16 U.S.C. § 1413 — Regulatory authority of Secretary

Page 1826 TITLE 16—CONSERVATION § 1412 eastern tropical Pacific Ocean in a fishery in which the Secretary has determined that a regular and significant association occurs be- tween marine mammals and tuna, and in which tuna is harvested through the use of purse seine nets deployed on or to encircle ma- rine mammals. (Pub. L. 92–522, title III, § 301, as added Pub. L. 102–523, § 2(a), Oct. 26, 1992, 106 Stat. 3425; amend- ed Pub. L. 105–42, § 6(b), Aug. 15, 1997, 111 Stat. 1129.) Editorial Notes CODIFICATION Another section 301 of Pub. L. 92–522 was renumbered section 401 and is classified to section 1421 of this title. AMENDMENTS 1997—Subsec. (a)(4). Pub. L. 105–42, § 6(b)(1), added par. (4) and struck out former par. (4) which read as follows: ‘‘Nations harvesting yellowfin tuna in the eastern trop- ical Pacific Ocean have indicated their willingness to participate in appropriate multilateral agreements to reduce, and eventually eliminate, dolphin mortality in that fishery.’’ Subsec. (b)(2), (3). Pub. L. 105–42, § 6(b)(2), added pars. (2) and (3) and struck out former pars. (2) and (3) which read as follows: ‘‘(2) secure appropriate multilateral agreements to reduce, and eventually eliminate, the mortality re- ferred to in paragraph (1); ‘‘(3) ensure that the market of the United States does not act as an incentive to the harvest of tuna caught in association with dolphins or with driftnets;’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1997 AMENDMENT For effective date of amendment by Pub. L. 105–42, see section 8 of Pub. L. 105–42, set out as a note under section 1362 of this title. § 1412. International Dolphin Conservation Pro- gram The Secretary of State, in consultation with the Secretary, shall seek to secure a binding international agreement to establish an Inter- national Dolphin Conservation Program that re- quires— (1) that the total annual dolphin mortality in the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean shall not exceed 5,000 animals with a commitment and objective to progressively reduce dolphin mor- tality to a level approaching zero through the setting of annual limits; (2) the establishment of a per-stock per-year dolphin mortality limit, to be in effect through calendar year 2000, at a level between 0.2 percent and 0.1 percent of the minimum population estimate, as calculated, revised, or approved by the Secretary; (3) the establishment of a per-stock per-year dolphin mortality limit, beginning with the calendar year 2001, at a level less than or equal to 0.1 percent of the minimum population esti- mate as calculated, revised, or approved by the Secretary; (4) that if a dolphin mortality limit is ex- ceeded under— (A) paragraph (1), all sets on dolphins shall cease for the applicable fishing year; and (B) paragraph (2) or (3), all sets on the stocks covered under paragraph (2) or (3) and any mixed schools that contain any of those stocks shall cease for the applicable fishing year; (5) a scientific review and assessment to be conducted in calendar year 1998 to— (A) assess progress in meeting the objec- tives set for calendar year 2000 under para- graph (2); and (B) as appropriate, consider recommenda- tions for meeting these objectives; (6) a scientific review and assessment to be conducted in calendar year 2000— (A) to review the stocks covered under paragraph (3); and (B) as appropriate to consider rec- ommendations to further the objectives set under that paragraph; (7) the establishment of a per vessel max- imum annual dolphin mortality limit con- sistent with the established per-year mor- tality limits, as determined under paragraphs (1) through (3); and (8) the provision of a system of incentives to vessel captains to continue to reduce dolphin mortality, with the goal of eliminating dol- phin mortality. (Pub. L. 92–522, title III, § 302, as added Pub. L. 105–42, § 6(c), Aug. 15, 1997, 111 Stat. 1130.) Editorial Notes PRIOR PROVISIONS A prior section 1412, Pub. L. 92–522, title III, § 302, as added Pub. L. 102–523, § 2(a), Oct. 26, 1992, 106 Stat. 3426, related to international agreements to establish global moratorium to prohibit certain tuna harvesting prac- tices prior to repeal by Pub. L. 105–42, § 6(c), Aug. 15, 1997, 111 Stat. 1130. A prior section 302 of Pub. L. 92–522 was renumbered section 402 and is classified to section 1421a of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE For effective date of section, see section 8 of Pub. L. 105–42, set out as an Effective Date of 1997 Amendment note under section 1362 of this title. § 1413. Regulatory authority of Secretary (a) Regulations (1) The Secretary shall issue regulations, and revise those regulations as may be appropriate, to implement the International Dolphin Con- servation Program. (2)(A) The Secretary shall issue regulations to authorize and govern the taking of marine mam- mals in the eastern tropical Pacific Ocean, in- cluding any species of marine mammal des- ignated as depleted under this chapter but not listed as endangered or threatened under the En- dangered Species Act (16 U.S.C. 1531 et seq.), by vessels of the United States participating in the International Dolphin Conservation Program. (B) Regulations issued under this section shall include provisions— (i) requiring observers on each vessel; (ii) requiring use of the backdown procedure or other procedures equally or more