16 U.S.C. § 973h — Enforcement

Page 1584 TITLE 16—CONSERVATION § 973h 1 See References in Text note below. should be a reference to section 12108 of Title 46, Ship- ping, which was enacted by section 1 of act Aug. 26, 1983, Pub. L. 98–89, 97 Stat. 587. Section 12108 of Title 46 was subsequently omitted, and its provisions restated, in the general amendment of chapter 121 of Title 46 by Pub. L. 109–304, § 5, Oct. 6, 2006, 120 Stat. 1491. See sec- tions 12102, 12113, and 12116 of Title 46 and Prior Provi- sions note under section 12107 of Title 46. Sections 1374(h)(1), 1374(h)(2), and 1416(a) of this title, referred to in subsec. (h)(2), (3), were in the original ref- erences to sections 104(h)(1), 104(h)(2), and 306(a) of the Marine Mammal Protection Act, and were translated as meaning sections 104(h)(1), 104(h)(2), and 306(a), respec- tively, of the Marine Mammal Protection Act of 1972, Pub. L. 92–522, to reflect the probable intent of Con- gress. AMENDMENTS 1995—Subsec. (h). Pub. L. 104–43 added subsec. (h). § 973h. Enforcement (a) Federal responsibilities; utilization of per- sonnel, etc., of other Federal and State agen- cies The provisions of this chapter shall be en- forced by the Secretary in cooperation with the Secretary of State. The Secretary, after con- sultation with the Secretary of State, may by agreement, on a reimbursable basis or other- wise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency and of any State agen- cy in the performance of these duties. (b) Investigation and report of alleged Treaty in- fringement involving U.S. vessel; notice re- quirements to operator of vessel; comments, information, or evidence by operator (1) The Secretary shall, at the request of a Pa- cific Island Party made to the Secretary of State, fully investigate any alleged infringe- ment of the Treaty involving a vessel of the United States, and report as soon as practicable, and in any case within 2 months, to that Party through the Secretary of State on any action taken or proposed by the Secretary in regard to the alleged infringement. (2) Upon commencement of an investigation under paragraph (1) of this subsection, the Sec- retary shall notify the operator of any vessel concerned regarding— (A) the nature of the investigation; (B) the right of the operator to submit com- ments, information, or evidence bearing on the investigation and to receive, upon the op- erator’s timely written request to the Sec- retary, an opportunity to present such com- ments, information, or evidence orally to the Secretary or the Secretary’s representative within 30 days after receipt of such notifica- tion. (c) Notice requirements to Pacific Island Party concerning institution and outcome of legal proceedings (1) Prior to instituting any legal proceedings under this chapter for any action which involves an alleged infringement of the Treaty in waters within the jurisdiction of a Pacific Island Party, the Secretary, through the Secretary of State, shall notify the Pacific Island Party in accord- ance with paragraph 8 of Article 4 of the Treaty that the proceedings will be instituted. Such no- tice shall include a statement of the facts be- lieved to show an infringement of the Treaty and the nature of the proposed proceedings, in- cluding any proposed charges and any proposed penalties. The Secretary shall not institute such proceedings if the Pacific Island Party objects within 30 days after the effective date of the no- tice under Article 10 of the Treaty. (2) The Pacific Island Party exercising juris- diction over the waters involved in such a legal proceeding shall be promptly notified by the Secretary, through the Secretary of State, con- cerning the outcome of the proceeding. (d) Searches and seizures by Authorized Officers; limitations on powers (1) Any Authorized Officer may— (A) with or without a warrant or other proc- ess— (i) arrest any person, if he has reasonable cause to believe that the person has com- mitted any act subject to prosecution under section 973e of this title; (ii) board, and search or inspect, any fish- ing vessel which is subject to the provisions of this chapter; or (iii) seize samples of fish or items for evi- dence (other than the vessel or its fishing gear or equipment) related to any violation of any provision of this chapter; (iv) order a vessel into the most conven- ient port of the United States for investiga- tion when an investigation has been re- quested by a Pacific Island Party in accord- ance with the Treaty and when such an order is necessary to gather information for such an investigation; (B) execute any warrant or other process issued by any court of competent jurisdiction; (C) exercise any other lawful authority; and (D) investigate alleged violations of the Treaty to the same extent authorized to inves- tigate alleged violations of this chapter. (2) To the extent possible, Authorized Officers shall exercise their powers under paragraph (1)(A)(ii), (iii), and (iv) of this subsection so as not to interfere unduly with the lawful oper- ation of the vessel. (3) Nothing in this chapter shall be construed to limit the enforcement of this or other appli- cable Federal laws under section 89 1 of title 14. (e) Exclusive jurisdiction The district courts of the United States shall have exclusive jurisdiction over any case or con- troversy arising under the provisions of this chapter. (Pub. L. 100–330, § 10, June 7, 1988, 102 Stat. 597.) Editorial Notes REFERENCES IN TEXT Section 89 of title 14, referred to in subsec. (d)(3), re- designated section 522 of title 14 by Pub. L. 115–282, title I, § 105(b), Dec. 4, 2018, 132 Stat. 4200, and references to section 89 of title 14 deemed