Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) — enacted in 1972 and codified at 16 U.S.C. §§ 1361–1423h — prohibits the "taking" (harassing, hunting, capturing, or killing) of marine mammals in U.S. waters or by U.S. citizens on the high seas, and regulates the importation of marine mammals and marine mammal products. The MMPA covers all marine mammals including dolphins, whales, seals, sea lions, polar bears, manatees, and sea otters — protecting approximately 130 species across a vast range of habitats. Two agencies share jurisdiction: NOAA Fisheries (National Marine Fisheries Service) manages cetaceans (whales, dolphins, porpoises) and pinnipeds (seals and sea lions); the U.S. Fish and Wildlife Service manages walruses, polar bears, manatees, dugongs, and sea otters. The Act allows for incidental take authorizations — permits issued to industries like commercial fishing, offshore energy development, and naval sonar operations that may incidentally injure or disturb marine mammals in the course of otherwise lawful activities, subject to mitigation and monitoring requirements. The MMPA drove the famous tuna-dolphin controversy of the 1980s and 1990s — when consumer boycotts and litigation forced major tuna companies to adopt dolphin-safe fishing practices, eventually codified in statute (16 U.S.C. § 1385). Today, the MMPA continues to create friction between commercial fisheries (which face incidental take limits) and conservation groups pushing for stronger protections, particularly for critically endangered species like the North Atlantic right whale, with approximately 350 individuals remaining.

Current Law (2026)

Legal Authority

• 16 U.S.C. § 1371 — Moratorium on taking and importing (establishes a general moratorium on the taking of marine mammals — it is unlawful for any person subject to U.S. jurisdiction to take any marine mammal or import any marine mammal product; exceptions for scientific research, subsistence harvest by Alaska Natives, incidental take authorizations, and other specific purposes)
• 16 U.S.C. § 1373 — Regulations on taking (Secretary may issue permits for taking that will not disadvantage the species or stock; must consider population status, international obligations, and existing conservation programs)
• 16 U.S.C. § 1385 — Dolphin protection (standards for "dolphin-safe" tuna labeling; prohibits certain tuna fishing methods that cause dolphin mortality)
• 16 U.S.C. § 1387 — Incidental take in commercial fishing (authorization program for incidental take during commercial fishing operations; requires observer programs, take reduction plans for species experiencing unsustainable take levels)

How It Works

The MMPA is one of America's strongest wildlife protection laws — establishing a blanket moratorium on the killing, capturing, and harassment of all marine mammals in U.S. waters, with limited exceptions. It reflects a dramatic shift in the 1970s from treating marine mammals as harvestable resources to treating them as protected wildlife.

The MMPA's central provision is a moratorium on "taking" — defined broadly to include harassing, hunting, capturing, or killing any marine mammal or attempting to do so — applied to all species: whales, dolphins, porpoises, seals, sea lions, walruses, sea otters, manatees, and polar bears. The moratorium applies to all persons subject to U.S. jurisdiction, in U.S. waters and on the high seas, and importation of marine mammals and their products is also generally prohibited. The moratorium has structured exceptions: scientific research permits allow take for bona fide research and public display; Alaska Native subsistence allows take for subsistence purposes and authentic Native handicrafts as long as it is not wasteful and the species is not depleted; incidental take authorizations allow commercial fishing, offshore energy development, and military sonar operations that may inadvertently harm marine mammals subject to minimization conditions; and the Secretary of Defense may exempt military readiness activities upon a finding that MMPA compliance is not practicable.

Commercial fishing is the largest source of human-caused marine mammal mortality. The MMPA categorizes fisheries by interaction frequency (Category I — frequent; Category II — occasional; Category III — rare); Category I and II fisheries must carry observers and report take. When a stock is experiencing take above sustainable levels, NOAA must convene a Take Reduction Team to develop a plan reducing take below the stock's Potential Biological Removal level — the maximum number of animals removable while allowing the population to reach or maintain its optimum sustainable population. The MMPA's most publicly visible application was the eastern tropical Pacific tuna-dolphin issue: tuna schools there swim beneath dolphin pods, and purse seine nets set on dolphins killed hundreds of thousands of dolphins annually in the 1960s and 1970s. The MMPA, combined with consumer pressure and the "dolphin-safe" labeling program, reduced dolphin mortality by over 99% since its peak — the dolphin-safe label remains one of the world's most recognized eco-labels. The law also prohibits "harassment" — any act that could disrupt a marine mammal's behavioral patterns — which applies to whale watching boats, swimmers approaching seals, and drones flying near marine mammals; NOAA guidelines require maintaining 100-yard distance for most species and 200 yards for North Atlantic right whales and Alaska humpbacks.

