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(continued)
which these are based;
(3) estimate the annual human-caused mortality and serious
injury of the stock by source and, for a strategic stock, other
factors that may be causing a decline or impeding recovery of the
stock, including effects on marine mammal habitat and prey;
(4) describe commercial fisheries that interact with the stock,
including -
(A) the approximate number of vessels actively participating
in each such fishery;
(B) the estimated level of incidental mortality and serious
injury of the stock by each such fishery on an annual basis;
(C) seasonal or area differences in such incidental mortality
or serious injury; and
(D) the rate, based on the appropriate standard unit of
fishing effort, of such incidental mortality and serious
injury, and an analysis stating whether such level is
insignificant and is approaching a zero mortality and serious
injury rate;
(5) categorize the status of the stock as one that either -
(A) has a level of human-caused mortality and serious injury
that is not likely to cause the stock to be reduced below its
optimum sustainable population; or
(B) is a strategic stock, with a description of the reasons
therefor; and
(6) estimate the potential biological removal level for the
stock, describing the information used to calculate it, including
the recovery factor.
(b) Public comment
(1) The Secretary shall publish in the Federal Register a notice
of the availability of a draft stock assessment or any revision
thereof and provide an opportunity for public review and comment
during a period of 90 days. Such notice shall include a summary of
the assessment and a list of the sources of information or
published reports upon which the assessment is based.
(2) Subsequent to the notice of availability required under
paragraph (1), if requested by a person to which section 1371(b) of
this title applies, the Secretary shall conduct a proceeding on the
record prior to publishing a final stock assessment or any revision
thereof for any stock subject to taking under section 1371(b) of
this title.
(3) After consideration of the best scientific information
available, the advice of the appropriate regional scientific review
group established under subsection (d) of this section, and the
comments of the general public, the Secretary shall publish in the
Federal Register a notice of availability and a summary of the
final stock assessment or any revision thereof, not later than 90
days after -
(A) the close of the public comment period on a draft stock
assessment or revision thereof; or
(B) final action on an agency proceeding pursuant to paragraph
(2).
(c) Review and revision
(1) The Secretary shall review stock assessments in accordance
with this subsection -
(A) at least annually for stocks which are specified as
strategic stocks;
(B) at least annually for stocks for which significant new
information is available; and
(C) at least once every 3 years for all other stocks.
(2) If the review under paragraph (1) indicates that the status
of the stock has changed or can be more accurately determined, the
Secretary shall revise the stock assessment in accordance with
subsection (b) of this section.
(d) Regional scientific review groups
(1) Not later than 60 days after April 30, 1994, the Secretary of
Commerce shall, in consultation with the Secretary of the Interior
(with respect to marine mammals under that Secretary's
jurisdiction), the Marine Mammal Commission, the Governors of
affected adjacent coastal States, regional fishery and wildlife
management authorities, Alaska Native organizations and Indian
tribes, and environmental and fishery groups, establish three
independent regional scientific review groups representing Alaska,
the Pacific Coast (including Hawaii), and the Atlantic Coast
(including the Gulf of Mexico), consisting of individuals with
expertise in marine mammal biology and ecology, population dynamics
and modeling, commercial fishing technology and practices, and
stocks taken under section 1371(b) of this title. The Secretary of
Commerce shall, to the maximum extent practicable, attempt to
achieve a balanced representation of viewpoints among the
individuals on each regional scientific review group. The regional
scientific review groups shall advise the Secretary on -
(A) population estimates and the population status and trends
of such stocks;
(B) uncertainties and research needed regarding stock
separation, abundance, or trends, and factors affecting the
distribution, size, or productivity of the stock;
(C) uncertainties and research needed regarding the species,
number, ages, gender, and reproductive status of marine mammals;
(D) research needed to identify modifications in fishing gear
and practices likely to reduce the incidental mortality and
serious injury of marine mammals in commercial fishing
operations;
(E) the actual, expected, or potential impacts of habitat
destruction, including marine pollution and natural environmental
change, on specific marine mammal species or stocks, and for
strategic stocks, appropriate conservation or management measures
to alleviate any such impacts; and
(F) any other issue which the Secretary or the groups consider
appropriate.
