Marine Mammal Protection Act (16 USC 1371)

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TITLE 16—CONSERVATION
Executive Documents

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.
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.

SUBCHAPTER II—CONSERVATION AND
PROTECTION OF MARINE MAMMALS
§ 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. 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 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

§ 1371

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 Com-

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TITLE 16—CONSERVATION
mission 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.

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(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

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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)(i) Except as provided by clause (ii),
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) 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—
(aa) 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
(bb) requirements pertaining to the monitoring and reporting of such taking.
(ii) In the case of a military readiness activity (as defined in section 315(f) of the Bob
Stump National Defense Authorization Act for
Fiscal Year 2003 (Public Law 107–314; 16 U.S.C.
703 note), clause (i) shall be applied—
(I) in the matter preceding clause (I), by
substituting ‘‘seven consecutive years’’ for
‘‘five consecutive years’’; and
(II) in clause (I), by substituting ‘‘sevenyear’’ for ‘‘five-year’’.
(iii) For a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16
U.S.C. 703 note), a determination of ‘‘least

§ 1371

practicable adverse impact on such species or
stock’’ under clause (i)(II)(aa) shall include
consideration of personnel safety, practicality
of implementation, and impact on the effectiveness of the military readiness activity. Before making the required determination, the
Secretary shall consult with the Department
of Defense regarding personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
(iv) Notwithstanding clause (i), for any authorization affecting a military readiness activity (as defined in section 315(f) of Public
Law 107–314; 16 U.S.C. 703 note), the Secretary
shall publish the notice required by such
clause only in the Federal Register.
(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), 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

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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) 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)
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) 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.
(vi) For a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16
U.S.C. 703 note), a determination of ‘‘least
practicable adverse impact on such species or
stock’’ under clause (i)(I) 1 shall include consideration of personnel safety, practicality of
implementation, and impact on the effectiveness of the military readiness activity. Before
making the required determination, the Secretary shall consult with the Department of
Defense regarding personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
(vii) Notwithstanding clause (iii), for any authorization affecting a military readiness ac1 So

in original. Probably should be a reference to cl. (ii)(I).

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tivity (as defined in section 315(f) of Public
Law 107–314; 16 U.S.C. 703 note), the Secretary
shall publish the notice required by such
clause only in the Federal Register.
(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

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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).
(F) Notwithstanding the provisions of this
subsection, any authorization affecting a military readiness activity (as defined in section
315(f) of Public Law 107–314; 16 U.S.C. 703 note)
shall not be subject to the following requirements:
(i) In subparagraph (A), ‘‘within a specified
geographical region’’ and ‘‘within that region of small numbers’’.
(ii) In subparagraph (B), ‘‘within a specified geographical region’’ and ‘‘within one or
more regions’’.
(iii) In subparagraph (D), ‘‘within a specific geographic region’’, ‘‘of small numbers’’, and ‘‘within that region’’.
(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

§ 1371

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) 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—

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TITLE 16—CONSERVATION

(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.
(f) Exemption of actions necessary for national
defense
(1) The Secretary of Defense, after conferring
with the Secretary of Commerce, the Secretary
of the Interior, or both, as appropriate, may exempt any action or category of actions undertaken by the Department of Defense or its components from compliance with any requirement
of this chapter, if the Secretary determines that
it is necessary for national defense.
(2) An exemption granted under this subsection—
(A) subject to subparagraph (B), shall be effective for a period specified by the Secretary
of Defense; and
(B) shall not be effective for more than 2
years.
(3)(A) The Secretary of Defense may issue additional exemptions under this subsection for
the same action or category of actions, after—
(i) conferring with the Secretary of Commerce, the Secretary of the Interior, or both
as appropriate; and
(ii) making a new determination that the additional exemption is necessary for national
defense.
(B) Each additional exemption under this
paragraph shall be effective for a period specified by the Secretary of Defense, of not more
than 2 years.
(4) Not later than 30 days after issuing an exemption under paragraph (1) or an additional exemption under paragraph (3), the Secretary of
Defense shall submit to the Committee on
Armed Services of the House of Representatives
and the Committee on Armed Services of the
Senate notice describing the exemption and the
reasons therefor. The notice may be provided in
classified form if the Secretary of Defense determines that use of the classified form is necessary for reasons of national security.
(Pub. L. 92–522, title I, § 101, Oct. 21, 1972, 86 Stat.
1029; Pub. L. 93–205, § 13(e)(2), Dec. 28, 1973, 87
Stat. 903; Pub. L. 97–58, § 2, Oct. 9, 1981, 95 Stat.

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979; Pub. L. 98–364, title I, § 101, July 17, 1984, 98
Stat. 440; Pub. L. 99–659, title IV, § 411(a), Nov. 14,
1986, 100 Stat. 3741; Pub. L. 100–711, §§ 4(a), 5(c),
(e)(1), Nov. 23, 1988, 102 Stat. 4765, 4769, 4771; Pub.
L. 101–627, title IX, § 901(g), Nov. 28, 1990, 104
Stat. 4467; Pub. L. 102–582, title I, § 103, title IV,
§ 401(b), Nov. 2, 1992, 106 Stat. 4903, 4909; Pub. L.
103–238, § 4, Apr. 30, 1994, 108 Stat. 532; Pub. L.
104–208, div. A, title I, § 101(a) [title II, § 211(b)],
Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L.
105–18, title II, § 2003, June 12, 1997, 111 Stat. 174;
Pub. L. 105–42, § 4(a)–(c), Aug. 15, 1997, 111 Stat.
1123, 1124; Pub. L. 108–136, div. A, title III,
§ 319(b), (c), Nov. 24, 2003, 117 Stat. 1434; Pub. L.
115–232, div. A, title III, § 316, Aug. 13, 2018, 132
Stat. 1714.)
Editorial Notes
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 (§ 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)(I), is act Aug. 9, 1950, ch. 653, 64 Stat.
421, as amended, which is classified generally to subchapter II (§ 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
2018—Subsec. (a)(5)(A)(i). Pub. L. 115–232, § 316(1), substituted ‘‘Except as provided by clause (ii), upon request’’ for ‘‘Upon request’’ in introductory provisions.
Subsec. (a)(5)(A)(ii) to (iv). Pub. L. 115–232, § 316(2), (3),
added cl. (ii) and redesignated former cls. (ii) and (iii)
as (iii) and (iv), respectively.
2003—Subsec. (a)(5)(A). Pub. L. 108–136, § 319(c)(1), designated existing provisions as cl. (i), redesignated
former cls. (i) and (ii) as subcls. (I) and (II), respectively, redesignated former subcls. (I) and (II) of former
cl. (ii) as items (aa) and (bb) of subcl. (II), respectively,
and added cls. (ii) and (iii).
Subsec. (a)(5)(D)(vi), (vii). Pub. L. 108–136, § 319(c)(2),
added cls. (vi) and (vii).
Subsec. (a)(5)(F). Pub. L. 108–136, § 319(c)(3), added subpar. (F).
Subsec. (f). Pub. L. 108–136, § 319(b), added subsec. (f).
1997—Subsec. (a)(2). Pub. L. 105–42, § 4(a), (b)(4), in introductory provisions, inserted after first sentence
‘‘Such authorizations may be granted under subchapter
IV 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 satis-

Page 1755

TITLE 16—CONSERVATION

fied 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, § 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, § 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, § 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, § 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, § 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, § 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, § 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

§ 1371

‘‘(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, § 4(a)(5), added
subpars. (D) and (E).
Subsec. (a)(6). Pub. L. 103–238, § 4(a)(6), added par. (6).
Subsec. (b). Pub. L. 103–238, § 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) 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, § 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, § 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, § 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, § 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, § 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, § 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, § 5(e)(1), inserted ‘‘or
enhancing the survival or recovery of a species or
stock’’ after ‘‘scientific research purposes’’.

§ 1372

TITLE 16—CONSERVATION

1986—Subsec. (a)(5)(A). Pub. L. 99–659, § 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, § 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, § 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, § 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, § 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, § 2(1)(C), added pars.
(4) and (5).
Subsec. (b). Pub. L. 97–58, § 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’’.
Statutory Notes and Related Subsidiaries
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
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, 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.
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 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-

Page 1756

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.

§ 1372. Prohibitions
(a) Taking
Except as provided in sections 1371, 1373, 1374,
1379, 1381, 1383, 1383a, and 1387 of this title and
subchapter V, it is unlawful—
(1) for any person subject to the jurisdiction
of the United States or any vessel or other
conveyance subject to the jurisdiction of the
United States to take any marine mammal on
the high seas;
(2) except as expressly provided for by an
international treaty, convention, or agreement to which the United States is a party
and which was entered into before the effective date of this subchapter or by any statute
implementing any such treaty, convention, or
agreement—
(A) for any person or vessel or other conveyance to take any marine mammal in waters or on lands under the jurisdiction of the
United States; or
(B) for any person to use any port, harbor,
or other place under the jurisdiction of the
United States to take or import marine
mammals or marine mammal products; and
(3) for any person, with respect to any marine mammal taken in violation of this subchapter, to possess that mammal or any product from that mammal;
(4) for any person to transport, purchase,
sell, export, or offer to purchase, sell, or export any marine mammal or marine mammal
product—
(A) that is taken in violation of this chapter; or
(B) for any purpose other than public display, scientific research, or enhancing the
survival of a species or stock as provided for
under subsection 1374(c) of this title; and
(5) for any person to use, in a commercial
fishery, any means or methods of fishing in
contravention of any regulations or limitations, issued by the Secretary for that fishery
to achieve the purposes of this chapter.
(b) Importation of pregnant or nursing mammals; depleted species or stock; inhumane
taking
Except pursuant to a permit for scientific research, or for enhancing the survival or recovery
of a species or stock, issued under section 1374(c)
of this title, it is unlawful to import into the
United States any marine mammal if such mammal was—
(1) pregnant at the time of taking;
(2) nursing at the time of taking, or less
than eight months old, whichever occurs later;
(3) taken from a species or population stock
which the Secretary has, by regulation published in the Federal Register, designated as a
depleted species or stock; or
(4) taken in a manner deemed inhumane by
the Secretary.
Notwithstanding the provisions of paragraphs (1)
and (2), the Secretary may issue a permit for the

Page 1757

§ 1373

TITLE 16—CONSERVATION

importation of a marine mammal, if the Secretary determines that such importation is necessary for the protection or welfare of the animal.
(c) Importation of illegally taken mammals
It is unlawful to import into the United States
any of the following:
(1) Any marine mammal which was—
(A) taken in violation of this subchapter;
or
(B) taken in another country in violation
of the law of that country.
(2) Any marine mammal product if—
(A) the importation into the United States
of the marine mammal from which such
product is made is unlawful under paragraph
(1) of this subsection; or
(B) the sale in commerce of such product
in the country of origin of the product is illegal;
(3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a
manner which the Secretary has proscribed for
persons subject to the jurisdiction of the
United States, whether or not any marine
mammals were in fact taken incident to the
catching of the fish.
(d) Nonapplicability of prohibitions
Subsections (b) and (c) of this section shall not
apply—
(1) in the case of marine mammals or marine
mammal products, as the case may be, to
which subsection (b)(3) of this section applies,
to such items imported into the United States
before the date on which the Secretary publishes notice in the Federal Register of his
proposed rulemaking with respect to the designation of the species or stock concerned as
depleted; or
(2) in the case of marine mammals or marine
mammal products to which subsection
(c)(1)(B) or (c)(2)(B) of this section applies, to
articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of
such marine mammals or marine mammal
products unlawful.
(e) Retroactive effect
This chapter shall not apply with respect to
any marine mammal taken before the effective
date of this chapter, or to any marine mammal
product consisting of, or composed in whole or
in part of, any marine mammal taken before
such date.
(f) Commercial taking of whales
It is unlawful for any person or vessel or other
conveyance to take any species of whale incident to commercial whaling in waters subject to
the jurisdiction of the United States.
(Pub. L. 92–522, title I, § 102, Oct. 21, 1972, 86 Stat.
1032; Pub. L. 93–205, § 13(e)(3), Dec. 28, 1973, 87
Stat. 903; Pub. L. 95–136, § 4, Oct. 18, 1977, 91 Stat.
1167; Pub. L. 97–58, § 3(a), Oct. 9, 1981, 95 Stat. 981;
Pub. L. 100–711, §§ 2(b), 5(b), (e)(2), Nov. 23, 1988,
102 Stat. 4763, 4769, 4771; Pub. L. 102–587, title III,
§ 3004(a)(1), Nov. 4, 1992, 106 Stat. 5067; Pub. L.
103–238, §§ 5(a), 13(c), 24(c)(9), Apr. 30, 1994, 108
Stat. 536, 558, 566.)

Editorial Notes
REFERENCES IN TEXT
The effective date of this subchapter, referred to in
subsec. (a)(2), means the effective date of title I 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.
The effective date of this chapter referred to in subsec. (e), 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.
AMENDMENTS
1994—Subsec. (a). Pub. L. 103–238, § 24(c)(9), which directed technical amendment to reference to subchapter
V of this chapter in introductory provisions to reflect
renumbering of corresponding title of original act,
could not be executed to text because of prior amendment by section 13(c) of Pub. L. 103–238. See below.
Pub. L. 103–238, § 13(c), in introductory provisions inserted reference to section 1387 of this title and made
technical amendment to reference to subchapter V of
this chapter to reflect renumbering of corresponding
title of original act.
Subsec. (a)(2)(B). Pub. L. 103–238, § 5(a)(1), substituted
‘‘to take or import’’ for ‘‘for any purpose in any way
connected with the taking or importation of’’.
Subsec. (a)(4). Pub. L. 103–238, § 5(a)(2), substituted
‘‘export, or offer to purchase, sell, or export’’ for ‘‘or
offer to purchase or sell’’ and ‘‘product—’’ for ‘‘product;
and’’ and added subpars. (A) and (B).
1992—Subsec. (a). Pub. L. 102–587 inserted ‘‘or subchapter V’’ in introductory provisions.
1988—Subsec. (a). Pub. L. 100–711, § 2(b), substituted
‘‘1383, and 1383a’’ for ‘‘and 1383’’.
Subsec. (b). Pub. L. 100–711, § 5(e)(2), substituted ‘‘research, or for enhancing the survival or recovery of a
species or stock,’’ for ‘‘research’’.
Pub. L. 100–711, § 5(b), inserted sentence at end authorizing Secretary to issue permit for importation of
marine mammal.
1981—Subsec. (a). Pub. L. 97–58, § 3(a)(1), inserted reference to section 1379 of this title in the enumeration
of sections preceding par. (1), redesignated par. (4) as
(5), and revised as pars. (3) and (4) the provisions of
former par. (3) amending those provisions so as to make
it illegal for any person to possess a marine mammal,
or any product from that mammal, and for any person
to transport, purchase, sell, or offer to purchase or sell
any marine mammal or marine mammal product.
Subsec. (b)(3). Pub. L. 97–58, § 3(a)(2), struck out ‘‘or
which has been listed as an endangered species or
threatened species pursuant to the Endangered Species
Act of 1973’’ after ‘‘designated as a depleted species or
stock’’.
Subsec. (d)(1). Pub. L. 97–58, § 3(b)(3), struck out ‘‘or
endangered’’ after ‘‘concerned as depleted’’.
1977—Subsec. (f). Pub. L. 95–136 added subsec. (f).
1973—Subsec. (b)(3). Pub. L. 93–205 substituted ‘‘an endangered species or threatened species pursuant to the
Endangered Species Act of 1973’’ for ‘‘endangered under
the Endangered Species Conservation Act of 1969’’.
Statutory Notes and Related Subsidiaries
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.
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1373. Regulations on taking of marine mammals
(a) Necessity and appropriateness
The Secretary, on the basis of the best scientific evidence available and in consultation

§ 1374

TITLE 16—CONSERVATION

with the Marine Mammal Commission, shall
prescribe such regulations with respect to the
taking and importing of animals from each species of marine mammal (including regulations
on the taking and importing of individuals within population stocks) as he deems necessary and
appropriate to insure that such taking will not
be to the disadvantage of those species and population stocks and will be consistent with the
purposes and policies set forth in section 1361 of
this title.
(b) Factors considered in prescribing regulations
In prescribing such regulations, the Secretary
shall give full consideration to all factors which
may affect the extent to which such animals
may be taken or imported, including but not
limited to the effect of such regulations on—
(1) existing and future levels of marine mammal species and population stocks;
(2) existing international treaty and agreement obligations of the United States;
(3) the marine ecosystem and related environmental considerations;
(4) the conservation, development, and utilization of fishery resources; and
(5) the economic and technological feasibility of implementation.
(c) Allowable restrictions
The regulations prescribed under subsection
(a) of this section for any species or population
stock of marine mammal may include, but are
not limited to, restrictions with respect to—
(1) the number of animals which may be
taken or imported in any calendar year pursuant to permits issued under section 1374 of this
title;
(2) the age, size, or sex (or any combination
of the foregoing) of animals which may be
taken or imported, whether or not a quota prescribed under paragraph (1) of this subsection
applies with respect to such animals;
(3) the season or other period of time within
which animals may be taken or imported;
(4) the manner and locations in which animals may be taken or imported; and
(5) fishing techniques which have been found
to cause undue fatalities to any species of marine mammal in a fishery.
(d) Procedure
Regulations prescribed to carry out this section with respect to any species or stock of marine mammals must be made on the record after
opportunity for an agency hearing on both the
Secretary’s determination to waive the moratorium pursuant to section 1371(a)(3)(A) of this
title and on such regulations, except that, in addition to any other requirements, imposed by
law with respect to agency rulemaking, the Secretary shall publish and make available to the
public either before or concurrent with the publication of notice in the Federal Register of his
intention to prescribe regulations under this
section—
(1) a statement of the estimated existing levels of the species and population stocks of the
marine mammal concerned;
(2) a statement of the expected impact of the
proposed regulations on the optimum sustainable population of such species or population
stock;

Page 1758

(3) a statement describing the evidence before the Secretary upon which he proposes to
base such regulations; and
(4) any studies made by or for the Secretary
or any recommendations made by or for the
Secretary or the Marine Mammal Commission
which relate to the establishment of such regulations.
(e) Periodic review
Any regulation prescribed pursuant to this
section shall be periodically reviewed, and may
be modified from time to time in such manner
as the Secretary deems consistent with and necessary to carry out the purposes of this chapter.
(f) Report to Congress
Within six months after the effective date of
this chapter and every twelve months thereafter, the Secretary shall report to the public
through publication in the Federal Register and
to the Congress on the current status of all marine mammal species and population stocks subject to the provisions of this chapter. His report
shall describe those actions taken and those
measures believed necessary, including where
appropriate, the issuance of permits pursuant to
this subchapter to assure the well-being of such
marine mammals.
(Pub. L. 92–522, title I, § 103, Oct. 21, 1972, 86 Stat.
1033.)
Editorial Notes
REFERENCES IN TEXT
The effective date of this chapter, referred to in subsec. (f), 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.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (f) of this section relating to the Secretary
reporting to Congress on the current status of marine
mammal species and population stocks subject to this
chapter, see section 3003 of Pub. L. 104–66, as amended,
set out as a note under section 1113 of Title 31, Money
and Finance, and pages 54 and 107 of House Document
No. 103–7.
MARINE MAMMAL POPULATIONS REPORT
Pub. L. 101–627, title XI, § 1101, Nov. 28, 1990, 104 Stat.
4468, directed Secretary of Commerce, in consultation
with Secretary of the Interior, to provide to Congress
within 12 months after Nov. 28, 1990, a report assessing
population sizes and trends of harbor seals, sea otters,
California sea lions, and northern sea lions off the
coast of the State of Washington; assessing the effectiveness of 16 U.S.C. 1371(a)(3)(A) and 1379(h); and specifying long range management plans for the species of
marine mammals listed.

§ 1374. Permits
(a) Issuance
The Secretary may issue permits which authorize the taking or importation of any marine

Page 1759

TITLE 16—CONSERVATION

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.
(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,
1 So

in original. Probably should be ‘‘section’’.

§ 1374

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), 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

§ 1374

TITLE 16—CONSERVATION

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) 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

Page 1760

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

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TITLE 16—CONSERVATION

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), issue a permit for the importation of polar bear parts
(other than internal organs) from polar bears
taken in sport hunts in Canada before February
18, 1997, 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,

§ 1374

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,

§ 1374

TITLE 16—CONSERVATION

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) 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.

Page 1762

(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 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, § 104, Oct. 21, 1972, 86 Stat.
1034; Pub. L. 98–364, title I, § 102, July 17, 1984, 98
Stat. 440; Pub. L. 100–711, §§ 4(d), 5(d), Nov. 23,
1988, 102 Stat. 4767, 4769; Pub. L. 103–238, § 5(b),
Apr. 30, 1994, 108 Stat. 537; Pub. L. 105–18, title V,
§ 5004, June 12, 1997, 111 Stat. 187; Pub. L. 105–42,
§ 4(d), Aug. 15, 1997, 111 Stat. 1125; Pub. L. 105–277,
div. A, § 101(e) [title I], Oct. 21, 1998, 112 Stat.
2681–231, 2681–238; Pub. L. 106–31, title V, § 5004(1),
May 21, 1999, 113 Stat. 110; Pub. L. 108–108, title
I, § 149, Nov. 10, 2003, 117 Stat. 1281.)

Page 1763

§ 1375

TITLE 16—CONSERVATION
Editorial Notes
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 (§ 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.

