CHAPTER 31 —MARINE MAMMAL PROTECTION
SUBCHAPTER I—GENERALLY
SUBCHAPTER II—CONSERVATION AND PROTECTION OF MARINE MAMMALS
SUBCHAPTER III—MARINE MAMMAL COMMISSION
SUBCHAPTER IV—INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
SUBCHAPTER V—MARINE MAMMAL HEALTH AND STRANDING RESPONSE
SUBCHAPTER VI—POLAR BEARS
SUBCHAPTER I—GENERALLY
§1361. Congressional findings and declaration of policy
The Congress finds that—
(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities;
(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man's actions;
(3) there is inadequate knowledge of the ecology and population dynamics of such marine mammals and of the factors which bear upon their ability to reproduce themselves successfully;
(4) negotiations should be undertaken immediately to encourage the development of international arrangements for research on, and conservation of, all marine mammals;
(5) marine mammals and marine mammal products either—
(A) move in interstate commerce, or
(B) affect the balance of marine ecosystems in a manner which is important to other animals and animal products which move in interstate commerce,
and that the protection and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate commerce; and
(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.
(
Editorial Notes
Amendments
1994—Par. (2).
Par. (5).
1981—Par. (6).
Statutory Notes and Related Subsidiaries
Effective Date
Short Title of 2018 Amendment
Short Title of 2007 Amendment
Short Title of 2000 Amendment
Short Title of 1997 Amendment
Short Title of 1994 Amendment
Short Title of 1992 Amendments
Short Title of 1988 Amendment
Short Title
Regulations
Purposes and Findings
"(a)
"(1) to give effect to the Declaration of Panama, signed October 4, 1995, by the Governments of Belize, Colombia, Costa Rica, Ecuador, France, Honduras, Mexico, Panama, Spain, the United States of America, Vanuatu, and Venezuela, including the establishment of the International Dolphin Conservation Program, relating to the protection of dolphins and other species, and the conservation and management of tuna in the eastern tropical Pacific Ocean;
"(2) to recognize that nations fishing for tuna in the eastern tropical Pacific Ocean have achieved significant reductions in dolphin mortality associated with that fishery; and
"(3) to eliminate the ban on imports of tuna from those nations that are in compliance with the International Dolphin Conservation Program.
"(b)
"(1) the nations that fish for tuna in the eastern tropical Pacific Ocean have achieved significant reductions in dolphin mortality associated with the purse seine fishery from hundreds of thousands annually to fewer than 5,000 annually;
"(2) the provisions of the Marine Mammal Protection Act of 1972 [
"(3) tuna canners and processors of the United States have led the canning and processing industry in promoting a dolphin-safe tuna market; and
"(4) 12 signatory nations to the Declaration of Panama, including the United States, agreed under that Declaration to require that the total annual dolphin mortality in the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean not exceed 5,000 animals, with the objective of progressively reducing dolphin mortality to a level approaching zero through the setting of annual limits and with the goal of eliminating dolphin mortality."
Relationship of Marine Mammal Protection Act Amendments of 1994 to Other Law
Indian Treaty Rights; Alaska Native Subsistence
"(1) alters or is intended to alter any treaty between the United States and one or more Indian tribes; or
"(2) affects or otherwise modifies the provisions of section 101(b) of the Marine Mammal Protection Act of 1972 (
Study on Effects of Dolphin Feeding
Study on Mortality of Atlantic Dolphin
International Discussion To Advance Understanding of Cetacean Life
"(1) to join in international discussions with other such countries in order to advance general understanding of cetacean life and thereby facilitate an effective use of the living marine resources of the world which does not jeopardize the natural balance of the aquatic environment;
"(2) to participate in an exchange of information with the National Marine Fisheries Service of the United States Department of Commerce, including cooperation in studies of—
"(A) the impact of cetaceans on ecologically related human foodstuffs, and
"(B) alternative methods of dealing with cetacean problems as they occur;
"(3) to cooperate in establishing an international cetacean commission to advance understanding of cetacean life and to insure the effective conservation and protection of cetaceans on a global scale; and
"(4) to adopt comprehensive marine mammal protection legislation."
§1362. Definitions
For the purposes of this chapter—
(1) The term "depletion" or "depleted" means any case in which—
(A) the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under subchapter III of this chapter, determines that a species or population stock is below its optimum sustainable population;
(B) a State, to which authority for the conservation and management of a species or population stock is transferred under
(C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973 [
(2) The terms "conservation" and "management" mean the collection and application of biological information for the purposes of increasing and maintaining the number of animals within species and populations of marine mammals at their optimum sustainable population. Such terms include the entire scope of activities that constitute a modern scientific resource program, including, but not limited to, research, census, law enforcement, and habitat acquisition and improvement. Also included within these terms, when and where appropriate, is the periodic or total protection of species or populations as well as regulated taking.
(3) The term "district court of the United States" includes the District Court of Guam, District Court of the Virgin Islands, District Court of Puerto Rico, District Court of the Canal Zone, and, in the case of American Samoa and the Trust Territory of the Pacific Islands, the District Court of the United States for the District of Hawaii.
(4) The term "humane" in the context of the taking of a marine mammal means that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved.
(5) The term "intermediary nation" means a nation that exports yellowfin tuna or yellowfin tuna products to the United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to
(6) The term "marine mammal" means any mammal which (A) is morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia and Cetacea), or (B) primarily inhabits the marine environment (such as the polar bear); and, for the purposes of this chapter, includes any part of any such marine mammal, including its raw, dressed, or dyed fur or skin.
(7) The term "marine mammal product" means any item of merchandise which consists, or is composed in whole or in part, of any marine mammal.
(8) The term "moratorium" means a complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products, except as provided in this chapter.
(9) The term "optimum sustainable population" means, with respect to any population stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.
(10) The term "person" includes (A) any private person or entity, and (B) any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.
(11) The term "population stock" or "stock" means a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature.
(12)(A) Except as provided in subparagraph (B), the term "Secretary" means—
(i) the Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, as to all responsibility, authority, funding, and duties under this chapter with respect to members of the order Cetacea and members, other than walruses, of the order Pinnipedia, and
(ii) the Secretary of the Interior as to all responsibility, authority, funding, and duties under this chapter with respect to all other marine mammals covered by this chapter.
(B) in 1
(13) The term "take" means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.
(14) The term "United States" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, American Samoa, Guam, and Northern Mariana Islands.
(15) The term "waters under the jurisdiction of the United States" means—
(A) the territorial sea of the United States;
(B) the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaward boundary of each coastal State, and the other boundary is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured; and
(C) the areas referred to as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990; in particular, those areas east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles of the baselines from which the breadth of the territorial sea of Russia is measured but beyond 200 nautical miles of the baselines from which the breadth of the territorial sea of the United States is measured, except that this subparagraph shall not apply before the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States.
(16) The term "fishery" means—
(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and
(B) any fishing for such stocks.
(17) The term "competent regional organization"—
(A) for the tuna fishery in the eastern tropical Pacific Ocean, means the Inter-American Tropical Tuna Commission; and
(B) in any other case, means an organization consisting of those nations participating in a tuna fishery, the purpose of which is the conservation and management of that fishery and the management of issues relating to that fishery.
(18)(A) The term "harassment" means any act of pursuit, torment, or annoyance which—
(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or
(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
(B) In the case of a military readiness activity (as defined in section 315(f) of
(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or
(ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.
(C) The term "Level A harassment" means harassment described in subparagraph (A)(i) or, in the case of a military readiness activity or scientific research activity described in subparagraph (B), harassment described in subparagraph (B)(i).
(D) The term "Level B harassment" means harassment described in subparagraph (A)(ii) or, in the case of a military readiness activity or scientific research activity described in subparagraph (B), harassment described in subparagraph (B)(ii).
(19) The term "strategic stock" means a marine mammal stock—
(A) for which the level of direct human-caused mortality exceeds the potential biological removal level;
(B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 [
(C) which is listed as a threatened species or endangered species under the Endangered Species Act of 1973 (
(20) The term "potential biological removal level" means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors:
(A) The minimum population estimate of the stock.
(B) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size.
(C) A recovery factor of between 0.1 and 1.0.
(21) The term "Regional Fishery Management Council" means a Regional Fishery Management Council established under
(22) The term "bona fide research" means scientific research on marine mammals, the results of which—
(A) likely would be accepted for publication in a referred scientific journal;
(B) are likely to contribute to the basic knowledge of marine mammal biology or ecology; or
(C) are likely to identify, evaluate, or resolve conservation problems.
(23) The term "Alaska Native organization" means a group designated by law or formally chartered which represents or consists of Indians, Aleuts, or Eskimos residing in Alaska.
(24) The term "take reduction plan" means a plan developed under
(25) The term "take reduction team" means a team established under
(26) The term "net productivity rate" means the annual per capita rate of increase in a stock resulting from additions due to reproduction, less losses due to mortality.
(27) The term "minimum population estimate" means an estimate of the number of animals in a stock that—
(A) is based on the best available scientific information on abundance, incorporating the precision and variability associated with such information; and
(B) provides reasonable assurance that the stock size is equal to or greater than the estimate.
(28) The term "International Dolphin Conservation Program" means the international program established by the agreement signed in LaJolla, California, in June, 1992, as formalized, modified, and enhanced in accordance with the Declaration of Panama.
(29) The term "Declaration of Panama" means the declaration signed in Panama City, Republic of Panama, on October 4, 1995.
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in pars. (1)(C) and (19)(B), (C), is
Amendments
2003—Par. (18)(B) to (D).
"(B) The term 'Level A harassment' means harassment described in subparagraph (A)(i).
"(C) The term 'Level B harassment' means harassment described in subparagraph (A)(ii)."
2000—Par. (12)(B).
1997—Pars. (28), (29).
1996—Par. (15).
"(A) the territorial sea of the United States, and
"(B) the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaward boundary of each coastal State, and the outer boundary is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured."
Par. (21).
1994—Par. (12)(B).
Pars. (15) to (17).
Pars. (18) to (27).
1992—Pars. (5) to (11).
Par. (12).
Pars. (13), (14).
Par. (15).
Pars. (16), (17).
1981—Par. (1).
Par. (2).
Par. (8).
Pars. (9) to (12).
Par. (13).
Pars. (14), (15).
1976—Par. (15)(B).
1973—Par. (1)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
"(a)
"(1) certification by the Secretary of Commerce that—
"(A) sufficient funding is available to complete the first year of the study required under section 304(a) of the Marine Mammal Protection Act of 1972, as so added; and
"(B) the study has commenced; and
"(2) certification by the Secretary of State to Congress that a binding resolution of the Inter-American Tropical Tuna Commission or other legally binding instrument establishing the International Dolphin Conservation Program has been adopted and is in force.
"(b)
"(1) subsection (f)(2) of the Dolphin Protection Consumer Information Act (
"(2) section 303(a) of the Marine Mammal Protection Act of 1972 (
at any time after the date of enactment of this Act [Aug. 15, 1997]."
[The Secretary of Commerce made the certification referred to in section 8(a)(1) of
Effective Date of 1996 Amendment
Effective Date of 1994 Amendment
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1976 Amendment
Effective Date of 1973 Amendment
Amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Construction of Amendment by Pub. L. 102–587
"(A) are deemed to have been made by that section to section 3(12) of the Marine Mammal Protection Act of 1972 (
"(B) shall not be considered to have been made by that section to section 3(11) of that Act (
Termination of United States District Court for the District of the Canal Zone
For termination of the United States District Court for the District of the Canal Zone at end of the "transition period", being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under
1 So in original. Probably should be capitalized.
SUBCHAPTER II—CONSERVATION AND PROTECTION OF MARINE MAMMALS
§1371. Moratorium on taking and importing marine mammals and marine mammal products
(a) Imposition; exceptions
There shall be a moratorium on the taking and importation of marine mammals and marine mammal products, commencing on the effective date of this chapter, during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following cases:
(1) Consistent with the provisions of
(2) Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may be issued therefor under
(A) shall insist on reasonable proof from the government of any nation from which fish or fish products will be exported to the United States of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States;
(B) in the case of yellowfin tuna harvested with purse seine nets in the eastern tropical Pacific Ocean, and products therefrom, to be exported to the United States, shall require that the government of the exporting nation provide documentary evidence that—
(i)(I) the tuna or products therefrom were not banned from importation under this paragraph before the effective date of section 4 of the International Dolphin Conservation Program Act; or
(II) the tuna or products therefrom were harvested after the effective date of section 4 of the International Dolphin Conservation Program Act by vessels of a nation which participates in the International Dolphin Conservation Program, and such harvesting nation is either a member of the Inter-American Tropical Tuna Commission or has initiated (and within 6 months thereafter completed) all steps required of applicant nations, in accordance with article V, paragraph 3 of the Convention establishing the Inter-American Tropical Tuna Commission, to become a member of that organization;
(ii) such nation is meeting the obligations of the International Dolphin Conservation Program and the obligations of membership in the Inter-American Tropical Tuna Commission, including all financial obligations; and
(iii) the total dolphin mortality limits, and per-stock per-year dolphin mortality limits permitted for that nation's vessels under the International Dolphin Conservation Program do not exceed the limits determined for 1997, or for any year thereafter, consistent with the objective of progressively reducing dolphin mortality to a level approaching zero through the setting of annual limits and the goal of eliminating dolphin mortality, and requirements of the International Dolphin Conservation Program;
(C) shall not accept such documentary evidence if—
(i) the government of the harvesting nation does not provide directly or authorize the Inter-American Tropical Tuna Commission to release complete and accurate information to the Secretary in a timely manner—
(I) to allow determination of compliance with the International Dolphin Conservation Program; and
(II) for the purposes of tracking and verifying compliance with the minimum requirements established by the Secretary in regulations promulgated under
(ii) after taking into consideration such information, findings of the Inter-American Tropical Tuna Commission, and any other relevant information, including information that a nation is consistently failing to take enforcement actions on violations which diminish the effectiveness of the International Dolphin Conservation Program, the Secretary, in consultation with the Secretary of State, finds that the harvesting nation is not in compliance with the International Dolphin Conservation Program.
(D) shall require the government of any intermediary nation to certify and provide reasonable proof to the Secretary that it has not imported, within the preceding six months, any yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation to the United States under subparagraph (B);
(E) shall, six months after importation of yellowfin tuna or tuna products has been banned under this section, certify such fact to the President, which certification shall be deemed to be a certification for the purposes of
(F)(i) except as provided in clause (ii), in the case of fish or products containing fish harvested by a nation whose fishing vessels engage in high seas driftnet fishing, shall require that the government of the exporting nation provide documentary evidence that the fish or fish product was not harvested with a large-scale driftnet in the South Pacific Ocean after July 1, 1991, or in any other water of the high seas after January 1, 1993, and
(ii) in the case of tuna or a product containing tuna harvested by a nation whose fishing vessels engage in high seas driftnet fishing, shall require that the government of the exporting nation provide documentary evidence that the tuna or tuna product was not harvested with a large-scale driftnet anywhere on the high seas after July 1, 1991.
For purposes of subparagraph (F), the term "driftnet" has the meaning given such term in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (
(3)(A) The Secretary, on the basis of the best scientific evidence available and in consultation with the Marine Mammal Commission, is authorized and directed, from time to time, having due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals, to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking, or importing of any marine mammal, or any marine mammal product, and to adopt suitable regulations, issue permits, and make determinations in accordance with
(B) Except for scientific research purposes, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock as provided for in paragraph (1) of this subsection, or as provided for under paragraph (5) of this subsection, during the moratorium no permit may be issued for the taking of any marine mammal which has been designated by the Secretary as depleted, and no importation may be made of any such mammal.
(4)(A) Except as provided in subparagraphs (B) and (C), the provisions of this chapter shall not apply to the use of measures—
(i) by the owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal from damaging the gear or catch;
(ii) by the owner of other private property, or an agent, bailee, or employee of such owner, to deter a marine mammal from damaging private property;
(iii) by any person, to deter a marine mammal from endangering personal safety; or
(iv) by a government employee, to deter a marine mammal from damaging public property,
so long as such measures do not result in the death or serious injury of a marine mammal.
(B) The Secretary shall, through consultation with appropriate experts, and after notice and opportunity for public comment, publish in the Federal Register a list of guidelines for use in safely deterring marine mammals. In the case of marine mammals listed as endangered species or threatened species under the Endangered Species Act of 1973 [
(C) If the Secretary determines, using the best scientific information available, that certain forms of deterrence have a significant adverse effect on marine mammals, the Secretary may prohibit such deterrent methods, after notice and opportunity for public comment, through regulation under this chapter.
(D) The authority to deter marine mammals pursuant to subparagraph (A) applies to all marine mammals, including all stocks designated as depleted under this chapter.
(5)(A)(i) Except as provided by clause (ii), upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region, the Secretary shall allow, during periods of not more than five consecutive years each, the incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock if the Secretary, after notice (in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the coastal areas that may be affected by such activity) and opportunity for public comment—
(I) finds that the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) or
(II) prescribes regulations setting forth—
(aa) permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses; and
(bb) requirements pertaining to the monitoring and reporting of such taking.
(ii) In the case of a military readiness activity (as defined in section 315(f) of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 (
(I) in the matter preceding clause (I), by substituting "seven consecutive years" for "five consecutive years"; and
(II) in clause (I), by substituting "seven-year" for "five-year".
(iii) For a military readiness activity (as defined in section 315(f) of
(iv) Notwithstanding clause (i), for any authorization affecting a military readiness activity (as defined in section 315(f) of
(B) The Secretary shall withdraw, or suspend for a time certain (either on an individual or class basis, as appropriate) the permission to take marine mammals under subparagraph (A) pursuant to a specified activity within a specified geographical region if the Secretary finds, after notice and opportunity for public comment (as required under subparagraph (A) unless subparagraph (C)(i) applies), that—
(i) the regulations prescribed under subparagraph (A) regarding methods of taking, monitoring, or reporting are not being substantially complied with by a person engaging in such activity; or
(ii) the taking allowed under subparagraph (A) pursuant to one or more activities within one or more regions is having, or may have, more than a negligible impact on the species or stock concerned.
(C)(i) The requirement for notice and opportunity for public comment in subparagraph (B) shall not apply in the case of a suspension of permission to take if the Secretary determines that an emergency exists which poses a significant risk to the well-being of the species or stock concerned.
(ii)
(D)(i) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region if the Secretary finds that such harassment during each period concerned—
(I) will have a negligible impact on such species or stock, and
(II) will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b), or
(ii) The authorization for such activity shall prescribe, where applicable—
(I) permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) or
(II) the measures that the Secretary determines are necessary to ensure no unmitigable adverse impact on the availability of the species or stock for taking for subsistence uses pursuant to subsection (b) or
(III) requirements pertaining to the monitoring and reporting of such taking by harassment, including requirements for the independent peer review of proposed monitoring plans or other research proposals where the proposed activity may affect the availability of a species or stock for taking for subsistence uses pursuant to subsection (b) or
(iii) The Secretary shall publish a proposed authorization not later than 45 days after receiving an application under this subparagraph and request public comment through notice in the Federal Register, newspapers of general circulation, and appropriate electronic media and to all locally affected communities for a period of 30 days after publication. Not later than 45 days after the close of the public comment period, if the Secretary makes the findings set forth in clause (i), the Secretary shall issue an authorization with appropriate conditions to meet the requirements of clause (ii).
(iv) The Secretary shall modify, suspend, or revoke an authorization if the Secretary finds that the provisions of clauses (i) or (ii) are not being met.
(v) A person conducting an activity for which an authorization has been granted under this subparagraph shall not be subject to the penalties of this chapter for taking by harassment that occurs in compliance with such authorization.
(vi) For a military readiness activity (as defined in section 315(f) of
(vii) Notwithstanding clause (iii), for any authorization affecting a military readiness activity (as defined in section 315(f) of
(E)(i) During any period of up to 3 consecutive years, the Secretary shall allow the incidental, but not the intentional, taking by persons using vessels of the United States or vessels which have valid fishing permits issued by the Secretary in accordance with
(I) the incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;
(II) a recovery plan has been developed or is being developed for such species or stock pursuant to the Endangered Species Act of 1973; and
(III) where required under
(ii) Upon a determination by the Secretary that the requirements of clause (i) have been met, the Secretary shall publish in the Federal Register a list of those fisheries for which such determination was made, and, for vessels required to register under
(iii) If, during the course of the commercial fishing season, the Secretary determines that the level of incidental mortality or serious injury from commercial fisheries for which a determination was made under clause (i) has resulted or is likely to result in an impact that is more than negligible on the endangered or threatened species or stock, the Secretary shall use the emergency authority granted under
(iv) The Secretary may suspend for a time certain or revoke a permit granted under this subparagraph only if the Secretary determines that the conditions or limitations set forth in such permit are not being complied with. The Secretary may amend or modify, after notice and opportunity for public comment, the list of fisheries published under clause (ii) whenever the Secretary determines there has been a significant change in the information or conditions used to determine such list.
(v)
(vi) This subparagraph 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 (
(F) Notwithstanding the provisions of this subsection, any authorization affecting a military readiness activity (as defined in section 315(f) of
(i) In subparagraph (A), "within a specified geographical region" and "within that region of small numbers".
(ii) In subparagraph (B), "within a specified geographical region" and "within one or more regions".
(iii) In subparagraph (D), "within a specific geographic region", "of small numbers", and "within that region".
(6)(A) A marine mammal product may be imported into the United States if the product—
(i) was legally possessed and exported by any citizen of the United States in conjunction with travel outside the United States, provided that the product is imported into the United States by the same person upon the termination of travel;
(ii) was acquired outside of the United States as part of a cultural exchange by an Indian, Aleut, or Eskimo residing in Alaska; or
(iii) is owned by a Native inhabitant of Russia, Canada, or Greenland and is imported for noncommercial purposes in conjunction with travel within the United States or as part of a cultural exchange with an Indian, Aleut, or Eskimo residing in Alaska.
