
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 16USC1379]

 
                         TITLE 16--CONSERVATION
 
                  CHAPTER 31--MARINE MAMMAL PROTECTION
 
      SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
 
Sec. 1379. Transfer of management authority


(a) State enforcement of State laws or regulations prohibited without 
        transfer to State of management authority by Secretary

    No State may enforce, or attempt to enforce, any State law or 
regulation relating to the taking of any species (which term for 
purposes of this section includes any population stock) of marine mammal 
within the State unless the Secretary has transferred authority for the 
conservation and management of that species (hereinafter referred to in 
this section as ``management authority'') to the State under subsection 
(b)(1) of this section.

(b) Findings prerequisite to transfer of authority; State program; 
        implementation

    (1) Subject to paragraph (2) and subsection (f) of this section, the 
Secretary shall transfer management authority for a species of marine 
mammal to a State if the Secretary finds, after notice and opportunity 
for public comment, that the State has developed and will implement a 
program for the conservation and management of the species that--
        (A) is consistent with the purposes, policies, and goals of this 
    chapter and with international treaty obligations;
        (B) requires that all taking of the species be humane;
        (C) does not permit the taking of the species unless and until--
            (i) the State has determined, under a process consistent 
        with the standards set forth in subsection (c) of this section--
                (I) that the species is at its optimum sustainable 
            population (hereinafter in this section referred to as 
            ``OSP''), and
                (II) the maximum number of animals of that species that 
            may be taken without reducing the species below its OSP, and

            (ii) the determination required under clause (i) is final 
        and implemented under State law, and, if a cooperative 
        allocation agreement for the species is required under 
        subsection (d)(1) of this section, such as agreement is 
        implemented;

        (D) does not permit the taking of a number of animals of the 
    species that exceeds the maximum number determined pursuant to 
    subparagraph (C)(i)(II), and, in the case of taking for subsistence 
    uses (as defined in subsection (f)(2) of this section), does not 
    permit the taking of a number of animals that would be inconsistent 
    with the maintenance of the species at its OSP;
        (E) does not permit the taking of the species for scientific 
    research, public display, or enhancing the survival or recovery of a 
    species or stock, except for taking for such purposes that is 
    undertaken by, or on behalf of, the State;
        (F) provides procedures for acquiring data, and evaluating such 
    data and other new evidence, relating to the OSP of the species, and 
    the maximum take that would maintain the species at the level, and, 
    if required on the basis of such evaluation, for amending 
    determinations under subparagraph (C)(i);
        (G) provides procedures for the resolution of differences 
    between the State and the Secretary that might arise during the 
    development of a cooperative allocation agreement under subsection 
    (d)(1) of this section; and
        (H) provides for the submission of an annual report to the 
    Secretary regarding the administration of the program during the 
    reporting period.

    (2) During the period between the transfer of management authority 
for a species to a State under paragraph (1) and the time at which the 
implementation requirements under paragraph (1)(C)(ii) are complied 
with--
        (A) the State program shall not apply with respect to the taking 
    of the species within the State for any purpose, or under any 
    condition, provided for under section 1371 of this title; and
        (B) the Secretary shall continue to regulate, under this 
    subchapter, all takings of the species within the State.

    (3) After the determination required under paragraph (1)(C)(i) 
regarding a species is final and implemented under State law and after a 
cooperative allocation agreement described in subsection (d)(1) of this 
section, if required, is implemented for such species--
        (A) such determination shall be treated, for purposes of 
    applying this subchapter beyond the territory of the State, as a 
    determination made in accordance with section 1373 of this title and 
    as an applicable waiver under section 1371(a)(3) of this title;
        (B) the Secretary shall regulate, without regard to this section 
    other than the allocations specified under such an agreement, the 
    taking of the species--
            (i) incidentally in the course of commercial fishing 
        operations (whether provided for under section 1371(a)(2) or (4) 
        of this title), or in the course of other specified activities 
        provided for under section 1371(a)(5) of this title, in the zone 
        described in section 1362(14)(B) \1\ of this title, and
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    \1\ See References in Text note below.
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            (ii) for scientific research, public display, or enhancing 
        the survival or recovery of a species or stock (other than by, 
        or on behalf of, the State), except that any taking authorized 
        under a permit issued pursuant to section 1371(a)(1) of this 
        title after October 9, 1981, allowing the removal of live 
        animals from habitat within the State shall not be effective if 
        the State agency disapproves, on or before the date of issuance 
        of the permit, such taking as being inconsistent with the State 
        program; and

