[Senate Report 110-421]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-421
_______________________________________________________________________
Calendar No. 881
MARINE MAMMAL RESCUE ASSISTANCE AMENDMENTS ACT OF 2007
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
H.R. 1006
DATE deg.July 15, 2008.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
second session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
MARK PRYOR, Arkansas JOHN THUNE, South Dakota
THOMAS CARPER, Delaware ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Mimi Braniff, Republican Deputy Chief Counsel
Calendar No. 881
110th Congress Report
SENATE
2d Session 110-421
======================================================================
MARINE MAMMAL RESCUE ASSISTANCE AMENDMENTS ACT OF 2008
_______
July 15, 2008.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following:
R E P O R T
[To accompany H.R. 1006]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (H.R. 1006) to amend the provisions
of law relating to the John H. Prescott Marine Mammal Rescue
Assistance Grant Program, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
The purpose of H.R. 1006, the Marine Mammal Rescue Assistance
Amendments Act of 2008, as reported, is to amend provisions of
the Marine Mammal Protection Act of 1972 (MMPA, 16 U.S.C. 1361
et. seq.) relating to the John H. Prescott Marine Mammal Rescue
Assistance Grant Program. The bill would add authorization for
entanglement response agreements to existing provisions
relating to stranding response agreements. In addition, the
bill would require the Secretary of Commerce to collect and
update existing practices and procedures for rescuing and
rehabilitating entangled marine mammals and would define the
terms ``entanglement'' and ``emergency assistance.''
Background and Needs
The MMPA was enacted in 1972 to protect and conserve marine
mammals and established a moratorium on taking or importing
marine mammals and marine mammal products, except for certain
regulated or permitted activities. The MMPA defines ``take'' as
``to harass, hunt, capture, or kill or attempt to harass, hunt
capture, or kill any marine mammal.'' In 1992, Congress enacted
the Marine Mammal Health and Stranding Response Act (P.L. 102--
587) as Title IV of the MMPA. The Marine Mammal Health and
Stranding Response Act statutorily recognized the marine mammal
stranding network, established procedures for responding to
unusual marine mammal mortality events, and established the
National Marine Mammal Tissue Bank.
However, because most marine mammal strandings are not
associated with unusual mortality events, in 2000, Congress
enacted into law the John H. Prescott Marine Mammal Rescue
Assistance Grant Program (P.L. 106--555). Prior to the
establishment of this Federal grant program, assistance for
strandings and rescues were provided by small, underfunded
members of the Marine Mammal Stranding Network, who took on the
financial burden to rescue and rehabilitate stranded marine
mammals. The grant program defrays costs associated with the
recovery and rehabilitation of marine mammals that fall outside
of the existing Title IV program and allows eligible Marine
Mammal Stranding Network participants to use funds to collect
scientific data from live and dead animals, to improve the
treatment and operation of rescue and rehabilitation centers,
and to directly fund the recovery and treatment of the mammals.
It is the intention of the Committee that the funds authorized
in this bill may also be used for the disposal of marine mammal
carcasses.
Legislative History
The Marine Mammal Rescue Assistance Amendments Act of 2007
was introduced by Representatives Young and Brown on February
13, 2007, and passed the House of Representatives by voice vote
under suspension of the rules on March 19, 2007. H.R. 1006 was
referred to the Senate Committee on Commerce, Science, and
Transportation on March 20, 2007. On May 15, 2008, the
Committee considered the bill in an open executive session.
Senator Inouye offered a substitute amendment making minor
substantive and technical changes to the bill as introduced,
and the Committee, without objection, ordered H.R. 1006
reported, as amended by the substitute amendment.
Staff assigned to this legislation are Amanda Hallberg,
Democratic professional staff, and Todd Bertoson, Republican
senior counsel.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
June 19, 2008.
Hon. Daniel K. Inouye,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1006, the Marine
Mammal Rescue Assistance Amendments of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 1006--Marine Mammal Rescue Assistance Amendments of 2008
Summary: H.R. 1006 would reauthorize funding for programs
to protect and rescue marine mammals such as whales that become
stranded or entangled. Assuming appropriation of the authorized
amounts (beginning in 2009), CBO estimates that implementing
H.R. 1006 would increase discretionary spending by $10 million
over the 2009-2013 period.
