§ 1371. — Moratorium on taking and importing marine mammals and marine mammal products.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1371]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 1371. Moratorium on taking and importing marine mammals and
marine mammal products
(a) Imposition; exceptions
There shall be a moratorium on the taking and importation of marine
mammals and marine mammal products, commencing on the effective date of
this chapter, during which time no permit may be issued for the taking
of any marine mammal and no marine mammal or marine mammal product may
be imported into the United States except in the following cases:
(1) Consistent with the provisions of section 1374 of this
title, permits may be issued by the Secretary for taking, and
importation for purposes of scientific research, public display,
photography for educational or commercial purposes, or enhancing the
survival or recovery of a species or stock, or for importation of
polar bear parts (other than internal organs) taken in sport hunts
in Canada. Such permits, except permits issued under section
1374(c)(5) of this title, may be issued if the taking or importation
proposed to be made is first reviewed by the Marine Mammal
Commission and the Committee of Scientific Advisors on Marine
Mammals established under subchapter III of this chapter. The
Commission and Committee shall recommend any proposed taking or
importation, other than importation under section 1374(c)(5) of this
title, which is consistent with the purposes and policies of section
1361 of this title. If the Secretary issues such a permit for
importation, the Secretary shall issue to the importer concerned a
certificate to that effect in such form as the Secretary of the
Treasury prescribes, and such importation may be made upon
presentation of the certificate to the customs officer concerned.
(2) Marine mammals may be taken incidentally in the course of
commercial fishing operations and permits may be issued therefor
under section 1374 of this title subject to regulations prescribed
by the Secretary in accordance with section 1373 of this title, or
in lieu of such permits, authorizations may be granted therefor
under section 1387 of this title, subject to regulations prescribed
under that section by the Secretary without regard to section 1373
of this title. Such authorizations may be granted under subchapter
IV of this chapter with respect to purse seine fishing for yellowfin
tuna in the eastern tropical Pacific Ocean, subject to regulations
prescribed under that subchapter by the Secretary without regard to
section 1373 of this title. In any event it shall be the immediate
goal that the incidental kill or incidental serious injury of marine
mammals permitted in the course of commercial fishing operations be
reduced to insignificant levels approaching a zero mortality and
serious injury rate. The Secretary of the Treasury shall ban the
importation of commercial fish or products from fish which have been
caught with commercial fishing technology which results in the
incidental kill or incidental serious injury of ocean mammals in
excess of United States standards. For purposes of applying the
preceding sentence, the Secretary--
(A) shall insist on reasonable proof from the government of
any nation from which fish or fish products will be exported to
the United States of the effects on ocean mammals of the
commercial fishing technology in use for such fish or fish
products exported from such nation to the United States;
(B) in the case of yellowfin tuna harvested with purse seine
nets in the eastern tropical Pacific Ocean, and products
therefrom, to be exported to the United States, shall require
that the government of the exporting nation provide documentary
evidence that--
(i)(I) the tuna or products therefrom were not banned
from importation under this paragraph before the effective
date of section 4 of the International Dolphin Conservation
Program Act; or
(II) the tuna or products therefrom were harvested after
the effective date of section 4 of the International Dolphin
Conservation Program Act by vessels of a nation which
participates in the International Dolphin Conservation
Program, and such harvesting nation is either a member of
the Inter-American Tropical Tuna Commission or has initiated
(and within 6 months thereafter completed) all steps
required of applicant nations, in accordance with article V,
paragraph 3 of the Convention establishing the Inter-
American Tropical Tuna Commission, to become a member of
that organization;
(ii) such nation is meeting the obligations of the
International Dolphin Conservation Program and the
obligations of membership in the Inter-American Tropical
Tuna Commission, including all financial obligations; and
(iii) the total dolphin mortality limits, and per-stock
per-year dolphin mortality limits permitted for that
nation's vessels under the International Dolphin
Conservation Program do not exceed the limits determined for
1997, or for any year thereafter, consistent with the
objective of progressively reducing dolphin mortality to a
level approaching zero through the setting of annual limits
and the goal of eliminating dolphin mortality, and
requirements of the International Dolphin Conservation
Program;
(C) shall not accept such documentary evidence if--
(i) the government of the harvesting nation does not
provide directly or authorize the Inter-American Tropical
Tuna Commission to release complete and accurate information
to the Secretary in a timely manner--
(I) to allow determination of compliance with the
International Dolphin Conservation Program; and
(II) for the purposes of tracking and verifying
compliance with the minimum requirements established by
the Secretary in regulations promulgated under section
1385(f) of this title; or
(ii) after taking into consideration such information,
findings of the Inter-American Tropical Tuna Commission, and
any other relevant information, including information that a
nation is consistently failing to take enforcement actions
on violations which diminish the effectiveness of the
International Dolphin Conservation Program, the Secretary,
in consultation with the Secretary of State, finds that the
harvesting nation is not in compliance with the
International Dolphin Conservation Program.
