§ 1362. — Definitions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1362]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER I--GENERALLY
Sec. 1362. Definitions
For the purposes of this chapter--
(1) The term ``depletion'' or ``depleted'' means any case in which--
(A) the Secretary, after consultation with the Marine Mammal
Commission and the Committee of Scientific Advisors on Marine
Mammals established under subchapter III of this chapter, determines
that a species or population stock is below its optimum sustainable
population;
(B) a State, to which authority for the conservation and
management of a species or population stock is transferred under
section 1379 of this title, determines that such species or stock is
below its optimum sustainable population; or
(C) a species or population stock is listed as an endangered
species or a threatened species under the Endangered Species Act of
1973 [16 U.S.C. 1531 et seq.].
(2) The terms ``conservation'' and ``management'' means the
collection and application of biological information for the purposes of
increasing and maintaining the number of animals within species and
populations of marine mammals at their optimum sustainable population.
Such terms include the entire scope of activities that constitute a
modern scientific resource program, including, but not limited to,
research, census, law enforcement, and habitat acquisition and
improvement. Also included within these terms, when and where
appropriate, is the periodic or total protection of species or
populations as well as regulated taking.
(3) The term ``district court of the United States'' includes the
District Court of Guam, District Court of the Virgin Islands, District
Court of Puerto Rico, District Court of the Canal Zone, and, in the case
of American Samoa and the Trust Territory of the Pacific Islands, the
District Court of the United States for the District of Hawaii.
(4) The term ``humane'' in the context of the taking of a marine
mammal means that method of taking which involves the least possible
degree of pain and suffering practicable to the mammal involved.
(5) The term ``intermediary nation'' means a nation that exports
yellowfin tuna or yellowfin tuna products to the United States and that
imports yellowfin tuna or yellowfin tuna products that are subject to a
direct ban on importation into the United States pursuant to section
1371(a)(2)(B) of this title.
(6) The term ``marine mammal'' means any mammal which (A) is
morphologically adapted to the marine environment (including sea otters
and members of the orders Sirenia, Pinnipedia and Cetacea), or (B)
primarily inhabits the marine environment (such as the polar bear); and,
for the purposes of this chapter, includes any part of any such marine
mammal, including its raw, dressed, or dyed fur or skin.
(7) The term ``marine mammal product'' means any item of merchandise
which consists, or is composed in whole or in part, of any marine
mammal.
(8) The term ``moratorium'' means a complete cessation of the taking
of marine mammals and a complete ban on the importation into the United
States of marine mammals and marine mammal products, except as provided
in this chapter.
(9) The term ``optimum sustainable population'' means, with respect
to any population stock, the number of animals which will result in the
maximum productivity of the population or the species, keeping in mind
the carrying capacity of the habitat and the health of the ecosystem of
which they form a constituent element.
(10) The term ``person'' includes (A) any private person or entity,
and (B) any officer, employee, agent, department, or instrumentality of
the Federal Government, of any State or political subdivision thereof,
or of any foreign government.
(11) The term ``population stock'' or ``stock'' means a group of
marine mammals of the same species or smaller taxa in a common spatial
arrangement, that interbreed when mature.
(12)(A) Except as provided in subparagraph (B), the term
``Secretary'' means--
(i) the Secretary of the department in which the National
Oceanic and Atmospheric Administration is operating, as to all
responsibility, authority, funding, and duties under this chapter
with respect to members of the order Cetacea and members, other than
walruses, of the order Pinnipedia, and
(ii) the Secretary of the Interior as to all responsibility,
authority, funding, and duties under this chapter with respect to
all other marine mammals covered by this chapter.
(B) in \1\ section 1387 of this title and subchapter V of this
chapter (other than section 1421f-1 of this title) the term
``Secretary'' means the Secretary of Commerce.
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\1\ So in original. Probably should be capitalized.
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(13) The term ``take'' means to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.
(14) The term ``United States'' includes the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands of the United States, American Samoa, Guam, and Northern Mariana
Islands.
