§ 1374. — Permits.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1374]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 1374. Permits
(a) Issuance
The Secretary may issue permits which authorize the taking or
importation of any marine mammal. Permits for the incidental taking of
marine mammals in the course of commercial fishing operations may only
be issued as specifically provided for in sections \1\ 1371(a)(5) or
1416 of this title, or subsection (h) of this section.
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\1\ So in original. Probably should be ``section''.
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(b) Requisite provisions
Any permit issued under this section shall--
(1) be consistent with any applicable regulation established by
the Secretary under section 1373 of this title, and
(2) specify--
(A) the number and kind of animals which are authorized to
be taken or imported,
(B) the location and manner (which manner must be determined
by the Secretary to be humane) in which they may be taken, or
from which they may be imported,
(C) the period during which the permit is valid, and
(D) any other terms or conditions which the Secretary deems
appropriate.
In any case in which an application for a permit cites as a reason for
the proposed taking the overpopulation of a particular species or
population stock, the Secretary shall first consider whether or not it
would be more desirable to transplant a number of animals (but not to
exceed the number requested for taking in the application) of that
species or stock to a location not then inhabited by such species or
stock but previously inhabited by such species or stock.
(c) Importation for scientific research, public display, or enhancing
survival or recovery of species or stock
(1) Any permit issued by the Secretary which authorizes the taking
or importation of a marine mammal for purposes of scientific research,
public display, or enhancing the survival or recovery of a species or
stock shall specify, in addition to the conditions required by
subsection (b) of this section, the methods of capture, supervision,
care, and transportation which must be observed pursuant to such taking
or importation. Any person authorized to take or import a marine mammal
for purposes of scientific research, public display, or enhancing the
survival or recovery of a species or stock shall furnish to the
Secretary a report on all activities carried out by him pursuant to that
authority.
(2)(A) A permit may be issued to take or import a marine mammal for
the purpose of public display only to a person which the Secretary
determines--
(i) offers a program for education or conservation purposes that
is based on professionally recognized standards of the public
display community;
(ii) is registered or holds a license issued under 7 U.S.C. 2131
et seq.; and
(iii) maintains facilities for the public display of marine
mammals that are open to the public on a regularly scheduled basis
and that access to such facilities is not limited or restricted
other than by charging of an admission fee.
(B) A permit under this paragraph shall grant to the person to which
it is issued the right, without obtaining any additional permit or
authorization under this chapter, to--
(i) take, import, purchase, offer to purchase, possess, or
transport the marine mammal that is the subject of the permit; and
(ii) sell, export, or otherwise transfer possession of the
marine mammal, or offer to sell, export, or otherwise transfer
possession of the marine mammal--
(I) for the purpose of public display, to a person that
meets the requirements of clauses (i), (ii), and (iii) of
subparagraph (A);
(II) for the purpose of scientific research, to a person
that meets the requirements of paragraph (3); or
(III) for the purpose of enhancing the survival or recovery
of a species or stock, to a person that meets the requirements
of paragraph (4).
(C) A person to which a marine mammal is sold or exported or to
which possession of a marine mammal is otherwise transferred under the
authority of subparagraph (B) shall have the rights and responsibilities
described in subparagraph (B) with respect to the marine mammal without
obtaining any additional permit or authorization under this chapter.
Such responsibilities shall be limited to--
(i) for the purpose of public display, the responsibility to
meet the requirements of clauses (i), (ii), and (iii) of
subparagraph (A),
(ii) for the purpose of scientific research, the responsibility
to meet the requirements of paragraph (3), and
(iii) for the purpose of enhancing the survival or recovery of a
species or stock, the responsibility to meet the requirements of
paragraph (4).