(D) shall require the government of any intermediary nation
to certify and provide reasonable proof to the Secretary that it
has not imported, within the preceding six months, any yellowfin
tuna or yellowfin tuna products that are subject to a direct ban
on importation to the United States under subparagraph (B);
(E) shall, six months after importation of yellowfin tuna or
tuna products has been banned under this section, certify such
fact to the President, which certification shall be deemed to be
a certification for the purposes of section 1978(a) of title 22
for as long as such ban is in effect; and
(F)(i) except as provided in clause (ii), in the case of
fish or products containing fish harvested by a nation whose
fishing vessels engage in high seas driftnet fishing, shall
require that the government of the exporting nation provide
documentary evidence that the fish or fish product was not
harvested with a large-scale driftnet in the South Pacific Ocean
after July 1, 1991, or in any other water of the high seas after
January 1, 1993, and
(ii) in the case of tuna or a product containing tuna
harvested by a nation whose fishing vessels engage in high seas
driftnet fishing, shall require that the government of the
exporting nation provide documentary evidence that the tuna or
tuna product was not harvested with a large-scale driftnet
anywhere on the high seas after July 1, 1991.
For purposes of subparagraph (F), the term ``driftnet'' has the
meaning given such term in section 4003 of the Driftnet Impact
Monitoring, Assessment, and Control Act of 1987 (16 U.S.C. 1822
note), except that, until January 1, 1994, the term ``driftnet''
does not include the use in the northeast Atlantic Ocean of gillnets
with a total length not to exceed five kilometers if the use is in
accordance with regulations adopted by the European Community
pursuant to the October 28, 1991, decision by the Council of
Fisheries Ministers of the Community.
(3)(A) The Secretary, on the basis of the best scientific
evidence available and in consultation with the Marine Mammal
Commission, is authorized and directed, from time to time, having
due regard to the distribution, abundance, breeding habits, and
times and lines of migratory movements of such marine mammals, to
determine when, to what extent, if at all, and by what means, it is
compatible with this chapter to waive the requirements of this
section so as to allow taking, or importing of any marine mammal, or
any marine mammal product, and to adopt suitable regulations, issue
permits, and make determinations in accordance with sections 1372,
1373, 1374, and 1381 of this title permitting and governing such
taking and importing, in accordance with such determinations:
Provided, however, That the Secretary, in making such determinations
must be assured that the taking of such marine mammal is in accord
with sound principles of resource protection and conservation as
provided in the purposes and policies of this chapter: Provided,
further, however, That no marine mammal or no marine mammal product
may be imported into the United States unless the Secretary
certifies that the program for taking marine mammals in the country
of origin is consistent with the provisions and policies of this
chapter. Products of nations not so certified may not be imported
into the United States for any purpose, including processing for
exportation.
(B) Except for scientific research purposes, photography for
educational or commercial purposes, or enhancing the survival or
recovery of a species or stock as provided for in paragraph (1) of
this subsection, or as provided for under paragraph (5) of this
subsection, during the moratorium no permit may be issued for the
taking of any marine mammal which has been designated by the
Secretary as depleted, and no importation may be made of any such
mammal.
(4)(A) Except as provided in subparagraphs (B) and (C), the
provisions of this chapter shall not apply to the use of measures--
(i) by the owner of fishing gear or catch, or an employee or
agent of such owner, to deter a marine mammal from damaging the
gear or catch;
(ii) by the owner of other private property, or an agent,
bailee, or employee of such owner, to deter a marine mammal from
damaging private property;
(iii) by any person, to deter a marine mammal from
endangering personal safety; or
(iv) by a government employee, to deter a marine mammal from
damaging public property,
so long as such measures do not result in the death or serious
injury of a marine mammal.