        (C) section 1371(b) of this title shall not apply.

(c) Standards with which State process must comply

    The State process required under subsection (b)(1)(C) of this 
section must comply with the following standards:
        (1) The State agency with management authority for the species 
    (hereinafter in this section referred to as the ``State agency'') 
    must make an initial determination regarding the factors described 
    in clause (i) of that subsection. The State agency must identify, 
    and make available to the public under reasonable circumstances, the 
    documentation supporting such initial determination. Unless request 
    for a hearing under paragraph (2) regarding the initial 
    determination is timely made, the initial determination shall be 
    treated as final under State law.
        (2) The State agency shall provide opportunity, at the request 
    of any interested party, for a hearing with respect to the initial 
    determination made by it under paragraph (1) at which interested 
    parties may--
            (A) present oral and written evidence in support of or 
        against such determination; and
            (B) cross-examine persons presenting evidence at the 
        hearing.

    The State agency must give public notice of the hearing and make 
    available to the public within a reasonable time before commencing 
    the hearing a list of the witnesses for the State and a general 
    description of the documentation and other evidence that will be 
    relied upon by such witnesses.
        (3) The State agency, solely on the basis of the record 
    developed at a hearing held pursuant to paragraph (2), must make a 
    decision regarding its initial determination under paragraph (1) and 
    shall include with the record a statement of the findings and 
    conclusions, and the reason or basis therefor, on all material 
    issues.
        (4) Opportunity for judicial review of the decision made by the 
    State agency on the record under paragraph (3), under scope of 
    review equivalent to that provided for in section 706(2)(A) through 
    (E) of title 5, must be available under State law. The Secretary may 
    not initiate judicial review of any such decision.

(d) Cooperative allocation agreements

    (1) If the range of a species with respect to which a determination 
under paragraph (1)(C)(i) of subsection (b) of this section is made 
extends beyond the territorial waters of the State, the State agency and 
the Secretary (who shall first coordinate with the Marine Mammal 
Commission and the appropriate Regional Fishery Management Council 
established under section 1852 of this title) shall enter into a 
cooperative allocation agreement providing procedures for allocating, on 
a timely basis, such of the number of animals, as determined under 
paragraph (1)(C)(i)(II) of subsection (b) of this section, as may be 
appropriate with priority of allocation being given firstly to taking 
for subsistence uses in the case of the State of Alaska, and secondly to 
taking for purposes provided for under section 1371(a) of this title 
within the zone described in section 1362(14)(B) \2\ of this title.
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    \2\ See References in Text note below.
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    (2) If the State agency requests the Secretary to regulate the 
taking of a species to which paragraph (1) applies within the zone 
described in section 1362(14)(B) \2\ of this title for subsistence uses 
or for hunting, or both, in a manner consistent with the regulation by 
the State agency of such taking within the State, the Secretary shall 
adopt, and enforce within such zone, such of the State agency's 
regulatory provisions as the Secretary considers to be consistent with 
his administration of section 1371(a) of this title within such zone. 
The Secretary shall adopt such provisions through the issuance of 
regulations under section 553 of title 5, and with respect to such 
issuance the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the 
Paperwork Reduction Act,\2\ Executive Order Numbered 12291, dated 
February 17, 1981, and the thirty-day notice requirement in subsection 
(d) of such section 553 shall not apply. For purposes of sections 1375, 
1376, and 1377 of this title, such regulations shall be treated as 
having been issued under this subchapter.

