MARINE MAMMAL COMMISSION — Annual Report for 1991 



certain requirements regarding the U.S. tuna-porpoise 

 program. The only one of these to be enacted is the 

 Dolphin Protection Consumer Information Act, which 

 was enacted on 28 November 1990 as section 901 of 

 the Fishery Conservation Amendments of 1990. 



The Dolphin Protection Consumer Information Act 

 establishes criteria for when tuna and tuna products 

 may be labeled "dolphin safe." Contrary to earlier 

 proposals, however, it does not require negative 

 labeling for tuna caught in ways that may harm 

 marine mammals. To qualify as dolphin safe, tuna 

 caught in the eastern tropical Pacific must have been 

 caught by a vessel too small to deploy its nets on 

 dolphins or must be accompanied by a certification 

 from a qualified observer that no dolphin sets were 

 made for the entire trip on which the tuna was caught. 

 In addition, the Act specifies that tuna harvested on 

 the high seas by any vessel engaged in large-scale 

 driftnet fishing may not be labeled as dolphin safe. A 

 knowing violation of the labeling requirements is 

 punishable by a fine of up to $100,000. 



Under the Dolphin Protection Consumer Informa- 

 tion Act, the National Marine Fisheries Service was 

 required to publish implementing regulations by 28 

 May 1991. Interim regulations were published on 12 

 September 1991. 



On 3 January 1991, Representative Barbara Boxer 

 (Democrat-California) introduced H.R. 261, the 

 Dolphin Protection and Fair Fishing Act of 1991. 

 That bill, if enacted, would revoke the American 

 Tunaboat Association's general permit on 31 Decem- 

 ber 1992 and thereafter prohibit the Secretary of 

 Commerce from authorizing U.S. fishermen to fish 

 for yellowfin tuna by intentionally setting purse seine 

 nets on marine mammals. During 1992, the U.S. 

 quota would be reduced to 2,500 dolphins. To ensure 

 compliance with these provisions, all U.S. tuna 

 vessels operating in the eastern tropical Pacific would 

 be required to carry observers. 



The bill also would modify the foreign comparabil- 

 ity provisions of the Marine Mammal Protection Act 

 by requiring foreign fleets to achieve an incidental 

 dolphin mortality rate no greater than 1.0 times the 

 U.S. rate by the end of the 1991 fishing season and 

 thereafter. In addition, the bill would require compa- 

 rable foreign tuna-porpoise programs to have 100 



percent observer coverage and to prohibit their vessels 

 from intentionally setting on dolphins after 1992. 



H.R. 261 had not been considered by the House of 

 Representatives at the close of the 1991 Congressional 

 session. 



As indicated above, the Department of State 

 committed itself at the January 1991 intergovenmien- 

 tal meeting in La Jolla to seek amendments to the tuna 

 embargo provisions of the Marine Mammal Protection 

 Act. Proposed legislation was transmitted to Congress 

 in June 1991. Under the proposal, tuna would not be 

 subject to embargo if the harvesting nation (1) partici- 

 pates in an international dolphin conservation program 

 in which the United States participates; (2) participates 

 in research designed to find alternative ways to catch 

 yellowfin tuna without setting on dolphins; (3) has 

 100 percent observer coverage; (4) achieved a 50 

 percent reduction in dolphin mortality in 1991 as 

 compared to 1989; and (5) achieved a 60 percent 

 reduction in dolphin mortality in 1992 as compared to 

 1989. Legislation to give effect to the State Depart- 

 ment proposal has yet to be introduced. 



Litigation Related to the Tuna-Porpoise Issue 



A lawsuit originally filed by Earth Island Institute 

 on 12 April 1988 (Earth Island Institute v. Mos- 

 bacher), before enactment of the 1988 amendments to 

 the Marine Mammal Protection Act, amendments, 

 continued to be an important factor in shaping the 

 U.S. tuna-porpoise program during 1991. Earlier 

 rulings in the case focused on the observer require- 

 ments for both the U.S. and foreign fleets. These are 

 discussed in the previous Annual Report. 



Beginning in mid-1990, the focus of the case 

 shifted to the Act's comparability requirements with 

 respect to dolphin mortality rates. As noted above, 

 the 1988 amendments specified that, for a foreign 

 tuna-porpoise program to be found comparable to the 

 U.S. program, the average incidental take rate of that 

 nation's fleet must be no more than 2.0 times that of 

 the U.S. fleet by the end of the 1989 season and no 

 more than 1.25 times the U.S. rate by the end of the 

 1990 and subsequent seasons. In addition, a foreign 

 program would not be considered comparable to the 

 U.S. program if the mcidental take of eastern spinner 

 dolphins exceeded 15 percent, or if the incidental take 



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