How It Affects You

MMPA enforcement is shared between NOAA Fisheries (for cetaceans and most pinnipeds) and the U.S. Fish and Wildlife Service (for walruses, sea otters, polar bears, and manatees).

State Variations

Implementing Regulations

• 50 CFR Part 216 — Regulations Governing the Taking and Importing of Marine Mammals: the NMFS implementation of the MMPA's core protections and exceptions. Key subparts:

  • Subpart B — Prohibitions (§§ 216.11–216.15): The general ban on taking marine mammals applies to any person, vessel, or conveyance subject to U.S. jurisdiction — on the high seas, in U.S. waters, or on U.S. lands. Prohibited acts include import, export, possession, transport, sale, and the use of any U.S. port for a prohibited taking. The prohibition on importing marine mammal products applies regardless of whether the taking was lawful in the country of origin (§ 216.12). Species designated as "depleted" (§ 216.15) — including Hawaiian monk seals, bowhead whales, and certain bottlenose dolphin stocks — receive additional protection above the baseline take ban.
  • Subpart C — General Exceptions: Alaska Native subsistence harvest of marine mammals (specifically exempted by MMPA § 101(b)), scientific research permits, and public display permits (aquaria, zoos). Native craftwork from lawfully taken marine mammals is also generally exempt.
  • Subpart D — Special Exceptions: The special permit system for research, enhancement, and commercial fishing incidental take. Permits must specify species, numbers, purposes, and mitigation.
  • Subpart H — Dolphin Safe Tuna Labeling (§§ 216.90–216.95): Governs who may use the "dolphin-safe" label and the official NOAA dolphin-safe mark on tuna products sold in or exported from the United States:
    • § 216.91 — Core standard: it violates FTC Act § 5 (unfair/deceptive practices) to label any tuna product "dolphin-safe" or use any dolphin-referencing claim unless the product meets the regulatory standards; this makes false dolphin-safe labeling an FTC enforcement matter, not just an MMPA issue
    • § 216.92 — ETP purse seine requirements: tuna from the Eastern Tropical Pacific (ETP) caught by large purse seine vessels may only be labeled dolphin-safe if no purse seine was intentionally deployed on or to encircle dolphins during any trip on which the tuna was caught, verified by a NMFS-approved observer aboard each vessel; tuna tracking forms document the complete fishing record
    • § 216.93 — Tracking and verification: NMFS maintains a national tracking program covering import documentation and U.S. fishing/processing chains; importers must file NOAA Form 370 (Fisheries Certificate of Origin) documenting dolphin-safe status
    • § 216.94 — Civil penalty: $100,000 per violation for anyone who knowingly and willfully makes a false dolphin-safe statement or endorsement
    • § 216.95 — The official NOAA dolphin-safe mark (the jumping-dolphin logo): its use is voluntary, but if used it must comply with placement and size rules; the "Earth Island Institute" certification sometimes seen on cans is a private program with its own standards that runs parallel to the NOAA regulatory program
  • Subpart I — Small Takes Incidental to Specified Activities (§§ 216.101–216.108): The Incidental Harassment Authorization (IHA) framework — allowing incidental (not intentional) take of small numbers of marine mammals during lawful non-commercial activities such as construction, geophysical surveys, and oceanographic research. NMFS must find that the total taking will have a negligible impact on the affected species or stock and will not have an unmitigable adverse impact on the availability of the species for subsistence use. IHAs are capped at one year; longer-term authorizations require a formal rulemaking (Letters of Authorization under 50 CFR Part 217).
  • Subpart J — Eastern North Pacific Gray Whales: regulations governing the traditional harvest of gray whales by the Makah Tribe of the Olympic Peninsula under treaty rights — the only tribal group with a currently recognized treaty right to hunt whales in the U.S.

