental take quotas and other requirements of the ATA general permit, if it is determined that incidental take levels are having a significant adverse effect on a marine mammal population.

All commercial fishermen, including those purse seining for yellowfin tuna, are prohibited from incidentally taking marine mammals without a Federal permit authorizing such take. the National Marine Fisheries Service [NMFS] on behalf of the Secretary of Commerce is authorized by the Act to allow the take of marine mammals by the fishing industry through two mechanisms:  the issuance of 'general permits' for the take of relatively large numbers of marine mammals by U.S. and foreign fishermen; and the issuance of 'small take exemptions' for the take of small numbers of marine mammals by U.S. fishermen only. 'Taking' of marine mammals, as defined in the Act, is not limited to capturing or killing them, but includes harassment of the mammals as well.

The small take exemption provisions for commercial fishermen (section 101(a)(4)) were added in the 1981 amendments.  The purpose of these measures was to allow U.S. fishermen who may in the course of fishing incidentally take small numbers of marine mammals to receive a permit to do so without NMFS following the lengthy procedures required for general permits.  This Committee intended that these new provisions be available to fishermen whose taking of marine mammals was infrequent, unavoidable and accidental.  The taking authorized by the small take provisions was narrowly defined to maintain the goals of the Act of reducing to insignificant levels approaching zero, mortalities caused by commercial fishermen.  The taking was required to be small in numbers and NMFS was required to make a finding that the taking would have a negligible impact upon the affected species.

Unlike the small take exemptions, general permits require NMFS to estimate the population of the marine mammals for which the permits are issued, and to determine whether those populations are healthy or, in the terms of the Act, at 'otpimum sustainable population' [OSP] levels.  NMFS has made OSP determinations for several species, but it has not made them for many of the mammals that are likely to be taken during fishing operations.  For example, OSP determinations have not been made for harbor porpoises or harbor seals, both of which are incidentally taken in the gillnet fisheries in Alaska and California.

Populations of marine mammals that are below OSP are, by definition,  'depleted.'  There is no mechanism in the Act to allow the incidental take of depleted species by the fishing industry either through a general permit or a small take exemption.  NMFS has designated northern fur seals as depleted and is considering such a designation for Steller sea lions.  These two species are present in many of the fishing grounds in the Pacific northwest and Alaska and it is likely that they are taken by a number of northwest Pacific fisheries. Should both these species be designated as depleted, fishermen in these fisheries would be unable to fish.  Also, NMFS recently announced it is preparing an Advanced Notice of Proposed Rulemaking on depletion of the coastal migratory stock of bottlenose dolphins in the mid-Atlantic region.  Such a designation would have serious impacts on the ability of several east coast fisheries to obtain permits or exemptions.

In addition to the general permit issued to the tuna industry, general permits have been issued to the North Pacific Fishing Vessel Owners Association for the fisheries in Alaska waters and to the North Pacific Fishing Vessel Operators for the fisheries in California, Washington, and Oregon waters.  Small take exemptions have been issued to two groups on the east coast:  the groundfish gillnet fleet in the northeast and the menhaden purse seine fleet located in the Atlantic and Gulf of Mexico.  All current permits and exemptions allowing domestic commercial fisheries (other than the tuna industry permit) to take marine mammals expire at the end of 1988.

Within the last year, a lawsuit brought under the MMPA has complicated the relationship of the MMPA to commercial fishing operations.  In July 1986, the Federation of Japan Salmon Fisheries Cooperative Association applied for a new general permit to incidentally take 5,500 Dall's porpoise, 450 northern fur seals and 25 sea lions in each of the next 5 years in the course of their Bering Sea salmon gillnet fishery.  After a year of administrative proceedings, NMFS issued a permit to allow the Federation to take 6,039 Dall's porpoise over a 3-year period.  NMFS denied the request to take northern fur seals and sea lions because insufficient information existed on the record to ascertain whether the populations were at OSP.

Following the issuance of the Federation's general permit, lawsuits were filed by the Kokechik Fishermen's Association, representing Alaskan subsistence fishermen, and several environmental groups to enjoin the permit.  In 1987 the U.S. District Court for the District of Columbia enjoined the issuance of the permit on the grounds that it violated the MMPA.  The court reasoned that NMFS violated the Act because it had failed to establish limits in the permit on the other marine mammals that would likely be taken in the course of the fishery and since it was clear that these mammals would be taken, the Court also found that NMFS failed to make the formal findings required by the MMPA that the conduct of the fishery would have negligible effects on these other species. The decision was upheld on appeal.

During the yearlong controversy over the Federation's permit, NMFS' marine mammal permit process has been in a state of paralysis.  Several important issues have arisen as a result of the Kokechik decision with implications far beyond this one specific permit.  At the heart of the issue is the Secretary's ability to issue a MMPA permit in the absence of a finding, based on adequate scientific information, that the mammal involved is at the OSP level.  If insufficient data exists to make a determination on the population level of any marine mammal likely to be taken during a fishing operation, the decision suggests that a permit could not be issued. A recent decision by NOAA to refuse to grant a small take exemption to the east coast menhaden purse seine fishery, because it may take bottlenose dolphins, illustrates just some of the shortcomings of the current Act.

In summary, the provisions of the Act concerning commercial fishing operations and the take of marine mammals are inadequate. Presently the Act does not provide for any taking of marine mammals declared depleted, even if this taking is unlikely or is very small with negligible impacts on the species.  In cases where there is inadequate information to make a population determination or a negligible impact finding, the Kokechik decision appears to strictly limit the Secretary's ability to issue a permit or exemption.  The implication of this interpretation of the Act is to render 'de facto depleted' status for all these marine mammals for which population determinations have not been made.

COMMITTEE ACTION

H.R. 4189, a simple five-year reauthorization of the Marine Mammal Protection Act at existing levels, was introduced on March 16, 1988, by Mr. Studds, for himself, and Mr. Jones of North Carolina, Mr. Davis, and Mr. Young of Alaska. The bill was referred to the Merchant Marine and Fisheries Committee and further referred to the Subcommittee on Fisheries and Wildlife Conservation and the Environment.

On May 10, 1988, the Subcommittee held its first hearing on the bill during which testimony was received from representatives of the fishing industry, the environmental community, the National Oceanic and Atmospheric Administration and the Marine Mammal Commission. Issues discussed during the hearing included permits and exemptions for commercial fishermen, the need to reduce dolphin mortality, scientific research and public display permits.

The primary purpose of the hearing was to examine the joint agreement reached between the environmental and fishing communities. Witnesses explained that the failure of the Act to allow any take of depleted marine mammals, coupled with the Kokechik decision and the fact that all general permits and small take exemptions expire at the end of 1988, led to a series of meetings between industry representatives and conservationists beginning in late 1987.  The common goal of these meetings was to arrive at some agreement on amendments to the MMPA which continued the protections accorded marine mammals under the Act and assured that commercial fishing operations would continue to operate while the necessary information to fulfill the purposes of the Act was compiled.

The joint proposal, presented on behalf of 25 environmental and 17 commercial fishing organizations, contained the following elements:

A three year limited exemption to the moratorium to allow incidental take of small numbers of marine mammals for which OSP cannot be determined or which are depleted;

An industry wide education program;

A revised and invigorated reporting system;

A verification system including a living marine resource observer corps;

A new data analysis system;

A research program focused on specific problems;

Recovery plans, habitat protection zones and mitigation mechanisms; and

Definite time lines and procedures to assure that the population status determination process is open, complete and efficient.