(B) For the purposes of this paragraph, the term—
(i) "Native inhabitant of Russia, Canada, or Greenland" means a person residing in Russia, Canada, or Greenland who is related by blood, is a member of the same clan or ethnological grouping, or shares a common heritage with an Indian, Aleut, or Eskimo residing in Alaska; and
(ii) "cultural exchange" means the sharing or exchange of ideas, information, gifts, clothing, or handicrafts between an Indian, Aleut, or Eskimo residing in Alaska and a Native inhabitant of Russia, Canada, or Greenland, including rendering of raw marine mammal parts as part of such exchange into clothing or handicrafts through carving, painting, sewing, or decorating.
(b) Exemptions for Alaskan natives
Except as provided in
(1) is for subsistence purposes; or
(2) is done for purposes of creating and selling authentic native articles of handicrafts and clothing: Provided, That only authentic native articles of handicrafts and clothing may be sold in interstate commerce: And provided further, That any edible portion of marine mammals may be sold in native villages and towns in Alaska or for native consumption. For the purposes of this subsection, the term "authentic native articles of handicrafts and clothing" means items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices. Traditional native handicrafts include, but are not limited to weaving, carving, stitching, sewing, lacing, beading, drawing and painting; and
(3) in each case, is not accomplished in a wasteful manner.
Notwithstanding the preceding provisions of this subsection, when, under this chapter, the Secretary determines any species or stock of marine mammal subject to taking by Indians, Aleuts, or Eskimos to be depleted, he may prescribe regulations upon the taking of such marine mammals by any Indian, Aleut, or Eskimo described in this subsection. Such regulations may be established with reference to species or stocks, geographical description of the area included, the season for taking, or any other factors related to the reason for establishing such regulations and consistent with the purposes of this chapter. Such regulations shall be prescribed after notice and hearing required by
(c) Taking in defense of self or others
It shall not be a violation of this chapter to take a marine mammal if such taking is imminently necessary in self-defense or to save the life of a person in immediate danger, and such taking is reported to the Secretary within 48 hours. The Secretary may seize and dispose of any carcass.
(d) Good Samaritan exemption
It shall not be a violation of this chapter to take a marine mammal if—
(1) such taking is imminently necessary to avoid serious injury, additional injury, or death to a marine mammal entangled in fishing gear or debris;
(2) reasonable care is taken to ensure the safe release of the marine mammal, taking into consideration the equipment, expertise, and conditions at hand;
(3) reasonable care is exercised to prevent any further injury to the marine mammal; and
(4) such taking is reported to the Secretary within 48 hours.
(e) Chapter not to apply to incidental takings by United States citizens employed on foreign vessels outside United States EEZ
The provisions of this chapter shall not apply to a citizen of the United States who incidentally takes any marine mammal during fishing operations outside the United States exclusive economic zone (as defined in
(f) Exemption of actions necessary for national defense
(1) The Secretary of Defense, after conferring with the Secretary of Commerce, the Secretary of the Interior, or both, as appropriate, may exempt any action or category of actions undertaken by the Department of Defense or its components from compliance with any requirement of this chapter, if the Secretary determines that it is necessary for national defense.
(2) An exemption granted under this subsection—
(A) subject to subparagraph (B), shall be effective for a period specified by the Secretary of Defense; and
(B) shall not be effective for more than 2 years.
(3)(A) The Secretary of Defense may issue additional exemptions under this subsection for the same action or category of actions, after—
(i) conferring with the Secretary of Commerce, the Secretary of the Interior, or both as appropriate; and
(ii) making a new determination that the additional exemption is necessary for national defense.
(B) Each additional exemption under this paragraph shall be effective for a period specified by the Secretary of Defense, of not more than 2 years.
(4) Not later than 30 days after issuing an exemption under paragraph (1) or an additional exemption under paragraph (3), the Secretary of Defense shall submit to the Committee on Armed Services of the House of Representatives and the Committee on Armed Services of the Senate notice describing the exemption and the reasons therefor. The notice may be provided in classified form if the Secretary of Defense determines that use of the classified form is necessary for reasons of national security.
(
Editorial Notes
References in Text
The effective date of this chapter, referred to in subsec. (a), means the effective date of
For effective date of section 4 of the International Dolphin Conservation Program Act [
The Endangered Species Act of 1973, referred to in subsec. (a)(4)(B), (5)(E)(i), is
The Whaling Convention Act of 1949, referred to in subsec. (a)(5)(A)(i)(I), is act Aug. 9, 1950, ch. 653,
Act of November 7, 1986, referred to in subsec. (a)(5)(E)(vi), is
Amendments
2018—Subsec. (a)(5)(A)(i).
Subsec. (a)(5)(A)(ii) to (iv).
2003—Subsec. (a)(5)(A).
Subsec. (a)(5)(D)(vi), (vii).
Subsec. (a)(5)(F).
Subsec. (f).
1997—Subsec. (a)(2).
Subsec. (a)(2)(B).
Subsec. (a)(2)(C) to (F).
Subsec. (d).
Subsec. (e).
1996—Subsec. (a)(5)(E)(i).
1994—Subsec. (a)(1).
"(A) the taking proposed in the application for any such permit, or
"(B) the importation proposed to be made,
is first reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under subchapter III of this chapter. The Commission and Committee shall recommend any proposed taking or importation which is consistent with the purposes and policies of
Subsec. (a)(2).
Subsec. (a)(3)(B).
Subsec. (a)(4).
"(4)(A) During any period of five consecutive years, the Secretary shall allow the incidental, but not the intentional, taking, by citizens of the United States while engaging in commercial fishing operations, of small numbers of marine mammals of a species or population stock that is not depleted if the Secretary, after notice and opportunity for public comment—
"(i) finds that the total of such taking during such five-year period will have a negligible impact on such species or stock; and
"(ii) provides guidelines pertaining to the establishment of a cooperative system among the fishermen involved for the monitoring of such taking.
"(B) The Secretary shall withdraw, or suspend for a time certain, the permission to take marine mammals under subparagraph (A) if the Secretary finds, after notice and opportunity for public comment, that—
"(i) the taking allowed under subparagraph (A) is having more than a negligible impact on the species or stock concerned; or
"(ii) the policies, purposes and goals of this chapter would be better served through the application of this title without regard to this subsection.
Subsec. (a)(5)(D), (E).
Subsec. (a)(6).
Subsec. (b).
Subsec. (c).
1992—Subsec. (a)(2).
Subsec. (a)(2)(C).
Subsec. (a)(2)(E)(i).
1990—Subsec. (a)(2).
1988—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3)(B).
1986—Subsec. (a)(5)(A).
Subsec. (a)(5)(A)(i).
Subsec. (a)(5)(A)(ii)(I).
1984—Subsec. (a)(2).
1981—Subsec. (a)(2).
Subsec. (a)(3)(B).
Subsec. (a)(4), (5).
Subsec. (b).
1973—Subsec. (a)(3)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
Effective Date of 1996 Amendment
Effective Date of 1973 Amendment
Amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See
1 So in original. Probably should be a reference to cl. (ii)(I).
§1372. Prohibitions
(a) Taking
Except as provided in
(1) for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas;
(2) except as expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before the effective date of this subchapter or by any statute implementing any such treaty, convention, or agreement—
(A) for any person or vessel or other conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States; or
(B) for any person to use any port, harbor, or other place under the jurisdiction of the United States to take or import marine mammals or marine mammal products; and
(3) for any person, with respect to any marine mammal taken in violation of this subchapter, to possess that mammal or any product from that mammal;
(4) for any person to transport, purchase, sell, export, or offer to purchase, sell, or export any marine mammal or marine mammal product—
(A) that is taken in violation of this chapter; or
(B) for any purpose other than public display, scientific research, or enhancing the survival of a species or stock as provided for under sub
(5) for any person to use, in a commercial fishery, any means or methods of fishing in contravention of any regulations or limitations, issued by the Secretary for that fishery to achieve the purposes of this chapter.
(b) Importation of pregnant or nursing mammals; depleted species or stock; inhumane taking
Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock, issued under
(1) pregnant at the time of taking;
(2) nursing at the time of taking, or less than eight months old, whichever occurs later;
(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock; or
(4) taken in a manner deemed inhumane by the Secretary.
Notwithstanding the provisions of paragraphs (1) and (2), the Secretary may issue a permit for the importation of a marine mammal, if the Secretary determines that such importation is necessary for the protection or welfare of the animal.
(c) Importation of illegally taken mammals
It is unlawful to import into the United States any of the following:
(1) Any marine mammal which was—
(A) taken in violation of this subchapter; or
(B) taken in another country in violation of the law of that country.
(2) Any marine mammal product if—
(A) the importation into the United States of the marine mammal from which such product is made is unlawful under paragraph (1) of this subsection; or
(B) the sale in commerce of such product in the country of origin of the product is illegal;
(3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.
(d) Nonapplicability of prohibitions
Subsections (b) and (c) of this section shall not apply—
(1) in the case of marine mammals or marine mammal products, as the case may be, to which subsection (b)(3) of this section applies, to such items imported into the United States before the date on which the Secretary publishes notice in the Federal Register of his proposed rulemaking with respect to the designation of the species or stock concerned as depleted; or
(2) in the case of marine mammals or marine mammal products to which subsection (c)(1)(B) or (c)(2)(B) of this section applies, to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful.
(e) Retroactive effect
This chapter shall not apply with respect to any marine mammal taken before the effective date of this chapter, or to any marine mammal product consisting of, or composed in whole or in part of, any marine mammal taken before such date.
(f) Commercial taking of whales
It is unlawful for any person or vessel or other conveyance to take any species of whale incident to commercial whaling in waters subject to the jurisdiction of the United States.
(
Editorial Notes
References in Text
The effective date of this subchapter, referred to in subsec. (a)(2), means the effective date of title I of
The effective date of this chapter referred to in subsec. (e), means the effective date of
Amendments
1994—Subsec. (a).
Subsec. (a)(2)(B).
Subsec. (a)(4).
1992—Subsec. (a).
1988—Subsec. (a).
Subsec. (b).
1981—Subsec. (a).
Subsec. (b)(3).
Subsec. (d)(1).
1977—Subsec. (f).
1973—Subsec. (b)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 1973 Amendment
Amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1373. Regulations on taking of marine mammals
(a) Necessity and appropriateness
The Secretary, on the basis of the best scientific evidence available and in consultation with the Marine Mammal Commission, shall prescribe such regulations with respect to the taking and importing of animals from each species of marine mammal (including regulations on the taking and importing of individuals within population stocks) as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in
(b) Factors considered in prescribing regulations
In prescribing such regulations, the Secretary shall give full consideration to all factors which may affect the extent to which such animals may be taken or imported, including but not limited to the effect of such regulations on—
(1) existing and future levels of marine mammal species and population stocks;
(2) existing international treaty and agreement obligations of the United States;
(3) the marine ecosystem and related environmental considerations;
(4) the conservation, development, and utilization of fishery resources; and
(5) the economic and technological feasibility of implementation.
(c) Allowable restrictions
The regulations prescribed under subsection (a) of this section for any species or population stock of marine mammal may include, but are not limited to, restrictions with respect to—
(1) the number of animals which may be taken or imported in any calendar year pursuant to permits issued under
(2) the age, size, or sex (or any combination of the foregoing) of animals which may be taken or imported, whether or not a quota prescribed under paragraph (1) of this subsection applies with respect to such animals;
(3) the season or other period of time within which animals may be taken or imported;
(4) the manner and locations in which animals may be taken or imported; and
(5) fishing techniques which have been found to cause undue fatalities to any species of marine mammal in a fishery.
(d) Procedure
Regulations prescribed to carry out this section with respect to any species or stock of marine mammals must be made on the record after opportunity for an agency hearing on both the Secretary's determination to waive the moratorium pursuant to
(1) a statement of the estimated existing levels of the species and population stocks of the marine mammal concerned;
(2) a statement of the expected impact of the proposed regulations on the optimum sustainable population of such species or population stock;
(3) a statement describing the evidence before the Secretary upon which he proposes to base such regulations; and
(4) any studies made by or for the Secretary or any recommendations made by or for the Secretary or the Marine Mammal Commission which relate to the establishment of such regulations.
(e) Periodic review
Any regulation prescribed pursuant to this section shall be periodically reviewed, and may be modified from time to time in such manner as the Secretary deems consistent with and necessary to carry out the purposes of this chapter.
(f) Report to Congress
Within six months after the effective date of this chapter and every twelve months thereafter, the Secretary shall report to the public through publication in the Federal Register and to the Congress on the current status of all marine mammal species and population stocks subject to the provisions of this chapter. His report shall describe those actions taken and those measures believed necessary, including where appropriate, the issuance of permits pursuant to this subchapter to assure the well-being of such marine mammals.
(
Editorial Notes
References in Text
The effective date of this chapter, referred to in subsec. (f), means the effective date of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (f) of this section relating to the Secretary reporting to Congress on the current status of marine mammal species and population stocks subject to this chapter, see section 3003 of
Marine Mammal Populations Report
§1374. Permits
(a) Issuance
The Secretary may issue permits which authorize the taking or importation of any marine mammal. 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 1 1371(a)(5) or 1416 of this title, or subsection (h) of this section.
(b) Requisite provisions
Any permit issued under this section shall—
(1) be consistent with any applicable regulation established by the Secretary under
(2) specify—
(A) the number and kind of animals which are authorized to be taken or imported,
(B) the location and manner (which manner must be determined by the Secretary to be humane) in which they may be taken, or from which they may be imported,
(C) the period during which the permit is valid, and
(D) any other terms or conditions which the Secretary deems appropriate.
In any case in which an application for a permit cites as a reason for the proposed taking the overpopulation of a particular species or population stock, the Secretary shall first consider whether or not it would be more desirable to transplant a number of animals (but not to exceed the number requested for taking in the application) of that species or stock to a location not then inhabited by such species or stock but previously inhabited by such species or stock.
(c) Importation for scientific research, public display, or enhancing survival or recovery of species or stock
(1) Any permit issued by the Secretary which authorizes the taking or importation of a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall specify, in addition to the conditions required by subsection (b) of this section, the methods of capture, supervision, care, and transportation which must be observed pursuant to such taking or importation. Any person authorized to take or import a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall furnish to the Secretary a report on all activities carried out by him pursuant to that authority.
(2)(A) A permit may be issued to take or import a marine mammal for the purpose of public display only to a person which the Secretary determines—
(i) offers a program for education or conservation purposes that is based on professionally recognized standards of the public display community;
(ii) is registered or holds a license issued under
(iii) maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and that access to such facilities is not limited or restricted other than by charging of an admission fee.
(B) A permit under this paragraph shall grant to the person to which it is issued the right, without obtaining any additional permit or authorization under this chapter, to—
(i) take, import, purchase, offer to purchase, possess, or transport the marine mammal that is the subject of the permit; and
(ii) sell, export, or otherwise transfer possession of the marine mammal, or offer to sell, export, or otherwise transfer possession of the marine mammal—
(I) for the purpose of public display, to a person that meets the requirements of clauses (i), (ii), and (iii) of subparagraph (A);
(II) for the purpose of scientific research, to a person that meets the requirements of paragraph (3); or
(III) for the purpose of enhancing the survival or recovery of a species or stock, to a person that meets the requirements of paragraph (4).
(C) A person to which a marine mammal is sold or exported or to which possession of a marine mammal is otherwise transferred under the authority of subparagraph (B) shall have the rights and responsibilities described in subparagraph (B) with respect to the marine mammal without obtaining any additional permit or authorization under this chapter. Such responsibilities shall be limited to—
(i) for the purpose of public display, the responsibility to meet the requirements of clauses (i), (ii), and (iii) of subparagraph (A),
(ii) for the purpose of scientific research, the responsibility to meet the requirements of paragraph (3), and
(iii) for the purpose of enhancing the survival or recovery of a species or stock, the responsibility to meet the requirements of paragraph (4).
(D) If the Secretary—
(i) finds in concurrence with the Secretary of Agriculture, that a person that holds a permit under this paragraph for a marine mammal, or a person exercising rights under subparagraph (C), no longer meets the requirements of subparagraph (A)(ii) and is not reasonably likely to meet those requirements in the near future, or
(ii) finds that a person that holds a permit under this paragraph for a marine mammal, or a person exercising rights under subparagraph (C), no longer meets the requirements of subparagraph (A)(i) or (iii) and is not reasonably likely to meet those requirements in the near future,
the Secretary may revoke the permit in accordance with subsection (e), seize the marine mammal, or cooperate with other persons authorized to hold marine mammals under this chapter for disposition of the marine mammal. The Secretary may recover from the person expenses incurred by the Secretary for that seizure.
(E) No marine mammal held pursuant to a permit issued under subparagraph (A), or by a person exercising rights under subparagraph (C), may be sold, purchased, exported, or transported unless the Secretary is notified of such action no later than 15 days before such action, and such action is for purposes of public display, scientific research, or enhancing the survival or recovery of a species or stock. The Secretary may only require the notification to include the information required for the inventory established under paragraph (10).
(3)(A) The Secretary may issue a permit under this paragraph for scientific research purposes to an applicant which submits with its permit application information indicating that the taking is required to further a bona fide scientific purpose. The Secretary may issue a permit under this paragraph before the end of the public review and comment period required under subsection (d)(2) if delaying issuance of the permit could result in injury to a species, stock, or individual, or in loss of unique research opportunities.
(B) No permit issued for purposes of scientific research shall authorize the lethal taking of a marine mammal unless the applicant demonstrates that a nonlethal method of conducting 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 that is 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.
(C) Not later than 120 days after April 30, 1994, the Secretary shall issue a general authorization and implementing regulations allowing bona fide scientific research that may result only in taking by Level B harassment of a marine mammal. Such authorization shall apply to persons which submit, by 60 days before commencement of such research, a letter of intent via certified mail to the Secretary containing the following:
(i) The species or stocks of marine mammals which may be harassed.
(ii) The geographic location of the research.
(iii) The period of time over which the research will be conducted.
(iv) The purpose of the research, including a description of how the definition of bona fide research as established under this chapter would apply.
(v) Methods to be used to conduct the research.
Not later than 30 days after receipt of a letter of intent to conduct scientific research under the general authorization, the Secretary shall issue a letter to the applicant confirming that the general authorization applies, or, if the proposed research is likely to result in the taking (including Level A harassment) of a marine mammal, shall notify the applicant that subparagraph (A) applies.
(4)(A) A permit may be issued for enhancing the survival or recovery of a species or stock only with respect to a species or stock for which the Secretary, after consultation with the Marine Mammal Commission and after notice and opportunity for public comment, has first determined that—
(i) taking or importation is likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock; and
(ii) taking or importation is consistent (I) with any conservation plan adopted by the Secretary under
(B) A permit issued in accordance with this paragraph may allow the captive maintenance of a marine mammal from a depleted species or stock only if the Secretary—
(i) determines that captive maintenance is likely to contribute to the survival or recovery of the species or stock by maintaining a viable gene pool, increasing productivity, providing biological information, or establishing animal reserves;
(ii) determines that the expected benefit to the affected species or stock outweighs the expected benefit of alternatives which do not require removal of animals from the wild; and
(iii) requires that the marine mammal or its progeny be returned to the natural habitat of the species or stock as soon as feasible, consistent with the objectives of any applicable conservation plan or recovery plan, or of any evaluation by the Secretary under subparagraph (A).
The Secretary may allow the public display of such a marine mammal only if the Secretary determines that such display is incidental to the authorized maintenance and will not interfere with the attainment of the survival or recovery objectives.
(5)(A) The Secretary may issue a permit for the importation of polar bear parts (other than internal organs) taken in sport hunts in Canada to an applicant which submits with its permit application proof that the polar bear was legally harvested in Canada by the applicant. Such a permit shall be issued if the Secretary, in consultation with the Marine Mammal Commission and after notice and opportunity for public comment, finds that—
(i) Canada has a monitored and enforced sport hunting program consistent with the purposes of the Agreement on the Conservation of Polar Bears;
(ii) Canada has a sport hunting program based on scientifically sound quotas ensuring the maintenance of the affected population stock at a sustainable level;
(iii) the export and subsequent import are consistent with the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and other international agreements and conventions; and
(iv) the export and subsequent import are not likely to contribute to illegal trade in bear parts.
(B) The Secretary shall establish and charge a reasonable fee for permits issued under this paragraph. All fees collected under this paragraph shall be available to the Secretary until expended for use in developing and implementing cooperative research and management programs for the conservation of polar bears in Alaska and Russia pursuant to
(C)(i) The Secretary shall undertake a scientific review of the impact of permits issued under this paragraph on the polar bear population stocks in Canada within 2 years after April 30, 1994. The Secretary shall provide an opportunity for public comment during the course of such review, and shall include a response to such public comment in the final report on such review.
(ii) The Secretary shall not issue permits under this paragraph after September 30, 1996, if the Secretary determines, based on the scientific review, that the issuance of permits under this paragraph is having a significant adverse impact on the polar bear population stocks in Canada. The Secretary may review such determination annually thereafter, in light of the best scientific information available, and shall complete the review not later than January 31 in any year a review is undertaken. The Secretary may issue permits under this paragraph whenever the Secretary determines, on the basis of such annual review, that the issuance of permits under this paragraph is not having a significant adverse impact on the polar bear population stocks in Canada.
(D) The Secretary of the Interior shall, expeditiously after the expiration of the applicable 30 day period under subsection (d)(2), issue a permit for the importation of polar bear parts (other than internal organs) from polar bears taken in sport hunts in Canada before February 18, 1997, to each applicant who submits, with the permit application, proof that the polar bear was legally harvested in Canada by the applicant. The Secretary shall issue such permits without regard to the provisions of subparagraphs (A) and (C)(ii) of this paragraph, subsection (d)(3) of this section, and
(6) A permit may be issued for photography for educational or commercial purposes involving marine mammals in the wild only to an applicant which submits with its permit application information indicating that the taking will be limited to Level B harassment, and the manner in which the products of such activities will be made available to the public.
