MMPA Section 101 16 USC 1371

§ 1371

TITLE 16—CONSERVATION

tion period’’, being the 30-month period beginning Oct.
1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of
1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70,
title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to
sections 3831 and 3841 to 3843, respectively, of Title 22,
Foreign Relations and Intercourse.
TERMINATION OF ADVISORY COMMITTEES
Advisory committees in existence on Jan. 5, 1973, to
terminate not later than the expiration of the 2-year
period following Jan. 5, 1973, unless, in the case of a
committee established by the President or an officer of
the Federal Government, such committee is renewed by
appropriate action prior to the expiration of such 2year period, or in the case of a committee established
by the Congress, its duration is otherwise provided by
law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86
Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.

SUBCHAPTER II—CONSERVATION AND
PROTECTION OF MARINE MAMMALS
§ 1371. Moratorium on taking and importing marine mammals and marine mammal products
(a) Imposition; exceptions
There shall be a moratorium on the taking
and importation of marine mammals and marine
mammal products, commencing on the effective
date of this chapter, during which time no permit may be issued for the taking of any marine
mammal and no marine mammal or marine
mammal product may be imported into the
United States except in the following cases:
(1) Consistent with the provisions of section
1374 of this title, permits may be issued by the
Secretary for taking, and importation for purposes of scientific research, public display,
photography for educational or commercial
purposes, or enhancing the survival or recovery of a species or stock, or for importation of
polar bear parts (other than internal organs)
taken in sport hunts in Canada. Such permits,
except permits issued under section 1374(c)(5)
of this title, may be issued if the taking or importation proposed to be made is first reviewed by the Marine Mammal Commission
and the Committee of Scientific Advisors on
Marine Mammals established under subchapter III. The Commission and Committee
shall recommend any proposed taking or importation, other than importation under section 1374(c)(5) of this title, which is consistent
with the purposes and policies of section 1361
of this title. If the Secretary issues such a permit for importation, the Secretary shall issue
to the importer concerned a certificate to that
effect in such form as the Secretary of the
Treasury prescribes, and such importation
may be made upon presentation of the certificate to the customs officer concerned.
(2) Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may be issued therefor
under section 1374 of this title subject to regu-

Page 1618

lations prescribed by the Secretary in accordance with section 1373 of this title, or in lieu
of such permits, authorizations may be granted therefor under section 1387 of this title, subject to regulations prescribed under that section by the Secretary without regard to section 1373 of this title. Such authorizations
may be granted under subchapter IV with respect to purse seine fishing for yellowfin tuna
in the eastern tropical Pacific Ocean, subject
to regulations prescribed under that subchapter by the Secretary without regard to
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 there-

Page 1619

TITLE 16—CONSERVATION

after, 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.

§ 1371

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

§ 1371

TITLE 16—CONSERVATION

(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) 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

Page 1620

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), 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—

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TITLE 16—CONSERVATION

(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) or
section 1379(f) of this title or pursuant to a
cooperative agreement under section 1388 of
this title,
(II) the measures that the Secretary determines are necessary to ensure no unmitigable adverse impact on the availability
of the species or stock for taking for subsistence uses pursuant to subsection (b) or section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of
this title, and
(III) requirements pertaining to the monitoring and reporting of such taking by harassment, including requirements for the
independent peer review of proposed monitoring plans or other research proposals
where the proposed activity may affect the
availability of a species or stock for taking
for subsistence uses pursuant to subsection
(b) or section 1379(f) of this title or pursuant
to a cooperative agreement under section
1388 of this title.
(iii) The Secretary shall publish a proposed
authorization not later than 45 days after receiving an application under this subparagraph and request public comment through
notice in the Federal Register, newspapers of
general circulation, and appropriate electronic
media and to all locally affected communities
for a period of 30 days after publication. Not
later than 45 days after the close of the public
comment period, if the Secretary makes the
findings set forth in clause (i), the Secretary
shall issue an authorization with appropriate
conditions to meet the requirements of clause
(ii).
(iv) The Secretary shall modify, suspend, or
revoke an authorization if the Secretary finds
that the provisions of clauses (i) or (ii) are not
being met.
(v) A person conducting an activity for
which an authorization has been granted
under this subparagraph shall not be subject
to the penalties of this chapter for taking by
harassment that occurs in compliance with
such authorization.
(vi) For a military readiness activity (as defined in section 315(f) of Public Law 107–314; 16
U.S.C. 703 note), a determination of ‘‘least
practicable adverse impact on such species or
stock’’ under clause (i)(I) 1 shall include consideration of personnel safety, practicality of
implementation, and impact on the effectiveness of the military readiness activity. Before
making the required determination, the Secretary shall consult with the Department of
Defense regarding personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
(vii) Notwithstanding clause (iii), for any authorization affecting a military readiness ac1 So

