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whales closely, the National Marine Fisheries Service required 

 them to obtain permits to "take" these whales by harassment. 

 The National Marine Fisheries Service took a year to issue them 

 a permit. If the scientists had not continued to rescue whales 

 illegally during this year, whales might have died from a lethal 

 combination of lax regulation of fisheries coupled with 

 over-regulation of the rescues. A Woods Hole permit application 

 to track habitat use by right whales was held up for over two 

 and a half years, so long that it had to be retracted. By 

 ignoring the real problem and hampering its solution, the 

 current implementation of the MMPA is doing more harm than good 

 for right whales. 



How did this policy go so wrong? The MMPA of 1972 banned any 

 taking or importing of marine mammals, with permits to be issued 

 only for public display or scientific research. For commercial 

 fisheries, "take" is usually construed as killing or injuring. 

 However, the definition of "take" in the MMPA lumps together 

 kills with harassment. Harassment is poorly understood, but 

 when a scientist asks for a research permit, "take" has been 

 defined to include minor behavioral reactions of negligible 

 impact either to individual animals or to populations. The 

 National Marine Fisheries Service devotes a significant fraction 

 of its regulatory effort tracking hundreds of research permits, 

 treating people who photograph an animal with similar rules as 

 those who shoot one. This leads to two problems. First, most 

 projects are delayed for most of a year, ruling out 

 unpredictable opportunities, and discouraging many promising 

 students and established scientists from working with marine 

 mammals. The Scripps Institution of Oceanography has written a 

 letter discouraging potential students from marine mammal 

 research because of excessive government regulation. Second, 

 when the National Marine Fisheries Service allocates scarce 

 resources on research and display, it ignores many more serious 

 problems such as the vessel collisions with right whales. 



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, most ships "take" thousands of 

 marine mammals a year by harassment. These "takes" are 

 completely predictable in many areas of high marine mammal 

 density. If commercial ships operated under the same rules as 

 research, they could seldom leave the harbor. The 

 inconsistencies of this policy do no good for marine mammals and 

 are vulnerable to challenge in court. 



There is a critical need to redefine "take" in the MMPA in a way 

 that focuses effort based upon magnitude of risk to animal 

 populations. I support a tiered definition separating takes 

 involving death or injury from takes which might harm an animal 

 or population and those which are not likely to cause harm. 

 Given the past regulatory history, it may be important to 

 reauire reaulators to control the most dangerous takes before 



