16 U.S.C. § 1826k

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 1826k - Equivalent conservation measures

(a) Identification

(1) In general

The Secretary shall identify and list in the report under section 1826h of this title-

(A) a nation if-

(i) any fishing vessel of that nation is engaged, or has been engaged during the 3 years preceding the date of the determination, in fishing activities or practices on the high seas or within the exclusive economic zone of any nation, that have resulted in bycatch of a protected living marine resource; and

(ii) the vessel's flag state has not adopted, implemented, and enforced a regulatory program governing such fishing designed to end or reduce such bycatch that is comparable in effectiveness to the regulatory program of the United States, taking into account differing conditions; and

(B) a nation if-

(i) any fishing vessel of that nation is engaged, or has engaged during the 3 years preceding the date of the determination, in fishing activities on the high seas or within the exclusive economic zone of another nation that target or incidentally catch sharks; and

(ii) the vessel's flag state has not adopted, implemented, and enforced a regulatory program to provide for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark, including the tail, before landing the shark in port, that is comparable to that of the United States.

(2) Timing

The Secretary shall make an identification under paragraph (1) at any time that the Secretary has sufficient information to make such identification.

(b) Consultation and negotiation

The Secretary of State, acting in consultation with the Secretary, shall-

(1) notify, as soon as practicable, the President and nations that are engaged in, or that have any fishing vessels engaged in, fishing activities or practices described in subsection (a), about the provisions of this Act;

(2) initiate discussions as soon as practicable with all foreign nations that are engaged in, or a fishing vessel of which has engaged in, fishing activities described in subsection (a), for the purpose of entering into bilateral and multilateral treaties with such nations to protect such species and to address any underlying failings or gaps that may have contributed to identification under this Act; and

(3) initiate the amendment of any existing international treaty for the protection and conservation of such species to which the United States is a party in order to make such treaty consistent with the purposes and policies of this section.

(c) Conservation certification procedure

(1) Determination

The Secretary shall establish a procedure consistent with the provisions of subchapter II of chapter 5 of title 5 for determining whether the government of a harvesting nation identified under subsection (a) and listed in the report under section 1826h of this title-

(A) has provided documentary evidence of the adoption of a regulatory program governing the conservation of the protected living marine resource that is comparable to that of the United States, taking into account different conditions, and which, in the case of pelagic longline fishing, includes mandatory use of circle hooks, careful handling and release equipment, and training and observer programs; and

(B) has established a management plan containing requirements that will assist in gathering species-specific data to support international stock assessments and conservation enforcement efforts for protected living marine resources.

(2) Procedural requirement

The procedure established by the Secretary under paragraph (1) shall include notice and opportunity for comment by the public and any such nation.

(3) Certification

The Secretary shall certify to the Congress by January 31, 2007, and biennially thereafter whether each such nation has provided the documentary evidence described in paragraph (1)(A) and established a management plan described in paragraph (1)(B).

(4) Alternative procedure

The Secretary may establish a procedure to authorize, on a shipment-by-shipment, shipper-by-shipper, or other basis the importation of fish or fish products from a vessel of a nation issued a negative certification under paragraph (1) if the Secretary determines that such imports were harvested by practices that do not result in bycatch of a protected marine species, or were harvested by practices that-

(A) are comparable to those of the United States, taking into account different conditions; and

(B) include the gathering of species specific data that can be used to support international and regional stock assessments and conservation efforts for protected living marine resources.

(5) Effect of certification

The provisions of section 1826a(a) and section 1826a(b)(3) and (4) of this title shall apply to any nation identified under subsection (a) for which the Secretary has issued a negative certification under this subsection, but shall not apply to any nation identified under subsection (a) for which the Secretary has issued a positive certification under this subsection.

(d) International cooperation and assistance

To the greatest extent possible consistent with existing authority and the availability of funds, the Secretary shall-

(1) provide appropriate assistance to nations identified by the Secretary under subsection (a) and international organizations of which those nations are members to assist those nations in qualifying for certification under subsection (c);

(2) undertake, where appropriate, cooperative research activities on species statistics and improved harvesting techniques, with those nations or organizations;

(3) encourage and facilitate the transfer of appropriate technology to those nations or organizations to assist those nations in qualifying for certification under subsection (c); and

(4) provide assistance to those nations or organizations in designing and implementing appropriate fish harvesting plans.

