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U.S. Code as of:
01/19/04
Section 1389. Pacific Coast Task Force; Gulf of Maine
(a) Pinniped removal authority
Notwithstanding any other provision of this subchapter, the
Secretary may permit the intentional lethal taking of pinnipeds in
accordance with this section.
(b) Application
(1) A State may apply to the Secretary to authorize the
intentional lethal taking of individually identifiable pinnipeds
which are having a significant negative impact on the decline or
recovery of salmonid fishery stocks which -
(A) have been listed as threatened species or endangered
species under the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.);
(B) the Secretary finds are approaching threatened species or
endangered species status (as those terms are defined in that
Act); or
(C) migrate through the Ballard Locks at Seattle, Washington.
(2) Any such application shall include a means of identifying the
individual pinniped or pinnipeds, and shall include a detailed
description of the problem interaction and expected benefits of the
taking.
(c) Actions in response to application
(1) Within 15 days of receiving an application, the Secretary
shall determine whether the application has produced sufficient
evidence to warrant establishing a Pinniped-Fishery Interaction
Task Force to address the situation described in the application.
If the Secretary determines sufficient evidence has been provided,
the Secretary shall establish a Pinniped-Fishery Interaction Task
Force and publish a notice in the Federal Register requesting
public comment on the application.
(2) A Pinniped-Fishery Interaction Task Force established under
paragraph (1) shall consist of designated employees of the
Department of Commerce, scientists who are knowledgeable about the
pinniped interaction that the application addresses,
representatives of affected conservation and fishing community
organizations, Indian Treaty tribes, the States, and such other
organizations as the Secretary deems appropriate.
(3) Within 60 days after establishment, and after reviewing
public comments in response to the Federal Register notice under
paragraph (1), the Pinniped-Fishery Interaction Task Force shall -
(A) recommend to the Secretary whether to approve or deny the
proposed intentional lethal taking of the pinniped or pinnipeds,
including along with the recommendation a description of the
specific pinniped individual or individuals, the proposed
location, time, and method of such taking, criteria for
evaluating the success of the action, and the duration of the
intentional lethal taking authority; and
(B) suggest nonlethal alternatives, if available and
practicable, including a recommended course of action.
(4) Within 30 days after receipt of recommendations from the
Pinniped-Fishery Interaction Task Force, the Secretary shall either
approve or deny the application. If such application is approved,
the Secretary shall immediately take steps to implement the
intentional lethal taking, which shall be performed by Federal or
State agencies, or qualified individuals under contract to such
agencies.
(5) After implementation of an approved application, the
Pinniped-Fishery Interaction Task Force shall evaluate the
effectiveness of the permitted intentional lethal taking or
alternative actions implemented. If implementation was ineffective
in eliminating the problem interaction, the Task Force shall
recommend additional actions. If the implementation was effective,
the Task Force shall so advise the Secretary, and the Secretary
shall disband the Task Force.
(d) Considerations
In considering whether an application should be approved or
denied, the Pinniped-Fishery Interaction Task Force and the
Secretary shall consider -
(1) population trends, feeding habits, the location of the
pinniped interaction, how and when the interaction occurs, and
how many individual pinnipeds are involved;
(2) past efforts to nonlethally deter such pinnipeds, and
whether the applicant has demonstrated that no feasible and
prudent alternatives exist and that the applicant has taken all
reasonable nonlethal steps without success;
(3) the extent to which such pinnipeds are causing undue injury
or impact to, or imbalance with, other species in the ecosystem,
including fish populations; and
(4) the extent to which such pinnipeds are exhibiting behavior
that presents an ongoing threat to public safety.
(e) Limitation
The Secretary shall not approve the intentional lethal taking of
any pinniped from a species or stock that is -
(1) listed as a threatened species or endangered species under
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(2) depleted under this chapter; or
(3) a strategic stock.
