You have asked me to evaluate the following statement reportedly made by a United States representative at an international meeting recently:
«The MMPA [Marine Mammal Protection Act] has never prohibited imports of marine mammals. It has simply implemented a moratorium on the import of mammals that were pregnant, nursing, or less than six months old at the time of taking, while requiring that the stock in question has to be within its optimum sustainable population range. If these conditions are met, the moratorium is waived.»
(Summary of discussion; AEPS Taks Force on Sustainable Development and Utilization, November 27, 1995)
As reported, this statement is not true. It is inaccurate and extremely misleading. It is not even substantially true.
To reduce it to its simplest, the MMPA has a permanent prohibition on all taking and importation of marine mammals, subject to several exceptions. None of the exceptions [unless under permit for scientific research or enhancement of the survival of the population] can allow the importation of marine mammals which were pregnant, nursing, or less than eight months old at the time of taking.
The exceptions are extremely limited. Some are provided directly in the law and others can be created using a «waiver» process. But the waiver process is so cumbersome and complex that it is virtually unusable.
The MMPA is one of the most confusing and complex laws ever adopted by the United States. Many of its key provisions have language that is contradictory. Some of this difficulty in wording is the result of a political «accident» that combined two concepts that are normally mutually exclusive -- a moratorium and a set of prohibitions. In the balance of this report, I will explain what the MMPA actually says, how it got to be that way, what has happened with previous attempts to obtain exceptions (by waiver or otherwise), and the process that must be followed to get a waiver.
My familiarity with this law goes beyond the normal familiarity of any American lawyer who is capable of researching and analyzing a law within our legal system. For nearly thirty years my legal practice has dealt exclusively with living natural resource law. In the early 1970”s I was involved in the drafting of the MMPA and I wrote the first set of regulations to implement it, both in my capacity as an attorney for the National Marine Fisheries Service. Since then, both in government and later in private practice, I have had occasion to interpret and analyze the MMPA from time to time for various clients.
In order to understand the MMPA, it is useful to spend a moment discussing a typical American natural resource law. Most of our laws in this field apply to a given species or groups of species. They contain a broad prohibition that appears to absolutely forbid various activities, such as import, export, taking, and interstate and foreign commerce with members of the protected species or group of species. Then there are a series of exceptions. Some of these are written directly into the law, such as a «grandfather’s» exemption for items possessed before the law came into effect, while others are allowed by permit. Generally, there is a broad description of the various purposes for which permits can be issued and the administering agency (such as the National Marine Fisheries Service) is given the discretion as to whether or not to issue a given permit.
The MMPA has a similar scheme, but several things are notably different. First, a «moratorium» is added. Second, the criteria for developing exceptions to the moratorium are difficult to satisfy. Third, the procedures required to do so are complex and cumbersome.
The practical result is that except for the specific kinds of exception written into the law itself, there has virtually never been a «waiver» of the moratorium. In fact I found evidence of only one waiver, and that was later overturned by a court.
In our system, a law must be considered by both chambers of the Congress -- the House of Representatives and the Senate. The process begins with the introduction of a bill in one chamber or the other. The bill is assigned to a committee. Once it has passed the committee, it goes to the floor of the full chamber for approval. Once both chambers have passed the bill, it goes to the President for signature, at which time it becomes law.
Sometimes, the two chambers disagree and pass different versions of the bill. They resolve their differences through a Conference Committee, after which the compromise version of the bill goes back to both chambers for final passage. This is what happened with the MMPA and the form of the compromise explains some of the difficulties in interpreting the MMPA.
The MMPA began as bill number 10420 in the House of Representatives. At the committee level in the House there was an attempt to insert a two-year moratorium on all takings and importation. That failed, but when the full House passed the bill a five-year moratorium was inserted by amendment from the floor. The moratorium covered any taking or importing of marine mammals, with a few exceptions for scientific research, incidental taking by commercial fisheries, and the harvest of fur seals in Alaska. Thus the scheme of the bill at that point was a five-year period with virtually no taking or importing allowed, followed by a period during which there would be broader taking and importing allowed under general rules prescribing appropriate limitations, and then only by specific permits issued under those same rules.
