16 U.S.C. § 1826k — Equivalent conservation measures

Page 2041 TITLE 16—CONSERVATION § 1826k considers necessary and appropriate under sections 1852(a)(3) and 1854(g) of this title, see section 104 of Pub. L. 111–348, set out as a note under section 1826i of this title. § 1826k. Equivalent conservation measures (a) Identification (1) In general The Secretary shall identify and list in the report under section 1826h of this title— (A) a nation if— (i) any fishing vessel of that nation is en- gaged, or has been engaged during the 3 years preceding the date of the determina- tion, in fishing activities or practices on the high seas or within the exclusive eco- nomic zone of any nation, that have re- sulted in bycatch of a protected living ma- rine resource; and (ii) the vessel’s flag state has not adopt- ed, implemented, and enforced a regu- latory program governing such fishing de- signed to end or reduce such bycatch that is comparable in effectiveness to the regu- latory program of the United States, tak- ing into account differing conditions; and (B) a nation if— (i) any fishing vessel of that nation is en- gaged, or has engaged during the 3 years preceding the date of the determination, in fishing activities on the high seas or with- in the exclusive economic zone of another nation that target or incidentally catch sharks; and (ii) the vessel’s flag state has not adopt- ed, implemented, and enforced a regu- latory program to provide for the con- servation of sharks, including measures to prohibit removal of any of the fins of a shark, including the tail, before landing the shark in port, that is comparable to that of the United States. (2) Timing The Secretary shall make an identification under paragraph (1) at any time that the Sec- retary has sufficient information to make such identification. (b) Consultation and negotiation The Secretary of State, acting in consultation with the Secretary, shall— (1) notify, as soon as practicable, the Presi- dent and nations that are engaged in, or that have any fishing vessels engaged in, fishing ac- tivities or practices described in subsection (a), about the provisions of this Act; (2) initiate discussions as soon as practicable with all foreign nations that are engaged in, or a fishing vessel of which has engaged in, fish- ing activities described in subsection (a), for the purpose of entering into bilateral and mul- tilateral treaties with such nations to protect such species and to address any underlying failings or gaps that may have contributed to identification under this Act; and (3) initiate the amendment of any existing international treaty for the protection and conservation of such species to which the United States is a party in order to make such treaty consistent with the purposes and poli- cies of this section. (c) Conservation certification procedure (1) Determination The Secretary shall establish a procedure consistent with the provisions of subchapter II of chapter 5 of title 5 for determining whether the government of a harvesting nation identi- fied under subsection (a) and listed in the re- port under section 1826h of this title— (A) has provided documentary evidence of the adoption of a regulatory program gov- erning the conservation of the protected liv- ing marine resource that is comparable to that of the United States, taking into ac- count different conditions, and which, in the case of pelagic longline fishing, includes mandatory use of circle hooks, careful han- dling and release equipment, and training and observer programs; and (B) has established a management plan containing requirements that will assist in gathering species-specific data to support international stock assessments and con- servation enforcement efforts for protected living marine resources. (2) Procedural requirement The procedure established by the Secretary under paragraph (1) shall include notice and opportunity for comment by the public and any such nation. (3) Certification The Secretary shall certify to the Congress by January 31, 2007, and biennially thereafter whether each such nation has provided the documentary evidence described in paragraph (1)(A) and established a management plan de- scribed in paragraph (1)(B). (4) Alternative procedure The Secretary may establish a procedure to authorize, on a shipment-by-shipment, ship- per-by-shipper, or other basis the importation of fish or fish products from a vessel of a na- tion issued a negative certification under