Fishery, Aquaculture, and Marine Mammal Issues in the 111th Congress

January 13, 2011 (R40172)

Contents

Figures

Tables

Summary

Fish and marine mammals are important resources in open ocean and nearshore coastal areas; many federal laws and regulations guide their management as well as the management of their habitat.

Commercial and sport fishing are jointly managed by the federal government and individual states. States generally have jurisdiction within 3 miles of the coast. Beyond state jurisdiction and out to 200 miles, the federal government manages fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) through eight regional fishery management councils. Beyond 200 miles, the United States participates in international agreements relating to specific areas or species. The 111th Congress enacted numerous measures, including P.L. 111-5, broadening the basis for determining import increases relating to trade adjustment assistance for fishing to include wild-caught fish and seafood in addition to farm-raised fish and seafood; P.L. 111-11 authorizing implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; P.L. 111-215, extending the date on which the Environmental Protection Agency and applicable states might require permits for discharges from fishing vessels to December 18, 2013; P.L. 111-281, amending the American Fisheries Act to modify provisions for vessel rebuilding and replacement as well as vessel and fishery cooperative exemptions; P.L. 111-348, allowing a bilateral United States-Canada Understanding to be considered an international agreement to allow federal fisheries managers to extend stock rebuilding deadlines for certain New England fisheries; and P.L. 111-353, directing the Food and Drug Administration to update the Fish and Fisheries Products Hazards and Control Guidance to take into account advances in technology.

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress enacted several measures, including P.L. 111-5, providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year; P.L. 111-240, amending the Small Business Act to authorize certain disaster assistance to aquaculture enterprises that are small businesses; P.L. 111-307, amending the Lacey Act to add bighead carp to the list of injurious species that are prohibited from being imported or shipped interstate; and P.L. 111-353, requiring a report by the Food and Drug Administration on the post-harvest processing of raw oysters.

Marine mammals are protected under the Marine Mammal Protection Act (MMPA). With few exceptions, the MMPA prohibits harm or harassment ("take") of marine mammals, unless restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. Other than annual appropriations, the 111th Congress did not enact any legislation related to marine mammals.

Fishery, Aquaculture, and Marine Mammal Issues in the 111th Congress

Most Recent Developments

On January 7, 2011, President Obama signed P.L. 111-383, including a provision expressing the sense of Congress regarding recreational fishing on military installations. On January 4, 2011, President Obama signed (1) P.L. 111-348, including provisions (a) amending the MSFCMA to modify language related to prohibiting shark finning and (b) allowing the United States-Canada Transboundary Resource Sharing Understanding to be considered an international agreement so that federal fisheries managers could extend stock rebuilding deadlines for New England groundfish and scallop fisheries covered under the bilateral agreement, and (2) P.L. 111-353, including provisions (a) directing the Secretary of Health and Human Services to update the Fish and Fisheries Products Hazards and Control Guidance to take into account advances in technology and (b) requiring a report by the Food and Drug Administration on the post-harvest processing of raw oysters. On December 22, 2010, President Obama signed (1) P.L. 111-322, including provisions to further extend the authority to make expenditures from the Highway Trust Fund and other trust funds, including various programs under the Sport Fish Restoration and Boating Trust Fund, through March 4, 2011, and (2) P.L. 111-335, authorizing a single fisheries cooperative for the Bering Sea Aleutian Islands longline catcher processor subsector for Pacific cod. On December 22, 2010, the Senate passed H.R. 6523. On December 17, 2010, the House passed H.R. 6523. On December 17, 2010, the Senate Committee on Commerce, Science, and Transportation reported (1) S. 3597 (amended), including provisions (a) authorizing the Coast Guard and the National Oceanic and Atmospheric Administration (NOAA) to identify U.S. areas where special navigational measures are warranted to reduce the risk of oil spills and potential damage to natural resources, including commercial fisheries and aquaculture facilities, (b) seeking to improve the ability of NOAA, the Coast Guard, and coastal states to sustain healthy ocean and coastal ecosystems relative to oil spills, and (c) amending and reauthorizing the Coral Reef Conservation Act of 2000 through FY2014; (2) S. 3566 (amended), including a provision authorizing the Maritime Administration to establish a Green Ships Program to identify, evaluate, demonstrate, or improve technologies for control of aquatic invasive species; and (3) S. 2870, amending various statutes implementing international fishery agreements to deter and combat illegal, unreported, and unregulated (IUU) fishing. On December 14, 2010, President Obama signed P.L. 111-307 (S. 1421), amending the Lacey Act to add bighead carp to the list of injurious species that are prohibited from being imported or shipped interstate. On December 14, 2010, the House passed S. 1609, authorizing a single fisheries cooperative for the Bering Sea Aleutian Islands longline catcher processor subsector for Pacific cod. On December 10, 2010, the Senate Committee on Commerce, Science, and Transportation reported S. 1748 (amended), establishing a research program for the recovery of the southern sea otter. On December 8, 2010, the House passed H.R. 3082 (amended), including the language of food safety legislation (S. 510) in Division D, including provisions (1) directing the Secretary of Health and Human Services to update the Fish and Fisheries Products Hazards and Control Guidance to take into account advances in technology and (2) requiring a report by the Food and Drug Administration on the post-harvest processing of raw oysters. (Members and staff may request e-mail notification of new CRS reports on marine and freshwater fisheries, aquaculture, and marine mammal issues by contacting Gene Buck at [email address scrubbed] and requesting to be added to the notification list.)

Introduction

Increasing use of coastal and marine resources is driving proposals for Congress and the Administration to alter current relationships between environmental protection and sustainable resource management. Recent reports note declines in marine resources and shortcomings in what are perceived as fragmented and limited approaches to resource protection and management in federal and state waters.1 A further concern is the increasing pressures and conflicts that arise from economic activity associated with continued human population growth in coastal areas. A common concern is habitat loss or alteration, due both to natural processes, such as climate variation, and to development, changes in land management practices, competition from invasive species, and other factors, nearly all related to economic, political, or social interests. Congress faces the issue of how to balance these diverse interests (which may fall on various sides of any given controversy) while promoting the sustainable management of fishery and other marine resources and protection of the marine environment.

Congress last reauthorized and extensively amended the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) in the 109th Congress (P.L. 109-479); the current funding authorization expires on September 30, 2013. The Marine Mammal Protection Act was last reauthorized in 1994 by P.L. 103-238, and funding authorization expired on September 30, 1999.

Commercial and Sport Fisheries

Background

Historically, coastal states managed marine sport and commercial fisheries in nearshore waters, where most seafood was caught. However, as fishing techniques improved, fishermen ventured farther offshore. Before 1950, the federal government assumed limited responsibility for marine fisheries, responding primarily to international fishery concerns and treaties (by enacting implementing legislation for treaties, e.g., the Northern Pacific Halibut Act in 1937) as well as to interstate fishery conflicts (by consenting to interstate fishery compacts, e.g., the Pacific Marine Fisheries Compact in 1947). In the late 1940s and early 1950s, several Latin American nations proclaimed marine jurisdictions extending 200 miles or further offshore. This action was denounced by those within the United States and other distant-water fishing nations who sought to preserve access for far-ranging fishing vessels. Beginning in the 1950s (Atlantic) and 1960s (Pacific), increasing numbers of foreign fishing vessels steamed into U.S. offshore waters to catch the substantially unexploited seafood resources. Since the United States then claimed only a 3-mile jurisdiction (in 1964, P.L. 88-308 prohibited fishing by foreign-flag vessels within 3 miles of the coast; in 1966, P.L. 89-658 proclaimed an expanded 12-mile exclusive U.S. fishery jurisdiction), foreign vessels could fish many of the same stocks caught by U.S. fishermen. U.S. fishermen deplored this "foreign encroachment" and alleged that overfishing was causing stress on, or outright depletion of, fish stocks. Protracted Law of the Sea Treaty2 negotiations in the early and mid-1970s as well as actions by other coastal nations provided impetus for unilateral U.S. action.

The enactment of the Fishery Conservation and Management Act (FCMA); later renamed the Magnuson Fishery Conservation and Management Act and more recently the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA; 16 U.S.C. §§ 1801 et seq.), ushered in a new era of federal marine fishery management. The FCMA was signed into law on April 13, 1976, after several years of debate. On March 1, 1977, marine fishery resources within 200 miles of all U.S. coasts, but outside state jurisdiction, came under federal jurisdiction, and an entirely new multifaceted regional management system began allocating fishing rights, with priority given to domestic enterprise.

