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identification of marine mammal stocks, 



I must mention another area where a tiered definition of take 

 must be implemented. The only exemptions from the prohibition 

 on taking marine mammals that are available to activities other 

 than commercial fishing, marine mammal research, and public 

 display, are the small take exemption of section 101(a)(5) and 

 the one year economic hardship exemption of section 101(c). If 

 the same definition for taking that is currently applied to 

 research were applied across the board, few sea-faring 

 activities would be able to conduct business. For example, the 

 only mechanism available under the MMPA to allow whale responses 

 to ship noise would be for the Secretary to issue a one year 

 exemption for economic hardship. Even if these noise responses 

 were shown to have negligible impact, they would not be eligible 

 for a small take exemption because so many whales would be 

 expected to respond to the noise of each ship. 



The existing language for small take exemptions may be 

 reasonable for lethal takes, although the regulatory process is 

 so arcane and time consuming that only eight petitions have been 

 filed. If NMFS is going to start enforcing the prohibition 

 against taking marine mammals to industries such as shipping or 

 underwater demolition, some more streamlined regulatory 

 mechanism needs to be developed. A better solution would be to 

 include all activities in the allocation of potential biological 

 removals that were originally designed for commercial fisheries. 

 I would suggest that takes such as minor disturbance responses 

 which involve minimal risk to either individuals or populations 

 should not require authorization. I suggest deleting references 

 to small numbers of marine mammals for takes that involve 

 negligible risk. Some middle ground must be found to regulate 

 takes that might conceivably harm marine mammals. The policy 

 should emphasize that the critical issue is risk to populations 

 and should involve strong incentives to determine the level of 

 risk. 



There is an important larger issue here. The impact of 

 harassment and disturbance on populations depends upon 

 cumulative impacts which are a form of habitat degradation. 

 This means they are better regulated as habitat management 

 problems than by attempting to regulate individual acts. While 

 harassment is difficult to define in the abstract, it is easier 

 to rank the significance of prey depletion, incidental take, 

 contamination, or harassment for a specific population in a 

 particular habitat. 



The single most important change in policy most likely to 

 protect marine mammals is to develop better stock assessments to 

 target populations at risk. The MMPA has required a 

 continuing review of the status of marine mammal populations 

 since 1972. Twentv vears later, estimates are available for 