paragraph (1) if the Secretary determines that such imports were harvested by practices that do not result in bycatch of a protected marine species, or were harvested by practices that— (A) are comparable to those of the United States, taking into account different condi- tions; and (B) include the gathering of species spe- cific data that can be used to support inter- national and regional stock assessments and conservation efforts for protected living ma- rine resources. (5) Effect of certification The provisions of section 1826a(a) and sec- tion 1826a(b)(3) and (4) of this title shall apply to any nation identified under subsection (a) for which the Secretary has issued a negative certification under this subsection, but shall not apply to any nation identified under sub- section (a) for which the Secretary has issued a positive certification under this subsection. (d) International cooperation and assistance To the greatest extent possible consistent with existing authority and the availability of funds, the Secretary shall— Page 2042 TITLE 16—CONSERVATION § 1826k (1) provide appropriate assistance to nations identified by the Secretary under subsection (a) and international organizations of which those nations are members to assist those na- tions in qualifying for certification under sub- section (c); (2) undertake, where appropriate, coopera- tive research activities on species statistics and improved harvesting techniques, with those nations or organizations; (3) encourage and facilitate the transfer of appropriate technology to those nations or or- ganizations to assist those nations in quali- fying for certification under subsection (c); and (4) provide assistance to those nations or or- ganizations in designing and implementing ap- propriate fish harvesting plans. (e) Protected living marine resource defined In this section the term ‘‘protected living ma- rine resource’’— (1) except as provided in paragraph (2), means nontarget fish, sea turtles, or marine mammals that are protected under United States law or international agreement, includ- ing— (A) the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.); (B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); (C) the Shark Finning Prohibition Act (16 U.S.C. 1822 note); and (D) the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington March 3, 1973 (27 UST 1087; TIAS 8249); but (2) does not include species, except sharks, managed under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.], the Atlantic Tunas Convention Act [16 U.S.C. 971 et seq.], or any international fishery management agreement. (f) Authorization of appropriations There are authorized to be appropriated to the Secretary for fiscal years 2007 through 2013 such sums as are necessary to carry out this section. (Pub. L. 104–43, title VI, § 610, as added Pub. L. 109–479, title IV, § 403(a), Jan. 12, 2007, 120 Stat. 3630; amended Pub. L. 111–348, title I, § 102(c)(1), Jan. 4, 2011, 124 Stat. 3669; Pub. L. 114–81, title I, § 101(d), (f), (g)(3), (i)(5), Nov. 5, 2015, 129 Stat. 654, 655; Pub. L. 114–327, title IV, § 401(d), Dec. 16, 2016, 130 Stat. 1995; Pub. L. 117–263, div. K, title CXIII, § 11338, Dec. 23, 2022, 136 Stat. 4103; Pub. L. 117–328, div. S, title IV, § 401(2), Dec. 29, 2022, 136 Stat. 5274.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (b)(1), (2), probably means title VI of Pub. L. 104–43, Nov. 3, 1995, 109 Stat. 391, known as the High Seas Driftnet Fishing Morato- rium Protection Act, which is classified generally to sections 1826d to 1826k of this title. For complete classi- fication of title VI to the Code, see Short Title of 1995 Amendment note set out under section 1801 of this title and Tables. Section 1826a(a) and section 1826a(b)(3) and (4) of this title, referred to in subsec. (c)(5), was in the original ‘‘section 101(a) and section 101(b)(3) and (4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))’’ and was trans- lated as meaning section 101(a) and section 101(b)(3) and (4) of the High Seas Driftnet Fisheries Enforcement Act, to reflect the probable intent of Congress. The Marine Mammal Protection Act of 1972, referred to in subsec. (e)(1)(A), is Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, which is classified generally to chapter 31 (§ 1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables. The Endangered Species Act of 1973, referred to in subsec. (e)(1)(B), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally 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 sec- tion 1531 of this title and Tables. The Shark Finning Prohibition Act, referred to in subsec. (e)(1)(C), is Pub. L. 106–557, Dec. 21, 2000, 114 Stat. 2772, which is set out as a note under section 1822 of this title. For complete classification of this Act to the Code, see Tables. The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (e)(2), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. The Atlantic Tunas Convention Act, referred to in subsec. (e)(2), probably means the Atlantic Tunas Con- vention Act of 1975, Pub. L. 94–70, Aug. 5, 1975, 89 Stat. 385, which is classified generally to chapter 16A (§ 971 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 971 of this title and Tables. CODIFICATION Section was enacted as part of the High Seas Driftnet Fishing Moratorium Protection Act, and also as part of the Fisheries Act of 1995, and not as part of the Magnu- son-Stevens Fishery Conservation and Management Act which comprises this chapter. AMENDMENTS 2022—Subsec. (a). Pub. L. 117–263, § 11338(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) related to identification of nations with certain fishing activities that resulted in bycatch of protected living marine resources and that targeted or incidentally caught sharks. Subsec. (b). Pub. L. 117–263, § 11338(b), amended sub- sec. (b) generally. Prior to amendment, subsec. (b) re- lated to consultation and negotiation with foreign gov- ernments regarding bilateral and multilateral treaties and agreements to protect certain species. Subsec. (b)(3), (4). Pub. L. 117–328, § 401(2)(A), redesig- nated par. (4) as (3) and struck out former par. (3) which read as follows: ‘‘seek agreements calling for inter- national restrictions on fishing activities or practices described in subsection (a) through the United Nations, the Committee on Fisheries of the Food and Agri- culture Organization of the United Nations, and appro- priate international fishery management bodies; and’’. Subsec. (c)(2). Pub. L. 117–263, § 11338(c)(1), inserted ‘‘the public and’’ after ‘‘comment by’’. Subsec. (c)(4)(C). Pub. L. 117–328, § 401(2)(B), struck out subpar. (C) which read as follows: ‘‘ensure that any such fish or fish products authorized for entry under this section are imported consistent with the reporting and the recordkeeping requirements of the Seafood Im- port Monitoring Program established in subpart Q of part 300 of title 50, Code of Federal Regulations (or any successor regulation).’’ Pub. L. 117–263, § 11338(c)(2), added subpar. (C). Subsec. (c)(5). Pub. L. 117–263, § 11338(c)(3), struck out ‘‘(except to the extent that such provisions apply to sport fishing equipment or fish or fish products not caught by the vessels engaged in illegal, unreported, or unregulated fishing)’’ after ‘‘section 1826a(b)(3) and (4) of this title’’. Page 2043 TITLE 16—CONSERVATION § 1827 1 See References in Text note below. Subsec. (e)(1). Pub. L. 117–263, § 11338(d), added par. (1) and struck out former par. (1) which read as follows: ‘‘means non-target fish, sea turtles, or marine mam- mals that are protected under United States law or international agreement, including the Marine Mam- mal Protection Act, the Endangered Species Act, the Shark Finning Prohibition Act, and the Convention on International Trade in Endangered Species of Wild Flora and Fauna; but’’. 2016—Subsec. (a)(2)(A). Pub. L. 114–327 substituted ‘‘3 years’’ for ‘‘calendar year’’. 2015—Subsec. (a)(1)(A). Pub. L. 114–81, § 101(g)(3), (i)(5)(A), substituted ‘‘3 years’’ for ‘‘calendar year’’ and ‘‘practices—’’ for ‘‘practices;’’ in introductory provi- sions. Subsec. (b)(1). Pub. L. 114–81, § 101(d), amended par. (1) generally. Prior to amendment, text read as follows: ‘‘notify, as soon as possible, other nations whose ves- sels engage in fishing activities or practices described in subsection (a), about the provisions of sections 1826d to 1826k of this title;’’. Subsec. (c)(4). Pub. L. 114–81, § 101(i)(5)(B), added in- troductory provisions and subpar. (A) and struck out former introductory provisions and subpar. (A) which related to alternative procedure for certification of fish or fish products from a vessel of a harvesting nation not certified under paragraph (3). Subsec. (c)(5). Pub. L. 114–81, § 101(f), struck out ‘‘that has not been certified by the Secretary under this sub- section, or’’ after ‘‘subsection (a)’’. 2011—Subsec. (a). Pub. L. 111–348, § 102(c)(1)(A), struck out ‘‘, a nation if’’ after ‘‘section 1826h of this title’’ in introductory provisions. Pub. L. 111–348, § 102(c)(1)(B)–(G), redesignated pars. (1) to (3) as subpars. (A) to (C), respectively, realigned margins, inserted ‘‘(1) a nation if—’’ before subpar. (A), as so redesignated, redesignated former subpars. (A) and (B) of par. (1) as cls. (i) and (ii) of subpar. (A), re- spectively, realigned margins, and added par. (2). Statutory Notes and Related Subsidiaries CONSTRUCTION Nothing in section 102(c) of Pub. L. 111–348 (amending this section and enacting provisions set out as a note below) to be construed as affecting, altering, or dimin- ishing the authority of the Secretary of Commerce to establish such conservation and management measures as the Secretary considers necessary and appropriate under sections 1852(a)(3) and 1854(g) of this title, see section 104 of Pub. L. 111–348, set out as a note under section 1826i of this title. INITIAL IDENTIFICATIONS Pub. L. 111–348, title I, § 102(c)(2), Jan. 4, 2011, 124 Stat. 3669, provided that: ‘‘The Secretary of Commerce shall begin making identifications under paragraph (2) of section 610(a) of the High Seas Driftnet Fishing Mora- torium Protection Act (16 U.S.C. 1826k(a)), as added by paragraph (1)(G), not later than 1 year after the date of the enactment of this Act [Jan. 4, 2011].’’ § 1827. Observer program regarding certain for- eign fishing (a) Definitions As used in this section— (1) The term ‘‘Act of 1976’’ means the Magnu- son-Stevens Fishery Conservation and Man- agement Act (16 U.S.C. 1801 et seq.). (2) The term ‘‘billfish’’ means any species of marlin, spearfish, sailfish or swordfish. (3) The term ‘‘Secretary’’ means the Sec- retary of Commerce. (b) Observer program The Secretary shall establish a program under which a United States observer will be stationed aboard each foreign fishing vessel while that vessel— (1) is in waters that are within— (A) the fishery conservation zone estab- lished under section 101 of the Act of 1976 [16 U.S.C. 1811],1 and (B) the Convention area as defined in Arti- cle I of the International Convention for the Conservation of Atlantic Tunas; and (2) is taking or attempting to take any spe- cies of fish if such taking or attempting to take may result in the incidental taking of billfish. The Secretary may acquire observers for such program through contract with qualified private persons. (c) Functions of observers United States observers, while aboard foreign fishing vessels as required under subsection (b), shall carry out such scientific and other func- tions as the Secretary deems necessary or ap- propriate to carry out this section. (d) Fees There is imposed for each year after 1980 on the owner or operator of each foreign fishing vessel that, in the judgment of the Secretary, will engage in fishing in waters described in sub- section (b)(1) during that year which may result in the incidental taking of billfish a fee in an amount sufficient to cover all of the costs of providing an observer aboard that vessel under the program established under subsection (a). The fees imposed under this subsection for any year shall be paid to the Secretary before that year begins. All fees collected by the Secretary under this subsection shall be deposited in the Fund established by subsection (e). (e) Fund There is established in the Treasury of the United States the Foreign Fishing Observer Fund. The Fund shall be available to the Sec- retary as a revolving fund for the purpose of car- rying out this section. The Fund shall consist of the fees deposited into it as required under sub- section (d). All payments made by the Secretary to carry out this section shall be paid from the Fund, only to the extent and in the amounts provided for in advance in appropriation Acts. Sums in the Fund which are not currently need- ed for the purposes of this section shall be kept on deposit or invested in obligations of, or guar- anteed by, the United States. (f) Prohibited acts (1) It is unlawful for any person who is the owner or operator of a foreign fishing vessel to which this section applies— (A) to violate any regulation issued under subsection (g); (B) to refuse to pay the fee imposed under subsection (d) after being requested to do so by the Secretary; or (C) to refuse to permit an individual who is authorized to act as an observer under this section with respect to that vessel to board the vessel for purposes of carrying out ob- server functions.