Primary federal management authority was vested in the National Marine Fisheries Service (NMFS, also popularly referred to as NOAA Fisheries) within the National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce.3 The 200-mile fishery conservation zone was superseded by a 200-mile Exclusive Economic Zone (EEZ), proclaimed by President Reagan on March 10, 1983 (Presidential Proclamation 5030).

Eight Regional Fishery Management Councils were created by the FCMA.4 Council members are appointed by the Secretary of Commerce from lists of candidates knowledgeable about fishery resources, provided by coastal state governors.5 The councils prepare fishery management plans (FMPs) for those fisheries that they determine require active federal management. After public hearings, revised FMPs are submitted to the Secretary of Commerce for approval. Approved plans are implemented through regulations published in the Federal Register. Together these councils and NMFS have developed and implemented 40 FMPs for various fish and shellfish resources, with 9 additional plans in various stages of development. Some plans are created for an individual species or a few related ones (e.g., FMPs for red drum by the South Atlantic Council and for shrimp by the Gulf of Mexico Council). Others are developed for larger species assemblages inhabiting similar habitats (e.g., FMPs for Gulf of Alaska groundfish by the North Pacific Council and for reef fish by the Gulf of Mexico Council). Many of the implemented plans have been amended (one over 30 times), and three have been developed and implemented jointly by two or more councils. The MSFCMA was reauthorized in the final hours of the 109th Congress by P.L. 109-479, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006.6 The authorization of appropriations in Section 7 of the act expires at the end of FY2013.

Today, individual states manage marine fisheries in inshore and coastal waters, generally within 3 miles of the coast. Interstate coordination occurs through three regional interstate marine fishery commissions (Atlantic, Gulf, and Pacific) created by congressionally approved compacts. Beyond state waters, out to 200 miles, the federal government manages fish and shellfish resources for which FMPs have been developed under the MSFCMA. Individual states manage fishermen operating state-registered vessels under state regulations consistent with any existing federal FMP when fishing in inshore state waters and, in the absence of a federal FMP, wherever they fish.

Under initial FCMA authority, a substantial portion of the fish catch from federal offshore waters was allocated to foreign fishing fleets. However, the 1980 American Fisheries Promotion Act (Title II of P.L. 96-561) and other FCMA amendments orchestrated a decrease in foreign catch allocations as domestic fishing and processing industries expanded. Foreign catch from the U.S. EEZ declined from about 3.8 billion pounds in 1977 to zero since 1992. Commensurate with the decline of foreign catch, domestic offshore catch in federal EEZ waters increased dramatically, from about 1.6 billion pounds (1977) to more than 6.3 billion pounds in 1986-1988.7 Since this peak, annual landings have hovered around 6 billion pounds (Figure 1).

In 2009, U.S. commercial fishermen landed slightly more than 6.0 billion pounds of edible, unprocessed fish and shellfish from combined state, federal, and international waters, worth more than $3.7 billion at the dock.8 Imports of mostly processed products supplied 5.2 billion pounds, worth $13.1 billion. U.S. consumers spent an estimated $75.5 billion on edible seafood in 2009, with $50.3 billion of that amount spent in restaurants and other food service establishments. In addition, marine recreational anglers caught an estimated 391 million fish in 2009, of which the retained catch was about 212 million pounds.9 In 2006, a nationwide survey estimated that recreational anglers spent more than $40 billion each year pursuing their sport.10

Figure 1. U.S. Commercial Fish and Shellfish Harvest, 1976-2007

Source: NMFS, Fisheries of the United States (various years), Current Fishery Statistics series.

NMFS reports annually on the status of fish stocks managed under the MSFCMA.11 For 2009, NMFS made determinations for 250 fish stocks and complexes,12 finding that 38 (15%) of them were subject to overfishing13 and 212 (85%) were not. In addition, NMFS made determinations for 203 stocks and complexes, finding that 46 (23%) were overfished14 and 157 (77%) were not. These numbers reflect a slight decline in the overfishing percentage compared to 2008 (when 16% were subject to overfishing) as well as a stable overfished percentage compared to that year (when 23% were overfished).

In addition, NMFS developed a Fish Stock Sustainability Index (FSSI) in 2005 as a performance measure to evaluate progress nationwide in addressing overfishing.15 Out of a possible maximum FSSI of 920, this index of success in curbing overfishing has increased from 481.5 (third quarter of calendar year 2005) to 580.5 (second quarter of calendar year 2010).

Magnuson-Stevens Act

The MSFCMA was reauthorized in the 109th Congress in 2006 by P.L. 109-479, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006.16 Some of the major issues addressed by this comprehensive measure included

Implementation of P.L. 109-479

NMFS has summarized various tasks associated with implementing P.L. 109-479.18 On January 13, 2009, NMFS released its first report to Congress on implementing Title IV of P.L. 109-479, relating to better control of illegal, unreported, and unregulated (IUU) fishing activities.19 On January 15, 2009, NMFS issued final guidance amending the guidelines for National Standard 1, designed to end overfishing in response to provisions in P.L. 109-479 providing new requirements for annual catch limits and other accountability measures.20

Action in the 111th Congress

Section 602 of P.L. 111-281 amended the American Fisheries Act to modify provisions for vessel rebuilding and replacement, vessel exemptions, and fishery cooperative exemptions. P.L. 111-335 authorized a single fisheries cooperative for the Bering Sea Aleutian Islands longline catcher processor subsector for Pacific cod. P.L. 111-348 amended the MSFCMA to (1) modify language related to prohibiting shark finning, and (2) allow the United States-Canada Transboundary Resource Sharing Understanding to be considered an international agreement to create an exemption allowing federal fisheries managers to extend stock rebuilding deadlines for certain New England fisheries. On October 27, 2009, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on implementation of the MSFCMA. The House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held two hearings on catch shares (1) as a fishery management option (March 16, 2010) and (2) regarding the community perspective (April 22, 2010). In addition, the 111th Congress considered several bills that would have amended the MSFCMA:

Pacific Salmon

Background

Steelhead trout and five species of salmon spawn in Pacific coastal rivers and lakes, after which juveniles migrate to North Pacific ocean waters where they mature before returning to the same freshwater rivers and lakes to spawn. Management is complicated because these fish may cross several state and national boundaries during their life spans, and their different subpopulations/stocks intermingle on fishing grounds. In addition to natural environmental fluctuations, threats to salmon include hydropower dams that block rivers and create reservoirs, sport and commercial harvests, habitat modification by competing resource industries and other human development, and hatcheries seeking to supplement natural production but sometimes unintentionally causing genetic or developmental concerns. In response to declining salmon populations in Washington, Oregon, Idaho, and California, discrete population units have been listed as endangered or threatened species under the Endangered Species Act.21 On September 13, 2006, a San Joaquin River Restoration Settlement Agreement was announced, ending an 18-year legal dispute over the operation of Friant Dam in California. This agreement provides for river channel improvements and water flow to sustain Chinook salmon upstream (south) from the confluence of the Merced River tributary while reducing or avoiding adverse water supply impacts to Friant Division long-term water contractors that may result from restoration flows provided in the agreement.