When the bill went to the Senate, they modified it to make the moratorium permanent. The report of the Conference Committee that was convened to work out the differences between the House and Senate versions explained the final result:
The Senate amendment provided for a permanent moratorium, except for scientific research and commercial fishing, and added a provision that allows the Secretary [of Commerce or the Interior, depending on the species involved] to waive the moratorium.... The effect of the Senate amendment is to allow the Secretary to make a determination, species by species, that a waiver is appropriate; once that determination has been made, he would then be in a position to set general regulations on the taking of mammals, subject to the protective devised incorporated into both the House bill and the Senate amendment, involving public review and participation, before any permits might be issued. The Conference substitute adopts the Senate approach. (House Conference Report 92-1488)
The compromise bill, as described above, was passed by both chambers and was signed into law by the President in October, 1972. Although the MMPA has gone through several major amendments (1981, 1984, 1988, 1994) the basic scheme of the law remains unchanged.
A good overall description of the MMPA is provided in the Senate Report that accompanied the bill to amend the Act in 1994. The Report says:
The ... MMPA was enacted in response to increasing popular sentiment and growing concern regarding the welfare of marine mammals. The MMPA recognizes that marine mammals have an important role in marine ecosystems and that they are significant recreational, aesthetic, and economic resources....
The MMPA establishes a comprehensive Federal program to conserve marine mammals, preempting state management authority. The central feature of the Federal program is a moratorium on the taking of all marine mammals .... In addition, imports of marine mammals ... are banned. ...
[T]he moratorium on the taking or importation of marine mammals may be waived or does not apply under certain conditions. Waiver of the moratorium is most commonly achieved through the issuance of a permit. The MMPA provides for the following exceptions:
(1) the taking or importation of marine mammals for public display and for scientific research;
(2) the incidental taking of marine mammals in the course of commercial fishing operations; (3) the incidental taking of marine mammals during activities such as oil and gas exploration, if the taking is determined to have a negligible impact on the species; and
(4) the MMPA does not apply to takings by Alaskan Natives, provided that the species are taken for subsistence purposes.In most instances, the MMPA relies upon the condition of a marine mammal population to determine whether such exceptions should be made. A stated goal of the MMPA is to maintain marine mammals at optimum sustainable population (OSP) levels. Although not clearly defined in the MMPA, a species or stock is usually considered to be at the OSP level if its numbers are at least 60 percent of historic or unexploited population levels.
(Senate Report No. 103-220, 1994).
These are the specific requirements of the MMPA. For ease of reference and consistency, all references to section numbers of the MMPA are to the codified version in Title 16 of the United States Code:
* A permanent moratorium is declared on all taking and importation of marine mammals (16 U.S.C. 1371); exceptions are allowed --
(1) under permits for: scientific research, public display, enhancement of the survival of marine mammal populations, polar bear hunting trophies imported from Canada,
(2) incidental to commercial fishing, under carefully prescribed circumstances,
(3) pursuant to a waiver of the moratorium, or
(4) by Alaskan natives for subsistence or handicraft purposes
* - The moratorium is defined as «a complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals ... except as provided by this chapter.» (16 USC 1362)
* - A waiver of the moratorium can be granted only in conjunction with the development of regulations which set limits on the taking or importation, and then only by specific permits issued under those regulations (16 USC 1371(a)(3))
- the decision on the granting of the waiver and the approval of the substance of the regulations setting the limitations is accomplished at the same time
- the waiver decision and the approval of the regulations can only be made after a public hearing [Note: the public hearing is in effect a detailed «trial» of the waiver decision and the regulations; see the final section of this paper for a description.]
* - Prohibitions are declared on the taking or importation of marine mammals (16 U.S.C. 1372(a)), subject to the exceptions in Section 1371 and a few other minor instances (such as taking by state officials when management authority has been returned to a state);
[Note: this prohibition is the source of much confusion. Since the moratorium is defined as a total prohibition on all taking and importation, it is logically unnecessary, and legally confusing, to have an additional set of prohibitions; the best explanation for this is that it is a drafting error caused by the late addition of a permanent moratorium; in the House version of the MMPA, it would have made sense to have a temporary moratorium, with a virtually complete set of prohibitions, followed by a detailed set of prohibitions that applied once the moratorium expired; this was the rationale arrived at by the National Marine Fisheries Service when it drafted the first set of implementing regulations, but because the permanent moratorium as well as the set of prohibitions both existed, the regulations attempted to merge them as best they could.]
