Loading (50 kb)...'
(continued)
30, 1994, and held in captivity for the purpose of public display
shall be treated as though born after April 30, 1994.
(9) No marine mammal may be exported for the purpose of public
display, scientific research, or enhancing the survival or recovery
of a species or stock unless the receiving facility meets standards
that are comparable to the requirements that a person must meet to
receive a permit under this subsection for that purpose.
(10) The Secretary shall establish and maintain an inventory of
all marine mammals possessed pursuant to permits issued under
paragraph (2)(A), by persons exercising rights under paragraph
(2)(C), and all progeny of such marine mammals. The inventory shall
contain, for each marine mammal, only the following information
which shall be provided by a person holding a marine mammal under
this chapter:
(A) The name of the marine mammal or other identification.
(B) The sex of the marine mammal.
(C) The estimated or actual birth date of the marine mammal.
(D) The date of acquisition or disposition of the marine mammal
by the permit holder.
(E) The source from whom the marine mammal was acquired
including the location of the take from the wild, if applicable.
(F) If the marine mammal is transferred, the name of the
recipient.
(G) A notation if the animal was acquired as the result of a
stranding.
(H) The date of death of the marine mammal and the cause of
death when determined.
(d) Application procedures; notice; hearing; review
(1) The Secretary shall prescribe such procedures as are
necessary to carry out this section, including the form and manner
in which application for permits may be made.
(2) The Secretary shall publish notice in the Federal Register of
each application made for a permit under this section. Such notice
shall invite the submission from interested parties, within thirty
days after the date of the notice, of written data or views, with
respect to the taking or importation proposed in such application.
(3) The applicant for any permit under this section must
demonstrate to the Secretary that the taking or importation of any
marine mammal under such permit will be consistent with the
purposes of this chapter and the applicable regulations established
under section 1373 of this title.
(4) If within thirty days after the date of publication of notice
pursuant to paragraph (2) of this subsection with respect to any
application for a permit any interested party or parties request a
hearing in connection therewith, the Secretary may, within sixty
days following such date of publication, afford to such party or
parties an opportunity for such a hearing.
(5) As soon as practicable (but not later than thirty days) after
the close of the hearing or, if no hearing is held, after the last
day on which data, or views, may be submitted pursuant to paragraph
(2) of this subsection, the Secretary shall (A) issue a permit
containing such terms and conditions as he deems appropriate, or
(B) shall deny issuance of a permit. Notice of the decision of the
Secretary to issue or to deny any permit under this paragraph must
be published in the Federal Register within ten days after the date
of issuance or denial.
(6) Any applicant for a permit, or any party opposed to such
permit, may obtain judicial review of the terms and conditions of
any permit issued by the Secretary under this section or of his
refusal to issue such a permit. Such review, which shall be
pursuant to chapter 7 of title 5, may be initiated by filing a
petition for review in the United States district court for the
district wherein the applicant for a permit resides, or has his
principal place of business, or in the United States District Court
for the District of Columbia, within sixty days after the date on
which such permit is issued or denied.
(e) Modification, suspension, and revocation
(1) The Secretary may modify, suspend, or revoke in whole or in
part any permit issued by him under this section -
(A) in order to make any such permit consistent with any change
made after the date of issuance of such permit with respect to
any applicable regulation prescribed under section 1373 of this
title,
(B) in any case in which a violation of the terms and
conditions of the permit is found, or
(C) if, in the case of a permit under subsection (c)(5) of this
section authorizing importation of polar bear parts, the
Secretary, in consultation with the appropriate authority in
Canada, determines that the sustainability of Canada's polar bear
population stocks are being adversely affected or that sport
hunting may be having a detrimental effect on maintaining polar
bear population stocks throughout their range.
(2) Whenever the Secretary shall propose any modification,
suspension, or revocation of a permit under this subsection, the
permittee shall be afforded opportunity, after due notice, for a
hearing by the Secretary with respect to such proposed
modification, suspension, or revocation. Such proposed action by
the Secretary shall not take effect until a decision is issued by
him after such hearing. Any action taken by the Secretary after
such a hearing is subject to judicial review on the same basis as
is any action taken by him with respect to a permit application
under paragraph (5) of subsection (d) of this section.
(3) Notice of the modification, suspension, or revocation of any
permit by the Secretary shall be published in the Federal Register
within ten days from the date of the Secretary's decision.
(f) Possession of permit by issuee or his agent
Any permit issued under this section must be in the possession of
the person to whom it is issued (or an agent of such person) during
-
(1) the time of the authorized or taking importation;
(2) the period of any transit of such person or agent which is
incident to such taking or importation; and
(3) any other time while any marine mammal taken or imported
under a such permit is in the possession of such person or agent.