To address some of their concerns about Pacific salmon management, the United States and Canada negotiated a bilateral agreement on Pacific salmon in 1985. However, by the mid-1990s, controversy stalled renegotiations to adjust cooperative management of these fish. This deadlock was resolved in June 1999 when a new accord was concluded. Annex IV of this bilateral agreement outlines, in detail, the fishery regimes to be followed by Canada and the United States in cooperatively managing the six species of anadromous Pacific salmon and steelhead trout. Annex IV was recently renegotiated and took effect on January 1, 2009.22

Action in the 111th Congress

Language in the "construction" account for the U.S. Fish and Wildlife Service in P.L. 111-8 permanently rescinded all unobligated balances under the authority of the Anadromous Fish Conservation Act. Title X, Subtitle A, of P.L. 111-11 authorized the implementation of the San Joaquin River Restoration Settlement23 providing for the reintroduction of Chinook salmon.24 The 111th Congress considered several additional bills relating to Pacific salmon:

Additional Fishery Issues in the 111th Congress

Assistance

Section 1886 of P.L. 111-5 broadened the basis for determining import increases relating to trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farm-raised fish and seafood. Several other bills in the 111th Congress dealt with assistance to the fishing industry:

Habitat Protection and Restoration

Section 9107 of P.L. 111-11 (H.R. 146) amended P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. On July 27, 2010, the Senate Environment and Public Works Subcommittee on Water and Wildlife held an oversight hearing to assess the natural resource damages resulting from the BP Deepwater Horizon disaster. Other measures were introduced:

Climate Change and Ocean Acidification

Title XII, Subtitle D, of P.L. 111-11 (H.R. 146) directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan.25 On April 22, 2010, the Senate Commerce, Science, and Transportation Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard held a hearing on the environmental and economic impacts of ocean acidification. Several additional bills dealt with climate change and fisheries:

Energy and Water Projects

Section 13002 of P.L. 111-11 (H.R. 146) reauthorized (through FY2015) and amended the Fisheries Restoration and Irrigation Mitigation Act of 2000. Section 15 of H.R. 2120 authorized expenditures for monitoring and management of fish and their habitat related to energy and minerals development on federal onshore and offshore lands.

Sport Fisheries

Section 160 of P.L. 111-68 extended the division of appropriations for various programs under the Sport Fish Restoration and Boating Trust Fund through October 31, 2009. Section 3513 of P.L. 111-84 (H.R. 2647) modified the authorization for applications to the Secretary of Transportation for obsolete vessels to be used as artificial reefs. A number of enactments extended the authority to make expenditures from the Highway Trust Fund and other trust funds, including various programs under the Sport Fish Restoration and Boating Trust Fund: Section 1008(a) of P.L. 111-118 (through February 28, 2010), Section 4(a) of P.L. 111-144 (through March 28, 2010), P.L. 111-147 (through December 31, 2010), and finally P.L. 111-322 (through March 4, 2011). Section 3001(a)(4) of P.L. 111-227 extended the temporary suspension of duty on lug-bottom boots for use in fishing waders. P.L. 111-383 included a provision expressing the sense of Congress regarding recreational fishing on military installations. Several additional bills contained provisions related to sport and recreational fisheries:

International Relations and Immigration

P.L. 111-117 appropriated funds for international fisheries commissions at $53.976 million for FY2010. On July 14, 2010, the Senate Finance Subcommittee on International Trade, Customs, and Global Competitiveness held an oversight hearing on "Marine Wealth: Promoting Conservation and Advancing American Exports."

Additional measures were introduced but were not enacted. Section 103(4) of H.R. 2410 would have authorized appropriations for International Fisheries Commissions at $12.608 million for FY2010 and such sums as may be necessary for FY2011; on June 4, 2009, the House Committee on Foreign Affairs reported this measure (H.Rept. 111-136), amended to authorize the Administration's request of $43.576 million for international fisheries commissions for FY2010 and such sums as may be necessary for FY2011. On June 10, 2009, the House passed H.R. 2410 (amended). Section 103(4) of H.R. 2475 would have authorized appropriations for international fisheries commissions at $29.925 million for FY2010 and such sums as might be necessary for FY2011. S. 2870 would have amended various statutes implementing international fishery agreements to deter and combat illegal, unreported, and unregulated (IUU) fishing. On December 17, 2010, the Senate Committee on Commerce, Science, and Transportation reported S. 2870 (S.Rept. 111-388). S. 2871 would have made technical corrections to the Western and Central Pacific Fisheries Convention Implementation Act and the Pacific Whiting Act of 2006; on September 20, 2010, the Senate Committee on Commerce, Science, and Transportation reported this measure (S.Rept. 111-297). Section 110 of S. 2971 would have amended the Fishermen's Protective Act to extend the period for reimbursement of seized commercial fishing vessels through FY2013; on September 23, 2010, the Senate Committee on Foreign Relations reported (amended) this measure (S.Rept. 111-301), including also authorization in Section 603(e) for appropriations for "International Fisheries Commissions" of $43.6 million for FY2011. Section 101(b)(3) of S. 3508/H.R. 4959 would have directed that a comprehensive plan of action under an International Conservation Strategy consider increased surveillance and enforcement to address IUU fishing in 10 developing countries where fish stocks are severely depleted and regional fishing economies are threatened. On July 29, 2010, the Senate Committee on Appropriations reported S. 3676, providing $51.5 million for international fisheries commissions for FY2011 (S.Rept. 111-237). H.Res. 1608 would have condemned North Korea's detention of a South Korean fishing vessel. On September 22, 2010, the House Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment held an oversight hearing on renegotiating the South Pacific tuna treaty. Under the Immigration and Nationality Act and for the employment of non-immigrants, Section 444 of S. 3932 would have transferred workers in fishing occupations to the H-2A agricultural worker program.

Health Care

P.L. 111-148 included provisions authorizing grants to commercial fishing industry organizations to provide information on qualified health benefit plans and identifying fishing as a high-risk profession affecting the cost of employer-sponsored health coverage.

Additional bills were introduced but were not enacted. Section 2(a) of H.R. 2607, Section 112(a) of S. 1240, Section 232(a) of H.R. 3400, Section 121(a) of H.R. 3713, Section 502(a) of H.R. 3889, Section 201(a) of H.R. 4038, Section 132(a) of H.R. 4529, and Section 501(a) of H.R. 5421 would have amended the Employee Retirement Income Security Act of 1974 (ERISA; P.L. 93-406; 29 U.S.C. §§ 1001, et seq.) to authorize fishing industry associations to provide health care plans for association members.

Enforcement

Section 4(b) of P.L. 111-207 combined separate Coast Guard reports on fisheries enforcement plans and foreign fishing incursion into a single report. On March 2, 2010, the House Oversight and Government Reform Subcommittee on Domestic Policy held an oversight field hearing in Gloucester, MA, on problems with NOAA's fishery law enforcement. On March 3, 2010, the Senate Commerce, Science, and Transportation Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard held an oversight hearing on NOAA's fisheries enforcement programs and operations. On March 3, 2010, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on improving NOAA law enforcement programs and operations.

Additional measures were introduced but were not enacted. H.R. 1080 would have amended various fishery statutes to strengthen enforcement mechanisms to stop illegal, unreported, and unregulated fishing; on March 19, 2009, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on this bill, and on July 24, 2009, the House Committee on Natural Resources reported this measure, amended (H.Rept. 111-228). The House passed H.R. 1080 (amended) on September 22, 2009. S. 2870 would have amended various statutes implementing international fishery agreements to deter and combat illegal, unreported, and unregulated (IUU) fishing. On December 17, 2010, the Senate Committee on Commerce, Science, and Transportation reported S. 2870 (S.Rept. 111-388). H.R. 5668 would have amended the MSFCMA to require sums received as fines, penalties, and forfeitures of property for violations of that act or other marine resource laws to be used to reduce the federal deficit and debt. Section 4 of H.R. 5770 would have required a Coast Guard assessment of the need for additional prevention and response capability, including fisheries enforcement, in the high-latitude regions.

Fishing Vessels

P.L. 111-215 extended the date on which the Environmental Protection Agency and applicable states might require permits for discharges from fishing vessels to December 18, 2013. P.L. 111-281 amended the American Fisheries Act to modify provisions for vessel rebuilding and replacement and vessel exemptions (Section 602) and amended various provisions of Title 46 relating to fishing vessel safety (Section 604). Several additional bills contained provisions relating to commercial fishing vessels:

Trade

Invasive Species

P.L. 111-307 (S. 1421) amended the Lacey Act to add bighead carp to the list of injurious species that are prohibited from being imported or shipped interstate. On February 9, 2010, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held an oversight hearing on Asian carp and the Great Lakes.27 On February 25, 2010, the Senate Energy and Natural Resources Subcommittee on Water and Power held a hearing to examine the science and policy behind efforts to prevent the introduction of Asian carp into the Great Lakes. On July 14, 2010, the Senate Energy and Natural Resources Subcommittee on Water and Power held an oversight hearing to examine the federal response to the discovery of Asian carp in Lake Calumet, Illinois. A number of additional bills were introduced with provisions relating to invasive species issues.

