129 



other activities with marine mammals taken incidentally to commercial fishing 

 operations conducted pursuant to these regulations. 



11. Section 216.24(d)(1)(H) should be modified in accordance with the 

 recommendation of Judge McAlpin, which is consistent with the proposed 

 modification suggested in the Commission's brief. 



The "threat of" personal injury does not admit of rational determination or 

 definition and renders the section unenforceable. The proposed modification 

 deletes the language and serves to allow a person to take steps to protect 

 himself from personal injury rather than from the "threat of" personal injury. 

 The modification seems especially warranted in light of the total lack of evi- 

 dence in the record of personal injury resulting from marine mammals (State- 

 ment of Mr. Blum, TR 219, 220; Statement of Mr. Pisano, TR 302. 303). 



12. Section 216.24(d) (1) (iii) should be modified in accordance with the 

 recommendation of Judge McAlpin which is consistent with the proposed 

 modification suggested in the Commission's brief. 



The modification adds language to accomplish the intent of the agency that 

 the killing or injury of a marine mammal be permitted only when it is 

 "actually interfering" with commercial fishing (Statement of Mr. Jensen, TR 

 72) and only after all other steps to deter the animal have been exhausted 

 (Statement of Mr. Blum, TR 196). 



13. Section 216.24(d) (1) (iv) should be modified to read: 



(iv) Marine mammals taken in the course of commercial fishing operations 

 shall be subject to the provisions of Section 216.3 of these regulations with 

 respect to "Incidental catch," and may not be retained except where a specific 

 permit has been obtained authorizing the retention unless otherwise specified 

 and directed by authorized NMFS personnel. 



The proposed modification is suggested for reasons set forth under 10 above. 



14. Section 216.24(d) (1) (iv) should be modified to read as recommended 

 by Judge McAlpin, whose recommendation is consistent with the proposed 

 modification contained in the Commission's brief. 



The recommended modification is designed to facilitate the acquisition of 

 information is an complete and useful a form as possible. The record is re- 

 plete with statements to the effect that much more information is needed, that 

 reporting is an essential and integral part of the permit sysem, and that a 

 standard form for such reports is of great value in securing such information 

 (TR 34, 35, 37, 135, 190, 191, NMFS Exh. 4d, p. 8). 



15. Section 216.24(d)(2) should be modified to read: 



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

 Catch Yellow fin Tuna. 



(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. 



(ii) A certificate holder may take such steps as are necessary to protect 

 his catch, gear, or person from depredation, damage, or threat of personal 

 injury without inflicting death or injury to any marine mammal. 



(iii) All certificate holders shall maintain daily logs, in such, form as the Director 

 may prescribe, of all sets in which marine mammals are taken. Such logs must 

 include the location, time, and date of set, weather, visibility, a-ftd-wa4-ef conditions ; 

 sea state, estimated number and species of marine mammals upon which set was madp, 

 estimated number (tons) of yellowfin tuna enclosed in net, estimated number and 

 species of marine mammals caught, method used to remove marine mammals 

 from net, amount and kind of tuna caught, and an actual count of marine mammals 

 killed and seriously injured, if any, on each set. Such logs shall be subject to 

 inspection at the discretion of the' Regional Director, National Marine Fisheries 

 Service, Termin al isl and, € alif or n iar of *he Director, - -NMF^t - Wa s hington. ©r€r; 

 e? their dcoignatc ei ngento. where a certificate application was made or at the dis- 

 cretion of his designated agents. 



In addition, copies of all such logs shall be mailed or delivered to the Re- 

 gional Director, NMFS, where a certificate application teas made, at the 

 earliest possible opportunity, but not later than five days after the most recent 

 recording in the log, except that if a vessel at sea returns to j)ort later than 

 five days after such occurrence, then it shall be reported icithin forty-eight 

 hours after arrival in port. 



