MARINE MAMMAL COMMISSION - Annual Report for 1995 



interpret the whale's reaction as a sign of harassment. 

 In the court's view, the whale's actions could have 

 been a playful response and did not necessarily 

 indicate agitation. 



Subsequent to the events at issue in this case, the 

 Marine Mammal Protection Act was amended. As 

 noted in the discussion of the previous case, one of 

 the amendments added a statutory definition of harass- 

 ment. The interpretation of what constitutes harass- 

 ment applied in the Hayashi and Tepley cases has been 

 superseded by that statutory definition. 



Acoustic Thermometry of 

 Ocean Climate Program 



In January and February 1991 oceanographers 

 from the United States and several other countries 

 conducted an experiment to determine if underwater 

 transmission of low-frequency sounds could be used 

 to detect changes in ocean temperature, possibly 

 indicative of global warming. The experiment, 

 referred to as the Heard Island Feasibility Test, was 

 successful and, in 1993 the Defense Department's 

 Advanced Research Projects Agency provided funding 

 to the Scripps Institution of Oceanography for a 30- 

 month pilot or proof-of-concept study. This study, 

 titled the "Acoustic Thermometry of Ocean Climate 

 (ATOC) Program," called for installing 260- watt, 

 low-frequency sound generators in deep water 15 km 

 off Haena Point on the island of Kauai, Hawaii, and 

 40 km off Point Sur, California. 



Many species of marine mammals use sound to 

 communicate, navigate, and locate and capture prey. 

 Available information is insufficient, however, to 

 determine how these or other marine mammals might 

 be affected by the ATOC program. Consequently, a 

 marine mammal research program was included as 

 part of the pilot study in both Hawaii and California. 

 An advisory board, composed of five scientists not 

 associated with the program, was established to 

 provide advice on the design of the studies. Upon 

 request, the Marine Mammal Commission agreed to 

 have a staff member serve as an ex officio member of 

 the board. 



As noted in the Commission's previous annual 

 report, several scientists, environmental groups, and 

 legislators called for public hearings on the applica- 

 tions to the National Marine Fisheries Service seeking 

 permits authorizing the ATOC-related marine mammal 

 studies in both Hawaii and California. In response, 

 the Service held a series of public hearings in the 

 spring of 1994. Among other things, individuals 

 attending the hearings questioned whether the pro- 

 posed marine mammal studies would resolve the 

 uncertainties concerning the possible effects of the 

 ATOC program on marine mammals and other marine 

 organisms. They questioned whether sufficient infor- 

 mation to resolve the uncertainties was available or 

 could be gathered before transmissions began. They 

 also questioned whether the planned placement of a 

 sound generator on Sur Ridge, within the Monterey 

 Bay National Marine Sanctuary, was consistent with 

 the sanctuary's objectives or California's Coastal Zone 

 Management Program. They called for revision and 

 expansion of the proposed marine mammal studies and 

 preparation of environmental impact statements to 

 ensure identification and objective evaluation of the 

 possible environmental impacts of the planned ATOC 

 program. 



In response to the concerns expressed by scientists 

 and others, the Advanced Research Projects Agency 

 decided to prepare environmental impact statements to 

 ensure that all relevant issues were identified and 

 considered before moving ahead with the program. 

 Also, the oceanographers responsible for the program 

 agreed to structure its start-up phase to facilitate 

 acquisition of information necessary to determine how 

 and to what extent the ATOC sound transmissions 

 might affect marine mammals and other biota. 



Draft environmental impact statements for the 

 programs in California and Hawaii were made avail- 

 able for review and comment in December 1994. The 

 Commission, in consultation with its Committee of 

 Scientific Advisors, provided comments on the drafts 

 for the California and Hawaii projects by letters of 27 

 January and 9 March 1995, respectively. The Com- 

 mission noted that both drafts provided generally 

 thorough and objective assessments of the species and 

 numbers of marine mammals that might be present in 

 areas where they could be affected by sound transmis- 

 sions and how the various species might be affected. 



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