On September 8, 1988, the Subcommittee held its second hearing on H.R. 4189 for the purpose of reviewing proposed amendments to the Act concerning reducing the mortality of porpoise in the course of yellowfin tuna fishing in the ETP.  Testimony was received from representatives of NOAA, the Tuna/Dolphin Environmental Coalition, the United States Tuna Foundation, the Inter-American Tropical Tuna Commission and the Marine Mammal Commission.

Issues discussed during the hearing included the comparability standards required by the 1984 amendments, observer coverage, sundown sets by purse seiners, new or alternative fishing techniques, the status of porpoise populations, skipper performance standards and the phaseout of the U.S. quota of porpoise.  Most witnesses were in agreement that further steps could and should be taken to reduce mortality by both foreign and domestic tuna fishermen. However, on the issue of legislating a reduction to zero of the U.S. quota of porpoise, every witness except the representative from the environmental coalition testified that this action could very well lead to an overall increase in porpoise mortality due to foreign fishermen abandoning their efforts to develop additional programs to protect porpoise comparable to U.S. programs.

The Subcommittee conducted a markup of H.R. 4189 on September 14, 1988.  Mr. Studds and Mr. Young introduced an amendment in the nature of a substitute. After adopting a series of technical amendments, the Subcommittee adopted an amendment offered by Mr. Miller which clarified the duties of natural resource observers to be placed onboard U.S. fishing vessels.

Mr. Studds then offered an amendment calling for further reductions in the mortality of porpoise.  Mrs. Saiki offered a perfecting amendment which would have statutorily reduced to zero the quota or porpoise.  The Saiki amendment was defeated on a voice vote after which the Studds amendment was approved by a division vote of 8 to 7.

Mr. Anderson offered an amendment to eliminate the seal bomb prohibition in the Studds-Young substitute.  The amendment was adopted by a division vote of 10 to 4.

Mrs. Saiki offered another amendment directing the Secretary to provide the National Academy of Science with all current information on porpoise populations.  The amendment was adopted by voice vote.

Mr. Carper offered an amendment adopted by voice vote that directs the Secretary to do a study on the bottlenose dolphin die off on the east coast. The bill as amended was then reported to the Committee by a unanimous voice vote.

On September 15, the Committee held a markup session during which H.R. 4189, as amended by Subcommittee, was considered.  Mr. Studds offered an amendment to prohibit the use of seal bombs and other explosives by yellowfin tuna fishermen.  The amendment was defeated on a rollcall vote of 23 to 18.  Mr. Brennan then offered an amendment to change the name of observers onboard U.S. vessels to marine mammal observers.  The amendment was adopted by voice vote. The bill, as amended, was favorably reported to the House by a unanimous voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1

This section establishes the short title of the Act as the Marine Mammal Protection Act Amendments of 1988.

Section 2

This section creates a new section 114 of the MMPA which provides for an interim exemption for commercial fisheries other than commercial yellowfin tuna fishing.  This new section supersedes, until October 1, 1993, other sections of the Act governing the incidental taking of marine mammals by commercial fishermen to whom it applies.

Subsection (a) specifies that the new section 114 will take effect immediately on the date of enactment of this Act and will remain in effect until October 1, 1993.  During that time period, this section, rather than sections 101, 103, and 104 of the MMPA, shall govern the incidental taking of marine mammals by commercial fishermen other than tuna fishermen.  The subsection also provides that this interim regime will be available only to persons using vessels of the United States and vessels which have valid fishing permits issued under section 204(b) of the Magnuson Fishery Conservation and Management Act.  By limiting the exception in this way, the Committee intends that the Japanese salmon gillnet fleet which has been precluded from operation in the U.S. Exclusive Economic Zone by a decision of the U.S. Court of Appeals in Kokechik Fishermen's Association v. Secretary of Commerce will not have the provisions of section 114 available to it.  The Committee does not intend section 114 of disturb the holding in that case as it applies to the Japanese salmon gillnet fleet.

The Committee also notes that representatives of commercial fishing organizations have agreed to undertake and fund a special research program on germ technology and fishing practices designed to minimize the incidental taking of marine mammals, and have committed to an educational effort to inform fishermen of their rights and responsibilities under the MMPA.  The Committee commends the fishing industry for this effort and hopes that as a result futurer amendments to the MMPA will be developed with a broad consensus among commercial fishermen and the environmental community.

Finally, subsection (a) retains the general goal of the MMPA that the incidental kill or serious injury of marine mammals incidentally taken should be reduced to insignificant levels approaching a zero mortality and serious injury rate.

Subsection (b) generally describes the procedure to be used for identifying categories of fisheries and registering vessels and vessel owners in order to 'engage lawfully' in a fishery.  The term 'engage lawfully' refers solely to compliance with the MMPA and failure to comply subjects fishermen only to the penalties of the MMPA.

The Secretary is required to compile three lists of fisheries based on the frequency of incidental taking of marine mammals by vessels in those fisheries.  It is the Committee's intent that these lists be compiled with the maximum amount of public participation given the time periods involved. Further, the Committee recognizes that for the first year that this section is in effect, the Secretary may not have time to conduct adequate research to determine which fisheries should be included in which list. Therefore, the Committee intends that the list in paragraph (1)(A)(i) at a minimum include the following fisheries:  Bering Sea and Gulf of Alaska groundfish trawl fisheries, Prince William Sound/Copper River salmon set and drift gillnet fisheries, Unimak Pass and False Pass salmon drift gillnet fisheries, Columbia River salmon drift gillnet fisheries, and Washington/Oregon thresher shark drift gillnet fishery; and that the list in paragraph (1)(A)(iii) include the shrimp trawl fishery in the southeastern United States and the Gulf of Mexico and the mid and south Atlantic menhaden purse seine fishery.  Other fisheries should be included in the appropriate categories based on available data and with opportunity for public comment.

In addition, this subsection makes clear that fishermen have a 240 day grace period available to them in order to allow time for the Secretary to the caregories mentioned above and put in place the registration and reporting system.  Along with the grace period, the Committee provided that only a knowing violation of the requirements in subparagraph (3)(C) that takes place before January 1, 1990, will subject a fisherman to a penalty.  The Committee would not consider a knowing violation to include failure on the part of a fisherman to obtain an exemption because he was involed in a fishery the start of which occurred before the Secretary could make available appropriate exemption forms and decals or because of the remote location of the fishery, the fisherman had no way of knowing of the requirements imposed or him or did not have the ability to obtain the appropriate forms.

The Committee notes that subparagraph (3)(E) exempts vessel owners whose vessels are engaged in fisheries identified in paragraph (1)(A)(iii) from penalties for incidental taking if such taking is reported.  The Committee intends that vessel owners in this category make all reasonable efforts to release animals unharmed.

