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U.S. Code as of:
01/19/04
Section 1371. Moratorium on taking and importing marine mammals and marine mammal products
(a) Imposition; exceptions
There shall be a moratorium on the taking and importation of
marine mammals and marine mammal products, commencing on the
effective date of this chapter, during which time no permit may be
issued for the taking of any marine mammal and no marine mammal or
marine mammal product may be imported into the United States except
in the following cases:
(1) Consistent with the provisions of section 1374 of this
title, permits may be issued by the Secretary for taking, and
importation for purposes of scientific research, public display,
photography for educational or commercial purposes, or enhancing
the survival or recovery of a species or stock, or for
importation of polar bear parts (other than internal organs)
taken in sport hunts in Canada. Such permits, except permits
issued under section 1374(c)(5) of this title, may be issued if
the taking or importation proposed to be made is first reviewed
by the Marine Mammal Commission and the Committee of Scientific
Advisors on Marine Mammals established under subchapter III of
this chapter. The Commission and Committee shall recommend any
proposed taking or importation, other than importation under
section 1374(c)(5) of this title, which is consistent with the
purposes and policies of section 1361 of this title. If the
Secretary issues such a permit for importation, the Secretary
shall issue to the importer concerned a certificate to that
effect in such form as the Secretary of the Treasury prescribes,
and such importation may be made upon presentation of the
certificate to the customs officer concerned.
(2) Marine mammals may be taken incidentally in the course of
commercial fishing operations and permits may be issued therefor
under section 1374 of this title subject to regulations
prescribed by the Secretary in accordance with section 1373 of
this title, or in lieu of such permits, authorizations may be
granted therefor under section 1387 of this title, subject to
regulations prescribed under that section by the Secretary
without regard to section 1373 of this title. Such authorizations
may be granted under subchapter IV of this chapter with respect
to purse seine fishing for yellowfin tuna in the eastern tropical
Pacific Ocean, subject to regulations prescribed under that
subchapter by the Secretary without regard to section 1373 of
this title. In any event it shall be the immediate goal that the
incidental kill or incidental serious injury of marine mammals
permitted in the course of commercial fishing operations be
reduced to insignificant levels approaching a zero mortality and
serious injury rate. The Secretary of the Treasury shall ban the
importation of commercial fish or products from fish which have
been caught with commercial fishing technology which results in
the incidental kill or incidental serious injury of ocean mammals
in excess of United States standards. For purposes of applying
the preceding sentence, the Secretary -
(A) shall insist on reasonable proof from the government of
any nation from which fish or fish products will be exported to
the United States of the effects on ocean mammals of the
commercial fishing technology in use for such fish or fish
products exported from such nation to the United States;
(B) in the case of yellowfin tuna harvested with purse seine
nets in the eastern tropical Pacific Ocean, and products
therefrom, to be exported to the United States, shall require
that the government of the exporting nation provide documentary
evidence that -
(i)(I) the tuna or products therefrom were not banned from
importation under this paragraph before the effective date of
section 4 of the International Dolphin Conservation Program
Act; or
(II) the tuna or products therefrom were harvested after
the effective date of section 4 of the International Dolphin
Conservation Program Act by vessels of a nation which
participates in the International Dolphin Conservation
Program, and such harvesting nation is either a member of the
Inter-American Tropical Tuna Commission or has initiated (and
within 6 months thereafter completed) all steps required of
applicant nations, in accordance with article V, paragraph 3
of the Convention establishing the Inter-American Tropical
Tuna Commission, to become a member of that organization;
(ii) such nation is meeting the obligations of the
International Dolphin Conservation Program and the
obligations of membership in the Inter-American Tropical Tuna
Commission, including all financial obligations; and
(iii) the total dolphin mortality limits, and per-stock
per-year dolphin mortality limits permitted for that nation's
vessels under the International Dolphin Conservation Program
do not exceed the limits determined for 1997, or for any year
thereafter, consistent with the objective of progressively
reducing dolphin mortality to a level approaching zero
through the setting of annual limits and the goal of
eliminating dolphin mortality, and requirements of the
International Dolphin Conservation Program;
(C) shall not accept such documentary evidence if -
(i) the government of the harvesting nation does not
provide directly or authorize the Inter-American Tropical
Tuna Commission to release complete and accurate information
to the Secretary in a timely manner -
(I) to allow determination of compliance with the
International Dolphin Conservation Program; and
(II) for the purposes of tracking and verifying
compliance with the minimum requirements established by the
Secretary in regulations promulgated under section 1385(f)
of this title; or
(ii) after taking into consideration such information,
findings of the Inter-American Tropical Tuna Commission, and
any other relevant information, including information that a
nation is consistently failing to take enforcement actions on
violations which diminish the effectiveness of the
International Dolphin Conservation Program, the Secretary, in
consultation with the Secretary of State, finds that the
harvesting nation is not in compliance with the International
Dolphin Conservation Program.