to refer to such redesig- nated section, see section 123(b)(1) of Pub. L. 115–282, set out as a References to Sections of Title 14 as Redes- ignated by Pub. L. 115–282 note preceding section 101 of Title 14, Coast Guard. Page 1585 TITLE 16—CONSERVATION § 973l § 973i. Findings by Secretary (a) Order of vessel to leave waters upon failure to submit to jurisdiction of Pacific Island Party; procedure applicable Following any investigation conducted in ac- cordance with section 973h(b) of this title, the Secretary, with the concurrence of the Sec- retary of State, and upon the request of the Pa- cific Island Party concerned, may order a fish- ing vessel which has not submitted to the juris- diction of that Pacific Island Party to leave im- mediately the Licensing Area, all Limited Areas, and all Closed Areas upon making a find- ing— (1) that the fishing vessel— (A) while fishing in the Licensing Area did not have a license under the Treaty to fish in the Licensing Area, and that under para- graph 2 of Article 3 of the Treaty, such fish- ing is not authorized to be conducted in the Licensing Area without a license; (B) was involved in any incident in which an Authorized Officer, Authorized Party Of- ficer, or observer was allegedly assaulted with resultant bodily harm, physically threatened, forcefully resisted, refused boarding, or subjected to physical intimida- tion or physical interference in the perform- ance of duties as authorized by this chapter or the Treaty; (C) has not made full payment within 60 days of any amount due as a result of a final judgment or other final determination deriv- ing from a violation in waters within the Treaty Area of a Pacific Island Party; or (D) was not represented by an agent for service of process in accordance with the Treaty; or (2) that there is probable cause to believe that the fishing vessel— (A) was used in violation of section 973c(a)(4), (a)(5), (b)(2), or (b)(3) of this title; (B) used an aircraft in violation of section 973c(b)(7) of this title; or (C) was involved in an incident in which section 973c(a)(7) of this title was violated. (b) Order of vessel to leave waters where Pacific Island Party investigating alleged Treaty in- fringement Upon being advised by the Secretary of State that proper notification to Parties has been made under paragraph 7 of Article 5 of the Trea- ty that a Pacific Island Party is investigating an alleged infringement of the Treaty by a ves- sel in waters under the jurisdiction of such Pa- cific Island Party, the Secretary shall order the vessel to leave such waters until the Secretary of State notifies the Secretary that such order is no longer necessary. (c) Rescission of orders The Secretary shall rescind any order issued on the basis of a finding under subsection (a)(1)(C) or (D) of this section as soon as the Sec- retary determines that the facts underlying the finding do not apply. (d) Prohibition on judicial review of orders No order issued in accordance with this sec- tion is subject to judicial review. (e) Enforcement of orders by Attorney General Upon a request by the Secretary, the Attorney General shall commence a civil action for appro- priate relief, including permanent or temporary injunction, to enforce any order issued by the Secretary under this section. (Pub. L. 100–330, § 11, June 7, 1988, 102 Stat. 598; Pub. L. 100–350, § 4(3), June 27, 1988, 102 Stat. 660.) Editorial Notes AMENDMENTS 1988—Subsec. (a)(2)(C). Pub. L. 100–350 substituted ‘‘section 973c(a)(7) of this title’’ for ‘‘section 973c(b)(7) of this title’’. § 973j. Reporting requirements; disclosure of in- formation (a) Holders of licenses shall comply with the reporting requirements of part 4 of Annex I to the Treaty. (b) Information provided by license holders in Schedules 5 and 6 of Annex I of the Treaty shall be provided to the Secretary for transmittal to the Administrator and to an entity designated by the license holder. Such information there- after shall not be released and shall be main- tained as confidential by the Secretary, includ- ing information requested under the Freedom of Information Act [5 U.S.C. 552], unless disclosure is required under court order or unless the infor- mation is essential for an enforcement action under section 973c, 973h(b), 973h(c), or 973i of this title, or any other proper law enforcement ac- tion. (Pub. L. 100–330, § 12, June 7, 1988, 102 Stat. 599.) § 973k. Closed Area stowage requirements At all times while a vessel is in a Closed Area, the fishing gear of the vessel shall be stowed in such a manner as not to be readily available for fishing. In particular, the boom shall be lowered as far as possible so that the vessel cannot be used for fishing, but so that the skiff is acces- sible for use in emergency situations; the heli- copter, if any, shall be tied down; and launches shall be secured. (Pub. L. 100–330, § 13, June 7, 1988, 102 Stat. 599.) § 973l. Observers (a) Required access and assistance; scope of au- thorities The operator and each member of the crew of a vessel shall allow and assist any individual identified as an observer under the Treaty by the Pacific Island Parties— (1) to board the vessel for scientific, compli- ance, monitoring and other functions at the point and time notified by the Pacific Island Parties to the Secretary; (2) without interfering unduly with the law- ful operation of the vessel, to have full access to and use of facilities and equipment on board the vessel which the observer may determine are necessary to carry out observer duties; have full access to the bridge, fish on board, and areas which may be used to hold, process, weigh, and store fish; remove samples; have