TUNA/DOLPHIN ISSUES 

HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON FISHERIES, 

WILDLIFE AND OCEANS 

OF THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST AND SECOND SESSIONS 

ON 

THE PROVISIONS OF THE INTERNATIONAL DOLPHIN CONSERVATION ACT, HOW IT IS AFFECTING DOLPHIN MORTALITY, AND 

WHAT MEASURES CAN BE EFFECTED TO KEEP THE MORTALITY 

TO A MINIMUM 

JUNE 22, 1995-WASHINGTON, DC 

H.R. 2823-A BILL TO AMEND THE MARINE MAMMAL PROTECTION 

ACT OF 1972 TO SUPPORT THE INTERNATIONAL DOLPHIN CONSERVATION PROGRAM IN THE EASTERN TROPICAL PACIFIC 

OCEAN, AND FOR OTHER PURPOSES 

2~276CC 

FEBRUARY 29, 1996-WASHINGTON, DC 

· Serial No. 104-58 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1996 

For sale by 1he U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052646-9 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Loqisiana 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTON GALLEGLY, California 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J .D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., Maine 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

GEORGE MILLER, California 

EDWARD J. MARKEY, Massachusetts 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Californi~ 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

PATRICK J. KENNEDY, Rhode Island 

DANIEL VAL KlSH, Chief of Staff 

DAVID DYE, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/Administrator JOHN LAWRENCE, Democratic Staff Director 

8UBCOMMI1TEE ON FISHERIES, WILDLIFE AND OCEANS 

JIM SAXTON, New Jersey, Chairman 

DON YOUNG, Alaska 

W.J. (BILLY) TAUZIN, Louisiana 

WAYNE T. GILCHEST, Maryland 

PETER G. TORKILDEN, Massachusetts 

LINDA SMITH, Washington 

WALTER B. JONES, JR., North Carolina 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., Maine 

GERRY E. STUDDS, Massachusetts 

GEORGE MILLER, California 

SAM GEJDENSON, Connecticut 

SOLOMON P. ORTIZ, Texas 

SAM FARR, California 

PATRICK J. KENNEDY, Rhode Island 

HARRY BURROUGHS, Staff Director 

DAVE WHALEY, Professional Staff 

CHRIS MANN, Democratic Professional Staff 

(II) 
CONTENTS 

DOLPIDN MORTALITY IN TUNA FISHERY 

Hearing held June 22, 1995 ................................................................................... . 

Statement of Members: Cunningham, Hon. Randy "Duke", a U.S. Representative from CaliforPage 

1 

nia. ................................................................................................................. 1 

Faleomavaega, Hon. Eni F.H., a U.S. Delegate from American Samoa ...... 6, 11 

Gilchrest, Hon. Wayne T., a U.S. Representative from Maryland ............... 14 

Saxton, Hon. Jim, a U.S. Representative from New Jersey, and Chairman, Subcommittee on Fisheries, Wildlife and Oceans . .... ...... ... ......... .... .. 1 

Studds, Hon. Gerry E., a U.S. Representative from Massachusetts ............ 6 

Young, Hon. Don, a U.S. Representative from Alaska, and Chairman, Committee on Resources ............................................................................. . 5 

Statement of Witnesses: 

American Tunaboat Association, Julius Zolezzi (frepared statement) ........ 125 

Colson, David, Deputy Assistant Secretary o State for Oceans, U.S. 

D~::dts~~~~ni ::::: :::: :: :: :: :: :: :: :: :: ::::::::::: ::::: :: :: ::: :: :: :::::: :: :: ::::: :: Fishermen's Coalition, Teresa Platt (prepared statement) .......................... . 

G't~n~·~~~= f~J~te;il~c.~~~~~~~ ~~~ .. ~~~~~~~.~~~~~~.~: .. ~~: Prepared statement .................................................................................. . Iudicello, Suzanne, Vice President for Programs and General Counsel, Center for Marine Conservation ................................................................. . Prepared statement .................................................................................. . 

Jose~;::ds~~~¥ .~~~~:~~~~~.::.~~~~~.~~.~~~~~~~~ :::: :::: Phillips, David C., Executive Director, Earth Island Institute .................... . 

wal~.Y::;h~~~J~~n:·fu~~t;~~t. o;~~~·c~iliii~~· ·: :: :: :::: :: :::::: :::: ::: ::: :: : Prepared statement .................................................................................. . 

Additional material supjllied: Saxton, Hon. Jim: Question sent toAmerican Tunaboat Owners'Association: Responses to questions ....... . Center for Marine Conservation: Responses to questions .................... . Earth Island Institute: Responses to questions ..................................... . Inter-American Tropical Tuna Commission: Responses to questions .. . National Fisheries Institute: Responses to questions ........................... . State Department: Responses to questions ............................................ . 

Communications submitted: 

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Mazuera Gomez, Daniel: Letter of June 16, 1995, to Hon. Don Young ....... 146 

McManus, Roger E. (Ctr. for Marine Conserv.): Letter of July 26, 1995, to Dr. D. James Baker .................................................................................. 166 

Romine, Traci, and Gerald Leape (Greenpeace): Letter of July 14, 1995, 

to Hon. Don Young ........................................................................................ 136 

Saxton, Hon. Jim: Letter sent to witnesses with questions .......................... 149 

(III) 
IV · Page 

Communications submitted-Continued 

Young, Hon. Don: Letter of November 14, 1994, to Ms. Hilda DiazSoltero . .... ... ... . .... ... ... . ...... .... .... . .... .... .. ... .. .... .... .. .. . . ... . ... .. .. . .. .... .... ... . .. ... .. .... .. .. 186 

TUNAIDOLPIDN IN THE EASTERN TROPICAL PACIFIC 

Hearing held February 29, 1996 .......................................................................... .. 

Statement of Members: Biden, Hon. Joseph, a U.S. Senator from Delaware .................................... .. Prepared statement .................................................................................. . Bilbray, Hon. Brian, a U.S. Representative from California ....................... . Prepared statement .................................................................................. . Boxer, Hon. Barbara, a U.S. Senator from California .................................. . Prepared statement and attachments ......................... , .......................... . Cunningham, Hon. Randy "Duke", a U.S. Representative from California .................................................................................................................. . Prepared statement .................................................................................. . Gilchrest, Hon. Wayne, a U.S. Representative from Maryland .................. .. Richardson, Hon. Bill, a U.S. Representative from New Mexico ................. . Saxton, Hon. Jim, a U.S. Representative from New Jersey, and Chair- man, Subcommittee on Fisheries, Wildlife and Oceans ............................ . Studds, Hon. Gerry, a U.S. Representative from Massachusetts ................ . Young, Hon. Don, a U.S. Representative from Alaska, and Chairman, Committee on Resources ............................................................................. . 

Statement of Witnesses: Campbell Industries and MARCO Seattle, Inc. (prepared statement) ...... .. Colson, David, Deputy Assistant Secretary of State ............ ; ....................... . Curtis, Clifton, Oceans/Biodiversity Political Advisor, Greenpeace International ......................................................................................................... . Prepared statement .................................................................................. . 

Ed!~d;is~!ri!~~~~~ ~e~C:~. ~~n .. ~~~ .. ~~~~~ .. ~~~~~: .. ~~~~~ Prepared statement .................................................................................. . Francis, Dr. R.C., Chairman, Committee on Reducing Pol'{)Oise Mortality from Tuna Fishing, Commission on Life Sciences, National Research 

H~tn~~~f!:P~ ~!i!fa~~nye~~~··r~~··o~~~~--~-~d:··~..~~~:P'h~~~--~~d Deputy Administrator, National Oceanic and Atmospheric Administration ................................................................................................................ . Prepared statement .................................................................................. . Hall, Dr. John D., Coastal and Offshore Pacific Corporation ..................... .. Prepared statement .................................................................................. . Joseph, Dr. James, Director of Investigations, Inter-American Tropical 

TUna Commission ......................................................................................... . Prepared statement .................................................................................. . Pike, Jeffrey R., Dolphin Safe Fair Trade Campaign ................................... . Prepared statement .................................................................................. . Platt, Teresa, Fishermen's Coalition (prepared statement) ......................... . Rose, Dr. Naomi, marine mammal scientist, U.S. Humane Society .......... .. Van Dyke, Brennan, Director, Geneva Office, Center for International 

Environmental Law (prepared statement) ................................................. . Walker, Mary L., former U.S. Commissioner, Inter-American Tropical Tuna Commission ........................................................................................ . Prepared statement .................................................................................. . Wallach, Lori, Public Citizen's Global Trade Watch .................................... . Prepared statement ................................................................................. .. Walsh, James P., American Tunaboat Owners Coalition ............................ . 

wirth~~~ili~teu:cl:r···s~~~~~ ·· r~~ ·· ui~b~i' -·Aii~·:·· o~p~~~~i···~r State . ............................................................................................................. . 

You::eNi:dM~!::I:! :;;.~;;i~gi~'i ·c-~~-~~-r~; M:~~~ .. c~~~~ti~·;; ·::: Prepared statement .................................................................................. . 

199 

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268 

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283 

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271 

210 

286 

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213 

447 

217 

246 

339 

232 

315 

419 

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400 

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321 

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369 

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432 

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384 

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389 

258 

407 

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294 

248 

354 
v 

Page 

Additional material supplied: Possible Methods To Track Tuna Under the Panama Declaration .............. 451 

Tuna Commission: Eastern Pacific Yellowfin Tuna Regulatory Area . . . .. . . . . . 453 

Communications submitted: 

Fl~!;;2~~~~~io(~~=~: ~a~~-~-~~-~~~~~~~~: .. ~~~~ ~~-~~~~ 455 

Lew, Ginger (Commerce Dept.): Letter of February 22, 1996, to Hon. Don Young ·..................................................................................................... 292 

Seligman, Daniel A (Sierra Club): Letter of February 29, 1996, to Rep. 

Jim Saxton . .. . ... .... ... .... .... ... .. .... ...... ... .... .... .... ... .... .... .... ... .... ... ... .... ......... .... ... . 454 

Sherman, Wendy R. (State Dept.): Letter of February 14, 1996, to Hon. Don Young ..................................................................................................... 290 

DOPHIN MORTALITY IN TUNA FISHERY 

THURSDAY, JUNE 22, 1995 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS, 

COMMITTEE ON RESOURCES, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:04 p.m. in room 

1334, Longworth House Office Building, Hon. Jim Saxton (chairman of the subcommittee) presiding. 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE 

FROM NEW JERSEY; AND CHAIRMAN, SUBCOMMITTEE ON 

FISHERIES, WILDLIFE AND OCEANS 

Mr. SAXTON. Good afternoon. 

The committee will come to order and let me say at the outset 

that it appears we are going to have a series of votes in the not 

too distant future. We will try to get moving therefore so that we 

can proceed to cover the subject at hand as efficiently and as forthrightly as possible. 

This oversight hearing of course will focus on the provisions of 

the International Dolphin Conservation Act. There are a number of 

issues that we will address today regarding this law. 

For example, has the law resulted in a decrease in dolphin mortality? Some believe it has. Has the law resulted in an increase in 

the catch of juvenile tuna, sea turtles, and other bycatch? Some believe it has. Is there a way to ascertain if tuna fishingJractices using purse-seine nets can be modified to result in minim dolphin mortality? If so, is there a need to continue the current embargo? Would 100 percent observer coverage be an acceptable monitoring method to ensure minimal dolphin mortality, and are dolphins a 

threatened species in need of protection at all? 

I am looking forward to hearing from our witnesses about these 

and other important issues surrounding the Act. 

Mr. SAXTON. Let me ask unanimous consent at this point that 

any other members of the committee or members-! believe Mr. 

Cunningham would like to submit a statement, so I ask unanimous 

consent that they be afforded that opportunity. Hearing no objection-since there are no other members here I guess I wouldn't 

hear any objection-it will be so ordered. 

[The statement of Mr. Cunningham follows:] 

STATEMENT OF HON. RANDY "DUKE" CUNNINGHAM, A U.S. REPRESENTATIVE FROM 

CALIFORNIA 

Mr. Chainnan, thank you for including my views today regarding this critically important issue. In 1990, the U.S. __ market for Mexico tuna was cut off. As a result, 

(1) 
2 

over 4,000 workers associated with the fishing industry were displaced, and many 

tuna boats lifted their anchors from Mexico's waters in search of better business. 

However, I am encouraged by the committee's willingness to reexamine this issue 

in today's hearing. I am hopeful that the testimony of today's witnesses will motivate the Con~s to modify the Marine Mammal Protection Act that led to the em- bargo on Mencan tuna. 

Mexico is well aware of the ramifications of neglecting to protect its seas and sea life. For many years now, Mexico has dedicated itself to protecting the sea's natural resources. The Mexican government has realized that the only way to succeed in its 

commitment to resource management is through a long !'aDBe plan. Mexico's dedication to fisheries m~ement and dolphin preservation laws and ~ations is evident through the creation of the Tuna Management and Dolphin Conservation Program. Created in 1991, the Tuna Management and Dolphin Conservation Program's goal is to reduce dolphin mortality rates to the least possible level, while maldng 

wise use of the tuna natural resources. As a result of the new and enforced regulations, the Mexican fleet reduced dolphin mortality by 97 percent between 1986 and 1993. Mexico was 27 percent below the 

target mortality level established by the La Jolla Agreement, to which Mexico and 

the U.S. are signatories. In 1986, Mexico registerecf an average dolphin incidental 

mortality rate of thirteen animals per net "set". It is imr>rtant to note that the rate 

has consistently dropped each year to a 0.45 per "set average in 1994. Mexico's 

commitment to marine conservation has been equated to its successful efforts to pro- vide dolphin conservation in the Eastern Tropic81 Pacific (ETP) tuna fisheey. While it is clear that there were abuses in the past, Mexico has worked tirelessly 

to correct the system. Many agree that the time has come to lift the tuna embargo. In fact, a General Agreement on Tariffs and Tude panel ruled in 1993 that the 

tuna embargo was considered an unfair trade practice. The United States State Department be1ieves that Mexico has complied Wlth the methods for prote~ dolphin hi-catch and believe that the embargo should end. There is a stronf case bemg made 

for the removal of the tuna emb~ against Mexico. Therefore, believe that the 

U.S. is no longer justified in maintaining the embargo due to the significant changes Mexico has made with regard to their fishing practices. 

As the Representative of the 51st congressional district of California, I can attest 

to the fact that Mexico was not the only one to suffer as a result of the embargo. As you may know, commercial fishing is part of San Diego's rich cultural heritage. Regional jobs and economic aclivity are generated through Mexico's fishi11g industry. When American fishermen were banned from operating in the Eastern Tropical Pacirlc (ETP), with its rich and healthy tuna resources, San Diego's tuna fleet was devastated. While fishing is permitted in the Western Pacific, the catch rates are sig- nificantly lower.~. the quality of fish is noticeably inferior, and sales have consistently been reduced. This translates into scarce resources, dismal sales, the loss of jobs, and an uncertain fate for American tuna fishermen. 

Since coming to Congress, I have had the distinct pleasure of working with Mexico's Undersecretary of Fisheries Development Carlos Camacho Gaos. For several 

years, Mr. Camacho and I have tried to find a solution to this problem. Mr. 

Camacho, along with the Mexican government, have succeeded in meeting its goals, while attaining hi-catch rates their harshest critics did not think possible. I s8lute 

Secretary Camacho's dedication and commitment to addressing this issue. Mexico's success lS obvious and its government should not be punished through prolonging the tuna embargo. Mr. Chairman, I ask that you focus on the scientific data in this issue. Some of 

the most respected ~erts in this field would agree that no threat exists to the 

well-being of the dolphin population. The time has come to allow our American boat owners to fish in the ETP in accordance with rules and regulations of the La Jolla 

Agreement. As evidenced through the rates in recent years, the La Jolla ~­

ment's dolphin quota system, which is managed and maintained by the IATT"C, is 

far superior in its approach to the problem than the Congress' legislation. For all these reasons, I believe that the tuna embargo Should oe terminated. 

Again, thank you for your consideration of my testimony. 

Mr. SAXTON. I now ask that we hear from our first witness, deputy assistant secretary of state, David Colson of the Department of 

State. 

Ambassador, we look forward to hearing your, testimony on this 

very important issue, very important environmental and economic 

issue. We look forward to hearing from you, and you are recognized 

at this time. Thank you for being here with us. 
3 

STATEMENT OF DAVID COLSON, DEPUTY ASSISTANT SECRETARY OF STATE FOR OCEANS, U.S. DEPARTMENT OF 

STATE 

Mr. COLSON. Thank you, Mr. Chairman. 

I do have a prepared statement and would ask that it be placed 

in the record. 

As you have indicated, this has been a long-standing and difficult 

and controversial issue. However, today we can report that due to 

the efforts of many, including the leverage of United States legislation, significant and unprecedented progress has been made in protecting dolphins in the Eastern Pacific tuna fishery. This has come 

about due in large measure to an imaginative and forward looking 

program of the Inter-American Tropical Tuna Commission called 

the La Jolla Agreement, and we are here today in light of our interest in promoting even greater progress in the efforts being made 

to protect dolphins in that tuna fishery. We believe that the time 

has come to look for adjustments in U.S. legislation so that we can 

continue with full international cooperation in this very important 

and novel agreement. 

I want to emphasize that the Administration's intent is to continue to make progress in reducing dolphin mortalities, not in any 

way to go backward, and our troposals today have ·that objective. 

Let me take just a very brie moment to describe this program 

which has as its objective to reduce dolphin mortalities to insignificant levels, approaching zero, with a goal of eliminating them entirely. 

This agreement was developed in 1992. As the principal United 

States fisheries negotiator, I can say categorically there is no other 

agreement like this anywhere else in the world. It has been highly successful, and if we could put similar agreements in place in other 

regions the health of our fisheries and our marine ecosystems 

would be substantially improved. The centerpiece of the agreement is a schedule that reduces overall dolphin mortalities in the fishery to less than 5,000 by 1999. Each vessel in the. fishery gets a small share of the overall limit, 

and this year, in 1995, that limit is 114. At such point as a vessel 

reaches that limit, it must stop fishing for the remainder of the 

year. 

The second part of this agreement is 100 percent observer coverage, and that means that we know full well what happens in this 

fishery. We don't have any question about what is happening. 

Third, there is again something that is unique to this agreement, 

an international panel which reviews and reports upon compliance, 

and this panel is made up of government representatives, industry, 

and environmental group representatives. 

Fourth, there is a research program associated with the agreement, and there is as a fifth matter, a board of technical advisors 

to guide the research. 

The agreement has achieved tremendous progress. The facts are 

that under this agreement in the last two years the fishery in the 

Eastern Tropical Pacific Ocean which used to kill hundreds of thousands of dolphins a year in the last two years has killed about 

4,000 dolphins. -
4 

Now most Americans don't want to talk about dead dolphins, but 

the fact is that we are in this fishery affecting less than four-onehundredths of 1 percent of the dolphin populations in the eastern 

Pacific UCean, which is well below the recruitment into these popu- lations. 

Nonetheless, Mr. Chairman, the countries that are cooperating with us in this program continue to be penalized and they continue 

to be stigmatized by U.S. trade sanctions that are imposed against them because they do not meet certain standards that are long outdated in our law. 

Our standards, we believe, are now counterproductive to inter- national cooperation, and we believe that in order to go forward 

and to continue to make additional progress in this area, which has 

always been important to Congress, we need to address these trade 

sanctions and remove them for countries that are participating in 

the program. 

Mr. Chairman, we also believe that we ought to amend our law 

to allow U.S. fishermen to participate in this fishery on an equal footing with foreign fishermen. The legislative and regulatory restraints that are imposed by our law virtually exclude United 

States fishermen from this fishery. Now let me be quick to point out that this does not mean an increase in dolphin mortalities. U.S. fishermen will particip_ate within the La Jolla Agreement's overall 

limit, and additional U.S. boats in the fishery will only mean that 

the per vessel limit will be lower. There is a third aspect of the tuna/dolphin controversy that is 

likely to be more difficult and contentious, and that relates to the 

dolphin-safe market in the United States. The prepared testimony which the Administration offers indicates five options which range from making no change in present law, which now bans from the 

United States market tuna caught by the purse-seine method. encircling dolphins, to removing all labeling and marketing standards 

established in law. The debate is over whether our dolphin-safe market encourages fishing methods that have an adverse environmental effect. 

I assume that other witnesses will discuss the studies that are 

associated with this in more detail. On this point, the Administration would welcome the opportunity to examine the various options with you, Members of Congress, and constituent groups. In conclusion, Mr. Chairman, the Administration believes that to 

further dolphin protection United States law should be amended to 

remove the embargoes for countries participating in the IATTC 

program and meeting its standards, that U.S. law should be 

amended to lift bars now in place so as to allow U.S. fishermen to 

return to the fishery, and, three, together we ought to examine the 

options for dealing with the questions which have been raised concerning the dolphin-safe marltet. 

Mr. Chairman, I would be happy to try to answer any questions that the committee might have. 

[The statement of Mr. Colson may be found at end of hearing.] Mr. SAXTON. Thank you very much, Ambassador Colson. 

As you have heard, the buzzers have sounded, and I'm told that 

this is a 15-minute vote and that it will be followed by three fiveminute minute votes. That means, as best I can figure, we will be 
5 

back here in about a half-hour. So if you could remain with us, we 

would appreciate it very much. 

Mr. COLSON. I'll be here. 

Mr. SAXTON. Also, Mr. Young, Mr. Studds, and Mr. 

Faleomavaega each have opening statements, I believe, and they will be submitted for the record and included at this point. [The statements follow:] 

STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE FROM ALAsKA, AND 

CHAIRMAN, COMMITl'EE ON RESOURCES 

Mr. Chairman, today we are meeting to review the International Dolphin Conservation Act (IDCA). I did not support the passage of this legislation in 1992 because I believed the bill did more for dolphins, which were not endangered, than 

it did for U.S. tuna fishermen. 

Mr. Chairman, in the eastern tropical Pacific (ETP), for some reason yellowfin ·tuna associate with dolphins. In the past, U.S. fishermen used this association to 

catch mature adult, high value tuna by encircling the dolphins with purse-seine 

nets. 

After the enactment of the International Dolphin Conservation Act of 1992, U.S. 

fishermen could no longer set their nets around dolphins. Because it was illegal to 

set nets around dolphins, many fishermen began to set their nets around drifting logs or free swimming schools of tuna. These methods may have serious, unintended 

conservation consequences, such as the large bycatch of juvenile tuna, billii.Sh, 

sharks, mahi-mahi, and some sea turtles. I expect we will hear more about this from some of our witnesses today. The U.S. tuna industry has continuously made great strides to reduce the mortality of dolphins in the harvest of yellowfin tuna in the ETP. From 1972 to 1980, the 

fleet made significant progress, reducing annual dolphin mortality from an estimated 350,000 to 20,000. 

In 1984, the U.S. fleet again recognized the serious dolphin mortality problem caused by foreign fleets and worked with the environmental community to enact an embargo on tuna caught by nations which did not have dolphin protection programs comparable to the U.S. programs. Despite all of this hard work and continued attention to the dolphin mortality problem, in 1992, Congress told the U.S. fleet they could no longer fish in their traditional manner-no matter what steps had been taken throughout the year. This law went too far in addressing the dolphin mortality problem. Initially, the 

"dolphin safe" label was to be a voluntary label used by the canning industry to induce foreign tuna suppliers to comply with U.S. regulations. Congress then stepped in and mandated that all tuna fishermen had to stop encircling dolphins when 

catching yellowfm tuna. I believed then, and I believe now, that the IDCA went too 

far. 

Rational management of the tuna stocks and other stocks in the fishery, including dolphins, is important both for U.S. fleets and the international fleets. As with other 

international conservation initiatives, the U.S. needs to work through appropriate international commissions and with the member nations to achieve the necessary dolphin conservation measures. The Inter-American Tropical Tuna Commission (IATTC) is the international body that governs the tuna fishery in the ETP. This Commission has done extremely well 

in getting the cooperation of its international members to reduce the mortality of 

dolphins when they harvest tuna. The Commission has been using quotas and an observer program to monitor and · severely reduce the mortality of dolphins in the 

ETP. 

I thought the goal of the Act was to protect dolphins, not unnecessarily penalize U.S. fishermen. The IATTC appears to have addressed the issue of dolphin mortality by reducing mortality to an insignificant level. Do we still need to have this em- bargo and prohibition against dolphin sets for those nations whose vessels partici- pate in the IATTC's dolphin conservation program? I am interested in hearing from our witnesses whether this Act has worked, what 

implications it has had on the U.S. tuna fleet, and what changes can be made to 

correct problems with the legislation. 
6 

STATEMENT OF HON. ENI F .H. FALEOMAVAEGA, A U .S . DELEGATE FROM AMERICAN 

SAMOA 

Mr. Chairman, I would like to express my appreciation to you and members of 

the Subcommittee for giving me the opportunity to read a short statement regarding today's hearing on whether to lift the embargo on tuna products from Mexico. I am also grateful to the ranking member, Congressman Studds, for his continued vigi- lance over this very important issue. Mr. Chairman, today the bulk of the U.S. tuna industry is located in Puerto Rice 

and American Samoa. My district of American Samoa is home to the U.S. Tuna 

Fleet and the largest tuna canneries in the world. Any changes in the U.S. tuna 

policy will have a profound impact on the U.S. tuna industry located in my district. It is unfortunate that the U.S. tuna industry is divided on this issue. The American Tunaboat Association (ATA) would like the Congress to eliminate 

the existing text of the International Dolphin Conservation Act. In its place they would have the National Marine Fisheries Service regulate and monitor a dolphin 

conservation program supported by the Inter-American Tropical Tuna Commission 

(IATTC), an organization comprised of the U.S., Mexico, Japan, Venezuela, Colombia, and other tuna fishing countries. The IATTC believes that rules regarding tuna 

should be voluntary and that action be taken by consensus. This approach, proposed by IATTC, has considerable merit. Current regulations 

place U.S. tuna vessels in a distinct disadvantage over foreign fishing vessels who 

operate on the high seas with very little regulation. U.S. fishing vessels are subject 

to a wide variety of F:ederal and State regulations that in most cases don't apply 

to the operators of foreign vessels. And while we have rules that more or less purush those nations who do not comply with our "dolphin safe" standards, we all know 

that monitoring the activities of foreign fishing vessels in international waters is next to impossible. We do not have the resources to put observers on every fishing vessel. 

The current embargo on tuna from Mexico has also cut off access for U.S. tuna 

vessels to the rich fishing grounds in the Eastern Tropical Pacific. To their credit 

I would commend all the U.S. tunaboat owners for their tremendous effort to substantially reduce the dolphin mortality rate from a high of over half a million killed 

in 1977 to less than 5,000 in 1990. There's also the question of whether U.S. dolphin safe laws violate several provi- sions of the GATT. Responding to a complaint from Mexico, a GATT dispute panel ruled in 1991 against the United States. The European Union has followed Mexico's lead and has also filed a complaint against the United States. 

