(C) Porpoise safety panel markers: Each end of the porpoise safety panel and porpoise apron shall be identified with an easily distinguishable marker.

(D) Porpoise safety panel hand holds: Throughout the length of the corkline under which the porpoise safety panel and porpoise apron are located, hand hold openings are to be secured so that the insertion of a 1" diameter cylindrical-shaped object meets resistance.

(E) Porpoise safety panel corkline hangings: Throughout the length of the corkline under which the porpoise safety panel and porpoise apron are located, corkline hangings shall be inspected by the vessel operator following each trip. Hangings found to have loosened to the extent that a cylindrical object with a 1%" diameter will not meet resistance when inserted between the cork and corkline hangings, must be tightened so that a cylindrical object with a 1%" diameter cannot be inserted.

(F) Speedboats: Certificated vessels engaged in fishing operations involving setting on marine mammals shall carry a minimum of two speedboats in operating condition. All speedboats carried aboard purse seine vessels and in operating condition shall be rigged with towing bridles and towlines. Speedboat hoisting bridles shall not be substituted for towing bridles.

(G) Raft: A raft suitable to be used as a porpoise observation-and-rescue platform shall be carried on all certificated vessels.

(H) Facemask and snorkel, or viewbox: At least two facemasks and snorkels, or viewboxes, must be carried on all certificated vessels.

(I) Lights: All certificated vessels shall be equipped by July 1, 1986, with lights capable of producing a minimum of 140,000 lumens of output for use in darkness to ensure sufficient light to observe that procedures for porpoise release are carried out and to monitor incidental porpoise mortality.

(v) Vessel inspection: (A) Annual: At least once during each calendar year, purse seine nets and other gear and equipment required by these regulations shall be made available for inspection by an authorized National Marine Fisheries Service Inspector as

specified by the Regional Director, Southwest Region.

(B) Reinspection: Purse seine nets and other gear and equipment required by these regulations shall be made available for reinspection by an authorized National Marine Fisheries Service Inspector as specified by the Regional Director, Southwest Region. The vessel certificate holder shall notify the Fleet Assistance Section,, National Marine Fisheries Service, Southwest Region, 1520 State Street, suite 200, San Diego, CA 92101, telephone 619-557-6540, of any net modification at least five (5) days prior to departure of the vessel on its next scheduled trip in order to determine whether a reinspection or trial set would be required.

(C) Upon failure to pass an inspection or reinspection, a vessel having a vessel certificate of inclusion issued under paragraph (c)(1) may not engage in fishing operations for which a general permit is required until the deficiencies in gear or equipment are corrected as required by an authorized National Marine Fisheries Service inspector.

(vi) Operator training requirements. All operators shall maintain proficiency sufficient to perform the procedures required herein, and must attend and satisfactorily complete a formal training session conducted under the auspices of the National Marine Fisheries Service in order to obtain their certificate of inclusion. At the training session an attendee shall be instructed concerning the provisions of the Marine Mammal Protection Act of 1972, the regulations promulgated pursuant to the MMPA, and the fishing gear and techniques which are required or will contribute to reducing serious injury and mortality of porpoise incidental to purse seining for tuna. Operators who have received a written certificate of satisfactory completion of training and who possess a current or previous calendar year certificate of inclusion will not be required to attend additional formal training sessions unless there are substantial changes in the MMPA, the regulations, or the required fishing gear and techniques. Additional training may be required for any operator who is found by the Regional Director,

Southwest Region, to lack proficiency in the procedures required.

(vii) Marine mammal release requirements: All operators shall use the following procedures during all sets involving the incidental taking of marine mammals in association with the capture and landing of tuna.

(A) Backdown procedure: Backdown shall be performed following a purse seine set in which marine mammals are captured in the course of catching and landing tuna, and shall be continued until it is no longer possible to remove live marine mammals from the net by this procedure. Thereafter, other release procedures required shall be continued until all live animals have been released from the net.

(B) Prohibited use of sharp or pointed instrument: The use of a sharp or pointed instrument to remove any marine mammal from the net is prohibited.