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

§ 1371

tivity (as defined in section 315(f) of Public
Law 107–314; 16 U.S.C. 703 note), the Secretary
shall publish the notice required by such
clause only in the Federal Register.
(E)(i) During any period of up to 3 consecutive years, the Secretary shall allow the incidental, but not the intentional, taking by persons using vessels of the United States or vessels which have valid fishing permits issued by
the Secretary in accordance with section
1824(b) of this title, while engaging in commercial fishing operations, of marine mammals
from a species or stock designated as depleted
because of its listing as an endangered species
or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) if the
Secretary, after notice and opportunity for
public comment, determines that—
(I) the incidental mortality and serious injury from commercial fisheries will have a
negligible impact on such species or stock;
(II) a recovery plan has been developed or
is being developed for such species or stock
pursuant to the Endangered Species Act of
1973; and
(III) where required under section 1387 of
this title, a monitoring program is established under subsection (d) of such section,
vessels engaged in such fisheries are registered in accordance with such section, and
a take reduction plan has been developed or
is being developed for such species or stock.
(ii) Upon a determination by the Secretary
that the requirements of clause (i) have been
met, the Secretary shall publish in the Federal Register a list of those fisheries for which
such determination was made, and, for vessels
required to register under section 1387 of this
title, shall issue an appropriate permit for
each authorization granted under such section
to vessels to which this paragraph applies.
Vessels engaged in a fishery included in the
notice published by the Secretary under this
clause which are not required to register under
section 1387 of this title shall not be subject to
the penalties of this chapter for the incidental
taking of marine mammals to which this paragraph applies, so long as the owner or master
of such vessel reports any incidental mortality
or injury of such marine mammals to the Secretary in accordance with section 1387 of this
title.
(iii) If, during the course of the commercial
fishing season, the Secretary determines that
the level of incidental mortality or serious injury from commercial fisheries for which a determination was made under clause (i) has resulted or is likely to result in an impact that
is more than negligible on the endangered or
threatened species or stock, the Secretary
shall use the emergency authority granted
under section 1387 of this title to protect such
species or stock, and may modify any permit
granted under this paragraph as necessary.
(iv) The Secretary may suspend for a time
certain or revoke a permit granted under this
subparagraph only if the Secretary determines
that the conditions or limitations set forth in
such permit are not being complied with. The
Secretary may amend or modify, after notice
and opportunity for public comment, the list