Further, notwithstanding the grace period, the incidental taking of California sea otters and the intentional lethal taking of Steller sea lions, cetaceans, or any marine mammal from a population stock designated as depleted is strictly prohibited.  In this regard, the Committee intends that the provisions of this section do not supersede, or otherwise affect, any provisions of the Endangered Species Act or section 1 of Public Law 99-625 which established a California sea otter translocation and zonal management program designed to bring about their recovery.  In addition, the exemption to allow intentional lethal taking must be exercised only in the most limited circumstances when, after all reasonable nonlethal methods of deterrence have been exhausted, killing an animal is necessary to protect catch, gear, or human life.

Finally, paragraph (5)(C) of subsection (b) authorizes the Secretary to charge a fee to cover the administrative costs of granting an exemption.  It is the clear intent of the Committee that the amount of any fee shall not exceed reasonable administrative costs; in other words, the Secretary cannot use this provision to offset the cost of an observer program or a data management system, charge fees which cover the cost of research, or in any other way use this authority to fund programs for which authorizations are made available.

Subsection (c) imposes a reporting requirement on fishermen holding an exemption issue under subsection (b) and generally describes the information which must be submitted to the Secretary. The Committee intends the process to be simple incorporating, for example existing logbook recording mechanism. Such reports should include any information on marine mammals released unharmed from fishing gear, marine mammal sightings of possible, and any physical contact and intentional harassment such as intentional pursuit or use of accoustic deterrence devices.  The Committee expects the Secretary to make use of this information and not ignore it, as has occurred in the past.

Subsection (d) requires the Secretary to establish a program to enhance the quality of and to verify information received from reports submitted by vessel owners.  The key to this program is the establishment of an education program so that vessel owners will submit reports containing useful information.  The Committee expects the Secretary to work closely with fishermen's organizations and utilize the services of the Marine Advisory Program to accomplish this goal.

Subsection (e) establishes and authorizes funds for an observer program to conduct onboard data-gathering activities on vessels engaged in those fisheries with a frequent incidental taking of marine mammals.  Obsevers are to be deployed so that a mimimum of 20 percent and a maximum of 25 percent of the effort in given fishery is observed during the course of a fishing season.  The percentage should be determined based upon the average number ofvessels in the fishery during the season.  This could result in the number of observers deployed in a fishery changing during the course of a fishing season.  The Committee notes that representatives of the commercial fishing industry from the Pacific Northwest and Alaska and representatives of environmental organizations, in testimony before the House and the Senate, jointly agreed that that trawl fisheries of the Bering Sea and the Gulf of Alaska that are listed under subsection (b)(1)(A)(i) should be covered by least 24 observers during the first two years that the observer program is in effect.

In distributing observers among fisheries and among vessels within a fishery, the Secretary is to be guided by specific standards listed in paragraph (2) to ensure fair and equitable treatment.  Further, when assigning observers to specific vessels, the Committee intends that the Secretary work with Regional Fishery Management Councils or States, as appropriate, and with the fishermen's organizations to ensure that the program runs smoothly and with a minimum cost.  Thus, for example, the Secretary should consult with fishermen's organizations to see what vessels are available and suitable for carrying observers.  At the same time, the Secretary must ensure that, by accepting the suggestions of organizations regarding vessel suitability, the data obtained will be reliable and not biased by differences in vessel operation or fishing location.

Although the primary purpose ofthe observer program is to collect data on incidental take of marine mammals, observers are not necessarily limited to this activity.  In certain instances, a Regional Fishery Management Council or a State may wish to take advantage of the presence of an observer to obtain other scientific or biological information that will assist them in performing their resource conservation and management duties.  In such instances, they can request that the Secretary have observers collect such other data.  It is the Committee's intent that the Secretary honor such requests.  In the case of a Regional Fishery Management Council such a request should be made by the Council as a whole in accordance with Council procedures in the exercise of its authority under section 302(b)(6) of the Magnuson Fishery Conservation and Management Act and not by an individual Council or staff member.

The Committee recognizes that situations may occur where deployment of an observer is not possible or practical.  Thus, the requirement for observer coverage is conditioned in paragraph (5). For example, the Secretary may be able to achieve the need to obtain statistically reliable information in a fishery that involves the delivery of fish directly to a floating processor by stationing an observer on board the processor rather than on one or several catcher vessels.  This is particularly true in the case of over-the-side joint ventures where the foreign processing vessel already has an observer on board under the provisions of other law. However, an observer on board a processor must be able to accurately verify incidental taking of marine mammals or obtain other biological data if requested to do so by a Council or a State.  If needed data cannot be obtained, then observers must be deployed on the harvesting vessel.

Situations may also occur where a vessel is too small to carry an observer safely, where an observer will displace a crewmember, or where fishing gear cannot be operated safely because of the presence of an observer.  Such situations also absolve the Secretaryof observer deployment requirements. However, this does not necessarily preclude placement of an observer on board a vessel with insufficient space to quarter the observer if the vessel does not remain at sea overnight.

The Committee also recognizes that the Secretary may not be able to employ, or contract for sufficient personnel to fully staff the observer program, or that funds may not be appropriated to cover the full cost of an observer program.  The Committee considers these events to be beyond the control of the Secretary.  In such circumstances, paragraph (3) lists priorities that should be met in allocating the limited resources of the Secretary.

Paragraph (6) stipulates that vessel owners shall not be held liable for injuries or fatalities suffered by observers while deployed on board a vessel with two exceptions:  an observer may bring a civil action against an owner for the owner's willful misconduct; and the exemption from liability does not apply if the observer is formally engaged by the owner to perform duties on board the vessel of the sort that would normally be performed by a crewmember.  The term 'engaged' is used in the sense that a formal contract or an exchange of money is involved.  Thus, an observer who voluntarily provides minimal assistance in the operation of a vessel, such as by handling a line or cooking a meal, will not be considered to be engaged unless he is paid or employed to do so.  This paragraph also applies the limitation on liability to owners of tuna vessels required to carry observers under section 104 of the MMPA.

Finally, the Committee does not intend that observers deployed under this subsection necessarily meet other requirements for observer coverage that may be mandated under other laws or regulations.  Thus, for example, the requirement for 100 percent observer coverage on foreign fishing vessels under subsection 201(i) of the Magnuson Fishery Conservation and Management Act are not altered by the requirements of this subsection, nor are any similar requirements imposed by State law or applicable fishery management plans.  At the same time, if the Secretary can effectively utilize observers deployed under other authorities to meet the provisions of this subsection, he should do so.

Subsection (f) requires the Secretary to establish an alternative observer program for those fisheries where observer coverage is required but where deployment of observers on board fishing vessels in sufficient numbers to meet the 20 percent minimum standard cannot be accomplished.  For example, salmon gillnet fishermen in Alaska must by State law use vessels which are too small to carry observers safely. Thus, observation could probably best be accomplished by using a patrol vessel stationed in the area from which observers can observe fishing operations.  The alternative program should also be used for fisheries where observer coverage is not required but where the use of the alternative program will provide the Secretary with valuable marine mammal data.  This program can be used to collect other biological data if an appropriate request is made by a Council or State.

Subsection (g) provides the Secretary with both emergency and general authority to impose conditions and restrictions on exemptions issued to fishermen in order to prevent significant adverse impacts on marine mammal population stock.

