94 



applies to the activities of American citizens wherever they are carried on, 

 including activities on the high seas. 



Section 102(2) (C) of the National Environmental Policy Act, 42 U.S.C. 

 § 1332, requires all agencies of the federal government to prepare a detailed 

 environmental impact statement on "major Federal actions significantly af- 

 fecting the quality <>f the human environment." The precise question yon hav< 

 raised js whether a government decision to approve the transfer of American 

 tuna boats to foreign registry would constitute such a major federal action. 



A Department of Commerce decision t<> approve such transfers could re- 

 move the entire American tuna fishing fleet from the jurisdiction of tin- 

 country and from the operation of the Marine Mammal Protection Act. If this 

 should occur, these vessels would be free to fish outside of United States 

 jurisdiction without regard to any limitations on the incidental taking of 

 porpoise. Such fishing operations could lead to very large kills of porpoise and 

 to consequent changes in the ecology of the ocean areas that constitute their 

 habitat. Prior to the adoption by the Department of Commerce of regulations 

 limiting the taking of porpoise incidental to tuna fishing, the Marine Mammal 

 Commission established by Congress had warned that the total kill and serious 

 injury levels of porpoise were "unacceptably high". See Committee for Humane 

 Legislation, Inc. v. Richardson, r>40 F.2d 1141 (D.C. Cir. 1976). 



The litigation just cited was instituted by several environmental and animal 

 conservation organizations that were concerned with the substantial harm 

 being sustained by the porpoise population and by the consequences this would 

 have for the marine ecosystem. Section 2 of the Marine Mammal Protection 

 Act, 16 UU.S.C. § 1361 et seq., set forth the Congressional findings and declar- 

 ation of policy concerning the importance of marine mammals to the envi- 

 ronment. 



In the light of the determinations made by Congress in the Marine Mammal 

 Protection Act and of the facts that have been developed concerning the 

 consequences of unrestricted tuna fishing without regard to incidental kill of 

 porpoise, it would seem that a decision leading to such unlimited tuna fishing 

 would constitute a "major federal action" within the meaning of the National 

 Environmental Policy Act. As indicated earlier, a decision to approve the 

 transfer of American tuna boats to foreign registry conld lead to widespread 

 transfers of vessels and to their fishing without regard to the restrictions 

 adopted by the Department of Commerce under the Marine Mammal Pro- 

 tection Act. Such transfers woidd be for the purpose of avoiding application 

 of the Department of Commerce regulations and for the purpose of conducting 

 tuna fishing operations free of any such restrictions. 

 Yours sincerely, 



Leonard C. Meeker. 



Mr. Kaufmann. The point made by Mr. Meeker, plus the point 

 that was developed resulting from Mr. Mannina's questioning this 

 morning relating to U.S. national policy and, lastly, the point that 

 has already been alluded to of national security considerations seems 

 to us to be three points that — as a minimum, would greatly slow 

 down the transfer of purse seiners in foreign registry and might very 

 well preclude any such transfer. 



I would like to say a word about one of the agencies in the U.S. 

 Government that has played a very key role in working toward 

 solution of the tuna/porpoise problem, in fact an agency which has 

 been extremely constructive on all marine mammal protection prob- 

 lems. 



The organization is the Marine Mammal Commission. We feel 

 that of the three agencies of the Government that have had respon- 

 sibility since 1972 in administering the law, that the most construc- 

 tive role by far has been by the Marine Mammal Commission. 



I wanted to get this in the record because it is our understanding 

 that some consideration has been given by the new administration to 

 reductions eliminating commissions and we think it would be catas- 





