[House Report 115-1030]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1030
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STREAMLINING ENVIRONMENTAL APPROVALS ACT OF 2017
_______
November 16, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3133]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 3133) to amend the Marine Mammal Protection Act
of 1972 to reduce unnecessary permitting delays by clarifying
associated procedures to increase economic development and
support coastal restoration programs, and for other purposes,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 3133 is to amend the Marine Mammal
Protection Act of 1972 to reduce unnecessary permitting delays
by clarifying associated procedures to increase economic
development and support coastal restoration programs.
Background and Need for Legislation
The Marine Mammal Protection Act of 1972 (MMPA, 16 U.S.C.
1361 et seq.) established a moratorium on the ``taking'' of
marine mammals in U.S. waters, as well as on importing marine
mammals and marine mammal products.\1\ Congress passed the MMPA
based on the finding that certain marine species and stocks
were in danger of extinction as a result of human behavior and
that these species and stocks must not fall below an ``optimum
sustainable population'' level.\2\ The MMPA gives the Secretary
of Commerce through the National Oceanic and Atmospheric
Administration's (NOAA) National Marine Fisheries Service
(NMFS) and the Secretary of the Interior through the Fish and
Wildlife Service (FWS) authority for the conservation and
management of marine mammal species.\3\
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\1\Marine Mammal Protection Act, Public Law 92-522, 86 Stat. 1027
(1972).
\2\Id. at 2.
\3\Eugene H. Buck, CONG. RESEARCH SERV., RL30120, THE MARINE MAMMAL
PROTECTION ACT: REAUTHORIZATION ISSUES 4(2007), available at http://
www.crs.gov/.
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Both the MMPA and the Endangered Species Act of 1973 (ESA,
16 U.S.C. 1531 et seq.) employ the concept of ``take'' to refer
to prohibited activities.\4\ The MMPA defines ``take'' as ``to
harass, hunt, capture, or kill, or attempt to harass, hunt,
capture, or kill any marine mammal.''\5\ The Code of Federal
Regulations further details the ``taking'' of a marine mammal
to include ``the collection of dead animals . . . ; the
restraint . . . of a marine mammal, no matter how temporary;
the negligent or intentional operation of an aircraft or
vessel, or the doing of any other negligent or intentional act
which results in disturbing or molesting a marine mammal; [or]
the feeding or attempting to feed a marine mammal in the
wild.''\6\
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\4\See Nat'l Marine Fisheries Serv., U.S. Dep't of Commerce,
Protected Resource Glossary, available at http://www.nmfs.noaa.gov/pr/
glossary.htm.
\5\16 U.S.C. 1362(13).
\6\50 C.F.R. 216.3 (2016).
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Some scientists have suggested that the definition of
``take'' under the MMPA warrants re-evaluation. Critics believe
that the definition, in its current form, may be ``overly broad
and encompassing, as well as unenforceable in many
situations.''\7\
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\7\Buck, supra note 3, at 36.
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The 1994 reauthorization of the MMPA re-defined the term
``harassment'' under the MMPA to include two levels of
harassment--level A and level B.\8\ In general, ``level A''
refers to harassment with the potential to injure a marine
mammal while ``level B'' includes harassment with the potential
to disturb a marine mammal.\9\
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\8\16 U.S.C. 1362(18); Buck, supra note 3, at 36.
\9\16 U.S.C. 1362(18)(C)-(D).
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However, some federal agencies have found it difficult in
the past to enforce ``level B'' harassment, which leaves the
public with much uncertainty as to what may constitute
harassment.\10\ For instance, under this definition, it is
unclear whether any recreational, commercial, or scientific
activity simply noticed by a marine mammal qualifies as
harassment under the MMPA.\11\
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\10\U.S. COMM'N ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST
CENTURY: FINAL REPORT 312 (2004), available at http://
www.jointoceancommission.org//media/JOCI/PDFs/USCOP_report.pdf.
\11\Id. at 11.
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The MMPA does allow for the authorization of the taking of
marine mammals incidental to activities if such action is
expected to have only a negligible impact on the species. There
are two types of authorizations that can be issued--a letter of
authorization (LOA) and an incidental harassment authorization
(IHA).\12\ A LOA is typically used for activities that may
result in harassment for multiple years or that may result in
serious injury or mortality of marine mammals and are valid for
up to five years.\13\ An IHA is typically used for activities
that may result in harassment only and are valid for one
year.\14\ These authorizations are often issued for activities
that produce underwater disturbances or sounds, such as coastal
and habitat restoration, construction, military sonar
exercises, and geophysical surveys for research and offshore
energy exploration.\15\
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\12\50 C.F.R. 216.101-216.108 (2016); Nat'l Marine Fisheries Serv.,
U.S. Dep't of Commerce, Incidental Take Authorizations under the MMPA,
http://www.nmfs.noaa.gov/pr/permits/incidental/.
\13\Id. at 13.
\14\Id.
\15\Id.
