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out distinction as to characterizations of incidental, accidental, 

 or deliberate. It is estimated that marine mammal fatalities as 

 part of tuna fishing operations represent two percent of those 

 mammals actually captured in the purse seine nets. At this rate, 

 over four million porpoises were "taken" in 1976 alone. Under the 

 proposed quota of 59,050 for part of 1977, approximately three 

 million porpoise would be "taken" during this short period. 

 §§1371 and 1372 prohibit the taking of marine mammals unless one 

 is in possession of a permit issued pursuant to §1374. Yet, as 

 currently drafted, the regulations address only takings which result 

 in fatalities. Are all other takings prohibited? Are such limited 

 regulations enforceable? Or are these regulations void as their 

 predecessors for failure to respond to the statuatory scheme? 



4) Within §1371 (a) (2) is the specific goal that incidental 

 kill and serious injury of marine mammals permitted in the course 

 of commercial fishing operations be immediately reduced to 

 insignificant levels approaching zero. The agency has mistaken 

 this objective as the outer limit of the Act's concern. How- 

 ever, even assuming that the agency is correct in its view, the 

 regulations fail miserably. The regulations authorize a mortality 

 quota of 59,050 for a period of 38 weeks at maximum. 42 Fed. Reg. 

 12018. On an annual basis, this would equal a total kill of over 

 80,000 -- hardly an improvement over the 1975 quota of 78,000. 

 Five years have elapsed since passage of the MMPA and its artic- 

 ulation of an immediate goal of a fatality and serious injury 

 rate approaching zero. As an absolute number or as a comparative 

 figure, 59,050 marine mammal deaths is not within the Act's tol- 

 erance. 



5) If taking is permitted, the Act requires that all such 

 taking of marine mammals be done in a humane manner. It is in- 

 cumbent upon the Secretary to determine that the manner of take 

 involves the least possible degree of pain and suffering prac- 

 ticable to the mammal involved. 16 U.S.C. §§1362(4), 1374(b)(2)(B) 