(2) The scientific review groups established under this
subsection shall not be subject to the Federal Advisory Committee
Act (5 App. U.S.C.).
(3) Members of the scientific review groups shall serve without
compensation, but may be reimbursed by the Secretary, upon request,
for reasonable travel costs and expenses incurred in performing
their obligations.
(4) The Secretary may appoint or reappoint individuals to the
regional scientific review groups under paragraph (1) as needed.
(e) Effect on section 1371(b) of this title
This section shall not affect or otherwise modify the provisions
of section 1371(b) of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 117, as added Pub. L. 103-238, Sec.
10, Apr. 30, 1994, 108 Stat. 543.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in subsec.
(d)(2), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended,
which is set out in the Appendix to Title 5, Government
Organization and Employees.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1371, 1382, 1384, 1387,
1389 of this title.
-End-
-CITE-
16 USC Sec. 1387 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1387. Taking of marine mammals incidental to commercial
fishing operations
-STATUTE-
(a) In general
(1) Effective on April 30, 1994, and except as provided in
section 1383a of this title and in paragraphs (2), (3), and (4) of
this subsection, the provisions of this section shall govern the
incidental taking of marine mammals in the course of commercial
fishing operations by persons using vessels of the United States or
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 mortality or
serious injury of marine mammals occurring in the course of
commercial fishing operations be reduced to insignificant levels
approaching a zero mortality and serious injury rate within 7 years
after April 30, 1994.
(2) In the case of the incidental taking of marine mammals from
species or stocks designated under this chapter as depleted on the
basis of their listing as threatened species or endangered species
under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.),
both this section and section 1371(a)(5)(E) of this title shall
apply.
(3) Sections (!1) 1374(h) of this title and subchapter IV of this
chapter, and not this section, shall govern the taking of marine
mammals in the course of commercial purse seine fishing for
yellowfin tuna in the eastern tropical Pacific Ocean.
(4) This section shall not govern the incidental taking of
California sea otters and shall not be deemed to amend or repeal
the Act of November 7, 1986 (Public Law 99-625; 100 Stat. 3500).
(5) Except as provided in section 1371(c) of this title, the
intentional lethal take of any marine mammal in the course of
commercial fishing operations is prohibited.
(6) Sections 1373 and 1374 of this title shall not apply to the
incidental taking of marine mammals under the authority of this
section.
(b) Zero mortality rate goal
(1) Commercial fisheries shall reduce incidental mortality and
serious injury of marine mammals to insignificant levels
approaching a zero mortality and serious injury rate within 7 years
after April 30, 1994.
(2) Fisheries which maintain insignificant serious injury and
mortality levels approaching a zero rate shall not be required to
further reduce their mortality and serious injury rates.
(3) Three years after April 30, 1994, the Secretary shall review
the progress of all commercial fisheries, by fishery, toward
reducing incidental mortality and serious injury to insignificant
levels approaching a zero rate. The Secretary shall submit to the
Committee on Commerce, Science, and Transportation of the Senate
and the Committee on Merchant Marine and Fisheries of the House of
Representatives a report setting forth the results of such review
within 1 year after commencement of the review. The Secretary shall
note any commercial fishery for which additional information is
required to accurately assess the level of incidental mortality and
serious injury of marine mammals in the fishery.
(4) If the Secretary determines after review under paragraph (3)
that the rate of incidental mortality and serious injury of marine
mammals in a commercial fishery is not consistent with paragraph
(1), then the Secretary shall take appropriate action under
subsection (f) of this section.
