A Guide to the Marine Mammal Protection Act Requirements, Process, and Compliance
The Marine Mammal Protection Act (MMPA) is a crucial piece of legislation that safeguards the diverse array of marine mammals found in U.S. waters and beyond. This comprehensive guide delves into the intricacies of the MMPA, providing a clear understanding of its scope, regulatory standards, and compliance requirements. Readers will learn about the Act's prohibitions on taking and importing marine mammals, the process for obtaining incidental take authorizations, and the monitoring and reporting obligations for regulated entities. The guide also explores the enforcement actions and penalties for violations, as well as the compliance assistance and incentive programs available to support adherence to the MMPA. By the end of this guide, readers will have a solid grasp of the MMPA's role in protecting marine mammals and their ecosystems, and be well-equipped to navigate the complexities of compliance in the context of development projects.
GENERAL INFORMATION
Key Details of the Marine Mammal Protection Act
Issuing Agency: National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), and U.S. Fish and Wildlife Service (USFWS) Year Established: 1972 Last Amended: 2018 Statutory Authority: Marine Mammal Protection Act Primary Legal Reference: Title 50, Chapter I, Subchapter C, Parts 18 and 216 of the Code of Federal Regulations
What is the Marine Mammal Protection Act?
The Marine Mammal Protection Act (MMPA) is a comprehensive federal law that prohibits the "take" of marine mammals in U.S. waters and by U.S. citizens on the high seas. The MMPA operates within the broader framework of U.S. environmental law, working in concert with other regulations such as the Endangered Species Act and the National Environmental Policy Act to protect marine ecosystems and conserve marine mammal populations.
Enacted in 1972, the MMPA was developed in response to concerns that certain species and populations of marine mammals were in danger of extinction or depletion due to human activities. The primary goal of the MMPA is to maintain the health and stability of marine mammal species and populations by prohibiting their "take," which includes harassing, hunting, capturing, or killing, or attempting to do so.1
The MMPA is jointly administered by the National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service (USFWS). NMFS is responsible for the protection of whales, dolphins, porpoises, seals, and sea lions, while USFWS is responsible for the protection of walruses, manatees, otters, and polar bears.2
Since its enactment, the MMPA has been amended several times, with the most recent significant amendment occurring in 2018. These amendments have strengthened the regulation's conservation measures and updated its approach based on new scientific understanding and evolving threats to marine mammals.
The MMPA achieves its conservation goals through a variety of mechanisms, including:
- Prohibiting the "take" of marine mammals without a permit or exemption
- Establishing a moratorium on the import, export, and sale of marine mammal parts and products
- Requiring the development of stock assessments and monitoring of marine mammal populations
- Providing for the development of conservation plans for depleted species
- Establishing a program for responding to and investigating marine mammal strandings
The MMPA applies to all marine mammals within U.S. jurisdiction, which includes both state and federal waters, as well as to U.S. citizens on the high seas. Certain exemptions exist for activities such as scientific research, public display, and incidental take in commercial fisheries, provided specific requirements are met and appropriate permits are obtained.3
What does the Marine Mammal Protection Act protect?
The Marine Mammal Protection Act protects all marine mammal species and populations within U.S. jurisdiction from "take," which includes harassing, hunting, capturing, or killing, or attempting to do so. This protection extends to a diverse array of marine mammals, including whales, dolphins, porpoises, seals, sea lions, walruses, manatees, otters, and polar bears.
REGULATORY SCOPE & JURISDICTION
Regulated Activities, Entities & Prohibited Substances
The Marine Mammal Protection Act (MMPA) is a comprehensive federal law that regulates activities involving marine mammals in U.S. waters and by U.S. citizens on the high seas. The MMPA applies to a wide range of industries and activities that have the potential to impact marine mammals, including oil and gas exploration, commercial fishing, coastal development, and scientific research. The Act prohibits the "take" of marine mammals, which is defined as harassing, hunting, capturing, or killing, or attempting to harass, hunt, capture, or kill any marine mammal.[^100]
Under the MMPA, the following activities and substances are prohibited:[^101]
Taking marine mammals without a permit: It is illegal to take any marine mammal without authorization from the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS).
