Marine Mammal Protection Act

• Author: Environmental Law Reporter
• Pages: 657-700

Marine Mammal Protection Act

16 U.S.C. §§1361-1421h

Subchapter I—Generally

§1361.[MMPA §2]

Congressional findings and declaration of policy

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 taken to replenish any species or

population stock which has already diminished below that popula-

tion. In particular, efforts should be made to protect essential habi-

tats, including 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 is therefore necessary to insure the continuing avail-

ability 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 main-

tain 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 carrying

capacity of the habitat.

(Pub. L. 92-522, §2, Oct. 21, 1972, 86 Stat. 1027; Pub. L. 97-58, §1(b)(1), Oct.

9, 1981, 95 Stat. 979; Pub. L. 103-238, §3, Apr. 30, 1994, 108 Stat. 532.)

Effective Date

Section 4 of Pub. L. 92-522 provided that: “The provisions of this Act (enacting

this chapter) shall take effect upon the expiration of the sixty-day period following

the date of its enactment (Oct. 21, 1972).”

Short Title Of 2000 Amendment

Pub. L. 106-555, Sec. 1, Dec. 21, 2000, 114 Stat. 2765, provided that: “This Act

[enacting section 1421f-1 of this title, amending sections 1352, 1421g, 1421h, 1433,

1434, 5101 to 5103, 5106, 5107a to 5108, and 5156 of this title, enacting provisions

set out as notes under this section and sections 917a, 1433, 5101, and 5107 of this ti-

tle, and amending provisions set out as a note under section 1855 of this title] may be

cited as the ‘Striped Bass Conservation, Atlantic Coastal Fisheries Management,

and Marine Mammal Rescue Assistance Act of 2000’.”

Pub. L. 106-555, title II, Sec. 201, Dec. 21, 2000, 114 Stat. 2767, provided that:

“This title [enacting section 1421f-1 of this title, amending sections 1362, 1421g,

1421h, 1433, and 1434 of this title, enacting provisions set out as notes under sec-

tions917a and 1433 of this title, and amending provisions set out as a note under sec-

tion 1855 of this title] may be cited as the ‘Marine Mammal Rescue Assistance Act

of 2000’.”

Short Title Of 1997 Amendments

Pub.L. 105-42, §1, Aug. 15, 1997, 111 Stat. 1122, provided that: “This Act [enact-

ingsections 962, 1412, 1413, 1414a to 1416 of this title, amending sections 952, 953,

1362, 1371, 1374, 1378, 1380, 1385, 1411,and 1417 of this title, repealing sections

1412to 1416 and 1418 of this title, and enacting provisions set out as notes under this

section and sections 1362 of this title] may be cited as the ‘International Dolphin

Conservation Program Act’.”

Short Title Of 1994 Amendments

Pub.L. 103-238, §1, Apr. 30, 1994, 108 Stat. 532, provided that: “This Act [enact-

ing sections 1386 to 1389 of this title, amending this section and sections 1362,

1371, 1372, 1374, 1375, 1379, 1380, 1382 to 1384, 1407, 1421 to 1421h, and 4107

of this title, repealing sections 1384 to 1407 of this title, and enacting provisions set

out as notes under this section and sections 1362, 1374, 1538, and 1539 of this title]

may be cited as the ‘Marine Mammal Protection Act Amendments of 1994’.”

Short Title Of 1992 Amendments

Pub. L. 102-587, §3001, Nov. 4, 1992, 106 Stat. 5059, provided that: “This title

[subchapter Vof this chapter, amending sections 1362, 1372, 1379, and 1382 of this

title and section 183c of Title 46, Appendix, Shipping, and enacting provisions set

out as notes under sections 1421 an 1421a of this title] may be cited as the ‘Marine

Mammal Health and Stranding Response Act’.”

Pub. L. 102-523, §1, Oct. 26, 1992, 106 Stat. 3425, provided that: “This Act [en-

actingsubchapter IV of this chapter and amending sections 952, 953, 973r, and 1362

ofthis title] may be cited as the ‘International Dolphin Convention Act of 1992’.”

Short Title Of 1988 Amendment

Pub. L. 100-711, Sec. 1, Nov.23, 1988, 102 Stat. 4755, provided: “That this Act

[enacting sections 1383a and 1383b of this title, amending sections 1166, 1371,

1372,1374, 1378 to 1380, 1384, 1402, and 1407 of this title and section 1978 of Title

22, Foreign Relations and Intercourse, enacting provisions set out as a note under

this section, and amending provisions set out as a note under section 1384 of this ti-

tle] may be cited as the ‘Marine Mammal Protection Act Amendments of 1988’.”

