Loading (50 kb)...'
(continued)
(I) the Secretary provides opportunity for consultation
between him and the State concerning such State actions or
failures to act and the remedial measures that should be taken
by the State, and
(II) the State does not take such remedial measures as are
necessary, in the judgment of the Secretary, to bring its
conservation and management program, or the administration or
enforcement of the program, into compliance with the provisions
of this section.
(B) When a revocation by the Secretary of a transfer of
management authority to a State becomes final, or the State
voluntarily returns management authority to the Secretary, the
Secretary shall regulate the taking, and provide for the
conservation and management, of the species within the State in
accordance with the provisions of this chapter (and in the case of
Alaskan Natives, section 1371(b) of this title and subsection (i)
of this section shall apply upon such revocation or return of
management authority).
(f) Transfer of management authority to State of Alaska
(1) The Secretary may not transfer management authority to the
State of Alaska under subsection (b)(1) of this section for any
species of marine mammal unless -
(A) the State has adopted and will implement a statute and
regulations that insure that the taking of the species for
subsistence uses -
(i) is accomplished in a nonwasteful manner,
(ii) will be the priority consumptive use of the species, and
(iii) if required to be restricted, such restriction will be
based upon -
(I) the customary and direct dependence upon the species as
the mainstay of livelihood,
(II) local residency, and
(III) the availability of alternative resources; and
(B) the State has adopted a statute or regulation that requires
that any consumptive use of marine mammal species, other than for
subsistence uses, will be authorized during a regulatory year
only if the appropriate agency first makes findings, based on an
administrative record before it, that -
(i) such use will have no significant adverse impact upon
subsistence uses of the species, and
(ii) the regulation of such use, including, but not limited
to, licensing of marine mammal hunting guides and the
assignment of guiding areas, will, to the maximum extent
practicable, provide economic opportunities for the residents
of the rural coastal villages of Alaska who engage in
subsistence uses of that species.
(2) For purposes of paragraph (1), the term "subsistence uses"
means the customary and traditional uses by rural Alaska residents
of marine mammals for direct personal or family consumption as
food, shelter, fuel, clothing, tools, or transportation; for the
making and selling of handicraft articles out of nonedible
byproducts of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family
consumption. As used in this paragraph -
(A) The term "family" means all persons related by blood,
marriage, or adoption, or any person living within a household on
a permanent basis.
(B) The term "barter" means the exchange of marine mammals or
their parts, taken for subsistence uses -
(i) for other wildlife or fish or their parts, or
(ii) for other food or for nonedible items other than money
if the exchange is of a limited and noncommercial nature.
(g) Environmental impact statement not required
Neither the transfer of management authority to a State under
subsection (b)(1) of this section, nor the revocation or voluntary
return of such authority under subsection (e) of this section,
shall be deemed to be an action for which an environmental impact
statement is required under section 4332 of title 42.
(h) Taking of marine mammals as part of official duties
(1) Nothing in this subchapter or subchapter V of this chapter
shall prevent a Federal, State, or local government official or
employee or a person designated under section 1382(c) of this title
from taking, in the course of his or her duties as an official,
employee, or designee, a marine mammal in a humane manner
(including euthanasia) if such taking is for -
(A) the protection or welfare of the mammal,
(B) the protection of the public health and welfare, or
(C) the nonlethal removal of nuisance animals.
(2) Nothing in this subchapter shall prevent the Secretary or a
person designated under section 1382(c) of this title from
importing a marine mammal into the United States if such
importation is necessary to render medical treatment that is not
otherwise available.
(3) In any case in which it is feasible to return to its natural
habitat a marine mammal taken or imported under circumstances
described in this subsection, steps to achieve that result shall be
taken.
(i) Regulations covering taking of marine mammals by Alaskan
natives
The Secretary may (after providing notice thereof in the Federal
Register and in newspapers of general circulation, and through
appropriate electronic media, in the affected area and providing
opportunity for a hearing thereon in such area) prescribe
regulations requiring the marking, tagging, and reporting of
animals taken pursuant to section 1371(b) of this title.
(j) Grants to develop or administer State conservation and
management programs
The Secretary may make grants to States to assist them -
(1) in developing programs, to be submitted for approval under
subsection (b) of this section, for the conservation and
management of species of marine mammals; and
(2) in administering such programs if management authority for
such species is transferred to the State under such subsection.
Grants made under this subsection may not exceed 50 per centum of
the costs of developing a State program before Secretarial
approval, or of administering the program thereafter.
