Abstract

Under the Marine Mammal Protection Act, regulations to reduce the accidental drowning of marine mammals are being developed through a facilitated process involving conservationists, fishermen, state and federal regulators, and scientists. In addition, in 1996, the environmental community and the public display industry engaged in a negotiated rulemaking under the Federal Advisory Committee Act to revise captive care and husbandry standards under the Animal Welfare Act.

The Facilitated process provides all stakeholders with an equal voice in the regulatory process. It is based on the premise that the regulated industry and advocates believe they can do better by building consensus than by advocating their specific interests directly with the agency. However, the use of dispute resolution techniques such as negotiation and mediation is hampered by legal and institutional barriers to risk-taking and change and thus is experiencing its own set of growing pains.

Nevertheless, this type of cooperative approach appears promising for developing marine conservation strategies and domestic regulations. This discussion will: (1) review the history and results of the MMPA negotiations, the take reduction team negotiation process, and the APHIS negotiated rulemaking; (2) analyze the components for a successful negotiation; (3) discuss where comparable negotiation processes may be applicable; and (4) discuss the benefits to conservation strategies from using facilitated negotiations versus traditional adversarial tactics employed by interest groups.

Introduction

Marine Mammal Protection Act Negotiations

In the course amending the Marine Mammal Protection Act (MMPA), representatives of the environmental community and the fishing industry came together on two separate occasions to develop proposals that could be used as a basis for amending the Act. In 1988 and 1993 representatives searched for ways to allow commercial fishing to continue while minimizing the harm it caused to marine mammals.¹

In 1988, the fishing industry and the environmental community met several times, without a facilitator, to hammer out a proposal that became the basis for the 1988 amendments to the MMPA. The proposal, drafted primarily through the exchange of written proposals, with subsequent comment, discussion, and revision, was endorsed by twenty-five environmental organizations and seventeen commercial fishing organizations and established the Interim Exemption Program for Commercial Fisheries.¹ The exemption was designed to allow commercial fishing to continue while the National Marine Fisheries Service (NMFS), the federal agency with the responsibility to implement the MMPA, stepped up its data gathering, observations, and research on marine mammal/fishing interactions, while maintaining some level of protection for marine mammals.² The exemption was due to expire in October 1993, when a more permanent regime, developed by NMFS, would have come into force to govern the incidental takes of marine mammals in commercial fisheries.

In 1993, commercial fishers and conservationists expressed concerns about NMFS' long term proposal to govern takes in commercial fisheries. In an effort to draft an alternative management regime that would address the concerns of both sides, a coalition of environmental organizations, animal welfare groups, commercial fishing industry representatives, and Alaska Natives met in early 1993. AU of the groups were interested in developing their own proposal as an alternative to NMFS's' proposed regime. Therefore, the groups hired a third-party facilitator, adopted ground rules that were necessary for the talks to continue, and proceeded with the negotiations.¹

By June of 1993, the groups had developed a proposal that became the basis for the 1994 amendments to the MMPA that established the regime to regulate the incidental mortality and serious injury of marine mammals taken in commercial fishing operations. A cornerstone of the group's negotiated proposal was the premise that all interest groups should have a voice in the process of developing regulations to reduce the incidental mortality of marine mammals. Therefore, they developed the concept of Take Reduction Teams (TRT) and Take Reduction Plans (TRP).¹

Under the MMPA TRTs develop, by consensus, TRPs for marine mammals that interact with a fishery that frequently or occasionally kills or seriously injures marine mammals. Take reduction plans, among other things, are to include recommendations for regulatory and voluntary measures to reduce incidental mortality and serious injury of marine mammals. These consensus plans provide the basis from which NMFS develops its regulations to reduce incidental mortality and serious injury of marine mammals in commercial fishing operations.³

To date NMFS has convened five TRTs: (1) harbor porpoise take reduction team; (2) Pacific offshore cetacean take reduction team; (3) Atlantic offshore cetacean take reduction team; (4) Atlantic large baleen whale take reduction team; and (5) mid-Atlantic harbor porpoise take reduction team. Four of these teams have submitted TRPs to NMFS.

