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schools thereby eliminating most setting on porpoise. The facts are otherwise. 

 Eastern Spinner Porpoise are found relatively close to shore, within the C1KA 

 internationally controlled zone. The permissible quota of tuna from this zone 

 is likely to be met by late March or early April. Then the fleet must fish out- 

 side the CYRA, where the porpoise found are predominantly the Offshore 

 Spotted and White-Bellied Spinner, both of which may be taken, and not the 

 proscribed and depleted Eastern Spinner. Inside the CYRA, Zone A, tuna 

 fishing is only 30-40 percent on any species of porpoise, Eastern Spinner in- 

 cluded. Other methods are more generally used here. Outside the CYRA, in 

 contrast setting on porpoise comprises up to 95 percent of sets. Obviously it 

 is the White-Bellied Spinner and Offshore Spotted Porpoise, both of which 

 may be taken, which are of primary importance to the industry, rather than 

 the Eastern Spinner. 



The industry points out that boats in port when the C1RA is declared 

 closed may make "one free trip" into the CYRA, so setting in Eastern Spinner 

 territory could theoretically continue into May. This is true, but means only 

 that boats in port when the CYRA quota is closed and hence eligible for the 

 '•free" trip will have to choose between fishing in the CYRA avoiding Eastern 

 Spinner, or moving out of the CYRA (as they will eventually do anyway) to 

 fish on Offshore Spotted and White-Bellied Spinner. 



The industry complains that fear of unintentional take of even one Eastern 

 Spinner, given the Act's penalties, will inhibit any setting on porpoise since it 

 is not always possible to be sure whether a few individuals of the proscribed 

 species are in a school. However, the characteristic twisting leaps of the 

 Eastern Spinner, plus the unique cant of its conspicuous dorsal fin, make this 

 species one of the easiest of porpoises to identify. 



It is true that evidence at the recent adjudicatory hearing on the 1977 quota 

 did show that 7 percent of the time spinner porpoise, species unspecified, have 

 shown up in sets initially believed to be of pure spotted schools. In its briefs 

 to the Administrative Law Judge, NMPS recognized this fact and said en- 

 forcement actions would recognize the possibility of good faith errors. Intent 

 (scienter) is an element to be considered in determining whether to apply the 

 civil and criminal penalties of any statute, including this one, absent specific 

 language to the contrary. If observers and captains make infrequent and 

 ultimately insignificant errors in failing to identify Eastern Spinners travel- 

 ling with other species, and set upon them acidentally, the NMFS has already 

 gone on record as saying it will be understanding, providing every effort is 

 subsequently made to permit the mammals to escape alive. Indicia of good 

 faith error will be the frequency, number, and magnitude of such "mistakes." 

 The entire NMFS regulatory scheme is built upon good faith judgment of 

 skippers — enforcement policy regarding the proscription or take of Eastern 

 Spinners should be no different in this regard, requiring of skippers no more 

 than is possible short of ceasing to set on porpoise entirely. 



We ourselves have recognized the impossibility of avoiding occasional mis- 

 takes by advocating unintentional accidental take of Eastern Spinners up to 

 6,500, specifically to take account of the 7 percent margin of possible error. 

 To permit intentional take of this depleted species, however, would not only 

 be in violation of law, but would also, wdien combined with the inevitable 

 unintentional take, result in a total kill far higher than what the species can 

 absorb and still grow in population size with a virtual certainty, the NMFS 

 (and Act's) goal. 



2. The 59,000 total porpoise quota. 



The industry alleges the total quota is below the level required for the 

 fleet to operate profitably. However, assuming no porpoise taking until April, 

 the quota is set at an annual rate of 90,000, the high end of what the in- 

 dustry's own witnesses testified at the hearings they required. Further, last 

 year 20 boats equipped with the fine mesh net required for all boats this year 

 had such low kill rates that if extrapolated across the fleet, less than 10,000 

 porpoise total would have been killed in 1976. Not only will all boats be 

 equipped this year with fine mesh nets, but use of new techniques — longer 

 "backdown" periods guided by men in rubber rafts and face plates at the 

 corkline assisting porpoises out of the net— will greatly reduce mortality, as 

 illustrated by the results of the recent cruise of the Elizabeth C.J. Further, 

 last year only a small fraction of the fleet's skippers and boats were respon- 

 sible for a disproportionately large percentage of the kill. Industry self- 