(c) Registration and authorization
(1) The Secretary shall, within 90 days after April 30, 1994 -
(A) publish in the Federal Register for public comment, for a
period of not less than 90 days, any necessary changes to the
Secretary's list of commercial fisheries published under section
1383a(b)(1) of this title and which is in existence on March 31,
1994 (along with an explanation of such changes and a statement
describing the marine mammal stocks interacting with, and the
approximate number of vessels or persons actively involved in,
each such fishery), with respect to commercial fisheries that
have -
(i) frequent incidental mortality and serious injury of
marine mammals;
(ii) occasional incidental mortality and serious injury of
marine mammals; or
(iii) a remote likelihood of or no known incidental mortality
or serious injury of marine mammals;
(B) after the close of the period for such public comment,
publish in the Federal Register a revised list of commercial
fisheries and an update of information required by subparagraph
(A), together with a summary of the provisions of this section
and information sufficient to advise vessel owners on how to
obtain an authorization 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 under this chapter and other relevant
sources and after notice and opportunity for public comment, the
classification of commercial fisheries and other determinations
required under subparagraph (A) and publish in the Federal
Register any necessary changes.
(2)(A) An authorization shall be granted by the Secretary in
accordance with this section for a vessel engaged in a commercial
fishery listed under paragraph (1)(A)(i) or (ii), upon receipt by
the Secretary of a completed registration form providing the name
of the vessel owner and operator, the name and description of the
vessel, the fisheries in which it will be engaged, the approximate
time, duration, and location of such fishery operations, and the
general type and nature of use of the fishing gear and techniques
used. Such information shall be in a readily usable format that can
be efficiently entered into and utilized by an automated or
computerized data processing system. A decal or other physical
evidence that the authorization is current and valid shall be
issued by the Secretary at the time an authorization is granted,
and so long as the authorization remains current and valid, shall
be reissued annually thereafter.
(B) No authorization 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) Except as provided in subsection (a) of this section, an
authorization granted under this section shall allow the incidental
taking of all species and stocks of marine mammals to which this
chapter applies.
(3)(A) An owner of a vessel engaged in any fishery listed under
paragraph (1)(A)(i) or (ii) shall, in order to engage in the lawful
incidental taking of marine mammals in a commercial fishery -
(i) have registered as required under paragraph (2) with the
Secretary in order to obtain for each such vessel owned and used
in the fishery an authorization for the purpose of incidentally
taking marine mammals in accordance with this section, except
that owners of vessels holding valid certificates of exemption
under section 1383a of this title are deemed to have registered
for purposes of this subsection for the period during which such
exemption is valid;
(ii) ensure that a decal or such other physical evidence of a
current and valid authorization as the Secretary may require is
displayed on or is in the possession of the master of each such
vessel;
(iii) report as required by subsection (e) of this section; and
(iv) comply with any applicable take reduction plan and
emergency regulations issued under this section.
(B) Any owner of a vessel receiving an authorization under this
section for any fishery listed under paragraph (1)(A)(i) or (ii)
shall, as a condition of that authorization, take on board an
observer if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery listed under
paragraph (1)(A)(i) or (ii) who -
(i) fails to obtain from the Secretary an authorization for
such vessel under this section;
(ii) fails to maintain a current and valid authorization for
such vessel; or
(iii) fails to ensure that a decal or other physical evidence
of such authorization 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 for violations of
clauses (i) and (ii) shall be subject to the penalties of this
subchapter, and for violations of clause (iii) shall be subject to
a fine of not more than $100 for each offense.
(D) If the owner of a vessel has obtained and maintains a current
and valid authorization from the Secretary under this section and
meets the requirements set forth in this section, including
compliance with any regulations to implement a take reduction plan
under 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
authorization applies.
(E) Each owner of a vessel engaged in any fishery not listed
under 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 the form and manner
required under subsection (e) of this section, instances of
incidental mortality or injury of marine mammals in the course of
that fishery.
(4)(A) The Secretary shall suspend or revoke an authorization
granted under this section and shall not issue a decal or other
physical evidence of the authorization for any vessel until the
owner of such vessel complies with the reporting requirements under
subsection (e) of this section and such requirements to take on
board an observer under paragraph (3)(B) as are applicable to such
vessel. Previous failure to comply with the requirements of section
1383a of this title shall not bar authorization under this section
for an owner who complies with the requirements of this section.
(B) The Secretary may suspend or revoke an authorization granted
under this subsection, and may not issue a decal or other physical
evidence of the authorization for any vessel which fails to comply
with a take reduction plan or emergency regulations issued under
this section.
