§ 1387. — Taking of marine mammals incidental to commercial fishing operations.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1387]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 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\ 1374(h) of this title and subchapter IV of this
chapter, and not this section, shall govern the taking of marine mammals
in the course of commercial purse seine fishing for yellowfin tuna in
the eastern tropical Pacific Ocean.
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\1\ So in original. Probably should be ``Section''.
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(4) This section shall not govern the incidental taking of
California sea otters and shall not be deemed to amend or repeal the Act
of November 7, 1986 (Public Law 99-625; 100 Stat. 3500).
(5) Except as provided in section 1371(c) of this title, the
intentional lethal take of any marine mammal in the course of commercial
fishing operations is prohibited.
(6) Sections 1373 and 1374 of this title shall not apply to the
incidental taking of marine mammals under the authority of this section.
(b) Zero mortality rate goal
(1) Commercial fisheries shall reduce incidental mortality and
serious injury of marine mammals to insignificant levels approaching a
zero mortality and serious injury rate within 7 years after April 30,
1994.
(2) Fisheries which maintain insignificant serious injury and
mortality levels approaching a zero rate shall not be required to
further reduce their mortality and serious injury rates.
(3) Three years after April 30, 1994, the Secretary shall review the
progress of all commercial fisheries, by fishery, toward reducing
incidental mortality and serious injury to insignificant levels
approaching a zero rate. The Secretary shall submit to the Committee on
Commerce, Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives a report
setting forth the results of such review within 1 year after
commencement of the review. The Secretary shall note any commercial
fishery for which additional information is required to accurately
assess the level of incidental mortality and serious injury of marine
mammals in the fishery.
(4) If the Secretary determines after review under paragraph (3)
that the rate of incidental mortality and serious injury of marine
mammals in a commercial fishery is not consistent with paragraph (1),
then the Secretary shall take appropriate action under subsection (f) of
this section.
(c) Registration and authorization
(1) The Secretary shall, within 90 days after April 30, 1994--
(A) publish in the Federal Register for public comment, for a
period of not less than 90 days, any necessary changes to the
Secretary's list of commercial fisheries published under section
1383a(b)(1) of this title and which is in existence on March 31,
1994 (along with an explanation of such changes and a statement
describing the marine mammal stocks interacting with, and the
approximate number of vessels or persons actively involved in, each
such fishery), with respect to commercial fisheries that have--
(i) frequent incidental mortality and serious injury of
marine mammals;
(ii) occasional incidental mortality and serious injury of
marine mammals; or
(iii) a remote likelihood of or no known incidental
mortality or serious injury of marine mammals;
(B) after the close of the period for such public comment,
publish in the Federal Register a revised list of commercial
fisheries and an update of information required by subparagraph (A),
together with a summary of the provisions of this section and
information sufficient to advise vessel owners on how to obtain an
authorization and otherwise comply with the requirements of this
section; and
(C) at least once each year thereafter, and at such other times
as the Secretary considers appropriate, reexamine, based on
information gathered under this chapter and other relevant sources
and after notice and opportunity for public comment, the
classification of commercial fisheries and other determinations
required under subparagraph (A) and publish in the Federal Register
any necessary changes.
(2)(A) An authorization shall be granted by the Secretary in
accordance with this section for a vessel engaged in a commercial
fishery listed under paragraph (1)(A)(i) or (ii), upon receipt by the
Secretary of a completed registration form providing the name of the
vessel owner and operator, the name and description of the vessel, the
fisheries in which it will be engaged, the approximate time, duration,
and location of such fishery operations, and the general type and nature
of use of the fishing gear and techniques used. Such information shall
be in a readily usable format that can be efficiently entered into and
utilized by an automated or computerized data processing system. A decal
or other physical evidence that the authorization is current and valid
shall be issued by the Secretary at the time an authorization is
granted, and so long as the authorization remains current and valid,
shall be reissued annually thereafter.
(B) No authorization may be granted under this section to the owner
of a vessel unless such vessel--
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in
accordance with section 1824(b) of this title.
