[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1379]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 1379. Transfer of management authority
(a) State enforcement of State laws or regulations prohibited without
transfer to State of management authority by Secretary
No State may enforce, or attempt to enforce, any State law or
regulation relating to the taking of any species (which term for
purposes of this section includes any population stock) of marine mammal
within the State unless the Secretary has transferred authority for the
conservation and management of that species (hereinafter referred to in
this section as ``management authority'') to the State under subsection
(b)(1) of this section.
(b) Findings prerequisite to transfer of authority; State program;
implementation
(1) Subject to paragraph (2) and subsection (f) of this section, the
Secretary shall transfer management authority for a species of marine
mammal to a State if the Secretary finds, after notice and opportunity
for public comment, that the State has developed and will implement a
program for the conservation and management of the species that--
(A) is consistent with the purposes, policies, and goals of this
chapter and with international treaty obligations;
(B) requires that all taking of the species be humane;
(C) does not permit the taking of the species unless and until--
(i) the State has determined, under a process consistent
with the standards set forth in subsection (c) of this section--
(I) that the species is at its optimum sustainable
population (hereinafter in this section referred to as
``OSP''), and
(II) the maximum number of animals of that species that
may be taken without reducing the species below its OSP, and
(ii) the determination required under clause (i) is final
and implemented under State law, and, if a cooperative
allocation agreement for the species is required under
subsection (d)(1) of this section, such as agreement is
implemented;
(D) does not permit the taking of a number of animals of the
species that exceeds the maximum number determined pursuant to
subparagraph (C)(i)(II), and, in the case of taking for subsistence
uses (as defined in subsection (f)(2) of this section), does not
permit the taking of a number of animals that would be inconsistent
with the maintenance of the species at its OSP;
(E) does not permit the taking of the species for scientific
research, public display, or enhancing the survival or recovery of a
species or stock, except for taking for such purposes that is
undertaken by, or on behalf of, the State;
(F) provides procedures for acquiring data, and evaluating such
data and other new evidence, relating to the OSP of the species, and
the maximum take that would maintain the species at the level, and,
if required on the basis of such evaluation, for amending
determinations under subparagraph (C)(i);
(G) provides procedures for the resolution of differences
between the State and the Secretary that might arise during the
development of a cooperative allocation agreement under subsection
(d)(1) of this section; and
(H) provides for the submission of an annual report to the
Secretary regarding the administration of the program during the
reporting period.
(2) During the period between the transfer of management authority
for a species to a State under paragraph (1) and the time at which the
implementation requirements under paragraph (1)(C)(ii) are complied
with--
(A) the State program shall not apply with respect to the taking
of the species within the State for any purpose, or under any
condition, provided for under section 1371 of this title; and
(B) the Secretary shall continue to regulate, under this
subchapter, all takings of the species within the State.
(3) After the determination required under paragraph (1)(C)(i)
regarding a species is final and implemented under State law and after a
cooperative allocation agreement described in subsection (d)(1) of this
section, if required, is implemented for such species--
(A) such determination shall be treated, for purposes of
applying this subchapter beyond the territory of the State, as a
determination made in accordance with section 1373 of this title and
as an applicable waiver under section 1371(a)(3) of this title;
(B) the Secretary shall regulate, without regard to this section
other than the allocations specified under such an agreement, the
taking of the species--
(i) incidentally in the course of commercial fishing
operations (whether provided for under section 1371(a)(2) or (4)
of this title), or in the course of other specified activities
provided for under section 1371(a)(5) of this title, in the zone
described in section 1362(14)(B) \1\ of this title, and
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\1\ See References in Text note below.
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(ii) for scientific research, public display, or enhancing
the survival or recovery of a species or stock (other than by,
or on behalf of, the State), except that any taking authorized
under a permit issued pursuant to section 1371(a)(1) of this
title after October 9, 1981, allowing the removal of live
animals from habitat within the State shall not be effective if
the State agency disapproves, on or before the date of issuance
of the permit, such taking as being inconsistent with the State
program; and
(C) section 1371(b) of this title shall not apply.
