126 



II. PROPOSED REGULATIONS TO GOVERN TIIE INCIDENTAL TAKE OF MARINE MAMMALS 

 IN TIIE COURSE OF COMMERCIAL FISHING OPERATIONS 



The following comments and recommendations for modification of the pro- 

 posal regulations as published in the Federal Register on April 30, 11)74 (39 

 I'M:. L5042) are consistent with the proposed modifications contained in the 

 Commission's brief tiled with Chief Judge Harry S. McAlpin on June 10, 1974, 

 and have been formulated with the benefit of the views expressed in the 

 National -Marino Fisheries Service's brief and the Recommended Decision of 

 Judge McAlpin, dated July 15, 1974, which were not then available. The rec- 

 ommendations are, In all cases, based upon the record of the hearing in Seat- 

 tle. Washington on May 15 and 10, 1974, consisting of testimony contained in 

 the transcript, exhibits received in evidence, and documents of which official 

 notice was taken. 1 In consideration of these materials and pursuant to Sections 

 111(b), 103, and 202, I am pleased to transmit the following recommendations 

 of the Commission relating to the proposed regulations: 



1. Section 210.24(b) (1) (ii) should be modified to read: 



(ii) Encircling Gear; Tuna Purse Seining. Purse Seines Set on Porpoise to 

 Catvli Yellow fin Tuna. Shall include those commercial fishing operations util- 

 izing purse seines solely for tuna. 



"Porpoise fishing" in the yellowfin tuna fishery in which nurse seines are 

 intentionally set on porpoise in the course of enclosing and capturing yellow fin 

 tuna. 



The conduct of commercial fishing operations known as "porpoise fishing" 

 for yellowfin tuna is the source of most involvement of marine mammals in 

 commercial fishing operations and results in the greatest number of incidental 

 deaths and injuries (Statement of Mr. Jensen, TR 00-09). 



Section 210.24(b) (1) was designed to address the incidental take of marine 

 mammals resulting from "porpoise fishing" (Statement of Mr. Jensen, TR 08, 

 09: Statement of Mr. Blum, TR 218). 



The proposed modifications make it clear that this section applies to "por- 

 poise fishing." and deletes ambiguous or ambivalent language which may have 

 caused confusion and uncertainty as to the application of the section to 

 commercial fishing operations (Statement of Mr. Blum, TR 218). 



The language recommended by NMFS and the Judge fails to identify "por- 

 poise fishing" as the cause of the major problem and the type of fishing to 

 which this section is addressed. Their language would include "school fishing" 

 and "object fishing" for yellowfin tuna under this category and unjustifiably 

 and inappropriately impose unwarranted requirements relating to gear and 

 techniques upon these forms of fishing. 



2. Section 210.24(b) (1) (iii) should be modified to read: 



(iii) Encircling Gear; Seining Ot4*ep Thftft - Tuna. - Seining Other Than Purse 

 Seines Set on Porpoise to Catch Yellowfin Tuna. 



Shall include those commercial fishing operations utilizing seines fe* apeeies 

 ef #sh other ^h*» 4-tms-r to enclose and capture fish but lohich do not utilize seines to 

 intentionally enclose and capture porpoise to catch yellowfin tuna. "School fishing" 

 as distinguished from "porpoise fishing" in the yellowfin tuna fishery is an example 

 of this category. 



The proposed modification clarifies and implements the apparent intent of 

 this section to apply to all seining operations resulting in incidental take of 

 marine mammals other than those which are covered by Section 210.24(b)(1) 

 (ii). 



3. Section 210.24(b)(3) should be modified in accordance with the recom- 

 mendation of Judge McAlpin. which is consistent with the proposed modifica- 

 tion suggested in the Commission's brief. 



1 Tit denotes Transcript of the hearing. 

 Lined tvpp denotes recommended deletions. 

 Italics denotes recommended additions. 



