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U.S. Code as of:
01/19/04
Section 1383a. Interim exemption for commercial fisheries
(a) Effective and termination dates of preemptive provisions; law
governing incidental taking of marine mammals in course of
commercial yellowfin tuna fishing
(1) During the period beginning on November 23, 1988, and until
superseded by regulations prescribed under section 1387 of this
title, or until September 1, 1995, whichever is earlier, except as
provided in paragraph (2), the provisions of this section, rather
than sections 1371, 1373, and 1374 of this title, shall govern the
incidental taking of marine mammals in the course of commercial
fishing operations by persons using vessels of the United States
and vessels which have valid fishing permits issued by the
Secretary in accordance with section 1824(b) of this title. In any
event it shall be the immediate goal that the incidental kill or
serious injury of marine mammals permitted in the course of
commercial fishing operations be reduced to insignificant levels
approaching a zero mortality and serious injury rate.
(2) The provisions of this section other than subsection
(e)(6)(A) of this section shall not govern the incidental taking of
marine mammals in the course of commercial yellowfin tuna fishing
subject to section 1374(h)(2) of this title.
(b) Proposed and final list of fisheries taking marine mammals;
publication in Federal Register; grant of exemption; conditions;
suspension of grant of exemption; administration of exemption
provisions; fees
(1) The Secretary shall, after consultation with the Marine
Mammal Commission -
(A) publish in the Federal Register, for public comment, not
later than sixty days after November 23, 1988, a proposed list of
those fisheries, along with a statement of the marine mammals and
the approximate number of vessels or persons involved in each
such fishery, that have -
(i) frequent incidental taking of marine mammals;
(ii) occasional incidental taking of marine mammals; or
(iii) a remote likelihood of or no known incidental taking of
marine mammals;
(B) publish in the Federal Register not later than one hundred
and twenty days after November 23, 1988, a final list of the
fisheries and other information required by paragraph (A),
together with a summary of the provisions of this section and
information sufficient to advise vessel owners on how to obtain
an exemption and otherwise comply with the requirements of this
section; and
(C) at least once each year thereafter, and at such other times
as the Secretary considers appropriate, reexamine, based on
information gathered from the program established under
subsections (c), (d), (e), and (f) of this section, and other
relevant sources and after notice and opportunity for public
comment, the classification of fisheries and other determinations
required under subparagraph (A) and publish in the Federal
Register any necessary changes.
(2)(A) An exemption shall be granted by the Secretary in
accordance with this section for a vessel engaged in a fishery
identified under paragraph (1)(A)(i) or (ii), upon receipt by the
Secretary of a completed registration form providing the name of
the vessel owner, the name and description of the vessel, the
fisheries in which it will be engaged, and such other information
as the Secretary considers necessary. A decal or other physical
evidence that the exemption is current and valid shall be issued by
the Secretary at the time an exemption is granted, and so long as
the exemption remains current and valid, shall be reissued annually
thereafter.
(B) No exemption may be granted under this section to the owner
of a vessel unless such vessel -
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the Secretary in
accordance with section 1824(b) of this title.
(C) Notwithstanding any other provision of this subchapter,
exemptions granted under this section shall authorize the
incidental taking of marine mammals, other than California sea
otters, from any species or stock, including a population stock
designated as depleted, but shall not authorize the intentional
lethal taking of any Steller sea lion, any cetacean, or any marine
mammals from a population stock designated as depleted.
(3)(A) Beginning two hundred and forty days after November 23,
1988, each owner of a vessel engaged in any fishery identified
under paragraph (1)(A)(i) or (ii) shall, in order to engage
lawfully in that fishery -
(i) have registered with the Secretary in order to obtain for
each such vessel owned an exemption for the purpose of
incidentally taking marine mammals in accordance with this
section;
(ii) ensure that a decal or such other physical evidence of a
current and valid exemption as the Secretary may require is
displayed on or is in the possession of the master of each such
vessel; and
(iii) report as required by subsection (c) of this section.