(C) Except as provided in subsection (a) of this section, an
authorization granted under this section shall allow the incidental
taking of all species and stocks of marine mammals to which this chapter
applies.
(3)(A) An owner of a vessel engaged in any fishery listed under
paragraph (1)(A)(i) or (ii) shall, in order to engage in the lawful
incidental taking of marine mammals in a commercial fishery--
(i) have registered as required under paragraph (2) with the
Secretary in order to obtain for each such vessel owned and used in
the fishery an authorization for the purpose of incidentally taking
marine mammals in accordance with this section, except that owners
of vessels holding valid certificates of exemption under section
1383a of this title are deemed to have registered for purposes of
this subsection for the period during which such exemption is valid;
(ii) ensure that a decal or such other physical evidence of a
current and valid authorization as the Secretary may require is
displayed on or is in the possession of the master of each such
vessel;
(iii) report as required by subsection (e) of this section; and
(iv) comply with any applicable take reduction plan and
emergency regulations issued under this section.
(B) Any owner of a vessel receiving an authorization under this
section for any fishery listed under paragraph (1)(A)(i) or (ii) shall,
as a condition of that authorization, take on board an observer if
requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery listed under paragraph
(1)(A)(i) or (ii) who--
(i) fails to obtain from the Secretary an authorization for such
vessel under this section;
(ii) fails to maintain a current and valid authorization for
such vessel; or
(iii) fails to ensure that a decal or other physical evidence of
such authorization issued by the Secretary is displayed on or is in
possession of the master of the vessel,
and the master of any such vessel engaged in such fishery, shall be
deemed to have violated this subchapter, and for violations of clauses
(i) and (ii) shall be subject to the penalties of this subchapter, and
for violations of clause (iii) shall be subject to a fine of not more
than $100 for each offense.
(D) If the owner of a vessel has obtained and maintains a current
and valid authorization from the Secretary under this section and meets
the requirements set forth in this section, including compliance with
any regulations to implement a take reduction plan under this section,
the owner of such vessel, and the master and crew members of the vessel,
shall not be subject to the penalties set forth in this subchapter for
the incidental taking of marine mammals while such vessel is engaged in
a fishery to which the authorization applies.
(E) Each owner of a vessel engaged in any fishery not listed under
paragraph (1)(A)(i) or (ii), and the master and crew members of such a
vessel, shall not be subject to the penalties set forth in this
subchapter for the incidental taking of marine mammals if such owner
reports to the Secretary, in the form and manner required under
subsection (e) of this section, instances of incidental mortality or
injury of marine mammals in the course of that fishery.
(4)(A) The Secretary shall suspend or revoke an authorization
granted under this section and shall not issue a decal or other physical
evidence of the authorization for any vessel until the owner of such
vessel complies with the reporting requirements under subsection (e) of
this section and such requirements to take on board an observer under
paragraph (3)(B) as are applicable to such vessel. Previous failure to
comply with the requirements of section 1383a of this title shall not
bar authorization under this section for an owner who complies with the
requirements of this section.
(B) The Secretary may suspend or revoke an authorization granted
under this subsection, and may not issue a decal or other physical
evidence of the authorization for any vessel which fails to comply with
a take reduction plan or emergency regulations issued under this
section.
(C) The owner and master of a vessel which fails to comply with a
take reduction plan shall be subject to the penalties of sections 1375
and 1377 of this title, and may be subject to section 1376 of this
title.
(5)(A) The Secretary shall develop, in consultation with the
appropriate States, affected Regional Fishery Management Councils, and
other interested persons, the means by which the granting and
administration of authorizations under this section shall be integrated
and coordinated, to the maximum extent practicable, with existing
fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of general circulation,
fishery trade associations, electronic media, and other means of
advising commercial fishermen of the provisions of this section and the
means by which they can comply with its requirements.
(C) The Secretary is authorized to charge a fee for the granting of
an authorization under this section. The level of fees charged under
this subparagraph shall not exceed the administrative costs incurred in
granting an authorization. Fees collected under this subparagraph shall
be available to the Under Secretary of Commerce for Oceans and
Atmosphere for expenses incurred in the granting and administration of
authorizations under this section.
