§ 1379. Transfer of management authority

Footnotes

1. 1 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1972

   Marine Mammal Protection Act of 1972

   Pub. L. 92–522 title I § 109 · 86 Stat. 1027

   Enacted · 16 U.S.C. § 1379

   Pub. L. 92–522, title I, § 109, Oct. 21, 1972, 86 Stat. 1040

   Source evidence

   Code source credit
   Pub. L. 92–522, title I, § 109, Oct. 21, 1972, 86 Stat. 1040

   Enacted provision · exact public law section
   Sec. 109. federal cooperation with states (a) (1) Except as otherwise provided in this section, no State may adopt any law or regulation relating to the taking of marine mammals within its jurisdiction or attempt to enforce any State law or regulation relating to such taking. (2) Any State may adopt and enforce any laws or regulations relating to the protection and taking, within its jurisdiction, of any species or population stock of marine mammals if the Secretary determines, after review thereof, that such laws and regulations will be consistent with (A) the regulations promulgated under section 103 of tins title with respect to such species or population stock, and (B) such other provisions of this Act, and any rule or regulation promulgated pursuant to this title, which apply with respect to such species or population stock. If the Secretary determines that any such State laws and regulations arc so consistent, the provisions of this Act, except this section and sections 101 (except to the extent that the Secretary waives the application of section 101 to permit such State laws and regulations to take effect) and 110 of this title, and title II of this Act, shall not apply with respect to the species or population stock concerned within the jurisdiction of the State. (3) Notwithstanding the preceding provisions of this subsection and the provisions of subsection (c) of this section, the Secretary shall continuously monitor and review the laws and regulations of any State which has assumed responsibility for marine mammals as provided for in paragraph (2) of this subsection. Whenever the Secretary finds that the laws and regulations of any such State are not in substantial compliance with either paragraph (1) or (2), or both, he shall resume responsibilities under this Act for the marine mammals concerned within the jurisdiction of that State, superseding such State laws and regulations to the extent which, after notice and opportunity for hearing, he deems necessary. (4) Nothing in this Act shall prevent a State or local government official or employee, in the course of his duties as an official or employee, from taking a marine mammal in a humane manner if such taking (A) is for the protection or welfare of such mammal or for the protection of the public health and welfare, and (B) includes steps designed to assure the return of such mammal to its natural habitat. (b) The Secretary is authorized to make grants to each State whose laws and regulations relating to protection and management of marine mammals which primarily inhabit waters or lands within the boundaries of that State are found to be consistent with the purposes and policies of this Act. The purpose of such grants shall be to assist such States in developing and implementing State programs for the protection Limitation. and management of such marine mammals. Such grants shall not exceed 50 per centum of the costs of a particular programs development Eligibility. and implementation. To be eligible for such grants, State programs shall include planning and such specific activities, including, but not limited, to research, censusing, habitat acquisition and improvement, or law enforcement as the Secretary finds contribute to the purposes Report. and policies of this Act. The Secretary may also, as a condition of any such grant, provide that State agencies report at regular intervals on the status of species and populations which are the subject of such grants. (c) 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 title: Provided, That any such arrangement shall contain such pro-visions as the Secretary deems appropriate to insure that the purposes and policies of this Act will be carried out.

2. 1978

   Pub. L. 95–316 § 1 · 92 Stat. 380

   Added · 16 U.S.C. § 1379(d)

   Pub. L. 95–316 added subsec. (d)

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 95–316 added subsec. (d).

   Enacted provision · exact public law section
   (1) by amending subsection (a)— (A) by striking out “title.” and inserting in lieu thereof “title (other than sections 109 and 110).”. (B) by striking out “and” immediately after “fiscal years,”, and (C) by inserting immediately after “September 30, 1978,” the following: “not to exceed $8,500,000 for the fiscal year ending September 30, 1979, not to exceed $9,000,000 for the fiscal year ending September 30, 1980, and not to exceed $9,500,000 for the fiscal year ending September 30, 1981,”; and

3. 1981

   Pub. L. 97–58 § 4(a)(2) · 95 Stat. 979

   Struck · 16 U.S.C. § 1379(a)

   Pub. L. 97–58, § 4(a)(2), added subsec. (a). Former subsec. (a), relating to State regulation of the taking of marine mammals, was struck out

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 97–58, § 4(a)(2), added subsec. (a). Former subsec. (a), relating to State regulation of the taking of marine mammals, was struck out.

