2
Regulatory Barriers and Possible Alternatives

Chapter 1 focused on the need for additional information so that the effects of low-frequency sound on marine mammals might be predicted and the potential trade-offs between the benefits of research that uses low-frequency sound and the costs to marine mammals might be assessed. As Chapter 3 indicates, the research that would provide some of the missing information is conceptually straightforward biological science, the proposed experiments should provide much of the needed information, and the cost is not enormous compared with that of other scientific efforts of comparable magnitude. However, research on marine mammals is heavily regulated and often delayed—even more than research on human subjects—which makes the prospects for timely conduct of some of these much-needed studies poor. This chapter discusses these regulatory burdens and suggests changes that would enable legitimate and needed research to proceed.

The Marine Mammal Protection Act and Its Interpretation

The Marine Mammal Protection Act (MMPA) was enacted by Congress in 1972, because species and populations of marine mammals were in "danger of extinction or depletion as a result of man's activities" (P.L. 92–522, Sect. 2(1)—the first finding stated by Congress in



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--> 2 Regulatory Barriers and Possible Alternatives Chapter 1 focused on the need for additional information so that the effects of low-frequency sound on marine mammals might be predicted and the potential trade-offs between the benefits of research that uses low-frequency sound and the costs to marine mammals might be assessed. As Chapter 3 indicates, the research that would provide some of the missing information is conceptually straightforward biological science, the proposed experiments should provide much of the needed information, and the cost is not enormous compared with that of other scientific efforts of comparable magnitude. However, research on marine mammals is heavily regulated and often delayed—even more than research on human subjects—which makes the prospects for timely conduct of some of these much-needed studies poor. This chapter discusses these regulatory burdens and suggests changes that would enable legitimate and needed research to proceed. The Marine Mammal Protection Act and Its Interpretation The Marine Mammal Protection Act (MMPA) was enacted by Congress in 1972, because species and populations of marine mammals were in "danger of extinction or depletion as a result of man's activities" (P.L. 92–522, Sect. 2(1)—the first finding stated by Congress in

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--> the MMPA as originally passed in 1972). The central component of the act was "a moratorium on the taking or importation of marine mammals" (Sect. 101). Certain exemptions to the moratorium were permitted: the two most important with regard to the potential impact of low-frequency sound are (1) permits for scientific research that would directly study or benefit marine mammals, and (2) "small incidental take" (SIT) authorizations for human activities that may disturb or even kill small numbers of marine mammals but that have negligible effects on the overall population. Few SIT authorizations have been applied for because of the complexity and time-consuming nature of the authorization process. Those that have been granted for noise-producing activities were for offshore drilling, seismic exploration, and rocket launches in a few specific coastal regions around the United States. In addition to activities such as those, other types of sound-related scientific studies that do not directly benefit marine mammals are hydroacoustic studies of plankton distribution or acoustic tomography studies of ocean currents. Such studies have proceeded without SIT authorization in the past, but are now coming under increasing regulatory scrutiny and scrutiny by the public and environmental groups. Again, we point out that what are called scientific research permits are only issued for research on or directly benefiting marine mammals; general scientific experiments that disturb or harm marine mammals are required to apply for SIT authorizations. The issues involved with each of these types of permit are discussed in the following sections of this chapter. The U.S. National Marine Fisheries Service (NMFS) is responsible for enforcing the moratorium on the "taking" of most types of marine mammals and for granting exemptions. The U.S. Fish and Wildlife Service (FWS) is responsible for walruses, polar bears, sea otters, and manatees. The definition of "take" in the MMPA (Definition #12) is "to harass, hunt, capture or kill, or attempt to harass, hunt, capture or kill any marine mammal.'' What constitutes harassment is not defined in the MMPA.1 Of all human activity, commercial fishing kills the largest numbers of marine mammals [see National Research Council (1992) for information on dolphin mortality associated with tuna fishing]. Since 1988, commercial fisheries within the jurisdiction of the United States have operated under a blanket exemption from the MMPA and can kill marine mammals, even from depleted populations, as long as 1    This chapter was written before the 1994 amendments to the MMPA were finalized.