(k) Delegation of administration and enforcement to States
The Secretary is authorized and directed to enter into
cooperative arrangements with the appropriate officials of any
State for the delegation to such State of the administration and
enforcement of this subchapter: Provided, That any such arrangement
shall contain such provisions as the Secretary deems appropriate to
insure that the purposes and policies of this chapter will be
carried out.
(l) Authorization of appropriations
(1) There are authorized to be appropriated to the Department of
the Interior, for the purposes of carrying out this section, not to
exceed $400,000 for each of the fiscal years ending September 30,
1979, September 30, 1980, and September 30, 1981.
(2) There are authorized to be appropriated to the Department of
Commerce, for the purposes of carrying out this section, not to
exceed $225,000 for each of the fiscal years ending September 30,
1979, September 30, 1980, and September 30, 1981.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 109, Oct. 21, 1972, 86 Stat. 1040;
Pub. L. 95-316, Sec. 1, July 10, 1978, 92 Stat. 380; Pub. L. 97-58,
Sec. 4(a), Oct. 9, 1981, 95 Stat. 982; Pub. L. 100-711, Sec. 5(a),
(e)(3), Nov. 23, 1988, 102 Stat. 4769, 4771; Pub. L. 102-587, title
III, Sec. 3004(a)(2), Nov. 4, 1992, 106 Stat. 5067; Pub. L.
103-238, Sec. 24(c)(10), Apr. 30, 1994, 108 Stat. 566.)
-REFTEXT-
REFERENCES IN TEXT
Section 1362(14) of this title, referred to in subsecs.
(b)(3)(B)(i) and (d), was redesignated section 1362(15) by Pub. L.
102-582, title IV, Sec. 401(a), Nov. 2, 1992, 106 Stat. 4909.
The Regulatory Flexibility Act, referred to in subsec. (d)(2), is
Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164, which is classified
generally to chapter 6 (Sec. 601 et seq.) of Title 5, Government
Organization and Employees. For complete classification of this Act
to the Code, see Short Title note set out under section 601 of
Title 5 and Tables.
The Paperwork Reduction Act, referred to in subsec. (d)(2),
probably means the Paperwork Reduction Act of 1980, Pub. L. 96-511,
Dec. 11, 1980, 94 Stat. 2812, as amended, which was classified
principally to chapter 35 (Sec. 3501 et seq.) of Title 44, Public
Printing and Documents, prior to the general amendment of that
chapter by the Paperwork Reduction Act of 1995, Pub. L. 104-13,
Sec. 2, May 22, 1995, 109 Stat. 163. For complete classification of
this Act to the Code, see Short Title of 1980 Amendment note set
out under section 101 of Title 44 and Tables.
Executive Order Numbered 12291, dated February 17, 1981, referred
to in subsec. (d)(2), was formerly set out as a note under section
601 of Title 5, Government Organization and Employees, and was
revoked by Ex. Ord. No. 12866, Sec. 11, Sept. 30, 1993, 58 F.R.
51735.
-MISC1-
AMENDMENTS
1994 - Subsec. (h)(1). Pub. L. 103-238 made technical amendment
to reference to subchapter V of this chapter to reflect renumbering
of corresponding title of original act.
1992 - Subsec. (h)(1). Pub. L. 102-587 inserted "or subchapter V
of this chapter" in introductory provisions.
1988 - Subsec. (b)(1)(E). Pub. L. 100-711, Sec. 5(e)(3)(A),
substituted "research, public display, or enhancing the survival or
recovery of a species or stock" for "research and public display
purposes".
Subsec. (b)(3)(B)(ii). Pub. L. 100-711, Sec. 5(e)(3)(B),
substituted "research, public display, or enhancing the survival or
recovery of a species or stock" for "research or public display
purposes".
Subsec. (h). Pub. L. 100-711, Sec. 5(a), amended subsec. (h)
generally. Prior to amendment, subsec. (h) read as follows:
"Nothing in this subchapter shall prevent a Federal, State, or
local government official or employee or a person designated under
section 1382(c) of this title from taking, in the course of his
duties as an official, employee, or designee, a marine mammal in a
humane manner (including euthanasia) if such taking is for -
"(1) the protection or welfare of the mammal,
"(2) the protection of the public health and welfare, or
"(3) the nonlethal removal of nuisance animals,
and, in any case in which the return of the mammal to its natural
habitat is feasible, includes steps designed to achieve that
result."
1981 - Subsec. (a). Pub. L. 97-58, Sec. 4(a)(2), added subsec.
(a). Former subsec. (a), relating to State regulation of the taking
of marine mammals, was struck out.
Subsec. (b). Pub. L. 97-58, Sec. 4(a)(2), added subsec. (b).