(D) If the Secretary--
(i) finds in concurrence with the Secretary of Agriculture, that
a person that holds a permit under this paragraph for a marine
mammal, or a person exercising rights under subparagraph (C), no
longer meets the requirements of subparagraph (A)(ii) and is not
reasonably likely to meet those requirements in the near future, or
(ii) finds that a person that holds a permit under this
paragraph for a marine mammal, or a person exercising rights under
subparagraph (C), no longer meets the requirements of subparagraph
(A)(i) or (iii) and is not reasonably likely to meet those
requirements in the near future,
the Secretary may revoke the permit in accordance with subsection (e) of
this section, seize the marine mammal, or cooperate with other persons
authorized to hold marine mammals under this chapter for disposition of
the marine mammal. The Secretary may recover from the person expenses
incurred by the Secretary for that seizure.
(E) No marine mammal held pursuant to a permit issued under
subparagraph (A), or by a person exercising rights under subparagraph
(C), may be sold, purchased, exported, or transported unless the
Secretary is notified of such action no later than 15 days before such
action, and such action is for purposes of public display, scientific
research, or enhancing the survival or recovery of a species or stock.
The Secretary may only require the notification to include the
information required for the inventory established under paragraph (10).
(3)(A) The Secretary may issue a permit under this paragraph for
scientific research purposes to an applicant which submits with its
permit application information indicating that the taking is required to
further a bona fide scientific purpose. The Secretary may issue a permit
under this paragraph before the end of the public review and comment
period required under subsection (d)(2) of this section if delaying
issuance of the permit could result in injury to a species, stock, or
individual, or in loss of unique research opportunities.
(B) No permit issued for purposes of scientific research shall
authorize the lethal taking of a marine mammal unless the applicant
demonstrates that a nonlethal method of conducting the research is not
feasible. The Secretary shall not issue a permit for research which
involves the lethal taking of a marine mammal from a species or stock
that is depleted, unless the Secretary determines that the results of
such research will directly benefit that species or stock, or that such
research fulfills a critically important research need.
(C) Not later than 120 days after April 30, 1994, the Secretary
shall issue a general authorization and implementing regulations
allowing bona fide scientific research that may result only in taking by
Level B harassment of a marine mammal. Such authorization shall apply to
persons which submit, by 60 days before commencement of such research, a
letter of intent via certified mail to the Secretary containing the
following:
(i) The species or stocks of marine mammals which may be
harassed.
(ii) The geographic location of the research.
(iii) The period of time over which the research will be
conducted.
(iv) The purpose of the research, including a description of how
the definition of bona fide research as established under this
chapter would apply.
(v) Methods to be used to conduct the research.
Not later than 30 days after receipt of a letter of intent to conduct
scientific research under the general authorization, the Secretary shall
issue a letter to the applicant confirming that the general
authorization applies, or, if the proposed research is likely to result
in the taking (including Level A harassment) of a marine mammal, shall
notify the applicant that subparagraph (A) applies.
(4)(A) A permit may be issued for enhancing the survival or recovery
of a species or stock only with respect to a species or stock for which
the Secretary, after consultation with the Marine Mammal Commission and
after notice and opportunity for public comment, has first determined
that--
(i) taking or importation is likely to contribute significantly
to maintaining or increasing distribution or numbers necessary to
ensure the survival or recovery of the species or stock; and
(ii) taking or importation is consistent (I) with any
conservation plan adopted by the Secretary under section 1383b(b) of
this title or any recovery plan developed under section 1533(f) of
this title for the species or stock, or (II) if there is no
conservation or recovery plan in place, with the Secretary's
evaluation of the actions required to enhance the survival or
recovery of the species or stock in light of the factors that would
be addressed in a conservation plan or a recovery plan.
(B) A permit issued in accordance with this paragraph may allow the
captive maintenance of a marine mammal from a depleted species or stock
only if the Secretary--
(i) determines that captive maintenance is likely to contribute
to the survival or recovery of the species or stock by maintaining a
viable gene pool, increasing productivity, providing biological
information, or establishing animal reserves;
(ii) determines that the expected benefit to the affected
species or stock outweighs the expected benefit of alternatives
which do not require removal of animals from the wild; and
(iii) requires that the marine mammal or its progeny be returned
to the natural habitat of the species or stock as soon as feasible,
consistent with the objectives of any applicable conservation plan
or recovery plan, or of any evaluation by the Secretary under
subparagraph (A).
