128 



and terins of the general permit in which they are included, and subjects 

 them to the regulations. 



7. Section 216.24(c)(4) should be modified to read: 



(4) -Applie ntion o Bhoul 4 cun l nin n puymcnt *4 :».< ">. 00 ft* ettek person nanicd h* 

 paragraph (e)(2) (i) <*f 4+h« seefcitHtr A fee shall be assessed, prior to granting any 

 application for a general permit or certificate of inclusion, in such reasonable amount 

 as the Director may determine to be necessary and apporpriale to cover the costs to 

 the National Marine Fisheries Service of considering, issuing, and maintaining 

 applications, permits, and certificates. 



The statements of Mr. Jensen (TR 100, 101) indicate that there is no 

 rational basis for the determination that certificates of inclusion or general 

 permits shall cost $5.00. The recommended modification allows such a fee to 

 be computed on a rational basis, consistent with the requirements of Section 

 104(g) of the Marine Mammal Protection Act and the Independent Offices 

 Appropriations Act of 1952 (31 USC 483(a) (1970)). 



Although the Commission does not presume to know or advise NMFS about 

 the actual cost of administering the permit program, we suggest that the costs 

 of hearings, regulations, and administrative paper work necessited by appli- 

 cations for permits are fairly attributed to the cost of administering such a 

 program and exceed $5.00. (The American Tunaboat Association and Tuna 

 Research Foundation both admit, on page 50 of their brief, that hearings are 

 a legitimate cost of the program.) 



We suggest that, contrary to the argument in NMFS brief (p. 25-27). there 

 is no record evidence to indicate that the $5.00 figure is in any way related 

 to the costs of administering the program. 



Section 104(g) of the Act and a careful reading of both National Cable 

 Television Assoc., Inc. v. U.S., 42 U.S.L.W. 4306 (US Mar. 4, 1974) and 

 Federal Power Commission v. New England Power Co., 42 U.S.L.W. 4308 (US 

 Mar. 4, 1974) support the view that such fees should cover the costs of the 

 program necessitated by applications for permits and certificates. We suggest 

 that the present fees charged for scientific research and public display permits 

 ($50 and $200 respectively) serve to indicates that either the $5.00 fee is 

 grossly inadequate or the $50 and $200 fees are grossly inflated and that a fee 

 by category, based upon the actual cost of administering the program with 

 respect to clases or permittees, might be more appropriate and effective. 



8. Section 216.24(c)(6) should be modified to read as proposed by NMFS 

 (NMFS brief, p. 10). 



9. Section 216.24(d) should be modified to read: 



(d) Terms and Conditions of Fishing Operating Under General Permits: 

 Commercial fishing operations conducted under general permits and cer- 

 tificates of inclusion shall be conducted in accordance icith the terms and 

 conditions set forth in this section. Permit and certificate holders are deemed, 

 by their appliiations, to consent and agree to comply with such additional 

 reasonable terms and conditions as the Director may require, including but not 

 limited to, requirements relating to: the collection of marine mammals or parts 

 thereof taken incidental to such fishing operations; provisions for authorized 

 personnel aboard their vessels to observe and conduct research related to such 

 fishing operations : and tests of gear and practices designed to further reduce 

 incidental mortality and serious injury of marine mammals. 



The recommended modification adds language which articulates the nature 

 of requirements under general permits and thereby serves to inform the pros- 

 pective applicant and interested public of the intent of the agency (Statement 

 of Mr. Blum, TR 37, 40, 178; Statement of Mr. Jensen, TR 110), which is 

 otherwise inadequately articulated. 



10. Section 216.24(d) (1) (i) should be modified to read: 



(i) A certificate holder may take marine mammals so long as such taking 

 is an incidental occurrence in the course of normal commercial fishing opera- 

 tions conducted pursuant to these regulations. Marine mammals taken inci- 

 dental to commercial fishing operations shall be immediately returned to the 

 environment where captured without further injury unless other action is 

 specified and directed by authorized NMFS personnel. 



The recommended modification clarified that ''normal" commercial fishing 

 operations are those conducted pursuant to these regulations. In addition, it 

 articulates the authority of agency personnel to conduct or direct research or 



