1 of 15 documents united states code service

§ 1537. International cooperation
(a) Financial assistance. As a demonstration of the commitment of the United States to the worldwide protection of endangered species and threatened species, the President may, subject to the provisions of section 1415 of the Supplemental Appropriation Act, 1953 (31 U.S.C. 724) [31 USCS § 1306], use foreign currencies accruing to the United States Government under the Food for Peace Act [7 USCS §§ 1691 et seq.] or any other law to provide to any foreign country (with its consent) assistance in the development and management of programs in that country which the Secretary determines to be necessary or useful for the conservation of any endangered species or threatened species listed by the Secretary pursuant to section 4 of this Act [16 USCS § 1533]. The President shall provide assistance (which includes, but is not limited to, the acquisition, by lease or otherwise, of lands, waters, or interests therein) to foreign countries under this section under such terms and conditions as he deems appropriate. Whenever foreign currencies are available for the provision of assistance under this section, such currencies shall be used in preference to funds appropriated under the authority of section 15 of this Act [16 USCS § 1542].

(b) Encouragement of foreign programs. In order to carry out further the provisions of this Act, the Secretary, through the Secretary of State, shall encourage--

(1) foreign countries to provide for the conservation of fish or wildlife and plants including endangered species and threatened species listed pursuant to section 4 of this Act [16 USCS § 1533];

(2) the entering into of bilateral or multilateral agreements with foreign countries to provide for such conservation; and

(3) foreign persons who directly or indirectly take fish or wildlife or plants in foreign countries or on the high seas for importation into the United States for commercial or other purposes to develop and carry out with such assistance as he may provide, conservation practices designed to enhance such fish or wildlife or plants and their habitat.

(c) Personnel. After consultation with the Secretary of State, the Secretary may--

(1) assign or otherwise make available any officer or employee of his department for the purpose of cooperating with foreign countries and international organizations in developing personnel resources and programs which promote the conservation of fish or wildlife or plants; and

(2) conduct or provide financial assistance for the educational training of foreign personnel, in this country or abroad, in fish, wildlife, or plant management, research and law enforcement and to render professional assistance abroad in such matters.

(d) Investigations. After consultation with the Secretary of State and the Secretary of the Treasury, as appropriate, the Secretary may conduct or cause to be conducted such law enforcement investigations and research abroad as he deems necessary to carry out the purposes of this Act.
HISTORY:

(Dec. 28, 1973, P.L. 93-205, § 8, 87 Stat. 892; Dec. 28, 1979, P.L. 96-159, § 5, 93 Stat. 1228; June 18, 2008, P.L. 110-246, Title III, Subtitle A, § 3001(b)(1)(A), (2)(N), 122 Stat. 1820.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:

"This Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which appears generally as 16 USCS §§ 1531 et seq. For full classification of this Act, consult USCS Tables volumes.

Explanatory notes:

In subsec. (a), "31 USCS § 1306" has been inserted in brackets pursuant to § 4(b) of Act Sept. 13, 1982, P.L. 97-258, which appears as a note preceding 31 USCS § 101. Section 1 of such Act enacted Title 31 as positive law, and § 4(b) of such Act provided that a reference to a law replaced by § 1 of such Act is deemed to refer to the corresponding provision enacted by such Act.

Effective date of section:

This section is effective on the date of its enactment on Dec. 28, 1973, as provided by Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note.

Amendments:

1979. Act Dec. 28, 1979, in subsec. (b), in para. (1), inserted "and plants", and in para. (3), inserted "or plants"; in subsec. (c)(1), inserted "or plants"; and deleted subsec. (e) which read: "The President is authorized and directed to designate appropriate agencies to act as the Management Authority or Authorities and the Scientific Authority or Authorities pursuant to the Convention. The agencies so designated shall thereafter be authorized to do all things assigned to them under the Convention, including the issuance of permits and certificates. The agency designated by the President to communicate with other parties to the Convention and with the Secretariat shall also be empowered, where appropriate, in consultation with the State Department, to act on behalf of and represent the United States in all regards as required by the Convention. The President shall also designate those agencies which shall act on behalf of and represent the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.".