(B) The Secretary shall, through consultation with appropriate
experts, and after notice and opportunity for public comment,
publish in the Federal Register a list of guidelines for use in
safely deterring marine mammals. In the case of marine mammals
listed as endangered species or threatened species under the
Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.], the
Secretary shall recommend specific measures which may be used to
nonlethally deter marine mammals. Actions to deter marine mammals
consistent with such guidelines or specific measures shall not be a
violation of this chapter.
(C) If the Secretary determines, using the best scientific
information available, that certain forms of deterrence have a
significant adverse effect on marine mammals, the Secretary may
prohibit such deterrent methods, after notice and opportunity for
public comment, through regulation under this chapter.
(D) The authority to deter marine mammals pursuant to
subparagraph (A) applies to all marine mammals, including all stocks
designated as depleted under this chapter.
(5)(A) Upon request therefor by citizens of the United States
who engage in a specified activity (other than commercial fishing)
within a specified geographical region, the Secretary shall allow,
during periods of not more than five consecutive years each, the
incidental, but not intentional, taking by citizens while engaging
in that activity within that region of small numbers of marine
mammals of a species or population stock if the Secretary, after
notice (in the Federal Register and in newspapers of general
circulation, and through appropriate electronic media, in the
coastal areas that may be affected by such activity) and opportunity
for public comment--
(i) finds that the total of such taking during each five-
year (or less) period concerned will have a negligible impact on
such species or stock and will not have an unmitigable adverse
impact on the availability of such species or stock for taking
for subsistence uses pursuant to subsection (b) of this section
or section 1379(f) of this title or, in the case of a
cooperative agreement under both this chapter and the Whaling
Convention Act of 1949 (16 U.S.C. 916 et seq.), pursuant to
section 1382(c) of this title; and
(ii) prescribes regulations setting forth--
(I) permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable
adverse impact on such species or stock and its habitat,
paying particular attention to rookeries, mating grounds,
and areas of similar significance, and on the availability
of such species or stock for subsistence uses; and
(II) requirements pertaining to the monitoring and
reporting of such taking.
(B) The Secretary shall withdraw, or suspend for a time certain
(either on an individual or class basis, as appropriate) the
permission to take marine mammals under subparagraph (A) pursuant to
a specified activity within a specified geographical region if the
Secretary finds, after notice and opportunity for public comment (as
required under subparagraph (A) unless subparagraph (C)(i) applies),
that--
(i) the regulations prescribed under subparagraph (A)
regarding methods of taking, monitoring, or reporting are not
being substantially complied with by a person engaging in such
activity; or
(ii) the taking allowed under subparagraph (A) pursuant to
one or more activities within one or more regions is having, or
may have, more than a negligible impact on the species or stock
concerned.
(C)(i) The requirement for notice and opportunity for public
comment in subparagraph (B) shall not apply in the case of a
suspension of permission to take if the Secretary determines that an
emergency exists which poses a significant risk to the well-being of
the species or stock concerned.
(ii) Sections 1373 and 1374 of this title shall not apply to the
taking of marine mammals under the authority of this paragraph.
(D)(i) Upon request therefor by citizens of the United States
who engage in a specified activity (other than commercial fishing)
within a specific geographic region, the Secretary shall authorize,
for periods of not more than 1 year, subject to such conditions as
the Secretary may specify, the incidental, but not intentional,
taking by harassment of small numbers of marine mammals of a species
or population stock by such citizens while engaging in that activity
within that region if the Secretary finds that such harassment
during each period concerned--
(I) will have a negligible impact on such species or stock,
and
(II) will not have an unmitigable adverse impact on the
availability of such species or stock for taking for subsistence
uses pursuant to subsection (b) of this section, or section
1379(f) of this title or pursuant to a cooperative agreement
under section 1388 of this title.
(ii) The authorization for such activity shall prescribe, where
applicable--
(I) permissible methods of taking by harassment pursuant to
such activity, and other means of effecting the least
practicable impact on such species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such
species or stock for taking for subsistence uses pursuant to
subsection (b) of this section or section 1379(f) of this title
or pursuant to a cooperative agreement under section 1388 of
this title,
(II) the measures that the Secretary determines are
necessary to ensure no unmitigable adverse impact on the
availability of the species or stock for taking for subsistence
uses pursuant to subsection (b) of this section or section
1379(f) of this title or pursuant to a cooperative agreement
under section 1388 of this title, and
(III) requirements pertaining to the monitoring and
reporting of such taking by harassment, including requirements
for the independent peer review of proposed monitoring plans or
other research proposals where the proposed activity may affect
the availability of a species or stock for taking for
subsistence uses pursuant to subsection (b) of this section or
section 1379(f) of this title or pursuant to a cooperative
agreement under section 1388 of this title.
