9 



Dr. William Fox, who is the Chief of the Oceanographic Fisheries 

 Resource Division, Southwest Fisheries Center at La Jolla, Calif. 



Mr. Chairman, Mr. Murphy, members of the subcommittee, we are 

 pleased to be here today to discuss with you the issues surrounding the 

 implementation of the Marine Mammal Protection Act with specific 

 reference to problems involving the tuna-porpoise situation. 



As you know, the Marine Mammal Protection Act was enacted in 

 1972. With regard to the incidental take of marine mammals asso- 

 ciated with commercial fishing activities, the act provided a 2-year 

 "grace period" for the fishing industry. After the expiration of the 

 2 years, any incidental taking of marine mammals had to be pursuant 

 to permits which were to be issued by the Secretary of Commerce 

 pursuant to regulations after a thorough analysis of the marine mam- 

 mal stocks and the possible impact on those stocks any taking might 

 have. We issued regulations on September 5, 1974, which we felt 

 would adequately address the requirements of the act and recognize 

 the complex environmental issues involved. 



As you are aware, there has been considerable controversy over the 

 past year involving the promulgation of our regulations and our 

 actions related to the act. Much of this has resulted in litigation. On 

 May 11, 1976, Judge Charles R. Richey of the U.S. District Court for 

 the'District of Columbia in Committee for Humane Legislation, Inc. 

 v. Richardson, (414 F. Supp. 297 (D.D.C. 1976)) invalidated our 

 regulations and the general permit which authorized the taking of 

 marine mammals incidental to yellowfin tuna purse seining. That 

 order was stayed, as you indicated, by the U.S. Court of Appeals for 

 the District of Columbia Circuit until January 1, 1977 (540 F. 2d 

 1141 (D.C. Cir. 1976)) to avoid an immediate disastrous impact on 

 the fishermen who were operating under the general permit and to 

 allow ongoing gear studies to continue throughout the season. In re- 

 sponse to the court's decision, an intensive scientific effort was carried 

 out by our scientists to make certain determinations required by the 

 court as to the status of the stocks of the porpoises involved in this 

 fishery. This effort resulted in new proposed regulations. Public hear- 

 ings before an administrative law judge were held to review the pro- 

 posed regulations and the judge's recommended decision was issued 

 on January 17, 1977. A review of his recommendations has been com- 

 pleted, and we will promulgate revised regulations, on behalf of the 

 Secretary of Commerce, within a few days. 



The situation has been complicated by additional court actions. On 

 January 21, 1977, Judge William Enright of the U.S. District Court 

 of the Southern District of California in American Tunaboat Asso- 

 ciation v. Richardson, (Civil No. 76-971-E) issued a preliminary 

 injunction staying the enforcement of the Act insofar as the inciden- 

 tal taking of porpoise is concerned, subject to certain conditions. That 

 decision allowed the tuna industry to go fishing on porpoise after 

 January 25. Subsequently, the U.S. Court of Appeals for the District 

 of Columbia Circuit in Committee for Humane Legislation issued two 

 separate orders on January 28 and February 3 which, among other 

 things, required us to submit an enforcement plan; required us to 

 move the District Court in California to dissolve its order ; restrained 



