1. U.S. Code
  2. title 16
  3. chapter 31
  4. subchapter II
  5. § 1387

Collapse to view only § 1387. Taking of marine mammals incidental to commercial fishing operations

§ 1371. Moratorium on taking and importing marine mammals and marine mammal products
(a) Imposition; exceptionsThere 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 section 1374 of this title, permits may be issued by the Secretary for taking, and importation for purposes of scientific research, public display, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock, or for importation of polar bear parts (other than internal organs) taken in sport hunts in Canada. Such permits, except permits issued under section 1374(c)(5) of this title, may be issued if the taking or 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. The Commission and Committee shall recommend any proposed taking or importation, other than importation under section 1374(c)(5) of this title, which is consistent with the purposes and policies of section 1361 of this title. If the Secretary issues such a permit for importation, the Secretary shall issue to the importer concerned a certificate to that effect in such form as the Secretary of the Treasury prescribes, and such importation may be made upon presentation of the certificate to the customs officer concerned.
(2) Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may be issued therefor under section 1374 of this title subject to regulations prescribed by the Secretary in accordance with section 1373 of this title, or in lieu of such permits, authorizations may be granted therefor under section 1387 of this title, subject to regulations prescribed under that section by the Secretary without regard to section 1373 of this title. Such authorizations may be granted under subchapter IV with respect to purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean, subject to regulations prescribed under that subchapter by the Secretary without regard to section 1373 of this title. In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate. The Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards. For purposes of applying the preceding sentence, the Secretary—
(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 section 1385(f) of this title; or
(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 section 1978(a) of title 22 for as long as such ban is in effect; and
(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 (16 U.S.C. 1822 note), except that, until January 1, 1994, the term “driftnet” does not include the use in the northeast Atlantic Ocean of gillnets with a total length not to exceed five kilometers if the use is in accordance with regulations adopted by the European Community pursuant to the October 28, 1991, decision by the Council of Fisheries Ministers of the Community.
(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 sections 1372, 1373, 1374, and 1381 of this title permitting and governing such taking and importing, in accordance with such determinations: Provided, however, That the Secretary, in making such determinations must be assured that the taking of such marine mammal is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this chapter: Provided, further, however, That no marine mammal or no marine mammal product may be imported into the United States unless the Secretary certifies that the program for taking marine mammals in the country of origin is consistent with the provisions and policies of this chapter. Products of nations not so certified may not be imported into the United States for any purpose, including processing for exportation.
(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 [16 U.S.C. 1531 et seq.], the Secretary shall recommend specific measures which may be used to nonlethally deter marine mammals. Actions to deter marine mammals consistent with such guidelines or specific measures shall not be a violation of this chapter.
(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 section 1379(f) of this title or, in the case of a cooperative agreement under both this chapter and the Whaling Convention Act of 1949 (16 U.S.C. 916 et seq.), pursuant to section 1382(c) of this title; and(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 (Public Law 107–314; 16 U.S.C. 703 note), clause (i) shall be applied—(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 Public Law 107–314; 16 U.S.C. 703 note), a determination of “least practicable adverse impact on such species or stock” under clause (i)(II)(aa) shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Before making the required determination, the Secretary shall consult with the Department of Defense regarding personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
(iv) Notwithstanding clause (i), for any authorization affecting a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16 U.S.C. 703 note), the Secretary shall publish the notice required by such clause only in the Federal Register.
(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) Sections 1373 and 1374 of this title shall not apply to the taking of marine mammals under the authority of this paragraph.
(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 section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title.
(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 section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title,(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 section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title, and(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 section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title.
(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 Public Law 107–314; 16 U.S.C. 703 note), a determination of “least practicable adverse impact on such species or stock” under clause (i)(I) 1
1 So in original. Probably should be a reference to cl. (ii)(I).
shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Before making the required determination, the Secretary shall consult with the Department of Defense regarding personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
(vii) Notwithstanding clause (iii), for any authorization affecting a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16 U.S.C. 703 note), the Secretary shall publish the notice required by such clause only in the Federal Register.
(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 section 1824(b) of this title, while engaging in commercial fishing operations, of marine mammals from a species or stock designated as depleted because of its listing as an endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) if the Secretary, after notice and opportunity for public comment, determines that—(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 section 1387 of this title, a monitoring program is established under subsection (d) of such section, vessels engaged in such fisheries are registered in accordance with such section, and a take reduction plan has been developed or is being developed for such species or stock.
(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 section 1387 of this title, shall issue an appropriate permit for each authorization granted under such section to vessels to which this paragraph applies. Vessels engaged in a fishery included in the notice published by the Secretary under this clause which are not required to register under section 1387 of this title shall not be subject to the penalties of this chapter for the incidental taking of marine mammals to which this paragraph applies, so long as the owner or master of such vessel reports any incidental mortality or injury of such marine mammals to the Secretary in accordance with section 1387 of this title.
(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 section 1387 of this title to protect such species or stock, and may modify any permit granted under this paragraph as necessary.
(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) Sections 1373 and 1374 of this title shall not apply to the taking of marine mammals under the authority of this subparagraph.
(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 (Public Law 99–625; 100 Stat. 3500).
(F) Notwithstanding the provisions of this subsection, any authorization affecting a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16 U.S.C. 703 note) shall not be subject to the following requirements:
(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 nativesExcept as provided in section 1379 of this title, the provisions of this chapter shall not apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking—
(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 section 1373 of this title and shall be removed as soon as the Secretary determines that the need for their imposition has disappeared. In promulgating any regulation or making any assessment pursuant to a hearing or proceeding under this subsection or section 1386(b)(2) of this title, or in making any determination of depletion under this subsection or finding regarding unmitigable adverse impacts under subsection (a)(5) that affects stocks or persons to which this subsection applies, the Secretary shall be responsible for demonstrating that such regulation, assessment, determination, or finding is supported by substantial evidence on the basis of the record as a whole. The preceding sentence shall only be applicable in an action brought by one or more Alaska Native organizations representing persons to which this subsection applies.
(c) Taking in defense of self or others
(d) Good Samaritan exemptionIt 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
(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.
(Pub. L. 92–522, title I, § 101, Oct. 21, 1972, 86 Stat. 1029; Pub. L. 93–205, § 13(e)(2), Dec. 28, 1973, 87 Stat. 903; Pub. L. 97–58, § 2, Oct. 9, 1981, 95 Stat. 979; Pub. L. 98–364, title I, § 101, July 17, 1984, 98 Stat. 440; Pub. L. 99–659, title IV, § 411(a), Nov. 14, 1986, 100 Stat. 3741; Pub. L. 100–711, §§ 4(a), 5(c), (e)(1), Nov. 23, 1988, 102 Stat. 4765, 4769, 4771; Pub. L. 101–627, title IX, § 901(g), Nov. 28, 1990, 104 Stat. 4467; Pub. L. 102–582, title I, § 103, title IV, § 401(b), Nov. 2, 1992, 106 Stat. 4903, 4909; Pub. L. 103–238, § 4, Apr. 30, 1994, 108 Stat. 532; Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 105–18, title II, § 2003, June 12, 1997, 111 Stat. 174; Pub. L. 105–42, § 4(a)–(c), Aug. 15, 1997, 111 Stat. 1123, 1124; Pub. L. 108–136, div. A, title III, § 319(b), (c), Nov. 24, 2003, 117 Stat. 1434; Pub. L. 115–232, div. A, title III, § 316, Aug. 13, 2018, 132 Stat. 1714.)