(iii) The Secretary shall publish a proposed authorization not
later than 45 days after receiving an application under this
subparagraph and request public comment through notice in the
Federal Register, newspapers of general circulation, and appropriate
electronic media and to all locally affected communities for a
period of 30 days after publication. Not later than 45 days after
the close of the public comment period, if the Secretary makes the
findings set forth in clause (i), the Secretary shall issue an
authorization with appropriate conditions to meet the requirements
of clause (ii).
(iv) The Secretary shall modify, suspend, or revoke an
authorization if the Secretary finds that the provisions of clauses
(i) or (ii) are not being met.
(v) A person conducting an activity for which an authorization
has been granted under this subparagraph shall not be subject to the
penalties of this chapter for taking by harassment that occurs in
compliance with such authorization.
(E)(i) During any period of up to 3 consecutive years, the
Secretary shall allow the incidental, but not the intentional,
taking by persons using vessels of the United States or vessels
which have valid fishing permits issued by the Secretary in
accordance with section 1824(b) of this title, while engaging in
commercial fishing operations, of marine mammals from a species or
stock designated as depleted because of its listing as an endangered
species or threatened species under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) if the Secretary, after notice and
opportunity for public comment, determines that--
(I) the incidental mortality and serious injury from
commercial fisheries will have a negligible impact on such
species or stock;
(II) a recovery plan has been developed or is being
developed for such species or stock pursuant to the Endangered
Species Act of 1973; and
(III) where required under section 1387 of this title, a
monitoring program is established under subsection (d) of such
section, vessels engaged in such fisheries are registered in
accordance with such section, and a take reduction plan has been
developed or is being developed for such species or stock.
(ii) Upon a determination by the Secretary that the requirements
of clause (i) have been met, the Secretary shall publish in the
Federal Register a list of those fisheries for which such
determination was made, and, for vessels required to register under
section 1387 of this title, shall issue an appropriate permit for
each authorization granted under such section to vessels to which
this paragraph applies. Vessels engaged in a fishery included in the
notice published by the Secretary under this clause which are not
required to register under section 1387 of this title shall not be
subject to the penalties of this chapter for the incidental taking
of marine mammals to which this paragraph applies, so long as the
owner or master of such vessel reports any incidental mortality or
injury of such marine mammals to the Secretary in accordance with
section 1387 of this title.
(iii) If, during the course of the commercial fishing season,
the Secretary determines that the level of incidental mortality or
serious injury from commercial fisheries for which a determination
was made under clause (i) has resulted or is likely to result in an
impact that is more than negligible on the endangered or threatened
species or stock, the Secretary shall use the emergency authority
granted under section 1387 of this title to protect such species or
stock, and may modify any permit granted under this paragraph as
necessary.
(iv) The Secretary may suspend for a time certain or revoke a
permit granted under this subparagraph only if the Secretary
determines that the conditions or limitations set forth in such
permit are not being complied with. The Secretary may amend or
modify, after notice and opportunity for public comment, the list of
fisheries published under clause (ii) whenever the Secretary
determines there has been a significant change in the information or
conditions used to determine such list.
(v) Sections 1373 and 1374 of this title shall not apply to the
taking of marine mammals under the authority of this subparagraph.
(vi) This subparagraph shall not govern the incidental taking of
California sea otters and shall not be deemed to amend or repeal the
Act of November 7, 1986 (Public Law 99-625; 100 Stat. 3500).
(6)(A) A marine mammal product may be imported into the United
States if the product--
(i) was legally possessed and exported by any citizen of the
United States in conjunction with travel outside the United
States, provided that the product is imported into the United
States by the same person upon the termination of travel;
(ii) was acquired outside of the United States as part of a
cultural exchange by an Indian, Aleut, or Eskimo residing in
Alaska; or
(iii) is owned by a Native inhabitant of Russia, Canada, or
Greenland and is imported for noncommercial purposes in
conjunction with travel within the United States or as part of a
cultural exchange with an Indian, Aleut, or Eskimo residing in
Alaska.