• 50 CFR Part 217 — Regulations Governing the Take of Marine Mammals Incidental to Specified Activities (202 sections across 25+ project-specific subparts — the codification of individual Letters of Authorization (LOAs) for specific industries and federal agencies to incidentally harm marine mammals during otherwise lawful activities; each subpart is project-specific and follows the same 8-section structure):

  • Standard LOA structure: every subpart specifies (1) the authorized activity and geographic region; (2) effective dates (LOAs typically run 5 years); (3) permissible methods of taking — Level B harassment (disturbance without injury, e.g., animals temporarily changing behavior due to construction noise) authorized for almost all projects; Level A harassment (injury such as temporary or permanent threshold shift in hearing) authorized only with specific mitigation; lethal take almost never authorized; (4) prohibited acts (intentional take, take beyond authorized species/numbers); (5) mitigation requirements (safety zones, time-of-year restrictions to avoid breeding/pupping seasons, passive acoustic monitoring requirements); (6) monitoring and reporting (pre-activity surveys, real-time protected species observer protocols, annual reports to NMFS, final report on project completion); (7) LOA issuance; (8) modification/renewal procedures
  • Offshore wind construction is the fastest-growing LOA category — current subparts cover Revolution Wind (offshore Rhode Island), Empire Wind (offshore New York), Coastal Virginia Offshore Wind, Ocean Wind 1 (offshore New Jersey), Atlantic Shores South (offshore New Jersey), Sunrise Wind (offshore New York), New England Wind (offshore Massachusetts), Maryland Offshore Wind; each project requires its own rule because authorized take numbers, affected species, mitigation measures, and monitoring protocols are project-specific; NMFS must find negligible impact on each species or stock before issuing the rule
  • Navy and federal construction: multiple subparts cover routine Navy construction at shipyards and naval stations (pile driving, underwater demolition) — Indian Island WA, Naval Station Norfolk VA, Portsmouth Naval Shipyard ME, Naval Station Newport RI; the Coast Guard, Army Corps, and other federal agencies also require LOAs for their waterfront construction
  • Oil and gas and geophysical surveys: Hilcorp Alaska Cook Inlet oil/gas operations and geophysical survey activities in the Gulf of America (seismic airgun arrays) are covered; airgun arrays generate some of the highest underwater sound pressure levels of any human activity and require extensive passive acoustic monitoring and power-down protocols when marine mammals enter designated exclusion zones
  • Scientific research: seabird research (central California), Rocky Intertidal Network monitoring surveys (Oregon/California) — even non-invasive research that might disturb marine mammals requires incidental take authorization

• 50 CFR Part 219 — Regulations Governing the Taking and Importing of Marine Mammals (NMFS Federal Research Programs): a companion to Part 217 that governs incidental take by NMFS's own fisheries science centers during government research surveys. Two active subparts:

  • Subpart D — Northeast Fisheries Science Center (NEFSC), Atlantic Coast (§§ 219.31–219.38, effective October 21, 2021 through October 21, 2026): authorizes NEFSC to incidentally take marine mammals during research surveys in the Northeast and Southeast Large Marine Ecosystems using trawl, dredge, longline, gillnet, pot, trap, and fyke net gears. Level B harassment (behavioral disturbance from active acoustic systems and vessel-caused pinniped haulout disturbance) and Level A harassment/serious injury/mortality incidental to fishing gears are authorized via annual Letters of Authorization. NEFSC must designate a compliance coordinator, maintain visual marine mammal watches during all gear operations, and report observed takes to NMFS.
  • Subpart G — Pacific Islands Fisheries Science Center (PIFSC) (§§ 219.61–219.68, effective May 16, 2025 through May 15, 2030): covers PIFSC research in the Hawaiian Archipelago, Mariana Archipelago, American Samoa Archipelago, and Western and Central Pacific Ocean; authorizes Level B harassment from acoustic systems and pinniped disturbance, plus Level A harassment/serious injury/mortality incidental to longline, trawl, and instrument/trap gear; mitigation includes pre-deployment visual sweeps, real-time monitoring, and briefings before each survey.

  Both subparts use the same LOA mechanism as Part 217 — the rule establishes the outer bounds of authorized take, and an annual LOA sets the specific numbers. LOAs are renewable as long as activities remain within the scope of the authorizing rule; material changes require a new rulemaking. The federal research exception reflects Congress's judgment that NMFS's own stock assessment surveys — the data foundation for every fishery management plan — are lawful authorized activities under MMPA § 101(a)(5)(A).