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, § 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).
Statutory Notes and Related Subsidiaries

AMENDMENTS

EFFECTIVE DATE OF 1997 AMENDMENT

2003—Subsec. (c)(5)(D). Pub. L. 108–108, which directed
the substitution of ‘‘February 18, 1997’’ for ‘‘April 30,
1994’’ in ‘‘Section 104 (16 U.S.C. 1374)’’ without indicating the act to be amended, was executed by amending this section, which is section 104 of the Marine
Mammal Protection Act of 1972, to reflect the probable
intent of Congress.
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, § 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, § 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, § 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, § 5(b)(2)(A), struck out
‘‘and after’’ after ‘‘must be observed pursuant to’’.
Subsec. (c)(2). Pub. L. 103–238, § 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, § 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, § 5(b)(2)(D),
added pars. (5) to (10).
Subsec. (e)(1)(C). Pub. L. 103–238, § 5(b)(3), added subpar. (C).
1988—Subsec. (c). Pub. L. 100–711, § 5(d), designated existing provisions as par. (1) and substituted ‘‘scientific

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
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.
MODIFICATION OF PERMITS EXISTING PRIOR TO
APRIL 30, 1994
Pub. L. 103–238, § 5(c), Apr. 30, 1994, 108 Stat. 541, 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.’’

§ 1375. Penalties
(a)(1) Any person who violates any provision of
this subchapter or of any permit or regulation
issued thereunder, except as provided in section
1387 of this title, may be assessed a civil penalty
by the Secretary of not more than $10,000 for
each such violation. No penalty shall be assessed
unless such person is given notice and opportunity for a hearing with respect to such violation. Each unlawful taking or importation shall
be a separate offense. Any such civil penalty
may be remitted or mitigated by the Secretary
for good cause shown. Upon any failure to pay a
penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action in a district court of the
United States for any district in which such person is found, resides, or transacts business to
collect the penalty and such court shall have jurisdiction to hear and decide any such action.
(2) In any case involving an alleged unlawful
importation of a marine mammal or marine
mammal product, if such importation is made
by an individual for his own personal or family
use (which does not include importation as an
accommodation to others or for sale or other
commercial use), the Secretary may, in lieu of
instituting a proceeding under paragraph (1),
allow the individual to abandon the mammal or
product, under procedures to be prescribed by
the Secretary, to the enforcement officer at the
port of entry.
(b) Any person who knowingly violates any
provision of this subchapter or of any permit or
regulation issued thereunder (except as provided
in section 1387 of this title) shall, upon conviction, be fined not more than $20,000 for each such
violation, or imprisoned for not more than one
year, or both.
(Pub. L. 92–522, title I, § 105, Oct. 21, 1972, 86 Stat.
1036; Pub. L. 97–58, § 3(b), Oct. 9, 1981, 95 Stat. 982;
Pub. L. 103–238, § 13(a), (b), Apr. 30, 1994, 108 Stat.
558.)

§ 1375a

TITLE 16—CONSERVATION
Editorial Notes
AMENDMENTS

1994—Subsec. (a)(1). Pub. L. 103–238, § 13(a), inserted
‘‘, except as provided in section 1387 of this title,’’ after
‘‘thereunder’’.
Subsec. (b). Pub. L. 103–238, § 13(b), inserted ‘‘(except
as provided in section 1387 of this title)’’ after ‘‘thereunder’’.
1981—Subsec. (a). Pub. L. 97–58 designated existing
provisions as par. (1) and added par. (2).
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1375a. Use of fines for protection and recovery
of manatees, polar bears, sea otters, and walruses
On and after November 29, 1999, all fines collected by the United States Fish and Wildlife
Service for violations of the Marine Mammal
Protection Act (16 U.S.C. 1362–1407) and implementing regulations shall be available to the
Secretary, without further appropriation, to be
used for the expenses of the United States Fish
and Wildlife Service in administering activities
for the protection and recovery of manatees,
polar bears, sea otters, and walruses, and shall
remain available until expended.
(Pub. L. 106–113, div. B, § 1000(a)(3) [title I], Nov.
29, 1999, 113 Stat. 1535, 1501A–139.)
Editorial Notes
REFERENCES IN TEXT
The Marine Mammal Protection Act, referred to in
text, probably means the Marine Mammal Protection
Act of 1972, Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, as
amended, which is classified generally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 1361 of this title
and Tables.
CODIFICATION
Section was enacted as part of the Department of the
Interior and Related Agencies Appropriations Act, 2000,
and not as part of the Marine Mammal Protection Act
of 1972 which comprises this chapter.

§ 1376. Seizure and forfeiture of cargo
(a) Application of consistent provisions
Any vessel or other conveyance subject to the
jurisdiction of the United States that is employed in any manner in the unlawful taking of
any marine mammal shall have its entire cargo
or the monetary value thereof subject to seizure
and forfeiture. All provisions of law relating to
the seizure, judicial forfeiture, and condemnation of cargo for violation of the customs laws,
the disposition of such cargo, and the proceeds
from the sale thereof, and the remission or mitigation of any such forfeiture, shall apply with
respect to the cargo of any vessel or other conveyance seized in connection with the unlawful
taking of a marine mammal insofar as such provisions of law are applicable and not inconsistent with the provisions of this subchapter.
(b) Penalties
Any vessel subject to the jurisdiction of the
United States that is employed in any manner

Page 1764

in the unlawful taking of any marine mammal
shall be liable for a civil penalty of not more
than $25,000. Such penalty shall be assessed by
the district court of the United States having
jurisdiction over the vessel. Clearance of a vessel against which a penalty has been assessed,
from a port of the United States, may be withheld until such penalty is paid, or until a bond
or otherwise satisfactory surety is posted. Such
penalty shall constitute a maritime lien on such
vessel which may be recovered by action in rem
in the district court of the United States having
jurisdiction over the vessel.
(c) Reward for information leading to conviction
Upon the recommendation of the Secretary,
the Secretary of the Treasury is authorized to
pay an amount equal to one-half of the fine incurred but not to exceed $2,500 to any person
who furnishes information which leads to a conviction for a violation of this subchapter. Any
officer or employee of the United States or of
any State or local government who furnishes information or renders service in the performance
of his official duties shall not be eligible for payment under this section.
(Pub. L. 92–522, title I, § 106, Oct. 21, 1972, 86 Stat.
1036.)
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1377. Enforcement
(a) Utilization of personnel
Except as otherwise provided in this subchapter, the Secretary shall enforce the provisions of this subchapter. The Secretary may utilize, by agreement, the personnel, services, and
facilities of any other Federal agency for purposes of enforcing this subchapter.
(b) State officers and employees
The Secretary may also designate officers and
employees of any State or of any possession of
the United States to enforce the provisions of
this subchapter. When so designated, such officers and employees are authorized to function as
Federal law enforcement agents for these purposes, but they shall not be held and considered
as employees of the United States for the purposes of any laws administered by the Director
of the Office of Personnel Management.
(c) Warrants and other process for enforcement
The judges of the district courts of the United
States and the United States magistrate judges
may, within their respective jurisdictions, upon
proper oath or affirmation showing probable
cause, issue such warrants or other process, including warrants or other process issued in admiralty proceedings in United States district
courts, as may be required for enforcement of
this subchapter and any regulations issued
thereunder.
(d) Execution of process; arrest; search; seizure
Any person authorized by the Secretary to enforce this subchapter may execute any warrant

Page 1765

§ 1378

TITLE 16—CONSERVATION

or process issued by any officer or court of competent jurisdiction for the enforcement of this
subchapter. Such a person so authorized may, in
addition to any other authority conferred by
law—
(1) with or without warrant or other process,
arrest any person committing in his presence
or view a violation of this subchapter or the
regulations issued thereunder;
(2) with a warrant or other process, or without a warrant if he has reasonable cause to believe that a vessel, other conveyance, or container subject to the jurisdiction of the United
States or any person on board is in violation
of any provision of this subchapter or the regulations issued thereunder, search such vessel
or conveyance and arrest such person;
(3) seize the cargo of any vessel or other conveyance subject to the jurisdiction of the
United States used or employed contrary to
the provisions of this subchapter or the regulations issued hereunder or which reasonably
appears to have been so used or employed; and
(4) seize, whenever and wherever found, all
marine mammals and marine mammals products taken or retained in violation of this subchapter or the regulations issued thereunder
and shall dispose of them, in accordance with
regulations prescribed by the Secretary.
(e) Disposition of seized cargo
(1) Whenever any cargo or marine mammal or
marine mammal product is seized pursuant to
this section, the Secretary shall expedite any
proceedings commenced under section 1375(a) or
(b) of this title. All marine mammal or marine
mammal products or other cargo so seized shall
be held by any person authorized by the Secretary pending disposition of such proceedings.
The owner or consignee of any such marine
mammal or marine mammal product or other
cargo so seized shall, as soon as practicable following such seizure, be notified of that fact in
accordance with regulations established by the
Secretary.
(2) The Secretary may, with respect to any
proceeding under section 1375(a) or (b) of this
title, in lieu of holding any marine mammal or
marine mammal product or other cargo, permit
the person concerned to post bond or other surety satisfactory to the Secretary pending the
disposition of such proceeding.
(3)(A) Upon the assessment of a penalty pursuant to section 1375(a) of this title, all marine
mammals and marine mammal products or
other cargo seized in connection therewith may
be proceeded against in any court of competent
jurisdiction and forfeited to the Secretary for
disposition by him in such manner as he deems
appropriate.
(B) Upon conviction for violation of section
1375(b) of this title, all marine mammals and
marine mammal products seized in connection
therewith shall be forfeited to the Secretary for
disposition by him in such manner as he deems
appropriate. Any other property or item so
seized may, at the discretion of the court, be
forfeited to the United States or otherwise disposed of.
(4) If with respect to any marine mammal or
marine mammal product or other cargo so
seized—

(A) a civil penalty is assessed under section
1375(a) of this title and no judicial action is
commenced to obtain the forfeiture of such
mammal or product within thirty days after
such assessment, such marine mammal or marine mammal product or other cargo shall be
immediately returned to the owner or the consignee; or
(B) no conviction results from an alleged
violation of section 1375(b) of this title, such
marine mammal or marine mammal product
or other cargo shall immediately be returned
to the owner or consignee if the Secretary
does not, with 1 thirty days after the final disposition of the case involving such alleged violation, commence proceedings for the assessment of a civil penalty under section 1375(a) of
this title.
(Pub. L. 92–522, title I, § 107, Oct. 21, 1972, 86 Stat.
1037; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979,
43 F.R. 36037, 92 Stat. 3783; Pub. L. 101–650, title
III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L.
109–479, title IX, § 902(c), Jan. 12, 2007, 120 Stat.
3665.)
Editorial Notes
AMENDMENTS
2007—Subsec. (d)(2). Pub. L. 109–479 substituted ‘‘vessel, other conveyance, or container’’ for ‘‘vessel or
other conveyance’’.
Statutory Notes and Related Subsidiaries
CHANGE OF NAME
‘‘United States magistrate judges’’ substituted for
‘‘United States magistrates’’ in subsec. (c) pursuant to
section 321 of Pub. L. 101–650, set out as a note under
section 631 of Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.
Executive Documents
TRANSFER OF FUNCTIONS
‘‘Director of the Office of Personnel Management’’
substituted for ‘‘Civil Service Commission’’ in subsec.
(b) pursuant to Reorg. Plan No. 2 of 1978, § 102, 43 F.R.
36037, 92 Stat. 3783, set out under section 1101 of Title
5, Government Organization and Employees, which
transferred functions vested by statute in Civil Service
Commission to Director of Office of Personnel Management (except as otherwise specified), effective Jan. 1,
1979, as provided by section 1–102 of Ex. Ord. No. 12107,
Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of
Title 5.

§ 1378. International program
(a) Duties of Secretary
The Secretary, through the Secretary of
State, shall—
(1) initiate negotiations as soon as possible
for the development of bilateral or multilateral agreements with other nations for the
protection and conservation of all marine
mammals covered by this chapter;
1 So

in original. Probably should be ‘‘within’’.

§ 1378

TITLE 16—CONSERVATION

(2) initiate—
(A) negotiations as soon as possible with
all foreign governments which are engaged
in, or which have persons or companies engaged in, commercial fishing operations
which are found by the Secretary to be unduly harmful to any species or population
stock of marine mammal, for the purpose of
entering into bilateral and multilateral
treaties with such countries to protect marine mammals, with the Secretary of State
to prepare a draft agenda relating to this
matter for discussion at appropriate international meetings and forums;
(B) discussions with foreign governments
whose vessels harvest yellowfin tuna with
purse seines in the eastern tropical Pacific
Ocean, for the purpose of concluding,
through the Inter-American Tropical Tuna
Commission or such other bilateral or multilateral institutions as may be appropriate,
international arrangements for the conservation of marine mammals taken incidentally in the course of harvesting such tuna,
which should include provisions for (i) cooperative research into alternative methods of
locating and catching yellowfin tuna which
do not involve the taking of marine mammals, (ii) cooperative research on the status
of affected marine mammal population
stocks, (iii) reliable monitoring of the number, rate, and species of marine mammals
taken by vessels of harvesting nations, (iv)
limitations on incidental take levels based
upon the best scientific information available, and (v) the use of the best marine
mammal safety techniques and equipment
that are economically and technologically
practicable to reduce the incidental kill and
serious injury of marine mammals to insignificant levels approaching a zero mortality
and serious injury rate;
(C) negotiations to revise the Convention
for the Establishment of an Inter-American
Tropical Tuna Commission (1 U.S.T. 230;
TIAS 2044) which will incorporate—
(i) the conservation and management
provisions agreed to by the nations which
have signed the Declaration of Panama
and in the Straddling Fish Stocks and
Highly Migratory Fish Stocks Agreement,
as opened for signature on December 4,
1995; and
(ii) a revised schedule of annual contributions to the expenses of the InterAmerican Tropical Tuna Commission that
is equitable to participating nations; and
(D) discussions with those countries participating, or likely to participate, in the
International Dolphin Conservation Program, for the purpose of identifying sources
of funds needed for research and other measures promoting effective protection of dolphins, other marine species, and the marine
ecosystem;
(3) encourage such other agreements to promote the purposes of this chapter with other
nations for the protection of specific ocean
and land regions which are of special significance to the health and stability of marine
mammals;

Page 1766

(4) initiate the amendment of any existing
international treaty for the protection and
conservation of any species of marine mammal
to which the United States is a party in order
to make such treaty consistent with the purposes and policies of this chapter;
(5) seek the convening of an international
ministerial meeting on marine mammals before July 1, 1973, for the purposes of (A) the negotiation of a binding international convention for the protection and conservation of all
marine mammals, and (B) the implementation
of paragraph (3) of this section; and
(6) provide to the Congress by not later than
one year after October 21, 1972, a full report on
the results of his efforts under this section.
(b) Consultations and studies concerning North
Pacific fur seals
(1) In addition to the foregoing, the Secretary
shall—
(A) in consultation with the Marine Mammal Commission established by section 1401 of
this title, undertake a study of the North Pacific fur seals to determine whether herds of
such seals subject to the jurisdiction of the
United States are presently at their optimum
sustainable population and what population
trends are evident; and
(B) in consultation with the Secretary of
State, promptly undertake a comprehensive
study of the provisions of this chapter, as they
relate to North Pacific fur seals, and the provisions of the North Pacific Fur Seal Convention signed on February 9, 1957, as extended
(hereafter referred to in this subsection as the
‘‘Convention’’), to determine what modifications, if any, should be made to the provisions
of the Convention, or of this chapter, or both,
to make the Convention and this chapter consistent with each other.
The Secretary shall complete the studies required under this paragraph not later than one
year after October 21, 1972, and shall immediately provide copies thereof to Congress.
(2) If the Secretary finds—
(A) as a result of the study required under
paragraph (1)(A) of this subsection, that the
North Pacific fur seal herds are below their
optimum sustainable population and are not
trending upward toward such level, or have
reached their optimum sustainable population
but are commencing a downward trend, and
believes the herds to be in danger of depletion;
or
(B) as a result of the study required under
paragraph (1)(B) of this subsection, that modifications of the Convention are desirable to
make it and this chapter consistent;
he shall, through the Secretary of State, immediately initiate negotiations to modify the Convention so as to (i) reduce or halt the taking of
seals to the extent required to assure that such
herds attain and remain at their optimum sustainable population, or (ii) make the Convention
and this chapter consistent; or both, as the case
may be. If negotiations to so modify the Convention are unsuccessful, the Secretary shall,
through the Secretary of State, take such steps
as may be necessary to continue the existing

Page 1767

TITLE 16—CONSERVATION

Convention beyond its present termination date
so as to continue to protect and conserve the
North Pacific fur seals and to prevent a return
to pelagic sealing.
(c) Description of annual results of discussions;
proposals for further action
The Secretary shall include a description of
the annual results of discussions initiated and
conducted pursuant to subsection (a)(2)(B), as
well as any proposals for further action to
achieve the purposes of that subsection, in the
report required under section 1373(f) of this title.
(Pub. L. 92–522, title I, § 108, Oct. 21, 1972, 86 Stat.
1038; Pub. L. 100–711, § 4(b), (c), Nov. 23, 1988, 102
Stat. 4766, 4767; Pub. L. 105–42, § 4(e), Aug. 15,
1997, 111 Stat. 1125.)
Editorial Notes
AMENDMENTS
1997—Subsecs. (a)(2)(C), (D). Pub. L. 105–42 added subpars. (C) and (D).
1988—Subsec. (a)(2). Pub. L. 100–711, § 4(b), amended
par. (2) generally. Prior to amendment, par. (2) read as
follows: ‘‘initiate negotiations as soon as possible with
all foreign governments which are engaged in, or which
have persons or companies engaged in, commercial
fishing operations which are found by the Secretary to
be unduly harmful to any species of marine mammal,
for the purpose of entering into bilateral and multilateral treaties with such countries to protect marine
mammals. The Secretary of State shall prepare a draft
agenda relating to this matter for discussion at appropriate international meetings and forums;’’.
Subsec. (c). Pub. L. 100–711, § 4(c), added subsec. (c).
Statutory Notes and Related Subsidiaries
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
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1379. Transfer of management authority
(a) State enforcement of State laws or regulations prohibited without transfer to State of
management authority by Secretary
No State may enforce, or attempt to enforce,
any State law or regulation relating to the taking of any species (which term for purposes of
this section includes any population stock) of
marine mammal within the State unless the
Secretary has transferred authority for the conservation and management of that species (hereinafter referred to in this section as ‘‘management authority’’) to the State under subsection
(b)(1).
(b) Findings prerequisite to transfer of authority; State program; implementation
(1) Subject to paragraph (2) and subsection (f)
of this section, the Secretary shall transfer
management authority for a species of marine
mammal to a State if the Secretary finds, after
notice and opportunity for public comment, that
the State has developed and will implement a
program for the conservation and management
of the species that—

§ 1379

(A) is consistent with the purposes, policies,
and goals of this chapter and with international treaty obligations;
(B) requires that all taking of the species be
humane;
(C) does not permit the taking of the species
unless and until—
(i) the State has determined, under a process consistent with the standards set forth
in subsection (c)—
(I) that the species is at its optimum sustainable population (hereinafter in this
section referred to as ‘‘OSP’’), and
(II) the maximum number of animals of
that species that may be taken without reducing the species below its OSP, and
(ii) the determination required under
clause (i) is final and implemented under
State law, and, if a cooperative allocation
agreement for the species is required under
subsection (d)(1), such an agreement is implemented;
(D) does not permit the taking of a number
of animals of the species that exceeds the
maximum number determined pursuant to
subparagraph (C)(i)(II), and, in the case of taking for subsistence uses (as defined in subsection (f)(2)), does not permit the taking of a
number of animals that would be inconsistent
with the maintenance of the species at its
OSP;
(E) does not permit the taking of the species
for scientific research, public display, or enhancing the survival or recovery of a species
or stock, except for taking for such purposes
that is undertaken by, or on behalf of, the
State;
(F) provides procedures for acquiring data,
and evaluating such data and other new evidence, relating to the OSP of the species, and
the maximum take that would maintain the
species at the level, and, if required on the
basis of such evaluation, for amending determinations under subparagraph (C)(i);
(G) provides procedures for the resolution of
differences between the State and the Secretary that might arise during the development of a cooperative allocation agreement
under subsection (d)(1); and
(H) provides for the submission of an annual
report to the Secretary regarding the administration of the program during the reporting
period.
(2) During the period between the transfer of
management authority for a species to a State
under paragraph (1) and the time at which the
implementation requirements under paragraph
(1)(C)(ii) are complied with—
(A) the State program shall not apply with
respect to the taking of the species within the
State for any purpose, or under any condition,
provided for under section 1371 of this title;
and
(B) the Secretary shall continue to regulate,
under this subchapter, all takings of the species within the State.
(3) After the determination required under
paragraph (1)(C)(i) regarding a species is final
and implemented under State law and after a co-

§ 1379

TITLE 16—CONSERVATION

operative allocation agreement described in subsection (d)(1), if required, is implemented for
such species—
(A) such determination shall be treated, for
purposes of applying this subchapter beyond
the territory of the State, as a determination
made in accordance with section 1373 of this
title and as an applicable waiver under section
1371(a)(3) of this title;
(B) the Secretary shall regulate, without regard to this section other than the allocations
specified under such an agreement, the taking
of the species—
(i) incidentally in the course of commercial fishing operations (whether provided for
under section 1371(a)(2) or (4) of this title), or
in the course of other specified activities
provided for under section 1371(a)(5) of this
title, in the zone described in section
1362(14)(B) 1 of this title, and
(ii) for scientific research, public display,
or enhancing the survival or recovery of a
species or stock (other than by, or on behalf
of, the State), except that any taking authorized under a permit issued pursuant to
section 1371(a)(1) of this title after October 9,
1981, allowing the removal of live animals
from habitat within the State shall not be
effective if the State agency disapproves, on
or before the date of issuance of the permit,
such taking as being inconsistent with the
State program; and
(C) section 1371(b) of this title shall not
apply.
(c) Standards with which State process must
comply
The State process required under subsection
(b)(1)(C) must comply with the following standards:
(1) The State agency with management authority for the species (hereinafter in this section referred to as the ‘‘State agency’’) must
make an initial determination regarding the
factors described in clause (i) of that subsection. The State agency must identify, and
make available to the public under reasonable
circumstances, the documentation supporting
such initial determination. Unless request for
a hearing under paragraph (2) regarding the
initial determination is timely made, the initial determination shall be treated as final
under State law.
(2) The State agency shall provide opportunity, at the request of any interested party,
for a hearing with respect to the initial determination made by it under paragraph (1) at
which interested parties may—
(A) present oral and written evidence in
support of or against such determination;
and
(B) cross-examine persons presenting evidence at the hearing.
The State agency must give public notice of
the hearing and make available to the public
within a reasonable time before commencing
the hearing a list of the witnesses for the
State and a general description of the docu1 See

References in Text note below.