CITE AS: 16 USC 1371

§ 1372. Prohibitions
(a) TakingExcept as provided in sections 1371, 1373, 1374, 1379, 1381, 1383, 1383a, and 1387 of this title and subchapter V, it is unlawful—
(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 subsection 1374(c) of this title; and
(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 takingExcept pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock, issued under section 1374(c) of this title, it is unlawful to import into the United States any marine mammal if such mammal was—
(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 mammalsIt 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 prohibitionsSubsections (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
(f) Commercial taking of whales
(Pub. L. 92–522, title I, § 102, Oct. 21, 1972, 86 Stat. 1032; Pub. L. 93–205, § 13(e)(3), Dec. 28, 1973, 87 Stat. 903; Pub. L. 95–136, § 4, Oct. 18, 1977, 91 Stat. 1167; Pub. L. 97–58, § 3(a), Oct. 9, 1981, 95 Stat. 981; Pub. L. 100–711, §§ 2(b), 5(b), (e)(2), Nov. 23, 1988, 102 Stat. 4763, 4769, 4771; Pub. L. 102–587, title III, § 3004(a)(1), Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103–238, §§ 5(a), 13(c), 24(c)(9), Apr. 30, 1994, 108 Stat. 536, 558, 566.)

CITE AS: 16 USC 1372

§ 1373. Regulations on taking of marine mammals
(a) Necessity and appropriateness
(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 section 1374 of this title;
(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 section 1371(a)(3)(A) of this title and on such regulations, except that, in addition to any other requirements, imposed by law with respect to agency rulemaking, the Secretary shall publish and make available to the public either before or concurrent with the publication of notice in the Federal Register of his intention to prescribe regulations under this section—
(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
(f) Report to Congress
(Pub. L. 92–522, title I, § 103, Oct. 21, 1972, 86 Stat. 1033.)

CITE AS: 16 USC 1373

§ 1374. Permits
(a) Issuance
(b) Requisite provisionsAny permit issued under this section shall—
(1) be consistent with any applicable regulation established by the Secretary under section 1373 of this title, and
(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 7 U.S.C. 2131 et seq.; and
(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 section 1383b(b) of this title or any recovery plan developed under section 1533(f) of this title for the species or stock, or (II) if there is no conservation or recovery plan in place, with the Secretary’s evaluation of the actions required to enhance the survival or recovery of the species or stock in light of the factors that would be addressed in a conservation plan or a recovery plan.
(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 section 1383(d) of this title.
(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 sections 1371 and 1372 of this title. This subparagraph shall not apply to polar bear parts that were imported before June 12, 1997.
(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 section 1421a(a) of this title not to be releasable to the wild, the Secretary shall issue the permit to the person requesting the permit if that person—
(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 section 1373 of this title.
(4) If within thirty days after the date of publication of notice pursuant to paragraph (2) of this subsection with respect to any application for a permit any interested party or parties request a hearing in connection therewith, the Secretary may, within sixty days following such date of publication, afford to such party or parties an opportunity for such a hearing.
(5) As soon as practicable (but not later than thirty days) after the close of the hearing or, if no hearing is held, after the last day on which data, or views, may be submitted pursuant to paragraph (2) of this subsection, the Secretary shall (A) issue a permit containing such terms and conditions as he deems appropriate, or (B) shall deny issuance of a permit. Notice of the decision of the Secretary to issue or to deny any permit under this paragraph must be published in the Federal Register within ten days after the date of issuance or denial.
(6) Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review, which shall be pursuant to chapter 7 of title 5, may be initiated by filing a petition for review in the United States district court for the district wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia, within sixty days after the date on which such permit is issued or denied.
(e) Modification, suspension, and revocation
(1) The Secretary may modify, suspend, or revoke in whole or in part any permit issued by him under this section—
(A) in order to make any such permit consistent with any change made after the date of issuance of such permit with respect to any applicable regulation prescribed under section 1373 of this title,
(B) in any case in which a violation of the terms and conditions of the permit is found, or
(C) if, in the case of a permit under subsection (c)(5) 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 agentAny 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
(h) General permits
(1) Consistent with the regulations prescribed pursuant to section 1373 of this title and to the requirements of section 1371 of this title, the Secretary may issue an annual permit to a United States purse seine fishing vessel for the taking of such marine mammals, and shall issue regulations to cover the use of any such annual permits.
(2) Such annual permits for the incidental taking of marine mammals in the course of commercial purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean shall be governed by section 1416 of this title, subject to the regulations issued pursuant to section 1413 of this title.
(Pub. L. 92–522, title I, § 104, Oct. 21, 1972, 86 Stat. 1034; Pub. L. 98–364, title I, § 102, July 17, 1984, 98 Stat. 440; Pub. L. 100–711, §§ 4(d), 5(d), Nov. 23, 1988, 102 Stat. 4767, 4769; Pub. L. 103–238, § 5(b), Apr. 30, 1994, 108 Stat. 537; Pub. L. 105–18, title V, § 5004, June 12, 1997, 111 Stat. 187; Pub. L. 105–42, § 4(d), Aug. 15, 1997, 111 Stat. 1125; Pub. L. 105–277, div. A, § 101(e) [title I], Oct. 21, 1998, 112 Stat. 2681–231, 2681–238; Pub. L. 106–31, title V, § 5004(1), May 21, 1999, 113 Stat. 110; Pub. L. 108–108, title I, § 149, Nov. 10, 2003, 117 Stat. 1281.)

CITE AS: 16 USC 1374

§ 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 section 1387 of this title, may be assessed a civil penalty by the Secretary of not more than $10,000 for each such violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing with respect to such violation. Each unlawful taking or importation shall be a separate offense. Any such civil penalty may be remitted or mitigated by the Secretary for good cause shown. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect the penalty and such court shall have jurisdiction to hear and decide any such action.
(2) In any case involving an alleged unlawful importation of a marine mammal or marine mammal product, if such importation is made by an individual for his own personal or family use (which does not include importation as an accommodation to others or for sale or other commercial use), the Secretary may, in lieu of instituting a proceeding under paragraph (1), allow the individual to abandon the mammal or product, under procedures to be prescribed by the Secretary, to the enforcement officer at the port of entry.
(b) Any person who knowingly violates any provision of this subchapter or of any permit or regulation issued thereunder (except as provided in section 1387 of this title) shall, upon conviction, be fined not more than $20,000 for each such violation, or imprisoned for not more than one year, or both.
(Pub. L. 92–522, title I, § 105, Oct. 21, 1972, 86 Stat. 1036; Pub. L. 97–58, § 3(b), Oct. 9, 1981, 95 Stat. 982; Pub. L. 103–238, § 13(a), (b), Apr. 30, 1994, 108 Stat. 558.)

CITE AS: 16 USC 1375

§ 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 (16 U.S.C. 1362–1407) and implementing regulations shall be available to the Secretary, without further appropriation, to be used for the expenses of the United States Fish and Wildlife Service in administering activities for the protection and recovery of manatees, polar bears, sea otters, and walruses, and shall remain available until expended.

(Pub. L. 106–113, div. B, § 1000(a)(3) [title I], Nov. 29, 1999, 113 Stat. 1535, 1501A–139.)

CITE AS: 16 USC 1375a

§ 1376. Seizure and forfeiture of cargo
(a) Application of consistent provisions
(b) Penalties
(c) Reward for information leading to conviction
(Pub. L. 92–522, title I, § 106, Oct. 21, 1972, 86 Stat. 1036.)

CITE AS: 16 USC 1376

§ 1377. Enforcement
(a) Utilization of personnel
(b) State officers and employees
(c) Warrants and other process for enforcement
(d) Execution of process; arrest; search; seizureAny 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 section 1375(a) of this title, all marine mammals and marine mammal products or other cargo seized in connection therewith may be proceeded against in any court of competent jurisdiction and forfeited to the Secretary for disposition by him in such manner as he deems appropriate.
(B) Upon conviction for violation of section 1375(b) of this title, all marine mammals and marine mammal products seized in connection therewith shall be forfeited to the Secretary for disposition by him in such manner as he deems appropriate. Any other property or item so seized may, at the discretion of the court, be forfeited to the United States or otherwise disposed of.
(4) If with respect to any marine mammal or marine mammal product or other cargo so seized—
(A) a civil penalty is assessed under section 1375(a) of this title and no judicial action is commenced to obtain the forfeiture of such mammal or product within thirty days after such assessment, such marine mammal or marine mammal product or other cargo shall be immediately returned to the owner or the consignee; or
(B) no conviction results from an alleged violation of section 1375(b) of this title, such marine mammal or marine mammal product or other cargo shall immediately be returned to the owner or consignee if the Secretary does not, with 1
1 So in original. Probably should be “within”.
thirty days after the final disposition of the case involving such alleged violation, commence proceedings for the assessment of a civil penalty under section 1375(a) of this title.
(Pub. L. 92–522, title I, § 107, Oct. 21, 1972, 86 Stat. 1037; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 109–479, title IX, § 902(c), Jan. 12, 2007, 120 Stat. 3665.)