Importing marine mammals or their products: The MMPA prohibits the import of marine mammals and their products, such as meat, oil, and fur, into the United States without a permit.
Using certain fishing gear: The use of fishing gear that can harm or kill marine mammals, such as gillnets and drift nets, is restricted or prohibited in certain areas.
Discharging pollutants: The Act prohibits the discharge of pollutants, such as oil, chemicals, and waste, into marine mammal habitat.
These prohibitions are designed to protect marine mammals from human activities that can cause injury, death, or significant disruption to their natural behaviors and habitats. By regulating these activities and substances, the MMPA aims to maintain the health and stability of marine mammal populations and the ecosystems they depend on.
Key Sections of the Marine Mammal Protection Act
Section 101 - Moratorium and Exceptions
- Purpose: Establishes a moratorium on the taking and importation of marine mammals and marine mammal products, with certain exceptions.[^102]
- Key requirements and exceptions: The moratorium applies to all persons subject to U.S. jurisdiction, but allows for exceptions for scientific research, public display, enhancing the survival or recovery of a species, and incidental take in commercial fisheries.
- Implications for target audience: Developers and consultants must be aware of the moratorium and its exceptions to ensure their projects do not violate the MMPA. If a project requires the taking of marine mammals, the appropriate permits must be obtained.
Section 102 - Prohibitions
- Purpose: Outlines the specific prohibitions under the MMPA, including the taking, import, export, and sale of marine mammals and their products.[^103]
- Key prohibitions: Prohibits the taking of marine mammals without a permit, the import and export of marine mammals and their products, and the use of certain fishing gear that can harm marine mammals.
- Implications for target audience: Developers and consultants must ensure their projects and activities do not violate these prohibitions. Compliance strategies may include obtaining necessary permits, using marine mammal-friendly fishing gear, and implementing measures to avoid or minimize impacts on marine mammals.
Section 104 - Permits
- Purpose: Establishes the process for obtaining permits for the taking or importation of marine mammals for specific purposes, such as scientific research, public display, and enhancing the survival or recovery of a species.[^104]
- Key requirements: Permit applicants must demonstrate that the taking or importation will not have a significant adverse impact on the species or stock, and that the activity is consistent with the purposes of the MMPA.
- Implications for target audience: If a project requires the taking or importation of marine mammals, developers and consultants must follow the permit application process outlined in this section. This may involve gathering necessary scientific data, developing mitigation measures, and demonstrating compliance with MMPA requirements.
Section 118 - Taking of Marine Mammals Incidental to Commercial Fishing Operations
- Purpose: Addresses the incidental take of marine mammals in commercial fisheries and establishes the goal of reducing incidental mortality and serious injury to insignificant levels.[^105]
- Key requirements: Commercial fishing operations must report all incidental mortality and injury of marine mammals, and take steps to reduce incidental take through gear modifications, time/area closures, and other measures.
- Implications for target audience: Developers and consultants involved in projects that include commercial fishing operations must be aware of the requirements for reporting and reducing incidental take of marine mammals. Compliance strategies may include implementing gear modifications, observer programs, and other measures to minimize impacts on marine mammals.
Section 120 - Pacific Coast Task Force; Gulf of Maine
- Purpose: Establishes regional task forces to address the incidental take of marine mammals in specific geographic areas, such as the Pacific Coast and Gulf of Maine.[^106]
- Key requirements: Task forces are responsible for developing and implementing take reduction plans to reduce incidental mortality and serious injury of marine mammals in these regions.
- Implications for target audience: Developers and consultants working on projects in these specific geographic areas must be aware of the regional task forces and their take reduction plans. Compliance may involve participating in the development and implementation of these plans, and adhering to any additional regional requirements or best practices.