The Secretary may allow the public display of such a marine mammal only
if the Secretary determines that such display is incidental to the
authorized maintenance and will not interfere with the attainment of the
survival or recovery objectives.
(5)(A) The Secretary may issue a permit for the importation of polar
bear parts (other than internal organs) taken in sport hunts in Canada
to an applicant which submits with its permit application proof that the
polar bear was legally harvested in Canada by the applicant. Such a
permit shall be issued if the Secretary, in consultation with the Marine
Mammal Commission and after notice and opportunity for public comment,
finds that--
(i) Canada has a monitored and enforced sport hunting program
consistent with the purposes of the Agreement on the Conservation of
Polar Bears;
(ii) Canada has a sport hunting program based on scientifically
sound quotas ensuring the maintenance of the affected population
stock at a sustainable level;
(iii) the export and subsequent import are consistent with the
provisions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora and other international agreements
and conventions; and
(iv) the export and subsequent import are not likely to
contribute to illegal trade in bear parts.
(B) The Secretary shall establish and charge a reasonable fee for
permits issued under this paragraph. All fees collected under this
paragraph shall be available to the Secretary until expended for use in
developing and implementing cooperative research and management programs
for the conservation of polar bears in Alaska and Russia pursuant to
section 1383(d) of this title.
(C)(i) The Secretary shall undertake a scientific review of the
impact of permits issued under this paragraph on the polar bear
population stocks in Canada within 2 years after April 30, 1994. The
Secretary shall provide an opportunity for public comment during the
course of such review, and shall include a response to such public
comment in the final report on such review.
(ii) The Secretary shall not issue permits under this paragraph
after September 30, 1996, if the Secretary determines, based on the
scientific review, that the issuance of permits under this paragraph is
having a significant adverse impact on the polar bear population stocks
in Canada. The Secretary may review such determination annually
thereafter, in light of the best scientific information available, and
shall complete the review not later than January 31 in any year a review
is undertaken. The Secretary may issue permits under this paragraph
whenever the Secretary determines, on the basis of such annual review,
that the issuance of permits under this paragraph is not having a
significant adverse impact on the polar bear population stocks in
Canada.
(D) The Secretary of the Interior shall, expeditiously after the
expiration of the applicable 30 day period under subsection (d)(2) of
this section, issue a permit for the importation of polar bear parts
(other than internal organs) from polar bears taken in sport hunts in
Canada before April 30, 1994, to each applicant who submits, with the
permit application, proof that the polar bear was legally harvested in
Canada by the applicant. The Secretary shall issue such permits without
regard to the provisions of subparagraphs (A) and (C)(ii) of this
paragraph, subsection (d)(3) of this section, and sections 1371 and 1372
of this title. This subparagraph shall not apply to polar bear parts
that were imported before June 12, 1997.
(6) A permit may be issued for photography for educational or
commercial purposes involving marine mammals in the wild only to an
applicant which submits with its permit application information
indicating that the taking will be limited to Level B harassment, and
the manner in which the products of such activities will be made
available to the public.
(7) Upon request by a person for a permit under paragraph (2), (3),
or (4) for a marine mammal which is in the possession of any person
authorized to possess it under this chapter and which is determined
under guidance under section 1421a(a) of this title not to be releasable
to the wild, the Secretary shall issue the permit to the person
requesting the permit if that person--
(A) meets the requirements of clauses (i), (ii), and (iii) of
paragraph (2)(A), in the case of a request for a permit under
paragraph (2);
(B) meets the requirements of paragraph (3), in the case of a
request for a permit under that paragraph; or
(C) meets the requirements of paragraph (4), in the case of a
request for a permit under that paragraph.