§ 1371

TITLE 16—CONSERVATION

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

Page 1622

in Alaska and who dwells on the coast of the
North Pacific Ocean or the Arctic Ocean if such
taking—
(1) is for subsistence purposes; or
(2) is done for purposes of creating and selling authentic native articles of handicrafts
and clothing: Provided, That only authentic
native articles of handicrafts and clothing
may be sold in interstate commerce: And provided further, That any edible portion of marine mammals may be sold in native villages
and towns in Alaska or for native consumption. For the purposes of this subsection, the
term ‘‘authentic native articles of handicrafts
and clothing’’ means items composed wholly
or in some significant respect of natural materials, and which are produced, decorated, or
fashioned in the exercise of traditional native
handicrafts without the use of pantographs,
multiple carvers, or other mass copying devices. Traditional native handicrafts include,
but are not limited to weaving, carving,
stitching, sewing, lacing, beading, drawing and
painting; and
(3) in each case, is not accomplished in a
wasteful manner.
Notwithstanding the preceding provisions of
this subsection, when, under this chapter, the
Secretary determines any species or stock of
marine mammal subject to taking by Indians,
Aleuts, or Eskimos to be depleted, he may prescribe regulations upon the taking of such marine mammals by any Indian, Aleut, or Eskimo
described in this subsection. Such regulations
may be established with reference to species or
stocks, geographical description of the area included, the season for taking, or any other factors related to the reason for establishing such
regulations and consistent with the purposes of
this chapter. Such regulations shall be prescribed after notice and hearing required by section 1373 of this title and shall be removed as
soon as the Secretary determines that the need
for their imposition has disappeared. In promulgating any regulation or making any assessment pursuant to a hearing or proceeding under
this subsection or section 1386(b)(2) of this title,
or in making any determination of depletion
under this subsection or finding regarding unmitigable adverse impacts under subsection
(a)(5) that affects stocks or persons to which
this subsection applies, the Secretary shall be
responsible for demonstrating that such regulation, assessment, determination, or finding is
supported by substantial evidence on the basis
of the record as a whole. The preceding sentence
shall only be applicable in an action brought by
one or more Alaska Native organizations representing persons to which this subsection applies.
(c) Taking in defense of self or others
It shall not be a violation of this chapter to
take a marine mammal if such taking is imminently necessary in self-defense or to save the
life of a person in immediate danger, and such
taking is reported to the Secretary within 48
hours. The Secretary may seize and dispose of
any carcass.
(d) Good Samaritan exemption
It shall not be a violation of this chapter to
take a marine mammal if—

Page 1623

§ 1371

TITLE 16—CONSERVATION

(1) such taking is imminently necessary to
avoid serious injury, additional injury, or
death to a marine mammal entangled in fishing gear or debris;
(2) reasonable care is taken to ensure the
safe release of the marine mammal, taking
into consideration the equipment, expertise,
and conditions at hand;
(3) reasonable care is exercised to prevent
any further injury to the marine mammal; and
(4) such taking is reported to the Secretary
within 48 hours.
(e) Chapter not to apply to incidental takings by
United States citizens employed on foreign
vessels outside United States EEZ
The provisions of this chapter shall not apply
to a citizen of the United States who incidentally takes any marine mammal during fishing
operations outside the United States exclusive
economic zone (as defined in section 1802 of this
title) when employed on a foreign fishing vessel
of a harvesting nation which is in compliance
with the International Dolphin Conservation
Program.
(f) Exemption of actions necessary for national
defense
(1) The Secretary of Defense, after conferring
with the Secretary of Commerce, the Secretary
of the Interior, or both, as appropriate, may exempt any action or category of actions undertaken by the Department of Defense or its components from compliance with any requirement
of this chapter, if the Secretary determines that
it is necessary for national defense.
(2) An exemption granted under this subsection—
(A) subject to subparagraph (B), shall be effective for a period specified by the Secretary
of Defense; and
(B) shall not be effective for more than 2
years.
(3)(A) The Secretary of Defense may issue additional exemptions under this subsection for
the same action or category of actions, after—
(i) conferring with the Secretary of Commerce, the Secretary of the Interior, or both
as appropriate; and
(ii) making a new determination that the additional exemption is necessary for national
defense.
(B) Each additional exemption under this
paragraph shall be effective for a period specified by the Secretary of Defense, of not more
than 2 years.
(4) Not later than 30 days after issuing an exemption under paragraph (1) or an additional exemption under paragraph (3), the Secretary of
Defense shall submit to the Committee on
Armed Services of the House of Representatives
and the Committee on Armed Services of the
Senate notice describing the exemption and the
reasons therefor. The notice may be provided in
classified form if the Secretary of Defense determines that use of the classified form is necessary for reasons of national security.
(Pub. L. 92–522, title I, § 101, Oct. 21, 1972, 86 Stat.
1029; Pub. L. 93–205, § 13(e)(2), Dec. 28, 1973, 87
Stat. 903; Pub. L. 97–58, § 2, Oct. 9, 1981, 95 Stat.

