16 U.S.C. § 1391 — Near real-time monitoring and mitigation

Page 1818 TITLE 16—CONSERVATION § 1391 ‘‘(iv) areas designated as critical habitat for large cetaceans. ‘‘(g) REPORT REQUIRED.—Not later than 1 year after the date of enactment of this Act [Dec. 23, 2022], and every 2 years thereafter for the duration of the pilot program, the Commandant [of the Coast Guard], in co- ordination with the Under Secretary and the Adminis- trator of the Maritime Administration, shall submit to the appropriate congressional committees a report that— ‘‘(1) evaluates the functionality, utility, reliability, responsiveness, and operational status of the Ceta- cean Desk established under this section, including a quantification of reductions in vessel strikes to large cetaceans as a result of the pilot program; ‘‘(2) assesses the efficacy of communication be- tween the Cetacean Desk and the maritime industry and provides recommendations for improvements; ‘‘(3) evaluates the integration and interoperability of existing data collection methods, as well as public data, into the Cetacean Desk operations; ‘‘(4) assesses the efficacy of collaboration and stakeholder engagement with Tribal governments, the State of Washington, institutions of higher edu- cation, the maritime industry, ports in the Puget Sound region, and nongovernmental organizations; and ‘‘(5) evaluates the progress, performance, and im- plementation of guidance and training procedures for Puget Sound Vessel Traffic Service personnel, as re- quired under subsection (f).’’ [For definition of ‘‘Secretary’’ as used in section 11304 of Pub. L. 117–263, set out above, see section 11002 of div. K of Pub. L. 117–263, set out as a note under section 106 of Title 14, Coast Guard.] [For definitions of terms as used in section 11304 of Pub. L. 117–263, set out above, see section 11301 of div. K of Pub. L. 117–263, set out as a note below.] DEFINITIONS For definition of ‘‘Secretary’’ as used in this section, see section 11002 of div. K of Pub. L. 117–263, set out as a note under section 106 of Title 14, Coast Guard. Pub. L. 117–263, div. K, title CXIII, § 11301, Dec. 23, 2022, 136 Stat. 4069, provided that: ‘‘In this subtitle [sub- title A (§§ 11301–11305) of title CXIII of div. K of Pub. L. 117–263, enacting this section and sections 1391 and 1392 of this title and provisions set out as a note under this section]: ‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term ‘appropriate congressional committees’ means— ‘‘(A) the Committee on Commerce, Science, and Transportation of the Senate; and ‘‘(B) the Committees on Transportation and In- frastructure and Natural Resources of the House of Representatives. ‘‘(2) CORE FORAGING HABITATS.—The term ‘core for- aging habitats’ means areas— ‘‘(A) with biological and physical oceanographic features that aggregate Calanus finmarchicus; and ‘‘(B) where North Atlantic right whales foraging aggregations have been well documented. ‘‘(3) EXCLUSIVE ECONOMIC ZONE.—The term ‘exclu- sive economic zone’ has the meaning given that term in section 107 of title 46, United States Code. ‘‘(4) INSTITUTION OF HIGHER EDUCATION.—The term ‘institution of higher education’ has the meaning given that term in section 101(a) of the Higher Edu- cation Act of 1965 (20 U.S.C. 1001(a)). ‘‘(5) LARGE CETACEAN.—The term ‘large cetacean’ means all endangered or threatened species within— ‘‘(A) the suborder Mysticeti; ‘‘(B) the genera Physeter; or ‘‘(C) the genera Orcinus. ‘‘(6) NEAR REAL-TIME.—The term ‘near real-time’, with respect to monitoring of whales, means that vis- ual, acoustic, or other detections of whales are proc- essed, transmitted, and reported as close to the time of detection as is technically feasible. ‘‘(7) NONPROFIT ORGANIZATION.—The term ‘nonprofit organization’ means an organization that is described in section 501(c) of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)] and exempt from tax under section 501(a) of such Code [26 U.S.C. 501(a)]. ‘‘(8) PUGET SOUND REGION.—The term ‘Puget Sound region’ means the Vessel Traffic Service Puget Sound area described in section 161.55 of title 33, Code of Federal Regulations (as of the date of enactment of this Act [Dec. 23, 2022]). ‘‘(9) TRIBAL GOVERNMENT.—The term ‘Tribal govern- ment’ means the recognized governing body of any Indian or Alaska Native Tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including par- enthetically) in the list published most recently as of the date of enactment of this Act pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). ‘‘(10) UNDER SECRETARY.—The term ‘Under Sec- retary’ means the Under Secretary of Commerce for Oceans and Atmosphere.’’ § 1391. Near real-time monitoring and mitigation program for large cetaceans (a) Establishment The Under Secretary, in coordination with the heads of other relevant Federal agencies, shall design and deploy a cost-effective, efficient, and results-oriented near real-time monitoring and mitigation program (referred to in this section as the ‘‘Program’’) for threatened or endangered cetaceans. (b) Purpose The purpose of the Program shall be to reduce the risk to large cetaceans posed by vessel colli- sions and to minimize other impacts on large cetaceans through the use of near real-time lo- cation monitoring and location information. (c) Requirements The Program shall— (1) prioritize species of large cetaceans for which impacts from vessel collisions are of particular concern; (2) prioritize areas where such impacts are of particular concern; (3) be capable of detecting and alerting ocean users and enforcement agencies of the probable location of large cetaceans on an ac- tionable real-time basis, including through real-time data whenever possible; (4) inform sector-specific mitigation proto- cols to effectively reduce takes (as defined in section 216.3 of title 50, Code of Federal Regu- lations, or successor regulations) of large cetaceans; (5) integrate technology improvements; and (6) be informed by technologies, monitoring methods, and mitigation protocols developed under the pilot project required under sub- section (d). (d) Pilot project (1) Establishment In carrying out the Program, the Under Sec- retary shall first establish a pilot monitoring and mitigation project (referred to in this sec- tion as the ‘‘pilot project’’) for North Atlantic right whales for the purposes of informing the Program. (2) Requirements In designing and deploying the pilot project, the Under Secretary, in coordination with the Page 1819 TITLE 16—CONSERVATION § 1391 heads of other relevant Federal agencies, shall, using the best available scientific infor- mation, identify and ensure coverage of— (A) core foraging habitats; and (B) important feeding, breeding, calving, rearing, or migratory habitats of North At- lantic right whales that co-occur with areas of high risk of mortality or serious injury of such whales from vessels, vessel strikes, or disturbance. (3) Components Not later than 3 years after December 23, 2022, the Under Secretary, in consultation with relevant Federal agencies and Tribal gov- ernments, and with input from affected stake- holders, shall design and deploy a near real- time monitoring system for North Atlantic right whales that— (A) comprises the best available detection power, spatial coverage, and survey effort to detect and localize North Atlantic right whales within habitats described in para- graph (2); (B) is capable of detecting North Atlantic right whales, including visually and acous- tically; (C) uses dynamic habitat suitability mod- els to inform the likelihood of North Atlan- tic right whale occurrence habitats de- scribed in paragraph (2) at any given time; (D) coordinates with the Integrated Ocean Observing System of the National Oceanic and Atmospheric Administration and Re- gional Ocean Partnerships to leverage moni- toring assets; (E) integrates historical data; (F) integrates new near real-time moni- toring methods and technologies as such methods and technologies become available; (G) accurately verifies and rapidly commu- nicates detection data to appropriate ocean users; (H) creates standards for contributing, and allows ocean users to contribute, data to the monitoring system using comparable near real-time monitoring methods and tech- nologies; (I) communicates the risks of injury to large cetaceans to ocean users in a manner that is most likely to result in informed de- cision-making regarding the mitigation of those risks; and (J) minimizes additional stressors to large cetaceans as a result of the information available to ocean users. (4) Reports (A) Preliminary report (i) In general Not later than 2 years after December 23, 2022, the Under Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Com- mittee on Natural Resources of the House of Representatives, and make available to the public, a preliminary report on the pilot project. (ii) Elements The report required under clause (i) shall include the following: (I) A description of the monitoring methods and technology in use or planned for deployment under the pilot project. (II) An analysis of the efficacy of the methods and technology in use or planned for deployment for detecting North Atlantic right whales. (III) An assessment of the manner in which the monitoring system designed and deployed under this subsection is di- rectly informing and improving the man- agement, health, and survival of North Atlantic right whales. (IV) A prioritized identification of technology or research gaps. (V) A plan to communicate the risks of injury to large cetaceans to ocean users in a manner that is most likely to result in informed decision making regarding the mitigation of such risks. (VI) Any other information on the po- tential benefits and efficacy of the pilot project the Under Secretary considers appropriate. (B) Final report (i) In general Not later than 6 years after December 23, 2022, the Under Secretary, in coordination with the heads of other relevant Federal agencies, shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Nat- ural Resources of the House of Representa- tives, and make available to the public, a final report on the pilot project. (ii) Elements The report required under clause (i) shall— (I) address the preliminary report re- quired under subparagraph (A); and (II) include— (aa) an assessment of the benefits and efficacy of the pilot project; (bb) a strategic plan to expand the pilot project to provide near real-time monitoring and mitigation measures— (AA) to additional large cetaceans of concern for which such measures would reduce risk of serious injury or death; and (BB) in important feeding, breed- ing, calving, rearing, or migratory habitats of large