cle to the applicant and the importation of such article shall, on and after the date of return, be deemed to be a lawful importation

under this Act.

(i) 45 NONCOMMERCIAL TRANSSHIPMENTS.-Any importation into the United States of fish or wildlife shall, if—

(1) such fish or wildlife was lawfully taken and exported from the country of origin and country of reexport, if any;

(2) such fish or wildlife is in transit or transshipment through any place subject to the jurisdiction of the United States en route to a country where such fish or wildlife may be lawfully imported and received;

(3) the exporter or owner of such fish or wildlife gave explicit instructions not to ship such fish or wildlife through any place subject to the jurisdiction of the United States, or did all that could have reasonably been done to prevent transshipment, and the circumstances leading to the transshipment were beyond the exporter's or owner's control;

(4) the applicable requirements of the Convention have been satisfied; and

(5) such importation is not made in the course of a commercial activity,

be an importation not in violation of any provision of this Act or any regulation issued pursuant to this Act while such fish or wildlife remains in the control of the United States Customs Service.

(j) 46 EXPERIMENTAL POPULATIONS.-(1) For purposes of this subsection, the term "experimental population" means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

(2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.

(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species.

(C) For the purposes of this Act, each member of an experimental population shall be treated as a threatened species; except that—

(i) solely for purposes of section 7 (other than subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under section 4; and

45 Subsec. (i), as added sec. 5 of Public Law 95-632 (92 Stat. 3760), was amended and restated by sec. 6(5) of Public Law 97-304 (96 Stat. 1424).

(ii) critical habitat shall not be designated under this Act for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species. (3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before the date of the enactment of this subsection, for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species.

Sec. 12.47 The Secretary of the Smithsonian Institution, in conjunction with other affected agencies, is authorized and directed to review (1) species of plants which are now or may become endangered or the threatened and (2) methods of adequately conserving such species, and to report to Congress, within one year after the date of the enactment of this Act, the results of such review including recommendations for new legislation or the amendment of existing legislation.

47 16 U.S.C. 1541.

20. Marine Mammal Protection Act of 1972, as amended

Partial text of Public Law 92-522 [H.R. 10420], 86 Stat. 1027, approved October 21, 1972, as amended by Public Law 93-205 [Endangered Species Act of 1973; S. 1983], 87 Stat. 884, approved December 28, 1973; Public Law 95136 [S. 1522], 91 Stat. 1167, approved October 18, 1977; Public Law 95-316 [H.R. 10730], 92 Stat. 380, approved July 10, 1978; Public Law 97-58 [H.R. 40841], 95 Stat. 979, approved October 9, 1981; Public Law 97-389 [Fisheries Amendments Act of 1982; H.R. 3942], 96 Stat. 1949 at 1951, approved December 29, 1982; Public Law 98-364 [H.R. 4997], 98 Stat. 440, approved July 17, 1984; Public Law 99-659 [S. 991], 100 Stat. 3706, approved November 14, 1986; Public Law 100-711 [Marine Mammal Protection Act Amendments of 1988; H.R. 4189], 102 Stat. 4755, approved November 23, 1988; Public Law 101-627 [Fishery Conservation Amendments of 1990-Dolphin Protection Consumer Information Act; H.R. 2061] 104 Stat. 4436, approved November 28, 1990; Public Law 102-251 [Flower Garden Banks National Marine Sanctuary; H.R. 3866], 106 Stat. 60, approved March 9, 1992; Public Law 102-523 [International Dolphin Conservation Act of 1992; H.R. 5419], 106 Stat. 3425, approved October 26, 1992; Public Law 102-582 [High Seas Driftnet Fisheries Enforcement Act; H.R. 2152], 106 Stat. 4900, approved November 2, 1992; Public Law 102-587 [Oceans Act of 1992; H.R. 5617], 106 Stat. 5039, approved November 4, 1992; Public Law 103-238 [Marine Mammal Protection Act Amendments of 1994; S. 1636], 108 Stat. 532, approved April 30, 1994; Public Law 104-208 [Department of Commerce and Related Agencies Appropriations Act; title II of section 101(a) of title I of Public Law 104-208; H.R. 3610], 110 Stat. 3009, approved September 30, 1996; and by Public Law 104–297 (Sustainable Fisheries Act; S. 39], 110 Stat. 3559, approved October 11, 1996

AN ACT To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act, with the following table of contents, may be cited as the "Marine Mammal Protection Act of 1972".

