Dolphins, sea lions, and other marine mammals are popular displays at public zoos and aquariums across the United States. The MMPA recognizes that this display provides an important educational opportunity to inform the public about the esthetic, recreational, and economic significance of marine mammals and their role in the ocean ecosystem. From 1973 through 1989, about 145 U.S. facilities obtained marine mammals under NOAA permits for public display. By 1989, zoos and aquariums were holding about 1300 marine mammals representing 27 species.

There is considerable variation in the type of facility receiving a permit for public display. Among the factors which vary are the number and species of marine mammals displayed, training and handling of animals in public, the size of the audience, the level of interaction with the public, scheduling of programs, and educational content. The largest facilities in the United States may hold 50-70 marine mammals, on display year-round and seen by millions of visitors annually. The smallest facilities may hold two or three animals, that often are rehabilitated beached and stranded California sea lions. In addition to zoos and aquariums, NOAA has issued public display permits to theme and amusement parks, travelling exhibits, and resorts.

With respect to scientific research, from 1973 through 1989, NOAA received 409 permit applications for scientific research that requested takings of almost 1 million animals. Takings under a scientific research permit vary with the nature of the research. About 78 percent of the animals taken under a scientific research permit are captured and released, and another 18 percent of the animals are simply harassed (subject to direct interaction). Less than 3 percent of the animals taken are killed or maintained in captivity.

In the years since the MMPA was enacted, the permit program has become increasingly complex and controversial. Amendments to the MMPA strengthened permit requirements, but program regulations, policies, and administrative procedures have not kept pace with these changes. As a result, in 1988, NOAA initiated the first comprehensive examination of the permit program since regulations were issued in 1974. The objective of this permit program review were to (1) streamline and speed up the permit process; (2) ensure consistency in permit procedures; (3) develop a policy framework for permit decisions; and (4) ensure compliance with all applicable Federal statutes. As part of the review, the agency has held several workshops and published a discussion paper in the Federal Register. Proposed regulations to revise the permit process have been drafted and were recently published in the Federal Register for public comment.

Finally, in recent years, natural observation programs such as whale-watching have developed which do no meet the MMPA permit criteria for either public display or scientific research. Whalewatching is a thriving industry that reflects growing public interest in observing marine mammals in the wild. For example, in 1990, an estimated 1,500,000 whale-watchers in Massachusetts, New Hampshire, and Maine generated $22.5 million in direct revenues and $78.75 million in total revenues for that region. Prime whalewatching locations are scattered around the U.S. coastline and in

clude Massachusetts, Hawaii, California, Alaska, Oregon, and Washington.

Whale-watching operations have not been required to apply for permits because they traditionally have had little interaction with the marine mammals under observation. Whale-watching boats have relied on guidelines for maneuvering around these large cetaceans, based on local operating conditions and regional differences in the behavioral patterns of the whales under observation. In August 1992, NOAA issued proposed rules for approaching whales in an attempt to provide greater protection from harassment. However, the rules which NOAA proposed to adopt uniformly were guidelines that had been used for specific calving grounds in Hawaii and would have required vessels to stay more than 300 yards away from any whale. The proposed rules provided no flexibility for regional geographic differences, and eventually were withdrawn. Although there presently are no pending proposals for restricting natural observation programs, the issue remains as to how such programs fit within the existing regulatory framework.

LEGISLATIVE HISTORY

On July 14 and July 28, 1993, the Committee held hearings on legislation to reauthorize the MMPA. The first hearing addressed the need to establish a new regime to govern the incidental taking of marine mammals in commercial fishing operations after expiration of the current interim exemption. The second hearing focused on concerns regarding the permitting process for public display and scientific research. S. 1636 was introduced on November 8, 1993, by Senator Kerry and is cosponsored by Senators Stevens and Packwood. The House of Representatives introduced legislation, H.R. 2760, to reauthorize the MMPA on July 27, 1993.

At its November 9, 1993 executive session, the Committee considered S. 1636 in open session, and two amendments were offered. The first, offered by Senator Inouye, would allow vessels off the coast of Hawaii to approach lawfully a humpback or other whale as close as 100 yards. The second amendment, offered by Senator Gorton, would authorize the Secretary of Commerce (Secretary) to remove lethally a nuisance pinniped if the animal was identified as habitually exhibiting dangerous or damaging behavior that could not be deterred by other means. The second amendment also would provide for establishment of a task force to consult with the Secretary in any decision regarding such a nuisance pinniped. The amendment was developed in response to predation by nuisance pinnipeds of fish runs at the Ballard Locks and Columbia River in Washington State. It is claimed that the predation by the nuisance pinnipeds has contributed to a decline in the number of fish returning to spawn. The two amendments were adopted by the Committee without objection. Without objection, the Committee ordered S. 1636 to be reported as amended.

S. 1636, as reported, does not address issues related to public display or scientific research. During Committee discussion of S. 1636 at the markup, concerns were raised regarding those provisions of the MMPA, some of which may be resolved by NOAA's proposed revision of permit regulations. Because the recent publication of the NOAA proposal provided little time for review, Committee

members agreed to address any remaining concerns through an amendment to S. 1636 when it is considered by the full Senate.

SUMMARY OF MAJOR PROVISIONS

The primary purpose of the legislation is to establish criteria for identifying and prioritizing marine mammal stocks most affected by interactions with commercial fishing operations. Emphasis is placed on the need for immediate action to protect those stocks that interact with commercial fisheries and are in decline or at low population levels. In addition, the intentional killing of marine mammals by commercial fishermen is prohibited. Major provisions of S. 1636, as reported, include:

1. Authorization of appropriations.-The authorization of appropriations would be extended through FY 1998 for DOC, DOI and the Commission. DOC would be authorized to receive $21,636,000 for FY 1994; DOI would be authorized to receive $8,000,000 for FY 1994; and the Marine Mammal Commission would be authorized to receive $1,350,000 for FY 1994. Funding authorization levels would be adjusted for inflation in the out-years.

