[CPEO-MEF] Marine Mammal protection weakened

[Lenny Siegel <lsiegel@cpeo.org>]

Section 319 of the Fiscal Year 2004 Defense Authorization Act enacts the
Defense Department's proposal to weaken the Marine Mammal Protection Act
and make it much more difficult for environmental organizations to
litigate restrictions on Navy sonar and other military readiness
activities that may impact marine mammals.

Before the Navy displays a "Mission Accomplished" banner, however, it
should consider that the majority of the public (in the U.S. and most
allied nations) strongly objects to actions that kill (or even disturb)
whales, dolphins, and other marine mammals. Even if permitted under law,
it is likely that the deployment of loud active sonar systems in
sensitive areas will NOT be tolerated.

The fully formatted language appears on pages 65-68 of the PDF file
downloadable from http://www.house.gov/rules/H1588_CR.PDF. I have pasted
a text version below.

Lenny Siegel

***

SEC. 319. MILITARY READINESS AND MARINE MAMMAL  PROTECTION.  

(a) DEFINITION OF HARASSMENT FOR MILITARY READINESS ACTIVITIES. -
Section 3(18) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1362(18)) is amended by striking subparagraphs (B) and (C) and inserting
the following new  subparagraphs:  

"(B) In the case of a military readiness activity (as  defined in
section 315(f) of Public Law 107–314; 16  U.S.C. 703 note) or a
scientific research activity conducted  by or on behalf of the Federal
Government consistent with  section 104(c)(3), the term 'harassment'
means -   
"(i) any act that injures or has the significant potential to injure a
marine mammal or marine mammal  stock in the wild; or  
"(ii) any act that disturbs or is likely to disturb  a marine mammal or
marine mammal stock in the wild  by causing disruption of natural
behavioral patterns,  including, but not limited to, migration,
surfacing,  nursing, breeding, feeding, or sheltering, to a point  where
such behavioral patterns are abandoned or significantly altered.  
"(C) The term 'Level A harassment' means harassment described in
subparagraph (A)(i) or, in the case of a  military readiness activity or
scientific research activity described in subparagraph (B), harassment
described in subparagraph (B)(i).  '
'(D) The term 'Level B harassment' means harassment described in
subparagraph (A)(ii) or, in the case of  a military readiness activity
or scientific research activity  described in subparagraph (B),
harassment described in  subparagraph (B)(ii).".  

(b) EXEMPTION OF ACTIONS NECESSARY FOR NATIONAL  DEFENSE. - Section 101
of the Marine Mammal Protection Act  of 1972 (16 U.S.C. 1371) is amended
by inserting after subsection (e) the following:  

"(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.".  

(c) INCIDENTAL TAKINGS OF MARINE MAMMALS IN MILITARY READINESS
ACTIVITIES. - Section 101(a)(5) of the Marine Mammal Protection Act of
1972 (16 U.S.C. 1371(a)(5))  is amended -   

(1) in subparagraph (A) -   

(A) by redesignating clauses (i) and (ii) and subclauses (I) and (II) as
subclauses (I) and (II) and  items (aa) and (bb), respectively;  

(B) by inserting "(i)" after "(5)(A)"; and  

(C) by adding at the end the following new  clauses:  
"(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.";  

(2) in subparagraph (D), by adding at the end the following new clauses:
 
"(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) 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."; and  

(3) by adding at the end the following new subparagraph:  
"(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'.".   

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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