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22 Ocean L. Memo 1 (1982)

handle is hein.journals/ocoaslme22 and id is 1 raw text is: Ocean and Coastal Law Center * School of Law * University of Oregon * Eaetie- 97403 Ocen Law - Issue 22 THE 1981 AMENDMENTS TO THE MARINE MAMMAL PROTECTION ACT July 1982 In 1981, Congress passed the first extensive amendments to the Marine Mammal Protection Act of 1972 (MMPA or Act). The amendments retained the primary purpose of the MMPA-to restore and main- tain marine mammal populations-but revised defini- tions and administrative procedures that were unclear and cumbersome. This Ocean Law Memo discusses the amendments and how they affect problems which had arisen under the MMPA. Problems not resolved by the amendments also will be discussed. THE MARINE MAMMAL PROTECTION ACT OF 1972 The MMPA was enacted to protect marine mammals from the adverse effects of human activi- ties. Congress passed the Act in response to a public concern for the slaughter of baby harp seals in Canada, predictions of the extinction of certain whale species, and the incidental killing of porpoises by the United States tuna purse seine fleet in the Eastern Tropical Pacific. Congress sought to protect and develop the marine mammal species and population stocks to satis- fy our aesthetic, recreational, economic, and ecolog- ical needs. Prior to the MMPA, only international agreements, the Endangered Species Conservation Act of 1969 (amended in 1973), and state law protected marine mammals. Management under these laws was generally ineffective. Under the MMPA, principal administrative re- sponsibility was divided between the Department of Commerce and Department of the Interior. The Sec- retary of Commerce was given jurisdiction over whales, porpoises, seals, and sea lions. The National Oceanic and Atmospheric Administration (NOAA), through the National Marine Fisheries Service (NMFS), administers Commerce's program. The Secretary of the Interior, through the Fish and Wildlife Service (FWS), has responsibility for walruses, polar bears, sea otters, marine otters, manatees, and dugongs. The Act placed a moratorium on the taking and irmporting of marine mammals anG marine mammal products. Taking was broadly defined to include all activities from attempting to harass to killing. Taking was prohibited in United States lands and waters (orig- inally twelve miles from shore, but expanded to 200 miles in 1977) and on the high seas by U.S. nationals. Exemptions from the moratorium included taking for scientific research or public display purposes and dur- ing commercial fishing operations, if a permit was ob- tained from the appropriate Secretary; taking by North Pacific natives (Indians, Aleuts, and Eskimos) for subsistence purposes, native handicrafts, and clothing; taking allowed by international agreement; and a general waiver provision for use by the Secretary. Prior to waiving the moratorium, the Secretary was required to consider the population status of the species and stocks potentially affected, and to be as- sured that the taking would be consistent with the Act's protection and conservation purposes. The Sec- retary was then required to promulgate detailed regu- lations to ensure that the taking was not to the disad- vantage of the species or stock and that the population would not diminish below its optimum sustainable pop- ulation (OSP) or cease to function significantly in the ecosystem. Permits consistent with the regulations could then be issued. The Secretary had to satisfy de- tailed procedural safeguards when granting a waiver, prescribing regulations, or issuing permits. State management of marine mammals was pre- empted by the MMPA. A provision, however, allowed the return of management to the states if specified substantive and procedural criteria were met. Other- wise, the states were limited to helping the federal agencies enforce the Act. Civil and criminal penalties were provided for violations of the MMPA. Seizure and forfeiture were also made available to the enforcing agencies. Other provisions of the MMPA included an international pro- gram developed in cooperation with the Secretary of State, research programs and grants, establishment of a Marine Mammal Commission to review matters con- cerning marine mammals and to make recommenda- tions, reporting provisions, and appropriation authori- zations. PROBLEMS UNDER THE MMPA One problem under the Act was that optimum sustainable population (OSP) and optimum carrying capacity (OCC), the Act's central population mea- surerieit terms, nua circular ana unclear aerinitions. Neither term had been used in traditional wildlife management and the legal application of OSP was un- certain. OSP and OCC had been treated as identical by the administrative agencies. A second ambiguity in the Act was that a Sec- retary could find a species or stock depleted, and thus only subject to being taken for scientific purposes, if one of three conditions were met: (1) the species or population stock had declined to G significant degree ulatrlbuted by~ OSU Extension Service Sea Grant Marine Advisory Program. corva11i~ fl1~ Q7~~1 I I Distributed by: OSU Extension Service' Sea Grant Marine Advisory Program Corvallis OR 97111

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