(D) shall require the government of any intermediary nation
to certify and provide reasonable proof to the Secretary that
it has not imported, within the preceding six months, any
yellowfin tuna or yellowfin tuna products that are subject to a
direct ban on importation to the United States under
subparagraph (B);
(E) shall, six months after importation of yellowfin tuna or
tuna products has been banned under this section, certify such
fact to the President, which certification shall be deemed to
be a certification for the purposes of section 1978(a) of title
22 for as long as such ban is in effect; and
(F)(i) except as provided in clause (ii), in the case of fish
or products containing fish harvested by a nation whose fishing
vessels engage in high seas driftnet fishing, shall require
that the government of the exporting nation provide documentary
evidence that the fish or fish product was not harvested with a
large-scale driftnet in the South Pacific Ocean after July 1,
1991, or in any other water of the high seas after January 1,
1993, and
(ii) in the case of tuna or a product containing tuna
harvested by a nation whose fishing vessels engage in high seas
driftnet fishing, shall require that the government of the
exporting nation provide documentary evidence that the tuna or
tuna product was not harvested with a large-scale driftnet
anywhere on the high seas after July 1, 1991.
For purposes of subparagraph (F), the term "driftnet" has the
meaning given such term in section 4003 of the Driftnet Impact
Monitoring, Assessment, and Control Act of 1987 (16 U.S.C. 1822
note), except that, until January 1, 1994, the term "driftnet"
does not include the use in the northeast Atlantic Ocean of
gillnets with a total length not to exceed five kilometers if the
use is in accordance with regulations adopted by the European
Community pursuant to the October 28, 1991, decision by the
Council of Fisheries Ministers of the Community.
(3)(A) The Secretary, on the basis of the best scientific
evidence available and in consultation with the Marine Mammal
Commission, is authorized and directed, from time to time, having
due regard to the distribution, abundance, breeding habits, and
times and lines of migratory movements of such marine mammals, to
determine when, to what extent, if at all, and by what means, it
is compatible with this chapter to waive the requirements of this
section so as to allow taking, or importing of any marine mammal,
or any marine mammal product, and to adopt suitable regulations,
issue permits, and make determinations in accordance with
sections 1372, 1373, 1374, and 1381 of this title permitting and
governing such taking and importing, in accordance with such
determinations: Provided, however, That the Secretary, in making
such determinations must be assured that the taking of such
marine mammal is in accord with sound principles of resource
protection and conservation as provided in the purposes and
policies of this chapter: Provided, further, however, That no
marine mammal or no marine mammal product may be imported into
the United States unless the Secretary certifies that the program
for taking marine mammals in the country of origin is consistent
with the provisions and policies of this chapter. Products of
nations not so certified may not be imported into the United
States for any purpose, including processing for exportation.
(B) Except for scientific research purposes, photography for
educational or commercial purposes, or enhancing the survival or
recovery of a species or stock as provided for in paragraph (1)
of this subsection, or as provided for under paragraph (5) of
this subsection, during the moratorium no permit may be issued
for the taking of any marine mammal which has been designated by
the Secretary as depleted, and no importation may be made of any
such mammal.