CITE AS: 16 USC 1377

§ 1378. International program
(a) Duties of SecretaryThe Secretary, through the Secretary of State, shall—
(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of all marine mammals covered by this chapter;
(2) initiate—
(A) negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which are found by the Secretary to be unduly harmful to any species or population stock of marine mammal, for the purpose of entering into bilateral and multilateral treaties with such countries to protect marine mammals, with the Secretary of State to prepare a draft agenda relating to this matter for discussion at appropriate international meetings and forums;
(B) discussions with foreign governments whose vessels harvest yellowfin tuna with purse seines in the eastern tropical Pacific Ocean, for the purpose of concluding, through the Inter-American Tropical Tuna Commission or such other bilateral or multilateral institutions as may be appropriate, international arrangements for the conservation of marine mammals taken incidentally in the course of harvesting such tuna, which should include provisions for (i) cooperative research into alternative methods of locating and catching yellowfin tuna which do not involve the taking of marine mammals, (ii) cooperative research on the status of affected marine mammal population stocks, (iii) reliable monitoring of the number, rate, and species of marine mammals taken by vessels of harvesting nations, (iv) limitations on incidental take levels based upon the best scientific information available, and (v) the use of the best marine mammal safety techniques and equipment that are economically and technologically practicable to reduce the incidental kill and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury rate;
(C) negotiations to revise the Convention for the Establishment of an Inter-American Tropical Tuna Commission (1 U.S.T. 230; TIAS 2044) which will incorporate—
(i) the conservation and management provisions agreed to by the nations which have signed the Declaration of Panama and in the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement, as opened for signature on December 4, 1995; and
(ii) a revised schedule of annual contributions to the expenses of the Inter-American Tropical Tuna Commission that is equitable to participating nations; and
(D) discussions with those countries participating, or likely to participate, in the International Dolphin Conservation Program, for the purpose of identifying sources of funds needed for research and other measures promoting effective protection of dolphins, other marine species, and the marine ecosystem;
(3) encourage such other agreements to promote the purposes of this chapter with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of marine mammals;
(4) initiate the amendment of any existing international treaty for the protection and conservation of any species of marine mammal to which the United States is a party in order to make such treaty consistent with the purposes and policies of this chapter;
(5) seek the convening of an international ministerial meeting on marine mammals before July 1, 1973, for the purposes of (A) the negotiation of a binding international convention for the protection and conservation of all marine mammals, and (B) the implementation of paragraph (3) of this section; and
(6) provide to the Congress by not later than one year after October 21, 1972, a full report on the results of his efforts under this section.
(b) Consultations and studies concerning North Pacific fur seals
(1) In addition to the foregoing, the Secretary shall—
(A) in consultation with the Marine Mammal Commission established by section 1401 of this title, undertake a study of the North Pacific fur seals to determine whether herds of such seals subject to the jurisdiction of the United States are presently at their optimum sustainable population and what population trends are evident; and
(B) in consultation with the Secretary of State, promptly undertake a comprehensive study of the provisions of this chapter, as they relate to North Pacific fur seals, and the provisions of the North Pacific Fur Seal Convention signed on February 9, 1957, as extended (hereafter referred to in this subsection as the “Convention”), to determine what modifications, if any, should be made to the provisions of the Convention, or of this chapter, or both, to make the Convention and this chapter consistent with each other.
The Secretary shall complete the studies required under this paragraph not later than one year after October 21, 1972, and shall immediately provide copies thereof to Congress.
(2) If the Secretary finds—
(A) as a result of the study required under paragraph (1)(A) of this subsection, that the North Pacific fur seal herds are below their optimum sustainable population and are not trending upward toward such level, or have reached their optimum sustainable population but are commencing a downward trend, and believes the herds to be in danger of depletion; or
(B) as a result of the study required under paragraph (1)(B) of this subsection, that modifications of the Convention are desirable to make it and this chapter consistent;
he shall, through the Secretary of State, immediately initiate negotiations to modify the Convention so as to (i) reduce or halt the taking of seals to the extent required to assure that such herds attain and remain at their optimum sustainable population, or (ii) make the Convention and this chapter consistent; or both, as the case may be. If negotiations to so modify the Convention are unsuccessful, the Secretary shall, through the Secretary of State, take such steps as may be necessary to continue the existing Convention beyond its present termination date so as to continue to protect and conserve the North Pacific fur seals and to prevent a return to pelagic sealing.
(c) Description of annual results of discussions; proposals for further action
(Pub. L. 92–522, title I, § 108, Oct. 21, 1972, 86 Stat. 1038; Pub. L. 100–711, § 4(b), (c), Nov. 23, 1988, 102 Stat. 4766, 4767; Pub. L. 105–42, § 4(e), Aug. 15, 1997, 111 Stat. 1125.)

CITE AS: 16 USC 1378

§ 1379. Transfer of management authority
(a)
(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 section 1371 of this title; and
(B) the Secretary shall continue to regulate, under this subchapter, all takings of the species within the State.
(3) After the determination required under paragraph (1)(C)(i) regarding a species is final and implemented under State law and after a cooperative allocation agreement described in subsection (d)(1), if required, is implemented for such species—
(A) such determination shall be treated, for purposes of applying this subchapter beyond the territory of the State, as a determination made in accordance with section 1373 of this title and as an applicable waiver under section 1371(a)(3) of this title;
(B) the Secretary shall regulate, without regard to this section other than the allocations specified under such an agreement, the taking of the species—
(i) incidentally in the course of commercial fishing operations (whether provided for under section 1371(a)(2) or (4) of this title), or in the course of other specified activities provided for under section 1371(a)(5) of this title, in the zone described in section 1362(14)(B) 1
1 See References in Text note below.
of this title, and
(ii) for scientific research, public display, or enhancing the survival or recovery of a species or stock (other than by, or on behalf of, the State), except that any taking authorized under a permit issued pursuant to section 1371(a)(1) of this title after October 9, 1981, allowing the removal of live animals from habitat within the State shall not be effective if the State agency disapproves, on or before the date of issuance of the permit, such taking as being inconsistent with the State program; and
(C)section 1371(b) of this title shall not apply.
(c) Standards with which State process must complyThe 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 section 1852 of this title) shall enter into a cooperative allocation agreement providing procedures for allocating, on a timely basis, such of the number of animals, as determined under paragraph (1)(C)(i)(II) of subsection (b), as may be appropriate with priority of allocation being given firstly to taking for subsistence uses in the case of the State of Alaska, and secondly to taking for purposes provided for under section 1371(a) of this title within the zone described in section 1362(14)(B) 1 of this title.
(2) If the State agency requests the Secretary to regulate the taking of a species to which paragraph (1) applies within the zone described in section 1362(14)(B) 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 section 1371(a) of this title within such zone. The Secretary shall adopt such provisions through the issuance of regulations under section 553 of title 5, and with respect to such issuance the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Paperwork Reduction Act,1 Executive Order Numbered 12291, dated February 17, 1981, and the thirty-day notice requirement in subsection (d) of such section 553 shall not apply. For purposes of sections 1375, 1376, and 1377 of this title, such regulations shall be treated as having been issued under this subchapter.
(e) Revocation of transfer of management authority
(1) Subject to paragraph (2), the Secretary shall revoke, after opportunity for a hearing, any transfer of management authority made to a State under subsection (b)(1) 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, section 1371(b) of this title and subsection (i) of this section shall apply upon such revocation or return of management authority).
(f) Transfer of management authority to State of Alaska
(1) The Secretary may not transfer management authority to the State of Alaska under subsection (b)(1) 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
(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 section 1382(c) of this title from taking, in the course of his or her duties as an official, employee, or designee, a marine mammal in a humane manner (including euthanasia) if such taking is for—
(A) the protection or welfare of the mammal,
(B) the protection of the public health and welfare, or
(C) the nonlethal removal of nuisance animals.
(2) Nothing in this subchapter shall prevent the Secretary or a person designated under section 1382(c) of this title from importing a marine mammal into the United States if such importation is necessary to render medical treatment that is not otherwise available.
(3) In any case in which it is feasible to return to its natural habitat a marine mammal taken or imported under circumstances described in this subsection, steps to achieve that result shall be taken.
(i) Regulations covering taking of marine mammals by Alaskan natives
(j) Grants to develop or administer State conservation and management programsThe 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
(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.
(Pub. L. 92–522, title I, § 109, Oct. 21, 1972, 86 Stat. 1040; Pub. L. 95–316, § 1, July 10, 1978, 92 Stat. 380;