The Committee intends that the Secretary's emergency authority be used only when no alternative is available to prevent an immediate and significant adverse impact on a marine mammal population stock. Further, the Secretary must consult fully with appropriate Regional Fishery Management Councils and State fishery managers before taking any emergency action.  In addition, such action shall not, unless absolutely necessary, interfere in any way with existing fishery management plans or State conservation and management programs.  Any action taken should be as brief in duration and nonintrusive in nature as possible and shall take into account the economics of the fisheries that may be affected and the availability of existing technology to resolve emergency problems. At the same time, the Secretary may also promulgate emergency regulations which restrict the number of marine mammals that may be taken, the season or other period of time when marine mammals may be taken, the manner and location in which marine mammals may be taken, and the use of fishing techniques which are found to cause undue fatalities to any species of marine mammals.

The Committee recognizes that a situation may arise where a large number of Steller sea lions or northern fur seals may be lethally taken by a fishery occurring early in the year, thus potentially preventing other fisheries from operating.  If such a situation occurs, the Committee intends that the Secretary work with the North Pacific Fishery Management Council, the State of Alaska, and affected fishermen to develop a system of allocating lethal takes among fisheries.  Such a system shall not be used to accomplish other fishery management or social or economic objectives, nor shall it relieve the Secretary of the legal obligation to protect marine mammals as required by this Act.

This subsection also provides the Secretary with general authority to impose conditions and restrictions on exemptions.  This authority shall be used where appropriate to meet the requirements of this Act. Any conditions or restrictions imposed which affect fishing operations shall avoid affecting State fishery management authority or fishery management plans and shall only be imposed after full consultation with Councils and States and notice and opportunity for public comment.  The range of conditions and restrictions which may be imposed include those noted above in the discussion of the Secretary's emergency authority.

By enacting this subsection, the Committee does not intend to alter the Secretary's clear statutory authority to manage and protect marine mammals. The Committee recognizes that authority for fisheries management lies with the States and, to the extent established by law, with the Regional Fishery Management Councils. The Committee intends the Secretary to work cooperatively with such management entities on matters affecting fisheries but not to ignore his responsibilities under this Act.

Subsection (h) requires the Secretary to design and implement an information management system capable of analyzing and processing information on incidental taking of marine mammals.  Because information must be made available to the public in a timely manner, the Committee intends that the Secretary develop procedures to adequately analyze reports received from fishermen and not simply ignore them.

Subsection (i) provides the Secretary with authority to enter into contracts to carry out certain of his responsibilities under this Act and to utilize the services and programs of other entities such as States, universities, Regional Fishery Management Councils, and other Federal agencies.  The Committee intends that the Secretary utilize this authority and not attempt, for example, to create a new licensing system if a State licensing system can be used to register fishing vessel owners and issue exemptions. Further, the Committee recognizes that the Secretaryalready has a program established to collect and compile observer data from foreign fishing vessels.  If practicable, the Secretary should utilize this program in carrying out the requirements of subsection (e).

Subsection (j) imposes restrictions on releasing confidential or proprietary business information to the public.  If the Secretary enters into a contract or other agreement to collect or analyze data submitted by observers or obtained from reports, the Committee intends that the contractor or other entity be considered a Federal employee and thus entitled to receive the data in raw form but be bound by the other restrictions on public release of data in this subsection.  Further, the Committee understands that requests for data have been submitted to the Secretary under other authorities and those requests have been denied because the Secretary did not wish to provide data in the form requested, even though release of the data would not have violated confidentiality provisions.  The Committee intends that data collected under this section be made available to the public as long as the identity or business of any person is not disclosed.

Subsection (k) requires the Secretary to issue appropriate regulations to carry out the purposes of this section.  As is generally provided for in the MMPA, the Committee expects that the Secretary will consult with the Marine Mammal Commission regarding such regulations and the Secretary of the Interior where appropriate.

Subsection (l) sets up a mechanism whereby the Congress, based on scientific information, public participation, and recommendations from the Secretary, can, if it chooses, establish a permanent system to deal with the incidental taking of marine mammals in the course of commercial fishing.

By February 1, 1990, the Chairman of the Marine Mammal Commission is required to transmit to the Secretary and make available to the public recommended guidelines to govern the incidental taking of marine mammals by commercial fishermen are October 1, 1993.  Because the Marine Mammal Commission is a scientific body, the Committee intends that these guidelines be scientific in nature; that is, they should not deal with the economics of fisheries or allocation of fishing privileges. Further, they must be based on sound principles of wildlife management and must only be issued after full consultation with all interested parties, including but not limited to those individuals and groups interested in the conservation of marine mammals and those involved in all segments of the U.S. commercial fishing industry.

No later than February 1, 1991, the Secretary shall publish in that Federal Register for public comment a suggested regime that, if authorized by further action of the Congress, should govern the incidental taking of marine mammals by commercial fishermen.  The Committee intends that publication be preceded by extensive consultation with all interested parties, including all segments of the U.S. commercial fishing industry and especially the Secretary of the Interior in regard to those species under the jurisdiction of that Secretary.  The Committee intends that the Secretary include in the consideration of permissible biological levels of take discussions of the economic and sociological impacts of the regime.

Following consideration of public comment and after consultation the Marine Mammal Commission on any scientific aspects of the suggested regime, but in no event any later than January 1, 1992, the Secretary shall submit his recommendations to Congress.

Subsection (m) requires the Secretary to consult with the Secretary of the Interior prior to taking actions or making determinations under this section which may affect population stocks of marine mammals that are the responsibility of the Secretary of the Interior.  The Committee recognizes that the Secretary of the Interior is responsible for certain species of marine mammals, such as Alaskan sea otters, that may be affected by commercial fishing operations and the Committee does not intend to reduce or alter that responsibility. At the same time, the Committee recognizes that the Secretary of Commerce has clear authority over matters relating to marine fisheries and does not intend by this subsection to reduce or alter that responsibility.  Given these respective responsibilities, the Committee expects the Secretary of Commerce to communicate to the maximum extent practicable with the Secretary of the Interior on matters involving those species under the jurisdiction of that Secretary.  Thus in the case of any species under the jurisdiction of the Secretary of the Interior, the Committee expects the Secretary of the Interior to notify the Secretary of Commerce of any problems that may be occurring regarding commercial fisheries and to provide suggestions for resolving those problems.  The Committee intends the Secretary of Commerce to give significant weight and due deference to the advice and recommendations from the Secretary of the Interior, given the expertise of the Secretary of the Interior on species under that Secretary's jurisdiction.  However, the Committee intends that the Secretary of Commerce have ultimate administrative authority for taking action involving marine fisheries.  The Committee suggests that the Departments enter into a formal memorandum of understanding to further delineate this division of responsibility.

Subsection (n) clarifies that the owner of fixed fishing gear, such as a set gillnet attached to the shore which incidentally takes marine mammals, shall be considered a vessel owner for the purposes of this section and thus will be subject to the same requirements and restrictions as any other vessel owner.

Subsection (o) defines terms used in this section.

Finally, the Committee recognizes that due to the extent of commercial fishing operations and the number of marine mammal population stocks off the coast of Alaska, future decisions on how to govern the incidental take of marine mammals in the course of commercial fishing will be especially important in this area.  As a result, the Committee finds that there is an immediate need to expand consultation and cooperation in the conservation of marine mammals off the coast of Alaska.  This area is inhabited by large and internationally significant populations of marine mammals. Effective consultation and coordination can help to ensure that the populations of marine mammals remain healthy and abundunt.  Where there are concerns with some species, planning can address those problems.

