§ 1383a. — Interim exemption for commercial fisheries.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1383a]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 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superseded by regulations prescribed under section 1387 of this title,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)
of this section shall not govern the incidental taking of marine mammals
in the course of commercial yellowfin tuna fishing subject to section
1374(h)(2) of this title.
(b) Proposed and final list of fisheries taking marine mammals;
publication in Federal Register; grant of exemption; conditions;
suspension of grant of exemption; administration of exemption
provisions; fees
(1) The Secretary shall, after consultation with the Marine Mammal
Commission--
(A) publish in the Federal Register, for public comment, not
later than sixty days after November 23, 1988, a proposed list of
those fisheries, along with a statement of the marine mammals and
the approximate number of vessels or persons involved in each such
fishery, that have--
(i) frequent incidental taking of marine mammals;
(ii) occasional incidental taking of marine mammals; or
(iii) a remote likelihood of or no known incidental taking
of marine mammals;
(B) publish in the Federal Register not later than one hundred
and twenty days after November 23, 1988, a final list of the
fisheries and other information required by paragraph (A), together
with a summary of the provisions of this section and information
sufficient to advise vessel owners on how to obtain an exemption and
otherwise comply with the requirements of this section; and
(C) at least once each year thereafter, and at such other times
as the Secretary considers appropriate, reexamine, based on
information gathered from the program established under subsections
(c), (d), (e), and (f) of this section, and other relevant sources
and after notice and opportunity for public comment, the
classification of fisheries and other determinations required under
subparagraph (A) and publish in the Federal Register any necessary
changes.
(2)(A) An exemption shall be granted by the Secretary in accordance
with this section for a vessel engaged in a fishery identified under
paragraph (1)(A)(i) or (ii), upon receipt by the Secretary of a
completed registration form providing the name of the vessel owner, the
name and description of the vessel, the fisheries in which it will be
engaged, and such other information as the Secretary considers
necessary. A decal or other physical evidence that the exemption is
current and valid shall be issued by the Secretary at the time an
exemption is granted, and so long as the exemption remains current and
valid, shall be reissued annually thereafter.
(B) No exemption may be granted under this section to the owner of a
vessel unless such vessel--
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in
accordance with section 1824(b) of this title.
(C) Notwithstanding any other provision of this subchapter,
exemptions granted under this section shall authorize the incidental
taking of marine mammals, other than California sea otters, from any
species or stock, including a population stock designated as depleted,
but shall not authorize the intentional lethal taking of any Steller sea
lion, any cetacean, or any marine mammals from a population stock
designated as depleted.
(3)(A) Beginning two hundred and forty days after November 23, 1988,
each owner of a vessel engaged in any fishery identified under paragraph
(1)(A)(i) or (ii) shall, in order to engage lawfully in that fishery--
(i) have registered with the Secretary in order to obtain for
each such vessel owned an exemption for the purpose of incidentally
taking marine mammals in accordance with this section;
(ii) ensure that a decal or such other physical evidence of a
current and valid exemption as the Secretary may require is
displayed on or is in the possession of the master of each such
vessel; and
(iii) report as required by subsection (c) of this section.
(B) Any owner of a vessel receiving an exemption under this section
for any fishery identified under paragraph (1)(A)(i) shall, as a
condition of that exemption, take on board a natural resource observer
if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery identified under
paragraph (1)(A)(i) or (ii) who--
(i) fails to obtain from the Secretary an exemption under this
section;
(ii) fails to maintain a current and valid exemption; or
(iii) fails to ensure that a decal or other physical evidence of
such exemption issued by the Secretary is displayed on or is in
possession of the master of the vessel,
and the master of any such vessel engaged in such fishery, shall be
deemed to have violated this subchapter, and shall be subject to the
penalties of this subchapter except in the case of unknowing violations
before January 1, 1990.