S. 3073 would have prioritized funding non-federal partners in a Great Lakes Restoration Initiative for invasive species prevention and mitigation and restoration of invasive species impacts.

Sharks

P.L. 111-348 amended the MSFCMA and the High Seas Driftnet Fishing Moratorium Protection Act to increase sanctions on nations that permit shark finning. H.Res. 1420 would have expressed the sense of the House urging parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora to adopt stronger protections for sharks at the 16th meeting of the Conference of the Parties in 2013.

Seafood Safety and Nutrition

P.L. 111-353 included provisions (1) directing the Secretary of Health and Human Services to update the Fish and Fisheries Products Hazards and Control Guidance to take into account advances in technology and (2) requiring a report by the Food and Drug Administration on the post-harvest processing of raw oysters. A number of other bills were introduced in the 111th Congress to address various seafood safety and nutrition issues:

Coral

Several bills included provisions related to coral and coral reefs:

Tuna

On April 2, 2009, the House Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment held an oversight hearing on the South Pacific Tuna Treaty. On September 22, 2010, the House Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment held an oversight hearing on renegotiating the South Pacific Tuna Treaty. On November 9, 2009, the Senate agreed to S.Res. 346, expressing the sense of the Senate regarding the U.S. position at the 21st Regular Meeting of the International Commission on the Conservation of Atlantic Tunas relative to Atlantic bluefin tuna. Several bills contained provisions related to tuna and tuna fisheries:

Hypoxia and Algal Blooms

Section 6 of S. 878 and Section 13 of H.R. 2093 (as reported) would have required the EPA Administrator to complete a study on the impact of algae blooms on coastal recreation waters; the Senate Committee on Environment and Public Works reported S. 878 (amended) on April 20, 2010 (S.Rept. 111-170). The House Committee on Transportation reported (amended) H.R. 2093 on July 20, 2009 (H.Rept. 111-214). On July 29, 2009, the House passed H.R. 2093 (amended). S. 952 and H.R. 3650 would have authorized a comprehensive national strategy to address harmful algal blooms and hypoxia; on February 4, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) S. 952 (S.Rept. 111-125), and on January 13, 2010, the House Committee on Science and Technology reported (amended) H.R. 3650 (H.Rept. 111-396, Part I). On March 12, 2010, the House passed H.R. 3650 (amended). S. 1252 would have amended and reauthorized the Oceans and Human Health Act through FY2014; on September 20, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) this measure (S.Rept. 111-296). On September 17, 2009, the House Science and Technology Subcommittee on Energy and Environment held a hearing on formulating an action plan to address harmful algal blooms and hypoxia.

Chesapeake Bay

Section 2 of H.R. 1771/S. 1224 would have required the Director of NOAA's Chesapeake Bay Office to establish a Chesapeake Bay coastal living resources management and habitat program to support coordinated management, protection, characterization, and restoration of priority habitats and living resources. The House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on H.R. 1771 on July 8, 2009. The House Committee on Natural Resources reported H.R. 1771 (amended) on September 29, 2009 (H.Rept. 111-271), and the House passed this measure (amended) on September 30, 2009. On February 23, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) S. 1224 (S.Rept. 111-126). S. 1816 included provisions (1) authorizing a study on the impacts of the commercial harvesting of menhaden on the water quality of the Chesapeake Bay and (2) prohibiting the introduction of Asian oysters into Chesapeake Bay; on November 9, 2009, the Senate Environment and Public Works Subcommittee on Water and Wildlife held a hearing on S. 1816. On September 28, 2010, the Senate Committee on Environment and Public Works reported (amended) S. 1816 (S.Rept. 111-333).

National Marine Sanctuaries and Monuments

Section 7(b)(2)(h) of H.R. 223/S. 212 would have promoted cooperative research and education efforts with commercial fishermen operating within the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary; on August 4, 2009, the Senate Committee on Commerce, Science, and Transportation reported (amended) S. 212 (S.Rept. 111-64). H.R. 790 and S. 851 would have prohibited federal oil or natural gas leases in any marine national monument or national marine sanctuary or Georges Bank. H.R. 4493 would have enhanced visitor services, fish and wildlife research, and marine and coastal resource management related to the Marianas Trench Marine National Monument; on May 18, 2010, the House Committee on Natural Resources reported this bill, amended (H.Rept. 111-484). H.R. 3511 would have authorized the Secretary of the Interior to establish and operate a visitor facility for the Marianas Trench Marine National Monument; this measure was reported (amended) by the House Committee on Natural Resources on May 18, 2010 (H.Rept. 111-483).

Tax Provisions

H.R. 115 would have amended the Internal Revenue Code to provide for tax-exempt qualified small issue bonds to finance fish processing facilities. S. 532 would have amended the Internal Revenue Code to provide a business credit against income for the purchase of fishing safety equipment. H.R. 3622 would have amended the Internal Revenue Code of 1986 to allow a credit for the construction of ponds for recreational fishing and conservation of water-based wildlife habitats.

Marine Turtles

H.R. 509 would have reauthorized the Marine Turtle Conservation Act of 2004 through FY2014; the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on this bill on May 5, 2009. On July 10, 2009, the House Committee on Natural Resources reported this measure, amended (H.Rept. 111-200). The House passed H.R. 509 (amended) on July 28, 2009. On December 3, 2009, the Senate Environment and Public Works Subcommittee on Water and Wildlife held a hearing on this measure. On April 26, 2010, the Senate Committee on Environment and Public Works reported H.R. 509 (S.Rept. 111-173). H.R. 5155 would have directed the Secretary of Commerce to conduct an aerial assessment of sea turtle populations in U.S. waters.

Marketing

Section 131 of H.R. 759 and Section 201 of H.R. 2749 would have amended the Federal Food, Drug, and Cosmetic Act to require labeling as a color additive whenever carbon monoxide is used to treat meat, poultry, and seafood.28 On July 29, 2009, the House Committee on Energy and Commerce reported H.R. 2749 (H.Rept. 111-234), amended to remove the section relating to carbon monoxide. On July 7, 2009, the Senate Committee on Appropriations reported S. 1406, with report language encouraging the Food and Drug Administration to more aggressively combat fraud in parts of the seafood industry (S.Rept. 111-39). Section 7 of H.R. 6434 would have established a Gulf of Mexico Seafood Marketing Program, with funding provided in Section 3(c)(3).

Fisheries Research Vessel

As reported by the Senate Committee on Commerce, Science, and Transportation (S.Rept. 111-95), Section 901 of S. 1194 would have required the NOAA Administrator to take certain actions relative to determining the homeport of the fisheries research vessel HENRY B BIGELOW.

Native American Fisheries

H.R. 5672 would have protected the use of traditional fishing equipment on federal lands and prevented certain restrictions on the implements and equipment used by fishing communities.

Aquaculture

Background

Aquaculture is broadly defined as the farming or husbandry of fish, shellfish, and other aquatic animals and plants, usually in a controlled or selected environment.29 The diversity of aquaculture is typified by such activities as fish farming, usually applied to freshwater commercial aquaculture operations (e.g., catfish and trout farms);30 shellfish and seaweed culture; net-pen culture, used by the salmon industry, wherein fish remain captive throughout their lives in marine pens built from nets; and ocean ranching, used by the Pacific Coast salmon industry, whereby juvenile salmon are cultured, released to mature in the open ocean, and caught when they return as adults to spawn. Fish hatcheries can be either publicly or privately operated to raise fish for recreational and commercial stocking as well as to mitigate aquatic resource and habitat damage.

The U.N. Food and Agriculture Organization (FAO) has characterized aquaculture as one of the world's fastest-growing food production activities. World aquaculture production more than doubled in 10 years, from about 10 million metric tons in 1984 to 25.5 million metric tons in 1994; by 2002, global aquaculture production had reached almost 40 million metric tons. By mid-2006, FAO estimated that 43% of all fish consumed by humans came from aquaculture.31 FAO has projected that aquaculture will surpass wild-harvested seafood as the source of more than half of global seafood consumption in 2008. In addition, FAO predicts that world aquaculture production could exceed 130 million metric tons by 2030.32

U.S. aquaculture, until recently and with a few exceptions, has been considered a minor industry. The U.S. Department of Agriculture's 2005 Census of Aquaculture reported that U.S. sales of aquaculture products had reached nearly $1.1 billion, with more than half this value produced in Alabama, Arkansas, Louisiana, and Mississippi.33 Despite considerable growth, the domestic aquaculture industry faces strong competition from imports of foreign aquacultural products, from the domestic poultry and livestock industries, and from wild harvests. With growth, however, aquaculture operations face increasing scrutiny for habitat destruction, pollution, and other concerns. The major statute affecting U.S. aquaculture is the National Aquaculture Act of 1980, as amended (16 U.S.C. §§ 2801 et seq.). The purpose of this act is to ensure coordination of various federal programs and policies affecting the aquaculture industry, and to promote and support aquaculture research and development.