Short Title

Section1 of Pub. L. 92-522 provided in part that: “This Act [enacting this chapter]

may be cited as the ‘Marine Mammal Protection Act of 1972’.”

Regulations

Pub. L. 103-238, §15(b), Apr. 30, 1994, 108 Stat. 559, provided that:

“Except as provided otherwise in this Act [see Short Title of 1994 Amendment

note above], or the amendments to the Marine Mammal Protection Act of 1972 (16

U.S.C. 1361 et seq.) made by this Act, the Secretary of Commerce or the Secretary

of the Interior, as appropriate, shall, after notice and opportunity for public com-

ment, promulgate regulations to implement this Act and the amendments made by

this Act by January 1, 1995.”

Purposes And Findings

Pub. L. 105-42, §2, Aug. 15, 1997, 111 Stat.1122, provided that:

“(a) Purposes.—The purposes of this Act are—

“(1) to give effectto the Declaration of Panama, signed October 4, 1995, by the

Governmentsof Belize, Colombia, Costa Rica, Ecuador, France, Honduras, Mex-

ico, Panama, Spain, the United States of America, Vanuatu,and Venezuela, in-

cludingthe establishment of the International Dolphin Conservation Program, re-

lating to the protection of dolphins and other species, and the conservation and

management of tuna in the eastern tropical Pacific Ocean;

“(2) to recognize that nations fishing for tuna in the eastern tropical Pacific

Ocean have achieved significant reductions in dolphin mortality associated with

that fishery; and

“(3) to eliminate the ban on imports of tuna from those nations that are in com-

pliance with the International Dolphin Conservation Program.

“(b) Findings.—The Congress finds that—

“(1) the nations that fish for tuna in the eastern tropical Pacific Ocean have

achieved significant reductions in dolphin mortality associated with the purse

seinefishery from hundreds of thousands annually to fewer than 5,000 annually;

“(2)the provisions of the Marine Mammal Protection Act of 1972 that impose a

banon imports from nations that fish for tuna in theeastern tropical Pacific Ocean

have served as an incentive to reduce dolphin mortalities.

“(3) tuna canners and processors of the United States have led the canning and

processing industry in promoting a dolphin-safe tuna market; and

“(4) 12 signatory nations to the Declaration of Panama, including the United

States, agreed under that Declaration to require that the total annual dolphin mortal-

ity in the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean

notexceed 5,000 animals, with the objective of progressively reducing dolphin mor-

tality to a level approaching zero through the setting of annual limits and with the

goal of eliminating dolphin mortality.”

Relationship Of Marine Mammal Protection Act Amendments Of 1994 To

Other Law

Pub. L. 103-238, §2(b), Apr. 30, 1994, 108 Stat. 532, provided that: “Except as

otherwise expressly provided, nothing in this Act is intended to amend, repeal, or

otherwise affect any other provision of law.”

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MMPA§2 MARINE MAMMAL PROTECTION ACT 16 U.S.C. §1361

Indian TreatyRights; Alaska Native Subsistence

Pub. L. 103-238, §14, Apr. 30, 1994, 108 Stat. 558-59, provided that:

“Nothing in this Act, including any amendments to the Marine Mammal Protec-

tion Act of 1972 made by this Act—

“(1)alters or is intended to alter any treaty between the United States and one or

more Indian tribes; or

“(2) affects or otherwise modifies the provisions of section 101(b) of the Ma-

rine Mammal Protection Act of 1972 (16 U.S.C. 1371(b)), except as specifically

provided in the amendment made by section 4(b) of this Act.”

Study On Effects Of Dolphin Feeding

Pub. L. 102-567, title III, Sec. 306, Oct. 29, 1992, 106 Stat. 4284, directed Secre-

tary of Commerce to conduct a study in the eastern Gulf of Mexico on the effects of

feedingof noncaptive dolphins by human beings, such study to be designed to detect

any behavior or diet modification resulting from this feeding and to identify the ef-

fects, if any,of these modifications on the health and well-being of the dolphins, di-

rected Secretary to consult with National Academy of Sciences and Marine Mam-

mal Commission in design and conduct of the study,and directed Secretary, within

18 months after Oct. 29, 1992, to submit to Congress a report on the results of the

study.