Mr. Chairman, despite all this, I feel it would be a mistake for the United States 

to lift the tuna embargo against Mexico at this time. We have made major strides 

in the protection of marine mammals-and I feel it is important for the United 

States to maintain its leadership in the protection of dolphins and other marine 

mammals. In addition, lifting the embargo at this time would seriously jeopardize the fragile competitive posture of U.S. tuna processors. Until now, Mexico has made absolutely no attempt to preserve ahd protect marine 

mammals in its waters. We should not reward Mexico by giving them access to the same markets served by U.S. companies who are compelled to comply with a variety of laws such as Clean Air, Clean Water, OSHA, Labor, and various other rules and 

regulations which do not apply to other fishing countries such as Mexico. At this 

time, we should also make no changes to the definition of "dolphin safe." To do so would undermine consumer confidence in this industry and, in my opinion, cause irreparable damage to the U.S. tuna industry. To conclude, Mr. Chairman, rather than changing the laws of this country, I think 

it is in our best interest to assist Mexico in promulgating rules that would safe~ard 

the continued survival of the dolphin and also harvest tuna in a manner conststent 

with international standards to protect and preserve our ocean resources. 

STATEMENT OF HON. GERRY E. STUDDS, A U.S. REPRESENTATIVE FROM 

MAssACHUSE'ITS 

While this issue may be new to some Members of this Committee, I also see many familiar faces in this room. All of us are considerably older than when we first 

"solved" this simple, non-controversial little problem. For anyone who thought we had resolved it in 1984, again in 1988, then in 1990, 

and finally in 1992, I offer the slightly paraphrased ancient Greek adage: "Nothing endures but change-and tuna/dolphin lobbytsts." 
7 

Having so endured, we're back at it ~n. And to quote that other source of classical wisdom, Bette Davis, loosely (which I presume is the only way one quotes Bette Davis): "Fasten your seat belts. It's going to be a bumpy ride." 

Members on the dais have probably noticed that the briefing prepared for today's hearing is anything but brief. Efforts toward privatization notwithstanding, that is 

not because staff is now compensated by the column inch; rather it reflects the long and winding road that has brought us to this point. In the 1950s, tuna fishermen in the eastern tropical Pacific Ocean (ETP) discovered that the fastest, most profitable way to catch tuna was to take advantage of 

the natural relationship between the tuna and the dolphins that swam with them. Fishermen began setting their nets around the dolphins, catching the tuna underneath. Unfortunately, dolphins-lots of dolphins-died in the process. In 1972, over 400,000 dolphins died in the ETP tuna fishery. Public outrage over the slaughter was one of the key factors, if not the key factor, resulting in the passage of the Marine Mammal Protection Act that year. The U.S. tuna fleet had drastically reduced its dolphin mortalities-from 360,000 in 1972 to 20,000 in 1980. Not so the foreign fleets. When American industry asked 

for our help, we added embargo provisions to the MMPA in 1984. Our message was clear: If you want access to a conservation-oriented U.S. market, practice conservation. 

We improved the law again in 1988 with requirements for both the U.S. and foreign vessels. Still the slaughter was too hi~, and in 1990-when more than 52,000 dolphins died in the ETP-the commercial Dolphin Safe" label was born. Then along came another non-controversial issue called the North American Free 

Trade Agreement. The Bush Administration, amrious to improve Mexico's environmental image, crafted an agreement;-without consulting with the Congress-to es- tablish a moratorium on setting nets on dolphins. When we added teeth to that 

agreement, Mexico backed down. That brings us to where we are today. So, in the words of one of my favorite Admirals: "Who are we and why are we here?" 

If the original intent of this law-and every revision from 1984 to 1992-was to 

br!ng dolphin mortality down, the~ let's lau~ch our re-re-review ~y agreeing that 

this law works. Many fewer dolphins are dymg. For me, that beg~ns and ends the 

discussion. 

If we choose to re-write this statute instead to address trade issues, then let's be 

clear about the cost. We could be blessing an immediate and substantial increase 

in the number of dolphin deaths-and we would be allowing the intentional take 

of marine mammals for certain fishermen. In effect, we would be allowing one group of fishermen to intentionally set their 

nets around dolphins in the ETP, knowing that as many as 9,000 will drown next 

year. That would reverse our steady progress in slowing dolphin mortality, and con- stitute special consideration which would not extend to my fishermen in New Eng- land, or the Subcommittee Chairman's fishermen in New Jersey, or the Committee 

Chairman's exceedingly special fishermen in Alaska. I don't think the "mandate" of last November was for kids to go to sleep at night counting dying dolphins rather than acrobatic sheep. But I know for a fact that I 

couldn't justify the direction I fear we are heading to my gill-netters or my own tuns 

fishermen who, contrary to what you may hear later this afternoon, push oft' the 

doek every morning determined to do everything they can to avoid an accidental 

take of even one marine mammal. 

Mr. SAXTON. Thank you. I'm sorry about this, and we will be back as soon as we can. 

[Recess.] 

Mr. SAXTON. Mr. Colson, thank you for waiting. We apologize for 

that rather lengthy interruption, and we hope that it won't happen again, although I guess that there are no guarantees. Mr. Colson, we are here to discuss an issue of some environmental import as well as economic import to a lot of people. I understand that there is an international component to the issue as 

well as a domestic component. Can you describe for us what you believe these two issues are in terms of their similarity and how 

the international and domestic components are different as well? 
8 

Mr. COLSON. Well, I think everybody that is involved in this debate recognizes that this is an international problem, it is not one 

that the United States can solve alone. No matter what kind of 

laws we may write, no matter what kinds of sanctions we may impose, we are going to have to deal with the international community to get a resolution of this ultimately that satisfies us. I take 

it that what we want to do, ultimately, is reduce dolphin mortalities in this fishery to the furthest extent possible, including to zero 

if we can get there. That is the objective, and to do that we are 

going to need the cooperation of the other countries that are involved in this fishery. This fishery takes place primarily south of waters that might be 

considered United States waters. It is largely a fishery that occurs 

off the coast of Latin America. It includes a lot of the 200-mile 

zones from Mexico southward to certainly Ecuador and perhaps 

Peru and then into the high seas area to the west. We need the 

cooperation of those countries if we are going to deal with the mortalities of dolphins in this particular fishery. 

Mr. SAXTON. Mr. Colson, is it reasonably possible to reduce the 

dolphin mortality rate to zero? 

Mr. COLSON. Well, rm not a statistician. Certainly at the present 

time we have reduced it to a number that at least some statisticians would say was statistically insignificant. There are others 

that will say we have not reduced it enough. 

Mr. SAXTON. What is the mortality rate among the United States 

fishermen who must comply with the Marine Mammal Protection 

Act, for example? 

Mr. CoLSON. Right now, in 1995, sir, we have no United States 

vessels that are participating in the fishery on dolphins. Because 

of the way the laws have been structured, they effectively cannot 

participate in this fishery. Mr. SAXTON. Why is that? 

Mr. CoLSON. Well, there are two reasons. In the International 

Dolphin Conservation Act, that was passed in 1992, there was a 

charge to continue to reduce the permit that the industry needs 

under the Marine Mammal Protection Act, and this year the number of animals for the entire industry, I believe, is 105, and they simply cannot participate-they cannot prosecute a fishery to any 

extent. 

Further, there are laws or regulations which, again, under the 

Marine Mammal Protection Act, indicate that the industry is not 

allowed to set on certain dolphins because they are listed as depleted under the law. 

Mr. SAXTON. Mr. Colson, how many U.S. vessels are there that 

would be able to take part in the fishery currently, to your knowledge, under the present situation? 

Mr. COLSON. Under the present situation U.S. vessels could 

apply under the international program for a limit under the international program. There is no limit on the number of vessels that 

might wish to apply. There is no limit in the international program, but they are constrained, really very severely, under domestic law. As a practical matter they are unable to do it. 

There have been four U.S.-fl.ag vessels, as I understand it, that 

have applied under the international program for a limit for the 
9 

latter half of 1995 in hopes, perhaps, there would be some lifting 

of the requirements under U.S. law. . Mr. SAXTON. OK So four have applied out of the southern part 

of California. Is that correct? 

Mr. COLSON. Yes, sir. . Mr. SAXTON. OK And on the east coast, in a different fishery, 

there is a different situation. There are five or six boats which fish 

on bluefm, I believe. Is that right? 

Mr. COLSON. The purse-seine vessels that fish on the east coast, 

yes. 

Mr. SAXTON. Right. So the number four on the west coast may 

not be the total number that would apply under certain circumstances, but it gives you an indication that there are a relatively small number of boats that might apply, maybe 8 or 10 or 

12? 

Mr. CoLSON. Yes, sir. I wouldn't expect that we would see many 

more than that, if even that number, that would come back into 

the fishery. 

Mr. SAXTON. You mentioned the number of 105. I believe that is 

per vessel, is it not? 

Mr. CoLSON. No, sir. That is the permit number for the entire 

United States tuna industry. 

Mr. SAXTON. OK So whether it is 4 boats, 10 boats, the total 

number is 105. 

Mr. COLSON. Under domestic law, that is right. 

Mr. SAXTON. Tell us about the population of dolphin that we are 

trying to protect. Do you have any numbers that indicate what the 

total population that might be considered to be subject to this 

bycatch 1s? 

Mr. CoLSON. Well, the numbers that I have, sir, that are related 

to all of the various stocks of dolphins, show that there are about 

9.5 million estimated to live in the eastern Pacific Ocean, and, as 

I indicated, we are down to a mortality in this fishery of about 

4,000. That translates into about four-one-hundredths of 1 percent 

of the population. . Mr. SAXTON. Just for the record, that is an international number; 

is that correct? 

Mr. COLSON. Yes, I think these are generally agreed numbers. Dr. Joseph will be testifying later, and he can be more precise, but 

I think those are understood to be correct by everyone concerned. 

Mr. SAXTON. OK. Now I interrupted you. You were translating 

that into a percentage for us. 

Mr. COLSON. It is about-it is actually slightly less than fourone-hundredths of 1 percent of the population. 

Mr. SAXTON. It sounds like it is getting mighty close to zero. 

Mr. CoLSON. Well, as I said, many statisticians would look at a 

number of that sort-if we were rounding off in grade school, we 

would have probably rounded back to zero. 

Mr. SAXTON. Mr. Colson, when we passed the provisions that provided for dolphin safe-! believe it was 1992-in 1992, our intention was· to provide provisions that forced the industry into finding 

ways to reduce mortality of dolphins. Do you recall-! don't-do 

you recall what the mortality rate was considered to be in the early 

1990's, say 1990, 1991, before the law went into effect? 
10 

Mr. COLSON. I can't give you rates, sir, but I can give you absolute numbers. In 1991 there were approximately 27,000 dolphins 

that were killed in the fishery. In 1992 it was about 15,500. So 

when you were working on the law in 1992 you were looking at the 

1991 number that was about 27,000. 

Mr. SAXTON. So internationally we are currently, you suggest, 

somewhere around 4,000. 

Mr. COLSON. Yes, sir. 

Mr. SAXTON. Would you consider that significant progress? 

Mr. CoLSON. I consider it very significant progress. 

Mr. SAXTON. Do you think that there is further progress that can 

be made, and, if so, what provisions would we need to look at in 

order to make that additional progress? 

Mr. COLSON. Well, I do believe that additional progress can be 

made, but I think we have to be realistic. It is going to be hard 

to get that number down much lower with the current amount of 

fishing effort in the fishery because there are accidents that happen. It is my understanding that in about 90 percent of the sets 

all of the dolphins are released unharmed, so it is a situation 

where in about 10 percent of the fishing operation there is some 

mortality, and that is usually caused by some condition that relates 

to the water characteristics-currents are a little different than the 

captain figured on, a change in the weather during the fishing operation, something happens so that you have a situation which is 

not normal and some of the dolphins become entangled in the net. 

But I think for most of us when we get to the 90 percent solution 

we think we have got it pretty well resolved. We are doing about 

as best we can. · The concern that we have in the Administration right now is 

that we have moved this issue along to this point. We have excellent international cooperation. I can only stress, as the person that 

is put out on the street leading U.S. delegations to fishery meetings 

around the world, we have got the best international cooperation compared to any other international fishing organization. We have 

a very positive international program going, but we continue to penalize and stigmatize the countries that are cooperating with us. 

Quite frankly, these countries are indicating very clearly that they 

are fed up with it, and they believe that they ought to have these 

stigmas removed, these embargoes removed, because the law-the 

way those embargoes were calculated, it is a 1988 statute, and it 

just doesn't make a lot of sense any more. We have this program 

working well; we ought to be encouraging its continued positive 

performance, and continue to encourage the countries that are 

working with us in it, and make that the standard of performance 

in the eastern Pacific. 

Mr. SAXTON. Thank you. 

I have gone way over my time, and so I'm going-perhaps we will 

have a second round of questioning. - Mr. Faleomavaega, do you have any questions? I know you had 

a statement earlier which you were kind enough to pass up, and 

if you would like to work your thoughts into your questions, please 

feel free 
11 

STATEMENT OF BON. ENI F.H. FALEOMAVAEGA. A DELEGATE 

IN CONGRESS FROM AMERICAN SAMOA 

Mr. F ALEOMAVAEGA. Thank you, Mr. Chairman. 

I would like to ask unanimous consent that my statement be 

made a part of the record. 

Mr. SAXTON. Without objection. 

Mr. FALEOMAVAEGA. Thank you. 

Mr. Secretary, I welcome .you to the hearing this afternoon and 

certainly for your statement. 

I do have a couple of questions and concerns, -and I'm sure that 

you are aware that this is not an issue that has all of a sudden 

appeared, this has been going on now for quite a while. 

My concern is that both-and, as you know, my district is probably one of the biggest processors in the tuna industry, and the 

tuna fishing fleet is also in my district. 

My concern is that it seems that both our tuna processors and 

our tuna boat fishing fleet are caught in the middle in this controversy that we are discussing this ilfternoon. You have given indication earlier that we should lift the embargo against Mexico. Am 

I correct on this? 

Mr. COLSON. Well, against all the countries that are embargoed. 

I believe there are eight right now that are embargoed, and it does 

include Mexico, yes. Mr. FALEOMAVAEGA. The concern that I have is that, whether or 

not Mexico complies with some of our standards-for example, does 

Mexico comply with the dolphin-safe process or procedure that we 

go about in catching tuna in their methods? 

Mr. CoLSON. Sir, they are complying fully with this La Jolla pro- ~am. One of the things I would like to emphasize is that in this 

International undertaking there is perhaps the best transparency 

where we know what other governments and other fishing boats 

are doing than we have anywhere else in the world. We have 100 

percent observer coverage on all fishing vessels in the fishery, we 

have a limit for the mortalities that a fishing boat can induce in 

the fishery, log books are kept, and we have a panel made up of 

government representatives, fishing industry representatives, and 

environmental representatives that review that, and if those vessels go over that limit they are off the water. I believe that in this 

area the enforcement issue has been well taken care of, better than 

in any other international fisheries agreement that we have. 

Mr. FALEOMAVAEGA. Do you agree that under the current requirements, the Federal requirements, especially for the tuna fishing fleet of our country, that they are required to comply to a higher standard than the fishing fleets of other countries-health, safety, labor, OSHA, and the sort? 

Mr. COLSON. I am not that familiar with all of those other statutorY' requirements that are imposed on the U.S. fleet, but I really 

don't doubt what you are saying. I would expect that those other 

requirements are probably more strict than other countries impose. 

Mr. FALEOMAVAEGA. I think this is what our tuna fishing industry is saying: Look, all we want to do is be treated fairly; if you 

are going to put the axe on us, I want to make sure that the other 

tuna fishing vessels from other countries are under the same 

standards that we are being imp(>sed on by our government. I just 
12 

think that there is a sense of unfairness in this, that if we expect 

our tuna fishing fleet to be complying with what I consider to be 

a higher standard of fishing, then certainly we ought to expect the 

same thing for the fishing fleets of other countries as well. What 

do you think? 

Mr. COLSON. Well, I'm not sure it is for us to tell Mexico or Venezuela exactly what the labor standards should be on their fishing boats. We have our standards for our own vessels. One of the posi- tions though, that we are expressing here as the Administration, 

is that, on the rules associated with dolphin fishing, we believe 

that our fishermen should be treated the same as foreign fishermen 

and that our fishermen ought to be able to participate in these fisheries that international fishermen are fishing in. 

Mr. FALEOMAVAEGA. So you feel that the provisions of the La 

Jolla Agreement provide for that equity, parity between our fishing industries. 

Mr. COLSON. Yes, sir, I do. 

Mr. FALEOMAVAEGA. OK. Thank you, Mr. Chairman. 

Thank you, Mr. Secretary. Mr. SAXTON. Mr. Torkildsen. 

Mr. TORKILDSEN. Thank you, Mr. Chairman. 

I would like to echo the comments of my colleague, Mr. 

Faleomavaega, from the Atlantic side of things in that requiring 

our fishermen to live under certain rules and restrictions which do 

not apply across the board only to see the fishing vessels of other 

countries ignore those really puts our people on an unlevel playing field, and certainly I would appreciate any further comments you 

may want to make in that area. 

The other related question I would have is, of those nations 

which are under the embargo right now, have any of them taken 

any retaliatory measure or threatened any retaliatory measure 

against U.S. fishermen or anything of that type of action? 

Mr. CoLSON. None have indicated any sort of retaliatory action 

with respect to U.S. fishermen or things of that character. 

There have been certain steps that some of them have taken in 

trade fora where they have challenged these embargoes in that setting, and, as well, they have made very clear at a meeting that was 

held just a few weeks ago in La Jolla that if these embargoes are 

not relaxed and if this issue is not resolved, that the viability of 

the La Jolla program will be jeopardized, and if the La Jolla program is jeopardized it certainly does not mean anything good for 

dolphin protection. What they have in mind is setting up their own 

organization, absent the United States, to do this and to manage and regulate the fishermen and the fishing fleets of these other 

countries, and indeed those fisheries do operate largely in areas 

that are, shall I say, outside our geographic sphere in some way. They want to work with us, they want to be cooperative with us, 

they think that they have done a good job and they should not continue to be stigmatized by these trade embargoes that in many 

ways have-they have had their purpose, they have pushed us, and 

I don't think anybody would say that they have not. They have created the lever~ge to get us to this point, but the question now in 

front of us is: Have we gotten everything we can get out of those, 

and should we be relaxing the trade embargoes and working coop-
13 

eratively and going forward under the La Jolla program? I think 

everyone that you will hear from today will agree it has done a 

good job. 

Mr. TORKILDSEN. If they do pursue that threatened course of action, then what would the administration's response be? 

Mr. CoLSON. Well, I'm sure we woUldn't like it, but I'm not sure th~t there is all that much that we can do about it. If sovereign countries want to set up an independent organization to manage fisheries in the Eastern Pacific Ocean, they are certainly free to do 

it, there is not much we can do, and we have already run out our 

string, we have imposed trade embargoes, we have done other 

things that penalize these countries, and I'm not sure that there 

would be much that we would do if they were to choose that course 

of action. I would hope that we don't get into that, that we will fmd 

the means to go forward and work cooperatively with them. We 

have had three excellent years in this process, and there is no reason for us to see this fall apart. 

I think we can look at history and see that in the mid-seventies 

when the United States and the Latin American countries disagreed about 200-mile jurisdiction, that disagreement caused us a 

lot of heartache for about 12 years in the fisheries relationship with Latin American countries. It has only been in the late eighties and almost 1990 that we got over that and we began to be able to 

cooperate once again. I think this La Jolla Agreement is evidence 

of the kind of cooperation we can have with Latin American countries. 

Mr. TORKILDSEN. Thank you, and, Mr. Chairman, I'll yield back 

the balance of my time. 

Mr. SAXTON. Ambassador, we are going to have to go vote again. I understand this is another series of votes. I think there may only be two votes in it. There is about 10 or 12 minutes left in the first 

vote, so that puts us back here in about 20 minutes, I think. 

Mr. COLSON. Fine. . Mr. SAXTON. Thank you. [Recess.] 

Mr. SAXTON. Mr. Colson, Mr. Gilchrest told me that he would 

like to ask a couple of questions, b~t while we are waiting for him 

let me just pose my final question. The dolphin-safe provisions of 

the U.S. law which have been identified as the issue that we really need to address here-and I think you spoke to those on pages 9 

and 10 of your testimony, and on page 10 in particular you gave 

us five possible options that we might pursue in making changes 

to those provisions ranging from making no changes at all up a 

continuum to entirely repealing the provisions altogether and returning it entirely to an open market. Would you discuss those pos- sible options that we have, and, if you dare, could you tell us which 

one you believe is the logical route for us to follow? 

Mr. COLSON. Mr. Chairman, I will try at my peril. If I might just correct something I said earlier, we were talking about the relationship of the mortalities to the number of dolphins in the Eastern Pacific Ocean, and I said four-tenths of 1 percent. It is really four one-hundredths of 1 percent. So it is an even smaller percentage and is much closer to zero. 
14 

Also, you asked about: What can we do, can we reduce it further? 

I would like to emphasize that 4,000 is near the limit with the current fishing effort and current fishing technology. We may not be 

able to get much lower than that. But one of the strengths of the 

IA'fTC program of course is the investigation into alternative 

means of fishing and alternative gears that might indeed get us 

there. International cooperation to put those programs together I 

think is essential. 

On the five points, five different options-and there certainly 

may be variations of these-! cannot hazard a guess as to which 

one might be the way out. It is clearly going to be a controversial 

issue, and it may be that after we look at these things we will see 

some other way to go than one of these five options. One of the options is to do nothing. There are pe<!J>le that would 

argue that this encourages fishing methods in the Eastern Pacific 

Ocean that are, while maybe dolphin safe, not environmentally the 

best way to fish. There are others who would like to see the IA'fTC 

be both the standard for the embargo and the standard for entry 

into the U.S. market. And there are others who would say we simply ought to get rid of all this and let the industry and the consumers decide what tuna they might buy. 

AB I indicated, this is one that within the Administration we 

have not chosen an option, and I would not want to hazard a guess about where either the Administration or, after discussion, we 

might all come out. We think the best approach is to have some 

discussion together of all of the community of interests-the processors, the fishermen, the environmental community, the interested 

members in the committee, and interested people in the Administration-and try to figure that one out as best we can. 

Mr. SAXTON. Thank you very much. 

Mr. Gilchrest. 

STATEMENT OF BON. WAYNE T. GILCHREST, A U.S. 

REPRESENTATIVE FROM MARYLAND 

Mr. GILCHREST. Thank you, Mr. Chairman. I just have a few gen- eral questions. 

Mr. COLSON. Yes, sir. 

Mr. GILCHREST. What, in your opinion, motivated the La Jolla 

Agreement? How did you come to that point? 

Mr. COLSON. If you will recall, in the early part of 1992 there 

had been a great deal of controversy associated with this issue, and 

in the previous administration we had worked out an idea that 

was, after two years, to impose a moratorium of some sort on this 

fishing practice. We brought that idea back, and in the first hearing before the Merchant Marine and Fisheries Committee that proposal was not supported by either the environmental community or 

the fishing industry. Therefore, we thought at that time in the 

Bush administration that we were out of luck and didn't really 

have a program. But we did feel strongly that we should do a better job in dealing with the dolphin protection issue in this fishery. After this moratorium idea had been floated, I think a lot of the 

governments concerned and the fishing industry got a little worried. They decided, well, maybe we should try to do a better job. 

We had a meeting in La Jolla in April of 1992 where we basically 
15 

hammered out the terms and conditions that are now the La Jolla 

Agreement. I think in some measure it was the fear of the moratorium idea that caused industry really to come to the table-and by industry, I don't really mean our industry, but the industry from 

the Latin American countries concerned-to come to the table and 

agree to tough measures that would be imposed upon them. One 

of the things, again, that we are concerned about is that these are 

tough measures. 

We don't have any other international agreements where we basically regulate, by boat, individual fishing vessel activity. The industry in those countries has had to swallow hard to live up to and 

to perform, and they are regulated by their governments. We have, 

as I said, perhaps the most credible international fishing organization in the IATI'C. It is on top of this issue. Foreign fishermen, as 

people will be, would like to see the rules loosened up. If they don't 

fmd some relief from the U.S. embargo approach and the penalization that we continue to impose and the stigma that continues associated with the embargoes, it is going to give these interests the 

opening that they seek to have the rules relaxed and to create a 

different organization. 

Mr. GILCHREST. Do you think from a governmental standpoint 

NAFTA or GATr-from a governmental standpoint, did NAFTA or 

GATI' or both have anything at all to do with the La Jolla Agreement in anticipation of that coming about? 

Mr. CoLSON. Well, I think, frankly, in the previous administration, we felt that it was important to demonstrate that Mexico was 

prepared to take strong environmental measures, and this issue 

has always been a rallying cry in the U.S. environmental community, and in that administration there was an effort to try to put together the best possible international agreement to protect dolphins so that the rallying cry would perhaps be a bit muted. 

Mr. GILCHREST. So it seems that with the moratorium, with an 

understanding of a better economic relationship with the United 

States, that this La Jolla Agreement was able to be worked out. 

Mt. COLSON. Well, with the threat of a moratorium hanging over 

their heads, we did put together, ultimately, the La Jolla Agreement, which is clearly different from the moratorium idea. 

It was unfortunate that when we came back into the legislative 

process in the Congress at that time and we went forward and 

passed the 1992 Dolphin Conservation Act. At that stage the moratorium idea that is contained in that piece of legislation had become outdated and was not going to work because of the additional 

punitive measures that were written into that 1992 statute. 

Mr. GILCHREST. Have the major tuna companies like Starkist 

been consulted in this process at all? 

Mr. COLSON. Certainly we have talked to everyone involved, both 

on the environmental community side and with the boat owners 

and the processors, yes. 

I don't want to represent the Administration's position in any 

way as being a consensus arising out of those consultations, but 

after those consultations, I believe that we feel that the position that we have expressed today is the best position and the one that 

is most in the middle. 
16 

Mr. GILCHREST. So the administration's goal is free trade and 

fewer dolphins killed? 

Mr. COLSON. We certainly are looking to kill fewer dolphins, to 

continue to reduce mortality, to have a strong international program, and to lift these trade embargoes, yes. . Mr. GILCHREST. Thank you. Thank you, Mr. Chairman. 

Mr. SAXTON. Mr. Colson, thank you very much. We appreciate 

your being with us here today. Your answers were, I believe, very forthcoming and important to us. 

The members of the subcommittee may have some additional 

questions. If so, we will ask you to respond to them in writing, and 

of course the hearing record will remain open for your responses. Mr. COLSON. Thank you. Mr. SAXTON. Thank you very much. 

