Marine Mammal Protection Act Amendments of 1988

(House agreed to Senate amendments with amendments)

Marine Mammal Protection Act Amendments of 1988 - Amends the Marine Mammal Protection Act (the Act) to provide for an interim exemption period for commercial fishing operations (other than commercial yellowfin tuna fishing) from specified provisions of the Act governing the incidental taking of marine mammals. Sets forth requirements which supersede such provisions during the interim period (from the enactment of this Act until October 1, 1993). Makes such exemptions available only to owners of vessels which: (1) are vessels of the United States; and (2) have valid fishing permits issued by the Secretary of Commerce (the Secretary) under the Magnuson Fishery Conservation and Management Act.

Declares the immediate goal that the incidental kill or serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.

Sets forth procedures to be used during such interim period for identifying categories of fisheries and registering vessels and vessel owners in order to comply with the Act.

Directs the Secretary to compile and publish lists of fisheries in three categories based on frequency of incidental taking of marine mammals by vessels in those fisheries. Requires proposed lists within 60 days after enactment of this Act, final lists within 120 days after enactment, and at least annual updating and revising of such lists based on specified information-gathering programs, other relevant sources, and public comment.

Directs the Secretary to grant an exemption for a vessel engaged in a fishery identified under either of the two categories of frequent or incidental taking of marine mammal, upon the receipt of a completed registration form. (The third category is "remote likelihood of or no known incidental taking.") Directs the Secretary to issue annually a decal or other physical evidence that the exemption is current and valid.

Provides that such exemptions shall authorize the incidental taking of marine mammals, other than California sea otters, from any species or stock, including a depleted population stock. Prohibits such exemptions from authorizing the intentional lethal taking of any Steller sea lion, any cetacean, or any marine mammal from a population stock designated as depleted.

Establishes a 240-day grace period after the enactment of this Act, after which owners of vessels in fisheries where there is either frequent or occasional taking of marine mammals must: (1) have registered with the Secretary to obtain an exemption for each vessel; (2) ensure that the decal or other physical evidence of exemption is displayed on or in the possession of the master of each vessel; and (3) comply with specified reporting requirements. Requires owners of vessels receiving an exemption for any fishery where there is frequent taking to take on board a marine mammal observer if requested to do so by the Secretary, as a condition of such exemption. Subjects to penalties under the Act any owners and masters of vessels engaged in fisheries where there is frequent or occasional taking who fail to obtain, or to maintain a current and valid exemption, or to ensure that the decal is displayed or held. Exempts from such penalties any unknowing violations committed before January 1, 1990.

Provides that owners, masters, and crew members of vessels engaged in any fishery not identified as a place of frequent or occasional taking of marine mammals shall not be subject to penalties if the owner reports to the Secretary instances of lethal incidental taking in the course of that fishery.

Directs the Secretary to develop means by which to integrate and coordinate the granting and administration of exemptions with existing fishery licenses, registrations, and related programs. Directs the Secretary to use a variety of means of communicating to commercial fishermen the requirements of such interim exemption period. Authorizes the Secretary to charge a fee to cover administrative costs for granting an exemption.

Requires owners of exempt vessels to compile information regularly for a report to the Secretary submitted either at the close of the fishing season or annually, as the Secretary may prescribe. Requires such reports to contain specified information relating to the incidental taking of marine mammals. Directs the Secretary to establish a program to enhance the quality of and to verify such information.

Directs the Secretary to place observers on from 20 to 35 percent of exempted vessels for each fishery identified as having frequent taking of marine mammals, in order to obtain statistically reliable information on species and number of marine mammals incidentally taken in the fishery. Directs the Secretary to implement an alternative observation program if fewer than 20 percent of the fishing operations will be monitored. Sets forth guidelines for determining the distribution of observers among fisheries and vessels. Sets forth priorities for allocating observers among fisheries when the required level of coverage cannot be met. Requires collection of additional biological and scientific information on target and non-target fishery resources and seabirds, to be gathered upon request of appropriate entities. Sets forth conditions under which the Secretary is not required to place an observer on a vessel. Bars an observer (under this exemption program or the tuna vessel program under the Act), from suing a vessel owner under any law of the United States for any injury or fatality incurred during service as an observer, except in cases of the owner's willful misconduct or engaging the observer to perform any duties in service to the vessel. Authorizes appropriations for FY 1990 through 1993 to the Department of Commerce for such observer program.