2008. Act June 18, 2008 (effective 5/22/2008, as provided by § 4(b) of such Act, which appears as 7 USCS § 8701 note), in subsec. (a), substituted "Food for Peace Act" for "Agricultural Trade Development and Assistance Act of 1954".

Other provisions:

Ex. Or. No. 11911 revoked. Ex. Or. No. 11911 of Apr. 13, 1976, 41 Fed. Reg. 15683, which formerly appeared as a note to this section, was revoked by Ex. Or. No. 12608 of Sept. 9, 1987, § 1, 52 Fed. Reg. 34617. It provided that for purposes of the Convention on International Trade in Endangered Species of Wild Fauna and Flora the Secretary of the Interior be designated as the Management Authority and established the Endangered Species Scientific Authority as the Scientific Authority, with the Secretary of the Interior designated to act on behalf of the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.

Protection and conservation of sea turtles. Act Nov. 21, 1989, P.L. 101-162, Title IV, § 609, 103 Stat. 1037, provides:

"(a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect to those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987--

"(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles;

"(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles;

"(3) encourage such other agreements to promote the purposes of this section with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of such species of sea turtles;

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

"(5) provide to the Congress by not later than one year after the date of enactment of this section--

"(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of distribution of such sea turtles;

"(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely such species of sea turtles; and

"(C) a full report on--

"(i) the results of his efforts under this section; and

"(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.

"(b)

(1) In general. The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).

"(2) Certification procedure. The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that--

"(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

"(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

"(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.".

Delegation of authority regarding certification of countries exporting shrimp to the United States. Pres. Mem. of Dec. 19, 1990, 56 Fed. Reg. 357, provides: "By virtue of the authority vested in me by the Constitution and laws of the United States of America, including section 609 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990 (Public Law 101-162) [note to this section] and section 301 of title 3 of the United States Code, I hereby delegate to the Secretary of State the functions vested in me by section 609(b) of that Act [note to this section]. The authority delegated by this memorandum may be further redelegated within the Department of State.".
NOTES:
Research Guide:

Am Jur Proof of Facts:

35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.

Texts:

4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection §§ 24.03, 24.05.

5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.

Law Review Articles:

Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000.

Rosenberry. The effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982.

Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.

Interpretive Notes and Decisions:

1. Generally; export 2. Import 3. Practice and procedure

1. Generally; export

Guidelines of Endangered Species Scientific Authority are invalid and are to be set aside to extent they authorize finding that export of bobcats would not be detrimental to survival of species since such findings are not based upon reliable estimates of bobcat population and data showing total number of bobcats to be killed; Scientific Authority cannot make valid no-detriment finding without reliable estimate of number of bobcats and information concerning number of animals to be killed in particular season and if that material is not presently available, Scientific Authority must await its development before it authorizes export of bobcats. Defenders of Wildlife, Inc. v Endangered Species Scientific Authority (1981, App DC) 212 US App DC 122, 659 F2d 168, 20 Envt Rep Cas 1821, 9 Fed Rules Evid Serv 608, 11 ELR 20306, cert den (1981) 454 US 963, 70 L Ed 2d 378, 102 S Ct 503.

2. Import

Certification procedure specified in § 609(b) of Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1990 (Act Nov. 21, 1989, P.L. 101-162, Title VI, 103 Stat. 1037, codified as 16 USCS § 1537 note), which prohibits import of shrimp that have been harvested with fishing technology that may harm sea turtles, is not only way foreign nation may comply with statute; thus, federal government may permit import of individual shipments from uncertified countries if exporters represent that those particular shipments were caught without use of commercial fishing technology that may adversely affect those species of sea turtles protected by domestic law. Turtle Island Restoration Network v Evans (2002, CA FC) 284 F3d 1282, 55 Envt Rep Cas 1201, 23 BNA Intl Trade Rep 2217, 32 ELR 20571, reh den, reh, en banc, den (2002, CA FC) 299 F3d 1373, 24 BNA Intl Trade Rep 1540 and cert den (2003) 538 US 960, 155 L Ed 2d 511, 123 S Ct 1748, 57 Envt Rep Cas 1832, 25 BNA Intl Trade Rep 1128.