*

FINDINGS AND DECLARATION OF POLICY 1

Sec. 2.2 The Congress finds that—

1 Sec. 602 of the Foreign Relations Authorization Act, Fiscal Year 1979 (92 Stat. 985), contained the following sense of the Congress expressing its concern over the continuing destruction of marine mammals:

"Sec. 602. It is the sense of the Congress that the President should convey to all countries having an interest in cetacean sea life the serious concern of the Congress regarding the continuing destruction of these marine mammals (highlighted by the recent slaughter of dolphins in the Sea of Japan by Japanese fishermen) and should encourage such countries—

"(1) to join in international discussions with other such countries in order to advance general understanding of cetacean life and thereby facilitate an effective use of the living marine resources of the world which does not jeopardize the natural balance of the aquatic environment;

"(2) to participate in an exchange of information with the National Marine Fisheries Service of the United States Department of Commerce, including cooperation in studies of"(A) the impact of cetaceans on ecologically related human foodstuffs, and "(B) alternative methods of dealing with cetacean problems as they occur;

Continued

(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities;

(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including3 the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man's actions;

(3) there is inadequate knowledge of the ecology and population dynamics of such marine mammals and of the factors which bear upon their ability to reproduce themselves successfully;

(4) negotiations should be undertaken immediately to encourage the development of international arrangements for research on, and conservation of, all marine mammals;

(5) marine mammals and marine mammal products either(A) move in interstate commerce, or

(B) affect the balance of marine ecosystems in a manner which is important to other animals and animal products which move in interstate commerce,

and that the protection and conservation of marine mammals and their habitats 4 is therefore necessary to insure the continuing availability of those products which move in interstate commerce; and

(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the 5 carrying capacity of the habi

tat.

"(3) to cooperate in establishing an international cetacean commission to advance understanding of cetacean life and to insure the effective conservation and protection of cetaceans on a global scale; and

"(4) to adopt comprehensive marine mammal protection legislation.".

216 U.S.C. 1361.

3 Sec. 3(1) of Public Law 103-238 (108 Stat. 532) inserted essential habitats, including" after "made to protect".

4 Sec. 3(2) of Public Law 103-238 (108 Stat. 532) inserted "and their habitats" before "is therefore necessary".

The word "optimum" which previously appeared at this point, was struck out by sec. 1(b)(1) of Public Law 97-58 (95 Stat. 979).

DEFINITIONS

Sec. 3. For the purposes of this Act(1)7 The term "depletion" or "depleted" means any case in

which

(A) the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under title II of this Act, determines that a species or population stock is below its optimum sustainable population;

(B) a State, to which authority for the conservation and management of a species or population stock is transferred under the Endangered Species Act of 1973,8 determines that such species or stock is below its optimum sustainable population; or

(C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(2) The terms "conservation" and "management" means the collection and application of biological information for the purposes of increasing and maintaining the number of animals within species and populations of marine mammals at their optimum sustainable population.9 Such terms include the entire scope of activities that constitute a modern scientific resource program, including, but not limited to, research, census, law enforcement, and habitat acquisition and improvement. Also included within these terms, when and where appropriate, is the periodic or total protection of species or populations as well as regulated taking.

(3) The term "district court of the United States" includes the District Court of Guam, District Court of the Virgin Islands, District Court of Puerto Rico, District Court of the Canal Zone, and, in the case of American Samoa and the Trust Territory of the Pacific Islands, the District Court of the United States for the District of Hawaii.

(4) The term "humane” in the context of the taking of a marine mammal means that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved.

(5) 10 The term "intermediary nation" means a nation that exports yellowfin tuna or yellowfin tuna products to the united States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to section 101(a)(2)(B).

(6) The term "marine mammal" means any mammal which (A) is morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia,

616 U.S.C. 1362.

7 Par. (1) was substantially amended and restated by sec. 1(b)(2)(A) of Public Law 97-58 (95 Stat. 979).

Formerly referred to the Endangered Species Conservation Act of 1969; amended by sec. 13(e)(1) of Public Law 93-205 (87 Stat. 903).

Sec. 1(b)(2)(B) of Public Law 97-58 (95 Stat. 979) struck out "the optimum carrying capacity of their habitat" and inserted in lieu thereof "their optimum sustainable population".

10 Sec. 401(a) of Public Law 102-582 (106 Stat. 4909) redesignated pars. (5) through (14) as