(4)(A) Except as provided in subparagraphs (B) and (C), the
provisions of this chapter shall not apply to the use of measures
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(i) by the owner of fishing gear or catch, or an employee or
agent of such owner, to deter a marine mammal from damaging the
gear or catch;
(ii) by the owner of other private property, or an agent,
bailee, or employee of such owner, to deter a marine mammal
from damaging private property;
(iii) by any person, to deter a marine mammal from
endangering personal safety; or
(iv) by a government employee, to deter a marine mammal from
damaging public property,
so long as such measures do not result in the death or serious
injury of a marine mammal.
(B) The Secretary shall, through consultation with appropriate
experts, and after notice and opportunity for public comment,
publish in the Federal Register a list of guidelines for use in
safely deterring marine mammals. In the case of marine mammals
listed as endangered species or threatened species under the
Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.], the
Secretary shall recommend specific measures which may be used to
nonlethally deter marine mammals. Actions to deter marine mammals
consistent with such guidelines or specific measures shall not be
a violation of this chapter.
(C) If the Secretary determines, using the best scientific
information available, that certain forms of deterrence have a
significant adverse effect on marine mammals, the Secretary may
prohibit such deterrent methods, after notice and opportunity for
public comment, through regulation under this chapter.
(D) The authority to deter marine mammals pursuant to
subparagraph (A) applies to all marine mammals, including all
stocks designated as depleted under this chapter.
(5)(A)(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
the Secretary finds, after notice and opportunity for public
comment (as required under subparagraph (A) unless subparagraph
(C)(i) applies), that -
(i) the regulations prescribed under subparagraph (A)
regarding methods of taking, monitoring, or reporting are not
being substantially complied with by a person engaging in such
activity; or
(ii) the taking allowed under subparagraph (A) pursuant to
one or more activities within one or more regions is having, or
may have, more than a negligible impact on the species or stock
concerned.
(C)(i) The requirement for notice and opportunity for public
comment in subparagraph (B) shall not apply in the case of a
suspension of permission to take if the Secretary determines that
an emergency exists which poses a significant risk to the
well-being of the species or stock concerned.
(ii) Sections 1373 and 1374 of this title shall not apply to
the taking of marine mammals under the authority of this
paragraph.
(D)(i) Upon request therefor by citizens of the United States
who engage in a specified activity (other than commercial
fishing) within a specific geographic region, the Secretary shall
authorize, for periods of not more than 1 year, subject to such
conditions as the Secretary may specify, the incidental, but not
intentional, taking by harassment of small numbers of marine
mammals of a species or population stock by such citizens while
engaging in that activity within that region if the Secretary
finds that such harassment during each period concerned -
(I) will have a negligible impact on such species or stock,
and
(II) will not have an unmitigable adverse impact on the
availability of such species or stock for taking for
subsistence uses pursuant to subsection (b) of this section, or
section 1379(f) of this title or pursuant to a cooperative
agreement under section 1388 of this title.
(ii) The authorization for such activity shall prescribe, where
applicable -
(I) permissible methods of taking by harassment pursuant to
such activity, and other means of effecting the least
practicable impact on such species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such
species or stock for taking for subsistence uses pursuant to
subsection (b) of this section or section 1379(f) of this title
or pursuant to a cooperative agreement under section 1388 of
this title,
(II) the measures that the Secretary determines are necessary
to ensure no unmitigable adverse impact on the availability of
the species or stock for taking for subsistence uses pursuant
to subsection (b) of this section or section 1379(f) of this
title or pursuant to a cooperative agreement under section 1388
of this title, and
(III) requirements pertaining to the monitoring and reporting
of such taking by harassment, including requirements for the
independent peer review of proposed monitoring plans or other
research proposals where the proposed activity may affect the
availability of a species or stock for taking for subsistence
uses pursuant to subsection (b) of this section or section
1379(f) of this title or pursuant to a cooperative agreement
under section 1388 of this title.
