23 



Under current regulations, there are no preventive controls on 

 ships or fishing gear most likely to kill or injure the last remaining 

 right whales. In contrast, more and more controls are being placed 

 on the scientists who document these problems. 



A group of biologists on Cape Cod risk their own lives to save en- 

 tangled whales. Since they approach whales closely, NMFS re- 

 quired them to obtain permission to take these whales by harass- 

 ment. The permit took a year to be issued. 



If the scientists had not continued to rescue whales illegally dur- 

 ing this year, whales might have died from the lethal combination 

 of lax regulation of fisheries combined with over-regulation of the 

 rescues. 



How did this policy go so wrong? The Marine Mammal Protection 

 Act of 1972 banned any taking of marine mammals. For commer- 

 cial fisheries, take is usually construed as killing or injuring. How- 

 ever, when a scientist asks for a research permit, take has been de- 

 fined to include minor behavioral reactions of negligible impact. 



NMFS devotes a significant fraction of its regulatory effort track- 

 ing these research permits, treating people who photograph an ani- 

 mal with similar rules as those who shoot one. 



Another example may illuminate the problems of this double 

 standard. Extensive research shows that whales are disturbed by 

 loud ships when they are many miles away. These results suggest 

 that under current regulations, each ship takes thousands of ma- 

 rine mammals a year by harassment. If commercial ships operated 

 under the same rules as research, they could seldom leave the har- 

 bor. 



There is a critical need to redefine "take" in the Marine Mammal 

 Protection Act in a way that focuses effort based upon magnitude 

 of risk to animal populations. I support separating takes into three 

 different risk categories, one involving predictable death or injury, 

 a second involving potential harm, and a third involving negligible 

 impact. 



Given the past regulatory history, it may be important to require 

 regulators to control the most dangerous takes before committing 

 resources to insignificant ones. 



The purpose of permits for scientific research under the MMPA 

 was to allow scientific activities that would otherwise be prohib- 

 ited. The current permit process for scientific research is not inap- 

 propriate for the rare requests for lethal or injurious research. 

 However, I do not support requiring permits for research activities 

 that have negligible impact. 



The Marine Mammal Protection Act should be amended to allow 

 a general authorization for these research activities. 



It is less clear how to regulate research activities with an un- 

 known potential to harm or harass animals. And I would have to 

 emphasize that we have profound ignorance of some of these im- 

 pacts now. However, I do not believe that regulating individual acts 

 of non-injurious takes is appropriate. 



The impact of harassment and disturbance on populations de- 

 pends upon cumulative impacts which are a form of habitat deg- 

 radation. I believe they are better regulated as habitat manage- 

 ment problems than by attempting to regulate individual acts. 



