16 U.S.C. § 1373 — Regulations on taking of marine mammals

Page 1778 TITLE 16—CONSERVATION § 1373 § 3004(a)(1), Nov. 4, 1992, 106 Stat. 5067; Pub. L. 103–238, §§ 5(a), 13(c), 24(c)(9), Apr. 30, 1994, 108 Stat. 536, 558, 566.) Editorial Notes REFERENCES IN TEXT The effective date of this subchapter, referred to in subsec. (a)(2), means the effective date of title I of Pub. L. 92–522. See section 4 of Pub. L. 92–522, set out as an Effective Date note under section 1361 of this title. The effective date of this chapter referred to in sub- sec. (e), means the effective date of Pub. L. 92–522. See section 4 of Pub. L. 92–522, set out as an Effective Date note under section 1361 of this title. AMENDMENTS 1994—Subsec. (a). Pub. L. 103–238, § 24(c)(9), which di- rected technical amendment to reference to subchapter V of this chapter in introductory provisions to reflect renumbering of corresponding title of original act, could not be executed to text because of prior amend- ment by section 13(c) of Pub. L. 103–238. See below. Pub. L. 103–238, § 13(c), in introductory provisions in- serted reference to section 1387 of this title and made technical amendment to reference to subchapter V of this chapter to reflect renumbering of corresponding title of original act. Subsec. (a)(2)(B). Pub. L. 103–238, § 5(a)(1), substituted ‘‘to take or import’’ for ‘‘for any purpose in any way connected with the taking or importation of’’. Subsec. (a)(4). Pub. L. 103–238, § 5(a)(2), substituted ‘‘export, or offer to purchase, sell, or export’’ for ‘‘or offer to purchase or sell’’ and ‘‘product—’’ for ‘‘product; and’’ and added subpars. (A) and (B). 1992—Subsec. (a). Pub. L. 102–587 inserted ‘‘or sub- chapter V’’ in introductory provisions. 1988—Subsec. (a). Pub. L. 100–711, § 2(b), substituted ‘‘1383, and 1383a’’ for ‘‘and 1383’’. Subsec. (b). Pub. L. 100–711, § 5(e)(2), substituted ‘‘re- search, or for enhancing the survival or recovery of a species or stock,’’ for ‘‘research’’. Pub. L. 100–711, § 5(b), inserted sentence at end au- thorizing Secretary to issue permit for importation of marine mammal. 1981—Subsec. (a). Pub. L. 97–58, § 3(a)(1), inserted ref- erence to section 1379 of this title in the enumeration of sections preceding par. (1), redesignated par. (4) as (5), and revised as pars. (3) and (4) the provisions of former par. (3) amending those provisions so as to make it illegal for any person to possess a marine mammal, or any product from that mammal, and for any person to transport, purchase, sell, or offer to purchase or sell any marine mammal or marine mammal product. Subsec. (b)(3). Pub. L. 97–58, § 3(a)(2), struck out ‘‘or which has been listed as an endangered species or threatened species pursuant to the Endangered Species Act of 1973’’ after ‘‘designated as a depleted species or stock’’. Subsec. (d)(1). Pub. L. 97–58, § 3(b)(3), struck out ‘‘or endangered’’ after ‘‘concerned as depleted’’. 1977—Subsec. (f). Pub. L. 95–136 added subsec. (f). 1973—Subsec. (b)(3). Pub. L. 93–205 substituted ‘‘an en- dangered species or threatened species pursuant to the Endangered Species Act of 1973’’ for ‘‘endangered under the Endangered Species Conservation Act of 1969’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1973 AMENDMENT Amendment by Pub. L. 93–205 effective Dec. 28, 1973, see section 16 of Pub. L. 93–205, set out as an Effective Date note under section 1531 of this title. EFFECTIVE DATE Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of Pub. L. 92–522, set out as a note under section 1361 of this title. § 1373. Regulations on taking of marine mammals (a) Necessity and appropriateness The Secretary, on the basis of the best sci- entific 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 spe- cies of marine mammal (including regulations on the taking and importing of individuals with- in population stocks) as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and pop- ulation stocks and will be consistent with the purposes and policies set forth in section 1361 of this title. (b) Factors considered in prescribing regulations In prescribing such regulations, the Secretary shall give full consideration to all factors which may affect the extent to which such animals may be taken or imported, including but not limited to the effect of such regulations on— (1) existing and future levels of marine mam- mal species and population stocks; (2) existing international treaty and agree- ment obligations of the United States; (3) the marine ecosystem and related envi- ronmental considerations; (4) the conservation, development, and utili- zation of fishery resources; and (5) the economic and technological feasi- bility 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 pursu- ant to permits issued under section 1374 of this title; (2) the age, size, or sex (or any combination of the foregoing) of animals which may be taken or imported, whether or not a quota pre- scribed under paragraph (1) of this subsection applies with respect to such animals; (3) the season or other period of time within which animals may be taken or imported; (4) the manner and locations in which ani- mals may be taken or imported; and (5) fishing techniques which have been found to cause undue fatalities