Overview. The Act establishes a federal responsibility to conserve marine mammals, with management vested in the Department of Commerce for cetaceans and pinnipeds other than walrus. The Department of the Interior is responsible for all other marine mammals, including sea otter, walrus, polar bear, dugong and manatee. The Act generally assigns identical responsibilities to the Secretaries of the two departments.
Findings/Policy. Congress found that: certain species and population stocks of marine mammals are or may be in danger of extinction or depletion due to human activities; these mammals should not be permitted to diminish below their optimum sustainable population; measures should be taken immediately to replenish any of these mammals that have diminished below that level, and efforts should be made to protect essential habitats; there is inadequate knowledge of the ecology and population dynamics of these mammals; negotiations should be undertaken immediately to encourage international arrangements for research and conservation of these mammals. Congress declared that marine mammals are resources of great international significance (aesthetic, recreational and economic), and should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management. The primary management objective should be to maintain the health and stability of the marine ecosystem. The goal is to obtain an optimum sustainable population within the carrying capacity of the habitat. § 1361.
Selected Definitions. Harassment: an act of pursuit, torment or annoyance which has the potential to injure, or disturb by causing disruption of behavioral patterns, a marine mammal or marine mammal stock in the wild. Marine mammal: any mammal which is morphologically adapted to the marine environment (including sea otters and members of the orders sirenia, pinnipedia and cetacea), or primarily inhabits the marine environment (such as the polar bear); also includes any part of a marine mammal, including raw, dressed or dyed fur or skin. Marine mammal product: an item of merchandise which consists of, or is composed in whole or in part, of a marine mammal. Optimum sustainable population: the number of animals which will result in the maximum productivity of a population or species, considering the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. Secretary: Secretary of Commerce with respect to members of the order cetacea (includes whales and dolphins) and pinnipedia other than walruses; Secretary of the Interior with respect to all other marine mammals covered by the Act. Stranding: an event in the wild in which a dead marine mammal is on a U.S. beach or shore or in U.S. waters; or an alive marine mammal is on a U.S. beach or shore and either is unable to return to the water or is in need of apparent medical attention, or is in U.S. waters and unable to return to its natural habitat without assistance. Take: harass, hunt, capture or kill, or attempt to harass, hunt, capture or kill a marine mammal. Unusual mortality event: a stranding that is unexpected, involves a significant die-off of a marine mammal population, and demands immediate response. §§ 1362 and 1421h.
Moratorium. The Act establishes a moratorium on the taking and importation of marine mammals and marine mammal products. The Secretary may issue permits for taking and importation for scientific research, public display, photography for educational or commercial use, enhancing the survival or recovery of a species, or importation of polar bear parts (other than internal organs) taken in sport hunts in Canada. Permit applications, except for polar bear parts, must first be reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals. The Secretary can waive these requirements and allow taking and importing in accordance with the purposes and policies of the Act, if the Secretary certifies that the marine mammals were taken in their country of origin in a manner consistent with this Act. With limited exceptions, no permits may be issued for the taking or importation of a marine mammal designated as depleted.
Incidental taking in commercial fishing operations is allowable either by permit or authorization by the Secretary. The immediate goal is the reduction of incidental kill or incidental serious injury of marine mammals in commercial fishing to insignificant levels approaching a zero mortality and serious injury rate.
The Secretary of the Treasury must ban the importation of commercial fish or products from fish caught with commercial fishing technology that results in the incidental kill or serious injury of marine mammals in excess of U.S. standards, and must require reasonable proof from exporting countries of the effects of their technology on these mammals. Specific documentary evidence is required from nations exporting yellowfin tuna harvested with purse seines in the eastern tropical Pacific Ocean. Intermediary nations must certify and provide proof that they have not imported any yellowfin tuna or products that are subject to the U.S. importation ban. Exporting nations also must provide evidence that fish were not harvested with large-scale driftnets.
The Act generally does not apply to measures to deter a marine mammal from endangering personal safety or damaging personal property, as long as the measures do not seriously injure or kill the animal. The Secretary must publish guidelines on nonlethal ways to deter marine mammals. It is not a violation of the Act to take a marine mammal if imminently necessary to save a life, provided the taking is reported to the Secretary within 48 hours.
The Act sets out procedures for the Secretary to allow incidental taking of small numbers of marine mammals through a specific activity in a specified geographic region, upon certain findings and with protective restrictions. This authorization requires public notice in the affected local communities. The Secretary also may allow incidental taking of depleted marine mammals during commercial fishing, if the impact is negligible, a recovery plan is developed and a monitoring program is established.