Former subsec. (b), relating to the making of grants to States by
the Secretary, was struck out. See subsec. (j) of this section.
Subsecs. (c), (d). Pub. L. 97-58, Sec. 4(a)(1), (2), added
subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (k)
and (l), respectively.
Subsecs. (e) to (j). Pub. L. 97-58, Sec. 4(a)(2), added subsecs.
(e) to (j).
Subsecs. (k), (l). Pub. L. 97-58, Sec. 4(a)(1), redesignated
subsecs. (c) and (d) as (k) and (l), respectively.
1978 - Subsec. (d). Pub. L. 95-316 added subsec. (d).
COOPERATIVE AGREEMENTS UNDER ENDANGERED SPECIES ACT
Section 4(b) of Pub. L. 97-58 provided that: "Nothing in the
amendments made by subsection (a) [amending this section] shall be
construed as affecting in any manner, or to any extent, any
cooperative agreement entered into by a State under section 6(c) of
the Endangered Species Act of 1973 (16 U.S.C. 1535(c)) before, on,
or after the date of the enactment of this Act [Oct. 9, 1981]."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1153, 1362, 1371, 1372,
1421b, 1421h of this title.
-FOOTNOTE-
(!1) See References in Text note below.
(!2) See References in Text note below.
-End-
-CITE-
16 USC Sec. 1380 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1380. Marine mammal research grants
-STATUTE-
(a) Authorization; research concerning yellowfin tuna; annual
report
The Secretary is authorized to make grants, or to provide
financial assistance in such other form as he deems appropriate, to
any Federal or State agency, public or private institution, or
other person for the purpose of assisting such agency, institution,
or person to undertake research in subjects which are relevant to
the protection and conservation of marine mammals. In carrying out
this subsection, the Secretary shall undertake a program of, and
shall provide financial assistance for, research into new methods
of locating and catching yellowfin tuna without the incidental
taking of marine mammals. The Secretary shall include a description
of the annual results of research carried out under this section in
the report required under section 1373(f) of this title.
(b) Terms and conditions
Any grant or other financial assistance provided by the Secretary
pursuant to this section shall be subject to such terms and
conditions as the Secretary deems necessary to protect the
interests of the United States and shall be made after review by
the Marine Mammal Commission.
(c) Gulf of Maine ecosystem protection
(1) No later than 1 year after April 30, 1994, the Secretary of
Commerce shall convene a regional workshop for the Gulf of Maine to
assess human-caused factors affecting the health and stability of
that marine ecosystem, of which marine mammals are a part. The
workshop shall be conducted in consultation with the Marine Mammal
Commission, the adjacent coastal States, individuals with expertise
in marine mammal biology and ecology, representatives from
environmental organizations, the fishing industry, and other
appropriate persons. The goal of the workshop shall be to identify
such factors, and to recommend a program of research and management
to restore or maintain that marine ecosystem and its key components
that -
(A) protects and encourages marine mammals to develop to the
greatest extent feasible commensurate with sound policies of
resource management;
(B) has as the primary management objective the maintenance of
the health and stability of the marine ecosystems;
(C) ensures the fullest possible range of management options
for future generations; and
(D) permits nonwasteful, environmentally sound development of
renewable and nonrenewable resources.
(2) On or before December 31, 1995, the Secretary of Commerce
shall submit to the Committee on Merchant Marine and Fisheries of
the House of Representatives and the Committee on Commerce, Science
and Transportation of the Senate a report containing the results of
the workshop under this subsection, proposed regulatory or research
actions, and recommended legislative action.
(d) Bering Sea ecosystem protection
(1) The Secretary of Commerce, in consultation with the Secretary
of the Interior, the Marine Mammal Commission, the State of Alaska,
and Alaska Native organizations, shall, not later than 180 days
after April 30, 1994, undertake a scientific research program to
monitor the health and stability of the Bering Sea marine ecosystem
and to resolve uncertainties concerning the causes of population
declines of marine mammals, sea birds, and other living resources
of that marine ecosystem. The program shall address the research
recommendations developed by previous workshops on Bering Sea
living marine resources, and shall include research on subsistence
uses of such resources and ways to provide for the continued
opportunity for such uses.
(2) To the maximum extent practicable, the research program
undertaken pursuant to paragraph (1) shall be conducted in Alaska.
The Secretary of Commerce shall utilize, where appropriate,
traditional local knowledge and may contract with a qualified
Alaska Native organization to conduct such research.