Mr. SAXTON. I would now like to introduce our second panel of 

witnesses: Dr. James Joseph, director of investigations of tlie InterAmerican Tropical Tuna Commission; Ms. Suzanne Iudicello, the 

vice president for programs and general counsel of the Center for 

Marine Conservation; Jim Walsh of the American Tunaboat Owners Coalition; Richard Gutting, the vice president of government relations of the National Fisheries Institute; and Dave Phillips, executive director of the Earth Island Institute. . Would you all come forward, please. I just might add while you folks are coming up that this panel will be discussing their various views on the success of the International Dolphin Conservation Act and areas where it can be improved to better conserve marine resources. I just might add that 

while you will all receive a five-minute block of time during which 

to make your oral testimony, let me assure you that your written 

statements will be included in the record. 

So if you are all settled, Dr. Joseph, if we may begin with you. You are recognized for five minutes. 

STATEMENT OF JAMES JOSEPH, DIRECTOR, INTER-AMERICAN 

TROPICAL TUNA COMMISSION 

Mr. JoSEPH. Thank you, Mr. Chairman. 

I was. going to say something about the International Dolphin Conservation program, but it has been adequately described by Ambassador Colson. 

What I would like to do first is address the four questions you posed in your introduction to this meeting. One was: Has the IDCA 

decreased dolphin mortality? I would just like to say that dolphin mortality was decreased substantially beginning in 1986 when the 

organization that I represent put together a program to reduce 

mortality. Mortality in that year was 133,000 animals, and by 1992 

it had been decreased to 15,000 animals, more than 85 percent, so 

that the largest decrease in mortality was before the passage of 

IDCA. IDCA, as Ambassador Colson said, certainly had an impact 

on achieving the second part of the program, which was the placement of limits on dolphin mortality. 

You also asked: Can the net be modified to reduce mortality further? Yes, I think it can. I think that if research is directed toward 

modifying the tuna purse-seine net we can bring dolphin mortality 
17 

down again significan~. There are a number of approaches that 

can be ursues to mo · the net that have been reviewed and rec- ommen~ed by a scient· 1c advisory board that. was established by the La Jolla Agreement but at this time there isn't the funding available to put such recommendations into effect. 

You asked if there can be 100 percent observer coverage, and indeed there can be, and in fact there has been for the last several 

years. It is proposed to maintain 100 percent coverage in the future. 

You asked: Are dolphins threatened or endangered? Again, Ambassador Colson addressed that, and concluded that the species of 

dolphins involved in the fishery are neither threatened nor endangered. There are nine and a half million dolphins involved in this 

fishery, aJ:ld mortality caused by the fishery represents four onehundredths of 1 percent of that number. 

More realistically, we should compare mortality to the growth of 

the population, which is between 190,000 and 380,000 animals a 

year. Mortality is insignificant in the population sense and, by definition of the Marine Mammal Protection Act, the mortality for four 

of the seven stocks that are involved in the fishery has reached the 

zero mortality rate goal. They are at zero mortality. One of those 

seven stocks that is not yet at the goal will be by the end of this 

decade. 

Mr. Chairman, the international program that we have under 

way as, Ambassador Colson testified, is an extremely successful 

one. It has done its job in reducing dolphin mortality to very low 

levels, insignificant levels in fact. It is being used as a model in 

other parts of the world including the International Whaling Commission to handle management's problems. However, even though it is very successful there still are efforts to restrict any kind of 

fishing on dolphins, and what I would like to do is talk just a little 

bit about the effects of such a restriction. 

Obviously, if we restricted or prohibited any setting of the net on 

tuna associated with dolphins, we would reduce dolphin mortality 

to zero, there would be no mortality, but indeed, Mr. Chairman, 

there are ecological costs to doing that, and the costs are twofold. 

To understand that cost you have to understand the way the fishery operates. The set of the net is made in one of three ways, either 

on schools of tuna associated with dolphins, on free-swimming schools of tuna, or on schools of tuna associated with drifting objects. The tuna that is caught in association with dolphin is large sexually-mature tuna that averages about 40 to 50 pounds. It is 

that size of tuna that one strives to catch in order to conserve and 

manage the species properly and to maximize production. .· The kind of tuna that is caught associated with drifting objects 

and schools are small, sexually-immature tuna, so if we move away from fishing on dolphins and restrict tuna fishing to this form, we 

create an overfishing problem. Tuna production would go down by anywhere from 25 to 60 percent. Additionally, we create a problem 

ofbycatch. - There are large numbers of other species of food fish such as 

mahi-mahi and sharks, sport fish such . as billfish, marlins, and 

sailfish, and other types of fi~h, including endangered sea turtles, 

that are taken in dolphin-safe fishing. We would not want to en-
18 

courage that type of waste. So there are ecological costs to not fishing on dolphin that have an impact on the ecosystem. The program in the Eastern Pacific is a program that is consistent with the objectives of the Rio Summit and Agenda 21, an initiative that the United States was an important part of. It is consistent with the objectives of maintaining biodiversity, ecological balance, and sustainable development, so it is a program that targets right on those particular issues. 

Mr. Chairman, the countries involved in this program, as Ambassador Colson said, feel that-well, actually question the merit of 

staying in this program if something can't be done to resolve some 

of these issues of embargoes and forcing them to fish increasingly 

more in an unecological way. 

Mr. Chairman, I think we can resolve this entire issue by doing three things: One, by removing the embargoes against states party 

to the agreement; two, by applying the same principles the United 

States applies to fisheries that involve catching dolphins within 

U.S. waters; and, three, by defining dolphin-safe as fish caught within the framework of the program; and I would urge, Mr. Chairman, that these things be considered. 

We are living in a time of change in the world. Human popu- lations continue to grow and we are placing more and more de- mand on the oceans and their resources. Of all the species of fish 

that are harvested in the ocean, more than half are overfished. 

There are very few good and successful programs that are actually managing fisheries. I think the United States has always taken 

leadership in managing our resources, and I think this is a place that they can once again take leadership. I'm afraid, Mr. Chairman, if we don't do something, I fear not 

only for the dolphins and the tunas but also for the current and 

future generations of people that rely on those animals for their 

sustenance and well-being. 

Thank you. [The statement of Mr. Joseph may be found at end of hearing.] 

Mr. SAXTON. Thank you very much. 

We are going to tum now to Suzanne Iudicello, who is with the 

Center for Marine Conservation, and I understand that you will 

also be speaking on behalf of the Environmental Defense Fund, 

Greenpeace, the National Audubon Society, the National Wildlife 

Federation, the Whale and Dolphin Conservation Society, and the 

World Wildlife Fund. Is that correct? 

STATEMENT OF SUZANNE IUDICELLO, VICE PRESIDENT FOR 

PROGRAMS AND GENERAL COUNSEL, CENTER FOR MARINE 

CONSERVATION 

Ms. IUDICELLO. That is correct, Mr. Chairman, and thank you for 

saving me the minutes to say all those words. Our written statement provides detail on the history of dolphin protection in the Eastern Tropical Pacific and the success of the 

provisions of the Marine Mammal Protection Act in advancing that 

protection, including the provisions of the International Dolphin Conservation Act. 
19 

What we would like to talk about this afternoon is to highlight four points for your consideration as you are evaluating the effectiveness of the IDCA 

First of all, in echoing what a lot of others have said here today, tremendous progress has been made to reduce mortality of dolphins caught in association with tuna fishing. Secondly, we recognize that there have been some unintended 

consequences that resulted from U.S. efforts to seek international 

support for dolphin conservation through a moratorium. . Third, it has come to light, as Dr. Joseph pointed out, that 

bycatch of other species such as juvenile tuna, sharks, and marine 

turtles, sounds a cautionary note for the ecosystem in the ETP. 

Lastly though, we would like to point out that in seeking to resolve issues that arise in this context which are international, multilateral, regional, we must look first to multilateral mechanisms 

and not legislative approaches. The progress in reducing dolphin mortality in the Eastern Pacific 

Ocean is a remarkable example of what we can accomplish when 

we combine the force of public opinion, political ,vill, and the scientific method with the practical expertise of people who work on 

the ocean. 

The fact that dolphin mortality has decreased from more than 

400,000 animals in 1972 to just slightly more than 4,000 in 1994 

is a result of the laws enacted by this Congress, consumer behavior, and the market response to that, and in no small measure to 

the ingenuity of the captains and crews who operate tuna boats in 

the Eastern Tropical Pacific. They are to be commended for their 

contribution to new orerating procedures, training, and the peer 

pressure that have al taken place within the framework both of 

the MMPA and the La Jolla Agreement. Despite the outstanding record of the U.S. and the international 

program, which is a more than 95 percent decline in mortality over 

five years, there have been some unintended consequences associated primarily with the comparability standards of MMPA and the 

IDCA. The intended purpose of the law was to promote international dolphin conservation and to resolve issues that arose in a 

trade dispute. The hiw called for action by the United States to 

seek international agreements that would establish a moratorium 

on the practice of catching tuna by setting purse-seine nets around 

dolphins. The idea was that countries committed to that moratorium would not be subject to embargoes. However, at the time no nations embraced the moratorium, and 

the U.S. hasn't actively pursued negotiations to secure those kinds 

of commitments. As a result, the IDCA by itself has not been able 

to compel multilateral action among the ETP fishing countries. 

Without an international consensus to stop the practice of setting 

on dolphins, many of the provisions of the IDCA are, as a practical matter, ineffective. . We chose legislative action in the past in the hopes that we could 

catalyze a multilateral solution to the tuna/dolphin problem. As a 

consequence of the policy, a lot of progress has been made toward 

the establishment of an effective international regime, which is the 

La Jolla Agreement you have heard described today. The practical effect of that has been a sharp reduction in dolphin mortality. 
20 

However, the political durability of the current system, as you have heard from other statements today, is in question. In addition, there is early evidence that certain bycatch of other species 

may be exacerbated if U.S. law causes a widespread shift from fishing on dolphins to fishing on logs or schools of small tuna. 

Recent preliminary data indicate that fishing methods for yellow- fin, such as the log and school sets, may have a substantial bycatch of nontarget species and juvenile tuna. The ones of particular concern to the conservation community are those that reproduce slowly and reach maturity at a later age, such as sharks, billfish, and 

sea turtles. 

However, at this time the record of fishing practices as it exists 

now doesn't suggest to us that you can support a conclusion that 

there has to date been a significant shift to dolphin-safe fishing methods to the degree that it might be threatening to the tuna 

stock. However, we do believe that the bycatch data do sound a 

cautionary note and should be examined further. 

We would like to see an independent international scientific peer review that would contribute further understanding to questions about biodiversity in the region and means to protect tlie entire 

ecosystem. 

We also believe that the nonbinding La Jolla Agreement, the convention itself, and the commission don't presently have sufficient 

tools or adequate resources to undertake the ecosystem-based ap- proach that we would all like to see to achieve further reductions 

in dolphin mortality and ensure the growth of both the tuna and 

dolphin stocks. 

The agreement and the convention do provide models, particu- larly in their commitment to NGO participation for international 

fishery management. We would like to see the member nati<?ns 

take action to ensure that the agreement is legally binding, that 

the convention is strengthened, that all the countries fishing in the 

ETP are members of the IATTC, and that both the agreement and 

the convention are evaluated for their ability to conserve and manage tuna stocks and prevent an increase in mortality of dolphins 

or other bycatch species should the effort in the fishery increase. 

Such actions would move toward creating a very effective regional body. In conclusion, it is our view that these remaining issues can't be 

resolved through U.S. legislative action alone. Accordingly, we oppose reopening the MMPA to do this at this time. Although the 

time may be ripe to revisit the issue, we shouldn't legislate a po- tentially shortsighted response before all the options and consequences have been considered and all the parties consulted. 

We urge the committee and the administration to use their leadership to bring all the stakeholders to the table to develop a multilateral regional approach to promote conservation of the entire system. We strongly believe this is the way to go, and we stand ready 

to participate with you and all the interested parties to move forward on such action immediately. Thank you. [The statement of Ms. Iudicello may be found at end of hearing.] Mr. SAXTON. Thank you very much. We appreciate your very articulate testimony. 
21 

Let me just pause at this ~int to say that I have been, I was 

going to say "iriformed," but warned" is maybe a better term, that 

we are going to have anothe_r vote or another series of votes about 

a half-hour from now and would suggest that if we can finish prior 

to that, it might be our best targeted option, because if we are out 

of here for another half hour it will be flve o'clock by that point and 

difficult to maintain a presence. - So, Mr. Jim Walsh of the American Tunaboat Owners Coalition, 

if you would like to proceed with your five minutes, please. 

STATEMENT OF JOSEPH P. WALSH, AMERICAN TUNABOAT 

OWNERS COALITION 

Mr. WALSH. Thank you, Mr. Chairman. 

I am a private attorney, and I represent a group of tunaboat 

owners who for many years have been required to meet a series of 

ever increasing re~latory standards in order to protect dolphins. What we are gomg to be asking you to do today is basic8lly to 

go back to that original Marine Mammal Protection Act goal which 

we believe has now been achieved. We are going to ask you to consider what not very many industries ask you to consider. We are 

going to ask you to regulate us. We are not going to ask to be free 

of regulation, we are going to want to go back and to fish on dolphins, but we are prepared to accept probably the most excruciating regulatory system of any fishery in the world. 

I have included in my statement a number of documents which 

I think are essential to consideration of this issue. The report of 

the Marine Mammal Commission you will see is very useful. There 

has been a National Academy of Sciences study with respect to this 

issue. It is interesting that National Academy of Sciences studies 

get ignored depending on whether the result is in one's favor or 

not. But, be that as it may, I think it is well worth considering. 

In addition, I have included for ],_OU a document which is often 

rare to obtain. You will see it says limited" on it. It is the fmdings section of GATT II Dispute Panel. I practice trade law and have 

handled a GATT case and so I understand it is often difficult for 

environmental groups to even find who is on the panel team. 

Next, I have a copy of a Washington Post editorial. I can tell you that oil any environmental issue this is the only time that I have 

ever seen the Wall Street Journal and the Washington Post agree 

on the same issue. They agree that dolphins are safe and that 

trade fights are not the way to go. Finally, we have an International Trade Commission report which I give to your attention. 

Let me say we do want to be treated equally with foreign fishermen and we have not be_en. In addition, one thing that has not 

come out is that we would also like to be treated no differently than domestic fishermen. 

Congress last year amended the Marine Mammal Protection Act 

and put in place a different set of standards for resolving conflicts 

between domestic commercial fishermen and marine mammals. 

That is a completely different standard than has been applied to 

tuna fishermen in the International Dolphin Conservation Act, and 

we draw your attention very pointedly to the fishery in the Gulf 

of Maine when we talk about mortality percentages. 
22 

You heard what was said by Jim Joseph and David Colson. In 

Gulf of Maine fishery, 6 percent of the harbor porpoises are being 

killed at this moment, but there has been no lawsuit to shut down 

that fishery, there has been no legislation to prohibit set gillnets, 

and there has been no legislation to establish a green label to make 

sure that New England ground fish are porpoise safe. We want 

equal treatment. 

What we are going to ask you to do is amend existing law. I 

think I can go over our suggestion very quickly and then we can 

move on. What we want to do, Mr. Chairman, is, we want to replace the International Dolphin Conservation Act with a set of new 

provisions which basically implement the IATTC program for our 

boats, to include-and we are willing to do this-criminal statutory 

provisions, civil penalties and civil forfeitures. We want 100 percent observers on every vessel. We are prepared to comply with the 

per-boat mortality limits which now apply to the foreign vessels, 

and we are willing to do that as soon as you can enact a new law. 

As you can see, we have not been treated fairly. We were told 

here in this committee about four years ago that if tuna fishermen 

went dolphin safe they would get a better price. That has not been 

the case. And we haven't gotten any contributions from any groups 

to make up the difference. Today dolphin-safe fish, skipjack, sells 

for about $670 a ton, breakeven is about $750. Yellowfm, large yellowfm like is caught in association with dolphin with 300,000 tons 

in the Eastern Tropical Pacific, sells for $1,400 a ton. We didn't get 

a premium as we were told we would. 

The next thing we would like to do is, we are in favor of removing the embargoes. It is the only way to sell our fish. We can't sell 

it without ending the embargoes. 

Finally, we want to again be treated fairly and with parity with 

everyone else with regard to labeling. It seems that canned tuna 

is subject to the only ecological label that sets a standard that goes 

well beyond jeopardy, which is one of the very basic elemental danger zones for endangered species. These animals are not in jeopardy, they are not in danger, they are not threatened. 

We set a standard that is almost absolutely perfect, and perhaps 

it was useful to get us where we are today, but it is no longer useful. We think the best thing to do is treat canned tuna like every 

other product. The Federal Trade Commission has a set of regulations which determine whether voluntary labeling on environmental issues complies with section 5 of the Federal Trade Act. I 

think we should go back to that. 

Mr. Chairman, to conclude, we don't believe truly the American 

public has really gotten the full facts on the tuna/dolphin issue. For 

whatever reason, it is complicated to get it across. We think the 

facts speak for themselves. We want to support this international 

program, we are prepared to be regulated, and we want to be treated no differently than any other American fishery business and no 

differently than foreign fishermen. 

Thank you for your attention. 

[The statement of Mr. Walsh may be found at end of hearing.] 

Mr. SAXTON. Thank you very much, Mr. Walsh. 

Richard Gutting of the National Fisheries Institute 
23 

STATEMENT OF RICHARD E. GUTTING, JR., VICE PRESIDENT 

FOR GOVERNMENT RELATIONS, NATIONAL FISHERIES INSTITUTE, INC. 

Mr. GUTTING. Thank you, Mr. Chairman. 

A13 Ambassador Colson pointed out, there are very few U.S. fishing vessels left in this fishery, and the National Fisheries Institute 

does not represent them. We have 1,000 other companies, however, 

operating in all other U.S. fisheries which have a big stake in what 

is going on in this particular fishery and which are threatened by what is going on in this fishery. Much of the catch throughout the United States comes from high 

seas stocks. These are the fish stocks which spend part of their 

lives on the high seas, beyond the 200-mile zone where they can 

be harvested by foreign fleets. Here on the east coast there are 

stocks of tuna, swordfish, pelagic sharks, worth more than $100 

million a year. That is what these stocks are worth to American 

fishermen, and yet for all that money we take a very small percentage of the annual harvest from these stock. 

If these fish are to be conserved in the long-term, they need 

strong international management by the Atlantic Tuna Commission, and I know, Mr. Chairman, you know, that because you have 

been helping us with legislation to strengthen that program. We 

also need countries like Mexico and Venezuela to join this International Commission and to support and live under its conservation program. Without that cooperation, we cannot conserve these 

stocks. 

On the west coast our dependence upon high sea stocks is even 

stronger. These stocks include tuna, swordfish, salmon and pollock. All of these are high seas stocks and all of these are subject to foreign fishing. Our members believe, we must build a new, strong international commission in the North Pacific to be sure that these 

stocks are conserved and we are delighted to see that the U.S. 

State Department has joined with the government in Japan in calling for such an international commission. They are .making 

progress, and we commend them for it. 

Even in the Gulf of Mexico the future of one of our most important fisheries, the shrimp fishery, has been linked to the future of 

sea turtles by the Endangered Species Act. Our industry needs a 

strong international program to conserve sea turtles because if we 

don't conserve sea turtles we don't have a shrimp fishery. Once 

again, we must have the support, the goodwill, the cooperation of 

other nations including many of the nations which are being pun- ished because of tuna/dolphin, many of the nations which have par- ticJpated in the IATTC program. We, quite frankly, question whether the international community which is participating in the IATrC program really has any incentive to sit down and negotiate the new agreements needed for these 

other stocks when the United States refuses to honor the agreements it already has made and has turned around and is punishing nations for, in effect, getting together and managing stocks on a 

multinational basis. So our supplies are threatened, Mr. Chairman, 

by what is going on, and so are our markets. 

We think that the current situation in the Pacific is a recipe for 

a trade war. The fact of the matter is that the U.S. fish and sea-
24 

food industry depends on overseas markets, we · depend on them 

heavily, markets in Europe, markets in Japan. About a year and 

a half ago we saw what can happen on the east coast when Europe chooses to close its markets to U.S. fish and seafood. 

Remember, Mr. Chairman, when France suddenly closed its borders to fresh fish, fresh skate, and dogfish and monkfish. It was 

the small seafood companies, the family-run firms in Massachusetts and Rhode Island and Virginia, who paid the price. Smaller 

companies who didn't have the resources to sustain the disruption that is caused when borders are closed. 

The fishermen in Europe are having a hard time. They are demanding that their officials close markets to protect their domestic 

fishing industry. We think that the European officials would welcome an opportunity to retaliate against the United States. Under 

international trade law, if they persist in their appeals against the 

U.S. tuna embargos, they will have that right, and the U.S. will 

have no say in the matter. It will be, in effect, compensating those 

nations who have been damaged by the U.S. embargos. If the United States is in that position we are not just going to hurt American 

fishermen, we are going to hurt the dolphin. 

Under the law as it is presently written, the U.S. must embargo 

anyone who fishes on dolphin or who buys tuna from those who do. 

So if Europe wins these trade cases and the U.S. must compensate them, where are we? Well, if you want trade compensation from 

the United States, you go out and you kill dolphin or you buy tuna 

from those who do. The present U.S. policy gets turned on its head, 

and the U.S. begins to reward people for doing exactly what we 

don't want them to do. 

For all of these reasons, the U.S. fish and seafood industry throughout the United States is very concerned about this fishery and believes we must change the law, we must end these embargoes, and we must get out from under the threat of a trade war. 

Thank you. [The statement of Mr. Gutting may be found at end of hearing.] Mr. SAXTON. Thank you very much, Mr. Gutting. 

We are going to tum now to David Phillips of the Earth Island 

Institute. Thank you. 

Mr. Phillips, we understand that you also are intending to speak 

on behalf of a number of other groups 

STATEMENT OF DAVID C. PHILLIPS, EXECUTIVE Dm.ECTOR, 

EARTH ISLAND INSTITUTE . 

Mr. PHILLIPS. Yes. I'm testifying today on behalf of 16 organiza- tions. They are listed on the front page of my written testimony. Those organizations have a long-standing commitment to marine 

mammal protection and have memberships in excess of 3 million 

individuals in the United States. 

Mr. Chairman, despite the significant progress that has been 

made in the past five years, more than 4,000 dolphins were killed 

last year by the tuna fleets in the Eastern Tropical Pacific. This is 

not an incidental killing of dolphins; these dolphins in the Eastern 

Tropical Pacific are chased down by speed boats and helicopters and encircled in mile-long nets as a way of catching the tuna that 

swims underneath. 
25 

The American public and people around the world have pressed for an end to the dolphin slaughter. Consumers don't want to buy tuna caught at the expense of dolphins. In 1990, the largest tuna 

companies in the world--Starkist, Chick~n of\the Sea, and Bumble 

Bee-adopted policies and remain fmn in the1r commitment to sell 

only tuna that is caught without encircling dolphins. And the Congress has adopted tough laws to protect dolphins. The combination 

of those things have resulted in significant reduction in dolphin mortality. 

We believe the current U.S. policy advocating declining U.S. 

quotas for · the U.S. fleet and seeking a global moratorium on the 

practice of encircling dolphins is the correct policy and ought to be 

continued. We do not believe this is the time to dismantle the 

International Dolphin Conservation Act or Marine Mammal Protection Act provisions that have been instrumental in reducing the 

kill. Ambassador Colson stated it well. He said we do not want to 

"go backwards" in the efforts to protect dolphins. Our concern is that some of the proposals being put forward 

today would do exactly that. They would return us to the time of 

much larger dolphin kills, and I would like to briefly touch on a 

couple of proposals and our concerns with them. 

Redefining "dolphin-safe" to include tuna caught in accord with 

the IATTC agreement is a formula for disaster not only for dolphins but also for consumers and U.S. businesses. In our view, it 

would constitute consumer fraud. Tuna caught in accord with the 

IA'ITC agreement still kills thousands of dolphins per year. That 

is not dolphin-safe. It would have the effect of misleading millions 

of consumers who are buying tuna and have confidence in that 

label because they correctly believe it to be dolphin-safe; that is, no 

sets on dolphins. Redefining dolphin-safe would also undercut the 

policies of the companies that have adopted truly dolphin-safe poli- cies. These companies remain f1rm in their commitment and should 

not be penalized. We also strongly oppose efforts to allow dolphin-unsafe tuna back 

on to the United States market. The International Dolphin Conservation Act included this provision for a very good reason. We 

didn't want to have the large, dominant U.S. tuna markets to act 

as an incentive for foreign fleets that eatch tuna by setting nets on 

dolphins. If we remove this provision, we will encourage vessels 

that are currently fishing dolphin-safe to go back to killing dolphins with the hope that they can leverage their tuna into U.S. 

markets. This is of particular concern in view of the large oversupply of tuna in Mexico and the effort that they would make to 

leverage that dolphin-unsafe tuna at depressed prices on to the 

U.S. supermarket shelves. That would also undercut the good poli- cies of the U.S. tuna companies. It would be bad for dolphins and 

bad for U.S. businesses. 

Regarding the IATTC, I would like to point out that the La Jolla 

Agreement has made significant progress but it. is not the miracle 

cure that many have made it out to be. This a~eement still allow~ 

the killing this year of more than 9,000 dolphins, more than twice 

the total actual annual kill rate for this year. It provides absolutely 

no incentive to further reduce the current level of dolphin kill. 
26 

Further, the agreement itself is a nonbinding voluntary agreement that even the U.S. Justice Department has acknowledged is 

not binding under international law. It could be changed at any 

time. In fact, I was rece,ntly at the international IATTC meetings 

at which several countries indicated their interest in increasing the 

quota to a very high level-twenty or thirty thousand per year. 

What protection do we have to ensure that increased dolphin killing will not take place? 

There are structural flaws in the IATTC. Mexico, Ecuador, and 

Columbia are not even members. The U.S. pays the absolute lion's 

share of all funding for IATI'C, and very few countries put in anything. We believe that these structural problems should be fixed 

before the U.S. cedes authority to the IATI'C to manage dolphin 

populations. 

Finally, I would say that we are very concerned about the administration's proposal to allow increased quotas for the U.S. fleet. Allowing a return of U.S. vessels to the Eastern Tropical Pacific 

means more dolphins will be killed. In fact, Ambassador Colson estimated, if 10 vessels came back to the U.S. fleet with dolphin kill 

quotas under the IATTC of 100 or more per vessel, that would increase dolphin mortality by 1,000. Ambassador Colson claims it 

wouldn't increase overall dolphin mortality limits. That is only because the limits are so much higher than the current kill. Our view 

is that this is not the time to reverse the significant progress that 

has been made. The IDCA provisions are working and should be 

continued. 

Thank you. 

[The statement of Mr. Phillips may be found at end of hearing.] 

Mr. SAXTON. Well, thank you all very much for your views and 

for stating articulately your differing positions. 