(7) Upon request by a person for a permit under paragraph (2), (3), or (4) for a marine mammal which is in the possession of any person authorized to possess it under this chapter and which is determined under guidance under
(A) meets the requirements of clauses (i), (ii), and (iii) of paragraph (2)(A), in the case of a request for a permit under paragraph (2);
(B) meets the requirements of paragraph (3), in the case of a request for a permit under that paragraph; or
(C) meets the requirements of paragraph (4), in the case of a request for a permit under that paragraph.
(8)(A) No additional permit or authorization shall be required to possess, sell, purchase, transport, export, or offer to sell or purchase the progeny of marine mammals taken or imported under this subsection, if such possession, sale, purchase, transport, export, or offer to sell or purchase is—
(i) for the purpose of public display, and by or to, respectively, a person which meets the requirements of clauses (i), (ii), and (iii) of paragraph (2)(A);
(ii) for the purpose of scientific research, and by or to, respectively, a person which meets the requirements of paragraph (3); or
(iii) for the purpose of enhancing the survival or recovery of a species or stock, and by or to, respectively, a person which meets the requirements of paragraph (4).
(B)(i) A person which has a permit under paragraph (2), or a person exercising rights under paragraph (2)(C), which has possession of a marine mammal that gives birth to progeny shall—
(I) notify the Secretary of the birth of such progeny within 30 days after the date of birth; and
(II) notify the Secretary of the sale, purchase, or transport of such progeny no later than 15 days before such action.
(ii) The Secretary may only require notification under clause (i) to include the information required for the inventory established under paragraph (10).
(C) Any progeny of a marine mammal born in captivity before April 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
(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
(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
(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) 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 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
(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
(
Editorial Notes
References in Text
Amendments
2003—Subsec. (c)(5)(D).
1999—Subsec. (c)(5)(B).
1998—Subsec. (c)(5)(B).
1997—Subsec. (c)(5)(A).
Subsec. (c)(5)(D).
Subsec. (h).
1994—Subsec. (a).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(3).
Subsec. (c)(5) to (10).
Subsec. (e)(1)(C).
1988—Subsec. (c).
Subsec. (h)(2)(B).
1984—Subsec. (h).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Modification of Permits Existing Prior to April 30, 1994
1 So in original. Probably should be "section".
§1375. Penalties
(a)(1) Any person who violates any provision of this subchapter or of any permit or regulation issued thereunder, except as provided in
(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
(
Editorial Notes
Amendments
1994—Subsec. (a)(1).
Subsec. (b).
1981—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1375a. Use of fines for protection and recovery of manatees, polar bears, sea otters, and walruses
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 (
(
Editorial Notes
References in Text
The Marine Mammal Protection Act, referred to in text, probably means the Marine Mammal Protection Act of 1972,
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.
§1376. Seizure and forfeiture of cargo
(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.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1377. Enforcement
(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, other conveyance, or container 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
(B) Upon conviction for violation 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
(B) no conviction results from an alleged violation of
(
Editorial Notes
Amendments
2007—Subsec. (d)(2).
Statutory Notes and Related Subsidiaries
Change of Name
"United States magistrate judges" substituted for "United States magistrates" in subsec. (c) pursuant to section 321 of
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Executive Documents
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, §102, 43 F.R. 36037,
1 So in original. Probably should be "within".
§1378. International program
(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
(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), as well as any proposals for further action to achieve the purposes of that subsection, in the report required under
(
Editorial Notes
Amendments
1997—Subsecs. (a)(2)(C), (D).
1988—Subsec. (a)(2).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1379. Transfer of management authority
(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).
(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)—
(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), such an 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)), 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); 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
(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), 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
(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
(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
(C)
(c) Standards with which State process must comply
The State process required under subsection (b)(1)(C) 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) 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
(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) 1 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
(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) 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).
(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 notice of intent to revoke—
(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,
(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) 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), nor the revocation or voluntary return of such authority under subsection (e), shall be deemed to be an action for which an environmental impact statement is required under
(h) Taking of marine mammals as part of official duties
(1) Nothing in this subchapter or subchapter V shall prevent a Federal, State, or local government official or employee or a person designated under
(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
(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
(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), 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.
(
Editorial Notes
References in Text
The Regulatory Flexibility Act, referred to in subsec. (d)(2), is
The Paperwork Reduction Act, referred to in subsec. (d)(2), probably means the Paperwork Reduction Act of 1980,
Executive Order Numbered 12291, dated February 17, 1981, referred to in subsec. (d)(2), was formerly set out as a note under
Amendments
1994—Subsec. (h)(1).
1992—Subsec. (h)(1).
1988—Subsec. (b)(1)(E).
Subsec. (b)(3)(B)(ii).
Subsec. (h).
"(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).
Subsec. (b).
Subsecs. (c), (d).
Subsecs. (e) to (j).
Subsecs. (k), (l).
1978—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Enforcement by Hawaii of Laws Relating to Conservation and Management of Humpback Whales With Respect to Recreational and Commercial Vessels
Cooperative Agreements Under Endangered Species Act
1 See References in Text note below.
§1380. Marine mammal research grants
(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
(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
(
Editorial Notes
References in Text
Provisions of
Amendments
1997—Subsec. (a).
1994—Subsecs. (c), (d).
1988—Subsec. (a).
1981—Subsec. (a).
1978—Subsec. (c)(4) to (6).
1977—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
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
1 See References in Text note below.
§1381. Commercial fisheries gear development
(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
(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.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1382. Regulations and administration
(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 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 1 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
(e) Measures to alleviate impacts on strategic stocks
If the Secretary determines, based on a stock assessment under
(
Editorial Notes
Amendments
1994—Subsec. (c).
Subsec. (e).
1992—Subsec. (c).
1980—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1383. Application to other treaties and conventions
(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,
(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.
(
Editorial Notes
Codification
A prior subsec. (b) of section 113 of
Amendments
1994—Subsec. (a).
Subsecs. (b) to (d).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
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
§1383a. Interim exemption for commercial fisheries
(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
(2) The provisions of this section other than subsection (e)(6)(A) shall not govern the incidental taking of marine mammals in the course of commercial yellowfin tuna fishing subject to
(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), 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
(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).
(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) 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), 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).
(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) 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).
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).
(4) Information gathered by observers shall be subject to the provisions of subsection (j). 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, if the Secretary finds in writing, following public notice and opportunity for comment, that such information will not contribute to the protection of marine mammals or the understanding of the marine ecosystem, including fishery resources and seabirds.
(6) The Secretary shall not be required to place an observer on a vessel in a fishery if the Secretary finds that—
(A) in a situation where 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 of a vessel for the 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)(A) An observer on a vessel (or the observer's personal representative) under the requirements of this section or
(B) This paragraph does not apply if the observer is engaged by the owner, master, or individual in charge of a vessel to perform any duties in service to the vessel.
(8) There are authorized to be appropriated to the Department of Commerce for the purposes of carrying out this subsection not to exceed $2,700,000 for fiscal year 1989 and not to exceed $8,000,000 for each of the fiscal years 1990, 1991, 1992, and 1993.
(f) Alternative observation program
(1) The Secretary shall establish an alternative observation program to provide statistically reliable information on the species and number of marine mammals incidentally taken in those fisheries identified pursuant to subsection (b)(1)(A)(i) of this section for which the required level of observer coverage has not been met or for any other fisheries about which such reliable information is not otherwise available. The alternative program shall include, but not be limited to, direct observation of fishing activities from vessels, airplanes, or points on shore.
(2) Individuals engaged in the alternative observation program shall collect scientific information on the fisheries subject to observation, consistent with the requirements of paragraph (1) and subsection (e)(4) and (5). All information collected shall be subject to the provisions of subsection (j).
(g) Review of information and evaluation of effects of incidental taking on population stocks of marine mammals; promulgation of emergency regulations to mitigate immediate and significant adverse impacts; action to mitigate non-immediate impacts
(1) The Secretary shall review information regarding the incidental taking of marine mammals and evaluate the effects of such incidental taking on the affected population stocks of marine mammals.
(2) If the Secretary finds, based on the information received from the programs established under subsections (c), (d), (e), and (f), that the incidental taking of marine mammals in a fishery is having an immediate and significant adverse impact on a marine mammal population stock or, in the case of Steller sea lions and North Pacific fur seals, that more than 1,350 and 50, respectively, will be incidentally killed during a calendar year, the Secretary shall consult with appropriate Regional Fishery Management Councils and State fishery managers and prescribe emergency regulations to prevent to the maximum extent practicable any further taking. Any emergency regulations prescribed under this paragraph—
(A) shall, to the maximum extent practicable, avoid interfering with existing State or regional fishery management plans;
(B) shall be published in the Federal Register together with the reasons therefor;
(C) shall remain in effect for not more than one hundred and eighty days or until the end of the fishing season, whichever is earlier; and
(D) 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 the reasons for the emergency regulations no longer exist.
In prescribing emergency regulations under this paragraph, the Secretary shall take into account the economics of the fishery concerned and the availability of existing technology to prevent or minimize incidental taking of marine mammals.
(3) If the Secretary finds, based on information received from the programs established under subsections (c), (d), (e), and (f), that incidental taking of marine mammals in a fishery is not having an immediate and significant adverse impact on a marine mammal population stock but that it will likely have a significant adverse impact over a period of time longer than one year, the Secretary shall request the appropriate Regional Fishery Management Council or State to initiate, recommend, or take such action within its authority as it considers necessary to mitigate the adverse impacts, including adjustments to requirements on fishing times or areas or the imposition of restrictions on the use of vessels or gear.
(4) The Secretary shall impose appropriate conditions and restrictions on an exemption granted under subsection (b) if—
(A) a Regional Fishery Management Council or State does not act in a reasonable period of time on a request made by the Secretary under paragraph (3); or
(B) if the Secretary determines after notice and opportunity for public comment that the purposes of this section would be better served by such action.
(h) Information and management system for processing and analyzing reports and information; accessibility to public
The Secretary shall design and implement an information management system capable of processing and analyzing reports received from the programs established under subsections (c), (d), (e), and (f), and other relevant sources, including Federal and State enforcement authorities, marine mammal stranding networks, and the marine mammal researchers. The information shall be made accessible to the public on a continuing basis, but in any case no later than six months after it is received, subject to the provisions of subsection (j).
(i) Utilization of services of State and Federal agencies and private entities
When carrying out the Secretary's responsibilities under subsections (b), (d), (e), (f), and (h) of this section, the Secretary shall, to the maximum extent practicable, utilize the services and programs of State agencies, Federal agencies (including programs established by Regional Fishery Management Councils), marine fisheries commissions, universities, and private entities, on a reimbursable basis or otherwise. The Secretary is authorized to enter into contracts and agreements to carry out his or her responsibilities and shall establish appropriate guidelines to ensure that other programs used or contracted for will meet the same standards as a program established by the Secretary. A person contracting with the Secretary to provide observer services under subsection (e) of this section must provide evidence of financial responsibility in an amount and form prescribed by the Secretary to compensate employees (or their survivors) adequately for any illness, disability, injury, or death from service on a vessel.
(j) Confidentiality of information; exceptions
(1) Any information collected under subsection (c), (d), (e), (f), or (h) of this section shall be confidential and shall not be disclosed except—
(A) to Federal employees whose duties require access to such information;
(B) to State 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.
(2) The Secretary shall prescribe such procedures as may be necessary to preserve such confidentiality, except that the Secretary shall release or make public any such information in aggregate, summary, or other form which does not directly or indirectly disclose the identity or business of any person.
(k) Regulations
The Secretary, in consultation with any other Federal agency to the extent that such agency may be affected, shall prescribe such regulations as necessary and appropriate to carry out the purposes of this section.
(l) Suggested regime governing incidental taking of marine mammals following termination of interim exemptions
(1) The Chairman of the Marine Mammal Commission shall, after consultation with interested parties and not later than February 1, 1990, transmit to the Secretary and make available to the public recommended guidelines to govern the incidental taking of marine mammals in the course of commercial fishing operations, other than those subject to
(A) be designed to provide a scientific rationale and basis for determining how many marine mammals may be incidentally taken under a regime to be adopted to govern such taking after October 1, 1993;
(B) be based on sound principles of wildlife management, and be consistent with and in furtherance of the purposes and policies set forth in this chapter; and
(C) to the maximum extent practicable, include as factors to be considered and utilized in determining permissible levels of such taking—
(i) the status and trends of the affected marine mammal population stocks;
(ii) the abundance and annual net recruitment of such stocks;
(iii) the level of confidence in the knowledge of the affected stocks; and
(iv) the extent to which incidental taking will likely cause or contribute to their decline or prevent their recovery to optimum sustainable population levels.
(2) The Secretary shall advise the Chairman of the Commission in writing if the Secretary determines that any additional information or explanation of the Chairman's recommendations is needed, and the Chairman shall respond in writing to any such request by the Secretary.
(3) On or before February 1, 1991, the Secretary, after consultation with the Marine Mammal Commission, Regional Fishery Management Councils, and other interested governmental and nongovernmental organizations, shall publish in the Federal Register, for public comment, the suggested regime that the Secretary considers should, if authorized by enactment of any additional legislation, govern incidental taking of marine mammals, other than those subject to
(A) the scientific guidelines to be used in determining permissible levels of incidental taking;
(B) a description of the arrangements for consultation and cooperation with other Federal agencies, the appropriate Regional Fishery Management Councils and States, the commercial fishing industry, and conservation organizations; and
(C) a summary of such regulations and legislation as would be necessary to implement the suggested regime.
(4) On or before January 1, 1992, the Secretary, after consultation with the Marine Mammal Commission, and consideration of public comment, shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives recommendations pertaining to the incidental taking of marine mammals, other than those subject to
(A) the suggested regime developed under paragraph (3) of this subsection as modified after comment and consultations;
(B) a proposed schedule for implementing the suggested regime; and
(C) such recommendations for additional legislation as the Secretary considers necessary or desirable to implement the suggested regime.
(m) 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.
(n) Owner of fixed commercial fishing gear deemed owner of vessel engaged in fishery in which gear deployed
For the purposes of this section, the owner of fixed or other commercial fishing gear that is deployed with or without the use of a vessel shall be deemed to be an owner of a vessel engaged in the fishery in which that gear is deployed.
(o) Definitions
As used in this section—
(1) the term "fishery" has the same meaning as it does in section 1802(8) 2 of this title.
(2) the term "Secretary" means the Secretary of Commerce.
(3) the term "vessel engaged in a fishery" means a fishing vessel as defined in
(4) the term "vessel of the United States" has the same meaning as it does in section 1802(27) 2 of this title.
(
Editorial Notes
References in Text
Amendments
2018—Subsec. (o)(3).
1996—Subsecs. (a)(1), (b)(2)(B)(ii), (o)(1), (4).
1995—
1994—Subsec. (a)(1).
1993—Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Effective Date of 1995 Amendment
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
1 So in original. Probably should not be capitalized.
2 See References in Text note below.
§1383b. Status review; conservation plans
(a) Determinations by rule; notice and hearing; findings; final rule on status of species or stock involved
(1) In any action by the Secretary to determine if a species or stock should be designated as depleted, or should no longer be designated as depleted, regardless of whether such action is taken on the initiative of the Secretary or in response to a petition for a status review, the Secretary shall only make such a determination by issuance of a rule, after notice and opportunity for public comment and after a call for information in accordance with paragraph (2).
(2) The Secretary shall make any determination described in paragraph (1) solely on the basis of the best scientific information available. Prior to the issuance of a proposed rule concerning any such determination, the Secretary shall publish in the Federal Register a call to assist the Secretary in obtaining scientific information from individuals and organizations concerned with the conservation of marine mammals, from persons in any industry which might be affected by the determination, and from academic institutions. In addition, the Secretary shall utilize, to the extent the Secretary determines to be feasible, informal working groups of interested parties and other methods to gather the necessary information.
(3)(A) If the Secretary receives a petition for a status review as described in paragraph (1), the Secretary shall publish a notice in the Federal Register that such a petition has been received and is available for public review.
(B) Within sixty days after receipt of the petition, the Secretary shall publish a finding in the Federal Register as to whether the petition presents substantial information indicating that the petitioned action may be warranted.
(C) If the Secretary makes a positive finding under subparagraph (B), the Secretary shall include in the Federal Register notice, a finding that—
(i) a review of the status of the species or stock will be commenced promptly; or
(ii) a prompt review of the petition is precluded by other pending status determination petitions and that expeditious progress is being made to process pending status determination petitions under this subchapter.
In no case after making a finding under this subparagraph shall the Secretary delay commencing a review of the status of a species or stock for more than one hundred and twenty days after receipt of the petition.
(D) No later than two hundred and ten days after the receipt of the petition, the Secretary shall publish in the Federal Register a proposed rule as to the status of the species or stock, along with the reasons underlying the proposed status determination. Persons shall have at least sixty days to submit comments on such a proposed rule.
(E) Not later than ninety days after the close of the comment period on a proposed rule issued under subparagraph (D), the Secretary shall issue a final rule on the status of the species or stock involved, along with the reasons for the status determination. If the Secretary finds with respect to such a proposed rule that there is substantial disagreement regarding the sufficiency or accuracy of the available information relevant to a status determination, the Secretary may delay the issuance of a final rule for a period of not more than six months for purposes of soliciting additional information.
(F) Notwithstanding subparagraphs (D) and (E) of this paragraph and
(b) Conservation plans; preparation and implementation
(1) The Secretary shall prepare conservation plans—
(A) By 1 December 31, 1989, for North Pacific fur seals;
(B) by December 31, 1990, for Steller sea lions; and
(C) as soon as possible, for any species or stock designated as depleted under this subchapter, except that a conservation plan need not be prepared if the Secretary determines that it will not promote the conservation of the species or stock.
(2) Each plan shall have the purpose of conserving and restoring the species or stock to its optimum sustainable population. The Secretary shall model such plans on recovery plans required under
(3) The Secretary shall act expeditiously to implement each conservation plan prepared under paragraph (1). Each year, the Secretary shall specify in the annual report prepared under
(4) If the Secretary determines that a take reduction plan is necessary to reduce the incidental taking of marine mammals in the course of commercial fishing operations from a strategic stock, or for species or stocks which interact with a commercial fishery for which the Secretary has made a determination under
(
Editorial Notes
Amendments
1994—Subsec. (b)(4).
1 So in original. Probably should not be capitalized.
§1384. Authorization of appropriations
(a) Department of Commerce
(1) There are authorized to be appropriated to the Department of Commerce, for purposes of carrying out its functions and responsibilities under this subchapter (other than
(2) There are authorized to be appropriated to the Department of Commerce, for purposes of carrying out
(b) Department of the Interior
There are authorized to be appropriated to the Department of the Interior, for purposes of carrying out its functions and responsibilities under this subchapter, $8,000,000 for fiscal year 1994, $8,600,000 for fiscal year 1995, $9,000,000 for fiscal year 1996, $9,400,000 for fiscal year 1997, $9,900,000 for fiscal year 1998, and $10,296,000 for fiscal year 1999.
(
Editorial Notes
Prior Provisions
Provisions similar to those in this section were contained in
Amendments
1994—
"(a) There are authorized to be appropriated not to exceed $2,000,000 for the fiscal year ending June 30, 1973, and the four next following fiscal years, not to exceed $11,500,000 for the fiscal year ending September 30, 1978, not to exceed $8,500,000 for the fiscal year ending September 30, 1979, not to exceed $9,000,000 for the fiscal year ending September 30, 1980, and not to exceed $9,500,000 for the fiscal year ending September 30, 1981, to enable the department in which the National Oceanic and Atmospheric Administration is operating to carry out such functions and responsibilities as it may have been given under this subchapter (other than
"(b) There are authorized to be appropriated not to exceed $700,000 for the fiscal year ending June 30, 1973, not to exceed $525,000 for each of the next four fiscal years thereafter, not to exceed $850,000 for the fiscal year ending September 30, 1978, not to exceed $650,000 for the fiscal year ending September 30, 1979, not to exceed $760,000 for the fiscal year ending September 30, 1980, and not to exceed $876,000 for the fiscal year ending September 30, 1981 to enable the Department of the Interior to carry out such functions and responsibilities as it may have been given under this subchapter (other than
1978—Subsec. (a).
Subsec. (b).
1977—Subsec. (a).
Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1385. Dolphin protection
(a) Short title
This section may be cited as the "Dolphin Protection Consumer Information Act".
(b) Findings
The Congress finds that—
(1) dolphins and other marine mammals are frequently killed in the course of tuna fishing operations in the eastern tropical Pacific Ocean and high seas driftnet fishing in other parts of the world;
(2) it is the policy of the United States to support a worldwide ban on high seas driftnet fishing, in part because of the harmful effects that such driftnets have on marine mammals, including dolphins; and
(3) consumers would like to know if the tuna they purchase is falsely labeled as to the effect of the harvesting of the tuna on dolphins.
(c) Definitions
For purposes of this section—
(1) the terms "driftnet" and "driftnet fishing" have the meanings given those terms in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (
(2) the term "eastern tropical Pacific Ocean" means the area of the Pacific Ocean bounded by 40 degrees north latitude, 40 degrees south latitude, 160 degrees west longitude, and the western coastlines of North, Central, and South America;
(3) the term "label" means a display of written, printed, or graphic matter on or affixed to the immediate container of any article;
(4) the term "Secretary" means the Secretary of Commerce; and
(5) the term "tuna product" means a food item which contains tuna and which has been processed for retail sale, except perishable sandwiches, salads, or other products with a shelf life of less than 3 days.
(d) Labeling standard
(1) It is a violation of
(A) on the high seas by a vessel engaged in driftnet fishing;
(B) outside the eastern tropical Pacific Ocean by a vessel using purse seine nets—
(i) in a fishery in which the Secretary has determined that a regular and significant association occurs between dolphins and tuna (similar to the association between dolphins and tuna in the eastern tropical Pacific Ocean), unless such product is accompanied by a written statement, executed by the captain of the vessel and an observer participating in a national or international program acceptable to the Secretary, certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna were caught and no dolphins were killed or seriously injured in the sets in which the tuna were caught; or
(ii) in any other fishery (other than a fishery described in subparagraph (D)) unless the product is accompanied by a written statement executed by the captain of the vessel certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna was harvested;
(C) in the eastern tropical Pacific Ocean by a vessel using a purse seine net unless the tuna meet the requirements for being considered dolphin safe under paragraph (2); or
(D) by a vessel in a fishery other than one described in subparagraph (A), (B), or (C) that is identified by the Secretary as having a regular and significant mortality or serious injury of dolphins, unless such product is accompanied by a written statement executed by the captain of the vessel and an observer participating in a national or international program acceptable to the Secretary that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught, provided that the Secretary determines that such an observer statement is necessary.