(c) Standards with which State process must comply
The State process required under subsection (b)(1)(C) of this
section must comply with the following standards:
(1) The State agency with management authority for the species
(hereinafter in this section referred to as the ``State agency'')
must make an initial determination regarding the factors described
in clause (i) of that subsection. The State agency must identify,
and make available to the public under reasonable circumstances, the
documentation supporting such initial determination. Unless request
for a hearing under paragraph (2) regarding the initial
determination is timely made, the initial determination shall be
treated as final under State law.
(2) The State agency shall provide opportunity, at the request
of any interested party, for a hearing with respect to the initial
determination made by it under paragraph (1) at which interested
parties may--
(A) present oral and written evidence in support of or
against such determination; and
(B) cross-examine persons presenting evidence at the
hearing.
The State agency must give public notice of the hearing and make
available to the public within a reasonable time before commencing
the hearing a list of the witnesses for the State and a general
description of the documentation and other evidence that will be
relied upon by such witnesses.
(3) The State agency, solely on the basis of the record
developed at a hearing held pursuant to paragraph (2), must make a
decision regarding its initial determination under paragraph (1) and
shall include with the record a statement of the findings and
conclusions, and the reason or basis therefor, on all material
issues.
(4) Opportunity for judicial review of the decision made by the
State agency on the record under paragraph (3), under scope of
review equivalent to that provided for in section 706(2)(A) through
(E) of title 5, must be available under State law. The Secretary may
not initiate judicial review of any such decision.
(d) Cooperative allocation agreements
(1) If the range of a species with respect to which a determination
under paragraph (1)(C)(i) of subsection (b) of this section is made
extends beyond the territorial waters of the State, the State agency and
the Secretary (who shall first coordinate with the Marine Mammal
Commission and the appropriate Regional Fishery Management Council
established under section 1852 of this title) shall enter into a
cooperative allocation agreement providing procedures for allocating, on
a timely basis, such of the number of animals, as determined under
paragraph (1)(C)(i)(II) of subsection (b) of this section, as may be
appropriate with priority of allocation being given firstly to taking
for subsistence uses in the case of the State of Alaska, and secondly to
taking for purposes provided for under section 1371(a) of this title
within the zone described in section 1362(14)(B) \2\ of this title.
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\2\ See References in Text note below.
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(2) If the State agency requests the Secretary to regulate the
taking of a species to which paragraph (1) applies within the zone
described in section 1362(14)(B) \2\ of this title for subsistence uses
or for hunting, or both, in a manner consistent with the regulation by
the State agency of such taking within the State, the Secretary shall
adopt, and enforce within such zone, such of the State agency's
regulatory provisions as the Secretary considers to be consistent with
his administration of section 1371(a) of this title within such zone.
The Secretary shall adopt such provisions through the issuance of
regulations under section 553 of title 5, and with respect to such
issuance the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the
Paperwork Reduction Act,\2\ Executive Order Numbered 12291, dated
February 17, 1981, and the thirty-day notice requirement in subsection
(d) of such section 553 shall not apply. For purposes of sections 1375,
1376, and 1377 of this title, such regulations shall be treated as
having been issued under this subchapter.
(e) Revocation of transfer of management authority
(1) Subject to paragraph (2), the Secretary shall revoke, after
opportunity for a hearing, any transfer of management authority made to
a State under subsection (b)(1) of this section if the Secretary finds
that the State program for the conservation and management of the
species concerned is not being implemented, or is being implemented in a
manner inconsistent with the provisions of this section or the
provisions of the program. The Secretary shall also establish a
procedure for the voluntary return by a State to the Secretary of
species management authority that was previously transferred to the
State under subsection (b)(1) of this section.