Directs the Secretary to establish an alternative observation program to provide statistically reliable information on the species and number of marine mammals incidentally taken: (1) in those fisheries identified as places of frequent taking for which the required (20 percent) level of observer coverage has not been met; or (2) for any other fisheries for which such reliable information is not otherwise available. Includes under such program direct observation of fishing activities from vessels, airplanes, or points on shore.

Directs the Secretary to review information on the incidental taking of marine mammals and evaluate the effects of such taking on the affected population stocks.

Directs the Secretary, upon finding that such taking is having an immediate and significant adverse impact on a marine mammal population stock, or such taking results in the annual killing of higher than specified numbers of Steller sea lions and North Pacific fur seals, to consult with appropriate Regional Fishery Management Councils and State fishery managers and prescribe emergency regulations to prevent any further taking. Sets forth requirements relating to such emergency regulations.

Directs the Secretary, upon finding that such taking is not having an immediate and significant adverse impact but will likely have such an impact over a period of time longer than one year, to request the appropriate Regional Fishery Management Council or State to initiate, recommend, or take such action within its authority as it considers necessary to mitigate the impact, including adjustments to requirements on fishing times or areas, or imposition of restrictions on the use of vessels or gear. Directs the Secretary to impose appropriate conditions and restrictions on an exemption if: (1) a Regional Fishery Management Council or State does not act on such request in a reasonable period of time; or (2) the Secretary determines after notice and opportunity for public comment that the purposes of the interim exemption program would be better served by such action.

Directs the Secretary to: (1) design and implement an information management system to process and analyze reports received from specified programs and other relevant sources on marine mammals; and (2) make such information accessible to the public on a continuing basis, no later than six months after it is received, subject to certain confidentiality requirements.

Directs the Secretary, in carrying out duties during the interim exemption period, to use the services of various entities on a reimbursable or other basis. Authorizes the Secretary to enter into contracts and agreements to carry out such responsibilities. Requires the Secretary to establish appropriate guidelines for such other programs. Requires contractors providing observer services to provide evidence of financial responsibility to compensate employees for injury or fatality.

Makes confidential any information collected under specified programs of the interim exemption period, and prohibits its disclosure, except to Federal, State, or Regional Fishery Management Council employees under certain conditions, or when required by court order. Directs the Secretary to prescribe procedures to preserve such confidentiality, but to release or make public any such information in a form which does not disclose the identity or business of any person.

Directs the Secretary, in consultation with an affected Federal agency, to prescribe regulations for the interim exemption period.

Directs the Chairman of the Marine Mammal Commission, after consultation with interested parties and not later than February 1, 1990, to transmit to the Secretary and make available to the public recommended guidelines to govern the incidental taking of marine mammals in the course of commercial fishing operations (other than certain commercial yellowfin tuna fishing) after October 1, 1993. Requires such guidelines to be developed by the Commission and its Committee of Scientific Advisors on Marine Mammals.

Directs the Secretary, by February 1, 1991, to publish for public comment the suggested regime which the Secretary considers should, if authorized by enactment of additional legislation, govern incidental taking of marine mammals (other than in commercial yellowfin tuna fishing) after October 1, 1993. Sets forth requirements for such regime. Directs the Secretary, by January 1, 1992, after consultation with the Commission and consideration of public comment, to transmit to specified congressional committees recommendations pertaining to the incidental taking of marine mammals (other than in commercial yellowfin tuna fishing) after October 1, 1993. Sets forth requirements for such recommendations.