Relationship to Other Regulations & Agencies
The Marine Mammal Protection Act interacts with several other federal laws and agencies that regulate activities affecting marine resources and the environment. Some of the key relationships include:
Endangered Species Act (ESA): The ESA provides additional protections for marine mammal species that are listed as endangered or threatened. The NMFS and USFWS share responsibility for implementing both the MMPA and the ESA for marine mammals.
National Environmental Policy Act (NEPA): Federal agencies must comply with NEPA when issuing permits or authorizations under the MMPA. This involves assessing the environmental impacts of the proposed activity and considering alternatives to minimize adverse effects.
Magnuson-Stevens Fishery Conservation and Management Act (MSA): The MSA regulates commercial fishing activities in U.S. waters and requires fishery management plans to minimize bycatch of marine mammals. The NMFS is responsible for implementing both the MMPA and the MSA.
Outer Continental Shelf Lands Act (OCSLA): The OCSLA regulates oil and gas exploration and development on the Outer Continental Shelf. Activities permitted under the OCSLA must comply with the MMPA's requirements for protecting marine mammals.
The primary agencies responsible for implementing and enforcing the MMPA are:
National Marine Fisheries Service (NMFS): The NMFS, a division of the National Oceanic and Atmospheric Administration (NOAA), is responsible for the conservation and management of whales, dolphins, porpoises, seals, and sea lions.
U.S. Fish and Wildlife Service (USFWS): The USFWS is responsible for the conservation and management of polar bears, walruses, sea otters, manatees, and dugongs.
COMPLIANCE REQUIREMENTS & STANDARDS
Regulatory Standards & Limitations
The Marine Mammal Protection Act (MMPA) and its implementing regulations establish various standards and limitations to protect marine mammals from adverse impacts caused by human activities. These standards include:
Moratorium on Taking and Importing: The MMPA imposes a general moratorium on the taking and importation of marine mammals and their products, with certain exceptions for permitted activities4.
Incidental Take Authorizations: Regulated entities may apply for incidental take authorizations, which allow for the unintentional taking of small numbers of marine mammals during otherwise lawful activities, provided that the taking will have a negligible impact on the affected species or stock5.
Harassment Prohibition: The MMPA prohibits the harassment of marine mammals, which is defined as any act of pursuit, torment, or annoyance that has the potential to injure a marine mammal or disrupt its behavioral patterns6.
Vessel Speed Restrictions: In certain areas, such as those designated as critical habitat for endangered marine mammals, the MMPA may require vessels to maintain a minimum distance from marine mammals or to adhere to speed restrictions to reduce the risk of collisions7.
Acoustic Thresholds: The National Marine Fisheries Service (NMFS) has established acoustic thresholds for underwater sound levels that may cause injury or behavioral disruption to marine mammals8. Regulated entities must ensure that their activities do not exceed these thresholds.
These standards are implemented through a combination of permits, authorizations, and monitoring and reporting requirements. The NMFS and the U.S. Fish and Wildlife Service (USFWS) are responsible for enforcing these standards and may take administrative, civil, or criminal action against entities that violate the MMPA.
Monitoring, Reporting & Recordkeeping Obligations
Under the MMPA, regulated entities are subject to various monitoring, reporting, and recordkeeping requirements to ensure compliance and transparency. These obligations may include:
Monitoring Plans: Entities obtaining incidental take authorizations must develop and implement monitoring plans to assess the impact of their activities on marine mammals9. These plans may require the use of trained observers, acoustic monitoring, or other methods to detect the presence and behavior of marine mammals.
Reporting Requirements: Regulated entities must submit regular reports to the NMFS or USFWS detailing their activities, any incidental takes of marine mammals, and the results of their monitoring efforts10. These reports may be required on an annual or more frequent basis, depending on the nature of the activity and the terms of the authorization.
Recordkeeping: Entities must maintain accurate records of their activities, including data on marine mammal sightings, behavioral observations, and any incidental takes11. These records must be retained for a specified period, typically at least five years, and made available for inspection by the regulatory agencies upon request.
