Page images
PDF
EPUB

12. 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 95-136 [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; and by Public Law 100-711 [Marine Mammal Protection Act Amendments of 1988; H.R. 4189], 102 Stat. 4755, approved November 23, 1988

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) 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

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;

"(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.".

2 16 U.S.C. 1361.

taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect 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 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 3 carrying capacity of the habi

tat.

TITLE I-CONSERVATION AND PROTECTION OF MARINE MAMMALS

MORATORIUM AND EXCEPTIONS

Sec. 101. (a) There shall be a moratorium on the taking and importation of marine mammals and marine mammal products, commencing on the effective date of this Act, 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) 5 Consistent with the provisions of section 104, 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

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).

416 U.S.C. 1371.

Par. (1) was amended by sec. 5(c) of Public Law 100-711 (102 Stat. 4769). Par. (1) previously read: "(1) Permits may be issued by the Secretary for taking and importation for purposes of scientific research and for public display 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 title II of this Act. The Commission and Committee shall recommend any proposed taking or importation which is consistent with the purposes and policies of section 2 of this Act. 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.

(2) Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may be issued therefor under section 104 subject to regulations prescribed by the Secretary in accordance with section 103. 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 mortally and serious injury rate; 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. 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.

6

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; 7

(B) in the case of yellowfin tuna harvested with purse seines in the eastern tropical Pacific Ocean, and products therefrom, to be exported to the United States, shall require that the government of the exporting nation provide documentary evidence that

(i) the government of the harvesting nation has adopted a regulatory program governing the incidental taking of marine mammals in the course of such harvesting that is comparable to that of the United States; and

(ii) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average

6 Par. (2) was amended and restated up to this point by sec. 101(1)(A) of Public Law 97-58 (95 Stat. 979).

7 Sec. 4(a) of Public Law 100-711 (102 Stat. 4765) deleted the word "and" which previously appeared at this point.

rate of incidental taking of marine mammals by United States vessels in the course of such harvesting,8

except that the Secretary shall not find that the regulatory program, or the average rate of incidental taking by vessels, of a harvesting nation is comparable to that of the United States for purposes of clause (i) or (ii) of this paragraph unless

(I) the regulatory program of the harvesting nation includes, by no later than the beginning of the 1990 fishing season, such prohibitions against encircling pure schools of species of marine mammals, conducting sundown sets, and other activities as are made applicable to United States vessels;

(II) the average rate of the incidental taking by vessels of the harvesting nation is no more than 2.0 times that of United States vessels during the same period by the end of the 1989 fishing season and no more than 1.25 times that of United States vessels during the same period by the end of the 1990 fishing season and thereafter;

(III) the total number of eastern spinner dolphin (Stenella longirostris) incidentally taken by vessels of the harvesting nation during the 1989 and subsequent fishing seasons does not exceed 15 percent of the total number of all marine mammals incidentally taken by such vessels in such year and the total number of coastal spotted dolphin (Stenella attenuata) incidentally taken by such vessels in such seasons does not exceed 2 percent of the total number of all marine mammals incidentally taken by such vessels in such year;

(IV) the rate of incidental taking of marine mammals by the vessels of the harvesting nation during the 1989 and subsequent fishing seasons is monitored by the porpoise mortality observer program of the Inter-American Tropical Tuna Commission or an equivalent international program in which the United States participates and is based upon observer coverage that is equal to that achieved for United States vessel during the same period, except that the Secretary may approve an alternative observer program if the Secretary determines, no less than sixty days after publication in the Federal Register of the Secretary's proposal and reasons therefor, that such an alternative observer program will provide sufficiently reliable documentary evidence of the average rate of incidental taking by a harvesting nation; and

(V) the harvesting nation complies with all reasonable requests by the Secretary for cooperation in carrying out the scientific research program required by section 104(h)(3) of this title; 9

Sec. 101 of Public Law 98-364 (98 Stat. 440) amended and restated the last sentence of par. (2). Previously, the sentence had contained the text of subpar. (A). Sec. 4(a)(2) of Public Law 100711 (102 Stat. 4765) substituted a comma in lieu of the period previously appearing at this point. "The text to this point beginning with "except that the Secretary shall not find" was added by sec. 4(a)(2) of Public Law 100-711 (102 Stat. 4765).

(C) 10 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; and

(D) 10 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 8(a) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as such ban is in effect.

(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 Act 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 102, 103, 104, and 111 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 mammals is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this Act: 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 Act. 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 or enhancing the survival or recovery of a species or stock 11 as provided for in paragraph (1) of this subsection, during the moratorium no permit may be issued for the taking of any marine mammal which 12 has been designated by the Secretary as depleted, and no importation may be made of any such mammal.

(4) 13 (A) During any period of five consecutive years, the Secretary shall allow the incidental, but not the intentional,

10 Subpars. (C) and (D) were added by sec. 4(a)(3) of Public Law 100-711 (102 Stat. 4766).

11 Sec. 5(e)(1) of Public Law 100-711 (102 Stat. 4771) inserted "or enhancing the survival or recovery of a species or stock".

12 The phrase "is classified as belonging to an endangered species or threatened species pursuant to the Endangered Species Act of 1973 or" was struck out by sec. 101(1)(B) of Public Law 9758 (95 Stat. 980).

13 Par. (4) was added by sec. 101(1)(C) of Public Law 97-58 (95 Stat. 980).

« PreviousContinue »