The Secretaries of Commerce and Interior should work closely with the State of Alaska and affected user groups, especially Alaskan Natives, to develop effective conservation programs for marine mammals.  These could include assessments of populations and their fluctuations, essential habitat, threats to species and habitat, and research and management needs.

Section 3

Section 3(a) adds a new subsection 115(a) to the MMPA which directs the Secretary in reviewing the status of any population stock of marine mammals to follow a prescribed series of steps designed to ensure early and adequate public notice, comment and participation in the review process.  The purpose of this subsection is to ensure that changes in status designations are efficient, provide for timely input from interested parties-- including the fishing industry and environmental community--and occur in a timely manner.  The Secretary is directed to comply with the requirements of paragraph (2) of this subsection for all status reviews.  The Committee notes that this process is similar but not identical to the process by which species are determined to be threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1533).

Paragraph (2) of this subsection directs the Secretary, prior to the issuance of any proposed rule regarding a status determination, to publish a call for information from concerned parties and academic institutions.  This is to ensure that the Secretary has access to all the best data available on a species early in the status review process before even an initial determination has been made.  The Committee intends the Secretary to utilize, to the extent feasible, informal working groups.  The Committee is aware that the convening of similar groups on an informal basis has been useful in the past in making status determinations and encourages the use of such groups as early as possible in the review process.  The Committee intends that the Secretary issue general invitations to enable all interested parties to the extent practicable, to participate in any such working group and that a record of any working group meeting be made available to the public.

Paragraph (3) of this subsection outlines the procedures the Secretary shall follow upon receipt of a petition to complete the status review as expeditiously as possible.  It further allows the Secretary to expedite the issuance of final rule under this subsection, if it is determined that there is substantial information warranting issuance of such a rule and that delay would post a significant risk to the health of the marine mammal species or population stock.

Section 3(b) directs the Secretary to develop conservation plans for North Pacific fur seals by December 31, 1989, for Steller sea lions by December 31, 1990, and for any depleted species or stocks as soon as possible.  Each plan shall have the purpose of conserving and restoring the species or stock to its optimum sustainable population, shall be modeled on recovery plans required under the Endangered Species Act, and shall be expeditiously implemented and regularly updated.  It is the Committee's intent that conservation plans outline specific, achievable actions to further the purposes of the plan.  The Committee itends that conservation plans not be an assessment of the current situation, but rather provide a clear strategy, including research needs, of the conservation and restoration of the species.

In the event of an unanticipated crisis regarding a species other than North Pacific fur seals or Steller sea lions, the Secretary of Commerce is expected to give priority to preparing a conservation plan for that species after opportunity for public comment.

Section 4

Section 4 adds a number of provisions to the Act for the specific purpose of reducing the morality of porpoise in the course of fishing for yellowfin tuna in the ETP.

Subsection (a) adds additional requirements that the Secretary must consider when making a finding as to whether a foreign nation is taking measures comparable to that of the United States in reducing the take of porpoise.  The Secretary shall not find that a foreign nation is comparable unless it has met the following standards:  it has adopted a regulatory program containing the same prohibitions applicable to U.S. vessels, within 180 days after the United States has imposed such restriction on its vessels; that the average kill rate of its fleet is no more than two times the U.S. rate during the same period of time by the end of 1989 and no more than 1.25 the U.S. rate by the end of 1990; the percentage of eastern spinners and coastal spotted dolphin does not exceed 15 percent and 2 percent respectively of its total number of marine mammals taken in any year; its fishing operations are monitored, to the same degree as U.S.  vessels, by an observer program of the Inter-American Tropical Tuna Commission [IATTC] or an equivalent international program; and it complies with all reasonable requests by the Secretary for cooperation in scientific research.

While the Commission is disappointed that the interim final regulations implementing the 1984 comparability amendments to the Act were just recently issued, it expects that these new amendments will be incorporated into the final regulations immediately. Recognizing that the foreign fleets harvest 60 percent of the yellowfin tuna in the ETP but kill 80 percent of the porpoise, the Committee intends these new requirements to reduce the foreign take of marine mammals, similar to those reductions made by the U.S. fleet.

Subsection (a) also directs the Secretary to initiate embargo proceedings against any intermediary nation wishing to export yellowfin tuna to the United States if the nation does not prohibit, within 60 days of the date the United States has imposed an embargo, the importation of yellowfin tuna into its own country from those nations embargoed by the United States.  The Committee strongly supports this provision in order to prevent embargoed nations from circumventing U.S. restrictions, thus weakening the effectiveness of U.S. law.  If the United States embargoes yellowfin tuna and tuna products from any nation, the Committee expects that all yellowfin tuna products, including canned tuna containing any yellowfin, whether caught in the ETP or not, will be embargoed.  If a third party nation does not embargo the same products, they will not have access to the U.S. market for those products.

Finally, subsection (a) requires the Secretary, within 6 months after any embargo of yellowfin tuna, to certify such fact to the President.  This certification will then allow the President to ban any type of fish and fish product from the embargoed nation, in accordance with the 'Pelly Amendments' to the Fishermen's Protective Act of 1967.

Subsection (b) directs the Secretary, through the Secretary of State, to initiate negotiations with foreign nations, for the purpose of protecting marine mammals.  For those nations whose vessels harvest yellowfin tuna in the ETP, the Secretary is directed to work through the IATTC or similar international organizations, to develop agreements on cooperative research into alternative fishing methods and population studies, limitations on incidental take levels, and the use of best marine mammal safety techniques and equipment for the purpose of reducing mortality.

  Subsection (c) directs theSecretary to include a description of the results of these discussions in the annual MMPA report to Congress.

Subsection (d) amends the conditions under which the extension of the general permit issued to the ATA is granted.  Specifically, the Secretary is directed, by January 1, 1989, to promulgate regulations to ensure that purse seine fishing is completed no later than 30 minutes after sundown, thus preventing the high porpoise mortality associated with sundown sets.  The Committee expects that in implementing this provision, the Secretary may prohibit the net skiff from being deployed at a certain time before sundown in order to ensure that fishing is completed by 30 minutes after sundown. The Secretary may also require the use of certain gear, such as snap rings, to expedite fishing operations, thus minimizing the impact on porpoise.  The Committee has not specifically defined the phrase 'sets of the purse seine net on marine mammals are completed', because it expects the Secretary to do so through the rulemaking process.  However, it is the Committee's intent in banning sundown sets to eliminate those fishing operations which lead to higher than average mortality rates and would expect that the regulations not be based on the average time that it takes to complete a tuna set. Rather, the Committee intends that the back-down procedures would be completed and the net would be close to the seine vessel by 30 minutes after sundown, recognizing that the net may not be totally aboard the vessel.  This would ensure that tuna fishermen have completed those procedures necessary to release porpoise in the net before dark while allowing them to finish taking tuna out of the net.

Subsection (d) also authorizes the Secretary to waive any terms or conditions of the general permit to a specific certificate holder for the purpose of conducting experimental fishing operations.  The Committee anticipates these provisions will be useful in the development of new or alternative fishing gear and techniques.