(2) For purposes of paragraph (1)(C), a tuna product that contains tuna harvested in the eastern tropical Pacific Ocean by a vessel using purse seine nets is dolphin safe if—
(A) the vessel is of a type and size that the Secretary has determined, consistent with the International Dolphin Conservation Program, is not capable of deploying its purse seine nets on or to encircle dolphins; or
(B)(i) the product is accompanied by a written statement executed by the captain providing the certification required under subsection (h);
(ii) the product is accompanied by a written statement executed by—
(I) the Secretary or the Secretary's designee;
(II) a representative of the Inter-American Tropical Tuna Commission; or
(III) an authorized representative of a participating nation whose national program meets the requirements of the International Dolphin Conservation Program,
which states that there was an observer approved by the International Dolphin Conservation Program on board the vessel during the entire trip and that such observer provided the certification required under subsection (h); and
(iii) the statements referred to in clauses (i) and (ii) are endorsed in writing by each exporter, importer, and processor of the product; and
(C) the written statements and endorsements referred to in subparagraph (B) comply with regulations promulgated by the Secretary which provide for the verification of tuna products as dolphin safe.
(3)(A) The Secretary of Commerce shall develop an official mark that may be used to label tuna products as dolphin safe in accordance with this section.1
(B) A tuna product that bears the dolphin safe mark developed under subparagraph (A) shall not bear any other label or mark that refers to dolphins, porpoises, or marine mammals.
(C) It is a violation of
(i) no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught;
(ii) the label is supported by a tracking and verification program which is comparable in effectiveness to the program established under subsection (f); and
(iii) the label complies with all applicable labeling, marketing, and advertising laws and regulations of the Federal Trade Commission, including any guidelines for environmental labeling.
(D) If the Secretary determines that the use of a label referred to in subparagraph (C) is substantially undermining the conservation goals of the International Dolphin Conservation Program, the Secretary shall report that determination to the United States Senate Committee on Commerce, Science, and Transportation and the United States House of Representatives Committees on Resources and on Commerce, along with recommendations to correct such problems.
(E) It is a violation of
(e) Additional prohibitions and enforcement
For additional prohibitions relating to this section 1 and enforcement of this section,1 see
(f) Regulations
The Secretary, in consultation with the Secretary of the Treasury, shall issue regulations to implement this section,1 including regulations to establish a domestic tracking and verification program that provides for the effective tracking of tuna labeled under subsection (d). In the development of these regulations, the Secretary shall establish appropriate procedures for ensuring the confidentiality of proprietary information the submission of which is voluntary or mandatory. The regulations shall address each of the following items:
(1) The use of weight calculation for purposes of tracking tuna caught, landed, processed, and exported.
(2) Additional measures to enhance current observer coverage, including the establishment of criteria for training, and for improving monitoring and reporting capabilities and procedures.
(3) The designation of well location, procedures for sealing holds, procedures for monitoring and certifying both above and below deck, or through equally effective methods, the tracking and verification of tuna labeled under subsection (d).
(4) The reporting, receipt, and database storage of radio and facsimile transmittals from fishing vessels containing information related to the tracking and verification of tuna, and the definition of set.
(5) The shore-based verification and tracking throughout the fishing, transshipment, and canning process by means of Inter-American Tropical Tuna Commission trip records or otherwise.
(6) The use of periodic audits and spot checks for caught, landed, and processed tuna products labeled in accordance with subsection (d).
(7) The provision of timely access to data required under this subsection by the Secretary from harvesting nations to undertake the actions required in paragraph (6) of this paragraph.2
The Secretary may make such adjustments as may be appropriate to the regulations promulgated under this subsection to implement an international tracking and verification program that meets or exceeds the minimum requirements established by the Secretary under this subsection.
(g) Secretarial findings
(1) Between March 1, 1999, and March 31, 1999, the Secretary shall, on the basis of the research conducted before March 1, 1999, under
(2) Between July 1, 2001, and December 31, 2002, the Secretary shall, on the basis of the completed study conducted under
(h) Certification by captain and observer
(1) Unless otherwise required by paragraph (2), the certification by the captain under subsection (d)(2)(B)(i) and the certification provided by the observer as specified in subsection (d)(2)(B)(ii) shall be that no dolphins were killed or seriously injured during the sets in which the tuna were caught.
(2) The certification by the captain under subsection (d)(2)(B)(i) and the certification provided by the observer as specified under subsection (d)(2)(B)(ii) shall be that no tuna were caught on the trip in which such tuna were harvested using a purse seine net intentionally deployed on or to encircle dolphins, and that no dolphins were killed or seriously injured during the sets in which the tuna were caught, if the tuna were caught on a trip commencing—
(A) before the effective date of the initial finding by the Secretary under subsection (g)(1);
(B) after the effective date of such initial finding and before the effective date of the finding of the Secretary under subsection (g)(2), where the initial finding is that the intentional deployment on or encirclement of dolphins is having a significant adverse impact on any depleted dolphin stock; or
(C) after the effective date of the finding under subsection (g)(2), where such finding is that the intentional deployment on or encirclement of dolphins is having a significant adverse impact on any such depleted stock.
(
Editorial Notes
References in Text
This section, referred to in subsecs. (d)(3)(A), (e), and (f), was in the original "this Act", and was translated as referring to the Dolphin Protection Consumer Information Act, which is classified to this section, to reflect the probable intent of Congress.
Codification
Section was not enacted as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
Amendments
2015—Subsec. (e).
1997—Subsec. (d).
"(1) It is a violation of
"(A) tuna harvested on the high seas by a vessel engaged in driftnet fishing; or
"(B) tuna harvested in the eastern tropical Pacific Ocean by a vessel using purse seine nets which do not meet the requirements for being considered dolphin safe under paragraph (2).
"(2) For purposes of paragraph (1)(B), a tuna product that contains tuna harvested in the eastern tropical Pacific Ocean by a fishing vessel using purse seine nets is dolphin safe if—
"(A) the vessel is of a type and size that the Secretary has determined is not capable of deploying its purse seine nets on or to encircle dolphin; or
"(B)(i) the product is accompanied by a written statement executed by the captain of the vessel which harvested the tuna certifying that no tuna were caught on the trip in which such tuna were harvested using a purse seine net intentionally deployed on or to encircle dolphin;
"(ii) the product is accompanied by a written statement executed by—
"(I) the Secretary or the Secretary's designee, or
"(II) a representative of the Inter-American Tropical Tuna Commission,
which states that there was an approved observer on board the vessel during the entire trip and that purse seine nets were not intentionally deployed during the trip on or to encircle dolphin; and
"(iii) the statements referred to in clauses (i) and (ii) are endorsed in writing by each exporter, importer, and processor of the product."
Subsec. (f).
Subsec. (g).
Subsecs. (h), (i).
"(h)
"(i)
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Commerce of House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001.
Effective Date of 1997 Amendment
For effective date of amendment by
1 See References in Text note below.
2 So in original. Probably should be "this subsection".
§1386. Stock assessments
(a) In general
Not later than August 1, 1994, the Secretary shall, in consultation with the appropriate regional scientific review group established under subsection (d), prepare a draft stock assessment for each marine mammal stock which occurs in waters under the jurisdiction of the United States. Each draft stock assessment, based on the best scientific information available, shall—
(1) describe the geographic range of the affected stock, including any seasonal or temporal variation in such range;
(2) provide for such stock the minimum population estimate, current and maximum net productivity rates, and current population trend, including a description of the information upon 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
(3) After consideration of the best scientific information available, the advice of the appropriate regional scientific review group established under subsection (d), 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).
(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
(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
(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
(
Editorial Notes
Amendments
2022—Subsec. (d)(2).
§1387. Taking of marine mammals incidental to commercial fishing operations
(a) In general
(1) Effective on April 30, 1994, and except as provided in
(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 (
(3) Sections 1 1374(h) of this title and subchapter IV, 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 (
(5) Except as provided in
(6)
(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).
(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
(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
(C) Except as provided in subsection (a), 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
(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); 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), 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) 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
(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
(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); 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 (
(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).
(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), 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) 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
(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), 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
(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
(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
(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
(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
(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
(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), 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
(B) The draft stock assessment published for such stock under
(C) Upon publication of a final stock assessment for such stock under
(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
(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 (
(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) 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 (
(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), any person who violates this section shall be subject to the provisions of
(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
(
Editorial Notes
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
Act of November 7, 1986, referred to in subsec. (a)(4), is
Amendments
2022—Subsec. (f)(6)(D).
1996—Subsecs. (a)(1), (c)(2)(B)(ii), (l).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
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
North Atlantic Right Whales and Regulations
"(a)
"(1) throughout the period described in the preceding sentence, in consultation with affected States and fishing industry participants, promote the innovation and adoption of gear technologies in the fisheries described in the preceding sentence, in order to implement additional whale protection measures by December 31, 2028;
"(2) promulgate new regulations for the American lobster and Jonah crab fisheries consistent with the Marine Mammal Protection Act of 1972 (
"(3) in consultation with affected States, submit an annual report to Congress on the status of North Atlantic Right Whales, the actions taken and plans to implement measures expected to not exceed Potential Biological Removal by December 31, 2028, the amount of serious injury and mortality by fishery and country, and the proportion of the American lobster and Jonah crab fisheries that have transitioned to innovative gear technologies that reduce harm to the North Atlantic Right Whale.
"(b)
1 So in original. Probably should be "Section".
§1388. Marine mammal cooperative agreements in Alaska
(a) In general
The Secretary may enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and provide co-management of subsistence use by Alaska Natives.
(b) Grants
Agreements entered into under this section may include grants to Alaska Native organizations for, among other purposes—
(1) collecting and analyzing data on marine mammal populations;
(2) monitoring the harvest of marine mammals for subsistence use;
(3) participating in marine mammal research conducted by the Federal Government, States, academic institutions, and private organizations; and
(4) developing marine mammal co-management structures with Federal and State agencies.
(c) Effect of jurisdiction
Nothing in this section is intended or shall be construed—
(1) as authorizing any expansion or change in the respective jurisdiction of Federal, State, or tribal governments over fish and wildlife resources; or
(2) as altering in any respect the existing political or legal status of Alaska Natives, or the governmental or jurisdictional status of Alaska Native communities or Alaska Native entities.
(d) Authorization of appropriations
There are authorized to be appropriated for the purposes of carrying out this section—
(1) $1,500,000 to the Secretary of Commerce for each of the fiscal years 1994, 1995, 1996, 1997, 1998, and 1999; and
(2) $1,000,000 to the Secretary of the Interior for each of the fiscal years 1994, 1995, 1996, 1997, 1998, and 1999.
The amounts authorized to be appropriated under this subsection are in addition to the amounts authorized to be appropriated under
(
§1389. Pacific Coast Task Force; Gulf of Maine
(a) Pinniped removal authority
Notwithstanding any other provision of this subchapter, the Secretary may permit the intentional lethal taking of pinnipeds in accordance with this section.
(b) Application
(1) A State may apply to the Secretary to authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which—
(A) have been listed as threatened species or endangered species under the Endangered Species Act of 1973 (
(B) the Secretary finds are approaching threatened species or endangered species status (as those terms are defined in that Act); or
(C) migrate through the Ballard Locks at Seattle, Washington.
(2) Any such application shall include a means of identifying the individual pinniped or pinnipeds, and shall include a detailed description of the problem interaction and expected benefits of the taking.
(c) Actions in response to application
(1) Within 15 days of receiving an application, the Secretary shall determine whether the application has produced sufficient evidence to warrant establishing a Pinniped-Fishery Interaction Task Force to address the situation described in the application. If the Secretary determines sufficient evidence has been provided, the Secretary shall establish a Pinniped-Fishery Interaction Task Force and publish a notice in the Federal Register requesting public comment on the application.
(2) A Pinniped-Fishery Interaction Task Force established under paragraph (1) shall consist of designated employees of the Department of Commerce, scientists who are knowledgeable about the pinniped interaction that the application addresses, representatives of affected conservation and fishing community organizations, Indian Treaty tribes, the States, and such other organizations as the Secretary deems appropriate.
(3) Within 60 days after establishment, and after reviewing public comments in response to the Federal Register notice under paragraph (1), the Pinniped-Fishery Interaction Task Force shall—
(A) recommend to the Secretary whether to approve or deny the proposed intentional lethal taking of the pinniped or pinnipeds, including along with the recommendation a description of the specific pinniped individual or individuals, the proposed location, time, and method of such taking, criteria for evaluating the success of the action, and the duration of the intentional lethal taking authority; and
(B) suggest nonlethal alternatives, if available and practicable, including a recommended course of action.
(4) Within 30 days after receipt of recommendations from the Pinniped-Fishery Interaction Task Force, the Secretary shall either approve or deny the application. If such application is approved, the Secretary shall immediately take steps to implement the intentional lethal taking, which shall be performed by Federal or State agencies, or qualified individuals under contract to such agencies.
(5) After implementation of an approved application, the Pinniped-Fishery Interaction Task Force shall evaluate the effectiveness of the permitted intentional lethal taking or alternative actions implemented. If implementation was ineffective in eliminating the problem interaction, the Task Force shall recommend additional actions. If the implementation was effective, the Task Force shall so advise the Secretary, and the Secretary shall disband the Task Force.
(d) Considerations
In considering whether an application should be approved or denied, the Pinniped-Fishery Interaction Task Force and the Secretary shall consider—
(1) population trends, feeding habits, the location of the pinniped interaction, how and when the interaction occurs, and how many individual pinnipeds are involved;
(2) past efforts to nonlethally deter such pinnipeds, and whether the applicant has demonstrated that no feasible and prudent alternatives exist and that the applicant has taken all reasonable nonlethal steps without success;
(3) the extent to which such pinnipeds are causing undue injury or impact to, or imbalance with, other species in the ecosystem, including fish populations; and
(4) the extent to which such pinnipeds are exhibiting behavior that presents an ongoing threat to public safety.
(e) Limitation
The Secretary shall not approve the intentional lethal taking of any pinniped from a species or stock that is—
(1) listed as a threatened species or endangered species under the Endangered Species Act of 1973 (
(2) depleted under this chapter; or
(3) a strategic stock.
(f) Temporary marine mammal removal authority on the waters of the Columbia River or its tributaries
(1) Removal authority
Notwithstanding any other provision of this chapter, the Secretary may issue a permit to an eligible entity to authorize the intentional lethal taking on the waters of the Columbia River and its tributaries of individually identifiable sea lions that are part of a population or stock that is not categorized under this chapter as depleted or strategic for the purpose of protecting—
(A) species of salmon, steelhead, or eulachon that are listed as endangered species or threatened species under the Endangered Species Act of 1973 (
(B) species of lamprey or sturgeon that are not so listed as endangered or threatened but are listed as a species of concern.
(2) Permit process
(A) In general
An eligible entity may apply to the Secretary for a permit under this subsection.
(B) Timelines and procedures of application
The timelines and procedures described in subsection (c) shall apply to applications for permits under this subsection in the same manner such timelines apply to applications under subsection (b).
(C) Coordination
The Secretary shall establish procedures to coordinate issuance of permits under this subsection, including application procedures and timelines, delegation and revocation of permits to and between eligible entities, monitoring, periodic review, and geographic, seasonal take, and species-specific considerations.
(D) Duration of permit
A permit under this subsection shall be effective for a period of not more than 5 years, and may be renewed by the Secretary.
(3) Limitations on annual takings
The Secretary shall apply the process for determining limitations on annual take of sea lions under subsection (c) to determinations on limitations under this subsection, and the cumulative number of sea lions authorized to be taken each year under all permits in effect under this subsection shall not exceed 10 percent of the annual potential biological removal level for sea lions.
(4) Qualified individuals
Intentional lethal takings under this subsection shall—
(A) be humane within the meaning of such term under
(B) require that capture, husbandry, transportation, and euthanasia protocols are based on standards propagated by an Institutional Animal Care and Use Committee and that primary euthanasia be limited to humane chemical methods; and
(C) be implemented by agencies or qualified individuals described in subsection (c)(4), or by individuals employed by the eligible entities described in paragraph (6).
(5) Suspension of permitting authority
If, 5 years after December 18, 2018, the Secretary, after consulting with State and tribal fishery managers, determines that lethal removal authority is no longer necessary to protect salmonid and other fish species from sea lion predation, the Secretary shall suspend the issuance of permits under this subsection.
(6) Eligible entity defined
(A) Definition
In this subsection, the term "eligible entity" means—
(i) with respect to removal in the mainstem of the Columbia River, from river mile 112 to the McNary Dam and its tributaries in the State of Washington, and its tributaries in the State of Oregon above Bonneville Dam, the State of Washington, the State of Oregon, and the State of Idaho;
(ii) with respect to removal in the mainstem Columbia River from river mile 112 to the McNary Dam and its tributaries within the State of Washington and in any of its tributaries above Bonneville Dam within the State of Oregon, the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Confederated Tribes and Bands of the Yakama Nation; and
(iii) with respect to removal in the Willamette River and other tributaries of the Columbia River within the State of Oregon below Bonneville Dam, a committee recognized by the Secretary under subparagraph (D).
(B) Delegation authority
The Secretary may allow eligible entities described in clause (i) or (ii) of subparagraph (A) to delegate their authority under a permit under this subsection to the Columbia River Intertribal Fish Commission for removal in the mainstem of the Columbia River above river mile 112 and below McNary Dam, in the Columbia River tributaries in the State of Washington, or in tributaries within the State of Oregon above Bonneville Dam and below McNary Dam.
(C) Additional delegation authority
The Secretary may allow an eligible entity described in subparagraph (A)(i) to delegate its authority under a permit under this subsection to any entity described in subclause (i) or (ii) of subparagraph (A) with respect to removal in the mainstem of the Columbia River above river mile 112 and below McNary Dam, in the Columbia River tributaries in the State of Washington, or in tributaries in the State of Oregon above Bonneville Dam and below McNary Dam.
(D) Committee requirements
(i) In general
The Secretary shall recognize a committee established in accordance with this subparagraph as being eligible for a permit under this subsection, for purposes of subparagraph (A)(iii).
(ii) Membership
A committee established under this subparagraph shall consist of the State of Oregon and each of the following:
(I) The Confederated Tribes of Siletz Indians or the Confederated Tribes of the Grand Ronde Community, or both.
(II) The Confederated Tribes of the Warm Springs or the Confederated Tribes of the Umatilla Reservation, or both.
(iii) Majority agreement required
A committee established under this subparagraph may take action with respect to a permit application and removal under this subsection only with majority agreement by the committee members.
(iv) Nonapplicability of FACA
The Federal Advisory Committee Act (5 U.S.C. App.) 1 shall not apply to a committee established under this subparagraph.
(7) Individual exception
For purposes of this subsection, any sea lion located upstream of river mile 112 and downstream of McNary Dam, or in any tributary to the Columbia River that includes spawning habitat of threatened or endangered salmon or steelhead is deemed to be individually identifiable.
(8) Significant negative impact exception
For purposes of this subsection, any sea lion located in the mainstem of the Columbia River upstream of river mile 112 and downstream of McNary Dam, or in any tributary to the Columbia River that includes spawning habitat of threatened or endangered salmon or steelhead is deemed to be having a significant negative impact, within the meaning of subsection (b)(1).
(9) Definition
In this subsection, the term "Indian tribe" has the meaning given such term in
(g) Regionwide pinniped-fishery interaction study
(1) The Secretary may conduct a study, of not less than three high predation areas in anadromous fish migration corridors within the Northwest Region of the National Marine Fisheries Service, on the interaction between fish and pinnipeds. In conducting the study, the Secretary shall consult with other State and Federal agencies with expertise in pinniped-fishery interaction. The study shall evaluate—
(A) fish behavior in the presence of predators generally;
(B) holding times and passage rates of anadromous fish stocks in areas where such fish are vulnerable to predation;
(C) whether additional facilities exist, or could be reasonably developed, that could improve escapement for anadromous fish; and
(D) other issues the Secretary considers relevant.
(2) Subject to the availability of appropriations, the Secretary may, not later than 18 months after the commencement of the study under this subsection, transmit a report on the results of the study to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives.
(3) The study conducted under this subsection may not be used by the Secretary as a reason for delaying or deferring a determination or consideration under subsection (c) or (d).
(h) Gulf of Maine Task Force
The Secretary shall establish a Pinniped-Fishery Interaction Task Force to advise the Secretary on issues or problems regarding pinnipeds interacting in a dangerous or damaging manner with aquaculture resources in the Gulf of Maine. No later than 2 years from April 30, 1994, the Secretary shall after notice and opportunity for public comment 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 recommended available alternatives to mitigate such interactions.
(i) Requirements applicable to task forces
(1) Any task force established under this section—
(A) shall to the maximum extent practicable, consist of an equitable balance among representatives of resource user interests and nonuser interests; and
(B) shall not be subject to
(2) Meetings of any task force established under this section shall be open to the public, and prior notice of those meetings shall be given to the public by the task force in a timely fashion.
(j) Gulf of Maine harbor porpoise
(1) Nothing in
(2) In developing and implementing a take reduction plan under
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsecs. (b)(1)(A), (B), (e)(1), and (f)(1)(A), is
The Federal Advisory Committee Act, referred to in subsec. (f)(6)(D)(iv), is
Amendments
2022—Subsec. (i)(1)(B).
2018—Subsec. (f).