(8)(A) No additional permit or authorization shall be required to
possess, sell, purchase, transport, export, or offer to sell or purchase
the progeny of marine mammals taken or imported under this subsection,
if such possession, sale, purchase, transport, export, or offer to sell
or purchase is--
(i) for the purpose of public display, and by or to,
respectively, a person which meets the requirements of clauses (i),
(ii), and (iii) of paragraph (2)(A);
(ii) for the purpose of scientific research, and by or to,
respectively, a person which meets the requirements of paragraph
(3); or
(iii) for the purpose of enhancing the survival or recovery of a
species or stock, and by or to, respectively, a person which meets
the requirements of paragraph (4).
(B)(i) A person which has a permit under paragraph (2), or a person
exercising rights under paragraph (2)(C), which has possession of a
marine mammal that gives birth to progeny shall--
(I) notify the Secretary of the birth of such progeny within 30
days after the date of birth; and
(II) notify the Secretary of the sale, purchase, or transport of
such progeny no later than 15 days before such action.
(ii) The Secretary may only require notification under clause (i) to
include the information required for the inventory established under
paragraph (10).
(C) Any progeny of a marine mammal born in captivity before April
30, 1994, and held in captivity for the purpose of public display shall
be treated as though born after April 30, 1994.
(9) No marine mammal may be exported for the purpose of public
display, scientific research, or enhancing the survival or recovery of a
species or stock unless the receiving facility meets standards that are
comparable to the requirements that a person must meet to receive a
permit under this subsection for that purpose.
(10) The Secretary shall establish and maintain an inventory of all
marine mammals possessed pursuant to permits issued under paragraph
(2)(A), by persons exercising rights under paragraph (2)(C), and all
progeny of such marine mammals. The inventory shall contain, for each
marine mammal, only the following information which shall be provided by
a person holding a marine mammal under this chapter:
(A) The name of the marine mammal or other identification.
(B) The sex of the marine mammal.
(C) The estimated or actual birth date of the marine mammal.
(D) The date of acquisition or disposition of the marine mammal
by the permit holder.
(E) The source from whom the marine mammal was acquired
including the location of the take from the wild, if applicable.
(F) If the marine mammal is transferred, the name of the
recipient.
(G) A notation if the animal was acquired as the result of a
stranding.
(H) The date of death of the marine mammal and the cause of
death when determined.
(d) Application procedures; notice; hearing; review
(1) The Secretary shall prescribe such procedures as are necessary
to carry out this section, including the form and manner in which
application for permits may be made.
(2) The Secretary shall publish notice in the Federal Register of
each application made for a permit under this section. Such notice shall
invite the submission from interested parties, within thirty days after
the date of the notice, of written data or views, with respect to the
taking or importation proposed in such application.
(3) The applicant for any permit under this section must demonstrate
to the Secretary that the taking or importation of any marine mammal
under such permit will be consistent with the purposes of this chapter
and the applicable regulations established under section 1373 of this
title.
(4) If within thirty days after the date of publication of notice
pursuant to paragraph (2) of this subsection with respect to any
application for a permit any interested party or parties request a
hearing in connection therewith, the Secretary may, within sixty days
following such date of publication, afford to such party or parties an
opportunity for such a hearing.
(5) As soon as practicable (but not later than thirty days) after
the close of the hearing or, if no hearing is held, after the last day
on which data, or views, may be submitted pursuant to paragraph (2) of
this subsection, the Secretary shall (A) issue a permit containing such
terms and conditions as he deems appropriate, or (B) shall deny issuance
of a permit. Notice of the decision of the Secretary to issue or to deny
any permit under this paragraph must be published in the Federal
Register within ten days after the date of issuance or denial.
(6) Any applicant for a permit, or any party opposed to such permit,
may obtain judicial review of the terms and conditions of any permit
issued by the Secretary under this section or of his refusal to issue
such a permit. Such review, which shall be pursuant to chapter 7 of
title 5, may be initiated by filing a petition for review in the United
States district court for the district wherein the applicant for a
permit resides, or has his principal place of business, or in the United
States District Court for the District of Columbia, within sixty days
after the date on which such permit is issued or denied.