(B) For the purposes of this paragraph, the term--
(i) ``Native inhabitant of Russia, Canada, or Greenland''
means a person residing in Russia, Canada, or Greenland who is
related by blood, is a member of the same clan or ethnological
grouping, or shares a common heritage with an Indian, Aleut, or
Eskimo residing in Alaska; and
(ii) ``cultural exchange'' means the sharing or exchange of
ideas, information, gifts, clothing, or handicrafts between an
Indian, Aleut, or Eskimo residing in Alaska and a Native
inhabitant of Russia, Canada, or Greenland, including rendering
of raw marine mammal parts as part of such exchange into
clothing or handicrafts through carving, painting, sewing, or
decorating.
(b) Exemptions for Alaskan natives
Except as provided in section 1379 of this title, the provisions of
this chapter shall not apply with respect to the taking of any marine
mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who
dwells on the coast of the North Pacific Ocean or the Arctic Ocean if
such taking--
(1) is for subsistence purposes; or
(2) is done for purposes of creating and selling authentic
native articles of handicrafts and clothing: Provided, That only
authentic native articles of handicrafts and clothing may be sold in
interstate commerce: And provided further, That any edible portion
of marine mammals may be sold in native villages and towns in Alaska
or for native consumption. For the purposes of this subsection, the
term ``authentic native articles of handicrafts and clothing'' means
items composed wholly or in some significant respect of natural
materials, and which are produced, decorated, or fashioned in the
exercise of traditional native handicrafts without the use of
pantographs, multiple carvers, or other mass copying devices.
Traditional native handicrafts include, but are not limited to
weaving, carving, stitching, sewing, lacing, beading, drawing and
painting; and
(3) in each case, is not accomplished in a wasteful manner.
Notwithstanding the preceding provisions of this subsection, when, under
this chapter, the Secretary determines any species or stock of marine
mammal subject to taking by Indians, Aleuts, or Eskimos to be depleted,
he may prescribe regulations upon the taking of such marine mammals by
any Indian, Aleut, or Eskimo described in this subsection. Such
regulations may be established with reference to species or stocks,
geographical description of the area included, the season for taking, or
any other factors related to the reason for establishing such
regulations and consistent with the purposes of this chapter. Such
regulations shall be prescribed after notice and hearing required by
section 1373 of this title and shall be removed as soon as the Secretary
determines that the need for their imposition has disappeared. In
promulgating any regulation or making any assessment pursuant to a
hearing or proceeding under this subsection or section 1386(b)(2) of
this title, or in making any determination of depletion under this
subsection or finding regarding unmitigable adverse impacts under
subsection (a)(5) of this section that affects stocks or persons to
which this subsection applies, the Secretary shall be responsible for
demonstrating that such regulation, assessment, determination, or
finding is supported by substantial evidence on the basis of the record
as a whole. The preceding sentence shall only be applicable in an action
brought by one or more Alaska Native organizations representing persons
to which this subsection applies.
(c) Taking in defense of self or others
It shall not be a violation of this chapter to take a marine mammal
if such taking is imminently necessary in self-defense or to save the
life of a person in immediate danger, and such taking is reported to the
Secretary within 48 hours. The Secretary may seize and dispose of any
carcass.
(d) Good Samaritan exemption
It shall not be a violation of this chapter to take a marine mammal
if--
(1) such taking is imminently necessary to avoid serious injury,
additional injury, or death to a marine mammal entangled in fishing
gear or debris;
(2) reasonable care is taken to ensure the safe release of the
marine mammal, taking into consideration the equipment, expertise,
and conditions at hand;
(3) reasonable care is exercised to prevent any further injury
to the marine mammal; and
(4) such taking is reported to the Secretary within 48 hours.
(e) Chapter not to apply to incidental takings by United States citizens
employed on foreign vessels outside United States EEZ
The provisions of this chapter shall not apply to a citizen of the
United States who incidentally takes any marine mammal during fishing
operations outside the United States exclusive economic zone (as defined
in section 1802 of this title) when employed on a foreign fishing vessel
of a harvesting nation which is in compliance with the International
Dolphin Conservation Program.
(Pub. L. 92-522, title I, Sec. 101, Oct. 21, 1972, 86 Stat. 1029; Pub.
L. 93-205, Sec. 13(e)(2), Dec. 28, 1973, 87 Stat. 903; Pub. L. 97-58,
Sec. 2, Oct. 9, 1981, 95 Stat. 979; Pub. L. 98-364, title I, Sec. 101,
July 17, 1984, 98 Stat. 440; Pub. L. 99-659, title IV, Sec. 411(a), Nov.