(f) California sea lions and Pacific harbor seals; investigation
and report
(1) The Secretary shall engage in a scientific investigation to
determine whether California sea lions and Pacific harbor seals -
(A) are having a significant negative impact on the recovery of
salmonid fishery stocks which have been listed as endangered
species or threatened species under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.), or which the Secretary finds are
approaching such endangered species or threatened species status;
or
(B) are having broader impacts on the coastal ecosystems of
Washington, Oregon, and California.
The Secretary shall conclude this investigation and prepare a
report on its results no later than October 1, 1995.
(2) Upon completion of the scientific investigation required
under paragraph (1), the Secretary shall enter into discussions
with the Pacific States Marine Fisheries Commission, on behalf of
the States of Washington, Oregon, and California, for the purpose
of addressing any issues or problems identified as a result of the
scientific investigation, and to develop recommendations to address
such issues or problems. Any recommendations resulting from such
discussions shall be submitted, along with the report, to the
Committee on Merchant Marine and Fisheries of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate.
(3) The Secretary shall make the report and the recommendations
submitted under paragraph (2) available to the public for review
and comment for a period of 90 days.
(4) There are authorized to be appropriated to the Secretary such
sums as are necessary to carry out the provisions of this
subsection.
(5) The amounts appropriated under section 4107(c) of this title
and allocated to the Pacific States Marine Fisheries Commission may
be used by the Commission to participate in discussions with the
Secretary under paragraph (2).
(g) Regionwide pinniped-fishery interaction study
(1) The Secretary may conduct a study, of not less than three
high predation areas in anadromous fish migration corridors within
the Northwest Region of the National Marine Fisheries Service, on
the interaction between fish and pinnipeds. In conducting the
study, the Secretary shall consult with other State and Federal
agencies with expertise in pinniped-fishery interaction. The study
shall evaluate -
(A) fish behavior in the presence of predators generally;
(B) holding times and passage rates of anadromous fish stocks
in areas where such fish are vulnerable to predation;
(C) whether additional facilities exist, or could be reasonably
developed, that could improve escapement for anadromous fish; and
(D) other issues the Secretary considers relevant.
(2) Subject to the availability of appropriations, the Secretary
may, not later than 18 months after the commencement of the study
under this subsection, transmit a report on the results of the
study to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Merchant Marine and Fisheries of
the House of Representatives.
(3) The study conducted under this subsection may not be used by
the Secretary as a reason for delaying or deferring a determination
or consideration under subsection (c) or (d) of this section.
(h) Gulf of Maine Task Force
The Secretary shall establish a Pinniped-Fishery Interaction Task
Force to advise the Secretary on issues or problems regarding
pinnipeds interacting in a dangerous or damaging manner with
aquaculture resources in the Gulf of Maine. No later than 2 years
from April 30, 1994, the Secretary shall after notice and
opportunity for public comment submit to the Committee on Merchant
Marine and Fisheries of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate a
report containing recommended available alternatives to mitigate
such interactions.
(i) Requirements applicable to task forces
(1) Any task force established under this section -
(A) shall to the maximum extent practicable, consist of an
equitable balance among representatives of resource user
interests and nonuser interests; and
(B) shall not be subject to the Federal Advisory Committee Act
(5 App. U.S.C.).
(2) Meetings of any task force established under this section
shall be open to the public, and prior notice of those meetings
shall be given to the public by the task force in a timely fashion.
(j) Gulf of Maine harbor porpoise
(1) Nothing in section 1386 of this title shall prevent the
Secretary from publishing a stock assessment for Gulf of Maine
harbor porpoise in an expedited fashion.
(2) In developing and implementing a take reduction plan under
section 1387 of this title for Gulf of Maine harbor porpoise, the
Secretary shall consider all actions already taken to reduce
incidental mortality and serious injury of such stock, and may,
based on the recommendations of the take reduction team for such
stock, modify the time period required for compliance with section
1387(f)(5)(A) of this title, but in no case may such modification
extend the date of compliance beyond April 1, 1997.
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