134 



1 [. The regulations provide for no observers on foreign purse seiners who 

 set on porpoise and export tuna to the U.S. ; thus, there will be absolutely no 

 way to know what methods are being used by foreign fleets or when the 

 total 'foreign quota" is met. 



rUOPOSED CONCLUSIONS OF LAW 



1. That under the Marine Mammal Protection Act, the welfare of the 

 marine mammals is to be given primary consideration; other considerations 

 must be relegated to at least second consideration. (Opinion of Judge Richey, 

 at p. 22; affirmation of the Court of Appeals, at p. 14-15). 



12. That the Marine Mammal Protection Act anticipated economic harm to 

 certain industries where protection of the marine mammals required it. 

 (Opinion of Judge Richey, at p. 2&-29.) 



3. The proposed regulations for 1977 do not comport with either the require- 

 ments of the Marine Mammal Protection Act or Judge Richey's interpretation 

 of it, for the following reasons: 



(a) There is no hard and fast quota for 1977; only a suggested or tenta- 

 tive figure of 29,920 in the "preamble", plus a specific regulatory provision 

 which would permit unlimited alteration by fiat of the Secretary any time 

 during 1977. 



(b) OSP should not be a percentage of anything; it should be the equiva- 

 lent of the pre-exploitation population; if one million white belly spinner 

 porpoise existed before purse-seining, ipso facto, their optimum sustainable 

 population should be one million; their environment could and can sustain 

 one million ; this is optimum. Until the pre-exploitation levels are determined, 

 a moratorium should be enforced under terms of the Act [16 U.S.C. § 1373(d) 

 (1) and (2)]. 



(c) Subsections (d)(1) and (2) of 16 U.S.C. §1373 also require statements 

 as to existing levels of population as well as optimum sustainable population 

 figures; the specific provisions of the Act are not satisfied in the published 

 data and the data produced at the hearing; existing levels of population are 

 missing in regard to four species; OSP is not stated in numbers but either 

 in "ranges" or "at or above" terms; neither of these is acceptable compliance 

 with the provisions of the Act. 



(d) The tentative figure of 29,920 is not an insignificant level approaching 

 zero. [16 U.S.C. § 1371(a) (2)]. 



(e) The killing 29,920 porpoises is to the "disadvantage" of the porpoises 

 and is forbidden by 16 U.S.C. § 1373(a). 



(f) The simple prohibition against setting on "mixed schools" is insufficient 

 to prevent the harassment or killing of certain depleted, threatened, or endan- 

 gered species of marine mammals which are associated with yellowfin tuna, 

 including Fraser's dolphin, Risso's dolphin, etc. 



4. Both the "preamble" and the proposed regulations speak in terms of 

 limited "take" of porpoises (see the table at the top of p. 45016 which refers 

 to "Proposed allowable take by U.S. vessels") ; under the definition section of 

 the Marine Mammal Protection Act [16 U.S.C. §1362(13)] "take" includes 1 

 "harass", "hunt", "capture", etc.; it is unclear whether the regulations and/or 

 permit anticipate an initial "take" of 29,920 or a mortality of 29,920. After all, I 

 individual porpoises are hunted and captured many times during a season. If | 

 the 29,920 figure is for "take", that is one thing; if it is for "kill", that is an 

 entirely different matter. It is presently unclear. 



5. There is nothing in the Marine Mammal Protection Act or its legislative 

 history which would prevent National Marine Fisheries Service from condi- 

 tioning a permit on acceptance by the permittee of an observer on every vessel 

 on every voyage. 



6. If valid regulations are even proposed and issued they must contain 

 figures for species and stocks and not aggregates. 



7. The proposed regulations do not provide adequate provisions for the 

 policing of foreign ships setting on porpoise and the banning of imports from 

 countries with lower standards than the United States [16 U.S.C. § 1371 

 (a)(2)]. 



CONCLUSION 



FOA and CHL believe that the record clearly shows a failure of both the 

 Government and the tuna industry to propose regulations which fulfill the 