(C) The owner and master of a vessel which fails to comply with a
take reduction plan shall be subject to the penalties of sections
1375 and 1377 of this title, and may be subject to section 1376 of
this title.
(5)(A) The Secretary shall develop, in consultation with the
appropriate States, affected Regional Fishery Management Councils,
and other interested persons, the means by which the granting and
administration of authorizations 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 authorization under this section. The level of fees charged
under this subparagraph shall not exceed the administrative costs
incurred in granting an authorization. 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 authorizations under this section.
(d) Monitoring of incidental takes
(1) The Secretary shall establish a program to monitor incidental
mortality and serious injury of marine mammals during the course of
commercial fishing operations. The purposes of the monitoring
program shall be to -
(A) obtain statistically reliable estimates of incidental
mortality and serious injury;
(B) determine the reliability of reports of incidental
mortality and serious injury under subsection (e) of this
section; and
(C) identify changes in fishing methods or technology that may
increase or decrease incidental mortality and serious injury.
(2) Pursuant to paragraph (1), the Secretary may place observers
on board vessels as necessary, subject to the provisions of this
section. Observers may, among other tasks -
(A) record incidental mortality and injury, or by catch of
other nontarget species;
(B) record numbers of marine mammals sighted; and
(C) perform other scientific investigations.
(3) In determining the distribution of observers among commercial
fisheries and vessels within a fishery, the Secretary shall be
guided by the following standards:
(A) The requirement to obtain statistically reliable
information.
(B) The requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery.
(C) The requirement that no individual person or vessel, or
group of persons or vessels, be subject to excessive or overly
burdensome observer coverage.
(D) To the extent practicable, the need to minimize costs and
avoid duplication.
(4) To the extent practicable, the Secretary shall allocate
observers among commercial fisheries in accordance with the
following priority:
(A) The highest priority for allocation shall be for commercial
fisheries that have incidental mortality or serious injury of
marine mammals from stocks listed as endangered species or
threatened species under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
(B) The second highest priority for allocation shall be for
commercial fisheries that have incidental mortality and serious
injury of marine mammals from strategic stocks.
(C) The third highest priority for allocation shall be for
commercial fisheries that have incidental mortality or serious
injury of marine mammals from stocks for which the level of
incidental mortality and serious injury is uncertain.
(5) The Secretary may establish an alternative observer program
to provide statistically reliable information on the species and
number of marine mammals incidentally taken in the course of
commercial fishing operations. The alternative observer program may
include direct observation of fishing activities from vessels,
airplanes, or points on shore.
(6) The Secretary is not required to place an observer on a
vessel in a fishery if the Secretary finds that -
(A) in a situation in which harvesting vessels are delivering
fish to a processing vessel and the catch is not taken on board
the harvesting vessel, statistically reliable information can be
obtained from an observer on board the processing vessel to which
the fish are delivered;
(B) the facilities on a vessel for quartering of an observer,
or for carrying out observer functions, are so inadequate or
unsafe that the health or safety of the observer or the safe
operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the Secretary, an
observer is not available.
(7) The Secretary may, with the consent of the vessel owner,
station an observer on board a vessel engaged in a fishery not
listed under subsection (c)(1)(A)(i) or (ii) of this section.
(8) Any proprietary information collected under this subsection
shall be confidential and shall not be disclosed except -
(A) to Federal employees whose duties require access to such
information;
(B) to State or tribal employees pursuant to an agreement with
the Secretary that prevents public disclosure of the identity or
business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries,
to employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and
monitoring.
(9) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the
Secretary shall release or make public upon request any such
information in aggregate, summary, or other form which does not
directly or indirectly disclose the identity or business of any
person.
(e) Reporting requirement
The owner or operator of a commercial fishing vessel subject to
this chapter shall report all incidental mortality and injury of
marine mammals in the course of commercial fishing operations to
the Secretary by mail or other means acceptable to the Secretary
within 48 hours after the end of each fishing trip on a standard
postage-paid form to be developed by the Secretary under this
section. Such form shall be capable of being readily entered into
and usable by an automated or computerized data processing system
and shall require the vessel owner or operator to provide the
following:
(1) The vessel name, and Federal, State, or tribal registration
numbers of the registered vessel.