* - A further prohibition is declared on the importation of any marine mammal which is pregnant at the time of taking, was nursing or less than eight months old at the time of taking, was taken from a population which had been declared «depleted» under the MMPA, or was taken in a manner deemed inhumane [by regulation] (16 USC 1372(b)); the only exception is under a permit for scientific research or to enhance the survival of the population;
* - state laws are pre-empted by the MMPA, but states can regain their jurisdiction through a special process similar to a waiver of the moratorium (16 USC 1379);
General Discussion of Previous Attempts to Obtain Exemptions
In trying to evaluate the truthfulness or accuracy of the statement by the American representative, it is useful to look at the history of attempts to secure exceptions to the moratorium. Quite a different picture develops when you consider this history as compared to simply reading the words of the MMPA.
The words imply, as did the statement of the American representative, that it is feasible to obtain an exception. But my research turned up only one actual waiver of the MMPA -- for the importation of South African fur seal skins for processing in the U.S. That waiver was overturned by the courts.
One of the other exceptions to the MMPA relates to the return of management authority to the states, in a process very similar to the waiver process. No state has ever been successful in getting its management authority returned.
Third, I know from personal experience that three separate attempts over a period of ten years to get a waiver for the importation of polar bear hunting trophies from Canada were unsuccessful and that an amendment to the law itself was finally obtained to accomplish that purpose. Even now, two years after the amendment, no permits have been issued yet for the actual imports.
Thus the actuality is that it is extremely difficult to get exceptions to the MMPA. I will detail these matters below.
A 1993 study by the Congressional Research Service, an office of the U.S. Congress, which dealt with the issues to be faced by the Congress in revising the MMPA, made the following comment about waivers of the moratorium:
Section 101(a)(3)(A) provides the Secretaries of Commerce and the Interior with discretion to waive provisions of the MMPA where such a waiver would be in accordance with sound conservation principles. One respondent suggested that several marine mammal issues in Alaska ... might be addressed appropriately by such a «Secretarial waiver,» but also notes that the Secretarial waiver has rarely been used. This source recommends that language be considered ... to encourage agencies to use the authority provided by §101(a)(3)(A) more often. However, a Federal manager noted that current court interpretation of this provision limits its use to only those species and stocks that have been determined to be within their OSP. This is a significant restriction which places the burden of proof upon the proposer to demonstrate that the population is within its OSP range and would not be reduced below its maximum net productivity level (the lower limit of OSP) as a result of the activities undertaken pursuant to a waiver.
(CRS Report for Congress, The Marine Mammal Protection Act: Reauthorization Issues, February 1, 1993, 93-185 ENR [emphasis added]).
The U.S. courts have also commented on the moratorium and the various exceptions to it. All but one of the cases dealt with the exemption for the incidental catch of marine mammals during commercial fishing operations. In Kokechik Fishermen’s Association v. Secretary of Commerce, 839 F.2d 795 (D.C. Cir. 1988) the court said:
Congress, by enacting the MMPA, put into effect a moratorium on the taking of marine mammals. The term «moratorium» is defined by the Act to mean «a complete cessation of the taking of marine mammals....
Under a limited exception to this moratorium, the taking of marine mammals incidental to commercial fishing operations may be allowed.... Before such a permissible taking can occur under this exception, two statutory requirements must be met: the taking must be authorized by regulations promulgated through formal rulemaking proceedings and a permit issued by the Secretary of Commerce....
Under the MMPA, before a permit authorizing a taking may be issued, the Secretary «must be assured that the taking ... is in accordance with sound principles of resource protection and conservation as provided in the purposes and policies of this chapter....
Thus it is clear that «[t]he Act was administered for the benefit of the protected species rather than for the benefit of commercial exploitation.»....Congress decided to take this decisive action because it was greatly concerned about the maintenance of healthy populations of all species of marine mammals within the ecosystems they inhabit. Exceptions to this moratorium clearly evidence a concern with the relationship between the activity engaged in and its effect on marine mammals and their ecosystem.