The legislation also would create an emergency fund and
allow amounts in that fund, including private contributions and
interest earnings, to be spent without further appropriation.
Enacting this provision could increase revenues (from
donations) and direct spending (from those donations and from
interest earned on fund balances). CBO estimates that those
changes would result in net additional spending of about
$100,000 a year, beginning in 2011.
Finally, H.R. 1006 would expand coverage under the Federal
Tort Claims Act to individuals who rescue marine mammals if
they are operating under an agreement with the federal
government. Enacting this provision could increase direct
spending from the U.S. Treasury's Judgment Fund for payments
arising from tort claims, CBO estimates that any increase would
be minimal.
H.R. 1006 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1006 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\
Authorization Level.......................................... 8 8 0 0 0 15
Estimated Outlays............................................ 6 6 1 * * 13
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
\1\ Enacting H.R. 1006 also would increase revenues (from donations) and direct spending (from those revenues
and from interest earned on balances of appropriated and contributed funds). CBO estimates that the net
budgetary effect of such changes would be a cost of about $100,000 a year, beginning in 2011.
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted near the end of fiscal year 2008
and that the authorized amounts will be provided as specified
in the act, beginning with fiscal year 2009. Estimated outlays
are based on historical spending patterns for similar programs.
H.R. 1006 would authorize the appropriation of $7.5 million
for each of fiscal years 2007 through 2010 for the John H.
Prescott Marine Mammal Rescue Assistance Grant Program. The
authorization includes $6 million for the National Oceanic and
Atmospheric Administration (NOAA), $1 million for the U.S. Fish
and Wildlife Service (USFWS), and $0.5 million for the Marine
Mammal Unusual Mortality Event Fund (administered by NOAA). In
recent years, NOAA has received appropriations of about $4
million a year for the program, including $0.8 million in 2005
to establish the Marine Mammal Unusual Mortality Event Fund.
The USFWS also receives appropriations for this purpose, but
under different statutes.
The legislation also would establish the John H. Prescott
Marine Mammal Rescue and Response Emergency Fund, consisting of
a portion of amounts appropriated to the agencies, private
donations, and interest earnings. Amounts in the emergency fund
would be available to the agencies without further
appropriation.
Assuming appropriation of the authorized amounts for 2009
and 2010, CBO estimates that NOAA and the USFWS would spend a
total of $6 million in each of those years, primarily for
grants to nonfederal groups that rescue marine mammals. We
estimate that spending from the mortality event fund would be
less than $200,000 a year over the 2009-2013 period. Based on
information provided by NOAA, we assume that the remaining $2
million authorized to be appropriated to that agency would be
deposited in the new emergency fund along with an estimated
$25,000 to $50,000 a year from new donations from private
individuals or businesses. We estimate that NOAA would spend,
without further appropriation, between $100,000 and $200,000
annually from those donations and from interest credited to
that fund for emergency rescues. Those changes would result in
net spending of about $100,000 a year, beginning in 2011.
Finally, H.R. 1006 would provide that individuals who
rescue marine mammals from entanglements (from fishing nets,
for example) would be considered federal employees if their
actions result in claims for damages under the Federal Tort
Claims Act. As a result of this provision, payments from the
permanent, indefinite Judgment Fund could increase because the
federal government could be held responsible for damage to
fishing equipment or other private property. Based on
information provided by NOAA, however, CBO estimates that any
increase in direct spending would be negligible.
Intergovernmental and private-sector impact: H.R. 1006
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Deborah Reis; Impact
on State, Local, and Tribal Governments: Neil Hood; Impact on
the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
H.R. 1006, as reported, would authorize appropriations to
continue and expand existing National Oceanic and Atmospheric
Administration (NOAA) programs and would make a number of
changes to current law. This bill would have little, if any,
regulatory impact.
ECONOMIC IMPACT
This bill, as reported, would provide authorization of $7
million for fiscal years 2007 through 2010 to the Prescott
Program as well as $500,000 for each of fiscal years 2007
through 2010 for the Marine Mammal Unusual Mortality Fund.
