268 



.Now, therefore, be it resolved, That the National Wildlife Federation, in 

 annual convention assembled March 14-10, 1975, in Pittsburgh, Pennsylvania, 

 hereby urges the National .Marine Fisheries Service to: 



1. Establish B specific celling on the annual allowable kill of porpoises 

 incidental to tuna purse seine Ashing above which the tuna fishing fleet should 

 not be permitted to "set on porpoises," this ceiling figure to be halved each 

 subsequent year until the kill is reduced -to insignificant levels approaching a 

 zero mortality and serious injury rate" pursuant to Sec. 101 of Ml'A; and 



2. Establish a greatly expanded observer program funded from a substantial 

 increase in the fees paid by industry for certification of inclusion where the 

 cost of the certificate is directly related to the number of porpoises killed; and 



3. Pursue a more comprehensive, aggressive research program in conjunction 

 with, and financial assistance from, the U.S. tuna industry into the entire 

 question of porpoise-dolphin populations and their effective management. 



Center for Law and Social Policy, 

 Washington, D.C., February 11, 1977. 



Col. Milton M. Kaufmann, 



U.8.A.F. Retired, President, Monitor, Inc. 



Washington, D.V. 



Dear Colonel Kaufmann : You have asked my views as to the applicability 

 of the National Environmental Policy Act to a possible decision by the Maritime 

 Administration of the Department of Commerce to approve the transfer to 

 foreign registry of American vessels engaged in fishing for tuna in the Pacific 

 Ocean. 



Federal law requires the approval of the Secretary of Commerce — 



"* * * to sell, mortgage, lease, charter, deliver, or in any manner transfer, 

 or agree to sell, mortgage, lease, charter, deliver, or in any manner transfer, 

 to any person not a citizen of the United States, or transfer or place und(|r 

 foreign registry or flag, any vessel or any interest therein owned in whole or 

 in part by a citizen of the United States and documented under the laws of the 

 United States, or the last documentation of which was under the laws of the 

 United States." 16 U.S.C. § 808. 



The issue of transfer of American tuna boats to foreign registry has arisen 

 because of regulations adopted under the Marine Mammal Protection Act of 

 1972 to limit the number of porpoises (marine mammals) that may be taken 

 incidental to tuna fishing operations. The Marine Mammal Protection Act 

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

 including activities on the high seas. 



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

 § 4332, requires all agencies of the federal government to prepare a detailed 

 environmental impact statement on "major Federal actions significantly affect- 

 ing the quality of the human environment." The precise question you have 

 raised is 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 to approve such transfers could remove 

 the entire American tuna fishing fleet from the jurisdiction of this 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 liimitations 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". Sec Committee for Humane Legislation, Inc. v. 

 Richardson. 540 F.2d 1141 (D.C. Cir. 1070). 



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. 10 V.S.C. 8 1301 c.t seq., set forth the Congressionail findings and declara- 

 tion of policy concerning the importance of marine mammals to the environment. 