Page 1768

mentation and other evidence that will be relied upon by such witnesses.
(3) The State agency, solely on the basis of
the record developed at a hearing held pursuant to paragraph (2), must make a decision regarding its initial determination under paragraph (1) and shall include with the record a
statement of the findings and conclusions, and
the reason or basis therefor, on all material
issues.
(4) Opportunity for judicial review of the decision made by the State agency on the record
under paragraph (3), under scope of review
equivalent to that provided for in section
706(2)(A) through (E) of title 5, must be available under State law. The Secretary may not
initiate judicial review of any such decision.
(d) Cooperative allocation agreements
(1) If the range of a species with respect to
which a determination under paragraph (1)(C)(i)
of subsection (b) is made extends beyond the territorial waters of the State, the State agency
and the Secretary (who shall first coordinate
with the Marine Mammal Commission and the
appropriate Regional Fishery Management
Council established under section 1852 of this
title) shall enter into a cooperative allocation
agreement providing procedures for allocating,
on a timely basis, such of the number of animals, as determined under paragraph (1)(C)(i)(II)
of subsection (b), as may be appropriate with
priority of allocation being given firstly to taking for subsistence uses in the case of the State
of Alaska, and secondly to taking for purposes
provided for under section 1371(a) of this title
within the zone described in section 1362(14)(B) 1
of this title.
(2) If the State agency requests the Secretary
to regulate the taking of a species to which
paragraph (1) applies within the zone described
in section 1362(14)(B) 1 of this title for subsistence uses or for hunting, or both, in a manner
consistent with the regulation by the State
agency of such taking within the State, the Secretary shall adopt, and enforce within such zone,
such of the State agency’s regulatory provisions
as the Secretary considers to be consistent with
his administration of section 1371(a) of this title
within such zone. The Secretary shall adopt
such provisions through the issuance of regulations under section 553 of title 5, and with respect to such issuance the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Paperwork
Reduction Act,1 Executive Order Numbered
12291, dated February 17, 1981, and the thirty-day
notice requirement in subsection (d) of such section 553 shall not apply. For purposes of sections
1375, 1376, and 1377 of this title, such regulations
shall be treated as having been issued under this
subchapter.
(e) Revocation of transfer of management authority
(1) Subject to paragraph (2), the Secretary
shall revoke, after opportunity for a hearing,
any transfer of management authority made to
a State under subsection (b)(1) if the Secretary
finds that the State program for the conservation and management of the species concerned is
not being implemented, or is being implemented
in a manner inconsistent with the provisions of

Page 1769

TITLE 16—CONSERVATION

this section or the provisions of the program.
The Secretary shall also establish a procedure
for the voluntary return by a State to the Secretary of species management authority that
was previously transferred to the State under
subsection (b)(1).
(2)(A) The Secretary may not revoke a transfer of management authority under paragraph
(1) unless—
(i) the Secretary provides to the State a
written notice of intent to revoke together
with a statement, in detail, of those actions,
or failures to act, on which such intent is
based; and
(ii) during the ninety-day period after the
date of the notice of intent to revoke—
(I) the Secretary provides opportunity for
consultation between him and the State concerning such State actions or failures to act
and the remedial measures that should be
taken by the State, and
(II) the State does not take such remedial
measures as are necessary, in the judgment
of the Secretary, to bring its conservation
and management program, or the administration or enforcement of the program, into
compliance with the provisions of this section.
(B) When a revocation by the Secretary of a
transfer of management authority to a State becomes final, or the State voluntarily returns
management authority to the Secretary, the
Secretary shall regulate the taking, and provide
for the conservation and management, of the
species within the State in accordance with the
provisions of this chapter (and in the case of
Alaskan Natives, section 1371(b) of this title and
subsection (i) of this section shall apply upon
such revocation or return of management authority).
(f) Transfer of management authority to State of
Alaska
(1) The Secretary may not transfer management authority to the State of Alaska under
subsection (b)(1) for any species of marine mammal unless—
(A) the State has adopted and will implement a statute and regulations that insure
that the taking of the species for subsistence
uses—
(i) is accomplished in a nonwasteful manner,
(ii) will be the priority consumptive use of
the species, and
(iii) if required to be restricted, such restriction will be based upon—
(I) the customary and direct dependence
upon the species as the mainstay of livelihood,
(II) local residency, and
(III) the availability of alternative resources; and
(B) the State has adopted a statute or regulation that requires that any consumptive use
of marine mammal species, other than for subsistence uses, will be authorized during a regulatory year only if the appropriate agency
first makes findings, based on an administrative record before it, that—

§ 1379

(i) such use will have no significant adverse impact upon subsistence uses of the
species, and
(ii) the regulation of such use, including,
but not limited to, licensing of marine mammal hunting guides and the assignment of
guiding areas, will, to the maximum extent
practicable, provide economic opportunities
for the residents of the rural coastal villages
of Alaska who engage in subsistence uses of
that species.
(2) For purposes of paragraph (1), the term
‘‘subsistence uses’’ means the customary and
traditional uses by rural Alaska residents of marine mammals for direct personal or family consumption as food, shelter, fuel, clothing, tools,
or transportation; for the making and selling of
handicraft articles out of nonedible byproducts
of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family consumption. As used in this
paragraph—
(A) The term ‘‘family’’ means all persons related by blood, marriage, or adoption, or any
person living within a household on a permanent basis.
(B) The term ‘‘barter’’ means the exchange
of marine mammals or their parts, taken for
subsistence uses—
(i) for other wildlife or fish or their parts,
or
(ii) for other food or for nonedible items
other than money if the exchange is of a
limited and noncommercial nature.
(g) Environmental impact statement not required
Neither the transfer of management authority
to a State under subsection (b)(1), nor the revocation or voluntary return of such authority
under subsection (e), shall be deemed to be an
action for which an environmental impact statement is required under section 4332 of title 42.
(h) Taking of marine mammals as part of official
duties
(1) Nothing in this subchapter or subchapter V
shall prevent a Federal, State, or local government official or employee or a person designated
under section 1382(c) of this title from taking, in
the course of his or her duties as an official, employee, or designee, a marine mammal in a humane manner (including euthanasia) if such taking is for—
(A) the protection or welfare of the mammal,
(B) the protection of the public health and
welfare, or
(C) the nonlethal removal of nuisance animals.
(2) Nothing in this subchapter shall prevent
the Secretary or a person designated under section 1382(c) of this title from importing a marine
mammal into the United States if such importation is necessary to render medical treatment
that is not otherwise available.
(3) In any case in which it is feasible to return
to its natural habitat a marine mammal taken
or imported under circumstances described in
this subsection, steps to achieve that result
shall be taken.

§ 1379

TITLE 16—CONSERVATION

(i) Regulations covering taking of marine mammals by Alaskan natives
The Secretary may (after providing notice
thereof in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the affected area
and providing opportunity for a hearing thereon
in such area) prescribe regulations requiring the
marking, tagging, and reporting of animals
taken pursuant to section 1371(b) of this title.
(j) Grants to develop or administer State conservation and management programs
The Secretary may make grants to States to
assist them—
(1) in developing programs, to be submitted
for approval under subsection (b), for the conservation and management of species of marine mammals; and
(2) in administering such programs if management authority for such species is transferred to the State under such subsection.
Grants made under this subsection may not exceed 50 per centum of the costs of developing a
State program before Secretarial approval, or of
administering the program thereafter.
(k) Delegation of administration and enforcement to States
The Secretary is authorized and directed to
enter into cooperative arrangements with the
appropriate officials of any State for the delegation to such State of the administration and enforcement of this subchapter: Provided, That any
such arrangement shall contain such provisions
as the Secretary deems appropriate to insure
that the purposes and policies of this chapter
will be carried out.
(l) Authorization of appropriations
(1) There are authorized to be appropriated to
the Department of the Interior, for the purposes
of carrying out this section, not to exceed
$400,000 for each of the fiscal years ending September 30, 1979, September 30, 1980, and September 30, 1981.
(2) There are authorized to be appropriated to
the Department of Commerce, for the purposes
of carrying out this section, not to exceed
$225,000 for each of the fiscal years ending September 30, 1979, September 30, 1980, and September 30, 1981.
(Pub. L. 92–522, title I, § 109, Oct. 21, 1972, 86 Stat.
1040; Pub. L. 95–316, § 1, July 10, 1978, 92 Stat. 380;
Pub. L. 97–58, § 4(a), Oct. 9, 1981, 95 Stat. 982; Pub.
L. 100–711, § 5(a), (e)(3), Nov. 23, 1988, 102 Stat.
4769, 4771; Pub. L. 102–587, title III, § 3004(a)(2),
Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103–238,
§ 24(c)(10), Apr. 30, 1994, 108 Stat. 566.)

Page 1770

Short Title note set out under section 601 of Title 5 and
Tables.
The Paperwork Reduction Act, referred to in subsec.
(d)(2), probably means the Paperwork Reduction Act of
1980, Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2812, as
amended, which was classified principally to chapter 35
(§ 3501 et seq.) of Title 44, Public Printing and Documents, prior to the general amendment of that chapter
by the Paperwork Reduction Act of 1995, Pub. L. 104–13,
§ 2, May 22, 1995, 109 Stat. 163. For complete classification of this Act to the Code, see Short Title of 1980
Amendment note set out under section 101 of Title 44
and Tables.
Executive Order Numbered 12291, dated February 17,
1981, referred to in subsec. (d)(2), was formerly set out
as a note under section 601 of Title 5, Government Organization and Employees, and was revoked by Ex. Ord.
No. 12866, § 11, Sept. 30, 1993, 58 F.R. 51735.
AMENDMENTS
1994—Subsec. (h)(1). Pub. L. 103–238 made technical
amendment to reference to subchapter V of this chapter to reflect renumbering of corresponding title of
original act.
1992—Subsec. (h)(1). Pub. L. 102–587 inserted ‘‘or subchapter V’’ after ‘‘this subchapter’’ in introductory
provisions.
1988—Subsec. (b)(1)(E). Pub. L. 100–711, § 5(e)(3)(A),
substituted ‘‘research, public display, or enhancing the
survival or recovery of a species or stock’’ for ‘‘research and public display purposes’’.
Subsec. (b)(3)(B)(ii). Pub. L. 100–711, § 5(e)(3)(B), substituted ‘‘research, public display, or enhancing the
survival or recovery of a species or stock’’ for ‘‘research or public display purposes’’.
Subsec. (h). Pub. L. 100–711, § 5(a), amended subsec. (h)
generally. Prior to amendment, subsec. (h) read as follows: ‘‘Nothing in this subchapter shall prevent a Federal, State, or local government official or employee or
a person designated under section 1382(c) of this title
from taking, in the course of his duties as an official,
employee, or designee, a marine mammal in a humane
manner (including euthanasia) if such taking is for—
‘‘(1) the protection or welfare of the mammal,
‘‘(2) the protection of the public health and welfare,
or
‘‘(3) the nonlethal removal of nuisance animals,
and, in any case in which the return of the mammal to
its natural habitat is feasible, includes steps designed
to achieve that result.’’
1981—Subsec. (a). Pub. L. 97–58, § 4(a)(2), added subsec.
(a). Former subsec. (a), relating to State regulation of
the taking of marine mammals, was struck out.
Subsec. (b). Pub. L. 97–58, § 4(a)(2), added subsec. (b).
Former subsec. (b), relating to the making of grants to
States by the Secretary, was struck out. See subsec. (j)
of this section.
Subsecs. (c), (d). Pub. L. 97–58, § 4(a)(1), (2), added subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (k) and (l), respectively.
Subsecs. (e) to (j). Pub. L. 97–58, § 4(a)(2), added subsecs. (e) to (j).
Subsecs. (k), (l). Pub. L. 97–58, § 4(a)(1), redesignated
subsecs. (c) and (d) as (k) and (l), respectively.
1978—Subsec. (d). Pub. L. 95–316 added subsec. (d).
Statutory Notes and Related Subsidiaries

Editorial Notes
REFERENCES IN TEXT
Section 1362(14) of this title, referred to in subsecs.
(b)(3)(B)(i) and (d), was redesignated section 1362(15) by
Pub. L. 102–582, title IV, § 401(a), Nov. 2, 1992, 106 Stat.
4909.
The Regulatory Flexibility Act, referred to in subsec.
(d)(2), is Pub. L. 96–354, Sept. 19, 1980, 94 Stat. 1164,
which is classified generally to chapter 6 (§ 601 et seq.)
of Title 5, Government Organization and Employees.
For complete classification of this Act to the Code, see

EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.
ENFORCEMENT BY HAWAII OF LAWS RELATING TO CONSERVATION AND MANAGEMENT OF HUMPBACK WHALES
WITH RESPECT TO RECREATIONAL AND COMMERCIAL
VESSELS
Pub. L. 108–447, div. B, title II, § 213, Dec. 8, 2004, 118
Stat. 2884, provided that: ‘‘Hereafter, notwithstanding

Page 1771

§ 1380

TITLE 16—CONSERVATION

any other Federal law related to the conservation and
management of marine mammals, the State of Hawaii
may enforce any State law or regulation with respect
to the operation in State waters of recreational and
commercial vessels, for the purpose of conservation and
management of humpback whales, to the extent that
such law or regulation is no less restrictive than Federal law.’’
COOPERATIVE AGREEMENTS UNDER ENDANGERED
SPECIES ACT
Pub. L. 97–58, § 4(b), Oct. 9, 1981, 95 Stat. 986, provided
that: ‘‘Nothing in the amendments made by subsection
(a) [amending this section] shall be construed as affecting in any manner, or to any extent, any cooperative
agreement entered into by a State under section 6(c) of
the Endangered Species Act of 1973 (16 U.S.C. 1535(c))
before, on, or after the date of the enactment of this
Act [Oct. 9, 1981].’’

§ 1380. Marine mammal research grants
(a) Authorization; research concerning yellowfin
tuna; annual report
The Secretary is authorized to make grants,
or to provide financial assistance in such other
form as he deems appropriate, to any Federal or
State agency, public or private institution, or
other person for the purpose of assisting such
agency, institution, or person to undertake research in subjects which are relevant to the protection and conservation of marine mammals. In
carrying out this subsection, the Secretary shall
undertake a program of, and shall provide financial assistance for, research into new methods of
locating and catching yellowfin tuna without
the incidental taking of marine mammals. The
Secretary shall include a description of the annual results of research carried out under this
section in the report required under section
1373(f) of this title.
(b) Terms and conditions
Any grant or other financial assistance provided by the Secretary pursuant to this section
shall be subject to such terms and conditions as
the Secretary deems necessary to protect the interests of the United States and shall be made
after review by the Marine Mammal Commission.
(c) Gulf of Maine ecosystem protection
(1) No later than 1 year after April 30, 1994, the
Secretary of Commerce shall convene a regional
workshop for the Gulf of Maine to assess humancaused factors affecting the health and stability
of that marine ecosystem, of which marine
mammals are a part. The workshop shall be conducted in consultation with the Marine Mammal
Commission, the adjacent coastal States, individuals with expertise in marine mammal biology and ecology, representatives from environmental organizations, the fishing industry, and
other appropriate persons. The goal of the workshop shall be to identify such factors, and to recommend a program of research and management
to restore or maintain that marine ecosystem
and its key components that—
(A) protects and encourages marine mammals to develop to the greatest extent feasible
commensurate with sound policies of resource
management;
(B) has as the primary management objective the maintenance of the health and stability of the marine ecosystems;

(C) ensures the fullest possible range of management options for future generations; and
(D) permits nonwasteful, environmentally
sound development of renewable and nonrenewable resources.
(2) On or before December 31, 1995, the Secretary of Commerce shall submit to the Committee on Merchant Marine and Fisheries of the
House of Representatives and the Committee on
Commerce, Science and Transportation of the
Senate a report containing the results of the
workshop under this subsection, proposed regulatory or research actions, and recommended
legislative action.
(d) Bering Sea ecosystem protection
(1) The Secretary of Commerce, in consultation with the Secretary of the Interior, the Marine Mammal Commission, the State of Alaska,
and Alaska Native organizations, shall, not later
than 180 days after April 30, 1994, undertake a
scientific research program to monitor the
health and stability of the Bering Sea marine
ecosystem and to resolve uncertainties concerning the causes of population declines of marine mammals, sea birds, and other living resources of that marine ecosystem. The program
shall address the research recommendations developed by previous workshops on Bering Sea
living marine resources, and shall include research on subsistence uses of such resources and
ways to provide for the continued opportunity
for such uses.
(2) To the maximum extent practicable, the
research program undertaken pursuant to paragraph (1) shall be conducted in Alaska. The Secretary of Commerce shall utilize, where appropriate, traditional local knowledge and may
contract with a qualified Alaska Native organization to conduct such research.
(3) The Secretary of Commerce, the Secretary
of the Interior, and the Commission shall address the status and findings of the research program in their annual reports to Congress required by sections 1373(f) and 1404 of this title.1
(Pub. L. 92–522, title I, § 110, Oct. 21, 1972, 86 Stat.
1041; Pub. L. 95–136, § 1, Oct. 18, 1977, 91 Stat. 1167;
Pub. L. 95–316, § 2, July 10, 1978, 92 Stat. 380; Pub.
L. 97–58, § 5, Oct. 9, 1981, 95 Stat. 986; Pub. L.
100–711, § 4(e), Nov. 23, 1988, 102 Stat. 4768; Pub. L.
103–238, § 20, Apr. 30, 1994, 108 Stat. 560; Pub. L.
105–42, § 4(f), Aug. 15, 1997, 111 Stat. 1125.)
Editorial Notes
REFERENCES IN TEXT
Provisions of section 1373(f) of this title requiring annual reports to Congress, referred to in subsec. (d)(3),
terminated, effective May 15, 2000. See Termination of
Reporting Requirements note set out under section 1373
of this title.
Section 1404 of this title, referred to in subsec. (d)(3),
was omitted from the Code.
AMENDMENTS
1997—Subsec. (a). Pub. L. 105–42 struck out ‘‘(1)’’ before ‘‘The Secretary is authorized’’ and struck out par.
(2) which read as follows: ‘‘For purposes of identifying
appropriate research into promising new methods of locating and catching yellowfin tuna without the inci1 See

References in Text note below.

§ 1381

TITLE 16—CONSERVATION

dental taking of marine mammals, the Secretary shall
contract for an independent review of information pertaining to such potential alternative methods to be
conducted by the National Academy of Sciences with
individuals having scientific, technical, or other expertise that may be relevant to the identification of promising alternative fishing techniques. The Secretary
shall request that the independent review be submitted
to the Secretary on or before September 8, 1989, and the
Secretary shall submit the report of the independent
review, together with a proposed plan for research, development, and implementation of alternative fishing
techniques, to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee
on Merchant Marine and Fisheries of the House of Representatives on or before December 5, 1989.’’
1994—Subsecs. (c), (d). Pub. L. 103–238 added subsecs.
(c) and (d) and struck out former subsec. (c) which authorized appropriations to be made available to the
Secretary of Commerce and the Secretary of the Interior for purposes of carrying out this section for fiscal
year ending June 30, 1973, to fiscal year ending Sept. 30,
1981.
1988—Subsec. (a). Pub. L. 100–711 designated existing
provisions as par. (1) and added par. (2).
1981—Subsec. (a). Pub. L. 97–58 directed the Secretary
to undertake a program of research into new methods
of locating and catching yellowfin tuna without the incidental taking of marine mammals and directed that
the Secretary include a description of the annual results of that research in the report required under section 1373(f) of this title.
1978—Subsec. (c)(4) to (6). Pub. L. 95–316 added pars.
(4) to (6).
1977—Subsec. (c). Pub. L. 95–136 incorporated existing
provisions into text preceding par. (1) and, as so incorporated, struck out provisions authorizing to be appropriated such sums as may be necessary to carry out
this section for the fiscal year in which this section
takes effect and the next four years thereafter, limiting appropriations for any one year to $2,500,000, and
requiring that one-third of such sums be made available to the Secretary of the Interior and two-thirds of
such sums be made available to the Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, and added pars. (1)
to (3).
Statutory Notes and Related Subsidiaries
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
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 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. For treatment of references to Committee on Merchant Marine and Fisheries, see section 1(b)(3) of Pub. L. 104–14, set out as a
note preceding section 21 of Title 2, The Congress.