Marine Mammal Negotiated Rulemaking

In September 1995, the Animal Plant and Health Inspection Service (APHIS) embarked on a Marine Mammal Negotiated Rulemaking under the Federal Advisory Committee Act.⁴ The Negotiating Committee, made up of members of the public display industry, marine mammal research community, animal welfare groups, conservation groups, and government agencies, was charged with reviewing the current regulations and standards under the Animal Welfare Act concerning the care and maintenance of captive marine mammals and providing consensus language to amend the regulations. The group met three times and arrived at consensus language to amend the regulations for general requirements for facilities; feeding; sanitation; qualifications for employees and attendants; and standards for separation veterinary care, and transport.

The Difference Between TRTs and the Marine Mammal Negotiated Rulemaking

TRTs are convened under the MMPA and are more informal in nature. The Marine Mammal Negotiated Rulemaking was convened under the Federal Advisory Committee Act (FACA)¹ and was a more formal process.⁵ In the case of a negotiated rulemaking, the Secretary of a particular agency is bound by the consensus product of the rulemaking when developing regulations. By contrast, TRT recommendations are simply "consultative,"-not formal advice to the Secretary. In the existing framework, the TRTs have authority and influence to the degree that their recommendations are adopted by the Secretary in TRPs. If the Secretary does not incorporate the team recommendations, the MMPA requires the Secretary to respond to the team and explain why not. On the other hand, although FACA status gives a group some credibility and stature, the appointment process is much more burdensome, and FACA committees are more restricted in that participants are treated as "federal officials" for purposes of ethics and other rules.⁴ It remains to be seen whether exempting the TRTs from the FACA will help the process by allowing for more creativity, spontaneity, and a broader selection of participants.

Analysis of the Various Negotiation Process

Take Reduction Team and Take Reduction Plans

Despite difficulties in balancing the need to reduce marine mammal kills and minimize economic impacts on fishermen, the mediated process has been successful in both producing several consensus take reduction plans and establishing better working relationships among the different interest groups. However, the TRT process is a new way of doing business for NMFS, fishermen and conservation groups. The shift from adversarial advocacy to a participatory planning exercise has left some of the players off balance. Particularly for those participants who were not at the negotiating table in either 1988 or 1993, there are obstacles of familiarity, acceptance and trust that have yet to be overcome. NMFS till struggling with how to implement the take reduction plans in regulations, especially recommendations for voluntary strategies, additional research, and fishermen outreach.¹

¹The Federal Advisory Committee Act establishes requirements that agencies must follow when consulting groups of individuals who are not federal employees, and it prescribes how these groups-perforce "advisory committees"-shall proceed in rendering their service to the agency.

Each TRT is unique-it has its own complexion and dynamic that influences the course of the negotiations and their outcome. For example, members of the harbor porpoise TRT had a lengthy history together in its previous incarnation as the Harbor Porpoise Working Group or the New England Fishery Management Council's (NEFMC) equivalent to the Harbor Porpoise Working Group. The sometimes volatile history of these groups made reaching a consensus a challenge. Furthermore, the efforts of the NEFMC to reduce harbor porpoise mortality ultimately provided the starting point for management strategies, once the group overcame some parties' reluctance to adopt additional measures to reduce harbor porpoise mortalities.⁶ In contrast, the Atlantic offshore team's debate was colored by pre-existing gear conflicts among the three commercial fishing types represented which had little to do with the marine mammal conflicts. As a result, the Atlantic offshore cetacean TRP is heavily peppered with strategies that relate more to the conflicts among the three fishing gear types brought about by competition for a limited and fully exploited fish resource, than to strategies that will effectively and unequivocally reduce the cetacean entanglement in those fishing operations.⁷

Nevertheless, where the participants have been successful in developing consensus documents, they look favorably upon the TRT vehicle as an alternative to the traditional adversarial and relatively closed process of developing regulations (notice and comment rulemaking process).

Marine Mammal Negotiated Rulemaking

The Marine Mammal Negotiated Rulemaking under the Federal Advisory Committee Act took a small but significant step toward revising the care and maintenance standard for captive marine mammals under the Animal Welfare Act. The consensus language to amend the regulations for general requirements for facilities, feeding, sanitation, qualifications for employees and attendants, and standards for separation, veterinary care, and transport lacks detail, could be broadly interpreted, and leaves a great deal of discretion to APHIS for its enforcement. However, it does slightly improve the current regulations that were last amended in 1976.