   Enacted provision · exact public law section
   (2) by striking out subsections (a) and (b) and inserting in lieu thereof the following: “Sec. 109. (a) 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). “(b) (1) Subject to paragraph (2) and subsection (f), 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 Act 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)— “(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), such an 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)), 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 and public display purposes, 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 that 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); 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 (l)(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 101; and 16 USC 1371. “(B) the Secretary shall continue to regulate, under this title, 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), if required, is implemented for such species— “(A) such determination shall be treated, for purposes of applying this title beyond the territory of the State, as a determination made in accordance with section 103 and as an applicable 16 USC 1373. waiver under section 101(a)(3); “(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 101(a) (2) or (4)), Ante, pp. 979, 980. or in the course of other specified activities provided for under section 101(a)(5), in the zone described in section 3(14)(B), and Ante, p. 979. “(ii) for scientific research or public display purposes (other than by, or on behalf of, the State), except that any taking authorized under a permit issued pursuant to section 101(a)(1) after the date of the enactment of the 1981 amendment to this subsection 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 101(b) shall not apply. “(c) The State process required under subsection (b)(1)(C) must Compliance standards. 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. Public notice. 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, United States Code, must be available under State law. The Secretary may not initiate judicial review of any such decision. “(d) (1) If the range of a species with respect to which a determination under paragraph (1)(C)(i) of subsection (b) 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 302 of the Act of April 13, 1976 (16 U.S.C. 1852)) 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), 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 101(a) within the zone described in 16 USC 1371. section 3(14)(B). “(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 3(14)(B) 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 Regulations. administration of section 101(a) within such zone. The Secretary shall adopt such provisions through the issuance of regulations under section 553 of title 5, United States Code, and with respect to such 5 USC 601 note. 44 USC 101 note. 46 FR 13193. 16 USC 1375–1377. Revocation of authority transfer. issuance the Regulatory Flexibility Act, the Paperwork Reduction Act, 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 105, 106, and 107, such regulations shall be treated as having been issued under this title. “(e) (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) 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). “(2) (A) The Secretary may not revoke a transfer of management Revocation conditions. 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 Act (and in the case of Alaskan Natives, section 101(b) Ante, p. 981. and subsection (i) of this section shall apply upon such revocation or return of management authority). “(f) (1) The Secretary may not transfer management authority to Authority transfer to State of Alaska, restrictions. the State of Alaska under subsection (b)(1) 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) Neither the transfer of management authority to a State under subsection (b)(1), nor the revocation or voluntary return of such authority under subsection (e), shall be deemed to be an action for which an environmental impact statement is required under section 42 USC 4332. 102 of the National Environmental Policy Act of 1969. “(h) Nothing in this title shall prevent a Federal, State, or local government official or employee or a person designated under section 16 USC 1382. 112(c) 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, “(i) 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 16 USC 1371. taken pursuant to section 101(b). “(j) The Secretary may make grants to States to assist them— “(1) in developing programs, to be submitted for approval under subsection (b), 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.”.

4. 1981

   Pub. L. 97–58 § 4(a)(2) · 95 Stat. 979

   Struck · 16 U.S.C. § 1379(b)

   Pub. L. 97–58, § 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

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 97–58, § 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.

   Enacted provision · exact public law section
   (2) by striking out subsections (a) and (b) and inserting in lieu thereof the following: “Sec. 109. (a) 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). “(b) (1) Subject to paragraph (2) and subsection (f), 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 Act 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)— “(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), such an 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)), 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 and public display purposes, 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 that 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); 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 (l)(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 101; and 16 USC 1371. “(B) the Secretary shall continue to regulate, under this title, 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), if required, is implemented for such species— “(A) such determination shall be treated, for purposes of applying this title beyond the territory of the State, as a determination made in accordance with section 103 and as an applicable 16 USC 1373. waiver under section 101(a)(3); “(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 101(a) (2) or (4)), Ante, pp. 979, 980. or in the course of other specified activities provided for under section 101(a)(5), in the zone described in section 3(14)(B), and Ante, p. 979. “(ii) for scientific research or public display purposes (other than by, or on behalf of, the State), except that any taking authorized under a permit issued pursuant to section 101(a)(1) after the date of the enactment of the 1981 amendment to this subsection 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 101(b) shall not apply. “(c) The State process required under subsection (b)(1)(C) must Compliance standards. 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. Public notice. 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, United States Code, must be available under State law. The Secretary may not initiate judicial review of any such decision. “(d) (1) If the range of a species with respect to which a determination under paragraph (1)(C)(i) of subsection (b) 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 302 of the Act of April 13, 1976 (16 U.S.C. 1852)) 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), 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 101(a) within the zone described in 16 USC 1371. section 3(14)(B). “(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 3(14)(B) 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 Regulations. administration of section 101(a) within such zone. The Secretary shall adopt such provisions through the issuance of regulations under section 553 of title 5, United States Code, and with respect to such 5 USC 601 note. 44 USC 101 note. 46 FR 13193. 16 USC 1375–1377. Revocation of authority transfer. issuance the Regulatory Flexibility Act, the Paperwork Reduction Act, 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 105, 106, and 107, such regulations shall be treated as having been issued under this title. “(e) (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) 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). “(2) (A) The Secretary may not revoke a transfer of management Revocation conditions. 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 Act (and in the case of Alaskan Natives, section 101(b) Ante, p. 981. and subsection (i) of this section shall apply upon such revocation or return of management authority). “(f) (1) The Secretary may not transfer management authority to Authority transfer to State of Alaska, restrictions. the State of Alaska under subsection (b)(1) 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) Neither the transfer of management authority to a State under subsection (b)(1), nor the revocation or voluntary return of such authority under subsection (e), shall be deemed to be an action for which an environmental impact statement is required under section 42 USC 4332. 102 of the National Environmental Policy Act of 1969. “(h) Nothing in this title shall prevent a Federal, State, or local government official or employee or a person designated under section 16 USC 1382. 112(c) 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, “(i) 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 16 USC 1371. taken pursuant to section 101(b). “(j) The Secretary may make grants to States to assist them— “(1) in developing programs, to be submitted for approval under subsection (b), 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.”.