979; Pub. L. 98–364, title I, § 101, July 17, 1984, 98
Stat. 440; Pub. L. 99–659, title IV, § 411(a), Nov. 14,
1986, 100 Stat. 3741; Pub. L. 100–711, §§ 4(a), 5(c),
(e)(1), Nov. 23, 1988, 102 Stat. 4765, 4769, 4771; Pub.
L. 101–627, title IX, § 901(g), Nov. 28, 1990, 104
Stat. 4467; Pub. L. 102–582, title I, § 103, title IV,
§ 401(b), Nov. 2, 1992, 106 Stat. 4903, 4909; Pub. L.
103–238, § 4, Apr. 30, 1994, 108 Stat. 532; Pub. L.
104–208, div. A, title I, § 101(a) [title II, § 211(b)],
Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L.
105–18, title II, § 2003, June 12, 1997, 111 Stat. 174;
Pub. L. 105–42, § 4(a)–(c), Aug. 15, 1997, 111 Stat.
1123, 1124; Pub. L. 108–136, div. A, title III,
§ 319(b), (c), Nov. 24, 2003, 117 Stat. 1434.)
REFERENCES IN TEXT
The effective date of this chapter, referred to in subsec. (a), means the effective date of Pub. L. 92–522. See
section 4 of Pub. L. 92–522, set out as an Effective Date
note under section 1361 of this title.
For effective date of section 4 of the International
Dolphin Conservation Program Act [Pub. L. 105–42], referred to in subsec. (a)(2)(B)(i), see section 8 of Pub. L.
105–42 set out as an Effective Date of 1997 Amendment
note under section 1362 of this title.
The Endangered Species Act of 1973, referred to in
subsec. (a)(4)(B), (5)(E)(i), is Pub. L. 93–205, Dec. 28, 1973,
87 Stat. 884, as amended, which is classified principally
to chapter 35 (§ 1531 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1531 of this title and Tables.
The Whaling Convention Act of 1949, referred to in
subsec. (a)(5)(A)(i)(I), is act Aug. 9, 1950, ch. 653, 64 Stat.
421, as amended, which is classified generally to subchapter II (§ 916 et seq.) of chapter 14 of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 916 of this title
and Tables.
Act of November 7, 1986, referred to in subsec.
(a)(5)(E)(vi), is Pub. L. 99–625, Nov. 7, 1986, 100 Stat. 3500,
which amended section 718b of this title and provisions
listed in a table of National Wildlife Refuges set out
under section 668dd of this title and enacted provisions
set out as a note under section 1536 of this title. For
complete classification of this Act to the Code, see
Tables.
AMENDMENTS
2003—Subsec. (a)(5)(A). Pub. L. 108–136, § 319(c)(1), designated existing provisions as cl. (i), redesignated
former cls. (i) and (ii) as subcls. (I) and (II), respectively, redesignated former subcls. (I) and (II) of former
cl. (ii) as items (aa) and (bb) of subcl. (II), respectively,
and added cls. (ii) and (iii).
Subsec. (a)(5)(D)(vi), (vii). Pub. L. 108–136, § 319(c)(2),
added cls. (vi) and (vii).
Subsec. (a)(5)(F). Pub. L. 108–136, § 319(c)(3), added subpar. (F).
Subsec. (f). Pub. L. 108–136, § 319(b), added subsec. (f).
1997—Subsec. (a)(2). Pub. L. 105–42, § 4(a), (b)(4), in introductory provisions, inserted after first sentence
‘‘Such authorizations may be granted under subchapter
IV with respect to purse seine fishing for yellowfin
tuna in the eastern tropical Pacific Ocean, subject to
regulations prescribed under that subchapter by the
Secretary without regard to section 1373 of this title.’’
and struck out ‘‘; provided that this goal shall be satisfied in the case of the incidental taking of marine
mammals in the course of purse seine fishing for yellowfin tuna by a continuation of the application of the
best marine mammal safety techniques and equipment
that are economically and technologically practicable’’
after ‘‘serious injury rate’’ and, in closing provisions,
substituted ‘‘For purposes of subparagraph (F)’’ for
‘‘For purposes of subparagraph (E)’’.
Subsec. (a)(2)(B). Pub. L. 105–42, § 4(b)(1), added subpar. (B) and struck out former subpar. (B) which contained requirement that nations exporting yellowfin