(2)(A) The Secretary may not revoke a transfer of management
authority under paragraph (1) unless--
(i) the Secretary provides to the State a written notice of
intent to revoke together with a statement, in detail, of those
actions, or failures to act, on which such intent is based; and
(ii) during the ninety-day period after the date of the 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) of this section for any species of
marine mammal unless--
(A) the State has adopted and will implement a statute and
regulations that insure that the taking of the species for
subsistence uses--
(i) is accomplished in a nonwasteful manner,
(ii) will be the priority consumptive use of the species,
and
(iii) if required to be restricted, such restriction will be
based upon--
(I) the customary and direct dependence upon the species
as the mainstay of livelihood,
(II) local residency, and
(III) the availability of alternative resources; and
(B) the State has adopted a statute or regulation that requires
that any consumptive use of marine mammal species, other than for
subsistence uses, will be authorized during a regulatory year only
if the appropriate agency first makes findings, based on an
administrative record before it, that--
(i) such use will have no significant adverse impact upon
subsistence uses of the species, and
(ii) the regulation of such use, including, but not limited
to, licensing of marine mammal hunting guides and the assignment
of guiding areas, will, to the maximum extent practicable,
provide economic opportunities for the residents of the rural
coastal villages of Alaska who engage in subsistence uses of
that species.
(2) For purposes of paragraph (1), the term ``subsistence uses''
means the customary and traditional uses by rural Alaska residents of
marine mammals for direct personal or family consumption as food,
shelter, fuel, clothing, tools, or transportation; for the making and
selling of handicraft articles out of nonedible byproducts of marine
mammals taken for personal or family consumption; and for barter, or
sharing for personal or family consumption. As used in this paragraph--
(A) The term ``family'' means all persons related by blood,
marriage, or adoption, or any person living within a household on a
permanent basis.
(B) The term ``barter'' means the exchange of marine mammals or
their parts, taken for subsistence uses--
(i) for other wildlife or fish or their parts, or
(ii) for other food or for nonedible items other than money
if the exchange is of a limited and noncommercial nature.
(g) Environmental impact statement not required
Neither the transfer of management authority to a State under
subsection (b)(1) of this section, nor the revocation or voluntary
return of such authority under subsection (e) of this section, shall be
deemed to be an action for which an environmental impact statement is
required under section 4332 of title 42.
(h) Taking of marine mammals as part of official duties
(1) Nothing in this subchapter or subchapter V of this chapter shall
prevent a Federal, State, or local government official or employee or a
person designated under section 1382(c) of this title from taking, in
the course of his or her duties as an official, employee, or designee, a
marine mammal in a humane manner (including euthanasia) if such taking
is for--
(A) the protection or welfare of the mammal,
(B) the protection of the public health and welfare, or
(C) the nonlethal removal of nuisance animals.
(2) Nothing in this subchapter shall prevent the Secretary or a
person designated under section 1382(c) of this title from importing a
marine mammal into the United States if such importation is necessary to
render medical treatment that is not otherwise available.
(3) In any case in which it is feasible to return to its natural
habitat a marine mammal taken or imported under circumstances described
in this subsection, steps to achieve that result shall be taken.
(i) Regulations covering taking of marine mammals by Alaskan natives
The Secretary may (after providing notice thereof in the Federal
Register and in newspapers of general circulation, and through
appropriate electronic media, in the affected area and providing
opportunity for a hearing thereon in such area) prescribe regulations
requiring the marking, tagging, and reporting of animals taken pursuant
to section 1371(b) of this title.
(j) Grants to develop or administer State conservation and management
programs
The Secretary may make grants to States to assist them--
(1) in developing programs, to be submitted for approval under
subsection (b) of this section, for the conservation and management
of species of marine mammals; and
(2) in administering such programs if management authority for
such species is transferred to the State under such subsection.
Grants made under this subsection may not exceed 50 per centum of the
costs of developing a State program before Secretarial approval, or of
administering the program thereafter.
(k) Delegation of administration and enforcement to States
The Secretary is authorized and directed to enter into cooperative
arrangements with the appropriate officials of any State for the
delegation to such State of the administration and enforcement of this
subchapter: Provided, That any such arrangement shall contain such
provisions as the Secretary deems appropriate to insure that the
purposes and policies of this chapter will be carried out.
(l) Authorization of appropriations
(1) There are authorized to be appropriated to the Department of the
Interior, for the purposes of carrying out this section, not to exceed
$400,000 for each of the fiscal years ending September 30, 1979,
September 30, 1980, and September 30, 1981.
(2) There are authorized to be appropriated to the Department of
Commerce, for the purposes of carrying out this section, not to exceed
$225,000 for each of the fiscal years ending September 30, 1979,
September 30, 1980, and September 30, 1981.
(Pub. L. 92-522, title I, Sec. 109, Oct. 21, 1972, 86 Stat. 1040; Pub.