effective Page 1827 TITLE 16—CONSERVATION § 1413 in avoiding mortality of, or serious injury to, marine mammals in fishing operations; (iii) prohibiting intentional sets on stocks and schools in accordance with the Inter- national Dolphin Conservation Program; (iv) requiring the use of special equipment, including dolphin safety panels in nets, moni- toring devices as identified by the Inter- national Dolphin Conservation Program to de- tect unsafe fishing conditions that may cause high incidental dolphin mortality before nets are deployed by a tuna vessel, operable rafts, speedboats with towing bridles, floodlights in operable condition, and diving masks and snorkels; (v) ensuring that the backdown procedure during sets of purse seine net on marine mam- mals is completed and rolling of the net to sack up has begun no later than 30 minutes be- fore sundown; (vi) banning the use of explosive devices in all purse seine operations; (vii) establishing per vessel maximum an- nual dolphin mortality limits, total dolphin mortality limits and per-stock per-year mor- tality limits in accordance with the Inter- national Dolphin Conservation Program; (viii) preventing the making of intentional sets on dolphins after reaching either the ves- sel maximum annual dolphin mortality limits, total dolphin mortality limits, or per-stock per-year mortality limits; (ix) preventing the fishing on dolphins by a vessel without an assigned vessel dolphin mor- tality limit; (x) allowing for the authorization and con- duct of experimental fishing operations, under such terms and conditions as the Secretary may prescribe, for the purpose of testing pro- posed improvements in fishing techniques and equipment that may reduce or eliminate dol- phin mortality or serious injury do not require the encirclement of dolphins in the course of commercial yellowfin tuna fishing; (xi) authorizing fishing within the area cov- ered by the International Dolphin Conserva- tion Program by vessels of the United States without the use of special equipment or nets if the vessel takes an observer and does not in- tentionally deploy nets on, or encircle, dol- phins, under such terms and conditions as the Secretary may prescribe; and (xii) containing such other restrictions and requirements as the Secretary determines are necessary to implement the International Dol- phin Conservation Program with respect to vessels of the United States. (C) ADJUSTMENTS TO REQUIREMENTS.—The Sec- retary may make such adjustments as may be appropriate to requirements of subparagraph (B) that pertain to fishing gear, vessel equipment, and fishing practices to the extent the adjust- ments are consistent with the International Dolphin Conservation Program. (b) Consultation In developing any regulation under this sec- tion, the Secretary shall consult with the Sec- retary of State, the Marine Mammal Commis- sion, and the United States Commissioners to the Inter-American Tropical Tuna Commission appointed under section 952 of this title. (c) Emergency regulations (1) If the Secretary determines, on the basis of the best scientific information available (includ- ing research conducted under section 1414a of this title and information obtained under the International Dolphin Conservation Program) that the incidental mortality and serious injury of marine mammals authorized under this sub- chapter is having, or is likely to have, a signifi- cant adverse impact on a marine mammal stock or species, the Secretary shall— (A) notify the Inter-American Tropical Tuna Commission of his or her determination, along with recommendations to the Commission as to actions necessary to reduce incidental mor- tality and serious injury and mitigate such ad- verse impact; and (B) prescribe emergency regulations to re- duce incidental mortality and serious injury and mitigate such adverse impact. (2) Before taking action under subparagraph (A) or (B) of paragraph (1), the Secretary shall consult with the Secretary of State, the Marine Mammal Commission, and the United States Commissioners to the Inter-American Tropical Tuna Commission. (3) Emergency regulations prescribed under this subsection— (A) shall be published in the Federal Reg- ister, together with an explanation thereof; (B) shall remain in effect for the duration of the applicable fishing year; 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 Sec- retary determines that the reasons for the emergency action no longer exist. (4) If the Secretary finds that the incidental mortality and serious injury of marine mam- mals in the yellowfin tuna fishery in the eastern tropical Pacific Ocean is continuing to have a significant adverse impact on a stock or species, the Secretary may extend the emergency regu- lations for such additional periods as may be necessary. (5) Within 120 days after the Secretary notifies the United States Commissioners to the Inter- American Tropical Tuna Commission of the Sec- retary’s determination under paragraph (1)(A), the United States Commissioners shall call for a special meeting of the Commission to address the actions necessary to reduce incidental mor- tality and serious injury and mitigate the ad- verse impact which resulted in the determina- tion. The Commissioners shall report the results of the special meeting in writing to the Sec- retary and to the Secretary of State. In their re- port, the Commissioners shall— (A) include a description of the actions taken by the harvesting nations or under the International Dolphin Conservation Program to reduce the incidental mortality and serious injury and measures to mitigate the adverse impact on the marine mammal species or stock; (B) indicate whether, in their judgment, the actions taken address the problem adequately; and (C) if they indicate that the actions taken do not address the problem adequately, include Page 1828 TITLE 16—CONSERVATION § 1414 recommendations of such additional action to be taken as may be necessary. (Pub. L. 92–522, title III, § 303, as added Pub. L. 105–42, § 6(c), Aug. 15, 1997, 111 Stat. 1131.