(3) The Secretary of Commerce, the Secretary of the Interior, and
the Commission shall address the status and findings of the
research program in their annual reports to Congress required by
sections 1373(f) and 1404 of this title.(!1)
-SOURCE-
(Pub. L. 92-522, title I, Sec. 110, Oct. 21, 1972, 86 Stat. 1041;
Pub. L. 95-136, Sec. 1, Oct. 18, 1977, 91 Stat. 1167; Pub. L.
95-316, Sec. 2, July 10, 1978, 92 Stat. 380; Pub. L. 97-58, Sec. 5,
Oct. 9, 1981, 95 Stat. 986; Pub. L. 100-711, Sec. 4(e), Nov. 23,
1988, 102 Stat. 4768; Pub. L. 103-238, Sec. 20, Apr. 30, 1994, 108
Stat. 560; Pub. L. 105-42, Sec. 4(f), Aug. 15, 1997, 111 Stat.
1125.)
-REFTEXT-
REFERENCES IN TEXT
Provisions of section 1373(f) of this title requiring annual
reports to Congress, referred to in subsec. (d)(3), terminated,
effective May 15, 2000. See Termination of Reporting Requirements
note set out under section 1373 of this title.
Section 1404 of this title, referred to in subsec. (d)(3), was
omitted from the Code.
-MISC1-
AMENDMENTS
1997 - Subsec. (a). Pub. L. 105-42 struck out "(1)" before "The
Secretary is authorized" and struck out par. (2) which read as
follows: "For purposes of identifying appropriate research into
promising new methods of locating and catching yellowfin tuna
without the incidental taking of marine mammals, the Secretary
shall contract for an independent review of information pertaining
to such potential alternative methods to be conducted by the
National Academy of Sciences with individuals having scientific,
technical, or other expertise that may be relevant to the
identification of promising alternative fishing techniques. The
Secretary shall request that the independent review be submitted to
the Secretary on or before September 8, 1989, and the Secretary
shall submit the report of the independent review, together with a
proposed plan for research, development, and implementation of
alternative fishing techniques, to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives on or
before December 5, 1989."
1994 - Subsecs. (c), (d). Pub. L. 103-238 added subsecs. (c) and
(d) and struck out former subsec. (c) which authorized
appropriations to be made available to the Secretary of Commerce
and the Secretary of the Interior for purposes of carrying out this
section for fiscal year ending June 30, 1973, to fiscal year ending
Sept. 30, 1981.
1988 - Subsec. (a). Pub. L. 100-711 designated existing
provisions as par. (1) and added par. (2).
1981 - Subsec. (a). Pub. L. 97-58 directed the Secretary to
undertake a program of research into new methods of locating and
catching yellowfin tuna without the incidental taking of marine
mammals and directed that the Secretary include a description of
the annual results of that research in the report required under
section 1373(f) of this title.
1978 - Subsec. (c)(4) to (6). Pub. L. 95-316 added pars. (4) to
(6).
1977 - Subsec. (c). Pub. L. 95-136 incorporated existing
provisions into text preceding par. (1) and, as so incorporated,
struck out provisions authorizing to be appropriated such sums as
may be necessary to carry out this section for the fiscal year in
which this section takes effect and the next four years thereafter,
limiting appropriations for any one year to $2,500,000, and
requiring that one-third of such sums be made available to the
Secretary of the Interior and two-thirds of such sums be made
available to the Secretary of the department in which the National
Oceanic and Atmospheric Administration is operating, and added
pars. (1) to (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. For
treatment of references to Committee on Merchant Marine and
Fisheries, see section 1(b)(3) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
-FOOTNOTE-
(!1) See References in Text note below.
-End-
-CITE-
16 USC Sec. 1381 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1381. Commercial fisheries gear development
-STATUTE-
(a) Research and development program; report to Congress;
authorization of appropriations
The Secretary of the department in which the National Oceanic and
Atmospheric Administration is operating (hereafter referred to in
this section as the "Secretary") is hereby authorized and directed
to immediately undertake a program of research and development for
the purpose of devising improved fishing methods and gear so as to
reduce to the maximum extent practicable the incidental taking of
marine mammals in connection with commercial fishing. At the end of
the full twenty-four calendar month period following October 21,
1972, the Secretary shall deliver his report in writing to the
Congress with respect to the results of such research and
development. For the purposes of this section, there is hereby
authorized to be appropriated the sum of $1,000,000 for the fiscal
year ending June 30, 1973, and the same amount for the next fiscal
year. Funds appropriated for this section shall remain available
until expended.