• 50 CFR Part 218 — Regulations Governing the Taking and Importing of Marine Mammals; U.S. Navy Training and Testing (73 sections across 9+ subparts — the Navy's dedicated LOA codification for incidental take during operational training and testing activities, as distinct from the construction LOAs in Part 217; each subpart covers a specific Navy range or fleet testing area):

  Part 218 is the Navy's operational counterpart to Part 217's construction LOAs. The key difference: Part 217 Navy subparts cover pile-driving, demolition, and waterfront construction; Part 218 subparts cover the use of active sonar systems, underwater explosives, and missile/weapons testing during operational readiness exercises. The sound energy from active sonar and explosives can cause Level A harassment (temporary or permanent hearing threshold shifts) in cetaceans at far greater ranges than construction noise. Active subparts include:

  • Subpart A — Naval Station Norfolk Construction (§§ 218.1–218.8, Level A and B harassment from pile driving at NAVSTA Norfolk and adjacent Navy facilities in Norfolk, VA)
  • Subpart B — Point Mugu Sea Range (§§ 218.10–218.18, PMSR off Southern California, 36,000-square-mile test range; authorized take from explosives and missile launches during air, electronic, and surface warfare training; effective July 2022–July 2029)
  • Subpart G — Eglin Gulf Test and Training Range (§§ 218.60–218.68, EGTTR in the Gulf of America off northwest Florida; Air Force electronic warfare, guided missile testing)
  • Subpart H — Hawaii-California Training and Testing Study Area (§§ 218.70–218.78, HICGS — the Navy's largest Pacific training complex covering 2.1 million square nautical miles; mid-frequency active sonar is the primary take source)
  • Subpart I — Atlantic Fleet Training and Testing Study Area (§§ 218.80–218.88, AFTT — the East Coast counterpart to HICGS, covering waters from the Canadian border to the Caribbean; comprehensive sonar and live ordnance training)
  • Subpart J — Mariana Islands Training and Testing (§§ 218.90–218.98, MITT — Western Pacific theater operations including amphibious assault training and undersea warfare exercises)
  • Subpart O — Northwest Training and Testing Study Area (§§ 218.140–218.148, NWTT — Puget Sound, Strait of Juan de Fuca, and offshore Pacific Northwest; home to the USS Nimitz carrier strike group training)
  • Subpart P — Gulf of Alaska Study Area (§§ 218.150–218.158, GOA — biennial major fleet exercises; humpback, fin, and killer whale populations are the primary concern)
  • Subpart X — SURTASS LFA Sonar Training (§§ 218.240–218.248, Surveillance Towed Array Sensor System Low Frequency Active sonar — designed to detect quiet submarines at long range by emitting low-frequency sound (100–500 Hz) at levels audible to baleen whales across ocean basins; authorized in the Central and Western North Pacific and Eastern Indian Oceans with 1,000-meter coastal exclusion zone and protected area restrictions)

  The Part 218 framework is contentious because active sonar and underwater explosives present acute injury risks to cetaceans beyond the Level B behavioral harassment typical of construction. The Natural Resources Defense Council and Earthjustice have repeatedly litigated Navy LOAs, arguing that NMFS's negligible impact determinations underestimate cumulative effects across multiple ranges and training events. The 9th Circuit's 2008 decision in NRDC v. Winter established that military necessity can override NEPA compliance but not MMPA procedural requirements — the Navy must still obtain valid LOAs even for national security exercises. Recent rulemakings: 90 FR 38002 (2025) — updated HICGS/AFTT LOAs for the 2025–2030 authorization period with expanded monitoring requirements; 88 FR 24100 (2023) — MITT renewal with new passive acoustic monitoring requirements for beaked whales.

• 50 CFR Part 18 — Marine Mammals Under FWS Jurisdiction (sea otters, Pacific walrus, polar bears, manatees, dugongs — the companion to NMFS's Part 216/217 framework but covering species managed by the U.S. Fish and Wildlife Service rather than NOAA):

  Part 18 applies only to the FWS species set, which are generally Arctic and coastal species rather than the pelagic cetaceans NMFS manages. The Part has three operational layers: a general prohibition on take; a system of exceptions for Alaska Native subsistence, scientific research, and other lawful uses; and a newer LOA framework for incidental take during industrial construction activities.