(2) The name and address of the vessel owner or operator.
(3) The name and description of the fishery.
(4) The species of each marine mammal incidentally killed or
injured, and the date, time, and approximate geographic location
of such occurrence.
(f) Take reduction plans
(1) The Secretary shall develop and implement a take reduction
plan designed to assist in the recovery or prevent the depletion of
each strategic stock which interacts with a commercial fishery
listed under subsection (c)(1)(A)(i) or (ii) of this section, and
may develop and implement such a plan for any other marine mammal
stocks which interact with a commercial fishery listed under
subsection (c)(1)(A)(i) of this section which the Secretary
determines, after notice and opportunity for public comment, has a
high level of mortality and serious injury across a number of such
marine mammal stocks.
(2) The immediate goal of a take reduction plan for a strategic
stock shall be to reduce, within 6 months of its implementation,
the incidental mortality or serious injury of marine mammals
incidentally taken in the course of commercial fishing operations
to levels less than the potential biological removal level
established for that stock under section 1386 of this title. The
long-term goal of the plan shall be to reduce, within 5 years of
its implementation, the incidental mortality or serious injury of
marine mammals incidentally taken in the course of commercial
fishing operations to insignificant levels approaching a zero
mortality and serious injury rate, taking into account the
economics of the fishery, the availability of existing technology,
and existing State or regional fishery management plans.
(3) If there is insufficient funding available to develop and
implement a take reduction plan for all such stocks that interact
with commercial fisheries listed under subsection (c)(1)(A)(i) or
(ii) of this section, the Secretary shall give highest priority to
the development and implementation of take reduction plans for
species or stocks whose level of incidental mortality and serious
injury exceeds the potential biological removal level, those that
have a small population size, and those which are declining most
rapidly.
(4) Each take reduction plan shall include -
(A) a review of the information in the final stock assessment
published under section 1386(b) of this title and any substantial
new information;
(B) an estimate of the total number and, if possible, age and
gender, of animals from the stock that are being incidentally
lethally taken or seriously injured each year during the course
of commercial fishing operations, by fishery;
(C) recommended regulatory or voluntary measures for the
reduction of incidental mortality and serious injury;
(D) recommended dates for achieving the specific objectives of
the plan.
(5)(A) For any stock in which incidental mortality and serious
injury from commercial fisheries exceeds the potential biological
removal level established under section 1386 of this title, the
plan shall include measures the Secretary expects will reduce,
within 6 months of the plan's implementation, such mortality and
serious injury to a level below the potential biological removal
level.
(B) For any stock in which human-caused mortality and serious
injury exceeds the potential biological removal level, other than a
stock to which subparagraph (A) applies, the plan shall include
measures the Secretary expects will reduce, to the maximum extent
practicable within 6 months of the plan's implementation, the
incidental mortality and serious injury by such commercial
fisheries from that stock. For purposes of this subparagraph, the
term "maximum extent practicable" means to the lowest level that is
feasible for such fisheries within the 6-month period.
(6)(A) At the earliest possible time (not later than 30 days)
after the Secretary issues a final stock assessment under section
1386(b) of this title for a strategic stock, the Secretary shall,
and for stocks that interact with a fishery listed under subsection
(c)(1)(A)(i) of this section for which the Secretary has made a
determination under paragraph (1), the Secretary may -
(i) establish a take reduction team for such stock and appoint
the members of such team in accordance with subparagraph (C); and
(ii) publish in the Federal Register a notice of the team's
establishment, the names of the team's appointed members, the
full geographic range of such stock, and a list of all commercial
fisheries that cause incidental mortality and serious injury of
marine mammals from such stock.
(B) The Secretary may request a take reduction team to address a
stock that extends over one or more regions or fisheries, or
multiple stocks within a region or fishery, if the Secretary
determines that doing so would facilitate the development and
implementation of plans required under this subsection.