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While the MMPA provides an opportunity for people and
organizations to undertake activities that may cause harassment
to marine mammals, the process to obtain an incidental take
authorization is known to be very burdensome and time
consuming.\16\ To avoid stalled applications, the law includes
statutory deadlines for federal agencies processing IHA
applications. However, industry members have testified before
the Committee on Natural Resources that excessive periods of
review continue, citing delays in excess of hundreds of
days.\17\
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\16\Examining Deficiencies in Transparency at the Department of the
Interior: Hearing Before the Subcomm. on Energy and Mineral Resources
of the H. Comm. on Natural Res., 114th Cong. (2016) (statement of Peter
Seidel, International Association of Geophysical Contractors),
available at https://naturalresources.house.gov/uploadedfiles/
seidel_testimony.pdf.
\17\Examining the Impacts of Federal Natural Resources Laws Gone
Astray, Part II: Hearing before the Subcomm. On Oversight and
Investigations of the H. Comm. on Natural Res., 115th Cong. (2017)
(statement of Nikki Martin, International Association of Geophysical
Contractors), available at https://naturalresources.house.gov/
uploadedfiles/testimony_martin _7.18.17.pdf.
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In recent years, such bureaucratic delays have been
inherent in the IHA permitting process. This led directly to
poorly-informed decisions regarding offshore natural resource
management.\18\ In addition to a geological and geophysical
permit from the Bureau of Ocean Energy Management (BOEM),
applicants for oil and gas exploration activities on the U.S.
outer Continental Shelf must also secure an IHA, which is
reviewed and permitted by NMFS or the FWS.
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\18\Examining the Impacts of Federal Natural Resources Laws Gone
Astray, Part II: Hearing before the Subcomm. On Oversight and
Investigations of the H. Comm. on Natural Res., 115th Cong. (2017)
(statement of Nikki Martin, International Association of Geophysical
Contractors), available at https://naturalresources.house.gov/
uploadedfiles/testimony_martin_7.18.17.pdf.
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Acoustic geological and geophysical testing uses
mechanically generated sound waves to transit energy to the
subsurface of the seafloor. The returning sound waves are
captured by hydrophones, which record data of subsea geology
and potential hydrocarbon reserves. These surveys are also
conducted for research purposes, such as identifying earthquake
fault zones. Due to the possibility that the sound generated by
seismic testing may disturb marine mammals, an ITA is required
for permitting in the outer Continental Shelf Atlantic and
Alaskan waters.\19\ To date, there are no confirmed instances
of harm or death to marine mammals, fish, or other marine life
from these permitted activities.\20\
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\19\Gov't Accountability Office, GAO-18-60, Offshore Seismic
Surveys: Additional Guidance Needed to Help Ensure Timely Reviews
(2017), p.12.
\20\IAGC, Debunking Offshore Oil & Gas Exploration Myths: Seismic
Surveys. Available at: http://www.iagc.org/uploads/4/5/0/7/45074397/
iagc_debunking_offshore_oil_exploration_-_short_
final_final_11.14.17.pdf.
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A recently published GAO Report found that NMFS and FWS
failed in the most basic tasks, such as accurately recording
application dates and timelines. IHA applications sat in these
agencies, sometimes for years.\21\ Because oil and gas resource
estimates are an integral part of effective natural resource
management, it is necessary to maintain a careful and accurate
accounting of our nation's resources. Federal agencies and
companies rely directly on seismic information when making the
policy and business decisions.
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\21\Gov't Accountability Office, GAO-18-60, Offshore Seismic
Surveys: Additional Guidance Needed to Help Ensure Timely Reviews
(2017), p.32.
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In addition, ESA-listed species recovery efforts have also
been hampered or delayed by the current IHA process. During a
2013 Water, Power and Oceans Subcommittee hearing on marine
mammal predation of ESA-listed salmon species in the Pacific
Northwest, Mr. Norman, then-Regional Director of the Washington
Department of Fish and Wildlife testified that, ``[T]he
conditions associated with the current requirements of Section
120 of the Marine Mammal Protection Act (MMPA) are challenging
and expensive to implement, limited in scope, and legal
challenges have slowed the progress in reducing impacts to
salmon.''\22\
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\22\Legislative Hearing on H.R. 1308, Before the Subcomm. on Water
and Power of the H. Comm. on Natural Res 113th Cong. (2013) (statement
of Guy Norman, Regional Director of Washington Department of Fish and
Wildlife), available at: https://naturalresources.house.gov/
uploadedfiles/normantestimony06-13-13.pdf.
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Furthermore, a 2016 Federal Court of Appeals case revoked
the U.S. Navy's authorization to use sonar for critical
national security training due to conflicts with take
requirements under the MMPA.\23\
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\23\Conservation Council for Hawaii, et al., v. National Marine
Fisheries Service, et al. U.S. District Court for the District of
Hawaii, filed March 31, 2015, available at: https://www.scribd.com/
document/260644325/&fxsp0;2015-3-31-Amended-
Order?irgwc=1&content=10079&
campaignSkimbit%2C%20Ltd.&ad_group=38395X155&fxsp0;9467X17235c8f19&fxsp0
;f8459160a5f80515dcb&fxsp0;78e
&keyword=ft750noi&source=impactradius&medium=affiliate.