(C) Sundown sets prohibited. On every set encircling porpoise, the backdown procedure must be completed and rolling of the net to sack-up must be begun before one-half hour after sundown, except as provided below. For the purpose of this section, sundown is defined as the time at which the upper edge of the sun disappears below the horizon or, if view of the sun is obscured, the local time of sunset calculated from tables developed by the U.S. Naval Observatory. A sundown set is a set in which the backdown procedure has not been completed and rolling the net to sackup has not begun within one-half hour after sundown. Should a set extend beyond one-half hour after sundown, the operator must use the required marine mammal release procedures including the use of the high intensity lighting system.

(1) A certificated operator may obtain an initial waiver from this prohibition, for trips with an observer, by establishing to the satisfaction of the Director, Southwest Region, NMFS, based upon NMFS and Inter-American Tropical Tuna Commission (IATTC) observer records, that the operator's average kill of marine mammals per set in sundown sets involving marine mammals was 3.01 marine mammals or fewer.

(i) The application must include the following:

(A) Name of the operator as it appears on the certificate of inclusion;

(B) The dates of all observed trips any part of which occurred since July 1, 1986 and observed trips before that date, if necessary to include a minimum of three observed sundown sets;

(C) Names of the vessels operated during those trips;

(D) The number of marine mammals killed in sundown sets and the number of sundown sets involving marine mammals;

(E) Detailed description of the circumstances that support any request that the mortality associated with a particular sundown set be excluded from consideration; and

(F) The operator's signature or the signature of an individual authorized by the operator to make the application in the operator's absence.

(ii) All sundown sets since July 1, 1986 will be considered for this determination, except that the Regional Director will exclude one sundown set from each twelve month period from the calculations of average kill if the operator establishes to the satisfaction of the Regional Director that the kill in that sundown set was due to an unforeseeable equipment malfunction that could not have been avoided by reasonable diligence in operating or maintaining the vessel.

(iii) An operator must have a minimum of five observed sundown sets for the Regional Director to consider in determining whether or not the operator qualifies for an exemption. If an operator does not have five observed sundown sets since July 1, 1986, the NMFS Southwest Regional Director will consider records from observed trips before that date, starting with the most recent observed trip during which a sundown set was made and reviewing as many trips as necessary to obtain at least five sundown sets for consideration.

(2) An operator fishing under an exemption from the sundown set prohibition must follow the marine mammal release requirements, including the use of high intensity lights for sets that continue one-half hour past sundown.

(3) An operator exemption is valid for one calendar year only on trips carrying a NMFS or IATTC observer and ex

pires on December 31, unless renewed by the Regional Director.

(4) An exemption will be reviewed annually between November 1 and December 15 and the exemption will not be renewed if the operator's average mortality in sundown sets during trips completed in the previous twelve month period ending November 1 exceeds the United States fleet's average mortality rate in daylight sets for all of the observed trips completed in the same period.

(5) An operator who is notified that his or her exemption will not be renewed, or who anticipates not getting renewed, may petition the Regional Director in writing to reinstate the exemption based on excluding from the calculations one set where an unforeseeable equipment malfunction caused mortality in a sundown set that could not have been avoided by reasonable diligence in operating or maintaining the vessel. The Regional Director will reinstate the exemption if the evidence supports excluding the set and if the resulting recalculation of the operator's performance meets the standard required by these regulations.

(D) Porpoise Safety Panel: During backdown, the porpoise safety panel must be positioned so that it protects the perimeter of the backdown area. The perimeter of the backdown area is the length of corkline which begins at the outboard end of the last bow bunch pulled and continues to at least twothirds the distance from the backdown channel apex to the stern tiedown point. Any super apron must be positioned at the apex of the backdown channel.

(E) Use of explosive devices: The use of explosive devices is prohibited in all tuna purse seine operations that involve marine mammals.

(viii) Experimental fishing operations: The Assistant Administrator may authorize experimental fishing operations and may waive, as appropriate, any requirements within §216.24(d)(2), except quotas on the incidental kill of marine mammals and the prohibition on setting nets on pure schools of certain porpoise species.