(D) If the owner of a vessel has obtained and maintains a current
and valid exemption from the Secretary under this section and meets the
requirements set forth in this section, the owner of such vessel, and
the master and crew members of the vessel, shall not be subject to the
penalties set forth in this subchapter for the incidental taking of
marine mammals while such vessel is engaged in a fishery to which the
exemption applies.
(E) Each owner of a vessel engaged in any fishery not identified in
paragraph (1)(A)(i) or (ii), and the master and crew members of such a
vessel, shall not be subject to the penalties set forth in this
subchapter for the incidental taking of marine mammals if such owner
reports to the Secretary, in such form and manner as the Secretary may
require, instances of lethal incidental taking in the course of that
fishery.
(4) The Secretary shall suspend or revoke an exemption granted under
this section and shall not issue a decal or other physical evidence of
the exemption for any vessel until the owner of such vessel complies
with the reporting requirements under subsection (c) of this section and
such requirements to take on board a natural resource observer under
paragraph (3)(B) as are applicable to such vessel.
(5)(A) The Secretary shall develop, in consultation with the
appropriate States, Regional Fishery Management Councils, and other
interested parties, the means by which the granting and administration
of exemptions under this section shall be integrated and coordinated, to
the maximum extent practicable, with existing fishery licenses,
registrations, and related programs.
(B) The Secretary shall utilize newspapers of general circulation,
fishery trade associations, electronic media, and other means of
advising commercial fishermen of the provisions of this section and the
means by which they can comply with its requirements.
(C) The Secretary is authorized to charge a fee for the granting of
an exemption under this subsection. The level of fees charged under this
subparagraph shall not exceed the administrative costs incurred in
granting an exemption. Fees collected under this subparagraph shall be
available to the Under Secretary of Commerce for Oceans and Atmosphere
for expenses incurred in the granting and administration of exemptions
under this section.
(c) Compilation of information by vessel owners; contents
The owner of each vessel holding an exemption granted under
subsection (b) of this section shall regularly compile information which
shall be used in a report to be submitted to the Secretary at the close
of the fishing season or annually, as the Secretary may prescribe. Such
report shall be submitted in such form as the Secretary may require and
shall include the following:
(1) the type of fishery engaged in by the owner's vessel;
(2) the date and approximate time of any incidental taking of a
marine mammal, together with the area in which the incidental taking
occurred, the fishing gear used at the time of the incidental
taking, and the species of fish involved; and
(3) for each incidental taking, the number and species of marine
mammals involved, whether the marine mammals were deterred from gear
or catch, incidentally injured, incidentally killed, or lethally
removed to protect gear, catch, or human life.
If there was no incidental taking of marine mammals during the reporting
period, a report stating that fact shall be filed with the Secretary.
(d) Program for enhancement and verification of information received
from vessel owners; confidentiality of information
(1) The Secretary shall establish a program to enhance the quality
of and verify information received from reports submitted by owners of
vessels who have been granted an exemption under subsection (b) of this
section. The program shall include, but not be limited to--
(A) education efforts regarding the information that must be
submitted;
(B) interviews with fishermen; and
(C) other such information gathering and verification activities
that will enable the Secretary to determine reliably the nature,
type, and extent of the incidental taking of marine mammals that
occurs in a fishery.
Except to the extent authorized by the provisions of subsection (e) of
this section, the program shall not include placement of observers
aboard exempted vessels.
(2) Information obtained under this subsection shall be subject to
the confidentiality provisions of subsection (j) of this section.
(e) Observers on board exempted vessels; confidentiality of information;
authorization of appropriations
(1) For each fishery identified under subsection (b)(1)(A)(i) of
this section, the Secretary shall, after consultation with the
appropriate Regional Fishery Management Councils, other Federal and
State agencies, and other interested parties, and subject to paragraph
(6), place observers on board exempted vessels so as to monitor not less
than 20 percent nor more than 35 percent of the fishing operations by
vessels in the fishery to obtain statistically reliable information on
the species and number of marine mammals incidentally taken in the
fishery. If the Secretary determines that fewer than 20 percent of the
fishing operations by vessels in the fishery will be monitored during
the course of the fishing season, the Secretary shall implement the
alternative observation program described in subsection (f) of this
section to the extent necessary to supplement the observer program
described in this subsection.