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H.R. 3133, the Streamlining Environmental Approvals Act of
2017 (the SEA Act of 2017), directly addresses these delays by
making targeted, common-sense updates to the MMPA to increase
regulatory efficiency and remove duplicative permitting
requirements under federal law. These reforms support coastal
habitat and species restoration, U.S. national security, and
American energy independence. The provisions in H.R. 3133 also
achieve the goals set forth by the Administration to increase
efficiency and effectiveness of federal regulations, and
particularly in simplifying compliance with multiple
overlapping and often contradictory statutory mandates.\24\
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\24\Legislative Hearing on H.R. 200, Before the Subcomm on Water,
Power and Oceans of the H. Comm. on Natural Res 115th Cong. (2017)
(statement of Chris Oliver, Assistant Administrator for the National
Marine Fisheries Service, Dept. of Commerce), available at: https://
naturalresources.house.gov/uploadedfiles/testimony_oliver.pdf.
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The text of H.R. 3133 was included in H.R. 4239, the SECURE
American Energy Act, ordered favorably reported by the
Committee on Natural Resources on November 8, 2017.
Committee Action
H.R. 3133 was introduced on June 29, 2017, by Congressman
Mike Johnson (R-LA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water, Powers and Oceans. On January 10, 2018, the Natural
Resources Committee met to consider the bill. The Subcommittee
was discharged by unanimous consent. Congresswoman Nanette Diaz
Barragan (D-CA) offered an amendment designated 002; it was not
adopted by a roll call vote of 17 ayes to 20 noes, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Congressman Donald S. Beyer, Jr. (D-VA) offered an
amendment designated 003; it was not adopted by a roll call
vote of 17 ayes to 19 noes, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Congresswoman Madeleine Z. Bordallo (D-GU) offered an
amendment designated 004; it was not adopted by voice vote. No
additional amendments were offered and the bill was ordered
favorably reported to the House of Representatives by voice
vote.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation and the Congressional Budget Act of
1974. With respect to the requirements of clause 3(c)(2) and
(3) of rule XIII of the Rules of the House of Representatives
and sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the enclosed cost estimate for
the bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 8, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3133, SEA Act of
2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3133--SEA Act of 2017
H.R. 3133 would amend the Marine Mammal Protection Act of
1972 to expand the number of entities that may apply for
permits to conduct research or build structures in offshore
areas that could incidentally affect marine mammals. The bill
would create timelines for the approval or rejection of such
permit applications and would clarify that permits issued under
the Marine Mammal Protection Act would satisfy similar
permitting requirements under the Endangered Species Act of
1973.
Using information from the National Oceanic and Atmospheric
Administration, CBO estimates that the costs associated with
reviewing permit applications under the bill would not be
significant.
Enacting H.R. 3133 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3133 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 3133 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Marine Mammal Protection
Act of 1972 to reduce unnecessary permitting delays by
clarifying associated procedures to increase economic
development and support coastal restoration programs.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, 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
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Moratorium and Exceptions
Sec. 101. (a) There shall be a moratorium on the taking and
importation of marine mammals and marine mammal 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) Consistent with the provisions of section 104,
permits may be issued by the Secretary for taking, and
importation for purposes of scientific research, public
display, photography for educational or commercial
purposes, or enhancing the survival or recovery of a
species or stock, or for importation of polar bear
parts (other than internal organs) taken in sport hunts
in Canada. Such permits, except permits issued under
section 104(c)(5), may be issued if the taking or
importation proposed to be made is first reviewed by
the Marine Mammal Commission and the Committee of
Scientific Advisors on Marine Mammals established under
title II. The Commission and Committee shall recommend
any proposed taking or importation, other than
importation under section 104(c)(5), which is
consistent with the purposes and policies of section 2
of this Act. If the Secretary issues such a permit for
importation, the Secretary shall issue to the importer
concerned a certificate to that effect in such form as
the Secretary of the Treasury prescribes, and such
importation may be made upon presentation of the
certificate to the customs officer concerned.
(2) Marine mammals may be taken incidentally in the
course of commercial fishing operations and permits may
be issued therefor under section 104 subject to
regulations prescribed by the Secretary in accordance
with section 103, or in lieu of such permits,
authorizations may be granted therefor under section
118, subject to regulations prescribed under that
section by the Secretary without regard to section 103.
Such authorizations may be granted under title III with
respect to purse seine fishing for yellowfin tuna in
the eastern tropical Pacific Ocean, subject to
regulations prescribed under that title by the
Secretary without regard to 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 commercial fishing
operations be reduced to insignificant levels
approaching a zero mortality and serious injury rate.