In October 2007, NOAA released a 10-year plan for its marine aquaculture program.34 Legislation to modify the regulatory environment and promote the development of U.S. offshore, open-ocean aquaculture was introduced in the 110th and 111th Congresses, but was never considered by either chamber.

Action in the 111th Congress

Assistance

P.L. 111-5 contained language in (1) Section 103(d) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year; and (2) Section 1886 broadening the basis for determining import increases relating to trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farm-raised fish and seafood. P.L. 111-205 became law after Senate action deleted a provision that would have provided emergency disaster assistance to aquaculture producers for losses associated with high feed input costs during the 2009 calendar year. Section 1501 of P.L. 111-240 amended the Small Business Act to authorize certain disaster assistance to aquaculture enterprises that are small businesses.

A number of additional measures were introduced but not enacted. S. 533 and H.R. 2548 would have amended the Coastal Zone Management Act to establish a grant program to ensure waterfront access for aquaculture operators and commercial fishermen; on October 20, 2009, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on H.R. 2548. Section 106 of S. 684, Section 208 of S. 3597, Section 208 of H.R. 6292, and Section 627 of S. 3663 would have authorized the Coast Guard and NOAA to identify U.S. areas where special navigational measures are warranted to reduce the risk of oil spills and potential damage to natural resources, including aquaculture facilities; the Senate Committee on Commerce, Science, and Transportation reported S. 3597 (amended) on December 17, 2010. H.R. 1983 would have recodified Title 53 (Small Business) of the U.S. Code, including disaster assistance programs applicable to commercial fishermen and aquaculture operations. Section 205 of S. 2731 would have deleted aquaculture from the definition of "agricultural enterprises" for Small Business Administration disaster recovery funds. H.R. 4177 and S. 2810 contained language that would have directed the Secretary of Agriculture to provide assistance to any applicant that produces catfish. S. 3337 and Section 10 of S. 3763 would have provided technical assistance grants to certain aquaculture organizations for assisting individuals and businesses affected by the Deepwater Horizon oil spill in the Gulf of Mexico to file claims.

National Fish Hatchery System

P.L. 111-5 contained language including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service.

A number of additional measures were introduced but not enacted. Section 8 of S. 313/H.R. 1065 would have addressed the relationship between the Department of the Interior and the White Mountain Apache Tribe (WMAT) for the operation and maintenance of the Alchesay-Williams Creek National Fish Hatchery Complex and the WMAT Fishery Center; on January 21, 2010, the Senate Committee on Indian Affairs reported (amended) S. 313, eliminating the hatchery provisions while authorizing the WMAT Settlement Fund for use in fish production, including hatcheries (S.Rept. 111-119). On January 12, 2010, the House Committee on Natural Resources reported (amended) H.R. 1065, eliminating the hatchery provisions while authorizing the WMAT Settlement Fund for use in fish production, including hatcheries (H.Rept. 111-391); the House passed this amended measure on January 21, 2010. Section 201 of H.R. 4347 would have amended Title IV of the Indian Self-Determination and Education Assistance Act relating to funding agreements with the Quinault Indian Nation for the National Salmon Hatchery located on the Quinault Reservation. H.R. 6115 and S. 3781 would have directed the Secretary of the Interior to convey the McKinney Lake National Fish Hatchery to the state of North Carolina.

Research

P.L. 111-80 provided $3.9 million for regional aquaculture centers, $6.56 million for aquaculture pest and disease management (including $5.188 million for viral hemorrhagic septicemia), and $13.913 million in congressionally directed appropriations for aquaculture research and development (including $1.238 million for viral hemorrhagic septicemia and $465,000 for cormorant control) for FY2010.

Additional measures were introduced but not enacted. S. 3606, reported by the Senate Committee on Appropriations on July 15, 2010 (S.Rept. 111-221), would have provided $3.928 million for regional aquaculture centers, $6.57 million for aquaculture pest and disease management, and $4.245 million in congressionally directed appropriations for aquaculture research and development (including $500,000 for viral hemorrhagic septicemia and $465,000 for cormorant control) for FY2011. As reported (amended) by the Senate Committee on Environment and Public Works on September 20, 2010 (S.Rept. 111-298), Section 4 of S. 3119 would have authorized aquaculture of suspension-feeding shellfish or algae for a nutrient bioextraction pilot project in Long Island Sound.

Oysters

Section 124 of Title I, P.L. 111-88 authorized the Secretary of the Interior to extend Drake's Bay Oyster Company's Reservation of Use and Occupancy and associated special use permit within Drake's Estero at Point Reyes National Seashore. P.L. 111-353 required a report by the Food and Drug Administration on the post-harvest processing of raw oysters.

Additional measures were introduced but not enacted. H.R. 3852 and S. 1816 included a provision that would have amended Section 117 of the Federal Water Pollution Control Act to prohibit the introduction of Asian oysters in Chesapeake Bay; on November 9, 2009, the Senate Environment and Public Works Subcommittee on Water and Wildlife held a hearing on S. 1816. On September 28, 2010, the Senate Committee on Environment and Public Works reported (amended) S. 1816 (S.Rept. 111-333). S. 2273 and Section 2001(a)(194) of H.R. 4380 proposed to extend the temporary suspension of duty on oysters (other than smoked), prepared or preserved. H.R. 4022, S. 2735, and S. 2752 would have prohibited additional requirements for the control of Vibrio vulnificus applicable to the post-harvest processing of oysters; in addition, S. 2752 would have required an education campaign to increase awareness of the risks associated with consuming raw oysters.

Disease

Section 901(c) of P.L. 111-281 authorized the U.S. Coast Guard to issue waivers to permit nonqualified vessels to perform aquaculture support operations relating to treating or protecting aquaculture fish from disease, parasitic infestation, or other threats to their health when no suitable U.S. vessel is available.

Asian Carp35

P.L. 111-307 amended the Lacey Act to add bighead carp to the list of injurious species that are prohibited from being imported or shipped interstate.

Food Safety

P.L. 111-353, included provisions (1) directing the Secretary of Health and Human Services to update the Fish and Fisheries Products Hazards and Control Guidance to take into account advances in technology and (2) requiring a report by the Food and Drug Administration on the post-harvest processing of raw oysters.

Additional measures were introduced but not enacted. H.R. 1370 and S. 3928 would have directed the Secretaries of Commerce and of Health and Human Services to strengthen programs to better ensure that fish in interstate commerce is fit for human consumption. On July 7, 2009, the Senate Committee on Appropriations reported S. 1406, with report language strongly encouraging the Food and Drug Administration to develop a program for increasing the inspection of imported shrimp for banned antibiotics (S.Rept. 111-39).

Chesapeake Bay

Section 2 of H.R. 1771/S. 1224 would have required the Director of NOAA's Chesapeake Bay Office to establish a Chesapeake Bay coastal living resources management and habitat program to support various activities, including native oyster restoration, fish and shellfish aquaculture, and submerged aquatic vegetation propagation. The House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on H.R. 1771 on July 8, 2009. The House Committee on Natural Resources reported H.R. 1771 (amended) on September 29, 2009 (H.Rept. 111-271), and the House passed this measure (amended) on September 30, 2009. On February 23, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) S. 1224 (S.Rept. 111-126). H.R. 3852 and S. 1816 included a provision that would have amended Section 117 of the Federal Water Pollution Control Act to prohibit the introduction of Asian oysters in Chesapeake Bay. On November 9, 2009, the Senate Environment and Public Works Subcommittee on Water and Wildlife held a hearing on S. 1816. On September 28, 2010, the Senate Committee on Environment and Public Works reported (amended) S. 1816 (S.Rept. 111-333).