5. 1981

   Pub. L. 97–58 § 4(a)(1) · 95 Stat. 979

   Redesignated · 16 U.S.C. § 1379(c); 16 U.S.C. § 1379(d)

   Pub. L. 97–58, § 4(a)(1), (2), added subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (k) and (l), respectively

   Source evidence

   Code amendment note
   Subsecs. (c), (d). Pub. L. 97–58, § 4(a)(1), (2), added subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (k) and (l), respectively.

   Enacted provision · exact public law section
   (1) by redesignating subsections (c) and (d) as subsections (k) and (1), respectively; and

6. 1981

   Pub. L. 97–58 § 4(a)(2) · 95 Stat. 979

   Added · 16 U.S.C. § 1379(e)(j)

   Pub. L. 97–58, § 4(a)(2), added subsecs. (e) to (j)

   Source evidence

   Code amendment note
   Subsecs. (e) to (j). Pub. L. 97–58, § 4(a)(2), added subsecs. (e) to (j).

   Enacted provision · exact public law section
   (2) by striking out subsections (a) and (b) and inserting in lieu thereof the following: “Sec. 109. (a) 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). “(b) (1) Subject to paragraph (2) and subsection (f), 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 Act 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)— “(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), such an 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)), 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 and public display purposes, 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 that 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); 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 (l)(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 101; and 16 USC 1371. “(B) the Secretary shall continue to regulate, under this title, 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), if required, is implemented for such species— “(A) such determination shall be treated, for purposes of applying this title beyond the territory of the State, as a determination made in accordance with section 103 and as an applicable 16 USC 1373. waiver under section 101(a)(3); “(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 101(a) (2) or (4)), Ante, pp. 979, 980. or in the course of other specified activities provided for under section 101(a)(5), in the zone described in section 3(14)(B), and Ante, p. 979. “(ii) for scientific research or public display purposes (other than by, or on behalf of, the State), except that any taking authorized under a permit issued pursuant to section 101(a)(1) after the date of the enactment of the 1981 amendment to this subsection 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 101(b) shall not apply. “(c) The State process required under subsection (b)(1)(C) must Compliance standards. 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. Public notice. 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, United States Code, must be available under State law. The Secretary may not initiate judicial review of any such decision. “(d) (1) If the range of a species with respect to which a determination under paragraph (1)(C)(i) of subsection (b) 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 302 of the Act of April 13, 1976 (16 U.S.C. 1852)) 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), 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 101(a) within the zone described in 16 USC 1371. section 3(14)(B). “(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 3(14)(B) 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 Regulations. administration of section 101(a) within such zone. The Secretary shall adopt such provisions through the issuance of regulations under section 553 of title 5, United States Code, and with respect to such 5 USC 601 note. 44 USC 101 note. 46 FR 13193. 16 USC 1375–1377. Revocation of authority transfer. issuance the Regulatory Flexibility Act, the Paperwork Reduction Act, 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 105, 106, and 107, such regulations shall be treated as having been issued under this title. “(e) (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) 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). “(2) (A) The Secretary may not revoke a transfer of management Revocation conditions. 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 Act (and in the case of Alaskan Natives, section 101(b) Ante, p. 981. and subsection (i) of this section shall apply upon such revocation or return of management authority). “(f) (1) The Secretary may not transfer management authority to Authority transfer to State of Alaska, restrictions. the State of Alaska under subsection (b)(1) 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) Neither the transfer of management authority to a State under subsection (b)(1), nor the revocation or voluntary return of such authority under subsection (e), shall be deemed to be an action for which an environmental impact statement is required under section 42 USC 4332. 102 of the National Environmental Policy Act of 1969. “(h) Nothing in this title shall prevent a Federal, State, or local government official or employee or a person designated under section 16 USC 1382. 112(c) 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, “(i) 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 16 USC 1371. taken pursuant to section 101(b). “(j) The Secretary may make grants to States to assist them— “(1) in developing programs, to be submitted for approval under subsection (b), 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.”.