The Secretary of the Treasury shall ban the importation
of commercial fish or products from fish which have
been caught with commercial fishing technology which
results in the incidental kill or incidental serious
injury of ocean mammals in excess of United States
standards. For purposes of applying the preceding
sentence, the Secretary--
(A) shall insist on reasonable proof from the
government of any nation from which fish or
fish products will be exported to the United
States of the effects on ocean mammals of the
commercial fishing technology in use for such
fish or fish products exported from such nation
to the United States;
(B) in the case of yellowfin tuna harvested
with purse seine nets in the eastern tropical
Pacific Ocean, and products therefrom, to be
exported to the United States, shall require
that the government of the exporting nation
provide documentary evidence that--
(i)(I) the tuna or products therefrom
were not banned from importation under
this paragraph before the effective
date of section 4 of the International
Dolphin Conservation Program Act; or
(II) the tuna or products therefrom
were
harvested after the effective date of
section 4 of the International Dolphin
Conservation Program Act by vessels of
a nation which participates in the
International Dolphin Conservation
Program, and such harvesting nation is
either a member of the Inter-American
Tropical Tuna Commission or has
initiated (and within 6 months
thereafter completed) all steps
required of applicant nations, in
accordance with article V, paragraph 3
of the Convention establishing the
Inter-American Tropical Tuna
Commission, to become a member of that
organization;
(ii) such nation is meeting the
obligations of the International
Dolphin Conservation Program and the
obligations of membership in the Inter-
American Tropical Tuna Commission,
including all financial obligations;
and
(iii) the total dolphin mortality
limits, and per-stock per-year dolphin
mortality limits permitted for that
nation's vessels under the
International Dolphin Conservation
Program do not exceed the limits
determined for 1997, or for any year
thereafter, consistent with the
objective of progressively reducing
dolphin mortality to a level
approaching zero through the setting of
annual limits and the goal of
eliminating dolphin mortality, and
requirements of the International
Dolphin Conservation Program;
(C) shall not accept such documentary
evidence if--
(i) the government of the harvesting
nation does not provide directly or
authorize the Inter-American Tropical
Tuna Commission to release complete and
accurate information to the Secretary
in a timely manner--
(I) to allow determination of
compliance with the
International Dolphin
Conservation Program; and
(II) for the purposes of
tracking and verifying
compliance with the minimum
requirements established by the
Secretary in regulations
promulgated under subsection
(f) of the Dolphin Protection
Consumer Information Act (16
U.S.C. 1385(f)); or
(ii) after taking into consideration
such information, findings of the
Inter-American Tropical Tuna
Commission, and any other relevant
information, including information that
a nation is consistently failing to
take enforcement actions on violations
which diminish the effectiveness of the
International Dolphin Conservation
Program, the Secretary, in consultation
with the Secretary of State, finds that
the harvesting nation is not in
compliance with the International
Dolphin Conservation Program.
(D) shall require the government of any
intermediary nation to certify and provide
reasonable proof to the Secretary that it 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 under subparagraph (B);
(E) shall, six months after importation of
yellowfin tuna or tuna products has been banned
under this section, certify such fact to the
President, which certification shall be deemed
to be a certification for the purposes of
section 8(a) of the Fishermen's Protective Act
of 1967 (22 U.S.C. 1978(a)) for as long as such
ban is in effect; and
(F)(i) except as provided in clause (ii), in
the case of fish or products containing fish
harvested by a nation whose fishing vessels
engage in high seas driftnet fishing, shall
require that the government of the exporting
nation provide documentary evidence that the
fish or fish product was not harvested with a
large-scale driftnet in the South Pacific Ocean
after July 1, 1991, or in any other water of
the high seas after January 1, 1993, and
(ii) in the case of tuna or a product
containing tuna harvested by a nation whose
fishing vessels engage in high seas driftnet
fishing, shall require that the government of
the exporting nation provide documentary
evidence that the tuna or tuna product was not
harvested with a large-scale driftnet anywhere
on the high seas after July 1, 1991.
For purposes of subparagraph (F), the term ``driftnet''
has the meaning given such term in section 4003 of the
Driftnet Impact Monitoring, Assessment, and Control Act
of 1987 (16 U.S.C. 1822 note), except that, until
January 1, 1994, the term ``driftnet'' does not include
the use in the northeast Atlantic Ocean of gillnets
with a total length not to exceed five kilometers if
the use is in accordance with regulations adopted by
the European Community pursuant to the October 28,
1991, decision by the Council of Fisheries Ministers of
the Community.
(3)(A) The Secretary, on the basis of the best
scientific evidence available and in consultation with
the Marine Mammal Commission, is authorized and
directed, from time to time, having due regard to the
distribution, abundance, breeding habits, and times and
lines of migratory movements of such marine mammals, to
determine when, to what extent, if at all, and by what
means, it is compatible with this Act to waive the
requirements of this section so as to allow taking, or
importing of any marine mammal, or any marine mammal
product, and to adopt suitable regulations, issue
permits, and make determinations in accordance with
sections 102, 103, 104, and 111 of this title
permitting and governing such taking and importing, in
accordance with such determinations: Provided, however,
That the Secretary, in making such determinations, must
be assured that the taking of such marine mammal is in
accord with sound principles of resource protection and
conservation as provided in the purposes and policies
of this Act: Provided further, however, That no marine
mammal or no marine mammal product may be imported into
the United States unless the Secretary certifies that
the program for taking marine mammals in the country of
origin is consistent with the provisions and policies
of this Act. Products of nations not so certified may
not be imported into the United States for any purpose,
including processing for exportation.
(B) Except for scientific research purposes,
photography for educational or commercial purposes, or
enhancing the survival or recovery of a species or
stock as provided for in paragraph (1) of this
subsection, or as provided for under paragraph (5) of
this subsection, during the moratorium no permit may be
issued for the taking of any marine mammal which has
been designated by the Secretary as depleted, and no
importation may be made of any such mammal.
(4)(A) Except as provided in subparagraphs (B) and
(C), the provisions of this Act shall not apply to the
use of measures--
(i) by the owner of fishing gear or catch, or
an employee or agent of such owner, to deter a
marine mammal from damaging the gear or catch;
(ii) by the owner of other private property,
or an agent, bailee, or employee of such owner,
to deter a marine mammal from damaging private
property;
(iii) by any person, to deter a marine mammal
from endangering personal safety; or
(iv) by a government employee, to deter a
marine mammal from damaging public property,
so long as such measures do not result in the death or
serious injury of a marine mammal.
