H.R.1588
National Defense Authorization Act for Fiscal Year 2004 (Enrolled as Agreed to or Passed by Both House and Senate)
SEC. 318. MILITARY READINESS AND CONSERVATION OF PROTECTED SPECIES.
(a) LIMITATION ON DESIGNATION OF CRITICAL HABITAT- Section 4(a)(3) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended--
(1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively;
(2) by inserting `(A)' after `(3)'; and
(3) by adding at the end the following:
`(B)(i) The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense , or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.
`(ii) Nothing in this paragraph affects the requirement to consult under section 7(a)(2) with respect to an agency action (as that term is defined in that section).
`(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 9, including the prohibition preventing extinction and taking of endangered species and threatened species.'.
(b) CONSIDERATION OF EFFECTS OF DESIGNATION OF CRITICAL HABITAT- Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(2)) is amended by inserting `the impact on national security,' after `the economic impact,'.
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 (READ MURDERING) 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'.'.