§ 1371

TITLE 16—CONSERVATION

tuna harvested with purse seines in eastern tropical
Pacific Ocean provide documentary evidence of adoption of regulatory program governing incidental taking
of other mammals and comparison of the average rates
of incidental taking between harvesting nation and
United States.
Subsec. (a)(2)(C) to (F). Pub. L. 105–42, § 4(b)(2), (3),
added subpar. (C) and redesignated former subpars. (C)
to (E) as (D) to (F), respectively.
Subsec. (d). Pub. L. 105–18 added subsec. (d).
Subsec. (e). Pub. L. 105–42, § 4(c), added subsec. (e).
1996—Subsec. (a)(5)(E)(i). Pub. L. 104–208 made technical amendment to reference in original act which appears in text as reference to section 1824(b) of this title.
1994—Subsec. (a)(1). Pub. L. 103–238, § 4(a)(1), amended
par. (1) generally. Prior to amendment, par. (1) read as
follows: ‘‘Consistent with the provisions of section 1374
of this title, permits may be issued by the Secretary for
taking and importation for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock if—
‘‘(A) the taking proposed in the application for any
such permit, or
‘‘(B) the importation proposed to be made,
is first reviewed by the Marine Mammal Commission
and the Committee of Scientific Advisors on Marine
Mammals established under subchapter III of this chapter. The Commission and Committee shall recommend
any proposed taking or importation which is consistent
with the purposes and policies of section 1361 of this
title. The Secretary shall, if he grants approval for importation, issue to the importer concerned a certificate
to that effect which shall be in such form as the Secretary of the Treasury prescribes and such importation
may be made upon presentation of the certificate to
the customs officer concerned.’’
Subsec. (a)(2). Pub. L. 103–238, § 4(a)(2), inserted before
period at end of first sentence ‘‘, or in lieu of such permits, authorizations may be granted therefor under
section 1387 of this title, subject to regulations prescribed under that section by the Secretary without regard to section 1373 of this title’’.
Subsec. (a)(3)(B). Pub. L. 103–238, § 4(a)(3), inserted
‘‘, photography for educational or commercial purposes,’’ after ‘‘purposes’’ and ‘‘or as provided for under
paragraph (5) of this subsection,’’ after ‘‘subsection,’’.
Subsec. (a)(4). Pub. L. 103–238, § 4(a)(4), amended par.
(4) generally. Prior to amendment, par. (4) read as follows:
‘‘(4)(A) During any period of five consecutive years,
the Secretary shall allow the incidental, but not the intentional, taking, by citizens of the United States
while engaging in commercial fishing operations, of
small numbers of marine mammals of a species or population stock that is not depleted if the Secretary,
after notice and opportunity for public comment—
‘‘(i) finds that the total of such taking during such
five-year period will have a negligible impact on such
species or stock; and
‘‘(ii) provides guidelines pertaining to the establishment of a cooperative system among the fishermen
involved for the monitoring of such taking.
‘‘(B) The Secretary shall withdraw, or suspend for a
time certain, the permission to take marine mammals
under subparagraph (A) if the Secretary finds, after notice and opportunity for public comment, that—
‘‘(i) the taking allowed under subparagraph (A) is
having more than a negligible impact on the species
or stock concerned; or
‘‘(ii) the policies, purposes and goals of this chapter
would be better served through the application of this
title without regard to this subsection.
Sections 1373 and 1374 of this title shall not apply to the
taking of marine mammals under the authority of this
paragraph.’’
Subsec. (a)(5)(D), (E). Pub. L. 103–238, § 4(a)(5), added
subpars. (D) and (E).
Subsec. (a)(6). Pub. L. 103–238, § 4(a)(6), added par. (6).
Subsec. (b). Pub. L. 103–238, § 4(b), inserted at end ‘‘In
promulgating any regulation or making any assess-

