17 



Senator Kerry. Well, if you have not thought it through and it 

 is not at 0MB, where does that leave us in terms of a legislative 

 response or an adequate response to any of the groups that are ad- 

 vocating a clear definition? 



Mr. Hall. Senator, I think that we have — that the change in reg- 

 ulation will give us a mechanism for dealing with that. And I think 

 it is incumbent upon the National Marine Fisheries Service then 

 to take a conservative approach in dealing with permits of that 

 sort. But it has to be the responsibility of the agency to make sure 

 that we fulfill our responsibilities under the act, because right now 

 we do not have a legislative mechanism to really define that and 

 we are taking other definitions for scientific research and using 

 those when, in fact, we do not really have a clear definition under 

 the law. 



Senator Kerry. Well, what is the standard that you think now 

 ought to be applied to scientific research? 



Mr. Collins. The standard that is now in the statute is that it 

 has to be bona fide, and the Marine Mammal Commission has done 

 quite a bit of thinking about this issue and maybe Dr. Hofman 

 would comment. 



Dr. Hofman. Before I comment on that or respond to that. Sen- 

 ator Kerry, if I mav go back to the issue of filmmaking, I am not 

 sure that the issue nas been completely laid out. 



One way would be to define "filmmaking" as a type of public dis- 

 play that could be done under regulations. Public display, only ani- 

 mals that are basically nonlisted animals can be taken for public 

 display, so an issue — if somebody wanted to make a documentary 

 of humpback whales in Hawaii, for example, a species that is listed 

 under the Endangered Species Act, there is no mechanism under 

 the Marine Mammal Protection Act to authorize that. 



So, the only way that can be done legally is if it does not involve 

 any taking. In the Marine Mammal Commission's view, this is a 

 very, very important activity, documentary filmmaking. It serves 

 potentially a very important educational function. It also can con- 

 tribute to science in the sense that certain kinds of film can be 

 made available to scientists, and it also serves, obviously, a very, 

 very important economic function. 



In our view, it would be appropriate to provide authority in the 

 act — and the Congress is the only one who could do that — to issue 

 permits, and in our view the standard is the standard that it would 

 have a negligible impact on the animals being filmed, and if there 

 is a question about that, provision could be made to require that 

 an enforcement agent from the National Marine Fisheries Service 

 accompany the people making the documentary and that the com- 

 panies making the film pay the cost of that. 



So, in our view, to the extent that this is an important activity, 

 it presently cannot be authorized when it involves the possible tak- 

 ing of a species that is endangered, threatened, or depleted under 

 the Marine Mammal Protection Act, and in many cases those are 

 with the greatest interest. 



Senator Kerry. What if the taking were incidental, or critical to 

 the capacity to properly make a documentary that argues for the 

 larger preservation? Would it still be impossible to do it? 