(2) When determining the distribution of observers among fisheries
and between vessels in a particular fishery, the Secretary shall be
guided by the following standards:
(A) the requirement to obtain the best scientific information
available;
(B) the requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery;
(C) consistent with paragraph (1), the requirement that no
individual person or vessel, or group of persons or vessels, be
subject to excessive or overly burdensome observer coverage; and
(D) where practicable, the need to minimize costs and avoid
duplication.
(3) If the Secretary finds that, for reasons beyond his or her
control, the Secretary cannot assign observers to all the fisheries
identified under subsection (b)(1)(A)(i) of this section at the level of
observer coverage set forth in paragraph (1), the Secretary shall
allocate available observers among such fisheries, consistent with
paragraph (2), according to the following priority:
(A) those fisheries that incidentally take marine mammals from
any population stock designated as depleted;
(B) those fisheries that incidentally take marine mammals from
population stocks that the Secretary believes are declining;
(C) those fisheries other than those described in subparagraphs
(A) and (B) in which the greatest incidental take of marine mammals
occur; and
(D) any other fishery identified under subsection (b)(1)(A)(i)
of this section.
The Secretary may, with the consent of the vessel owner, station an
observer on board a vessel engaged in a fishery not identified under
subsection (b)(1)(A)(i) of this section.
(4) Information gathered by observers shall be subject to the
provisions of subsection (j) of this section. Consistent with the
requirements of paragraph (1), the Secretary shall, if requested by the
Appropriate \1\ Regional Fishery Management Council, or in the case of a
State fishery, the State, require observers to collect additional
information, including but not limited to the quantities, species, and
physical condition of target and non-target fishery resources and, if
requested by the Secretary of the Interior, seabirds.
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\1\ So in original. Probably should not be capitalized.
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(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) of this section. All information collected shall be subject to
the provisions of subsection (j) of this section.
(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) of
this section, 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) of this
section, 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) of this
section if--
(A) a Regional Fishery Management Council or State does not act
in a reasonable period of time on a request made by the Secretary
under paragraph (3); or
(B) if the Secretary determines after notice and opportunity for
public comment that the purposes of this section would be better
served by such action.
(h) Information and management system for processing and analyzing
reports and information; accessibility to public
The Secretary shall design and implement an information management
system capable of processing and analyzing reports received from the
programs established under subsections (c), (d), (e), and (f) of this
section, and other relevant sources, including Federal and State
enforcement authorities, marine mammal stranding networks, and the
marine mammal researchers. The information shall be made accessible to
the public on a continuing basis, but in any case no later than six
months after it is received, subject to the provisions of subsection (j)
of this section.
(i) Utilization of services of State and Federal agencies and private
entities
When carrying out the Secretary's responsibilities under subsections
(b), (d), (e), (f), and (h) of this section, the Secretary shall, to the
maximum extent practicable, utilize the services and programs of State
agencies, Federal agencies (including programs established by Regional
Fishery Management Councils), marine fisheries commissions,
universities, and private entities, on a reimbursable basis or
otherwise. The Secretary is authorized to enter into contracts and
agreements to carry out his or her responsibilities and shall establish
appropriate guidelines to ensure that other programs used or contracted
for will meet the same standards as a program established by the
Secretary. A person contracting with the Secretary to provide observer
services under subsection (e) of this section must provide evidence of
financial responsibility in an amount and form prescribed by the
Secretary to compensate employees (or their survivors) adequately for
any illness, disability, injury, or death from service on a vessel.
(j) Confidentiality of information; exceptions
(1) Any information collected under subsection (c), (d), (e), (f),
or (h) of this section shall be confidential and shall not be disclosed
except--
(A) to Federal employees whose duties require access to such
information;
(B) to State employees pursuant to an agreement with the
Secretary that prevents public disclosure of the identity or
business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries,
to employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and monitoring.