Directs the Secretary to consult with the Secretary of the Interior before taking actions or making determinations for the interim exemption period that affect or relate to species or population stocks of marine mammals for which the Secretary of the Interior is responsible under the Act.

Deems owners of fixed or other commercial fishing gear deployed with or without the use of a vessel to be owners of vessels engaged in the fishery in which that gear is deployed, for purposes of the interim exemption period.

Sets forth new provisions relating to status review and to conservation plans.

Directs the Secretary to make determinations of whether a species or stock should be (or should no longer be) designated as depleted only by issuance of a rule, after notice and opportunity for public comment and after a call for information in accordance with specified procedures. Directs the Secretary to do so regardless of whether such determination action is taken on the Secretary's own initiative or in response to a petition for status review. Directs the Secretary to publish: (1) calls for assistance in obtaining the best scientific information available; (2) notices of receipt of petitions for status review and their availability for public review; (3) within 60 days after receipt, findings as to whether petitions present substantial information that the petitioned action may be warranted; (4) findings as to whether such review will be commenced promptly or is precluded by other pending status determination petitions; (5) within 210 days after receipt of petition, a proposed rule as to status, with reasons (with at least a 60-day public comment period on such rule); and (6) within 90 days after the close of such comment period, a final rule on the status, with reasons. Allows the Secretary to delay issuance of a final rule for up to six months to solicit additional information where there is substantial disagreement regarding sufficiency or accuracy of available information. Authorizes the Secretary to issue a final rule as to status any time 60 or more days after a positive finding, upon determination that there is substantial information available to warrant such final status determination and further delay would pose significant risk to the well-being of any species or stock. Requires the Secretary to publish detailed reasons for the expedited determination.

Directs the Secretary to prepare conservation plans: (1) by December 31, 1989, for North Pacific fur seals; (2) by December 31, 1990, for Steller sea lions; and (3) as soon as possible, for any species or stock designated as depleted under the Act, unless the Secretary determines such a plan will not promote their conservation. Requires such plans to: (1) have the purpose of conserving and restoring the species or stock to its optimum sustainable population; and (2) be modeled on specified recovery plans under the Endangered Species Act of 1973. Directs the Secretary to implement such plans exepeditiously and report on them in the annual report under the Act.

Revises provisions relating to the taking of porpoise in a tuna fishery. Prohibits the Secretary from finding that the regulatory program of a foreign nation is comparable to the U.S. program unless it has met specified standards relating to such taking, for purposes of importation embargo provisions. Requires any intermediary nation from which yellowfin tuna or tuna or tuna products will be exported to the United States to certify and provide reasonable proof that it has acted to prohibit their importation from any nation from which direct export to the United States is banned under such embargo, within 60 days after the effective date of such ban. Directs the Secretary to certify such bans to the President within six months after they come into effect, for purposes of the Fishermen's Protective Act of 1967.

Directs the Secretary, through the Secretary of State, to initiate: (1) negotiations with foreign nations for treaties to protect marine mammals; and (2) discussions with foreign nations whose vessels harvest yellowfin tuna with purse seines in the eastern tropical Pacific Ocean to conclude international arrangements to conserve marine mammals taken incidentally in the course of harvesting. Requires such arrangements to include specified provisions. Directs the Secretary to describe the annual results of such discussions, and proposals for further action, in the annual report under the Act.

Directs the Secretary, by January 1, 1989, to promulgate regulations to ensure that sets of the purse seine net on marine mammals are completed no later than 30 minutes after sundown. Authorizes the Secretary to waive or otherwise modify such regulations for either a designated certificate holder on an observed trip or all certificate holders on an observed trip upon determination that they are using techniques and equipment that assure that the incidental mortality rate will be no higher during sundown sets than during daylight sets.