A duplicate copy of the issued permit must be physically attached
to the container, package, enclosure, or other means of
containment, in which the marine mammal is placed for purposes of
storage, transit, supervision, or care.
(g) Fees
The Secretary shall establish and charge a reasonable fee for
permits issued under this section.
(h) General permits
(1) Consistent with the regulations prescribed pursuant to
section 1373 of this title and to the requirements of section 1371
of this title, the Secretary may issue an annual permit to a United
States purse seine fishing vessel for the taking of such marine
mammals, and shall issue regulations to cover the use of any such
annual permits.
(2) Such annual permits for the incidental taking of marine
mammals in the course of commercial purse seine fishing for
yellowfin tuna in the eastern tropical Pacific Ocean shall be
governed by section 1416 of this title, subject to the regulations
issued pursuant to section 1413 of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 104, Oct. 21, 1972, 86 Stat. 1034;
Pub. L. 98-364, title I, Sec. 102, July 17, 1984, 98 Stat. 440;
Pub. L. 100-711, Secs. 4(d), 5(d), Nov. 23, 1988, 102 Stat. 4767,
4769; Pub. L. 103-238, Sec. 5(b), Apr. 30, 1994, 108 Stat. 537;
Pub. L. 105-18, title V, Sec. 5004, June 12, 1997, 111 Stat. 187;
Pub. L. 105-42, Sec. 4(d), Aug. 15, 1997, 111 Stat. 1125; Pub. L.
105-277, div. A, Sec. 101(e) [title I], Oct. 21, 1998, 112 Stat.
2681-231, 2681-238; Pub. L. 106-31, title V, Sec. 5004(1), May 21,
1999, 113 Stat. 110; Pub. L. 108-108, title I, Sec. 149, Nov. 10,
2003, 117 Stat. 1281.)
-REFTEXT-
REFERENCES IN TEXT
7 U.S.C. 2131 et seq., referred to in subsec. (c)(2)(A)(ii), is
the classification for Pub. L. 89-544, Aug. 24, 1966, 80 Stat. 350,
as amended, known as the Animal Welfare Act, which is classified
generally to chapter 54 (Sec. 2131 et seq.) of Title 7,
Agriculture. For complete classification of this Act to the Code,
see Short Title note set out under section 2131 of Title 7 and
Tables.
-MISC1-
AMENDMENTS
2003 - Subsec. (c)(5)(D). Pub. L. 108-108, which directed the
substitution of "February 18, 1997" for "April 30, 1994" in
"Section 104 (16 U.S.C. 1374)" without indicating the act to be
amended, was executed by amending this section, which is section
104 of the Marine Mammal Protection Act of 1972, to reflect the
probable intent of Congress.
1999 - Subsec. (c)(5)(B). Pub. L. 106-31 made technical
correction to directory language of Pub. L. 105-277. See 1998
Amendment note below.
1998 - Subsec. (c)(5)(B). Pub. L. 105-277, as amended by Pub. L.
106-31, inserted "until expended" after "Secretary" in second
sentence.
1997 - Subsec. (c)(5)(A). Pub. L. 105-18, Sec. 5004(1), struck
out ", including polar bears taken but not imported prior to April
30, 1994," after "sport hunts in Canada".
Subsec. (c)(5)(D). Pub. L. 105-18, Sec. 5004(2), added subpar.
(D).
Subsec. (h). Pub. L. 105-42 amended subsec. (h) generally. Prior
to amendment, subsec. (h) related to general permits, extension of
general permit to American Tunaboat Association, and monitoring of
incidental taking of marine mammals.
1994 - Subsec. (a). Pub. L. 103-238, Sec. 5(b)(1), inserted at
end "Permits for the incidental taking of marine mammals in the
course of commercial fishing operations may only be issued as
specifically provided for in sections 1371(a)(5) or 1416 of this
title, or subsection (h) of this section."
Subsec. (c)(1). Pub. L. 103-238, Sec. 5(b)(2)(A), struck out "and
after" after "must be observed pursuant to".
Subsec. (c)(2). Pub. L. 103-238, Sec. 5(b)(2)(B), amended par.
(2) generally. Prior to amendment, par. (2) read as follows: "A
permit may be issued for public display purposes only to an
applicant which offers a program for education or conservation
purposes that, based on professionally recognized standards of the
public display community, is acceptable to the Secretary and which
submits with the permit application information indicating that the
applicant's facilities are open to the public on a regularly
scheduled basis and that access to the facilities is not limited or
restricted other than by the charging of an admission fee."
Subsec. (c)(3). Pub. L. 103-238, Sec. 5(b)(2)(C), amended par.