CITE AS: 16 USC 1379

§ 1380. Marine mammal research grants
(a) Authorization; research concerning yellowfin tuna; annual report
(b) Terms and conditions
(c) Gulf of Maine ecosystem protection
(1) No later than 1 year after April 30, 1994, the Secretary of Commerce shall convene a regional workshop for the Gulf of Maine to assess human-caused factors affecting the health and stability of that marine ecosystem, of which marine mammals are a part. The workshop shall be conducted in consultation with the Marine Mammal Commission, the adjacent coastal States, individuals with expertise in marine mammal biology and ecology, representatives from environmental organizations, the fishing industry, and other appropriate persons. The goal of the workshop shall be to identify such factors, and to recommend a program of research and management to restore or maintain that marine ecosystem and its key components that—
(A) protects and encourages marine mammals to develop to the greatest extent feasible commensurate with sound policies of resource management;
(B) has as the primary management objective the maintenance of the health and stability of the marine ecosystems;
(C) ensures the fullest possible range of management options for future generations; and
(D) permits nonwasteful, environmentally sound development of renewable and nonrenewable resources.
(2) On or before December 31, 1995, the Secretary of Commerce shall submit to the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committee on Commerce, Science and Transportation of the Senate a report containing the results of the workshop under this subsection, proposed regulatory or research actions, and recommended legislative action.
(d) Bering Sea ecosystem protection
(1) The Secretary of Commerce, in consultation with the Secretary of the Interior, the Marine Mammal Commission, the State of Alaska, and Alaska Native organizations, shall, not later than 180 days after April 30, 1994, undertake a scientific research program to monitor the health and stability of the Bering Sea marine ecosystem and to resolve uncertainties concerning the causes of population declines of marine mammals, sea birds, and other living resources of that marine ecosystem. The program shall address the research recommendations developed by previous workshops on Bering Sea living marine resources, and shall include research on subsistence uses of such resources and ways to provide for the continued opportunity for such uses.
(2) To the maximum extent practicable, the research program undertaken pursuant to paragraph (1) shall be conducted in Alaska. The Secretary of Commerce shall utilize, where appropriate, traditional local knowledge and may contract with a qualified Alaska Native organization to conduct such research.
(3) The Secretary of Commerce, the Secretary of the Interior, and the Commission shall address the status and findings of the research program in their annual reports to Congress required by sections 1373(f) and 1404 of this title.1
1 See References in Text note below.
(Pub. L. 92–522, title I, § 110, Oct. 21, 1972, 86 Stat. 1041; Pub. L. 95–136, § 1, Oct. 18, 1977, 91 Stat. 1167; Pub. L. 95–316, § 2, July 10, 1978, 92 Stat. 380; Pub. L. 97–58, § 5, Oct. 9, 1981, 95 Stat. 986; Pub. L. 100–711, § 4(e), Nov. 23, 1988, 102 Stat. 4768; Pub. L. 103–238, § 20, Apr. 30, 1994, 108 Stat. 560; Pub. L. 105–42, § 4(f), Aug. 15, 1997, 111 Stat. 1125.)

CITE AS: 16 USC 1380

§ 1381. Commercial fisheries gear development
(a) Research and development program; report to Congress; authorization of appropriations
(b) Reduction of level of taking of marine mammals incidental to commercial fishing operations
(c) Reduction of level of taking of marine mammals in tuna fishery
(d) Research and observation
(Pub. L. 92–522, title I, § 111, Oct. 21, 1972, 86 Stat. 1041.)

CITE AS: 16 USC 1381

§ 1382. Regulations and administration
(a) Consultation with Federal agencies
(b) Cooperation by Federal agencies
(c) Contracts, leases, and cooperative agreements
(d) Annual review; suspension of program
(e) Measures to alleviate impacts on strategic stocks
(Pub. L. 92–522, title I, § 112, Oct. 21, 1972, 86 Stat. 1042; Pub. L. 96–470, title II, § 201(e), Oct. 19, 1980, 94 Stat. 2241; Pub. L. 102–587, title III, § 3004(a)(3), Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103–238, §§ 7(a), 24(c)(11), Apr. 30, 1994, 108 Stat. 542, 566.)

CITE AS: 16 USC 1382

§ 1383. Application to other treaties and conventions
(a) Generally; findings; waiver of penalties
(b) Review of effectiveness of Agreement on the Conservation of Polar Bears
(c) Review of implementation of Agreement on the Conservation of Polar Bears; report
(d) Consultation regarding conservation of polar bears in Russia and Alaska; report
(Pub. L. 92–522, title I, § 113, Oct. 21, 1972, 86 Stat. 1042; Pub. L. 103–238, § 7(b), Apr. 30, 1994, 108 Stat. 542.)

CITE AS: 16 USC 1383

§ 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 section 1387 of this title, or until September 1, 1995, whichever is earlier, except as provided in paragraph (2), the provisions of this section, rather than sections 1371, 1373, and 1374 of this title, shall govern the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States and vessels which have valid fishing permits issued by the Secretary in accordance with section 1824(b) of this title. In any event it shall be the immediate goal that the incidental kill or serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.
(2) The provisions of this section other than subsection (e)(6)(A) shall not govern the incidental taking of marine mammals in the course of commercial yellowfin tuna fishing subject to section 1374(h)(2) of this title.
(b) Proposed and final list of fisheries taking marine mammals; publication in Federal Register; grant of exemption; conditions; suspension of grant of exemption; administration of exemption provisions; fees
(1) The Secretary shall, after consultation with the Marine Mammal Commission—
(A) publish in the Federal Register, for public comment, not later than sixty days after November 23, 1988, a proposed list of those fisheries, along with a statement of the marine mammals and the approximate number of vessels or persons involved in each such fishery, that have—
(i) frequent incidental taking of marine mammals;
(ii) occasional incidental taking of marine mammals; or
(iii) a remote likelihood of or no known incidental taking of marine mammals;
(B) publish in the Federal Register not later than one hundred and twenty days after November 23, 1988, a final list of the fisheries and other information required by paragraph (A), together with a summary of the provisions of this section and information sufficient to advise vessel owners on how to obtain an exemption and otherwise comply with the requirements of this section; and
(C) at least once each year thereafter, and at such other times as the Secretary considers appropriate, reexamine, based on information gathered from the program established under subsections (c), (d), (e), and (f), and other relevant sources and after notice and opportunity for public comment, the classification of fisheries and other determinations required under subparagraph (A) and publish in the Federal Register any necessary changes.
(2)
(A) An exemption shall be granted by the Secretary in accordance with this section for a vessel engaged in a fishery identified under paragraph (1)(A)(i) or (ii), upon receipt by the Secretary of a completed registration form providing the name of the vessel owner, the name and description of the vessel, the fisheries in which it will be engaged, and such other information as the Secretary considers necessary. A decal or other physical evidence that the exemption is current and valid shall be issued by the Secretary at the time an exemption is granted, and so long as the exemption remains current and valid, shall be reissued annually thereafter.
(B) No exemption may be granted under this section to the owner of a vessel unless such vessel—
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in accordance with section 1824(b) of this title.
(C) Notwithstanding any other provision of this subchapter, exemptions granted under this section shall authorize the incidental taking of marine mammals, other than California sea otters, from any species or stock, including a population stock designated as depleted, but shall not authorize the intentional lethal taking of any Steller sea lion, any cetacean, or any marine mammals from a population stock designated as depleted.
(3)
(A) Beginning two hundred and forty days after November 23, 1988, each owner of a vessel engaged in any fishery identified under paragraph (1)(A)(i) or (ii) shall, in order to engage lawfully in that fishery—
(i) have registered with the Secretary in order to obtain for each such vessel owned an exemption for the purpose of incidentally taking marine mammals in accordance with this section;
(ii) ensure that a decal or such other physical evidence of a current and valid exemption as the Secretary may require is displayed on or is in the possession of the master of each such vessel; and
(iii) report as required by subsection (c).
(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; contentsThe 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
1 So in original. Probably should not be capitalized.
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 section 1374 of this title that is ill, disabled, injured, or killed from service as an observer on that vessel may not bring a civil action under any law of the United States for that illness, disability, injury, or death against the vessel or vessel owner, except that a civil action may be brought against the vessel owner for the owner’s willful misconduct.
(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
(i) Utilization of services of State and Federal agencies and private entities
(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
(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 section 1374(h)(2) of this title, after October 1, 1993. Such guidelines shall be developed by the Commission and its Committee of Scientific Advisers on Marine Mammals and shall—
(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 section 1374(h)(2) of this title, after October 1, 1993. The suggested regime shall include—
(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 section 1374(h)(2) of this title, after October 1, 1993. The recommendations shall include—
(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
(n) Owner of fixed commercial fishing gear deemed owner of vessel engaged in fishery in which gear deployed
(o) DefinitionsAs used in this section—
(1) the term “fishery” has the same meaning as it does in section 1802(8) 2
2 See References in Text note below.
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 section 2101(12) of title 46 or a fish processing vessel as defined in section 2101(13) of that title, which is engaged in fishery.
(4) the term “vessel of the United States” has the same meaning as it does in section 1802(27) 2 of this title.
(Pub. L. 92–522, title I, § 114, as added Pub. L. 100–711, § 2(a)(2), Nov. 23, 1988, 102 Stat. 4755; amended Pub. L. 103–86, Sept. 30, 1993, 107 Stat. 930; Pub. L. 103–228, Mar. 31, 1994, 108 Stat. 281; Pub. L. 103–238, § 15(a), Apr. 30, 1994, 108 Stat. 559; Pub. L. 104–43, title IV, § 404(a)(1), Nov. 3, 1995, 109 Stat. 390; Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 115–232, div. C, title XXXV, § 3541(b)(1), Aug. 13, 2018, 132 Stat. 2323.)

