130 



The recommended modification is suggested for reasons set forth under the 

 preceding sections. Additional language at the end of this section is suggested 

 so as to make the reporting mechanism under these regulations consistent and 

 universally applicable. The record reveals no persuasive rationale for exempting 

 category (b) (1) (11) certificate holders from the requirements imposed on other 

 commercial fishermen holding certificates under these regulations (TR 103, 

 104). The recommendations of Judge McAlpin with respect to (ii) and (iii) are 

 essentially consistent with the present recommendations respecting those sec- 

 tions and with the proposed modifications contained in the Commission's brief! 



16. Section 210.24(d) (2) (iv) (e) (3) should be modified in with the recom- 

 mendation of Judge McAlpin which is consistent with the proposed modification 

 suggested in the Commission's brief. 



Net collapse is a major cause of porpoise mortality (DEIS 40; Statement of 

 Mr. Zolezzi, TR 412: Statement of Mr. Pisano, TR 320). Although an experi- 

 enced captain can often foresee a net collapse in advance and there are in- 

 stances when backdown procedures are effective in facilitating the release of 

 most or all porpoises from the net (TR 130, 133), the fact is that all skippers 

 are not able to foresee and prevent net collapse and that backdown procedures 

 do not always work to release all porpoises. The use of auxiliary hoats. as 

 suggested in the proposed modification, would make the protection against net 

 collapse which is afforded by the use of auxiliary boats available and func- 

 tional on every set. The feasihility and desirability of this modification is 

 suggested by the statements of experienced commercial fishermen who indicated 

 that such boats are normally utilized around the net anyway (Statement of 

 Mr. Pisano, TR 200, 300) and that the boats are available, effective, and have 

 been utilized by the industrv (Statement of Mr. Hodgkins, TR 339, 372). 



17. Section 210.24(d) (2) (v) should he modified to read : 



"(v) All tuna purse seine vessels operated by a certificate holder and eneaged 

 in commercial fishing operations under this section shall be required to 

 carry". * * * 



The recommended modification clarifies the application of this section. 



IS. Section 210.24(d) (2) (vii) should be modified in accordance with the 

 recommendation of Judge McAlpin which is consistent with the proposed modi- 

 fication suggested in the Commission's brief. 



The recommended modification provides an effective mechanism for inspecting 

 equipment and ensuring competency of certificate holders in the use of required 

 procedures. It thereby implements Section 101(a)(2) of the Marine Mammal 

 Protection Act, which requires that these regulations "insure that those tech- 

 niques and equipment are used which will uroduce the least practicable hazard 

 to marine mammals * * *" Both skill and functional equipment were recognized 

 to be essential to successful efforts to reduce incidental mortality and injury 

 (Statement of Mr. Jensen. TR 100). 



19. Section 210.24(d) (2) (viii) should be modified in accordance with the 

 recommendation of Judge McAlpin which is consistent with the- proposed modi- 

 fication suggested in the Commission's brief. 



The recommended modification is suggested for reasons set forth in preceding 

 sections. 



20. New Section 210.24(d) (2) (viii) should be inserted in accordance with 

 the recommendation of Judge McAlpin which is consistent with the proposed 

 modification suggested in the Commission's brief. 



The recommended modification is designed to provide guidelines and encour- 

 agement to certificate holders to take any of several steps which may he avail-* 

 ahle to reduce incidental mortality and injury while, at the same time, recog- 

 nizing that such decisions are those of the certificate holder alone. 



The recommended modification also gives permit and certificate holders, 

 prospective applicants, and the interested public notice rating to publication of 

 standards relating to certain critical aspects of "porpoise fishing" and supple- 

 menting the regulations. 



21. New Section 210.24(d) (2) (ix) should be inserted in accordance with the 

 recommendation of Judge McAlpin which is consistent with the proposed modi- 

 fication suggested in the Commission's brief 



The recommended modification give certificate holders, prospective applicants, 

 and the interested public notice of the fact that a finding relating to the rate 

 of incidental mortality and serious injury may be puhlished. 



22. Section 210.24(d)(3) should be modified to read: 



(3) Encircling Gear; £*"'««« £Hber Tbftft Tuftftr Seining Other Than Purse 

 Seines Set on Porpoise to Catch Tuna. 