(b) Reduction of level of taking of marine mammals incidental to
commercial fishing operations
The Secretary, after consultation with the Marine Mammal
Commission, is authorized and directed to issue, as soon as
practicable, such regulations, covering the twenty-four-month
period referred to in section 1371(a)(2) of this title, as he deems
necessary or advisable, to reduce to the lowest practicable level
the taking of marine mammals incidental to commercial fishing
operations. Such regulations shall be adopted pursuant to section
553 of title 5. In issuing such regulations, the Secretary shall
take into account the results of any scientific research under
subsection (a) of this section and, in each case, shall provide a
reasonable time not exceeding four months for the persons affected
to implement such regulations.
(c) Reduction of level of taking of marine mammals in tuna fishery
Additionally, the Secretary and Secretary of State are directed
to commence negotiations within the Inter-American Tropical Tuna
Commission in order to effect essential compliance with the
regulatory provisions of this chapter so as to reduce to the
maximum extent feasible the incidental taking of marine mammals by
vessels involved in the tuna fishery. The Secretary and Secretary
of State are further directed to request the Director of
Investigations of the Inter-American Tropical Tuna Commission to
make recommendations to all member nations of the Commission as
soon as is practicable as to the utilization of methods and gear
devised under subsection (a) of this section.
(d) Research and observation
Furthermore, after timely notice and during the period of
research provided in this section, duly authorized agents of the
Secretary are hereby empowered to board and to accompany any
commercial fishing vessel documented under the laws of the United
States, there being space available, on a regular fishing trip for
the purpose of conducting research or observing operations in
regard to the development of improved fishing methods and gear as
authorized by this section. Such research and observation shall be
carried out in such manner as to minimize interference with fishing
operations. The Secretary shall provide for the cost of quartering
and maintaining such agents. No master, operator, or owner of such
a vessel shall impair or in any way interfere with the research or
observation being carried out by agents of the Secretary pursuant
to this section.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 111, Oct. 21, 1972, 86 Stat. 1041.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1371, 1372 of this title.
-End-
-CITE-
16 USC Sec. 1382 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1382. Regulations and administration
-STATUTE-
(a) Consultation with Federal agencies
The Secretary, in consultation with any other Federal agency to
the extent that such agency may be affected, shall prescribe such
regulations as are necessary and appropriate to carry out the
purposes of this subchapter.
(b) Cooperation by Federal agencies
Each Federal agency is authorized and directed to cooperate with
the Secretary, in such manner as may be mutually agreeable, in
carrying out the purposes of this subchapter.
(c) Contracts, leases, and cooperative agreements
The Secretary may enter into such contracts, leases, cooperative
agreements, or other transactions as may be necessary to carry out
the purposes of this subchapter or subchapter V of this chapter and
on such terms as he deems appropriate with any Federal or State
agency, public or private institution, or other person.
(d) Annual review; suspension of program
The Secretary shall review annually the operation of each program
in which the United States participates involving the taking of
marine mammals on lands. If at any time the Secretary finds that
any such program cannot be administered on lands owned by the
United States or in which the United States has an interest in a
manner consistent with the purposes of policies of this chapter, he
shall suspend the operation of that program and shall include in
the annual report to the public and the Congress required under
section 1373(f) of this title his reasons for such suspension,
together with recommendations for such legislation as he deems
necessary and appropriate to resolve the problem.
(e) Measures to alleviate impacts on strategic stocks
If the Secretary determines, based on a stock assessment under
section 1386 of this title or other significant new information
obtained under this chapter, that impacts on rookeries, mating
grounds, or other areas of similar ecological significance to
marine mammals may be causing the decline or impeding the recovery
of a strategic stock, the Secretary may develop and implement
conservation or management measures to alleviate those impacts.
Such measures shall be developed and implemented after consultation
with the Marine Mammal Commission and the appropriate Federal
agencies and after notice and opportunity for public comment.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 112, Oct. 21, 1972, 86 Stat. 1042;
Pub. L. 96-470, title II, Sec. 201(e), Oct. 19, 1980, 94 Stat.
2241; Pub. L. 102-587, title III, Sec. 3004(a)(3), Nov. 4, 1992,
106 Stat. 5067; Pub. L. 103-238, Secs. 7(a), 24(c)(11), Apr. 30,
1994, 108 Stat. 542, 566.)
-MISC1-
AMENDMENTS
1994 - Subsec. (c). Pub. L. 103-238, Sec. 24(c)(11), made
technical amendment to reference to subchapter V of this chapter to
reflect renumbering of corresponding title of original act.
Subsec. (e). Pub. L. 103-238, Sec. 7(a), added subsec. (e).
1992 - Subsec. (c). Pub. L. 102-587 inserted "or subchapter V of
this chapter" after "of this subchapter".