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--> they register and report all animals killed.2 Direct hunting by native peoples is also allowed. Large numbers of fur seals are killed in legal hunts in the north Pacific, and various marine mammals are killed in legal subsistence harvests in Alaska. Although as an activity scientific research has comparatively little impact on marine mammal populations, it is the object of considerable regulation. For example, according to an annual NMFS report on MMPA, "One of the most extensive administrative programs in NMFS is the permit system that authorizes the taking of marine mammals for scientific research" (National Marine Fisheries Service, 1985). For reasons discussed in this chapter, it is the committee's judgment that this regulatory system actively discourages and delays the acquisition of knowledge that would benefit conservation of marine mammals, their food sources, and their ecosystems (see discussion in Le Boeuf and Würsig, 1985, p. 143). If strictly enforced, current procedures would also actively discourage some types of biological research (described below) that could be of great benefit to humans. Current procedures also impede the research of physical scientists who use high-intensity sound sources. Such studies provide knowledge about underwater acoustics, physical oceanography, and geophysics. Harassment of Marine Mammals One of NMFS's mandated responsibilities is to deal with actions that might take marine mammals by harassment—including actions involving the introduction of sounds into the water, because the definition of "taking" in the MMPA includes harassing. However, the definition of harassing is included neither in the MMPA nor in the regulations. 3 Logically, the term harassment would refer to a human action that causes an adverse effect on the well-being of an individual animal or (potentially) a population of animals. However, "the term 'harass' has been interpreted through practice to include any action that results in an observable change in the behavior of a marine mammal...." (Swartz and Hofman, 1991). In the opinion of the committee, this interpretation is inappropriate. There is no scientific evidence to indicate that the relatively mi- 2    This commercial fishing interim exemption from the moratorium on "taking" a marine mammal under the Marine Mammal Protection Act expires April 1, 1994. 3    NMFS has proposed a definition of harassment in the proposed regulations published in the Federal Register last year.

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--> nor and short-term behavioral reactions observed in marine mammals in many field situations have any long-term, adverse effect on the animals. Marine mammals, like other animals, show alerting responses and orient to many stimuli, natural and human-made. These reactions are part of their normal behavioral repertoire, and may or may not indicate an adverse effect on the animal. As discussed in Chapter 1, for example, in gray and bowhead whales, subtle behavioral changes have been detected through detailed analysis of migration paths. Sounds barely audible in the background noise of the sea can cause migrating whales to deflect a few hundred meters around the stationary sound source (Malme et al., 1983, 1984). One could argue that such brief and energetically trivial behavioral changes do not harm the whales and, in fact, prevent them from physically encountering a potential disturbance. Of course, stronger sources may ensonify a larger area, in which case the changes in migrating paths are more extensive and the potential disturbance may be more extreme (LGL & Greeneridge, 1987; Brewer et al., 1993). As researchers develop more sophisticated methods for measuring the behavior and physiology of marine mammals in the field (e.g., via telemetry), it is likely that detectable reactions, however minor and brief, will be documented at lower and lower received levels of human-made sound. It is conceivable that, with sufficient effort, subtle reactions might be detectable at any sound level intense enough to be heard by the animal (absolute detection threshold). These reactions may not involve a disruption of normal behavior or displacement. In that case, subtle and brief reactions are likely to have no effect on the well-being of marine mammal individuals or populations. Just as it would not be sensible to extend the definition of harassment to each successively lower level at which some subtle new reaction is detected, it is not sensible to have it set now at a level that activates alerting responses or minor course deviations. It is difficult to believe that these minor and short-term responses have any profound long-term influence on mammals. Indeed, such responses are probably beneficial to the species by allowing the animals to keep a safe distance from potential harm associated with some sound sources such as drilling equipment and moving ships. In humans, we draw clear distinctions among sounds that are detectable, annoying, and physically harmful. Levels that are annoying or harmful are highly variable, but are generally considered to be far above those that are barely detectable. OSHA does not require that special measures be taken to protect the hearing of workers unless the average sound level in the workplace is above 90 dBA (re 20 μPa—air standard). This level is about 100 dB above the level at