(B) The Secretary shall, through consultation with
appropriate experts, and after notice and opportunity
for public comment, publish in the Federal Register a
list of guidelines for use in safely deterring marine
mammals. In the case of marine mammals listed as
endangered species or threatened species under the
Endangered Species Act of 1973, the Secretary shall
recommend specific measures which may be used to
nonlethally deter marine mammals. Actions to deter
marine mammals consistent with such guidelines or
specific measures shall not be a violation of this Act.
(C) 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, after notice and opportunity for public
comment, through regulation under this Act.
(D) The authority to deter marine mammals pursuant to
subparagraph (A) applies to all marine mammals,
including all stocks designated as depleted under this
Act.
(5)(A)(i) Upon request therefor by citizens of the
United States who engage in a specified activity (other
than commercial fishing) within a specified
geographical region, the Secretary shall allow, during
periods of not more than five consecutive years each,
the incidental, but not intentional, taking by citizens
while engaging in that activity within that region of
small numbers of marine mammals of a species or
population stock if the Secretary, after notice (in the
Federal Register and in newspapers of general
circulation, and through appropriate electronic media,
in the coastal areas that may be affected by such
activity) and opportunity for public comment--
(I) finds that the total of such taking
during each five-year (or less) period
concerned will have a negligible impact on such
species or stock and will not have an
unmitigable adverse impact on the availability
of such species or stock for taking for
subsistence uses pursuant to subsection (b) or
section 109(f) or, in the case of a cooperative
agreement under both this Act and the Whaling
Convention Act of 1949, pursuant to section
112(c); and
(II) prescribes regulations setting forth
(aa) permissible methods of taking
pursuant to such activity, and other
means of effecting the least
practicable adverse impact on such
species or stock and its habitat,
paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stock
for subsistence uses; and
(bb) requirements pertaining to the
monitoring and reporting of such
taking.
(ii) For a military readiness activity (as defined in
section 315(f) of Public Law 107-314; 16 U.S.C. 703
note), a determination of ``least practicable adverse
impact on such species or stock'' under clause
(i)(II)(aa) shall include consideration of personnel
safety, practicality of implementation, and impact on
the effectiveness of the military readiness activity.
Before making the required determination, the Secretary
shall consult with the Department of Defense regarding
personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness
activity.
(iii) Notwithstanding clause (i), for any
authorization affecting a military readiness activity
(as defined in section 315(f) of Public Law 107-314; 16
U.S.C. 703 note), the Secretary shall publish the
notice required by such clause only in the Federal
Register.
(B) The Secretary shall withdraw, or suspend for a
time certain (either on an individual or class basis,
as appropriate) the permission to take marine mammals
under subparagraph (A) pursuant to a specified activity
within a specified geographical region if the Secretary
finds, after notice and opportunity for public comment
(as required under subparagraph (A) unless subparagraph
(C)(i) applies), that--
(i) the regulations prescribed under
subparagraph (A) regarding methods of taking,
monitoring, or reporting are not being
substantially complied with by a person
engaging in such activity; or
(ii) the taking allowed under subparagraph
(A) pursuant to one or more activities within
one or more regions is having, or may have,
more than a negligible impact on the species or
stock concerned.
(C)(i) The requirement for notice and opportunity for
public comment in subparagraph (B) shall not apply in
the case of a suspension of permission to take if the
Secretary determines that an emergency exists which
poses a significant risk to the well-being of the
species or stock concerned.
(ii) Sections 103 and 104 shall not apply to the
taking of marine mammals under the authority of this
paragraph.
(D)(i) Upon request therefor by [citizens of the
United States] persons who engage in a specified
activity (other than commercial fishing) [within a
specific geographic region], the Secretary shall
authorize, for periods of not more than 1 year, subject
to such conditions as the Secretary may specify, the
incidental, but not intentional, taking by harassment
[of small numbers] of marine mammals of a species or
population stock by [such citizens] such persons while
engaging in that activity [within that region] if the
Secretary finds that such harassment during each period
concerned--
(I) will have a negligible impact on such
species or stock, and
(II) will not have an unmitigable adverse
impact on the availability of such species or
stock for taking for subsistence uses pursuant
to subsection (b), or section 109(f) or
pursuant to a cooperative agreement under
section 119.
(ii) The authorization for such activity shall
prescribe, where applicable--
(I) permissible methods of taking by
harassment pursuant to such activity[, and
other means of effecting the least practicable
impact on such species or stock and its
habitat], paying particular attention to
rookeries, mating grounds, and areas of similar
significance, and on the availability of such
species or stock for taking for subsistence
uses pursuant to subsection (b) or section
109(f) or pursuant to a cooperative agreement
under section 119,
(II) the measures that the Secretary
determines are necessary to ensure no
unmitigable adverse impact on the availability
of the species or stock for taking for
subsistence uses pursuant to subsection (b) or
section 109(f) or pursuant to a cooperative
agreement under section 119, and
(III) [requirements pertaining to the
monitoring and reporting of such taking by
harassment, including] efficient and practical
requirements pertaining to the monitoring of
such taking by harassment while the activity is
being conducted and the reporting of such
taking, including, as the Secretary determines
necessary, requirements for the independent
peer review of proposed monitoring plans or
other research proposals where the proposed
activity may affect the availability of a
species or stock for taking for subsistence
uses pursuant to subsection (b) or section
109(f) or pursuant to a cooperative agreement
under section 119.