Subsection (d) also requires the Secretary, before the beginning of the 1990 season, to develop and implement a system of performance standards for certificate holders.  The purpose of this system is to allow the Secretary to identify certificate holders whose incidental rate of marine mammal mortality is consistently and substantially higher than the average rate of the fleet. By identifying these skippers, or in some cases vessels, the Secretary will be able to more effectively use the authority to require training, physical improvements on vessels, or to suspend or revoke certificates.

The Committee is aware of the progress made by the skippers panel established under the ATA general permit.  However, testimony was received that indicated the continuing and substantial differences in mortality rates among various skippers and vessels. The performance standards, which shall include levels and rates of incidental mortality, are intended to assist the Secretary and the industry to narrow these differences.  The terms 'consistently' and 'substantially' are used to make clear that the Committee does not want a skipper who may have an excellent record but subsequently suffers one disaster set to be identified as a poor performer. Rather, by using these terms or standards, the Committee expects the Secretary to identify those skippers or vessels having a continuing and significant incidental mortality rate above the fleet average.

Subsection (d) requires 100 percent observer coverage for all certificated yellowfin tuna vessels through 1991.  After the 1991 fishing season, the Secretary may require a less extensive observer program, so long as it does not prevent the purposes and policies of the Act from being satisfied.

Lastly, this subsection requires the Secretary, in addition to his present responsibility to consult with the Marine Mammal Commission, to convene annual meetings with representatives from the conservation and scientific communities, as well as the tuna industry, to review the results of efforts to reduce porpoise mortality.  Before April 1, 1992, the Secretary is required to submit to the Senate Commerce Committee and the House Merchant Marine and Fishieries Committee a comprehensive report on the results of the research programs, performance standardsk observer programs, prohibition on night fishing and development of alternative fishing techniques and a discussion of whether further reductions of porpoise mortality are economically and technologically feasible.  If porpoise mortality has not been substantially reduced by these efforts, the Secretary is required to recommend specific legislative proposals and other action to accomplish the goals of the Act.

Subsection (e) requires the Secretary, before the beginning of the 1990 fishing season and annually thereafter, to determine the availability of alternative fishing techniques in order to reduce the mortality of porpoise. Based on this determination and consistent with section 104(h)(2)(B), The Secretary is required, before the beginning of the 1990 season and every season thereafter, to modify the terms of the general permit issued to the tuna industry.  In order to meet the goals of the Act, these modifications must include a reduction in the number of marine mammals taken incidental to yellowfin tuna fishing, a reduction in the percentage of sets made on marine mammals, or a requirement to use alternative fishing gear or techniques.  The Committee expects that as a result of these annual modifications, consistent with the other provisions of the Act, further reductions in the mortality of porpoise will be realized and the goals of the Act fulfilled.

Subsection (f) directs the Secretary to request the National Academy of Sciences, though the issuance of a contract, to identify new alternative tuna fishing techniques designed to reduce or eliminate the incidental mortality of porpoise and, within one year, submit a research, development, and implementation plan of alternative fishing techniques to the Congress.  Also, the Academy is directed to include in the report a review of the most recent data on porpoise populations, trends, and abundances.

Section 5

Subsection (a) amends section 109(h) of the MMPA to allow the importation of marine mammals into the United States for the purpose of providing medical treatment not otherwise available to them in the country of export.  It also requires that marine mammals imported under such circumstances be returned to their natural habitat in those cases in which it is feasible.  In determining whether it is feasible to return an animal to the wild, the Secretary shall consult with the attending veterinarian and curatorial staff of the institutions providing the medical treatment.  He shall also consider the likelihood of whether the animal will successfully readapt to life in the wild and the possibility that the animal may transmit a contagious disease to animals in the wild.

Subsection (b) amends section 102(b) of the MMPA by creating an exemption to the prohibition against the importation of marine mammals that were pregnant or nursing at the time of taking, or that are less than eight months old, if the importation is necessary for the protection or welfare of the animal.  This waiver would permit the importation of animals which have been orphaned and could not survive in the wild or immature animals which are sick or wounded if the Secretary determines that the importation is necessary for the protection or welfare of the animal.

Currently, under the MMPA, such marine mammals cannot be improted even if the alternative is the death of the animal.  In some instances, an adult animal of the same species could be imported for public display.  This anomaly has recently been demonstrated in the case of orphaned polar bear cubs from Canada. Canadian officials have found it necessary to remove nuisance adult polar bears which represent a threat to public safety.  In some instances, the lethal removal of a female bear results in a cub being orphaned, and Canada does not have adequate facilities for the permanent care of captured bears and cubs. This amendment would allow importation of these marine mammals if all other conditions for a public display permit are met.

A permit would not be issued in instances which are inconsistent with the purposes of the MMPA.  Furthermore, all importations of marine mammals, including those pursuant to this section, are subject to the requirements of the Lacey Act and other applicable law regarding humane and healthful transport of wild mammals and birds.

Subsection (c) amends section 101(a) of the MMPA by authorizing the instance of permits for taking and importing marine mammals for purposes of enhancing the survival or recovery of a species or stock.

Subsection (d), in general, amends section 104(c) of the MMPA by modifying the requirements for the issuance of public display and scientific research permits and by establishing requirements for the issuance of permits for enhancing the survival or recovery of a species or stock.

Subsection (d)(2) provides that to be eligible for a public display permit, an applicant must offer a program which includes education or conservation as a component of such program.  It is clear, however, that education or conservation need not be the sole component of a qualifying program.  In addition, this paragraph requires that the Secretary determine that the program is based on professionally recognized standards of the public display community for it to be acceptable, and that the applicant's facilities be open to the public on a regularly scheduled basis.  This new requirement will be applicable only to permits issued or modified after the date or enactment of this provision.

Education is an important tool that can be used to teach the public that marine mammals are resources of great aesthetic, recreational and economic significance, as well as an important part of the marine ecosystem.  It is important, therefore, that public display permits be issued to entities that help inform the public about marine mammals, as well as perform other functions. However, it is the intent of the Committee that the Secretary not use this section to regulate the content of education or conservation programs.

Public display programs should be based on professionally recognized standards of the Public display community.  Such standards include, but are not limited to those of the American Association of Zoological Parks and Aquariums [AAZPA].  AAZPA accredited facilities are permanent institutons which own and maintain captive wild animals that represent more than a token collection, are under the direction of a professional staff, provide its collection with appropriate care, and exhibit them in an esthetic manner to the public on a regularly scheduled basis for the purposes of education, conservation, scientific studies and recreation.  Standards which approximate those of the AAZPA, or which the Secretary otherwise finds acceptable, meet the requirements of this section.

An applicant's facilities must also be open to the public on a regularly scheduled basis.  This is intended to mean regular and predictable hours so that access is reasonably convenient to the public.  A seasonal facility open to the public on a regularly scheduled basis during its open season will meet this requirement.

Permits may continue to be issued to public and privately owned zoological parks and oceanariums, as well as other qualifying institutions. Further, it is clear that appropriate enterprises include both profit and nonprofit institutions.