These funding levels are not expected to have an inflationary
impact on the Nation's economy.
PRIVACY
The reported bill would have little, if any, impact on the
personal privacy of U.S. citizens.
PAPERWORK
The reported bill may slightly increase the paperwork
requirements for NOAA when updating the stranding response
agreements.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title
This section would title this Act as the ``Marine Mammal
Rescue Assistance Amendments Act of 2008.''
Section 2. Stranding and entanglement response
This section would amend section 403 of the MMPA (16 U.S.C.
1421b) to include the term ``entanglement'' to add
authorization for entanglement response agreements to existing
provisions relating to stranding response agreements. Section 2
would require the Secretary of Commerce to collect and update
existing practices and procedures for rescuing and
rehabilitating entangled marine mammals. In addition, this
provision would define the terms ``entanglement'' and
``emergency assistance.'' Entanglement would be defined as an
event in the wild in which a living or dead marine mammal has
gear, rope, line, net, or other material wrapped around or
attached to it either in the water, or on a beach or shore of
the United States. Emergency assistance would be defined as
response to an event that is not an unusual mortality event;
leads to an immediate increase in required costs for response,
recovery, or rehabilitation; may involve out-of-habitat
animals; and may be cyclical or endemic or is found by the
Secretary to qualify for emergency assistance.
This section also would rename the John H. Prescott Marine
Mammal Rescue Assistance Grant Program as the John H. Prescott
Marine Mammal and Response Funding Program and establishes an
interest bearing fund of the same name in the Treasury to be
used for emergency responses. This section would give the
program the ability to solicit and accept gifts and other
donations to increase the impact of the program. It would
authorize $7 million for fiscal years 2007 through 2010 to the
Prescott Program, $6 million of which would be made available
to the Secretary of Commerce. This section also would increase
the maximum support for individual projects from $100,000 to
$200,000 annually. Finally, this section would authorize
$500,000 for each of fiscal years 2007 through 2010 for the
Marine Mammal Unusual Mortality Fund, and require the Secretary
of Commerce to provide grants with any funds that remain from
administrative uses at the end of each fiscal year.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
SEC. 402. DETERMINATION; DATA COLLECTION AND DISSEMINATION
[16 U.S.C. 1421]
(a) Determination for Release.--The Secretary shall, in
consultation with the Secretary of the Interior, the Marine
Mammal Commission, and individuals with knowledge and
experience in marine science, marine mammal science, marine
mammal veterinary and husbandry practices, and marine
conservation, including stranding network participants, develop
objective criteria, after an opportunity for public review and
comment, to provide guidance for determining at what point a
rehabilitated marine mammal is releasable to the wild.
(b) Collection.--The Secretary shall, in consultation with
the Secretary of the Interior, collect and update,
periodically, existing information on--
(1) procedures and practices for--
(A) rescuing and rehabilitating stranded or
entangled marine mammals, including criteria
used by stranding network participants, on a
species-by-species basis, for determining at
what point a marine mammal undergoing rescue
and rehabilitation is returnable to the wild;
and
(B) collecting, preserving, labeling, and
transporting marine mammal tissues for
physical, chemical, and biological analyses;
(2) appropriate scientific literature on marine
mammal health, disease, and rehabilitation;
(3) strandings, which the Secretary shall compile and
analyze, by region, to monitor species, numbers,
conditions, and causes of illnesses and deaths of
stranded marine mammals; and
(4) other life history and reference level data,
including marine mammal tissue analyses, that would
allow comparison of the causes of illness and deaths in
stranded marine mammals with physical, chemical, and
biological environmental parameters.
(c) Availability.--The Secretary shall make information
collected under this section available to stranding network
participants and other qualified scientists.
[SEC 403. STRANDING RESPONSE AGREEMENTS.]
SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.
[16 U.S.C. 1421]
(a) In General.--The Secretary may enter into an agreement
under section 112(c) with any person to take marine mammals
under section 109(h)(1) in response to a stranding or
entaglement.
(b) Required Provision.--An agreement authorized by
subsection (a) shall--
(1) specify each person who is authorized to perform
activities under the agreement; and
(2) specify any terms and conditions under which a
person so specified may delegate that authority to
another person.