Offshore Aquaculture

On September 9, 2009, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on offshore aquaculture. Section 704 of H.R. 3534 would have prohibited regional fishery management councils from implementing offshore aquaculture through fishery management plans and their amendments and invalidates any such action already taken; on September 16-17, 2009, the House Committee on Natural Resources held hearings on this measure. On July 28, 2010, the House Committee on Natural Resources reported (amended) H.R. 3534 (H.Rept. 111-575); the House passed this measure on July 30, 2010, after further amendment to remove the aquaculture provision. H.R. 4363 would have established a regulatory system and research program for sustainable offshore aquaculture in the U.S. EEZ. S. 3417 would have prohibited offshore aquaculture until three years after the submission of a report on its impacts.

Algae

S. 1250, Section 1306 of H.R. 2300/H.R. 2828, Section 2 of H.R. 3460, H.R. 3985, H.R. 4168, and H.R. 5142 would have amended the Internal Revenue Code to provide benefits for production of algae-based fuel; on September 28, 2010, the House passed H.R. 4168 (amended). Section 2 of H.R. 3460, Section 2 of S. 1250, Section 3 of H.R. 5142, Section 503 of S. 3601 and H.R. 6564, Section 502 of S. 3738, and Section 601 of S. 3935 would have included algae-based biofuel in the definition of cellulosic biofuel, thus extending tax credits to algae-based biofuel production.

Marketing

Section 131 of H.R. 759 would have amended the Federal Food, Drug, and Cosmetic Act to require labeling as a color additive whenever carbon monoxide is used to treat meat, poultry, and seafood. H.R. 6264, S. 3969, and Section 301 of H.R. 6325 would have amended the Federal Food, Drug, and Cosmetic Act to require labeling of genetically engineered fish. H.R. 6265 and S. 3971 would have amended the Federal Food, Drug, and Cosmetic Act to prevent the approval of genetically engineered fish.

Delta Smelt

Section 4 of H.R. 856 would have authorized the Secretary of the Interior to enter into a cooperative agreement with the state of California to establish a fish hatchery program for Delta smelt in the Sacramento-San Joaquin Delta.

Marine Mammals

Background

In 1972, Congress enacted the Marine Mammal Protection Act (MMPA; 16 U.S.C. §§ 1361 et seq.), due in part to the high level of dolphin mortality (estimated at more than 400,000 animals per year) in the eastern tropical Pacific tuna purse-seine fishery. While some critics assert that the MMPA is scientifically irrational because it identifies one group of organisms for special protection unrelated to their abundance or ecological role, supporters note that the MMPA has accomplished much by way of promoting research and increased understanding of marine life as well as encouraging attention to incidental bycatch mortalities of marine life by the commercial fishing and other maritime industries.

The MMPA established a moratorium on the "taking" of marine mammals in U.S. waters and by U.S. nationals on the high seas. It also established a moratorium on importing marine mammals and marine mammal products into the United States. The MMPA protected marine mammals from "clubbing, mutilation, poisoning, capture in nets, and other human actions that lead to extinction." It also expressly authorized the Secretary of Commerce and the Secretary of the Interior to issue permits for the "taking" of marine mammals for certain purposes, such as scientific research and public display.

Under the MMPA, the Secretary of Commerce, acting through NMFS, is responsible for the conservation and management of whales, dolphins, and porpoises (cetaceans), and seals and sea lions (pinnipeds). The Secretary of the Interior, acting through the Fish and Wildlife Service (FWS), is responsible for walruses, sea and marine otters, polar bears, manatees, and dugongs. This division of authority derives from agency responsibilities as they existed when the MMPA was enacted. Title II of the MMPA established an independent Marine Mammal Commission (MMC) and its Committee of Scientific Advisors on Marine Mammals to oversee and recommend actions necessary to meet the requirements of the MMPA.

Prior to passage of the MMPA, states were responsible for marine mammal management on lands and in waters under their jurisdiction. The MMPA shifted marine mammal management authority to the federal government. It provides, however, that management authority, on a species-by-species basis, could be returned to states that adopt conservation and management programs consistent with the purposes and policies of the MMPA. It also provides that the moratorium on taking can be waived for specific purposes, if the taking will not disadvantage the affected species or population. Permits may be issued to take or import any marine mammal species, including depleted species, for scientific research or to enhance the survival or recovery of the species or stock. The MMPA allows U.S. citizens to apply for and obtain authorization for taking small numbers of mammals incidental to activities other than commercial fishing (e.g., offshore oil and gas exploration and development) if the taking would have only a negligible impact on any marine mammal species or stock, provided that monitoring requirements and other conditions are met.

The MMPA moratorium on taking does not apply to any Native American (Indian, Aleut, or Eskimo) who resides in Alaska near the coast of the North Pacific (including the Bering Sea) or Arctic Ocean (including the Chukchi and Beaufort Seas), if such taking is for subsistence or for creating and selling authentic Native articles of handicrafts and clothing, and is not done wastefully.

The MMPA also authorizes the taking of marine mammals incidental to commercial fishing operations. In 1988, most U.S. commercial fish harvesters were exempted from otherwise applicable rulemaking and permit requirements for a five-year period, pending development of an improved system to govern the incidental taking of marine mammals in the course of commercial fishing operations. This exemption expired at the end of FY1993, and was extended several times until new provisions were enacted in 1994 by P.L. 103-238, which reauthorized the MMPA through FY1999. The eastern tropical Pacific tuna fishery was excluded from the incidental take regimes enacted in 1988 and 1994. Instead, the taking of marine mammals incidental to that fishery is governed by separate provisions of the MMPA, and was substantially amended in 1997 by P.L. 105-42, the International Dolphin Conservation Program Act.

Section 319 of P.L. 108-136 amended the MMPA to provide a broad exemption for "national defense" activities. This section also amended the definition of "harassment" of marine mammals, as it applies to military readiness activities, to require greater scientific evidence of harm, and the consideration of impacts on military readiness in the issuance of permits for incidental takings.36 The Navy's use of mid-frequency sonar and its possible effects on marine mammals has been the focus of much controversy and litigation.37

Marine Mammal Protection Act Reauthorization

The MMPA was reauthorized by P.L. 103-238, the Marine Mammal Protection Act Amendments of 1994; the authorization for appropriations expired on September 30, 1999. The 1994 amendments indefinitely authorized the taking of marine mammals incidental to commercial fishing operations and provided for assessing marine mammal stocks in U.S. waters, for developing and implementing take-reduction plans for stocks that have been reduced or are being maintained below their optimum sustainable population levels due to interactions with commercial fisheries, and for studying pinniped-fishery interactions.38

A December 2008 study by the Government Accountability Office (GAO) found that limitations in information available make it difficult for NMFS to accurately determine which marine mammal stocks meet the statutory requirements for establishing take reduction teams.39 GAO found that NMFS did not have a human-caused mortality estimate or a maximum removal level for 39 of 113 marine mammal stocks, making it impossible to determine their strategic status in accordance with MMPA requirements. For the remaining 74 stocks, NMFS data have significant limitations that call into questions their accuracy. NMFS contends that funding constraints limit their ability to gather sufficient data. In addition, NMFS has not established take reduction teams for 14 marine mammal stocks for which NMFS data show them to be strategic and interacting significantly with commercial fisheries.

In 111th Congress on April 27, 2010, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on marine mammals in captivity and what constitutes meaningful public education. No bills were introduced in the 111th Congress to reauthorize the MMPA.40 In the 111th Congress, a number of bills were introduced proposing to amend the MMPA:

Additional Marine Mammal Issues in the 111th Congress

Whales and Whaling

H.R. 2455 and S. 3116 would have amended the Whale Conservation and Protection Study Act to promote international whale conservation, protection, and research. On May 6, 2010, the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight and Subcommittee on Asia, the Pacific, and the Global Environment held a joint hearing on H.R. 2455. H.R. 2955 would have amended the Whaling Convention Act of 1949 to require that the United States Commissioner to the International Whaling Commission be a federal employee. H.R. 4137 would have authorized the Secretary of the Interior to provide preservation and interpretation assistance to the New Bedford Whaling National Historical Park in Massachusetts. H.Res. 1390 would have expressed the sense of the House that the United States should use its position of global leadership to strengthen whale conservation efforts and to ensure that commercial, scientific, and other lethal whaling does not occur for any purpose other than aboriginal subsistence.