(e) Modification, suspension, and revocation
(1) The Secretary may modify, suspend, or revoke in whole or in part
any permit issued by him under this section--
(A) in order to make any such permit consistent with any change
made after the date of issuance of such permit with respect to any
applicable regulation prescribed under section 1373 of this title,
(B) in any case in which a violation of the terms and conditions
of the permit is found, or
(C) if, in the case of a permit under subsection (c)(5) of this
section authorizing importation of polar bear parts, the Secretary,
in consultation with the appropriate authority in Canada, determines
that the sustainability of Canada's polar bear population stocks are
being adversely affected or that sport hunting may be having a
detrimental effect on maintaining polar bear population stocks
throughout their range.
(2) Whenever the Secretary shall propose any modification,
suspension, or revocation of a permit under this subsection, the
permittee shall be afforded opportunity, after due notice, for a hearing
by the Secretary with respect to such proposed modification, suspension,
or revocation. Such proposed action by the Secretary shall not take
effect until a decision is issued by him after such hearing. Any action
taken by the Secretary after such a hearing is subject to judicial
review on the same basis as is any action taken by him with respect to a
permit application under paragraph (5) of subsection (d) of this
section.
(3) Notice of the modification, suspension, or revocation of any
permit by the Secretary shall be published in the Federal Register
within ten days from the date of the Secretary's decision.
(f) Possession of permit by issuee or his agent
Any permit issued under this section must be in the possession of
the person to whom it is issued (or an agent of such person) during--
(1) the time of the authorized or taking importation;
(2) the period of any transit of such person or agent which is
incident to such taking or importation; and
(3) any other time while any marine mammal taken or imported
under a such permit is in the possession of such person or agent.
A duplicate copy of the issued permit must be physically attached to the
container, package, enclosure, or other means of containment, in which
the marine mammal is placed for purposes of storage, transit,
supervision, or care.
(g) Fees
The Secretary shall establish and charge a reasonable fee for
permits issued under this section.
(h) General permits
(1) Consistent with the regulations prescribed pursuant to section
1373 of this title and to the requirements of section 1371 of this
title, the Secretary may issue an annual permit to a United States purse
seine fishing vessel for the taking of such marine mammals, and shall
issue regulations to cover the use of any such annual permits.
(2) Such annual permits for the incidental taking of marine mammals
in the course of commercial purse seine fishing for yellowfin tuna in
the eastern tropical Pacific Ocean shall be governed by section 1416 of
this title, subject to the regulations issued pursuant to section 1413
of this title.
(Pub. L. 92-522, title I, Sec. 104, Oct. 21, 1972, 86 Stat. 1034; Pub.
L. 98-364, title I, Sec. 102, July 17, 1984, 98 Stat. 440; Pub. L. 100-
711, Secs. 4(d), 5(d), Nov. 23, 1988, 102 Stat. 4767, 4769; Pub. L. 103-
238, Sec. 5(b), Apr. 30, 1994, 108 Stat. 537; Pub. L. 105-18, title V,
Sec. 5004, June 12, 1997, 111 Stat. 187; Pub. L. 105-42, Sec. 4(d), Aug.
15, 1997, 111 Stat. 1125; Pub. L. 105-277, div. A, Sec. 101(e) [title
I], Oct. 21, 1998, 112 Stat. 2681-231, 2681-238; Pub. L. 106-31, title
V, Sec. 5004(1), May 21, 1999, 113 Stat. 110.)
References in Text
7 U.S.C. 2131 et seq., referred to in subsec. (c)(2)(A)(ii), is the
classification for Pub. L. 89-544, Aug. 24, 1966, 80 Stat. 350, as
amended, known as the Animal Welfare Act, which is classified generally
to chapter 54 (Sec. 2131 et seq.) of Title 7, Agriculture. For complete
classification of this Act to the Code, see Short Title note set out
under section 2131 of Title 7 and Tables.