(3) generally. Prior to amendment, par. (3) read as follows: "A
permit may be issued for scientific research purposes only to an
applicant which submits with its permit application information
indicating that the taking is required to further a bona fide
scientific purpose and does not involve unnecessary duplication of
research. No permit issued for purposes of scientific research
shall authorize the killing of a marine mammal unless the applicant
demonstrates that a nonlethal method for carrying out the research
is not feasible. The Secretary shall not issue a permit for
research which involves the lethal taking of a marine mammal from a
species or stock designated as depleted, unless the Secretary
determines that the results of such research will directly benefit
that species or stock, or that such research fulfills a critically
important research need."
Subsec. (c)(5) to (10). Pub. L. 103-238, Sec. 5(b)(2)(D), added
pars. (5) to (10).
Subsec. (e)(1)(C). Pub. L. 103-238, Sec. 5(b)(3), added subpar.
(C).
1988 - Subsec. (c). Pub. L. 100-711, Sec. 5(d), designated
existing provisions as par. (1) and substituted "scientific
research, public display, or enhancing the survival or recovery of
a species or stock" for "display or scientific research" in two
places, and added pars. (2) to (4).
Subsec. (h)(2)(B). Pub. L. 100-711, Sec. 4(d), added cls. (iv) to
(ix).
1984 - Subsec. (h). Pub. L. 98-364 designated existing provisions
as par. (1), and added pars. (2) and (3).
EFFECTIVE DATE OF 1997 AMENDMENT
For effective date of amendment by Pub. L. 105-42, see section 8
of Pub. L. 105-42, set out as a note under section 1362 of this
title.
-TRANS-
ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES
Committee on Merchant Marine and Fisheries of House of
Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.
Committee on Merchant Marine and Fisheries of House of
Representatives treated as referring to Committee on Resources of
House of Representatives in case of provisions relating to
fisheries, wildlife, international fishing agreements, marine
affairs (including coastal zone management) except for measures
relating to oil and other pollution of navigable waters, or
oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a
note preceding section 21 of Title 2, The Congress.
-MISC2-
MODIFICATION OF PERMITS EXISTING PRIOR TO APRIL 30, 1994
Section 5(c) of Pub. L. 103-238 provided that: "Any permit issued
under section 104(c)(2) of the Marine Mammal Protection Act of 1972
(16 U.S.C. 1374(c)(2)) before the date of the enactment of this Act
[Apr. 30, 1994] is hereby modified to be consistent with that
section as amended by this Act."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 973g, 1362, 1371, 1372,
1373, 1383a, 1384, 1387, 1421d of this title; title 19 section
1466.
-FOOTNOTE-
(!1) So in original. Probably should be "section".
-End-
-CITE-
16 USC Sec. 1375 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1375. Penalties
-STATUTE-
(a)(1) Any person who violates any provision of this subchapter
or of any permit or regulation issued thereunder, except as
provided in section 1387 of this title, may be assessed a civil
penalty by the Secretary of not more than $10,000 for each such
violation. No penalty shall be assessed unless such person is given
notice and opportunity for a hearing with respect to such
violation. Each unlawful taking or importation shall be a separate
offense. Any such civil penalty may be remitted or mitigated by the
Secretary for good cause shown. Upon any failure to pay a penalty
assessed under this subsection, the Secretary may request the
Attorney General to institute a civil action in a district court of
the United States for any district in which such person is found,
resides, or transacts business to collect the penalty and such
court shall have jurisdiction to hear and decide any such action.
(2) In any case involving an alleged unlawful importation of a
marine mammal or marine mammal product, if such importation is made
by an individual for his own personal or family use (which does not
include importation as an accommodation to others or for sale or
other commercial use), the Secretary may, in lieu of instituting a
proceeding under paragraph (1), allow the individual to abandon the
mammal or product, under procedures to be prescribed by the
Secretary, to the enforcement officer at the port of entry.
(b) Any person who knowingly violates any provision of this
subchapter or of any permit or regulation issued thereunder (except
as provided in section 1387 of this title) shall, upon conviction,
be fined not more than $20,000 for each such violation, or
imprisoned for not more than one year, or both.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 105, Oct. 21, 1972, 86 Stat. 1036;
Pub. L. 97-58, Sec. 3(b), Oct. 9, 1981, 95 Stat. 982; Pub. L.
103-238, Sec. 13(a), (b), Apr. 30, 1994, 108 Stat. 558.)
-MISC1-
AMENDMENTS
1994 - Subsec. (a)(1). Pub. L. 103-238, Sec. 13(a), inserted ",
except as provided in section 1387 of this title," after
"thereunder".
Subsec. (b). Pub. L. 103-238, Sec. 13(b), inserted "(except as
provided in section 1387 of this title)" after "thereunder".