1980 - Subsec. (d). Pub. L. 96-470 substituted "include in the
annual report to the public and the Congress required under section
1373(f) of this title" for "forthwith submit to Congress".
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1371, 1379, 1421b, 1421e,
1421h of this title.
-End-
-CITE-
16 USC Sec. 1383 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1383. Application to other treaties and conventions
-STATUTE-
(a) Generally; findings; waiver of penalties
The provisions of this subchapter shall be deemed to be in
addition to and not in contravention of the provisions of any
existing international treaty, convention, or agreement, or any
statute implementing the same, which may otherwise apply to the
taking of marine mammals. Upon a finding by the Secretary that the
provisions of any international treaty, convention, or agreement,
or any statute implementing the same has been made applicable to
persons subject to the provisions of this subchapter in order to
effect essential compliance with the regulatory provisions of this
chapter so as to reduce to the lowest practicable level the taking
of marine mammals incidental to commercial fishing operations,
section 1375 of this title may not apply to such persons.
(b) Review of effectiveness of Agreement on the Conservation of
Polar Bears
Not later than 1 year after April 30, 1994, the Secretary of the
Interior shall, in consultation with the contracting parties,
initiate a review of the effectiveness of the Agreement on the
Conservation of Polar Bears, as provided for in Article IX of the
Agreement, and establish a process by which future reviews shall be
conducted.
(c) Review of implementation of Agreement on the Conservation of
Polar Bears; report
The Secretary of the Interior, in consultation with the Secretary
of State and the Marine Mammal Commission, shall review the
effectiveness of United States implementation of the Agreement on
the Conservation of Polar Bears, particularly with respect to the
habitat protection mandates contained in Article II. The Secretary
shall report the results of this review to the Committee on
Merchant Marine and Fisheries of the House of Representatives and
the Committee on Commerce, Science, and Transportation of the
Senate not later than April 1, 1995.
(d) Consultation regarding conservation of polar bears in Russia
and Alaska; report
Not later than 6 months after April 30, 1994, the Secretary of
the Interior, acting through the Secretary of State and in
consultation with the Marine Mammal Commission and the State of
Alaska, shall consult with the appropriate officials of the Russian
Federation on the development and implementation of enhanced
cooperative research and management programs for the conservation
of polar bears in Alaska and Russia. The Secretary shall report the
results of this consultation and provide periodic progress reports
on the research and management programs to the Committee on
Merchant Marine and Fisheries of the House of Representatives and
the Committee on Commerce, Science and Transportation of the
Senate.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 113, Oct. 21, 1972, 86 Stat. 1042;
Pub. L. 103-238, Sec. 7(b), Apr. 30, 1994, 108 Stat. 542.)
-COD-
CODIFICATION
A prior subsec. (b) of section 113 of Pub. L. 92-522 amended
section 659 of this title.
-MISC1-
AMENDMENTS
1994 - Subsec. (a). Pub. L. 103-238, Sec. 7(b)(1), directed the
amendment of this section by "designating the existing paragraph"
as subsec. (a), notwithstanding the existing first par. of this
section was already designated (a).
Subsecs. (b) to (d). Pub. L. 103-238, Sec. 7(b)(2), added
subsecs. (b) to (d). See Codification note above.
-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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1372, 1374 of this title.
-End-
-CITE-
16 USC Sec. 1383a 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1383a. Interim exemption for commercial fisheries
-STATUTE-
(a) Effective and termination dates of preemptive provisions; law
governing incidental taking of marine mammals in course of
commercial yellowfin tuna fishing
(1) During the period beginning on November 23, 1988, and until
superseded by regulations prescribed under section 1387 of this
title, or until September 1, 1995, whichever is earlier, except as
provided in paragraph (2), the provisions of this section, rather
than sections 1371, 1373, and 1374 of this title, shall govern the
incidental taking of marine mammals in the course of commercial
fishing operations by persons using vessels of the United States
and vessels which have valid fishing permits issued by the
Secretary in accordance with section 1824(b) of this title. In any
event it shall be 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.
(2) The provisions of this section other than subsection
(e)(6)(A) of this section shall not govern the incidental taking of
marine mammals in the course of commercial yellowfin tuna fishing
subject to section 1374(h)(2) of this title.
