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We believe that the NMFS' proposed regulations, the need to eliminate government 

 duplication and to streamline the regulation of activities involving marine mammals, provide a 

 compelling need for the MMPA to be amended. 



VI. MMPA Amendments. 



AZA and Alliance members recommend that the MMPA be amended to: 



1 . Clarify that each offer to sell or purchase a marine mammal, the signing of a 

 purchase or sale contract, etc., by persons already holding valid permits for 

 scientific research, public display, or enhancing the survival or recovery of a 

 species or stock, is not a separate taking requiring yet another permit. 



Explanation of Amendment : In Kama, et al. v. The New England Aquarium, et. 

 aL, the plaintiffs argued the MMPA prohibits the transport, sale, purchase, offer to 

 purchase, offer to sell, and possession of a marine mammal without separate 

 permits to '"take" the marine mammal. Under the plaintiffs' theory, each step of a 

 purchase and sale transaction would require a new permit because each separate 

 action is a "take". Although that suit was dismissed because the plaintiffs lacked 

 standing, the MMPA requires clarification to prevent other similar suits. 



The only court which has considered the precise question of whether the term 

 "take" is limited to activities in the wild reviewed the language of the MMPA and 

 its legislative history, examined the agency's interpretation of the MMPA 

 concurrent with its passage, and ruled that the term "take" means taking from the 

 wild and does not apply to animals in captivity. 



As originally passed, the Act made it illegal to possess, sell, purchase, offer to sell 

 or purchase, and transport a marine mammal only if the animal was taken in 

 violation of the MMPA. During the 97th Congress, the MMPA was amended to 

 make the purchase, sale, offer to purchase or sell and transport illegal regardless 

 of whether the marine mammal was taken legally. That amendment was intended 

 to address enforcement issues associated with subsistence takes. This change has 

 led to unintended litigation, such as the case discussed above, as to whether the 

 public display community needs additional permits to transfer legally taken 

 animals. The proposed amendment, together with the conforming amendments, 



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