The Act does not apply to the taking of marine mammals by an Indian, Aleut or Eskimo who resides in Alaska and dwells on the coast of the North Pacific Ocean or the Arctic Ocean, if the taking is done in a nonwasteful manner and is for subsistence purposes or for creating and selling authentic native handicrafts and clothing. These takings may be regulated by the Secretary, however, if the marine mammal is depleted. § 1371.
Prohibitions. With the exceptions contained in the Act, it is unlawful for a person to take a marine mammal, to possess a marine mammal or product taken in violation of the Act, or to transport, purchase, sell, import or export a marine mammal. It is generally unlawful to import a pregnant or nursing marine mammal, a depleted mammal, or a mammal taken in an inhumane or illegal way. It is also unlawful to take any species of whale incident to commercial whaling in U.S. waters. § 1372.
Regulations. The Secretary must prescribe regulations for taking and importing of marine mammals to insure that the taking is not to the disadvantage of the species and is consistent with the purposes and policies of the Act. § 1373.
Permits. The Secretary may issue permits which authorize the taking or importation of a marine mammal. A permit must be consistent with applicable regulations and specify the number and kind of animals authorized to be taken or imported, the location and manner in which they may be taken or imported, the period for which the permit is valid, and any other terms or conditions the Secretary deems appropriate. Additional requirements apply for specific types of permits. The Secretary may modify, suspend or revoke permits. § 1374.
Penalties. Violation of the Act, or a permit or regulation issued under it, is subject to a civil penalty of up to $10,000 per violation. Each unlawful taking or importation is a separate offense. Knowing violation of the Act, or a permit or regulation issued under it, is subject to a criminal penalty of up to $20,000 per violation or imprisonment for one year, or both. (The $20,000 maximum fine stated in the Act and repeated in this summary is modified by the Sentencing Reform Act of 1984, as amended by the Criminal Fine Improvements Act of 1987. See the summary of the Sentencing Reform Act for the new, generally higher, levels.) § 1375.
A vessel subject to U.S. jurisdiction used in the unlawful taking of a marine mammal is subject to seizure and forfeiture of its cargo, and liable for a civil penalty of up to $25,000. § 1376.
Enforcement. The Secretary is required to enforce the Act and by agreement may use the resources of a federal agency for doing so. The Secretary also may designate officers and employees of a state or U.S. possession to enforce the Act, allowing them to function as federal law enforcement agents for this purpose. § 1377.
International Program. The Secretary, through the Secretary of State, must initiate negotiations for bilateral or multilateral agreements with other nations for the protection and conservation of all marine mammals covered by the Act. The Secretary also is required to work with other countries, in specified ways, to promote the purposes of the Act. § 1378.
Transfer of Management Authority. States may not enforce a state law or regulation relating to taking of marine mammals within the state unless the Secretary has transferred authority for the conservation and management of that species to the state. The Secretary must transfer management authority for a marine mammal species to a state if the Secretary makes certain findings on the policies of the state program. Management authority may be revoked if the state program is not implemented consistent with the requirements of the Act. The Secretary may make grants to states to assist them in developing or administering their programs. Federal, state and local government officials or employees are not prohibited as part of their official duties from taking a marine mammal in a humane manner if done for the protection or welfare of the animal or public health and welfare, or for the nonlethal removal of nuisance animals. Where feasible, a marine mammal must be returned to its natural habitat. § 1379.
Research Grants. The Secretary is authorized to make grants or provide financial assistance to a federal or state agency, public or private institution, or a person for research in subjects that are relevant to the protection and conservation of marine mammals. The Secretary must engage in certain research and workshop activities. § 1380.
Commercial Fishing. The Secretary must undertake a program of research and development for improving fishing methods and gear to reduce to the maximum extent practical the incidental taking of marine mammals in commercial fishing. The Secretary must issue regulations to reduce to the lowest practical level the taking of marine mammals incidental to commercial fishing operations, and must negotiate to reduce marine mammal taking by the tuna fishery. §1381.
Regulations and Administration. The Secretary must prescribe regulations to carry out the Act. Federal agencies are directed to cooperate with the Secretary. The Secretary may enter into contracts, leases, cooperative agreements or other transactions with a federal or state agency, public or private institution, or any other person. The Secretary must review annually each program involving the taking of marine mammals on land, and suspend the operation of a program that cannot be administered consistent with the purposes and policies of the Act. The Secretary may develop and implement conservation or management measures to alleviate impacts on rookeries, mating grounds, or other areas of similar ecological significance to marine mammals that may be causing the decline or impeding the recovery of a strategic stock. § 1382.