L. 95-316, Sec. 1, July 10, 1978, 92 Stat. 380; Pub. L. 97-58,
Sec. 4(a), Oct. 9, 1981, 95 Stat. 982; Pub. L. 100-711, Sec. 5(a),
(e)(3), Nov. 23, 1988, 102 Stat. 4769, 4771; Pub. L. 102-587, title III,
Sec. 3004(a)(2), Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103-238,
Sec. 24(c)(10), Apr. 30, 1994, 108 Stat. 566.)
References in Text
Section 1362(14) of this title, referred to in subsecs. (b)(3)(B)(i)
and (d), was redesignated section 1362(15) by Pub. L. 102-582, title IV,
Sec. 401(a), Nov. 2, 1992, 106 Stat. 4909.
The Regulatory Flexibility Act, referred to in subsec. (d)(2), is
Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164, which is classified
generally to chapter 6 (Sec. 601 et seq.) of Title 5, Government
Organization and Employees. For complete classification of this Act to
the Code, see Short Title note set out under section 601 of Title 5 and
Tables.
The Paperwork Reduction Act, referred to in subsec. (d)(2), probably
means the Paperwork Reduction Act of 1980, Pub. L. 96-511, Dec. 11,
1980, 94 Stat. 2812, as amended, which was classified principally to
chapter 35 (Sec. 3501 et seq.) of Title 44, Public Printing and
Documents, prior to the general amendment of that chapter by the
Paperwork Reduction Act of 1995, Pub. L. 104-13, Sec. 2, May 22, 1995,
109 Stat. 163. For complete classification of this Act to the Code, see
Short Title of 1980 Amendment note set out under section 101 of Title 44
and Tables.
Executive Order Numbered 12291, dated February 17, 1981, referred to
in subsec. (d)(2), was formerly set out as a note under section 601 of
Title 5, Government Organization and Employees, and was revoked by Ex.
Ord. No. 12866, Sec. 11, Sept. 30, 1993, 58 F.R. 51735.
Amendments
1994--Subsec. (h)(1). Pub. L. 103-238 made technical amendment to
reference to subchapter V of this chapter to reflect renumbering of
corresponding title of original act.
1992--Subsec. (h)(1). Pub. L. 102-587 inserted ``or subchapter V of
this chapter'' in introductory provisions.
1988--Subsec. (b)(1)(E). Pub. L. 100-711, Sec. 5(e)(3)(A),
substituted ``research, public display, or enhancing the survival or
recovery of a species or stock'' for ``research and public display
purposes''.
Subsec. (b)(3)(B)(ii). Pub. L. 100-711, Sec. 5(e)(3)(B), substituted
``research, public display, or enhancing the survival or recovery of a
species or stock'' for ``research or public display purposes''.
Subsec. (h). Pub. L. 100-711, Sec. 5(a), amended subsec. (h)
generally. Prior to amendment, subsec. (h) read as follows: ``Nothing in
this subchapter shall prevent a Federal, State, or local government
official or employee or a person designated under section 1382(c) of
this title from taking, in the course of his duties as an official,
employee, or designee, a marine mammal in a humane manner (including
euthanasia) if such taking is for--
``(1) the protection or welfare of the mammal,
``(2) the protection of the public health and welfare, or
``(3) the nonlethal removal of nuisance animals,
and, in any case in which the return of the mammal to its natural
habitat is feasible, includes steps designed to achieve that result.''
1981--Subsec. (a). Pub. L. 97-58, Sec. 4(a)(2), added subsec. (a).
Former subsec. (a), relating to State regulation of the taking of marine
mammals, was struck out.
Subsec. (b). Pub. L. 97-58, Sec. 4(a)(2), added subsec. (b). Former
subsec. (b), relating to the making of grants to States by the
Secretary, was struck out. See subsec. (j) of this section.
Subsecs. (c), (d). Pub. L. 97-58, Sec. 4(a)(1), (2), added subsecs.
(c) and (d). Former subsecs. (c) and (d) redesignated (k) and (l),
respectively.
Subsecs. (e) to (j). Pub. L. 97-58, Sec. 4(a)(2), added subsecs. (e)
to