to any species of ma- rine mammal in a fishery. (d) Procedure Regulations prescribed to carry out this sec- tion with respect to any species or stock of ma- rine mammals must be made on the record after opportunity for an agency hearing on both the Secretary’s determination to waive the morato- rium pursuant to section 1371(a)(3)(A) of this title and on such regulations, except that, in ad- dition to any other requirements, imposed by law with respect to agency rulemaking, the Sec- retary shall publish and make available to the public either before or concurrent with the pub- lication of notice in the Federal Register of his intention to prescribe regulations under this section— (1) a statement of the estimated existing lev- els of the species and population stocks of the marine mammal concerned; Page 1779 TITLE 16—CONSERVATION § 1374 1 So in original. Probably should be ‘‘section’’. (2) a statement of the expected impact of the proposed regulations on the optimum sustain- able population of such species or population stock; (3) a statement describing the evidence be- fore 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 reg- ulations. (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 nec- essary to carry out the purposes of this chapter. (f) Report to Congress Within six months after the effective date of this chapter and every twelve months there- after, the Secretary shall report to the public through publication in the Federal Register and to the Congress on the current status of all ma- rine mammal species and population stocks sub- ject to the provisions of this chapter. His report shall describe those actions taken and those measures believed necessary, including where appropriate, the issuance of permits pursuant to this subchapter to assure the well-being of such marine mammals. (Pub. L. 92–522, title I, § 103, Oct. 21, 1972, 86 Stat. 1033.) Editorial Notes REFERENCES IN TEXT The effective date of this chapter, referred to in sub- sec. (f), means the effective date of Pub. L. 92–522, See section 4 of Pub. L. 92–522, set out as an Effective Date note under section 1361 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of Pub. L. 92–522, set out as a note under section 1361 of this title. TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (f) of this section relating to the Secretary reporting to Congress on the current status of marine mammal species and population stocks subject to this chapter, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and pages 54 and 107 of House Document No. 103–7. MARINE MAMMAL POPULATIONS REPORT Pub. L. 101–627, title XI, § 1101, Nov. 28, 1990, 104 Stat. 4468, directed Secretary of Commerce, in consultation with Secretary of the Interior, to provide to Congress within 12 months after Nov. 28, 1990, a report assessing population sizes and trends of harbor seals, sea otters, California sea lions, and northern sea lions off the coast of the State of Washington; assessing the effec- tiveness of 16 U.S.C. 1371(a)(3)(A) and 1379(h); and speci- fying long range management plans for the species of marine mammals listed. § 1374. Permits (a) Issuance The Secretary may issue permits which au- thorize 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 specifi- cally provided for in sections 1 1371(a)(5) or 1416 of this title, or subsection (h) of this section. (b) Requisite provisions Any permit issued under this section shall— (1) be consistent with any applicable regula- tion established by the Secretary under sec- tion 1373 of this title, and (2) specify— (A) the number and kind of animals which are authorized to be taken or imported, (B) the location and manner (which man- ner 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 popu- lation stock, the Secretary shall first consider whether or not it would be more desirable to transplant a number of animals (but not to ex- ceed the number requested for taking in the ap- plication) of that species or stock to a location not then inhabited by such species or stock but previously inhabited by such species or stock. (c) Importation for scientific research, public display, or enhancing survival or recovery of species or stock (1) Any permit issued by the Secretary which authorizes the taking or importation of a ma- rine mammal for purposes of scientific research, public display, or enhancing the survival or re- covery of a species or stock shall specify, in ad- dition to the conditions required by subsection (b) of this section, the methods of capture, su- pervision, care, and transportation which must be observed pursuant to such taking or importa- tion. Any person authorized to take or import a marine mammal for purposes of scientific re- search, 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 im- port a marine mammal for the purpose of public display only to a person which the Secretary de- termines— (i) offers a program for education or con- servation purposes that is based on profes- sionally recognized standards of the public dis- play community; (ii) is registered or holds a license issued under 7 U.S.C. 2131 et seq.; and (iii) maintains facilities for the public dis- play of marine mammals that are open to the public on a regularly scheduled basis and that