Mr. Phillips, let me begin by asking you this. First, do you assume-you just used the words reversing-I'm not sure whether 

you used the word "trend"-which has been set, which I assume 

you mean that we have come from a very large mortality rate to 

four one-hundredths of 1 percent, if we all agree with that figure, 

and so that would be a trend. And you used the words "reversing 

that trend." Again, I'm not sure if you used the word ''trend," but 

reversing that progress that has been made. 

Do you believe that there are any changes that could be made 

which would alleviate some of the economic difficulties that have 

been created without reversing the trend? Or when you used the 

word "reverse," did you really mean that we would increase mortality rates once again? 

Mr. PHILLIPS. Yes, my concern is that by making changes, such 

as changing the dolphin-safe definition, we will provide incentives 

for more vessels to set nets on dolphins and more dolphins will be 

killed. 

We prefer to maintain the current position of seeking an elimination of the practice of setting nets on dolphins, helping fund research into techniques that don't involve the encirclement of dolphins, working through the IATTC to continue to reduce dolphin 

kill quotas to much lower levels than they are now, and we believe 

that this can be done and is the correct policy. 
27 

Mr. SAXTON. You want to have us pursue policies or at least 

maintain current policies, and I guess we would have to pursue 

new policies that would lessen the mortality rate below the four 

one-hundredths of 1 percent. 

Mr. PHILLIPS. Yes, we are concerned about the total number of 

dolphins that are killed as well as the rate. We are also concerned 

that that number is slightly deceptive because it encompasses all 

the different dolphin populations. 

There are two particular populations of dolphins, the northeastern offshore spotted and the eastern spinner, that the National 

Marine Fisheries Service has declared depleted. The northeastern 

offshore spotted has been reduced to only 23 percent of its original 

population. The goal of the · Marine Mammal Protection Act is to 

see that these populations are allowed to recover to their original 

levels. Simply aggregating the numbers of all dolphin populations 

and using an overall kill percentage doesn't take into account the 

fact that these kills have disproportional effects on some dolphin 

populations. · Mr. SAXTON. Mr. Walsh testified in his statement that his organization supports changing the laws, which sound to me as though 

American fishermen would then be subject to the same international laws and regulations that foreign fishermen are subject to. 

In other testimony that I believe I heard correctly today indicated 

that all of those international laws and regulations and cooperation 

between countries have brought this mortality rate down to about 

4,000 per year internationally. Do you believe therefore that having 

American fishermen and American boats comply with those same 

regulations would reverse the trend that has been set? 

Mr. PHILLIPS. Exactly right. 

Currently the U.S . . is under a declining dolphin kill quota system. The current quota allowed for this year a is 105. The proposal 

by Ambassador Colson and Mr. Walsh is to replace that with a system under which an unlimited number of U.S. vessels could return 

and be given a dolphin-kill quota of 100 or more per vessel. That 

would result in more vessels killing more dolphins than the current 

allowable quota. 

Mr. SAXTON. Mr. Walsh, would you like to say something about 

this at this point? 

Mr. WALSH. Well, first of all, "unlimited" is a an imprecise term 

which is also deceptive. There are only 4 7 tunaboats. It is unlikely 

that if the fishery were opened up and-given the current practices 

and given the fact that since our differences of opinion with Mexico 

over access, we don't get licenses in Mexico-it is unlikely that 

there will be an unlimited number of boats killing millions of more 

dolphins. That is totally an exaggeration, and everybody knows it. 

What will happen is that there will be enough boats coming in 

and out to· get the yellowfin price so that it will offset the skipjack 

price. They will probably operate-almost assuredly will operate 

from American Samoa and will oper~te at those times of year when 

setting outside is safest, which means setting on the open ocean 

outside 200 miles, beyond Mexico's jurisdiction, where the weather 

is good. There are times of year when you will not and should not 

ever set on dolphins, and it is too complicated, it is too dangerous. 

2D-276 - 96 - 2 
28 

So what will happen is, the vessels will take a couple of trips a 

year, and what it will do to begin to force the two prices together, and the fishermen will do better. But they are going to stay in the 

South Pacific. They are much more productive there. They have 

been able to increase their productivity from three trips a year in 

the Eastern Tropical Pacific to as many as 5, 7, and even one boat 

had 10 trips in the South Pacific. They are not going to leave that 

area. They just want access to that particular fishery under very tight conditions, and there won't be a lot of fishing in the Eastern 

Tropical Pacific. Mr. SAXTON. Would you anticipate that more than 47 boats 

would join the fishery? 

Mr. WALSH. I think it is unlikely that we are going to have 47 

boats sometime in the near future. You know, the fleet has been 

declining in size for some time. We have lost 20 boats since this 

law went into effect. Right now, because of the prices, some of the 

boat owners are hanging on by their fingernails. So I don't think we are going to have 47 boats in the U.S. tuna 

fleet. We certainly aren't going to have 47 tunaboats coming back 

to the Eastern Tropical Pacific. The restrictions are simply too difficult. Some of them simply won't put the nets in because you have 

to have a completely different net. The Medina panel is what is required, and a number of them have sold their nets. We are talking considerable amounts of money, and the margins are razor thin, if 

nonexistent, at the moment. Economic reality will take care of the 

concerns that Mr. Phillips has. 

Mr. SAXTON. Ms. Iudicello, during your testimony you talked 

about international cooperation and getting all the parties together and working to improve the conditions and the bycatch and the 

mortality rate. Mr. Walsh pointed out in his testimony that there 

were a number of steps that his organization favors. · Perhaps, Mr. Walsh, you can state what those are. 

Mr. WALSH. Basically, they include all the requirements the 

American tunaboat owners had to fulfill under the Marine Mammal Protection Act in terms of the way they operated their fishery, the panels, the back down procedure, divers in the net-I mean basically divers go in the net and take the last dolphins out-that is 

required. 

The only difference between the domestic program as it existed 

before 1992 is that the IATI'C has a per-boat quota, and when the 

quota is reached in that fishery that boat is out of dolphin fishing. These limits seem to have worked a real trick because that limit 

has created an attentiveness that clearly would have helped had 

we had that in our program before. So that is the real difference, 

and it seems to be working. 

Mr. SAxToN. Would_you like to respond? 

Ms. lUDICEU.O. Well, I'm not quite sure what I'm responding to, 

whether I'm responding to their desire to go back to the domestic 

regime or to be under the La Jolla type regime. Mr. SAXTON. Under the La Jolla type regime. Ms. lUDICEIJ.O. OK. So it would be the operating conditions including the per-boat quota. 

Mr. SAXTON. Correct. 
29 

Ms. IUDICELLO. What we are looking for in addition to the La 

Jolla regime are the fundamental underpinnings for the IA'ITC to 

move forward in regional conservation of the tuna fishery so that 

it can look at the larger issues of conservation, the tuna stocks, the 

bycatch, as well as continued reductions in dolphin mortality. 

We have some concerns similar to those that Mr. Phillips raised 

including the nonbinding nature of La Jolla, the fact that the party members to La Jolla are not the same as the party members to 

IA'ITC, they are sometimes two different sets of people, and the 

question of access to the fishery and what the increase in effort 

would mean over time. 

So what we are looking for is a way to bundle all the issues together at once instead of legislating the U.S. piece first and then 

trying to do the international piece. It is a process issue. 

Mr. SAXTON. So you would move beyond the dolphin issue into 

a number of other conservation issues and have an international 

effort to address all of those issues simultaneously? 

Ms. IUDICELLO. Well, the IA'ITC does that. The IA'ITC is a tuna 

management body that sets quotas. It does a variety of things and 

has taken on the issue of dolphin conservation as well and done a 

very good job, but there are some items in the convention we would 

like to see strengthened and some capacity that the commission 

has that we would like to see strengthened as well. 

Mr. SAXTON. Dr. Joseph, would you like to comment on this gen- eral subject? 

Mr. JOSEPH. Yes. Thank you, Mr. Chairman. I would like to comment on several things that we have been talking about if I can 

ask your indulgence. First, we should all remember with respect to the concerns that 

have been expressed at this table with what an increase in th,e 

number of vessels in the area will do with respect to wanton mortality of dolphin, that the accord sets an upper limit on dolphin mortality, and that limit for 1999 is 5,000, vety close to the mortality that is currently being generated in the fishery. So there is a 

cap on mortality. No matter how many boats come into the region, they won't be allowed to go beyond a .certain level of dolphin mortality, and I'm confident that the countries will continue to keep that cap. That is the essence of the program. Mr. SAXTON. May I just ask you on that: We have a cap. You 

know, there are different kinds of caps. Is this some kind of a cap that there is reason to believe will be kept? · Mr. JOSEPH. Yes. Well, the cap is fiXed now through 1999. My belief, working with the countries, is that they are ready to continue with a cap in the future, they are ready to continue this program, yes. 

Mr. SAXTON. It is a real cap. 

Mr. JOSEPH. It is a real cap, yes, Mr. Chairman. 

With regards to the status of the dolphin populations, I want to 

say that there are two stocks that have been declared depleted. The 

northeastern spotted, as Mr. Phillips says, is about 23 or 25 percent of its optimum population size. The other stock, the eastern 

spinner, is very near its optimum population size and within three 

or four years will exceed that, so that population would no longer be considered to be depleted. The actual mortality that is being 
30 

generated on those populations as a result of the fisheries is insignificant. It doesn't make any difference whether you stop all dolphin fishing and let the populations grow at their natural maximum rate or whether you continue fishing at this level. 

For example, the northeastern spotted will reach optimum sustainable population in 28 years if there were no fishery causing 

mortality. If we continue fishin~ it at the same level as currently, 

it will reach that same population level in 29 years. That is basically statistically insignificant. With regards to the issue of binding agreements and institutional 

arrangements for the management of tuna, the IATTC is a treaty 

body. The IATTC, in fact, passed a resolution creating the dolphin 

program before the intergovernmental meeting reached agreement 

to do the same thing. Mexico, as my colleague here says, is not a 

member, nor is Columbia, nor is Ecuador, but they all cooperate in 

the IATTC programs. Columbia has applied to enter the IATTC. Ecuador has made the 

first moves to enter. Mexico has announced that if they get this 

problem resolved with embargoes and dolphin safe they will join 

the IATTC. If those countries do, then they will belong to the treaty organization. That carries certain weight with respect to the 

agreements that they put forth, the resolutions that would come 

out of the body, so that we would actually have a formal arrangement within the IATTC for the management of the tunas, the other 

species, and the marine mammals which the commission assumed 

a responsibility for in 1975. 

Thank you, Mr. Chairman. 

Mr. SAXTON. Thank you very much. 

As you can hear, the buzzers are buzzing again, and we are going 

to have to discontinue once again, and so I want to thank all of you 

at this point. 

As I do, let me announce that I'm not sure the date has been set 

yet, but we will be traveling to San Diego for an additional hearing 

on these subjects, and perhaps we will see some of you there. This 

is a very complicated issue, and for those of us who don't deal with 

it every day, it is part of a learning process. I dealt with it back 

in 1992. I voted for dolphin-free labeling, and I remember back in 

those days the public did get confused; Dave Phillips reminded me. 

The public got confused in kind of an opposite way back in those 

days, because when we mandated that "dolphin safe" be put on the 

can some of my constituents thought that there was dolphin meat 

in the cans that weren't so labeled, and so these issues obviously 

are important to us. 

I believe that we have made very significant progress. The law, 

while it has been painful and disconcerting and has required economic sacrifices, has gone a long way to accomplish the goals that 

were set out in it in 1992, and so we will continue the consideration of these matters at the future hearing and probably beyond 

that. 

So thank you very much for being here. We appreciated all of 

your testimony and we look forward to working with you on these 

and other issues. 

Thank you. 
31 

[Whereupon, at 4:39 p.m., the subcommittee was adjourned; and 

the following was submitted for the record:] 

STATEMENT OF 

AMBASSADoR DAVID A. COLSON 

DEPUTY ASSISTANT SECRETARY FOR OCEANS 

IN THE 

BUREAU OF OCEANS AND INTERNATIONAL 

ENVIRONMENTAL AND 

SCIENTIFIC AFFAIRS 

BEFORE THE 

HOUSE COMMITTEE ON RESOURCES 

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS 

Mr. Chairman and Members of the Committee: 

Thank you for this opportunity to appear before the Committee 

to discuss the International Dolphin Conservation Act of 1992 

(IOCA) and the status of international efforts to protect and 

conserve dolphins in the Eastern Tropical Pacific Ocean. 

During the past decade there have been few international 

fisheries issues of such magnitude or of such broad interest as 

the interface of tunas and dolphins in the Eastern Tropical 

Pacific . Due to the efforts of many, including environmental 

organizations, fishermen, and citizens, as well as concerned 

governments and the Inter-American Tropical Tuna commission 

(.IATTC), we can now report significant progress. In light of the 

progress made under the Marine Mammal Protection Act (MMPA) and 

through the IATTC, U.S. fishermen should be allowed to return to 

the fishery, and the embargoes against count.ries operating under 

the internationally agreed program should be lifted. The 

progress achieved must be preserved for the future. Without 

action, that progress is in jeopardy. The action to be taken 
32 

- 2 -

must, of course, meet the objectives of both u.s. environmental 

and fisheries interests. 

The problem arises because mature yellowfin tuna frequently 

associate with dolphins in the Eastern Tropical Pacific Ocean. 

Fishermen, using purse seine nets, encircle schools of dolphin 

with the objective of catching the large yellowfin tuna swimming 

below the dolphins. 

This important tuna fishery, which produces about 10 percent 

of the world's tuna catch, has been managed on a sustainable 

basis by the Inter-American Tropical Tuna Commission (IATTC) 

since the early 1950s. In that regard, the IATTC's record of 

fisheries management is exemplary. 

As recently as 1989, more than 100,000 dolphins were killed 

annually in the Eastern Tropical Pacific Ocean tuna fisheries, 

and in the earliest years of the fishery in the 1960s it is 

estimated that as many as 500,000 were killed .annually. But in 

recent years, due in part to IATTC action, there has been a 

significant reduction. A particularly dramatic reduction has 

occured during the past two ye~rs under the IATTC's La Jolla 

Agreement: the number of dolphin killed accidentally in the 

fishery has been reduced to about 4,000 annually, while tuna 

catches have remained high. This level represents approximately 

four-tenths of one percent of the 9.5 million dolphins which live 
- 3 -

in the Eastern Tropical Pacific Ocean, where dolphin populations 

are believed to be stable or increasing . None of these 

populations are considered to be threatened or endangered under 

the Endangered Species Act, but some are listed as depleted under 

Marine Mammal Protection Act (MMPA) criteria and thus need to be 

carefully monitored. What has been accomplished by fishermen and 

fisheries managers, first in the United States and then 

internationally, is nothing short of a phenomenal environmental 

success story. The international accomplishments have been due 

to a dynamic and innovative international program, known as the 

International Dolphin Conservation Program (IDCP), created and 

implemented under the auspices of the IATTC. 

Mr. Chairman, you will not find another program like this 

anywhere in the world. It requires a committed effort of 

governments and managers working with industry and environmental 

NGOs to make it work. It has been a success beyond our 

imagination three years ago . We are way ahead of schedule. Only 

about fifteen percent of sets today result in dolphin mortality, 

and the model of this program is the focus of other efforts to 

deal with difficult international marine conservation questions. 

In 1992, ten nations with tuna vessels operating in the 

Eastern Tropical Pacific Ocean entered into an agreement under 

IATTC auspices, known as the La Jolla Agreement . The Agreement 

established the IDCP with the following straight-forward regional 
- 4 -

objective: to reduce dolphin mortalities to insignificant levels 

approaching zero. with a goal of elimipating them eptirely. The 

IDCP sets decreasing annual limits beginning in 1993, on the 

total allowable mortality in the · fishe.ry. It was agreed to 

reduce the mortality step by step to fewer than 5,000 dolphins 

annually in 1999. 

The La Jolla Agreement and the IDCP contain innovative 

features that are unique in international fisheries management. 

They ensure the transparency of the program, its effectiveness 

and its enforceability. 

1. Individual Vessel Dolphin MQrtality Limit <DML). The 

overall annual dolphin mortality limit for the international 

fleet established by the La Jolla Agreement is allocated annually 

to individual vessels that meet certain criteria, including 100 

percent observer coverage, possession of the equipment required 

for releasing captured dolphins unharmed, agreement to adhere to 

IATTC standards regarding fishing practices, training of key crew 

members in dolphin safety techniques, and the payment of funds to 

support the IDCP observer program. Only these vessels are 

permitted to fish for tunas associated with dolphins and only 

until they reach their individual DMLs. These individual vessel 

quotas are an enormously strong incentive for vessel captains to 

minimize dolphin mortality. The individual vessel DMLs work and, 

because every vessel is required to carry an observer, are 

probably the key to the dramatic reduction in dolphin mortality. 
35 

- 5 -

2. Observer Coverage. Since January 1, 1993, every trip 

made in the Eastern Tropical Pacific Ocean by a vessel greater 

than 400 short tons carrying capacity has been accompanied by an 

internationally accredited observer. The information collected 

by these ob'servers is essential for scientific research and for 

ensuring compliance with the Agreement. Some of these observers 

are from accredited national programs; the majority are 

international observers employed by IATTC. 

3. An International Review Panel . The Panel meets about 

three times annually and is charged with reviewing and reporting 

on the compliance of the international fleet with the La Jolla 

Agreement. The Panel, which is made up -of representatives of 

governments, the fishing industry, and non-governmental 

environmental organizations reviews issues arising from the 

implementation of the IDCP and to verify the performance of 

individual vessels . The data collected by observers are reviewed 

and, when an infraction of the standards established under the 

Agreement is identified, the flag state is notified and required 

to report to the Panel on the action taken . 

4. A Comprehensive Research Program. The research is 

designed to pursue two parallel goals: to improve current 

purse-seine technology to reduce dolphin mortality to a minimum, 

and to develop alternative methods for capturing large yellowfin 

tuna that do not involve setting on dolphins. A two-year, $5.7 

million program was approved, but is not yet fully funded. 
36 

- 6 -

In this regard, I note that one part of the IATTC's 

investigations has been to examine the impact on the marine 

environment of alternative fishing methods considered to be 

"dolphin safe.• These methods include setting on schooling fish 

and setting on logs or marine debris. The Commission's views on 

this question, which Dr. Joseph may elaborate upon, are that if 

the fishery operated exclusively under "dolphin safe" fishing 

practices smaller, sexually immature yellowfin tuna, which do not 

associate with dolphins, will be caught, and unless greatly 

reduced catch quotas are implemented, the stock of yellowfin tuna 

will be overfished and catches will decline by between 30 and 60 

percent from current levels. Also, "dolphin-safe" fishing on 

logs (debris) produces a large incidental by-catch of other 

species, amounting to at least 30 percent by weight of the total 

catch . These species include sharks, billfish, endangered sea 

turtles, and numerous other fish species. 

IATTC members suppor~ a more systematic study of the impact 

of alternative fishing methods, which would require funding that 

is neither currently available nor likely to become available in 

the near fu.ture. 

s. The Scientific Advisory Board. The Board consists of 

government agencies, environmental groups, the fishing industry, 

and the international scientific community. It assists the 

Director of the IATTC in efforts to coordinate, facilitate, and 
37 

- 7 -

guide research directed towards achieving the objectives of the 

program. 

Yet, despite the success of the La Jolla Agreement and the 

international dolphin protection program, the United States 

penalizes countries participating in the program because we 

continue to embargo yellowfin tuna and tuna products, as required 

by provisions of u.s. law. The following nations are presently 

embargoed: Colombia; Costa Rica; Italy;· J·apan; Mexico; ·Panama; 

Vanuatu; and, Venezuela. 

There is no doubt that the threat and imposition of u.s. 

trade embargoes pursuant to the MMPA was helpful leverage in the 

negotiation of the IATTC dolphin protection program. However, 

the factual situation on which the unilateral embargo standards 

of the MMPA were based no longer exists. Countries participating 

in the program continue to be embargoed, with no prospect for 

relief. They are reevaluating their participation in the 

program, which places the future of the IATTC dolphin protection 

program in jeopardy. 

The tuna/dolphin controversy is really made up of three 

different elements: trade embargoes; fair treatment for U.S. 

fishermen; and, the dolphin safe market. Our way forward on some 

elements may be clearer than . on others. 
- 8 -

First, the unilateral standard for imposing embargoes under 

the MMPA should be amended to conform to an IATTC standard ; the 

tuna embargoes should be removed and not imposed on those nations 

participating effectively in the IATTC program. In this regard, 

we do not believe that onerous and unattainable pre-conditions 

should be added, such as re-negotiating the La Jolla Agreement, 

which would have to be met before the embargoes could be 

removed . In our view, Mr . Chairman, insisting on such 

preconditions is a prescription for failure. The standard should 

simply be that countries that participate in the IATTC program 

and conform to its current and future standards should not be 

subject to these embargoes . Progress achieved to date would, 

thus, be preserved and further progress expected in light of the 

objective of the La Jolla Agreement . 

Second , we believe that U. S. law should be amended to allow 

U.S. fishermen to participate in the tuna purse seine fishery in 

the Eastern Tropical Pacific Ocean on an equal footing with 

foreign fishermen. That is not the case now, because the 

standards of u.s. law have become so stringent that u.s. 

fishermen are virtually excluded from participating in the 

fishery. This includes being a captain or crew on a foreign flag 

vessel. We believe that this prohibition should be removed to be 

equitable to u.s. citizens who are providing needed expertise to 

foreign flag fishing vessels, furthering the goal of reducing 

dolphin mortality in this fishery . 
39 

- 9 -

Other changes need to be made in the IDCA so that U. S. 

fishermen are not subject to quotas and fishery regulations 

substantially different from those which are part of the 

i nternational program. U.S. vessels historically were the 

dominant fishing power in the Eastern Tropical Pacific Ocean tuna 

fishery, but the number of vessels has declined steadily since 

the mid 1980s. u.s. fishermen pioneered the Eastern Tropical 

Pacific tuna fisheries, but today U.S. law discourages their 

involvement. 

This ironic situation has come about due to changes in u.s. 

law, not through the operation of any international agreement. 

There is room for greater U.S . flag vessel involvement under the 

La Jolla Agreement without increasing overall dolphin mortality 

limits. The IATTC program places a limit on the total number of 

dolphin mortalities each year . u.s. vessels returning to the 

fishery would operate under this overall limit. Thus, an 

increase in the number of U.S. ves~els in the fishery would not 

increase dolphin mortalities under the IATTC dolphin protection 

program. There are several different ways to amend u.s. law to 

correct this situation. 

The third element is the "dolphin-safe" provisions of u.s. 

law which now bar from the u.s. market tuna caught by vessels 

encircling dolphins. On this element there appears to be less of 

a consensus. 
40 

- 10 -

There are several different options which could be pursued. 

One, make no changes . Two, change the legal definition of 

dolphin safe to define dolphin safe tuna to be tuna caught in 

accordance with the IATTC program. ThTee, change the definition 

of dolphin safe to allow tuna to be sold in the u.s. if caught in 

a •set in which no mortality of dolphins occurs. Four, repeal the 

requirement for a dolphin safe market under the IDCA but do not 

change the definition of dolphin safe for labelling purposes as 

set forth in the Dolphin Protection Consumer Information Act; in 

other words, return to the situation before June of 1994 when 

u.s. law only mandated the standard for· use of a dolphin safe 

label. Five, return entirely to an open market, without labeling 

standards or prohibitions and let industry set the definitions 

for labeling purposes and let consumers determine what tuna they 

wish to buy. 

The Administration welcomes the opportunity to examine these 

options with the Congress and constituent groups. 

In conclusion, Mr. Chairman, the Administration makes three 

suggestions: 

(1) u.s. law should be amended to remove the tuna embargoes 

by reconciling our unilateral MMPA standards with the standards 

of the IATTC's international dolphin program; 
41 

- 11 -

(2) bars should be lifted to allow U.S. fishermen to 

equitably participate in that fishery; 

(3) options for dealing with our dolphin safe market should 

be examined. 

Saving the IATTC program and providing u.s. fishermen with 

less burdened opportunity to participate in the Eastern Pacific 

tuna fishery is the best thing for U.S. fisheries policy and for 

the health of that ecosystem. I genuinely believe that if we do 

not act now to resolve the matter we will lose the IATTC 

program. That would be a tragedy and a real step backward for 

dolphin protection . 

Thank you once again Mr . Chairman for the opportunity to 

d i scuss these matters before the Committee. I would be pleased 

to answer any questions which you or other members of the 

Committee may have . 
42 

U.S. House of Representatives 

Committee on Resources 

Subcommittee on Fisheries and Wildlife and Oceans 

HEARING 

To Examine Provisions of the 

International Dolphin Conservation Act (Public Law 102-523) 

Statement of 

James Joseph 

Director, Inter-American Tropical Tuna Commission 

Washington, D.C. 

June 22, 1995 
43 

My name is James Joseph, and I am the Director of the Inter-American Tropical Tuna Commission 

(IATTC), an international research and management organization established by treaty in 1949, with 

headquarters at Scripps Institution of Oceanography in La Jolla, California. The United States, one. of the 

parties to the treaty, has been a member since the Commission's creation, and is the depositary 

government. The IA TIC's principal duties are the scientific study, conservation, and management of the 

tunas and related species of the eastern Pacific Ocean (EPO), as well as other species, including marine 

mammals, involved in the tuna fishery in the eastem·Pacific. I am a scientist by training, and have SPent 

more than 40 years working on matters related to the scientific study and conservation of marine species. I 

have served as advisor to numerous nations and organizations in matters related to fisheries science and 

resource conservation, have published some 100 books and articles on these subjects, and have been 

responsible to the nations of the region for the management and conservation of the tuna and dolphin 

resources of the eastern Pacific. 

The issue of dolphin mortality in the tuna fiShery has been at the center of much controversy and the 

focus of a great deal of attention and action by Congress. I am therefore grateful for the opportunity to 

present my views to this Committee. 

My testimony will concentrate on the International Dolphin Conservation Program (IDCP), 

established for the protection of dolphins taken in association with tunas in the tuna fishery of the eastern 

PacifiC. This program is administered by the IATTC, and I would like to describe its objectives, activities, 

and achievements, and discuss some ways in which it could be improved. 

Background 

It has long been common knowledge that yellow fin tuna and dolphins occur in very close 

association in the eastern Pacific Ocean, and fishermen have used this association to their advantage in 

their search for tuna. In order to catch the tuna, the fishermen encircle the tunas and the dolphins with a 

large purse-seine net, draw the net closed, liberate the dolphins, and load the tuna aboard the vessel. This 

form of fishing, known as "dolphin fishing" or fishing "on dolphins," was developed originally by·U.S. 

fishermen, whose fleet dominated the fishery until the late 1970s. Since then, the number of vessels of 

other nations has increased considerably, and they now constitute the major component of the 

international fleet. Table 1 shows the number of vessels, classified into U.S. and non-U.S., of carrying 

capacity greater than 400 short tons and capable of fishing on dolphins that have fished in the eastern 

Pacific since 1960. In that year U.S.-flag vessels made up the entire fishing fleet, but by 1980 the proportion 

of U.S. vessels was down to 57%, and is currently about 5%. Conversely, the Mexican and Venezuelan 

fleets, which in 1975 accounted for only about10% of the total, now form about 60% of the international 

fleet. 