14, 1986, 100 Stat. 3741; Pub. L. 100-711, Secs. 4(a), 5(c), (e)(1),
Nov. 23, 1988, 102 Stat. 4765, 4769, 4771; Pub. L. 101-627, title IX,
Sec. 901(g), Nov. 28, 1990, 104 Stat. 4467; Pub. L. 102-582, title I,
Sec. 103, title IV, Sec. 401(b), Nov. 2, 1992, 106 Stat. 4903, 4909;
Pub. L. 103-238, Sec. 4, Apr. 30, 1994, 108 Stat. 532; 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. 105-18, title II, Sec. 2003, June 12,
1997, 111 Stat. 174; Pub. L. 105-42, Sec. 4(a)-(c), Aug. 15, 1997, 111
Stat. 1123, 1124.)
References in Text
The effective date of this chapter, referred to in subsec. (a),
means the effective date of Pub. L. 92-522. See section 4 of Pub. L. 92-
522, set out as an Effective Date note under section 1361 of this title.
For effective date of section 4 of the International Dolphin
Conservation Program Act [Pub. L. 105-42], referred to in subsec.
(a)(2)(B)(i), see section 8 of Pub. L. 105-42 set out as an Effective
Date of 1997 Amendment note under section 1362 of this title.
The Endangered Species Act of 1973, referred to in subsec.
(a)(4)(B), (5)(E)(i), is Pub. L. 93-205, Dec. 28, 1973, 87 Stat. 884, as
amended, which is classified principally 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.
The Whaling Convention Act of 1949, referred to in subsec.
(a)(5)(A)(i), is act Aug. 9, 1950, ch. 653, 64 Stat. 421, as amended,
which is classified generally to subchapter II (Sec. 916 et seq.) of
chapter 14 of this title. For complete classification of this Act to the
Code, see Short Title note set out under section 916 of this title and
Tables.
Act of November 7, 1986, referred to in subsec. (a)(5)(E)(vi), is
Pub. L. 99-625, Nov. 7, 1986, 100 Stat. 3500, which amended section 718b
of this title and provisions listed in a table of National Wildlife
Refuges set out under section 668dd of this title and enacted provisions
set out as a note under section 1536 of this title. For complete
classification of this Act to the Code, see Tables.
Amendments
1997--Subsec. (a)(2). Pub. L. 105-42, Sec. 4(a), (b)(4), in
introductory provisions, inserted after first sentence ``Such
authorizations may be granted under subchapter IV of this chapter with
respect to purse seine fishing for yellowfin tuna in the eastern
tropical Pacific Ocean, subject to regulations prescribed under that
subchapter by the Secretary without regard to section 1373 of this
title.'' and struck out ``; provided that this goal shall be satisfied
in the case of the incidental taking of marine mammals in the course of
purse seine fishing for yellowfin tuna by a continuation of the
application of the best marine mammal safety techniques and equipment
that are economically and technologically practicable'' after ``serious
injury rate'' and, in closing provisions, substituted ``For purposes of
subparagraph (F)'' for ``For purposes of subparagraph (E)''.
Subsec. (a)(2)(B). Pub. L. 105-42, Sec. 4(b)(1), added subpar. (B)
and struck out former subpar. (B) which contained requirement that
nations exporting yellowfin tuna harvested with purse seines in eastern
tropical Pacific Ocean provide documentary evidence of adoption of
regulatory program governing incidental taking of other mammals and
comparison of the average rates of incidental taking between harvesting
nation and United States.
Subsec. (a)(2)(C) to (F). Pub. L. 105-42, Sec. 4(b)(2), (3), added
subpar. (C) and redesignated former subpars. (C) to (E) as (D) to (F),
respectively.
Subsec. (d). Pub. L. 105-18 added subsec. (d).
Subsec. (e). Pub. L. 105-42, Sec. 4(c), added subsec. (e).
1996--Subsec. (a)(5)(E)(i). Pub. L. 104-208 made technical amendment
to reference in original act which appears in text as reference to
section 1824(b) of this title.
1994--Subsec. (a)(1). Pub. L. 103-238, Sec. 4(a)(1), amended par.