cetaceans that co- occur with areas of high risk of mor- tality or serious injury from vessel strikes or disturbance; (cc) a budget and description of funds necessary to carry out such plan; (dd) a prioritized plan for acquisi- tion, deployment, and maintenance of monitoring technologies; and (ee) the locations or species to which such plan would apply. (e) Mitigation protocols The Under Secretary, in consultation with the Secretary, the Secretary of Defense, the Sec- retary of Transportation, and the Secretary of Page 1820 TITLE 16—CONSERVATION § 1392 the Interior, and with input from affected stake- holders, shall develop and deploy mitigation protocols that make use of any monitoring sys- tem designed and deployed under this section to direct sector-specific mitigation measures that avoid and significantly reduce risk of serious in- jury and mortality to North Atlantic right whales. (f) Access to data The Under Secretary shall provide access to data generated by any monitoring system de- signed and deployed under this section for pur- poses of scientific research and evaluation and public awareness and education, including through the Right Whale Sighting Advisory Sys- tem of the National Oceanic and Atmospheric Administration and WhaleMap or other suc- cessor public website portals, subject to review for national security considerations. (g) Additional authority The Under Secretary may enter into and per- form such contracts, leases, grants, or coopera- tive agreements as may be necessary to carry out this section on such terms as the Under Sec- retary considers appropriate, consistent with the Federal Acquisition Regulation. (h) Savings clause An activity may not be carried out under this section if the Secretary of Defense, in consulta- tion with the Under Secretary, determines that the activity would negatively impact the de- fense readiness or the national security of the United States. (i) Funding From funds otherwise appropriated to the Under Secretary $5,000,000 is authorized to sup- port development, deployment, application, and ongoing maintenance of the Program and to otherwise carry out this section for each of fis- cal years 2023 through 2027. (Pub. L. 117–263, div. K, title CXIII, § 11303, Dec. 23, 2022, 136 Stat. 4072.) Editorial Notes CODIFICATION Section was enacted as part of the Don Young Coast Guard Authorization Act of 2022 and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter. Statutory Notes and Related Subsidiaries DEFINITIONS For definition of ‘‘Secretary’’ as used in this section, see section 11002 of div. K of Pub. L. 117–263, set out as a note under section 106 of Title 14, Coast Guard. For definitions of terms used in this section, see sec- tion 11301 of div. K of Pub. L. 117–263, set out as a note under section 1390 of this title. § 1392. Monitoring ocean soundscapes (a) In general The Under Secretary shall maintain and ex- pand an ocean soundscape development program to— (1) award grants to expand the deployment of Federal and non-Federal observing and data management systems capable of collecting measurements of underwater sound for pur- poses of monitoring and analyzing baselines and trends in the underwater soundscape to protect and manage marine life; (2) continue to develop and apply standard- ized forms of measurements to assess sounds produced by marine animals, physical proc- esses, and anthropogenic activities; and (3) after coordinating with the Secretary of Defense, coordinate and make accessible to the public the datasets, modeling and anal- ysis, and user-driven products and tools result- ing from observations of underwater sound funded through grants awarded under para- graph (1). (b) Coordination The program described in subsection (a) shall— (1) include the Ocean Noise Reference Sta- tion Network of the National Oceanic and At- mospheric Administration and the National Park Service; (2) use and coordinate with the Integrated Ocean Observing System; and (3) coordinate with the Regional Ocean Part- nerships and the Director of the United States Fish and Wildlife Service, as appropriate. (c) Priority In awarding grants under subsection (a), the Under Secretary shall consider the geographic diversity of the recipients of such grants. (d) Savings clause An activity may not be carried out under this section if the Secretary of Defense, in consulta- tion with the Under Secretary, determines that the activity would negatively impact the de- fense readiness or the national security of the United States. (e) Funding From funds otherwise appropriated to the Under Secretary, $1,500,000 is authorized for each of fiscal years 2023 through 2028 to carry out this section. (Pub. L. 117–263, div. K, title CXIII, § 11305, Dec. 23, 2022, 136 Stat. 4077.) Editorial Notes CODIFICATION Section was enacted as part of the Don Young Coast Guard Authorization Act of 2022 and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Marine Mammal Protection Act of 1972 which comprises this chapter. Statutory Notes and Related Subsidiaries DEFINITIONS For definitions of terms used in this section, see sec- tion 11301 of div. K of Pub. L. 117–263, set out as a note under section 1390 of this title. § 1393. Conservation and mitigation assistance (a) Assistance (1) In general Not later than 180 days after December 29, 2022, the Secretary of Commerce, acting