Allows the Secretary to: (1) authorize, after public notice and opportunity for comment, designated certificate holders to conduct experimental fishing operations on observed trips to test proposed improvements in fishing techniques and equipment to reduce incidental mortality of marine mammals in commercial yellowfin tuna fishing operations; and (2) waive general permit and other requirements as necessary for such experimental fishing (except for quotas on incidental taking and the prohibition against encircling pure schools of certain species).

Directs the Secretary, after public notice and opportunity for comment and consultation with the shippers' panel of experts established pursuant to the general permit to develop and implement by the beginning of the 1990 fishing season a system of performance standards for certificate holders in the use of best marine mammal safety techniques and equipment that are economically and technologically practicable. Sets forth requirements for such system.

Makes it unlawful to use any explosive devices (other than class C explosive pest control devices) in the course of commercial yellowfin tuna fishing subject to the general permit. Directs the Secretary to prescribe regulations, effective April 1, 1990, to prohibit or restrict the use of class C explosive pest control devices in the course of commercial yellowfin tuna fishing, unless a study determines that the use of such devices does not result in physical impairment or increased mortality of marine mammals.

Requires, during the 1989 and subsequent fishing seasons, each certificated vessel to carry an official observer acceptable to the Secretary to conduct research and observe fishing operations, unless such an observer is not available for reasons beyond the Secretary's control. Authorizes the Secretary to waive such requirement after the 1991 season and establish a less extensive observer program upon determination, after notice and opportunity for comment, that such alternative program is adequate.

Directs the Secretary to convene annual meetings with representatives of conservation and environmental organizations, the commercial tuna fishing industry, and other interested persons to discuss results of efforts to reduce incidental mortality and serious injury of marine mammals and to develop plans for such efforts during the next year. Directs the Secretary, by April 1, 1992, to submit to specified congressional committees a comprehensive report on the results of such efforts. Sets forth requirements for such report.

Directs the Secretary to contract for an independent review, to be conducted by the National Academy of Sciences, of information on potential alternative methods of locating and catching yellowfin tuna without incidental taking of marine mammals. Requires such review to be submitted, to the Secretary by September 8, 1989. Directs the Secretary to submit such review, with a proposed plan for research, development, and implementation of alternative fishing techniques, to specified congressional committees by December 5, 1989.

Allows Federal, State, or local officials or employees, or designated persons, to take in the course of their duties a marine mammal in a humane manner for: (1) the mammal's welfare or protection; (2) protection of public health or welfare; or (3) nonlethal removal of nuisance animals. Allows the Secretary or a designated person to import a marine mammal if necessary to render medical treatment. Requires return of the mammal to its natural habitat where feasible after such a taking or importation. Authorizes the Secretary to issue permits for: (1) importation of a marine mammal for the protection or welfare of that animal; and (2) the taking or importation of a marine mammal for scientific research, public display, or for enhancing the survival or recovery of a species or stock, under certain conditions. Sets forth limitations on such permits.

Extends through FY 1993 the authorization of appropriations to the Department of Commerce, the Department of the Interior, and the Marine Mammal Commission to carry out specified duties under the Act.

Directs the secretary to study the east coast epidemic during 1987 and 1988 which has caused substantial mortality within the North Atlantic coastal population of Atlantic bottle-nosed dolphin. Sets forth requirements for such study. Directs the Secretary to submit a plan for such study to specified congressional committees by January 1, 1989.

Amends the Fishermen's Protective Act of 1967 to expand the definition of "fish products" to include any aquatic species (including marine mammals and plants) and all products thereof. (Such expanded definition increases the number of types of products which the President is authorized to direct the Secretary of the Treasury to prohibit being brought or imported into the United States from an offending foreign nation that diminishes the effectiveness of an international fishery conservation program.)

Amends the Fur Seal Act of 1966 to authorize appropriations for FY 1989 and 1990 to the Secretary to fund the Saint Paul Island Trust (which is one portion of the Trust for the benefit of the Natives of the Pribilof Islands).