CITE AS: 16 USC 1383a

§ 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 section 553 of title 5, the Secretary may issue a final rule as to the status of a species or stock any time sixty or more days after a positive finding under subparagraph (B) if the Secretary determines there is substantial information available to warrant such final status determination and further delay would pose a significant risk to the well-being of any species or stock. Along with the final rule, the Secretary shall publish in the Federal Register detailed reasons for the expedited determination.
(b) Conservation plans; preparation and implementation
(1) The Secretary shall prepare conservation plans—
(A) By 1
1 So in original. Probably should not be capitalized.
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 section 1533(f) of this title.
(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 section 1373(f) of this title what measures have been taken to prepare and implement such plans.
(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 section 1387(f)(1) of this title, any conservation plan prepared under this subsection for such species or stock shall incorporate the take reduction plan required under section 1387 of this title for such species or stock.
(Pub. L. 92–522, title I, § 115, as added Pub. L. 100–711, § 3(a), Nov. 23, 1988, 102 Stat. 4763; amended Pub. L. 103–238, § 8, Apr. 30, 1994, 108 Stat. 543.)

CITE AS: 16 USC 1383b

§ 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 sections 1386 and 1387 of this title) and subchapter V, $12,138,000 for fiscal year 1994, $12,623,000 for fiscal year 1995, $13,128,000 for fiscal year 1996, $13,653,000 for fiscal year 1997, $14,200,000 for fiscal year 1998, and $14,768,000 for fiscal year 1999.
(2) There are authorized to be appropriated to the Department of Commerce, for purposes of carrying out sections 1386 and 1387 of this title, $20,000,000 for each of the fiscal years 1994 through 1999.
(b) Department of the Interior
(Pub. L. 92–522, title I, § 116, formerly § 114, Oct. 21, 1972, 86 Stat. 1043; Pub. L. 95–136, § 2, Oct. 18, 1977, 91 Stat. 1167; Pub. L. 95–316, § 3, July 10, 1978, 92 Stat. 380; renumbered § 116, Pub. L. 100–711, § 2(a)(1), Nov. 23, 1988, 102 Stat. 4755; Pub. L. 103–238, § 9(a), Apr. 30, 1994, 108 Stat. 543.)

CITE AS: 16 USC 1384

§ 1385. Dolphin protection
(a) Short title
(b) FindingsThe 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) DefinitionsFor 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 (16 U.S.C. 1822 note);
(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 section 45 of title 15 for any producer, importer, exporter, distributor, or seller of any tuna product that is exported from or offered for sale in the United States to include on the label of that product the term “dolphin safe” or any other term or symbol that falsely claims or suggests that the tuna contained in the product were harvested using a method of fishing that is not harmful to dolphins if the product contains tuna harvested—
(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
1 See References in Text note below.
(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 section 45 of title 15 to label a tuna product with any label or mark that refers to dolphins, porpoises, or marine mammals other than the mark developed under subparagraph (A) unless—
(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 section 45 of title 15 willingly and knowingly to use a label referred to in subparagraph (C) in a campaign or effort to mislead or deceive consumers about the level of protection afforded dolphins under the International Dolphin Conservation Program.
(e) Additional prohibitions and enforcement
(f) RegulationsThe 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
2 So in original. Probably should be “this subsection”.
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 section 1414a(a) of this title, information obtained under the International Dolphin Conservation Program, and any other relevant information, make an initial finding regarding whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean. The initial finding shall be published immediately in the Federal Register and shall become effective upon a subsequent date determined by the Secretary.
(2) Between July 1, 2001, and December 31, 2002, the Secretary shall, on the basis of the completed study conducted under section 1414a(a) of this title, information obtained under the International Dolphin Conservation Program, and any other relevant information, make a finding regarding whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean. The finding shall be published immediately in the Federal Register and shall become effective upon a subsequent date determined by the Secretary.
(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.
(Pub. L. 101–627, title IX, § 901, Nov. 28, 1990, 104 Stat. 4465; Pub. L. 105–42, § 5, Aug. 15, 1997, 111 Stat. 1125; Pub. L. 114–81, title I, § 109, Nov. 5, 2015, 129 Stat. 659.)

CITE AS: 16 USC 1385

§ 1386. Stock assessments
(a) In generalNot 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 section 1371(b) of this title applies, the Secretary shall conduct a proceeding on the record prior to publishing a final stock assessment or any revision thereof for any stock subject to taking under section 1371(b) of this title.
(3) After consideration of the best scientific information available, the advice of the appropriate regional scientific review group established under subsection (d), 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 section 1371(b) of this title. The Secretary of Commerce shall, to the maximum extent practicable, attempt to achieve a balanced representation of viewpoints among the individuals on each regional scientific review group. The regional scientific review groups shall advise the Secretary on—
(A) population estimates and the population status and trends of such stocks;
(B) uncertainties and research needed regarding stock separation, abundance, or trends, and factors affecting the distribution, size, or productivity of the stock;
(C) uncertainties and research needed regarding the species, number, ages, gender, and reproductive status of marine mammals;
(D) research needed to identify modifications in fishing gear and practices likely to reduce the incidental mortality and serious injury of marine mammals in commercial fishing operations;
(E) the actual, expected, or potential impacts of habitat destruction, including marine pollution and natural environmental change, on specific marine mammal species or stocks, and for strategic stocks, appropriate conservation or management measures to alleviate any such impacts; and
(F) any other issue which the Secretary or the groups consider appropriate.
(2) The scientific review groups established under this subsection shall not be subject to chapter 10 of title 5.
(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
(Pub. L. 92–522, title I, § 117, as added Pub. L. 103–238, § 10, Apr. 30, 1994, 108 Stat. 543; amended Pub. L. 117–286, § 4(a)(108), Dec. 27, 2022, 136 Stat. 4317.)

