Chapter III — Marine Mammal -Fisheries Interactions 



environmental community expressed cx)ncern that 

 progress realized by the U.S. fleet in reducing inci- 

 dental porpoise mortality was being offset by the high 

 kill rates of foreign fleets. It was believed that, if 

 fiirther progress were to be made in achieving the 

 Act's goal of reducing incidental mortality to insignifi- 

 cant levels approaching zero, foreign fleets would 

 have to comply with porpoise-saving regulations 

 similar to those applicable to the U.S. fleet. There- 

 fore, Congress amended the Act to require that each 

 nation exporting tuna to this country provide docu- 

 mentary evidence that, with respect to regulating the 

 take of marine mammals, it has adopted a program 

 comparable to that of the United States and that the 

 average rate of incidental take by its fleet is compara- 

 ble to that of the U.S. fleet. Failure to meet these 

 requirements would result in a ban on the import of 

 tuna and tuna products from the nation involved. 



The National Marine Fisheries Service did not 

 implement these requirements until 18 March 1988, 

 when it published interim regulations. Dissatisfied 

 with the Service's regulations and the pace at which 

 they were developed. Congress amended the Act in 

 1988 to provide more specific guidance as to when 

 foreign tuna-porpoise programs would be considered 

 to be comparable to that of the United States and to 

 force timely implementation. The amendments 

 require that, to be found comparable to the U.S. 

 program, a foreign program must include: (1) by the 

 begiiming of the 1990 fishing season, prohibitions on 

 encircling pure schools of certain marine mammals, 

 conducting sundown sets, and such other activities as 

 are applicable to U.S. vessels; (2) monitoring by 

 observers from the Inter-American Tropical Tuna 

 Commission or an equivalent international program; 

 and (3) observer coverage equal to that for U.S. 

 vessels unless an alternative observer program with 

 lesser coverage is determined to provide sufficiently 

 reliable documentary evidence of the nation's inciden- 

 tal take rate. In addition, the average incidental take 

 rate for a foreign fleet could be no more than twice 

 that of the U.S. fleet by the end of die 1989 season 

 and no more than 1.25 times the U.S. rate by the end 

 of the 1990 and subsequent seasons. 



Limitations were also placed on the take of coastal 

 spotted and eastern spinner dolphins. Beginning in 

 1989, eastern spinner dolphins may not account for 

 more than 15 percent of a nation's total incidental take 



and coastal spotted dolphins may not exceed two 

 percent of the nation's total take. Harvesting nations 

 are also required to comply with all reasonable 

 requests from the United States to cooperate in 

 conducting its porpoise stock assessment and monitor- 

 ing program. 



Final regulations implementing the 1988 amend- 

 ments were published by the National Marine Fisher- 

 ies Service on 30 March 1990. As discussed below, 

 the comparability provisions and findings made 

 thereunder were the subject of litigation durmg 1990 

 and 1991. 



On 28 August 1990, the District Court issued a 

 ruling with respect to the comparability provisions of 

 the 1988 amendments. It required the Service to 

 embargo yellowfin tuna harvested by foreign fleets in 

 the eastern tropical Pacific until the Service deter- 

 mined that those fleets had achieved a marine mammal 

 mortality rate, by the end of 1989, that was no more 

 than twice that for the U.S. fleet. Pursuant to the 

 Court's order, imports of yellowfin tuna and tuna 

 products were prohibited on 6 September 1990. On 

 7 September 1990, affirmative findings were made for 

 Venezuela, Vanuatu, Ecuador, and Mexico and the 

 embargo of tuna from those countries was lifted. 



The finding for Mexico was issued under a provi- 

 sion of the Service's regulations that allowed reconsid- 

 eration of a negative finding based on at least six 

 months of data from the following year. It was based 

 on data from the first eight months of 1990. As noted 

 below, the embargo of Mexican tuna was later reim- 

 posed by the District Court when it ruled that a 

 finding with respect to the quota for eastern spinner 

 dolphins must be based on data from an entire fishing 

 year. That embargo was stayed by the Ninth Circuit 

 Court of Appeals pending appeal of the lower Court's 

 ruling but was reimposed on 22 February 1991, three 

 days after the Court of Appeals lifted the stay. 



In response to the April 1990 announcement by 

 several U.S. canners that they would no longer 

 purchase tuna caught in association with dolphins, 

 Ecuador and Panama both passed legislation prohibit- 

 ing their vessels from setting on marine mammals. 

 The Service, on 16 November 1990, published an 

 interim final rule enabling comparability determina- 

 tions to be made based upon the passage and effective 



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