Statutory Notes and Related Subsidiaries
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
Treaty Rights of Federally Recognized Indian Tribes
1 See References in Text note below.
§1390. Assistance to ports to reduce impacts of vessel traffic and port operations on marine mammals
(a) In general
Not later than 180 days after December 23, 2022, the Under Secretary, in consultation with the Director of the United States Fish and Wildlife Service, the Secretary, the Secretary of Defense, and the Administrator of the Maritime Administration, shall establish a grant program to provide assistance to eligible entities to develop and implement mitigation measures that will lead to a quantifiable reduction in threats to marine mammals from vessel traffic, including shipping activities and port operations.
(b) Eligible uses
Assistance provided under subsection (a) may be used to develop, assess, and carry out activities that reduce threats to marine mammals by—
(1) reducing underwater stressors related to marine traffic;
(2) reducing mortality and serious injury from vessel strikes and other physical disturbances;
(3) monitoring sound;
(4) reducing vessel interactions with marine mammals;
(5) conducting other types of monitoring that are consistent with reducing the threats to, and enhancing the habitats of, marine mammals; or
(6) supporting State agencies and Tribal governments in developing the capacity to receive assistance under this section through education, training, information sharing, and collaboration to participate in the grant program under this section.
(c) Priority
The Under Secretary shall prioritize providing assistance under subsection (a) for projects that—
(1) are based on the best available science with respect to methods to reduce threats to marine mammals;
(2) collect data on the effects of such methods and the reduction of such threats;
(3) assist ports that pose a higher relative threat to marine mammals listed as threatened or endangered under the Endangered Species Act of 1973 (
(4) are in close proximity to areas in which threatened or endangered cetaceans are known to experience other stressors; or
(5) allow eligible entities to conduct risk assessments and to track progress toward threat reduction.
(d) Outreach
The Under Secretary, in coordination with the Secretary, the Administrator of the Maritime Administration, and the Director of the United States Fish and Wildlife Service, as appropriate, shall conduct coordinated outreach to ports to provide information with respect to—
(1) how to apply for assistance under subsection (a);
(2) the benefits of such assistance; and
(3) facilitation of best practices and lessons, including the best practices and lessons learned from activities carried out using such assistance.
(e) Report required
Not less frequently than annually, the Under Secretary shall make available to the public on a publicly accessible website of the National Oceanic and Atmospheric Administration a report that includes the following information:
(1) The name and location of each entity to which assistance was awarded under subsection (a) during the year preceding submission of the report.
(2) The amount of each such award.
(3) A description of the activities carried out with each such award.
(4) An estimate of the likely impact of such activities on the reduction of threats to marine mammals.
(f) Definition of eligible entity
In this section, the term "eligible entity" means—
(1) a port authority for a port;
(2) a State, regional, local, or Tribal government, or an Alaska Native or Native Hawaiian entity that has jurisdiction over a maritime port authority or a port;
(3) an academic institution, research institution, or nonprofit organization working in partnership with a port; or
(4) a consortium of entities described in paragraphs (1) through (3).
(g) Funding
From funds otherwise appropriated to the Under Secretary, $10,000,000 is authorized to carry out this section for each of fiscal years 2023 through 2028.
(h) Savings clause
An activity may not be carried out under this section if the Secretary of Defense, in consultation with the Under Secretary, determines that the activity would negatively impact the defense readiness or the national security of the United States.
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (c)(3), is
Codification
Section was enacted as part of the Don Young Coast Guard Authorization Act of 2022 and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Pilot Program To Establish a Cetacean Desk for Puget Sound Region
"(a)
"(1)
"(A) located and manned within the Puget Sound Vessel Traffic Service; and
"(B) designed—
"(i) to improve coordination with the maritime industry to reduce the risk of vessel impacts on large cetaceans, including impacts from vessel strikes, disturbances, and other sources; and
"(ii) to monitor the presence and location of large cetaceans during the months during which such large cetaceans are present in Puget Sound, the Strait of Juan de Fuca, and the United States portion of the Salish Sea.
"(2)
"(A) shall—
"(i) be for a duration of 4 years; and
"(ii) require not more than 1 full-time equivalent position, who shall also contribute to other necessary Puget Sound Vessel Traffic Service duties and responsibilities as needed; and
"(B) may be supported by other existing Federal employees, as appropriate.
"(b)
"(1)
"(2)
"(c)
"(d)
"(e)
"(1)
"(2)
"(f)
"(1) shall implement local variances, as authorized by subsection (c) of
"(2) may enter into cooperative agreements, in accordance with subsection (d) of such section, with Federal, State, Tribal, and local officials to reduce the likelihood of vessel interactions with protected large cetaceans, which may include—
"(A) communicating marine mammal protection guidance to vessels;
"(B) training on requirements imposed by local, State, Tribal, and Federal laws and regulations and guidelines concerning—
"(i) vessel buffer zones;
"(ii) vessel speed;
"(iii) seasonal no-go zones for vessels;
"(iv) protected areas, including areas designated as critical habitat, as applicable to marine operations; and
"(v) any other activities to reduce the direct and indirect impact of vessel traffic on large cetaceans;
"(C) training to understand, utilize, and communicate large cetacean location data; and
"(D) training to understand and communicate basic large cetacean detection, identification, and behavior, including—
"(i) cues of the presence of large cetaceans such as spouts, water disturbances, breaches, or presence of prey;
"(ii) important feeding, breeding, calving, and rearing habitats that co-occur with areas of high risk of vessel strikes;
"(iii) seasonal large cetacean migration routes that co-occur with areas of high risk of vessel strikes; and
"(iv) areas designated as critical habitat for large cetaceans.
"(g)
"(1) evaluates the functionality, utility, reliability, responsiveness, and operational status of the Cetacean Desk established under this section, including a quantification of reductions in vessel strikes to large cetaceans as a result of the pilot program;
"(2) assesses the efficacy of communication between the Cetacean Desk and the maritime industry and provides recommendations for improvements;
"(3) evaluates the integration and interoperability of existing data collection methods, as well as public data, into the Cetacean Desk operations;
"(4) assesses the efficacy of collaboration and stakeholder engagement with Tribal governments, the State of Washington, institutions of higher education, the maritime industry, ports in the Puget Sound region, and nongovernmental organizations; and
"(5) evaluates the progress, performance, and implementation of guidance and training procedures for Puget Sound Vessel Traffic Service personnel, as required under subsection (f)."
[For definition of "Secretary" as used in section 11304 of
[For definitions of terms as used in section 11304 of
Definitions
For definition of "Secretary" as used in this section, see section 11002 of div. K of
"(1)
"(A) the Committee on Commerce, Science, and Transportation of the Senate; and
"(B) the Committees on Transportation and Infrastructure and Natural Resources of the House of Representatives.
"(2)
"(A) with biological and physical oceanographic features that aggregate Calanus finmarchicus; and
"(B) where North Atlantic right whales foraging aggregations have been well documented.
"(3)
"(4)
"(5)
"(A) the suborder Mysticeti;
"(B) the genera Physeter; or
"(C) the genera Orcinus.
"(6)
"(7)
"(8)
"(9)
"(10)
§1391. Near real-time monitoring and mitigation program for large cetaceans
(a) Establishment
The Under Secretary, in coordination with the heads of other relevant Federal agencies, shall design and deploy a cost-effective, efficient, and results-oriented near real-time monitoring and mitigation program (referred to in this section as the "Program") for threatened or endangered cetaceans.
(b) Purpose
The purpose of the Program shall be to reduce the risk to large cetaceans posed by vessel collisions and to minimize other impacts on large cetaceans through the use of near real-time location monitoring and location information.
(c) Requirements
The Program shall—
(1) prioritize species of large cetaceans for which impacts from vessel collisions are of particular concern;
(2) prioritize areas where such impacts are of particular concern;
(3) be capable of detecting and alerting ocean users and enforcement agencies of the probable location of large cetaceans on an actionable real-time basis, including through real-time data whenever possible;
(4) inform sector-specific mitigation protocols to effectively reduce takes (as defined in section 216.3 of title 50, Code of Federal Regulations, or successor regulations) of large cetaceans;
(5) integrate technology improvements; and
(6) be informed by technologies, monitoring methods, and mitigation protocols developed under the pilot project required under subsection (d).
(d) Pilot project
(1) Establishment
In carrying out the Program, the Under Secretary shall first establish a pilot monitoring and mitigation project (referred to in this section as the "pilot project") for North Atlantic right whales for the purposes of informing the Program.
(2) Requirements
In designing and deploying the pilot project, the Under Secretary, in coordination with the heads of other relevant Federal agencies, shall, using the best available scientific information, identify and ensure coverage of—
(A) core foraging habitats; and
(B) important feeding, breeding, calving, rearing, or migratory habitats of North Atlantic right whales that co-occur with areas of high risk of mortality or serious injury of such whales from vessels, vessel strikes, or disturbance.
(3) Components
Not later than 3 years after December 23, 2022, the Under Secretary, in consultation with relevant Federal agencies and Tribal governments, and with input from affected stakeholders, shall design and deploy a near real-time monitoring system for North Atlantic right whales that—
(A) comprises the best available detection power, spatial coverage, and survey effort to detect and localize North Atlantic right whales within habitats described in paragraph (2);
(B) is capable of detecting North Atlantic right whales, including visually and acoustically;
(C) uses dynamic habitat suitability models to inform the likelihood of North Atlantic right whale occurrence habitats described in paragraph (2) at any given time;
(D) coordinates with the Integrated Ocean Observing System of the National Oceanic and Atmospheric Administration and Regional Ocean Partnerships to leverage monitoring assets;
(E) integrates historical data;
(F) integrates new near real-time monitoring methods and technologies as such methods and technologies become available;
(G) accurately verifies and rapidly communicates detection data to appropriate ocean users;
(H) creates standards for contributing, and allows ocean users to contribute, data to the monitoring system using comparable near real-time monitoring methods and technologies;
(I) communicates the risks of injury to large cetaceans to ocean users in a manner that is most likely to result in informed decision-making regarding the mitigation of those risks; and
(J) minimizes additional stressors to large cetaceans as a result of the information available to ocean users.
(4) Reports
(A) Preliminary report
(i) In general
Not later than 2 years after December 23, 2022, the Under Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Natural Resources of the House of Representatives, and make available to the public, a preliminary report on the pilot project.
(ii) Elements
The report required under clause (i) shall include the following:
(I) A description of the monitoring methods and technology in use or planned for deployment under the pilot project.
(II) An analysis of the efficacy of the methods and technology in use or planned for deployment for detecting North Atlantic right whales.
(III) An assessment of the manner in which the monitoring system designed and deployed under this subsection is directly informing and improving the management, health, and survival of North Atlantic right whales.
(IV) A prioritized identification of technology or research gaps.
(V) A plan to communicate the risks of injury to large cetaceans to ocean users in a manner that is most likely to result in informed decision making regarding the mitigation of such risks.
(VI) Any other information on the potential benefits and efficacy of the pilot project the Under Secretary considers appropriate.
(B) Final report
(i) In general
Not later than 6 years after December 23, 2022, the Under Secretary, in coordination with the heads of other relevant Federal agencies, shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Natural Resources of the House of Representatives, and make available to the public, a final report on the pilot project.
(ii) Elements
The report required under clause (i) shall—
(I) address the preliminary report required under subparagraph (A); and
(II) include—
(aa) an assessment of the benefits and efficacy of the pilot project;
(bb) a strategic plan to expand the pilot project to provide near real-time monitoring and mitigation measures—
(AA) to additional large cetaceans of concern for which such measures would reduce risk of serious injury or death; and
(BB) in important feeding, breeding, calving, rearing, or migratory habitats of large cetaceans that co-occur with areas of high risk of mortality or serious injury from vessel strikes or disturbance;
(cc) a budget and description of funds necessary to carry out such plan;
(dd) a prioritized plan for acquisition, deployment, and maintenance of monitoring technologies; and
(ee) the locations or species to which such plan would apply.
(e) Mitigation protocols
The Under Secretary, in consultation with the Secretary, the Secretary of Defense, the Secretary of Transportation, and the Secretary of the Interior, and with input from affected stakeholders, shall develop and deploy mitigation protocols that make use of any monitoring system designed and deployed under this section to direct sector-specific mitigation measures that avoid and significantly reduce risk of serious injury and mortality to North Atlantic right whales.
(f) Access to data
The Under Secretary shall provide access to data generated by any monitoring system designed and deployed under this section for purposes of scientific research and evaluation and public awareness and education, including through the Right Whale Sighting Advisory System of the National Oceanic and Atmospheric Administration and WhaleMap or other successor public website portals, subject to review for national security considerations.
(g) Additional authority
The Under Secretary may enter into and perform such contracts, leases, grants, or cooperative agreements as may be necessary to carry out this section on such terms as the Under Secretary considers appropriate, consistent with the Federal Acquisition Regulation.
(h) Savings clause
An activity may not be carried out under this section if the Secretary of Defense, in consultation with the Under Secretary, determines that the activity would negatively impact the defense readiness or the national security of the United States.
(i) Funding
From funds otherwise appropriated to the Under Secretary $5,000,000 is authorized to support development, deployment, application, and ongoing maintenance of the Program and to otherwise carry out this section for each of fiscal years 2023 through 2027.
(
Editorial Notes
Codification
Section was enacted as part of the Don Young Coast Guard Authorization Act of 2022 and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Definitions
For definition of "Secretary" as used in this section, see section 11002 of div. K of
For definitions of terms used in this section, see section 11301 of div. K of
§1392. Monitoring ocean soundscapes
(a) In general
The Under Secretary shall maintain and expand an ocean soundscape development program to—
(1) award grants to expand the deployment of Federal and non-Federal observing and data management systems capable of collecting measurements of underwater sound for purposes of monitoring and analyzing baselines and trends in the underwater soundscape to protect and manage marine life;
(2) continue to develop and apply standardized forms of measurements to assess sounds produced by marine animals, physical processes, and anthropogenic activities; and
(3) after coordinating with the Secretary of Defense, coordinate and make accessible to the public the datasets, modeling and analysis, and user-driven products and tools resulting from observations of underwater sound funded through grants awarded under paragraph (1).
(b) Coordination
The program described in subsection (a) shall—
(1) include the Ocean Noise Reference Station Network of the National Oceanic and Atmospheric Administration and the National Park Service;
(2) use and coordinate with the Integrated Ocean Observing System; and
(3) coordinate with the Regional Ocean Partnerships and the Director of the United States Fish and Wildlife Service, as appropriate.
(c) Priority
In awarding grants under subsection (a), the Under Secretary shall consider the geographic diversity of the recipients of such grants.
(d) Savings clause
An activity may not be carried out under this section if the Secretary of Defense, in consultation with the Under Secretary, determines that the activity would negatively impact the defense readiness or the national security of the United States.
(e) Funding
From funds otherwise appropriated to the Under Secretary, $1,500,000 is authorized for each of fiscal years 2023 through 2028 to carry out this section.
(
Editorial Notes
Codification
Section was enacted as part of the Don Young Coast Guard Authorization Act of 2022 and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Definitions
For definitions of terms used in this section, see section 11301 of div. K of
§1393. Conservation and mitigation assistance
(a) Assistance
(1) In general
Not later than 180 days after December 29, 2022, the Secretary of Commerce, acting through the Under Secretary of Commerce for Oceans and Atmosphere (in this title 1 referred to as the "Under Secretary") shall establish a program to provide competitive financial assistance, on an annual basis, and cooperative agreements including multiyear grants and direct payment, to eligible entities for eligible uses, such as projects designed to reduce the lethal and sub-lethal effects of human activities on North Atlantic right whales.
(2) Use of existing authorities
Assistance provided under this section shall be carried out in a manner consistent with authorities available to the Secretary under the Endangered Species Act of 1973 (
(3) Cooperative agreements
The Under Secretary may enter into cooperative agreements with the National Fish and Wildlife Foundation established by the National Fish and Wildlife Foundation Establishment Act (
(b) Eligible entities
An entity is an eligible entity for purposes of assistance awarded under subsection (a) if the entity is—
(1) a relevant port authority for a port;
(2) a relevant State, regional, local, or Tribal government;
(3) any other individual or entity, as determined appropriate by the Under Secretary, including—
(A) an owner or operator of a vessel, as defined under
(B) participants within sectors of the maritime industry, such as boating, shipping, fishing, fishing gear and rope manufacturing, and other maritime activities;
(4) a nonprofit organization or research institution with expertise in commercial fisheries, gear innovation, and North Atlantic right whale conservation; or
(5) a consortium of entities described in paragraphs (1) through (4).
(c) Eligible uses
Assistance awarded under subsection (a) may be used to develop, assess, and carry out activities that reduce human induced threats to North Atlantic right whales, including—
(1) funding research to identify, deploy, or test innovative gear technologies;
(2) subsidizing acquisition of innovative gear technologies to improve adoption of those technologies by fisheries participants, which may include direct payment to fisheries participants;
(3) training for fisheries participants to improve deployment, safety, and adoption of innovative gear technologies;
(4) funding for monitoring necessary to support dynamic management of fisheries, vessel traffic, or other needs; and
(5) other uses as determined by the Under Secretary in consultation with relevant eligible entities.
(d) Priority
In determining whether to fund project proposals under this section, the Under Secretary shall prioritize projects—
(1) with a substantial likelihood of reducing lethal and sub-lethal effects on North Atlantic right whales from fishing gear entanglements or vessel collisions;
(2) that include cooperation with fishing industry participants or other private sector stakeholders; and
(3) that demonstrate, or have the potential to provide, economic benefits to small businesses based in the United States.
(e) Prohibited uses
(1) In general
Except as provided in paragraph (2), funds awarded under this section may not be used to distribute resources to an entity or individual that is not a United States person (as defined in
(2) Exception
Funds awarded under this section may be used to distribute resources to a partnership that includes an entity or individual that is not a United States person (as defined in
(f) Project reporting
(1) In general
Each individual or entity that receives assistance under this section for a project shall submit to the Under Secretary periodic reports (at such intervals as the Under Secretary may require) that include all information that the Under Secretary, after consultation with other government officials, determines is necessary to evaluate the progress and success of the project for the purposes of ensuring positive results, assessing problems, and fostering improvements.
(2) Availability to the public
Reports under paragraph (1) shall be made available to the public in a timely manner.
(
Editorial Notes
References in Text
This title, referred to in subsec. (a)(1), (3), means title II of div. JJ of
The Endangered Species Act of 1973, referred to in subsec. (a)(2), is
The Marine Mammal Protection Act of 1972, referred to in subsec. (a)(2), is
The National Fish and Wildlife Foundation Establishment Act, referred to in subsec. (a)(3), is
Codification
Section was enacted as part of the Consolidated Appropriations Act, 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Report to Congress
Acceptance and Use of Donations
1 See References in Text note below.
SUBCHAPTER III—MARINE MAMMAL COMMISSION
§1401. Establishment
(a) Designation
There is hereby established the Marine Mammal Commission (hereafter referred to in this subchapter as the "Commission").
(b) Membership and term of office
(1) Effective September 1, 1982, the Commission shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate. The President shall make his selection from a list of individuals knowledgeable in the fields of marine ecology and resource management, and who are not in a position to profit from the taking of marine mammals. Such list shall be submitted to him by the Chairman of the Council on Environmental Quality and unanimously agreed to by that Chairman, the Secretary of the Smithsonian Institution, the Director of the National Science Foundation and the Chairman of the National Academy of Sciences. No member of the Commission may, during his period of service on the Commission, hold any other position as an officer or employee of the United States except as a retired officer or retired civilian employee of the United States.
(2) The term of office for each member shall be three years; except that of the members initially appointed to the Commission, the term of one member shall be for one year, the term of one member shall be for two years, and the term of one member shall be for three years. No member is eligible for reappointment; except that any member appointed to fill a vacancy occurring before the expiration of the term for which his predecessor was appointed (A) shall be appointed for the remainder of such term, and (B) is eligible for reappointment for one full term. A member may serve after the expiration of his term until his successor has taken office.
(c) Chairman
The President shall designate a Chairman of the Commission (hereafter referred to in this subchapter as the "Chairman") from among its members.
(d) Compensation; reimbursement for travel expenses
Members of the Commission shall each be compensated at a rate equal to the daily equivalent of the rate for GS–18 of the General Schedule under
(e) Executive Director
The Commission shall have an Executive Director, who shall be appointed (without regard to the provisions of title 5 governing appointments in the competitive service) by the Chairman with the approval of the Commission and shall be paid at a rate not in excess of the rate for GS–18 of the General Schedule under
(
Editorial Notes
Amendments
1984—Subsec. (b)(1).
1982—Subsec. (b)(1).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
References in Other Laws to GS–16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of
§1402. Duties of Commission
(a) Reports and recommendations
The Commission shall—
(1) undertake a review and study of the activities of the United States pursuant to existing laws and international conventions relating to marine mammals, including, but not limited to, the International Convention for the Regulation of Whaling, the Whaling Convention Act of 1949 [
(2) conduct a continuing review of the condition of the stocks of marine mammals, of methods for their protection and conservation, of humane means of taking marine mammals, of research programs conducted or proposed to be conducted under the authority of this chapter, and of all applications for permits for scientific research, public display, or enhancing the survival or recovery of a species or stock;
(3) undertake or cause to be undertaken such other studies as it deems necessary or desirable in connection with its assigned duties as to the protection and conservation of marine mammals;
(4) recommend to the Secretary and to other Federal officials such steps as it deems necessary or desirable for the protection and conservation of marine mammals;
(5) recommend to the Secretary of State appropriate policies regarding existing international arrangements for the protection and conservation of marine mammals, and suggest appropriate international arrangements for the protection and conservation of marine mammals;
(6) recommend to the Secretary such revisions of the endangered species list and threatened species list published pursuant to
(7) recommend to the Secretary, other appropriate Federal officials, and Congress such additional measures as it deems necessary or desirable to further the policies of this chapter, including provisions for the protection of the Indians, Eskimos, and Aleuts whose livelihood may be adversely affected by actions taken pursuant to this chapter.