(e) Revocation of transfer of management authority

    (1) Subject to paragraph (2), the Secretary shall revoke, after 
opportunity for a hearing, any transfer of management authority made to 
a State under subsection (b)(1) of this section if the Secretary finds 
that the State program for the conservation and management of the 
species concerned is not being implemented, or is being implemented in a 
manner inconsistent with the provisions of this section or the 
provisions of the program. The Secretary shall also establish a 
procedure for the voluntary return by a State to the Secretary of 
species management authority that was previously transferred to the 
State under subsection (b)(1) of this section.
    (2)(A) The Secretary may not revoke a transfer of management 
authority under paragraph (1) unless--
        (i) the Secretary provides to the State a written notice of 
    intent to revoke together with a statement, in detail, of those 
    actions, or failures to act, on which such intent is based; and
        (ii) during the ninety-day period after the date of the notice 
    of intent to revoke--
            (I) the Secretary provides opportunity for consultation 
        between him and the State concerning such State actions or 
        failures to act and the remedial measures that should be taken 
        by the State, and
            (II) the State does not take such remedial measures as are 
        necessary, in the judgment of the Secretary, to bring its 
        conservation and management program, or the administration or 
        enforcement of the program, into compliance with the provisions 
        of this section.

    (B) When a revocation by the Secretary of a transfer of management 
authority to a State becomes final, or the State voluntarily returns 
management authority to the Secretary, the Secretary shall regulate the 
taking, and provide for the conservation and management, of the species 
within the State in accordance with the provisions of this chapter (and 
in the case of Alaskan Natives, section 1371(b) of this title and 
subsection (i) of this section shall apply upon such revocation or 
return of management authority).

(f) Transfer of management authority to State of Alaska

    (1) The Secretary may not transfer management authority to the State 
of Alaska under subsection (b)(1) of this section for any species of 
marine mammal unless--
        (A) the State has adopted and will implement a statute and 
    regulations that insure that the taking of the species for 
    subsistence uses--
            (i) is accomplished in a nonwasteful manner,
            (ii) will be the priority consumptive use of the species, 
        and
            (iii) if required to be restricted, such restriction will be 
        based upon--
                (I) the customary and direct dependence upon the species 
            as the mainstay of livelihood,
                (II) local residency, and
                (III) the availability of alternative resources; and

        (B) the State has adopted a statute or regulation that requires 
    that any consumptive use of marine mammal species, other than for 
    subsistence uses, will be authorized during a regulatory year only 
    if the appropriate agency first makes findings, based on an 
    administrative record before it, that--
            (i) such use will have no significant adverse impact upon 
        subsistence uses of the species, and
            (ii) the regulation of such use, including, but not limited 
        to, licensing of marine mammal hunting guides and the assignment 
        of guiding areas, will, to the maximum extent practicable, 
        provide economic opportunities for the residents of the rural 
        coastal villages of Alaska who engage in subsistence uses of 
        that species.

    (2) For purposes of paragraph (1), the term ``subsistence uses'' 
means the customary and traditional uses by rural Alaska residents of 
marine mammals for direct personal or family consumption as food, 
shelter, fuel, clothing, tools, or transportation; for the making and 
selling of handicraft articles out of nonedible byproducts of marine 
mammals taken for personal or family consumption; and for barter, or 
sharing for personal or family consumption. As used in this paragraph--
        (A) The term ``family'' means all persons related by blood, 
    marriage, or adoption, or any person living within a household on a 
    permanent basis.
        (B) The term ``barter'' means the exchange of marine mammals or 
    their parts, taken for subsistence uses--
            (i) for other wildlife or fish or their parts, or
            (ii) for other food or for nonedible items other than money 
        if the exchange is of a limited and noncommercial nature.

(g) Environmental impact statement not required

    Neither the transfer of management authority to a State under 
subsection (b)(1) of this section, nor the revocation or voluntary 
return of such authority under subsection (e) of this section, shall be 
deemed to be an action for which an environmental impact statement is 
required under section 4332 of title 42.

