§ 1389. — Pacific Coast Task Force; Gulf of Maine.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1389]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 1389. Pacific Coast Task Force; Gulf of Maine
(a) Pinniped removal authority
Notwithstanding any other provision of this subchapter, the
Secretary may permit the intentional lethal taking of pinnipeds in
accordance with this section.
(b) Application
(1) A State may apply to the Secretary to authorize the intentional
lethal taking of individually identifiable pinnipeds which are having a
significant negative impact on the decline or recovery of salmonid
fishery stocks which--
(A) have been listed as threatened species or endangered species
under the Endangered Species Act of 1973 (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) Considerations
In considering whether an application should be approved or denied,
the Pinniped-Fishery Interaction Task Force and the Secretary shall
consider--
(1) population trends, feeding habits, the location of the
pinniped interaction, how and when the interaction occurs, and how
many individual pinnipeds are involved;
(2) past efforts to nonlethally deter such pinnipeds, and
whether the applicant has demonstrated that no feasible and prudent
alternatives exist and that the applicant has taken all reasonable
nonlethal steps without success;
(3) the extent to which such pinnipeds are causing undue injury
or impact to, or imbalance with, other species in the ecosystem,
including fish populations; and
(4) the extent to which such pinnipeds are exhibiting behavior
that presents an ongoing threat to public safety.
(e) Limitation
The Secretary shall not approve the intentional lethal taking of any
pinniped from a species or stock that is--
(1) listed as a threatened species or endangered species under
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(2) depleted under this chapter; or
(3) a strategic stock.
(f) California sea lions and Pacific harbor seals; investigation and
report
(1) The Secretary shall engage in a scientific investigation to
determine whether California sea lions and Pacific harbor seals--
(A) are having a significant negative impact on the recovery of
salmonid fishery stocks which have been listed as endangered species
or threatened species under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), or which the Secretary finds are approaching
such endangered species or threatened species status; or
(B) are having broader impacts on the coastal ecosystems of
Washington, Oregon, and California.
The Secretary shall conclude this investigation and prepare a report on
its results no later than October 1, 1995.
(2) Upon completion of the scientific investigation required under
paragraph (1), the Secretary shall enter into discussions with the
Pacific States Marine Fisheries Commission, on behalf of the States of
Washington, Oregon, and California, for the purpose of addressing any
issues or problems identified as a result of the scientific
investigation, and to develop recommendations to address such issues or
problems. Any recommendations resulting from such discussions shall be
submitted, along with the report, to the Committee on Merchant Marine
and Fisheries of the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate.
(3) The Secretary shall make the report and the recommendations
submitted under paragraph (2) available to the public for review and
comment for a period of 90 days.
(4) There are authorized to be appropriated to the Secretary such
sums as are necessary to carry out the provisions of this subsection.
(5) The amounts appropriated under section 4107(c) of this title and
allocated to the Pacific States Marine Fisheries Commission may be used
by the Commission to participate in discussions with the Secretary under
paragraph (2).
(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) of this section.
(h) Gulf of Maine Task Force
The Secretary shall establish a Pinniped-Fishery Interaction Task
Force to advise the Secretary on issues or problems regarding pinnipeds
interacting in a dangerous or damaging manner with aquaculture resources
in the Gulf of Maine. No later than 2 years from April 30, 1994, the
Secretary shall after notice and opportunity for public comment submit
to the Committee on Merchant Marine and Fisheries of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate a report containing recommended available
alternatives to mitigate such interactions.
(i) Requirements applicable to task forces
(1) Any task force established under this section--
(A) shall to the maximum extent practicable, consist of an
equitable balance among representatives of resource user interests
and nonuser interests; and
(B) shall not be subject to the Federal Advisory Committee Act
(5 App. U.S.C.).
(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, Sec. 120, as added Pub. L. 103-238, Sec. 23,
Apr. 30, 1994, 108 Stat. 562.)
References in Text
The Endangered Species Act of 1973, referred to in subsecs.
(b)(1)(A), (B), (e)(1), and (f)(1)(A), 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.
The Federal Advisory Committee Act, referred to in subsec. (i)(B),
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.
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.