Page 1624

ment pursuant to a hearing or proceeding under this
subsection or section 1386(b)(2) of this title, or in making any determination of depletion under this subsection or finding regarding unmitigable adverse impacts under subsection (a)(5) that affects stocks or persons to which this subsection applies, the Secretary
shall be responsible for demonstrating that such regulation, assessment, determination, or finding is supported by substantial evidence on the basis of the
record as a whole. The preceding sentence shall only be
applicable in an action brought by one or more Alaska
Native organizations representing persons to which
this subsection applies.’’
Subsec. (c). Pub. L. 103–238, § 4(c), amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: ‘‘In order to minimize undue economic hardship
to persons subject to this chapter, other than those engaged in commercial fishing operations referred to in
subsection (a)(2) of this section, the Secretary, upon
any such person filing an application with him and
upon filing such information as the Secretary may require showing, to his satisfaction, such hardship, may
exempt such person or class of persons from provisions
of this chapter for no more than one year from October
21, 1972, as he determines to be appropriate.’’
1992—Subsec. (a)(2). Pub. L. 102–582, § 103(2), inserted
before period at end ‘‘, except that, until January 1,
1994, the term ‘driftnet’ does not include the use in the
northeast Atlantic Ocean of gillnets with a total length
not to exceed five kilometers if the use is in accordance
with regulations adopted by the European Community
pursuant to the October 28, 1991, decision by the Council of Fisheries Ministers of the Community’’.
Subsec. (a)(2)(C). Pub. L. 102–582, § 401(b), amended
subpar. (C) generally. Prior to amendment, subpar. (C)
read as follows: ‘‘shall require the government of any
intermediary nation from which yellowfin tuna or tuna
products will be exported to the United States to certify and provide reasonable proof that it has acted to
prohibit the importation of such tuna and tuna products from any nation from which direct export to the
United States of such tuna and tuna products is banned
under this section within sixty days following the effective date of such ban on importation to the United
States;’’.
Subsec. (a)(2)(E)(i). Pub. L. 102–582, § 103(1), substituted ‘‘January 1, 1993’’ for ‘‘July 1, 1992’’.
1990—Subsec. (a)(2). Pub. L. 101–627 added subpar. (E)
and concluding provisions.
1988—Subsec. (a)(1). Pub. L. 100–711, § 5(c), which directed that par. (1) be amended generally to read as follows: ‘‘(1) Consistent with the provisions of section 1374
of this title, permits may be issued by the Secretary for
taking and importation for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock if—’’, was executed as the
probable intent of Congress by substituting such provisions for provisions of par. (1) before subpar. (A) which
read as follows: ‘‘Permits may be issued by the Secretary for taking and importation for purposes of scientific research and for public display if—’’.
Subsec. (a)(2). Pub. L. 100–711, § 4(a), inserted provisions at end of subpar. (B) relating to finding by Secretary that regulatory program, or average rate of incidental taking by vessels, of harvesting nation is comparable to that of United States, and added subpars. (C)
and (D).
Subsec. (a)(3)(B). Pub. L. 100–711, § 5(e)(1), inserted ‘‘or
enhancing the survival or recovery of a species or
stock’’ after ‘‘scientific research purposes’’.
1986—Subsec. (a)(5)(A). Pub. L. 99–659, § 411(a)(1), in
provisions preceding cl. (i) struck out ‘‘that is not depleted’’ after ‘‘population stock’’.
Subsec. (a)(5)(A)(i). Pub. L. 99–659, § 411(a)(2), substituted ‘‘will not have an unmitigable adverse impact’’
for ‘‘its habitat, and’’, and inserted ‘‘or, in the case of
a cooperative agreement under both this chapter and
the Whaling Convention Act of 1949 (16 U.S.C. 916 et
seq.), pursuant to section 1382(c) of this title’’.
Subsec. (a)(5)(A)(ii)(I). Pub. L. 99–659, § 411(a)(3), inserted ‘‘, and on the availability of such species or
stock for subsistence uses’’.

