MARINE MAMMAL PROTECTION ACT

IMPROVEMENT

MONDAY, JULY 13, 1981

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FISHERIES AND WILDLIFE

CONSERVATION AND THE ENVIRONMENT,

COMMITTEE ON MERCHANT MARINE AND FISHERIES,

Washington, D.C. The subcommittee met at 10:10 a.m., in room 1334, Rayburn House Office Building, Hon. John B. Breaux (chairman of the subcommittee) presiding.

Present: Representatives Breaux, Sunia, Patman, Lowry, Oberstar, Forsythe, and Young.

Also present: G. Wayne Smith, Jeff Curtis, Tim Smith, George Mannina, Barbara Wyman, Charles Ziegler, and Gerald Fitzgerald. Mr. BREAUX. The subcommittee will please come to order.

The hearing this morning will be our second on the Marine Mammal Protection Act of 1972. During the first hearing, held on April 7, the subcommittee heard from a number of witnesses representing various groups concerned with the act. At this hearing, it was made clear that there are a number of problems with the current law which make it difficult to enforce, susceptible to litigation and often actually hinder efforts to properly conserve and protect marine mammals.

It was my belief then that the best way to address those problems was to report out a bill with a 1-year authorization for appropriations to encourage all those concerned with the act to work out solutions to the problems.

I am pleased to report that we have come a long way toward a bill that represents a consensus on the issues. On one of the major issues, the problems involved in regulating the incidental take of porpoises in tuna-fishing operations, representatives of the environmental community and the tuna industry have agreed to language that will maintain the strong measures in the act that protect porpoises while at the same time reducing the possibility for litigation which could devastate the tuna fishing.

With regard to the other major issue in the act, the return of management to those States having resident population of marine mammals and who wish to resume management, I believe that we have a conceptual consensus on the major points.

The legislation I am introducing will simplify the return of management procedure and place the administrative procedures required to allow the harvest of marine mammals at the State level. This will put the management decisions involving resident marine mammals where they should be-in the hands of the State. Most of

the concepts involved in these provisions have been accepted by representatives of the State of Alaska, the environmental community and the Alaska Native Federation.

In addition to these major issues, I have tried to address a number of other problems with the act that have become apparent over the years. Some of the changes we have proposed are not without controversy, but I believe that they will improve the management of the act.

One of the problems I have tried to address involves the importation of fur seal skins from South Africa. At present, the importation of these skins is prohibited because the animals are taken during a harvest period when some of the seals are under 8 months of age. In addition, some of the seals are still nursing periodically, although they are capable of foraging.

The provision that prevents their importation, an absolute ban on the importation of nursing marine mammals or those taken under the age of 8 months, was put in the act to prevent the importation of harp seal skins from Canada, the baby seals that are killed at a very young age before their fur turns from white to grey. The importation of these skins would still be prohibited. My amendment would lower the age limit for taking from 8 months to 6 months and change the nursing language to ban importation of those animals which were dependent on nursing at the time of taking.

What my amendment would not do is just as significant. It would still have to be shown that the fur seal was at its optimum sustainable population, that the harvest was humane and that the program in the country of origin was consistent with the provisions of this act. All of these findings would be subject to the arduous review of an administrative law judge hearing based on the record developed at this hearing. In spite of the limited nature of my amendment, however, I realize that it will be controversial and that it is not part of the consensus formed on other issues.

Before we start the hearings, I would like to personally thank the people who have been working on this issue with us. As we all know, compromise, while necessary, is often painful and is always second-guessed by those watching. I appreciate that it takes courage to get into situations requiring compromise and I commend them for it, the work that they have done to try and present a consensus of opinion on a very complicated and of course many times very emotional issue. With that, I would recognize Mr. Forsythe for any comments he might have.

Mr. FORSYTHE. Thank you, Mr. Chairman. I commend you for your leadership in this matter. As you know, we have been trying to reach a consensus on the major issues concerning this legislation, and I want to compliment all of those who have been involved in the many lengthy discussions and negotiating sessions. I believe this effort has resulted from our interest in trying to reach an accommodation prior to the next session of Congress, when other important matters will be before us.

I hope that this hearing will help to consolidate the views we have incorporated in the legislation before us, and that we can move forward to mark up the bill.

Mr. BREAUX. I thank the gentleman.

[The bill follows:]

[H.R. 4084, 97th Cong., 2d sess.]

A BILL To improve the operation of the Marine Mammal Protection Act of 1972, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. Optimum Sustainable Population

(a) BASIC AMENDMENT.-Paragraph (8) of section 3 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1362(8)) (which Act shall hereafter in this Act be referred to as the "Act of 1972") is repealed.