Any condition imposed pursuant to subclause (I), (II), or (III)
may not result in more than a minor change to the specified
activity and may not alter the basic design, location, scope,
duration, or timing of the specified activity.
(iii) The Secretary shall publish a proposed
authorization not later than 45 days after [receiving
an application under this subparagraph] an application
is accepted or required to be considered complete under
subclause (I)(aa), (II)(aa), or (IV) of clause (viii),
as applicable, and request public comment through
notice in the Federal Register, newspapers of general
circulation, and appropriate electronic media and to
all locally affected communities for a period of 30
days after publication. Not later than 45 days after
the close of the public comment period, if the
Secretary makes the findings set forth in clause (i),
the Secretary shall issue an authorization with
appropriate conditions to meet the requirements of
clause (ii).
(iv) The Secretary shall modify, suspend, or revoke
an authorization if the Secretary finds that the
provisions of clauses (i) or (ii) are not being met.
(v) A person conducting an activity for which an
authorization has been granted under this subparagraph
shall not be subject to the penalties of this Act for
taking by harassment that occurs in compliance with
such authorization.
(vi) For a military readiness activity (as defined in
section 315(f) of Public Law 107-314; 16 U.S.C. 703
note),[a determination of ``least practicable adverse
impact on such species or stock'' under clause (i)(I)]
conditions imposed under subclause (I), (II), or (III)
of clause (ii) shall include consideration of
personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness
activity. Before making the required determination, the
Secretary shall consult with the Department of Defense
regarding personnel safety, practicality of
implementation, and impact on the effectiveness of the
military readiness activity.
(vii) Notwithstanding clause (iii), for any
authorization affecting a military readiness activity
(as defined in section 315(f) of Public Law 107-314; 16
U.S.C. 703 note), the Secretary shall publish the
notice required by such clause only in the Federal
Register.
(viii)(I) The Secretary shall--
(aa) accept as complete a written request for
authorization under this subparagraph for incidental
taking described in clause (i), by not later than 45
days after the date of submission of the request; or
(bb) provide to the requester, by not later than 15
days after the date of submission of the request, a
written notice describing any additional information
required to complete the request.
(II) If the Secretary provides notice under subclause
(I)(bb), the Secretary shall, by not later than 30 days after
the date of submission of the additional information described
in the notice--
(aa) accept the written request for authorization
under this subparagraph for incidental taking described
in clause (i); or
(bb) deny the request and provide the requester a
written explanation of the reasons for the denial.
(III) The Secretary may not make a second request for
information, request that the requester withdraw and resubmit
the request, or otherwise delay a decision on the request.
(IV) If the Secretary fails to respond to a request for
authorization under this subparagraph in the manner provided in
subclause (I) or (II), the request shall be considered to be
complete.
(ix)(I) At least 90 days before the expiration of any
authorization issued under this subparagraph, the holder of
such authorization may apply for a one-year extension of such
authorization. The Secretary shall grant such extension within
14 days after the date of such request on the same terms and
without further review if there has been no substantial change
in the activity carried out under such authorization nor in the
status of the marine mammal species or stock, as applicable, as
reported in the final annual stock assessment reports for such
species or stock.
(II) In subclause (I) the term ``substantial change'' means a
change that prevents the Secretary from making the required
findings to issue an authorization under clause (i) with
respect to such species or stock.
(III) The Secretary shall notify the applicant of such
substantial changes with specificity and in writing within 14
days after the applicant's submittal of the extension request.
(x) If the Secretary fails to make the required findings and,
as appropriate, issue the authorization within 120 days after
the application is accepted or required to be considered
complete under subclause (I)(aa), (II)(aa), or (III) of clause
(viii), as applicable, the authorization is deemed to have been
issued on the terms stated in the application and without
further process or restrictions under this Act.
(xi) Any taking of a marine mammal in compliance with an
authorization under this subparagraph is exempt from the
prohibition on taking in section 9 of the Endangered Species
Act of 1973 (16 U.S.C. 1538). Any Federal agency authorizing,
funding, or carrying out an action that results in such taking,
and any agency action authorizing such taking, is exempt from
the requirement to consult regarding potential impacts to
marine mammal species or designated critical habitat under
section 7(a)(2) of such Act (16 U.S.C. 1536(a)(2)).
(E)(i) During any period of up to 3 consecutive
years, the Secretary shall allow the incidental, but
not the intentional, taking 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)), while engaging in
commercial fishing operations, of marine mammals from a
species or stock designated as depleted because of its
listing as an endangered species 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--
(I) the incidental mortality and serious
injury from commercial fisheries will have a
negligible impact on such species or stock;
(II) a recovery plan has been developed or is
being developed for such species or stock
pursuant to the Endangered Species Act of 1973;
and
(III) where required under section 118, a
monitoring program is established under
subsection (d) of such section, vessels engaged
in such fisheries are registered in accordance
with such section, and a take reduction plan
has been developed or is being developed for
such species or stock.
