140 



taking in this case, porpoise, a goal reducing to incidental levels 

 approaching zero? 



Is there inconsistency there in your mind? 



Mr. Fensterwalo. I do not think so, because T think if the settina 



on porpoise were to — I started to say cease today, it is supposed lo 1>p 

 ceased, I have some serious doubt as to that; but leaving that aside — 



it would take a number of years for the porpoise population to gel 

 back to pre-exploitation levels, which is what you are talking about, 

 I think. 



I would think there have been somewhere in the neighborhood of 

 lfi to 17 years of slaughter. It would take some time to fret back to 

 the existing levels before exploitation. 



At that time the Congress might want to come back and change 

 this provision and allow a certain kill above that level. In other 

 words, to hold it down to that level. But that is a long time in the 

 future. Because there have been massive slaughters for 15 or 16 

 years. 



Mr. Spensley. The Act spoke of incidental taking of marine mam- 

 mals, it did not single out the porpoise, although it did refer to com- 

 mercial fishing. 



Are you suggesting then that the killing of porpoise was the reason 

 that thev set that immediate goal in the Act on the Senate side? 



Mr. Fensterwald. The Act, as it was origially drafted, did not 

 have special provisions for the tuna fish industry in it. and I think 

 that you will find, as in many similar instances, where you take a 

 particular item and just put it into an Act, that it does not mesh 

 completely, and there are certain technical inconsistencies between 

 it and other provisions of the act. 



I think the basic provisions were that the tuna fish industry would 

 be given 2 years in which to get techniques whereby the captured 

 porpoises were not killed. They have not done that. 



I think it was realized all along, and I think it is true today, that 

 there may be such techniques invented and there will be some minor 

 incidental kills for which permits and regulations are not necessary, 

 but we are not anywhere near that situation today. 



Mr. Spensley. Let me ask one final question. 



Would your clients be satisfied if it could be shown that porpoise 

 have been returned to an OSP level, and that what was taken would 

 be in excess or above the OSP? 



Mr. Fensterwald. I do not know if I can answer that completely, 

 because of the difference of opinion that seems to exist as to what 

 OSP is. 



I have been firmly of the opinion that OSP is the pre-exploitation 

 level, but in an effort to find some way around this act, the scientists 

 have come up with all sorts of other definitions, ranges, and other 

 things; but the environment did support x number of porpoises in 

 1075. I would think that would be the optimum sustainable popula- 

 tion, whatever that figure may be. I cannot find anyone in the scien- 

 tific field that seems to agree with that. I think that is what the 

 Congress had in mind, but I think in an effort to get around what 

 Congress had in mind, we completely lost sight of what OSP js sup- 

 posed to be. and I think it would be helpful if the act is revised to 