(b) CONFORMING AMENDMENTS.-(1) Section 2(6) of the Act of 1972 (16 U.S.C. 1361(6)) is amended by striking out "optimum carrying capacity" and inserting in lieu thereof "carrying capacity".

(2) Section 3 of the Act of 1972 (16 U.S.C. 1362) is further amended

(A) by amending paragraph (1) to read as follows:

"(1) The term 'depletion' or 'depleted' means any case in which—

"(A) the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under title II of this Act, determines that a species or population stock is below its optimum sustainable population;

"(B) a State, to which authority for the conservation and management of a species or population stock is transferred under section 109, determines that such species or stock is below its optimum sustainable population; or

"(C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973.";

(B) by striking out "the optimum carrying capacity of their habitat" in paragraph (2) and inserting in lieu thereof "their optimum sustainable population'

(C) by redesignating paragraphs (9) and (15) as paragraphs (8) and (14), respectively; and

(D) by striking out "optimum carrying capacity" in paragraph (8) (as so redesignated) and inserting in lieu thereof "carrying capacity".

Sec. 2 Moratorium on Taking and Importing Marine Mammals
Section 101 of the Act of 1972 (16 U.S.C. 1371) is amended-
(1) by amending subsection (a)--

(A) by striking out the first four sentences of paragraph (2) and inserting in lieu thereof the following: “(2) Marine mammals may be taken incidentally in the course of commerical fishing operations and permits may be issued therefor under section 104 subject to regulations prescribed by the Secretary in accordance with section 103. In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commerical fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate: Provided, That this goal shall be satisfied in the case of the incidental taking of marine mammals in the course of purse seine fishing for yellowfin tuna by a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable.",

(B) by striking out "is classified as belonging to an endangered species pursuant to the Endangered Species Act of 1973 or" in paragraph (3)(B), and

(C) by adding at the end thereof the following new paragraph:

"(4) Permits may be issued by the Secretary for the taking of small numbers of marine mammals of species or population stocks that are not depleted. Such permits, which shall not be subject to section 104, shall require the permittees to comply with such reporting requirements regarding the taking as are deemed necessary by the Secretary."; and

(2) by amending subsection (b)

(A) by inserting "who resides in Alaska and" immediately after "Eskimo" in the matter preceding paragraph (1),

(B) by amending paragraph (1) to read as follows:

"(1) is for subsistence purposes; or",

(C) by striking out the period at the end of paragraph (3) and inserting in lieu thereof "; and",

(D) by adding immediately after paragraph (3) the following new paragraph:

"(4) complies with such marking, tagging, and reporting requirements as the Secretary may impose in order to achieve adequate monitoring of the species or population stock concerned.".

Sec. 3. Prohibitions and Penalties

(a) PROHIBITIONS.-(1) Section 102(a) of the Act of 1972 (16 U.S.C. 1372(a)) is amended

(A) by inserting "109," immediately after "104," in the matter preceding paragraph (1);

(B) by redesignating paragraph (4) as paragraph (5); and

(C) by striking out paragraph (3) and inserting in lieu thereof the following: "(3) for any person, with respect to any marine mammal taken in violation of this title, to possess that mammal or any product from that mammal;

"(4) for any person to transport, sell, or offer for sale, any marine mammal or marine mammal product; and".

(2) Section 102(b) of such Act is amended

(A) by amending paragraph (2) to read as follows:

"(2) dependent on nursing at the time of taking, or less than six months old, whichever occurs later;", and

(B) by striking out "or which has been listed as endangered under the Endangered Species Act of 1973" in paragraph (3).

(3) Section 102(d)(1) of such Act is amended by striking out "or endangered". (b) PENALTIES.-Section 105(a) of the Act of 1972 (16 U.S.C. 1375(a)) is amended by inserting "(1)" immediately after "(a)" and by inserting at the end thereof the following new paragraph:

"(2) In any case involving an alleged unlawful importation of a marine mammal or marine mammal product, if such importation is made by an individual for his own personal or family use (which does not include importation as an accommodation to others or for sale or other commercial use), the Secretary may, in lieu of instituting a proceeding under paragraph (1), allow the individual to abandon the mammal or product, under procedures to be prescribed by the Secretary, to the enforcement officer at the port of entry.".

Sec. 4. Statement Management

Section 109 of the Act of 1972 (16 U.S.C. 1379) is amended

(1) by redesignating subsections (c) and (d) as subsection (i) and (j), respectively; and

(2) by striking out subsections (a) and (b) and inserting in lieu thereof the following:

"SEC. 109. (a) No State may enforce, or attempt to enforce, any State law or regulation relating to the taking of any species (which term for purposes of this section includes any population stock) of marine mammal within the State unless the Secretary has transferred authority for the conservation and management of that species (hereinafter referred to in this section as 'management authority') to the State under subsection (b)(1).