(iii) The Secretary shall publish a proposed authorization not
later than 45 days after receiving an application under this
subparagraph and request public comment through notice in the
Federal Register, newspapers of general circulation, and
appropriate electronic media and to all locally affected
communities for a period of 30 days after publication. Not later
than 45 days after the close of the public comment period, if the
Secretary makes the findings set forth in clause (i), the
Secretary shall issue an authorization with appropriate
conditions to meet the requirements of clause (ii).
(iv) The Secretary shall modify, suspend, or revoke an
authorization if the Secretary finds that the provisions of
clauses (i) or (ii) are not being met.
(v) A person conducting an activity for which an authorization
has been granted under this subparagraph shall not be subject to
the penalties of this chapter for taking by harassment that
occurs in compliance with such authorization.
(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
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(I) the incidental mortality and serious injury from
commercial fisheries will have a negligible impact on such
species or stock;
(II) a recovery plan has been developed or is being developed
for such species or stock pursuant to the Endangered Species
Act of 1973; and
(III) where required under section 1387 of this title, a
monitoring program is established under subsection (d) of such
section, vessels engaged in such fisheries are registered in
accordance with such section, and a take reduction plan has
been developed or is being developed for such species or stock.
(ii) Upon a determination by the Secretary that the
requirements of clause (i) have been met, the Secretary shall
publish in the Federal Register a list of those fisheries for
which such determination was made, and, for vessels required to
register under section 1387 of this title, shall issue an
appropriate permit for each authorization granted under such
section to vessels to which this paragraph applies. Vessels
engaged in a fishery included in the notice published by the
Secretary under this clause which are not required to register
under section 1387 of this title shall not be subject to the
penalties of this chapter for the incidental taking of marine
mammals to which this paragraph applies, so long as the owner or
master of such vessel reports any incidental mortality or injury
of such marine mammals to the Secretary in accordance with
section 1387 of this title.
(iii) If, during the course of the commercial fishing season,
the Secretary determines that the level of incidental mortality
or serious injury from commercial fisheries for which a
determination was made under clause (i) has resulted or is likely
to result in an impact that is more than negligible on the
endangered or threatened species or stock, the Secretary shall
use the emergency authority granted under section 1387 of this
title to protect such species or stock, and may modify any permit
granted under this paragraph as necessary.
(iv) The Secretary may suspend for a time certain or revoke a
permit granted under this subparagraph only if the Secretary
determines that the conditions or limitations set forth in such
permit are not being complied with. The Secretary may amend or
modify, after notice and opportunity for public comment, the list
of fisheries published under clause (ii) whenever the Secretary
determines there has been a significant change in the information
or conditions used to determine such list.
(v) Sections 1373 and 1374 of this title shall not apply to the
taking of marine mammals under the authority of this
subparagraph.
(vi) This subparagraph shall not govern the incidental taking
of California sea otters and shall not be deemed to amend or
repeal the Act of November 7, 1986 (Public Law 99-625; 100 Stat.
3500).
(F) Notwithstanding the provisions of this subsection, any
authorization affecting a military readiness activity (as defined
in section 315(f) of Public Law 107-314; 16 U.S.C. 703 note)
shall not be subject to the following requirements:
(i) In subparagraph (A), "within a specified geographical
region" and "within that region of small numbers".
(ii) In subparagraph (B), "within a specified geographical
region" and "within one or more regions".
(iii) In subparagraph (D), "within a specific geographic
region", "of small numbers", and "within that region".
(6)(A) A marine mammal product may be imported into the United
States if the product -
(i) was legally possessed and exported by any citizen of the
United States in conjunction with travel outside the United
States, provided that the product is imported into the United
States by the same person upon the termination of travel;
(ii) was acquired outside of the United States as part of a
cultural exchange by an Indian, Aleut, or Eskimo residing in
Alaska; or
(iii) is owned by a Native inhabitant of Russia, Canada, or
Greenland and is imported for noncommercial purposes in
conjunction with travel within the United States or as part of
a cultural exchange with an Indian, Aleut, or Eskimo residing
in Alaska.