(C) Members of take reduction teams shall have expertise
regarding the conservation or biology of the marine mammal species
which the take reduction plan will address, or the fishing
practices which result in the incidental mortality and serious
injury of such species. Members shall include representatives of
Federal agencies, each coastal State which has fisheries which
interact with the species or stock, appropriate Regional Fishery
Management Councils, interstate fisheries commissions, academic and
scientific organizations, environmental groups, all commercial and
recreational fisheries groups and gear types which incidentally
take the species or stock, Alaska Native organizations or Indian
tribal organizations, and others as the Secretary deems
appropriate. Take reduction teams shall, to the maximum extent
practicable, consist of an equitable balance among representatives
of resource user interests and nonuser interests.
(D) Take reduction teams shall not be subject to the Federal
Advisory Committee Act (5 App. U.S.C.). Meetings of take reduction
teams shall be open to the public, and prior notice of meetings
shall be made public in a timely fashion.
(E) Members of take reduction teams shall serve without
compensation, but may be reimbursed by the Secretary, upon request,
for reasonable travel costs and expenses incurred in performing
their duties as members of the team.
(7) Where the human-caused mortality and serious injury from a
strategic stock is estimated to be equal to or greater than the
potential biological removal level established under section 1386
of this title for such stock and such stock interacts with a
fishery listed under subsection (c)(1)(A)(i) or (ii) of this
section, the following procedures shall apply in the development of
the take reduction plan for the stock:
(A)(i) Not later than 6 months after the date of establishment
of a take reduction team for the stock, the team shall submit a
draft take reduction plan for such stock to the Secretary,
consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by
consensus. In the event consensus cannot be reached, the team
shall advise the Secretary in writing on the range of
possibilities considered by the team, and the views of both the
majority and minority.
(B)(i) The Secretary shall take the draft take reduction plan
into consideration and, not later than 60 days after the
submission of the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by the team,
any changes proposed by the Secretary with an explanation of the
reasons therefor, and proposed regulations to implement such
plan, for public review and comment during a period of not to
exceed 90 days.
(ii) In the event that the take reduction team does not submit
a draft plan to the Secretary within 6 months, the Secretary
shall, not later than 8 months after the establishment of the
team, publish in the Federal Register a proposed take reduction
plan and implementing regulations, for public review and comment
during a period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment
period required under subparagraph (B), the Secretary shall issue
a final take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after
publication of a final take reduction plan, utilize newspapers of
general circulation, fishery trade associations, electronic
media, and other means of advising commercial fishermen of the
requirements of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet every
6 months, or at such other intervals as the Secretary determines
are necessary, to monitor the implementation of the final take
reduction plan until such time that the Secretary determines that
the objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and
implementing regulations as necessary to meet the requirements of
this section, in accordance with the procedures in this section
for the issuance of such plans and regulations.
(8) Where the human-caused mortality and serious injury from a
strategic stock is estimated to be less than the potential
biological removal level established under section 1386 of this
title for such stock and such stock interacts with a fishery listed
under subsection (c)(1)(A)(i) or (ii) of this section, or for any
marine mammal stocks which interact with a commercial fishery
listed under subsection (c)(1)(A)(i) of this section for which the
Secretary has made a determination under paragraph (1), the
following procedures shall apply in the development of the take
reduction plan for such stock:
(A)(i) Not later than 11 months after the date of establishment
of a take reduction team for the stock, the team shall submit a
draft take reduction plan for the stock to the Secretary,
consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by
consensus. In the event consensus cannot be reached, the team
shall advise the Secretary in writing on the range of
possibilities considered by the team, and the views of both the
majority and minority.
(B)(i) The Secretary shall take the draft take reduction plan
into consideration and, not later than 60 days after the
submission of the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by the team,
any changes proposed by the Secretary with an explanation of the
reasons therefor, and proposed regulations to implement such
plan, for public review and comment during a period of not to
exceed 90 days.
