trends; feeding habits; location of the interaction; time of occurrence of the interaction; the number of pinnipeds involved; past efforts to deter nonlethally the pinniped or pinnipeds; a demonstration that all reasonable nonlethal steps have been taken with no success; the extent of harm, impact, or imbalance with other species in the ecosystem; and the extent of behavior that presents an ongoing threat to public safety. No species that is listed as threatened or endangered under the ESA or as critical under new section 117 of the MMPA would be approved for lethal removal.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing Rules of the Senate, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new material is printed italic, existing law in which no change is proposed is shown in roman):

MARINE MAMMAL PROTECTION ACT OF 1972

Section 3 of That Act

DEFINITIONS

SEC. 3. For the purposes of this Act

(1) through (14) * * *

(15) The term "waters under the jurisdiction of the United States" means

(A) the territorial sea of the United States;

(B) the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaward boundary of each coastal State, and the outer boundary in a line drawn in such a manner that each point on it is 20 nautical miles from the baseline from which the territorial sea is measured; and

(C) the areas referred to as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990; in particular, those areas east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles of the baselines from which the breadth of the territorial sea of Russia is measured but beyond 200 nautical miles of the baselines from which the breadth of the territorial sea of the United States is measured.

[(15)] (16) The term "fishery" means

(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and (B) any fishing for such stocks.

[(16)] (17) The term "competent regional organization"

(A) for the tuna fishery in the eastern tropical Pacific Ocean, means the Inter-American Tropical Tuna Commission; and

(B) in any other case, means an organization consisting of those nations participating in a tuna fishery, the purpose of which is the conservation and management of that fishery and the management of issues relating to that fishery.

[(17)] (18) The term "intermediary nation" means a nation that exports yellowfin tuna or yellowfin tuna products to the United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to section 101(a)(2)(B). If such nation certifies and provides reasonable proof to the Secretary that is has not imported, within the preceding six months, any yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation to the United States pursuant to this section, the Secretary shall, as soon as practicable after receiving complete information regarding certification and proof, make an affirmative finding that such nation does not constitute an intermediary nation for purposes of this section.

Section 101 of That Act

MORATORIUM AND EXCEPTIONS

SEC. 101. (a) There shall be a moratorium on the taking and importation of marine mammals and marine mammals products, commencing on the effective date of this Act, during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following cases:

(1) through (3) ** **

[(4)(A) During any period of five consecutive years, the Secretary shall allow the incidental, but not the intentional, taking, by citizens of the United States while engaging in commercial fishing operations, of small numbers of marine mammals of a species or population stock that is not depleted if the Secretary, after notice and opportunity for public comment

[(i) finds that the total of such taking during such fiveyear period will have a negligible impact on such species or stock; and

[(ii) provides guidelines pertaining to the establishment of a cooperative system among the fishermen involved for the monitoring of such taking.

[(B) The Secretary shall withdraw, or suspend for a time certain, the permission to take marine mammals under subparagraph (A) if the Secretary finds, after notice and opportunity for public comment, that

[(i) the taking allowed under subparagraph (A) is having more than a negligible impact on the species or stock concerned; or

[(ii) the policies, purposes and goals of this Act would be better served through the application of this title without regard to this subsection.

Sections 103 and 104 shall not apply to the taking of marine mammals under the authority of this paragraph.]

(4)(A) The Secretary may allow the incidental, but not the intentional, taking, by citizens of the United States while engag ing in commercial fishing operations, of marine mammals from a species or stock designated under this Act as depleted because of its listing as an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) if the Secretary, after notice and opportunity for public comment, determines that such taking is pursuant to a statement issued by the Secretary for such taking under section 7 of such Act (16 U.S.C. 1536).

(B) Sections 103 and 104 shall not apply to the taking of marine mammals under the authority of this paragraph.

(5)***

(b) through (c) ***

(d)(1) Except as provided in paragraph (2), the provisions of this Act shall not apply to the use by any person of measures to deter marine mammals from

(A) damaging the gear or catch of commercial or recreational fishermen;

(B) damaging private or public property; or

(C) endangering personal safety, so long as such measures do not result in marine mammal death or serious injury.

(2) If the Secretary determines, using the best scientific information available, that certain forms of deterrence have a significant adverse effect on marine mammals, the Secretary may prohibit such deterrent methods through regulation under this Act.

(3) The authority to deter marine mammals pursuant to paragraph (1) applies to all marine mammals, including all stocks designated as depleted under this Act.