(b) Proposed and final list of fisheries taking marine mammals;
publication in Federal Register; grant of exemption; conditions;
suspension of grant of exemption; administration of exemption
provisions; fees
(1) The Secretary shall, after consultation with the Marine
Mammal Commission -
(A) publish in the Federal Register, for public comment, not
later than sixty days after November 23, 1988, a proposed list of
those fisheries, along with a statement of the marine mammals and
the approximate number of vessels or persons involved in each
such fishery, that have -
(i) frequent incidental taking of marine mammals;
(ii) occasional incidental taking of marine mammals; or
(iii) a remote likelihood of or no known incidental taking of
marine mammals;
(B) publish in the Federal Register not later than one hundred
and twenty days after November 23, 1988, a final list of the
fisheries and other information required by paragraph (A),
together with a summary of the provisions of this section and
information sufficient to advise vessel owners on how to obtain
an exemption and otherwise comply with the requirements of this
section; and
(C) at least once each year thereafter, and at such other times
as the Secretary considers appropriate, reexamine, based on
information gathered from the program established under
subsections (c), (d), (e), and (f) of this section, and other
relevant sources and after notice and opportunity for public
comment, the classification of fisheries and other determinations
required under subparagraph (A) and publish in the Federal
Register any necessary changes.
(2)(A) An exemption shall be granted by the Secretary in
accordance with this section for a vessel engaged in a fishery
identified under paragraph (1)(A)(i) or (ii), upon receipt by the
Secretary of a completed registration form providing the name of
the vessel owner, the name and description of the vessel, the
fisheries in which it will be engaged, and such other information
as the Secretary considers necessary. A decal or other physical
evidence that the exemption is current and valid shall be issued by
the Secretary at the time an exemption is granted, and so long as
the exemption remains current and valid, shall be reissued annually
thereafter.
(B) No exemption may be granted under this section to the owner
of a vessel unless such vessel -
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in
accordance with section 1824(b) of this title.
(C) Notwithstanding any other provision of this subchapter,
exemptions granted under this section shall authorize the
incidental taking of marine mammals, other than California sea
otters, from any species or stock, including a population stock
designated as depleted, but shall not authorize the intentional
lethal taking of any Steller sea lion, any cetacean, or any marine
mammals from a population stock designated as depleted.
(3)(A) Beginning two hundred and forty days after November 23,
1988, each owner of a vessel engaged in any fishery identified
under paragraph (1)(A)(i) or (ii) shall, in order to engage
lawfully in that fishery -
(i) have registered with the Secretary in order to obtain for
each such vessel owned an exemption for the purpose of
incidentally taking marine mammals in accordance with this
section;
(ii) ensure that a decal or such other physical evidence of a
current and valid exemption as the Secretary may require is
displayed on or is in the possession of the master of each such
vessel; and
(iii) report as required by subsection (c) of this section.
(B) Any owner of a vessel receiving an exemption under this
section for any fishery identified under paragraph (1)(A)(i) shall,
as a condition of that exemption, take on board a natural resource
observer if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery identified under
paragraph (1)(A)(i) or (ii) who -
(i) fails to obtain from the Secretary an exemption under this
section;
(ii) fails to maintain a current and valid exemption; or
(iii) fails to ensure that a decal or other physical evidence
of such exemption issued by the Secretary is displayed on or is
in possession of the master of the vessel,
and the master of any such vessel engaged in such fishery, shall be
deemed to have violated this subchapter, and shall be subject to
the penalties of this subchapter except in the case of unknowing
violations before January 1, 1990.
(D) If the owner of a vessel has obtained and maintains a current
and valid exemption from the Secretary under this section and meets
the requirements set forth in this section, the owner of such
vessel, and the master and crew members of the vessel, shall not be
subject to the penalties set forth in this subchapter for the
incidental taking of marine mammals while such vessel is engaged in
a fishery to which the exemption applies.
(E) Each owner of a vessel engaged in any fishery not identified
in paragraph (1)(A)(i) or (ii), and the master and crew members of
such a vessel, shall not be subject to the penalties set forth in
this subchapter for the incidental taking of marine mammals if such
owner reports to the Secretary, in such form and manner as the
Secretary may require, instances of lethal incidental taking in the
course of that fishery.
(4) The Secretary shall suspend or revoke an exemption granted
under this section and shall not issue a decal or other physical
evidence of the exemption for any vessel until the owner of such
vessel complies with the reporting requirements under subsection
(c) of this section and such requirements to take on board a
natural resource observer under paragraph (3)(B) as are applicable
to such vessel.
(5)(A) The Secretary shall develop, in consultation with the
appropriate States, Regional Fishery Management Councils, and other
interested parties, the means by which the granting and
administration of exemptions under this section shall be integrated
and coordinated, to the maximum extent practicable, with existing
fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of general
circulation, fishery trade associations, electronic media, and
other means of advising commercial fishermen of the provisions of
this section and the means by which they can comply with its
requirements.
