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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