(15) The term ``waters under the jurisdiction of the United States''
means--
(A) the territorial sea of the United States;
(B) the waters included within a zone, contiguous to the
territorial sea of the United States, of which the inner boundary is
a line coterminous with the seaward boundary of each coastal State,
and the other boundary is a line drawn in such a manner that each
point on it is 200 nautical miles from the baseline from which the
territorial sea is measured; and
(C) the areas referred to as eastern special areas in Article
3(1) of the Agreement between the United States of America and the
Union of Soviet Socialist Republics on the Maritime Boundary, signed
June 1, 1990; in particular, those areas east of the maritime
boundary, as defined in that Agreement, that lie within 200 nautical
miles of the baselines from which the breadth of the territorial sea
of Russia is measured but beyond 200 nautical miles of the baselines
from which the breadth of the territorial sea of the United States
is measured, except that this subparagraph shall not apply before
the date on which the Agreement between the United States and the
Union of Soviet Socialist Republics on the Maritime Boundary, signed
June 1, 1990, enters into force for the United States.
(16) 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.
(17) The term ``competent regional organization''--
(A) for the tuna fishery in the eastern tropical Pacific Ocean,
means the Inter-American Tropical Tuna Commission; and
(B) in any other case, means an organization consisting of those
nations participating in a tuna fishery, the purpose of which is the
conservation and management of that fishery and the management of
issues relating to that fishery.
(18)(A) The term ``harassment'' means any act of pursuit, torment,
or annoyance which--
(i) has the potential to injure a marine mammal or marine mammal
stock in the wild; or
(ii) has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering.
(B) The term ``Level A harassment'' means harassment described in
subparagraph (A)(i).
(C) The term ``Level B harassment'' means harassment described in
subparagraph (A)(ii).
(19) The term ``strategic stock'' means a marine mammal stock--
(A) for which the level of direct human-caused mortality exceeds
the potential biological removal level;
(B) which, based on the best available scientific information,
is declining and is likely to be listed as a threatened species
under the Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.]
within the foreseeable future; or
(C) which is listed as a threatened species or endangered
species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), or is designated as depleted under this chapter.
(20) The term ``potential biological removal level'' means the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population. The potential biological
removal level is the product of the following factors:
(A) The minimum population estimate of the stock.
(B) One-half the maximum theoretical or estimated net
productivity rate of the stock at a small population size.
(C) A recovery factor of between 0.1 and 1.0.
(21) The term ``Regional Fishery Management Council'' means a
Regional Fishery Management Council established under section 1852 of
this title.
(22) The term ``bona fide research'' means scientific research on
marine mammals, the results of which--
(A) likely would be accepted for publication in a referred
scientific journal;
(B) are likely to contribute to the basic knowledge of marine
mammal biology or ecology; or
(C) are likely to identify, evaluate, or resolve conservation
problems.
(23) The term ``Alaska Native organization'' means a group
designated by law or formally chartered which represents or consists of
Indians, Aleuts, or Eskimos residing in Alaska.
(24) The term ``take reduction plan'' means a plan developed under
section 1387 of this title.
(25) The term ``take reduction team'' means a team established under
section 1387 of this title.
(26) The term ``net productivity rate'' means the annual per capita
rate of increase in a stock resulting from additions due to
reproduction, less losses due to mortality.
(27) The term ``minimum population estimate'' means an estimate of
the number of animals in a stock that--
(A) is based on the best available scientific information on
abundance, incorporating the precision and variability associated
with such information; and
(B) provides reasonable assurance that the stock size is equal
to or greater than the estimate.
(28) The term ``International Dolphin Conservation Program'' means
the international program established by the agreement signed in
LaJolla, California, in June, 1992, as formalized, modified, and
enhanced in accordance with the Declaration of Panama.
(29) The term ``Declaration of Panama'' means the declaration signed
in Panama City, Republic of Panama, on October 4, 1995.