Study On Mortality Of Atlantic Dolphin

Pub. L. 100-711, Sec. 7, Nov. 23, 1988, 102 Stat. 4771, directed Secretary of

Commerce to conduct a study regarding each coast epidemic during 1987 and 1988

which caused substantial mortality within North Atlantic coastal population of At-

lantic bottle-nosed dolphin, such study to examine (1) cause or causes of epidemic,

(2) effect of epidemic on coastal and offshore populations of Atlantic bottle-nosed

dolphin,(3) extent to which pollution may have contributed to epidemic, (4) whether

other species and populations of marine mammals were affected by those factors

whichcontributed to epidemic, and (5) any other matters pertaining to causes and ef-

fects of epidemic, with Secretary to submit on or before Jan. 1, 1989, to Committee

on Commerce, Science, and Transportation of the Senate and Committee on Com-

merce, Science, and Transportation of the Senate and Committee on Merchant Ma-

rineand Fisheries of the House of Representatives a plan for conducting the study.

International Discussion ToAdvance Understanding Of Cetacean Life

Pub. L. 95-426, title VI, Sec. 602, Oct. 7, 1978, 92 Stat. 985, provided that: “It is

the sense of the Congress that the President should convey to all countries having an

interestin cetacean sea life the serious concern of the Congress regarding the contin-

uing 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 ad-

vance general understanding of cetacean life and thereby facilitate an effective

useof the living marine resources of the world which does not jeopardize the natu-

ral balance of the aquatic environment;

“(2) to participate in an exchange of information with the National Marine

Fisheries Service of the United StatesDepartment of Commerce, including coop-

eration 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 ad-

vance 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.”

§1362.[MMPA §3]

Definitions

For the purposes of this chapter—

(1) 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 Ma-

rine Mammals established under subchapter III of this chapter,

determines that a species or population stock is below its opti-

mum sustainable population;

(B) a State, to which authority for the conservation and man-

agement of a species or population stock is transferred under sec-

tion 1379 of this title, determines that such species or stock is be-

low 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 col-

lection 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. 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 acquisi-

tion 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 Is-

lands, the District Court of the United States for the District of Ha-

waii.

(4) The term “humane” in the context of the taking of a marine

mammal means that method of taking which involves the least pos-

sible degree of pain and suffering practicable to the mammal in-

volved.

(5) 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 sub-

ject to a direct ban on importation into the United States pursuant to

section 1371(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, Pinnipedia and Cetacea),

or (B) primarily inhabits the marine environment (such as the polar

bear); and, for the purposes of this chapter, includes any part of any

such marine mammal, including its raw, dressed, or dyed fur or

skin.

(7) The term “marine mammal product” means any item of mer-

chandise which consists, or is composed in whole or in part, of any

marine mammal.

(8) The term “moratorium” means a complete cessation of the

taking of marine mammals and a complete ban on the importation

into the United States of marine mammals and marine mammal

products, except as provided in this chapter.

(9) The term “optimum sustainable population” means, with re-

spect to any population stock, the number of animals which will re-

sult in the maximum productivity of the population or the species,

keeping in mind the carrying capacity of the habitat and the health

of the ecosystem of which they form a constituent element.

(10) The term “person” includes (A) any private person or entity,

and (B) any officer, employee, agent, department, or instrumental-

ity of the Federal Government, of any State or political subdivision

thereof, or of any foreign government.

(11) The term “population stock” or “stock” means a group of

marine mammals of the same species or smaller taxa in a common

spatial arrangement, that interbreed when mature.

(12)(A) Except as provided in subparagraph (B), the term “Sec-

retary” means—

(i) the Secretary of the department in which the National

Oceanic and Atmospheric Administration is operating, as to

all responsibility, authority, funding, and duties under this

chapter with respect to members of the order Cetacea and

members, other than walruses, of the order Pinnipedia, and

(ii) the Secretary of the Interior as to all responsibility,

authority, funding, and duties under this chapter with respect

to all other marine mammals covered by this chapter.

(B) in1section 1387 of this title and subchapter V of this chap-

ter (other than section 1421f-1 of this title) the term “Secretary”

means the Secretary of Commerce.

(13) The term “take” means to harass, hunt, capture, or kill, or at-

tempt to harass, hunt, capture, or kill any marine mammal.