(d) Monitoring of incidental takes
(1) The Secretary shall establish a program to monitor incidental
mortality and serious injury of marine mammals during the course of
commercial fishing operations. The purposes of the monitoring program
shall be to--
(A) obtain statistically reliable estimates of incidental
mortality and serious injury;
(B) determine the reliability of reports of incidental mortality
and serious injury under subsection (e) of this section; and
(C) identify changes in fishing methods or technology that may
increase or decrease incidental mortality and serious injury.
(2) Pursuant to paragraph (1), the Secretary may place observers on
board vessels as necessary, subject to the provisions of this section.
Observers may, among other tasks--
(A) record incidental mortality and injury, or by catch of other
nontarget species;
(B) record numbers of marine mammals sighted; and
(C) perform other scientific investigations.
(3) In determining the distribution of observers among commercial
fisheries and vessels within a fishery, the Secretary shall be guided by
the following standards:
(A) The requirement to obtain statistically reliable
information.
(B) The requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery.
(C) The requirement that no individual person or vessel, or
group of persons or vessels, be subject to excessive or overly
burdensome observer coverage.
(D) To the extent practicable, the need to minimize costs and
avoid duplication.
(4) To the extent practicable, the Secretary shall allocate
observers among commercial fisheries in accordance with the following
priority:
(A) The highest priority for allocation shall be for commercial
fisheries that have incidental mortality or serious injury of marine
mammals from stocks listed as endangered species or threatened
species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(B) The second highest priority for allocation shall be for
commercial fisheries that have incidental mortality and serious
injury of marine mammals from strategic stocks.
(C) The third highest priority for allocation shall be for
commercial fisheries that have incidental mortality or serious
injury of marine mammals from stocks for which the level of
incidental mortality and serious injury is uncertain.
(5) The Secretary may establish an alternative observer program to
provide statistically reliable information on the species and number of
marine mammals incidentally taken in the course of commercial fishing
operations. The alternative observer program may include direct
observation of fishing activities from vessels, airplanes, or points on
shore.
(6) The Secretary is not required to place an observer on a vessel
in a fishery if the Secretary finds that--
(A) in a situation in which harvesting vessels are delivering
fish to a processing vessel and the catch is not taken on board the
harvesting vessel, statistically reliable information can be
obtained from an observer on board the processing vessel to which
the fish are delivered;
(B) the facilities on a vessel for quartering of an observer, or
for carrying out observer functions, are so inadequate or unsafe
that the health or safety of the observer or the safe operation of
the vessel would be jeopardized; or
(C) for reasons beyond the control of the Secretary, an observer
is not available.
(7) The Secretary may, with the consent of the vessel owner, station
an observer on board a vessel engaged in a fishery not listed under
subsection (c)(1)(A)(i) or (ii) of this section.
(8) Any proprietary information collected under this subsection
shall be confidential and shall not be disclosed except--
(A) to Federal employees whose duties require access to such
information;
(B) to State or tribal employees pursuant to an agreement with
the Secretary that prevents public disclosure of the identity or
business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries,
to employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and monitoring.
(9) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the Secretary
shall release or make public upon request any such information in
aggregate, summary, or other form which does not directly or indirectly
disclose the identity or business of any person.
(e) Reporting requirement
The owner or operator of a commercial fishing vessel subject to this
chapter shall report all incidental mortality and injury of marine
mammals in the course of commercial fishing operations to the Secretary
by mail or other means acceptable to the Secretary within 48 hours after
the end of each fishing trip on a standard postage-paid form to be
developed by the Secretary under this section. Such form shall be
capable of being readily entered into and usable by an automated or
computerized data processing system and shall require the vessel owner
or operator to provide the following:
(1) The vessel name, and Federal, State, or tribal registration
numbers of the registered vessel.
(2) The name and address of the vessel owner or operator.
(3) The name and description of the fishery.
(4) The species of each marine mammal incidentally killed or
injured, and the date, time, and approximate geographic location of
such occurrence.