(A) A vessel certificate holder may apply for an experimental fishing operation waiver by submitting the follow

ing information to the Assistant Administrator no less than 90 days before the intended date the proposed operation is intended to begin:

(1) Name(s) of the vessel(s) and the vessel certificate holder(s) to participate;

(2) A statement of the specific vessel gear and equipment or procedural requirement to be exempted and why such an exemption is necessary to conduct the experiment;

(3) A description of how the proposed modification to the gear or procedures is expected to reduce incidental mortalities or serious injury of marine mammals;

(4) A description of the applicability of this modification to other purse seine vessels;

(5) Planned design, time, duration, and general area of the experimental operation;

(6) Name(s) of the certificated operator(s) of the vessel(s) during the experiment;

(7) A statement of the qualifications of the individual or company doing the analysis of the research.

(B) The Assistant Administrator will acknowledge receipt of the application and, upon determining that it is complete, publish notice in the FEDERAL REGISTER summarizing the application, making the full application available for inspection and inviting comments for a minimum period of thirty days from the date of publication.

(C) The Assistant Administrator, after considering the information identified in paragraph (d)(2)(viii)(A) of this section and the comments received, will deny the application giving the reasons for denial or issue a permit to conduct the experiment including restrictions and conditions as deemed appropriate.

(D) The permit for an experimental fishing operation will be valid only for the vessels and operators named in the permit, for the time period and areas specified, for trips carrying an observer assigned by the NMFS, and when all the terms and conditions of the permit are met.

(E) The Assistant Administrator may suspend or revoke an experimental fishing permit by written notice to the

permit holder if the terms and conditions of the permit or the provisions of the regulations are not followed, after providing an opportunity for the permit holder to discuss the proposed suspension or revocation.

(ix) Operator Certificate of Inclusion Holder Performance Requirements. (A) The certificate of inclusion of any operator who makes one or more purse seine sets on marine mammals resulting in an average kill-per-set for a fishing trip which exceeds 26.30 marine mammals is suspended. Such suspension shall be effective upon notification from the National Marine Fisheries Service Southwest Regional Director and shall be for a period of one year. If the operator exceeds the 26.30 marine mammals killed per set average for a subsequent trip within three years of reinstatement, the certificate is suspended. Such suspension shall be effective upon notification by the Regional Director and shall be for a period of one year. If the operator's average mortality rate exceeds 26.30 marine mammals kill-per-set on a subsequent trip within five years of the second reinstatement, the certificate is revoked. The revocation shall be effective upon notification by the Regional Director and shall be permanent. An operator who is subject to a suspension or revocation under this paragraph may petition the Regional Director to review the operator's marine mammal mortality history. The Regional Director may reinstate the operator's certificate if the operator demonstrates that the operator has not exceeded a kill-per-set of 3.89 marine mammals during any of the eight consecutive observed trips immediately preceding the trip which caused the suspension. However, that trip will be considered as a single trip exceeding a kill-per-set of 3.89 marine mammals and subject to the conditions described in paragraph (d)(2)(ix)(F) of this section. The Regional Director may exclude from the mortality calculation for a trip, those purse seine sets in which marine mammal mortality resulted from an unavoidable and unforeseeable equipment breakdown. The mortality rate calculated after exclusion of a set or sets under this paragraph will determine the action taken

under this performance evaluation system.

(B) Fishing trips with five or fewer sets on marine mammals and an average kill-per-set less than or equal to 26.30 marine mammals are not subject to further action under the operator performance system. Such trips neither count as trips meeting the performance standard nor count as trips failing to meet the performance standard for the purpose of determining actions based on performance in consecutive fishing trips.

(C) Fishing trips with more than five sets on marine mammals resulting in an average kill-per-set of not greater than 26.30 marine mammals are subject to review under the operator performance system as follows:

(1) The operator's kill of marine mammals in purse seine sets on marine mammals will be determined from observer records.

(2) The kill-per-set will be determined by dividing the total kill of marine mammals by the number of sets involving marine mammals during the fishing trip.

(3) If the calculated kill-per-set for the trip is equal to or less than 3.89 marine mammals, the operator has met the performance standard and is not subject to further action under the performance system based on the current trip.