(14) The term “United States” includes the several States, the

District of Columbia, the Commonwealth of Puerto Rico, the Vir-

gin Islands of the United States, American Samoa, Guam, and

Northern Mariana Islands.

(15) The term “waters under the jurisdiction of the United States”

means—

(A) the territorial sea of the United States, and

(B) the waters included within a zone, contiguous to the terri-

torial sea of the United States, of which the inner boundary is a

658

16 U.S.C. §1362 ENVIRONMENTALLAW DESKBOOK MMPA§3

1. So in original. Probably should be capitalized.

line coterminous with the seaward boundary of each coastal

State, and the outer boundary is a line drawn in such a manner

that each point on it is 200 nautical miles from the baseline from

which the territorial sea is measured.

(16) The term “fishery” means—

(A) one or more stocks of fish which can be treated as a unit for

purposes of conservation and management and which are identi-

fied on the basis of geographical, scientific, technical, recrea-

tional, and economic characteristics; and

(B) any fishing for such stocks.

(17) The term “competent regional organization”—

(A) for the tuna fishery in the eastern tropical Pacific Ocean,

means the Inter-American Tropical Tuna Commission; and

(B) in any other case, means an organization consisting of

those nations participating in a tuna fishery, the purpose of which

is the conservation and management of that fishery, and the man-

agement of issues relating to that fishery.

(18)(A) The term “harassment” means any act of pursuit, tor-

ment, or annoyance which—

(i) has the potential to injure a marine mammal or marine

mammal stock in the wild; or

(ii) has the potential to disturb a marine mammal or marine

mammal stock in the wild by causing disruption of behavioral

patterns, including, but not limited to, migration, breathing,

nursing, breeding, feeding, or sheltering.

(B) In the case of a military readiness activity (as defined in

section 315(f) of Public Law 107-314; 16 U.S.C. 703 note) or a

scientific research activity conducted by or on behalf of the Fed-

eral Government consistent with section 1374(c)(3) of this title,

the term “harassment” means—

(i) any act that injures or has the significant potential to in-

jury a marine mammal or marine mammal stock in the wild; or

(ii) any act that disturbs or is likely to disturb a marine mam-

mal or marine mammal stock in the wild by causing disruption

of natural behavioral patterns, including, but not limited to,

migration, surfacing, nursing, breeding, feeding, or sheltering,

to a point where such behavioral patterns are abandoned or sig-

nificantly altered.

(C) The term “Level A harassment” means harassment de-

scribed in subparagraph (A)(i) or, in the case of a military readi-

ness activity or scientific research activity described in subpara-

graph (B), harassment described in subparagraph (B)(i).

(D) The term “Level B harassment” means harassment de-

scribed in subparagraph (A)(ii) or, in the case of a military readi-

ness activity or scientific research activity described in subpara-

graph (B), harassment described in subparagraph (B)(ii).

(19) The term “strategic stock” means a marine mammal stock—

(A) for which the level of direct human-caused mortality ex-

ceeds the potential biological removal level;

(B) which, based on the best available scientific information,

is declining and is likely to be listed as a threatened species under

the Endangered Species Act of 1973 within the foreseeable fu-

ture; or

(C) which is listed as a threatened species or endangered spe-

cies under the Endangered Species Act of 1973 (16 U.S.C. 1531

et seq.), or is designated as depleted under this Act.

(20) The term “potential biological removal level” means the

maximum number of animals, not including natural mortalities,

that may be removed from a marine mammal stock while allowing

that stock to reach or maintain its optimum sustainable population.

The potential biological removal level is the product of the follow-

ing factors:

(A) The minimum population estimate of the stock.

(B) One-half the maximum theoretical or estimated net pro-

ductivity rate of the stock at a small population size.

(C) A recovery factor of between 0.1 and 1.0.

(21) The term “Regional Fishery Management Council” means a

Regional Fishery Management Council established under section

302 of the Magnuson-Stevens Fishery Conservation and Manage-

ment Act.

(22) The term “bona fide research” means scientific research on

marine mammals, the results of which—

(A) likely would be accepted for publication in a referred sci-

entific journal;

(B) are likely to contribute to the basic knowledge of marine

mammal biology or ecology; or

(C) are likely to identify, evaluate, or resolve conservation

problems.

(23) The term “Alaska Native organization” means a group des-

ignated by law or formally chartered which represents or consists of

Indians, Aleuts, or Eskimos residing in Alaska.