(B) Any owner of a vessel receiving an exemption under this
section for any fishery identified under paragraph (1)(A)(i) shall,
as a condition of that exemption, take on board a natural resource
observer if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery identified under
paragraph (1)(A)(i) or (ii) who -
(i) fails to obtain from the Secretary an exemption under this
section;
(ii) fails to maintain a current and valid exemption; or
(iii) fails to ensure that a decal or other physical evidence
of such exemption issued by the Secretary is displayed on or is
in possession of the master of the vessel,
and the master of any such vessel engaged in such fishery, shall be
deemed to have violated this subchapter, and shall be subject to
the penalties of this subchapter except in the case of unknowing
violations before January 1, 1990.
(D) If the owner of a vessel has obtained and maintains a current
and valid exemption from the Secretary under this section and meets
the requirements set forth in this section, the owner of such
vessel, and the master and crew members of the vessel, shall not be
subject to the penalties set forth in this subchapter for the
incidental taking of marine mammals while such vessel is engaged in
a fishery to which the exemption applies.
(E) Each owner of a vessel engaged in any fishery not identified
in paragraph (1)(A)(i) or (ii), and the master and crew members of
such a vessel, shall not be subject to the penalties set forth in
this subchapter for the incidental taking of marine mammals if such
owner reports to the Secretary, in such form and manner as the
Secretary may require, instances of lethal incidental taking in the
course of that fishery.
(4) The Secretary shall suspend or revoke an exemption granted
under this section and shall not issue a decal or other physical
evidence of the exemption for any vessel until the owner of such
vessel complies with the reporting requirements under subsection
(c) of this section and such requirements to take on board a
natural resource observer under paragraph (3)(B) as are applicable
to such vessel.
(5)(A) The Secretary shall develop, in consultation with the
appropriate States, Regional Fishery Management Councils, and other
interested parties, the means by which the granting and
administration of exemptions under this section shall be integrated
and coordinated, to the maximum extent practicable, with existing
fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of general
circulation, fishery trade associations, electronic media, and
other means of advising commercial fishermen of the provisions of
this section and the means by which they can comply with its
requirements.
(C) The Secretary is authorized to charge a fee for the granting
of an exemption under this subsection. The level of fees charged
under this subparagraph shall not exceed the administrative costs
incurred in granting an exemption. Fees collected under this
subparagraph shall be available to the Under Secretary of Commerce
for Oceans and Atmosphere for expenses incurred in the granting and
administration of exemptions under this section.
(c) Compilation of information by vessel owners; contents
The owner of each vessel holding an exemption granted under
subsection (b) of this section shall regularly compile information
which shall be used in a report to be submitted to the Secretary at
the close of the fishing season or annually, as the Secretary may
prescribe. Such report shall be submitted in such form as the
Secretary may require and shall include the following:
(1) the type of fishery engaged in by the owner's vessel;
(2) the date and approximate time of any incidental taking of a
marine mammal, together with the area in which the incidental
taking occurred, the fishing gear used at the time of the
incidental taking, and the species of fish involved; and
(3) for each incidental taking, the number and species of
marine mammals involved, whether the marine mammals were deterred
from gear or catch, incidentally injured, incidentally killed, or
lethally removed to protect gear, catch, or human life.
If there was no incidental taking of marine mammals during the
reporting period, a report stating that fact shall be filed with
the Secretary.
(d) Program for enhancement and verification of information
received from vessel owners; confidentiality of information
(1) The Secretary shall establish a program to enhance the
quality of and verify information received from reports submitted
by owners of vessels who have been granted an exemption under
subsection (b) of this section. The program shall include, but not
be limited to -
(A) education efforts regarding the information that must be
submitted;
(B) interviews with fishermen; and
(C) other such information gathering and verification
activities that will enable the Secretary to determine reliably
the nature, type, and extent of the incidental taking of marine
mammals that occurs in a fishery.
Except to the extent authorized by the provisions of subsection (e)
of this section, the program shall not include placement of
observers aboard exempted vessels.
(2) Information obtained under this subsection shall be subject
to the confidentiality provisions of subsection (j) of this
section.