  • § 18.11 — Prohibited taking: it is unlawful for any person, vessel, or conveyance subject to U.S. jurisdiction to take marine mammals in waters or on lands under U.S. jurisdiction; "take" includes hunting, killing, capturing, collecting, or harassing; the prohibition runs against both direct intentional take and incidental harassment during otherwise lawful activities unless specifically authorized under Subparts C, D, I, J, or L
  • Subpart C — General exceptions: Alaska Natives may take marine mammals for subsistence purposes and for creating and selling authentic native handicrafts; FWS may authorize take for scientific research (§ 18.31), public display (§ 18.32), and photography (§ 18.33) through a permit process; veterinary care for injured or stranded animals is an automatic exception; certain U.S. government employees acting within the scope of their official duties are also excepted
  • Subpart D — Special exceptions (§§ 18.41–18.49): the Secretary may issue regulations authorizing waivers of the moratorium for any species or population that is not depleted, after making findings about the status of the population and impact of the waiver; waiver regulations must go through full notice-and-comment rulemaking and be supported by a conservation plan; Alaskan polar bear sport-hunted trophies from Canada are a specific exception codified here — import of pre-ban trophies was allowed under CITES permits, but FWS stopped issuing new permits for Canadian polar bear trophies in 2008 under ESA listing
  • Subpart I — Nonlethal Taking Incidental to Oil and Gas Activities: authorizes FWS to issue Letters of Authorization for nonlethal taking (Level B harassment — disturbance without injury) of sea otters, walrus, and polar bears incidental to oil and gas exploration and development activities on the North Slope and in the Beaufort Sea; operators must submit an Incidental Take Plan before each season of activity; mitigation measures include observer programs and power-down requirements when animals approach the work zone
  • Subpart J — Nonlethal Taking Incidental to Oil and Gas Development (continuing operations): parallel authorization framework for ongoing production operations (as distinct from exploration); the Alaska Oil and Gas Association's request in March 2026 for incidental take of polar bears and Pacific walruses in the Beaufort Sea and North Slope would be processed under this and related Subpart authority
  • Subpart L — Nonlethal Taking Incidental to Pile Driving Activities (§§ 18.101–18.110): the most recently added framework, covering coastal and nearshore construction that drives steel or concrete piles into the seafloor — the dominant noise source in waterfront infrastructure projects:
    • § 18.103 — LOA application: operators must apply to the FWS Alaska Region Marine Mammals Management Office; application must specify the geographic area, work schedule, pile-driving methods (impact vs. vibratory), and estimated noise footprint; each LOA is activity-, species-, and number-specific; the current blanket rule covers Gulf of Alaska coastal waters from March 27, 2026 through March 27, 2031
    • § 18.105 — Authorization scope: the LOA specifies which species may be harassed (typically sea otters, as the Subpart L rule operates in sea otter range), the maximum authorized number of takes by Level of disturbance (Level A vs. Level B), and geographic boundaries; exceeding authorized take numbers requires amended authorization
    • § 18.107 — Mitigation measures required for all LOAs: operators must establish safety zones around active pile driving rigs (radii depend on pile type and substrate); impact pile driving must use a bubble curtain or equivalent noise attenuation unless FWS grants an exception; work must stop if an animal enters the safety zone; no pile driving during certain seasonal windows if FWS determines elevated marine mammal presence
    • § 18.108 — Protected Species Observer (PSO) authority: FWS-approved PSOs must be present during all active pile driving; PSOs have independent authority to halt pile driving if a marine mammal enters the exclusion zone or if conditions prevent adequate monitoring; operators may not intimidate, obstruct, or override a PSO's work-stop call; PSO observations are logged and submitted to FWS
    • § 18.109 — Pre-activity and reporting requirements: operators must notify the FWS Alaska Regional Office at least 48 hours before beginning each pile-driving event; monthly activity reports (dates, pile counts, PSO observations, any takes observed) are due to FWS by the 15th of the following month; a final report is required within 90 days of completing the authorized activity

• 50 CFR Part 223–226 — Threatened species and critical habitat designations (marine mammal species-specific protections, critical habitat for marine mammals including whales, seals, sea lions)