(f) Take reduction plans
(1) The Secretary shall develop and implement a take reduction plan
designed to assist in the recovery or prevent the depletion of each
strategic stock which interacts with a commercial fishery listed under
subsection (c)(1)(A)(i) or (ii) of this section, and may develop and
implement such a plan for any other marine mammal stocks which interact
with a commercial fishery listed under subsection (c)(1)(A)(i) of this
section which the Secretary determines, after notice and opportunity for
public comment, has a high level of mortality and serious injury across
a number of such marine mammal stocks.
(2) The immediate goal of a take reduction plan for a strategic
stock shall be to reduce, within 6 months of its implementation, the
incidental mortality or serious injury of marine mammals incidentally
taken in the course of commercial fishing operations to levels less than
the potential biological removal level established for that stock under
section 1386 of this title. The long-term goal of the plan shall be to
reduce, within 5 years of its implementation, the incidental mortality
or serious injury of marine mammals incidentally taken in the course of
commercial fishing operations to insignificant levels approaching a zero
mortality and serious injury rate, taking into account the economics of
the fishery, the availability of existing technology, and existing State
or regional fishery management plans.
(3) If there is insufficient funding available to develop and
implement a take reduction plan for all such stocks that interact with
commercial fisheries listed under subsection (c)(1)(A)(i) or (ii) of
this section, the Secretary shall give highest priority to the
development and implementation of take reduction plans for species or
stocks whose level of incidental mortality and serious injury exceeds
the potential biological removal level, those that have a small
population size, and those which are declining most rapidly.
(4) Each take reduction plan shall include--
(A) a review of the information in the final stock assessment
published under section 1386(b) of this title and any substantial
new information;
(B) an estimate of the total number and, if possible, age and
gender, of animals from the stock that are being incidentally
lethally taken or seriously injured each year during the course of
commercial fishing operations, by fishery;
(C) recommended regulatory or voluntary measures for the
reduction of incidental mortality and serious injury;
(D) recommended dates for achieving the specific objectives of
the plan.
(5)(A) For any stock in which incidental mortality and serious
injury from commercial fisheries exceeds the potential biological
removal level established under section 1386 of this title, the plan
shall include measures the Secretary expects will reduce, within 6
months of the plan's implementation, such mortality and serious injury
to a level below the potential biological removal level.
(B) For any stock in which human-caused mortality and serious injury
exceeds the potential biological removal level, other than a stock to
which subparagraph (A) applies, the plan shall include measures the
Secretary expects will reduce, to the maximum extent practicable within
6 months of the plan's implementation, the incidental mortality and
serious injury by such commercial fisheries from that stock. For
purposes of this subparagraph, the term ``maximum extent practicable''
means to the lowest level that is feasible for such fisheries within the
6-month period.
(6)(A) At the earliest possible time (not later than 30 days) after
the Secretary issues a final stock assessment under section 1386(b) of
this title for a strategic stock, the Secretary shall, and for stocks
that interact with a fishery listed under subsection (c)(1)(A)(i) of
this section for which the Secretary has made a determination under
paragraph (1), the Secretary may--
(i) establish a take reduction team for such stock and appoint
the members of such team in accordance with subparagraph (C); and
(ii) publish in the Federal Register a notice of the team's
establishment, the names of the team's appointed members, the full
geographic range of such stock, and a list of all commercial
fisheries that cause incidental mortality and serious injury of
marine mammals from such stock.
(B) The Secretary may request a take reduction team to address a
stock that extends over one or more regions or fisheries, or multiple
stocks within a region or fishery, if the Secretary determines that
doing so would facilitate the development and implementation of plans
required under this subsection.
(C) Members of take reduction teams shall have expertise regarding
the conservation or biology of the marine mammal species which the take
reduction plan will address, or the fishing practices which result in
the incidental mortality and serious injury of such species. Members
shall include representatives of Federal agencies, each coastal State
which has fisheries which interact with the species or stock,
appropriate Regional Fishery Management Councils, interstate fisheries
commissions, academic and scientific organizations, environmental
groups, all commercial and recreational fisheries groups and gear types
which incidentally take the species or stock, Alaska Native
organizations or Indian tribal organizations, and others as the
Secretary deems appropriate. Take reduction teams shall, to the maximum
extent practicable, consist of an equitable balance among
representatives of resource user interests and nonuser interests.