During the last several years, the catches of yellowfin tuna caught in association with dolphins in the 

eastern Pacific have ranged from 216 to 125 thousand tons. This represents between 20 and 30% of the total 

catch of yellowfin from the entire PacifiC Ocean, and 12% to 20% of the world catch of the species. 

The mortal.ity of dolphins in the fishery first became public knowledge in the late 1960s, when a 

scientist from the National Marine Fisheries Service (NMFS) reported on the mortality caused by a purseseine vessel during a fishing trip which he had accompanied. Further analyses by the NMFS indicated that 

as many as several hundred thousand dolphins were dying each year in the tuna fishery. 

Senate Hearing, 6/95- 1 
44 

Public awareness of the high dolphin mortality in the tuna fishery in the eastern Pacific, coupled 

with the fact that U.S. vessels accounted for almost all the fishing on dolphins, was instrumental in the 

passage of the Marine Mammal Protection Act (MMPA) of 1972. This Act directs that all marine mammal 

populations be managed for their "optimum sustainable population; defined as "the number of animals 

which will result in the maximum productivity of the population or species. • It imposed a moratorium on 

the taking of marine mammals, but with two exceptions, applicable only to species or populations which 

were not endangered: taking for subsistence or traditional purposes by Native Americans, and incidental 

captures during commercial fishing operations. With respect to the Jatll!r, the Act stares as its aim that "the 

immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the 

course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality 

and serious injury rate." In addition, it provides for a ban on ''the importation of commercial fish or 

products of fish which have been caught with commercial fishing technology which results in the 

incidental k.iU or incidental serious injury of ocean mammals in excess of United States standards."' 

In 1981 the MMPA was amended to allow the continued exploitation of tunas associated with 

dolphins; with regard to the immediate goal of reducing mortality to levels approaching zero, the amended 

Act stated that "this goal shall be satisfied in the case of the incidental taking of marine mammals in the 

course of purse-seine fishing for yellowfin tuna by a continuation of the application of the best marine 

mammal safety techniques and equipment that are economically and technologically practicable.· 

With the decline of the U.S. fleet in the late 1970s and early 1980s and its replacement by vessels 

from latin America, the problem of dolphin mortality became an international rather than an exclusively 

U.S. concern. 

In response to· this situation, the United States initiated action within the lA TIC to establish a 

program to address the tuna-dolphin problem. In 1976 the member governments of the lA TIC agreed to a 

program with the following objectives: ''[1) to maintain a high level of tuna production, and also [2) to 

maintain [dolphin] stocks at or above levels that assure their survival in perpetuity, (3) with every 

reasonable effort being made to avoid needless or senseless killing of [dolphins)." 

The aims of the program were to estimate the extent of the dolphin mortality caused by the 

international fleet, assess the impact of this mortality on the dolphin populations, and investigate ways to 

reduce dolphin mortality caused by the fishery to the lowest possible levels. 

One of the first steps the lA TIC took was to establish an observer program, similar to that of the 

NMFS. However, funds did not become available to implement the program until1979, and the first 

observers were placed on non-U.S. vessels in 1980. It was not untill986 that all nations with vessels 

capable of fishing on dolphins in the eastern Pacific participated in the lA TIC program. The level of 

observer coverage from 1980 to the present is shown in Table 2. 

Another part of the lA TIC program involved the development and identification of fishing gear and 

methods that could prove useful in reducing dolphin mortality, and the transfer of this information to the 

fishing fleet. Some aspects of this program were patterned after the NMFS program, initiated for the U.S. 

fleet some years earlier, and both programs worked in close cooperation. Information and training 

workshops for key personnel from the tuna industry were held in the home ports of tuna vessels involved 

in the fishery, and lA TIC personnel carried out routine inspections of fishing gear and nets to ensure that 

they were as effective as possible in minimizing dolphin mortality. 

Senate Hearing. 6/95- 2 
45 

The total mortality of dolphins in the fishery in 1986, the first year in which all national fleets took 

part in the program, was estimated by the IATI'C staff to be 133,000 animals. With the exception of 1989, 

the mortality declined each year, and by the end of 1991 fell to 27.300 dolphins, a reduction of some 80% 

from 1986. These reductions were due to a number of factors, the most important of which were the 

commitment of the fishermen, the presence of observers aboard the vessels, workshops and training 

sessions conducted by IA TIC staff, and the efforts of governments to work with the tuna industry in 

reducing the mortality. 

Although the levels of mortality had been reduced to substantially below the rate of growth of the 

dolphin population (a conservative estimate of the net recruitment to the population is at least 190,000 

dolphins per year) there was still great pressure from environmental groups and the U.S. government to 

prohibit the practice of fishing on dolphins. However, because of the nature of the fishery and the 

association of tuna and dolphins, a prohibition on catching tunas with dolphins would result in other 

ecological problems. 

There are three modes of fishing for tunas with purse seines: on dolphins, on logs (floating objects 

under which schools of tuna gather), and on schoolfish (free-swimming schools of tuna). The tuna caught 

in association with dolphins are almost exclusively large, sexually mature yellowfin, averaging about 45 

pounds; log and school fishing catch principally yellowfin and skipjack tunas, but the schools of yellowfin 

caught with these modes of fishing consist of small, sexually immature fish, averaging about 10 to 15 

pounds (Figure 1). If fishing on dolphins were prohibited, all effort would be directed to these other 

modes of fiShing. Most of the yellowfin caught would be small, and would not yet have spawned nor had 

a chance to grow to a size at which they would contribute more to the catch. The eventual result would be 

a reduction of over one-half in the average size oi fish in the catch, causing a substantial decline in the yield 

per recruit (Figure 2). Eventually, this "growth overfishing" would reduce the catch of yellowfin by 

between 25 and 60% even if fishing effort increased. An additional concern is the bycatch of large numbers 

of other marine species. This is particularly significant in log fishing. in which large amounts of very small 

tunas of no commercial value, as well as large numbers of other species such as billfish, sharks, mahi-mahi, 

and some sea turtles, are discarded to the sea, most of them dead. 

Table 3 lists the species or species groups discarded dead by each of the three modes of fishing 

during 1993-1994, for a sample of the international fleet. expressed in number of animals per thousand tons 

of yellowfm tuna landed. The lowest discard rate is for dolphin-associated fish; the highest, for log fishing. 

is several hundred times higher. Additionally,large numbers of small yellowfm of no commercial value 

are discarded: it is estimated that in 1993 and 1994 the fishery on logs discarded between 3.5 and 7.2 

million small individuals of the species. This representS between about 4 and 8% of the total recruitment of 

young yellowfin into the fiShery. Although it Is not currently possible to assess the impact of such discards 

on the ecosystem being exploited, it is reasonable to assume that it would be significant. 

If fishing on dolphins were prohibited, the bycatch problem would become much more severe. The 

9 to 10 thousand sets now made on dolphins would be made on logs and schoolfish; bycatches would 

increase considerably, with probably serious and significant effects on the ecosystem. It is estimated that 

between 10 and 25 million small yellowfin would be discarded to the sea dead; this represents between 13 

and 32% of the total recruitment for the species, and would have a major effect on the yellowfin 

population. 

Senate Hearing. 6/95 • 3 
46 

In view of the above, it was clear to the nations of the region that a moratorium on fishing on 

dolphins would be ecologically unsound. Therefore, in an effort to continue the successful reduction of 

dolphin mortality while at the same time maintaining a healthy ecosystem and a rational conservation of 

the tuna stocks of the eastern Pacific, the member governments of the IATTC sought additional 

mechanisms to achieve these goals. 

The International Dolphin Conservation Program 

The result of these efforts was the Agreement for the Conservation of Dolphins, known as the La 

Jolla Agreement, reached in June 1992 by ten nations with an interest in the fishery. This Agreement, a 

copy of which is attached as Appendix 1, is unique, and sets a number of precedents in the management of 

international fisheries resources. Its objectives are: 

"(1) progressively reducing dolphin mortality in the (eastern Pacific Ocean] fishery to levels 

approaching zero through the setting of annual limits and (2), with a goal of eliminating dolphiri mortality 

in this fishery, seeking ecologically sound means of capturing large yellow fin tunas not in association with 

dolphins while maintaining the populations of yellowfm tuna in the [eastern Pacific Ocean] at a level which 

will permit maximum sustained catches year after year." 

To achieve these objectives, a schedule of progressively decreasing annual limits on dolphin 

mortality was implemented, and a research program approved. This program is intended to find methods 

to improve the effectiveness of current purse-seine technology in reducing dolphin mortality, and to seek 

alternative means of catching large yellowfm tunas which do not involve encircling dolphins. 

The mortality reduction program would limit mortality to less than 5,000 animals by 1999, in 

accordance with the following schedule: 

Year Limit 

1993 19_.500 

1994 15_.500 

1995 12,000 

1996 9,000 

1997 7_.500 

1998 6,500 

1999 <5,000 

It was agreed that the overall limit for each year would be divided among vessels that intended to 

fish for tunas associated with dolphins and that met certain requirements regarding fishing equipment and 

procedures and crew training. These vessels could apply for individual dolphin mortality limits (DMLs); 

these would be calculated by dividing the annual limit for all vessels by the number of vessels requesting 

DMLs. With this system, those vessels that kept within their individual DMLs could fish on dolphins all 

year, but those that did not would have to abandon this mode of fishing for the rest of the year when they 

reached their DMLs. Thus, each vessel would be competing not against other vessels for a share of a quota, 

but rather against its own ability to reduce dolphin mortality, and careful operators would not be hurt by 

Senate Hearing, 6/95 • 4 
47 

careless ones. Compliance with the limits would be verified by observers, who would accompany every 

trip made by vessels of carrying capacity greater than 400 tons. 

Many of the provisions of the Agreement establish precedents in the management of multinational 

fisheries. Two examples of this are the allocation of limits to individual vessels of different nations by an 

international organization, and the composition and function of the International Review Panel (IRP) 

established to monitor compliance with the provisions of the Agreement. 

The International Review Panel is composed of representatives of governments, the fashing industry, 

and environmental organizations. Its principal duty Is to review the observers' records of each vessel's 

fishing activities, and to make recommendations to the governments party to the Agreement on technical 

aspects affecting the implementation of the program. Infractions of the Agreement are reported to the 

vessel's flag state, which is requested to notify the Panel of any measures taken against the vessel. To date, 

the Panel has identified and classified infractions of the Agreement and recommended to the governments 

standardized sanctions for specific infractions, proposed multinational measures to be taken against 

nations that violate the terrras of the Agreement, established criteria to determine which vessels qualify for 

DMLs, set up guidelines for dealing with specific situations, such as high-mortality sets, and developed 

rules for the distribution of DMLs in the second semester of the year. 

The Agreement also provides for the establishment of a Scientific Advisory Board (SAB) of technical 

experts to assist the IA TIC in matters regarding research to modify current purse-seine technology aimed 

at reducing dolphin mortality and seeking alternative means of capturing large yellowfin tuna. The SAB 

has identified a number of research projects which could lead to further reductions in mortality, but due to 

lack of funding it has not been possible to carry out these projects. 

This international program is not only unique in attempting to resolve a multispecies conservation 

problem and in establishing a series of technical, enforcement, and research mechanisrras to accomplish this 

objective, but is also consistent with the objectives of the MMPA regarding international cooperation, 

which mandate that: 

'The Secretary, through the Secretary of State, shall ..... (2) initiate ..... (B) discussions with foreign 

governments whose vessels harvest yellowfin tuna with purse seines in the eastern tropical 

Pacific Ocean, for the purpose of concluding, through the Inter-American Tropical Tuna 

Commission or such other bilateral or multilateral institutions as may be appropriate, 

international arrangements for the conservation of marine mammals taken incidentally in the 

course of harvesting such tuna, which should include provisions for (i) cooperative research into 

alternative methods of locating and catching yellowfin tuna which do not involve the taking of 

marine mammals, (ii) cooperative research on the status of affected marine mammal population 

stocks, (iii) reliable monitoring of the number, rate, and species of marine mammals taken by 

vessels of harvesting nations, (iv) limitations on incidental take levels based upon the best 

scientific information available, and (v) the use of the best marine mammal safety techniques and 

equipment that are economically and technologically practicable to reduce the incidental kill and 

serious injury of marine mammals to insignificant levels approaching a zero mortality and 

serious injury rate." 

During 1992, at the time the Agreement was being negotiated, dolphin mortality continued to 

decline; the total for that year was 15,539 dolphins. 

Senate Hearing, 6/95-5 
48 

The first year of the new DML program was 1993, and in that year the mortality fell dramatically, to 

3,601 dolphins, a level not only far_ below the overall limit set for that year, but also lower than the target 

set for 1999. Based on these results, the governments lowered the 1994 limit from 15,500 to-9,300 animals; 

in that year the mortality totaled 4,095 dolphins. The increase over 1993 was due to a single set in which a 

rare combination of mechanical problems and environmental conditions had led to high mortality of 

dolphins, despite the fishermen's best efforts. Excluding that one set, the mortality was once again lower 

than in the preceding year. 

For 1995, the governments once again lowered the overall limit from 12,000 animals to 9,300; to date 

in 1995, the fishing effort on dolphins has increased substantially, but the mortality is comparable to that 

of 1994. 

In summary, the the International Dolphin Conservation Program is working remarkably well.1 

Between 1986 and 1994, the annual mortality of dolphins in the fishery has been reduced by 97%. During 

that period the mortality per set, the measure used to gauge the fishermen's performance in reducing 

mortality, declined from about 13.0 animals killed in each set of the net to about 0.5 animals, a decline of 

96%. Despite the adoption by U.S. tuna processors in 1990 of their ·dolphin-safe" policy, by which they 

would no longer purchase tuna from the eastern Pacific caught in association with dolphins, and the severe 

restrictions imposed on this mode of fishing by the U.S. government in 1992, the proportion of the total 

catch of tunas from the eastern Pacific which is caught on dolphins has not changed appreciably. The 

principal result was that most U.S. vessels, which had pioneered and developed the tuna fishery in the 

eastern Pacific, had to leave the area, because they considered that they could not survive economically 

without fishing on dolphins. Their place was taken by vessels of other nations, and fishing on dolphins 

continued. In 1993 the fishing effort on dolphins decreased by about 25% over 1992, but it rose again in 

1994 and is increasing at an even faster rate in 1995. 

The trends in total dolphin mortality, mortality per set, and the total number of sets made from 1986 

to 1994 are shown in Figure 3. 

The Status of Tuna and Dolphin Stocks 

The fishery for tunas in the eastern Pacific harvests several species of tuna using a variety of fishing 

gears. Most of the catch consists of yellowfin and skipjack tunas, and is taken by purse-seine vessels. In 

terms of catch, the next most important is the fishery with Ionglines, which catches mainly bigeye tuna. The 

two fisheries have different objectives: the purse-seine fishery supplies the canned fish market and is 

interested in the volume of the catch; the longline fishery supplies fresh fish for the sashimi market, and 

concentrates more on the quality of the fish. Longlining is not efficient enough to supply the market for 

canned fish, and the quality of the fish caught with purse seines is not high enough for the sashimi market. 

The yellowfin stock that supports the fishery in the eastern Pacific is virtually independent of the 

stocks of yellowfin in the central and western Pacific, whereas the skipjack stock is part of a larger 

population which extends beyond the eastern Pacific. From 1986 to 1994 the annual catch of these two 

species by the purse-seine fleet varied between 325,000 and 425,000 tons, about three-quarters of it 

yellowfin. The dockside value of this fishery approaches $500 million. 

1. The text of the La Jolla Agreement and other decisions affecting its implement.1tion, with a summary of the 

actions of the!RP, the lA TIC, and the governments involved, is attached as Appendix 1. 

Senate Hearing, 6/95- 6 
49 

According to studies made by the IAlTCstaff, the yellowfin stock is capable of sustaining annual 

catches of about 300,000 tons at optimum levels of fishing effort, providing the age structure of the 

population does not change. With current levels of fishing effort, the catch is below this level; abundance 

and catch rates remain high, and the population is not overfished. 

The abundance of skipjack tuna in the eastern Pacific is variable, but the stock also appears to be in 

good condition. During years when skipjack migrate into the region in greater than usual numbers, · 

catches could increase substantially; in years of low migration, catches would be correspondingly lower. 

Overall, the stocks of yellowfin and skipjack in the eastern Pacific are at high levels of abundance 

and ar~ not considered to be overexploited, 

Several species of dolphins are captured during tuna-fishing operations in the eastern Pacific, but of 

these only three are frequently found associated with tunas, and consequently suffer the greatest mortality 

in the fishery. These three species are, in order of their importance in the fishery, the spotted· c!olphin 

(Stenel/a attenuata), the spinner dolphin (Stenella longirostris), and the common dolphin (Delphinus delphis). 

In order to assess the impact of the fishery on these three species since the advent of modem purseseining, estimates of their abundance have been calculated, based on data collected by research vessels and 

by observers aboard fishing vessels. 

Between 1986 and 1990 the NMFS conducted five research vessel cruises to assess d olphin 

abundance. The total population of the three above species in the eastern Pacific is estimated to be about 

6.8 million animals, and that for all species involved in the fishery about 9.6 million. None of the stocks of 

dolphins involved in the fishery are considered to be threatened or endangered. Two stocks, the 

northeastern spotted dolphin and the eastern spinner dolphin, are depleted, but at projected population 

growth rates, the latter stock should increase to above the depleted level in the next few years. 

Table 4 shows the estimates of average dolphin abundance, by stock, made by NMFS from research 

vessel surveys during 1986-1990. Also shown is the total mortality of dolphins caused by the tuna fleet in 

the eastern Pacific during 1993 and 1994, the potential biological removals (PBRs) and the zero mortality 

rate goal (ZMRG). 

The MMPA calls for estimates of the PBR for each marine mammal stock in u.s.·waters. A PBR is 

detU\ed as "the maximum n~ of animals, not including natural mortalities, that may be removed from 

a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable 

population." The PBRs are calculated using the minimum population estimate, defU\ed as the equivalent of 

the lower limit of a two-tailed 60% confidence interval, half the maximum net productivity rate (0.04 x 0.5 = 0.02), and a recovery factor of 05 for depleted or unknown stocks and 1.0 for stocks above their optimum 

sustainable level. These PBR estimates are very conservative: a minimal estimate of abundance is 

multiplied by a low estimate of recruitment, and an additional safety factor is added. 

·The PBR values for seven major stocks of dolphins involved in the fishery in the eastern Pacific are 

significantly higher than the actual mortality caused by the fishery during 1993 and 1994. The 1994 

mortality was 4,()95 dolphins; the PBR calculated for those same stocks is 50,145 dolphins. 

Senate Hearing, 6/95- 7 
50 

The MMP A calls for a reduction of mortality and serious injury to "insignificant levels approaching 

zero mortality ... rate." This zero mortality rate goal (ZMRG) has been interpreted to mean the reduction of 

marine mammal mortality caused by commercial fishing operations to levels significantly below the PBR 

rate, so that the mortality has a negligible effect on the status of the affected stock. It has been proposed by 

the NMFS that the ZMRG be set at one-tenth (0.1 x PBR) of the estimated PBR value. These estimates are 

shown in Table 4. Of the seven stocks of dolphins in the table, four have already reached the zero mortality 

rate, and another is very close to it. One of the remaining two, the eastern spinner dolphin, should, at 

current levels of mortality, reach the ZMRG in the next few years. 

Conclusions 

The IDCP has been in effect for two and a half years. In its first year, the long-term objective of 

reducing mortality caused by the fishery to below 5,000 dolphins was achieved. Since this mortality 

represents about one fiftieth of the 2% of the net recruitment to the dolphin populations, these populations 

should be increasing at rates very little different to those that would obtain if there were no fishing on 

dolphins. None of the dolphin populations involved in the tuna fishery of the eastern Pacific are 

endangered or threatened. 

At current levels of fishing effort, the populations of yellow fin tuna are near optimum levels of 

abundance. If fishing effort shifts from catching large tuna associated with dolphins to the capture of small 

tunas wi.th other modes of fishing. the abundance of yellowfin will decline, as will the resulting catch. 

The IDCP has been recognized as an innovative, successful and precedent·setting program, and is 

being used as a model for management and conservation programs for other fisheries in other areas. It is 

important for the health of the ecosystem of which the tunas and dolphins form part to continue the 

program and, wherever possible, improve it. 

There is, however, a very real danger that the program could collapse. The reasons for this are 

twofold: first, U.S. trade measures which restrict imports of tuna into the United States and also seek to 

limit trade between third party nations, and second, forcing national fleets to fish in a manner they 

consider to be ecologically unsound and detrimental to the health of the tuna fishery in the eastern Pacific. 

As regards the first reason, all nations with large vessels involved in the fishery are, with one 

exception, embargoed by the United States for failing to comply with U.S. standards for the protection of 

dolphins. Other nations have been likewise embargoed for trading in tuna with these embargoed states. 

Many of these nations, which formerly depended on the U.S. market for the sale of their fish, have 

developed alternative markets: in Mexico, for example, the annual domestic consumption of tuna has risen 

from less than 20,000 tons to more than 100,000 tons, which represents most of the national fleet's 

production. Nonetheless, these nations would still like to have the trade restrictions lifted, whether to ease 

the political tensions that embargoes create or because of the potential effect on the price of tuna. In 1991 

Mexico, contending, along with other embargoed nations, that the embargoes were in violation of the 

General Agreement on Trade and Tariffs (GATT), requested that the GATT Council establish a Dispute 

Settlement Panel to rule on the issue. The Panel found in Mexico's favor, but Mexico has yet to take the 

issue to the GATT Plenary. In the past two years, some of these nations have considered withdrawing 

from the IDCP, reasoning that they no longer have access to the U.S. market, are able to sell their product 

internally or abroad, and that their goodwill and diligent efforts to protect dolphins have gone 

unrecognized. 

Senate Hearing. 6/95-8 
51 

As regards the second reason, it is probable, as explained above, that efforts to restrict fishing on 

dolphins will result in more fishing on logs and schoolfish, which will be detrimental to the health of the 

ecosystem to which the tunas and dolphins belong. With current purse-seine methods and equipment, the 

result will be a major reduction in the productivity of the yellowfm stock; with no ftshing on dolphins, the 

catch of yellowfm would decline by at least 25%, and perhaps by more than 60%. As many as 10 to 25 

million small tunas would be thrown back into the sea dead every year because they were too small to be 

of commercial value. Additionally there would be very large discards of food fish such as mahi-mahi, 

sports fish such as marlin, sharks, and also sea turtles. Many of these species are important to other 

fishermen of coastal Latin America, as well as to recreational fishermen and ·the tourist industries of Costa 

Rica, Ecuador, Mexico, and Panama, and these high discards would almost inevitably hlive an adverse 

effect on these fisheries. · 

These nations maintain that prohibiting fishing on dolphins is contrary to sound principles of 

ecology and conservation, and is in direct opposition to the recommendations of the Rio. Summit, as 

expressed in Agenda 21, regarding biodiversity, ecological balance, and sustainable development. Not 

fishing on dolphins could well lead to a loss of biological diversity due to the large variety of discards and 

to ecological imbalance due to the large volume of these same discards, and overfishing the stock of 

yellowfin is incompatible with the concept of sustainable development 

At a meeting held last week in La Jolla, California, the governments of Colombia, Costa Rica, 

Ecuador, Mexico, Panama, and Venezuela issued a joint declaration {Appendix 2) urging the government 

of the United States to lift the primary and secondary embargoes imposed on the importation of tuna 

caught in association with dolphins in the eastern Pacific Ocean, and also to redefine the concept of 

''dolphin-safe" to include all tuna caught in accordance with the regulatory measures adopted within the 

framework of the La Jolla Agreement. They also expressed their concern that a continuation of the current 

situation might jeopardize the viability of the Agreement. 

The La Jolla Agreement was reached after several years of arduous and difficult negotiations, in 

which the United States took an active part The goals of the Agreement are in essence identical to those of 

the MMP A, and thanks to its success it is now an example for other international agreements for the 

conservation of such endangered species as whales and sea turtles. As pointed out above, it sets a number 

of precedents in such matters as the participation of all interested parties, including non-governmental 

organizations, the transparency of the regulatory program, the compliance by nations with the terms of the 

Agreement, and the placement of observers on all vessels involved in the fishery. It has been successful in 

reducing dolphin mortality to rates equivalent or dose to zero, while maintaining the tuna populations in a 

healthy condition. 

At a time when many of our marine resources are suffering the consequences of poor management 

or overfishing, we are in need of institutions and mechanisms that can restore these resources to good 

health and maintain them at levels which will ensure their sustainability in the future. The La Jolla 

Agreement and the International Dolphin Conservation Program have proven capable of fulfllling these 

goals, and it would be a tragedy to lose them. 

Senate Hearing, 6/95- 9 
52 

Table 1. Number and capacity of U.S.- and non-U.S.-flag vessels 

of greater than 400 tons carrying capacity. 

·U.S.-flag non-U.S.-flag Percent(#) 

Year Number Capacity Number Capacity U.S.-flag 

1960 3 1,700 100.0 

1961 9 4,824 100.0 

1962 12 6,565 100.0 

1963 18 11,475 100.0 

1964 20 12,679 100.0 

1965 21 13,329 1 800 95.5 

1966 20 12,964 800 95.2 

1967 24 15,656 100.0 

1968 30 20,737 7 5,700 81.1 

1969 44 29,153 5 3,700 89.8 

1970 57 39,467 8 5,286 87.7 

1971 71 56,287 13 9,538 84.5 

1972 84 73,804 18 15,593 82.4 

1973 94 85,625 26 25,032 78.3 

1974 103 97,871 29 28,174 78.0 

1975 112 111,358 34 32,532 76.7 

1976 112 112,754 46 44,899 70.9 

1977 109 111,075 52 49,924 67.7 

1978 98 102,586 58 57,173 62.8 

1979 98 102,739 60 59,480 62.0 

1980 94 97,866 70 67,281 57.3 

1981 98 102,118 68 66,865 59.0 

1982 95 99,002 58 55,976 62.1 

1983 68 74,718 55 53,155 55.3 

1984 44 45,416 61 59,977 41.9 

1985 43 44,482 74 76,104 36.8 

1986 39 .42,084 70 73,572 35.8 

1987 37 38,876 91 97,158 28.9 

1988 39 41,194 93 98,914 29.5 

1989 29 29,545 93 95,999 23.8 

1990 28 29,484 95 98,384 22.8 

1991 13 13,385 91 95,223 12.5 

1992 8 8,922 88 90,995 8.3 

1993 8 8,933 89 92,672 8.2 

1994 6 7,170 93 95,781 6.1 

1995 5 5,970 94 95,718 5.1 
53 

Table 2. Total number of trips made in the eastern Pacific Ocean during 198()-1995 by tuna purse-seine 

vessels of carrying capacity greater than 400 short tons, number of trips accompanied by observers from 

the IA 1TC and national programs, and combined sampling coverage. 