Section 102 of That Act

PROHIBITIONS

SEC. 102. (a) Except as provided in sections 101, 103, 104, 109, 111, 113, [and 114 of this title or title III] 114, and 117 of this title and title IV, it is

(1) through (5)***

(b) through (f) * * *

Section 105 of That Act

PENALTIES

SEC. 105. (a)(1) Any person who violates any provision of this title or of any permit or regulation issued thereunder (except as provided in section 117(j)) may be assessed a civil penalty by the Secretary of not more than $10,000 for each such violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing with respect to such violation. Each unlawful taking or importation shall be a separate offense. Any such civil penalty may be remitted or mitigated by the Secretary for good cause shown. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts

business to collect the penalty and such court shall have jurisdiction to hear and decide any such action.

(2) * * *

(b) Any person who knowingly violates any provision of this title or of any permit or regulation issued thereunder (except as provided in section 117(j)) shall, upon conviction, be fined not more than $20,000 for each such violation, or imprisoned for not more than one year, or both.

Section 114 of That Act

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

SEC. 114. (a)(1) During the period beginning on the date of enactment of this section and [ending April 1, 1994,] until superseded by regulations prescribed under section 117, except as provided in paragraph (2), the provisions of this section, rather than sections 101, 103, and 104, shall govern the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States and vessels which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)). In any event it shall be the immediate goal that the incidental kill or serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.

(2) ***

(b) through (0) ***

Section 115 of That Act

STATUS REVIEW; CONSERVATION PLANS

SEC. 115. (a) ***

(b)(1) The Secretary shall prepare conservation plans(A) by December 31, 1989, for North Pacific fur seals; (B) by December 31, 1990, for Steller sea lions; and (C) as soon as possible, for any species or stock designated as depleted under this title, except that a conservation plan need not be prepared if the Secretary determines that it will not promote the conservation of the species or stock.

(2) Each plan shall have the purpose of conserving and restoring the species or stock to its optimum sustainable population. The Secretary shall model such plans on recovery plans required under section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)).

(3) The Secretary shall act expeditiously to implement each conservation plan prepared under paragraph (1). Each year, the Secretary shall specify in the annual report prepared under section 103(f) of this title what measures have been taken to prepare and implement such plans.

(4) If the Secretary determines that an incidental taking plan is necessary to reduce the incidental taking of marine mammals in the course of commercial fishing operations from a stock identified as a critical stock under section 117(c), any conservation plan required

under this subsection for subsection for such stock shall only address nonincidental takings.

SEC. 116. *

Section 116 of That Act

AUTHORIZATION OF APPROPRIATIONS

SEC. 117. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING OPERATIONS.

(a) IN GENERAL.-Except as provided in section 114 and in paragraphs, (2), (3), and (4) of this section, and notwithstanding section 101, the provisions of this section shall govern the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States or vessels which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)). The Secretary shall develop and implement incidental taking plans under this section to reduce the incidental lethal taking of marine mammals, from stocks listed as critical stocks under subsection (c), to a level below the calculated acceptable removal level.

(2) Section 101(a)(4), and not this section, shall govern the incidental taking of marine mammals from species or stocks designated under this Act as depleted on the basis of their listing as threatened or endangered species under the Endangered Species Act of 1973.

(3) Sections 104(h) and 306, and not this section, shall govern the taking of marine mammals in the course of commercial purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean.

(4) This section shall not govern the taking of marine mammals from an experimental population of California sea otters to which the Act of November 7, 1986 (Public Law 99-625; 100 Stat. 3500) applies.

(5) Sections 103 and 104 shall not apply to the incidental taking of marine mammals under the authority of this section.

(b) SCIENTIFIC CONSULTATION.-In implementing the incidental taking program under this section, the Secretary shall seek the advice of individuals with expertise in marine mammal biology and ecology, population dynamics and modeling, and commercial fishing technology and practices. Such advice should be sought with respect to information available, and actions proposed, for such implementation, including

(1) information provided in connection with stock assessments under this section;

(2) studies needed to resolve uncertainties regarding stock separation, stock abundance, or trends and factors affecting distribution, size, or productivity of stocks;

(3) studies needed to resolve uncertainties in determining marine mammal species, numbers, ages, and gender, and the reproductive status of stocks; and

(4) research to identify modifications in fishing gear and fishing practices likely to reduce the mortality and serious injury