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--> which sound might first be detectable for humans. It is reasonable to suppose that a gap also exists between detection and damage thresholds for marine mammals, but current knowledge is inadequate to estimate the size of this difference. Additional research on absolute auditory sensitivity and temporary threshold shift (see Chapter 3) is the only way to acquire this important information. Annoyance thresholds for humans are somewhere between the detection threshold and damage limits, but there is no national standard in the United States. The annoyance thresholds for marine mammals are largely unknown, and it is probable that it will be at least as difficult to establish such standards for marine mammals as it has been for humans. Permitting Implications for Research Activity Scientific Research Permits Scientists who propose to conduct research directed toward marine mammals are aware of the permitting requirements of the MMPA and of the Endangered Species Act (ESA) and the associated regulations. Most of their research can be conducted under the scientific permitting process. They routinely apply for and obtain such scientific research permits. However, the lengthy and unpredictable duration of this process can create serious difficulties for research. For example, most permits are issued within about four months, but there is no guarantee that a response must be made to an applicant within any specific time. It is sometimes difficult to obtain such permits in time to conduct projects that must be completed within fixed time periods. It is often impossible to take advantage of some unforeseeable "window of opportunity" such as a whale stranding. A major drawback in current procedures is that regardless of the application date, permits are sometimes granted only a few days before a study is to begin. In some cases, the delay can be due to a researcher submitting insufficient or incomplete information in the permit application, resulting in the need for the applicant to supply additional information to NMFS before a permit can be issued. In addition to permit delays, certain types of research that are considered "invasive" or "controversial" either are not allowed under the current permitting process or may require an Environmental Assessment or even an Environmental Impact Statement under the National Environmental Protection Act (NEPA). Such a regulatory burden actively discourages researchers from pursuing those lines of study. The laws governing the "take" of marine mammals, including MMPA, ESA, and NEPA, set many of the requirements that must be

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--> met before scientific research permits or incidental take authorizations can be issued. The National Marine Fisheries Service and the Fish and Wildlife Service must implement permit procedures that comply with these laws. The committee recognizes that some of the changes in permitting procedures recommended later in this chapter would require changes in the applicable legislation. However, other changes could be made without legslative action through changes in the regulations that are implemented by NMFS and FWS. The committee strongly agrees with the objective of marine mammal conservation, but it believes that the present emphasis on regulation of research is unnecessarily restrictive. Not only is research hampered, but the process of training and employing scientists with suitable skills is impeded when research projects cannot go forward. Experienced researchers are the ultimate source for expanding our knowledge of marine mammals. A policy that interferes with the development of this resource appears to be self-defeating. Not only can current regulatory processes impede the carrying out of specific projects and the training and employing of scientists, but there are perhaps other losses as well, from studies not permitted if they do not hold potential for benefiting marine mammals. For example, marine mammals might be useful in investigations of human or terrestrial mammal medical problems. Such kinds of research might include (1) the study of the control of bradycardia and vasoconstriction (diving response) for application in the sudden infant death syndrome or various cardiac arrhythmias, (2) the study of cetacean bone with possible application for osteoporosis, (3) the study of marine mammal immunology for application to immune system understanding, and (4) the study of the dolphin brain and/or sound-processing system for the understanding of communication disorders. Furthermore, there are nonmedical studies that might not be seen to have direct benefit to the species, yet still yield important information for humans. Such studies include (5) the investigation of dolphin swimming or hydrodynamics with application in ship hull design, (6) the examination of dolphin echolocation with application in sonar design, and (7) the examination of dolphin neural processing with application in neural networks or computer logic. Under current procedures, studies such as the seven listed and others similar to them are unlikely to be permitted unless they are non-invasive or promise potential for benefiting marine mammals. Any intrinsic interest or potential application for human or terrestrial mammals regrettably seems not to be embraced by the current permitting process. The original MMPA was not as restrictive in this