(e) Protected living marine resource defined

In this section the term "protected living marine resource"-

(1) except as provided in paragraph (2), means nontarget fish, sea turtles, or marine mammals that are protected under United States law or international agreement, including-

(A) the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.);

(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

(C) the Shark Finning Prohibition Act (16 U.S.C. 1822 note); and

(D) the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington March 3, 1973 (27 UST 1087; TIAS 8249); but

(2) does not include species, except sharks, managed under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.], the Atlantic Tunas Convention Act [16 U.S.C. 971 et seq.], or any international fishery management agreement.

(f) Authorization of appropriations

There are authorized to be appropriated to the Secretary for fiscal years 2007 through 2013 such sums as are necessary to carry out this section.

16 U.S.C. § 1826k

Pub. L. 104-43, title VI, §610, as added Pub. L. 109-479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3630; amended Pub. L. 111-348, title I, §102(c)(1), Jan. 4, 2011, 124 Stat. 3669; Pub. L. 114-81, title I, §101(d), (f), (g) (3), (i)(5), Nov. 5, 2015, 129 Stat. 654, 655; Pub. L. 114-327, title IV, §401(d), Dec. 16, 2016, 130 Stat. 1995; Pub. L. 117-263 title CXIII, §11338, Dec. 23, 2022, 136 Stat. 4103; Pub. L. 117-328, div. S, title IV, §401(2), Dec. 29, 2022, 136 Stat. 5274.

EDITORIAL NOTES

REFERENCES IN TEXTThis Act, referred to in subsec. (b)(1), (2), probably means title VI of Pub. L. 104-43, 109 Stat. 391, known as the High Seas Driftnet Fishing Moratorium Protection Act, which is classified generally to sections 1826d to 1826k of this title. For complete classification of title VI to the Code, see Short Title of 1995 Amendment note set out under section 1801 of this title and Tables.Section 1826a(a) and section 1826a(b)(3) and (4) of this title, referred to in subsec. (c)(5), was in the original "section 101(a) and section 101(b)(3) and (4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))" and was translated as meaning section 101(a) and section 101(b)(3) and (4) of the High Seas Driftnet Fisheries Enforcement Act, to reflect the probable intent of Congress.The Marine Mammal Protection Act of 1972, referred to in subsec. (e)(1)(A), is Pub. L. 92-522, Oct. 21, 1972, 86 Stat. 1027, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables. The Endangered Species Act of 1973, referred to in subsec. (e)(1)(B), is Pub. L. 93-205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables.The Shark Finning Prohibition Act, referred to in subsec. (e)(1)(C), is Pub. L. 106-557, 114 Stat. 2772, which is set out as a note under section 1822 of this title. For complete classification of this Act to the Code, see Tables.The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (e)(2), is Pub. L. 94-265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.The Atlantic Tunas Convention Act, referred to in subsec. (e)(2), probably means the Atlantic Tunas Convention Act of 1975, Pub. L. 94-70, Aug. 5, 1975, 89 Stat. 385, which is classified generally to chapter 16A (§971 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 971 of this title and Tables.

CODIFICATIONSection was enacted as part of the High Seas Driftnet Fishing Moratorium Protection Act, and also as part of the Fisheries Act of 1995, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