State Department officials are directed to prohibit, not later than May 1, 1996, importation of shrimp or products of shrimp wherever harvested in wild with commercial fishing technology which may affect adversely those species of sea turtles conservation of which are subject of regulations promulgated by Commerce Secretary on June 29, 1987, except as provided in 16 USCS § 1537 note, because officials are not properly enforcing statute by restricting its mandate to Gulf of Mexico--Caribbean Sea--western Atlantic Ocean. Earth Island Inst. v Christopher (1995) 19 CIT 1461, 913 F Supp 559, 42 Envt Rep Cas 1196, 17 BNA Intl Trade Rep 2534, app dismd (1996, CA FC) 86 F3d 1178, reported in full (1996, CA FC) 1996 US App LEXIS 14316.

Various federal agencies are directed to prohibit, not later than May 1, 1996, importation of shrimp or shrimp products wherever harvested in wild with commercial fishing technology which may affect adversely endangered species of sea turtles, despite request for additional one-year worldwide extension of time, because record shows that sea turtles continue to die on order of 340 every day by unsafe shrimping methods, and any further modification of date established by Congress in Appropriations Acts (16 USCS § 1537 note) must be made by Congress. Earth Island Inst. v Christopher (1996) 20 CIT 460, 922 F Supp 616, 18 BNA Intl Trade Rep 1469.

Federal officials may not allow entry into U.S. of any shrimp or shrimp products harvested in wild by citizens or vessels of nations which have not been certified in accordance with procedure enacted in 1991, where officials had proposed substantial revision of procedure and method for implementation of embargo of shrimp harvested in manner that does not adversely affect sea turtles, because environmental groups showed that revised enforcement approach undermines incentive for countries to become certified, thereby eviscerating goal of Congress in enacting procedure. Earth Island Inst. v Christopher (1996) 20 CIT 1221, 942 F Supp 597, 18 BNA Intl Trade Rep 2344, 27 ELR 20408.

Embargo enacted by Congress in Act Nov. 21, 1989, P.L. 101-162, Title IV, § 609, 103 Stat. 1037 (16 USCS § 1537 note) may not be enforced by Departments of State and Commerce, and their officials, employees, servants, sureties and assigns, in such manner as to allow entry into United States of any shrimp or products from shrimp harvested in wild by citizens or vessels of nations which have not been certified in accordance with § 609(b)(2). Earth Island Inst. v Christopher (1996) 20 CIT 1221, 942 F Supp 597, 18 BNA Intl Trade Rep 2344, 27 ELR 20408.

Shrimp shipments from China, Pakistan, Thailand, and India may continue to be imported, even though these countries have not yet been certified in accordance with "turtle law" (16 USCS § 1537 note), because sufficient proof exists that shrimp from these countries were caught manually or by other methods that do not endanger sea turtles. Earth Island Inst. v Christopher (1996) 20 CIT 1389, 948 F Supp 1062, 18 BNA Intl Trade Rep 2516, vacated, remanded on other grounds sub nom Earth Island Inst. v Albright (1998, CA FC) 147 F3d 1352, 20 BNA Intl Trade Rep 1193, 28 ELR 21421.

3. Practice and procedure

16 USCS § 1537(b) deals with subject within exclusive jurisdiction of Court of International Trade, while § 1537(a) deals with subject outside jurisdiction of any federal court; therefore, District Court has no jurisdiction over suit brought by environmental organization to enforce § 1537. Earth Island Inst. v Christopher (1993, CA9 Cal) 6 F3d 648, 93 CDOS 7332, 93 Daily Journal DAR 12513, 15 BNA Intl Trade Rep 2460, 23 ELR 21553.

Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim for alleged violation of 16 USCS § 1537 could not be brought under 16 USCS § 1540 (g)(1)(A) because hunters' allegation that agencies failed to cooperate with foreign nations' conservation programs alleged nothing more than maladministration of ESA, and adjudicating error on part of Secretary of Interior in administering ESA would effect wholesale abrogation of final agency action requirement under 5 USCS § 704 of Administrative Procedure Act. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.