(c) Review.--The Secretary shall periodically review
agreements under section 112(c) that are entered into pursuant
to this title, for performance adequacy and effectiveness.
SEC. 406. LIABILITY.
[16 U.S.C. 1421]
(a) In General.--A person who is authorized to respond to a
stranding or entanglement pursuant to an agreement entered into
under section 112(c) is deemed to be an employee of the
government for purposes of chapter 171 of title 28, United
States Code, with respect to actions of the person that are--
(1) in accordance with the agreement; and
(2) in the case of an unusual mortality event, in
accordance with--
(A) the contingency plan issued under section
404(b);
(B) the instructions of an Onsite Coordinator
designated under section 404(c); or
(C) the best professional judgment of an
Onsite Coordinator, in the case of any matter
that is not covered by the contingency plan.
(b) Limitation.--Subsection (a) does not apply to actions of
a person described in that subsection that are grossly
negligent or that constitute willful misconduct.
[SEC. 408. JOHN H. PRESCOTT MARINE MAMMAL RESCUE ASSISTANCE GRANT
PROGRAM.]
SEC. 408. JOHN H. PRESCOTT MARINE MAMMAL RESCUE AND RESPONSE FUNDING
PROGRAM.
[16 U.S.C. 1421]
[(a) In General.--
[(1) Subject to the availability of appropriations,
the Secretary shall conduct a grant program to be known
as the John H. Prescott Marine Mammal Rescue Assistance
Grant Program, to provide grants to eligible stranding
network participants for the recovery or treatment of
marine mammals, the collection of data from living or
dead stranded marine mammals for scientific research
regarding marine mammal health, and facility operation
costs that are directly related to those purposes.]
(a) In General.--(1) Subject to the availability of
appropriations, the Secretary shall conduct a program to be
known as the John H. Prescott Marine Mammal Rescue and Response
Funding Program, to provide for the recovery or treatment of
marine mammals, the collection of data from living or dead
stranded marine mammals for scientific research regarding
marine mammal health, facility operation costs that are
directly related to those purposes, and stranding events
requiring emergency assistance. All funds to implement this
section shall be distributed to eligible stranding network
participants for the purposes set forth in this paragraph,
except as provided in subsection (f).
(2) Contract Authority.--To carry out the activities set
out in paragraph (1), the Secretary may enter into grants,
cooperative agreements, contracts, or such other agreements or
arrangements as the Secretary deems appropriate.
(3) Emergency Prescott Fund.--There is established in the
Treasury an interest bearing fund to be known as the ``John H.
Prescott Marine Mammal Rescue and Response Emergency Fund'',
which shall consist of a portion of amounts deposited into the
Fund under subsections (h) and (i), and which shall remain
available until expended without regard to any statutory or
regulatory provision related to the negotiation, award, or
administration of any grants, cooperative agreements, and
contracts.
[(2)] (4)(A) The Secretary shall ensure that, to the
greatest extent practicable, funds provided as grants under
this subsection are distributed equitably among the stranding
regions [designated as of the date of the enactment of the
Marine Mammal Rescue Assistance Act of 2000, and in making such
grants] as defined in subsection (g)(3). The Secretary shall
give preference to those facilities that have established
records for rescuing or rehabilitating sick and stranded marine
mammals in each of the respective regions, or [subregions]
subregions where such facilities exist.
(B) In determining priorities among such regions, the
Secretary may consider--
(i) any episodic stranding or any mortality event
other than an event described in [section 410(6)]
section 410(7), that occurred in any region in the
preceding year;
(ii) data regarding average annual strandings and
mortality events per region; and
(iii) the size of the marine mammal populations
inhabiting a geographic area within such a region.
(b) Application.--To receive a grant under this section, a
stranding network participant shall submit an application in
such form and manner as the Secretary may prescribe.
(c) Consultation.--The Secretary shall consult with the
Marine Mammal Commission, a representative from each of the
designated stranding regions, and other individuals who
represent public and private organizations that are actively
involved in rescue, rehabilitation, release, scientific
research, marine conservation, and forensic science regarding
stranded marine mammals, regarding the development of criteria
for the implementation of the grant program and the awarding of
grants under the program.