1981 - Subsec. (a). Pub. L. 97-58 designated existing provisions
as par. (1) and added par. (2).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1377, 1379, 1383, 1387,
1417, 3703 of this title; title 46 App. section 1273a.
-End-
-CITE-
16 USC Sec. 1375a 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1375a. Use of fines for protection and recovery of manatees,
polar bears, sea otters, and walruses
-STATUTE-
On and after November 29, 1999, all fines collected by the United
States Fish and Wildlife Service for violations of the Marine
Mammal Protection Act (16 U.S.C. 1362-1407) and implementing
regulations shall be available to the Secretary, without further
appropriation, to be used for the expenses of the United States
Fish and Wildlife Service in administering activities for the
protection and recovery of manatees, polar bears, sea otters, and
walruses, and shall remain available until expended.
-SOURCE-
(Pub. L. 106-113, div. B, Sec. 1000(a)(3) [title I], Nov. 29, 1999,
113 Stat. 1535, 1501A-139.)
-REFTEXT-
REFERENCES IN TEXT
The Marine Mammal Protection Act, referred to in text, probably
means the Marine Mammal Protection Act of 1972, Pub. L. 92-522,
Oct. 21, 1972, 86 Stat. 1027, as amended, which is classified
generally to this chapter. For complete classification of this Act
to the Code, see Short Title note set out under section 1361 of
this title and Tables.
-COD-
CODIFICATION
Section was enacted as part of the Department of the Interior and
Related Agencies Appropriations Act, 2000, and not as part of the
Marine Mammal Protection Act of 1972 which comprises this chapter.
-End-
-CITE-
16 USC Sec. 1376 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1376. Seizure and forfeiture of cargo
-STATUTE-
(a) Application of consistent provisions
Any vessel or other conveyance subject to the jurisdiction of the
United States that is employed in any manner in the unlawful taking
of any marine mammal shall have its entire cargo or the monetary
value thereof subject to seizure and forfeiture. All provisions of
law relating to the seizure, judicial forfeiture, and condemnation
of cargo for violation of the customs laws, the disposition of such
cargo, and the proceeds from the sale thereof, and the remission or
mitigation of any such forfeiture, shall apply with respect to the
cargo of any vessel or other conveyance seized in connection with
the unlawful taking of a marine mammal insofar as such provisions
of law are applicable and not inconsistent with the provisions of
this subchapter.
(b) Penalties
Any vessel subject to the jurisdiction of the United States that
is employed in any manner in the unlawful taking of any marine
mammal shall be liable for a civil penalty of not more than
$25,000. Such penalty shall be assessed by the district court of
the United States having jurisdiction over the vessel. Clearance of
a vessel against which a penalty has been assessed, from a port of
the United States, may be withheld until such penalty is paid, or
until a bond or otherwise satisfactory surety is posted. Such
penalty shall constitute a maritime lien on such vessel which may
be recovered by action in rem in the district court of the United
States having jurisdiction over the vessel.
(c) Reward for information leading to conviction
Upon the recommendation of the Secretary, the Secretary of the
Treasury is authorized to pay an amount equal to one-half of the
fine incurred but not to exceed $2,500 to any person who furnishes
information which leads to a conviction for a violation of this
subchapter. Any officer or employee of the United States or of any
State or local government who furnishes information or renders
service in the performance of his official duties shall not be
eligible for payment under this section.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 106, Oct. 21, 1972, 86 Stat. 1036.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1379, 1387 of this title.
-End-
-CITE-
16 USC Sec. 1377 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1377. Enforcement
-STATUTE-
(a) Utilization of personnel
Except as otherwise provided in this subchapter, the Secretary
shall enforce the provisions of this subchapter. The Secretary may
utilize, by agreement, the personnel, services, and facilities of
any other Federal agency for purposes of enforcing this subchapter.
(b) State officers and employees
The Secretary may also designate officers and employees of any
State or of any possession of the United States to enforce the
provisions of this subchapter. When so designated, such officers
and employees are authorized to function as Federal law enforcement
agents for these purposes, but they shall not be held and
considered as employees of the United States for the purposes of
any laws administered by the Director of the Office of Personnel
Management.
(c) Warrants and other process for enforcement
The judges of the district courts of the United States and the
United States magistrate judges may, within their respective
jurisdictions, upon proper oath or affirmation showing probable
cause, issue such warrants or other process, including warrants or
other process issued in admiralty proceedings in United States
district courts, as may be required for enforcement of this
subchapter and any regulations issued thereunder.
(d) Execution of process; arrest; search; seizure
Any person authorized by the Secretary to enforce this subchapter
may execute any warrant or process issued by any officer or court
of competent jurisdiction for the enforcement of this subchapter.