Notification of Dead or Injured Marine Mammals: If a regulated entity discovers a dead or injured marine mammal during the course of their activities, they must promptly notify the appropriate regional office of the NMFS or USFWS and follow any instructions provided by the agency12.
These monitoring, reporting, and recordkeeping obligations are essential for ensuring compliance with the MMPA and providing the regulatory agencies with the information needed to assess the impact of human activities on marine mammals. Failure to comply with these requirements may result in enforcement action and penalties.
Enforcement Actions & Penalties
The NMFS and USFWS are responsible for enforcing compliance with the MMPA through inspections, audits, and investigations. These enforcement actions may include:
Type of Inspection | Description | Frequency |
---|---|---|
Routine Inspections | Regular, scheduled inspections of facilities and activities covered by the MMPA | Annually or more frequently, depending on the type of activity and compliance history |
Targeted Inspections | Inspections focused on specific entities or activities based on information suggesting potential non-compliance | As needed, based on specific information or complaints |
Complaint-Driven Inspections | Inspections conducted in response to complaints from the public or other sources alleging violations of the MMPA | As needed, based on the nature and credibility of the complaint |
During inspections, regulated entities are required to provide access to their facilities, records, and personnel, and to cooperate with the inspectors. Entities have the right to be present during inspections and to receive copies of any inspection reports13.
Violations of the MMPA may result in various penalties, depending on the nature and severity of the offense:
Type of Penalty | Description | Examples of Violations |
---|---|---|
Administrative Penalties | Fines or permit sanctions imposed by the regulatory agency | Failure to obtain required permits, submit reports, or maintain records |
Civil Fines | Monetary fines imposed through civil court proceedings | Unauthorized taking of marine mammals, exceeding permitted take limits, or causing harm to marine mammals through negligent conduct |
Criminal Charges | Imprisonment and fines imposed through criminal court proceedings | Knowingly and willfully violating the MMPA, falsifying records, or obstructing enforcement actions |
The severity of the penalty will depend on factors such as the gravity of the violation, the extent of harm to marine mammals, the violator's compliance history, and the economic benefit derived from the violation14.
Compliance Assistance & Regulatory Incentives
The NMFS and USFWS offer various programs and resources to help entities understand and comply with the MMPA:
Technical Assistance: The agencies provide guidance documents, FAQs, and other resources to help regulated entities interpret and meet the requirements of the MMPA15.
Training and Workshops: The NMFS and USFWS offer training sessions and workshops to educate regulated entities on the MMPA's requirements, best practices for monitoring and mitigating impacts on marine mammals, and strategies for ensuring compliance16. These events may be held in person or online.
Voluntary Conservation Partnerships: The NMFS administers the Species Recovery Grants to Tribes program, which provides funding to federally recognized tribes for conservation projects that contribute to the recovery of endangered or threatened marine mammal species17. Tribes may use these grants to develop and implement conservation plans, monitor species populations, or engage in other activities that promote the recovery of listed species.
Streamlined Permitting: In some cases, the NMFS may offer streamlined permitting processes for entities that commit to implementing best practices or utilizing environmentally friendly technologies that go beyond the minimum regulatory requirements18. These streamlined processes may reduce the time and cost associated with obtaining permits under the MMPA.
Entities interested in these compliance assistance and incentive programs should visit the NMFS and USFWS websites or contact the appropriate regional office for more information on eligibility criteria, application processes, and potential benefits.