§ 1381. Commercial fisheries gear development
(a) Research and development program; report
to Congress; authorization of appropriations
The Secretary of the department in which the
National Oceanic and Atmospheric Administration is operating (hereafter referred to in this
section as the ‘‘Secretary’’) is hereby authorized

Page 1772

and directed to immediately undertake a program of research and development for the purpose of devising improved fishing methods and
gear so as to reduce to the maximum extent
practicable the incidental taking of marine
mammals in connection with commercial fishing. At the end of the full twenty-four calendar
month period following October 21, 1972, the Secretary shall deliver his report in writing to the
Congress with respect to the results of such research and development. For the purposes of
this section, there is hereby authorized to be appropriated the sum of $1,000,000 for the fiscal
year ending June 30, 1973, and the same amount
for the next fiscal year. Funds appropriated for
this section shall remain available until expended.
(b) Reduction of level of taking of marine mammals incidental to commercial fishing operations
The Secretary, after consultation with the
Marine Mammal Commission, is authorized and
directed to issue, as soon as practicable, such
regulations, covering the twenty-four-month period referred to in section 1371(a)(2) of this title,
as he deems necessary or advisable, to reduce to
the lowest practicable level the taking of marine mammals incidental to commercial fishing
operations. Such regulations shall be adopted
pursuant to section 553 of title 5. In issuing such
regulations, the Secretary shall take into account the results of any scientific research
under subsection (a) of this section and, in each
case, shall provide a reasonable time not exceeding four months for the persons affected to implement such regulations.
(c) Reduction of level of taking of marine mammals in tuna fishery
Additionally, the Secretary and Secretary of
State are directed to commence negotiations
within the Inter-American Tropical Tuna Commission in order to effect essential compliance
with the regulatory provisions of this chapter so
as to reduce to the maximum extent feasible the
incidental taking of marine mammals by vessels
involved in the tuna fishery. The Secretary and
Secretary of State are further directed to request the Director of Investigations of the InterAmerican Tropical Tuna Commission to make
recommendations to all member nations of the
Commission as soon as is practicable as to the
utilization of methods and gear devised under
subsection (a) of this section.
(d) Research and observation
Furthermore, after timely notice and during
the period of research provided in this section,
duly authorized agents of the Secretary are
hereby empowered to board and to accompany
any commercial fishing vessel documented
under the laws of the United States, there being
space available, on a regular fishing trip for the
purpose of conducting research or observing operations in regard to the development of improved fishing methods and gear as authorized
by this section. Such research and observation
shall be carried out in such manner as to minimize interference with fishing operations. The
Secretary shall provide for the cost of quartering and maintaining such agents. No master,

Page 1773

§ 1383

TITLE 16—CONSERVATION

operator, or owner of such a vessel shall impair
or in any way interfere with the research or observation being carried out by agents of the Secretary pursuant to this section.

consultation with the Marine Mammal Commission and the appropriate Federal agencies and
after notice and opportunity for public comment.

(Pub. L. 92–522, title I, § 111, Oct. 21, 1972, 86 Stat.
1041.)

(Pub. L. 92–522, title I, § 112, Oct. 21, 1972, 86 Stat.
1042; Pub. L. 96–470, title II, § 201(e), Oct. 19, 1980,
94 Stat. 2241; Pub. L. 102–587, title III, § 3004(a)(3),
Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103–238, §§ 7(a),
24(c)(11), Apr. 30, 1994, 108 Stat. 542, 566.)

Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1382. Regulations and administration
(a) Consultation with Federal agencies
The Secretary, in consultation with any other
Federal agency to the extent that such agency
may be affected, shall prescribe such regulations
as are necessary and appropriate to carry out
the purposes of this subchapter.
(b) Cooperation by Federal agencies
Each Federal agency is authorized and directed to cooperate with the Secretary, in such
manner as may be mutually agreeable, in carrying out the purposes of this subchapter.
(c) Contracts, leases, and cooperative agreements
The Secretary may enter into such contracts,
leases, cooperative agreements, or other transactions as may be necessary to carry out the
purposes of this subchapter or subchapter V and
on such terms as he deems appropriate with any
Federal or State agency, public or private institution, or other person.
(d) Annual review; suspension of program
The Secretary shall review annually the operation of each program in which the United
States participates involving the taking of marine mammals on lands. If at any time the Secretary finds that any such program cannot be
administered on lands owned by the United
States or in which the United States has an interest in a manner consistent with the purposes
of 1 policies of this chapter, he shall suspend the
operation of that program and shall include in
the annual report to the public and the Congress
required under section 1373(f) of this title his
reasons for such suspension, together with recommendations for such legislation as he deems
necessary and appropriate to resolve the problem.
(e) Measures to alleviate impacts on strategic
stocks
If the Secretary determines, based on a stock
assessment under section 1386 of this title or
other significant new information obtained
under this chapter, that impacts on rookeries,
mating grounds, or other areas of similar ecological significance to marine mammals may be
causing the decline or impeding the recovery of
a strategic stock, the Secretary may develop
and implement conservation or management
measures to alleviate those impacts. Such measures shall be developed and implemented after
1 So

in original.

Editorial Notes
AMENDMENTS
1994—Subsec. (c). Pub. L. 103–238, § 24(c)(11), made
technical amendment to reference to subchapter V of
this chapter to reflect renumbering of corresponding
title of original act.
Subsec. (e). Pub. L. 103–238, § 7(a), added subsec. (e).
1992—Subsec. (c). Pub. L. 102–587 inserted ‘‘or subchapter V’’ after ‘‘of this subchapter’’.
1980—Subsec. (d). Pub. L. 96–470 substituted ‘‘include
in the annual report to the public and the Congress required under section 1373(f) of this title’’ for ‘‘forthwith
submit to Congress’’.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1383. Application to other treaties and conventions
(a) Generally; findings; waiver of penalties
The provisions of this subchapter shall be
deemed to be in addition to and not in contravention of the provisions of any existing
international treaty, convention, or agreement,
or any statute implementing the same, which
may otherwise apply to the taking of marine
mammals. Upon a finding by the Secretary that
the provisions of any international treaty, convention, or agreement, or any statute implementing the same has been made applicable to
persons subject to the provisions of this subchapter in order to effect essential compliance
with the regulatory provisions of this chapter so
as to reduce to the lowest practicable level the
taking of marine mammals incidental to commercial fishing operations, section 1375 of this
title may not apply to such persons.
(b) Review of effectiveness of Agreement on the
Conservation of Polar Bears
Not later than 1 year after April 30, 1994, the
Secretary of the Interior shall, in consultation
with the contracting parties, initiate a review of
the effectiveness of the Agreement on the Conservation of Polar Bears, as provided for in Article IX of the Agreement, and establish a process
by which future reviews shall be conducted.
(c) Review of implementation of Agreement on
the Conservation of Polar Bears; report
The Secretary of the Interior, in consultation
with the Secretary of State and the Marine
Mammal Commission, shall review the effectiveness of United States implementation of the
Agreement on the Conservation of Polar Bears,
particularly with respect to the habitat protection mandates contained in Article II. The Sec-

§ 1383a

TITLE 16—CONSERVATION

retary shall report the results of this review to
the Committee on Merchant Marine and Fisheries of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate not later than April 1,
1995.
(d) Consultation regarding conservation of polar
bears in Russia and Alaska; report
Not later than 6 months after April 30, 1994,
the Secretary of the Interior, acting through the
Secretary of State and in consultation with the
Marine Mammal Commission and the State of
Alaska, shall consult with the appropriate officials of the Russian Federation on the development and implementation of enhanced cooperative research and management programs for the
conservation of polar bears in Alaska and Russia. The Secretary shall report the results of
this consultation and provide periodic progress
reports on the research and management programs to the Committee on Merchant Marine
and Fisheries of the House of Representatives
and the Committee on Commerce, Science and
Transportation of the Senate.
(Pub. L. 92–522, title I, § 113, Oct. 21, 1972, 86 Stat.
1042; Pub. L. 103–238, § 7(b), Apr. 30, 1994, 108 Stat.
542.)
Editorial Notes
CODIFICATION
A prior subsec. (b) of section 113 of Pub. L. 92–522
amended section 659 of this title.
AMENDMENTS
1994—Subsec. (a). Pub. L. 103–238, § 7(b)(1), directed the
amendment of this section by ‘‘designating the existing
paragraph’’ as subsec. (a), notwithstanding the existing
first par. of this section was already designated (a).
Subsecs. (b) to (d). Pub. L. 103–238, § 7(b)(2), added subsecs. (b) to (d). See Codification note above.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 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. Committee on Resources of
House of Representatives changed to Committee on
Natural Resources of House of Representatives by
House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.

Page 1774

§ 1383a. Interim exemption for commercial fisheries
(a) Effective and termination dates of preemptive provisions; law governing incidental taking of marine mammals in course of commercial yellowfin tuna fishing
(1) During the period beginning on November
23, 1988, and until superseded by regulations prescribed under section 1387 of this title, or until
September 1, 1995, whichever is earlier, except as
provided in paragraph (2), the provisions of this
section, rather than sections 1371, 1373, and 1374
of this title, shall govern the incidental taking
of marine mammals in the course of commercial
fishing operations by persons using vessels of
the United States and vessels which have valid
fishing permits issued by the Secretary in accordance with section 1824(b) of this title. In any
event it shall be the immediate goal that the incidental kill or 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.
(2) The provisions of this section other than
subsection (e)(6)(A) shall not govern the incidental taking of marine mammals in the course
of commercial yellowfin tuna fishing subject to
section 1374(h)(2) of this title.
(b) Proposed and final list of fisheries taking marine mammals; publication in Federal Register; grant of exemption; conditions; suspension of grant of exemption; administration of
exemption provisions; fees
(1) The Secretary shall, after consultation
with the Marine Mammal Commission—
(A) publish in the Federal Register, for public comment, not later than sixty days after
November 23, 1988, a proposed list of those fisheries, along with a statement of the marine
mammals and the approximate number of vessels or persons involved in each such fishery,
that have—
(i) frequent incidental taking of marine
mammals;
(ii) occasional incidental taking of marine
mammals; or
(iii) a remote likelihood of or no known incidental taking of marine mammals;
(B) publish in the Federal Register not later
than one hundred and twenty days after November 23, 1988, a final list of the fisheries and
other information required by paragraph (A),
together with a summary of the provisions of
this section and information sufficient to advise vessel owners on how to obtain an exemption and otherwise comply with the requirements of this section; and
(C) at least once each year thereafter, and at
such other times as the Secretary considers
appropriate, reexamine, based on information
gathered from the program established under
subsections (c), (d), (e), and (f), and other relevant sources and after notice and opportunity
for public comment, the classification of fisheries and other determinations required under
subparagraph (A) and publish in the Federal
Register any necessary changes.
(2)(A) An exemption shall be granted by the
Secretary in accordance with this section for a

Page 1775

TITLE 16—CONSERVATION

vessel engaged in a fishery identified under
paragraph (1)(A)(i) or (ii), upon receipt by the
Secretary of a completed registration form providing the name of the vessel owner, the name
and description of the vessel, the fisheries in
which it will be engaged, and such other information as the Secretary considers necessary. A
decal or other physical evidence that the exemption is current and valid shall be issued by the
Secretary at the time an exemption is granted,
and so long as the exemption remains current
and valid, shall be reissued annually thereafter.
(B) No exemption may be granted under this
section to the owner of a vessel unless such vessel—
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the
Secretary in accordance with section 1824(b) of
this title.
(C) Notwithstanding any other provision of
this subchapter, exemptions granted under this
section shall authorize the incidental taking of
marine mammals, other than California sea otters, from any species or stock, including a population stock designated as depleted, but shall
not authorize the intentional lethal taking of
any Steller sea lion, any cetacean, or any marine mammals from a population stock designated as depleted.
(3)(A) Beginning two hundred and forty days
after November 23, 1988, each owner of a vessel
engaged in any fishery identified under paragraph (1)(A)(i) or (ii) shall, in order to engage
lawfully in that fishery—
(i) have registered with the Secretary in
order to obtain for each such vessel owned an
exemption for the purpose of incidentally taking marine mammals in accordance with this
section;
(ii) ensure that a decal or such other physical evidence of a current and valid exemption
as the Secretary may require is displayed on
or is in the possession of the master of each
such vessel; and
(iii) report as required by subsection (c).
(B) Any owner of a vessel receiving an exemption under this section for any fishery identified
under paragraph (1)(A)(i) shall, as a condition of
that exemption, take on board a natural resource observer if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery
identified under paragraph (1)(A)(i) or (ii) who—
(i) fails to obtain from the Secretary an exemption under this section;
(ii) fails to maintain a current and valid exemption; or
(iii) fails to ensure that a decal or other
physical evidence of such exemption issued by
the Secretary is displayed on or is in possession of the master of the vessel,
and the master of any such vessel engaged in
such fishery, shall be deemed to have violated
this subchapter, and shall be subject to the penalties of this subchapter except in the case of
unknowing violations before January 1, 1990.
(D) If the owner of a vessel has obtained and
maintains a current and valid exemption from
the Secretary under this section and meets the
requirements set forth in this section, the owner

§ 1383a

of such vessel, and the master and crew members of the vessel, shall not be subject to the
penalties set forth in this subchapter for the incidental taking of marine mammals while such
vessel is engaged in a fishery to which the exemption applies.
(E) Each owner of a vessel engaged in any fishery not identified in paragraph (1)(A)(i) or (ii),
and the master and crew members of such a vessel, shall not be subject to the penalties set
forth in this subchapter for the incidental taking of marine mammals if such owner reports to
the Secretary, in such form and manner as the
Secretary may require, instances of lethal incidental taking in the course of that fishery.
(4) The Secretary shall suspend or revoke an
exemption granted under this section and shall
not issue a decal or other physical evidence of
the exemption for any vessel until the owner of
such vessel complies with the reporting requirements under subsection (c) and such requirements to take on board a natural resource observer under paragraph (3)(B) as are applicable
to such vessel.
(5)(A) The Secretary shall develop, in consultation with the appropriate States, Regional
Fishery Management Councils, and other interested parties, the means by which the granting
and administration of exemptions under this
section shall be integrated and coordinated, to
the maximum extent practicable, with existing
fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of
general circulation, fishery trade associations,
electronic media, and other means of advising
commercial fishermen of the provisions of this
section and the means by which they can comply with its requirements.
(C) The Secretary is authorized to charge a fee
for the granting of an exemption under this subsection. The level of fees charged under this subparagraph shall not exceed the administrative
costs incurred in granting an exemption. Fees
collected under this subparagraph shall be available to the Under Secretary of Commerce for
Oceans and Atmosphere for expenses incurred in
the granting and administration of exemptions
under this section.
(c) Compilation of information by vessel owners;
contents
The owner of each vessel holding an exemption
granted under subsection (b) of this section shall
regularly compile information which shall be
used in a report to be submitted to the Secretary at the close of the fishing season or annually, as the Secretary may prescribe. Such report shall be submitted in such form as the Secretary may require and shall include the following:
(1) the type of fishery engaged in by the owner’s vessel;
(2) the date and approximate time of any incidental taking of a marine mammal, together
with the area in which the incidental taking
occurred, the fishing gear used at the time of
the incidental taking, and the species of fish
involved; and
(3) for each incidental taking, the number
and species of marine mammals involved,

§ 1383a

TITLE 16—CONSERVATION

whether the marine mammals were deterred
from gear or catch, incidentally injured, incidentally killed, or lethally removed to protect
gear, catch, or human life.
If there was no incidental taking of marine
mammals during the reporting period, a report
stating that fact shall be filed with the Secretary.
(d) Program for enhancement and verification of
information received from vessel owners;
confidentiality of information
(1) The Secretary shall establish a program to
enhance the quality of and verify information
received from reports submitted by owners of
vessels who have been granted an exemption
under subsection (b) of this section. The program shall include, but not be limited to—
(A) education efforts regarding the information that must be submitted;
(B) interviews with fishermen; and
(C) other such information gathering and
verification activities that will enable the
Secretary to determine reliably the nature,
type, and extent of the incidental taking of
marine mammals that occurs in a fishery.
Except to the extent authorized by the provisions of subsection (e), the program shall not include placement of observers aboard exempted
vessels.
(2) Information obtained under this subsection
shall be subject to the confidentiality provisions
of subsection (j).
(e) Observers on board exempted vessels; confidentiality of information; authorization of
appropriations
(1) For each fishery identified under subsection (b)(1)(A)(i) of this section, the Secretary
shall, after consultation with the appropriate
Regional Fishery Management Councils, other
Federal and State agencies, and other interested
parties, and subject to paragraph (6), place observers on board exempted vessels so as to monitor not less than 20 percent nor more than 35
percent of the fishing operations by vessels in
the fishery to obtain statistically reliable information on the species and number of marine
mammals incidentally taken in the fishery. If
the Secretary determines that fewer than 20 percent of the fishing operations by vessels in the
fishery will be monitored during the course of
the fishing season, the Secretary shall implement the alternative observation program described in subsection (f) to the extent necessary
to supplement the observer program described in
this subsection.
(2) When determining the distribution of observers among fisheries and between vessels in a
particular fishery, the Secretary shall be guided
by the following standards:
(A) the requirement to obtain the best scientific information available;
(B) the requirement that assignment of observers is fair and equitable among fisheries
and among vessels in a fishery;
(C) consistent with paragraph (1), the requirement that no individual person or vessel,
or group of persons or vessels, be subject to excessive or overly burdensome observer coverage; and

Page 1776

(D) where practicable, the need to minimize
costs and avoid duplication.
(3) If the Secretary finds that, for reasons beyond his or her control, the Secretary cannot assign observers to all the fisheries identified
under subsection (b)(1)(A)(i) of this section at
the level of observer coverage set forth in paragraph (1), the Secretary shall allocate available
observers among such fisheries, consistent with
paragraph (2), according to the following priority:
(A) those fisheries that incidentally take
marine mammals from any population stock
designated as depleted;
(B) those fisheries that incidentally take
marine mammals from population stocks that
the Secretary believes are declining;
(C) those fisheries other than those described in subparagraphs (A) and (B) in which
the greatest incidental take of marine mammals occur; and
(D) any other fishery identified under subsection (b)(1)(A)(i).
The Secretary may, with the consent of the vessel owner, station an observer on board a vessel
engaged in a fishery not identified under subsection (b)(1)(A)(i).
(4) Information gathered by observers shall be
subject to the provisions of subsection (j). Consistent with the requirements of paragraph (1),
the Secretary shall, if requested by the Appropriate 1 Regional Fishery Management Council,
or in the case of a State fishery, the State, require observers to collect additional information, including but not limited to the quantities,
species, and physical condition of target and
non-target fishery resources and, if requested by
the Secretary of the Interior, seabirds.
(5) Notwithstanding the provisions of paragraph (4), the Secretary may decline to require
observers to collect information described in
such paragraph, if the Secretary finds in writing, following public notice and opportunity for
comment, that such information will not contribute to the protection of marine mammals or
the understanding of the marine ecosystem, including fishery resources and seabirds.
(6) The Secretary shall not be required to
place an observer on a vessel in a fishery if the
Secretary finds that—
(A) in a situation where harvesting vessels
are delivering fish to a processing vessel and
the catch is not taken on board the harvesting
vessel, statistically reliable information can
be obtained from an observer on board the
processing vessel to which the fish are delivered;
(B) the facilities of a vessel for the quartering of an observer, or for carrying out observer functions, are so inadequate or unsafe
that the health or safety of the observer or the
safe operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the
Secretary, an observer is not available.
(7)(A) An observer on a vessel (or the observer’s personal representative) under the requirements of this section or section 1374 of this title
1 So

in original. Probably should not be capitalized.