Treaties and Conventions. The provisions of this Act are in addition to other existing international treaties, conventions or agreements. The Secretary is required to review the effectiveness of polar bear agreements and conservation. § 1383.
Status Review for Depleted Mammals. In determining whether a species or stock should be designated as depleted, or no longer so designated, the Secretary must allow for public comment and make the decision based on the best scientific information available. The Act sets out procedures the Secretary must follow upon receiving a petition for a status review. The Secretary must prepare conservation plans for a species or stock designated as depleted, unless the Secretary determines that a plan will not promote its conservation. The plan's purpose must be to conserve and restore the species or stock to its optimum sustainable population. § 1383b.
Dolphin Protection Consumer Information Act. See separate entry in this Handbook. § 1385.
Stock Assessments. The Secretary must prepare by August 1, 1994 a draft stock assessment for each marine mammal stock in waters within the jurisdiction of the U.S. This assessment must be based on the best scientific information available and must: describe the geographic range of the affected stock, including seasonal or temporal variations; provide minimum population estimates, productivity rates and population trends; estimate the annual human-caused mortality and serious injury of the stock by source; describe the commercial fisheries that interact with the stock; categorize the status of the stock as either unlikely to be reduced below its optimum sustainable population or as strategic; estimate the potential biological removal level for the stock. The Secretary must provide notice of the availability of the draft stock assessment, allow for public review and comment, and conduct a proceeding on the record prior to publishing a final assessment. The Secretary must review stock assessments annually for strategic stocks and for stocks for which significant new information is available, and every three years for other stocks.
The Secretary of Commerce, in consultation with others, must establish three independent regional scientific review groups representing Alaska, the Pacific Coast and the Atlantic Coast. These groups are charged with advising the Secretary on a variety of population, research, habitat and other appropriate issues, including the stock assessments. § 1386.
Incidental Taking in Commercial Fishing. Except when a life is in immediate danger, the intentional lethal taking of a marine mammal in the course of commercial fishing operations is prohibited. Commercial fisheries must reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching zero by April 30, 2001. Fisheries that maintain a level approaching zero are not required to reduce their mortality and injury rates further. The Act requires the owners or operators of commercial fishing vessels to report all incidental mortality and injury of marine mammals to the Secretary within 48 hours of the end of each fishing trip.
By April, 1997, the Secretary of Commerce must review the progress of all commercial fisheries, and if the rate of incidental mortality and serious injury is not consistent with the reduction requirement, must develop and implement a take reduction plan. The Secretary may develop a take reduction plan for any marine mammal that interacts with a commercial fishery and has a high level of mortality and serious injury.
Upon application, the Secretary must grant authorizations for incidental taking of marine mammals to commercial fisheries, which must follow specified requirements for displaying a decal, reporting incidental taking, complying with take reduction plans and emergency regulations, and allowing an observer on board the vessel. The Secretary must develop a program to monitor incidental taking and serious injury, and may place observers on board vessels to record mortality and injury rates, log the number of marine mammals sighted and conduct other scientific investigations.
If the Secretary finds that the incidental mortality and serious injury of marine mammals by commercial fisheries has, or is likely to have, an immediate and significant adverse impact on a stock or species, the Secretary must issue emergency regulations to reduce the mortality and injury rates and provide expedited review of take reduction plans or amendments. § 1387.
Cooperative Agreements in Alaska. The Secretary may enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and provide co-management of subsistence use by Alaska Natives. The agreements may include grants to these organizations to collect and analyze data on marine mammal populations, monitor their harvest, participate in research, and develop co-management structures with federal and state agencies. § 1388.
Pinnipeds. The Secretary may permit the intentional lethal taking of pinnipeds, despite other provisions of the Act. States may apply to the Secretary to authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of specified salmonid fishery stocks. A pinniped-fishery interaction task force must be established to recommend to the Secretary whether to approve an application and to suggest nonlethal alternatives. The Secretary must take steps to implement an approved application.
The Secretary must complete by October 1, 1995 a scientific investigation to determine the impact of California sea lions and Pacific harbor seals on the recovery of endangered or threatened salmonid fishery stocks and on the west coast ecosystems. The Secretary must then consult with the Pacific States Marine Fisheries Commission to develop recommendations based on the report.
The Secretary may conduct a study on the interaction of fish and pinnipeds in the anadromous fish migration corridors of the northwest coast. The Secretary is required to establish a pinniped-fishery interaction task force to advise on pinnipeds in the Gulf of Maine. § 1389.