Such a person so authorized may, in addition to any other authority
conferred by law -
(1) with or without warrant or other process, arrest any person
committing in his presence or view a violation of this subchapter
or the regulations issued thereunder;
(2) with a warrant or other process, or without a warrant if he
has reasonable cause to believe that a vessel or other conveyance
subject to the jurisdiction of the United States or any person on
board is in violation of any provision of this subchapter or the
regulations issued thereunder, search such vessel or conveyance
and arrest such person;
(3) seize the cargo of any vessel or other conveyance subject
to the jurisdiction of the United States used or employed
contrary to the provisions of this subchapter or the regulations
issued hereunder or which reasonably appears to have been so used
or employed; and
(4) seize, whenever and wherever found, all marine mammals and
marine mammals products taken or retained in violation of this
subchapter or the regulations issued thereunder and shall dispose
of them, in accordance with regulations prescribed by the
Secretary.
(e) Disposition of seized cargo
(1) Whenever any cargo or marine mammal or marine mammal product
is seized pursuant to this section, the Secretary shall expedite
any proceedings commenced under section 1375(a) or (b) of this
title. All marine mammal or marine mammal products or other cargo
so seized shall be held by any person authorized by the Secretary
pending disposition of such proceedings. The owner or consignee of
any such marine mammal or marine mammal product or other cargo so
seized shall, as soon as practicable following such seizure, be
notified of that fact in accordance with regulations established by
the Secretary.
(2) The Secretary may, with respect to any proceeding under
section 1375(a) or (b) of this title, in lieu of holding any marine
mammal or marine mammal product or other cargo, permit the person
concerned to post bond or other surety satisfactory to the
Secretary pending the disposition of such proceeding.
(3)(A) Upon the assessment of a penalty pursuant to section
1375(a) of this title, all marine mammals and marine mammal
products or other cargo seized in connection therewith may be
proceeded against in any court of competent jurisdiction and
forfeited to the Secretary for disposition by him in such manner as
he deems appropriate.
(B) Upon conviction for violation of section 1375(b) of this
title, all marine mammals and marine mammal products seized in
connection therewith shall be forfeited to the Secretary for
disposition by him in such manner as he deems appropriate. Any
other property or item so seized may, at the discretion of the
court, be forfeited to the United States or otherwise disposed of.
(4) If with respect to any marine mammal or marine mammal product
or other cargo so seized -
(A) a civil penalty is assessed under section 1375(a) of this
title and no judicial action is commenced to obtain the
forfeiture of such mammal or product within thirty days after
such assessment, such marine mammal or marine mammal product or
other cargo shall be immediately returned to the owner or the
consignee; or
(B) no conviction results from an alleged violation of section
1375(b) of this title, such marine mammal or marine mammal
product or other cargo shall immediately be returned to the owner
or consignee if the Secretary does not, with (!1) thirty days
after the final disposition of the case involving such alleged
violation, commence proceedings for the assessment of a civil
penalty under section 1375(a) of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 107, Oct. 21, 1972, 86 Stat. 1037;
1978 Reorg. Plan No. 2, Sec. 102, eff. Jan. 1, 1979, 43 F.R. 36037,
92 Stat. 3783; Pub. L. 101-650, title III, Sec. 321, Dec. 1, 1990,
104 Stat. 5117.)
-CHANGE-
CHANGE OF NAME
"United States magistrate judges" substituted for "United States
magistrates" in subsec. (c) pursuant to section 321 of Pub. L.
101-650, set out as a note under section 631 of Title 28, Judiciary
and Judicial Procedure.
-TRANS-
TRANSFER OF FUNCTIONS
"Director of the Office of Personnel Management" substituted for
"Civil Service Commission" in subsec. (b) pursuant to Reorg. Plan
No. 2 of 1978, Sec. 102, 43 F.R. 36037, 92 Stat. 3783, set out
under section 1101 of Title 5, Government Organization and
Employees, which transferred functions vested by statute in Civil
Service Commission to Director of Office of Personnel Management
(except as otherwise specified), effective Jan. 1, 1979, as
provided by section 1-102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44
F.R. 1055, set out under section 1101 of Title 5.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1379, 1387 of this title.
-FOOTNOTE-
(!1) So in original. Probably should be "within".
