MARINE MAMMAL COMMISSION — Annual Report for 1991 



implementation of such legislation. Under the interim 

 rule, tuna from a foreign nation may be imported into 

 the United States if (1) the laws of that nation prohibit 

 the intentional setting of purse seine nets on marine 

 mammals; (2) every fishing trip of the nation's fleet 

 is observed by an Inter-American Tropical Tuna 

 Commission or other acceptable observer; and (3) the 

 observer certifies that no intentional sets on marine 

 mammals were in fact made. The Service issued a 

 finding of comparability for Panama under this new 

 provision on 15 November 1990, and one for Ecuador 

 on 15 March 1991. 



The Service issued another interim rule on 27 

 December 1990 revising the schedule for submitting 

 mortality data and other information upon which 

 comparability findings are based. The rule changed 

 the date by which required information for the preced- 

 ing fishing season must be provided to the Service 

 from 31 July to 15 March and required the Service to 

 issue a finding by 31 May. An affirmative finding 

 from the previous year would remain in effect until 

 then. The District Court found this schedule to be 

 inconsistent with the provisions of the Marine Mam- 

 mal Protection Act and on 26 March 1991 invalidated 

 the rule. The Court directed the Service to revoke all 

 findings of comparability and ban tuna imports from 

 all foreign nations fishing in the eastern tropical 

 Pacific until such time as it determined that the nation 

 has achieved a dolphin mortality rate that is no more 

 than 1.25 times the U.S. rate. The ruling left intact 

 the provision that allowed tuna imports from nation's 

 such as Ecuador and Panama that had enacted and 

 were enforcing legislation prohibiting fishing for tuna 

 by setting on dolphins. 



On 7 May 1991, the Service published a notice in 

 the Federal Register revoking its 27 December 1990 

 rule and announcing that, effective 3 April 1991, tuna 

 from Mexico, Venezuela, and Vanuatu had been 

 embargoed. Vanuatu and Venezuela submitted 

 mortality data for the 1990 fishing season. While 

 both nations satisfied the Marine Mammal Protection 

 Act's requirements with respect to the take of eastern 

 spinner and coastal spotted dolphins, neither met the 

 mortality rate comparability requirement. The mortal- 

 ity rate for Vanuatu, which was 1.27 times the U.S. 

 rate, just barely failed to meet the 1.25 limit set forth 

 in the Act. Mexico did not submit any data for 1990. 



Under the 1988 amendments to the Marine Mam- 

 mal Protection Act, the Secretary of Commerce is 

 required to certify to the President when an embargo 

 of any nation's tuna has been in place for six months. 

 Such a certification is deemed to be a certification for 

 purposes of the Pelly Amendment of the Fishermen's 

 Protective Act and may result in import bans against j 

 other fish products from the offending nation. On 22 ' 

 August 1991, six months after the embargo of Mexi- 

 can tuna became effective, the Secretary issued a 

 certification finding against Mexico. On 22 October, 

 the President transmitted a message advising Congress 

 of his finding. His message indicated that, in light of 

 the tuna embargo already in effect and ongoing j 

 negotiations with Mexico regarding an international ' 

 dolphin conservation program, further sanctions would 

 not be imposed against Mexico at that time. 



On 15 November 1991, Venezuela and Vanuatu 

 were certified by the Secretary. As with Mexico, the 

 President has thus far declined to impose additional 

 sanctions against fish products from those nations 

 under the Pelly Amendment. 



On 8 October 1991, the Service published an 

 interim final rule setting forth a new schedule for 

 issuing comparability findings. The action was taken 

 in response to Court rulings in Earth Island Institute 

 v. Mosbacher, discussed below. The rulings required 

 the Service to embargo tuna from nations that purse 

 seine in the eastern tropical Pacific unless mortality 

 rate comparability findings have been made by the end 

 of each year. Under the Service's interim rule, the 

 period from 1 October to 30 September will constitute 

 a fishing year for purposes of comparing foreign 

 dolphin mortality rates with that of the U.S. fleet. In 

 this way, comparisons will be made using data from 

 at least a full year, yet the Service will be able to 

 issue its findings before 31 December. Findings 

 regarding the percentage take of eastern spinner and 

 coastal spotted dolphins will continue to be made on 

 a calendar year basis. 



Data for the U.S. fleet for revised fishing year 

 1991 are presented in Table 10. By switching to the 

 new schedule, U.S. dolphin mortality for 1991, 

 against which foreign performance will be compared, 

 decreased from 2.53 dolphins per set to 1.89 dolphins 

 per set. It is unlikely that any of the nations fishing 

 for tuna by setting on dolphins except Vanuatu will 



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