Year 

1980 

1981 

1982 

1983 

1984 

1985 

1986 

1987 

1988 

1989 

1990 

1991 

1992 

1993 

1994 

Total number 

of trips 

1995 {5/14) 

532 

447 

328 

248 

331 

381 

396 

473 

503 

543 

539 

425 

427 

441 

467 

186 

Trips sampled 

byiATIC 

66 

60 

48 

33 

24 

47 

94 

125 

159 

194 

223 

237 

279 

325 

341 

153 

Trips sampled by 

by national programs 

45 

37 

32 

0 

11 

23 

20 

80 

33 

73 

41 

26 

140 

115 

125 

33 

Combined sampling 

coverage {o/o) 

20.9 

21.7 

24.4 

13.3 

10.6 

18.4 

28.8 

43.3 

38.2 

49.2 

49.0 

61.9 

98.1 

99.8 

99.8 

100.0 
Dolphins 

Billfishes 

Large fishes 

Small fishes 

Sharks 

Rays 

Sea turtles 

Unid./Othrs. 

Invertebrates 

Table 3 . Bycatches in numbers of individuals per 1,000 tons of 

yellowfin tuna loaded for these different set types. 

1993 

Dolphin sets School sets Log sets Dolphin sets 

29.99 0.00 0.38 28.57 

5.16 11.93 94.36 3.40 

3.94 600.70 24,975.19 44.06 

241 .69 209.61 120,368.95 129.17 

105.50 198.21 2,525.90 17.98 

8.99 87.10 9.40 4.97 

0.52 1.75 5.46 0.59 

0.12 0.08 8.26 8.69 

2,548.17 2.403.73 437.52 4,350.46 

1994 ~ School sets Log sets 

0.27 0.00 

20.79 68.27 

1,247.40 58,920.64 

3,654.90 38,244.70 

294.39 1,447.58 

74.88 9.11 

0.63 2.58 

1.35 9.25 

4,048.11 8,011 .76 

-------
Table 4. Estimates of average dolphin abundance estimated by NMFS from research vessels, estimates of total 

mortality of dolphins caused by tuna fishing for 1994, estimates of potential biological removals (PBR) and zero mortality rate goal. 

STATUS OF ETP DOLPHIN STOCKS 

Using U.S. MMPA Criteria for U.S. Stocks 

STOCK N" PBR ZERO MORTALITY 1994 

(X 1,000) RATE GOAL MORTALITY 

Northeastern Spotted Dolphins 730.9 6,420 642 934 

Southern/Western Spotted Dolphins 1,298.4 11,323 1,132 1,226 

Eastern Spinner Dolphins 631.8 5,094 509 743 

Whitebelly Spinner Dolphins 1,019.3 8,598 860 619 

Northern Common Dolphins 476.3 3,437 344 101 

Central Common Dolphins 406.1 2,892 289 151 

Southern Common Dolphins 2,210.9 18,159 1,816 0 

*From Wade & Gerrodette (1993) 

g; 
Figure 1. 

Figure 2. 

Figure3. 

56 

LIST OF FIGURES 

Percentage length-frequency (and corresponding weights) of yellowfin tuna by school 

type. Vertical bar represents average size at which 50 percent are sexually mature (103 

ems or 49lbs); shaded curve represents proportion sexually mature by size. 

Yield-per-recruit of yellowfin tuna versus average weight of yellow fin in the eastern 

Pacific Ocean, 1974-1994. 

Total dolphin mortality, mortality per set and number of sets for the yellow fin tuna 

fishery in the eastern Pacific Ocean, 1986-1994. 
57 

20 ----------------------- 0.8 

15 ------- -------------- 0.6 

10 - - - - - - - 0.4 

5 0.2 

25 

School sets 

20 0.8 

15 0.6 

10 Percentage of the -----estell ------------- 0.4 

5 0.2 

0 

25 

Dolphin sets 

20 0.8 

15 0.6 

10 0.4 

6 0.2 

2.1 u u 1u 22.1 au 4<1.7 ae 11.1 111.1 1ZI.4 112.0 114.7 221.1 :aeu lbo 
YELLOWFIN - YIELD PER RECRUIT VERSUS AVERAGE WEIGHT - 1974 TO 1994 

7 

E-< 

H 

::::> 

p:; 

u 

fLl ~ ./· ~ ..., p:; .... "" p:; ~ ... w R> ~ p., 

0 

...:1 

fLl 

H 

>< 

5 

4-----------T---------~-----------r----------~----------r---------~----------~ 5 10 15 20 25 30 35 40 

AVERAGE WEIGHT 
59 

Figure 3 

140 

-

g 1al 

0 

>< 100 

-

>- :!:::: 00 

'ii 

t:: 60 0 

:E 40 'ii 

0 a> ... 0 

20-276 - 96 - 3 
60 

TESTIMONY OF TilE CENTER FOR MARINE CONSERVATION 

. Before the 

Subcommittee on FISheries, Wildllfe, and Ocuns 

Committee on Resources 

June 22, 1995 

Mr. CIWnnan and Members of the Subcommittee, tlumlc you for the opportunity 

to present our view~ on the provisions of the International Dolphin Conservation Act 

(IDCA) (Public Law 102-523). My name Ia Suzanne ludlcello; I am the VIce President 

for Prognms for the Center for Marine Conservation. Our atatement today Is also made 

on behalf of the Environmental Defense Fund, Greenpeace, National Audubon Society, 

National Wildllfe Federation, Whale and Dolphin CoNe!'Vation Society, and World 

Wildllfe Fund. 

In our testimony we will review the progress made to date to reduce dolphin 

mortality tmder the Marine Mammal Protection Act (MMPA) and the La Jolla 

Agreement; eumlne the unintended CONeqUenCeS of these current ronservation efforta; · 

and reamunend aome necessary <XIIIIpODG\ts f~ a lasting resolution to the problem of 

dolphinl drowning in the purse seine fishery for yellowfin tuna. 

PllOCRESS MADE UNDER TilE MARINE MAMMAL PROTEcnON ACf 

The National Marine Fisheries Service (NMFS) estimates that more than 6,110,000 

dolphinl have been ldl1ed in the roune of tuna purse aeine operations by U.S. and 

foreign fleets in the Eastern Tropical Pacific since 1959.1 The Marine Mammal Protection 

Act (MMPA) wu enacted in 1972 for the purpose of protecting marine mammals, 

lnduding dolphins, from the adverse effects of human activities. Dolphin death& In the 

Eutem Tropical Pacific (£11') purse aeine fishery for yellowfin tuna were among the 

driving factors behind the passage of the MMP A In 1972. The history of Congreuional 

action to addreu this isllue •pans more than twenty yean and lo aummari%ed In the 

Attachment to this testimony. 

In our opinion the MMP A hu been IUali!SSful. The provisions of the Dolphin 

Protection Conlumer Information Act (DPCIA) have cruted c:onswner .~ to 

redw:. dolphin mortality through the dolphin Nle labellnJ p-ogram. The International 

Dolphin Conservation Act (JDCA), wu aimed at the reduction of dolphin mortality by 

attempting to apur the establls!unent ol an effectiw multinational regime for dolphin 

protection. These requirements under the MMPA..lmpro~IS In gear design and 

flshlng operationa, dolphin releue methoda, and Implementation of the multilateral 

1 Federal Jle&istor, Vol. '51, No. 117, ps- 27010, June 17, 1992 

1m DeSIIes 5aee1. NW. Sle. '500 Washlncton. D.C. 20036 1202)C29-5609 Telefu 1:!o21 572.()619 

() Prio&cd on IOCM poll-<OGIUIMC. unbiached. rcqded paper 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

61 

program to reduce dolphin mortalities, known as the La Jolla Resolution/ Agreement, 

have resulted in significant reductions in dolphin mortality from 423,678 in 1972 to 4,()95 

in 1994.' 

PROGRESS MADE UNDER 1HE LA JOLLA AGREEMENT: 

The 1984 and 1988 amendments to the MMPA that resulted in the embargo of 

tuna from several of the foreign tuna fishing nations, and the passage of the DPCIA, 

provided a strong impetus for the foreign fleets to take deliberate action to reduce 

dolphin mortality, which at that time still remained at 47,000 to 84,000 animals per 

year.' On June 18, 1992, the Inter·Ainerican Tropical Tuna Commission (IATTC) 

adopted a non·binding multilateral program-the La Jolla Resolution/ Agr.eement-to 

reduce dolphin mortalities in the ETP. The membership of the IATTC consists of nations 

that either fish for, or purchase large quantities of ETP·tuna: U.S., France, Japan, 

Venezuela, Panama, Costa Rica, Nicaragua, and Vanuatu. In addition, four non·member 

nations that fish in the ETP ratified the resolution: Mexico, Colombia, Ecuador, and 

Spain, and two mell\ber nations did not-France and Japan. 

The La Jolla:Resolution/ Agreement contains the following provisions: (1) limit 

dolphin mortalities ln the ETP tuna fishery, from 19,500 mortalities in 1993 to fewer than 

5,000 annual mortalities by 1999; (2) require that these limits be assigned on a per-vessel 

basis, and that a vessel cease fiShing .when it reaches its quota of dolphin deaths; (3) 

establish an international research program and scientific advisory board to coordinate, 

facilitate, and guide research directed at reducing dolphin mortalities; (4) require 

observers on all purse seine vessels; and (5) establish an international review panel to 

monitor compliance by the international fleet with the annual dolphin mortality limits.' 

The program established w;der the La Jolla Agreement and implemented by the 

IATI'C has been extremely effective. In 1993, the first year of the program, dolphin 

mortality for the international fleet was reduced to only 3,601 animals-almost 12,000 

' Marine Mammol Convnission Annual Report to Congn.ss 199f, Marine MaRunal Commloslon. 

1825 Connecticut Avenue, N.W., Washington. D.C :10009, January 31, 1995. 

) Ibid. 

• The Marine Mammol Commission Compmdlum. of Select Tnsties, lntemaOONI Ag.-nents. 

and 00... Relevant Documents on Marine Resources. WUdlife, and the EnviJOnmenL Volume D. Page 

1174, 1369. 

.2 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

62 

animals fewer than the 1992 mortality levels and well below the 1999 dolphin mortality 

target of 5.000 animals. 

1 The program experienced 1imiJar success In 1994, with dolphin 

mortality at 4,()95 animals.' However, as later sections of our testimony point out, the 

current international management regime needs to be improved and strengthened to 

assure mntinued progress In preventing dolphin deaths. 

UNINTENDED CONSEQUENCES OF CURRENT CONSERVATION EFFORTS: 

Despite the outstanding record of the U.S. and International program-a more than 

95'11\ decline In dolphin mortality over the past five years-there have been unintended 

contequences assodated primarily with the comparabWty standards of the MMPA and 

the IDCA. 

In the late 1970s and 1980s, the US. fleet declined and the number of foreign 

vessels participating In the purse seine fishery grew. By the late 1980s, the foreign purse 

seine fleets In the ETP-primarily those of Mexico and Venezuela-numbered more than 

90 ve:sseb.' U.S. ftahennen, noting the level ol dolphin kiiJa by thae foreign fleets in 

the BTP, requested that Congress focus on limiting foreign fleet dolphin mortality as an 

issue of equity. This, in oonjunction with widespread public conc:em over the protection 

of dolphin stocb, led the Congress to amend the MMPA In 1964, 1988, and in 1992, 

aWninating with the IDCA, In an effort to axnpel the foreign fleets to reduce their 

dolphin mortality and halt the practice of setting nets around dolphins. 

The 1964 amendments required foreign nations exporting tuna to the U.S. to 

provide evidence that the exporting oountry had adopted a dolphin conservation 

program comparable to that of the US. and that the average rate of dolphin mortality 

in Its fleet was comparable to the U.S. The 1988 amendments to the MMPA specified 

required elements to be contained In a dolphin conservation program In order for it to 

be considered comparable (See Attachment £« further details). 

1825 Connecdaat 

5 M.nne 

Avenue. 

Mammol 

N.W

ComatUolon . Woohlngton. 

Annul 

D

Report 

.C 20009

to 

. 

Const-1996

January 31, 1995

. M.nne 

. pp 116-125

Mammol 

. 

~ 

' Minut& ol the 55th Annuol Meeting ol the "'-American Troplal TUNI Conu!liooion.. La Jolla, Colifomlo, June 13-15, 1995. 

1 Morine-Commlllion Annuol Report toeong.-1996. M.nne Mammal~ 

1825 Connectlaat Avenue. N.W. Woohlngton. D.C 20009. January 31, 1995. pp 116-125. 

3 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

63 

In August of 1990, Me co's yellowfin tuna was embargoed under the 

comparability provisions. In acco ance with the procedures of the General Agreement 

on Tariffs and Trade (GATT), M ·co then challenged the U.S. eU>bargo, claiming it to 

be an unfair trade practice. In Se tember 1991, a dispute panel convened by the GATT 

issued a preliminary report sup rting Mexico's challenge.' 

The 1988 amendments to MMP A require the government of any intermediary 

nation from which yellowfin tuna r tuna products will be exported to the United StateS 

to certify and provide reasonable proof that it has acted to prohibit the importation of 

tuna and tuna products from em goed nations. A separate challenge to the embargoes 

associated with the intermediary ~J&tions was filed under GATT in 1992 by the European 

Community and the Netherlands.\acting on behalf of the Netherlands Antilles); claiming 

the intermediary embargo cons~tuted an unfair trade practice. The dispute panel 

proceedings were suspended to ijllow time for consultations under the IDCA, in hope 

of a possible resolution. When~e cons·. ultations failed to resolve the dispute, the 

European Community and theN erlands proceeded with their challenge, and in May 

1994, the dispute panel issu a report supporting the European Community's 

challenge.' Both panel rulings "'!ve yet to be considered for adoption by the parties to 

the GATT. . 

The purpose of the IDCA, -lvruch further am~ded the U.S. tuna-dolphin program. 

was t.o promote international dolbhin protection and resolve the GATT trade issue. The 

!DCA called upon the Seaetary of State, in consultation with the Seaetary of Commerce, 

to enter into international agreements to establish a global moratorium of at least five 

years duration on harvesting tuna by setting purse seine nets on marine mammals. A 

tuna-fishing nation that formally committed to the moratorium and that met other 

applicable requirements (See Attachment for further details) would not be subject to an 

embargo of its tuna. The moratorium was to take effect on March 1, 1994.10 After 

passage of the !DCA, under the Bush Administration, no tuna-fishing nation committed 

to the global moratorium. In addition, under the Clinton Administration, the State 

Department has not actively pursued negotiations to secure commitments from foreign 

• House of Represenlatiws. Report together wilh Dissenting Views of lnlemadonal Dolphin 

Conservation Act of 1992. Report 102-746 • 

. 

9 Marine Mammal Commisoion AMual Report to Congress 1994. M.!rine Mammal Commission. 

1825 Connectitut Avenue, N.W., Washington. D.C. 20009. Janua'Y 31, 1995. pp 116-125. 

10 Ibid. 

4 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

64 

tuna-fishing nations to adhere to the global moratorium. Consequently, the !DCA by 

itself has not been able to compel multilateral action among ETP fishing nations. 

Without the international commitment to the global moratorium, many provisions of the 

!DCA are, as a practical matter, ineffective. 

The United States chose legislative action in the past in hopes of catalyzing a 

multilateral solution to the tuna-dolphin problem. As a consequence of the policy, 

progress has been made towards the establishment of an effective international regime, 

the practical effect of which has been a sharp reduction in the level of dolphin mortality. 

However, as we point out in the preceding paragraphs, the political durability of the 

current unilateral approach is in question. In addition, there is early evidence that 

certain bycatch of other spedes may be exacerbated if US. law causes a widespread shift 

to dolphin safe fishj.ng methods. 

These remaining issues cannot be resolved through precipitous legislative action. 

Accordingly, we oppose reopening the MMPA at this time. Rather, we support the 

establishment of a multinational process to resolve the outstanding issues through 

discussion among all the stalceholders in the coming months, and stand ready to 

participate in such a process. 

The 1994 Amendments to the MMPA were a carefully crafted consensus, struck 

among members of the conservation and commercial fiShing communities. Further, since 

the amendments to the MMP A were signed into law just over a year ago, they have yet 

to be fully implemented. We are opposed to any action that could potentially jeopardize 

the consensus embodied in the Act or that would undermine successful implementation 

of the MMPA. 

We recognize, however, in light of the overall success of the U.S. and international 

program and the unintended consequences outlined above, that it may be advisable to 

move on to crafting a lasting solution to the tuna/ dolphin problem. This should only 

be undertaken in the broad context of the need for a binding multilateral resolution, a 

shift to conservation of marine ecosystems and biological diversity, and maintaining 

consumer confidence. These are all issues that go beyond simply amending US. law, 

and that will require the active participation of all the stakeholders on the tuna/ dolphin 

issue. 

5 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

65 

NECESSARY COMPONENTS FOR LASTING RESOLunON OF THE 

TUNA/DOLPHIN PROBLEM: 

The tuna/ dolphin problem will require a comprehensive approach with the active 

participation and commitment of aU the stakeholders-intemational .and domestic. At 

minimum, any solution must establish mechanisms to adequately address the following 

three areas: (1) conservation of the ecosystem and marine biological diversity in the ETP; 

(2) establishment of international conservation and management of tuna and dolphin 

stocks; and (3) maintenance of consumer confidence. 

Conservation of the Ecosystem and Marine Biological Diversity in the ETP: 

Recent preliminary data indicate that fishing methods for yeUowfin tuna-such as 

log and school sets-that do not involve setting nets around dolphins may have a· 

substantial bycatch of non-target species and juvenile tuna. Table 1 suuunarizes bycatch 

data from the IATTC for all species incidentally caught by the various methods used to 

harvest yeUowfin tuna. .Species of particular concern in this table are those that 

reproduce more slowly than other ~pedes-sharks, billfish, and sea turtles. 

Studies by Dr. Elizabeth Edwards at the National Marine FISheries Service's 

Southwest FISheries Science Center reinforce concerns about the bycatch of tuna. 

"Observed tons of tuna discarded per set (aU tuna species combined) from U.S. tuna 

purse seine vessels fishing in the £TP during 1989-1992 were two orders of magnitude 

higher for sets made on floating objects (log sets) than for sets made on dolphins 

(dolphin sets) and one order of magnitude higher than for sets made on pure schools 

of tuna (schoolfish sets). Estimated average discard was 7.D-15.0 tons per set on logs, 1.D1.2 tons per set on schoolfish, and 0.06 tons per set on dolphins, depending on the 

geographic area. "

11 

While this data gives cause for concern, claims that increased fishing on logs or 

schoolf1Sh could reduce the catch of yeUowf"m tuna and cause severe declines in the 

fishery may be premature, inasmuch as there has been no pronounced shift to "dolphin 

safe'' fishing methods such as school and log sets. In fact, the number of sets on dolphin 

11 Director's Report to the 45th Tuna Conlerenoe On Tuna and Tuna-Related Activities at the 

Southwest F-..sheries Science Center for the Period May I, 1993 to Apri130, 1994. Nallonal Marine Pisheries 

Service, Southwest Fisheries Science Center, P.O. Box 271, La Jolla, CA 92038. Administrative Report LJ-94-

05. 

6 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

66 

has remained relatively unchanged between 1988 and 1992 (1988-10,515; 1989-12,580; 

1990-10,571; 1991-9,482; 1992-10,326). There was a decline in sets on dolphins in 1993 

(6,953) and 1994 (7,715).u Current data for the first part of 1995 lndlcate that the 

number of dolphin sets was about 20 to 25 percent greater than during the same period 

of 1994. If this trend continues, the number of sets conducted on dolphins will number 

between 9,300 to 9,500, similar to the number of sets prior to 1993. Further, fishing for 

dolphin-associated fiSh accounted for about 60 to 70 percent of the yellowfin catch 

during 1986-1994." In addition, no dear trends are evident in either sets on. schools 

or logs during the same period. Finally, the average size of yellowfin tuna caught has 

not changed. 14 Accordingly, the data do not support a rondusion that there has been 

a significant shift to dolphin safe fishing methods or that dolphin safe requirements are 

resulting in a decline in the tuna stock. 

Nevertheless, we believe that these bycatch data sound a cautionary note-both 

for the stocks of tuna and the overall biodiversity of the ETP ecosystem-concerning 

"dolphin safe" fishing methods (especially if a widespread shift to dolphin-safe fishing 

methods were to occur as a result of the lOCAl and that these data should be evaluated 

further. Therefore, we call upon the Administration to conduct an independent 

international scientific peer-review of this bycatch data to examine study methods, 

identify data gaps, review Its conclusions, and make recommendations for future 

research. A similar peer-review was conducted in 1993 to evaluate the Revised 

Management Procedure of the International Whaling Commission." 

According to the United Nations Food and Agriculture Organization, most of the 

world's fisheries are either fully- or overexploited. By contrast, the ETP ecosystem is 

relatively healthy. Tuna populations are stable, recruitment has increased, and, catches 

have been well below the Commission's projected amount-an annual harvest in the 

range of 300,000 short tons. The 1993 and 1994 catch of yellowfm tuna was well below 

12 Minutes of the 541h and 55th Annual Meeting of the lnlor-American Tropical Tuna 

Commioolon. La Jolla, CalilomiL ~ 199t and June 1995. 

13 Minutes of the 54th and 55th Annual Meeting of the Inter-American Tropical Tuna Conunission. 

La Jolla, California. October 199t and June 1995. 

14 Ibid. 

15 Feder.ll Registe<, Vol. 58, No. 134, pg. 38118, July IS, 1993 

7 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

67 

this at 249,200 short tons and 233,822 short tons respectively.'• We should encourage 

the Commission to continue its conservation record on behalf of the tuna stocks. 

Recent reports also indicate that all of the dolphin stocks associated with the 

yellowfin tuna fisheries are stable or increasing. Total dolphin mortality for 1994 was 

4,095 animals.

17 Mortality, expressed as a percentage of abundance, was 0.13% and 

0.09% for the northeastern and western-southern stocks of offshore spotted dolphin, 

0.12% and 0.06% for the eastern and whitebelly stocks of spinner dolphin, 0.02%. 0.04%, 

and 0.0% for the northern, central, and southern stocks of common dolphin." At these 

mortality levels the population should continue to experience growth over time given 

an estimated net rate of reproduction for dolphin stocks in the .IITP of approximately two 

percent arinuaUy.

19 Nevertheless, additional progress is necessary as these low levels 

of mortality still do not meet the stated goal of the La Jolla Agreement of "eliminating 

dolphin mortality in this fishery ... "."' 

We believe that an ecosystem-based approach is essential. Accordingly, any 

solution must minimize bycatch, achieve further reductions in dolphin mortality, and 

ensure the continued health and growth of both the tuna and dolphin stocks. In 

addition, we want to be sure that the IATI'C is ready and capable to manage this fishery 

and prevent any increases in dolphin mortality in the event that changes in the overall 

regime causes an increase in effort in the fishery. 

16 Minutes of the 54th and 55th Annual Meeting of the Inter-American Tropical Tuna 

Commission. La Jolla, California. October 1994 and )tme 1995. 

17 Report of the Scientific Commi-, 47th Annual Meeting of the International Whaling Commission. Dublin, Ireland, May/June 1995. 

11 Ibid. 

" Ibid. 

20 Tbe Marine Manunal Commission Compendium of Select ln!eties, International Agreements, 

and Other Relevant Documents on Marine Resources, Wildlife, and the EnvirorunenL Volume n. Page 

1174, 1369. 

8 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

68 

Establislunent of a Binding International Conservation and Management Regime for 

Tuna and Dolphin Stocks: 

Despite the striking success of the La Jolla Agl'eement, it is, nonetheless, a nonbinding resolution. The signatories to the La Jolla Agreement should be complimented 

for their staunch commibnent to its implementation. However, the unanticipated success 

of the La Jolla Agreement requires that the signatories to this agreement revisit the 

Agreement as a whole, especially the dolphin mortality reduction schedule. For the past 

two years, the parties who participated in the intergovernmental body of the IATI'C with 

oversight responsibility for the La Jolla Agreement have failed to revise the dolphin 

mortality limits for 1994 and 1995 to more accurately reflect the real mortality in the 

ftshery and provide for further progress in the future. 

The member nations of the IATTC Convention and the La Jolla Agreement must 

undertalce action to ensure that the La Jolla Agl'eement is made into a legally binding 

protocol and that the Convention is atrengthened to be a truly effective long-term 

effective conservation and management tool for the ETP ecosystem. In addition, we strongly believe that all nations wishing to fish in the ETP must be members of the 

IATI'C. 

Fmally, both the Agreement and the Convention should be evaluated for their 

ability to conserve and manage tuna stocks and prevent an increase in mortality of 

dolphins or other bfcatch spedes should additional vessels enter or re-enter~ fishery. 

The Agreement and the Convention provide models, particularly in their commitment 

to NGO participation, for other international fishery management regimes. We urge the 

Administration to support the continued existence of the lA TI'C and to undertalce 

measures to ensure that the IATTC is strengthened and will remain a viable regional 

conservation and management body. 

The Need to Maintain Consumer Confidence: 

When dolphin mortality continued at fairly high levels after the 1988 amendments 

to the MMPA, Congress responded to the renewed public: outay with a bill entitled the 

"Dolphin Protection Consumer Information Ad of 1989." Initially, the bill would have 

required that all tuna products caught using either purse aeine nets on dolphins or drift 

gillnets, bear the statement "The tuna in this product has been captured with 

9 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

69 

technologies that are known to kill dolphins." All other tuna products would bear the 

statement "Dolphin Safe. '~1 

Faced with threatened consumer embargoes, responding to public pressure, and 

recognizing the opportunity for a "green" marketing strategy, the major tuna canners 

took steps to preempt expected adverse market impacts of the proposed legislation. On 

April12, 1990, StarKist Seafood Company, a division of H.J. Heinz Co., announced that 

it would no longer purchase any tuna caught in association with dolphins and that it 

would begin labeling cans of StarKist tuna with "dolphin safe" symbols. Van Camp 

Seafood (Chicken of the Sea) and Bumblebee immediately announced that they would. 

adopt the same "dolphin· safe" purchasing practice with other processors and canners 

(such· as Pan Pacific and Kraft General Foods) adopting the dolphin safe policies.

22 

In response to these voluntary actions, Congress enacted the "Dolphin Protection 

Consumer Information Act" in 1990, establishing criteria for labeling canned tuna 

products as "dolphin safe." To label tuna caught in the ETP as "Dolphin Safe, it (1) must 

have been caught by a vessel too small to deploy its nets on dolphins; or (2) must be 

accompanied by a certification from a qualified observer that no dolphin sets were made 

for the entire trip on which the tUna was caught; or (3) cannot have been harvested 

using a large-scale driftnet.