(e) Observers on board exempted vessels; confidentiality of
information; authorization of appropriations
(1) For each fishery identified under subsection (b)(1)(A)(i) of
this section, the Secretary shall, after consultation with the
appropriate Regional Fishery Management Councils, other Federal and
State agencies, and other interested parties, and subject to
paragraph (6), place observers on board exempted vessels so as to
monitor not less than 20 percent nor more than 35 percent of the
fishing operations by vessels in the fishery to obtain
statistically reliable information on the species and number of
marine mammals incidentally taken in the fishery. If the Secretary
determines that fewer than 20 percent of the fishing operations by
vessels in the fishery will be monitored during the course of the
fishing season, the Secretary shall implement the alternative
observation program described in subsection (f) of this section to
the extent necessary to supplement the observer program described
in this subsection.
(2) When determining the distribution of observers among
fisheries and between vessels in a particular fishery, the
Secretary shall be guided by the following standards:
(A) the requirement to obtain the best scientific information
available;
(B) the requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery;
(C) consistent with paragraph (1), the requirement that no
individual person or vessel, or group of persons or vessels, be
subject to excessive or overly burdensome observer coverage; and
(D) where practicable, the need to minimize costs and avoid
duplication.
(3) If the Secretary finds that, for reasons beyond his or her
control, the Secretary cannot assign observers to all the fisheries
identified under subsection (b)(1)(A)(i) of this section at the
level of observer coverage set forth in paragraph (1), the
Secretary shall allocate available observers among such fisheries,
consistent with paragraph (2), according to the following priority:
(A) those fisheries that incidentally take marine mammals from
any population stock designated as depleted;
(B) those fisheries that incidentally take marine mammals from
population stocks that the Secretary believes are declining;
(C) those fisheries other than those described in subparagraphs
(A) and (B) in which the greatest incidental take of marine
mammals occur; and
(D) any other fishery identified under subsection (b)(1)(A)(i)
of this section.
The Secretary may, with the consent of the vessel owner, station an
observer on board a vessel engaged in a fishery not identified
under subsection (b)(1)(A)(i) of this section.
(4) Information gathered by observers shall be subject to the
provisions of subsection (j) of this section. Consistent with the
requirements of paragraph (1), the Secretary shall, if requested by
the Appropriate (!1) Regional Fishery Management Council, or in the
case of a State fishery, the State, require observers to collect
additional information, including but not limited to the
quantities, species, and physical condition of target and
non-target fishery resources and, if requested by the Secretary of
the Interior, seabirds.
(5) Notwithstanding the provisions of paragraph (4), the
Secretary may decline to require observers to collect information
described in such paragraph, if the Secretary finds in writing,
following public notice and opportunity for comment, that such
information will not contribute to the protection of marine mammals
or the understanding of the marine ecosystem, including fishery
resources and seabirds.
(6) The Secretary shall not be required to place an observer on a
vessel in a fishery if the Secretary finds that -
(A) in a situation where harvesting vessels are delivering fish
to a processing vessel and the catch is not taken on board the
harvesting vessel, statistically reliable information can be
obtained from an observer on board the processing vessel to which
the fish are delivered;
(B) the facilities of a vessel for the quartering of an
observer, or for carrying out observer functions, are so
inadequate or unsafe that the health or safety of the observer or
the safe operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the Secretary, an
observer is not available.
(7)(A) An observer on a vessel (or the observer's personal
representative) under the requirements of this section or section
1374 of this title that is ill, disabled, injured, or killed from
service as an observer on that vessel may not bring a civil action
under any law of the United States for that illness, disability,
injury, or death against the vessel or vessel owner, except that a
civil action may be brought against the vessel owner for the
owner's willful misconduct.
(B) This paragraph does not apply if the observer is engaged by
the owner, master, or individual in charge of a vessel to perform
any duties in service to the vessel.
(8) There are authorized to be appropriated to the Department of
Commerce for the purposes of carrying out this subsection not to
exceed $2,700,000 for fiscal year 1989 and not to exceed $8,000,000
for each of the fiscal years 1990, 1991, 1992, and 1993.
(f) Alternative observation program
(1) The Secretary shall establish an alternative observation
program to provide statistically reliable information on the
species and number of marine mammals incidentally taken in those
fisheries identified pursuant to subsection (b)(1)(A)(i) of this
section for which the required level of observer coverage has not
been met or for any other fisheries about which such reliable
information is not otherwise available. The alternative program
shall include, but not be limited to, direct observation of fishing
activities from vessels, airplanes, or points on shore.
