By late 1988, the Service had taken no action to implement 

 performance standards. However, the 1988 amendments to the 

 Marine Mammal Protection Act directed the National Marine 

 Fisheries Service to develop and implement a system of perfor- 

 mance standards for U.S. tuna fishermen by the beginning of the 

 1990 fishing season. The system must include a mechanism for 

 identifying and providing supplemental training to certificate 

 holders whose incidental marine mammal mortality is consistently 

 and substantially higher than the fleet average. It also must 

 provide for suspending or revoking the certificates of those 

 fishermen whose high rate of incidental take reflects a lack of 

 diligence or proficiency in the use of reguired fishing tech- 

 niques and gear. 



Early in 1989, the Service drafted a paper setting forth a 

 proposed operator performance system. On 8 February, the Service 

 convened a meeting of interested parties to discuss its 

 contemplated approach. At that meeting, representatives of the 

 Commission commented that draft standards appeared to be lenient 

 and suggested the addition of a performance standard that 

 considered an operator's performance throughout the entire 

 fishing season. The Commission also indicated that the 

 comparability standard chosen by the Service needed to be 

 justified and should be statistically based. 



The Service subsequently reworked its proposal and provided 

 a draft proposed rule to the Commission for review. The draft 

 rule proposed two separate standards for judging the performance 

 of U.S. tuna vessel operators. Any skipper who exceeds the five- 

 year fleet-wide average porpoise mortality rate by a factor of 

 five on any fishing trip, or who exceeds the mortality standard 

 by 1.5 times on three consecutive trips, would be subject to 

 certificate suspension. 



By letter of 4 August 1989, the Commission reiterated its 

 earlier comments that a performance standard also was needed 

 regarding long-term performance. The Commission also noted that 

 the standards apparently had not been based on a statistical 

 analysis of mortality rate performance observed within the fleet. 

 In addition, the Commission noted that, prior to 1989, U.S. tuna 

 fishermen were allowed to conduct sundown sets, which have a 

 higher mortality than daylight sets. It therefore recommended 

 that the Service exclude such sets from the data used to 

 calculate the five-year average against which performance is 

 judged. 



On 11 August 1989, the Service wrote to the Commission 

 indicating that, due to scheduling considerations, it could not 

 incorporate the suggested revisions before publication of the 

 proposed rule but that it would make the Commission's comments 

 part of the record on the proposed rule. The proposed rule was 

 published without any substantive changes on 1 November 1989. 



141 