Habitat Protection

S. 1252 would have amended and reauthorized the Oceans and Human Health Act through FY2014; on September 20, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) this measure (S.Rept. 111-296). S. 3584 and H.R. 6292 would have directed NOAA to research oil spill prevention and response in the Arctic waters, including assessment of impacts on Arctic marine mammals. In addition, H.R. 6292, along with S. 3597 and Title VI of S. 3663, sought to improve the ability of the National Oceanic and Atmospheric Administration, the Coast Guard, and coastal states to sustain healthy ocean and coastal ecosystems relative to oil spills; the Senate Committee on Commerce, Science, and Transportation reported S. 3597 (amended) on December 17, 2010. Section 225 of H.R. 3534, as passed by the House on July 30, 2010, and Section 6 of H.R. 5863 would have amended the Outer Continental Shelf Lands Act to require an assessment of the cumulative impacts of OCS oil and gas exploration and development on marine mammal stocks and subsistence use.

Sea Otter

H.R. 556 and S. 1748 would have established a research program for the recovery of the southern sea otter; the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on H.R. 556 on May 5, 2009. The House Committee on Natural Resources reported H.R. 556 (amended) on June 23, 2009 (H.Rept. 111-175), and the House passed this measure (amended) on July 28, 2009. On December 10, 2010, the Senate Committee on Commerce, Science, and Transportation reported (amended) S. 1748 (S.Rept. 111-362). H.R. 6394 would have amended the MMPA to allow transport, purchase, sale, and export of pelts of Southcentral and Southeast Alaska northern sea otters that are taken for subsistence purposes.

Climate Change

H.R. 2192; Title IV, Subtitle E, Part 1, Subpart C, of H.R. 2454/H.R. 2998; Division A, Title III, Subpart C, of S. 1733; and S. 1933 would have authorized funding for efforts to strengthen and restore habitat to improve the ability of wildlife to adapt successfully to climate change.41 The House Committee on Energy and Commerce held hearings on H.R. 2454 on May 18-21, 2009, and reported this measure (amended) on June 5, 2009 (H.Rept. 111-137, Part I). On June 26, 2009, the House passed H.R. 2454 (amended). The Senate Committee on Environment and Public Works held a hearing on S. 1733 on October 27-29, 2009, and reported this bill (amended) on February 2, 2010 (S.Rept. 111-121).

Dolphin Protection

H.R. 1080 would have amended the Dolphin Protection Consumer Information Act to strengthen enforcement mechanisms to stop illegal, unreported, and unregulated fishing; on March 19, 2009, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held a hearing on this bill, and on July 24, 2009, the House Committee on Natural Resources reported this measure, amended (H.Rept. 111-228). The House passed H.R. 1080 (amended) on September 22, 2009.

Polar Bears

H.R. 5379 would have delisted the polar bear as a threatened species under the Endangered Species Act. H.Res. 1420 would have expressed the sense of the House urging parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora to adopt stronger protections for the polar bear at the 16th meeting of the Conference of the Parties in 2013.

Seals

S.Res. 84 and H.Res. 1314 urged (1) Canada to halt its commercial seal hunt and (2) other countries to prohibit trade in seal products; on May 7, 2009, the Senate agreed to S.Res. 84 after it had been reported by the Senate Committee on Foreign Relations.

Disease

H.R. 6276 would have authorized the Secretary of the Interior to identify and declare wildlife disease emergencies and to coordinate rapid response, with marine mammals identified for priority attention.

Military Sonar

H.R. 672 would have restricted the use of military and national security exemptions to MMPA restrictions on marine mammal taking.

NMFS Appropriations

On February 1, 2010, the Obama Administration released its FY2011 budget request, including about $973 million for NMFS. (See Table 1.) The FY2011 request for NMFS funding within NOAA's Operations, Research, and Facilities (OR&F) Account was $3.238 million (+0.4%) more than funding enacted for FY2010. Total NMFS funding was proposed to decrease by $11.412 million (-1.2%) from that enacted for FY2010, primarily due to a proposed reduction of $15 million for the Pacific Coastal Salmon Recovery Fund.42 On February 24, 2010, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on NOAA's FY2011 budget request. On March 3, 2010, the Senate Commerce, Science, and Transportation Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard held an oversight hearing on NOAA's FY2011 budget request. On July 22, 2010, the Senate Committee on Appropriations reported S. 3636, recommending about $909 million for NMFS within NOAA's OR&F Account for FY2011 (S.Rept. 111-229); the Senate Committee recommendation is $4.49 million (+0.5%) more than the FY2010 appropriation and $1.252 million (+0.1%) more than the FY2011 Administration request. The Senate Committee recommended that total NMFS funding be increased by $4.84 million (+0.5%) from that enacted for FY2010. As FY2011 began, a number of enactments provided continued funding at FY2010 levels, including P.L. 111-242 (through December 3, 2010), P.L. 111-290 (through December 18, 2010), and P.L. 111-322 (through March 4, 2011).

On June 12, 2009, the House Committee on Appropriations reported H.R. 2847, recommending FY2010 appropriations of almost $916 million for NMFS (H.Rept. 111-149). The House recommendation was about 4.2% greater than the FY2009 enacted level and about 0.5% larger than the FY2010 Administration request. The House passed this measure on June 18, 2009. On June 25, 2009, the Senate Committee on Appropriations reported (amended) H.R. 2847, recommending FY2010 appropriations of more than $952 million for NMFS (S.Rept. 111-34). The Senate recommendation was about 8.4% greater than the FY2009 enacted level, about 4.5% more than the FY2010 Administration request, and about 4.0% larger than the House FY2010 recommendation. The Senate passed H.R. 2847 (amended) on November 5, 2009. A conference report on H.R. 3288 (an omnibus measure including the material formerly in H.R. 2847) was filed on December 8, 2009 (H.Rept. 111-366), including more than $984 million for NMFS and related programs. President Obama signed P.L. 111-117 into law on December 16, 2009.

P.L. 111-212 (emergency supplemental appropriations; H.R. 4899) provided (1) $5 million for expenses related to commercial fishery failures as determined by the Secretary of Commerce in January 2010; (2) $13 million for responding to economic impacts on fishermen and fishery-dependent businesses; (3) $7 million for scientific investigations and sampling as a result of the incidents related to the discharge of oil and the use of oil dispersants in 2010 after the explosion and sinking of the mobile offshore drilling unit Deepwater Horizon; (4) $15 million for fisheries disaster relief under Section 312 of the MSFCMA related to a fishery resource disaster in the Gulf of Mexico that resulted from the Deepwater Horizon oil discharge; (5) $10 million to conduct an expanded stock assessment of the fisheries of the Gulf of Mexico; and (6) $1 million for the National Academy of Sciences to study of the long-term ecosystem service impacts of the Deepwater Horizon oil discharge.

Table 1. NMFS Appropriations, FY2009-FY2011

(in thousands of dollars)

 

FY2010
Request

FY2010
Enacted

FY2011 Request

FY2011 S.Rept.

Fisheries

499,949

512,097

537,263

536,744

Protected Species

243,538

201,577

210,251

213,632

Habitat Conservation

44,023

50,343

54,918

52,443

Enforcement Surveillance

103,132

106,747

105,345

106,210

Cong.-Directed Projects

  

33,775

 

  

SUBTOTAL (OR&F)

890,642

904,539

907,777

909,029

Procurement, Acquisition, Construction

0

0

0

0

Pacific Coastal Salmon Recovery

0a

80,000

65,000

80,000

Other Accounts

21,110

0

350

350

TOTAL

911,752

984,539

973,127

989,379

Sources: Budget Justifications, House and Senate Committee Reports, and floor debate.

a. The Administration's budget request proposed to transfer $50 million from species recovery grants within NMFS to fund activities within the Pacific Coastal Salmon Recovery account.

FWS Appropriations

The FWS budget account for "fisheries and aquatic resource conservation" includes funding for the National Fish Hatchery operations, aquatic invasive species programs, and marine mammal programs. These programs employ about 800 individuals, located at 70 National Fish Hatcheries, 65 Fish and Wildlife Conservation Offices, one historic National Fish Hatchery, nine Fish Health Centers, and seven Fish Technology Centers.