(4) If the calculated kill-per-set for the trip exceeds 3.89 marine mammals, the operator failed to meet the mortality performance standard and is subject to further action under the performance system.

(D) The Southwest Regional Director may exclude from the mortality calculation for a trip, those purse seine sets in which marine mammal mortality resulted from an unavoidable and unforeseeable equipment breakdown. Should exclusion of a set or sets cause the operator's performance to fall within the standard performance, that trip will not be counted as a trip for the purposes of the performance evaluation system.

(E) An operator shall not serve as a certificated operator until the Southwest Regional Director has determined under this subpart and notified the operator that the operator's marine

mammal mortality rate performance met or failed to meet the applicable performance standard on the previous observed trip. The Southwest Regional Director will make the determination within five days (excluding Saturdays, Sundays and Federal holidays) after receiving the observer data from the trip.

(F) An operator whose average marine mammal mortality rate exceeds 3.89 kill-per-set for a trip must have observer data and other pertinent records reviewed by the Southwest Regional Director and the Porpoise Rescue Foundation for the purpose of determining the causes of higher than acceptable mortality, must participate in supplemental marine mammal safety training as ordered by the Southwest Regional Director and must comply with actions for reducing marine mammal mortality which may be ordered by the Southwest Regional Director. The operator must carry an observer on the next trip for which he serves as the certificated operator. If the Southwest

Regional Director determines that the required training or other ordered action has not been completed satisfactorily or is refused, the Regional Director will suspend the operator's certificate of inclusion for one year.

(G) An operator whose average marine mammal mortality rate exceeds 3.89 marine mammals killed per set on two consecutive trips or on three trips ending within a period of twenty-four months or on three trips within eight consecutive trips must have observer data and other pertinent records reviewed by the Southwest Regional Director and the Porpoise Rescue Foundation for the purpose of determining the causes of higher than acceptable mortality, must participate in supplemental marine mammal safety training as ordered by the Southwest Regional Director and must comply with actions for reducing marine mammal mortality which may be ordered by the Southwest Regional Director. The operator must carry an expert fisherman (i.e., an experienced vessel operator with a history of low dolphin mortality), if required to do so by the Southwest Regional Director, to assist in perfecting marine mammal safety techniques, and must also carry an ob

server on the next trip for which he serves as the certificated operator. The selection of the expert fisherman will be provided by the General Permit holder or the Porpoise Rescue Foundation and subject to the approval of the Southwest Regional Director. If the Southwest Regional Director determines that the required training or other ordered action has not been completed satisfactorily or is refused, the Regional Director will suspend the operator's certificate of inclusion for one year.

(H) The operator certificate of inclusion or an operator whose average marine mammal mortality rate exceeds 3.89 kill-per-set on three consecutive trips, or on any four trips (of which no more than two are consecutives) completed within a period of twenty-four months or on four trips (of which no more than two are consecutive) within eight consecutively observed trips, is suspended upon notification to the operator from the Regional Director.

(I) Following a suspension and a reinstatement of a certification of inclusion, the operator certificate of inclusion is suspended for any operator whose average marine mammal mortality rate exceeds 3.89 marine mammals killed per set on any subsequent trip as required under the criteria for a suspension established in paragraph (d)(2)(ix)(H) of this section. Under this paragraph, trips completed by the operator prior to suspension will be carried over and counted along with trips completed subsequent to the suspension. Such suspension shall be effective upon notification from the NMFS Southwest Regional Director and shall be for a period of one year. For purposes of this paragraph only, each suspension under paragraph (d)(2)(ix)(A) of this section Iwill be considered equivalent to and counted as three consecutive trips exceeding the trip kill rate of 3.89 marine mammals killed per set.

(J) An operator may appeal suspension of revocation of a certificate of inclusion under paragraphs (d)(2)(ix)(A), (d)(2)(ix)(H), or (d)(2)(ix)(I) of this section to the Assistant Administrator. Appeals must be filed in writing within 30 days of suspension or revocation and must contain a statement setting forth the basis for the appeal. Appeals must