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Mr. Lf.ggett. Now, the law says that the Secretary shall publish 

 a notice in the Federal Register of each application made for a per- 

 mit under this section. Such notice shall invite the submission from 

 interested parties within 30 days after the date of the notice or 

 written data are viewed with respect to the taking or importation 

 proposed in such application. 



Mr. Butler. The industry submitted its request for a permit last 

 August or September. Then a Federal Register notice was filed. It 

 was one of the manv opportunities all of us have had to comment 

 on the subject in the interval. What I have suggested is at least a 

 legal argument of sufficient merit so that NMFS should give it close 

 attention. 



What is the purpose of waiting 30 days to receive comments, when 

 there will be no comments forthcoming? 



Arguablv. that requirement has already been met, and I would 

 agree with the chairman, if I caught the drift of your comment 

 this morning correctly, that perhaps the interpretation of the NMFS 

 has been a little too conservative in this regard. 



Another point that I wanted to make here is that in the discussion 

 this morning of the act's definition of depletion, there was the dis- 

 tinction drawn between legal depletion under the act, particularly 

 the criteria, and biological depletion. I thought I caught from the 

 drift of comments on the part of some members of the committee 

 that they felt biological depletion and the legal definition of deple- 

 tion should be synchronized so as not to get caught in a situation as 

 now where we now have a species which is legally but not biologi- 

 cally depleted. 



My response is simply to ask what is biological depletion? If by 

 biological depletion is meant threatened or endangered status, it was 

 clearly the intent of this committee and Congress in passing this act 

 to protect marine mammals before they reach threatened or en- 

 dangered status. 



I don't know how to respond that legal depletion and biological 

 depletion should be the same until I know what is meant by biologi- 

 cal depletion. No one has defined it. 



The next point: the committee this morning reexamined with Dr. 

 White, and more specifically with Dr. Fox, the population estimates 

 for the various species in question. I am sure this committee knows 

 that for many days of cross examination at the recent NMFS ad- 

 judicatory hearings, we took up not only the Government's popula- 

 tion estimates, but the industry's population estimates, and we went 

 back and forth through thousands of pages of transcripts and ex- 

 hibits. Ultimately it was the finding of the administrative law judge, 

 as well as NMFS Director Schoning. that the best evidence was the 

 Government's evidence in this regard. 



I really don't think much use can be served here by trying to 

 relitigate the specifics of that 3-week cross examination. 



Another point was. and I think, Mr. Chairman, that you went 

 through this with Dr. White and Dr. Fox, how do you tell an East- 

 ern Spinner from another porpoise? That was basically the question. 

 And while it may not be as easy as telling a blond from a brunette, 

 it isn't that difficult either, inasmuch as not only does the Eastern 