-End-
-CITE-
16 USC Sec. 1378 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1378. International program
-STATUTE-
(a) Duties of Secretary
The Secretary, through the Secretary of State, shall -
(1) initiate negotiations as soon as possible for the
development of bilateral or multilateral agreements with other
nations for the protection and conservation of all marine mammals
covered by this chapter;
(2) initiate -
(A) negotiations as soon as possible with all foreign
governments which are engaged in, or which have persons or
companies engaged in, commercial fishing operations which are
found by the Secretary to be unduly harmful to any species or
population stock of marine mammal, for the purpose of entering
into bilateral and multilateral treaties with such countries to
protect marine mammals, with the Secretary of State to prepare
a draft agenda relating to this matter for discussion at
appropriate international meetings and forums;
(B) discussions with foreign governments whose vessels
harvest yellowfin tuna with purse seines in the eastern
tropical Pacific Ocean, for the purpose of concluding, through
the Inter-American Tropical Tuna Commission or such other
bilateral or multilateral institutions as may be appropriate,
international arrangements for the conservation of marine
mammals taken incidentally in the course of harvesting such
tuna, which should include provisions for (i) cooperative
research into alternative methods of locating and catching
yellowfin tuna which do not involve the taking of marine
mammals, (ii) cooperative research on the status of affected
marine mammal population stocks, (iii) reliable monitoring of
the number, rate, and species of marine mammals taken by
vessels of harvesting nations, (iv) limitations on incidental
take levels based upon the best scientific information
available, and (v) the use of the best marine mammal safety
techniques and equipment that are economically and
technologically practicable to reduce the incidental kill and
serious injury of marine mammals to insignificant levels
approaching a zero mortality and serious injury rate;
(C) negotiations to revise the Convention for the
Establishment of an Inter-American Tropical Tuna Commission (1
U.S.T. 230; TIAS 2044) which will incorporate -
(i) the conservation and management provisions agreed to by
the nations which have signed the Declaration of Panama and
in the Straddling Fish Stocks and Highly Migratory Fish
Stocks Agreement, as opened for signature on December 4,
1995; and
(ii) a revised schedule of annual contributions to the
expenses of the Inter-American Tropical Tuna Commission that
is equitable to participating nations; and
(D) discussions with those countries participating, or likely
to participate, in the International Dolphin Conservation
Program, for the purpose of identifying sources of funds needed
for research and other measures promoting effective protection
of dolphins, other marine species, and the marine ecosystem;
(3) encourage such other agreements to promote the purposes of
this chapter with other nations for the protection of specific
ocean and land regions which are of special significance to the
health and stability of marine mammals;
(4) initiate the amendment of any existing international treaty
for the protection and conservation of any species of marine
mammal to which the United States is a party in order to make
such treaty consistent with the purposes and policies of this
chapter;
(5) seek the convening of an international ministerial meeting
on marine mammals before July 1, 1973, for the purposes of (A)
the negotiation of a binding international convention for the
protection and conservation of all marine mammals, and (B) the
implementation of paragraph (3) of this section; and
(6) provide to the Congress by not later than one year after
October 21, 1972, a full report on the results of his efforts
under this section.
(b) Consultations and studies concerning North Pacific fur seals
(1) In addition to the foregoing, the Secretary shall -
(A) in consultation with the Marine Mammal Commission
established by section 1401 of this title, undertake a study of
the North Pacific fur seals to determine whether herds of such
seals subject to the jurisdiction of the United States are
presently at their optimum sustainable population and what
population trends are evident; and
(B) in consultation with the Secretary of State, promptly
undertake a comprehensive study of the provisions of this
chapter, as they relate to North Pacific fur seals, and the
provisions of the North Pacific Fur Seal Convention signed on
February 9, 1957, as extended (hereafter referred to in this
subsection as the "Convention"), to determine what modifications,
if any, should be made to the provisions of the Convention, or of
this chapter, or both, to make the Convention and this chapter
consistent with each other.
The Secretary shall complete the studies required under this
paragraph not later than one year after October 21, 1972, and shall
immediately provide copies thereof to Congress.
(2) If the Secretary finds -
(A) as a result of the study required under paragraph (1)(A) of
this subsection, that the North Pacific fur seal herds are below
their optimum sustainable population and are not trending upward
toward such level, or have reached their optimum sustainable
population but are commencing a downward trend, and believes the
herds to be in danger of depletion; or
(B) as a result of the study required under paragraph (1)(B) of
this subsection, that modifications of the Convention are
desirable to make it and this chapter consistent;
he shall, through the Secretary of State, immediately initiate
negotiations to modify the Convention so as to (i) reduce or halt
the taking of seals to the extent required to assure that such
herds attain and remain at their optimum sustainable population, or
(ii) make the Convention and this chapter consistent; or both, as
the case may be. If negotiations to so modify the Convention are
unsuccessful, the Secretary shall, through the Secretary of State,
take such steps as may be necessary to continue the existing
Convention beyond its present termination date so as to continue to
protect and conserve the North Pacific fur seals and to prevent a
return to pelagic sealing.