2. Regulatory regime.-A new section 117 is added to the MMPA to govern the interactions between commercial fisheries and marine mammals.

3. Stock assessment.-The Secretary would be required to prepare and issue a stock assessment for each marine mammal stock. Stocks would be designated into one of five classes ranked in priority based on population trend, size, and level of total lethal take. All stock assessments would be issued within 240 days after the date of enactment of the legislation, with final stock assessments published 90 days after the end of the public comment period. Those stocks placed in the first two classes would be classified as "critical stocks."

4. Transitional period.-The current interim exemption for commercial fisheries would remain in place until the regulations prescribed under S. 1636 as reported take effect.

5. Incidental take teams and incidental taking plans.-For critical marine mammal stocks that interact with commercial fisheries, the Secretary would be required to establish incidental take teams of experts to develop incidental taking plans recommending measures for assisting stock recovery. If an incidental take team cannot reach agreement and submit a draft plan within 6 months, the Secretary would be required to publish a proposed plan and implementing regulations for public review within 2 additional months. Emergency regulations could be prescribed prior to final publication of a plan if the Secretary finds that incidental taking is having an immediate and significant adverse impact on a critical stock. The incidental taking plan for a critical stock would include a review and evaluation of the information gathered in the stock assessment, and proposed management measures to reduce takings by commercial fisheries based proportionately on their contribution to the problem.

6. Vessel registration.-If no other Federal, State, or tribal registration system exists, the Secretary would be authorized to develop a vessel registration system to assess fishery efforts and their impact on marine mammals. Fees charged for a registration decal

would be limited to the administrative costs incurred in issuing the decal. Appropriated funds would be used to cover any costs of maintaining a separate registration system. Only those vessels that fish in a fishery with frequent or occasional incidental takes of marine mammals could be included within a registration system established by the Secretary.

7. Reporting of takes.-All incidental lethal and serious injury takes would be reported at the end of each fishing trip on a standard form, and failure to report would subject a commercial fishing vessel owner or operator to civil penalties.

8. Monitoring.-The Secretary would be authorized to implement vessel observer programs, and require vessels to carry observers to the extent that they can be accommodated safely. The highest priority in assigning observers would be given to those fisheries that take stocks designated as depleted or critical. The cost of monitoring would be covered by appropriations.

9. Alaska harbor seals and Gulf of Marine harbor porpoises.—Establishment of an incidental take team would be mandated within 60 days of the date of enactment of the legislation to begin work immediately on a draft incidental taking plan to assist these two critical stocks toward recovery.

10. Whale approach standards in Hawaii.—Requirements for approaching whales in Hawaii would be streamlined to allow vessels to come as close as 100 yards from any whale.

11. Establishment of a Pinniped-Fishery Interaction Task Force. The Secretary would be authorized to allow the lethal removal of a nuisance pinniped if it is identified as habitually exhibiting dangerous or damaging behavior that cannot be deterred by other means. A task force would be convened when an application is received requesting a permit for the lethal removal. The task force would evaluate the situation and make recommendations as to whether lethal removal would be acceptable or whether a nonlethal alternative is available and practicable. The lethal removal, if approved, would be performed by Federal or State agencies or qualified individuals under contract to those agencies. The Secretary could not approve the lethal removal of a pinniped from a stock listed as threatened or endangered under the ESA or listed as depleted or critical under the MMPA.

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing Rules of the Senate and section 403 of the Congressional Budget Act of 1974, the Committee provides the following cost estimate, prepared by the Congressional Budget Office:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,
Washington, DC, December 9, 1993.

Hon. ERNEST F. HOLLINGS, Chairman,

Committee on Commerce, Science, and Transportation,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1636, the Marine Mammal Protection Act Amendments of 1993.

Enactment of S. 1636 would affect direct spending and receipts. Therefore, pay-as-you-go procedures would apply to the bill.

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

Sincerely,

ROBERT D. REISCHAUER, Director.

CONGRESSIONAL BUDGET OFFICE-COST ESTIMATE

1. Bill number: S. 1636.

2. Bill title: Marine Mammal Protection Act Amendments of 1993.

3. Bill status: As ordered reported by the Senate Committee on Commerce, Science, and Transportation on November 9, 1993.

4. Bill purpose: Ś. 1636 would authorize appropriations of an additional $147 million over the fiscal years 1994-1998 to implement provisions regarding the incidental taking_of endangered and threatened species of marine mammals. These appropriations would be for the activities of the Department of Commerce, the Department of the Interior (DOI), and the Marine Mammal Commission.

In addition, S. 1636 would establish rules governing the incidental taking of marine mammals and would require the Secretary of Commerce to develop a plan to reduce the incidental take from stocks listed as "critical". In order to accomplish this, the Secretary would be required to prepare and issue an assessment for each marine mammal that lives in waters in the jurisdiction of the United States. The assessment would be the basis for developing a priority list of species that require the most immediate attention. The Secretary also would be required to develop and implement an incidental take plan to assist in the recovery of each marine mammal stock listed as critical. The bill would establish timetables for developing the plan and promulgating regulations to implement the plan. S. 1636 would provide authority to the Secretary to establish a monitoring program and enforcement procedures. Finally, the bill would establish penalties for the incidental taking of endangered or threatened species.

5. Estimated cost to the Federal Government:

The costs of this bill within budget function 300. Basis of estimate: CBO estimates that the bill would be enacted early in fiscal year 1994 and that all amounts authorized would be appropriated. CBO has based its estimate of outlays on historical spending rates for similar activities of the National Oceanic and