• 50 CFR Part 403 — Transfer of Marine Mammal Management Authority to States: the implementing regulations for MMPA § 109, which authorizes the Secretary to transfer management authority over a marine mammal species to a state that can demonstrate it can manage the species at or above the MMPA's conservation standard. Key provisions:

  • § 403.02 — Optimum Sustainable Population (OSP): defined as the range from the largest population supportable within the ecosystem to the level producing maximum net productivity — the population floor that any state management program must maintain; OSP is the MMPA's central conservation standard, and any state seeking management authority must show it can keep the species at OSP
  • § 403.03 — State request and approval: a state submits a written request to FWS (for FWS-jurisdiction species: walruses, polar bears, manatees, sea otters) or NMFS (for NMFS-jurisdiction species: whales, dolphins, seals, sea lions); the request must describe the state's proposed management program including population assessments, harvest regulations, enforcement, and funding; the Director/Assistant Administrator reviews and approves or denies; if approved, FWS/NMFS formally transfers management authority
  • § 403.04 — OSP determinations and hearings: before a state may exercise management authority, it must conduct a process (consistent with MMPA § 109(c)) to determine the OSP of the species within its jurisdiction and the maximum sustainable harvest; this process must be open to public participation and must be completed before the state begins managing take; NMFS or FWS verifies the determination
  • § 403.05 — Cooperative allocation agreements: for species whose range extends beyond state territorial waters (the common case for marine mammals, which are highly migratory), the state may not exercise management authority until a cooperative allocation agreement with the Secretary is signed — the agreement establishes how take will be allocated between state and federal jurisdiction zones; this prevents states from managing coastal waters while the federal government manages offshore areas with different take rules for the same stock
  • § 403.06 — Monitoring and reporting: states with transferred management authority must submit an annual report within 120 days of the close of their fiscal or calendar year; FWS/NMFS reviews the report and may conduct on-site program reviews; the annual report is the primary accountability mechanism
  • § 403.07 — Revocation: FWS/NMFS may revoke a state's management authority if the state fails to maintain the program requirements; revocation triggers a notice process; the federal government reassumes management on revocation; revocation is the backstop that ensures state management cannot permanently degrade species to below-OSP levels
  • § 403.08 — [Reserved]: this section, which was to list states that have received management authority, is currently blank — no state has ever received management authority under MMPA § 109; the procedural and substantive requirements (OSP determinations, cooperative allocation agreements) have proved sufficiently complex that no state has completed the transfer process

  The MMPA's state management transfer authority — 50+ years old — has never been exercised. In practice, states cooperate with NMFS and FWS on marine mammal monitoring and co-management without formal authority transfer. The provision was included in the 1972 Act to address concerns from coastal states about federal preemption of wildlife management, but the MMPA's design (species conservation rather than harvest management) and the migratory nature of marine mammal stocks make state management difficult to separate from federal management without creating regulatory gaps.

• 50 CFR Part 229 — Authorization for Commercial Fisheries Under the Marine Mammal Protection Act of 1972 (21 sections across 3 subparts): implements MMPA § 118 (16 U.S.C. § 1387), which replaced the pre-1994 moratorium exemption system with a market-based, accountability-oriented framework for managing marine mammal bycatch in U.S. commercial fisheries. The Part organizes fisheries into three risk tiers based on estimated interaction rates, establishes take reduction planning as the primary management tool for high-impact fisheries, and creates the observer/reporting infrastructure that makes bycatch monitoring possible.

  The three-category fishery classification system (§§ 229.4–229.5):

  • Category I — commercial fisheries with frequent incidental mortality or serious injury of marine mammals; vessel owners and crew must register with NMFS under the Marine Mammal Authorization Program (MMAP), carry NMFS-approved observers when required, and comply with any applicable take reduction plan regulations; registration must be renewed annually; failure to register is a separate MMPA violation
  • Category II — fisheries with occasional incidental mortality or serious injury; MMAP registration required; observers may be placed on Category II vessels; not automatically subject to take reduction plan gear requirements but can be brought within a plan if bycatch levels rise
  • Category III — fisheries where incidental mortality or serious injury is remote; no registration or observer requirement; vessel owners must still report any incidental mortality or injury of a marine mammal within 48 hours of returning to port (§ 229.6); a fishery can be upgraded to Category I or II if observed bycatch rates increase