(b) Consultation with Secretary; reports to Secretary before publication
The Commission shall consult with the Secretary at such intervals as it or he may deem desirable, and shall provide each annual report required under section 1404 1 of this title, before submission to Congress, to the Secretary for comment.
(c) Availability of reports for public inspection
The reports and recommendations which the Commission makes shall be matters of public record and shall be available to the public at all reasonable times. All other activities of the Commission shall be matters of public record and available to the public in accordance with the provisions of
(d) Recommendations; explanation for nonadoption
Any recommendations made by the Commission to the Secretary and other Federal officials shall be responded to by those individuals within one hundred and twenty days after receipt thereof. Any recommendations which are not followed or adopted shall be referred to the Commission together with a detailed explanation of the reasons why those recommendations were not followed or adopted.
(
Editorial Notes
References in Text
The Whaling Convention Act of 1949, referred to in subsec. (a)(1), is act Aug. 9, 1950, ch. 653,
The Fur Seal Act of 1966, referred to in subsec. (a)(1), is
Amendments
1988—Subsec. (a)(2).
1981—Subsec. (b).
1973—Subsec. (a)(6).
Statutory Notes and Related Subsidiaries
Effective Date of 1973 Amendment
Amendment by
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
1 See References in Text note below.
§1403. Committee of Scientific Advisors on Marine Mammals
(a) Establishment; membership
The Commission shall establish, within ninety days after its establishment, a Committee of Scientific Advisors on Marine Mammals (hereafter referred to in this subchapter as the "Committee"). Such Committee shall consist of nine scientists knowledgeable in marine ecology and marine mammal affairs appointed by the Chairman after consultation with the Chairman of the Council on Environmental Quality, the Secretary of the Smithsonian Institution, the Director of the National Science Foundation, and the Chairman of the National Academy of Sciences.
(b) Compensation; reimbursement for travel expenses
Except for United States Government employees, members of the Committee shall each be compensated at a rate equal to the daily equivalent of the rate for GS–18 of the General Schedule under
(c) Consultation with Commission on studies and recommendations; explanation for nonadoption
The Commission shall consult with the Committee on all studies and recommendations which it may propose to make or has made, on research programs conducted or proposed to be conducted under the authority of this chapter, and on all applications for permits for scientific research. Any recommendations made by the Committee or any of its members which are not adopted by the Commission shall be transmitted by the Commission to the appropriate Federal agency and to the appropriate committees of Congress with a detailed explanation of the Commission's reasons for not accepting such recommendations.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See
References in Other Laws to GS–16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of
§1404. Omitted
Editorial Notes
Codification
Section,
§1405. Coordination with other Federal agencies
The Commission shall have access to all studies and data compiled by Federal agencies regarding marine mammals. With the consent of the appropriate Secretary or Agency head, the Commission may also utilize the facilities or services of any Federal agency and shall take every feasible step to avoid duplication of research and to carry out the purposes of this chapter.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1406. Administration
The Commission, in carrying out its responsibilities under this subchapter, may—
(1) employ and fix the compensation of such personnel;
(2) acquire, furnish, and equip such office space;
(3) enter into such contracts or agreements with, or provide such grants to, other organizations, both public and private;
(4) procure the services of such experts or consultants or an organization thereof as is authorized under
(5) incur such necessary expenses and exercise such other powers, as are consistent with and reasonably required to perform its functions under this subchapter; except that no fewer than 11 employees must be employed under paragraph (1) at any time. Financial and administrative services (including those related to budgeting, accounting, financial reporting, personnel, and procurement) shall be provided the Commission by the General Services Administration, for which payment shall be made in advance, or by reimbursement from funds of the Commission in such amounts as may be agreed upon by the Chairman and the Administrator of General Services.
(
Editorial Notes
Amendments
1984—Par. (5).
1981—Par. (3).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
§1407. Authorization of appropriations
There are authorized to be appropriated to the Marine Mammal Commission, for purposes of carrying out this subchapter, $1,500,000 for fiscal year 1994, $1,550,000 for fiscal year 1995, $1,600,000 for fiscal year 1996, $1,650,000 for fiscal year 1997, $1,700,000 for fiscal year 1998, and $1,750,000 for fiscal year 1999.
(
Editorial Notes
Prior Provisions
Provisions similar to those in this section were contained in
Amendments
1994—
1978—
1977—
Statutory Notes and Related Subsidiaries
Effective Date
Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of
SUBCHAPTER IV—INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
§1411. Findings and policy
(a) Findings
The Congress finds the following:
(1) The yellowfin tuna fishery of the eastern tropical Pacific Ocean has resulted in the deaths of millions of dolphins.
(2) Significant awareness and increased concern for the health and safety of dolphin populations has encouraged a change in fishing methods worldwide.
(3) United States tuna fishing vessels have led the world in the development of fishing methods to reduce dolphin mortalities in the eastern tropical Pacific Ocean and United States tuna processing companies have voluntarily promoted the marketing of tuna that is dolphin safe.
(4) Nations harvesting yellowfin tuna in the eastern tropical Pacific Ocean have demonstrated their willingness to participate in appropriate multilateral agreements to reduce dolphin mortality progressively to a level approaching zero through the setting of annual limits, with the goal of eliminating dolphin mortality in that fishery. Recognition of the International Dolphin Conservation Program will assure that the existing trend of reduced dolphin mortality continues; that individual stocks of dolphins are adequately protected; and that the goal of eliminating all dolphin mortality continues to be a priority.
(b) Policy
It is the policy of the United States to—
(1) eliminate the marine mammal mortality resulting from the intentional encirclement of dolphins and other marine mammals in tuna purse seine fisheries;
(2) support the International Dolphin Conservation Program and efforts within the Program to reduce, with the goal of eliminating, the mortality referred to in paragraph (1);
(3) ensure that the market of the United States does not act as an incentive to the harvest of tuna caught with driftnets or caught by purse seine vessels in the eastern tropical Pacific Ocean not operating in compliance with the International Dolphin Conservation Program;
(4) secure appropriate multilateral agreements to ensure that United States tuna fishing vessels shall have continued access to productive tuna fishing grounds in the South Pacific Ocean and elsewhere; and
(5) encourage observer coverage on purse seine vessels fishing for tuna outside of the eastern tropical Pacific Ocean in a fishery in which the Secretary has determined that a regular and significant association occurs between marine mammals and tuna, and in which tuna is harvested through the use of purse seine nets deployed on or to encircle marine mammals.
(
Editorial Notes
Codification
Another section 301 of
Amendments
1997—Subsec. (a)(4).
Subsec. (b)(2), (3).
"(2) secure appropriate multilateral agreements to reduce, and eventually eliminate, the mortality referred to in paragraph (1);
"(3) ensure that the market of the United States does not act as an incentive to the harvest of tuna caught in association with dolphins or with driftnets;".
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
§1412. International Dolphin Conservation Program
The Secretary of State, in consultation with the Secretary, shall seek to secure a binding international agreement to establish an International Dolphin Conservation Program that requires—
(1) that the total annual dolphin mortality in the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean shall not exceed 5,000 animals with a commitment and objective to progressively reduce dolphin mortality to a level approaching zero through the setting of annual limits;
(2) the establishment of a per-stock per-year dolphin mortality limit, to be in effect through calendar year 2000, at a level between 0.2 percent and 0.1 percent of the minimum population estimate, as calculated, revised, or approved by the Secretary;
(3) the establishment of a per-stock per-year dolphin mortality limit, beginning with the calendar year 2001, at a level less than or equal to 0.1 percent of the minimum population estimate as calculated, revised, or approved by the Secretary;
(4) that if a dolphin mortality limit is exceeded under—
(A) paragraph (1), all sets on dolphins shall cease for the applicable fishing year; and
(B) paragraph (2) or (3), all sets on the stocks covered under paragraph (2) or (3) and any mixed schools that contain any of those stocks shall cease for the applicable fishing year;
(5) a scientific review and assessment to be conducted in calendar year 1998 to—
(A) assess progress in meeting the objectives set for calendar year 2000 under paragraph (2); and
(B) as appropriate, consider recommendations for meeting these objectives;
(6) a scientific review and assessment to be conducted in calendar year 2000—
(A) to review the stocks covered under paragraph (3); and
(B) as appropriate to consider recommendations to further the objectives set under that paragraph;
(7) the establishment of a per vessel maximum annual dolphin mortality limit consistent with the established per-year mortality limits, as determined under paragraphs (1) through (3); and
(8) the provision of a system of incentives to vessel captains to continue to reduce dolphin mortality, with the goal of eliminating dolphin mortality.
(
Editorial Notes
Prior Provisions
A prior section 1412,
A prior section 302 of
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 8 of
§1413. Regulatory authority of Secretary
(a) Regulations
(1) The Secretary shall issue regulations, and revise those regulations as may be appropriate, to implement the International Dolphin Conservation Program.
(2)(A) The Secretary shall issue regulations to authorize and govern the taking of marine mammals in the eastern tropical Pacific Ocean, including any species of marine mammal designated as depleted under this chapter but not listed as endangered or threatened under the Endangered Species Act (
(B) Regulations issued under this section shall include provisions—
(i) requiring observers on each vessel;
(ii) requiring use of the backdown procedure or other procedures equally or more effective in avoiding mortality of, or serious injury to, marine mammals in fishing operations;
(iii) prohibiting intentional sets on stocks and schools in accordance with the International Dolphin Conservation Program;
(iv) requiring the use of special equipment, including dolphin safety panels in nets, monitoring devices as identified by the International Dolphin Conservation Program to detect unsafe fishing conditions that may cause high incidental dolphin mortality before nets are deployed by a tuna vessel, operable rafts, speedboats with towing bridles, floodlights in operable condition, and diving masks and snorkels;
(v) ensuring that the backdown procedure during sets of purse seine net on marine mammals is completed and rolling of the net to sack up has begun no later than 30 minutes before sundown;
(vi) banning the use of explosive devices in all purse seine operations;
(vii) establishing per vessel maximum annual dolphin mortality limits, total dolphin mortality limits and per-stock per-year mortality limits in accordance with the International Dolphin Conservation Program;
(viii) preventing the making of intentional sets on dolphins after reaching either the vessel maximum annual dolphin mortality limits, total dolphin mortality limits, or per-stock per-year mortality limits;
(ix) preventing the fishing on dolphins by a vessel without an assigned vessel dolphin mortality limit;
(x) allowing for the authorization and conduct of experimental fishing operations, under such terms and conditions as the Secretary may prescribe, for the purpose of testing proposed improvements in fishing techniques and equipment that may reduce or eliminate dolphin mortality or serious injury do not require the encirclement of dolphins in the course of commercial yellowfin tuna fishing;
(xi) authorizing fishing within the area covered by the International Dolphin Conservation Program by vessels of the United States without the use of special equipment or nets if the vessel takes an observer and does not intentionally deploy nets on, or encircle, dolphins, under such terms and conditions as the Secretary may prescribe; and
(xii) containing such other restrictions and requirements as the Secretary determines are necessary to implement the International Dolphin Conservation Program with respect to vessels of the United States.
(C)
(b) Consultation
In developing any regulation under this section, the Secretary shall consult with the Secretary of State, the Marine Mammal Commission, and the United States Commissioners to the Inter-American Tropical Tuna Commission appointed under
(c) Emergency regulations
(1) If the Secretary determines, on the basis of the best scientific information available (including research conducted under
(A) notify the Inter-American Tropical Tuna Commission of his or her determination, along with recommendations to the Commission as to actions necessary to reduce incidental mortality and serious injury and mitigate such adverse impact; and
(B) prescribe emergency regulations to reduce incidental mortality and serious injury and mitigate such adverse impact.
(2) Before taking action under subparagraph (A) or (B) of paragraph (1), the Secretary shall consult with the Secretary of State, the Marine Mammal Commission, and the United States Commissioners to the Inter-American Tropical Tuna Commission.
(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 the duration of the applicable fishing year; 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 the emergency action no longer exist.
(4) If the Secretary finds that the incidental mortality and serious injury of marine mammals in the yellowfin tuna fishery in the eastern tropical Pacific Ocean is continuing to have a significant adverse impact on a stock or species, the Secretary may extend the emergency regulations for such additional periods as may be necessary.
(5) Within 120 days after the Secretary notifies the United States Commissioners to the Inter-American Tropical Tuna Commission of the Secretary's determination under paragraph (1)(A), the United States Commissioners shall call for a special meeting of the Commission to address the actions necessary to reduce incidental mortality and serious injury and mitigate the adverse impact which resulted in the determination. The Commissioners shall report the results of the special meeting in writing to the Secretary and to the Secretary of State. In their report, the Commissioners shall—
(A) include a description of the actions taken by the harvesting nations or under the International Dolphin Conservation Program to reduce the incidental mortality and serious injury and measures to mitigate the adverse impact on the marine mammal species or stock;
(B) indicate whether, in their judgment, the actions taken address the problem adequately; and
(C) if they indicate that the actions taken do not address the problem adequately, include recommendations of such additional action to be taken as may be necessary.
(
Editorial Notes
References in Text
The Endangered Species Act, referred to in subsec. (a)(2)(A), probably means the Endangered Species Act of 1973,
Prior Provisions
A prior section 1413,
A prior section 303 of
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 8 of
§1414. Repealed. Pub. L. 105–42, §6(c), Aug. 15, 1997, 111 Stat. 1130
Section,
A prior section 304 of
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
For effective date of repeal, see section 8 of
§1414a. Research
(a) Required research
(1) In general
The Secretary shall, in consultation with the Marine Mammal Commission and the Inter-American Tropical Tuna Commission, conduct a study of the effect of intentional encirclement (including chase) on dolphins and dolphin stocks incidentally taken in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean. The study, which shall commence on October 1, 1997, shall consist of abundance surveys as described in paragraph (2) and stress studies as described in paragraph (3), and shall address the question of whether such encirclement is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean.
(2) Population abundance surveys
The abundance surveys under this subsection shall survey the abundance of such depleted stocks and shall be conducted during each of the calendar years 1998, 1999, and 2000.
(3) Stress studies
The stress studies under this subsection shall include—
(A) a review of relevant stress-related research and a 3-year series of necropsy samples from dolphins obtained by commercial vessels;
(B) a 1-year review of relevant historical demographic and biological data related to dolphins and dolphin stocks referred to in paragraph (1); and
(C) an experiment involving the repeated chasing and capturing of dolphins by means of intentional encirclement.
(4) Report
No later than 90 days after publishing the finding under subsection (g)(2) of
(b) Other research
(1) In general
In addition to conducting the research described in subsection (a), the Secretary shall, in consultation with the Marine Mammal Commission and in cooperation with the nations participating in the International Dolphin Conservation Program and the Inter-American Tropical Tuna Commission, undertake or support appropriate scientific research to further the goals of the International Dolphin Conservation Program.
(2) Specific areas of research
Research carried out under paragraph (1) may include—
(A) projects to devise cost-effective fishing methods and gear so as to reduce, with the goal of eliminating, the incidental mortality and serious injury of marine mammals in connection with commercial purse seine fishing in the eastern tropical Pacific Ocean;
(B) projects to develop cost-effective methods of fishing for mature yellowfin tuna without setting nets on dolphins or other marine mammals;
(C) projects to carry out stock assessments for those marine mammal species and marine mammal stocks taken in the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean, including species or stocks not within waters under the jurisdiction of the United States; and
(D) projects to determine the extent to which the incidental take of nontarget species, including juvenile tuna, occurs in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean, the geographic location of the incidental take, and the impact of that incidental take on tuna stocks and nontarget species.
(c) Authorization of appropriations
(1) There are authorized to be appropriated to the Secretary the following amounts, to be used by the Secretary to carry out the research described in subsection (a):
(A) $4,000,000 for fiscal year 1998.
(B) $3,000,000 for fiscal year 1999.
(C) $4,000,000 for fiscal year 2000.
(D) $1,000,000 for fiscal year 2001.
(2) In addition to the amount authorized to be appropriated under paragraph (1), there are authorized to be appropriated to the Secretary for carrying out this section $3,000,000 for each of the fiscal years 1998, 1999, 2000, and 2001.
(
Editorial Notes
Prior Provisions
A prior section 304 of
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Commerce of House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001.
§1415. Reports by Secretary
Notwithstanding
(1) results of research conducted pursuant to
(2) a description of the status and trends of stocks of tuna;
(3) a description of the efforts to assess, avoid, reduce, and minimize the bycatch of juvenile yellowfin tuna and bycatch of nontarget species;
(4) a description of the activities of the International Dolphin Conservation Program and of the efforts of the United States in support of the Program's goals and objectives, including the protection of dolphin stocks in the eastern tropical Pacific Ocean, and an assessment of the effectiveness of the Program;
(5) actions taken by the Secretary under
(6) copies of any relevant resolutions and decisions of the Inter-American Tropical Tuna Commission, and any regulations promulgated by the Secretary under this subchapter; and
(7) any other information deemed relevant by the Secretary.
(
Editorial Notes
Prior Provisions
A prior section 1415,
A prior section 305 of
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 8 of
§1416. Permits
(a) In general
(1) Consistent with the regulations issued pursuant to
(A) the name and official number or other identification of each fishing vessel for which a permit is sought, together with the name and address of the owner thereof; and
(B) the tonnage, hold capacity, speed, processing equipment, and type and quantity of gear, including an inventory of special equipment required under
(2) The Secretary is authorized to charge a fee for granting an authorization and issuing a permit under this section. The level of fees charged under this paragraph may not exceed the administrative cost incurred in granting an authorization and issuing a permit. Fees collected under this paragraph shall be available to the Under Secretary of Commerce for Oceans and Atmosphere for expenses incurred in granting authorizations and issuing permits under this section.
(3) After the effective date of the International Dolphin Conservation Program Act, no vessel of the United States shall operate in the yellowfin tuna fishery in the eastern tropical Pacific Ocean without a valid permit issued under this section.
(b) Permit sanctions
(1) In any case in which—
(A) a vessel for which a permit has been issued under this section has been used in the commission of an act prohibited under
(B) the owner or operator of any such vessel or any other person who has applied for or been issued a permit under this section has acted in violation of
(C) any civil penalty or criminal fine imposed on a vessel, owner or operator of a vessel, or other person who has applied for or been issued a permit under this section has not been paid or is overdue,
the Secretary may—
(i) revoke any permit with respect to such vessel, with or without prejudice to the issuance of subsequent permits;
(ii) suspend such permit for a period of time considered by the Secretary to be appropriate;
(iii) deny such permit; or
(iv) impose additional conditions or restrictions on any permit issued to, or applied for by, any such vessel or person under this section.
(2) In imposing a sanction under this subsection, the Secretary shall take into account—
(A) the nature, circumstances, extent, and gravity of the prohibited acts for which the sanction is imposed; and
(B) with respect to the violator, the degree of culpability, any history of prior offenses, and other such matters as justice requires.
(3) Transfer of ownership of a vessel, by sale or otherwise, shall not extinguish any permit sanction that is in effect or is pending at the time of transfer of ownership. Before executing the transfer of ownership of a vessel, by sale or otherwise, the owner shall disclose in writing to the prospective transferee the existence of any permit sanction that will be in effect or pending with respect to the vessel at the time of transfer.
(4) In the case of any permit that is suspended for the failure to pay a civil penalty or criminal fine, the Secretary shall reinstate the permit upon payment of the penalty or fine and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this section unless there has been a prior opportunity for a hearing on the facts underlying the violation for which the sanction is imposed, either in conjunction with a civil penalty proceeding under this subchapter or otherwise.
(
Editorial Notes
References in Text
For effective date of the International Dolphin Conservation Program Act [
Prior Provisions
A prior section 1416,
A prior section 306 of
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 8 of
§1417. Prohibitions
(a) In general
It is unlawful—
(1) for any person to sell, purchase, offer for sale, transport, or ship, in the United States, any tuna or tuna product unless the tuna or tuna product is either dolphin safe or has been harvested in compliance with the International Dolphin Conservation Program by a country that is a member of the Inter-American Tropical Tuna Commission or has initiated and within 6 months thereafter completed all steps required of applicant nations in accordance with Article V, paragraph 3 of the Convention establishing the Inter-American Tropical Tuna Commission, to become a member of that organization;
(2) except as provided for in subsection 1 1371(d) of this title, for any person or vessel subject to the jurisdiction of the United States intentionally to set a purse seine net on or to encircle any marine mammal in the course of tuna fishing operations in the eastern tropical Pacific Ocean except in accordance with this subchapter and regulations issued pursuant to this subchapter; and 2
(3) for any person to import any yellowfin tuna or yellowfin tuna product or any other fish or fish product in violation of a ban on importation imposed under
(4) for any person to violate any regulation promulgated under this subchapter;
(5) for any person to refuse to permit any duly authorized officer to board a vessel subject to that person's control for purposes of conducting any search or inspection in connection with the enforcement of this subchapter; and
(6) for any person to assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection described in paragraph (5).
(b) Penalties
(1) Civil penalty
A person that knowingly and willfully violates subsection (a)(1), (2), (3), (4), or (5) shall be subject to a civil penalty under
(2) Criminal penalty
A person that knowingly and willfully violates subsection (a)(5) or (a)(6) shall be subject to a criminal penalty under
(c) Civil forfeitures
Any vessel (including its fishing gear, appurtenances, stores, and cargo) used, and any fish (or its fair market value) taken or retained, in any manner, in connection with or as a result of the commission of any act prohibited by this section shall be subject to forfeiture to the United States in the manner provided in
(
Editorial Notes
Codification
Another section 307 of
Amendments
1997—Subsec. (a)(1) to (3).
"(1) for any person, after June 1, 1994, to sell, purchase, offer for sale, transport, or ship, in the United States, any tuna or tuna product that is not dolphin safe;
"(2) for any person or vessel that is subject to the jurisdiction of the United States, intentionally to set a purse seine net on or to encircle any marine mammal during any tuna fishing operation after February 28, 1994, except—
"(A) as necessary for scientific research approved by the Inter-American Tropical Tuna Commission;
"(B) in accordance with a recommendation that is approved under
"(C) as authorized by the general permit issued to the American Tunaboat Association on December 1, 1980 (including any additional restrictions applicable under
"(3) for any person to import any yellowfin tuna or yellowfin tuna product or any other fish or fish product in violation of a ban on importation imposed under section 1415(b)(1) or (2) of this title;".