The negotiated rulemaking fell short of reforming the industry to the higher standards for captive care and maintenance that are currently being used by some of the more progressive and larger zoos and aquariums. The reason for this may be due, in part, to an unwillingness on the part of the public display industry as a whole to propose or agree to significant advances in the standards that would result in an economic burden to members of the industry that were already substandard or that were marginally meeting the existing standards. The heavy lobbying by that segment of the industry was the primary cause for this scenario.

In addition, the process suffered from a lack of published scientific literature that would scientifically substantiate raising certain captive care and maintenance standards (e.g. veterinary care, water quality, and feeding) to levels practiced by the superior zoos and aquariums. In the end, all of these issues resulted in the more highly contentious provisions of the regulations indoor and outdoor facility standards, space requirements, and water quality requirements--being left to APIHS to propose (considering the input of all of the parties) in their proposed rule for regulations.

Nevertheless, APHIS generally views the negotiated rulemaking positively and believes the modification to the sections where consensus language was reached will enable them to more effectively enforce the regulations. While it did not resolve all of the controversial issues, the consensus that was reached allowed APHIS to narrow its focus in preparing its proposed rule to revise the captive care and maintenance standards. Furthermore, it brought together and created a dialog between a strongly polarized public display industry and animal welfare community.

Lessons Learned, Components that Make a Successful Negotiation

As the reauthorizations and the implementation of the MMPA and the AWA have unfolded over the past ten years, not only have we learned more about the status of marine mammals, their interactions with the ecosystem and with humans, and their captive care and maintenance, we also have learned about the process by which resource managers, users of the marine environment, and the public interact with each other, public policy, and the decision making process. What are some of the key lessons gleaned from these various sets of negotiations?

Use a Facilitator

A negotiated rulemaking requires a facilitator; however, informal negotiations often do not. The participants in the 1988 and 1993 negotiations recognized the benefit of facilitators and made it a requirement of the MMPA that NMFS use a facilitator when convening a TRT. A facilitator can help identify participants and formulate a team ensure adherence to ground rules, set dates, and places for meetings, keep the group on schedule, provide a means to keep discussions flowing and open to all participants, collect notes and materials, and circulate drafts of various elements of emerging proposals. Facilitators are essential in helping players get past conflicts and move through posturing to substance. As talks progress to increasingly difficult issues, the facilitator can identify obstacles and assist the group in reaching critical breakthroughs.¹

Get the Support of the Agency Charged with Implementing Any Negotiated Product

In any negotiated proposal it is important that the agency or government entities charged with implementing the proposal must be an active participant in discussions and negotiations in order for a negotiated proposal to enjoy any success. While important in either case, this point is more critical in an informal negotiation than in a negotiated rulemaking. Also, if negotiations are to lead to a proposed legislative action it is vital to have the support of key Congressional committee leadership. Without this support, enactment of the proposals becomes more difficult.¹

Select the Right Mix of Participants

Prior to the commencement of the negotiations it is important to identify and determine whether all of the necessary interest groups will be represented in the negotiations. As stated, a facilitator can assist in this by interviewing and contacting individuals. The success of negotiations, particularly those requiring consensus, rely heavily on the good faith of the participants to actively negotiate and not arbitrarily attempt to block consensus or the progress of the group. Therefore, it is critical to select participants who will negotiate in good faith and who are prepared to fully support the negotiation, consensus process, and the implementation of its outcome. Groups that were not represented in the negotiation process or groups that were not invested and did not fully support the process may try to stop the implementation of the negotiated product.¹

Facilitators have noted that participants will only engage if they believe they will do better by building consensus than by lobbying their specific interests directly with the agency or Congress, or initiating lawsuits. In at least one instance, a TRT did not come to consensus due largely to the viewpoint of some dissatisfied team members who believed they could do better outside the TRT process.