AMENDMENTS2022-Subsec. (a). Pub. L. 117-263, §11338(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) related to identification of nations with certain fishing activities that resulted in bycatch of protected living marine resources and that targeted or incidentally caught sharks. Subsec. (b). Pub. L. 117-263, §11338(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to consultation and negotiation with foreign governments regarding bilateral and multilateral treaties and agreements to protect certain species. Subsec. (b)(3), (4). Pub. L. 117-328, §401(2)(A), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "seek agreements calling for international restrictions on fishing activities or practices described in subsection (a) through the United Nations, the Committee on Fisheries of the Food and Agriculture Organization of the United Nations, and appropriate international fishery management bodies; and". Subsec. (c)(2). Pub. L. 117-263, §11338(c)(1), inserted "the public and" after "comment by".Subsec. (c)(4)(C). Pub. L. 117-328, §401(2)(B), struck out subpar. (C) which read as follows: "ensure that any such fish or fish products authorized for entry under this section are imported consistent with the reporting and the recordkeeping requirements of the Seafood Import Monitoring Program established in subpart Q of part 300 of title 50, Code of Federal Regulations (or any successor regulation)." Pub. L. 117-263, §11338(c)(2), added subpar. (C). Subsec. (c)(5). Pub. L. 117-263, §11338(c)(3), struck out "(except to the extent that such provisions apply to sport fishing equipment or fish or fish products not caught by the vessels engaged in illegal, unreported, or unregulated fishing)" after "section 1826a(b)(3) and (4) of this title".Subsec. (e)(1). Pub. L. 117-263, §11338(d), added par. (1) and struck out former par. (1) which read as follows: "means non-target fish, sea turtles, or marine mammals that are protected under United States law or international agreement, including the Marine Mammal Protection Act, the Endangered Species Act, the Shark Finning Prohibition Act, and the Convention on International Trade in Endangered Species of Wild Flora and Fauna; but".2016-Subsec. (a)(2)(A). Pub. L. 114-327 substituted "3 years" for "calendar year". 2015-Subsec. (a)(1)(A). Pub. L. 114-81, §101(g)(3), (i) (5)(A), substituted "3 years" for "calendar year" and "practices-" for "practices;" in introductory provisions.Subsec. (b)(1). Pub. L. 114-81, §101(d), amended par. (1) generally. Prior to amendment, text read as follows: "notify, as soon as possible, other nations whose vessels engage in fishing activities or practices described in subsection (a), about the provisions of sections 1826d to 1826k of this title;". Subsec. (c)(4). Pub. L. 114-81, §101(i)(5)(B), added introductory provisions and subpar. (A) and struck out former introductory provisions and subpar. (A) which related to alternative procedure for certification of fish or fish products from a vessel of a harvesting nation not certified under paragraph (3).Subsec. (c)(5). Pub. L. 114-81, §101(f), struck out "that has not been certified by the Secretary under this subsection, or" after "subsection (a)".2011-Subsec. (a). Pub. L. 111-348, §102(c)(1)(A), struck out ",a nation if" after "section 1826h of this title" in introductory provisions. Pub. L. 111-348, §102(c)(1)(B)-(G), redesignated pars. (1) to (3) as subpars. (A) to (C), respectively, realigned margins, inserted "(1) a nation if-" before subpar. (A), as so redesignated, redesignated former subpars. (A) and (B) of par. (1) as cls. (i) and (ii) of subpar. (A), respectively, realigned margins, and added par. (2).

STATUTORY NOTES AND RELATED SUBSIDIARIES

CONSTRUCTIONNothing in section 102(c) of Pub. L. 111-348 (amending this section and enacting provisions set out as a note below) to be construed as affecting, altering, or diminishing the authority of the Secretary of Commerce to establish such conservation and management measures as the Secretary considers necessary and appropriate under sections 1852(a)(3) and 1854(g) of this title, see section 104 of Pub. L. 111-348 set out as a note under section 1826i of this title.

INITIAL IDENTIFICATIONS Pub. L. 111-348, title I, §102(c)(2), Jan. 4, 2011, 124 Stat. 3669, provided that: "The Secretary of Commerce shall begin making identifications under paragraph (2) of section 610(a) of the High Seas Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826k(a)), as added by paragraph (1)(G), not later than 1 year after the date of the enactment of this Act [Jan. 4, 2011]."

Secretary: The term "Secretary" means the Secretary of Commerce or his designee.
State: The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States.
bycatch: The term "bycatch" means fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program.
conservation and management: The term "conservation and management" refers to all of the rules, regulations, conditions, methods, and other measures (A) which are required to rebuild, restore, or maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource and the marine environment; and (B) which are designed to assure that-(i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis;(ii) irreversible or long-term adverse effects on fishery resources and the marine environment are avoided; and(iii) there will be a multiplicity of options available with respect to future uses of these resources.
exclusive economic zone: The term "exclusive economic zone" means the zone established by Proclamation Numbered 5030, dated March 10, 1983. For purposes of applying this chapter, the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States.
fish: The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds.
fishery: The term "fishery" means-(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and(B) any fishing for such stocks.
fishing vessel: The term "fishing vessel" means any vessel, boat, ship, or other craft which is used for, equipped to be used for, or of a type which is normally used for-(A) fishing; or(B) aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.
fishing: The term "fishing" means-(A) the catching, taking, or harvesting of fish;(B) the attempted catching, taking, or harvesting of fish;(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).Such term does not include any scientific research activity which is conducted by a scientific research vessel.
high seas: The term "high seas" means all waters beyond the territorial sea of the United States and beyond any foreign nation's territorial sea, to the extent that such sea is recognized by the United States.
observer: The term "observer" means any person required or authorized to be carried on a vessel for conservation and management purposes by regulations or permits under this chapter.
treaty: The term "treaty" means any international fishery agreement which is a treaty within the meaning of section 2 of article II of the Constitution.