(24) The term “take reduction plan” means a plan developed un-

der section 1387 of this title.

(25) The term “take reduction team” means a team established

under section 1387 of this title.

(26) The term “net productivity rate” means the annual per capita

rate of increase in a stock resulting from additions due to reproduc-

tion, less losses due to mortality.

(27) The term “minimum population estimate” means an esti-

mate of the number of animals in a stock that—

(A) is based on the best available scientific information on

abundance, incorporating the precision and variability associ-

ated with such information; and

(B) provides reasonable assurance that the stock size is equal

to or greater than the estimate.

(28) The term “International Dolphin Conservation Program”

means the international program established by the agreement

signed in LaJolla, California, in June, 1992, as formalized, modi-

fied, and enhanced in accordance with the Declaration of Panama.

(29) The term “Declaration of Panama” means the declaration

signed in Panama City, Republic of Panama, on October 4, 1995.

(Pub. L. 92-522, §3, Oct. 21, 1972, 86 Stat. 1028; Pub. L. 93-205, §13(e)(1),

Dec. 28, 1973, 87 Stat. 903; Pub. L. 94-265, title IV,§404(a), Apr. 13, 1976, 90

Stat. 360; Pub. L. 97-58, §1(a), (b)(2), Oct. 9, 1981, 95 Stat. 979; Pub. L.

102-523, §2(C), Oct. 26, 1992, 106 Stat.3432, 3433; Pub. L. 102-582, §401(a),

Nov.2, 1992, 106 Stat. 4909; Pub. L. 102-587, §3004(a), (b), Nov. 4, 1992, 106

Stat.5067; Pub. L. 103-238, §§12, 16(a), 24(a)(2), Apr. 30, 1994, 108 Stat. 557,

559, 565; Pub. L. 104-208, Div. A, title I, §101(a) [title II, §211(b)],Sept. 30,

1996, 110 Stat. 3009-41; Pub. L. 104-297, title IV, §405(b)(2), (3), Oct. 11,

1996,110 Stat. 3621; Pub. L. 105-42, §3, Aug. 15, 1997, 111 Stat. 1123;Pub. L.

106-555, title II, §202(b), Dec. 21, 2000, 114 Stat.2768; Pub. L. 108-136, div.

A, title III, §319(a), Nov. 24, 2003, 117Stat. 1433.)

References In Text

The Endangered Species Act of 1973, referred to in pars. (1)(C) and (19)(B), (C),

isPub. L. 93-205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified gener-

ally to chapter 35 (Sec. 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 Ta-

bles.

Effective Date Of 1997 Amendment

Section 8 of Pub. L. 105-42 provided that:

“(a) Amendments to TakeEffect When IDCP in Force.—Sections 3 through 7

of this Act (except for section 304 of the Marine Mammal Protection Act of 1972 as

added by section 6 of this Act) shall become effective upon—

“(1) certification by the Secretary of Commerce that—

“(A) sufficient funding is available to complete the first year of the study re-

quired under section 304(a) of the Marine Mammal Protection Act of 1972, as

so added; and

“(B) the study has commenced; and

“(2) certification by the Secretary of Stateto Congress that a binding resolution

of the Inter-AmericanTropical Tuna Commission or other legally binding instru-

ment establishing the International Dolphin Conservation Program has been

adopted and is in force.

“(b) Special Effective Date.—Notwithstanding subsection (a), the Secretary of

Commerce may issue regulations under—

“(1)subsection (f)(2) of the Dolphin Protection Consumer Information Act (16

U.S.C. 1385(f)(2)), as added by section 5(b) of this Act;

“(2) section 303(a) of the Marine Mammal Protection Act of 1972 (16 U.S.C.

1413(a)), as added by section 6(c) of this Act,

at any time after the date of enactment of this Act.”

[The Secretary of Commerce made the certification referred to in section 8(a)(1)

ofPub. L. 105-42, set out above, on July 27, 1998, and the Secretary of Stat made the

certification referred to in section 8(a)(2) of Pub. L. 105-42 on Mar. 3, 1999.]

Effective Date Of 1996 Amendment

Section 101(a) [title II, Sec. 211(b)]of div. A of Pub. L. 104-208 provided that the

amendment made by that section is effective 15 days after Oct. 11, 1996.

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MMPA§3 MARINE MAMMAL PROTECTION ACT 16 U.S.C. §1362