(h) Taking of marine mammals as part of official duties

    (1) Nothing in this subchapter or subchapter V of this chapter shall 
prevent a Federal, State, or local government official or employee or a 
person designated under section 1382(c) of this title from taking, in 
the course of his or her duties as an official, employee, or designee, a 
marine mammal in a humane manner (including euthanasia) if such taking 
is for--
        (A) the protection or welfare of the mammal,
        (B) the protection of the public health and welfare, or
        (C) the nonlethal removal of nuisance animals.

    (2) Nothing in this subchapter shall prevent the Secretary or a 
person designated under section 1382(c) of this title from importing a 
marine mammal into the United States if such importation is necessary to 
render medical treatment that is not otherwise available.
    (3) In any case in which it is feasible to return to its natural 
habitat a marine mammal taken or imported under circumstances described 
in this subsection, steps to achieve that result shall be taken.

(i) Regulations covering taking of marine mammals by Alaskan natives

    The Secretary may (after providing notice thereof in the Federal 
Register and in newspapers of general circulation, and through 
appropriate electronic media, in the affected area and providing 
opportunity for a hearing thereon in such area) prescribe regulations 
requiring the marking, tagging, and reporting of animals taken pursuant 
to section 1371(b) of this title.

(j) Grants to develop or administer State conservation and management 
        programs

    The Secretary may make grants to States to assist them--
        (1) in developing programs, to be submitted for approval under 
    subsection (b) of this section, for the conservation and management 
    of species of marine mammals; and
        (2) in administering such programs if management authority for 
    such species is transferred to the State under such subsection.

Grants made under this subsection may not exceed 50 per centum of the 
costs of developing a State program before Secretarial approval, or of 
administering the program thereafter.

(k) Delegation of administration and enforcement to States

    The Secretary is authorized and directed to enter into cooperative 
arrangements with the appropriate officials of any State for the 
delegation to such State of the administration and enforcement of this 
subchapter: Provided, That any such arrangement shall contain such 
provisions as the Secretary deems appropriate to insure that the 
purposes and policies of this chapter will be carried out.

(l) Authorization of appropriations

    (1) There are authorized to be appropriated to the Department of the 
Interior, for the purposes of carrying out this section, not to exceed 
$400,000 for each of the fiscal years ending September 30, 1979, 
September 30, 1980, and September 30, 1981.
    (2) There are authorized to be appropriated to the Department of 
Commerce, for the purposes of carrying out this section, not to exceed 
$225,000 for each of the fiscal years ending September 30, 1979, 
September 30, 1980, and September 30, 1981.

(Pub. L. 92-522, title I, Sec. 109, Oct. 21, 1972, 86 Stat. 1040; Pub. 
L. 95-316, Sec. 1, July 10, 1978, 92 Stat. 380; Pub. L. 97-58, 
Sec. 4(a), Oct. 9, 1981, 95 Stat. 982; Pub. L. 100-711, Sec. 5(a), 
(e)(3), Nov. 23, 1988, 102 Stat. 4769, 4771; Pub. L. 102-587, title III, 
Sec. 3004(a)(2), Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103-238, 
Sec. 24(c)(10), Apr. 30, 1994, 108 Stat. 566.)