CITE AS: 16 USC 1386

§ 1387. Taking of marine mammals incidental to commercial fishing operations
(a) In general
(1) Effective on April 30, 1994, and except as provided in section 1383a of this title and in paragraphs (2), (3), and (4) of this subsection, the provisions of this section shall govern the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States or vessels which have valid fishing permits issued by the Secretary in accordance with section 1824(b) of this title. In any event it shall be the immediate goal that the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate within 7 years after April 30, 1994.
(2) In the case of the incidental taking of marine mammals from species or stocks designated under this chapter as depleted on the basis of their listing as threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), both this section and section 1371(a)(5)(E) of this title shall apply.
(3) Sections 1
1 So in original. Probably should be “Section”.
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 (Public Law 99–625; 100 Stat. 3500).
(5) Except as provided in section 1371(c) of this title, the intentional lethal take of any marine mammal in the course of commercial fishing operations is prohibited.
(6) Sections 1373 and 1374 of this title shall not apply to the incidental taking of marine mammals under the authority of this section.
(b) Zero mortality rate goal
(1) Commercial fisheries shall reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury rate within 7 years after April 30, 1994.
(2) Fisheries which maintain insignificant serious injury and mortality levels approaching a zero rate shall not be required to further reduce their mortality and serious injury rates.
(3) Three years after April 30, 1994, the Secretary shall review the progress of all commercial fisheries, by fishery, toward reducing incidental mortality and serious injury to insignificant levels approaching a zero rate. The Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives a report setting forth the results of such review within 1 year after commencement of the review. The Secretary shall note any commercial fishery for which additional information is required to accurately assess the level of incidental mortality and serious injury of marine mammals in the fishery.
(4) If the Secretary determines after review under paragraph (3) that the rate of incidental mortality and serious injury of marine mammals in a commercial fishery is not consistent with paragraph (1), then the Secretary shall take appropriate action under subsection (f).
(c) Registration and authorization
(1) The Secretary shall, within 90 days after April 30, 1994—
(A) publish in the Federal Register for public comment, for a period of not less than 90 days, any necessary changes to the Secretary’s list of commercial fisheries published under section 1383a(b)(1) of this title and which is in existence on March 31, 1994 (along with an explanation of such changes and a statement describing the marine mammal stocks interacting with, and the approximate number of vessels or persons actively involved in, each such fishery), with respect to commercial fisheries that have—
(i) frequent incidental mortality and serious injury of marine mammals;
(ii) occasional incidental mortality and serious injury of marine mammals; or
(iii) a remote likelihood of or no known incidental mortality or serious injury of marine mammals;
(B) after the close of the period for such public comment, publish in the Federal Register a revised list of commercial fisheries and an update of information required by subparagraph (A), together with a summary of the provisions of this section and information sufficient to advise vessel owners on how to obtain an authorization and otherwise comply with the requirements of this section; and
(C) at least once each year thereafter, and at such other times as the Secretary considers appropriate, reexamine, based on information gathered under this chapter and other relevant sources and after notice and opportunity for public comment, the classification of commercial fisheries and other determinations required under subparagraph (A) and publish in the Federal Register any necessary changes.
(2)
(A) An authorization shall be granted by the Secretary in accordance with this section for a vessel engaged in a commercial fishery listed under paragraph (1)(A)(i) or (ii), upon receipt by the Secretary of a completed registration form providing the name of the vessel owner and operator, the name and description of the vessel, the fisheries in which it will be engaged, the approximate time, duration, and location of such fishery operations, and the general type and nature of use of the fishing gear and techniques used. Such information shall be in a readily usable format that can be efficiently entered into and utilized by an automated or computerized data processing system. A decal or other physical evidence that the authorization is current and valid shall be issued by the Secretary at the time an authorization is granted, and so long as the authorization remains current and valid, shall be reissued annually thereafter.
(B) No authorization may be granted under this section to the owner of a vessel unless such vessel—
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in accordance with section 1824(b) of this title.
(C) Except as provided in subsection (a), an authorization granted under this section shall allow the incidental taking of all species and stocks of marine mammals to which this chapter applies.
(3)
(A) An owner of a vessel engaged in any fishery listed under paragraph (1)(A)(i) or (ii) shall, in order to engage in the lawful incidental taking of marine mammals in a commercial fishery—
(i) have registered as required under paragraph (2) with the Secretary in order to obtain for each such vessel owned and used in the fishery an authorization for the purpose of incidentally taking marine mammals in accordance with this section, except that owners of vessels holding valid certificates of exemption under section 1383a of this title are deemed to have registered for purposes of this subsection for the period during which such exemption is valid;
(ii) ensure that a decal or such other physical evidence of a current and valid authorization as the Secretary may require is displayed on or is in the possession of the master of each such vessel;
(iii) report as required by subsection (e); 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 section 1383a of this title shall not bar authorization under this section for an owner who complies with the requirements of this section.
(B) The Secretary may suspend or revoke an authorization granted under this subsection, and may not issue a decal or other physical evidence of the authorization for any vessel which fails to comply with a take reduction plan or emergency regulations issued under this section.
(C) The owner and master of a vessel which fails to comply with a take reduction plan shall be subject to the penalties of sections 1375 and 1377 of this title, and may be subject to section 1376 of this title.
(5)
(A) The Secretary shall develop, in consultation with the appropriate States, affected Regional Fishery Management Councils, and other interested persons, the means by which the granting and administration of authorizations under this section shall be integrated and coordinated, to the maximum extent practicable, with existing fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of general circulation, fishery trade associations, electronic media, and other means of advising commercial fishermen of the provisions of this section and the means by which they can comply with its requirements.
(C) The Secretary is authorized to charge a fee for the granting of an authorization under this section. The level of fees charged under this subparagraph shall not exceed the administrative costs incurred in granting an authorization. Fees collected under this subparagraph shall be available to the Under Secretary of Commerce for Oceans and Atmosphere for expenses incurred in the granting and administration of authorizations under this section.
(d) Monitoring of incidental takes
(1) The Secretary shall establish a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations. The purposes of the monitoring program shall be to—
(A) obtain statistically reliable estimates of incidental mortality and serious injury;
(B) determine the reliability of reports of incidental mortality and serious injury under subsection (e); and
(C) identify changes in fishing methods or technology that may increase or decrease incidental mortality and serious injury.
(2) Pursuant to paragraph (1), the Secretary may place observers on board vessels as necessary, subject to the provisions of this section. Observers may, among other tasks—
(A) record incidental mortality and injury, or by catch of other nontarget species;
(B) record numbers of marine mammals sighted; and
(C) perform other scientific investigations.
(3) In determining the distribution of observers among commercial fisheries and vessels within a fishery, the Secretary shall be guided by the following standards:
(A) The requirement to obtain statistically reliable information.
(B) The requirement that assignment of observers is fair and equitable among fisheries and among vessels in a fishery.
(C) The requirement that no individual person or vessel, or group of persons or vessels, be subject to excessive or overly burdensome observer coverage.
(D) To the extent practicable, the need to minimize costs and avoid duplication.
(4) To the extent practicable, the Secretary shall allocate observers among commercial fisheries in accordance with the following priority:
(A) The highest priority for allocation shall be for commercial fisheries that have incidental mortality or serious injury of marine mammals from stocks listed as endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
(B) The second highest priority for allocation shall be for commercial fisheries that have incidental mortality and serious injury of marine mammals from strategic stocks.
(C) The third highest priority for allocation shall be for commercial fisheries that have incidental mortality or serious injury of marine mammals from stocks for which the level of incidental mortality and serious injury is uncertain.
(5) The Secretary may establish an alternative observer program to provide statistically reliable information on the species and number of marine mammals incidentally taken in the course of commercial fishing operations. The alternative observer program may include direct observation of fishing activities from vessels, airplanes, or points on shore.
(6) The Secretary is not required to place an observer on a vessel in a fishery if the Secretary finds that—
(A) in a situation in which harvesting vessels are delivering fish to a processing vessel and the catch is not taken on board the harvesting vessel, statistically reliable information can be obtained from an observer on board the processing vessel to which the fish are delivered;
(B) the facilities on a vessel for quartering of an observer, or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the Secretary, an observer is not available.
(7) The Secretary may, with the consent of the vessel owner, station an observer on board a vessel engaged in a fishery not listed under subsection (c)(1)(A)(i) or (ii).
(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 requirementThe 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 section 1386 of this title. The long-term goal of the plan shall be to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans.
(3) If there is insufficient funding available to develop and implement a take reduction plan for all such stocks that interact with commercial fisheries listed under subsection (c)(1)(A)(i) or (ii), the Secretary shall give highest priority to the development and implementation of take reduction plans for species or stocks whose level of incidental mortality and serious injury exceeds the potential biological removal level, those that have a small population size, and those which are declining most rapidly.
(4) Each take reduction plan shall include—
(A) a review of the information in the final stock assessment published under section 1386(b) of this title and any substantial new information;
(B) an estimate of the total number and, if possible, age and gender, of animals from the stock that are being incidentally lethally taken or seriously injured each year during the course of commercial fishing operations, by fishery;
(C) recommended regulatory or voluntary measures for the reduction of incidental mortality and serious injury;
(D) recommended dates for achieving the specific objectives of the plan.
(5)
(A) For any stock in which incidental mortality and serious injury from commercial fisheries exceeds the potential biological removal level established under section 1386 of this title, the plan shall include measures the Secretary expects will reduce, within 6 months of the plan’s implementation, such mortality and serious injury to a level below the potential biological removal level.
(B) For any stock in which human-caused mortality and serious injury exceeds the potential biological removal level, other than a stock to which subparagraph (A) applies, the plan shall include measures the Secretary expects will reduce, to the maximum extent practicable within 6 months of the plan’s implementation, the incidental mortality and serious injury by such commercial fisheries from that stock. For purposes of this subparagraph, the term “maximum extent practicable” means to the lowest level that is feasible for such fisheries within the 6-month period.
(6)
(A) At the earliest possible time (not later than 30 days) after the Secretary issues a final stock assessment under section 1386(b) of this title for a strategic stock, the Secretary shall, and for stocks that interact with a fishery listed under subsection (c)(1)(A)(i) for which the Secretary has made a determination under paragraph (1), the Secretary may—