22 Further, under the IOCA, effective June 1, 1994, it became 

illegal for any person to "sell, purchase, offer for sale, transport, or ship, in the United 

States, any tuna or tuna product that is not dolphin safe." 

U.S. consumers have grown accustomed to the dolphin safe !abet and market. As 

a practical matter, maintaining consumer confidence is essential to promoting the stable 

political and commercial climate that is a requisite for a workable and lasting solution 

to the tuna/dolphin problem. Consumer confidence will be undermined by piecemeal, 

precipitous attempts to deal with these complex questions. For these reasons, we 

support a multinational process for resolving this problem that involves all stakeholders, 

including the canners and consumer representatives. 

21 Howe of Repreoentatives. Report logelher with Additional Dissenting Views on the Dolphin Pro-.. Consumer lnfonnation Act of 1990. Report 101-679. 

Ibid. 

2l lbtd. 

10 
Testimony of the 

Center for Marine Conservation 

June 22, 1995 

70 

In summary, both the MMPA and the La Jolla Agreement remain effective 

conservation regimes. Although, the time may be ripe to revisit the tuna/ dolphin issue, 

we should not repeat the mistakes of the paat by unilaterally legislating a potentially 

short-sighted response to the problem. Instead of embarking on immediate legislative 

changes, before all the consequences have been fully considered, we urge the Committee 

and the Administration to use their good offices to bring all of the stakeholders together 

to develop a lasting solution-one which takes a multilateral International approach, 

promotes conservation of marine ecosystems Uld biological diversity, and maintains 

consumer confidence. We strongly believe that a long-term conservation and 

management regime for tuna and dolphin atoclcs can only be achieved by this process, 

and we are committed to working with the Congress and affected parties to move 

forward with such a process. 

11 
TABLE I. S1 OF BYCATCH DATA OF MARINE SPECIES FOR SETS CQI''f)UCJl!D ON SCHOOLS, LOGS, AND DOLPHINS. 

SPECIES BYCATCH PER 1.000 TONS OF TUNA BYCA TCH PE" 1.000 TONS OF YELLOWFIN BYCATCH OF INDIVIDUAL SPl-.riS 

LOADED LOADED PER 10.000 SETS 

Sdlool Sets Log Sets Dolphin Sets Sdlool Sets Log Sets Dolphin Sets School Sets Log Sets Dolphin 

(ns1,309/ Ctl-t'¥1/ (n• 11/J7/ Ctl• 1.309/ C11-t97! (n• lliJ7/ (n=1,309) Ctl=497) Sets 

na2,317) n=702) n=2,447) n=2,317) n=702) na2,447) (n•l,697) 

DolphiN <0.1 0.1 29.0 <0.1 0.4 29.2 8 31 5,1)00 

<0.1 0.1 30.6 <0.1 0.5 30.9 

SINII tunas 38,598.6 432.934.8 8.770.2 51,197.9 1,468)39.4 8,825.5 4780.000 111,170.000 1,510.000 

35)67.1 401,150.8 8,933.1 50,201.5 1,504,1)81.6 9,()23.0 

Mohi Mahl 11.8 2;172.7 2.1 15.7 7)07.7 2.1 1.468 616.298 365 

32.2 2)83.5 2.4 45.2 10.429.0 2.4 

Sharks 81.2 869.9 28.4 107.8 2,950.2 28.5 10,1)61 235,891 4,873 

399.1 545.0 63.3 560.2 2.042.0 63.9 

.Wohoo 1.7 425.0 0.1 2.2 1,441.5 0.1 206 115,260 23 

2.2 1,135.0 0.6 3.1 4,252.3 0.6 -;:a -

Rolnbow 1.9 1463 2.5 496.0 229 39,661 Runners 

1.0 149.4 u 559.6 -

Other sm. fish 16.9 53.0 2.0 22.4 179.8 2.0 2,1)93 14,379 336 

57.1 1,()29.8 20,9 80.1 3,858.5 21.1 

Billflsh 19.9 30.1 4.8 26.4 102.2 4.9 2.468 8,169 831 

16.9 303 4.0 23.7 113.7 4.1 

Yellowtoll 03 35.0 0.1 0.4 118.6 0.1 38 9.481 18 

127.7 62.5 0.7 179.3 234.1 0.7 

S. Turtles 3.7 2.4 0.5 4.9 83 05 458 664 83 

2.6 1.8 0.6 3.6 6.6 0.6 

Other Irs. fisl\ 75 13.2 10.0 44.6 932 3,567 

6.6 28.2 9.2 105.6 -

Trigger fish 2.1 93.0 2.8 3153 260 25,214 

8.64 1,310.8 - 12.1 4,911.0 

-· -
72 

TBSTl:KOIIIY OP 

JAKES P. WALSH 

REPRESBNTl:NO THB 

AKERl:CAN TUNABOAT OWNERS COALITl:ON 

BEPORE THE 

COKKITTBE ON RESOURCES 

0. S. HOOSB OP REPRESENTATIVES 

overaiqht Hearinqs on Tuna/Dolphin Issues 

June 22, 1995 

Thank you and good morning Mr. Chairman and Members of the 

Committee: 

My name is James P. Walsh and I am a partner in the law firm 

of Davis Wright Tremaine based in its Washington, D.C. office. 

Prior to practicing law, I was Staff Counsel and then General 

Counsel of the u.s. Senate Committee on Commerce, science and 

Transportation from 1972 to 1977 when it was chaired by the late 

Senator Warren G. Magnuson of Washington State. In 1978, I was 

appointed to serve as Deputy Administrator of the National 

Oceanic and Atmospheric Administration and continued in that 

position until the fall of 1981. 

Throughout my 23-year career as public servant and private 

attorney, I have remained deeply involved in a wide variety of 

issues of national ocean policy. One of those issues is the 

manner in which Federal law, primarily the Marine Mammal 

Protection Act ("MMPA"), addresses the problem of protecting 
73 

dolphins encircled in the course of capturing large yellowfin · 

tuna in the eastern tropical Pacific Ocean. The tunajdolphin 

controversy has been a core environmental issue in this country 

since Earth Day in 1970 and a mainstay rallying theme for the 

environmental movement both in terms of the publicity it receives 

and the contributions it generates. I have been active in the 

tunajdolphin controversy continuously since 1972, including at 

·one time serving as a mediator in negotiations between the tuna 

industry and the environmental community in the mid-1970s when I 

was on the Senate staff. 

On behalf of my clients, the owners of U.S.-flag tuna purse 

seine fishing vessels in the American Tunaboat owners Coalition, 

I wish to thank Chairman Don Young for scheduling this oversight 

hearing on tuna/dolphin issues. As those issues stand today, it 

is both timely and appropriate for Congress to hear of the great 

strides made by U.S. and foreign fishermen in protecting dolphin 

populations in the eastern tropical Pacific Ocean ("ETP"). This 

tuna fishery--developed entirely by American ingenuity but mostly 

foreclosed to American tunaboats now--has become the most heavily 

regulated fishery in the world largely owing to public concern 

over dolphins. Perhaps a well-informed and judicious Congress 

will finally declare that tuna fishermen have achieved the 

original goal of the MMPA set down in 1972: to reduce incidental 

marine mammal mortality in fishing operations to levels 

approaching a zero mortality and serious injury rate. The 

testimony presented today will confirm the factual basis for this 

2 
74 

conclusion. Tuna fishermen have always accepted this statutory 

goal. 

On the other hand, I and my clients are not terribly 

sanguine about how they will be received because of the manner in 

which tuna/dolphin legislation has developed in the past. As 

author Greg Easterbrook so aptly observed in his article in the 

April 10 New Yorker Magazine: "[T]he vocabulary of 

environmentalism has continued to be dominated by images of 

futility, crisis, and decline." In 1992, I attended a 

tuna/dolphin meeting in which the representative of the 

Environmental Protection Agency spoke of the need to protect 

endangered dolphins. Just last month, an article written for the 

Los Angeles Times also referred to these dolphins as endangered. 

Yet none of the dolphin populations affected by the ETP tuna 

fishery, which number over 9 million, has ever been listed as 

threatened or endangered under the Endangered Species Act 

("ESA"). Despite the health of these dolphin populations, 

Federal law today seeks to protect them to an even greater extent 

than threatened or endangered species or even marine mammals 

incidentally caught by fishermen in our domestic fisheries.!' 

l/ Last year, Congress amended the MMPA to create a new provision governing the management of marine mammal that might be 

taken in domestic fisheries. 16 u.s.c. § 1387. This provision does not ban any particular type of gear or fishing practice, limits taking to levels known as potential biological removals 

(PBRs), and generally balances the regulation of fishing activities and the protection of marine mammals. Under certain 

circumstances, threatened and endangered marine mammals may be 

taken in domestic fisheries under these amendments. 

3 
75 

We know all too well that the emotion generated by the 

tuna/dolphin controversy easily blinds good science, common 

sense, and wise policy. some will also say that because the tuna 

fleet is so small in number (although certainly not in fishing 

productivity or annual value),V its concerns should be ignored, 

as if numbers alone determine whether a minority of Americans 

deser*es fair treatment under this nation's Constitution and 

laws. Nonetheless, we fervently hope--based on the unassailable 

scientific information that will be presented at this hearing--

that Congress will this year enact legislation to create an 

enduring and reasonable solution to this problem that is based on 

international cooperation and solid scientific management and 

that will also be fair to our fishermen. 

While some may believe it the only "politically correct" 

approach to take , maintaining the ban on encircling dolphins in 

the 1992 International Dolphin Conservation Act~' is bad 

ecological policy, ignores the benefits of scientific management, 

11 Currently, 47 long-distance tuna purse seine vessels 

comprise the u.s. tuna fleet. Each _vessel is approximately 1,200 

tons in size, has facilities for launching helicopters to locate 

fish, and uses a net that is a mile long and 600 feet deep. In 

1993, total u.s. vessel tuna landings were 488 million pounds worth $270 million. In contrast, in that same year, the North 

Atlantic trawl fishery (which includes all groundfish in the New 

England, Middle Atlantic, and Chesapeake regions) landed 193 

milli on pounds valued at $156 million. 

1/ This legislation was enacted in 1992 with the expectation that Mexico and Venezuela had agreed to a "global moratorium" on the practice of encircling dolphins. Neither country--in fact no country in the world--has agreed to such a moratorium. 

Nonetheless, that legislation makes it illegal to sell tuna 

caught by encircling dolphins in the u.s. 16 u.s.c. § 1417. 

4 
76 

fails to accept the realities of the world's need for sustainable 

protein, will harm the tuna stocks and force bycatch of other 

species, punishes u.s. tuna fishermen for achieving the goals of 

the MMPA, creates trade conflicts wholly out of proportion to the 

purported environmental problem at hand, and undermines 

international cooperative management called for in the 1992 Rio 

Declaration on Environment and Development. It is truly time for 

the dolphins' supporters to declare victory and concentrate their 

attention on other more critical environmental problems. 

A Brief Recent History of the Key Issues 

The MMPA of 1972 placed in motion a significant regulatory 

and research program aimed at providing greater protection to 

marine mammals taken~ during commercial fishing operations by 

u.s. fishing vessels fishing anywhe re in the world and by any 

foreign or domestic fishing vessel operating in U.S. waters out 

to 200 nautical miles. By 1978, the incidental mortality of 

dolphins caused by u.s. fishermen using tuna purse seine nets had 

been reduced to below 20,000 animals through a comb i nation of 

special paneled nets (the Medina panel) and operational 

procedures (backdown, divers in the net) developed by the 

fishermen themselves.~ All fishing by American vessels was 

governed by a plethora of regulations, a system of boat and 

!/ The term "take" means to harass, hunt, capture, or kill, or 

to attempt to harass, hunt, capture, or kill any marine mammal. 

~ Attachment 1 is an excerpt discussing the tuna/dolphin issue 

from the 1994 Annual Report of the Marine Mammal Commission. 

Table 8 in that report details the history of mortality in this 

fishery since 1972. 

5 
77 

operator permits, and eventually an observer on every vessel. 

During this time, the National Marine Fisheries service ("NMFS") 

conducted an extensive regulatory/enforcement program and gave 

out hundreds of civil penalties for violation of even the 

smallest of these regulations, including when a particular tuna 

"set" resulted in no dolphin mortalities. Throughout this 

period, NMFS also expended millions of dollars investigating the 

status of the affected dolphin populations and the agency still 

expends considerable funds for this purpose. 

Congress in 1984, as a result of the success of our 

fishermen, made the permit restrictions on the U.S. tuna fleet a 

matter of statutory law, obviating the need for expensive regular 

administrative hearings on the status of dolphin stocks and 

fixing the annual quota for dolphin mortality at an upper limit 

of 20,500. Congress also directed that a 5-year study of 

population trends be undertaken to determine the biological 

impact of purse seine fishing on the affected dolphin stocks.~' 

The original method of determining impact on the stock--through 

calculations of "optimum sustainable populations"--was considered 

to be unreliable because those calculations depended heavily on 

use of a statistically inadequate pre-exploitation database.V 

~ At the conclusion of that study by NMFS, it was determined 

that all affected dolphin stocks were either stable in size or growing. Gerrotte and Wade (1992). 

11 Report of the House Committee on Merchant Marine. and 

Fisheries to Accompany the Marine Mammal Protection Act 

Reauthorization for FY 1985-86 (H.R. 4997), 98th Cong., 2d Sess., 

5. Optimum sustainable population is not a biological concept 

but a legal one invented in the MMPA. 

6 
78 

At about the time Congress amended the MMPA in 1984, foreign 

tuna fleets, particularly those of Mexico and Venezuela, began to 

expand into this important tuna fishery. Unfortunately, 

inexperienced captains caused their dolphin mortality in the 

fishery to increase to 112,482 animals in 1986, resulting in 

public outrage. As a consequence, Congress further amended the 

MMPA in 1988 to force a reduction in this mortality through 

embargoes on any fishing nation that did not have a dolphin 

protection program comparable to that of the u.s. in which the 

mortality rate was no more than 1.25 times the u.s. rate . Any 

country that failed this test was subject to a "primary" embargo 

on its tuna exports to the u.s. market.~' In addition, any 

country that purchased tuna had to establish that it did not buy 

from a nation subject to a primary embargo (the "secondary" 

embargo provision). 

In 1990, the major tuna processors in the United States 

adopted a "dolphin-safe" policy and refused to buy from any 

source tuna that was caught by encircling dolphins in purse seine 

nets, regardless of whether the catching vessel was in compliance 

with the MMPA or not. For independent u.s. vessel owners, this 

decision came as a shock and forced most of them to move their 

fishing operations to areas in the Pacific Ocean covered by the 

South Pacific Tuna Treaty.~' Moving to that area required the 

~ Pub. L. 100-711, the Marine Mammal Protection Act Amendments 

of 1988. 

if South Pacific Tuna Act of 1988 (Pub. L. 100-330); codified 

at 16 u.s.c. 973-973r. 

7 
79 

owners to invest about $1 million per vessel to deepen their nets 

and increase power on 'the net retrieval mechanism for South 

Pacific operations. At the time, vessel owners were also told 

(including by members of Congress) that a premium would surely be 

paid for all tuna that was "dolphin-safe." In November of that 

year, Congress enacted the Dolphin Consumer Protection 

Information Act to create a labeling standard for any tuna 

product that was advertised as "dolphin-safe" and to make 

improper labeling a violation of the Federal Trade Commission 

Act.llV Under that law, only tuna caught without encircling 

dolphins can be labeled as "dolphin-safe," but such labeling is 

entirely voluntary.!V 

one other additional very important event occurred in 1990 . 

By now, most of the U.S. fleet had moved out of the ETP and the 

large~t tuna fleets were those o~ Mexico and Venezuela. Mexico , 

deeply upset about the closing of the u:s. market to its fish, 

requested the creation of a dispute settlement panel under the 

auspices of the General Agreement on Tariffs and Trade ("GATT") 

to determine if the primary embargo provisions of the MMPA were 

consistent with the GATT Agreement. In 1991, the GATT dispute 

.1.Q/ Pub. L. 101-627. This law is unique in setting a "green" label requirement unrelated to the standards of protection then 

in place under the MMPA or the ESA. The Commerce Department also 

created. a system of regulations and penalties to enforce the law. 

50 C.F.R. Part 247. 

ll/ In actual practice, however, the consumer does not get a choice. Using this labeling law and the threat of demonstrations 

and boycotts against large institutional buyers, environmental 

groups have effectively eliminated any u.s. market for canned 

tuna that is not labeled "dolphin-safe." 

8 
80 

panel ruled against the United states and found that the embargo 

provisions of the MMPA violate the provisions of GATT and were 

not defensible as a unilateral conservation measure. We are all 

now quite familiar with the environmental outrage at this 

decision.W 

The North American Free Trade Agreement and the International 

Dolphin Conservation Act 

Mexico's victory in the GATT panel became a liability in the 

debate over whether Congress should approve the North American 

Free Trade Agreement ("NAFTA"). The Bush Administration was told 

that if the GATT panel decision was accepted by the GATT council 

and confirmed, then nearly every environmental group would lobby 

against adoption of NAFTA. The strong desire of President Bush 

and the Government of Mexico to create free trade between the two 

countries led to two actions: (1) Mexico did not request 

consideration of the dispute panel decision before the GATT 

Council; and (2) the United States, Mexico, and Venezuela began 

to discuss the idea of an agreement to ban the encirclement of 

dolphins and to provide for the lifting of the MMPA embargoes. 

Although u.s. tuna fishermen still operated in the ETP, it became 

clear in 1992 that their fishing practice bad become a pawn in a 

much larger struggle over trade and environment policy. 

The Bush Administration was also told that if a ban on 

encirclement of dolphins became law, then environmental support 

l1f ~ Daniel c. Esty, Greening the GATT: Trade. Environment 

and The Future, Institute for International Economics (1994). 

9 
81 

for NAFTA would be forthcoming.~ So the tentative agreement 

between the u.s., Mexico, and Venezuela was translated into the 

Inte.rnational Dolphin Conservation Act, enacted October 26, 1992. 

This legislation marked a departure from the original goal of the 

MMPA because it outlawed a fishing practice regardless of whether 

the incidental take of dolphins was approaching a zero mortality 

and serious injury rate.lV What is called for is an 

international agreement whereby a country that agreed to enforce 

a moratorium on encirclement of dolphins for five years would in 

return have the MMPA embargo lifted. This "global" moratorium 

could only be ended if Congress so agreed in a joint resolution. 

However, the law is clear that a moratorium would not be created 

without the agreement of other countries. 

The law also reduced the u.s. fishermen's annual mortality 

quota to 1,000 in 1992 and then to BOO for the ensuing years.ll1 

lJI Despite enactment of the International Dolphin Conservation 

Act in response to these concerns, several marine mammal 

organizations lobbied hard against NAFTA. 

li/ Environmental groups have argued that the act of chasing and 

capturing dolphins in a net, which is also a taking under the 

MMPA, is harmful to the animals even if no mortality occurs. However, a 1992 report by the National Research Council ("NRC Report")--"Dolphins and the Tuna Industry"--concluded that there 

is no evidence that the act of encircling dolphins is harmful to 

the populations. The potential harm arises after they are encircled and that harm can be avoided .by careful release. The 

Executive Summary of the NRC Report is contained in Attachment 2. 

121 In that same year, New England set gillnet fishermen 

operating in the Gulf of Maine killed 1,800 harbor porpoises out 

of a population of 47,000, representing 4 percent of the net 

recruitment of the stock. Tuna fishermen have noted with some dismay that this mortality, which is clearly having a negative effect on the harbor porpoise population, has never been the 

(continued ..• ) 

10 
82 

If no major fishing country (e.g. Mexico or Venezuela) agreed to 

the moratorium, the u.s. fleet could still set nets around 

dolphins through 1999 but only under a very small, sharply 

declining quota. However, as of June l, 1994, the International 

Dolphin Conservation Act, in one of several internal 

inconsistences, banned the sale in the united states of any tuna 

caught by encircling dolphins, even tuna lawfully caught by 

u.s. fishermen under the terms of the Act. 

Even before the International Dolphin Conservation Act 

because law, serious doubt arose as to whether Mexico, Venezuela 

and other countries with large fleets in the ETP (e.g. the 

Republic of Vanuatu) would adhere to their "dolphin deal" with 

the U.S. because of the legislative changes to the original 

bargain and because of the April, 1992 La Jolla Agreement to 

create a truly multilateral dolphin protection program under the 

auspices of the Inter-American Tropical Tuna Commission 

("IATTC"). Vanuatu made its choice known by providing a letter 

on July 22, 1992 to the Senate Commerce Committee that indicated 

its preference for the IATTC Dolphin conservation Program and its 

rejection of the "global" moratorium. The Minister of 

Agriculture of Venezuela sent a letter on the same date to 

Secretary of State James Baker with the same message. Mexico's 

position was contained in a press release issued October 31, 

12/( ••. continued) 

subject of a Congressional hearing as has their fishing 

practices. 

11 
83 

1992.~ Thus, in the end, the attempt to legislate an 

international agreement creating a global moratorium was rejected 

even before it became law. But the legal restrictions on u.s. 

fishermen in the International Dolphin Conservation Act remain in 

the law.ll1 

Another Adverse GATT Dispute Panel Ruling 

The MMPA's secondary embargo provisions also drew the ire of 

the international trade community. The European Union ("EU"), 

representing the interests of the world's second largest canned 

tuna market, picked up where Mexico left off and brought their 

own case against the U.S. MMPA.~1 In July, 1994, another 

dispute panel ruled that GATT had been violated by the secondary 

embargo provisions after reviewing in detail the success of the 

IATTC Dolphin Conservation Program and a large number of other 

international agreements protecting the world's natural 

l§/ Communique of the Secretaria de Relaciones Exeriores de 

Mexico, "Mexico en Favor de una Defensa Real y Eficaz do los. Delfines," Tlotelolco, Mexico. 

111 u.s. tuna fishermen believe that it is questionable, as a matter of legal interpretation, whether the prohibitions in the 

International Dolphin Conservation Act were intended to go into 

effect if other countries did not sign up for the global moratorium. In addition, setting a more stringent standard for 

tuna fishing than other types of commercial fishing under the 

MMPA, without a rational biological reason, is a violation of the 

equal protection clause of the U.S. Constitution. 

~ The other countries that opposed the United States in this case include: Australia, canada, Japan, New Zealand, Hong Kong, the Philippines, India, Brazil, Sweden, Costa Rica, Thailand, South Korea, and Venezuela. The Findings section of the GATT 

panel report is set out in Attachment 3. 

12 
84 

resources. The United States has blocked this panel decision~ 

from review by the GATT Council and criticized the dispute panel 

process for not being "transparent" and available to nongovernment environmental groups. 

Just how long the u.s. Trade Representative's Office can 

continue to block this decision is unclear. The United States 

has many other trade issues, including some where dispute panels 

have ruled in our favor, of equal or grea·ter consequence to the 

nation. As the old GATT gave way to the new World Trade 

Organization ("WTO"), unresolved cases carried over under prior 

rules. At some point, action can no longer be taken on the two 

tuna/dolphin panel decisions. However, new cases can be brought 

by Mexico, the EU, or any other country in the WTO where the 

abili ty to block and prevent retaliation is mo r e limited. We are 

fearf ul that if, i n the f uture, the GATT tuna/ do l ph i n d ispute 

reaches the retaliation stage, our tuna fleet 's primary buyers--

the U.S. processing companies--will be the t a rge ts o f 

retal iation, thereby punishing us once aga n. ' Or perha ps the 

12/ Our firm represented salmon and herring proce ssors in Alaska 

and Washington State in a case challenging c a nada' s ban on the 

sale of unprocessed fish. our case was successful in a GATT 

dispute panel and was blocked by Canada. Only afte r threatening 

to place additional duties on canadian products did the case get 

referred to the dispute settlement process under the u.s.;canada 

Free Trade Agreement where it was resolved satisfactorily. A case such as this is much harder to win if the U. S. also blocks 

dispute panel decisions. 

1Q1 canned tuna is a very elastic consumer product. If the EU 

were to place additional duties (above the current 24 percent) on canned tuna imports from the U.S., then demand will drop as prices go up in Europe. Demand for tuna catches wi ll also drop, 

hurting u.s. tuna fishermen. 

13 
85 

target will be Alaska salmon or some other important u.s. fish 

export to Europe. 

On May 27 of last year, the Washington Post published an 

editorial on this issue which concluded: "The dolphins are safe • 

. • The world's environment will be best protected by this kind 

of cooperation [the IATTC program], not by trade fights."W 

The action taken to block these decisions will surely harm other 

U.S. interests and is clearly an overreaction to the fundamental 

environmental issue at hand. In the end, we also believe u.s. 

fishermen will probably be made to pay for the u.s. position in 

these GATT cases. 

The IATTC Dolphin Conservation Program 

Dr . James Joseph, Director of the IATTC, will testify today 

and outline for the Committee the elements of the La Jolla 

Agreement and its administration by the IATTC, and we defer to 

him in describing the IATTC program. The IATTC has demonstrated 

that it is one of the world's premier multinational marine 

resource management institutions of the kind the 1992 Rio 

Conference on the Environment sought to encourage. The progress 

made in the ETP tuna fishery to protect dolphins has been 

tremendous and deserving of recognition and support. But for the 

American fishermen who both developed that fishery and developed 

the methods for safely releasing dolphins, it is a constant 

reminder of how unfairly they have been treated. 

1l} The editorial can be found at Attachment 4. 

14 
86 

Furthermore, selling tuna that was caught by encircling 

dolphins in the IATTC program is still outlawed under u.s. law, 

the equivalent of selling illegal drugs or arms. But large 

yellowfin such as that caught in the ETP is still more valuable 

on the world market ($1,400 per ton) and the price of skipjack 

caught by the u.s. fleet in the South Pacific is now about $625 

per ton. Breakeven prices for a tuna vessel is about $750 per 

ton . Consequently, despite all the statements that they would be 

rewarded by landing only "dolphin-safe" tuna, u.s. tuna fishermen 

have not profited from the "dolphin-safe" tuna market. 

We also note that current management policies in the 

International Dolphin Conservation Act, which would force tuna to 

be caught in the ETP either by school fishing or log fishing, 

place the tuna resource in jeopardy~' and would significantly 

increase the bycatch of other non-target species of marine 

animals. In recent debates over the Magnuson Fishery 

Conservation and Management Act, environmental groups have sought 

amendments to reduce bycatch in other domestic fisheries even 

though they support existing laws that would create more bycatch 

in the ETP tuna fishery. The current "dolphin-safe" policy also 

increases the risk of catching endangered sea turtles, which 

would then lead to further fishing restrictions and trade 

embargoes under the convention on International Trade in 

111 Current news reports claim that the world's fisheries are in 

trouble. The best example is the collapse of the groundfisheries 

in the North Atlantic, including off New England. However, the 

tuna fisheries in the ETP and the South Pacific where the u.s. 

fleet fishes are considered in good health. 

