23 



Summary of AU recommended decision and conclusions 



NMFS final decision Comments 



It is accordingly found and concluded that separate quotas for the 

 different species and stocks are required by realities of preserving 

 population levels and by the appropriate provisions of the act— p. 80. 



First, the writer interprets the court's language with regard to the 

 three "issues" before it as holdings, pure and simple, and not dicta 

 as advanced by some of the parties— p. 85. 



It is found and concluded that the mortality limitations for the U.S. 

 fleet in 1977 should be that expressed generally above by Dr. Fox 

 and shown specifically on appendix J; that these quotas assure the 

 protection of these mammals; and that such quotas would not be to 

 the disadvantage of the various species and stocks and are consistent 

 with the purposes of the act— p. 87. 



Adopted— p. 19 of 

 decision. 



Concur 



Adopted as upper 

 biological limits 

 which would not 

 disadvantage the 

 populations — p. 

 16 of decision. 



Concurred. 



.do. 



Promulgated lower 1977 

 quotas in recognition 

 of act s requirement to 

 reduce incidental 

 mortality and the de- 

 termination that eastern 

 spinner is depleted— 

 p. 19 of decision. 



No regulations at this 

 time— enforcement 

 guidelines will be 

 developed. 



In view of the find.ng above, however, permitting the domestic fleet 

 a quota of about 88,000 for the three target species plus approximate- 

 ly 8,200 for minor species, the division of the quota issue would ap- 

 pear moot and it becomes unnecessary to determine, essentially, 

 whether equity or logic should prevail— p. 90. 



It is concluded that the NMFS should consider modifying the regula- 

 tions to provide something along the lines that in any hearing under 

 sec. 1375(a) the reasonable margin of error existing in the tuna fleet 

 in identifying porpoise schools should be given aopropnate weight 

 and if the party comes within such margin it shall then be considered 

 presumptive evidence of not being in violation— p. 97. 



As for the eastern spinner, since it has been determined that it is Adopted 215.24(d)- Also adopted mixed school 

 close to the lower bound of OSP, it is concluded and recommended (2)0)(A). prohibition since 



that the regulations also provide that no fishing on pure schools be eastern spinner is 



permitted— p. 99. depleted. 



It is also concluded and recommended that an unintentional incidental Not adopted. No However, enforcement 



take will be permitted only in mixed schools of eastern spinner until eastern spinner guidelines will be de- 



its quota is met— p. 99. ' qu° ta - veloped regarding 



accidental taking. 



It is found that the proDosed regulations in 1977 will result in a decline Concurred 



in the supply of all tuna, domestic and foreign, particularly yellow- 

 fin— p. 113. 



The evidence is persuasive, and it is so found, that the regulations as 



proposed by the NMFS would encourage transfer of seiners to foreign 

 flags under appropriate circumstances— p. 120. 



The evidence suggests and it is found that this period be 21 days and Not adopted 21-day notice requires 36- 



it is concluded and recommended that the regulations be amended to day projection. 7 days 



reflect such— p. 123. Wltn weekly estimates 



was adopted— pg. 23 o 

 decision. 



Notwithstanding the unspecified uncertainties the NMFS may have Adopted 216.24(e)(2) 

 concerning the obligation of an exporter to identify the contents of (ii). 



a can concerning the type of tuna, it is found and concluded that an 

 exporter desiring not to be subject to subsec. (e)(m) must label 

 contents as "Tuna Fish, Other than Yellowfin" or like language— 

 p. 137. 



It is concluded and recommended that subsec. (e)(iii) be so amended— 

 p. 137. 



Therefore, as an alternative to the deletion of the entire crew list 

 from subsec. (e)(5)0)(A) it is concluded and recommended that the 

 regulation seek a certified list of U.S. citizens crewmg foreign 

 seiners— p. 138. 



Also, it is found that subsec. (e)(iv)(F) providing for copies of an 

 exporting nation's laws and regulations which protect marine mam- 

 mals does not go far enough— p. 138. 



Official notice is taken that laws sometimes go uninforced coming to 

 grips with reality, it is concluded and recommended that this section 

 should also provide for a statement concerning what past enforce- 

 ment actions have transpired under such laws or regulations— 

 p. 138. 



Additionally, ii is found and concluded that the phrase appearing in 

 subsec. (e)(5)(i)(B) and reading "in excess of that which results 

 from U.S. fishing operations under these regulations" is not too 

 vague— p. 138. 



It is concluded and recommended that a 3-month grace period be 

 allowed for the effective date of import regulations— p. 140. 



It is so found. However, it is also concluded that there exists no legal 

 requirement on the part of the vessel to continue to permit observers 

 to remain aboard after the quota has been reached— p. 151 and 152. 



It ,s found that this addition to the regulations will aid greatly in attain- 

 ing the purpose for which it >s proposed. It is concluded and recom- 

 mended that final regulations contain such a provision — p. 152. 



It is thus concluded further, that suosec. (d)(2)(L) of the proposed 

 regulations, concerned with application procedures for a general 

 for "Encircling gear; yellowfin tuna purse seining" meets the re- 

 quirements of the act— p. 155. 



With regard to these sections it is concluded that they have been 

 promulgated in accordance with the appropriate sections of the act 

 and their adoption in final form is recommended— p. 155. 



do 



Adopted 216.24 

 (e)(5)(i:)(G). 



.do. 



Not adopted— p. 25 

 of decision. 



Nations seeking a finding 

 must identify U.S. 

 citizens crewing 

 foreign vessels. 



Information requested for 

 a finding asks for pro- 

 cedures to be used to 

 prohibit sets. 



Effective June 1, 1977. 



Concurred. 



Adopted 216.24 



(e)(5)(i). 

 Concurred— p. 21 of 



decision. 



Adopted 216.24(f)(2). Navigators must give 

 observers a location 

 upon request. 



AdoDted 216.24 

 (d)(iv)(N). 



Concurred — p. 6 of 

 decisicn. 



