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requirements of the Marine Mammal Protection Act per se and as interpreted 

 by the Courts. For that reason, we urge the Administrative Law Judge to 

 advise the Secretary (a) to reject the proposed regulations and (b) if deemed 

 advisable, to publish new proposed regulations for further consideration. 

 Respectfully submitted. 



Bernard Fensterwai.d, Jr., 



Counsel for the Friends of Animal* 



and the Committee for Humane Legislation. 



Mr. Fensterwald. I would like to make a few comments. 



I am one of the prime litigants before the courts now, and I would 

 like to say that I am not even vaguely embarrassed by the court 

 battle that is going on. I think what has happened in the courts in 

 the District of Columbia is very encouraging. Whether you approve 

 of the regulations that the Commerce Department has put out or 

 not. I think it is encouraging to find that the courts are going to 

 force the Government to enforce an Act of Congress, whether it is 

 a popular one in all quarters or not. This is one of the few strong 

 examples that I have seen where the courts have said this is what 

 the Congress says, it is the law, and wo are going to enforce it. 



That does not embarrass me at all. 



If the Congress does change the law, of course, the courts will have 

 to interpret a new law. 



I would also like to say that I think there are a number of groups 

 in this country, who are not represented here today, some of whom 

 have been represented in the administrative forum and in the 

 courts, but who at the moment are remaining silent, who might agree 

 with me that we are still of the opinion that the setting on porpoise 

 and the kill of porpoise is wrong, and that what the Congress did in 

 1072 was to give the industry a 2-year grace period in which to find 

 some way to set on porpoise without killing them. 



The 2 years went by and they have not succeeded. 



We are now into the fifth year, the kill is going on roughly at the 

 same rate it was in 1972 when the act was passed. It goes up and 

 down slightly, but at an annual rate of approximately 100.000: it 

 wns at an annual rate of 120.000 in 1976. 



I certainly do not see any great decline. 



I certainly do not think 100.000 is an insignificant number. I do 

 not think it is approaching zero. And. frankly. I think most of the 

 talk here that you have had today concerning all of the improve- 

 ments of gear and the EMtzabetli ti. J., and all the rest of it, is veri- 

 similar to the talk that we heard when the act was passed. They were 

 given the 2-year grace period because of all the optimistic talk about 

 how the killing of porpoises was virtually solved and "give us 2 years 

 and we will be all right." 



I do not think things have changed much. 



There have been some refinements and improvements, but at an 

 annual rate of 100,000 to 130,000. I do not think the promises are 

 even vaguely met. 



I think the committee should remember that people have been 

 catching yellowfin tuna literally for thousands of years without kill- 

 ing a single porpoise. This whole slaughter business started as late 

 as 1958 or 1959. You are not talking about some historical precedent 

 that we are about to undo. This is an American invention. It is one 



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