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--> respect as the law is now. Amendments added in 1988, however, allowed for much more stringent treatment of research by federal regulators. Section 104(b)(3) of the act states: ''A permit may be issued for scientific research purposes only to an applicant who submits with its permit application information indicating that the taking is required to further a bona fide scientific purpose and does not involve unnecessary duplication of research." Federal permit officials may take a very restrictive stance on what "bona fide scientific purpose" or "unnecessary duplication" is. Restrictive interpretations of the former phrase can potentially affect or defeat worthwhile research that is not directly on or of benefit to marine mammals, such as the seven types of studies listed above, even if they are nonetheless beneficial and probably do not harm marine mammals in the process. Restrictive interpretations of "unnecessary duplication" can affect research on marine mammals and on other scientific subjects such as those listed. Most scientists feel that detailed peer review, a standard part of good research, should be used to determine what is "bona fide'' or duplicative rather than value judgments of permit officials. One suggestion is to amend Section 104(b)(3) of the MMPA (see Heck and Buck, 1992). Small Incidental Take (SIT) Authorizations Most biological research in the oceans is not on marine mammals but on other organisms such as fishes and invertebrates. Not only are many of these organisms prey of marine mammals and therefore vital for their survival, but they are essential for a healthy, functioning marine ecosystem. Moreover, much of the research on these organisms is used for understanding and thereby regulating sustainable fisheries. Some of the biological research on these organisms, for example, studies of krill populations in the deep scattering layers, directly employs acoustical tools (Mauchline, 1980). Also, the research vessels generate noise and, by being in marine mammal habitats, their activities can disrupt marine mammal behavior (e.g., by attracting or frightening the animals). Even though it might interfere with or affect marine mammals, scientific research on animals other than marine mammals has not been interpreted as being eligible for scientific research permits under the Marine Mammal Protection Act. These permits, in comparison with the SIT authorizations, are less difficult and time-consuming. However, as stated above, the MMPA is interpreted to require that eligible research be on or benefiting marine mammals. Thus, a researcher wishing to ensure that a study of animals other than ma-

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--> rine mammals is in compliance with U.S. law would need to apply for a small incidental take authorization. However, this is such a complex and time-consuming process that the application is considered to be a major undertaking, even by the few industrial groups and governmental agencies that have gone ahead with this process. The process may require as much as two years to complete, and may even require public hearings. As presently implemented, the SIT process is impractical for the typical individual researcher or for most small research teams. As part of that application, for example, the researcher must specify the geographic area where the work is to be done and the species and numbers of marine mammals that will be "taken." Trying to anticipate how such research might modify the behavior of a marine mammal at various distances, however slight the modification, is often an impossible task. Furthermore, few researchers or funding agencies can tolerate the delay of at least one and possibly two years between the formulation and the execution of a research plan. And clearly, the extra cost of hiring marine mammalogists to prepare the application and to monitor the effects of this research would present another obstacle. Likewise, in physical oceanography and marine geology and geophysics, much of the research employs powerful low-frequency acoustic sources that have a broad range of frequencies and intensities. Consequently, there is a strong probability that such research will modify the behavior of some marine mammals and hence constitute a "take" under the present interpretation of the MMPA. Loss of such research would have a profound effect on several areas of the physical sciences, and would deny access to important information about Earth. Geophysics uses acoustic information provided by low-frequency sources to determine the profile of the ocean floor and to make inferences about plate tectonics. Shifts in these plates result in earthquakes. Ocean acoustic tomography measures acoustic transmissions over very long paths—of the order of Earth's diameter. The travel times along these paths can be measured precisely, and from such measurements the velocity of propagation (which is temperature-dependent) can be calculated. Such experiments have the potential for estimating the average temperature in the ocean over great areas. This work is actively being pursued to provide information about global warming. The field of ocean acoustics is concerned with understanding propagation in ocean waveguides and reflections from the surface and bottom of the sea. Information from this area has played an important role in the development of sonar and other methods of underwater sensing. Basic research of this kind could also be helpful

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--> in improving acoustic systems that are capable of tracking marine mammals and their food supply. Not only is the SIT authorization process for basic research complicated and time-consuming, but the small incidental take provisions of the MMPA allow only for cases in which a small number of marine mammals will be subject to a negligible effect. It does not allow for cases in which a larger number might be affected in a negligible manner. The latter cases could arise when projected sounds were detectable over a large area at relatively low levels. At present, it is doubtful whether some acoustic oceanography projects could legitimately obtain SIT authorizations. They might not satisfy the small-number criterion, and the requirement to monitor the marine mammals potentially subject to a "take" would be difficult, if not impossible, to satisfy in any meaningful manner. In the past, scientific studies on topics other than marine mammals have proceeded without SIT authorizations, even if there was a strong probability that marine mammals would be affected. Such studies are coming under increasing regulatory scrutiny. If the present SIT process is applied to the wider spectrum of scientific projects, the complexities and delays of the process, along with the limitation to small takes, would have a chilling effect on a wide area of scientific enterprise. The committee believes that broadening the MMPA definition of scientific research permits to include areas of science not directly related to marine mammals would greatly facilitate many studies of ocean science. If the SIT process must be used for some or all of these studies, then the reinterpretation of "small" to include studies in which many animals might be affected, but by a negligible amount, would greatly aid many legitimate scientific research studies conducted in the ocean. Magnitude of Potential Noise Pollution from Oceanic Acoustic Studies Although the amount of noise pollution created by the scientific enterprise varies greatly depending on the nature of the research, it should be kept in mind that it is only one of the many seafaring activities of the human species. Appendix C presents the committee's calculations of how the amount of noise pollution generated by typi-cal oceanographic research studies compares with that produced by another common source of ocean noise, namely, the supertanker. If we restrict our concerns to a frequency band near 50 Hz, a band often