Marine Mammal Commission. The Act establishes a Marine Mammal Commission, composed of three members appointed by the President for three-year terms. The Commission is required to: review the laws and international conventions relating to marine mammals; conduct an ongoing review of the stocks of marine mammals, methods for their protection and conservation, humane means for their taking, research programs undertaken by authority of the Act, and all permit applications for scientific research, public display, or species survival; undertake other studies necessary for the protection and conservation of marine mammals; recommend steps to the Secretary and other federal officials to protect and conserve these mammals; recommend to the Secretary of State appropriate policies for international arrangements to protect and conserve these mammals; recommend necessary revisions to the endangered and threatened species lists; recommend additional measures to further the Act. The Commission also must consult with the Secretary as desirable and annually report to Congress. The Commission is required to establish a committee of scientific advisors with which to consult on studies, recommendations, research programs and permit applications for scientific research.
The Marine Mammal Commission has access to all studies and data compiled by federal agencies on marine mammals, and must coordinate its efforts to avoid duplication of research. Congress authorized to be appropriated to the Commission funds ranging from $1,500,000 to $1,750,000 for each fiscal year 1994-1999. §§ 1401-1407.
International Dolphin Conservation Act of 1992. According to 1992 amendments to the Act, the policy of the U.S. is to: eliminate marine mammal mortality resulting from intentional encirclement of dolphins and other marine mammals in tuna purse seine fisheries; secure appropriate multilateral agreements to reduce and eliminate this mortality eventually, and ensure that U.S. tuna fishing vessels have continued access to productive tuna fishing grounds in the South Pacific Ocean; ensure that the U.S. market is not an incentive to the harvest of tuna caught in association with dolphins or with driftnets; encourage observers on purse seine vessels fishing for tuna under certain conditions. § 1411.
The Act authorizes the Secretary of State, in consultation with the Secretary, to enter into international agreements to establish a global moratorium for at least five years to prohibit harvesting tuna using purse seine nets deployed on or to encircle dolphins or other marine mammals. These agreements must include an international research program to develop fishing methods for large yellowfin tuna either without setting nets on dolphins and other marine mammals or by setting nets with zero set-caused mortality. The moratorium may be terminated prior to December 31, 1999 with respect to U.S. tuna harvesting in the eastern tropical Pacific Ocean only if the Secretary so recommends and Congress approves. §§ 1412-1413.
The importation of yellowfin tuna or its products must not be banned under the Act from a country that submits to the Secretary of State a formal communication in which the country commits to: implement a moratorium of at least five years on the harvesting of tuna using purse seine nets deployed on or to encircle dolphins or other marine mammals; require an observer on vessels engaged in purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean; reduce dolphin mortality from purse seine net operations by specified amounts. Failure of a country to implement these commitments will result in a ban on U.S. imports of yellowfin tuna and products from that country. The Secretary periodically must review compliance with these commitments. The Act also contains restrictions for permits for taking dolphins in addition to those specified earlier in § 1374. §§ 1415-1416.
The Act requires the Secretary to report annually to Congress on the effectiveness of the moratorium in protecting dolphin populations in the eastern tropical Pacific Ocean; the economic impacts of the moratorium on the tuna industry and consumers; the status of yellowfin tuna stocks; the impact on fishery resources of fishing for large yellowfin tuna with non-encirclement of dolphin methods; results of compliance reviews; and results of research. § 1414.
The Act makes it unlawful to: sell or offer to sell, purchase, transport or ship tuna or a tuna product that is not dolphin safe; intentionally set a purse seine net on or to encircle a marine mammal during tuna fishing operations, with limited exceptions; import yellowfin tuna or yellowfin tuna products in violation of a ban on importation; violate a regulation under the Act; refuse to permit an authorized officer to board a vessel to search or inspect in connection with enforcement of the Act; assault, resist, oppose, impede, intimidate or interfere with an authorized officer in the conduct of a search or inspection. Knowing and willful violation of these prohibitions is subject to criminal and civil penalties. Vessels used and fish taken in connection with violation of these prohibitions are subject to forfeiture to the U.S. § 1417.
Marine Mammal Health and Stranding Response Act. This statute, added in 1992, requires the Secretary to establish a Marine Mammal Health and Stranding Response Program to: facilitate the collection and dissemination of reference data on marine mammal health and health trends; correlate marine mammals' health with data on physical, chemical and biological environmental parameters; coordinate effective responses to unusual mortality events by developing a response process within the Department of Commerce. The Secretary must monitor strandings, collect information on procedures for rescuing and rehabilitating stranded marine mammals, collect marine mammal tissues for analysis, and develop objective criteria for deciding when a rehabilitated marine mammal is releasable to the wild. The Secretary may enter into agreements with persons to take marine mammals in response to a stranding. §§ 1421-1421b.
