51 



ness. The Commission agrees that floodlights will help reduce mortality associ- 

 ated with sundowner sets but feels that such sets should be discouraged. Reduced 

 visibility will increase the difficulty encountered in identifying Eastern spinner 

 dolphins and will therefore increase the likelihood that they will be taken. 



There is some confusion in the language of the Decision on page 43 concerning 

 the use of speedboats and /or rafts. These should be used on all sets, whether 

 or not backdown occurs in darkness. Similarly, there is some confusion con- 

 cerning the use of face plates and rafts in the course of the discussion on page 

 44. These too, should be used on all sets, and not just sundowner sets. The 

 benefits to be gained from the use of speedboats and /or rafts, and face plates 

 and rafts accrue during daylight sets and should not be limited to sundowner 

 sets. 



V. SEVEN DAYS NOTICE 



Although the Commission does not disagree with the suggestion that a three 

 week notice period would lessen potential difficulaties or hardships which 

 might he suffered by the industry, the selection of the three week duration for 

 the notice period is entirely arbitrary. There is no evidence whatsoever in the 

 record to support the choice of three weeks and the position of the expert 

 agency in testimony and briefs is that its ability to develop accurate estimates 

 and implement timely closure will be impaired by extension of the notice period 

 to more than one week. The regulatory provision concerning notice should be 

 that suggested by the agency. The notice period can be adjusted, by subse- 

 quent regulation, if it appears reasonable and feasible to extend it after a 

 review of the observer program and other aspects influencing calculation of 

 the closure. 



CONCLUSION 



For the reasons set forth above, the Commission recommends that the Rec- 

 ommended Decision of the Administrative Law Judge not be accepted, in its 

 entirety, and that the National Marine Fisheries Service promulgate regula- 

 tions consistent with these exceptions. 



Respectfully submitted, 



Robert Eisenbud, General Counsel. 



U.S. Department of Commerce, 

 National Oceanic and Atmospheric Administration. 



Rockville, M (L. January 2',, 1977. 

 Mr. John R. Twiss, Jr.. 



Executive Director, Marine Mammal Commission, 1625 Eye St. NW., Suite 307, 

 Washington, D.C. 



Dear Mr. Twiss : This is in response to your letter of January 6. 1977. to 

 Mr. Robert W. Schoning, Director, National Marine Fisheries Service, concern- 

 ing the availability of Saltonstall-Kennedy funds for tuna/porpoise research. 



Mr. Schoning referred the above matter to this office for review. We are pre- 

 paring a request for an opinion from the Comptroller General of the United 

 States as to whether Saltonstall-Kennedy funds may be used to support tuna/ 

 porpoise research in accordance with departmental requirements. 



The Office of General Counsel will contact you as soon as an opinion is handed 

 down. 



Sincerely, 



James W. Brennan, 

 Deputy General Counsel. 



Marine Mammal Commission, 

 Washington, D.C, January 6, 1977. 

 Mr. Robert W. Schoning, 

 Director. National Marine Fisheries Service, NOAA/DOC, Washington, D.C. 



Dear Bob: I write, once again, concerning the availability of S-K funds for 

 tuna-porpoise research, a subject first raised by the Commission in 1975. In my 

 most recent letter of 14 September 1976, we recommended that a "formal ruling 

 be sought from GAO on the issue and that our correspondence, particularly the 

 attachment to the 27 July 1976 letter, be forwarded to GAO with your request." 