(ii) In the event that the take reduction team does not submit
a draft plan to the Secretary within 11 months, the Secretary
shall, not later than 13 months after the establishment of the
team, publish in the Federal Register a proposed take reduction
plan and implementing regulations, for public review and comment
during a period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment
period required under subparagraph (B), the Secretary shall issue
a final take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after
publication of a final take reduction plan, utilize newspapers of
general circulation, fishery trade associations, electronic
media, and other means of advising commercial fishermen of the
requirements of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet on an
annual basis, or at such other intervals as the Secretary
determines are necessary, to monitor the implementation of the
final take reduction plan until such time that the Secretary
determines that the objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and
implementing regulations as necessary to meet the requirements of
this section, in accordance with the procedures in this section
for the issuance of such plans and regulations.
(9) In implementing a take reduction plan developed pursuant to
this subsection, the Secretary may, where necessary to implement a
take reduction plan to protect or restore a marine mammal stock or
species covered by such plan, promulgate regulations which include,
but are not limited to, measures to -
(A) establish fishery-specific limits on incidental mortality
and serious injury of marine mammals in commercial fisheries or
restrict commercial fisheries by time or area;
(B) require the use of alternative commercial fishing gear or
techniques and new technologies, encourage the development of
such gear or technology, or convene expert skippers' panels;
(C) educate commercial fishermen, through workshops and other
means, on the importance of reducing the incidental mortality and
serious injury of marine mammals in affected commercial
fisheries; and
(D) monitor, in accordance with subsection (d) of this section,
the effectiveness of measures taken to reduce the level of
incidental mortality and serious injury of marine mammals in the
course of commercial fishing operations.
(10)(A) Notwithstanding paragraph (6), in the case of any stock
to which paragraph (1) applies for which a final stock assessment
has not been published under section 1386(b)(3) of this title by
April 1, 1995, due to a proceeding under section 1386(b)(2) of this
title, or any Federal court review of such proceeding, the
Secretary shall establish a take reduction team under paragraph (6)
for such stock as if a final stock assessment had been published.
(B) The draft stock assessment published for such stock under
section 1386(b)(1) of this title shall be deemed the final stock
assessment for purposes of preparing and implementing a take
reduction plan for such stock under this section.
(C) Upon publication of a final stock assessment for such stock
under section 1386(b)(3) of this title the Secretary shall
immediately reconvene the take reduction team for such stock for
the purpose of amending the take reduction plan, and any
regulations issued to implement such plan, if necessary, to reflect
the final stock assessment or court action. Such amendments shall
be made in accordance with paragraph (7)(F) or (8)(F), as
appropriate.
(D) A draft stock assessment may only be used as the basis for a
take reduction plan under this paragraph for a period of not to
exceed two years, or until a final stock assessment is published,
whichever is earlier. If, at the end of the two-year period, a
final stock assessment has not been published, the Secretary shall
categorize such stock under section 1386(a)(5)(A) of this title and
shall revoke any regulations to implement a take reduction plan for
such stock.
(E) Subparagraph (D) shall not apply for any period beyond two
years during which a final stock assessment for such stock has not
been published due to review of a proceeding on such stock
assessment by a Federal court. Immediately upon final action by
such court, the Secretary shall proceed under subparagraph (C).
(11) Take reduction plans developed under this section for a
species or stock listed as a threatened species or endangered
species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.) shall be consistent with any recovery plan developed for such
species or stock under section 4 of such Act [16 U.S.C. 1533].
(g) Emergency regulations
(1) If the Secretary finds that the incidental mortality and
serious injury of marine mammals from commercial fisheries is
having, or is likely to have, an immediate and significant adverse
impact on a stock or species, the Secretary shall take actions as
follows:
(A) In the case of a stock or species for which a take
reduction plan is in effect, the Secretary shall -
(i) prescribe emergency regulations that, consistent with
such plan to the maximum extent practicable, reduce incidental
mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, any
amendments to such plan that are recommended by the take
reduction team to address such adverse impact.
(B) In the case of a stock or species for which a take
reduction plan is being developed, the Secretary shall -
(i) prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, such plan,
which shall provide methods to address such adverse impact if
still necessary.
(C) In the case of a stock or species for which a take
reduction plan does not exist and is not being developed, or in
the case of a commercial fishery listed under subsection
(c)(1)(A)(iii) of this section which the Secretary believes may
be contributing to such adverse impact, the Secretary shall -
(i) prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery, to the extent
necessary to mitigate such adverse impact;
(ii) immediately review the stock assessment for such stock
or species and the classification of such commercial fishery
under this section to determine if a take reduction team should
be established; and
(iii) may, where necessary to address such adverse impact on
a species or stock listed as a threatened species or endangered
species under the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), place observers on vessels in a commercial
fishery listed under subsection (c)(1)(A)(iii) of this section,
if the Secretary has reason to believe such vessels may be
causing the incidental mortality and serious injury to marine
mammals from such stock.
(2) Prior to taking action under paragraph (1)(A), (B), or (C),
the Secretary shall consult with the Marine Mammal Commission, all
appropriate Regional Fishery Management Councils, State fishery
managers, and the appropriate take reduction team (if established).
(3) Emergency regulations prescribed under this subsection -
(A) shall be published in the Federal Register, together with
an explanation thereof;
(B) shall remain in effect for not more than 180 days or until
the end of the applicable commercial fishing season, whichever is
earlier; and
(C) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination,
if the Secretary determines that the reasons for emergency
regulations no longer exist.
(4) If the Secretary finds that incidental mortality and serious
injury of marine mammals in a commercial fishery is continuing to
have an immediate and significant adverse impact on a stock or
species, the Secretary may extend the emergency regulations for an
additional period of not more than 90 days or until reasons for the
emergency no longer exist, whichever is earlier.
(h) Penalties
Except as provided in subsection (c) of this section, any person
who violates this section shall be subject to the provisions of
sections 1375 and 1377 of this title, and may be subject to section
1376 of this title as the Secretary shall establish by regulations.
(i) Assistance
The Secretary shall provide assistance to Regional Fishery
Management Councils, States, interstate fishery commissions, and
Indian tribal organizations in meeting the goal of reducing
incidental mortality and serious injury to insignificant levels
approaching a zero mortality and serious injury rate.
(j) Contributions
For purposes of carrying out this section, the Secretary may
accept, solicit, receive, hold, administer, and use gifts, devises,
and bequests.
(k) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior
prior to taking actions or making determinations under this section
that affect or relate to species or population stocks of marine
mammals for which the Secretary of the Interior is responsible
under this subchapter.
(l) Definitions
As used in this section and section 1371(a)(5)(E) of this title,
each of the terms "fishery" and "vessel of the United States" has
the same meaning it does in section 1802 of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 118, as added Pub. L. 103-238, Sec.
11, Apr. 30, 1994, 108 Stat. 546; amended Pub. L. 104-208, div. A,
title I, Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110
Stat. 3009, 3009-41.)
-REFTEXT-
REFERENCES IN TEXT
The Endangered Species Act of 1973, referred to in subsecs.
(a)(2), (d)(4)(A), (f)(11), and (g)(1)(C)(iii), is Pub. L. 93-205,
Dec. 28, 1973, 87 Stat. 884, as amended, which is classified
principally to chapter 35 (Sec. 1531 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title
note set out under section 1531 of this title and Tables.
Act of November 7, 1986, referred to in subsec. (a)(4), is Pub.
L. 99-625, Nov. 7, 1986, 100 Stat. 3500, which amended section 718b
of this title and provisions set out as a table of National
Wildlife Refuges under section 668dd of this title and enacted
provisions set out as a note under section 1536 of this title. For
complete classification of this Act to the Code, see Tables.
The Federal Advisory Committee Act, referred to in subsec.
(f)(6)(D), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as
amended, which is set out in the Appendix to Title 5, Government
Organization and Employees.
-MISC1-
AMENDMENTS
1996 - Subsecs. (a)(1), (c)(2)(B)(ii), (l). Pub. L. 104-208 made
technical amendment to references in original act which appear in
text as references to sections 1802 and 1824(b) of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L.
104-208 provided that the amendment made by that section is
effective 15 days after Oct. 11, 1996.
-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 referringto Committee on Resources of (continued)