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--> used in oceanographic experiments, the yearly acoustic energy generated by the fleet of supertankers is about 50 times that generated by a year's worth of oceanographic experiments. If a wider frequency band was included the ratio would be more than 1,000 to 1, because the supertanker generates noise over a wider frequency band than the oceanographic experiment does. The analysis in Appendix C is based entirely on a calculation of the overall energy of the two types of sources. It does not take into account the location of the source and the marine mammals or the transmission path between the two. It also does not include the frequency composition of the source, which could be of great importance for some species. Also, if the oceanographic experimenter placed a source in the SOFAR (Sound Fixing and Ranging) channel (the layer of seawater from about 700 meters down to 1,500 meters in which sound travels relatively slowly) it would likely ensonify a much greater area than would a supertanker, whose sounds are generally poorly coupled to the SOFAR channel. In higher latitudes, however, the supertanker generally couples well with the SOFAR channel, which is close to the surface at those latitudes. In evaluating the potential effect of a specific acoustic exposure on marine mammals, one would need to consider the specific propagation conditions, the sound spectra, the marine mammals, and members of the food chain present. Given the present lack of knowledge, the advisable course is, when feasible, to locate and schedule all scientific exposures so as to avoid areas and seasons in which high densities of marine mammals might be present. In particular, the experiments should, when feasible, avoid feeding, breeding, or rearing areas at seasons when these areas are critical to the animals. This discussion of potential noise pollution should not be interpreted as approving or encouraging sonic pollution of a scientific origin or as justifying it in terms of another source of pollution. Indeed, on an evolutionary time scale, supertankers are quite a recent phenomenon. Some might argue that supertankers could be producing major negative effects on marine mammals and their food chain, and that evidence of this is yet to emerge. Whatever the case, ocean noise pollution will not be greatly reduced by meticulously regulating ocean acoustic studies, a class of sources that contributes less than 2 percent of the current yearly energy near 50 Hz. What is badly needed is more scientific research to assess the effects produced by all noise sources. This research would provide the knowledge that is needed for understanding the potential impact of all such pollutants.

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--> Proposed Changes in the Regulatory Structure The committee considered several possible alternatives for facilitating valuable research while maintaining all necessary protection for marine mammals. The committee notes that Section 101(a)(3) of the Marine Mammal Protection Act permits waivers of the act's provisions by the Secretary of Commerce and the Secretary of the Interior; we see no acceptable means for using the waivers to solve the current regulatory difficulties. The following alternatives seem worthy of consideration. Using a New Mechanism to Regulate Scientific "Takes" NMFS has proposed a new regime to focus on the larger purpose of maintaining all marine mammal populations at optimum sustainable population levels (National Marine Fisheries Service, 1992). If adopted by Congress, this regime would calculate for each species a conservative number of animals that might be "taken" by all human activities, and then allocate this potential biological removal (PBR) to different human user groups. The proposed regime is designed to redirect regulation to focus on human activities with the largest impact on marine mammal populations, scaling the extent of regulation to the risk the activity poses to populations. The proposed regime was initially developed primarily for commercial fishing, but it was designed to allow the inclusion of other "user groups" for PBR. If such a mechanism is adopted in the revised legislation, this committee recommends that Congress and NMFS consider it for regulating most "takes" of marine mammals by research as well. Since the objective of the law is to protect marine mammals, it is difficult to understand applying different, and less stringent, rules to activities that kill marine mammals than to activities that are known to benefit them or to have negligible effects on them. For any population in which harassment is considered to be a serious risk to populations, taking by harassment may be included in these regulations. Where taking by fishing is considered to have negligible impact compared to other activities, regulatory attention should focus on these more significant risks. Broadening the user groups in these regulations would improve NMFS's ability to monitor the effects of human activities in a more comprehensive manner. All takes would be monitored through a permit system requiring reporting of takes. This alternative permit system would be more practical than that currently applied to marine mammal research, and it could also be applied to other kinds of scientific research.