(c) Description of annual results of discussions; proposals for
further action
The Secretary shall include a description of the annual results
of discussions initiated and conducted pursuant to subsection
(a)(2)(B) of this section, as well as any proposals for further
action to achieve the purposes of that subsection, in the report
required under section 1373(f) of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 108, Oct. 21, 1972, 86 Stat. 1038;
Pub. L. 100-711, Sec. 4(b), (c), Nov. 23, 1988, 102 Stat. 4766,
4767; Pub. L. 105-42, Sec. 4(e), Aug. 15, 1997, 111 Stat. 1125.)
-MISC1-
AMENDMENTS
1997 - Subsecs. (a)(2)(C), (D). Pub. L. 105-42 added subpars. (C)
and (D).
1988 - Subsec. (a)(2). Pub. L. 100-711, Sec. 4(b), amended par.
(2) generally. Prior to amendment, par. (2) read as follows:
"initiate negotiations as soon as possible with all foreign
governments which are engaged in, or which have persons or
companies engaged in, commercial fishing operations which are found
by the Secretary to be unduly harmful to any species of marine
mammal, for the purpose of entering into bilateral and multilateral
treaties with such countries to protect marine mammals. The
Secretary of State shall prepare a draft agenda relating to this
matter for discussion at appropriate international meetings and
forums;".
Subsec. (c). Pub. L. 100-711, Sec. 4(c), added subsec. (c).
EFFECTIVE DATE OF 1997 AMENDMENT
For effective date of amendment by Pub. L. 105-42, see section 8
of Pub. L. 105-42, set out as a note under section 1362 of this
title.
-End-
-CITE-
16 USC Sec. 1379 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1379. Transfer of management authority
-STATUTE-
(a) State enforcement of State laws or regulations prohibited
without transfer to State of management authority by Secretary
No State may enforce, or attempt to enforce, any State law or
regulation relating to the taking of any species (which term for
purposes of this section includes any population stock) of marine
mammal within the State unless the Secretary has transferred
authority for the conservation and management of that species
(hereinafter referred to in this section as "management authority")
to the State under subsection (b)(1) of this section.
(b) Findings prerequisite to transfer of authority; State program;
implementation
(1) Subject to paragraph (2) and subsection (f) of this section,
the Secretary shall transfer management authority for a species of
marine mammal to a State if the Secretary finds, after notice and
opportunity for public comment, that the State has developed and
will implement a program for the conservation and management of the
species that -
(A) is consistent with the purposes, policies, and goals of
this chapter and with international treaty obligations;
(B) requires that all taking of the species be humane;
(C) does not permit the taking of the species unless and until
-
(i) the State has determined, under a process consistent with
the standards set forth in subsection (c) of this section -
(I) that the species is at its optimum sustainable
population (hereinafter in this section referred to as
"OSP"), and
(II) the maximum number of animals of that species that may
be taken without reducing the species below its OSP, and
(ii) the determination required under clause (i) is final and
implemented under State law, and, if a cooperative allocation
agreement for the species is required under subsection (d)(1)
of this section, such as agreement is implemented;
(D) does not permit the taking of a number of animals of the
species that exceeds the maximum number determined pursuant to
subparagraph (C)(i)(II), and, in the case of taking for
subsistence uses (as defined in subsection (f)(2) of this
section), does not permit the taking of a number of animals that
would be inconsistent with the maintenance of the species at its
OSP;
(E) does not permit the taking of the species for scientific
research, public display, or enhancing the survival or recovery
of a species or stock, except for taking for such purposes that
is undertaken by, or on behalf of, the State;
(F) provides procedures for acquiring data, and evaluating such
data and other new evidence, relating to the OSP of the species,
and the maximum take that would maintain the species at the
level, and, if required on the basis of such evaluation, for
amending determinations under subparagraph (C)(i);
(G) provides procedures for the resolution of differences
between the State and the Secretary that might arise during the
development of a cooperative allocation agreement under
subsection (d)(1) of this section; and
(H) provides for the submission of an annual report to the
Secretary regarding the administration of the program during the
reporting period.
(2) During the period between the transfer of management
authority for a species to a State under paragraph (1) and the time
at which the implementation requirements under paragraph (1)(C)(ii)
are complied with -
(A) the State program shall not apply with respect to the
taking of the species within the State for any purpose, or under
any condition, provided for under section 1371 of this title; and
(B) the Secretary shall continue to regulate, under this
subchapter, all takings of the species within the State.