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TITLE 16—CONSERVATION

1984—Subsec. (a)(2). Pub. L. 98–364 amended last sentence generally, restating existing provisions in cl. (A)
and adding cl. (B).
1981—Subsec. (a)(2). Pub. L. 97–58, § 2(1)(A), provided
that the immediate goal of reducing to insignificant
levels approaching a zero mortality and serious injury
rate the incidental kill or serious injury of marine
mammals permitted in the course of commercial fishing operations be satisfied in the case of purse seine
fishing for yellowfin tuna by a continuation of the application of the best marine mammal safety techniques
and equipment that are economically and technologically practicable.
Subsec. (a)(3)(B). Pub. L. 97–58, § 2(1)(B), struck out
‘‘is classified as belonging to an endangered species or
threatened species pursuant to the Endangered Species
Act of 1973 or’’ after ‘‘the taking of any marine mammal which’’.
Subsec. (a)(4), (5). Pub. L. 97–58, § 2(1)(C), added pars.
(4) and (5).
Subsec. (b). Pub. L. 97–58, § 2(2), substituted ‘‘Except
as provided in section 1379 of this title, the provisions
of this chapter shall not apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and’’ for ‘‘The provisions of
this chapter shall not apply with respect to the taking
of any marine mammal by any Indian, Aleut, or Eskimo’’ in provisions preceding par. (1) and, in par. (1),
substituted ‘‘is for subsistence purposes; or’’ for ‘‘is for
subsistence purposes by Alaskan natives who reside in
Alaska, or’’.
1973—Subsec. (a)(3)(B). Pub. L. 93–205 substituted ‘‘or
threatened species pursuant to the Endangered Species
Act of 1973’’ for ‘‘pursuant to the Endangered Species
Conservation Act of 1969’’.
EFFECTIVE DATE OF 1997 AMENDMENT
For effective date of amendment by Pub. L. 105–42,
see section 8 of Pub. L. 105–42, set out as a note under
section 1362 of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1973 AMENDMENT
Amendment by Pub. L. 93–205 effective Dec. 28, 1973,
see section 16 of Pub. L. 93–205, set out as an Effective
Date note under section 1531 of this title.
EFFECTIVE DATE
Section effective upon the expiration of the sixty-day
period following Oct. 21, 1972, see section 4 of Pub. L.
92–522, set out as a note under section 1361 of this title.
TERMINATION OF ADVISORY COMMITTEES
Advisory committees in existence on Jan. 5, 1973, to
terminate not later than the expiration of the 2-year
period following Jan. 5, 1973, unless, in the case of a
committee established by the President or an officer of
the Federal Government, such committee is renewed by
appropriate action prior to the expiration of such 2year period, or in the case of a committee established
by the Congress, its duration is otherwise provided by
law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86
Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.

§ 1372. Prohibitions
(a) Taking
Except as provided in sections 1371, 1373, 1374,
1379, 1381, 1383, 1383a, and 1387 of this title and
subchapter V, it is unlawful—
(1) for any person subject to the jurisdiction
of the United States or any vessel or other

§ 1372

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