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--> Utilization of the IACUC System Another alternative scheme of regulation would be to make use of institutional animal care and use committees (IACUCs). In the United States, scientific research involving nonendangered terrestrial, and sometimes marine, mammals is reviewed locally by these committees. They operate under federal agency rules and guidelines and approve or disapprove protocols for research projects submitted by scientists for all animal-related research within the institutional purview. An IACUC provides peer review, and each committee also has an outside member representing the general public. The IACUCs have standard procedures for dealing with research on endangered species. It should be noted, however, that IACUCs cannot issue endangered species or marine mammal research permits under existing law. The IACUC system avoids the time delays of any process centered in Washington, D.C. IACUCs are effective in protecting individual animals. The focus on the individual makes it uncertain whether this approach would be sufficient to protect populations. At a minimum, NMFS or FWS or both would have to work with the IACUCs to provide them with timely information about population levels and geographic areas of importance to the animals for use by the IACUCs during proposal review and approval. Streamlining Existing Regulations If a system of regulation similar to the existing one must be maintained, then this committee suggests that the scientific research permit process be revised or streamlined. Some of these suggestions may require changes in the existing legislation. The following steps are appropriate whether or not one or more of the alternative regulatory approaches described above is implemented for some research situations. The suggested actions are these: Distinguish between different types of "taking," for example, incidental disturbance effects versus "hunt, capture, collect or kill." Streamline the permitting process for projects in which marine mammals would not be killed or captured. Further, streamline the process for projects in which the effects would clearly be not only nonlethal but also negligible. Streamlining could include some or all of the following:

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--> Require less information and/or fewer details in permit application. Make provision for noncontroversial applications to be approved without time-consuming review outside the specific permitting authority. Allow permits to cover a broader range of circumstances (e.g., more species, wider area, wider range of study protocols) without requiring a permit modification or new permit. Establish a set schedule for the processing of applications for scientific research permits. Obtain the staff needed to allow the schedule to be met. For example, within a specified period of time after receipt of a permit application (e.g., 10 days), the responsible agency (NMFS or FWS) should complete the "initial review" phase,4 that is, determine what action is appropriate and take that action: return to applicant for more information, determine that an environmental assessment (EA) is required under the National Environmental Policy Act of 1969 and initiate that process, or publish the required notice in the Federal Register and pass the application to the Marine Mammal Commission for comment. The public comment period (presently 30 days) should be nonextendable. Within a set time after expiration of that comment period (e.g., 10 days), the agency should issue or deny the permit, or advise the applicant that there are sufficient questions to require some other action such as a public hearing or EA. This approach would provide applicants with some assurance that a well-prepared and noncontroversial application would be processed within a set period of time. Amend the MMPA explicitly to allow scientific research permits to be issued for scientific research that is not specifically directed toward the study or benefit of marine mammals, provided the research meets reasonable standards. These could include standards or components similar to those that marine mammal studies must meet to obtain a research permit and that other human activities must meet to qualify for an incidental take authorization. For example, the research might be required to have some or all of the following attributes: to be nonlethal, to have negligible anticipated effects on individual marine mammals and their populations, to include an approved marine monitoring program where appropriate, to pass an acceptable process of peer review within its own discipline, and to be "not unnecessarily duplicative." 4    The revised permit regulation recently proposed by NMFS does not set any time limit for the 'initial review' phase (Federal Register, 14 October 1993, p. 53341).