  Take Reduction Plans (§§ 229.30–229.37): NMFS convenes Take Reduction Teams — composed of commercial fishing industry representatives, conservation organizations, academic scientists, and state and tribal government representatives — to develop plans that reduce incidental mortality and serious injury to levels below the Potential Biological Removal (PBR) rate for each marine mammal stock. Six active plans cover the highest-interaction fisheries:

  • § 229.31 — Pacific Offshore Cetacean Take Reduction Plan: targets drift gillnet fisheries off California and Oregon; requires periodic soak-time restrictions and vessel monitoring systems
  • § 229.32 — Atlantic Large Whale Take Reduction Plan: addresses lobster, Jonah crab, and gillnet fisheries that entangle North Atlantic right whales (approximately 350 individuals remaining) — the plan's gear modification requirements (whale-safe lines, weak links, ropeless gear pilot programs) are the primary U.S. regulatory tool for reducing right whale entanglement mortality; the plan has been repeatedly tightened as right whale population decline has intensified
  • § 229.33–229.34 — Harbor Porpoise Take Reduction Plans (New England and Mid-Atlantic): require gillnet acoustic pingers and modified gear configurations during peak harbor porpoise seasons; the New England plan applies from August 15–September 13 in designated closure areas
  • § 229.35 — Bottlenose Dolphin Take Reduction Plan: targets coastal gillnet and pound net fisheries in the mid-Atlantic; requires beach seine modifications to reduce dolphin interaction
  • § 229.36 — Atlantic Pelagic Longline Take Reduction Plan: covers highly migratory species longline fisheries targeting swordfish and tunas; requires weighted branch lines, shallow-set restrictions during certain seasons, and circle hook mandates to reduce sea turtle interactions (a co-benefit alongside the mammal bycatch reductions)
  • § 229.37 — False Killer Whale Take Reduction Plan: applies to Hawaii-based longline fisheries; requires specific leader lengths and branch line configurations to reduce false killer whale interactions

  Monitoring and enforcement (§§ 229.6–229.10): vessel owners must report all incidental mortality and serious injury within 48 hours of returning to port (§ 229.6); NMFS places at-sea observers aboard designated vessels to collect bycatch data used to update the annual List of Fisheries (§ 229.8); civil penalties for violations of observer placement requirements, reporting obligations, or take reduction plan gear regulations reach the inflation-adjusted MMPA ceiling per violation per day (§ 229.10) <!-- FACTCHECK 2026-05-11: confirm current adjusted figure -->. NMFS may promulgate emergency regulations (§ 229.9) on an expedited basis — without full notice-and-comment — if the incidental mortality or serious injury rate is determined to be threatening the affected stock. The 2024 update to Part 229 (90 FR 38003) made technical adjustments to observer placement procedures and clarified gear marking requirements under several take reduction plans.

• 50 CFR Part 228 — Notice and Hearing on Section 103(d) Regulations (21 sections — the formal rulemaking hearing procedure NMFS must follow when issuing regulations that waive the MMPA taking moratorium or impose conditions on commercial fishing incidental take under MMPA § 103, 16 U.S.C. § 1373):

  MMPA § 103(d) requires that regulations authorizing the taking of marine mammals be issued "on the record after opportunity for an agency hearing." Part 228 implements this formal hearing requirement — a higher procedural standard than informal notice-and-comment rulemaking, more analogous to an on-the-record trial than to standard APA rulemaking.