On February 1, 2010, the Obama Administration released its detailed budget request for FY2011, including about $142.5 million for FWS fisheries and aquatic resource conservation programs, which is about $5.7 million (-3.9%) less than was enacted for FY2010. Most of the reductions in funding occur in the line items for National Fish Hatchery operations and aquatic invasive species. Table 2 summarizes recent fisheries and aquatic resource conservation funding for FWS.43 On March 4, 2010, the House Natural Resources Subcommittee on Insular Affairs, Oceans, and Wildlife held an oversight hearing on the FY2011 FWS budget. As FY2011 began, a number of enactments provided continued funding at FY2010 levels, including P.L. 111-242 (through December 3, 2010), P.L. 111-290 (through December 18, 2010), and P.L. 111-322 (through March 4, 2011).

Table 2. FWS Appropriations, FY2009-FY2011

(in thousands of dollars)

 

FY2009
Enacted

FY2010
Request

FY2010
Enacted

FY2011 Request

Fisheries and Aquatic Resource Conservation

131,831

140,695

148,214

142,477

Sources: Budget justifications, House and Senate Committee Reports, and floor debate.

Footnotes

1.

For example, see America's Living Oceans: Charting a Course for Sea Change, available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Protecting_ocean_life/env_pew_oceans_final_report.pdf, and An Ocean Blueprint for the 21st Century, available at http://www.oceancommission.gov/documents/full_color_rpt/000_ocean_full_report.pdf.
2.

The United Nations Convention on the Law of the Sea was reported favorably in the 110th Congress by the Senate Committee on Foreign Relations (S.Exec.Rept. 110-9) on December 19, 2007.
3.

NMFS programs are described in detail at http://www.nmfs.noaa.gov/.
4.

Links to individual council websites are available at http://www.nmfs.noaa.gov/councils/.
5.

For the 2007 report to Congress on council membership, see http://www.nmfs.noaa.gov/sfa/reg_svcs/Council_Reportocongress/07_RptCongress.pdf.
6.

A detailed summary of the Sustainable Fisheries Act, including an explanation of issues and legislative history, can be found at http://www.nmfs.noaa.gov/sfa/sfaguide/.
7.

This total includes both landings for human food and landings for industrial purposes, for example, bait and animal food, reduction to meal and oil, etc.
8.

For additional domestic commercial fishery harvest statistics, see http://www.st.nmfs.noaa.gov/st1/commercial/index.html. Statistics for 2009 are available at http://www.st.nmfs.noaa.gov/st1/fus/fus09/fus_2009.pdf.
9.

Recreational fishing programs at NMFS are discussed at http://www.st.nmfs.gov/st1/recreational/index.html.
10.

Results of the 2006 survey can be found at http://library.fws.gov/pubs/nat_survey2006_final.pdf.
11.

See http://www.nmfs.noaa.gov/sfa/statusoffisheries/sos_full28_press.pdf.
12.

NMFS reviewed 522 individual stocks and stock complexes but had insufficient information to make determinations on all of them.
13.

A stock that is subject to overfishing has a fishing mortality (harvest) rate above the level that provides for the maximum sustainable yield.
14.

A stock that is overfished has a biomass level below a biological threshold specified in its fishery management plan.
15.

FSSI is a performance measure for the sustainability of 230 fish stocks selected for their importance to commercial and recreational fisheries. The FSSI will increase as overfishing ends and stocks rebuild to the level that provides maximum sustainable yield. FSSI is calculated by assigning a score for each fish stock based on rules available at http://www.nmfs.noaa.gov/sfa/statusoffisheries/2010/second/q2_2010_fssi_summary_changes.pdf.
16.

For additional summary information on this measure, see http://www.nmfs.noaa.gov/msa2005/MSA%202006%20Implementation%20Overview.pdf.
17.

For additional highlights and commentary on this enactment, see http://cbbulletin.com/Free/199763.aspx; a detailed summary of enacted provisions is available at http://www.olemiss.edu/orgs/SGLC/National/Magnuson.pdf.
18.

Available at http://www.nmfs.noaa.gov/msa2007/Reauthorization_tasks.pdf. Additional information on NMFS's implementation of P.L. 109-479 can be found at http://www.nmfs.noaa.gov/msa2007/.
19.

Available at http://www.nmfs.noaa.gov/msa2007/docs/biennial_report011309.pdf.
20.

74 Federal Register 3178-3213, January 16, 2009.
21.

For additional background on this issue, see CRS Report 98-666, Pacific Salmon and Steelhead Trout: Managing Under the Endangered Species Act, by [author name scrubbed] and [author name scrubbed].
22.

For background information on the Pacific Salmon Treaty, see CRS Report RL30234, The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV, by [author name scrubbed]. For additional information on the renegotiated Annex IV, see http://www.dfo-mpo.gc.ca/media/back-fiche/2009/pr01-eng.htm.
23.

For additional information on this settlement, see CRS Report RL34237, San Joaquin River Restoration Settlement, coordinated by [author name scrubbed] and [author name scrubbed].
24.

For more background, see CRS Report R40125, Title X of H.R. 146: San Joaquin River Restoration, by [author name scrubbed] and [author name scrubbed].
25.

For background information, see CRS Report R40143, Ocean Acidification, by [author name scrubbed] and [author name scrubbed].
26.

For additional information, see CRS Report R40911, Comparison of Climate Change Adaptation Provisions in S. 1733 and H.R. 2454, coordinated by [author name scrubbed].
27.

For additional background on Asian carp, see CRS Report R41082, Asian Carp and the Great Lakes Region, by [author name scrubbed] et al.
28.

For additional information, see CRS Report RL34247, Federal Regulation of Substances Generally Recognized As Safe (GRAS) and the Use of Carbon Monoxide in Packaging for Meat and Fish, by [author name scrubbed] and Cynthia Brougher.
29.

For more background information, see CRS Report RL32694, Open Ocean Aquaculture, by [author name scrubbed] and [author name scrubbed], and out-of-print CRS Report 97-436, Aquaculture and the Federal Role, by [author name scrubbed] and [author name scrubbed], available from the author at [email address scrubbed].
30.

For statistics on freshwater production, see http://www.agcensus.usda.gov/Publications/2002/Aquaculture/index.asp.
31.

For more details, see http://www.fao.org/newsroom/en/news/2006/1000383/index.html.
32.

For more discussion of FAO projections for 2030, see Part 3 of http://www.fao.org/docrep/007/y5600e/y5600e00.htm.
33.

See http://www.agcensus.usda.gov/Publications/2002/Aquaculture/AQUACEN.pdf. For the latest information on domestic production and statistics, see http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do?documentID=1375.
34.

Available at http://aquaculture.noaa.gov/about/tenyear.html.
35.

For additional information on Asian carp, see CRS Report R41082, Asian Carp and the Great Lakes Region, by [author name scrubbed] et al.
36.

For more background, see CRS Report RS22149, Exemptions from Environmental Law for the Department of Defense (DOD), by [author name scrubbed].
37.

For more background, see CRS Report RL34403, Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training, by [author name scrubbed], and CRS Report RL33133, Active Military Sonar and Marine Mammals: Events and References, by [author name scrubbed] and Kori Calvert.
38.

For more background and information on the 1994 amendments, see out-of-print CRS Report 94-751 ENR, Marine Mammal Protection Act Amendments of 1994, by [author name scrubbed], available from the author at [email address scrubbed].
39.

U.S. Government Accountability Office, Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing, GAO-09-78 (December 8, 2008). Available at http://www.gao.gov/new.items/d0978.pdf.
40.

For background on possible reauthorization issues, see CRS Report RL30120, The Marine Mammal Protection Act: Reauthorization Issues, by [author name scrubbed].
41.

For additional information, see CRS Report R40911, Comparison of Climate Change Adaptation Provisions in S. 1733 and H.R. 2454, coordinated by [author name scrubbed].
42.

For more details on NMFS's FY2011 budget request, see http://www.corporateservices.noaa.gov/nbo/11bluebook_highlights.html.
43.

For additional details on the FY2011 budget request for fisheries and aquatic resources, see http://www.fws.gov/budget/2011/FWS%20-%20FY11%20Greenbook%20Final%202-4-10.pdf.