ADDITIONAL RESOURCES
Regulatory History & Upcoming Changes
The Marine Mammal Protection Act (MMPA) was enacted in 1972 to protect marine mammals and their ecosystems. The Act was passed in response to concerns about the decline of certain marine mammal populations due to human activities, such as hunting, fishing, and habitat destruction.19
Since its enactment, the MMPA has undergone several amendments to strengthen its provisions and address emerging threats to marine mammals:
1981 Amendments: These amendments allowed for the incidental take of marine mammals during commercial fishing operations, subject to certain conditions and permitting requirements.20
1988 Amendments: These amendments established a moratorium on the taking of marine mammals, with exceptions for scientific research, public display, and incidental takes during commercial fishing operations.21
1994 Amendments: These amendments streamlined the permitting process for scientific research and public display, and required the development of stock assessments for marine mammal populations.22
2004 Amendments: These amendments provided for the co-management of marine mammal populations by the federal government and Alaska Native organizations.23
As of 2021, there are no major proposed rules, regulatory changes, or pending legislation related to the MMPA. However, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) continue to review and update their implementing regulations and guidance documents as needed to ensure the effective conservation and management of marine mammal populations.24
To stay informed about any potential changes to the MMPA or its implementing regulations, interested parties can:
- Monitor the Federal Register for proposed rules and notices related to the MMPA.
- Subscribe to email updates or newsletters from NMFS, USFWS, and other relevant agencies or organizations.
- Attend public meetings, workshops, or webinars hosted by the agencies to discuss marine mammal conservation and management issues.
Additional Resources
- Full text of the Marine Mammal Protection Act, as amended: https://www.govinfo.gov/app/details/USCODE-2018-title16/USCODE-2018-title16-chap31 25
REFERENCES
Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1421h (1972). https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act ↩
50 C.F.R. § 216.3 (2021). https://www.ecfr.gov/current/title-50/chapter-II/subchapter-C/part-216/subpart-A/section-216.3 ↩
50 C.F.R. § 216.11-48 (2021). https://www.ecfr.gov/current/title-50/chapter-II/subchapter-C/part-216 ↩
16 U.S.C. § 1371(a) ↩
50 C.F.R. § 216.104 ↩
16 U.S.C. § 1362(18) ↩
50 C.F.R. § 224.105 ↩
National Marine Fisheries Service. (2018). 2018 Revision to: Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0). NOAA Technical Memorandum NMFS-OPR-59. https://www.fisheries.noaa.gov/resource/document/technical-guidance-assessing-effects-anthropogenic-sound-marine-mammal-hearing ↩
50 C.F.R. § 216.104(a)(13) ↩
50 C.F.R. § 216.105 ↩
50 C.F.R. § 216.104(a)(14) ↩
50 C.F.R. § 216.106 ↩
50 C.F.R. § 216.17 ↩
16 U.S.C. § 1375 ↩
National Marine Fisheries Service. (n.d.). Marine Mammal Protection Act Policies, Guidance, and Regulations. ↩
National Marine Fisheries Service. (n.d.). Marine Mammal Protection Act Training and Workshops. ↩
National Marine Fisheries Service. (n.d.). Species Recovery Grants to Tribes. https://www.fisheries.noaa.gov/grant/species-recovery-grants-tribes ↩
National Marine Fisheries Service. (n.d.). Incidental Take Authorizations under the Marine Mammal Protection Act. https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act ↩
Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1423h (2018). https://www.govinfo.gov/content/pkg/USCODE-2018-title16/pdf/USCODE-2018-title16-chap31.pdf ↩
Marine Mammal Protection Act Amendments of 1981, Pub. L. No. 97-58, 95 Stat. 979 (1981). ↩
Marine Mammal Protection Act Amendments of 1988, Pub. L. No. 100-711, 102 Stat. 4755 (1988). ↩
Marine Mammal Protection Act Amendments of 1994, Pub. L. No. 103-238, 108 Stat. 532 (1994). ↩
Marine Mammal Protection Act Amendments of 2004, Pub. L. No. 108-136, 117 Stat. 1433 (2004). ↩
National Marine Fisheries Service, "Laws & Policies: Marine Mammal Protection Act," ↩
Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1423h (2018). https://www.govinfo.gov/content/pkg/USCODE-2018-title16/pdf/USCODE-2018-title16-chap31.pdf ↩
A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the MMPA. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.