(D) Take reduction teams shall not be subject to the Federal
Advisory Committee Act (5 App. U.S.C.). Meetings of take reduction teams
shall be open to the public, and prior notice of meetings shall be made
public in a timely fashion.
(E) Members of take reduction teams shall serve without
compensation, but may be reimbursed by the Secretary, upon request, for
reasonable travel costs and expenses incurred in performing their duties
as members of the team.
(7) Where the human-caused mortality and serious injury from a
strategic stock is estimated to be equal to or greater than the
potential biological removal level established under section 1386 of
this title for such stock and such stock interacts with a fishery listed
under subsection (c)(1)(A)(i) or (ii) of this section, the following
procedures shall apply in the development of the take reduction plan for
the stock:
(A)(i) Not later than 6 months after the date of establishment
of a take reduction team for the stock, the team shall submit a
draft take reduction plan for such stock to the Secretary,
consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by
consensus. In the event consensus cannot be reached, the team shall
advise the Secretary in writing on the range of possibilities
considered by the team, and the views of both the majority and
minority.
(B)(i) The Secretary shall take the draft take reduction plan
into consideration and, not later than 60 days after the submission
of the draft plan by the team, the Secretary shall publish in the
Federal Register the plan proposed by the team, any changes proposed
by the Secretary with an explanation of the reasons therefor, and
proposed regulations to implement such plan, for public review and
comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction team does not submit a
draft plan to the Secretary within 6 months, the Secretary shall,
not later than 8 months after the establishment of the team, publish
in the Federal Register a proposed take reduction plan and
implementing regulations, for public review and comment during a
period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment period
required under subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations, consistent with
the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after
publication of a final take reduction plan, utilize newspapers of
general circulation, fishery trade associations, electronic media,
and other means of advising commercial fishermen of the requirements
of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet every 6
months, or at such other intervals as the Secretary determines are
necessary, to monitor the implementation of the final take reduction
plan until such time that the Secretary determines that the
objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and
implementing regulations as necessary to meet the requirements of
this section, in accordance with the procedures in this section for
the issuance of such plans and regulations.
(8) Where the human-caused mortality and serious injury from a
strategic stock is estimated to be less than the potential biological
removal level established under section 1386 of this title for such
stock and such stock interacts with a fishery listed under subsection
(c)(1)(A)(i) or (ii) of this section, or for any marine mammal stocks
which interact with a commercial fishery listed under subsection
(c)(1)(A)(i) of this section for which the Secretary has made a
determination under paragraph (1), the following procedures shall apply
in the development of the take reduction plan for such stock:
(A)(i) Not later than 11 months after the date of establishment
of a take reduction team for the stock, the team shall submit a
draft take reduction plan for the stock to the Secretary, consistent
with the other provisions of this section.
(ii) Such draft take reduction plan shall be developed by
consensus. In the event consensus cannot be reached, the team shall
advise the Secretary in writing on the range of possibilities
considered by the team, and the views of both the majority and
minority.
(B)(i) The Secretary shall take the draft take reduction plan
into consideration and, not later than 60 days after the submission
of the draft plan by the team, the Secretary shall publish in the
Federal Register the plan proposed by the team, any changes proposed
by the Secretary with an explanation of the reasons therefor, and
proposed regulations to implement such plan, for public review and
comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction team does not submit a
draft plan to the Secretary within 11 months, the Secretary shall,
not later than 13 months after the establishment of the team,
publish in the Federal Register a proposed take reduction plan and
implementing regulations, for public review and comment during a
period of not to exceed 90 days.
(C) Not later than 60 days after the close of the comment period
required under subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations, consistent with
the other provisions of this section.
(D) The Secretary shall, during a period of 30 days after
publication of a final take reduction plan, utilize newspapers of
general circulation, fishery trade associations, electronic media,
and other means of advising commercial fishermen of the requirements
of the plan and how to comply with them.