(B) For the purposes of this paragraph, the term -
(i) "Native inhabitant of Russia, Canada, or Greenland" means
a person residing in Russia, Canada, or Greenland who is
related by blood, is a member of the same clan or ethnological
grouping, or shares a common heritage with an Indian, Aleut, or
Eskimo residing in Alaska; and
(ii) "cultural exchange" means the sharing or exchange of
ideas, information, gifts, clothing, or handicrafts between an
Indian, Aleut, or Eskimo residing in Alaska and a Native
inhabitant of Russia, Canada, or Greenland, including rendering
of raw marine mammal parts as part of such exchange into
clothing or handicrafts through carving, painting, sewing, or
decorating.
(b) Exemptions for Alaskan natives
Except as provided in section 1379 of this title, the provisions
of this chapter shall not apply with respect to the taking of any
marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska
and who dwells on the coast of the North Pacific Ocean or the
Arctic Ocean if such taking -
(1) is for subsistence purposes; or
(2) is done for purposes of creating and selling authentic
native articles of handicrafts and clothing: Provided, That only
authentic native articles of handicrafts and clothing may be sold
in interstate commerce: And provided further, That any edible
portion of marine mammals may be sold in native villages and
towns in Alaska or for native consumption. For the purposes of
this subsection, the term "authentic native articles of
handicrafts and clothing" means items composed wholly or in some
significant respect of natural materials, and which are produced,
decorated, or fashioned in the exercise of traditional native
handicrafts without the use of pantographs, multiple carvers, or
other mass copying devices. Traditional native handicrafts
include, but are not limited to weaving, carving, stitching,
sewing, lacing, beading, drawing and painting; and
(3) in each case, is not accomplished in a wasteful manner.
Notwithstanding the preceding provisions of this subsection, when,
under this chapter, the Secretary determines any species or stock
of marine mammal subject to taking by Indians, Aleuts, or Eskimos
to be depleted, he may prescribe regulations upon the taking of
such marine mammals by any Indian, Aleut, or Eskimo described in
this subsection. Such regulations may be established with reference
to species or stocks, geographical description of the area
included, the season for taking, or any other factors related to
the reason for establishing such regulations and consistent with
the purposes of this chapter. Such regulations shall be prescribed
after notice and hearing required by section 1373 of this title and
shall be removed as soon as the Secretary determines that the need
for their imposition has disappeared. In promulgating any
regulation or making any assessment pursuant to a hearing or
proceeding under this subsection or section 1386(b)(2) of this
title, or in making any determination of depletion under this
subsection or finding regarding unmitigable adverse impacts under
subsection (a)(5) of this section that affects stocks or persons to
which this subsection applies, the Secretary shall be responsible
for demonstrating that such regulation, assessment, determination,
or finding is supported by substantial evidence on the basis of the
record as a whole. The preceding sentence shall only be applicable
in an action brought by one or more Alaska Native organizations
representing persons to which this subsection applies.
(c) Taking in defense of self or others
It shall not be a violation of this chapter to take a marine
mammal if such taking is imminently necessary in self-defense or to
save the life of a person in immediate danger, and such taking is
reported to the Secretary within 48 hours. The Secretary may seize
and dispose of any carcass.
(d) Good Samaritan exemption
It shall not be a violation of this chapter to take a marine
mammal if -
(1) such taking is imminently necessary to avoid serious
injury, additional injury, or death to a marine mammal entangled
in fishing gear or debris;
(2) reasonable care is taken to ensure the safe release of the
marine mammal, taking into consideration the equipment,
expertise, and conditions at hand;
(3) reasonable care is exercised to prevent any further injury
to the marine mammal; and
(4) such taking is reported to the Secretary within 48 hours.
(e) Chapter not to apply to incidental takings by United States
citizens employed on foreign vessels outside United States EEZ
The provisions of this chapter shall not apply to a citizen of
the United States who incidentally takes any marine mammal during
fishing operations outside the United States exclusive economic
zone (as defined in section 1802 of this title) when employed on a
foreign fishing vessel of a harvesting nation which is in
compliance with the International Dolphin Conservation Program.
(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.
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