[(d) Limitation.--The amount of a grant under this section
shall not exceed $100,000.]
(d) Limitation.--Support for an individual project under this
section may not exceed $200,000 per annum.
(e) Matching Requirement.--
(1) In general.--The non-Federal share of the costs
of an activity conducted with [a grant] funds under
this section shall be 25 percent of such Federal costs.
(2) In-kind contributions.--The Secretary may apply
to the non-Federal share of an activity conducted with
a grant under this section the amount of funds, and the
fair market value of property and services, provided by
non-Federal sources and used for the activity.
[(f) Administrative Expenses.--Of amounts available each
fiscal year to carry out this section, the Secretary may expend
not more than 6 percent or $80,000, whichever is greater, to
pay the administrative expenses necessary to carry out this
section.]
(f) Administrative Costs and Expenses.--Of the amounts
available each fiscal year to carry out this section, the
Secretary may expend not more than 6 percent or $80,000,
whichever is greater, to pay the administrative costs and
administrative expenses to implement the grant program under
subsection (a). Any such funds retained by the Secretary for a
fiscal year for such costs and expenses that are not used for
such costs and expenses before the end of the fiscal year shall
be provided as grants under subsection (a).
(g) Definitions.--In this section:
(1) Designated stranding region.--The term
``designated stranding region'' means a geographic
region designated by the Secretary for purposes of
administration of this title.
(2) Emergency assistance.--The term ``emergency
assistance'' means assistance provided for a stranding
event--
(A) that--
(i) is not an unusual mortality event
as defined in section 409(6);
(ii) leads to an immediate increase
in required costs for stranding
response, recovery, or rehabilitation
in excess of regularly scheduled costs;
(iii) may be cyclical or endemic; and
(iv) may involve out-of-habitat
animals; or
(B) is found by the Secretary to qualify for
emergency assistance.
[(2)] (3) Secretary.--The term ``Secretary'' has the
meaning given that term in section 3(12)(A).
(h) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section [$5,000,000 for each
of fiscal years 2001 through 2003] $7,000,000 for each of
fiscal years 2007 through 2010, to remain available until
expended, of which--
(1) [$4,000,000] $6,000,000 may be available to the
Secretary of Commerce; and
(2) $1,000,000 may be available to the Secretary of
the Interior.
(i) Contributions.--For purposes of carrying out this
section, the Secretary may solicit, accept, receive, hold,
administer, and use gifts, devises, and bequests without any
further approval or administrative action.
SEC. 410. DEFINITIONS.
[16 U.S.C. 1421]
In this title, the following definitions apply:
(1) The term ``entanglement'' means an event in the
wild in which a living or dead marine mammal has gear,
rope, line, net, or other material wrapped around or
attached to it and is--
(A) on a beach or shore of the United States;
or
(B) in waters under the jurisdiction of the
United States.
[(1)] (2) The term ``Fund'' means the Marine Mammal
Unusual Mortality Event Fund established by section
405(a).
[(2)] (3) The term ``Office'' means the Office of
Protected Resources, in the National Marine Fisheries
Service.
[(3)] (4) The term ``stranding'' means an event in
the wild in which--
(A) a marine mammal is dead and is--
(i) on a beach or shore of the United
States; or
(ii) in waters under the jurisdiction
of the United States (including any
navigable waters); or
(B) a marine mammal is alive and is--
(i) on a beach or shore of the United
States and unable to return to the
water;
(ii) on a beach or shore of the
United States and, although able to
return to the water, is in need of
apparent medical attention; or
(iii) in the waters under the
jurisdiction of the United States
(including any navigable waters), but
is unable to return to its natural
habitat under its own power or without
assistance.
[(4)] (5) The term ``stranding network participant''
means a person who is authorized by an agreement under
section 112(c) to take marine mammals as described in
section 109(h)(1) in response to a stranding.
[(5)] (6) The term ``Tissue Bank'' means the National
Marine Tissue Bank provided for under section 407(a).
[(6)] (7) The term ``unusual mortality event'' means
a stranding that--
(A) is unexpected;
(B) involves a significant die-off of any
marine mammal population; and
(C) demands immediate response.