(E) The Secretary and the take reduction team shall meet on an
annual basis, or at such other intervals as the Secretary determines
are necessary, to monitor the implementation of the final take
reduction plan until such time that the Secretary determines that
the objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and
implementing regulations as necessary to meet the requirements of
this section, in accordance with the procedures in this section for
the issuance of such plans and regulations.
(9) In implementing a take reduction plan developed pursuant to this
subsection, the Secretary may, where necessary to implement a take
reduction plan to protect or restore a marine mammal stock or species
covered by such plan, promulgate regulations which include, but are not
limited to, measures to--
(A) establish fishery-specific limits on incidental mortality
and serious injury of marine mammals in commercial fisheries or
restrict commercial fisheries by time or area;
(B) require the use of alternative commercial fishing gear or
techniques and new technologies, encourage the development of such
gear or technology, or convene expert skippers' panels;
(C) educate commercial fishermen, through workshops and other
means, on the importance of reducing the incidental mortality and
serious injury of marine mammals in affected commercial fisheries;
and
(D) monitor, in accordance with subsection (d) of this section,
the effectiveness of measures taken to reduce the level of
incidental mortality and serious injury of marine mammals in the
course of commercial fishing operations.
(10)(A) Notwithstanding paragraph (6), in the case of any stock to
which paragraph (1) applies for which a final stock assessment has not
been published under section 1386(b)(3) of this title by April 1, 1995,
due to a proceeding under section 1386(b)(2) of this title, or any
Federal court review of such proceeding, the Secretary shall establish a
take reduction team under paragraph (6) for such stock as if a final
stock assessment had been published.
(B) The draft stock assessment published for such stock under
section 1386(b)(1) of this title shall be deemed the final stock
assessment for purposes of preparing and implementing a take reduction
plan for such stock under this section.
(C) Upon publication of a final stock assessment for such stock
under section 1386(b)(3) of this title the Secretary shall immediately
reconvene the take reduction team for such stock for the purpose of
amending the take reduction plan, and any regulations issued to
implement such plan, if necessary, to reflect the final stock assessment
or court action. Such amendments shall be made in accordance with
paragraph (7)(F) or (8)(F), as appropriate.
(D) A draft stock assessment may only be used as the basis for a
take reduction plan under this paragraph for a period of not to exceed
two years, or until a final stock assessment is published, whichever is
earlier. If, at the end of the two-year period, a final stock assessment
has not been published, the Secretary shall categorize such stock under
section 1386(a)(5)(A) of this title and shall revoke any regulations to
implement a take reduction plan for such stock.
(E) Subparagraph (D) shall not apply for any period beyond two years
during which a final stock assessment for such stock has not been
published due to review of a proceeding on such stock assessment by a
Federal court. Immediately upon final action by such court, the
Secretary shall proceed under subparagraph (C).
(11) Take reduction plans developed under this section for a species
or stock listed as a threatened species or endangered species under the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) shall be
consistent with any recovery plan developed for such species or stock
under section 4 of such Act [16 U.S.C. 1533].
(g) Emergency regulations
(1) If the Secretary finds that the incidental mortality and serious
injury of marine mammals from commercial fisheries is having, or is
likely to have, an immediate and significant adverse impact on a stock
or species, the Secretary shall take actions as follows:
(A) In the case of a stock or species for which a take reduction
plan is in effect, the Secretary shall--
(i) prescribe emergency regulations that, consistent with
such plan to the maximum extent practicable, reduce incidental
mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, any
amendments to such plan that are recommended by the take
reduction team to address such adverse impact.
(B) In the case of a stock or species for which a take reduction
plan is being developed, the Secretary shall--
(i) prescribe emergency regulations to reduce such
incidental mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, such
plan, which shall provide methods to address such adverse impact
if still necessary.
