115 



thus creating the delay in implementation of final regulations and associated 

 problems which we now face. 



The short-range problem now is whether any porpoise can legally be taken 

 before final 1977 regulations take effect in April. A proposal for interim 

 regulations which would permit taking of porpoise, supported by NMFS, the 

 industry, and most environmental groups including those represented by KDF, 

 is currently pending before the U.S. Court of Appeals for the District of Co- 

 lumbia. If equitable relief is granted, the major current cause for industry 

 complaint will evaporate. Should the Court refuse to grant the requested relief, 

 at most the tuna industry faces only another six-to-seven weeks of fishing by 

 other means than "on porpoise." (In this regard it should be remembered that 

 last year's government figures show that for the comparable first four months 

 of the fishing year as a matter of choice the industry fished only 30 percent 

 "on porpoise," and 70 percent by other methods.) The U.S. fleet is out fishing 

 right now, admittedly inconvenienced by not being able to set on porpoise, 

 but not fatally so. It is only after May when the fleet moves far offshore that 

 the ability to set on porpoise becomes critical. 



There is thus neither time nor reason to amend the Act in order to provide 

 relief to the industry for this interim period. And the need to amend the law 

 for more permanent "relief" will undoubtedly be obviated by the administra- 

 tive determination which is expected any day now from the Director of the 

 National Marine Fisheries Service, Mr. Schoning. It is all but certain (based 

 on the recommendation of the Administrative Law Judge) that the 1077 

 regulations will be acceptable to the industry, and we are hopeful that they 

 will be acceptable to environmentalists as well. 



In any event, it is certain that the industry can comply with the Act, and 

 with the regulations written to implement it. It is further evident, especially 

 now that NMFS, under prodding by the Court of Appeals, has expressed its 

 intention to utilize aerial surveillance and a stepped-up observer program, 

 that the government can implement and enforce the Act. Evidence offered at 

 the recent administrative hearings on the proposed 1977 regulations showed 

 clearly that in large part the solution to the tuna /porpoise problem, improved 

 techniques and equipment, is already at hand if it can only be implemented. 



It is interesting to note that last year approximately twenty of the boats 

 were so successful in catching tuna without killing porpoise that if their level 

 of expertise had existed throughout the fleet, only perhaps as few as 10,000 

 or less porpoises would have died. As it was, between 84,000 and 112,000+ 

 porpoises were killed, with only a few boats responsible for a disproportion- 

 ate amount of the kill. Clearly the answer is to be found in a well-integrated 

 training, gear modification, and incentive program, rather than in special 

 interest, legislation to amend the law. Industry self-policing to eliminate 

 incompetent skippers and ill-equipped or unsuitable fishing boats alone will 

 reduce mortality tremendously. 



As to the matter of U.S. vessel transfers to foreign flags, it seems most 

 unlikely that this often-repeated threat will ever occur, certainly in the near 

 term. For the most part U.S. boats are owned by U.S. corporations and banks 

 reluctant to see their substantial investments placed under the uncertainties 

 of foreign jurisdiction. Permission to transfer vessels must be obtained from 

 the Maritime Administration, which under law would have to certify transfers 

 would not adversely affect national security, whereas uncontradicted testi- 

 mony at the recent NMFS administrative hearings was that the U.S. tuna fleet 

 was a national security asset. Further, transfers can and have been made 

 conditional upon the new foreign owners complying with the MMPA. 



There are additional factors making large-scale defection of the U.S. tuna 

 fleet to foreign flags unlikely. The official U.S. government position regarding 

 the reach of the MMPA is that it applies to U.S. citizens wherever they may 

 be. Thus both captains and crews who stayed with their vessels after trans- 

 fer would have to be prepared to give up their U.S. citizenship. And finally, 

 given the MMPA's ban on imports caught by methods proscribed to U.S. fish- 

 erment, all these boats and the countries to which they transferred would 

 have to be prepared to give up the U.S. as a market for their tuna. While 

 other markets exist, they are neither so well developed nor profitable cur- 

 rently as is the U.S. 



Looking toward the future, all parties of interest recognize that the foreign 

 take problem is a serious one. It is only with regulation of all tuna vessels,. 