  • § 228.1 — Basis and purpose: applies to regulations waiving the moratorium under MMPA § 101(a)(3)(A), imposing conditions on commercial fishing incidental take under § 101(a)(2), and prescribing taking rules for Alaska Natives under § 101(b); all three categories require a formal hearing because Congress specified the § 103(d) record-hearing process for any regulation on the taking of marine mammals
  • § 228.2 — Parties: defined as (1) the NMFS Assistant Administrator (the proposing party) and (2) any person who notifies NMFS of intent to participate by the published deadline; a person who fails to notify waives their right to party status — but any interested person may submit written comments without becoming a party
  • § 228.4 — Notice of hearing: NMFS publishes a Federal Register notice announcing the proposed regulations, the hearing date and location, the procedure for becoming a party, and a deadline for submitting written direct testimony; the notice must be published at least 30 days before direct testimony is due
  • § 228.7 — Direct testimony: all testimony is submitted in writing by affidavit before the hearing and then introduced by the witness at the hearing; witnesses must be available for cross-examination; a party that fails to present a witness to introduce their written testimony waives the right to have that testimony considered
  • § 228.11 — Prehearing conference: after reviewing all submitted direct testimony, the presiding officer (an NMFS official, not an ALJ) identifies disputed issues of fact, determines which facts are not in dispute, and sets the hearing agenda; parties who don't appear at the prehearing conference are bound by its determinations
  • § 228.13 — Determination to cancel the hearing: if the presiding officer concludes there are no disputed issues of fact after reviewing all direct testimony, the hearing is cancelled and the presiding officer issues a recommended decision based on written submissions alone — saving the formal hearing when the record shows no genuine factual controversy
  • § 228.20–228.21 — Recommended decision and final decision: after the hearing, the presiding officer issues a recommended decision with findings of fact; parties have an opportunity to comment; the NMFS Assistant Administrator issues the final decision, which becomes the final rule; unlike informal rulemaking where the agency has broad discretion, the § 103(d) decision must be supported by substantial evidence in the formal record

  The § 103(d) formal hearing requirement is rarely invoked in modern MMPA practice — most MMPA regulatory actions (incidental take rules, take reduction plans, LOAs) proceed under the informal APA notice-and-comment process using the § 101(a)(5)(A) small-numbers/negligible-impact framework, which does not require a § 103(d) formal hearing. Part 228 would apply if NMFS were to issue a general waiver of the moratorium for commercial hunting or other broad taking authority — the kind of action for which Congress wanted formal procedural protection. The Part has not been invoked in recent years.

Pending Legislation

• HR 6251 — Expedited permits for pre-1997/2008 polar bear trophy imports from Canadian sport hunts. Status: Introduced.
• HR 7332 — National program to map and monitor migratory whales, cut vessel strikes. Status: Introduced.
• HR 5694 (Rep. Begich, R-AK) — Allow Alaska Natives to sell marine mammal ivory handicrafts nationwide. Status: In committee.
• S 254 (Sen. Sullivan, R-AK) — Allow Alaska Natives to take/craft/sell marine mammal ivory handicrafts. Status: Passed Senate.

Recent Developments

• Antarctic seal jurisdiction overlap: The MMPA covers all marine mammals, including Antarctic seals, but jurisdiction in Antarctica is shared with the Antarctic Conservation Act (16 U.S.C. §§ 2401–2413). NSF holds permitting authority for Antarctic activities under the ACA, and NOAA Fisheries holds authority under the MMPA — for any Antarctic seal take, researchers must check whether both permits are required. The ACA's "compelling scientific purpose" standard for the Ross Seal is stricter than the MMPA's general scientific research permit standard.
• North Atlantic right whale conservation has become critically urgent, with the species declining to approximately 350 individuals due to vessel strikes and fishing gear entanglement
• Offshore wind energy development — often sited within or near national marine sanctuaries — is raising new MMPA questions about noise impacts on marine mammals during construction and operation
• Climate change is affecting marine mammal habitats, prey availability, and disease patterns — particularly for Arctic species like polar bears and walruses
• NOAA has strengthened vessel speed regulations to reduce whale strikes, particularly for North Atlantic right whales
• Marine mammal stranding events have increased, potentially linked to climate change and ocean pollution
• In March 2026, NMFS received a Navy request for Incidental Take Regulations and a Letter of Authorization under the Marine Mammal Protection Act for operations of the Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar in the Western and Central North Pacific and Eastern Indian Oceans.

NMFS received a request from the U.S. Navy in March 2026 for Incidental Take Regulations and a Letter of Authorization under the MMPA to govern the taking of marine mammals incidental to Navy training and testing activities.

In March 2026, the U.S. Fish and Wildlife Service received a request from the Alaska Oil and Gas Association for regulations to authorize incidental take of polar bears and Pacific walruses in the Beaufort Sea and North Slope of Alaska under the Marine Mammal Protection Act.

In late February 2026, NMFS received a Navy request for authorization to take marine mammals incidental to the demolition of Pier 10 and construction of a Crane Weight Test Area at Naval Submarine Base New London.

In February 2026, NMFS received a request for reimplementation of incidental take regulations governing marine mammal takes during geophysical survey activity in the Gulf of America.