On 12-13 December, the Service held a tuna-porpoise review 

 meeting in San Pedro, California, to consider several aspects of 

 the Service's research and management programs. Following that 

 meeting, on 28 December, the Commission commented on several 

 issues and guestions that were raised during the discussions. In 

 its letter, the Commission supplemented its earlier comments on 

 the proposed performance standards. The Commission noted that 

 the presentation of the performance standards at the review 

 meeting did not indicate that the recommended analysis had been 

 done or that the standards were statistically based. It 

 therefore again recommended that such an analysis be done before 

 publication of a final rule. The Commission also recommended 

 that the proposed performance standards be expanded to indicate 

 how vessel as well as operator performance will be evaluated and 

 to specify sanctions that would be imposed against vessel owners 

 who repeatedly employ skippers with substandard performance 

 records or whose vessels have a history of high porpoise 

 mortality because of mechanical problems. 



Sundown Set Restrictions — The 1988 amendments to the 

 Marine Mammal Protection Act also directed the Secretary of 

 Commerce to publish regulations by 1 January 1989 reguiring U.S. 

 tuna fishermen to complete the process of backdown to remove 

 porpoise from the net no later than 30 minutes after sundown. 

 The restrictions on sundown sets may be waived for individual 

 certificate holders who, based on observer reports, have attained 

 an incidental take rate for sundown sets that is no higher than 

 the average daytime take rate for the fleet as a whole. 



An interim final rule to implement this and other provisions 

 was signed by the National Oceanic and Atmospheric Admini- 

 stration's Assistant Administrator for Fisheries on 29 December 

 1988 but not published in the Federal Register until 6 January 

 1989. Although the Commission and others had recommended that 

 the Service establish a time before sunset beyond which a set 

 could not be initiated, the Service did not adopt this approach. 

 Instead, its rule merely reguired the backdown of the net be 

 complete and rolling of the purse seine to "sack up" be begun 

 before one-half hour after sundown. Thus, it is up to the vessel 

 operator to determine when a set should not be started. 



The interim rule also sets forth the procedures and stand- 

 ards for issuing waivers of the sundown set prohibition. To 

 qualify, an operator must have had a minimum of five observed 

 sundown sets since 1 July 198 6 and must have had an average kill 

 rate in those sets that was 0.154 porpoise per ton of tuna caught 

 or less. As of the end of 1989, nine applications for waivers 

 had been received, two of which were issued and seven of which 

 are still being reviewed. The two operators that engaged in 

 sundown sets in 1989 continued to have an exemplary record. Their 

 kill rates during sundown sets were approximately one-half the 

 fleet-wide average daytime mortality rate. 



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