Set Clear Terms of Reference

It is vital that participants know up front what topics are on the table and establish clear goals and objectives. Once terms of reference are established, the role of a facilitator becomes more apparent. In 1988, informal "conveners" and participants agreed on a series of talks and designated principal negotiators. However, without formal ground rules, additional players continued to enter and leave the talks, raising new issues, creating dilatory avenues of discussion and impeding overall progress. In the 1994 negotiations, the participants, with the help of the professional facilitator, established ground rules for the talks, including confidentiality of the exchanges, no discussion of components of the agreement to the press, time and flexibility to run the final agreement past associations, memberships and constituents, and an agreement not to denounce the process or the outcome, even if a group could not, in the final analysis, "sign on."¹

Despite this general agreement on terms, not all participants adhered to every rule. The voluntary nature of processes such as these means that no enforcement mechanism exists for participants who do not willingly agree to be bound by ground rules and terms. Furthermore, at some point in any negotiation where compromise takes place, proponents of a losing point of view may feel they can achieve better results by abandoning the consensus framework and advocating individually with the decision makers.¹

Deadlines are Important but are Potentially a Double-Edged Sword

Legal time frames or self-imposed time limitations by the negotiating group push players to come to closure. Time limits call for both facilitator and negotiators to set priorities, and identify issues on which they are most likely to achieve consensus early in the process. This then establishes a foundation from which to attack the more contentious issues later. At the same time, it is important to recognize that difficult issues require sufficient time, and any successful negotiation needs at least one opening session where parties do little more than "posture" and stake out territory before getting down to the business of compromise.¹

If the facilitator does not keep the discussions moving or the parties in the negotiation (as a potential strategy) deliberately stall, the more controversial issues may not be discussed and may ultimately be left for the regulatory agency to decide. Depending on the perspective of the parties (i.e. whether they can be more successful influencing the regulatory process than negotiating a controversial issue), this may become the preferred strategy of a particular side or participant.

Isolation, Unstructured Discussion Time, and an Opportunity for Participants to get to Know Each Other Informally Helps Move Discussion Toward Consensus

Closed venues where negotiators are not distracted by workaday demands enable participants to focus on coming to agreement. This isolation also provides participants the opportunity to spend time outside the negotiating room to foster relationships and create an atmosphere where breakthroughs can occur in informal settings when negotiators have dropped their "personae." It was apparent in the 1994 negotiations that personal familiarity among individuals and experience from prior talks in 1988 and other settings set a stage of trust between players on the two sides. The development of these relationships and the growing familiarity among TRT participants also benefited some of the TRTs in instances where there were participants that knew each other from serving on several teams. In the case of the marine mammal negotiated rulemaking, the breakthrough that helped the process achieve the consensus that it did, was having parties with strongly opposing views enter into a face to face dialog.¹

Scientists are Important in this Process

Scientists play a vital role in developing strategies for a management regime in light of scientific uncertainty. The importance of participation by scientists in negotiations is to bring to both informal negotiations and negotiated rulemakings a relatively unbiased understanding of the state of scientific fact as well as emerging knowledge and ongoing studies. In the marine mammal negotiated rulemaking, marine mammal researchers and veterinarians in the public display industry proved beneficial in improving marine mammal captive care standards based on their knowledge of "best management practices." Further, involving scientists has implications for the subsequent implementation of any proposal and any data collection recommendations. By integrating scientists in policy formulation, the negotiation process insures that the players most likely to be engaged as resource managers are in on the process from the ground up.¹

Furthermore, another factor that contributed to trust and cooperation in the 1994 negotiations, the TRTS, and the marine mammal negotiated rulemaking, was the reliance by policy analysts and lawyers upon their respective scientists. Small group sessions, caucuses, and subject expertise groups assist movement toward consensus by taking discussions out of large, plenary sessions. Breaking scientists away from the lawyers proves especially useful because they can focus on their respective areas of expertise and shared terminology and objective approaches. By finding agreement on science, scientists are able not only to contribute to consensus, but also to free up the lawyers for discussions of process.¹

Follow Through - Outreach to the Regulated Community is a Critical Component of any Negotiation and its Product

Finally, one aspect of the 1994 amendments and the TRT process that has been uniformly expressed is the need for public outreach to stakeholder groups. Relationships between the regulated community and the regulating agency are not always the best; too little trust exists between advocacy groups and the regulated community. Only time will tell, whether they agree to come together to work on building consensus to reduce incidental mortality of marine mammals in fishing operations. One important lesson is that there is a need for government, advocacy groups and industry to come together to implement any negotiated proposal and to educate those constituents who were not at the table, but who are, nevertheless, affected. Each group has a role and each must recognize that implementation and outreach is the most crucial component of any negotiated agreement.^1,6,7