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act, referred to in subsec. (a)(2)(A), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§ 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. PRIOR PROVISIONS A prior section 1413, Pub. L. 92–522, title III, § 303, as added Pub. L. 102–523, § 2(a), Oct. 26, 1992, 106 Stat. 3426, related to research programs prior to repeal by Pub. L. 105–42, § 6(c), Aug. 15, 1997, 111 Stat. 1130. A prior section 303 of Pub. L. 92–522 was renumbered section 403 and is classified to section 1421b of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE For effective date of section, see section 8 of Pub. L. 105–42, set out as an Effective Date of 1997 Amendment note under section 1362 of this title. § 1414. Repealed. Pub. L. 105–42, § 6(c), Aug. 15, 1997, 111 Stat. 1130 Section, Pub. L. 92–522, title III, § 304, as added Pub. L. 102–523, § 2(a), Oct. 26, 1992, 106 Stat. 3428, related to reviews, reports, and recommendations by Secretary of Commerce. A prior section 304 of Pub. L. 92–522 was renumbered section 404 and is classified to section 1421c of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL For effective date of repeal, see section 8 of Pub. L. 105–42, set out as an Effective Date of 1997 Amendment note under section 1362 of this title. § 1414a. Research (a) Required research (1) In general The Secretary shall, in consultation with the Marine Mammal Commission and the Inter-American Tropical Tuna Commission, conduct a study of the effect of intentional en- circlement (including chase) on dolphins and dolphin stocks incidentally taken in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean. The study, which shall commence on October 1, 1997, shall consist of abundance surveys as de- scribed in paragraph (2) and stress studies as described in paragraph (3), and shall address the question of whether such encirclement is having a significant adverse impact on any de- pleted dolphin stock in the eastern tropical Pacific Ocean. (2) Population abundance surveys The abundance surveys under this sub- section shall survey the abundance of such de- pleted stocks and shall be conducted during each of the calendar years 1998, 1999, and 2000. (3) Stress studies The stress studies under this subsection shall include— (A) a review of relevant stress-related re- search and a 3-year series of necropsy sam- ples from dolphins obtained by commercial vessels; (B) a 1-year review of relevant historical demographic and biological data related to dolphins and dolphin stocks referred to in paragraph (1); and (C) an experiment involving the repeated chasing and capturing of dolphins by means of intentional encirclement. (4) Report No later than 90 days after publishing the finding under subsection (g)(2) of section 1385 of this title, the Secretary shall complete and submit a report containing the results of the research described in this subsection to the United States Senate Committee on Com- merce, Science, and Transportation and the United States House of Representatives Com- mittees on Resources and on Commerce, and to the Inter-American Tropical Tuna Commis- sion. (b) Other research (1) In general In addition to conducting the research de- scribed in subsection (a), the Secretary shall, in consultation with the Marine Mammal Commission and in cooperation with the na- tions participating in the International Dol- phin Conservation Program and the Inter- American Tropical Tuna Commission, under- take or support appropriate scientific research to further the goals of the International Dol- phin Conservation Program. (2) Specific areas of research Research carried out under paragraph (1) may include— (A) projects to devise cost-effective fishing methods and gear so as to reduce, with the goal of eliminating, the incidental mortality and serious injury of marine mammals in connection with commercial purse seine fishing in the eastern tropical Pacific Ocean; (B) projects to develop cost-effective meth- ods of fishing for mature yellowfin tuna without setting nets on dolphins or other marine mammals; (C) projects to carry out stock assessments for those marine mammal species and ma- rine mammal stocks taken in the purse seine fishery for yellowfin tuna in the east- ern tropical Pacific Ocean, including species or stocks not within waters under the juris- diction of the United States; and (D) projects to determine the extent to which the incidental take of nontarget spe- cies, including juvenile tuna, occurs in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean, the geographic location of the incidental take, and the impact of that incidental take on tuna stocks and nontarget species. (c) Authorization of appropriations (1) There are authorized to be appropriated to the Secretary the following amounts, to be used