Turtle protection organizations are denied attorney's fees and injunctive relief, even though they prevailed on threshold issue by showing that federal officials violated sea turtle protection statute by allowing import of some shrimp snagged by trawls equipped with turtle excluder devices (TEDs) through waters of nations not formally certified to Congress by State Department as utilizing only acceptable methods of shrimp harvesting, because, given myriad difficulties of imposing TED requirements on fishermen worldwide, court cannot conclude that government's position is not substantially justified. Turtle Island Restoration Network v Mallett (2000) 24 CIT 627, 110 F Supp 2d 1005, affd in part and revd in part on other grounds (2002, CA FC) 284 F3d 1282, 55 Envt Rep Cas 1201, 23 BNA Intl Trade Rep 2217, 32 ELR 20571, reh den, reh, en banc, den (2002, CA FC) 299 F3d 1373, 24 BNA Intl Trade Rep 1540 and cert den (2003) 538 US 960, 155 L Ed 2d 511, 123 S Ct 1748, 57 Envt Rep Cas 1832, 25 BNA Intl Trade Rep 1128.

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*** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 ***
TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

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16 USCS § 1537a
§ 1537a. Convention implementation
(a) Management Authority and Scientific Authority. The Secretary of the Interior (hereinafter in this section referred to as the "Secretary") is designated as the Management Authority and the Scientific Authority for purposes of the Convention and the respective functions of each such Authority shall be carried out through the United States Fish and Wildlife Service.

(b) Management Authority functions. The Secretary shall do all things necessary and appropriate to carry out the functions of the Management Authority under the Convention.

(c) Scientific Authority functions; determinations.

(1) The Secretary shall do all things necessary and appropriate to carry out the functions of the Scientific Authority under the Convention.

(2) The Secretary shall base the determinations and advice given by him under Article IV of the Convention with respect to wildlife upon the best available biological information derived from professionally accepted wildlife management practices; but is not required to make, or require any State to make, estimates of population size in making such determinations or giving such advice.

(d) Reservations by the United States under Convention. If the United States votes against including any species in Appendix I or II of the Convention and does not enter a reservation pursuant to paragraph (3) of Article XV of the Convention with respect to that species, the Secretary of State, before the 90th day after the last day on which such a reservation could be entered, shall submit to the Committee on Merchant Marine and Fisheries of the House of Representatives, and to the Committee on the Environment and Public Works of the Senate, a written report setting forth the reasons why such a reservation was not entered.

(e) Wildlife preservation in Western Hemisphere.

(1) The Secretary of the Interior (hereinafter in this subsection referred to as the "Secretary"), in cooperation with the Secretary of State, shall act on behalf of, and represent, the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this subsection referred to as the "Western Convention"). In the discharge of these responsibilities, the Secretary and the Secretary of State shall consult with the Secretary of Agriculture, the Secretary of Commerce, and the heads of other agencies with respect to matters relating to or affecting their areas of responsibility.

(2) The Secretary and the Secretary of State shall, in cooperation with the contracting parties to the Western Convention and, to the extent feasible and appropriate, with the participation of State agencies, take such steps as are necessary to implement the Western Convention. Such steps shall include, but not be limited to--

(A) cooperation with contracting parties and international organizations for the purpose of developing personnel resources and programs that will facilitate implementation of the Western Convention;

(B) identification of those species of birds that migrate between the United States and other contracting parties, and the habitats upon which those species depend, and the implementation of cooperative measures to ensure that such species will not become endangered or threatened; and

(C) identification of measures that are necessary and appropriate to implement those provisions of the Western Convention which address the protection of wild plants.

(3) No later than September 30, 1985, the Secretary and the Secretary of State shall submit a report to Congress describing those steps taken in accordance with the requirements of this subsection and identifying the principal remaining actions yet necessary for comprehensive and effective implementation of the Western Convention.

(4) The provisions of this subsection shall not be construed as affecting the authority, jurisdiction, or responsibility of the several States to manage, control, or regulate resident fish or wildlife under State law or regulations.