(C) The Secretary is authorized to charge a fee for the granting
of an exemption under this subsection. The level of fees charged
under this subparagraph shall not exceed the administrative costs
incurred in granting an exemption. Fees collected under this
subparagraph shall be available to the Under Secretary of Commerce
for Oceans and Atmosphere for expenses incurred in the granting and
administration of exemptions under this section.
(c) Compilation of information by vessel owners; contents
The owner of each vessel holding an exemption granted under
subsection (b) of this section shall regularly compile information
which shall be used in a report to be submitted to the Secretary at
the close of the fishing season or annually, as the Secretary may
prescribe. Such report shall be submitted in such form as the
Secretary may require and shall include the following:
(1) the type of fishery engaged in by the owner's vessel;
(2) the date and approximate time of any incidental taking of a
marine mammal, together with the area in which the incidental
taking occurred, the fishing gear used at the time of the
incidental taking, and the species of fish involved; and
(3) for each incidental taking, the number and species of
marine mammals involved, whether the marine mammals were deterred
from gear or catch, incidentally injured, incidentally killed, or
lethally removed to protect gear, catch, or human life.
If there was no incidental taking of marine mammals during the
reporting period, a report stating that fact shall be filed with
the Secretary.
(d) Program for enhancement and verification of information
received from vessel owners; confidentiality of information
(1) The Secretary shall establish a program to enhance the
quality of and verify information received from reports submitted
by owners of vessels who have been granted an exemption under
subsection (b) of this section. The program shall include, but not
be limited to -
(A) education efforts regarding the information that must be
submitted;
(B) interviews with fishermen; and
(C) other such information gathering and verification
activities that will enable the Secretary to determine reliably
the nature, type, and extent of the incidental taking of marine
mammals that occurs in a fishery.
Except to the extent authorized by the provisions of subsection (e)
of this section, the program shall not include placement of
observers aboard exempted vessels.
(2) Information obtained under this subsection shall be subject
to the confidentiality provisions of subsection (j) of this
section.
(e) Observers on board exempted vessels; confidentiality of
information; authorization of appropriations
(1) For each fishery identified under subsection (b)(1)(A)(i) of
this section, the Secretary shall, after consultation with the
appropriate Regional Fishery Management Councils, other Federal and
State agencies, and other interested parties, and subject to
paragraph (6), place observers on board exempted vessels so as to
monitor not less than 20 percent nor more than 35 percent of the
fishing operations by vessels in the fishery to obtain
statistically reliable information on the species and number of
marine mammals incidentally taken in the fishery. If the Secretary
determines that fewer than 20 percent of the fishing operations by
vessels in the fishery will be monitored during the course of the
fishing season, the Secretary shall implement the alternative
observation program described in subsection (f) of this section to
the extent necessary to supplement the observer program described
in this subsection.
(2) When determining the distribution of observers among
fisheries and between vessels in a particular fishery, the
Secretary shall be guided by the following standards:
(A) the requirement to obtain the best scientific information
available;
(B) the requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery;
(C) consistent with paragraph (1), the requirement that no
individual person or vessel, or group of persons or vessels, be
subject to excessive or overly burdensome observer coverage; and
(D) where practicable, the need to minimize costs and avoid
duplication.
(3) If the Secretary finds that, for reasons beyond his or her
control, the Secretary cannot assign observers to all the fisheries
identified under subsection (b)(1)(A)(i) of this section at the
level of observer coverage set forth in paragraph (1), the
Secretary shall allocate available observers among such fisheries,
consistent with paragraph (2), according to the following priority:
(A) those fisheries that incidentally take marine mammals from
any population stock designated as depleted;
(B) those fisheries that incidentally take marine mammals from
population stocks that the Secretary believes are declining;
(C) those fisheries other than those described in subparagraphs
(A) and (B) in which the greatest incidental take of marine
mammals occur; and
(D) any other fishery identified under subsection (b)(1)(A)(i)
of this section.
The Secretary may, with the consent of the vessel owner, station an
observer on board a vessel engaged in a fishery not identified
under subsection (b)(1)(A)(i) of this section.
(4) Information gathered by observers shall be subject to the
provisions of subsection (j) of this section. Consistent with the
requirements of paragraph (1), the Secretary shall, if requested by
the Appropriate (!1) Regional Fishery Management Council, or in the
case of a State fishery, the State, require observers to collect
additional information, including but not limited to the
quantities, species, and physical condition of target and
non-target fishery resources and, if requested by the Secretary of
the Interior, seabirds.
(5) Notwithstanding the provisions of paragraph (4), the
Secretary may decline to require observers to collect information
described in such paragraph, ifthe Secretary finds in writing, (continued)