(2) Individuals engaged in the alternative observation program
shall collect scientific information on the fisheries subject to
observation, consistent with the requirements of paragraph (1) and
subsection (e)(4) and (5) of this section. All information
collected shall be subject to the provisions of subsection (j) of
this section.
(g) Review of information and evaluation of effects of incidental
taking on population stocks of marine mammals; promulgation of
emergency regulations to mitigate immediate and significant
adverse impacts; action to mitigate non-immediate impacts
(1) The Secretary shall review information regarding the
incidental taking of marine mammals and evaluate the effects of
such incidental taking on the affected population stocks of marine
mammals.
(2) If the Secretary finds, based on the information received
from the programs established under subsections (c), (d), (e), and
(f) of this section, that the incidental taking of marine mammals
in a fishery is having an immediate and significant adverse impact
on a marine mammal population stock or, in the case of Steller sea
lions and North Pacific fur seals, that more than 1,350 and 50,
respectively, will be incidentally killed during a calendar year,
the Secretary shall consult with appropriate Regional Fishery
Management Councils and State fishery managers and prescribe
emergency regulations to prevent to the maximum extent practicable
any further taking. Any emergency regulations prescribed under this
paragraph -
(A) shall, to the maximum extent practicable, avoid interfering
with existing State or regional fishery management plans;
(B) shall be published in the Federal Register together with
the reasons therefor;
(C) shall remain in effect for not more than one hundred and
eighty days or until the end of the fishing season, whichever is
earlier; and
(D) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination if
the Secretary determines the reasons for the emergency
regulations no longer exist.
In prescribing emergency regulations under this paragraph, the
Secretary shall take into account the economics of the fishery
concerned and the availability of existing technology to prevent or
minimize incidental taking of marine mammals.
(3) If the Secretary finds, based on information received from
the programs established under subsections (c), (d), (e), and (f)
of this section, that incidental taking of marine mammals in a
fishery is not having an immediate and significant adverse impact
on a marine mammal population stock but that it will likely have a
significant adverse impact over a period of time longer than one
year, the Secretary shall request the appropriate Regional Fishery
Management Council or State to initiate, recommend, or take such
action within its authority as it considers necessary to mitigate
the adverse impacts, including adjustments to requirements on
fishing times or areas or the imposition of restrictions on the use
of vessels or gear.
(4) The Secretary shall impose appropriate conditions and
restrictions on an exemption granted under subsection (b) of this
section if -
(A) a Regional Fishery Management Council or State does not act
in a reasonable period of time on a request made by the Secretary
under paragraph (3); or
(B) if the Secretary determines after notice and opportunity
for public comment that the purposes of this section would be
better served by such action.
(h) Information and management system for processing and analyzing
reports and information; accessibility to public
The Secretary shall design and implement an information
management system capable of processing and analyzing reports
received from the programs established under subsections (c), (d),
(e), and (f) of this section, and other relevant sources, including
Federal and State enforcement authorities, marine mammal stranding
networks, and the marine mammal researchers. The information shall
be made accessible to the public on a continuing basis, but in any
case no later than six months after it is received, subject to the
provisions of subsection (j) of this section.
(i) Utilization of services of State and Federal agencies and
private entities
When carrying out the Secretary's responsibilities under
subsections (b), (d), (e), (f), and (h) of this section, the
Secretary shall, to the maximum extent practicable, utilize the
services and programs of State agencies, Federal agencies
(including programs established by Regional Fishery Management
Councils), marine fisheries commissions, universities, and private
entities, on a reimbursable basis or otherwise. The Secretary is
authorized to enter into contracts and agreements to carry out his
or her responsibilities and shall establish appropriate guidelines
to ensure that other programs used or contracted for will meet the
same standards as a program established by the Secretary. A person
contracting with the Secretary to provide observer services under
subsection (e) of this section must provide evidence of financial
responsibility in an amount and form prescribed by the Secretary to
compensate employees (or their survivors) adequately for any
illness, disability, injury, or death from service on a vessel.
(j) Confidentiality of information; exceptions
(1) Any information collected under subsection (c), (d), (e),
(f), or (h) of this section shall be confidential and shall not be
disclosed except -
(A) to Federal employees whose duties require access to such
information;
(B) to State employees pursuant to an agreement with the
Secretary that prevents public disclosure of the identity or
business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries,
to employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and
monitoring.