Comparable Negotiation Processed are Applicable in Other Settings

Recent amendments to the Magnuson Fishery Conservation and Management Act provide authority to fishery management councils to use negotiated rulemaking in development of fishery management plans.' "Introduction of dispute resolution into fisheries management will likely have, greater success in discrete fisheries where the number of fishermen is relatively small and the management issues generally recognized. Experience in these less challenging circumstances will generate the awareness needed before undertaking dispute resolution in the majority of fisheries, where participants are more numerous and controversies and problems are more complex.⁹

The potential for mediated negotiations to resolve conflicts are endless. Pending reauthorizations of the Endangered Species Act and the Clean Water Act could benefit from having extremely controversial provisions tackled in negotiations, similar to those undertaken during the 1988 and 1994 MMPA reauthorizations. International fisheries agreements could be developed using this template. For example, conservation organizations, the tuna fishing industry, and the U. S. and Latin American countries negotiated the Panama Declaration, an agreement to conserve dolphins, the tuna fishery, and other marine life in the Eastern Tropical Pacific Ocean. This agreement is a potential model for other international fisheries agreements.¹⁰

Talking is a Better Conservation Strategy

Conservation benefits from developing strategies using facilitated negotiations versus the adversarial tactics employed by interest groups. Negotiating is the first step to dissolving the partisan atmosphere that has marked the environmental disputes. Through the dialogue of a negotiation relationships form, parties begin to develop an understanding of the other side's perspectives and motivations, and stereotypes dissolve. The participants lay the foundation for achieving a shared conservation objective or goal and, in so doing, formulate workable conservation strategies that might not otherwise develop in the traditional regulatory process. Those individuals in a particular industry often know best how to modify the existing technology to potentially attain a conservation objective. When we make these individuals part of the solution, and give them a voice in developing the regulations that they must live with, they are more likely to devise creative solutions and become invested in ensuring the success of the conservation strategies or regulations that they have had an active role in developing.

Nevertheless, the regulated community will often not undertake these initiatives on their own. Therefore, advocacy groups must be present to encourage these parties to take this step. Furthermore, traditional adversarial tactics used by some environmental groups are often necessary to motivate industry to enter into negotiations with more mainstream conservation groups.

The use of dispute resolution techniques such as negotiation and mediation is hampered by the legal and institutional barriers to risk-taking and change. In the long run, however, informal mediated processes and negotiated rulemakings offer a new and more creative approach to conservation. An approach that offers the promise of advocacy groups, industry, and the government working together to conserve the earth's resources is an approach worth taking.

References

1.  Young, N.M., and S. Iudicello. 1997. Blueprint for a Whale-Implementing the Marine Mammal Protection Act. Maine Law Review. In press.

2.  National Marine Fisheries Service, U.S. Department of Commerce, Draft Proposed Regime to Govern Interactions Between Marine Mammals and Commercial Fishing Operations, Draft Legislative Environmental Impact Statement. 1.3.3 at 1-4. (June 1991).

3.  Marine Mammal Protection Act. 16 U. S. C. § 13 87 (1994).

4.  61 Fed. Reg. 30545 (1996).

5.  5 U.S.C. App 1, Pub. L. 92-463 (1972).

6.  National Marine Fisheries Service. (1996) Gulf of Maine/Bay of Fundy Harbor Porpoise Take Reduction Plan. In Press.

7.  National Marine Fisheries Service. (1996) Atlantic Offshore Cetacean Take Reduction Plan. In Press.

8.  Sustainable Fisheries Act of 1996. Section 110 (d), Pub. L. 104-297 (1996).

9.  Weber, M.L. (1996) RESOLVE, Center for Environmental Dispute Resolution, No. 27, 1996, at 3.

10. Young, N.M., W.R. Irvin, and M.L. McLean. 1997. The Flipper Phenomenon: Perspectives on the Panama Declaration and the "Dolphin Safe" Label. Maine Law Review. In press.