The Secretary, through the Office of Protected Resources in the National Marine Fisheries Service, must establish a marine mammal unusual mortality event working group to determine when unusual mortality events occur and develop contingency plans for responding to these events. The Act contains detailed requirements for these plans and for actual responses. The Act also establishes a fund for use in compensating persons for costs incurred in responding to unusual mortality events and for the care and maintenance of marine mammals. §§ 1421c-1421d.
The Act requires the Secretary to provide for the storage, preparation, examination and archiving of marine mammal tissues in a National Marine Mammal Tissue Bank, to be used as means to monitor and measure overall health trends in marine mammal species and populations. The Secretary also must maintain a central database for tracking and accessing health and unusual mortality event data on marine mammals. § 1421f.
Congress authorized to be appropriated to the Secretary $250,000 for each fiscal year 1993-1994 to carry out this Act, other than § 1421f, and $250,000 for each fiscal year 1993-1994 to carry out § 1421f. Congress also authorized appropriations of $500,000 for fiscal year 1993 to the Marine Mammal Unusual Mortality Event Fund. § 1421g.
Appropriations Authorized. Congress authorized to be appropriated to the Department of Commerce for its responsibilities under the Act (except under the Marine Mammal Health and Stranding Response Act) the following sums for each listed fiscal year: 1994, $12,138,000; 1995, $12,623,000; 1996, $13,128,000; 1997, $13,653,000; 1998, $14,200,000; and 1999, $14,768,000. Congress further authorized to be appropriated to the Department of Commerce an additional $20,000,000 for each fiscal year 1994-1999 to carry out §§ 1386-1387. Congress authorized to be appropriated to the Department of the Interior for its responsibilities under the Act the following sums for each listed fiscal year: 1994, $8,000,000; 1995, $8,600,000; 1996, $9,000,000; 1997, $9,400,000; 1998, $9,900,000; and 1999, $10,296,000. § 1384.
Editor's Note. The Marine Mammal Protection Act has been amended by two public laws since the Handbook was completed. Public Law 105-18, signed on June 12, 1997, amends § 1371 to add a good samaritan exemption. It is not a violation of the Act to take a marine mammal if the taking is necessary to avoid serious injury or death to a marine mammal entangled in fishing gear or debris, reasonable care is taken to ensure the marine mammal's safe release, reasonable care is exercised to prevent further injury, and the taking is reported to the Secretary within 48 hours. P.L. 105-18 also amends § 1374 on permits for the importation of polar bear parts.
The International Dolphin Conservation Program Act, enacted August 15, 1997 as Public Law 105-42, makes a number of changes to the Marine Mammal Protection Act. Amendments to the Dolphin Protection Consumer Information Act and the Tuna Conventions Act of 1950, made by the new law, are described in editor's notes to the summaries of those laws.
Once effective, the 1997 amendments to § 1371 of the MMPA will permit the import of yellowfin tuna harvested with purse seine nets in the eastern tropical Pacific if the tuna is harvested by vessels of a nation in compliance with the International Dolphin Conservation Program and the nation is a member, or becoming a member, of the Inter-American Tropical Tuna Commission. Changes to § 1374 will allow the Secretary of Commerce to issue annual permits to U.S. purse seine vessels for the incidental taking of marine mammals, subject to regulation. Sections 1411 through 1418 are being amended to require that the Secretary of State seek a binding international agreement to establish an International Dolphin Conservation Program (IDCP) requiring that the total annual dolphin mortality in the purse seine fishery in the eastern tropical Pacific not exceed 5,000 animals, with a commitment to progressively reduce mortality to a level approaching zero through the setting of annual limits. The Secretary is to issue regulations to implement the IDCP and to govern the taking of marine mammals by U.S. vessels participating in it. The 1997 Act also requires a study of the effect of intentional encirclement (including chase) on dolphins and dolphin stocks incidentally taken. The study is to commence in October, 1997.
Most provisions of P.L. 105-42 do not take effect until the Secretary of Commerce certifies that the study just described is being done and the Secretary of State certifies that the IDCP has been established by binding resolution of the Inter-American Tropical Tuna Commission and is in force. The Secretary of Commerce may issue the regulations required by the Act at any time.