(Pub. L. 92-522, Sec. 3, Oct. 21, 1972, 86 Stat. 1028; Pub. L. 93-205,
Sec. 13(e)(1), Dec. 28, 1973, 87 Stat. 903; Pub. L. 94-265, title IV,
Sec. 404(a), Apr. 13, 1976, 90 Stat. 360; Pub. L. 97-58, Sec. 1(a),
(b)(2), Oct. 9, 1981, 95 Stat. 979; Pub. L. 102-251, title III,
Sec. 304, Mar. 9, 1992, 106 Stat. 65; Pub. L. 102-523, Sec. 2(c), Oct.
26, 1992, 106 Stat. 3432; Pub. L. 102-582, title IV, Sec. 401(a), Nov.
2, 1992, 106 Stat. 4909; Pub. L. 102-587, title III, Sec. 3004(b), Nov.
4, 1992, 106 Stat. 5067; Pub. L. 103-238, Secs. 12, 16(a), 24(a)(2),
Apr. 30, 1994, 108 Stat. 557, 559, 565; Pub. L. 104-208, div. A, title
I, Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009,
3009-41; Pub. L. 104-297, title IV, Sec. 405(b)(2), (3), Oct. 11, 1996,
110 Stat. 3621; Pub. L. 105-42, Sec. 3, Aug. 15, 1997, 111 Stat. 1123;
Pub. L. 106-555, title II, Sec. 202(b), Dec. 21, 2000, 114 Stat. 2768.)
References in Text
The Endangered Species Act of 1973, referred to in pars. (1)(C) and
(19)(B), (C), is Pub. L. 93-205, Dec. 28, 1973, 87 Stat. 884, as
amended, which is classified generally to chapter 35 (Sec. 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.
Amendments
2000--Par. (12)(B). Pub. L. 106-555 inserted ``(other than section
1421f-1 of this title)'' after ``subchapter V of this chapter''.
1997--Pars. (28), (29). Pub. L. 105-42 added pars. (28) and (29).
1996--Par. (15). Pub. L. 104-297, Sec. 405(b)(2), repealed Pub. L.
102-251, Sec. 304. See 1992 Amendment note below.
Pub. L. 104-297, Sec. 404(b)(3), amended par. (15) generally. Prior
to amendment, par. (15) read as follows: ``The term `waters under the
jurisdiction of the United States' means--
``(A) the territorial sea of the United States, and
``(B) the waters included within a zone, contiguous to the
territorial sea of the United States, of which the inner boundary is
a line coterminous with the seaward boundary of each coastal State,
and the outer boundary is a line drawn in such a manner that each
point on it is 200 nautical miles from the baseline from which the
territorial sea is measured.''
Par. (21). Pub. L. 104-208 made technical amendment to reference in
original act which appears in text as reference to section 1852 of this
title.
1994--Par. (12)(B). Pub. L. 103-238, Sec. 24(a)(2), substituted ``in
section 1387 of this title and subchapter V of this chapter'' for ``in
subchapter V of this chapter''.
Pars. (15) to (17). Pub. L. 103-238, Sec. 16(a), redesignated par.
(15) defining ``fishery'', and par. (16), as pars. (16) and (17),
respectively, and struck out former par. (17) which defined
``intermediary nation''.
Pars. (18) to (27). Pub. L. 103-238, Sec. 12, added pars. (18) to
(27).
1992--Pars. (5) to (11). Pub. L. 102-582 added par. (5) and
redesignated former pars. (5) to (10) as (6) to (11), respectively.
Par. (12). Pub. L. 102-587 substituted ``(A) Except as provided in
subparagraph (B), the term'' for ``The term'', redesignated former
subpars. (A) and (B) as cls. (i) and (ii), respectively, and added
subpar. (B). See Construction of Amendment by Pub. L. 102-587 note
below.
Pub. L. 102-582 redesignated par. (11) as (12). Former par. (12)
redesignated (13).
Pars. (13), (14). Pub. L. 102-582 redesignated pars. (12) and (13)
as (13) and (14), respectively. Former par. (14) redesignated (15).