(2) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the
Secretary shall release or make public any such information in
aggregate, summary, or other form which does not directly or
indirectly disclose the identity or business of any person.
(k) Regulations
The Secretary, in consultation with any other Federal agency to
the extent that such agency may be affected, shall prescribe such
regulations as necessary and appropriate to carry out the purposes
of this section.
(l) Suggested regime governing incidental taking of marine mammals
following termination of interim exemptions
(1) The Chairman of the Marine Mammal Commission shall, after
consultation with interested parties and not later than February 1,
1990, transmit to the Secretary and make available to the public
recommended guidelines to govern the incidental taking of marine
mammals in the course of commercial fishing operations, other than
those subject to section 1374(h)(2) of this title, after October 1,
1993. Such guidelines shall be developed by the Commission and its
Committee of Scientific Advisers on Marine Mammals and shall -
(A) be designed to provide a scientific rationale and basis for
determining how many marine mammals may be incidentally taken
under a regime to be adopted to govern such taking after October
1, 1993;
(B) be based on sound principles of wildlife management, and be
consistent with and in furtherance of the purposes and policies
set forth in this chapter; and
(C) to the maximum extent practicable, include as factors to be
considered and utilized in determining permissible levels of such
taking -
(i) the status and trends of the affected marine mammal
population stocks;
(ii) the abundance and annual net recruitment of such stocks;
(iii) the level of confidence in the knowledge of the
affected stocks; and
(iv) the extent to which incidental taking will likely cause
or contribute to their decline or prevent their recovery to
optimum sustainable population levels.
(2) The Secretary shall advise the Chairman of the Commission in
writing if the Secretary determines that any additional information
or explanation of the Chairman's recommendations is needed, and the
Chairman shall respond in writing to any such request by the
Secretary.
(3) On or before February 1, 1991, the Secretary, after
consultation with the Marine Mammal Commission, Regional Fishery
Management Councils, and other interested governmental and
nongovernmental organizations, shall publish in the Federal
Register, for public comment, the suggested regime that the
Secretary considers should, if authorized by enactment of any
additional legislation, govern incidental taking of marine mammals,
other than those subject to section 1374(h)(2) of this title, after
October 1, 1993. The suggested regime shall include -
(A) the scientific guidelines to be used in determining
permissible levels of incidental taking;
(B) a description of the arrangements for consultation and
cooperation with other Federal agencies, the appropriate Regional
Fishery Management Councils and States, the commercial fishing
industry, and conservation organizations; and
(C) a summary of such regulations and legislation as would be
necessary to implement the suggested regime.
(4) On or before January 1, 1992, the Secretary, after
consultation with the Marine Mammal Commission, and consideration
of public comment, shall transmit to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives
recommendations pertaining to the incidental taking of marine
mammals, other than those subject to section 1374(h)(2) of this
title, after October 1, 1993. The recommendations shall include -
(A) the suggested regime developed under paragraph (3) of this
subsection as modified after comment and consultations;
(B) a proposed schedule for implementing the suggested regime;
and
(C) such recommendations for additional legislation as the
Secretary considers necessary or desirable to implement the
suggested regime.
(m) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior
prior to taking actions or making determinations under this section
that affect or relate to species or population stocks of marine
mammals for which the Secretary of the Interior is responsible
under this subchapter.
(n) Owner of fixed commercial fishing gear deemed owner of vessel
engaged in fishery in which gear deployed
For the purposes of this section, the owner of fixed or other
commercial fishing gear that is deployed with or without the use of
a vessel shall be deemed to be an owner of a vessel engaged in the
fishery in which that gear is deployed.
(o) Definitions
As used in this section -
(1) the term "fishery" has the same meaning as it does in
section 1802(8) (!2) of this title.
(2) the term "Secretary" means the Secretary of Commerce.
(3) the term "vessel engaged in a fishery" means a fishing
vessel as defined in section 2101(11a) of title 46 or a fish
processing vessel as defined in section 2101(11b) of that title,
which is engaged in fishery.
(4) the term "vessel of the United States" has the same meaning
as it does in section 1802(27) (!2) of this title.
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