7. 1981

   Pub. L. 97–58 § 4(a)(1) · 95 Stat. 979

   Redesignated · 16 U.S.C. § 1379(k); 16 U.S.C. § 1379(l)

   Pub. L. 97–58, § 4(a)(1), redesignated subsecs. (c) and (d) as (k) and (l), respectively

   Source evidence

   Code amendment note
   Subsecs. (k), (l). Pub. L. 97–58, § 4(a)(1), redesignated subsecs. (c) and (d) as (k) and (l), respectively.

   Enacted provision · exact public law section
   (1) by redesignating subsections (c) and (d) as subsections (k) and (1), respectively; and

8. 1988

   Marine Mammal Protection Act Amendments of 1988

   Pub. L. 100–711 § 5(e)(3)(A) · 102 Stat. 4755

   Substituted · 16 U.S.C. § 1379(b)(1)(E)

   Pub. L. 100–711, § 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”

   Source evidence

   Code amendment note
   Subsec. (b)(1)(E). Pub. L. 100–711, § 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”.

   Enacted provision · exact public law section
   (A) in paragraph (1)(E), by striking “research and public display purposes” and inserting in lieu thereof the following: “research, public display, or enhancing the survival or recovery of a species or stock”; and

9. 1988

   Marine Mammal Protection Act Amendments of 1988

   Pub. L. 100–711 § 5(e)(3)(B) · 102 Stat. 4755

   Substituted · 16 U.S.C. § 1379(b)(3)(B)(ii)

   Pub. L. 100–711, § 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”

   Source evidence

   Code amendment note
   Subsec. (b)(3)(B)(ii). Pub. L. 100–711, § 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”.

   Enacted provision · exact public law section
   (B) in paragraph (3)(B)(ii), by striking “research or public display purposes” and inserting in lieu thereof the following: “research, public display, or enhancing the survival or recovery of a species or stock”.

10. 1988

    Marine Mammal Protection Act Amendments of 1988

    Pub. L. 100–711 § 5(a) · 102 Stat. 4755

    Amended · 16 U.S.C. § 1379(h)

    Pub. L. 100–711, § 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—

    Source evidence

    Code amendment note
    Subsec. (h). Pub. L. 100–711, § 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.”

    Enacted provision · exact public law section
    (a) Section 109(h) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1379(h)) is amended to read as follows: “(h) (1) Nothing in this title shall prevent a Federal, State, or local government official or employee or a person designated under section 112(c) 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 Safety. Imports. “(C) the nonlethal removal of nuisance animals. “(2) Nothing in this title shall prevent the Secretary or a person designated under section 112(c) 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.”.

11. 1992

    Marine Mammal Health and Stranding Response Act

    Pub. L. 102–587 title III § 3004(a)(2) · 106 Stat. 5039

    Inserted · 16 U.S.C. § 1379(h)(1)

    Pub. L. 102–587 inserted “or subchapter V” after “this subchapter” in introductory provisions

    Source evidence

    Code amendment note
    Subsec. (h)(1). Pub. L. 102–587 inserted “or subchapter V” after “this subchapter” in introductory provisions.

    Enacted provision · exact public law section
    (2) in section 109(h)(1) (16 U.S.C. 1379(h)(1)) by inserting “or title III” after “this title”; and

12. 1994

    Marine Mammal Protection Act Amendments of 1994

    Pub. L. 103–238 § 24(c)(10) · 108 Stat. 532

    Changed · 16 U.S.C. § 1379(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

    Source evidence

    Code amendment note
    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.

    Enacted provision · exact public law section
    (10) in section 109(h)(1) (16 U.S.C. 1379(h)(l)) by striking “title III” and inserting “title IV”;

12 of 12 references resolved to an enrolled provision