(C) In the case of a stock or species for which a take reduction
plan does not exist and is not being developed, or in the case of a
commercial fishery listed under subsection (c)(1)(A)(iii) of this
section which the Secretary believes may be contributing to such
adverse impact, the Secretary shall--
(i) prescribe emergency regulations to reduce such
incidental mortality and serious injury in that fishery, to the
extent necessary to mitigate such adverse impact;
(ii) immediately review the stock assessment for such stock
or species and the classification of such commercial fishery
under this section to determine if a take reduction team should
be established; and
(iii) may, where necessary to address such adverse impact on
a species or stock listed as a threatened species or endangered
species under the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.), place observers on vessels in a commercial fishery
listed under subsection (c)(1)(A)(iii) of this section, if the
Secretary has reason to believe such vessels may be causing the
incidental mortality and serious injury to marine mammals from
such stock.
(2) Prior to taking action under paragraph (1)(A), (B), or (C), the
Secretary shall consult with the Marine Mammal Commission, all
appropriate Regional Fishery Management Councils, State fishery
managers, and the appropriate take reduction team (if established).
(3) Emergency regulations prescribed under this subsection--
(A) shall be published in the Federal Register, together with an
explanation thereof;
(B) shall remain in effect for not more than 180 days or until
the end of the applicable commercial fishing season, whichever is
earlier; and
(C) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination, if
the Secretary determines that the reasons for emergency regulations
no longer exist.
(4) If the Secretary finds that incidental mortality and serious
injury of marine mammals in a commercial fishery is continuing to have
an immediate and significant adverse impact on a stock or species, the
Secretary may extend the emergency regulations for an additional period
of not more than 90 days or until reasons for the emergency no longer
exist, whichever is earlier.
(h) Penalties
Except as provided in subsection (c) of this section, any person who
violates this section shall be subject to the provisions of sections
1375 and 1377 of this title, and may be subject to section 1376 of this
title as the Secretary shall establish by regulations.
(i) Assistance
The Secretary shall provide assistance to Regional Fishery
Management Councils, States, interstate fishery commissions, and Indian
tribal organizations in meeting the goal of reducing incidental
mortality and serious injury to insignificant levels approaching a zero
mortality and serious injury rate.
(j) Contributions
For purposes of carrying out this section, the Secretary may accept,
solicit, receive, hold, administer, and use gifts, devises, and
bequests.
(k) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior prior
to taking actions or making determinations under this section that
affect or relate to species or population stocks of marine mammals for
which the Secretary of the Interior is responsible under this
subchapter.
(l) Definitions
As used in this section and section 1371(a)(5)(E) of this title,
each of the terms ``fishery'' and ``vessel of the United States'' has
the same meaning it does in section 1802 of this title.
(Pub. L. 92-522, title I, Sec. 118, as added Pub. L. 103-238, Sec. 11,
Apr. 30, 1994, 108 Stat. 546; amended Pub. L. 104-208, div. A, title I,
Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009,
3009-41.)
References in Text
The Endangered Species Act of 1973, referred to in subsecs. (a)(2),
(d)(4)(A), (f)(11), and (g)(1)(C)(iii), is Pub. L. 93-205, Dec. 28,
1973, 87 Stat. 884, as amended, which is classified principally to
chapter 35 (Sec. 1531 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 1531 of this title and Tables.
Act of November 7, 1986, referred to in subsec. (a)(4), is Pub. L.
99-625, Nov. 7, 1986, 100 Stat. 3500, which amended section 718b of this
title and provisions set out as a table of National Wildlife Refuges
under section 668dd of this title and enacted provisions set out as a
note under section 1536 of this title. For complete classification of
this Act to the Code, see Tables.
The Federal Advisory Committee Act, referred to in subsec.
(f)(6)(D), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended,
which is set out in the Appendix to Title 5, Government Organization and
Employees.
Amendments
1996--Subsecs. (a)(1), (c)(2)(B)(ii), (l). Pub. L. 104-208 made
technical amendment to references in original act which appear in text
as references to sections 1802 and 1824(b) of this title.
Effective Date of 1996 Amendment
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208
provided that the amendment made by that section is effective 15 days
after Oct. 11, 1996.
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 1362, 1371, 1372, 1375,
1383a, 1383b, 1384, 1389 of this title.