                       References in Text

    Section 1362(14) of this title, referred to in subsecs. (b)(3)(B)(i) 
and (d), was redesignated section 1362(15) by Pub. L. 102-582, title IV, 
Sec. 401(a), Nov. 2, 1992, 106 Stat. 4909.
    The Regulatory Flexibility Act, referred to in subsec. (d)(2), is 
Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164, which is classified 
generally to chapter 6 (Sec. 601 et seq.) of Title 5, Government 
Organization and Employees. For complete classification of this Act to 
the Code, see Short Title note set out under section 601 of Title 5 and 
Tables.
    The Paperwork Reduction Act, referred to in subsec. (d)(2), probably 
means the Paperwork Reduction Act of 1980, Pub. L. 96-511, Dec. 11, 
1980, 94 Stat. 2812, as amended, which was classified principally to 
chapter 35 (Sec. 3501 et seq.) of Title 44, Public Printing and 
Documents, prior to the general amendment of that chapter by the 
Paperwork Reduction Act of 1995, Pub. L. 104-13, Sec. 2, May 22, 1995, 
109 Stat. 163. For complete classification of this Act to the Code, see 
Short Title of 1980 Amendment note set out under section 101 of Title 44 
and Tables.
    Executive Order Numbered 12291, dated February 17, 1981, referred to 
in subsec. (d)(2), was formerly set out as a note under section 601 of 
Title 5, Government Organization and Employees, and was revoked by Ex. 
Ord. No. 12866, Sec. 11, Sept. 30, 1993, 58 F.R. 51735.


                               Amendments

    1994--Subsec. (h)(1). Pub. L. 103-238 made technical amendment to 
reference to subchapter V of this chapter to reflect renumbering of 
corresponding title of original act.
    1992--Subsec. (h)(1). Pub. L. 102-587 inserted ``or subchapter V of 
this chapter'' in introductory provisions.
    1988--Subsec. (b)(1)(E). Pub. L. 100-711, Sec. 5(e)(3)(A), 
substituted ``research, public display, or enhancing the survival or 
recovery of a species or stock'' for ``research and public display 
purposes''.
    Subsec. (b)(3)(B)(ii). Pub. L. 100-711, Sec. 5(e)(3)(B), substituted 
``research, public display, or enhancing the survival or recovery of a 
species or stock'' for ``research or public display purposes''.
    Subsec. (h). Pub. L. 100-711, Sec. 5(a), amended subsec. (h) 
generally. Prior to amendment, subsec. (h) read as follows: ``Nothing in 
this subchapter shall prevent a Federal, State, or local government 
official or employee or a person designated under section 1382(c) of 
this title from taking, in the course of his duties as an official, 
employee, or designee, a marine mammal in a humane manner (including 
euthanasia) if such taking is for--
        ``(1) the protection or welfare of the mammal,
        ``(2) the protection of the public health and welfare, or
        ``(3) the nonlethal removal of nuisance animals,
and, in any case in which the return of the mammal to its natural 
habitat is feasible, includes steps designed to achieve that result.''
    1981--Subsec. (a). Pub. L. 97-58, Sec. 4(a)(2), added subsec. (a). 
Former subsec. (a), relating to State regulation of the taking of marine 
mammals, was struck out.
    Subsec. (b). Pub. L. 97-58, Sec. 4(a)(2), added subsec. (b). Former 
subsec. (b), relating to the making of grants to States by the 
Secretary, was struck out. See subsec. (j) of this section.
    Subsecs. (c), (d). Pub. L. 97-58, Sec. 4(a)(1), (2), added subsecs. 
(c) and (d). Former subsecs. (c) and (d) redesignated (k) and (l), 
respectively.
    Subsecs. (e) to (j). Pub. L. 97-58, Sec. 4(a)(2), added subsecs. (e) 
to (j).
    Subsecs. (k), (l). Pub. L. 97-58, Sec. 4(a)(1), redesignated 
subsecs. (c) and (d) as (k) and (l), respectively.
    1978--Subsec. (d). Pub. L. 95-316 added subsec. (d).


           Cooperative Agreements Under Endangered Species Act

    Section 4(b) of Pub. L. 97-58 provided that: ``Nothing in the 
amendments made by subsection (a) [amending this section] shall be 
construed as affecting in any manner, or to any extent, any cooperative 
agreement entered into by a State under section 6(c) of the Endangered 
Species Act of 1973 (16 U.S.C. 1535(c)) before, on, or after the date of 
the enactment of this Act [Oct. 9, 1981].''

                  Section Referred to in Other Sections

    This section is referred to in sections 1153, 1362, 1371, 1372, 
1421b, 1421h of this title.