"(b)(1) Subject to paragraph (2) and subsection (e), the Secretary_shall_transfer management authority for a species of marine mammal to a State if the Secretary finds that the State has developed and will implement a program for the conservation and management of the species that

"(A) is consistent with the purposes, policies, and goals of this Act and with international treaty obligations;

"(B) requires that all taking of the species be humane;

"(C) does not permit the taking of the species unless and until the State has determined, under a process consistent with the standards set forth in subsection (c)

"(1) that the species is at its optimum sustainable population (hereinafter in this section referred to as 'OSP'), and

"(ii) the maximum number of animals of that species that may be taken without reducing the species below its OSP or, in the case of taking for subsistence uses in the State of Alaska, the maximum number of animals of that species that may be taken consistent with the maintenance of the species at its OSP;

"(D) does not permit the State to regulate the taking of the species for scientific research and public display purposes, except for takings for such purposes that are undertaken by, or on behalf of, the State;

"(E) provides procedures for acquiring data, and evaluating such data and other new evidence, relating to the OSP of the species, and the maximum take

that would maintain the species at that level, and, if required on the basis of such evaluation, for amending determinations under subparagraph (C); and

"(F) provides for the submission of an annual report to the Secretary regarding the administration of the program during the reporting period.

"(2) During the period between the transfer of management authority for a species to a State under paragraph (1) and the time at which a determination required under paragraph (1)(Č) regarding the species is final and implemented under State law

"(A) the State program shall not apply with respect to the taking of the species within the State for any purpose, or under any condition, provided for under section 101; and

"(B) the Secretary shall continue to regulate, under this title, all such takings of the species within the State.

After a determination required under paragraph (1)(C) regarding the species is final and implemented under State law, the Secretary shall regulate the taking of the species for scientific research or public display purposes (other than by, or on behalf of, the State) without regard to this section; except that no permit issued pursuant to section 101(a)(1) allowing the removal of a live animal from habitat within the State shall be effective if the State agency disapproves such taking as being inconsistent with the State program.

"(c) The State process required under subsection (b)(1)(C) must comply with the following standards:

"(1) The State agency with management authority for the species (hereinafter in this section referred to as 'State agency') must make an initial determination regarding the factors described in clauses (i) and (ii) of that subsection. The State agency must identify, and make available to the public under reasonable circumstances, the documentation supporting such initial determination.

"(2) The State agency shall provide opportunity, at the request of any interested party, for a hearing with respect to the initial determination by it under paragraph (1) at which interested parties may

"(A) present oral and written evidence in support of or against such determination; and

“(B) cross-examine persons presenting evidence at the hearing.

The State agency must give public notice of the hearing and make available to the public within a reasonable time before commencing the hearing a list of the documentation and other evidence that will be relied upon by such witnesses.

"(3) The State agency, on the basis of the record developed at a hearing held pursuant to paragraph (2), must make a decision regarding its initial determination under paragraph (1) and shall include with the record a statement of the findings and conclusions, and the reason or basis therefor, on all material issues.

"(4) Before a decision made by the State agency on the record under paragraph (3) is treated as final under State law, judicial review of the decision, under scope of review equivalent to that provided for in section 706(2) (A) through (E) of title 5, United States Code, must be available under State law. The Secretary may not initiate judicial review of any such decision. "(d)(1) Subject to paragraph (2), the Secretary shall revoke, after opportunity for a hearing, any transfer of management authority made to a State under subsection (b)(1) if the Secretary finds that the State program for the conservation and management of the species concerned is not being implemented, or is being implemented in a manner inconsistent with the provisions of this section or the provisions of the program. The Secretary shall also establish a procedure for the voluntary return by a State to the Secretary of species management authority that was previously transferred to the State under subsection (b)(1).

"(2)(A) The Secretary may not revoke a transfer of management authority under paragraph (1) unless

"(i) the Secretary provides to the State a written notice of intent to revoke together with a statement, in detail, of those actions, or failures to act, on which such intent is based; and

"(ii) during the ninety-day period after the date of the notice of intent to revoke

"(I) the Secretary provides opportunity for consultation between him and the State concerning such State actions or failures to act and the remedial measures that should be taken by the State, and

"(II) the State does not take such remedial measures as are necessary, in the judgment of the Secretary, to bring its conservation and management program, or the administration or enforcement of the program, into compliance with the provisions of this section.