Finally, subsection (d)(3) provides that permis for scientific research may be issued only to an applicant conducting research to further a bona fide scientific purpose that does not involve unnecessary duplication.  The National Marine Fisheries Service regulations already use the terms 'bona fide' as one of the criteria to be considered before issuing a scientific research permit (50 CFR 2167.31(a)).  The addition of this language is not intended to substantively change the criteria for granting scientific permits and is merely codifying the regulations.  The Committee expects the Secretary of the Interior to use a similar standard when promulgating his regulations under this section.

Research permits may not be issued for unnecessary duplication of research.  This is to ensure that permits are not issued for numerous requests for takings of marine mammals if the research is not expected to enhance the body of scientific knowledge. Unnecessary duplication is not synonymous with replication.  The repetition of an experiment or procedure to test the results of the research is recognized as crucial to science.

In the case of scientific research that would involve the killing of marine mammals, permits may only be issued if it is determined that the research cannot reasonably be done using alternative, nonlethal techniques.  Further, in the case of lehal research involving depleted marine mammals, the research must either fulfill a criticallty important research need or directly benefit the effected species or population stock.

Subsection (d)(4) provides that the Secretary may issue a permit for enhancing the survival or recovery of a species or stock only if he determines that the taking or importation is likely to contribute significantly to the survivial of the species and is consistent with any applicable conservation or recovery plan.  If no recovery or conservation plan exists, the Secretary is required to evaluate the proposal on the basis of the factors that would be addressed in such plan.

The amendment allows for captive maintenance of depleted species, if the Secretary first makes a number of determinations. Also, the Secretary may allow the public display of such marine mammals only if he determines that the display is incidental to the authorized maintenance and will not interfere with the attainment of the survival or recovery objectives.

Section 6

Section 6 authorizes appropriations to the Department of Commerce, the Department of the Interior, and the Marine Mammal Commission to carry out their responsibilities under this Act, other than the Secretary of Commerce's responsibility to provide observer coverage for commercial fishing vessels, through fiscal year 1993.

Section 7

Section 7 requires the Secretary of Commerce to conduct a study on the effects of seal control devices (so-called 'seal bombs') and other explosive devices used in the course of commercial yellowfin tuna fishing.  The study should determine whether the use of such devices during yellowfin tuna fishing operations causes damage to the auditory system of porpoise or cause mortality.  The study should also look at alternatives to these devices, including different fishing techniques, if it is determined that they cause harm or increase mortality.  The results of the study must be transmitted to the House andthe Senate no later than 2 years after date of enactment of this Act.  The Committee notes that the requirement for conducting this study does not absolve the Secretary of any other requirements imposed on him under the MMPA.

Section 8

Section 8 requires the Secretary of Commerce to conduct a study regarding the die-off of east coast Atlantic bottlenosed dolphins which occurred in 1987 and 1988.  A plan for conducting the study must be submitted to the House and the Senate before January 1, 1989, and the final report on the study must be submitted before January 1, 1990. The Committee notes that the Secretary has already begun preparations for such a study and does not intend this section to disrupt or unduly modify existing study plans.

INFLATIONARY IMPACT STATEMENT

Pursuant to Clause 2(l)(4) of Rule XI of the Rules of the House of Representatives, the Committee estimates that the enactment of H.R. 4189 would have no significant inflationary impact upon prices and costs in the operation of the national economy.

COST OF THE LEGISLATION

Clause 7(a) of Rule XIII of the Rules of the House of Representatives requires a statement of the estimated costs to the United States that would be incurred in carrying out H.R. 4189 in fiscal year 1989 and each of the following four years.  However, under paragraph (d) of Clause (7), the provisions of Clause 7(a) do not apply when the Committee has received a timely report from the Congressional Budget Office.

COMPLIANCE WITH HOUSE RULE XI

 (A)  Hearings were held on the subject of this legislation on May 10 and September 8, 1988.

(B)  The requirements of section 308(a) of the Congressional Budget Act of 1974 are not applicable to this legislation since it does not provide new budget authority or new or increased tax expenditures.

(C)  The Committee has received no report from the Committee on Government Operations of oversight findings and recommendations arrived at under Clause 4(c)(2) of Rule X of the Rules of the House of Representatives.

(D)  The Director of the Congressional Budget Office has furnished the Committee with an estimate and comparison of costs for H.R. 4189 pursuant to section 403 of the Congressional Budget Act of 1974.  The submission is as follows:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

 Washington, DC, September 23, 1988.

Hon. WALTER B. JONES,

Chairman, Committee on Merchant Marine and Fisheries, U.S. House of

Representatives, Washington, DC.

DEAR MR. CHAIRMAN:  The Congressional Budget Office has prepared the attached cost estimate for H.R. 4189, the Marine Mammal Protection Act Amendments of 1988.

If you wish further details on this estimate, we will be pleased to provide them.

Sincerely,

JAMES L. BLUM,

Acting Director.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

Bill number:  H.R. 4189.

2.  Bill title:  The Marine Mammal Protection Act Amendments of 1988.

3.  Bill status:  As ordered reported by the House Committee on Merchant Marine and Fisheries, September 15, 1988.

4.  Bill purpose:  H.R. 4189 would amend and reauthorize programs under the Marine Mammal Protection Act [MMPA].  Section 2 of the bill would authorize the Secretary of Commerce to grant exemptions to commercial fisheries for the incidental taking of marine mammals; the Secretary would be authorized to charge fees covering the administrative costs of granting these excemptions. Section 2 would also authorize appropriations of $2.7 million for fiscal year 1989, and $8 million for fiscal years 1990, 1991, and 1992 for a fishing vessel observe program.

Other sections of H.R. 4189 would establish procedures for rulemakings related to the conservation of marine mammals and would require the preparation of several conservation plans and studies. To fund these activities and others under the MMPA, the bill would authorize appropriations to the Department of Commerce, the Department of the Interior, and the Marine Mammal Commission.

5.  Estimated cost to the Federal Government

[By fiscal year, in millions of dollars]      

---------------------------------------------------

                       1989  1990  1991  1992  1993

---------------------------------------------------

Authorization level .. 19.1  25.0  25.7  26.4  27.1

Estimated outlays .... 13.3  21.7  24.3  25.6  26.4

---------------------------------------------------

The costs of this bill fall within budget function 300.

Basis of Estimate

This estimate assumes that the full amounts authorized would be appropriated for each fiscal year.  The estimated outlays are based on historical spending patterns.

Based on information providecd by the National Oceanic and Atmospheric Administration [NOAA], CBO estimates that the exemption process required by Section 2 would cost about $1 million a year. Fees authorized by the bill would cover these costs, and these activities therefore would have no net effect on the Federal budget.

6.  Estimated cost to State and local governments:  None.

7.  Estimate comparison:  None.

8.  Previous CBO estimate:  None.

9.  Estimate prepared by:  Michael Sieverts.

10.  Estimate approved by:  C.C. Nuckols (for James L. Blum, Assistant Director for Budget Analysis).

DEPARTMENTAL REPORTS

The following report was received from the Department of Commerce on this legislation:

U.S. DEPARTMENT OF COMMERCE,

Washington, DC, September 13, 1988.

Hon. GERRY E. STUDDS,

Chairman, Subcommittee on Fisheries and Wildlife Conservation and The

Environment, Committee on Merchant Marine and Fisheries, House of

Representatives, Washington, DC.