(2) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the Secretary
shall release or make public any such information in aggregate, summary,
or other form which does not directly or indirectly disclose the
identity or business of any person.
(k) Regulations
The Secretary, in consultation with any other Federal agency to the
extent that such agency may be affected, shall prescribe such
regulations as necessary and appropriate to carry out the purposes of
this section.
(l) Suggested regime governing incidental taking of marine mammals
following termination of interim exemptions
(1) The Chairman of the Marine Mammal Commission shall, after
consultation with interested parties and not later than February 1,
1990, transmit to the Secretary and make available to the public
recommended guidelines to govern the incidental taking of marine mammals
in the course of commercial fishing operations, other than those subject
to 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
The Secretary shall consult with the Secretary of the Interior prior
to taking actions or making determinations under this section that
affect or relate to species or population stocks of marine mammals for
which the Secretary of the Interior is responsible under this
subchapter.
(n) Owner of fixed commercial fishing gear deemed owner of vessel
engaged in fishery in which gear deployed
For the purposes of this section, the owner of fixed or other
commercial fishing gear that is deployed with or without the use of a
vessel shall be deemed to be an owner of a vessel engaged in the fishery
in which that gear is deployed.
(o) Definitions
As used in this section--
(1) the term ``fishery'' has the same meaning as it does in
section 1802(8) \2\ of this title.
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\2\ See References in Text note below.
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(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(11a) of title 46 or a fish
processing vessel as defined in section 2101(11b) 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, Sec. 114, as added Pub. L. 100-711,
Sec. 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, Sec. 15(a), Apr. 30, 1994, 108 Stat. 559; Pub. L.
104-43, title IV, Sec. 404(a)(1), Nov. 3, 1995, 109 Stat. 390; Pub. L.
104-208, div. A, title I, Sec. 101(a) [title II, Sec. 211(b)], Sept. 30,
1996, 110 Stat. 3009, 3009-41.)
References in Text
Section 1802 of this title, referred to in subsec. (o)(1), (4), was
subsequently amended, and section 1802(8) and (27) no longer defines the
terms ``fishery'' and ``vessel of the United States''. However, such
terms are defined elsewhere in that section.
Amendments
1996--Subsecs. (a)(1), (b)(2)(B)(ii), (o)(1), (4). Pub. L. 104-208
made technical amendment to references in original act which appear in
text as references to sections 1802(8), (27) and 1824(b) of this title.
1995--Pub. L. 104-43 amended directory language of Pub. L. 103-238.
See 1994 Amendment note below.
1994--Subsec. (a)(1). Pub. L. 103-238, as amended by Pub. L. 104-43,
substituted ``until superseded by regulations prescribed under section
1387 of this title, or until September 1, 1995, whichever is earlier,''
for ``ending May 1, 1994.''
Pub. L. 103-228 substituted ``May 1, 1994.'' for ``April 1, 1994,''.
1993--Subsec. (a)(1). Pub. L. 103-86 substituted ``April 1, 1994''
for ``October 1, 1993''.
Effective Date of 1996 Amendment
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208
provided that the amendment made by that section is effective 15 days
after Oct. 11, 1996.
Effective Date of 1995 Amendment
Section 404(a)(2) of Pub. L. 104-43 provided that: ``The amendment
made by paragraph (1) [amending this section] shall be effective on and
after April 30, 1994.''
Abolition of House Committee on Merchant Marine and Fisheries
Committee on Merchant Marine and Fisheries of House of
Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee
on Merchant Marine and Fisheries of House of Representatives treated as
referring to Committee on Resources of House of Representatives in case
of provisions relating to fisheries, wildlife, international fishing
agreements, marine affairs (including coastal zone management) except
for measures relating to oil and other pollution of navigable waters, or
oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Section Referred to in Other Sections
This section is referred to in sections 1372, 1384, 1387 of this
title.
