experiment, but because of concerns over possible effects on marine mammals only a limited deployment of ATOC was attempted. The 1994 report recommended that there be legislative distinction between different types of “taking” and that the regulatory agencies streamline the permitting process for activities that did not kill or capture marine mammals. Additional streamlining was recommended for nonlethal activities that have negligible effects. The 2000 National Research Council report reviewed the marine mammal research program that was a component of the limited ATOC deployment. In Marine Mammals and Low-frequency Sound: Progress Since 1994, the committee noted that the 1994 amendments to the Marine Mammal Protection Act (MMPA) addressed some of the issues raised in the 1994 NRC report. The 1994 amendments introduced two levels of takes by harassment under the MMPA—level A and level B harassment. Level A harassment was defined in the 1994 amendments as “any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild.” Level B harassment was defined as “any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” However, the 2000 National Research Council report emphasized the importance of a criterion for significance of disruption of behavior (pg. 68):

It does not make sense to regulate minor changes in behavior having no adverse impact; rather, regulations must focus on significant disruption of behaviors critical to survival and reproduction.

The report (pg. 69) recommended redefining level B harassment as any act that

has the potential to disturb a marine mammal or marine mammal stock in the wild by causing meaningful disruption of biologically significant activities, including but not limited to, migration, breeding, care of young, predator avoidance or defense, and feeding.

Since the report was issued, the term biologically significant has been used in discussions of the 2003-2004 reauthorization of the MMPA (House Report 108-464). The US National Marine Fisheries Service (now National Oceanic and Atmospheric Administration [NOAA] Fisheries) has also used the term in decisions to grant incidental harassment authorizations. Scientific investigation and description of what would constitute “biologically significant” have not been pursued in a comprehensive manner.



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