HISTORY:

(Dec. 28, 1973, P.L. 93-205, § 8A, as added Dec. 28, 1979, P.L. 96-159, § 6(a), 93 Stat. 1228; Oct. 13, 1982, P.L. 97-304, § 5 [(a)], 96 Stat. 1421.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:

With respect to the Committee on Merchant Marine and Fisheries of the House of Representatives, referred to in this section, § 1(b)(3) of Act June 3, 1995, P.L. 104-14, which appears as a note preceding 2 USCS § 21, provides that any reference to such Committee in any provision of law enacted before January 4, 1995, shall be treated as referring to (A) the Committee on Agriculture of the House of Representatives, in the case of a provision of law relating to inspection of seafood or seafood products, (B) the Committee on National Security of the House of Representatives, in the case of a provision of law relating to interoceanic canals, the Merchant Marine Academy and State Maritime Academies, or national security aspects of merchant marine, (C) the Committee on Resources of the House of Representatives, in the case of a provision of law relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography, (D) the Committee on Science of the House of Representatives, in the case of a provision of law relating to marine research, and (E) the Committee on Transportation and Infrastructure of the House of Representatives, in the case of a provision of law relating to a matter other than a matter described in any of subparagraphs (A) through (D).

Explanatory notes:

The bracketed designator "(a)" is inserted in the history line of this section to conform to the probable intent of Congress, inasmuch as Act Oct. 13, 1982, P.L. 97-304, § 5, 96 Stat. 1421, which amended this section, contained a subsec. (b), which appears as a note to this section but the provisions amending this section, preceding such subsec. (b), were not designated as subsec. (a).

Amendments:

1982. Act Oct. 13, 1982, in subsec. (c), designated existing matter as para. (1), and added para. (2).

Such Act further (effective upon enactment as provided by § 5(b) of such Act, which appears as a note to this section) substituted subsec. (d) for one which read:

"(1) There is hereby established the International Convention Advisory Commission (hereinafter in this section referred to as the 'Commission').

"(2) The Commission shall be composed of the following members:

"(A) One member appointed by each of the following Federal officers from his respective agency:

"(i) The Secretary.

"(ii) The Secretary of Agriculture.

"(iii) The Secretary of Commerce.

"(iv) The Director of the National Science Foundation.

"(v) The Chairman of the Council on Environmental Quality.

"(B) One member appointed by the Secretary from among officers and employees of the State agencies having fish and wildlife conservation and management responsibilities.

"(C) The Secretary of the Smithsonian Institution is invited to appoint a member.

"(3)

(A) Individuals who are appointed as members of the Commission under paragraph (2) must be scientifically qualified.

"(B) The term of office of a member of the Commission appointed under paragraph (2)(B) is two years and an individual may be appointed under such paragraph for any number of terms; except that an individual may not be appointed under that paragraph for a term that would be a third consecutive term for that individual under that paragraph.

"(C) While away from his home or regular place of business in the performance of services for the Commission, a member appointed under paragraph (2)(B) or (C) shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as the expenses authorized by section 5703(b) of title 5, United States Code, for persons in the Government service employed intermittently.

"(D) Members of the Commission who are full-time officers or employees of the United States shall receive no additional compensation on account of their service on the Commission.

"(4)

(A) The Commission shall elect a chairman from among its members. The term of office of the chairman is one year.

"(B) No recommendation referred to in paragraph (5) shall be deemed to be a recommendation of the Commission unless a majority of the members of the Commission vote for that recommendation.

"(5) The Commission shall make recommendations to the Secretary or his designee on all matters pertaining to the responsibilities of the Scientific Authority under the terms of the Convention. The Commission shall include with any such recommendation any written dissenting view made by any member.

"(6) In the discharge of its responsibilities, the Commission shall, to the extent practicable, ascertain the views of, and utilize the expertise of, the governmental and nongovernmental scientific communities, State agencies responsible for the conservation of wild fauna or flora, humane groups, zoological and botanical institutions, recreational and commercial interests, the conservation community and others as appropriate.

"(7) In any case in which the Scientific Authority decides not to accept a recommendation made by the Commission under paragraph (5), the Scientific Authority shall provide to the Commission a written explanation of the reasons for that decision and shall publish the explanation in the Federal Register.

"(8)

(A) The Chairman of the Commission, with the concurrence of the Commission, shall appoint an Executive Secretary for the Commission. The Executive Secretary shall carry out such duties and functions as shall be prescribed by the Commission, shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

"(B) The Secretary shall provide the necessary staff and administrative support for the Commission.".

Such Act further substituted subsec. (e) for one which read: "The President shall designate those agencies of the Federal Government that shall act on behalf of, and represent, the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.".

Other provisions: