Excerpts from:

The Marine Mammal

Protection Act of 1972

As Amended

 

Sec. 2. Findings and declaration of policy. . . . . . . . . . . . . . . . . . . . . . . . . 5

Sec. 3. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sec. 4. Effective date.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Title I—Conservation and Protection of Marine Mammals

Sec. 101. Moratorium and exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sec. 102. Prohibitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sec. 103. Regulations on taking of marine mammals. . . . . . . . . . . . . . . . . . . . 20

Sec. 104. Permits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sec. 105. Penalties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Sec. [ ]. Disposition of fines2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Sec. 106. Vessel fine, cargo forfeiture, and rewards. . . . . . . . . . . . . . . . . . . . 30

Sec. 107. Enforcement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Sec. 108. International program.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Sec. 109. Federal cooperation with States. . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Findings and Declaration of Policy

16 U.S.C. 1361

Sec. 2. The Congress finds that—

(1) certain species and population stocks of marine mammals are, or may be, in danger

of extinction or depletion as a result of man' s activities;

(2) such species and population stocks should not be permitted to diminish beyond the

point at which they cease to be a significant functioning element in the ecosystem of which

they are a part, and, consistent with this major objective, they should not be permitted to

diminish below their optimum sustainable population. Further measures should be

immediately taken to replenish any species or population stock which has already diminished

below that population. In particular, efforts should be made to protect essential

habitats, including the rookeries, mating grounds, and areas of similar significance for

each species of marine mammal from the adverse effect of man' s actions;

(3) there is inadequate knowledge of the ecology and population dynamics of such

marine mammals and of the factors which bear upon their ability to reproduce themselves

successfully;

(4) negotiations should be undertaken immediately to encourage the development of

international arrangements for research on, and conservation of, all marine mammals;

(5) marine mammals and marine mammal products either—

(A) move in interstate commerce, or

(B) affect the balance of marine ecosystems in a manner which is important to

other animals and animal products which move in interstate commerce,

and that the protection and conservation of marine mammals and their habitats is therefore

necessary to insure the continuing availability of those products which move in interstate

commerce; and

(6) marine mammals have proven themselves to be resources of great international

significance, esthetic and recreational as well as economic, and it is the sense of the

Congress that they should be protected and encouraged to develop to the greatest extent

feasible commensurate with sound policies of resource management and that the primary

objective of their management should be to maintain the health and stability of the marine

ecosystem. Whenever consistent with this primary objective, it should be the goal to

obtain an optimum sustainable population keeping in mind the carrying capacity of the

habitat.

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Definitions

16 U.S.C. 1362

Sec. 3. For the purposes of this chapter—

(1) The term “ depletion” or “ depleted” means any case in which—

(A) the Secretary, after consultation with the Marine Mammal Commission and the

Committee of Scientific Advisors on Marine Mammals established under subchapter III of

this chapter, determines that a species or population stock is below its optimum sustainable

population;

(B) a State, to which authority for the conservation and management of a species

or population stock is transferred under section 1379 of this title, determines that such

species or stock is below its optimum sustainable population; or

(C) a species or population stock is listed as an endangered species or a threatened

species under the Endangered Species Act of 1973 [16 U. S.C. 1531 et seq. ].

(2) The terms “ conservation” and “management” means the collection and application

of biological information for the purposes of increasing and maintaining the number of

animals within species and populations of marine mammals at their optimum sustainable

population. Such terms include the entire scope of activities that constitute a modern

scientific resource program, including, but not limited to, research, census, law enforcement,

and habitat acquisition and improvement. Also included within these terms, when

and where appropriate, is the periodic or total protection of species or populations as well

as regulated taking.

(3) The term “district court of the United States” includes the District Court of Guam,

District Court of the Virgin Islands, District Court of Puerto Rico, District Court of the

Canal Zone, and, in the case of American Samoa and the Trust Territory of the Pacific

Islands, the District Court of the United States for the District of Hawaii.

(4) The term “humane” in the context of the taking of a marine mammal means that

method of taking which involves the least possible degree of pain and suffering practicable

to the mammal involved.

(5) The term “ intermediary nation” means a nation that exports yellowfin tuna or

yellowfin tuna products to the United States and that imports yellowfin tuna or yellowfin

tuna products that are subject to a direct ban on importation into the United States pursuant

to section 1371 (a)(2)(B) of this title.

(6) The term “marine mammal” means any mammal which

(A) is morphologically adapted to the marine environment (including sea otters and

members of the orders Sirenia, Pinnipedia and Cetacea), or

(B) primarily inhabits the marine environment (such as the polar bear); and, for the

purposes of this chapter, includes any part of any such marine mammal, including its raw,

dressed, or dyed fur or skin.

(7) The term “marine mammal product” means any item of merchandise which

consists, or is composed in whole or in part, of any marine mammal.

(8) The term “moratorium” means a complete cessation of the taking of marine

mammals and a complete ban on the importation into the United States of marine mammals

and marine mammal products, except as provided in this chapter.

(9) The term “ optimum sustainable population” means, with respect to any population

stock, the number of animals which will result in the maximum productivity of the

The Marine Mammal Protection Act of 1972 as Amended

7

population or the species, keeping in mind the carrying capacity of the habitat and the

health of the ecosystem of which they form a constituent element.

(10) The term “ person” includes

(A) any private person or entity, and

(B) any officer, employee, agent, department, or instrumentality of the Federal

Government, of any State or political subdivision thereof, or of any foreign government.

(11) The term “population stock” or “ stock” means a group of marine mammals of the

same species or smaller taxa in a common spatial arrangement, that interbreed when

mature.

(12)

(A) Except as provided in subparagraph (B), the term “ Secretary” means—

(i) the Secretary of the department in which the National Oceanic and Atmospheric

Administration is operating, as to all responsibility, authority, funding, and duties

under this chapter with respect to members of the order Cetacea and members, other than

walruses, of the order Pinnipedia, and

(ii) the Secretary of the Interior as to all responsibility, authority, funding, and

duties under this chapter with respect to all other marine mammals covered by this chapter.

(B) in [1] section 1387 of this title and subchapter V of this chapter (other than

section 1421f–1 of this title) the term “Secretary” means the Secretary of Commerce.

(13) The term “ take” means to harass, hunt, capture, or kill, or attempt to harass, hunt,

capture, or kill any marine mammal.

(14) The term “United States” includes the several States, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands of the United States, American Samoa,

Guam, and Northern Mariana Islands.

(15) The term “waters under the jurisdiction of the United States” means—

(A) the territorial sea of the United States;

(B) the waters included within a zone, contiguous to the territorial sea of the

United States, of which the inner boundary is a line coterminous with the seaward

boundary of each coastal State, and the other boundary is a line drawn in such a manner

that each point on it is 200 nautical miles from the baseline from which the territorial sea is

measured; and

(C) the areas referred to as eastern special areas in Article 3(1) of the Agreement

between the United States of America and the Union of Soviet Socialist Republics on the

Maritime Boundary, signed June 1, 1990; in particular, those areas east of the maritime

boundary, as defined in that Agreement, that lie within 200 nautical miles of the baselines

from which the breadth of the territorial sea of Russia is measured but beyond 200 nautical

miles of the baselines from which the breadth of the territorial sea of the United States is

measured, except that this subparagraph shall not apply before the date on which the

Agreement between the United States and the Union of Soviet Socialist Republics on the

Maritime Boundary, signed June 1, 1990, enters into force for the United States.

(16) The term “ fishery” means—

(A) one or more stocks of fish which can be treated as a unit for purposes of

conservation and management and which are identified on the basis of geographical,

scientific, technical, recreational, and economic characteristics; and

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(B) any fishing for such stocks.

(17) The term “competent regional organization”—

(A) for the tuna fishery in the eastern tropical Pacific Ocean, means the

Inter-American Tropical Tuna Commission; and

(B) in any other case, means an organization consisting of those nations participating

in a tuna fishery, the purpose of which is the conservation and management of that

fishery and the management of issues relating to that fishery.

(18)

(A) The term “ harassment” means any act of pursuit, torment, or annoyance

which—

(i) has the potential to injure a marine mammal or marine mammal stock in the

wild; or

(ii) has the potential to disturb a marine mammal or marine mammal stock in

the wild by causing disruption of behavioral patterns, including, but not limited to,

migration, breathing, nursing, breeding, feeding, or sheltering.

(B) In the case of a military readiness activity (as defined in section 315(f) of

Public Law 107–314; 16 U.S.C. 703 note ) or a scientific research activity conducted by

or on behalf of the Federal Government consistent with section 1374 (c)(3) of this title, the

term “ harassment” means—

(i) any act that injures or has the significant potential to injure a marine

mammal or marine mammal stock in the wild; or

(ii) any act that disturbs or is likely to disturb a marine mammal or marine

mammal stock in the wild by causing disruption of natural behavioral patterns, including,

but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a

point where such behavioral patterns are abandoned or significantly altered.

(C) The term “Level A harassment” means harassment described in subparagraph

(A)(i) or, in the case of a military readiness activity or scientific research activity described

in subparagraph (B), harassment described in subparagraph (B)(i).

(D) The term “Level B harassment” means harassment described in subparagraph

(A)(ii) or, in the case of a military readiness activity or scientific research activity

described in subparagraph (B), harassment described in subparagraph (B)(ii).

(19) The term “ strategic stock” means a marine mammal stock—

(A) for which the level of direct human-caused mortality exceeds the potential

biological removal level;

(B) which, based on the best available scientific information, is declining and is

likely to be listed as a threatened species under the Endangered Species Act of 1973 [16

U.S.C. 1531 et seq. ] within the foreseeable future; or

(C) which is listed as a threatened species or endangered species under the

Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ), or is designated as depleted

under this chapter.

(20) The term “ potential biological removal level” means the maximum number of

animals, not including natural mortalities, that may be removed from a marine mammal

stock while allowing that stock to reach or maintain its optimum sustainable population.

The potential biological removal level is the product of the following factors:

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(A) The minimum population estimate of the stock.

(B) One-half the maximum theoretical or estimated net productivity rate of the

stock at a small population size.

(C) A recovery factor of between 0. 1 and 1. 0.

(21) The term “Regional Fishery Management Council” means a Regional Fishery

Management Council established under section 1852 of this title.

(22) The term “ bona fide research” means scientific research on marine mammals, the

results of which—

(A) likely would be accepted for publication in a referred scientific journal;

(B) are likely to contribute to the basic knowledge of marine mammal biology or

ecology; or

(C) are likely to identify, evaluate, or resolve conservation problems.

(23) The term “Alaska Native organization” means a group designated by law or

formally chartered which represents or consists of Indians, Aleuts, or Eskimos residing in

Alaska.

(24) The term “ take reduction plan” means a plan developed under section 1387 of this

title.

(25) The term “ take reduction team” means a team established under section 1387 of

this title.

(26) The term “ net productivity rate” means the annual per capita rate of increase in a

stock resulting from additions due to reproduction, less losses due to mortality.

(27) The term “minimum population estimate” means an estimate of the number of

animals in a stock that—

(A) is based on the best available scientific information on abundance, incorporating

the precision and variability associated with such information; and

(B) provides reasonable assurance that the stock size is equal to or greater than the

estimate.

(28) The term “ International Dolphin Conservation Program” means the international

program established by the agreement signed in LaJolla, California, in June, 1992, as

formalized, modified, and enhanced in accordance with the Declaration of Panama.

(29) The term “Declaration of Panama” means the declaration signed in Panama City,

Republic of Panama, on October 4, 1995

Effective Date

Sec. 4. The provisions of this Act shall take effect upon the expiration of the sixtyday

period following the date of its enactment [December 21, 1972].

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Title I—Conservation and Protection

of Marine Mammals

Moratorium on taking and importing marine mammals and

marine mammal products

16 U.S.C. 1371

Sec. 101.

(a) Imposition; exceptions

There shall be a moratorium on the taking and importation of marine mammals and marine

mammal products, commencing on the effective date of this chapter, during which time no

permit may be issued for the taking of any marine mammal and no marine mammal or

marine mammal product may be imported into the United States except in the following

cases:

(1) Consistent with the provisions of section 1374 of this title, permits may be

issued by the Secretary for taking, and importation for purposes of scientific research,

public display, photography for educational or commercial purposes, or enhancing the

survival or recovery of a species or stock, or for importation of polar bear parts (other

than internal organs) taken in sport hunts in Canada. Such permits, except permits issued

under section 1374 (c)(5) of this title, may be issued if the taking or importation proposed

to be made is first reviewed by the Marine Mammal Commission and the Committee of

Scientific Advisors on Marine Mammals established under subchapter III of this chapter.

The Commission and Committee shall recommend any proposed taking or importation,

other than importation under section 1374 (c)(5) of this title, which is consistent with the

purposes and policies of section 1361 of this title. If the Secretary issues such a permit for

importation, the Secretary shall issue to the importer concerned a certificate to that effect

in such form as the Secretary of the Treasury prescribes, and such importation may be

made upon presentation of the certificate to the customs officer concerned.

(2) Marine mammals may be taken incidentally in the course of commercial fishing

operations and permits may be issued therefor under section 1374 of this title subject to

regulations prescribed by the Secretary in accordance with section 1373 of this title, or in

lieu of such permits, authorizations may be granted therefor under section 1387 of this

title, subject to regulations prescribed under that section by the Secretary without regard to

section 1373 of this title. Such authorizations may be granted under subchapter IV of this

chapter with respect to purse seine fishing for yellowfin tuna in the eastern tropical Pacific

Ocean, subject to regulations prescribed under that subchapter by the Secretary without

regard to section 1373 of this title. In any event it shall be the immediate goal that the

incidental kill or incidental serious injury of marine mammals permitted in the course of

commercial fishing operations be reduced to insignificant levels approaching a zero

mortality and serious injury rate. The Secretary of the Treasury shall ban the importation

of commercial fish or products from fish which have been caught with commercial fishing

technology which results in the incidental kill or incidental serious injury of ocean

mammals in excess of United States standards. For purposes of applying the preceding

sentence, the Secretary—

(A) shall insist on reasonable proof from the government of any nation from

which fish or fish products will be exported to the United States of the effects on ocean

mammals of the commercial fishing technology in use for such fish or fish products

exported from such nation to the United States;

(B) in the case of yellowfin tuna harvested with purse seine nets in the eastern

tropical Pacific Ocean, and products therefrom, to be exported to the United States, shall

require that the government of the exporting nation provide documentary evidence that—

(i)

The Marine Mammal Protection Act of 1972 as Amended

11

(I) the tuna or products therefrom were not banned from importation

under this paragraph before the effective date of section 4 of the International Dolphin

Conservation Program Act; or

(II) the tuna or products therefrom were harvested after the

effective date of section 4 of the International Dolphin Conservation Program Act by

vessels of a nation which participates in the International Dolphin Conservation Program,

and such harvesting nation is either a member of the Inter-American Tropical Tuna

Commission or has initiated (and within 6 months thereafter completed) all steps required

of applicant nations, in accordance with article V, paragraph 3 of the Convention establishing

the Inter-American Tropical Tuna Commission, to become a member of that organization;

(ii) such nation is meeting the obligations of the International Dolphin

Conservation Program and the obligations of membership in the Inter-American Tropical

Tuna Commission, including all financial obligations; and

(iii) the total dolphin mortality limits, and per-stock per-year dolphin

mortality limits permitted for that nation’s vessels under the International Dolphin

Conservation Program do not exceed the limits determined for 1997, or for any year

thereafter, consistent with the objective of progressively reducing dolphin mortality to a

level approaching zero through the setting of annual limits and the goal of eliminating

dolphin mortality, and requirements of the International Dolphin Conservation Program;

(C) shall not accept such documentary evidence if—

(i) the government of the harvesting nation does not provide directly or

authorize the Inter-American Tropical Tuna Commission to release complete and accurate

information to the Secretary in a timely manner—

(I) to allow determination of compliance with the International

Dolphin Conservation Program; and

(II) for the purposes of tracking and verifying compliance with the

minimum requirements established by the Secretary in regulations promulgated under

section 1385 (f) of this title; or

(ii) after taking into consideration such information, findings of the

Inter-American Tropical Tuna Commission, and any other relevant information, including

information that a nation is consistently failing to take enforcement actions on violations

which diminish the effectiveness of the International Dolphin Conservation Program, the

Secretary, in consultation with the Secretary of State, finds that the harvesting nation is not

in compliance with the International Dolphin Conservation Program.

(D) shall require the government of any intermediary nation to certify and

provide reasonable proof to the Secretary that it has not imported, within the preceding six

months, any yellowfin tuna or yellowfin tuna products that are subject to a direct ban on

importation to the United States under subparagraph (B);

(E) shall, six months after importation of yellowfin tuna or tuna products has

been banned under this section, certify such fact to the President, which certification shall

be deemed to be a certification for the purposes of section 1978 (a) of title 22 for as long

as such ban is in effect; and

(F)

(i) except as provided in clause (ii), in the case of fish or products

containing fish harvested by a nation whose fishing vessels engage in high seas driftnet

fishing, shall require that the government of the exporting nation provide documentary

evidence that the fish or fish product was not harvested with a large-scale driftnet in the

South Pacific Ocean after July 1, 1991, or in any other water of the high seas after January

1, 1993, and

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(ii) in the case of tuna or a product containing tuna harvested by a nation

whose fishing vessels engage in high seas driftnet fishing, shall require that the government

of the exporting nation provide documentary evidence that the tuna or tuna product

was not harvested with a large-scale driftnet anywhere on the high seas after July 1, 1991.

For purposes of subparagraph (F), the term “driftnet” has the meaning given such term in

section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (16

U.S.C. 1822 note ), except that, until January 1, 1994, the term “ driftnet” does not

include the use in the northeast Atlantic Ocean of gillnets with a total length not to exceed

five kilometers if the use is in accordance with regulations adopted by the European

Community pursuant to the October 28, 1991, decision by the Council of Fisheries

Ministers of the Community.

(3)

(A) The Secretary, on the basis of the best scientific evidence available and in

consultation with the Marine Mammal Commission, is authorized and directed, from time

to time, having due regard to the distribution, abundance, breeding habits, and times and

lines of migratory movements of such marine mammals, to determine when, to what

extent, if at all, and by what means, it is compatible with this chapter to waive the

requirements of this section so as to allow taking, or importing of any marine mammal, or

any marine mammal product, and to adopt suitable regulations, issue permits, and make

determinations in accordance with sections 1372, 1373, 1374, and 1381 of this title

permitting and governing such taking and importing, in accordance with such determinations:

Provided, however, That the Secretary, in making such determinations must be

assured that the taking of such marine mammal is in accord with sound principles of

resource protection and conservation as provided in the purposes and policies of this

chapter: Provided, further, however, That no marine mammal or no marine mammal

product may be imported into the United States unless the Secretary certifies that the

program for taking marine mammals in the country of origin is consistent with the

provisions and policies of this chapter. Products of nations not so certified may not be

imported into the United States for any purpose, including processing for exportation.

(B) Except for scientific research purposes, photography for educational or

commercial purposes, or enhancing the survival or recovery of a species or stock as

provided for in paragraph (1) of this subsection, or as provided for under paragraph (5) of

this subsection, during the moratorium no permit may be issued for the taking of any

marine mammal which has been designated by the Secretary as depleted, and no importation

may be made of any such mammal.

(4)

(A) Except as provided in subparagraphs (B) and (C), the provisions of this

chapter shall not apply to the use of measures—

(i) by the owner of fishing gear or catch, or an employee or agent of such

owner, to deter a marine mammal from damaging the gear or catch;

(ii) by the owner of other private property, or an agent, bailee, or

employee of such owner, to deter a marine mammal from damaging private property;

(iii) by any person, to deter a marine mammal from endangering personal

safety; or

(iv) by a government employee, to deter a marine mammal from damaging

public property,

so long as such measures do not result in the death or serious injury of a marine mammal.

(B) The Secretary shall, through consultation with appropriate experts, and

after notice and opportunity for public comment, publish in the Federal Register a list of

guidelines for use in safely deterring marine mammals. In the case of marine mammals

The Marine Mammal Protection Act of 1972 as Amended

13

listed as endangered species or threatened species under the Endangered Species Act of

1973 [16 U.S.C. 1531 et seq. ], the Secretary shall recommend specific measures which

may be used to nonlethally deter marine mammals. Actions to deter marine mammals

consistent with such guidelines or specific measures shall not be a violation of this chapter.

(C) If the Secretary determines, using the best scientific information available,

that certain forms of deterrence have a significant adverse effect on marine mammals, the

Secretary may prohibit such deterrent methods, after notice and opportunity for public

comment, through regulation under this chapter.

(D) The authority to deter marine mammals pursuant to subparagraph (A)

applies to all marine mammals, including all stocks designated as depleted under this

chapter.

(5)

(A)

(i) Upon request therefor by citizens of the United States who engage in a

specified activity (other than commercial fishing) within a specified geographical region,

the Secretary shall allow, during periods of not more than five consecutive years each, the

incidental, but not intentional, taking by citizens while engaging in that activity within that

region of small numbers of marine mammals of a species or population stock if the

Secretary, after notice (in the Federal Register and in newspapers of general circulation,

and through appropriate electronic media, in the coastal areas that may be affected by such

activity) and opportunity for public comment—

(I) finds that the total of such taking during each five-year (or less)

period concerned will have a negligible impact on such species or stock and will not have

an unmitigable adverse impact on the availability of such species or stock for taking for

subsistence uses pursuant to subsection (b) of this section or section 1379 (f) of this title

or, in the case of a cooperative agreement under both this chapter and the Whaling

Convention Act of 1949 (16 U.S.C. 916 et seq. ), pursuant to section 1382 (c) of this title;

and

(II) prescribes regulations setting forth—

(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) 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)(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.

(iii) 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

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the Secretary finds, after notice and opportunity for public comment (as required under

subparagraph (A) unless subparagraph (C)(i) applies), that—

(i) the regulations prescribed under subparagraph (A) regarding methods of

taking, monitoring, or reporting are not being substantially complied with by a person

engaging in such activity; or

(ii) the taking allowed under subparagraph (A) pursuant to one or more

activities within one or more regions is having, or may have, more than a negligible

impact on the species or stock concerned.

(C)

(i) The requirement for notice and opportunity for public comment in

subparagraph (B) shall not apply in the case of a suspension of permission to take if the

Secretary determines that an emergency exists which poses a significant risk to the

well-being of the species or stock concerned.

(ii) Sections 1373 and 1374 of this title shall not apply to the taking of

marine mammals under the authority of this paragraph.

(D)

(i) Upon request therefor by citizens of the United States who engage in a

specified activity (other than commercial fishing) within a specific geographic region, the

Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as

the Secretary may specify, the incidental, but not intentional, taking by harassment of

small numbers of marine mammals of a species or population stock by such citizens while

engaging in that activity within that region if the Secretary finds that such harassment

during each period concerned—

(I) will have a negligible impact on such species or stock, and

(II) will not have an unmitigable adverse impact on the availability

of such species or stock for taking for subsistence uses pursuant to subsection (b) of this

section, or section 1379 (f) of this title or pursuant to a cooperative agreement under

section 1388 of this title.

(ii) The authorization for such activity shall prescribe, where applicable—

(I) permissible methods of taking by harassment pursuant to such

activity, and other means of effecting the least practicable impact on such species or stock

and its habitat, paying particular attention to rookeries, mating grounds, and areas of

similar significance, and on the availability of such species or stock for taking for subsistence

uses pursuant to subsection (b) of this section or section 1379 (f) of this title or

pursuant to a cooperative agreement under section 1388 of this title,

(II) the measures that the Secretary determines are necessary to

ensure no unmitigable adverse impact on the availability of the species or stock for taking

for subsistence uses pursuant to subsection (b) of this section or section 1379 (f) of this

title or pursuant to a cooperative agreement under section 1388 of this title, and

(III) requirements pertaining to the monitoring and reporting of such taking by harassment,

including requirements for the independent peer review of proposed monitoring plans or

other research proposals where the proposed activity may affect the availability of a

species or stock for taking for subsistence uses pursuant to subsection (b) of this section or

section 1379 (f) of this title or pursuant to a cooperative agreement under section 1388 of

this title.

(iii) The Secretary shall publish a proposed authorization not later than 45

days after receiving an application under this subparagraph and request public comment

The Marine Mammal Protection Act of 1972 as Amended

15

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) 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 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.

(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

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impact that is more than negligible on the endangered or threatened species or stock, the

Secretary shall use the emergency authority granted under section 1387 of this title to

protect such species or stock, and may modify any permit granted under this paragraph as

necessary.

(iv) The Secretary may suspend for a time certain or revoke a permit

granted under this subparagraph only if the Secretary determines that the conditions or

limitations set forth in such permit are not being complied with. The Secretary may amend

or modify, after notice and opportunity for public comment, the list of fisheries published

under clause (ii) whenever the Secretary determines there has been a significant change in

the information or conditions used to determine such list.

(v) Sections 1373 and 1374 of this title shall not apply to the taking of

marine mammals under the authority of this subparagraph.

(vi) This subparagraph shall not govern the incidental taking of California

sea otters and shall not be deemed to amend or repeal the Act of November 7, 1986

(Public Law 99–625; 100 Stat. 3500).

(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”. O4

(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.

The Marine Mammal Protection Act of 1972 as Amended

17

(b) Exemptions for Alaskan natives

Except as provided in section 1379 of this title, the provisions of this chapter shall not

apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo

who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the

Arctic Ocean if such taking—

(1) is for subsistence purposes; or

(2) is done for purposes of creating and selling authentic native articles of handicrafts

and clothing: Provided, That only authentic native articles of handicrafts and

clothing may be sold in interstate commerce: And provided further, That any edible

portion of marine mammals may be sold in native villages and towns in Alaska or for

native consumption. For the purposes of this subsection, the term “ authentic native articles

of handicrafts and clothing” means items composed wholly or in some significant respect

of natural materials, and which are produced, decorated, or fashioned in the exercise of

traditional native handicrafts without the use of pantographs, multiple carvers, or other

mass copying devices. Traditional native handicrafts include, but are not limited to

weaving, carving, stitching, sewing, lacing, beading, drawing and painting; and

(3) in each case, is not accomplished in a wasteful manner.

Notwithstanding the preceding provisions of this subsection, when, under this chapter,

the Secretary determines any species or stock of marine mammal subject to taking by

Indians, Aleuts, or Eskimos to be depleted, he may prescribe regulations upon the taking

of such marine mammals by any Indian, Aleut, or Eskimo described in this subsection.

Such regulations may be established with reference to species or stocks, geographical

description of the area included, the season for taking, or any other factors related to the

reason for establishing such regulations and consistent with the purposes of this chapter.

Such regulations shall be prescribed after notice and hearing required by section 1373 of

this title and shall be removed as soon as the Secretary determines that the need for their

imposition has disappeared. In promulgating any regulation or making any assessment

pursuant to a hearing or proceeding under this subsection or section 1386 (b)(2) of this

title, or in making any determination of depletion under this subsection or finding regarding

unmitigable adverse impacts under subsection (a)(5) of this section that affects stocks

or persons to which this subsection applies, the Secretary shall be responsible for demonstrating

that such regulation, assessment, determination, or finding is supported by

substantial evidence on the basis of the record as a whole. The preceding sentence shall

only be applicable in an action brought by one or more Alaska Native organizations

representing persons to which this subsection applies.

(c) Taking in defense of self or others

It shall not be a violation of this chapter to take a marine mammal if such taking is

imminently necessary in self-defense or to save the life of a person in immediate danger,

and such taking is reported to the Secretary within 48 hours. The Secretary may seize and

dispose of any carcass.

(d) Good Samaritan exemption

It shall not be a violation of this chapter to take a marine mammal if—

(1) such taking is imminently necessary to avoid serious injury, additional injury,

or death to a marine mammal entangled in fishing gear or debris;

(2) reasonable care is taken to ensure the safe release of the marine mammal,

taking into consideration the equipment, expertise, and conditions at hand;

(3) reasonable care is exercised to prevent any further injury to the marine

mammal; and

(4) such taking is reported to the Secretary within 48 hours.

(e) Chapter not to apply to incidental takings by United States citizens employed on

foreign vessels outside United States EEZ

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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.

Prohibitions

16 U.S.C. 1372

Sec. 102. (a) [TAKING. ] — Except as provided in sections 101, 103, 104, 109, 111, 113,

114, and 118 of this title and title IV, 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 title 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

The Marine Mammal Protection Act of 1972 as Amended

19

(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 title,

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 Act; 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 104(c); 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 Act.

(b) [IMPORTATION OF PREGNANT OR NURSING ANIMALS; 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 104(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 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 title; 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—

Marine Mammal Commission

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(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 Act shall not apply with respect to any marine

mammal taken before the effective date of this Act [December 21, 1972], 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.

Regulations on Taking of Marine Mammals

16 U.S.C. 1373

Sec. 103. (a) [NECESSITY AND APPROPRIATENESS. ] — The Secretary, on the basis of the

best scientific evidence available and in consultation 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 2 of this Act.

(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 104 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;

The Marine Mammal Protection Act of 1972 as Amended

21

(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 101(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;

(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 Act.

(f) [REPORT TO CONGRESS. ] — Within six months after the effective date of this Act [June

21, 1973] 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 Act. His

report shall describe those actions taken and those measures believed necessary, including

where appropriate, the issuance of permits pursuant to this title to assure the well-being of

such marine mammals. 4

Marine Mammal Commission

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Permits

16 U.S.C. 1374

Sec. 104. (a) [ISSUANCE. ] — The Secretary may issue permits which authorize the taking

or importation of any marine mammal. Permits for the incidental taking of marine

mammals in the course of commercial fishing operations may only be issued as specifically

provided for in sections 101(a)(5) or 306, 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 103 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 DISPLAY OR RESEARCH. ] —

(1) Any permit issued by the Secretary which authorizes the taking or importation of a

marine mammal for purposes of scientific research, public display, or enhancing the

survival or recovery of a species or stock shall specify, in addition to the conditions

required by subsection (b) of this section, the methods of capture, supervision, care, and

transportation which must be observed pursuant to such taking or importation. Any person

authorized to take or import a marine mammal for purposes of scientific research, public

display, or enhancing the survival or recovery of a species or stock shall furnish to the

Secretary a report on all activities carried out by him pursuant to that authority.

(2)(A) A permit may be issued to take or import a marine mammal for the purpose of

public display only to a person which the Secretary determines—

(i) offers a program for education or conservation purposes that is based on

professionally recognized standards of the public display community;

(ii) is registered or holds a license issued under 7 U.S.C. 2131 et seq. ; and

(iii) maintains facilities for the public display of marine mammals that are open

to the public on a regularly scheduled basis and that access to such facilities is not

limited or restricted other than by charging of an admission fee.

(B) A permit under this paragraph shall grant to the person to which it is issued the

right, without obtaining any additional permit or authorization under this Act, to—

The Marine Mammal Protection Act of 1972 as Amended

23

(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 Act. 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).

Marine Mammal Commission

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(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 section 104(e), seize the marine

mammal, or cooperate with other persons authorized to hold marine mammals under

this Act for disposition of the marine mammal. The Secretary may recover from the

person expenses incurred by the Secretary for that seizure.

(E) No marine mammal held pursuant to a permit issued under subparagraph (A),

or by a person exercising rights under subparagraph (C), may be sold, purchased,

exported, or transported unless the Secretary is notified of such action no later than 15

days before such action, and such action is for purposes of public display, scientific

research, or enhancing the survival or recovery of a species or stock. The Secretary

may only require the notification to include the information required for the inventory

established under paragraph (10).

(3)(A) The Secretary may issue a permit under this paragraph for scientific research

purposes to an applicant which submits with its permit application information indicating

that the taking is required to further a bona fide scientific purpose. The Secretary may

issue a permit under this paragraph before the end of the public review and comment

period required under subsection (d)(2) 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 the date of enactment of the Marine Mammal

Protection Act Amendments of 1994 [August 28, 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 Act would apply.

(v) Methods to be used to conduct the research.

The Marine Mammal Protection Act of 1972 as Amended

25

Not later than 30 days after receipt of a letter of intent to conduct scientific research

under the general authorization, the Secretary shall issue a letter to the applicant

confirming that the general authorization applies, or, if the proposed research is likely

to result in the taking (including Level A harassment) of a marine mammal, shall notify

the applicant that subparagraph (A) applies.

(4)(A) A permit may be issued for enhancing the survival or recovery of a species or

stock only with respect to a species or stock for which the Secretary, after consultation

with the Marine Mammal Commission and after notice and opportunity for public comment,

has first determined that—

(i) taking or importation is likely to contribute significantly to maintaining or

increasing distribution or numbers necessary to ensure the survival or recovery of

the species or stock; and

(ii) taking or importation is consistent (I) with any conservation plan adopted by

the Secretary under section 115(b) of this title or any recovery plan developed

under section 4(f) of the Endangered Species Act of 1973 for the species or stock,

or (II) if there is no conservation or recovery plan in place, with the Secretary' s

evaluation of actions required to enhance the survival or recovery of the species or

stock in light to 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.

Marine Mammal Commission

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(B) The Secretary shall establish and charge a reasonable fee for permits issued

under this paragraph. All fees collected under this paragraph shall be available to the

Secretary until expended for use in developing and implementing cooperative research

and management programs for the conservation of polar bears in Alaska and Russia

pursuant to section 113(d).

(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 the date of enactment of this paragraph [April 30, 1996]. 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 the date of enactment of the Marine Mammal Protection Act

Amendments of 1994 [April 30, 1994], to each applicant who submits, with the

permit application, proof that the polar bear was legally harvested in Canada by the

applicant. The Secretary shall issue such permits without regard to the provisions of

subparagraphs (A) and (C)(ii) of this paragraph, subsection (d)(3) of this section,

and sections 101 and 102. This subparagraph shall not apply to polar bear parts that

were imported before the effective date of this subparagraph [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 Act

and which is determined under guidance under section 402(a) not to be releasable to the

wild, the Secretary shall issue the permit to the person requesting the permit if that

person—

(A) meets the requirements of clauses (i), (ii), and (iii) of paragraph (2)(A), in the

case of a request for a permit under paragraph (2);

(B) meets the requirements of paragraph (3), in the case of a request for a permit

under that paragraph; or

(C) meets the requirements of paragraph (4), in the case of a request for a permit

under that paragraph.

(8)(A) No additional permit or authorization shall be required to possess, sell, purchase,

transport, export, or offer to sell or purchase the progeny of marine mammals taken

or imported under this subsection, if such possession, sale, purchase, transport, export, or

offer to sell or purchase is—

The Marine Mammal Protection Act of 1972 as Amended

27

(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 the date of the

enactment of the Marine Mammal Protection Act Amendments of 1994 [April 30,

1994] and held in captivity for the purpose of public display shall be treated as though

born after that date of enactment.

(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 Act:

(A) The name of the marine mammal or other identification.

(B) The sex of the marine mammal.

(C) The estimated or actual birth date of the marine mammal.

(D) The date of acquisition or disposition of the marine mammal by the permit

holder.

(E) The source from whom the marine mammal was acquired including the

location of the take from the wild, if applicable.

(F) If the marine mammal is transferred, the name of the recipient.

(G) A notation if the animal was acquired as the result of a stranding.

(H) The date of death of the marine mammal and the cause of death when determined.

(d) [APPLICATION PROCEDURES; NOTICE; HEARING; REVIEW. ] —

(1) The Secretary shall prescribe such procedures as are necessary to carry out this

section, including the form and manner in which application for permits may be made.

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28

(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 Act and the applicable regulations established under section 103

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, United States Code, 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 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 103 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.

(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.

The Marine Mammal Protection Act of 1972 as Amended

29

(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;5

(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 103 of this title and to the requirements of section 101 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 306 of this Act, subject to the regulations issued pursuant to

section 303 of this Act.

(3)(A) The Secretary shall, commencing on January 1, 1985, undertake a scientific

research program to monitor for at least five consecutive years, and periodically as

necessary thereafter, the indices of abundance and trends of marine mammal population

stocks which are incidentally taken in the course of commercial purse seine fishing for

yellowfin tuna in the eastern tropical Pacific Ocean.

(B) If the Secretary determines, on the basis of the best scientific information

available (including that obtained under the monitoring program), that the incidental

taking of marine mammals permitted under the general permit referred to in paragraph

(2) is having a significant adverse effect on a marine mammal population stock, the

Secretary shall take such action as is necessary, after notice and an opportunity for an

agency hearing on the record, to modify the applicable incidental take quotas or

requirements for gear and fishing practices (or both such quotas and requirements) for

such fishing so as to ensure that the marine mammal population stock is not significantly

adversely affected by the incidental taking.

(C) For each year after 1984, the Secretary shall include in his annual report to the

public and the Congress under section 103(f) a discussion of the proposed activities to

be conducted each year as part of the monitoring program required by subparagraph

(A).

(D) There are authorized to be appropriated to the Department of Commerce for

purposes of carrying out the monitoring program required under this paragraph not to

exceed $4,000,000 for the period beginning October 1, 1984, and ending September

30, 1988.

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Penalties

16 U.S.C. 1375

Sec. 105. (a)(1) Any person who violates any provision of this title or of any permit or

regulation issued thereunder, except as provided in section 118, 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 title or of any permit or

regulation issued thereunder (except as provided in section 118) shall, upon conviction, be

fined not more than $20,000 for each such violation, or imprisoned for not more than one

year, or both.

Disposition of Fines

16 U.S.C. 1375aAA

Sec. [ ] Hereafter, 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.

Vessel Fine, Cargo Forfeiture, and Rewards

16 U.S.C. 1376

Sec. 106. (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 title.

(b) [PENALTIES.] — Any vessel subject to the jurisdiction of the United States that is

employed in any manner in the unlawful taking of any marine mammal shall be liable for a

The Marine Mammal Protection Act of 1972 as Amended

31

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 title. 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.

Enforcement

16 U.S.C. 1377

Sec. 107. (a) [UTILIZATION OF PERSONNEL. ] — Except as otherwise provided in this title,

the Secretary shall enforce the provisions of this title. The Secretary may utilize, by

agreement, the personnel, services, and facilities of any other Federal agency for purposes

of enforcing this title.

(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 title. 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 magistrates 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 title and any

regulations issued thereunder.

(d) [EXECUTION OF PROCESS; ARREST; SEARCH; SEIZURE. ] — Any person authorized by

the Secretary to enforce this title may execute any warrant or process issued by any officer

or court of competent jurisdiction for the enforcement of this title. Such 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 title 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 title or the

regulations issued thereunder, search such vessel, other conveyance, or container 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 title 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 mammal

products taken or retained in violation of this title or the regulations issued thereunder and

shall dispose of them in accordance with regulations prescribed by the Secretary.

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(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 105(a) or (b) of this title. All marine mammals 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 105(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 105(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 105(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 105(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 105(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, with6 thirty days after the

final disposition of the case involving such alleged violation, commence proceedings for

the assessment of a civil penalty under section 105(a) of this title.

The Marine Mammal Protection Act of 1972 as Amended

33

International Program

16 U.S.C. 1378

Sec. 108. (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 multinational

agreements with other nations for the protection and conservation of all marine

mammals covered by this Act;

(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

Inter-American 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 Act 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;

(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 Act;

Marine Mammal Commission

34

(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 the date of the enactment of

this Act [October 21, 1973] 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

201 of this Act, 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 Act, 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 Act, or both, to make the Convention and this Act consistent with each other.

The Secretary shall complete the studies required under this paragraph not later than one

year after the date of enactment of this Act [October 21, 1973] 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 Act 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 Act 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 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 103(f) of this title.

The Marine Mammal Protection Act of 1972 as Amended

35

Federal Cooperation With States

16 U.S.C. 1379

Sec. 109. (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), 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—

(A) is consistent with the purposes, policies, and goals of this Act 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 that 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.

Marine Mammal Commission

36

(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

101; and

(B) the Secretary shall continue to regulate, under this title, 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 cooperative 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 title beyond

the territory of the State, as a determination made in accordance with section 103 and as

an applicable waiver under section 101(a)(3);

(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 101(a)(2) or (4)), or in the course of other specified

activities provided for under section 101(a)(5), in the zone described in section

3(14)(B), 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 101(a)(1) after the date

of the enactment of the 1981 amendment to this sub- section [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 101(b) 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

The Marine Mammal Protection Act of 1972 as Amended

37

State and a general description of the documentation 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, United States Code, 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 302 of the Act of April 13, 1976 (16 U.S.C. 1852)) 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 101(a) within the zone described in section 3(14)(B). 7

(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 3(14)(B) 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 101(a) within such zone. The Secretary shall adopt such

provisions through the issuance of regulations under section 553 of Title 5, United States

Code, and with respect to such issuance the Regulatory Flexibility Act, the Paperwork

Reduction Act, Executive Order No. 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 105, 106, and 107, such regulations shall be treated as having been issued under

this title.

(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 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

Marine Mammal Commission

38

(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

Act (and in the case of Alaskan Natives, section 101(b) 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—

(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

The Marine Mammal Protection Act of 1972 as Amended

39

(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 102 of the National Environmental

Policy Act of 1969.

(h) [TAKING OF MARINE MAMMALS AS PART OF OFFICIAL DUTIES. ] —

(1) Nothing in this title or title IV shall prevent a Federal, State, or local government

official or employee or a person designated under section 112(c) 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 title shall prevent the Secretary or a person designated under section

112(c) 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.

(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 101(b).

(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 title: Provided, That any such arrangement shall contain such provisions as the

Secretary deems appropriate to insure that the purposes and policies of this Act 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.

Marine Mammal Commission

40

(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.

Regulations and Administration

16 U.S.C. 1382

Sec. 112. (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 title.

(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 title.

(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 title or title IV 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 land. 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 8 policies of this Act, he shall

suspend the operation of that program and shall include in the annual report to the public

and the Congress required under section 103(f) of this Act 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 117 or other significant new

information obtained under this Act, 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 consultation with the Marine Mammal Commission and

the appropriate Federal agencies and after notice and opportunity for public comment.

The Marine Mammal Protection Act of 1972 as Amended

43

Application to Other Treaties and Conventions

16 U.S.C. 1383

Sec. 113. (a) [IN GENERAL; WAIVER OF PENALTIES.] — The provisions of this title 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 title in order to effect essential compliance with the regulatory provisions of

this Act so as to reduce to the lowest practicable level the taking of marine mammals

incidental to commercial fishing operations, section 105 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 the date of enactment of the Marine Mammal Protection Act

Amendments of 1994 [April 30, 1995], 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 Secretary 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 12, 1995.

(d) [CONSULTATION REGARDING AGREEMENT ON THE CONSERVATION OF POLAR BEARS IN

ALASKA AND IN RUSSIA; REPORT. ] — Not later than 6 months after the date of enactment

of the Marine Mammal Protection Act Amendments of 1994 [October 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.