(i) establish a take reduction team for such stock and appoint the members of such team in accordance with subparagraph (C); and
(ii) publish in the Federal Register a notice of the team’s establishment, the names of the team’s appointed members, the full geographic range of such stock, and a list of all commercial fisheries that cause incidental mortality and serious injury of marine mammals from such stock.
(B) The Secretary may request a take reduction team to address a stock that extends over one or more regions or fisheries, or multiple stocks within a region or fishery, if the Secretary determines that doing so would facilitate the development and implementation of plans required under this subsection.
(C) Members of take reduction teams shall have expertise regarding the conservation or biology of the marine mammal species which the take reduction plan will address, or the fishing practices which result in the incidental mortality and serious injury of such species. Members shall include representatives of Federal agencies, each coastal State which has fisheries which interact with the species or stock, appropriate Regional Fishery Management Councils, interstate fisheries commissions, academic and scientific organizations, environmental groups, all commercial and recreational fisheries groups and gear types which incidentally take the species or stock, Alaska Native organizations or Indian tribal organizations, and others as the Secretary deems appropriate. Take reduction teams shall, to the maximum extent practicable, consist of an equitable balance among representatives of resource user interests and nonuser interests.
(D) Take reduction teams shall not be subject to chapter 10 of title 5. Meetings of take reduction teams shall be open to the public, and prior notice of meetings shall be made public in a timely fashion.
(E) Members of take reduction teams shall serve without compensation, but may be reimbursed by the Secretary, upon request, for reasonable travel costs and expenses incurred in performing their duties as members of the team.
(7) Where the human-caused mortality and serious injury from a strategic stock is estimated to be equal to or greater than the potential biological removal level established under section 1386 of this title for such stock and such stock interacts with a fishery listed under subsection (c)(1)(A)(i) or (ii), the following procedures shall apply in the development of the take reduction plan for the stock:
(A)
(i) Not later than 6 months after the date of establishment of a take reduction team for the stock, the team shall submit a draft take reduction plan for such stock to the Secretary, consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by consensus. In the event consensus cannot be reached, the team shall advise the Secretary in writing on the range of possibilities considered by the team, and the views of both the majority and minority.
(B)
(i) The Secretary shall take the draft take reduction plan into consideration and, not later than 60 days after the submission of the draft plan by the team, the Secretary shall publish in the Federal Register the plan proposed by the team, any changes proposed by the Secretary with an explanation of the reasons therefor, and proposed regulations to implement such plan, for public review and comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction team does not submit a draft plan to the Secretary within 6 months, the Secretary shall, not later than 8 months after the establishment of the team, publish in the Federal Register a proposed take reduction plan and implementing regulations, for public review and comment during a period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment period required under subparagraph (B), the Secretary shall issue a final take reduction plan and implementing regulations, consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after publication of a final take reduction plan, utilize newspapers of general circulation, fishery trade associations, electronic media, and other means of advising commercial fishermen of the requirements of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet every 6 months, or at such other intervals as the Secretary determines are necessary, to monitor the implementation of the final take reduction plan until such time that the Secretary determines that the objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and implementing regulations as necessary to meet the requirements of this section, in accordance with the procedures in this section for the issuance of such plans and regulations.
(8) Where the human-caused mortality and serious injury from a strategic stock is estimated to be less than the potential biological removal level established under section 1386 of this title for such stock and such stock interacts with a fishery listed under subsection (c)(1)(A)(i) or (ii), or for any marine mammal stocks which interact with a commercial fishery listed under subsection (c)(1)(A)(i) for which the Secretary has made a determination under paragraph (1), the following procedures shall apply in the development of the take reduction plan for such stock:
(A)
(i) Not later than 11 months after the date of establishment of a take reduction team for the stock, the team shall submit a draft take reduction plan for the stock to the Secretary, consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by consensus. In the event consensus cannot be reached, the team shall advise the Secretary in writing on the range of possibilities considered by the team, and the views of both the majority and minority.
(B)
(i) The Secretary shall take the draft take reduction plan into consideration and, not later than 60 days after the submission of the draft plan by the team, the Secretary shall publish in the Federal Register the plan proposed by the team, any changes proposed by the Secretary with an explanation of the reasons therefor, and proposed regulations to implement such plan, for public review and comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction team does not submit a draft plan to the Secretary within 11 months, the Secretary shall, not later than 13 months after the establishment of the team, publish in the Federal Register a proposed take reduction plan and implementing regulations, for public review and comment during a period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment period required under subparagraph (B), the Secretary shall issue a final take reduction plan and implementing regulations, consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after publication of a final take reduction plan, utilize newspapers of general circulation, fishery trade associations, electronic media, and other means of advising commercial fishermen of the requirements of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet on an annual basis, or at such other intervals as the Secretary determines are necessary, to monitor the implementation of the final take reduction plan until such time that the Secretary determines that the objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and implementing regulations as necessary to meet the requirements of this section, in accordance with the procedures in this section for the issuance of such plans and regulations.
(9) In implementing a take reduction plan developed pursuant to this subsection, the Secretary may, where necessary to implement a take reduction plan to protect or restore a marine mammal stock or species covered by such plan, promulgate regulations which include, but are not limited to, measures to—
(A) establish fishery-specific limits on incidental mortality and serious injury of marine mammals in commercial fisheries or restrict commercial fisheries by time or area;
(B) require the use of alternative commercial fishing gear or techniques and new technologies, encourage the development of such gear or technology, or convene expert skippers’ panels;
(C) educate commercial fishermen, through workshops and other means, on the importance of reducing the incidental mortality and serious injury of marine mammals in affected commercial fisheries; and
(D) monitor, in accordance with subsection (d), the effectiveness of measures taken to reduce the level of incidental mortality and serious injury of marine mammals in the course of commercial fishing operations.
(10)
(A) Notwithstanding paragraph (6), in the case of any stock to which paragraph (1) applies for which a final stock assessment has not been published under section 1386(b)(3) of this title by April 1, 1995, due to a proceeding under section 1386(b)(2) of this title, or any Federal court review of such proceeding, the Secretary shall establish a take reduction team under paragraph (6) for such stock as if a final stock assessment had been published.
(B) The draft stock assessment published for such stock under section 1386(b)(1) of this title shall be deemed the final stock assessment for purposes of preparing and implementing a take reduction plan for such stock under this section.
(C) Upon publication of a final stock assessment for such stock under section 1386(b)(3) of this title the Secretary shall immediately reconvene the take reduction team for such stock for the purpose of amending the take reduction plan, and any regulations issued to implement such plan, if necessary, to reflect the final stock assessment or court action. Such amendments shall be made in accordance with paragraph (7)(F) or (8)(F), as appropriate.
(D) A draft stock assessment may only be used as the basis for a take reduction plan under this paragraph for a period of not to exceed two years, or until a final stock assessment is published, whichever is earlier. If, at the end of the two-year period, a final stock assessment has not been published, the Secretary shall categorize such stock under section 1386(a)(5)(A) of this title and shall revoke any regulations to implement a take reduction plan for such stock.
(E) Subparagraph (D) shall not apply for any period beyond two years during which a final stock assessment for such stock has not been published due to review of a proceeding on such stock assessment by a Federal court. Immediately upon final action by such court, the Secretary shall proceed under subparagraph (C).
(11) Take reduction plans developed under this section for a species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) shall be consistent with any recovery plan developed for such species or stock under section 4 of such Act [16 U.S.C. 1533].
(g) Emergency regulations
(1) If the Secretary finds that the incidental mortality and serious injury of marine mammals from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on a stock or species, the Secretary shall take actions as follows:
(A) In the case of a stock or species for which a take reduction plan is in effect, the Secretary shall—
(i) prescribe emergency regulations that, consistent with such plan to the maximum extent practicable, reduce incidental mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, any amendments to such plan that are recommended by the take reduction team to address such adverse impact.
(B) In the case of a stock or species for which a take reduction plan is being developed, the Secretary shall—
(i) prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, such plan, which shall provide methods to address such adverse impact if still necessary.
(C) In the case of a stock or species for which a take reduction plan does not exist and is not being developed, or in the case of a commercial fishery listed under subsection (c)(1)(A)(iii) which the Secretary believes may be contributing to such adverse impact, the Secretary shall—
(i) prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery, to the extent necessary to mitigate such adverse impact;
(ii) immediately review the stock assessment for such stock or species and the classification of such commercial fishery under this section to determine if a take reduction team should be established; and
(iii) may, where necessary to address such adverse impact on a species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), place observers on vessels in a commercial fishery listed under subsection (c)(1)(A)(iii), if the Secretary has reason to believe such vessels may be causing the incidental mortality and serious injury to marine mammals from such stock.
(2) Prior to taking action under paragraph (1)(A), (B), or (C), the Secretary shall consult with the Marine Mammal Commission, all appropriate Regional Fishery Management Councils, State fishery managers, and the appropriate take reduction team (if established).
(3) Emergency regulations prescribed under this subsection—
(A) shall be published in the Federal Register, together with an explanation thereof;
(B) shall remain in effect for not more than 180 days or until the end of the applicable commercial fishing season, whichever is earlier; and
(C) may be terminated by the Secretary at an earlier date by publication in the Federal Register of a notice of termination, if the Secretary determines that the reasons for emergency regulations no longer exist.
(4) If the Secretary finds that incidental mortality and serious injury of marine mammals in a commercial fishery is continuing to have an immediate and significant adverse impact on a stock or species, the Secretary may extend the emergency regulations for an additional period of not more than 90 days or until reasons for the emergency no longer exist, whichever is earlier.
(h) Penalties
(i) Assistance
(j) Contributions
(k) Consultation with Secretary of the Interior
(l) Definitions
(Pub. L. 92–522, title I, § 118, as added Pub. L. 103–238, § 11, Apr. 30, 1994, 108 Stat. 546; amended Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 117–286, § 4(a)(109), Dec. 27, 2022, 136 Stat. 4317.)

