39 



I do agree with my colleague that we want to try to manage with 

 a minimum intrusion, which is always a delicate balance, I under- 

 stand that, and we do not, nor can we, always achieve what every- 

 body will define as delicate, but I would like to see if we cannot 

 explore that a little bit, so that as we move toward the markup 

 here we are coming at it from a closer direction. I think we could 

 be. 



Would you share that sense? 



Dr. Foster. Oh, yes, I think so, and I think that — well, again, 

 I think if we can overcome the sort of fundamental concerns by 

 talking them through that we ought to be able to find enough com- 

 mon ground. In fact, there is enough common ground already. 



Senator Kerry. Dr. Hofman. 



Dr. Hofman. If I may, Mr. Chairman, several points may help 

 clarify some of the issues. 



First, with respect to the burden -of-proof issue, there is an im- 

 portant point I think that has not yet come up, and it is actually 

 a point of agreement. That is, under the Marine Mammal Protec- 

 tion Act as originally written, there was a categorical prohibition 

 on taking from stocks that were endangered, threatened, or de- 

 pleted, with the basic exception of taking for scientific research. 



I think everybody agrees that that total restriction both is unnec- 

 essary in terms of the affected stocks and may have — ^in fact would 

 have — impacts on fisheries that are unnecessary. I think everybody 

 agrees that provision should be made under certain circumstances 

 to allow the taking of stocks that are listed as endangered and 

 threatened under the Endangered Species Act and depleted under 

 the Marine Mammal Protection Act. 



I think everybody is looking to a change in the Marine Mammal 

 Protection Act now that would authorize taking of listed species in 

 certain circumstances. 



One of the directives provided by Congress was that this new re- 

 gime be based upon sound principles of wildlife management. What 

 the commission used and cited in the guidelines that it provided to 

 the National Marine Fisheries Service with respect to that directive 

 was this paper that was a product of a series of workshops in 1975 

 called, "New Principles for the Conservation of Wild Living Re- 

 sources." 



One of the basic principles is that management should be risk 

 averse. This is true for management of fisheries as well as marine 

 mammals and other wild living resources. Traditionally, the basic 

 conservation ethic has been do nothing until there is clear evidence 

 of a problem. So, everything was reactive. 



What this principle indicates, and I think what Dr. Foster is 

 talking about, is we need to be getting into the risk averse kind 

 of management where instead of being reactive we are proactive. 

 I think the Marine Mammal Protection Act really was the first 

 demonstration of legislative intent in this regard, not only in the 

 United States but throughout the world. 



The third point is the issue of critical stocks. I think again there 

 is agreement that we are not going to have sufficient resources in 

 terms of either money or people to try to do everything, so that the 

 task is to identify those places where we have tne worst problems 