(3) After the determination required under paragraph (1)(C)(i)
regarding a species is final and implemented under State law and
after a cooperative allocation agreement described in subsection
(d)(1) of this section, if required, is implemented for such
species -
(A) such determination shall be treated, for purposes of
applying this subchapter beyond the territory of the State, as a
determination made in accordance with section 1373 of this title
and as an applicable waiver under section 1371(a)(3) of this
title;
(B) the Secretary shall regulate, without regard to this
section other than the allocations specified under such an
agreement, the taking of the species -
(i) incidentally in the course of commercial fishing
operations (whether provided for under section 1371(a)(2) or
(4) of this title), or in the course of other specified
activities provided for under section 1371(a)(5) of this title,
in the zone described in section 1362(14)(B) (!1) of this
title, and
(ii) for scientific research, public display, or enhancing
the survival or recovery of a species or stock (other than by,
or on behalf of, the State), except that any taking authorized
under a permit issued pursuant to section 1371(a)(1) of this
title after October 9, 1981, allowing the removal of live
animals from habitat within the State shall not be effective if
the State agency disapproves, on or before the date of issuance
of the permit, such taking as being inconsistent with the State
program; and
(C) section 1371(b) of this title shall not apply.
(c) Standards with which State process must comply
The State process required under subsection (b)(1)(C) of this
section must comply with the following standards:
(1) The State agency with management authority for the species
(hereinafter in this section referred to as the "State agency")
must make an initial determination regarding the factors
described in clause (i) of that subsection. The State agency must
identify, and make available to the public under reasonable
circumstances, the documentation supporting such initial
determination. Unless request for a hearing under paragraph (2)
regarding the initial determination is timely made, the initial
determination shall be treated as final under State law.
(2) The State agency shall provide opportunity, at the request
of any interested party, for a hearing with respect to the
initial determination made by it under paragraph (1) at which
interested parties may -
(A) present oral and written evidence in support of or
against such determination; and
(B) cross-examine persons presenting evidence at the hearing.
The State agency must give public notice of the hearing and make
available to the public within a reasonable time before
commencing the hearing a list of the witnesses for the State and
a general description of the documentation and other evidence
that will be relied upon by such witnesses.
(3) The State agency, solely on the basis of the record
developed at a hearing held pursuant to paragraph (2), must make
a decision regarding its initial determination under paragraph
(1) and shall include with the record a statement of the findings
and conclusions, and the reason or basis therefor, on all
material issues.
(4) Opportunity for judicial review of the decision made by the
State agency on the record under paragraph (3), under scope of
review equivalent to that provided for in section 706(2)(A)
through (E) of title 5, must be available under State law. The
Secretary may not initiate judicial review of any such decision.
(d) Cooperative allocation agreements
(1) If the range of a species with respect to which a
determination under paragraph (1)(C)(i) of subsection (b) of this
section is made extends beyond the territorial waters of the State,
the State agency and the Secretary (who shall first coordinate with
the Marine Mammal Commission and the appropriate Regional Fishery
Management Council established under section 1852 of this title)
shall enter into a cooperative allocation agreement providing
procedures for allocating, on a timely basis, such of the number of
animals, as determined under paragraph (1)(C)(i)(II) of subsection
(b) of this section, as may be appropriate with priority of
allocation being given firstly to taking for subsistence uses in
the case of the State of Alaska, and secondly to taking for
purposes provided for under section 1371(a) of this title within
the zone described in section 1362(14)(B) (!2) of this title.
(2) If the State agency requests the Secretary to regulate the
taking of a species to which paragraph (1) applies within the zone
described in section 1362(14)(B) (!2) of this title for subsistence
uses or for hunting, or both, in a manner consistent with the
regulation by the State agency of such taking within the State, the
Secretary shall adopt, and enforce within such zone, such of the
State agency's regulatory provisions as the Secretary considers to
be consistent with his administration of section 1371(a) of this
title within such zone. The Secretary shall adopt such provisions
through the issuance of regulations under section 553 of title 5,
and with respect to such issuance the Regulatory Flexibility Act [5
U.S.C. 601 et seq.], the Paperwork Reduction Act,(!2) Executive
Order Numbered 12291, dated February 17, 1981, and the thirty-day
notice requirement in subsection (d) of such section 553 shall not
apply. For purposes of sections 1375, 1376, and 1377 of this title,
such regulations shall be treated as having been issued under this
subchapter.
(e) Revocation of transfer of management authority
(1) Subject to paragraph (2), the Secretary shall revoke, after
opportunity for a hearing, any transfer of management authority
made to a State under subsection (b)(1) of this section if the
Secretary finds that the State program for the conservation and
management of the species concerned is not being implemented, or is
being implemented in a manner inconsistent with the provisions of
this section or the provisions of the program. The Secretary shall
also establish a procedure for the voluntary return by a State to
the Secretary of species management authority that was previously
transferred to the State under subsection (b)(1) of this section.
(2)(A) The Secretary may not revoke a transfer of management
authority under paragraph (1) unless -
(i) the Secretary provides to the State a written notice of
intent to revoke together with a statement, in detail, of those
actions, or failures to act, on which such intent is based; and
(ii) during the ninety-day period after the date of the noticeof intent to revoke - (continued)