Page 1777

TITLE 16—CONSERVATION

that is ill, disabled, injured, or killed from service as an observer on that vessel may not bring
a civil action under any law of the United States
for that illness, disability, injury, or death
against the vessel or vessel owner, except that a
civil action may be brought against the vessel
owner for the owner’s willful misconduct.
(B) This paragraph does not apply if the observer is engaged by the owner, master, or individual in charge of a vessel to perform any duties in service to the vessel.
(8) There are authorized to be appropriated to
the Department of Commerce for the purposes of
carrying out this subsection not to exceed
$2,700,000 for fiscal year 1989 and not to exceed
$8,000,000 for each of the fiscal years 1990, 1991,
1992, and 1993.
(f) Alternative observation program
(1) The Secretary shall establish an alternative observation program to provide statistically reliable information on the species and
number of marine mammals incidentally taken
in those fisheries identified pursuant to subsection (b)(1)(A)(i) of this section for which the
required level of observer coverage has not been
met or for any other fisheries about which such
reliable information is not otherwise available.
The alternative program shall include, but not
be limited to, direct observation of fishing activities from vessels, airplanes, or points on
shore.
(2) Individuals engaged in the alternative observation program shall collect scientific information on the fisheries subject to observation,
consistent with the requirements of paragraph
(1) and subsection (e)(4) and (5). All information
collected shall be subject to the provisions of
subsection (j).
(g) Review of information and evaluation of effects of incidental taking on population
stocks of marine mammals; promulgation of
emergency regulations to mitigate immediate
and significant adverse impacts; action to
mitigate non-immediate impacts
(1) The Secretary shall review information regarding the incidental taking of marine mammals and evaluate the effects of such incidental
taking on the affected population stocks of marine mammals.
(2) If the Secretary finds, based on the information received from the programs established
under subsections (c), (d), (e), and (f), that the
incidental taking of marine mammals in a fishery is having an immediate and significant adverse impact on a marine mammal population
stock or, in the case of Steller sea lions and
North Pacific fur seals, that more than 1,350 and
50, respectively, will be incidentally killed during a calendar year, the Secretary shall consult
with appropriate Regional Fishery Management
Councils and State fishery managers and prescribe emergency regulations to prevent to the
maximum extent practicable any further taking. Any emergency regulations prescribed
under this paragraph—
(A) shall, to the maximum extent practicable, avoid interfering with existing State
or regional fishery management plans;
(B) shall be published in the Federal Register together with the reasons therefor;

§ 1383a

(C) shall remain in effect for not more than
one hundred and eighty days or until the end
of the fishing season, whichever is earlier; and
(D) may be terminated by the Secretary at
an earlier date by publication in the Federal
Register of a notice of termination if the Secretary determines the reasons for the emergency regulations no longer exist.
In prescribing emergency regulations under this
paragraph, the Secretary shall take into account the economics of the fishery concerned
and the availability of existing technology to
prevent or minimize incidental taking of marine
mammals.
(3) If the Secretary finds, based on information
received from the programs established under
subsections (c), (d), (e), and (f), that incidental
taking of marine mammals in a fishery is not
having an immediate and significant adverse
impact on a marine mammal population stock
but that it will likely have a significant adverse
impact over a period of time longer than one
year, the Secretary shall request the appropriate Regional Fishery Management Council or
State to initiate, recommend, or take such action within its authority as it considers necessary to mitigate the adverse impacts, including adjustments to requirements on fishing
times or areas or the imposition of restrictions
on the use of vessels or gear.
(4) The Secretary shall impose appropriate
conditions and restrictions on an exemption
granted under subsection (b) if—
(A) a Regional Fishery Management Council
or State does not act in a reasonable period of
time on a request made by the Secretary
under paragraph (3); or
(B) if the Secretary determines after notice
and opportunity for public comment that the
purposes of this section would be better served
by such action.
(h) Information and management system for
processing and analyzing reports and information; accessibility to public
The Secretary shall design and implement an
information management system capable of
processing and analyzing reports received from
the programs established under subsections (c),
(d), (e), and (f), and other relevant sources, including Federal and State enforcement authorities, marine mammal stranding networks, and
the marine mammal researchers. The information shall be made accessible to the public on a
continuing basis, but in any case no later than
six months after it is received, subject to the
provisions of subsection (j).
(i) Utilization of services of State and Federal
agencies and private entities
When carrying out the Secretary’s responsibilities under subsections (b), (d), (e), (f), and (h) of
this section, the Secretary shall, to the maximum extent practicable, utilize the services
and programs of State agencies, Federal agencies (including programs established by Regional Fishery Management Councils), marine
fisheries commissions, universities, and private
entities, on a reimbursable basis or otherwise.
The Secretary is authorized to enter into contracts and agreements to carry out his or her re-

§ 1383a

TITLE 16—CONSERVATION

sponsibilities and shall establish appropriate
guidelines to ensure that other programs used or
contracted for will meet the same standards as
a program established by the Secretary. A person contracting with the Secretary to provide
observer services under subsection (e) of this
section must provide evidence of financial responsibility in an amount and form prescribed
by the Secretary to compensate employees (or
their survivors) adequately for any illness, disability, injury, or death from service on a vessel.
(j) Confidentiality of information; exceptions
(1) Any information collected under subsection
(c), (d), (e), (f), or (h) of this section shall be confidential and shall not be disclosed except—
(A) to Federal employees whose duties require access to such information;
(B) to State employees pursuant to an agreement with the Secretary that prevents public
disclosure of the identity or business of any
person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries, to employees of Regional
Fishery Management Councils who are responsible for fishery management plan development and monitoring.
(2) The Secretary shall prescribe such procedures as may be necessary to preserve such confidentiality, except that the Secretary shall release or make public any such information in
aggregate, summary, or other form which does
not directly or indirectly disclose the identity
or business of any person.
(k) Regulations
The Secretary, in consultation with any other
Federal agency to the extent that such agency
may be affected, shall prescribe such regulations
as necessary and appropriate to carry out the
purposes of this section.
(l) Suggested regime governing incidental taking
of marine mammals following termination of
interim exemptions
(1) The Chairman of the Marine Mammal Commission shall, after consultation with interested
parties and not later than February 1, 1990,
transmit to the Secretary and make available to
the public recommended guidelines to govern
the incidental taking of marine mammals in the
course of commercial fishing operations, other
than those subject to section 1374(h)(2) of this
title, after October 1, 1993. Such guidelines shall
be developed by the Commission and its Committee of Scientific Advisers on Marine Mammals and shall—
(A) be designed to provide a scientific rationale and basis for determining how many
marine mammals may be incidentally taken
under a regime to be adopted to govern such
taking after October 1, 1993;
(B) be based on sound principles of wildlife
management, and be consistent with and in
furtherance of the purposes and policies set
forth in this chapter; and
(C) to the maximum extent practicable, include as factors to be considered and utilized
in determining permissible levels of such taking—
(i) the status and trends of the affected
marine mammal population stocks;

Page 1778

(ii) the abundance and annual net recruitment of such stocks;
(iii) the level of confidence in the knowledge of the affected stocks; and
(iv) the extent to which incidental taking
will likely cause or contribute to their decline or prevent their recovery to optimum
sustainable population levels.
(2) The Secretary shall advise the Chairman of
the Commission in writing if the Secretary determines that any additional information or explanation of the Chairman’s recommendations is
needed, and the Chairman shall respond in writing to any such request by the Secretary.
(3) On or before February 1, 1991, the Secretary, after consultation with the Marine Mammal Commission, Regional Fishery Management
Councils, and other interested governmental and
nongovernmental organizations, shall publish in
the Federal Register, for public comment, the
suggested regime that the Secretary considers
should, if authorized by enactment of any additional legislation, govern incidental taking of
marine mammals, other than those subject to
section 1374(h)(2) of this title, after October 1,
1993. The suggested regime shall include—
(A) the scientific guidelines to be used in determining permissible levels of incidental taking;
(B) a description of the arrangements for
consultation and cooperation with other Federal agencies, the appropriate Regional Fishery Management Councils and States, the
commercial fishing industry, and conservation
organizations; and
(C) a summary of such regulations and legislation as would be necessary to implement the
suggested regime.
(4) On or before January 1, 1992, the Secretary,
after consultation with the Marine Mammal
Commission, and consideration of public comment, shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and
Fisheries of the House of Representatives recommendations pertaining to the incidental taking of marine mammals, other than those subject to section 1374(h)(2) of this title, after October 1, 1993. The recommendations shall include—
(A) the suggested regime developed under
paragraph (3) of this subsection as modified
after comment and consultations;
(B) a proposed schedule for implementing
the suggested regime; and
(C) such recommendations for additional legislation as the Secretary considers necessary
or desirable to implement the suggested regime.
(m) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior prior to taking actions or
making determinations under this section that
affect or relate to species or population stocks
of marine mammals for which the Secretary of
the Interior is responsible under this subchapter.
(n) Owner of fixed commercial fishing gear
deemed owner of vessel engaged in fishery in
which gear deployed
For the purposes of this section, the owner of
fixed or other commercial fishing gear that is

Page 1779

TITLE 16—CONSERVATION

deployed with or without the use of a vessel
shall be deemed to be an owner of a vessel engaged in the fishery in which that gear is deployed.
(o) Definitions
As used in this section—
(1) the term ‘‘fishery’’ has the same meaning
as it does in section 1802(8) 2 of this title.
(2) the term ‘‘Secretary’’ means the Secretary of Commerce.
(3) the term ‘‘vessel engaged in a fishery’’
means a fishing vessel as defined in section
2101(12) of title 46 or a fish processing vessel as
defined in section 2101(13) of that title, which
is engaged in fishery.
(4) the term ‘‘vessel of the United States’’
has the same meaning as it does in section
1802(27) 2 of this title.
(Pub. L. 92–522, title I, § 114, as added Pub. L.
100–711, § 2(a)(2), Nov. 23, 1988, 102 Stat. 4755;
amended Pub. L. 103–86, Sept. 30, 1993, 107 Stat.
930; Pub. L. 103–228, Mar. 31, 1994, 108 Stat. 281;
Pub. L. 103–238, § 15(a), Apr. 30, 1994, 108 Stat. 559;
Pub. L. 104–43, title IV, § 404(a)(1), Nov. 3, 1995,
109 Stat. 390; Pub. L. 104–208, div. A, title I,
§ 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat.
3009, 3009–41; Pub. L. 115–232, div. C, title XXXV,
§ 3541(b)(1), Aug. 13, 2018, 132 Stat. 2323.)
Editorial Notes
REFERENCES IN TEXT
Section 1802 of this title, referred to in subsec. (o)(1),
(4), was subsequently amended, and section 1802(8) and
(27) no longer defines the terms ‘‘fishery’’ and ‘‘vessel
of the United States’’. However, such terms are defined
elsewhere in that section.
AMENDMENTS
2018—Subsec. (o)(3). Pub. L. 115–232 substituted ‘‘section 2101(12)’’ for ‘‘section 2101(11a)’’ and ‘‘section
2101(13)’’ for ‘‘section 2101(11b)’’.
1996—Subsecs. (a)(1), (b)(2)(B)(ii), (o)(1), (4). Pub. L.
104–208 made technical amendment to references in
original act which appear in text as references to sections 1802(8), (27) and 1824(b) of this title.
1995—Pub. L. 104–43 amended directory language of
Pub. L. 103–238. See 1994 Amendment note below.
1994—Subsec. (a)(1). Pub. L. 103–238, as amended by
Pub. L. 104–43, substituted ‘‘until superseded by regulations prescribed under section 1387 of this title, or until
September 1, 1995, whichever is earlier,’’ for ‘‘ending
May 1, 1994.’’
Pub. L. 103–228 substituted ‘‘May 1, 1994.’’ for ‘‘April
1, 1994,’’.
1993—Subsec. (a)(1). Pub. L. 103–86 substituted ‘‘April
1, 1994’’ for ‘‘October 1, 1993’’.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1995 AMENDMENT
Pub. L. 104–43, title IV, § 404(a)(2), Nov. 3, 1995, 109
Stat. 391, provided that: ‘‘The amendment made by
paragraph (1) [amending this section] shall be effective
on and after April 30, 1994.’’
2 See

References in Text note below.

§ 1383b

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. Committee on Resources of
House of Representatives changed to Committee on
Natural Resources of House of Representatives by
House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.

§ 1383b. Status review; conservation plans
(a) Determinations by rule; notice and hearing;
findings; final rule on status of species or
stock involved
(1) In any action by the Secretary to determine if a species or stock should be designated
as depleted, or should no longer be designated as
depleted, regardless of whether such action is
taken on the initiative of the Secretary or in response to a petition for a status review, the Secretary shall only make such a determination by
issuance of a rule, after notice and opportunity
for public comment and after a call for information in accordance with paragraph (2).
(2) The Secretary shall make any determination described in paragraph (1) solely on the
basis of the best scientific information available. Prior to the issuance of a proposed rule
concerning any such determination, the Secretary shall publish in the Federal Register a
call to assist the Secretary in obtaining scientific information from individuals and organizations concerned with the conservation of marine mammals, from persons in any industry
which might be affected by the determination,
and from academic institutions. In addition, the
Secretary shall utilize, to the extent the Secretary determines to be feasible, informal working groups of interested parties and other methods to gather the necessary information.
(3)(A) If the Secretary receives a petition for a
status review as described in paragraph (1), the
Secretary shall publish a notice in the Federal
Register that such a petition has been received
and is available for public review.
(B) Within sixty days after receipt of the petition, the Secretary shall publish a finding in the
Federal Register as to whether the petition presents substantial information indicating that
the petitioned action may be warranted.
(C) If the Secretary makes a positive finding
under subparagraph (B), the Secretary shall include in the Federal Register notice, a finding
that—
(i) a review of the status of the species or
stock will be commenced promptly; or
(ii) a prompt review of the petition is precluded by other pending status determination
petitions and that expeditious progress is
being made to process pending status determination petitions under this subchapter.
In no case after making a finding under this subparagraph shall the Secretary delay com-

§ 1384

TITLE 16—CONSERVATION

mencing a review of the status of a species or
stock for more than one hundred and twenty
days after receipt of the petition.
(D) No later than two hundred and ten days
after the receipt of the petition, the Secretary
shall publish in the Federal Register a proposed
rule as to the status of the species or stock,
along with the reasons underlying the proposed
status determination. Persons shall have at
least sixty days to submit comments on such a
proposed rule.
(E) Not later than ninety days after the close
of the comment period on a proposed rule issued
under subparagraph (D), the Secretary shall
issue a final rule on the status of the species or
stock involved, along with the reasons for the
status determination. If the Secretary finds
with respect to such a proposed rule that there
is substantial disagreement regarding the sufficiency or accuracy of the available information
relevant to a status determination, the Secretary may delay the issuance of a final rule for
a period of not more than six months for purposes of soliciting additional information.
(F) Notwithstanding subparagraphs (D) and (E)
of this paragraph and section 553 of title 5, the
Secretary may issue a final rule as to the status
of a species or stock any time sixty or more
days after a positive finding under subparagraph
(B) if the Secretary determines there is substantial information available to warrant such final
status determination and further delay would
pose a significant risk to the well-being of any
species or stock. Along with the final rule, the
Secretary shall publish in the Federal Register
detailed reasons for the expedited determination.
(b) Conservation plans; preparation and implementation
(1) The Secretary shall prepare conservation
plans—
(A) By 1 December 31, 1989, for North Pacific
fur seals;
(B) by December 31, 1990, for Steller sea
lions; and
(C) as soon as possible, for any species or
stock designated as depleted under this subchapter, except that a conservation plan need
not be prepared if the Secretary determines
that it will not promote the conservation of
the species or stock.
(2) Each plan shall have the purpose of conserving and restoring the species or stock to its
optimum sustainable population. The Secretary
shall model such plans on recovery plans required under section 1533(f) of this title.
(3) The Secretary shall act expeditiously to
implement each conservation plan prepared
under paragraph (1). Each year, the Secretary
shall specify in the annual report prepared
under section 1373(f) of this title what measures
have been taken to prepare and implement such
plans.
(4) If the Secretary determines that a take reduction plan is necessary to reduce the incidental taking of marine mammals in the course
of commercial fishing operations from a strategic stock, or for species or stocks which inter1 So

in original. Probably should not be capitalized.

Page 1780

act with a commercial fishery for which the Secretary has made a determination under section
1387(f)(1) of this title, any conservation plan prepared under this subsection for such species or
stock shall incorporate the take reduction plan
required under section 1387 of this title for such
species or stock.
(Pub. L. 92–522, title I, § 115, as added Pub. L.
100–711, § 3(a), Nov. 23, 1988, 102 Stat. 4763; amended Pub. L. 103–238, § 8, Apr. 30, 1994, 108 Stat. 543.)
Editorial Notes
AMENDMENTS
1994—Subsec. (b)(4). Pub. L. 103–238 added par. (4).

§ 1384. Authorization of appropriations
(a) Department of Commerce
(1) There are authorized to be appropriated to
the Department of Commerce, for purposes of
carrying out its functions and responsibilities
under this subchapter (other than sections 1386
and 1387 of this title) and subchapter V,
$12,138,000 for fiscal year 1994, $12,623,000 for fiscal year 1995, $13,128,000 for fiscal year 1996,
$13,653,000 for fiscal year 1997, $14,200,000 for fiscal year 1998, and $14,768,000 for fiscal year 1999.
(2) There are authorized to be appropriated to
the Department of Commerce, for purposes of
carrying out sections 1386 and 1387 of this title,
$20,000,000 for each of the fiscal years 1994
through 1999.
(b) Department of the Interior
There are authorized to be appropriated to the
Department of the Interior, for purposes of carrying out its functions and responsibilities
under this subchapter, $8,000,000 for fiscal year
1994, $8,600,000 for fiscal year 1995, $9,000,000 for
fiscal year 1996, $9,400,000 for fiscal year 1997,
$9,900,000 for fiscal year 1998, and $10,296,000 for
fiscal year 1999.
(Pub. L. 92–522, title I, § 116, formerly § 114, Oct.
21, 1972, 86 Stat. 1043; Pub. L. 95–136, § 2, Oct. 18,
1977, 91 Stat. 1167; Pub. L. 95–316, § 3, July 10,
1978, 92 Stat. 380; renumbered § 116, Pub. L.
100–711, § 2(a)(1), Nov. 23, 1988, 102 Stat. 4755; Pub.
L. 103–238, § 9(a), Apr. 30, 1994, 108 Stat. 543.)
Editorial Notes
PRIOR PROVISIONS
Provisions similar to those in this section were contained in Pub. L. 97–58, § 7(a), (b), Oct. 9, 1981, 95 Stat.
987; Pub. L. 98–364, title I, § 104(1), (2), July 17, 1984, 98
Stat. 442; Pub. L. 100–711, § 6(1), (2), Nov. 23, 1988, 102
Stat. 4771, prior to repeal by Pub. L. 103–238, § 9(c), Apr.
30, 1994, 108 Stat. 543.
AMENDMENTS
1994—Pub. L. 103–238 amended section generally. Prior
to amendment, section read as follows:
‘‘(a) There are authorized to be appropriated not to
exceed $2,000,000 for the fiscal year ending June 30, 1973,
and the four next following fiscal years, not to exceed
$11,500,000 for the fiscal year ending September 30, 1978,
not to exceed $8,500,000 for the fiscal year ending September 30, 1979, not to exceed $9,000,000 for the fiscal
year ending September 30, 1980, and not to exceed
$9,500,000 for the fiscal year ending September 30, 1981,
to enable the department in which the National Oceanic and Atmospheric Administration is operating to

Page 1781

TITLE 16—CONSERVATION

carry out such functions and responsibilities as it may
have been given under this subchapter (other than sections 1379 and 1380 of this title).
‘‘(b) There are authorized to be appropriated not to
exceed $700,000 for the fiscal year ending June 30, 1973,
not to exceed $525,000 for each of the next four fiscal
years thereafter, not to exceed $850,000 for the fiscal
year ending September 30, 1978, not to exceed $650,000
for the fiscal year ending September 30, 1979, not to exceed $760,000 for the fiscal year ending September 30,
1980, and not to exceed $876,000 for the fiscal year ending September 30, 1981 to enable the Department of the
Interior to carry out such functions and responsibilities as it may have been given under this subchapter
(other than sections 1379 and 1380 of this title).’’
1978—Subsec. (a). Pub. L. 95–316, § 3(1), added reference
to sections 1379 and 1380 of this title and provisions authorizing appropriations for the fiscal years ending
Sept. 30, 1979, Sept. 30, 1980, and Sept. 30, 1981.
Subsec. (b). Pub. L. 95–316, § 3(2), added reference to
sections 1379 and 1380 of this title and provisions authorizing appropriations for the fiscal years Sept. 30,
1979, Sept. 30, 1980, and Sept. 30, 1981.
1977—Subsec. (a). Pub. L. 95–136, § 2(1), inserted ‘‘, and
not to exceed $11,500,000 for the fiscal year ending September 30, 1978,’’ after ‘‘fiscal years’’.
Subsec. (b). Pub. L. 95–136, § 2(2), inserted ‘‘, and not
to exceed $850,000 for the fiscal year ending September
30, 1978’’ after ‘‘thereafter’’.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.

§ 1385. Dolphin protection
(a) Short title
This section may be cited as the ‘‘Dolphin
Protection Consumer Information Act’’.
(b) Findings
The Congress finds that—
(1) dolphins and other marine mammals are
frequently killed in the course of tuna fishing
operations in the eastern tropical Pacific
Ocean and high seas driftnet fishing in other
parts of the world;
(2) it is the policy of the United States to
support a worldwide ban on high seas driftnet
fishing, in part because of the harmful effects
that such driftnets have on marine mammals,
including dolphins; and
(3) consumers would like to know if the tuna
they purchase is falsely labeled as to the effect
of the harvesting of the tuna on dolphins.
(c) Definitions
For purposes of this section—
(1) the terms ‘‘driftnet’’ and ‘‘driftnet fishing’’ have the meanings given those terms in
section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (16
U.S.C. 1822 note);
(2) the term ‘‘eastern tropical Pacific
Ocean’’ means the area of the Pacific Ocean
bounded by 40 degrees north latitude, 40 degrees south latitude, 160 degrees west longitude, and the western coastlines of North,
Central, and South America;
(3) the term ‘‘label’’ means a display of written, printed, or graphic matter on or affixed to
the immediate container of any article;
(4) the term ‘‘Secretary’’ means the Secretary of Commerce; and

§ 1385

(5) the term ‘‘tuna product’’ means a food
item which contains tuna and which has been
processed for retail sale, except perishable
sandwiches, salads, or other products with a
shelf life of less than 3 days.
(d) Labeling standard
(1) It is a violation of section 45 of title 15 for
any producer, importer, exporter, distributor, or
seller of any tuna product that is exported from
or offered for sale in the United States to include on the label of that product the term ‘‘dolphin safe’’ or any other term or symbol that
falsely claims or suggests that the tuna contained in the product were harvested using a
method of fishing that is not harmful to dolphins if the product contains tuna harvested—
(A) on the high seas by a vessel engaged in
driftnet fishing;
(B) outside the eastern tropical Pacific
Ocean by a vessel using purse seine nets—
(i) in a fishery in which the Secretary has
determined that a regular and significant association occurs between dolphins and tuna
(similar to the association between dolphins
and tuna in the eastern tropical Pacific
Ocean), unless such product is accompanied
by a written statement, executed by the captain of the vessel and an observer participating in a national or international program acceptable to the Secretary, certifying
that no purse seine net was intentionally deployed on or used to encircle dolphins during
the particular voyage on which the tuna
were caught and no dolphins were killed or
seriously injured in the sets in which the
tuna were caught; or
(ii) in any other fishery (other than a fishery described in subparagraph (D)) unless
the product is accompanied by a written
statement executed by the captain of the
vessel certifying that no purse seine net was
intentionally deployed on or used to encircle
dolphins during the particular voyage on
which the tuna was harvested;
(C) in the eastern tropical Pacific Ocean by
a vessel using a purse seine net unless the
tuna meet the requirements for being considered dolphin safe under paragraph (2); or
(D) by a vessel in a fishery other than one
described in subparagraph (A), (B), or (C) that
is identified by the Secretary as having a regular and significant mortality or serious injury of dolphins, unless such product is accompanied by a written statement executed by the
captain of the vessel and an observer participating in a national or international program
acceptable to the Secretary that no dolphins
were killed or seriously injured in the sets or
other gear deployments in which the tuna
were caught, provided that the Secretary determines that such an observer statement is
necessary.
(2) For purposes of paragraph (1)(C), a tuna
product that contains tuna harvested in the
eastern tropical Pacific Ocean by a vessel using
purse seine nets is dolphin safe if—
(A) the vessel is of a type and size that the
Secretary has determined, consistent with the
International Dolphin Conservation Program,

§ 1385

TITLE 16—CONSERVATION

is not capable of deploying its purse seine nets
on or to encircle dolphins; or
(B)(i) the product is accompanied by a written statement executed by the captain providing the certification required under subsection (h);
(ii) the product is accompanied by a written
statement executed by—
(I) the Secretary or the Secretary’s designee;
(II) a representative of the Inter-American
Tropical Tuna Commission; or
(III) an authorized representative of a participating nation whose national program
meets the requirements of the International
Dolphin Conservation Program,

Page 1782

to in subparagraph (C) in a campaign or effort to
mislead or deceive consumers about the level of
protection afforded dolphins under the International Dolphin Conservation Program.
(e) Additional prohibitions and enforcement
For additional prohibitions relating to this
section 1 and enforcement of this section,1 see
section 1826g of this title.
(f) Regulations

(3)(A) The Secretary of Commerce shall develop an official mark that may be used to label
tuna products as dolphin safe in accordance with
this section.1
(B) A tuna product that bears the dolphin safe
mark developed under subparagraph (A) shall
not bear any other label or mark that refers to
dolphins, porpoises, or marine mammals.
(C) It is a violation of section 45 of title 15 to
label a tuna product with any label or mark that
refers to dolphins, porpoises, or marine mammals other than the mark developed under subparagraph (A) unless—
(i) no dolphins were killed or seriously injured in the sets or other gear deployments in
which the tuna were caught;
(ii) the label is supported by a tracking and
verification program which is comparable in
effectiveness to the program established under
subsection (f); and
(iii) the label complies with all applicable labeling, marketing, and advertising laws and
regulations of the Federal Trade Commission,
including any guidelines for environmental labeling.

The Secretary, in consultation with the Secretary of the Treasury, shall issue regulations to
implement this section,1 including regulations
to
establish
a
domestic
tracking
and
verification program that provides for the effective tracking of tuna labeled under subsection
(d). In the development of these regulations, the
Secretary shall establish appropriate procedures
for ensuring the confidentiality of proprietary
information the submission of which is voluntary or mandatory. The regulations shall address each of the following items:
(1) The use of weight calculation for purposes of tracking tuna caught, landed, processed, and exported.
(2) Additional measures to enhance current
observer coverage, including the establishment of criteria for training, and for improving monitoring and reporting capabilities and
procedures.
(3) The designation of well location, procedures for sealing holds, procedures for monitoring and certifying both above and below
deck, or through equally effective methods,
the tracking and verification of tuna labeled
under subsection (d).
(4) The reporting, receipt, and database storage of radio and facsimile transmittals from
fishing vessels containing information related
to the tracking and verification of tuna, and
the definition of set.
(5) The shore-based verification and tracking
throughout the fishing, transshipment, and
canning process by means of Inter-American
Tropical Tuna Commission trip records or otherwise.
(6) The use of periodic audits and spot
checks for caught, landed, and processed tuna
products labeled in accordance with subsection (d).
(7) The provision of timely access to data required under this subsection by the Secretary
from harvesting nations to undertake the actions required in paragraph (6) of this paragraph.2

(D) If the Secretary determines that the use of
a label referred to in subparagraph (C) is substantially undermining the conservation goals
of the International Dolphin Conservation Program, the Secretary shall report that determination to the United States Senate Committee on Commerce, Science, and Transportation and the United States House of Representatives Committees on Resources and on
Commerce, along with recommendations to correct such problems.
(E) It is a violation of section 45 of title 15
willingly and knowingly to use a label referred

The Secretary may make such adjustments as
may be appropriate to the regulations promulgated under this subsection to implement an
international tracking and verification program
that meets or exceeds the minimum requirements established by the Secretary under this
subsection.
(g) Secretarial findings
(1) Between March 1, 1999, and March 31, 1999,
the Secretary shall, on the basis of the research
conducted before March 1, 1999, under section
1414a(a) of this title, information obtained under

which states that there was an observer approved by the International Dolphin Conservation Program on board the vessel during the
entire trip and that such observer provided the
certification required under subsection (h);
and
(iii) the statements referred to in clauses (i)
and (ii) are endorsed in writing by each exporter, importer, and processor of the product;
and
(C) the written statements and endorsements referred to in subparagraph (B) comply
with regulations promulgated by the Secretary which provide for the verification of
tuna products as dolphin safe.

1 See

References in Text note below.

2 So

in original. Probably should be ‘‘this subsection’’.

Page 1783

§ 1385

TITLE 16—CONSERVATION

the International Dolphin Conservation Program, and any other relevant information, make
an initial finding regarding whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin
stock in the eastern tropical Pacific Ocean. The
initial finding shall be published immediately in
the Federal Register and shall become effective
upon a subsequent date determined by the Secretary.
(2) Between July 1, 2001, and December 31, 2002,
the Secretary shall, on the basis of the completed study conducted under section 1414a(a) of
this title, information obtained under the International Dolphin Conservation Program, and
any other relevant information, make a finding
regarding whether the intentional deployment
on or encirclement of dolphins with purse seine
nets is having a significant adverse impact on
any depleted dolphin stock in the eastern tropical Pacific Ocean. The finding shall be published immediately in the Federal Register and
shall become effective upon a subsequent date
determined by the Secretary.
(h) Certification by captain and observer
(1) Unless otherwise required by paragraph (2),
the certification by the captain under subsection (d)(2)(B)(i) and the certification provided
by the observer as specified in subsection
(d)(2)(B)(ii) shall be that no dolphins were killed
or seriously injured during the sets in which the
tuna were caught.
(2) The certification by the captain under subsection (d)(2)(B)(i) and the certification provided
by the observer as specified under subsection
(d)(2)(B)(ii) shall be that no tuna were caught on
the trip in which such tuna were harvested using
a purse seine net intentionally deployed on or to
encircle dolphins, and that no dolphins were
killed or seriously injured during the sets in
which the tuna were caught, if the tuna were
caught on a trip commencing—
(A) before the effective date of the initial
finding by the Secretary under subsection
(g)(1);
(B) after the effective date of such initial
finding and before the effective date of the
finding of the Secretary under subsection
(g)(2), where the initial finding is that the intentional deployment on or encirclement of
dolphins is having a significant adverse impact on any depleted dolphin stock; or
(C) after the effective date of the finding
under subsection (g)(2), where such finding is
that the intentional deployment on or encirclement of dolphins is having a significant adverse impact on any such depleted stock.
(Pub. L. 101–627, title IX, § 901, Nov. 28, 1990, 104
Stat. 4465; Pub. L. 105–42, § 5, Aug. 15, 1997, 111
Stat. 1125; Pub. L. 114–81, title I, § 109, Nov. 5,
2015, 129 Stat. 659.)
Editorial Notes
REFERENCES IN TEXT
This section, referred to in subsecs. (d)(3)(A), (e), and
(f), was in the original ‘‘this Act’’, and was translated
as referring to the Dolphin Protection Consumer Information Act, which is classified to this section, to reflect the probable intent of Congress.

CODIFICATION
Section was not enacted as part of the Marine Mammal Protection Act of 1972 which comprises this chapter.
AMENDMENTS
2015—Subsec. (e). Pub. L. 114–81 amended subsec. (e)
generally. Prior to amendment, text read as follows:
‘‘Any person who knowingly and willfully makes a
statement or endorsement described in subsection
(d)(2)(B) that is false is liable for a civil penalty of not
to exceed $100,000 assessed in an action brought in any
appropriate district court of the United States on behalf of the Secretary.’’
1997—Subsec. (d). Pub. L. 105–42, § 5(a), amended heading and text of subsec. (d) generally. Prior to amendment, text read as follows:
‘‘(1) It is a violation of section 45 of title 15 for any
producer, importer, exporter, distributor, or seller of
any tuna product that is exported from or offered for
sale in the United States to include on the label of that
product the term ‘Dolphin Safe’ or any other term or
symbol that falsely claims or suggests that the tuna
contained in the product was harvested using a method
of fishing that is not harmful to dolphins if the product
contains—
‘‘(A) tuna harvested on the high seas by a vessel engaged in driftnet fishing; or
‘‘(B) tuna harvested in the eastern tropical Pacific
Ocean by a vessel using purse seine nets which do not
meet the requirements for being considered dolphin
safe under paragraph (2).
‘‘(2) For purposes of paragraph (1)(B), a tuna product
that contains tuna harvested in the eastern tropical
Pacific Ocean by a fishing vessel using purse seine nets
is dolphin safe if—
‘‘(A) the vessel is of a type and size that the Secretary has determined is not capable of deploying its
purse seine nets on or to encircle dolphin; or
‘‘(B)(i) the product is accompanied by a written
statement executed by the captain of the vessel
which harvested the tuna certifying that no tuna
were caught on the trip in which such tuna were harvested using a purse seine net intentionally deployed
on or to encircle dolphin;
‘‘(ii) the product is accompanied by a written statement executed by—
‘‘(I) the Secretary or the Secretary’s designee, or
‘‘(II) a representative of the Inter-American Tropical Tuna Commission,
which states that there was an approved observer on
board the vessel during the entire trip and that purse
seine nets were not intentionally deployed during the
trip on or to encircle dolphin; and
‘‘(iii) the statements referred to in clauses (i) and
(ii) are endorsed in writing by each exporter, importer, and processor of the product.’’
Subsec. (f). Pub. L. 105–42, § 5(b), amended heading and
text of subsec. (f) generally. Prior to amendment, text
read as follows: ‘‘The Secretary, in consultation with
the Secretary of the Treasury, shall issue regulations
to implement this section not later than 6 months after
November 28, 1990, including regulations establishing
procedures and requirements for ensuring that tuna
products are labeled in accordance with subsection (d)
of this section.’’
Subsec. (g). Pub. L. 105–42, § 5(c), added subsec. (g) and
struck out former subsec. (g), which had amended section 1371 of this title.
Subsecs. (h), (i). Pub. L. 105–42, § 5(c), added subsec.
(h) and struck out former subsecs. (h) and (i) which
read as follows:
‘‘(h) NEGOTIATIONS.—The Secretary of State shall immediately seek, through negotiations and discussions
with appropriate foreign governments, to reduce and,
as soon as possible, eliminate the practice of harvesting tuna through the use of purse seine nets intentionally deployed to encircle dolphins.
‘‘(i) EFFECTIVE DATE.—Subsections (d) and (e) of this
section shall take effect 6 months after November 28,
1990.’’

§ 1386

TITLE 16—CONSERVATION
Statutory Notes and Related Subsidiaries
CHANGE OF NAME

Committee on Commerce of House of Representatives
changed to Committee on Energy and Commerce of
House of Representatives, and jurisdiction over matters
relating to securities and exchanges and insurance generally transferred to Committee on Financial Services
of House of Representatives by House Resolution No. 5,
One Hundred Seventh Congress, Jan. 3, 2001.
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.

§ 1386. Stock assessments
(a) In general
Not later than August 1, 1994, the Secretary
shall, in consultation with the appropriate regional scientific review group established under
subsection (d), prepare a draft stock assessment
for each marine mammal stock which occurs in
waters under the jurisdiction of the United
States. Each draft stock assessment, based on
the best scientific information available, shall—
(1) describe the geographic range of the affected stock, including any seasonal or temporal variation in such range;
(2) provide for such stock the minimum population estimate, current and maximum net
productivity rates, and current population
trend, including a description of the information upon which these are based;
(3) estimate the annual human-caused mortality and serious injury of the stock by
source and, for a strategic stock, other factors
that may be causing a decline or impeding recovery of the stock, including effects on marine mammal habitat and prey;
(4) describe commercial fisheries that interact with the stock, including—
(A) the approximate number of vessels actively participating in each such fishery;
(B) the estimated level of incidental mortality and serious injury of the stock by
each such fishery on an annual basis;
(C) seasonal or area differences in such incidental mortality or serious injury; and
(D) the rate, based on the appropriate
standard unit of fishing effort, of such incidental mortality and serious injury, and an
analysis stating whether such level is insignificant and is approaching a zero mortality
and serious injury rate;
(5) categorize the status of the stock as one
that either—
(A) has a level of human-caused mortality
and serious injury that is not likely to cause
the stock to be reduced below its optimum
sustainable population; or
(B) is a strategic stock, with a description
of the reasons therefor; and
(6) estimate the potential biological removal
level for the stock, describing the information
used to calculate it, including the recovery
factor.
(b) Public comment
(1) The Secretary shall publish in the Federal
Register a notice of the availability of a draft

Page 1784

stock assessment or any revision thereof and
provide an opportunity for public review and
comment during a period of 90 days. Such notice
shall include a summary of the assessment and
a list of the sources of information or published
reports upon which the assessment is based.
(2) Subsequent to the notice of availability required under paragraph (1), if requested by a person to which section 1371(b) of this title applies,
the Secretary shall conduct a proceeding on the
record prior to publishing a final stock assessment or any revision thereof for any stock subject to taking under section 1371(b) of this title.
(3) After consideration of the best scientific
information available, the advice of the appropriate regional scientific review group established under subsection (d), and the comments of
the general public, the Secretary shall publish
in the Federal Register a notice of availability
and a summary of the final stock assessment or
any revision thereof, not later than 90 days
after—
(A) the close of the public comment period
on a draft stock assessment or revision thereof; or
(B) final action on an agency proceeding pursuant to paragraph (2).
(c) Review and revision
(1) The Secretary shall review stock assessments in accordance with this subsection—
(A) at least annually for stocks which are
specified as strategic stocks;
(B) at least annually for stocks for which
significant new information is available; and
(C) at least once every 3 years for all other
stocks.
(2) If the review under paragraph (1) indicates
that the status of the stock has changed or can
be more accurately determined, the Secretary
shall revise the stock assessment in accordance
with subsection (b).
(d) Regional scientific review groups
(1) Not later than 60 days after April 30, 1994,
the Secretary of Commerce shall, in consultation with the Secretary of the Interior (with respect to marine mammals under that Secretary’s jurisdiction), the Marine Mammal Commission, the Governors of affected adjacent
coastal States, regional fishery and wildlife
management authorities, Alaska Native organizations and Indian tribes, and environmental
and fishery groups, establish three independent
regional scientific review groups representing
Alaska, the Pacific Coast (including Hawaii),
and the Atlantic Coast (including the Gulf of
Mexico), consisting of individuals with expertise
in marine mammal biology and ecology, population dynamics and modeling, commercial fishing technology and practices, and stocks taken
under section 1371(b) of this title. The Secretary
of Commerce shall, to the maximum extent
practicable, attempt to achieve a balanced representation of viewpoints among the individuals
on each regional scientific review group. The regional scientific review groups shall advise the
Secretary on—
(A) population estimates and the population
status and trends of such stocks;
(B) uncertainties and research needed regarding stock separation, abundance, or

Page 1785

TITLE 16—CONSERVATION

trends, and factors affecting the distribution,
size, or productivity of the stock;
(C) uncertainties and research needed regarding the species, number, ages, gender, and
reproductive status of marine mammals;
(D) research needed to identify modifications in fishing gear and practices likely to reduce the incidental mortality and serious injury of marine mammals in commercial fishing operations;
(E) the actual, expected, or potential impacts of habitat destruction, including marine
pollution and natural environmental change,
on specific marine mammal species or stocks,
and for strategic stocks, appropriate conservation or management measures to alleviate any
such impacts; and
(F) any other issue which the Secretary or
the groups consider appropriate.
(2) The scientific review groups established
under this subsection shall not be subject to the
Federal Advisory Committee Act (5 App. U.S.C.).
(3) Members of the scientific review groups
shall serve without compensation, but may be
reimbursed by the Secretary, upon request, for
reasonable travel costs and expenses incurred in
performing their obligations.
(4) The Secretary may appoint or reappoint individuals to the regional scientific review
groups under paragraph (1) as needed.
(e) Effect on section 1371(b) of this title
This section shall not affect or otherwise modify the provisions of section 1371(b) of this title.
(Pub. L. 92–522, title I, § 117, as added Pub. L.
103–238, § 10, Apr. 30, 1994, 108 Stat. 543.)
Editorial Notes
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in
subsec. (d)(2), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770,
as amended, which is set out in the Appendix to Title
5, Government Organization and Employees.

§ 1387. Taking of marine mammals incidental to
commercial fishing operations
(a) In general
(1) Effective on April 30, 1994, and except as
provided in section 1383a of this title and in
paragraphs (2), (3), and (4) of this subsection, the
provisions of this section shall govern the incidental taking of marine mammals in the course
of commercial fishing operations 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. In any event it shall be the immediate
goal that the incidental mortality or serious injury of marine mammals occurring in the course
of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious injury rate within 7 years
after April 30, 1994.
(2) In the case of the incidental taking of marine mammals from species or stocks designated
under this chapter as depleted on the basis of
their listing as threatened species or endangered
species under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.), both this section and section 1371(a)(5)(E) of this title shall apply.

§ 1387

(3) Sections 1 1374(h) of this title and subchapter IV, and not this section, shall govern
the taking of marine mammals in the course of
commercial purse seine fishing for yellowfin
tuna in the eastern tropical Pacific Ocean.
(4) This section 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).
(5) Except as provided in section 1371(c) of this
title, the intentional lethal take of any marine
mammal in the course of commercial fishing operations is prohibited.
(6) Sections 1373 and 1374 of this title shall not
apply to the incidental taking of marine mammals under the authority of this section.
(b) Zero mortality rate goal
(1) Commercial fisheries shall reduce incidental mortality and serious injury of marine
mammals to insignificant levels approaching a
zero mortality and serious injury rate within 7
years after April 30, 1994.
(2) Fisheries which maintain insignificant serious injury and mortality levels approaching a
zero rate shall not be required to further reduce
their mortality and serious injury rates.
(3) Three years after April 30, 1994, the Secretary shall review the progress of all commercial fisheries, by fishery, toward reducing incidental mortality and serious injury to insignificant levels approaching a zero rate. The Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and
Fisheries of the House of Representatives a report setting forth the results of such review
within 1 year after commencement of the review. The Secretary shall note any commercial
fishery for which additional information is required to accurately assess the level of incidental mortality and serious injury of marine
mammals in the fishery.
(4) If the Secretary determines after review
under paragraph (3) that the rate of incidental
mortality and serious injury of marine mammals in a commercial fishery is not consistent
with paragraph (1), then the Secretary shall
take appropriate action under subsection (f).
(c) Registration and authorization
(1) The Secretary shall, within 90 days after
April 30, 1994—
(A) publish in the Federal Register for public
comment, for a period of not less than 90 days,
any necessary changes to the Secretary’s list
of commercial fisheries published under section 1383a(b)(1) of this title and which is in existence on March 31, 1994 (along with an explanation of such changes and a statement describing the marine mammal stocks interacting with, and the approximate number of
vessels or persons actively involved in, each
such fishery), with respect to commercial fisheries that have—
(i) frequent incidental mortality and serious injury of marine mammals;
(ii) occasional incidental mortality and serious injury of marine mammals; or
1 So

in original. Probably should be ‘‘Section’’.

§ 1387

TITLE 16—CONSERVATION

(iii) a remote likelihood of or no known incidental mortality or serious injury of marine mammals;
(B) after the close of the period for such public comment, publish in the Federal Register a
revised list of commercial fisheries and an update of information required by subparagraph
(A), together with a summary of the provisions of this section and information sufficient
to advise vessel owners on how to obtain an
authorization and otherwise comply with the
requirements of this section; and
(C) at least once each year thereafter, and at
such other times as the Secretary considers
appropriate, reexamine, based on information
gathered under this chapter and other relevant
sources and after notice and opportunity for
public comment, the classification of commercial fisheries and other determinations required under subparagraph (A) and publish in
the Federal Register any necessary changes.
(2)(A) An authorization shall be granted by the
Secretary in accordance with this section for a
vessel engaged in a commercial fishery listed
under paragraph (1)(A)(i) or (ii), upon receipt by
the Secretary of a completed registration form
providing the name of the vessel owner and operator, the name and description of the vessel,
the fisheries in which it will be engaged, the approximate time, duration, and location of such
fishery operations, and the general type and nature of use of the fishing gear and techniques
used. Such information shall be in a readily usable format that can be efficiently entered into
and utilized by an automated or computerized
data processing system. A decal or other physical evidence that the authorization is current
and valid shall be issued by the Secretary at the
time an authorization is granted, and so long as
the authorization remains current and valid,
shall be reissued annually thereafter.
(B) No authorization may be granted under
this section to the owner of a vessel unless such
vessel—
(i) is a vessel of the United States; or
(ii) has a valid fishing permit issued by the
Secretary in accordance with section 1824(b) of
this title.
(C) Except as provided in subsection (a), an authorization granted under this section shall
allow the incidental taking of all species and
stocks of marine mammals to which this chapter applies.
(3)(A) An owner of a vessel engaged in any
fishery listed under paragraph (1)(A)(i) or (ii)
shall, in order to engage in the lawful incidental
taking of marine mammals in a commercial
fishery—
(i) have registered as required under paragraph (2) with the Secretary in order to obtain
for each such vessel owned and used in the
fishery an authorization for the purpose of incidentally taking marine mammals in accordance with this section, except that owners of
vessels holding valid certificates of exemption
under section 1383a of this title are deemed to
have registered for purposes of this subsection
for the period during which such exemption is
valid;
(ii) ensure that a decal or such other physical evidence of a current and valid authoriza-

Page 1786

tion as the Secretary may require is displayed
on or is in the possession of the master of each
such vessel;
(iii) report as required by subsection (e); and
(iv) comply with any applicable take reduction plan and emergency regulations issued
under this section.
(B) Any owner of a vessel receiving an authorization under this section for any fishery listed
under paragraph (1)(A)(i) or (ii) shall, as a condition of that authorization, take on board an observer if requested to do so by the Secretary.
(C) An owner of a vessel engaged in a fishery
listed under paragraph (1)(A)(i) or (ii) who—
(i) fails to obtain from the Secretary an authorization for such vessel under this section;
(ii) fails to maintain a current and valid authorization for such vessel; or
(iii) fails to ensure that a decal or other
physical evidence of such authorization issued
by the Secretary is displayed on or is in possession of the master of the vessel,
and the master of any such vessel engaged in
such fishery, shall be deemed to have violated
this subchapter, and for violations of clauses (i)
and (ii) shall be subject to the penalties of this
subchapter, and for violations of clause (iii)
shall be subject to a fine of not more than $100
for each offense.
(D) If the owner of a vessel has obtained and
maintains a current and valid authorization
from the Secretary under this section and meets
the requirements set forth in this section, including compliance with any regulations to implement a take reduction plan under this section, the owner of such vessel, and the master
and crew members of the vessel, shall not be
subject to the penalties set forth in this subchapter for the incidental taking of marine
mammals while such vessel is engaged in a fishery to which the authorization applies.
(E) Each owner of a vessel engaged in any fishery not listed under paragraph (1)(A)(i) or (ii),
and the master and crew members of such a vessel, shall not be subject to the penalties set
forth in this subchapter for the incidental taking of marine mammals if such owner reports to
the Secretary, in the form and manner required
under subsection (e), instances of incidental
mortality or injury of marine mammals in the
course of that fishery.
(4)(A) The Secretary shall suspend or revoke
an authorization granted under this section and
shall not issue a decal or other physical evidence of the authorization for any vessel until
the owner of such vessel complies with the reporting requirements under subsection (e) and
such requirements to take on board an observer
under paragraph (3)(B) as are applicable to such
vessel. Previous failure to comply with the requirements of section 1383a of this title shall not
bar authorization under this section for an
owner who complies with the requirements of
this section.
(B) The Secretary may suspend or revoke an
authorization granted under this subsection, and
may not issue a decal or other physical evidence
of the authorization for any vessel which fails to
comply with a take reduction plan or emergency
regulations issued under this section.

Page 1787

TITLE 16—CONSERVATION

(C) The owner and master of a vessel which
fails to comply with a take reduction plan shall
be subject to the penalties of sections 1375 and
1377 of this title, and may be subject to section
1376 of this title.
(5)(A) The Secretary shall develop, in consultation with the appropriate States, affected
Regional Fishery Management Councils, and
other interested persons, the means by which
the granting and administration of authorizations under this section shall be integrated and
coordinated, to the maximum extent practicable, with existing fishery licenses, registrations, and related programs.
(B) The Secretary shall utilize newspapers of
general circulation, fishery trade associations,
electronic media, and other means of advising
commercial fishermen of the provisions of this
section and the means by which they can comply with its requirements.
(C) The Secretary is authorized to charge a fee
for the granting of an authorization under this
section. The level of fees charged under this subparagraph shall not exceed the administrative
costs incurred in granting an authorization.
Fees collected under this subparagraph shall be
available to the Under Secretary of Commerce
for Oceans and Atmosphere for expenses incurred in the granting and administration of authorizations under this section.
(d) Monitoring of incidental takes
(1) The Secretary shall establish a program to
monitor incidental mortality and serious injury
of marine mammals during the course of commercial fishing operations. The purposes of the
monitoring program shall be to—
(A) obtain statistically reliable estimates of
incidental mortality and serious injury;
(B) determine the reliability of reports of incidental mortality and serious injury under
subsection (e); and
(C) identify changes in fishing methods or
technology that may increase or decrease incidental mortality and serious injury.
(2) Pursuant to paragraph (1), the Secretary
may place observers on board vessels as necessary, subject to the provisions of this section.
Observers may, among other tasks—
(A) record incidental mortality and injury,
or by catch of other nontarget species;
(B) record numbers of marine mammals
sighted; and
(C) perform other scientific investigations.
(3) In determining the distribution of observers among commercial fisheries and vessels
within a fishery, the Secretary shall be guided
by the following standards:
(A) The requirement to obtain statistically
reliable information.
(B) The requirement that assignment of observers is fair and equitable among fisheries
and among vessels in a fishery.
(C) The requirement that no individual person or vessel, or group of persons or vessels, be
subject to excessive or overly burdensome observer coverage.
(D) To the extent practicable, the need to
minimize costs and avoid duplication.
(4) To the extent practicable, the Secretary
shall allocate observers among commercial fisheries in accordance with the following priority:

§ 1387

(A) The highest priority for allocation shall
be for commercial fisheries that have incidental mortality or serious injury of marine
mammals from stocks listed as endangered
species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(B) The second highest priority for allocation shall be for commercial fisheries that
have incidental mortality and serious injury
of marine mammals from strategic stocks.
(C) The third highest priority for allocation
shall be for commercial fisheries that have incidental mortality or serious injury of marine
mammals from stocks for which the level of
incidental mortality and serious injury is uncertain.
(5) The Secretary may establish an alternative
observer program to provide statistically reliable information on the species and number of
marine mammals incidentally taken in the
course of commercial fishing operations. The alternative observer program may include direct
observation of fishing activities from vessels,
airplanes, or points on shore.
(6) The Secretary is not required to place an
observer on a vessel in a fishery if the Secretary
finds that—
(A) in a situation in which harvesting vessels are delivering fish to a processing vessel
and the catch is not taken on board the harvesting vessel, statistically reliable information can be obtained from an observer on
board the processing vessel to which the fish
are delivered;
(B) the facilities on a vessel for quartering of
an observer, or for carrying out observer functions, are so inadequate or unsafe that the
health or safety of the observer or the safe operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the
Secretary, an observer is not available.
(7) The Secretary may, with the consent of the
vessel owner, station an observer on board a vessel engaged in a fishery not listed under subsection (c)(1)(A)(i) or (ii).
(8) Any proprietary information collected
under this subsection shall be confidential and
shall not be disclosed except—
(A) to Federal employees whose duties require access to such information;
(B) to State or tribal employees pursuant to
an agreement with the Secretary that prevents public disclosure of the identity or business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries, to employees of Regional
Fishery Management Councils who are responsible for fishery management plan development and monitoring.
(9) The Secretary shall prescribe such procedures as may be necessary to preserve such confidentiality, except that the Secretary shall release or make public upon request any such information in aggregate, summary, or other form
which does not directly or indirectly disclose
the identity or business of any person.
(e) Reporting requirement
The owner or operator of a commercial fishing
vessel subject to this chapter shall report all in-

§ 1387

TITLE 16—CONSERVATION

cidental mortality and injury of marine mammals in the course of commercial fishing operations to the Secretary by mail or other means
acceptable to the Secretary within 48 hours
after the end of each fishing trip on a standard
postage-paid form to be developed by the Secretary under this section. Such form shall be capable of being readily entered into and usable by
an automated or computerized data processing
system and shall require the vessel owner or operator to provide the following:
(1) The vessel name, and Federal, State, or
tribal registration numbers of the registered
vessel.
(2) The name and address of the vessel owner
or operator.
(3) The name and description of the fishery.
(4) The species of each marine mammal incidentally killed or injured, and the date, time,
and approximate geographic location of such
occurrence.
(f) Take reduction plans
(1) The Secretary shall develop and implement
a take reduction plan designed to assist in the
recovery or prevent the depletion of each strategic stock which interacts with a commercial
fishery listed under subsection (c)(1)(A)(i) or (ii),
and may develop and implement such a plan for
any other marine mammal stocks which interact with a commercial fishery listed under subsection (c)(1)(A)(i) which the Secretary determines, after notice and opportunity for public
comment, has a high level of mortality and serious injury across a number of such marine mammal stocks.
(2) The immediate goal of a take reduction
plan for a strategic stock shall be to reduce,
within 6 months of its implementation, the incidental mortality or serious injury of marine
mammals incidentally taken in the course of
commercial fishing operations to levels less
than the potential biological removal level established for that stock under section 1386 of
this title. The long-term goal of the plan shall
be to reduce, within 5 years of its implementation, the incidental mortality or serious injury
of marine mammals incidentally taken in the
course of commercial fishing operations to insignificant levels approaching a zero mortality
and serious injury rate, taking into account the
economics of the fishery, the availability of existing technology, and existing State or regional
fishery management plans.
(3) If there is insufficient funding available to
develop and implement a take reduction plan for
all such stocks that interact with commercial
fisheries listed under subsection (c)(1)(A)(i) or
(ii), the Secretary shall give highest priority to
the development and implementation of take reduction plans for species or stocks whose level
of incidental mortality and serious injury exceeds the potential biological removal level,
those that have a small population size, and
those which are declining most rapidly.
(4) Each take reduction plan shall include—
(A) a review of the information in the final
stock assessment published under section
1386(b) of this title and any substantial new information;
(B) an estimate of the total number and, if
possible, age and gender, of animals from the

Page 1788

stock that are being incidentally lethally
taken or seriously injured each year during
the course of commercial fishing operations,
by fishery;
(C) recommended regulatory or voluntary
measures for the reduction of incidental mortality and serious injury;
(D) recommended dates for achieving the
specific objectives of the plan.
(5)(A) For any stock in which incidental mortality and serious injury from commercial fisheries exceeds the potential biological removal
level established under section 1386 of this title,
the plan shall include measures the Secretary
expects will reduce, within 6 months of the
plan’s implementation, such mortality and serious injury to a level below the potential biological removal level.
(B) For any stock in which human-caused
mortality and serious injury exceeds the potential biological removal level, other than a stock
to which subparagraph (A) applies, the plan
shall include measures the Secretary expects
will reduce, to the maximum extent practicable
within 6 months of the plan’s implementation,
the incidental mortality and serious injury by
such commercial fisheries from that stock. For
purposes of this subparagraph, the term ‘‘maximum extent practicable’’ means to the lowest
level that is feasible for such fisheries within
the 6-month period.
(6)(A) At the earliest possible time (not later
than 30 days) after the Secretary issues a final
stock assessment under section 1386(b) of this
title for a strategic stock, the Secretary shall,
and for stocks that interact with a fishery listed
under subsection (c)(1)(A)(i) for which the Secretary has made a determination under paragraph (1), the Secretary may—
(i) establish a take reduction team for such
stock and appoint the members of such team
in accordance with subparagraph (C); and
(ii) publish in the Federal Register a notice
of the team’s establishment, the names of the
team’s appointed members, the full geographic
range of such stock, and a list of all commercial fisheries that cause incidental mortality
and serious injury of marine mammals from
such stock.
(B) The Secretary may request a take reduction team to address a stock that extends over
one or more regions or fisheries, or multiple
stocks within a region or fishery, if the Secretary determines that doing so would facilitate
the development and implementation of plans
required under this subsection.
(C) Members of take reduction teams shall
have expertise regarding the conservation or biology of the marine mammal species which the
take reduction plan will address, or the fishing
practices which result in the incidental mortality and serious injury of such species. Members shall include representatives of Federal
agencies, each coastal State which has fisheries
which interact with the species or stock, appropriate Regional Fishery Management Councils,
interstate fisheries commissions, academic and
scientific organizations, environmental groups,
all commercial and recreational fisheries groups
and gear types which incidentally take the spe-

Page 1789

TITLE 16—CONSERVATION

cies or stock, Alaska Native organizations or Indian tribal organizations, and others as the Secretary deems appropriate. Take reduction teams
shall, to the maximum extent practicable, consist of an equitable balance among representatives of resource user interests and nonuser interests.
(D) Take reduction teams shall not be subject
to the Federal Advisory Committee Act (5 App.
U.S.C.). Meetings of take reduction teams shall
be open to the public, and prior notice of meetings shall be made public in a timely fashion.
(E) Members of take reduction teams shall
serve without compensation, but may be reimbursed by the Secretary, upon request, for reasonable travel costs and expenses incurred in
performing their duties as members of the team.
(7) Where the human-caused mortality and serious injury from a strategic stock is estimated
to be equal to or greater than the potential biological removal level established under section
1386 of this title for such stock and such stock
interacts with a fishery listed under subsection
(c)(1)(A)(i) or (ii), the following procedures shall
apply in the development of the take reduction
plan for the stock:
(A)(i) Not later than 6 months after the date
of establishment of a take reduction team for
the stock, the team shall submit a draft take
reduction plan for such stock to the Secretary,
consistent with the other provisions of this
section.
(ii) Such draft take reduction plan shall be
developed by consensus. In the event consensus cannot be reached, the team shall advise the Secretary in writing on the range of
possibilities considered by the team, and the
views of both the majority and minority.
(B)(i) The Secretary shall take the draft
take reduction plan into consideration and,
not later than 60 days after the submission of
the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by the team, any changes proposed by
the Secretary with an explanation of the reasons therefor, and proposed regulations to implement such plan, for public review and comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction
team does not submit a draft plan to the Secretary within 6 months, the Secretary shall,
not later than 8 months after the establishment of the team, publish in the Federal Register a proposed take reduction plan and implementing regulations, for public review and
comment during a period of not to exceed 90
days.
(C) Not later than 60 days after the close of
the comment period required under subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations, consistent with the other provisions of
this section.
(D) The Secretary shall, during a period of 30
days after publication of a final take reduction plan, utilize newspapers of general circulation, fishery trade associations, electronic
media, and other means of advising commercial fishermen of the requirements of the plan
and how to comply with them.
(E) The Secretary and the take reduction
team shall meet every 6 months, or at such

§ 1387

other intervals as the Secretary determines
are necessary, to monitor the implementation
of the final take reduction plan until such
time that the Secretary determines that the
objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and implementing regulations as
necessary to meet the requirements of this
section, in accordance with the procedures in
this section for the issuance of such plans and
regulations.
(8) Where the human-caused mortality and serious injury from a strategic stock is estimated
to be less than the potential biological removal
level established under section 1386 of this title
for such stock and such stock interacts with a
fishery listed under subsection (c)(1)(A)(i) or (ii),
or for any marine mammal stocks which interact with a commercial fishery listed under subsection (c)(1)(A)(i) for which the Secretary has
made a determination under paragraph (1), the
following procedures shall apply in the development of the take reduction plan for such stock:
(A)(i) Not later than 11 months after the
date of establishment of a take reduction
team for the stock, the team shall submit a
draft take reduction plan for the stock to the
Secretary, consistent with the other provisions of this section.
(ii) Such draft take reduction plan shall be
developed by consensus. In the event consensus cannot be reached, the team shall advise the Secretary in writing on the range of
possibilities considered by the team, and the
views of both the majority and minority.
(B)(i) The Secretary shall take the draft
take reduction plan into consideration and,
not later than 60 days after the submission of
the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by the team, any changes proposed by
the Secretary with an explanation of the reasons therefor, and proposed regulations to implement such plan, for public review and comment during a period of not to exceed 90 days.
(ii) In the event that the take reduction
team does not submit a draft plan to the Secretary within 11 months, the Secretary shall,
not later than 13 months after the establishment of the team, publish in the Federal Register a proposed take reduction plan and implementing regulations, for public review and
comment during a period of not to exceed 90
days.
(C) Not later than 60 days after the close of
the comment period required under subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations, consistent with the other provisions of
this section.
(D) The Secretary shall, during a period of 30
days after publication of a final take reduction plan, utilize newspapers of general circulation, fishery trade associations, electronic
media, and other means of advising commercial fishermen of the requirements of the plan
and how to comply with them.
(E) The Secretary and the take reduction
team shall meet on an annual basis, or at such
other intervals as the Secretary determines
are necessary, to monitor the implementation

§ 1387

TITLE 16—CONSERVATION

of the final take reduction plan until such
time that the Secretary determines that the
objectives of such plan have been met.
(F) The Secretary shall amend the take reduction plan and implementing regulations as
necessary to meet the requirements of this
section, in accordance with the procedures in
this section for the issuance of such plans and
regulations.
(9) In implementing a take reduction plan developed pursuant to this subsection, the Secretary may, where necessary to implement a
take reduction plan to protect or restore a marine mammal stock or species covered by such
plan, promulgate regulations which include, but
are not limited to, measures to—
(A) establish fishery-specific limits on incidental mortality and serious injury of marine
mammals in commercial fisheries or restrict
commercial fisheries by time or area;
(B) require the use of alternative commercial fishing gear or techniques and new technologies, encourage the development of such
gear or technology, or convene expert skippers’ panels;
(C) educate commercial fishermen, through
workshops and other means, on the importance of reducing the incidental mortality and
serious injury of marine mammals in affected
commercial fisheries; and
(D) monitor, in accordance with subsection
(d), the effectiveness of measures taken to reduce the level of incidental mortality and serious injury of marine mammals in the course of
commercial fishing operations.
(10)(A) Notwithstanding paragraph (6), in the
case of any stock to which paragraph (1) applies
for which a final stock assessment has not been
published under section 1386(b)(3) of this title by
April 1, 1995, due to a proceeding under section
1386(b)(2) of this title, or any Federal court review of such proceeding, the Secretary shall establish a take reduction team under paragraph
(6) for such stock as if a final stock assessment
had been published.
(B) The draft stock assessment published for
such stock under section 1386(b)(1) of this title
shall be deemed the final stock assessment for
purposes of preparing and implementing a take
reduction plan for such stock under this section.
(C) Upon publication of a final stock assessment for such stock under section 1386(b)(3) of
this title the Secretary shall immediately reconvene the take reduction team for such stock
for the purpose of amending the take reduction
plan, and any regulations issued to implement
such plan, if necessary, to reflect the final stock
assessment or court action. Such amendments
shall be made in accordance with paragraph
(7)(F) or (8)(F), as appropriate.
(D) A draft stock assessment may only be used
as the basis for a take reduction plan under this
paragraph for a period of not to exceed two
years, or until a final stock assessment is published, whichever is earlier. If, at the end of the
two-year period, a final stock assessment has
not been published, the Secretary shall categorize such stock under section 1386(a)(5)(A) of
this title and shall revoke any regulations to
implement a take reduction plan for such stock.

Page 1790

(E) Subparagraph (D) shall not apply for any
period beyond two years during which a final
stock assessment for such stock has not been
published due to review of a proceeding on such
stock assessment by a Federal court. Immediately upon final action by such court, the Secretary shall proceed under subparagraph (C).
(11) Take reduction plans developed under this
section for a species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.) shall be consistent with any recovery plan
developed for such species or stock under section 4 of such Act [16 U.S.C. 1533].
(g) Emergency regulations
(1) If the Secretary finds that the incidental
mortality and serious injury of marine mammals from commercial fisheries is having, or is
likely to have, an immediate and significant adverse impact on a stock or species, the Secretary shall take actions as follows:
(A) In the case of a stock or species for
which a take reduction plan is in effect, the
Secretary shall—
(i) prescribe emergency regulations that,
consistent with such plan to the maximum
extent practicable, reduce incidental mortality and serious injury in that fishery; and
(ii) approve and implement, on an expedited basis, any amendments to such plan
that are recommended by the take reduction
team to address such adverse impact.
(B) In the case of a stock or species for
which a take reduction plan is being developed, the Secretary shall—
(i) prescribe emergency regulations to reduce such incidental mortality and serious
injury in that fishery; and
(ii) approve and implement, on an expedited basis, such plan, which shall provide
methods to address such adverse impact if
still necessary.
(C) In the case of a stock or species for
which a take reduction plan does not exist and
is not being developed, or in the case of a commercial fishery listed under subsection
(c)(1)(A)(iii) which the Secretary believes may
be contributing to such adverse impact, the
Secretary shall—
(i) prescribe emergency regulations to reduce such incidental mortality and serious
injury in that fishery, to the extent necessary to mitigate such adverse impact;
(ii) immediately review the stock assessment for such stock or species and the classification of such commercial fishery under
this section to determine if a take reduction
team should be established; and
(iii) may, where necessary to address such
adverse impact on a species or stock listed
as a threatened species or endangered species under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.), place observers
on vessels in a commercial fishery listed
under subsection (c)(1)(A)(iii), if the Secretary has reason to believe such vessels
may be causing the incidental mortality and
serious injury to marine mammals from
such stock.

