Tuna Commission observer program would provide sufficiently 

 reliable documentary evidence of the average rate of incidental 

 taking and was acceptable. Absent such a determination, no 

 foreign program could be found comparable to that of the United 

 States without substantially increasing its observer coverage. 



The Commission commented on the proposed finding on 12 July 

 1989. The Commission noted that 33 percent observer coverage 

 might be acceptable for large fleets, but seriously questioned 

 whether this level of coverage would provide an acceptable 

 coefficient of variation in the estimated mortality for fleets 

 with fewer than 10 vessels. The Commission also noted that, 

 because the mortality rate on unobserved trips is almost 

 certainly higher than on observed trips, 33 percent observer 

 coverage, even for large fleets, may not be sufficient. 



Therefore, the Commission recommended in its letter that, 

 before a final determination on observer coverage was made, the 

 Service should examine its rationale for assuming that the kill 

 rate on observed trips would be representative of the performance 

 of the fleet as a whole. The Commission also noted that 

 observers serve an enforcement function and questioned whether 

 reduced observer coverage for foreign fleets could provide an 

 enforcement program comparable to that of the United States. In 

 light of these difficulties, the Commission recommended that the 

 Departments of Commerce and State take steps to expand the Inter- 

 American Tropical Tuna Commission's observer program to provide 

 as close to 100 percent coverage as possible. 



Shortly after the Service made known its intention to accept 

 lesser observer coverage for foreign fleets, Earth Island 

 Institute, in its pending lawsuit, filed a motion for partial 

 summary judgment on this issue. Earth Island Institute argued 

 that the alternative observer program provision of the 1988 

 amendments was intended to allow the Service to approve an 

 observer program in which the United States does not participate 

 but did not authorize the Service to accept a program that 

 provides less coverage than the United States program. The Court 

 ruled on 24 August 1989 that the statute did not unambiguously 

 require foreign observer programs to provide observer coverage 

 equal to that of the United States and that the Service's 

 interpretation was reasonable. While ruling on the legal 

 construction of the statute, the Court was not faced with the 

 factual question of whether 3 3 percent coverage met the statutory 

 standard by providing a reliable estimate of incidental mortality 

 for each fleet. 



Late in 1989, the Commission reviewed a draft proposal by 

 the Service to accept 33 percent observer coverage for large 

 fleets and 50 percent coverage for small fleets during the 1990 

 fishing season. On 1 November, the Commission reiterated its 

 concerns about enforcement program comparability and whether the 



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