(ii) Upon a determination by the Secretary that the
requirements of clause (i) have been met, the Secretary
shall publish in the Federal Register a list of those
fisheries for which such determination was made, and,
for vessels required to register under section 118,
shall issue an appropriate permit for each
authorization granted under such section to vessels to
which this paragraph applies. Vessels engaged in a
fishery included in the notice published by the
Secretary under this clause which are not required to
register under section 118 shall not be subject to the
penalties of this Act for the incidental taking of
marine mammals to which this paragraph applies, so long
as the owner or master of such vessel reports any
incidental mortality or injury of such marine mammals
to the Secretary in accordance with section 118.
(iii) If, during the course of the commercial fishing
season, the Secretary determines that the level of
incidental mortality or serious injury from commercial
fisheries for which a determination was made under
clause (i) has resulted or is likely to result in an
impact that is more than negligible on the endangered
or threatened species or stock, the Secretary shall use
the emergency authority granted under section 118 to
protect such species or stock, and may modify any
permit granted under this paragraph as necessary.
(iv) The Secretary may suspend for a time certain or
revoke a permit granted under this subparagraph only if
the Secretary determines that the conditions or
limitations set forth in such permit are not being
complied with. The Secretary may amend or modify, after
notice and opportunity for public comment, the list of
fisheries published under clause (ii) whenever the
Secretary determines there has been a significant
change in the information or conditions used to
determine such list.
(v) Sections 103 and 104 shall not apply to the
taking of marine mammals under the authority of this
subparagraph.
(vi) This subparagraph shall not govern the
incidental taking of California sea otters and shall
not be deemed to amend or repeal the Act of November 7,
1986 (Public Law 99-625; 100 Stat. 3500).
(F) Notwithstanding the provisions of this
subsection, any authorization affecting a military
readiness activity (as defined in section 315(f) of
Public Law 107-314; 16 U.S.C. 703 note) shall not be
subject to the following requirements:
(i) In subparagraph (A), ``within a specified
geographical region'' and ``within that region
of small numbers''.
(ii) In subparagraph (B), ``within a
specified geographical region'' and ``within
one or more regions''.
(iii) In subparagraph (D), ``within a
specific geographic region'', ``of small
numbers'', and ``within that region''.
(6)(A) A marine mammal product may be imported into
the United States if the product--
(i) was legally possessed and exported by any
citizen of the United States in conjunction
with travel outside the United States, provided
that the product is imported into the United
States by the same person upon the termination
of travel;
(ii) was acquired outside of the United
States as part of a cultural exchange by an
Indian, Aleut, or Eskimo residing in Alaska; or
(iii) is owned by a Native inhabitant of
Russia, Canada, or Greenland and is imported
for noncommercial purposes in conjunction with
travel within the United States or as part of a
cultural exchange with an Indian, Aleut, or
Eskimo residing in Alaska.
(B) For the purposes of this paragraph, the term--
(i) ``Native inhabitant of Russia, Canada, or
Greenland'' means a person residing in Russia,
Canada, or Greenland who is related by blood,
is a member of the same clan or ethnological
grouping, or shares a common heritage with an
Indian, Aleut, or Eskimo residing in Alaska;
and
(ii) ``cultural exchange'' means the sharing
or exchange of ideas, information, gifts,
clothing, or handicrafts between an Indian,
Aleut, or Eskimo residing in Alaska and a
Native inhabitant of Russia, Canada, or
Greenland, including rendering of raw marine
mammal parts as part of such exchange into
clothing or handicrafts through carving,
painting, sewing, or decorating.
(b) Except as provided in section 109, the provisions of this
Act shall not apply with respect to the taking of any marine
mammal by any Indian, Aleut, or Eskimo who resides in Alaska
and who dwells on the coast of the North Pacific Ocean or the
Arctic Ocean if such taking--
(1) is for subsistence purposes; or
(2) is done for purposes of creating and selling
authentic native articles of handicrafts and clothing:
Provided, That only authentic native articles of
handicrafts and clothing may be sold in interstate
commerce: And provided further, That any edible portion
of marine mammals may be sold in native villages and
towns in Alaska or for native consumption. For the
purposes of this subsection, the term ``authentic
native articles of handicrafts and clothing'' means
items composed wholly or in some significant respect of
natural materials, and which are produced, decorated,
or fashioned in the exercise of traditional native
handicrafts without the use of panto-graphs, multiple
carvers, or other mass copying devices. Traditional
native handicrafts include, but are not limited to
weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting; and
(3) in each case, is not accomplished in a wasteful
manner.
Notwithstanding the preceding provisions of this subsection,
when, under this Act, the Secretary determines any species or
stock of marine mammal subject to taking by Indians, Aleuts, or
Eskimos to be depleted, he may prescribe regulations upon
thetaking of such marine mammals by any Indian, Aleut, or
Eskimo described in this subsection. Such regulations may be
established with reference to species or stocks, geographical
description of the area included, the season for taking, or any
other factors related to the reason for establishing such
regulations and consistent with the purposes of this Act. Such
regulations shall be prescribed after notice and hearing
required by section 103 of this title and shall be removed as
soon as the Secretary determines that the need for their
imposition has disappeared. In promulgating any regulation or
making any assessment pursuant to a hearing or proceeding under
this subsection or section 117(b)(2), or in making any
determination of depletion under this subsection or finding
regarding unmitigable adverse impacts under subsection (a)(5)
that affects stocks or persons to which this subsection
applies, the Secretary shall be responsible for demonstrating
that such regulation, assessment, determination, or finding is
supported by substantial evidence on the basis of the record as
a whole. The preceding sentence shall only be applicable in an
action brought by one or more Alaska Native organizations
representing persons to which this subsection applies.