Amendments
1999--Subsec. (c)(5)(B). Pub. L. 106-31 made technical correction to
directory language of Pub. L. 105-277. See 1998 Amendment note below.
1998--Subsec. (c)(5)(B). Pub. L. 105-277, as amended by Pub. L. 106-
31, inserted ``until expended'' after ``Secretary'' in second sentence.
1997--Subsec. (c)(5)(A). Pub. L. 105-18, Sec. 5004(1), struck out
``, including polar bears taken but not imported prior to April 30,
1994,'' after ``sport hunts in Canada''.
Subsec. (c)(5)(D). Pub. L. 105-18, Sec. 5004(2), added subpar. (D).
Subsec. (h). Pub. L. 105-42 amended subsec. (h) generally. Prior to
amendment, subsec. (h) related to general permits, extension of general
permit to American Tunaboat Association, and monitoring of incidental
taking of marine mammals.
1994--Subsec. (a). Pub. L. 103-238, Sec. 5(b)(1), inserted at end
``Permits for the incidental taking of marine mammals in the course of
commercial fishing operations may only be issued as specifically
provided for in sections 1371(a)(5) or 1416 of this title, or subsection
(h) of this section.''
Subsec. (c)(1). Pub. L. 103-238, Sec. 5(b)(2)(A), struck out ``and
after'' after ``must be observed pursuant to''.
Subsec. (c)(2). Pub. L. 103-238, Sec. 5(b)(2)(B), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``A permit may
be issued for public display purposes only to an applicant which offers
a program for education or conservation purposes that, based on
professionally recognized standards of the public display community, is
acceptable to the Secretary and which submits with the permit
application information indicating that the applicant's facilities are
open to the public on a regularly scheduled basis and that access to the
facilities is not limited or restricted other than by the charging of an
admission fee.''
Subsec. (c)(3). Pub. L. 103-238, Sec. 5(b)(2)(C), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``A permit may
be issued for scientific research purposes only to an applicant which
submits with its permit application information indicating that the
taking is required to further a bona fide scientific purpose and does
not involve unnecessary duplication of research. No permit issued for
purposes of scientific research shall authorize the killing of a marine
mammal unless the applicant demonstrates that a nonlethal method for
carrying out the research is not feasible. The Secretary shall not issue
a permit for research which involves the lethal taking of a marine
mammal from a species or stock designated as depleted, unless the
Secretary determines that the results of such research will directly
benefit that species or stock, or that such research fulfills a
critically important research need.''
Subsec. (c)(5) to (10). Pub. L. 103-238, Sec. 5(b)(2)(D), added
pars. (5) to (10).
Subsec. (e)(1)(C). Pub. L. 103-238, Sec. 5(b)(3), added subpar. (C).
1988--Subsec. (c). Pub. L. 100-711, Sec. 5(d), designated existing
provisions as par. (1) and substituted ``scientific research, public
display, or enhancing the survival or recovery of a species or stock''
for ``display or scientific research'' in two places, and added pars.
(2) to (4).
Subsec. (h)(2)(B). Pub. L. 100-711, Sec. 4(d), added cls. (iv) to
(ix).
1984--Subsec. (h). Pub. L. 98-364 designated existing provisions as
par. (1), and added pars. (2) and (3).
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.
Abolition of House Committee on Merchant Marine and Fisheries
Committee on Merchant Marine and Fisheries of House of
Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee
on Merchant Marine and Fisheries of House of Representatives treated as
referring to Committee on Resources of House of Representatives in case
of provisions 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 by section 1(b)(3) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Modification of Permits Existing Prior to April 30, 1994
Section 5(c) of Pub. L. 103-238 provided that: ``Any permit issued
under section 104(c)(2) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1374(c)(2)) before the date of the enactment of this Act [Apr.
30, 1994] is hereby modified to be consistent with that section as
amended by this Act.''
Section Referred to in Other Sections
This section is referred to in sections 973g, 1371, 1372, 1373,
1383a, 1384, 1387, 1421d of this title; title 19 section 1466.
