prohibition on sundown sets instituted by the 1988 amendments and 

 a decline in the number of U.S. vessels in the fishery from the 

 mid-30s between 1985 and 1988 to 29 in 1989. 



Domestic Program 



Observers — The 1988 amendments to the Marine Mammal 

 Protection Act addressed the issue of observer coverage in the 

 tuna fleet by requiring that the Service place an observer aboard 

 each vessel on all trips during 1989 and subsequent years unless, 

 for reasons beyond the Service's control, an observer is not 

 available. The 100 percent observer requirement may be waived 

 after the 1991 fishing season if the Service determines, after 

 notice and opportunity for public comment, that lesser coverage 

 will provide sufficiently reliable information. 



On 19 December 1988, the National Marine Fisheries Service 

 issued a statement that, despite recent amendments to the Act, it 

 lacked sufficient funding to implement 100 percent observer 

 coverage in 1989. Subsequently, the Service indicated that it 

 would place observers on all trips beginning on or after 

 1 January 1989, although, if additional funding were not made 

 available, reduced coverage might be required later in the year. 

 On 5 January 1989, Earth Island Institute applied for a temporary 

 restraining order to prevent two U.S. tuna vessels that had left 

 port before the first of the year without an observer from 

 engaging in fishing operations on porpoise. The matter came 

 before the District Court for the Northern District of California 

 on 17 January, and the following day a preliminary injunction was 

 issued ordering that no certificated U.S. tuna vessel could 

 depart on a fishing trip to the eastern tropical Pacific or could 

 set on porpoise without an observer on board, unless the Court 

 had determined that, for reasons beyond the control of the 

 Secretary of Commerce, an observer was not available. 



At the Senate reauthorization hearing held on 13 April 1988, 

 representatives of Earth Island Institute asserted that there was 

 a systematic underestimation of marine mammal mortality in U.S. 

 and foreign tuna fisheries. To support its claim with respect to 

 the reliability of mortality data for the U.S. fleet, Earth 

 Island Institute, on 15 May 1988, provided the Commission with 

 affidavits from three former U.S. observers. Among other things, 

 the former observers alleged that: vessel captains and crews 

 threatened and coerced them into reporting lower than observed 

 mortality figures; mortality in sundown sets is seriously under- 

 estimated due to difficultly in viewing the backdown area; 

 animals with fatal injuries were counted as "released alive" if 

 they showed any sign of life; and vessels do not always use 

 prescribed dolphin-saving gear and techniques when observers are 

 not present. 



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