(c) It shall not be a violation of this Act to take a marine
mammal if such taking is imminently necessary in self-defense
or to save the life of a person in immediate danger, and such
taking is reported to the Secretary within 48 hours. The
Secretary may seize and dispose of any carcass.
(d) Good Samaritan Exemption.--It shall not be a violation of
this Act to take a marine mammal if--
(1) such taking is imminently necessary to avoid
serious injury, additional injury, or death to a marine
mammal entangled in fishing gear or debris;
(2) reasonable care is taken to ensure the safe
release of the marine mammal, taking into consideration
the equipment, expertise, and conditions at hand;
(3) reasonable care is exercised to prevent any
further injury to the marine mammal; and
(4) such taking is reported to the Secretary within
48 hours.
(e) Act Not to Apply to Incidental Takings by United States
Citizens Employed on Foreign Vessels Outside the United States
EEZ.--The provisions of this Act shall not apply to a citizen
of the United States who incidentally takes any marine mammal
during fishing operations outside the United States exclusive
economic zone (as defined in section 3 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1802)) when
employed on a foreign fishing vessel of a harvesting nation
which is in compliance with the International Dolphin
Conservation Program.
(f) Exemption of Actions Necessary for National Defense.--(1)
The Secretary of Defense, after conferring with the Secretary
of Commerce, the Secretary of the Interior, or both, as
appropriate, may exempt any action or category of actions
undertaken by the Department of Defense or its components from
compliance with any requirement of this Act, if the Secretary
determines that it is necessary for national defense.
(2) An exemption granted under this subsection--
(A) subject to subparagraph (B), shall be effective
for a period specified by the Secretary of Defense; and
(B) shall not be effective for more than 2 years.
(3)(A) The Secretary of Defense may issue additional
exemptions under this subsection for the same action or
category of actions, after--
(i) conferring with the Secretary of Commerce, the
Secretary of the Interior, or both as appropriate; and
(ii) making a new determination that the additional
exemption is necessary for national defense.
(B) Each additional exemption under this paragraph shall be
effective for a period specified by the Secretary of Defense,
of not more than 2 years.
(4) Not later than 30 days after issuing an exemption under
paragraph (1) or an additional exemption under paragraph (3),
the Secretary of Defense shall submit to the Committee on Armed
Services of the House of Representatives and the Committee on
Armed Services of the Senate notice describing the exemption
and the reasons therefor. The notice may be provided in
classified form if the Secretary of Defense determines that use
of the classified form is necessary for reasons of national
security.
* * * * * * *
DISSENTING VIEWS
H.R. 3133 would weaken key elements of the Marine Mammal
Protection Act (MMPA). We oppose this bill because it provides
a free pass to the oil and gas industry at the risk of marine
mammals, coastal economies, and healthy oceans.
Congress first enacted the MMPA to protect all marine
mammals in response to declines caused by human activities, and
it has worked successfully for over 40 years. The MMPA ensures
that activities that may result in incidental harm or take of
marine mammals are thoroughly reviewed, rather than permitted
through the expedited and inadequate process proposed by this
bill. Activities such as seismic airgun testing used for oil
and gas exploration, offshore drilling, sonar, and geophysical
surveys can all affect marine mammals. While the Majority
falsely claims that these activities have not killed any marine
mammals, the best available science shows there can be longterm
negative impacts on several marine mammal species.
This bill would undermine critical protections under the
MMPA by striking the conditions required for permitted
activities. It would allow for unmitigated incidental harm,
that is, without the current safeguards that would allow for
the ``least practicable impact on such species or stock,''
among other things. It would further limit mitigation for any
incidental losses and requirements for monitoring. These
legislative changes would allow industry to continue their
activities with oversight of their impacts only if it was
``efficient and practical.'' Lastly, H.R. 3133 would waive
requirements for take and consultation under the Endangered
Species Act (ESA) for any threatened or endangered marine
mammals. The ESA has been critical to the recovery of several
populations of marine mammals and is needed to protect other
species from extinction.
Democratic amendments to the bill represented the broad
opposition to offshore activities that would endanger marine
mammals and coastal communities. Representatives Nanette Diaz
Barragan (D, CA) and Donald S. Beyer (D, VA) offered amendments
that would protect Pacific and Atlantic coastal communities,
respectively, from the harmful impacts of this bill.
Representative Madeleine Bordallo (D, GU) offered an amendment
that would have excluded the Gulf of Mexico from H.R. 3133 in
order to protect offshore and near-shore marine mammal
populations in the Gulf of Mexico, which are still recovering
from the severe impacts of the Deepwater Horizon oil spill. All
three of these amendments were rejected by the majority.
For the reasons stated above, we oppose this bill because
it would significantly weaken the MMPA, a bedrock environmental
law, and cause great harm to marine mammal populations.
Raul M. Grijalva,
Ranking Member.
Madeleine Bordallo.
Donald S. Beyer, Jr.
Grace F. Napolitano.
Jared Huffman.
Nanette Diaz Barragan.
[all]