Subsec. (b)(2).
Subsec. (d).
"(1) it does not contain tuna that was harvested on the high seas by a vessel engaged in driftnet fishing, as that term is defined in section 4003 of the Driftnet Impact, Monitoring, Assessment, and Control Act of 1987;
"(2) in the case of tuna or a tuna product that contains tuna harvested in the eastern tropical Pacific Ocean, it is dolphin safe under subsection (d)(2) of
"(3) in the case of tuna or a tuna product that contains tuna harvested outside the eastern tropical Pacific Ocean by a purse seine vessel, it is accompanied by a written statement executed by the captain of the vessel certifying that no purse seine net was intentionally deployed on or to encircle dolphins during the particular voyage on which the tuna was harvested; and
"(4) in the case of tuna or a product that contains tuna harvested outside the eastern tropical Pacific Ocean by a purse seine vessel in a fishery in which the Secretary has determined that a regular and significant association occurs between marine mammals and tuna, and in which tuna is harvested through the use of purse seine nets deployed on or to encircle marine mammals, it is accompanied by a written statement executed by the captain of the vessel and by an observer, certifying that no purse seine net was intentionally deployed on or to encircle marine mammals during the particular voyage on which the tuna was harvested."
1996—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
For effective date of amendment by
Effective Date of 1996 Amendment
1 So in original. Probably should be "section".
2 So in original. The word "and" probably should not appear.
§1418. Repealed. Pub. L. 105–42, §6(e), Aug. 15, 1997, 111 Stat. 1137
Section,
Another section 308 of
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
For effective date of repeal, see section 8 of
SUBCHAPTER V—MARINE MAMMAL HEALTH AND STRANDING RESPONSE
§1421. Establishment of Program
(a) Establishment
The Secretary shall, in consultation with the Secretary of the Interior, the Marine Mammal Commission, and individuals with knowledge and experience in marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, including stranding network participants, establish a program to be known as the "Marine Mammal Health and Stranding Response Program".
(b) Purposes
The purposes of the Program shall be to—
(1) facilitate the collection and dissemination of reference data on the health of marine mammals and health trends of marine mammal populations in the wild;
(2) correlate the health of marine mammals and marine mammal populations, in the wild, with available data on physical, chemical, and biological environmental parameters; and
(3) coordinate effective responses to unusual mortality events by establishing a process in the Department of Commerce in accordance with
(
Editorial Notes
Amendments
1994—Subsec. (b)(3).
Statutory Notes and Related Subsidiaries
Findings
"(1) Current stranding network participants have performed an undeniably valuable and ceaseless job of responding to marine mammal strandings over the last 15 years.
"(2) Insufficient understanding of the connection between marine mammal health and the physical, chemical, and biological parameters of their environment prevents an adequate understanding of the causes of marine mammal unusual mortality events.
"(3) An accurate assessment of marine mammal health, health trends in marine mammal populations in the wild, and causes of marine mammal unusual mortality events cannot be made without adequate reference data on marine mammals and the environment in which they live.
"(4) A systematic assessment of the sources, presence, levels, and effects of potentially harmful contaminants on marine mammals would provide a better understanding of some of the causes of marine mammal unusual mortality events and may serve as an indicator of the general health of our coastal and marine environments.
"(5) Responses to marine mammal unusual mortality events are often uncoordinated, due to the lack of sufficient contingency planning.
"(6) Standardized methods for the reporting of dying, dead, or otherwise incapacitated marine mammals in the wild would greatly assist in the determination of the causes of marine mammal unusual mortality events and enhance general knowledge of marine mammal species.
"(7) A formal system for collection, preparation, and archiving of, and providing access to, marine mammal tissues will enhance efforts to investigate the health of marine mammals and health trends of marine mammal populations, and to develop reference data.
"(8) Information on marine mammals, including results of analyses of marine mammal tissues, should be broadly available to the scientific community, including stranding network participants, through a marine mammal data base."
§1421a. Determination; data collection and dissemination
(a) Determination for release
The Secretary shall, in consultation with the Secretary of the Interior, the Marine Mammal Commission, and individuals with knowledge and experience in marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, including stranding network participants, develop objective criteria, after an opportunity for public review and comment, to provide guidance for determining at what point a rehabilitated marine mammal is releasable to the wild.
(b) Collection
The Secretary shall, in consultation with the Secretary of the Interior, collect and update, periodically, existing information on—
(1) procedures and practices for—
(A) rescuing and rehabilitating stranded or entangled marine mammals, including criteria used by stranding network participants, on a species-by-species basis, for determining at what point a marine mammal undergoing rescue and rehabilitation is returnable to the wild; and
(B) collecting, preserving, labeling, and transporting marine mammal tissues for physical, chemical, and biological analyses;
(2) appropriate scientific literature on marine mammal health, disease, and rehabilitation;
(3) strandings and entanglements, including unusual mortality events, which the Secretary shall compile and analyze, by stranding region, to monitor species, numbers, conditions, and causes of illnesses and deaths of stranded marine mammals and entangled marine mammals to allow comparison of the causes of illness and deaths in stranded marine mammals and entangled marine mammals with physical, chemical, and biological environmental parameters; and
(4) other life history and reference level data, including marine mammal tissue analyses.
(c) Information required to be submitted and collected
(1) In general
After each response to a stranding or entanglement event, the Secretary shall collect (including from any staff of the National Oceanic and Atmospheric Administration that respond directly to such an event), and shall require each stranding network participant who responds to that stranding or entanglement to submit to the Administrator of the National Oceanic and Atmospheric Administration or the Director of the United States Fish and Wildlife Service—
(A) data on the stranding event, including NOAA Form 89–864 (OMB #0648–0178), NOAA Form 89–878 (OMB #0648–0178), similar successor forms, or similar information in an appropriate format required by the United States Fish and Wildlife Service for species under its management authority;
(B) supplemental data to the data described in subparagraph (A), which may include, as available, relevant information about—
(i) weather and tide conditions;
(ii) offshore human, predator, or prey activity;
(iii) morphometrics;
(iv) behavior;
(v) health assessments;
(vi) life history samples; or
(vii) stomach and intestinal contents; and
(C) data and results from laboratory analysis of tissues, which may include, as appropriate and available—
(i) histopathology;
(ii) toxicology;
(iii) microbiology;
(iv) virology; or
(v) parasitology.
(2) Timeline
A stranding network participant shall submit—
(A) the data described in paragraph (1)(A) not later than 30 days after the date of a response to a stranding or entanglement event;
(B) the compiled data described in paragraph (1)(B) not later than 30 days after the date on which the data is available to the stranding network participant; and
(C) the compiled data described in paragraph (1)(C) not later than 30 days after the date on which the laboratory analysis has been reported to the stranding network participant.
(3) Online data input system
The Secretary, acting through the Under Secretary of Commerce for Oceans and Atmosphere, in consultation with the stranding network and the Office of Evaluation Sciences of the General Services Administration, shall establish an online system for the purposes of efficient and timely submission of data described in paragraph (1).
(d) Availability of data
(1) In general
The Secretary shall develop a program to make information, including any data and metadata collected under paragraph (3) or (4) of subsection (b) or subsection (c), available to researchers, stranding network participants, and the public—
(A) to improve real-time coordination of response to stranding and entanglement events across geographic areas and between stranding coordinators;
(B) to identify and quickly disseminate information on potential public health risks;
(C) to facilitate integrated interdisciplinary research;
(D) to facilitate peer-reviewed publications;
(E) to archive regional data into 1 national database for future analyses; and
(F) for education and outreach activities.
(2) Access to data
The Secretary shall ensure that any data or metadata collected under subsection (c)—
(A) by staff of the National Oceanic and Atmospheric Administration or the United States Fish and Wildlife Service that responded directly to a stranding or entanglement event is available to the public through the Health MAP and the Observation System not later than 30 days after that data or metadata is collected by, available to, or reported to the Secretary; and
(B) by a stranding network participant that responded directly to a stranding or entanglement event is made available to the public through the Health MAP and the Observation System 2 years after the date on which that data are submitted to the Secretary under subsection (c).
(3) Exceptions
(A) Written release
Notwithstanding paragraph (2)(B), the Secretary may make data described in paragraph (2)(B) publicly available earlier than 2 years after the date on which that data are submitted to the Secretary under subsection (c), if the stranding network participant has completed a written release stating that such data may be made publicly available.
(B) Law enforcement
Notwithstanding paragraph (2), the Secretary may withhold data for a longer period than the period of time described in paragraph (2) in the event of a law enforcement action or legal action that may be related to that data.
(e) Standards
The Secretary, in consultation with the marine mammal stranding community, shall—
(1) make publicly available guidance about uniform data and metadata standards to ensure that data collected in accordance with this section can be archived in a form that is readily accessible and understandable to the public through the Health MAP and the Observation System; and
(2) periodically update such guidance.
(f) Management policy
In collaboration with the regional stranding networks, the Secretary shall develop, and periodically update, a data management and public outreach collaboration policy for stranding or entanglement events.
(g) Authorship agreements and acknowledgment policy
The Secretary, acting through the Under Secretary of Commerce for Oceans and Atmosphere, shall include authorship agreements or other acknowledgment considerations for use of data by the public, as determined by the Secretary.
(h) Savings clause
The Secretary shall not require submission of research data that are not described in subsection (c).
(
Editorial Notes
Amendments
2022—Subsec. (b)(1)(A).
Subsec. (b)(3).
Subsec. (b)(4).
Subsecs. (c) to (h).
Statutory Notes and Related Subsidiaries
Implementation
"(1) in accordance with section 302(a) and (b) [now 402(a), (b)] of the Marine Mammal Protection Act of 1972 [
"(A) develop and implement objective criteria to determine at what point a marine mammal undergoing rehabilitation is returnable to the wild; and
"(B) collect and make available information on marine mammal health and health trends; and
"(2) in accordance with section 304(b) [now 404(b)] of the Marine Mammal Protection Act of 1972 [
"(A) in proposed form by not later than 18 months after the date of enactment of this Act; and
"(B) in final form by not later than 24 months after the date of enactment of this Act."
§1421b. Stranding or entanglement response agreements
(a) In general
The Secretary may enter into an agreement under
(b) Required provision
An agreement authorized by subsection (a) shall—
(1) specify each person who is authorized to perform activities under the agreement;
(2) specify any terms and conditions under which a person so specified may delegate that authority to another person; and
(3) include a description of the data management and public outreach policy established under
(c) Review
The Secretary shall periodically review agreements under
(
Editorial Notes
Amendments
2022—
Subsec. (a).
Subsec. (b)(3).
§1421c. Unusual mortality event response
(a) Response
(1) Working group
(A) The Secretary, acting through the Office, shall establish, in consultation with the Secretary of the Interior, a marine mammal unusual mortality event working group, consisting of individuals with knowledge and experience in marine science, marine mammal science, marine mammal veterinary and husbandry practices, marine conservation, and medical science, to provide guidance to the Secretary and the Secretary of the Interior for—
(i) determining whether an unusual mortality event is occurring;
(ii) determining, after an unusual mortality event has begun, if response actions with respect to that event are no longer necessary; and
(iii) developing the contingency plan in accordance with subsection (b), to assist the Secretary in responding to unusual mortality events.
(B)
(2) Response timing
The Secretary, in consultation with the Secretary of the Interior, shall to the extent necessary and practicable—
(A) within 24 hours after receiving notification from a stranding network participant that an unusual mortality event might be occurring, contact as many members as is possible of the unusual mortality event working group for guidance; and
(B) within 48 hours after receiving such notification—
(i) make a determination as to whether an unusual mortality event is occurring;
(ii) inform the stranding network participant of that determination; and
(iii) if the Secretary has determined an unusual mortality event is occurring, designate an Onsite Coordinator for the event, in accordance with subsection (c).
(b) Contingency plan
(1) In general
The Secretary shall, in consultation with the Secretary of the Interior and the unusual mortality event working group, and after an opportunity for public review and comment, issue a detailed contingency plan for responding to any unusual mortality event.
(2) Contents
The contingency plan required under this subsection shall include—
(A) a list of persons, including stranding network participants, at a regional, State, and local level, who can assist the Secretary in implementing a coordinated and effective response to an unusual mortality event;
(B) the types of marine mammal tissues and analyses necessary to assist in diagnosing causes of unusual mortality events;
(C) training, mobilization, and utilization procedures for available personnel, facilities, and other resources necessary to conduct a rapid and effective response to unusual mortality events; and
(D) such requirements as are necessary to—
(i) minimize death of marine mammals in the wild and provide appropriate care of marine mammals during an unusual mortality event;
(ii) assist in identifying the cause or causes of an unusual mortality event;
(iii) determine the effects of an unusual mortality event on the size estimates of the affected populations of marine mammals; and
(iv) identify any roles played in an unusual mortality event by physical, chemical, and biological factors, including contaminants.
(c) Onsite coordinators
(1) Designation
(A) The Secretary shall, in consultation with the Secretary of the Interior, designate one or more Onsite Coordinators for an unusual mortality event, who shall make immediate recommendations to the stranding network participants on how to proceed with response activities.
(B) An Onsite Coordinator so designated shall be one or more appropriate Regional Directors of the National Marine Fisheries Service or the United States Fish and Wildlife Service, or their designees.
(C) If, because of the wide geographic distribution, multiple species of marine mammals involved, or magnitude of an unusual mortality event, more than one Onsite Coordinator is designated, the Secretary shall, in consultation with the Secretary of the Interior, designate which of the Onsite Coordinators shall have primary responsibility with respect to the event.
(2) Functions
(A) An Onsite Coordinator designated under this subsection shall coordinate and direct the activities of all persons responding to an unusual mortality event in accordance with the contingency plan issued under subsection (b), except that—
(i) with respect to any matter that is not covered by the contingency plan, an Onsite Coordinator shall use his or her best professional judgment; and
(ii) the contingency plan may be temporarily modified by an Onsite Coordinator, consulting as expeditiously as possible with the Secretary, the Secretary of the Interior, and the unusual mortality event working group.
(B) An Onsite Coordinator may delegate to any qualified person authority to act as an Onsite Coordinator under this subchapter.
(
Editorial Notes
Amendments
2022—Subsec. (a)(1)(B).
§1421d. Unusual mortality event activity funding
(a) Establishment of Fund
There is established in the Treasury an interest bearing fund to be known as the "Marine Mammal Unusual Mortality Event Fund", which shall consist of amounts deposited into the Fund under subsection (c).
(b) Uses
Amounts in the Fund shall be available only for use by the Secretary, in consultation with the Secretary of the Interior, and dispersed among claimants based on budgets approved by the Secretary prior to expenditure—
(1) to make advance, partial, or progress payments under contracts or other funding mechanisms for property, supplies, salaries, services, and travel costs incurred in acting in accordance with the contingency plan issued under
(2) for reimbursing any stranding network participant for costs incurred in the collection, preparation, analysis, and transportation of marine mammal tissues and samples collected with respect to an unusual mortality event for the Tissue Bank; and
(3) for the care and maintenance of a marine mammal seized under
(c) Deposits into Fund
There shall be deposited into the Fund—
(1) amounts appropriated to the Fund;
(2) other amounts appropriated to the Secretary for use with respect to unusual mortality events; and
(3) amounts received by the United States in the form of gifts, devises, and bequests under subsection (d).
(d) Acceptance of donations
For purposes of carrying out this subchapter and
(
Editorial Notes
Amendments
2022—Subsec. (b).
1994—Subsec. (a).
Subsec. (b)(1)(A)(i).
Subsec. (b)(1)(A)(iii).
Subsec. (d).
1 So in original. The "; and" probably should be a period.
§1421e. Liability
(a) In general
A person who is authorized to respond to a stranding or entanglement pursuant to an agreement entered into under
(1) in accordance with the agreement; and
(2) in the case of an unusual mortality event, in accordance with—
(A) the contingency plan issued under
(B) the instructions of an Onsite Coordinator designated under
(C) the best professional judgment of an Onsite Coordinator, in the case of any matter that is not covered by the contingency plan.
(b) Limitation
Subsection (a) does not apply to actions of a person described in that subsection that are grossly negligent or that constitute willful misconduct.
(
Editorial Notes
Amendments
2022—Subsec. (a).
1994—Subsec. (a)(2)(A), (B).
§1421f. National Marine Mammal Tissue Bank and tissue analysis
(a) Tissue Bank
(1) In general
The Secretary shall make provision for the storage, preparation, examination, and archiving of marine mammal tissues. Tissues archived pursuant to this subsection shall be known as the "National Marine Mammal Tissue Bank".
(2) Guidance for marine mammal tissue collection, preparation, and archiving
The Secretary shall, in consultation with individuals with knowledge and expertise in marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, issue guidance, after an opportunity for public review and comment, for marine mammal tissue collection, preparation, archiving, and quality control procedures, regarding—
(A) appropriate and uniform methods and standards for those activities to provide confidence in marine mammal tissue samples used for research; and
(B) documentation of procedures used for collecting, preparing, and archiving those samples.
(3) Source of tissue
In addition to tissues taken during marine mammal unusual mortality events, the Tissue Bank shall incorporate tissue samples taken from other sources in the wild, including—
(A) samples from marine mammals taken incidental to commercial fishing operations;
(B) samples from marine mammals taken for subsistence purposes;
(C) biopsy samples; and
(D) any other samples properly collected.
(b) Tissue analysis
The Secretary shall, in consultation with the Marine Mammal Commission, the Secretary of the Interior, and individuals with knowledge and experience in marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, issue guidance, after an opportunity for public review and comment, for analyzing tissue samples (by use of the most effective and advanced diagnostic technologies and tools practicable) as a means to monitor and measure overall health trends in representative species or populations of marine mammals, including—
(1) the levels of, and if possible, the effects of, potentially harmful contaminants; and
(2) the frequency of, and if possible, the causes and effects of abnormal lesions or anomalies.
(c) Data base
(1) In general
The Secretary shall maintain a central data base which provides an effective means for tracking and accessing data on marine mammals, including relevant data on marine mammal tissues collected for and maintained in the Tissue Bank.
(2) Contents
The data base established under this subsection shall include—
(A) reference data on marine mammal health and mortality and the health of populations of marine mammals; and
(B) data on species of marine mammals that are subject to unusual mortality events.
(d) Access
The Secretary shall, in consultation with the Secretary of the Interior, establish criteria, after an opportunity for public review and comment, for public access to—
(1) marine mammal tissues in the Tissue Bank;
(2) analyses conducted pursuant to subsection (b); and
(3) marine mammal data in the data base maintained under subsection (c);
which provide for appropriate uses of the tissues, analyses, and data by qualified scientists, including stranding network participants.
(
Editorial Notes
Amendments
2022—Subsec. (c)(2)(A).
Subsec. (d).
§1421f–1. Marine Mammal Rescue and Response Grant Program and Rapid Response Fund
(a) Definitions
In this section:
(1) Emergency assistance
(A) In general
The term "emergency assistance" means—
(i) financial assistance provided to respond to, or that results from, a stranding event or entanglement event that—
(I) causes an immediate increase in the cost of a response, recovery, or rehabilitation that is greater than the usual cost of a response, recovery, or rehabilitation;
(II) is cyclical or endemic; or
(III) involves a marine mammal that is out of the normal range for that marine mammal; or
(ii) financial assistance provided to respond to, or that results from, a stranding event or an entanglement event that—
(I) the applicable Secretary considers to be an emergency; or
(II) with the concurrence of the applicable Secretary, a State, territorial, or Tribal Government considers to be an emergency.
(B) Exclusions
The term "emergency assistance" does not include financial assistance to respond to an unusual mortality event.
(2) Secretary
The term "Secretary" has the meaning given that term in
(3) Stranding region
The term "stranding region" means a geographic region designated by the applicable Secretary for purposes of administration of this subchapter.
(b) John H. Prescott Marine Mammal Rescue and Response Grant Program
(1) In general
The applicable Secretary shall carry out a grant program, to be known as the "John H. Prescott Marine Mammal Rescue and Response Grant Program" (referred to in this section as the "grant program"), to award grants to eligible stranding network participants or stranding network collaborators, as described in this subsection.
(2) Purposes
The purposes of the grant program are to provide for—
(A) the recovery, care, or treatment of sick, injured, or entangled marine mammals;
(B) responses to marine mammal stranding events that require emergency assistance;
(C) the collection of data and samples from living or dead stranded marine mammals for scientific research or assessments regarding marine mammal health;
(D) facility operating costs that are directly related to activities described in subparagraph (A), (B), or (C); and
(E) development of stranding network capacity, including training for emergency response, where facilities do not exist or are sparse.
(3) Contract, grant, and cooperative agreement authority
(A) In general
The applicable Secretary may enter into a contract, grant, or cooperative agreement with any eligible stranding network participant or stranding network collaborator, as the Secretary determines to be appropriate, for the purposes described in paragraph (2).
(B) Emergency award flexibility
Following a request for emergency award flexibility and analysis of the merits of and necessity for such a request, the applicable Secretary may—
(i) amend any contract, grant, or cooperative agreement entered into under this paragraph, including provisions concerning the period of performance; or
(ii) waive the requirements under subsection (f) for grant applications submitted during the provision of emergency assistance.
(4) Equitable distribution of funds
(A) In general
The Secretary shall ensure, to the extent practicable, that funds awarded under the grant program are distributed equitably among the stranding regions.
(B) Considerations
In determining priorities among the stranding regions under this paragraph, the Secretary may consider—
(i) equitable distribution within the stranding regions, including the subregions (including, but not limited to, the Gulf of Mexico);
(ii) any episodic stranding, entanglement, or mortality events, except for unusual mortality events, that occurred in any stranding region in the preceding year;
(iii) any data with respect to average annual stranding, entanglements, and mortality events per stranding region;
(iv) the size of the marine mammal populations inhabiting a stranding region;
(v) the importance of the region's marine mammal populations to the well-being of indigenous communities; and
(vi) the conservation of protected, depleted, threatened, or endangered marine mammal species.
