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species of marine mammal. Thus, according to the statuatory 

 construction, "disadvantage" must be defined as any taking that 

 will reduce a stock below its optimum sustainable population. 

 What has been lost in all of the "scientific" activity directed 

 at defining optimum sustainable population (OSP) is the proposition 

 that OSP must be at least that number of marine mammals in exis- 

 tence before exploitation of the tuna-porpoise relationship began. 

 This figure is refered to as initial stock size. By the govern- 

 ment's own figures, no major species population is currently larger 

 than 76 percent of its initial size. 42 Fed. Reg. 12010, 12017 

 (March 1, 1977). Nevertheless, the regulations adopt a range of 

 50 to 70 percent of initial stock size as a lower bound of OSP and 

 establishes mortality quotas for all but one stock. 42 Fed. Reg. 

 12016, 12017. 



2) Optimum sustainable population is never quantified, but 

 only stated in terms of a "range" of between 50 and 70 percent. 

 This range neither meets the requirements of the Act, 16 U.S.C. 

 §1373(d), nor the May 11, 1976 Order of this Court. The mora- 

 torium on marine mammal deaths cannot be waived until the OSP 



of all species and stocks is known with some degree of certainty. 



3) §1362(13) defines the word "take" to mean harass, hunt, 

 capture, or kill, or attempt to harass, hunt, capture, or kill 

 any marine mammal. In each pertinent section of the Act, §§1371- 

 1376, the word employed is "take" — not kill. The Committee for 

 Humane Legislation does not recognize that the regulation of 

 incidental taking of marine mammals addressed in the Act is con- 

 fined to reduction of "mortality and serious injury." There is no 

 such context and such an interpretation flies in the face of the 

 explicit language of 16 U.S.C. §1362(13), which is far more broad. 

 The Marine Mammal Protection Act(MMPA) is infused with the intent 

 to reduce mortality and serious injury to a level approaching 

 zero, but also to reduce harassment, hunting, and capture and with- 



