Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. §§ 1361 et seq.) established a moratorium on the “taking” of marine mammals in waters or on lands under U.S. jurisdiction. The MMPA defines taking as “harassing, hunting, capturing, killing, or attempting to harass, hunt, capture or kill any marine mammal” (16 U.S.C. 1312[13]). It also prohibits the importation into the U.S. of any marine mammal or parts or products thereof, unless it is for the purpose of scientific research or public display, as permitted by the Secretary of the Interior or the Secretary of Commerce.

In the 1994 amendments to the MMPA, two levels of “harassment” were defined. Harassment is defined as act of pursuit, torment, or annoyance that has the potential to injure a marine mammal or marine mammal stock in the wild (Level A), or any act that has the potential to disturb a marine mammal or marine mammal stock in the wild by disrupting behavioral patterns, including, but not limited to migration, breathing, nursing, breeding, feeding, or sheltering (Level B). In 2003, the National Defense Authorization Act for Fiscal Year 2004 altered the MMPA’s definition of Level A and B harassment in regards to military readiness and scientific research activities conducted by or on behalf of the Federal Government. Under these changes, Level A harassment was redefined as any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild. Level B harassment was redefined as any act that disturbs or is likely to disturb a marine mammal 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 significantly altered.

Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce, upon request, to authorize the unintentional taking of small numbers of marine mammals incidental to activities (other than commercial fishing) when, after notice and opportunity for public comment, the Secretary: (1) determines that total takes during a five-year (or less) period have a negligible impact on the affected species or stock, and (2) prescribes necessary regulations that detail methods of taking and monitoring and requirements for reporting. The MMPA provides that the moratorium on takes may be waived when the affected species or population stock is at its optimum sustainable population and will not be disadvantaged by the authorized takes (i.e., be reduced below its maximum net productivity level). Section 101(a)(5)(A) also specifies that the Secretary has the right to deny permission to take marine mammals if, after notice and opportunity for public comment, the Secretary finds: (1) that applicable regulations regarding taking, monitoring, and reporting are not being followed, or (2) that takes are, or may be, having more than a negligible impact on the affected species or stock.