This case went on to invalidate a permit granted by the Secretary of Commerce that would have allowed the incidental taking of 450 fur seals in the North Pacific. The Secretary had determined that the taking was negligible. The commercial fisheries exemptions allowed such negligible takings under other circumstances. But the court said that the Secretary had not authority to do this, and since the Secretary could not meet the conditions for a waiver of the moratorium, then no permit could be issued for this incidental take.
In a case which dealt with a waiver of the moratorium which allowed the importation of South African fur seals for the processing of the skins at an American tannery, the court said:
The MMPA imposes a moratorium on the taking or importation of marine mammals or marine mammal products. The Director of the National Marine Fisheries Service (NMFS) can waive the moratorium to allow taking or importation according to the detailed procedural and substantive requirements of the Act. Waiving the moratorium is a two-stage process. In the first stage the agency must determine if there will be a waiver and promulgate regulations containing the terms of the waiver. In the second stage the agency may issue permits authorizing importation to particular applicants.
(Animal Welfare Institute v. Kreps, 561 F.2d 1002, at 1004, 1977)
In this case, the waiver was invalidated by the court because the seals were less than eight months at the time of taking, were nursing at the time of taking, and the South African program under which they were taken had not been validly certified as being consistent with the MMPA (because the limitations on taking young seals had not been observed).
Another form of exemption deals with the management of marine mammals by the states within the United States. The MMPA begins by invalidating all state laws and activities dealing with marine mammals, and then offers to return management authority to the states provided they meet certain requirements. (See 16 USC 1379). The process for return of management is similar to the process for waiving the moratorium. In the entire time since the MMPA was passed in 1972, management has not been returned to a single state.
The state of Alaska had at one time sought return of its management authority, but withdrew that request after several years of frustration. In 1987, the Office of the Commissioner of Fish and Game wrote to me about the attempts of their state to obtain a return of management. Federal insistence on a variety of conditions, including the passage of a state law on wanton waste of marine mammals and an increased budget for marine mammal management created such difficulties that the state dropped its effort. Congress had tried to solve the problem in part by amending the law to temporarily exempt the taking of walrus, but this exemption expired and was never reinstated. In recognition of the fact that the original requirements for state resumption of management were too cumbersome, Congress amended the MMPA in 1981 to simplify the process. But no state has ever taken advantage of the process, even as amended.
The case of the polar bear is another good example of the difficulty of obtaining an exemption under the MMPA. The issue has been going on since 1982, and I have been personally involved in it since 1985. In my role of counsel to Safari Club International (SCI) a hunting and conservation organization, I worked with officials of the Canadian and American governments continuously to try to get a waiver. Twice the Canadian government pulled out of the process.
In October, 1983, the Director General of the Canadian Wildlife Service (CWS) Tetreault wrote to his counterpart in the U.S. Fish and Wildlife Service asking him to terminate the attempt to obtain a waiver. He said that Canada’s Federal-Provincial Administrative Committee for Polar Bear Research and Management felt:
that the waiver procedure would very likely engender adverse publicity in Canada which may have a negative impact on management programs. Because of this, and certain management issues which we are still in the process of resolving, the Committee felt a waiver would be inappropriate at this time. SCI rekindled the issue a few years later, but after more than a year-long effort, the Canadians again asked the United States to drop the process. On June 6, 1986, the new Director General of the CWS, Tony Clarke, wrote to the Chairman of the Board of SCI and explained that although they felt that they had a good management program, they were not ready to subject it to a highly-publicized trial-type hearing in another country.
In 1991, SCI decided that the upcoming amendment of the MMPA to deal with the expiration of a temporary exception for incidental take of marine mammals during commercial fishery operations was an opportunity to try to amend the law, since the waiver process was so unworkable. Contact was made with a number of interests in Canada, particularly among the Native groups. The Natives were interested in a general exemption for imports of marine mammal handicrafts, as well as polar bear hunting trophies, since all of these were important sources of income in Native communities. They tied their efforts to the trade talks that proceeded the signing of the North American Free Trade Agreement. The trade talks never produced an interest in the United States in pursuing a general amendment of the MMPA, but SCI was successful in convincing a number of Congressmen that the law should be amended to allow the importation of polar bear trophies. This was assisted by a study paper from the Alaska Regional office of the U.S. Fish and Wildlife Service that was favorable about such an exemption, and a desk study by IUCN that included Canada’s polar bear program as an example of a good sustainable use program involving hunting.