Par. (15). Pub. L. 102-582 redesignated par. (14), defining waters
under the jurisdiction of the United States, as (15).
Pub. L. 102-523 added par. (15) defining fishery.
Pub. L. 102-251, Sec. 304, which directed the general amendment of
par. (15) by reenacting the introductory provisions and subpars. (A) and
(B) without substantial change and adding subpar. (C) which read ``the
areas referred to as eastern special areas in Article 3(1) of the
Agreement between the United States of America and the Union of Soviet
Socialist Republics on the Maritime Boundary, signed June 1, 1990; in
particular, those areas east of the maritime boundary, as defined in
that Agreement, that lie within 200 nautical miles of the baselines from
which the breadth of the territorial sea of Russia is measured but
beyond 200 nautical miles of the baselines from which the breadth of the
territorial sea of the United States is measured.'', was repealed by
Pub. L. 104-297, Sec. 405(b)(2).
Pars. (16), (17). Pub. L. 102-523 added pars. (16) and (17).
1981--Par. (1). Pub. L. 97-58, Sec. 1(b)(2)(A), substituted a single
management standard, that is, the maintenance of species at their
optimum sustainable population, for the former management standard which
had included the decline of a species or population stock that had
declined to a significant degree over a period of years, the decline of
a species or population stock which, if continued or resumed, would
place the species or stock within the provisions of the Endangered
Species Act of 1973, and a species or population stock that was below
the optimum carrying capacity for the species or stock within its
environment.
Par. (2). Pub. L. 97-58, Sec. 1(b)(2)(B), substituted ``their
optimum sustainable population'' for ``the optimum carrying capacity of
their habitat''.
Par. (8). Pub. L. 97-58, Sec. 1(a), (b)(2)(C), (D), redesignated
par. (9) as (8) and substituted ``carrying capacity'' for ``optimum
carrying capacity''. Former par. (8), which defined ``optimum carrying
capacity'' was struck out.
Pars. (9) to (12). Pub. L. 97-58, Sec. 1(b)(2)(C), redesignated
pars. (9) to (13) as (8) to (12), respectively.
Par. (13). Pub. L. 97-58, Sec. 1(b)(2)(C), (E), redesignated par.
(14) as (13) and substituted ``the Virgin Islands of the United States,
American Samoa, Guam, and Northern Mariana Islands'' for ``the Canal
Zone, the possessions of the United States, and the Trust Territory of
the Pacific Islands''. Former par. (13) redesignated (12).
Pars. (14), (15). Pub. L. 97-58, Sec. 1(b)(2)(C), redesignated pars.
(14) and (15) as (13) and (14), respectively.
1976--Par. (15)(B). Pub. L. 94-265 substituted ``the waters included
within a zone, contiguous to the territorial sea of the United States,
of which the inner boundary is a line coterminous with the seaward
boundary of each coastal State, and the outer boundary is a line drawn
in such a manner that each point on it is 200 nautical miles from the
baseline from which the territorial sea is measured'' for ``the
fisheries zone established pursuant to the Act of October 14, 1966''.
1973--Par. (1)(B). Pub. L. 93-205 substituted ``Endangered Species
Act of 1973'' for ``Endangered Species Conservation Act of 1969''.
Effective Date of 1997 Amendment
Section 8 of Pub. L. 105-42 provided that:
``(a) Amendments to Take Effect When IDCP in Force.--Sections 3
through 7 of this Act [enacting sections 962, 1412, 1413, 1414a to 1416
of this title, amending sections 952, 953, 1362, 1371, 1374, 1378, 1380,
1385, 1411, and 1417 of this title, and repealing sections 1412 to 1416
and 1418 of this title] (except for section 304 of the Marine Mammal
Protection Act of 1972 as added by section 6 of this Act [section 1414a
of this title]) shall become effective upon--
``(1) certification by the Secretary of Commerce that--
``(A) sufficient funding is available to complete the first
year of the study required under section 304(a) of the Marine
Mammal Protection Act of 1972, as so added; and
``(B) the study has commenced; and
``(2) certification by the Secretary of State to Congress that a
binding resolution of the Inter-American Tropical Tuna Commission or
other legally binding instrument establishing the International
Dolphin Conservation Program has been adopted and is in force.