CITE AS: 16 USC 1387

§ 1388. Marine mammal cooperative agreements in Alaska
(a) In general
(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 section 1384 of this title.
(Pub. L. 92–522, title I, § 119, as added Pub. L. 103–238, § 19, Apr. 30, 1994, 108 Stat. 559.)

CITE AS: 16 USC 1388

§ 1389. Pacific Coast Task Force; Gulf of Maine
(a) Pinniped removal authority
(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 (16 U.S.C. 1531 et seq.);
(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) ConsiderationsIn 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) LimitationThe 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 (16 U.S.C. 1531 et seq.);
(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 authorityNotwithstanding 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 (16 U.S.C. 1531 et seq.); and
(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
(B) Timelines and procedures of application
(C) Coordination
(D) Duration of permit
(3) Limitations on annual takings
(4) Qualified individualsIntentional lethal takings under this subsection shall—
(A) be humane within the meaning of such term under section 1362(4) of this title;
(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
(6) Eligible entity defined
(A) DefinitionIn 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
(C) Additional delegation authority
(D) Committee requirements
(i) In general
(ii) MembershipA 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
(iv) Nonapplicability of FACA
(7) Individual exception
(8) Significant negative impact exception
(9) Definition
(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
(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 chapter 10 of title 5.
(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 section 1386 of this title shall prevent the Secretary from publishing a stock assessment for Gulf of Maine harbor porpoise in an expedited fashion.
(2) In developing and implementing a take reduction plan under section 1387 of this title for Gulf of Maine harbor porpoise, the Secretary shall consider all actions already taken to reduce incidental mortality and serious injury of such stock, and may, based on the recommendations of the take reduction team for such stock, modify the time period required for compliance with section 1387(f)(5)(A) of this title, but in no case may such modification extend the date of compliance beyond April 1, 1997.
(Pub. L. 92–522, title I, § 120, as added Pub. L. 103–238, § 23, Apr. 30, 1994, 108 Stat. 562; amended Pub. L. 115–329, § 3, Dec. 18, 2018, 132 Stat. 4475; Pub. L. 117–286, § 4(a)(110), Dec. 27, 2022, 136 Stat. 4317.)

CITE AS: 16 USC 1389

§ 1390. Assistance to ports to reduce impacts of vessel traffic and port operations on marine mammals
(a) In general
(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 (16 U.S.C. 1531 et seq.);
(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)
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
(h) Savings clause
(Pub. L. 117–263, div. K, title CXIII, § 11302, Dec. 23, 2022, 136 Stat. 4070.)

CITE AS: 16 USC 1390

§ 1391. Near real-time monitoring and mitigation program for large cetaceans
(a) Establishment
(b) Purpose
(c) RequirementsThe 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
(2) RequirementsIn 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) ComponentsNot 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
(ii) ElementsThe 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
(ii) ElementsThe 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
(f) Access to data
(g) Additional authority
(h) Savings clause
(i) Funding
(Pub. L. 117–263, div. K, title CXIII, § 11303, Dec. 23, 2022, 136 Stat. 4072.)

CITE AS: 16 USC 1391

§ 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
(d) Savings clause
(e) Funding
(Pub. L. 117–263, div. K, title CXIII, § 11305, Dec. 23, 2022, 136 Stat. 4077.)

CITE AS: 16 USC 1392

§ 1393. Conservation and mitigation assistance
(a) Assistance
(1) In general
(2) Use of existing authorities
(3) Cooperative agreements
(b) Eligible entitiesAn 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 section 3 of title 1; and
(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 usesAssistance 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) PriorityIn 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
(2) Exception
(f) Project reporting
(1) In general
(2) Availability to the public
(Pub. L. 117–328, div. JJ, title II, § 201, Dec. 29, 2022, 136 Stat. 6090.)

CITE AS: 16 USC 1393