§ 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;
(C)
does not permit the taking of the species unless and until—
(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);
(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
(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
(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)
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—
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.
(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
(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—
(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—
(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—
(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—
(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] See References in Text note below.
[2] See References in Text note below.