``(b) Special Effective Date.--Notwithstanding subsection (a), the
Secretary of Commerce may issue regulations under--
``(1) subsection (f)(2) of the Dolphin Protection Consumer
Information Act (16 U.S.C. 1385(f)(2)), as added by section 5(b) of
this Act;
``(2) section 303(a) of the Marine Mammal Protection Act of 1972
(16 U.S.C. 1413(a)), as added by section 6(c) of this Act,
at any time after the date of enactment of this Act [Aug. 15, 1997].''
[The Secretary of Commerce made the certification referred to in
section 8(a)(1) of Pub. L. 105-42, set out above, on July 27, 1998, and
the Secretary of State made the certification referred to in section
8(a)(2) of Pub. L. 105-42 on Mar. 3, 1999.]
Effective Date of 1996 Amendment
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208
provided that the amendment made by that section is effective 15 days
after Oct. 11, 1996.
Effective Date of 1994 Amendment
Section 24(e) of Pub. L. 103-238 provided that: ``The amendments
made by subsection (a) [amending this section] shall be effective as if
enacted as part of section 3004 of the Marine Mammal Health and
Stranding Response Act (106 Stat. 5067) [Pub. L. 102-587].''
Effective Date of 1992 Amendment
Amendment by Pub. L. 102-251 effective on date on which Agreement
between United States and Union of Soviet Socialist Republics on the
Maritime Boundary, signed June 1, 1990, enters into force for United
States, with authority to prescribe implementing regulations effective
Mar. 9, 1992, but with no such regulation to be effective until date on
which Agreement enters into force for United States, see section 308 of
Pub. L. 102-251, set out as a note under section 773 of this title.
Effective Date of 1976 Amendment
Section 404(b) of Pub. L. 94-265 provided that the amendment made by
section 404(a) of Pub. L. 94-265 to this section was to take effect Mar.
1, 1977, prior to the general amendment of title IV of Pub. L. 94-265 by
Pub. L. 104-297.
Effective Date of 1973 Amendment
Amendment by Pub. L. 93-205 effective Dec. 28, 1973, see section 16
of Pub. L. 93-205, set out as an Effective Date note under section 1531
of this title.
Construction of Amendment by Pub. L. 102-587
Section 24(a)(1) of Pub. L. 103-238 provided that: ``The amendments
set forth in section 3004(b) of the Marine Mammal Health and Stranding
Response Act (106 Stat. 5067) [Pub. L. 102-587, amending this section]--
``(A) are deemed to have been made by that section to section
3(12) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1362(12)); and
``(B) shall not be considered to have been made by that section
to section 3(11) of that Act (16 U.S.C. 1362(11)).''
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note
set out preceding section 1681 of Title 48, Territories and Insular
Possessions.
Termination of United States District Court for the District of the
Canal Zone
For termination of the United States District Court for the District
of the Canal Zone at end of the ``transition period'', being the 30-
month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982,
see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and
sections 2101 and 2201 to 2203 of Pub. L. 96-70, title II, Sept. 27,
1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to
3843, respectively, of Title 22, Foreign Relations and Intercourse.
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, to terminate not
later than the expiration of the 2-year period following Jan. 5, 1973,
unless, in the case of a committee established by the President or an
officer of the Federal Government, such committee is renewed by
appropriate action prior to the expiration of such 2-year period, or in
the case of a committee established by the Congress, its duration is
otherwise provided by law. See section 14 of Pub. L. 92-463, Oct. 6,
1972, 86 Stat. 776, set out in the Appendix to Title 5, Government
Organization and Employees.
Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United
States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as
notes under section 1331 of Title 43, Public Lands.
Section Referred to in Other Sections
This section is referred to in sections 1379, 1421f-1, 2404, 2902,
3743 of this title.