(1) generally. Prior to amendment, par. (1) read as follows:
``Consistent with the provisions of section 1374 of this title, permits
may be issued by the Secretary for taking and importation for purposes
of scientific research, public display, or enhancing the survival or
recovery of a species or stock if--
``(A) the taking proposed in the application for any such
permit, or
``(B) the importation proposed to be made,
is first reviewed by the Marine Mammal Commission and the Committee of
Scientific Advisors on Marine Mammals established under subchapter III
of this chapter. The Commission and Committee shall recommend any
proposed taking or importation which is consistent with the purposes and
policies of section 1361 of this title. The Secretary shall, if he
grants approval for importation, issue to the importer concerned a
certificate to that effect which shall be in such form as the Secretary
of the Treasury prescribes and such importation may be made upon
presentation of the certificate to the customs officer concerned.''
Subsec. (a)(2). Pub. L. 103-238, Sec. 4(a)(2), inserted before
period at end of first sentence ``, or in lieu of such permits,
authorizations may be granted therefor under section 1387 of this title,
subject to regulations prescribed under that section by the Secretary
without regard to section 1373 of this title''.
Subsec. (a)(3)(B). Pub. L. 103-238, Sec. 4(a)(3), inserted ``,
photography for educational or commercial purposes,'' after ``purposes''
and ``or as provided for under paragraph (5) of this subsection,'' after
``subsection,''.
Subsec. (a)(4). Pub. L. 103-238, Sec. 4(a)(4), amended par. (4)
generally. Prior to amendment, par. (4) read as follows:
``(4)(A) During any period of five consecutive years, the Secretary
shall allow the incidental, but not the intentional, taking, by citizens
of the United States while engaging in commercial fishing operations, of
small numbers of marine mammals of a species or population stock that is
not depleted if the Secretary, after notice and opportunity for public
comment--
``(i) finds that the total of such taking during such five-year
period will have a negligible impact on such species or stock; and
``(ii) provides guidelines pertaining to the establishment of a
cooperative system among the fishermen involved for the monitoring
of such taking.
``(B) The Secretary shall withdraw, or suspend for a time certain,
the permission to take marine mammals under subparagraph (A) if the
Secretary finds, after notice and opportunity for public comment, that--
``(i) the taking allowed under subparagraph (A) is having more
than a negligible impact on the species or stock concerned; or
``(ii) the policies, purposes and goals of this chapter would be
better served through the application of this title without regard
to this subsection.
Sections 1373 and 1374 of this title shall not apply to the taking of
marine mammals under the authority of this paragraph.''
Subsec. (a)(5)(D), (E). Pub. L. 103-238, Sec. 4(a)(5), added
subpars. (D) and (E).
Subsec. (a)(6). Pub. L. 103-238, Sec. 4(a)(6), added par. (6).
Subsec. (b). Pub. L. 103-238, Sec. 4(b), inserted at end ``In
promulgating any regulation or making any assessment pursuant to a
hearing or proceeding under this subsection or section 1386(b)(2) of
this title, or in making any determination of depletion under this
subsection or finding regarding unmitigable adverse impacts under
subsection (a)(5) of this section that affects stocks or persons to
which this subsection applies, the Secretary shall be responsible for
demonstrating that such regulation, assessment, determination, or
finding is supported by substantial evidence on the basis of the record
as a whole. The preceding sentence shall only be applicable in an action
brought by one or more Alaska Native organizations representing persons
to which this subsection applies.''
Subsec. (c). Pub. L. 103-238, Sec. 4(c), amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: ``In order
to minimize undue economic hardship to persons subject to this chapter,
other than those engaged in commercial fishing operations referred to in
subsection (a)(2) of this section, the Secretary, upon any such person
filing an application with him and upon filing such information as the
Secretary may require showing, to his satisfaction, such hardship, may
exempt such person or class of persons from provisions of this chapter
for no more than one year from October 21, 1972, as he determines to be
appropriate.''
1992--Subsec. (a)(2). Pub. L. 102-582, Sec. 103(2), inserted before
period at end ``, except that, until January 1, 1994, the term
`driftnet' does not include the use in the northeast Atlantic Ocean of
gillnets with a total length not to exceed five kilometers if the use is
in accordance with regulations adopted by the European Community
pursuant to the October 28, 1991, decision by the Council of Fisheries
Ministers of the Community''.
Subsec. (a)(2)(C). Pub. L. 102-582, Sec. 401(b), amended subpar. (C)
generally. Prior to amendment, subpar. (C) read as follows: ``shall
require the government of any intermediary nation from which yellowfin
tuna or tuna products will be exported to the United States to certify
and provide reasonable proof that it has acted to prohibit the
importation of such tuna and tuna products from any nation from which
direct export to the United States of such tuna and tuna products is
banned under this section within sixty days following the effective date
of such ban on importation to the United States;''.