Success finally came when Congress amended the MMPA in April, 1994. The amendments dealt mostly with the commercial fisheries incidental catch issue, but included an amendment allowing the importation of polar bear hunting trophies from Canada. But the amendment required the issuance of permits and that process has still not been concluded. The latest estimates from the U.S. Fish and Wildlife Service are that it will be late summer of this year before they are ready to issue the first permits. Also, they fully expect that a lawsuit from the Humane Society of the United States will bring at least a temporary to the issuance of permits as soon as it starts.
All of the requirements for a waiver are found in section 16 USC 1371(a)(3)(A). In order to waive the moratorium, the government must propose limiting regulations and must hold a public, trial-type hearing in which it is up to the government to prove that its proposed regulations meet the standards of the MMPA. Before proposing such regulations, the government has to consult with the Marine Mammal Commission, an independent body with its own panel of scientific advisors, set up by the MMPA.
As far as substantive requirements, the government’s waiver proposal must be based on «the best scientific evidence available.» It must also have «due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements» of the marine mammals in question.
In making its waiver determination, the government must «be assured that the taking of such marine mammal is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this chapter...». That is a reference to section 16 USC 1361, which includes the following:
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 maintain 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.
Finally, the waiver can only be granted in regard to imports from another country if the «Secretary certifies that the program for taking marine mammals in the country of origin is consistent with the provisions and policies of this chapter.»
The procedural requirements for a waiver are very cumbersome. For one thing, there must be a public hearing on both the decision to grant a waiver and on the substantive regulations that must accompany a waiver. The Congress described the process this way when the law was passed:
The conferees declined to follow the precise formula adopted in the Senate version, however, which mandated public hearings on the Secretary’s decision to waive the moratorium. Since Section 103 requires those procedures to be followed in any case before general regulations are issued, it seemed duplicative to require that the same steps be taken twice.... The conference substitute requires that the hearings to be held by the Secretary on the regulations which he proposes to adopt would also encompass his decision to waive the moratorium.
(House Conference Report 92-1488, 1973)
The process was described in summary by a staff member of the U.S. Fish and Wildlife Service in 1982 when the Service was first considering the idea of a waiver for polar bear hunting trophies. In a briefing paper in September, 1982, he said that the following steps would have to be taken, and estimated that this would take a minimum of one year and would cost up to $50,000:
The current regulations in force for the National Marine Fisheries Service (NMFS) in regard to a waiver of the moratorium, are published in Title 50 of the United States Code of Federal Regulations, in Part 216. Under the MMPA, NMFS has jurisdiction over cetaceans and pinnipeds, so any waiver requests for species in those taxa are dealt with by that agency. The process described in the regulations is substantively the same as the staff description, above, from the U.S. Fish and Wildlife Service, which has jurisdiction over polar bears, walrus, sirenians and sea otters.
Additional details that should be noted when reviewing the NMFS regulations include the fact that the agency must identify the likely issues when it publishes its notice, and that «any person desiring to participate as a party» can do so. 50 CFR §216.74
It is clear from the description of the hearing (as well as from the requirement that this be an adjudicatory hearing under the Administrative Procedures Act) that this hearing is like a trial. The government must present evidence, consisting of its proposed regulations to limit the take of marine mammals and the underlying facts to support those regulations. See 50 CFR §216.73(b)(4). This evidence is subject to cross-examination by any interested party which has filed notice of its intent to participate.
Thus, if another country, or an interest in another country, would like to obtain a waiver of the moratorium, they cannot do it directly. They must convince the appropriate agency of the U.S. government that their request is justified and get that agency to prepare all of the necessary materials and agree to go through the waiver hearing. Any animal rights or protectionist organization has a right to participate in the trial of the government’s regulations and findings. This burden of work, and the obvious protectionist sentiments that underlie the MMPA itself, are probably sufficient explanation for the virtual complete failure of the government to seek waivers in the twenty-three year history of the MMPA.
The Author: Richard Parsons,
The Parsons Group, Inc.
P.O.Box 1308, Centreville,Virginia, USA 22020
phone: (703) 502-0014
fax: (703) 502-0016
email: rparsons@interramp.com