Page 1791

§ 1388

TITLE 16—CONSERVATION

(2) Prior to taking action under paragraph
(1)(A), (B), or (C), the Secretary shall consult
with the Marine Mammal Commission, all appropriate Regional Fishery Management Councils, State fishery managers, and the appropriate take reduction team (if established).
(3) Emergency regulations prescribed under
this subsection—
(A) shall be published in the Federal Register, together with an explanation thereof;
(B) shall remain in effect for not more than
180 days or until the end of the applicable
commercial fishing season, whichever is earlier; and
(C) may be terminated by the Secretary at
an earlier date by publication in the Federal
Register of a notice of termination, if the Secretary determines that the reasons for emergency regulations no longer exist.
(4) If the Secretary finds that incidental mortality and serious injury of marine mammals in
a commercial fishery is continuing to have an
immediate and significant adverse impact on a
stock or species, the Secretary may extend the
emergency regulations for an additional period
of not more than 90 days or until reasons for the
emergency no longer exist, whichever is earlier.
(h) Penalties
Except as provided in subsection (c), any person who violates this section shall be subject to
the provisions of sections 1375 and 1377 of this
title, and may be subject to section 1376 of this
title as the Secretary shall establish by regulations.
(i) Assistance
The Secretary shall provide assistance to Regional Fishery Management Councils, States,
interstate fishery commissions, and Indian tribal organizations in meeting the goal of reducing
incidental mortality and serious injury to insignificant levels approaching a zero mortality and
serious injury rate.
(j) Contributions
For purposes of carrying out this section, the
Secretary may accept, solicit, receive, hold, administer, and use gifts, devises, and bequests.
(k) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior prior to taking actions or
making determinations under this section that
affect or relate to species or population stocks
of marine mammals for which the Secretary of
the Interior is responsible under this subchapter.
(l) Definitions
As used in this section and section
1371(a)(5)(E) of this title, each of the terms
‘‘fishery’’ and ‘‘vessel of the United States’’ has
the same meaning it does in section 1802 of this
title.
(Pub. L. 92–522, title I, § 118, as added Pub. L.
103–238, § 11, Apr. 30, 1994, 108 Stat. 546; amended
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.)

Editorial Notes
REFERENCES IN TEXT
The Endangered Species Act of 1973, referred to in
subsecs. (a)(2), (d)(4)(A), (f)(11), and (g)(1)(C)(iii), is Pub.
L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which
is classified principally to chapter 35 (§ 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.
Act of November 7, 1986, referred to in subsec. (a)(4),
is Pub. L. 99–625, Nov. 7, 1986, 100 Stat. 3500, which
amended section 718b of this title and provisions set
out as a table of National Wildlife Refuges 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.
The Federal Advisory Committee Act, referred to in
subsec. (f)(6)(D), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat.
770, as amended, which is set out in the Appendix to
Title 5, Government Organization and Employees.
AMENDMENTS
1996—Subsecs. (a)(1), (c)(2)(B)(ii), (l). Pub. L. 104–208
made technical amendment to references in original
act which appear in text as references to sections 1802
and 1824(b) of this title.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
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. Committee on Resources of
House of Representatives changed to Committee on
Natural Resources of House of Representatives by
House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.

§ 1388. Marine mammal cooperative agreements
in Alaska
(a) In general
The Secretary may enter into cooperative
agreements with Alaska Native organizations to
conserve marine mammals and provide co-management of subsistence use by Alaska Natives.
(b) Grants
Agreements entered into under this section
may include grants to Alaska Native organizations for, among other purposes—
(1) collecting and analyzing data on marine
mammal populations;
(2) monitoring the harvest of marine mammals for subsistence use;
(3) participating in marine mammal research
conducted by the Federal Government, States,
academic institutions, and private organizations; and

§ 1389

TITLE 16—CONSERVATION

(4) developing marine mammal co-management structures with Federal and State agencies.
(c) Effect of jurisdiction
Nothing in this section is intended or shall be
construed—
(1) as authorizing any expansion or change
in the respective jurisdiction of Federal,
State, or tribal governments over fish and
wildlife resources; or
(2) as altering in any respect the existing political or legal status of Alaska Natives, or the
governmental or jurisdictional status of Alaska Native communities or Alaska Native entities.
(d) Authorization of appropriations
There are authorized to be appropriated for
the purposes of carrying out this section—
(1) $1,500,000 to the Secretary of Commerce
for each of the fiscal years 1994, 1995, 1996, 1997,
1998, and 1999; and
(2) $1,000,000 to the Secretary of the Interior
for each of the fiscal years 1994, 1995, 1996, 1997,
1998, and 1999.
The amounts authorized to be appropriated
under this subsection are in addition to the
amounts authorized to be appropriated under
section 1384 of this title.
(Pub. L. 92–522, title I, § 119, as added Pub. L.
103–238, § 19, Apr. 30, 1994, 108 Stat. 559.)
§ 1389. Pacific Coast Task Force; Gulf of Maine
(a) Pinniped removal authority
Notwithstanding any other provision of this
subchapter, the Secretary may permit the intentional lethal taking of pinnipeds in accordance
with this section.
(b) Application
(1) A State may apply to the Secretary to authorize the intentional lethal taking of individually identifiable pinnipeds which are having a
significant negative impact on the decline or recovery of salmonid fishery stocks which—
(A) have been listed as threatened species or
endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(B) the Secretary finds are approaching
threatened species or endangered species status (as those terms are defined in that Act); or
(C) migrate through the Ballard Locks at
Seattle, Washington.
(2) Any such application shall include a means
of identifying the individual pinniped or
pinnipeds, and shall include a detailed description of the problem interaction and expected
benefits of the taking.
(c) Actions in response to application
(1) Within 15 days of receiving an application,
the Secretary shall determine whether the application has produced sufficient evidence to
warrant establishing a Pinniped-Fishery Interaction Task Force to address the situation described in the application. If the Secretary determines sufficient evidence has been provided,
the Secretary shall establish a Pinniped-Fishery
Interaction Task Force and publish a notice in

Page 1792

the Federal Register requesting public comment
on the application.
(2) A Pinniped-Fishery Interaction Task Force
established under paragraph (1) shall consist of
designated employees of the Department of
Commerce, scientists who are knowledgeable
about the pinniped interaction that the application addresses, representatives of affected conservation and fishing community organizations,
Indian Treaty tribes, the States, and such other
organizations as the Secretary deems appropriate.
(3) Within 60 days after establishment, and
after reviewing public comments in response to
the Federal Register notice under paragraph (1),
the Pinniped-Fishery Interaction Task Force
shall—
(A) recommend to the Secretary whether to
approve or deny the proposed intentional lethal taking of the pinniped or pinnipeds, including along with the recommendation a description of the specific pinniped individual or
individuals, the proposed location, time, and
method of such taking, criteria for evaluating
the success of the action, and the duration of
the intentional lethal taking authority; and
(B) suggest nonlethal alternatives, if available and practicable, including a recommended course of action.
(4) Within 30 days after receipt of recommendations from the Pinniped-Fishery Interaction Task Force, the Secretary shall either
approve or deny the application. If such application is approved, the Secretary shall immediately take steps to implement the intentional
lethal taking, which shall be performed by Federal or State agencies, or qualified individuals
under contract to such agencies.
(5) After implementation of an approved application, the Pinniped-Fishery Interaction Task
Force shall evaluate the effectiveness of the permitted intentional lethal taking or alternative
actions implemented. If implementation was ineffective in eliminating the problem interaction,
the Task Force shall recommend additional actions. If the implementation was effective, the
Task Force shall so advise the Secretary, and
the Secretary shall disband the Task Force.
(d) Considerations
In considering whether an application should
be approved or denied, the Pinniped-Fishery
Interaction Task Force and the Secretary shall
consider—
(1) population trends, feeding habits, the location of the pinniped interaction, how and
when the interaction occurs, and how many
individual pinnipeds are involved;
(2) past efforts to nonlethally deter such
pinnipeds, and whether the applicant has demonstrated that no feasible and prudent alternatives exist and that the applicant has taken
all reasonable nonlethal steps without success;
(3) the extent to which such pinnipeds are
causing undue injury or impact to, or imbalance with, other species in the ecosystem, including fish populations; and
(4) the extent to which such pinnipeds are
exhibiting behavior that presents an ongoing
threat to public safety.

Page 1793

TITLE 16—CONSERVATION

(e) Limitation
The Secretary shall not approve the intentional lethal taking of any pinniped from a species or stock that is—
(1) listed as a threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.);
(2) depleted under this chapter; or
(3) a strategic stock.
(f) Temporary marine mammal removal authority on the waters of the Columbia River or
its tributaries
(1) Removal authority
Notwithstanding any other provision of this
chapter, the Secretary may issue a permit to
an eligible entity to authorize the intentional
lethal taking on the waters of the Columbia
River and its tributaries of individually identifiable sea lions that are part of a population
or stock that is not categorized under this
chapter as depleted or strategic for the purpose of protecting—
(A) species of salmon, steelhead, or
eulachon that are listed as endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
(B) species of lamprey or sturgeon that are
not so listed as endangered or threatened
but are listed as a species of concern.
(2) Permit process
(A) In general
An eligible entity may apply to the Secretary for a permit under this subsection.
(B) Timelines and procedures of application
The timelines and procedures described in
subsection (c) shall apply to applications for
permits under this subsection in the same
manner such timelines apply to applications
under subsection (b).
(C) Coordination
The Secretary shall establish procedures
to coordinate issuance of permits under this
subsection, including application procedures
and timelines, delegation and revocation of
permits to and between eligible entities,
monitoring, periodic review, and geographic,
seasonal take, and species-specific considerations.
(D) Duration of permit
A permit under this subsection shall be effective for a period of not more than 5 years,
and may be renewed by the Secretary.
(3) Limitations on annual takings
The Secretary shall apply the process for determining limitations on annual take of sea
lions under subsection (c) to determinations
on limitations under this subsection, and the
cumulative number of sea lions authorized to
be taken each year under all permits in effect
under this subsection shall not exceed 10 percent of the annual potential biological removal level for sea lions.
(4) Qualified individuals
Intentional lethal takings under this subsection shall—

§ 1389

(A) be humane within the meaning of such
term under section 1362(4) of this title;
(B) require that capture, husbandry, transportation, and euthanasia protocols are
based on standards propagated by an Institutional Animal Care and Use Committee and
that primary euthanasia be limited to humane chemical methods; and
(C) be implemented by agencies or qualified individuals described in subsection
(c)(4), or by individuals employed by the eligible entities described in paragraph (6).
(5) Suspension of permitting authority
If, 5 years after December 18, 2018, the Secretary, after consulting with State and tribal
fishery managers, determines that lethal removal authority is no longer necessary to protect salmonid and other fish species from sea
lion predation, the Secretary shall suspend the
issuance of permits under this subsection.
(6) Eligible entity defined
(A) Definition
In this subsection, the term ‘‘eligible entity’’ means—
(i) with respect to removal in the
mainstem of the Columbia River, from
river mile 112 to the McNary Dam and its
tributaries in the State of Washington,
and its tributaries in the State of Oregon
above Bonneville Dam, the State of Washington, the State of Oregon, and the State
of Idaho;
(ii) with respect to removal in the
mainstem Columbia River from river mile
112 to the McNary Dam and its tributaries
within the State of Washington and in any
of its tributaries above Bonneville Dam
within the State of Oregon, the Nez Perce
Tribe, the Confederated Tribes of the
Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Confederated
Tribes and Bands of the Yakama Nation;
and
(iii) with respect to removal in the Willamette River and other tributaries of the
Columbia River within the State of Oregon
below Bonneville Dam, a committee recognized by the Secretary under subparagraph
(D).
(B) Delegation authority
The Secretary may allow eligible entities
described in clause (i) or (ii) of subparagraph
(A) to delegate their authority under a permit under this subsection to the Columbia
River Intertribal Fish Commission for removal in the mainstem of the Columbia
River above river mile 112 and below McNary
Dam, in the Columbia River tributaries in
the State of Washington, or in tributaries
within the State of Oregon above Bonneville
Dam and below McNary Dam.
(C) Additional delegation authority
The Secretary may allow an eligible entity
described in subparagraph (A)(i) to delegate
its authority under a permit under this subsection to any entity described in subclause
(i) or (ii) of subparagraph (A) with respect to

§ 1389

TITLE 16—CONSERVATION

removal in the mainstem of the Columbia
River above river mile 112 and below McNary
Dam, in the Columbia River tributaries in
the State of Washington, or in tributaries in
the State of Oregon above Bonneville Dam
and below McNary Dam.
(D) Committee requirements
(i) In general
The Secretary shall recognize a committee established in accordance with this
subparagraph as being eligible for a permit
under this subsection, for purposes of subparagraph (A)(iii).
(ii) Membership
A committee established under this subparagraph shall consist of the State of Oregon and each of the following:
(I) The Confederated Tribes of Siletz
Indians or the Confederated Tribes of the
Grand Ronde Community, or both.
(II) The Confederated Tribes of the
Warm Springs or the Confederated
Tribes of the Umatilla Reservation, or
both.
(iii) Majority agreement required
A committee established under this subparagraph may take action with respect to
a permit application and removal under
this subsection only with majority agreement by the committee members.
(iv) Nonapplicability of FACA
The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to a committee established under this subparagraph.
(7) Individual exception
For purposes of this subsection, any sea lion
located upstream of river mile 112 and downstream of McNary Dam, or in any tributary to
the Columbia River that includes spawning
habitat of threatened or endangered salmon or
steelhead is deemed to be individually identifiable.
(8) Significant negative impact exception
For purposes of this subsection, any sea lion
located in the mainstem of the Columbia
River upstream of river mile 112 and downstream of McNary Dam, or in any tributary to
the Columbia River that includes spawning
habitat of threatened or endangered salmon or
steelhead is deemed to be having a significant
negative impact, within the meaning of subsection (b)(1).
(9) Definition
In this subsection, the term ‘‘Indian tribe’’
has the meaning given such term in section
5304 of title 25.
(g) Regionwide pinniped-fishery interaction
study
(1) The Secretary may conduct a study, of not
less than three high predation areas in anadromous fish migration corridors within the
Northwest Region of the National Marine Fisheries Service, on the interaction between fish
and pinnipeds. In conducting the study, the Sec-

Page 1794

retary shall consult with other State and Federal agencies with expertise in pinniped-fishery
interaction. The study shall evaluate—
(A) fish behavior in the presence of predators
generally;
(B) holding times and passage rates of anadromous fish stocks in areas where such fish
are vulnerable to predation;
(C) whether additional facilities exist, or
could be reasonably developed, that could improve escapement for anadromous fish; and
(D) other issues the Secretary considers relevant.
(2) Subject to the availability of appropriations, the Secretary may, not later than 18
months after the commencement of the study
under this subsection, transmit a report on the
results of the study to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and
Fisheries of the House of Representatives.
(3) The study conducted under this subsection
may not be used by the Secretary as a reason for
delaying or deferring a determination or consideration under subsection (c) or (d).
(h) Gulf of Maine Task Force
The Secretary shall establish a Pinniped-Fishery Interaction Task Force to advise the Secretary on issues or problems regarding pinnipeds
interacting in a dangerous or damaging manner
with aquaculture resources in the Gulf of Maine.
No later than 2 years from April 30, 1994, the
Secretary shall after notice and opportunity for
public comment submit to the Committee on
Merchant Marine and Fisheries of the House of
Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing recommended available
alternatives to mitigate such interactions.
(i) Requirements applicable to task forces
(1) Any task force established under this section—
(A) shall to the maximum extent practicable, consist of an equitable balance among
representatives of resource user interests and
nonuser interests; and
(B) shall not be subject to the Federal Advisory Committee Act (5 App. U.S.C.).
(2) Meetings of any task force established
under this section shall be open to the public,
and prior notice of those meetings shall be given
to the public by the task force in a timely fashion.
(j) Gulf of Maine harbor porpoise
(1) Nothing in section 1386 of this title shall
prevent the Secretary from publishing a stock
assessment for Gulf of Maine harbor porpoise in
an expedited fashion.
(2) In developing and implementing a take reduction plan under section 1387 of this title for
Gulf of Maine harbor porpoise, the Secretary
shall consider all actions already taken to reduce incidental mortality and serious injury of
such stock, and may, based on the recommendations of the take reduction team for such stock,
modify the time period required for compliance
with section 1387(f)(5)(A) of this title, but in no
case may such modification extend the date of
compliance beyond April 1, 1997.

Page 1795

§ 1401

TITLE 16—CONSERVATION

(Pub. L. 92–522, title I, § 120, as added Pub. L.
103–238, § 23, Apr. 30, 1994, 108 Stat. 562; amended
Pub. L. 115–329, § 3, Dec. 18, 2018, 132 Stat. 4475.)
Editorial Notes
REFERENCES IN TEXT
The Endangered Species Act of 1973, referred to in
subsecs. (b)(1)(A), (B), (e)(1), and (f)(1)(A), is Pub. L.
93–205, Dec. 28, 1973, 87 Stat. 884, which is classified
principally to chapter 35 (§ 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 Federal Advisory Committee Act, referred to in
subsecs. (f)(6)(D)(iv) and (i)(1)(B), is Pub. L. 92–463, Oct.
6, 1972, 86 Stat. 770, which is set out in the Appendix to
Title 5, Government Organization and Employees.
AMENDMENTS
2018—Subsec. (f). Pub. L. 115–329 amended subsec. (f)
generally. Prior to amendment, subsec. (f) related to a
scientific investigation and report on the impact of
California sea lions and Pacific harbor seals.
Statutory Notes and Related Subsidiaries
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. Committee on Resources of
House of Representatives changed to Committee on
Natural Resources of House of Representatives by
House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.
TREATY RIGHTS OF FEDERALLY RECOGNIZED INDIAN
TRIBES
Pub. L. 115–329, § 4, Dec. 18, 2018, 132 Stat. 4478, provided that: ‘‘Nothing in this Act [see Short Title of 2018
Amendment note set out under section 1361 of this
title] or the amendments made by this Act shall be
construed to enlarge, confirm, adjudicate, affect, or
modify any treaty or other right of an Indian tribe (as
defined in section 4 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5304)).’’

SUBCHAPTER III—MARINE MAMMAL
COMMISSION
§ 1401. Establishment
(a) Designation
There is hereby established the Marine Mammal Commission (hereafter referred to in this
subchapter as the ‘‘Commission’’).
(b) Membership and term of office
(1) Effective September 1, 1982, the Commission shall be composed of three members who
shall be appointed by the President, by and with
the advice and consent of the Senate. The President shall make his selection from a list of individuals knowledgeable in the fields of marine
ecology and resource management, and who are
not in a position to profit from the taking of

marine mammals. Such list shall be submitted
to him by the Chairman of the Council on Environmental Quality and unanimously agreed to
by that Chairman, the Secretary of the Smithsonian Institution, the Director of the National
Science Foundation and the Chairman of the
National Academy of Sciences. No member of
the Commission may, during his period of service on the Commission, hold any other position
as an officer or employee of the United States
except as a retired officer or retired civilian employee of the United States.
(2) The term of office for each member shall be
three years; except that of the members initially appointed to the Commission, the term of
one member shall be for one year, the term of
one member shall be for two years, and the term
of one member shall be for three years. No member is eligible for reappointment; except that
any member appointed to fill a vacancy occurring before the expiration of the term for which
his predecessor was appointed (A) shall be appointed for the remainder of such term, and (B)
is eligible for reappointment for one full term. A
member may serve after the expiration of his
term until his successor has taken office.
(c) Chairman
The President shall designate a Chairman of
the Commission (hereafter referred to in this
subchapter as the ‘‘Chairman’’) from among its
members.
(d) Compensation; reimbursement for travel expenses
Members of the Commission shall each be
compensated at a rate equal to the daily equivalent of the rate for GS–18 of the General Schedule under section 5332 of title 5, for each day
such member is engaged in the actual performance of duties vested in the Commission. Each
member shall be reimbursed for travel expenses,
including per diem in lieu of subsistence, as authorized by section 5703 of title 5 for persons in
Government service employed intermittently.
(e) Executive Director
The Commission shall have an Executive Director, who shall be appointed (without regard
to the provisions of title 5 governing appointments in the competitive service) by the Chairman with the approval of the Commission and
shall be paid at a rate not in excess of the rate
for GS–18 of the General Schedule under section
5332 of title 5. The Executive Director shall have
such duties as the Chairman may assign.
(Pub. L. 92–522, title II, § 201, Oct. 21, 1972, 86
Stat. 1043; Pub. L. 97–389, title II, § 202, Dec. 29,
1982, 96 Stat. 1951; Pub. L. 98–364, title I, § 103(a),
July 17, 1984, 98 Stat. 441.)
Editorial Notes
AMENDMENTS
1984—Subsec. (b)(1). Pub. L. 98–364 substituted ‘‘The
President shall make his selection from a list of individuals knowledgeable in the fields of marine ecology
and resource management, and who are not in a position to profit from the taking of marine mammals.
Such list shall be submitted to him by the Chairman of
the Council on Environmental Quality and unanimously agreed to by that Chairman, the Secretary of