(C) Strandings
For the purposes of this program, priority is to be given to applications focusing on marine mammal strandings.
(5) Application
To be eligible for a grant under the grant program, a stranding network participant shall—
(A) submit an application in such form and manner as the applicable Secretary prescribes; and
(B) be in compliance with the data reporting requirements under
(6) Grant criteria
The Secretary shall, in consultation with the Marine Mammal Commission, a representative from each of the stranding regions, and other individuals who represent public and private organizations that are actively involved in rescue, rehabilitation, release, scientific research, marine conservation, and forensic science with respect to stranded marine mammals under that Department's jurisdiction, develop criteria for awarding grants under their respective grant programs.
(7) Maximum grant amount
No grant made under the grant program for a single award may exceed $150,000 in any 12-month period.
(8) Administrative costs and expenses
The Secretary's administrative costs and expenses related to reviewing and awarding grants under the grant program, in any fiscal year may not exceed the greater of—
(A) 6 percent of the amounts made available each fiscal year to carry out the grant program; or
(B) $80,000.
(9) Transparency
The Secretary shall make publicly available a list of grant proposals for the upcoming fiscal year, funded grants, and requests for grant flexibility under this subsection.
(c) Joseph R. Geraci Marine Mammal Rescue and Rapid Response Fund
(1) In general
There is established in the Treasury of the United States an interest-bearing fund, to be known as the "Joseph R. Geraci Marine Mammal Rescue and Rapid Response Fund" (referred to in this section as the "Rapid Response Fund").
(2) Use of funds
Amounts in the Rapid Response Fund shall be available only for use by the Secretary to provide emergency assistance.
(d) Authorization of appropriations
(1) In general
(A) Authorization of appropriations
There is authorized to be appropriated to carry out the grant program $7,000,000 for each of fiscal years 2023 through 2028, to remain available until expended, of which for each fiscal year—
(i) $6,000,000 shall be made available to the Secretary of Commerce; and
(ii) $1,000,000 shall be made available to the Secretary of the Interior.
(B) Derivation of funds
Funds to carry out the activities under this section shall be derived from amounts authorized to be appropriated pursuant to subparagraph (A) that are enacted after December 23, 2022.
(2) Joseph R. Geraci Marine Mammal Rescue and Rapid Response Fund
There is authorized to be appropriated to the Rapid Response Fund $500,000 for each of fiscal years 2023 through 2028.
(e) Acceptance of donations
(1) In general
For the purposes of carrying out this section, the Secretary may solicit, accept, receive, hold, administer, and use gifts, devises, and bequests without any further approval or administrative action.
(2) Monetary donations
A monetary gift, devise, or bequest accepted by the Secretary under paragraph (1) shall be credited as discretionary offsetting collections to the currently applicable appropriation, account, or fund of the Department of Commerce and shall be made available for such purposes only to the extent and in the amounts provided in advance in appropriations Acts.
(f) Matching requirement
(1) In general
The non-Federal share of a project conducted with funds awarded under the grant program under this section shall be not less than 25 percent of such project.
(2) In-kind contributions
The Secretary may apply to the non-Federal share of a project conducted with a grant under this section the amount of funds, and the fair market value of property and services, provided by non-Federal sources and used for the project.
(
Editorial Notes
Prior Provisions
A prior section 408 of
Amendments
2022—
Subsecs. (a) to (d).
Subsec. (e).
Subsec. (f).
Subsec. (f)(1).
Subsec. (f)(2).
Subsecs. (g), (h).
§1421f–2. Marine Mammal Health Monitoring and Analysis Platform (Health MAP)
(a) In general
Not later than 1 year after December 23, 2022, the Secretary, acting through the Administrator of the National Oceanic and Atmospheric Administration, in consultation with the Secretary of the Interior and the Marine Mammal Commission, shall—
(1) establish a marine mammal health monitoring and analysis platform (referred to in this chapter as the "Health MAP");
(2) incorporate the Health MAP into the Observation System; and
(3) make the Health MAP—
(A) publicly accessible through the web portal of the Observation System; and
(B) interoperable with other national data systems or other data systems for management or research purposes, as practicable.
(b) Purposes
The purposes of the Health MAP are—
(1) to promote—
(A) interdisciplinary research among individuals with knowledge and experience in marine mammal science, marine mammal veterinary and husbandry practices, medical science, and oceanography, and with other marine scientists;
(B) timely and sustained dissemination and availability of marine mammal health, stranding, entanglement, and mortality data;
(C) identification of spatial and temporal patterns of marine mammal mortality, disease, and stranding;
(D) evaluation of marine mammal health in terms of mortality, as well as sublethal marine mammal health impacts;
(E) improved collaboration and forecasting of marine mammal and larger ecosystem health events;
(F) rapid communication and dissemination of information regarding marine mammal strandings that may have implications for human health, such as those caused by harmful algal blooms; and
(G) increased accessibility of data in a user friendly visual interface for public education and outreach; and
(2) to contribute to an ocean health index that incorporates marine mammal health data.
(c) Requirements
The Health MAP shall—
(1) integrate in situ, remote, and other marine mammal health, stranding, and mortality data, including visualizations and metadata, collected by marine mammal stranding networks, Federal, State, local, and Tribal governments, private partners, and academia; and
(2) be designed—
(A) to enhance data and information availability, including data sharing among stranding network participants, scientists, and the public within and across stranding network regions;
(B) to facilitate data and information access across scientific disciplines, scientists, and managers;
(C) to facilitate public access to national and regional marine mammal health, stranding, entanglement, and mortality data, including visualizations and metadata, through the national and regional data portals of the Observation System; and
(D) in collaboration with, and with input from, States and stranding network participants.
(d) Procedures and guidelines
The Secretary shall establish and implement policies, protocols, and standards for—
(1) reporting marine mammal health data collected by stranding networks consistent with subsections (c) and (d) of
(2) promptly transmitting health data from the stranding networks and other appropriate data providers to the Health MAP;
(3) disseminating and making publicly available data on marine mammal health, stranding, entanglement, and mortality data in a timely and sustained manner; and
(4) integrating additional marine mammal health, stranding, or other relevant data as the Secretary determines appropriate.
(e) Consultation
The Administrator of the National Oceanic and Atmospheric Administration shall maintain and update the Health MAP in consultation with the Secretary of the Interior and the Marine Mammal Commission.
(f) Acceptance of donations
(1) In general
For the purposes of carrying out this section, the Secretary may solicit, accept, receive, hold, administer, and use gifts, devises, and bequests without any further approval or administrative action.
(2) Monetary donations
A monetary gift, devise, or bequest accepted by the Secretary under paragraph (1) shall be credited as discretionary offsetting collections to the currently applicable appropriation, account, or fund of the Department of Commerce and shall be made available for such purposes only to the extent and in the amounts provided in advance in appropriations Acts.
(
§1421f–3. Reports to Congress
(a) Definition of appropriate committees of Congress
In this section, the term "appropriate committees of Congress" means—
(1) the Committee on Commerce, Science, and Transportation of the Senate;
(2) the Committee on Environment and Public Works of the Senate;
(3) the Committee on Natural Resources of the House of Representatives; and
(4) the Committee on Science, Space, and Technology of the House of Representatives.
(b) Health MAP status report
(1) In general
Not later than 2 years after December 23, 2022, the Administrator of the National Oceanic and Atmospheric Administration, in consultation with the Marine Mammal Commission, the Secretary of the Interior, and the National Ocean Research Leadership Council, shall submit to the appropriate committees of Congress a report describing the status of the Health MAP.
(2) Requirements
The report under paragraph (1) shall include—
(A) a detailed evaluation of the data made publicly available through the Health MAP;
(B) a detailed list of any gaps in data collected pursuant to the Health MAP, a description of the reasons for those gaps, and recommended actions to close those gaps;
(C) an analysis of the effectiveness of using the website of the Observation System as the platform to collect, organize, visualize, archive, and disseminate marine mammal stranding and health data;
(D) a list of publications, presentations, or other relevant work product resulting from, or produced in collaboration with, the Health MAP;
(E) a description of emerging marine mammal health concerns and the applicability of those concerns to human health;
(F) an analysis of the feasibility of the Observation System being used as an alert system during stranding events, entanglement events, and unusual mortality events for the stranding network, Observation System partners, Health MAP partners, Federal and State agencies, and local and Tribal governments;
(G) an evaluation of the use of Health MAP data to predict broader ecosystem events and changes that may impact marine mammal or human health and specific examples of proven or potential uses of Observation System data for those purposes; and
(H) recommendations for the Health MAP with respect to—
(i) filling any identified data gaps;
(ii) standards that could be used to improve data quality, accessibility, transmission, interoperability, and sharing;
(iii) any other strategies that would contribute to the effectiveness and usefulness of the Health MAP; and
(iv) the funding levels needed to maintain and improve the Health MAP.
(c) Data gap analysis
(1) In general
Not later than 5 years after the date on which the report required under subsection (b)(1) is submitted, and every 10 years thereafter, the Administrator of the National Oceanic and Atmospheric Administration, in consultation with the Marine Mammal Commission and the Director of the United States Fish and Wildlife Service, shall—
(A) make publicly available a report on the data gap analysis described in paragraph (2); and
(B) provide a briefing to the appropriate committees of Congress concerning that data gap analysis.
(2) Requirements
The data gap analysis under paragraph (1) shall include—
(A) an overview of existing participants within a marine mammal stranding network;
(B) an identification of coverage needs and participant gaps within a network;
(C) an identification of data and reporting gaps from members of a network; and
(D) an analysis of how stranding and health data are shared and made available to scientists, academics, State, local, and Tribal governments, and the public.
(d) Marine mammal response capabilities in the Arctic
(1) In general
Not later than 1 year after December 23, 2022, the Administrator of the National Oceanic and Atmospheric Administration, the Director of the United States Fish and Wildlife Service, and the Director of the United States Geologic Survey, in consultation with the Marine Mammal Commission, shall—
(A) make publicly available a report describing the response capabilities for sick and injured marine mammals in the Arctic regions of the United States; and
(B) provide a briefing to the appropriate committees of Congress on that report.
(2) Arctic
The term "Arctic" has the meaning given the term in
(3) Requirements
The report under paragraph (1) shall include—
(A) a description, developed in consultation with the Fish and Wildlife Service of the Department of the Interior, of all marine mammal stranding agreements in place for the Arctic region of the United States, including species covered, response capabilities, facilities and equipment, and data collection and analysis capabilities;
(B) a list of State and local government agencies that have personnel trained to respond to marine mammal strandings in the Arctic region of the United States;
(C) an assessment of potential response and data collection partners and sources of local information and knowledge, including Alaska Native people and villages;
(D) an analysis of spatial and temporal trends in marine mammal strandings and unusual mortality events that are correlated with changing environmental conditions in the Arctic region of the United States;
(E) a description of training and other resource needs to meet emerging response requirements in the Arctic region of the United States;
(F) an analysis of oiled marine mammal response and rehabilitation capabilities in the Arctic region of the United States, including personnel, equipment, facilities, training, and husbandry capabilities, and an assessment of factors that affect response and rehabilitation success rates; and
(G) recommendations to address future stranding response needs for marine mammals in the Arctic region of the United States.
(
§1421g. Authorization of appropriations
There is authorized to be appropriated—
(1) to the Secretary for carrying out this subchapter (other than
(2) to the Secretary for carrying out
(3) to the Fund, $500,000 for for 1 each of fiscal years 2023 through 2028.
(
Editorial Notes
Amendments
2022—Par. (1).
Par. (2).
Par. (3).
1994—Par. (1).
Par. (2).
§1421h. Definitions
In this subchapter, the following definitions apply:
(1) The term "entangle" or "entanglement" means an event in the wild in which a living or dead marine mammal has gear, rope, line, net, or other material wrapped around or attached to the marine mammal and is—
(A) on lands under the jurisdiction of the United States, including beaches and shorelines; or
(B) in waters under the jurisdiction of the United States, including any navigable waters.
(2) Except as used in
(3) The term "Health MAP" means the Marine Mammal Health Monitoring and Analysis Platform established under
(4) The term "Observation System" means the National Integrated Coastal and Ocean Observation System established under
(5) The term "Office" means the Office of Protected Resources, in the National Marine Fisheries Service.
(6) The term "stranding" means an event in the wild in which—
(A) a marine mammal is dead and is—
(i) on a beach or shore of the United States; or
(ii) in waters under the jurisdiction of the United States (including any navigable waters); or
(B) a marine mammal is alive and is—
(i) on a beach or shore of the United States and unable to return to the water;
(ii) on a beach or shore of the United States and, although able to return to the water, is in need of apparent medical attention; or
(iii) in the waters under the jurisdiction of the United States (including any navigable waters), but is unable to return to its natural habitat under its own power or without assistance.
(7) The term "stranding network participant" means a person who is authorized by an agreement under
(8) The term "Tissue Bank" means the National Marine Tissue Bank provided for under
(9) The term "unusual mortality event" means a stranding that—
(A) is unexpected;
(B) involves a significant die-off of any marine mammal population; and
(C) demands immediate response.
(
Editorial Notes
Amendments
2022—Par. (1).
Par. (2).
Pars. (3) to (9).
1994—Par. (1).
Par. (5).
SUBCHAPTER VI—POLAR BEARS
§1423. Definitions
In this subchapter:
(1) Agreement
The term "Agreement" means the Agreement Between the Government of the United States of America and the Government of the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population, signed at Washington, D.C., on October 16, 2000.
(2) Alaska Nanuuq Commission
The term "Alaska Nanuuq Commission" means the Alaska Native entity, in existence on January 12, 2007, that represents all villages in the State of Alaska that engage in the annual subsistence taking of polar bears from the Alaska-Chukotka population and any successor entity.
(3) Import
The term "import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, without regard to whether the landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.
(4) Polar bear part or product
The term "part or product of a polar bear" means any polar bear part or product, including the gall bile and gall bladder.
(5) Secretary
The term "Secretary" means the Secretary of the Interior.
(6) Taking
The term "taking" has the meaning given the term in the Agreement.
(7) Commission
The term "Commission" means the commission established under article 8 of the Agreement.
(
§1423a. Prohibitions
(a) In general
It is unlawful for any person who is subject to the jurisdiction of the United States or any person in waters or on lands under the jurisdiction of the United States—
(1) to take any polar bear in violation of the Agreement;
(2) to take any polar bear in violation of the Agreement or any annual taking limit or other restriction on the taking of polar bears that is adopted by the Commission pursuant to the Agreement;
(3) to import, export, possess, transport, sell, receive, acquire, or purchase, exchange, barter, or offer to sell, purchase, exchange, or barter any polar bear, or any part or product of a polar bear, that is taken in violation of paragraph (2);
(4) to import, export, sell, purchase, exchange, barter, or offer to sell, purchase, exchange, or barter, any polar bear gall bile or polar bear gall bladder;
(5) to attempt to commit, solicit another person to commit, or cause to be committed, any offense under this subsection; or
(6) to violate any regulation promulgated by the Secretary to implement any of the prohibitions established in this subsection.
(b) Exceptions
For the purpose of forensic testing or any other law enforcement purpose, the Secretary, and Federal law enforcement officials, and any State or local law enforcement official authorized by the Secretary, may import a polar bear or any part or product of a polar bear.
(
§1423b. Administration
(a) In general
The Secretary, acting through the Director of the United States Fish and Wildlife Service, shall do all things necessary and appropriate, including the promulgation of regulations, to implement, enforce, and administer the provisions of the Agreement on behalf of the United States. The Secretary shall consult with the Secretary of State and the Alaska Nanuuq Commission on matters involving the implementation of the Agreement.
(b) Utilization of other government resources and authorities
(1) Other government resources
The Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency, any State agency, or the Alaska Nanuuq Commission for purposes of carrying out this subchapter or the Agreement.
(2) Other powers and authorities
Any person authorized by the Secretary under this subsection to enforce this subchapter or the Agreement shall have the authorities that are enumerated in
(c) Ensuring compliance
(1) Subchapter II authorities
The Secretary may use authorities granted under subchapter II for enforcement, imposition of penalties, and the seizure of cargo for violations under this subchapter, provided that any polar bear or any part or product of a polar bear taken, imported, exported, possessed, transported, sold, received, acquired, purchased, exchanged, or bartered, or offered for sale, purchase, exchange, or barter in violation of this subchapter, shall be subject to seizure and forfeiture to the United States without any showing that may be required for assessment of a civil penalty or for criminal prosecution under this chapter.
(2) Additional authorities
Any gun, trap, net, or other equipment used, and any vessel, aircraft, or other means of transportation used, to aid in the violation or attempted violation of this subchapter shall be subject to seizure and forfeiture under
(d) Regulations
(1) In general
The Secretary shall promulgate such regulations as are necessary to carry out this subchapter and the Agreement.
(2) Ordinances and regulations
If necessary to carry out this subchapter and the Agreement, and to improve compliance with any annual taking limit or other restriction on taking adopted by the Commission and implemented by the Secretary in accordance with this subchapter, the Secretary may promulgate regulations that adopt any ordinance or regulation that restricts the taking of polar bears for subsistence purposes if the ordinance or regulation has been promulgated by the Alaska Nanuuq Commission.
(
§1423c. Cooperative management agreement; authority to delegate enforcement authority
(a) In general
The Secretary, acting through the Director of the United States Fish and Wildlife Service, may share authority under this subchapter for the management of the taking of polar bears for subsistence purposes with the Alaska Nanuuq Commission if such commission is eligible under subsection (b).
(b) Delegation
To be eligible for the management authority described in subsection (a), the Alaska Nanuuq Commission shall—
(1) enter into a cooperative agreement with the Secretary under
(2) meaningfully monitor compliance with this subchapter and the Agreement by Alaska Natives; and
(3) administer its co-management program for polar bears in accordance with—
(A) this subchapter; and
(B) the Agreement.
(
§1423d. Commission appointments; compensation, travel expenses, and claims
(a) Appointment of United States commissioners
(1) Appointment
The United States commissioners on the Commission shall be appointed by the President, in accordance with paragraph 2 of article 8 of the Agreement, after taking into consideration the recommendations of—
(A) the Secretary;
(B) the Secretary of State; and
(C) the Alaska Nanuuq Commission.
(2) Qualifications
With respect to the United States commissioners appointed under this subsection, in accordance with paragraph 2 of article 8 of the Agreement—
(A) 1 United States commissioner shall be an official of the Federal Government;
(B) 1 United States commissioner shall be a representative of the Native people of Alaska, and, in particular, the Native people for whom polar bears are an integral part of their culture; and
(C) both commissioners shall be knowledgeable of, or have expertise in, polar bears.
(3) Service and term
Each United States commissioner shall serve—
(A) at the pleasure of the President; and
(B) for an initial 4-year term and such additional terms as the President shall determine.
(4) Vacancies
(A) In general
Any individual appointed to fill a vacancy occurring before the expiration of any term of office of a United States commissioner shall be appointed for the remainder of that term.
(B) Manner
Any vacancy on the Commission shall be filled in the same manner as the original appointment.
(b) Alternate commissioners
(1) In general
The Secretary, in consultation with the Secretary of State and the Alaska Nanuuq Commission, shall designate an alternate commissioner for each member of the United States section.
(2) Duties
In the absence of a United States commissioner, an alternate commissioner may exercise all functions of the United States commissioner at any meetings of the Commission or of the United States section.
(3) Reappointment
An alternate commissioner—
(A) shall be eligible for reappointment by the President; and
(B) may attend all meetings of the United States section.
(c) Duties
The members of the United States section may carry out the functions and responsibilities described in article 8 of the Agreement in accordance with this subchapter and the Agreement.
(d) Compensation and expenses
(1) Compensation
A member of the United States section shall serve without compensation.
(2) Travel expenses
A member of the United States section shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of
(e) Agency designation
The United States section shall, for the purpose of title 28 relating to claims against the United States and tort claims procedure, be considered to be a Federal agency.
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§1423e. Votes taken by the United States section on matters before the Commission
In accordance with paragraph 3 of article 8 of the Agreement, the United States section, made up of commissioners appointed by the President, shall vote on any issue before the United States-Russia Polar Bear Commission only if there is no disagreement between the United States commissioners regarding the vote.
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§1423f. Implementation of actions taken by the Commission
(a) In general
The Secretary shall take all necessary actions to implement the decisions and determinations of the Commission under paragraph 7 of article 8 of the Agreement.
(b) Taking limitation
Not later than 60 days after the date on which the Secretary receives notice of the determination of the Commission of an annual taking limit, or of the adoption by the Commission of other restriction on the taking of polar bears for subsistence purposes, the Secretary shall publish a notice in the Federal Register announcing the determination or restriction.
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§1423g. Application with other subchapters of chapter
(a) In general
The authority of the Secretary under this subchapter is in addition to, and shall not affect—
(1) the authority of the Secretary under other subchapters 1 of this chapter or the Lacey Act Amendments of 1981 (
(2) the authorities provided under subchapter III of this chapter.
(b) Certain provisions inapplicable
The provisions of subchapters II through V of this chapter do not apply with respect to the implementation or administration of this subchapter, except as specified in
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Editorial Notes
References in Text
Other subchapters of this chapter, referred to in subsec. (a)(1), was in the original a reference to "other titles of this Act" meaning
The Lacey Act Amendments of 1981, referred to in subsec. (a)(1), is
1 See References in Text note below.
§1423h. Authorization of appropriations
(a) In general
There are authorized to be appropriated to the Secretary to carry out the functions and responsibilities of the Secretary under this subchapter and the Agreement $1,000,000 for each of fiscal years 2006 through 2010.
(b) Commission
There are authorized to be appropriated to the Secretary to carry out functions and responsibilities of the United States Section 1 $150,000 for each of fiscal years 2006 through 2010.
(c) Alaskan cooperative management program
There are authorized to be appropriated to the Secretary to carry out this subchapter and the Agreement in Alaska $150,000 for each of fiscal years 2006 through 2010.
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