DEAR MR. CHAIRMAN:  Your staff has provided a copy of a working draft of an amendment in the nature of a substitute to H.R. 4189. This September 12, 1988, draft would amend the Marine Mammal Protection Act (MMPA) to overcome the rigid construction of that act adopted by the Court of Appeals for the District of Columbia Circuit in Kokechik Fishermen's Association v. Secretary of Commerce, 839 F.2d 795, (February 16, 1988).  On September 8, 1988, the Solicitor General on behalf of the Secretary of Commerce asked the Supreme Court to review the Kokechik decision.

We are pleased that a bill is being considered that would provide an exemption from the MMPA for commercial fishermen in order to allow the Department of Commerce to gather important information on interactions between marine mammals and commercial fisheries. Nonetheless, we have the following concerns:

FOREIGN FISHING

The Secretary of Commerce has taken the position that foreign and domestic fishermen should be treated equally under the MMPA. While we are pleased to see that this draft would authorize incidental takings of marine mammals by foreign fishermen fishing under the Magnuson Act, it would not allow incidental takings of marine mammals by foreign fishermen fishing under a treaty.  We strongly urge that the coverage of the exemption be broadened to cover all fishermen legally fishing in the U.S. EEZ.  Protection of marine mammals does not require otherwise.

Failing to provide coverage for foreign fishermen fishing under a treaty would immediately jeopardize the U.S.-Japan fisheries relationship.  The Japanese view the unavailability of a marine mammal incidental take permit for the salmon mothership fleet as a serious below to the 35-year-old. International North Pacific Fisheries Commission treaty regime.  The exclusion of Japan from an exemption available to other foreign fishermen is unfounded from a conservation standpoint; it would also open the United States to charges of discrimination that could have profound foreign policy implications. It would raise serious questions within the Japanese Government about the fairness and reliability of the United States as a partner in cooperative undertakings. This in turn would adversely affect bilateral and multiateral cooperation on other issues that the two sides are seeking to address.  In such a climate, we do not believe it would be possible to make any progress in negotiations on Pacific squid driftnet issues.  It would also be difficult to elicit Japanese cooperation on a broad range of other issues ranging from the conservation of whales to enforcing management regimes in the North Pacific and Bering Sea.  In addition, the potential for conflict over fisheries trade and economic cooperation in other areas would be greatly exacerbated.

STATUS OF FISHERMEN BEFORE EXEMPTIONS ARE GRANTED

The draft bill does not seem to exempt fishermen from section 102 prohibitions against taking of marine mammals in the interim between the enactment of the bill and the issuance of an exemption. If Congress intends for such an exemption to exist, it should be specifically stated.  Otherwise, the Department of Commerce will have no choice but to commence enforcement proceedings against domestic fishermen after their current permits expire at the end of this year and to deny foreign fishermen access to surplus fishery stocks that would be available early next year.

REGISTRATION AND EXEMPTIONS

Instead of the proposed system, we suggest a statutory exemption for all fishermen and a requirement for those in the 'frequent incidental taking' category to carry an observe when required by the Secretary, combined with a program to notify fishermen of the law. We believe that the requirement to apply for an exemption and receive a decal is an unnecessary administrative burden for the government and an unnecessary paperwork burden for the fishermen that would not contribute to the protection of marine mammals.  In this era of tight budgets and Congressional and Administration efforts to reduce Federal paperwork burdens, the process set out in the draft bill would waste Federal funds, burden the fishermen and provide little actual benefits in terms of marine mammal protection.

REPORTING

The experience within the Department of Commerce is that marine mammal reports from fishermen are not accurate and are not useful. The requirement that all fishermen must report marine mammal interactions would generate a major paperwork burden for this Department and for the fishermen without much, if any, corresponding benefit.  An alternative proposal that has been used successfully in certain fisheries is to authorize the Secretary to require selected fishermen to report in certain circumstances.  That way we could design specific programs that could produce useful information at a reasonable cost.

OBSERVERS

The draft language bars an observe from bringing suit against the vessel or vessel owner for injuries or death resulting from the negligence of the vessel owner.  It would thus limit the observer or his representative to seeking compensation from other sources or under other laws that may be inadequate or non-existent.  This would diminish the incentive for the vessel owner to ensure the safety of the observer and may discourage qualified biologists from applying for these jobs. The draft language also is unclear as to the right of the observer's employer to seek indemnification, which may limit the likelihood that other employers will assume the liability for injuries to observers.

The Department of Commerce strongly believes that an observer should be able to sue a vessel owner for negligence that results in death or injury to ensure his own protection in a very dangerous industry.  We understand, however, that vessel owners are concerned about the heightened liability that they have for 'seamen' on their vessels.  We suggest that a reasonable alternative to a complete bar on an observer's right to sue a vessel owner is to limit an observer's rights to general maritime negligence actions.  This could be done by stating that an observer is not a 'seaman' under the Jones Act and other provisions of maritime law.

We note that language on page 10, lines 4 and 5, of the draft bill directs the Secretary to allocates observers in order to achieve the 'best scientific information.'  This would impose more of a burden on the government and the fishermen than is necessary. We suggest that it be rewritten to refer to 'reliable scientific information.'

ENFORCEMENT

We note that failure to report or failure to take an abserver does not subject that owner of an exempted vessel to the penalties of the Act.  Instead, the draft bill provides for suspension of an exemption or non-issuance of a decal until the owner complies.  This process could occur fairly automatically for failure to report at the end of the season or year, without invocation of our civil procedures for permit sanctions (15 C.F.R. 904, Subpart D).  A new decal simply would not be issued until a report was received.  For refusal to take an observer, however, factual issues may arise such that an automatic suspension of the exemption would deny a fisherman's due process rights. Following the procedures under 15 C.F.R. Part 904 would take months before a decal could be suspended or denied.  We therefore recommend adding failure to take an observer to the list of violations for which civil penalties would be available.

MITIGATING REGULATIONS

The draft bill would allow the Secretary to impose additional regulations if necessary to protect marine mammals.  We assume that this would include the authority to close a fishery if necessary to protect marine mammals and the authority to promulgate regulations to allocate equitably the take of Steller sea lions and northern fur seals so that a fishery occurring early in the year that took a disproportionate number of these manmals would not cause extreme restrictions on a later-occurring fishery.

INTERMEDIARY NATIONS

We oppose the new subparagraph 101(a)(2)(C), that would require third countries to embargo tuna imports from countries embargoed by the United States, because it is too broad and would be counterproductive. We think that many countries would not comply with it and would also lose their incentive to comply with other portions of the Act.  We suggest as an alternative the following, less burdensome, approach:

(C)  shall require the government of any intermediary nation from which yellowfin tuna or yellowfin tuna products will be exported to the United States to certify and provide reasonable proof that the yellowfin tuna or yellowfin tuna products were not harvested by a nation under embargo at the time offered for importation into the United States, nor harvested by a nation while it was under embargo.

OBSERVERS ON TUNA VESSELS

We oppose the requirement that domestic tuna purse seine vessels carry an observer on every fishing trip from 1989 through 1991. This is not necessary for obtaining reliable mortality estimates, and is too expensive.

Time has not permitted the reviewand coordination of this report with other concerned agencies and our views represent only this Department's position.

Sincerely,

LINDA A. TOWNSEND

(For Robert H. Brumley, General Counsel).