Subsec. (a)(2)(E)(i). Pub. L. 102-582, Sec. 103(1), substituted
``January 1, 1993'' for ``July 1, 1992''.
1990--Subsec. (a)(2). Pub. L. 101-627 added subpar. (E) and
concluding provisions.
1988--Subsec. (a)(1). Pub. L. 100-711, Sec. 5(c), which directed
that par. (1) be amended generally to read as follows: ``(1) Consistent
with the provisions of section 1374 of this title, permits may be issued
by the Secretary for taking and importation for purposes of scientific
research, public display, or enhancing the survival or recovery of a
species or stock if--'', was executed as the probable intent of Congress
by substituting such provisions for provisions of par. (1) before
subpar. (A) which read as follows: ``Permits may be issued by the
Secretary for taking and importation for purposes of scientific research
and for public display if--''.
Subsec. (a)(2). Pub. L. 100-711, Sec. 4(a), inserted provisions at
end of subpar. (B) relating to finding by Secretary that regulatory
program, or average rate of incidental taking by vessels, of harvesting
nation is comparable to that of United States, and added subpars. (C)
and (D).
Subsec. (a)(3)(B). Pub. L. 100-711, Sec. 5(e)(1), inserted ``or
enhancing the survival or recovery of a species or stock'' after
``scientific research purposes''.
1986--Subsec. (a)(5)(A). Pub. L. 99-659, Sec. 411(a)(1), in
provisions preceding cl. (i) struck out ``that is not depleted'' after
``population stock''.
Subsec. (a)(5)(A)(i). Pub. L. 99-659, Sec. 411(a)(2), substituted
``will not have an unmitigable adverse impact'' for ``its habitat,
and'', and inserted ``or, in the case of a cooperative agreement under
both this chapter and the Whaling Convention Act of 1949 (16 U.S.C. 916
et seq.), pursuant to section 1382(c) of this title''.
Subsec. (a)(5)(A)(ii)(I). Pub. L. 99-659, Sec. 411(a)(3), inserted
``, and on the availability of such species or stock for subsistence
uses''.
1984--Subsec. (a)(2). Pub. L. 98-364 amended last sentence
generally, restating existing provisions in cl. (A) and adding cl. (B).
1981--Subsec. (a)(2). Pub. L. 97-58, Sec. 2(1)(A), provided that the
immediate goal of reducing to insignificant levels approaching a zero
mortality and serious injury rate the incidental kill or serious injury
of marine mammals permitted in the course of commercial fishing
operations be satisfied in the case of purse seine fishing for yellowfin
tuna by a continuation of the application of the best marine mammal
safety techniques and equipment that are economically and
technologically practicable.
Subsec. (a)(3)(B). Pub. L. 97-58, Sec. 2(1)(B), struck out ``is
classified as belonging to an endangered species or threatened species
pursuant to the Endangered Species Act of 1973 or'' after ``the taking
of any marine mammal which''.
Subsec. (a)(4), (5). Pub. L. 97-58, Sec. 2(1)(C), added pars. (4)
and (5).
Subsec. (b). Pub. L. 97-58, Sec. 2(2), substituted ``Except as
provided in section 1379 of this title, the provisions of this chapter
shall not apply with respect to the taking of any marine mammal by any
Indian, Aleut, or Eskimo who resides in Alaska and'' for ``The
provisions of this chapter shall not apply with respect to the taking of
any marine mammal by any Indian, Aleut, or Eskimo'' in provisions
preceding par. (1) and, in par. (1), substituted ``is for subsistence
purposes; or'' for ``is for subsistence purposes by Alaskan natives who
reside in Alaska, or''.
1973--Subsec. (a)(3)(B). Pub. L. 93-205 substituted ``or threatened
species pursuant to the Endangered Species Act of 1973'' for ``pursuant
to the Endangered Species Conservation Act of 1969''.
Effective Date of 1997 Amendment
For effective date of amendment by Pub. L. 105-42, see section 8 of
Pub. L. 105-42, set out as a note under section 1362 of this title.
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 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.
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.
Section Referred to in Other Sections
This section is referred to in sections 1362, 1372, 1373, 1374,
1379, 1381, 1383a, 1386, 1387, 1415, 1417, 1536 of this title.