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--> The committee also suggests that the incidental take authorization process be streamlined to make it practical for scientific researchers to use where appropriate. Insofar as possible, while maintaining adequate protection for marine mammals, this streamlining should include a reduced level of detail in the application for incidental take authorizations, more rapid processing, and clarification of the nature and extent of the marine mammal monitoring (if any) that would be required. Once authorizations are approved, applications for project-specific letters of authorization should require minimal lead time, if they are necessary at all. The committee further suggests that consideration be given to a revision in the incidental take provisions of the MMPA to delete references to small numbers of marine mammals. Such a change would allow NMFS or FWS to approve an incidental take authorization for any situation in which predicted effects on individuals and populations were negligible, regardless of the numbers of marine mammals that might be involved. This procedure could, for example, make an incidental take authorization possible in the case of an acoustical oceanography project that would ensonify an area large enough that more than a "small" number of marine mammals might be exposed to significant noise, provided that it could be demonstrated that the effect of the sound on these animals would be negligible. The committee recognizes that changes in the incidental take authorization process might also broaden its application to other types of human activity. However, it seems unreasonable that an exemption from the "take" prohibitions of the MMPA should be available for some human activities, including some that kill many marine mammals, without being available for other human activities whose goal may include the acquisition of information of potential value for the conservation of marine mammals. Summary of Recommended Changes The committee recommends altering the regulatory structure to facilitate legitimate research on low-frequency sound and its effects on marine mammals in the following ways: Broaden the definition of research for which scientific permits can be issued to include research activities beyond those "on or directly benefiting marine mammals." The population status of the species and the kind of "take" should determine the number of allowable takes, and the same regulations should apply equally to all seafaring activities.

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--> Expedite the regulatory process for activities involving nonlethal takes and further simplify the process for those nonlethal takes producing only negligible impact. Reword the incidental take authorization to delete references to "small" numbers of marine mammals, provided the effects are negligible. Consider transferring some aspects of the regulatory process to less centralized authorities patterned after the IACUCs that regulate animal care and safety in the academic and industrial settings. References Brewer, K. D. M.L. Gallagher, P.R. Regos, P.E. Isert, and J.D. Hall. 1993. ARCO Alaska Inc. Kuvlum #1 exploration prospect/Site specific monitoring program final report. Rep. from Coastal and Offshore Pacific Corp., Walnut Creek, CA, for ARCO Alaska Inc. and the Nat. Mar. Fish. Serv., Anchorage, AK. 80 pp. Heck, J., and E. Buck. 1992. The Marine Mammal Protection Act: Reauthorization Issues. Congressional Research Service. 92–728 ENR. Library of Congress. Washington, DC. 22 pp. Le Boeuf, B. J., and B. Würsig. 1985. Beyond bean counting and whale tales. Marine Mamm. Sci. 1(2):128–148. LGL and Greeneridge. 1987. Responses of bowhead whales to an offshore drilling operation in the Alaskan Beaufort Sea, autumn 1986. Rep. from LGL Ltd., King City, Ont., and Greeneridge Sciences Inc., Santa Barbara, CA, for Shell Western E & P. Inc., Anchorage, AK. 371 pp. Malme, C.I., P.R. Miles, C.W. Clark, P. Tyack, and J.E. Bird. 1983. Investigations of the potential effects of underwater noise from petroleum industry activities on migrating gray whale behavior. BBN Rep. 5366. Rep. from Bolt Beranek & Newman Inc., Cambridge, MA, for U.S. Minerals Manage. Serv., Anchorage, AK. Var. pag. NTIS PB86-174174. Malme, C.I., P.R. Miles, C.W. Clark, P. Tyack and J.E. Bird. 1984. Investigations of the potential effects of underwater noise from petroleum industry activities on migrating gray whale behavior/Phase II: January 1984 migration. BBN Rep. 5586. Rep. from Bolt Beranek & Newman Inc., Cambridge, MA, for U.S. Minerals Manage. Serv., Anchorage, AK. NTIS PB86-218377. Mauchline, J. 1980. The Biology of Mysids and Euphausiids. Advances in Marine Biology, vol. 18. 681 pp. National Marine Fisheries Service. 1985. Marine Mammal Protection Act of 1972: Annual Report 1984/1985. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Washington, DC. p. 4. National Marine Fisheries Service. 1992. Proposed Regime to Govern Interactions Between Marine Mammals and Commercial Fishing Operations. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Washington, DC. 96 pp. National Research Council. 1992. Dolphins and the tuna Industry. National Academy Press, Washington, DC. 176 pp. Swartz, S.L., and R.J. Hofman. 1991. Marine Mammal and Habitat Monitoring: Requirements; Principles; Needs; and Approaches. Report prepared for Marine Mammal Commission, August 1991. PB91-215046. pp. 2–3.