15 
87 

Endangered Species of Wild Fauna and Flora and the Pelly 

Amendment.~ Obviously, this issue is far more complex than the 

public has been led to believe. 

The unilateral approach in the International Dolphin 

Conservation Act is clearly no longer needed and will surely 

prove to be counterproductive if Mexico and others do not see a 

change in u.s. trade policy following their efforts to protect 

dolphins and leave the IATTC program. What ·has clearly·worked is 

the multilateral IATTC program and, for the good of the dolphins, 

the continuation of this program should be more strongly 

supported by the u .s. It is truly unfortunate that some 

environmental groups lobbied in the past, albeit unsuccessfully, 

to eliminate u.s. funding for this important international 

conservation organization . 

The Changes in Law Supported by the Coalition 

The American Tunaboat owners coalition urges this Committee 

to give consideration to changes in the International Dolphin 

Conservation Act that would allow u.s. fishermen the ability to 

return to the ETP on an equal basis with foreign fishermen and to 

implement and enforce the IATTC Dolphin Conservation Program with 

respect to U.S. vessels. We hope the Committee will consider new 

legislation as soon as possible. The changes they are seeking 

will now be outlined briefly. 

~ 27 U.S.T. 1087.; TIAS 8249. The Pelly Amendment (22 U.S.C. § 1978) authorizes the United States to ban the import of any fish 

product caught in a manner that diminishes the effectiveness of an international marine resource conservation program. 

16 
88 

1. Amend the Internationa l Dolphin Conservation Act to 

Substitute Provisions Implementing the IATTC Program. 

We urge this Committee to eli minate the existing text of the 

International Dolphin Conservation Act and to substitute 

provisions providing for regulations to be issued by NMFS 

implementing the IATTC Dolphin Conservation Program for u.s. 

vessels, and for observers, criminal and civil penalties, and 

civil forfeitures. The ban on encirclement should be eliminated, 

as should the prohibition on sale of tuna caught by encircling 

dolphins in that statute. In addition, all conflicting 

provisions in Title I of the MMPA (relating to permit conditions, 

etc.) should be deleted and incorporated as appropriate in the 

agency's regulations. 

We envision a regulatory regime that is essentially the same 

as under the permit issued to the American Tunaboat Association 

(Medina panels, backdown , swimmers in the waters, etc.) but 

subject to the quotas in the IATTC program, including per-boat 

quotas which were not used in the previous U.S . regulatory 

program. The biological limit on mortality would be those i n the 

IATTC program as limited by the standard set forth in the 994 

MMPA Amendments for other domestic fisheries--the potential 

biological removal levels for each affected stock of marine 

mammal.~1 In this manner, all U.S. commercial fishermen will 

1!1 NMFS bas determined, under the MMPA prior to the 1994 

Amendments, that two species of dolphin (eastern spinner and 

northeastern spotted) were "depleted" based on the concept of 

optimum sustainable population (a legal, not a biological 

concept), although the species were neither threatened or 

(continued ... ) 

17 
89 

be subject to the same cont-rolling scientific principles set 

forth in the MMPA. This recommendation is also consistent with 

the findings of the National Research Council's 1992 tunajdolphin 

report. 

I want to emphasize that u.s. tuna fishermen are only 

requesting parity under the law with all other u.s. fishermen. 

We know some argue that U.S. tuna fishermen should be treated 

more severely because they intentionally encircle marine mammals 

and other fishermen do not. However, this is an artificial 

distinction, contrived for political convenience and irrelevant 

to the fundamental issue of biological impact. The fundamental 

question under the MMPA, the ESA, and other management statutes 

is the biological impact on the environment of a particular 

practice. In this regard, tuna fishermen intentionally encircle 

dolphin ·schools but do not intend to kill dolphins, only to 

release them safely. In fact, a large majority of sets on 

dolphins result in no mortality whatsoever. There is no 

scientific evidence that encirclement, in and of itself, causes 

any significant harm to dolphin populations. As the scientific 

evidence now indicates, the unintended incidental mortality of 

dolphin in ETP tuna fishing operations is at levels that are 

biologically insignificant.~' 

1J/( ••• continued) 

endangered under the ESA. This "depleted" finding was based on a very unreliable database. Moreover, the concept means very 

little under the 1994 Amendments which uses PBR levels as limits. 

A2f 1994 Marine Mammal Commission Report, at 121 . 

18 
90 

What is intentional and what is incidental can be subject to 

debate.~ Here again, we cite ·the example of sink gillnet 

fishermen in the Gulf bit Maine.W This fishery involves nets 

fixed to the bottom in areas where harbor porpoises are found in 

considerable number. The porpoises are caught in the nets and 

invariably drown; few can be released alive. Under Framework 

Adjustment #4 to the Northeast Multispecies Fishery Management 

Plan, NMFS has predicted that, despite area closures, the 

expected mortality of harbor porpoises in the fishery will not be 

reduced below 2 percent of the population for several years. 

This mortality, because it is reasonably foreseeable and not 

avoidable by any alterative in the fishing practice itself (save 

ending it where the porpoises are found), might also be 

considered intentional as well. But yet this practice has not 

been totally outlawed; nor has Congress passed a law requiring a 

special "porpoise-safe" label for New England groundfish. What 

has occurred, however, is that NMFS has promulgated reasonable 

regulations that will protect these marine mammals on a phased-in 

basis without eliminating sink gillnets from the fishery, 

consistent with the 1994 MMPA Amendments. 

1§V In u.s. v. Hayashi, 22 F.3d 859 (9th Cir. 1993), the court 

of appeals concluded that a fisherman's efforts to scare 

porpoises away from his bait were not intentional harm subject to 

criminal prosecution under the MMPA even though a lower court had 

convicted him of a crime. 

Z1J We do not wish to create further problems for our fellow 

fishermen in New England. This fishery is cited only as an 

example of the very different ways in which tuna fishermen are treated in the law vis-a-vis their counterparts in other domestic 

fisheries. 

19 
91 

We suggest that the only fair approach is to treat U.S. tuna 

fishermen no differently than other domestic fishermen are 

treated in the 1994 MMPA Amendments and no differently than 

foreign tuna fishermen operating under the IATTC program. 

2. Eliminate All MMPA Embargoes And Create One Against Any 

Country That Does Not Participate in the IATTC Program. 

The MMPA trade embargoes have disrupted world trade in tuna 

products.~' If u.s. fishermen are to sell tuna caught in 

compliance with the IATTC program, these embargoes will have to 

be eliminated. In their stead, we recommend that the MMPA 

provide for an embargo of any country that does not participate 

in that international agreement. Our tuna fishermen have always 

supported the MMPA embargo provisions because they were intended 

to force all countries to fish under standards comparable to 

those applicable to the U.S. fleet. Given the current success in 

the IATTC program and the International Dolphin Conservation Act, 

comparability has become a forgotten issue. We ask that 

comparability and balance again be returned to provisions of the 

MMPA. We are confident that a trade embargo of this type will be 

consistent with GATT and the spirit of the GATT dispute panel 

decisions, which heavily criticized unilateral action. 

3. Eliminate All Labeling Requirements; Leave the Choice 

to the Consumer. 

Furthermore, we can see no rational basis for having the 

Federal Government invoke a labeling regulatory/enforcement 

1.!V Report by the International Trade Commission, "Tuna: Current 

Issues Affecting the U.S. Industry," Executive Summary (1992). 

Attachment 5. 

20 

2Q-276 - 96 - 4 
92 

program for a single particular product that is unrelated to the 

scientific management principles in the MMPA or the ESA. We ask 

that the mandatory labeling provisions in the International 

Dolphin conservation Act be eliminated and the voluntary labeling 

requirement for purse seine fishing in the Dolphin Protection 

Consumer Information Act~ be repealed. The operative concept 

in those laws is that encirclement of dolphins is "harmful" when 

in fact there is no scientific evidence supporting this 

conclusion. We believe the labeling of tuna and tuna products 

should be left to the general principles contained in the Federal 

Trade Commission's Guide for the Use of Environmental Marketing 

Claims for voluntary labeling practices.~' 

It is likely that the effect of "dolphin-safe" labeling on 

consumer behavior will be debated for some time. In its 1992 

report on the tuna industry, the International Trade Commission 

stated that, after two years of the "dolphin-safe" policy, 

"canneries have reported no detectable increase in consumer 

demand for canned tuna following the implementation of the 

dolphin-safe policy.nll/ It is clear, on the other hand, that 

prices paid to tuna vessels have not increased, but have 

declined. 

~ 16 u.s.c. § 1385. 

1QI 16 u.s.c. Part 260. The guidelines in those regulations 

address the application of section 5 of the Federal Trade 

Commission Act (15 u.s.c. § 45) to environmental advertising and 

marketing claims. 

llJ Attachment 5. 

21 
93 

Again, u.s. tuna fishermen want consistency and parity. 

Existing law would prevent tuna fishermen from selling the tuna 

caught under the IATTC program even if caught in compliance with 

the original goals of the MMPA. To demonstrate what the labeling 

law means, it is useful to take the example of the spotted owl. 

Under the ESA and current.Clinton Administration policy, not all 

habitat that could be occupied by the spotted owl is protected 

from harvest. A labeling law comparable to that for canned tuna 

would require that all timber shipments must be labeled as to 

whether they are "owl-safe," which would be defined to mean none 

of the lumber is cut from the type of timber that might provide 

habitat for spotted owls. Another example is to require that 

groundfish in New England must indicate that it is "porpoisesafe," meaning that sink gillnets were not used to harvest the 

fish. Congress has not enacted laws creating these kinds of ecolabels. 

Summary and Conclusion 

Unfortunately, the American public has not really been 

honestly informed as to what the tuna/dolphin debate is all 

about. Environmental groups have used boycott threats and other 

strong-arm tactics to impose a notion of environmental protection 

on tuna fishermen that is extreme by most standards. If the 

current situation in the ETP fishery is presented in a fair and 

rational manner, most American citizens, who are now deeply 

concerned about Federal over-regulation and the lack of common 

sense in many of our environmental laws, would probably support a 

22 
94 

reasonable compromise on the tuna/dolphin question. It is time 

for Congress to re-balance the scales of fairness with respect to 

this issue and to support a very successful international program 

that both protects a highly favored marine mammal--the dolphin--

and a very important and popular food product--canned tuna. 

Mr. Chairman, that concludes my prepared statement. I would 

be happy to answer any questions the Committee may have • 

• • • • 

23 
Attachment 1 

Attachment 2 

Attachment 3 

Attachment 4 

Attachment 5 

95 

Marine Mammal Commission Annual Report to 

Congress, January 31, 1995 

National Research Council Report on Dolphins and 

the Tuna Industry, 1992 

GATT dispute panel decision on United States 

Restrictions on Imports of Tuna Report, June 1994 

Washington Post editorial, dated May 27, 1994, on Dolphins and the Trade Laws 

United States International Trade Commission 

Report on Tuna: Current Issues Affecting the U.S . Industry, August 1992 
96 

NATIONAL FISHERIES INSTITUTE, INC. 

1525 WILSON BOULEVARD • SUITE 500 • ARLINGTON, VA 22209 

703 • 524 • 8880 • FAX: 703 • 524 • 4619 

TESTIMONY 

OF 

NATIONAL FISHERIES INSTITUTE 

BEFORE TilE 

SUBCOMMITTEE ON FISHERIES, Wll.DLIFE & OCEANS 

JUNE 22, 1995 

My name is Richard E. Gutting, Jr. and I am the Vice President for Government 

Relations of the National Fisheries Institute (NFI). 

The NFI appreciates this opportunity to testify on U.S. efforts to reduce the incidental 

taking of dolphin by tuna fishermen in the eastern tropical Pacific Ocean. 

The NFI represents 1,000 companies engaged in all aspects of the U.S. fish and seafood 

industry including harvesting, processing and marketing. Our members operate vessels in 

several fisheries located on the high seas, including those for tuna, swordfish and pelagic sharks, 

and they import and export products from many high seas fisheries located around the world. 

Mr Chairman, we believe that the continued refusal of the United States to recognize the 

dolphin conservation program of the Inter American Tropical Tuna Commission (I A TTC) would 

undermine the international cooperation which is needed to conserve other fish stocks upon 

which U.S. fishermen and seafood companies depend. Continuing our current tuna-dolphin 

policy also would expose hundreds of smaller seafood firms to market disruptions that they can 

ill afford to sustain. 

The United States is a major seafood-producing nation, ranking sixth in the world in 

production and providing employment for at least 170,000 commercial fisherman. Commercial 
97 

fishing is capital intensive and vessel operators typically rely on a host of suppliers which 

generate additional thousands of seafood-dependant jobs. Seafood-linked jobs in the processing, 

wholesaling and retailing sectors add many more thousands of workers to. seafood's payroll. 

Overall, in 1989, it was estimated that the U.S. seafood industry generated $49 billion 

in economic activity. With the inflation and growth that has occurred since the time of this 

estimate, the impact today is even greater. 

Much of this economic activity and many thousands of jobs depend upon the harvest of 

fish stocks which are located during all or part of their life cycle in waters beyond the exclusive 

jurisdiction of the United States. Here on the Atlantic coast, for example, a distant-water fleet 

of U.S. longline vessels catch tuna, swordfish and pelagic sharks on the high seas one-thousand 

to two-thousand miles from the U.S. coastline. Thousands of additional vessels, including many 

recreational vessels, exploit these stocks as fish migrate through U.S. coastal waters in the Gulf 

of Mexico and Atlantic Ocean. 

The dependance of our industry upon international stocks which either migrate through 

U.S. waters, or "straddle" the U.S. 200-mile zone, is even more dramatic on the Pacific coast. 

Diverse fleets of longliners, trollers and trawlers land more than a billion dollars worth of 

products from stocks of swordfish, salmon, tuna and pollock in the Pacific. 

All of these stocks can be harvested by foreign fleets in areas beyond U.S. jurisdiction. 

If American fishermen and seafood workers who depend upon these fish stocks are to have a 

secure future, these stocks must be conserved through international arrangements. 

There are several reasons why the NFI believes that stronger international arrangements 

are essential. 

2 
98 

First, these stocks, like other high seas resources, are under increasing fishing pressure. 

The distant-water fleets of the world's major fishing nations have been displaced from coastal 

areas as a result of the global declaration of 200-mile fishing zones. Some of these distant-water 

fleets have re-geared for fishing on the high seas. 

Also, now that many coastal stocks are fully developed or over-exploited, coastal fleets 

are expanding seaward into high seas areas. Third world nations also are expanding their fleets 

and are targeting high-value, international stocks as they migrate through coastal waters. 

Another reason for concern is the extremely dynamic nature of international fisheries. 

Large high-seas vessels are very mobile and can re~eploy to new areas rapidly. 

In the early 1980's, for example, a significant part of the Spanish and French tuna purseseine fleets shifted from the Atlantic to the Indian Ocean. About the same time, U.S. purse 

seiners moved from the eastern to the western Pacific where Korea and Taiwan initiated 

substantial purse seine operations. 

Likewise, several larger U.S. long liners shifted from the Atlantic to the Pacific a few 

years ago. Other examples include the rapid expansion of a high seas fleet from China in the 

southern Pacific and the build up of fleets in the Caribbean tar&cting highly migratory stocks. 

U.N. Food and Agriculture Organization scientists have concluded that as a result of 

these developments many highly migratory stocks "are undec heavy pressure, • that "high-value 

straddling resources have suffered from overfishing, • and that this situation is unlikely to 

improve unless systems are put in place "to collect data, promote collaborative stock assessment, 

elaborate and enforce management measures at the international level. • The NFI agrees. 

Specifically, the NFI believes that the present program of the International Commission 

3 
99 

for Conservation of Atlantic Tunas (ICCA 'I) needs to be strengthened. In this regard, we wish 

to take this opportunity to thank this subcommittee for its help in supporting legislation this year 

to strengthen the Commission's program. It is particularly important that those nations in the 

Western Hemisphere, such as Mexico and Venezuela, which are harvesting the stocks managed 

by the ICCAT, join the ICCAT and comply with its conservation program. 

The NFI also believes that an international arrangement is needed to monitor and control 

harvests of high seas stocks in the North Pacific. The seafood industry in Japan shares our view 

and we are pleased that our respective governments are making efforts to bring these 

international resources under effective international management. Here again, it is important 

that Mexico and other harvesting nations support these efforts. 

The NFI also believes that the sea turtle stocks which migrate through U.S. coastal 

waters and which are inadvertently taken as bycatch in the shrimp fishery, need an effective 

international conservation program. In this regard, we are pleased that efforts are being made 

by officials in Mexico to negotiate such an agreement later this year. Once again, the 

cooperation of Western Hemisphere nations is essential. 

All of these conservation initiatives are of vital importance to the U.S. fish and seafood 

industry. And the success of all of these initiatives depends entirely upon the good will and 

cooperation of the nations participating in the dolphin conservation program of the lA ITC. 

One way to foster this cooperation, we believe, is to repeal the unilateral trade sanctions 

of the Marine Mammal Protection Act (MMPA), and to recognize the international program of 

the IAITC. 

While the present unilateral policy of the MMPA is characterized by some as 

4 
100 

"leadership, • it can also be characterized as "bullying. • Indeed, there is ample evidence that 

the present unilateral policy of the United States is deeply resented by many nations. 

For example, more than a dozen nations intervened against the U.S. when the "primary" 

and "secondary" tuna embargoes of the MMPA were determined by two different legal panels 

to be indefensible as conservation measure3 under the General Agreements on Tariffs and Trade 

(GATT). No nation intervened in support of the United States. 

Declarations against unilateral actions also are included in the Declaration of Cancun, 

which was delivered on May 8, 1992 by the International Conference on Responsible Fishing, 

and both the Rio Declaration and Agenda 21 of the United Nations Conference on Environment 

and Development. 

The cooperation needed to conserve the international fish stocks upon which U.S. 

fishermen depend is more likely, we believe, if the United States stops trying to "bully" other 

nations into adopting U.S. fishing practices and seeks to establish appropriate fishing practices 

through international agreement. Many of the nations being "bullied" by U.S. tuna embargoes 

in the dolphin controversy are the very same nations whose cooperation is needed to conserve 

the international fish stocks and the sea turtles whose protection has imposed significant 

restrictions on U.S. fishermen. We fail to see how sanctioning these nations for implementing 

a successful international conservation program will foster the goodwill needed to negotiate other 

international agreements. 

U.S. insistence upon its own standards, when multilateral standards have been adopted 

by the IATTC and have been proven to be effective, is particularly offensive. Embargoes to 

reinforce international standards, on the other hand, are much less controversial. Indeed, the 
101 

threat of trade sanctions in some instances has encouraged nations to comply with international 

·practices with respect to tuna, salmon and whales. 

Studies by various political scientists, economists and legal scholars suggest that 

economic sanctions, in general, have not been particularly effective in changing the policies of 

target nations. Nevertheless, we believe that the threat of U.S. trade sanctions a few years ago 

did contribute to the successful negotiation of the lA TIC program. 

The actual imposition of embargoes, as opposed to the threat of embargoes, however, 

is often counter productive. Seafood markets are global, especially for products such as tuna, 

and they are becoming more and more global as world demand for seafood increases. Once an 

embargo is imposed, the marketplace adjusts and the leverage that a threat of a trade sanction 

can create, soon evaporates. This happened when shrimp embargoes were imposed on SUrinam 

and French Giuana in an effort coerce them into using turtle excluder devices. 

This, we believe, also has occurred in the tuna dolphin controversy. The fact is that the 

importance of the U.S. marketplace for tuna has declined, particularly for yellowfm tuna, and 

that the nations being embargoed under the MMPA have found alternative markets. The only 

people who have suffered are those U.S. fums and their customers who relied upon the products 

which were banned. 

Now that tuna embargoes have been imposed, the threat of imposing them can no longer 

be used as negotiating leverage. The failure of these embargoes to coerce the nations concerned 

into compliance with U.S. demands, also demonstrates the declining importance of the U.S. 

marketplace to other nations and thus diminishes the effectiveness of future embargo threats. 

As I've mentioned, two different dispute panels have found that the yellowfin tuna 

6 
102 

embargoes of the MMP A are not defensible as conservation nasures under the GAIT. Because 

the United States has blocked the adoption of these rulings by the GAIT Council, the U.S. is 

not technically in violation of the GAIT, and the nations concerned cannot yet retaliate against 

U.S. exports under the GAIT. 

The dispute resolution process of the GAIT Council was replaced with a new World 

Trade Organization (WTO) and it is unclear whether the two panel discussions will ever be 

adopted. The nations concerned, however, can refile their claims in the new WTO process 

which does not allow the United States to unilaterally veto a panel ruling. 

There can be little serious doubt that if these challenges are refiled in the WTO, that the 

MMPA embargoes would again be found to be indefensible, and that the nations concerned 

would be entitled to trade compensation. 

Such a ruling would place the United States in an awkward position. If retaliation is 

allowed, U.S. exporters would be harmed or the United States would have to provide some form 

of monetary or tariff compensation. In any event, U.S. dolphin policy would be turned on its 

head. 

Unless changed, the MMPA would force U.S. officials to embar&o nations fishing •on 

dolphin • or buying tuna caught in this way. If embargoed nations are then entitled to trade 

benefits from the United States, the U.S. would be in the position of rewardin& nations for 

fishing • on dolphin • or buying tuna from those nations which do. Instead of discouraging these 

practices, the MMPA would be encouraging them. 

It also is ironic that the United States is being forced by the MMPA to argue within the 

international trade community that unilateral trade sanctions are appropriate, at the same time 

7 
103 

it is complaining about similar trade barriers of other nations. U.S. officials, for example, have 

expressed concern over Europe's ban on animal products produced with leg-hold traps. The fact 

of the matter is that international trade is a two way street and the United States has a lot to lose 

if other nations follow the U.S. "lead" in the MMPA and begin to tell the United States how it 

must regulate its citizens. 

The nations embargoed under the MMPA provide many U.S. seafood firms with 

important overseas markets. Europe, for example, buys substantial amounts of fresh, frozen, 

and canned fish. Our access to Europe's fresh fish market was disrupted two year ago because 

European fishermen demanded that officials boost prices by closing the European market to U.S. 

imports. This closure caused millions of dollars in losses for many family-run firms in New 

England and the Mid-Atlantic. It is not unreasonable to assume that European officials would 

welcome an opportunity to close their markets again to American seafood. Japan also provides 

a vital market for hundreds of seafood exporters in Alaska and the west coast. Indeed, Japan 

buys the vast majority of the U.S. seafood which is exported. 

While no one knows what will happen if nations retaliate because of the tuna embargoes, 

it is likely that U.S. seafood fmns would suffer. Our experience with other instances when 

embargoes or tariffs increases were imposed by foreign nations, is that there is uncertainty and 

confusion at first, and often little warning. The resulting disruptions tend to hurt smaller firms 

the most because they lack adequate warning, have fewer market options, and lack the resources 

needed to sustain losses. 

In summary, the NFI believes that the MMPA places the United States in an untenable 

position which threatens harm to thousands of people working in the U.S. seafood industry. 

8 
104 

Consider for a moment what is happening: 

1. The United States is punishing nations for adopting an effective international program 

to conserve marine mammals; 

2. The United States is blocking international trade law rulings in defiance of a strong 

global consensus against its position; 

3. The United States is risking trade retaliation when it heavily depends upon the seafood 

markets of the nations it is punishing; 

4. The United States is relying on unilateral trade sanctions to impose its ideas upon other 

nations when its market leverage is declining and other options are available; 

S. The United States is punishing nations for complying with international conservation 

standards at the same time it is urging nations to establish international conservation standards 

for fish stocks upon which thousands of American workers depend. 

Mr. Chairman, the MMPA worked well in the past to reduce the number of dolphins 

killed in the tuna fishery. Circumstances change, however, and what once worked well, can 

become counterproductive. We have reached that point. 

For all of the reasons explained in our testimony, the NFI asks the Subcommittee to 

repeal the present unilateral tuna embargoes and to recognize the lA ITC conservation program. 

9 
105 

HEARING ON OVERSIGHT OF THE INI'ERNATIONAL DOLPHIN 

CONSERVATION ACT OF 1992 

BEFORE THE SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS 

OF THE HOUSE COMMITTEE ON RESOURCES 

JUNE 22, 1995 

PRESENI'ED BY 

DAVID C. PHILLIPS 

EARTH ISLAND INSTITUTE 

ON BEHALF OF 

DEFENDERS OF WILDLIFE 

EARTH ISLAND INSTITUTE 

THE HUMANE SOCIETY OF THE UNITED STATES 

HUMANE SOCIETY INI'ERNATIONAL 

COMMITTEE FOR HUMANE LEGISLATION 

INI'ERNATIONAL WILDLIFE COALITION 

· THE FUND FOR ANI~S 

SOCIETY FOR ANIMAL PROTECTIVE LEGISLATION 

WORLD SOCIETY FOR THE PROTECTION OF ANIMALS 

AMERICAN SOCIETY FOR THE PREVENI'ION OF CRUELTY TO ANIMALS 

MARINE MAMMAL FUND 

EARTHTRUST 

DOLPHIN CONNECTION 

PROGRESSIVE ANIMAL WELFARE SOCIETY 

AMERICAN HUMANE ASSOCIATION 

SOUTH CAROLINA ASSOCIATION FOR MARINE MAMMAL PROTECTION 

380 Broodway, SuHe 28 

San Francisco,CA 94133 

Tel: 415·788·3666 

r.x:415·788·7324 
106 

CONTENTS 

I. OVERVIEW . . . • • . . • . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

II. THE INTERN1i.TIONAL DOLPHIN CONSERVATION ACT (!DCA) 

AND RELATED MMPA PROVISIONS •...........••............... 3 

A. THE "DOLPHIN-SAFE" DEFINITION ................••••.. 5 

B. THE !DCA PROHIBITION ON SALE OF DOLPHIN-UNSAFE 

TUNA IN THE US. . • • • . . . . . . . . . . . . . . . • • • . • . . . • • • • • • . • • . 5 

C. US DOLPHIN KILL QUOTAS • . • . . . . . • . . . • • . . . . . . . . . . . . . . . . . 7 

D. REDUCING INTERNATIONAL DOLPHIN KILL LEVELS ........... 9 

III. THE ADMINISTRATION POSITION ......................•..... 10 

A. CEDING AUTHORITY TO THE IATTC •..•............••..... 10 

B. ALTERING US POLICY AS A RESULT OF TRADE PRESSURE . . . . 12 

1. CAUSING HIGHER DOLPHIN KILLS ................... 13 

2. ESTABLISHING A DANGEROUS PRECEDENT .........•... 13 

IV. UNDUE PRESSURE FROM FOREIGN GOVERNMENTS . . . . . . . . . . . . . . . . . 14 

V. SETTING THE RECORD STRAIGHT: MYTHS IN THE ETP FISHERY •. 15 

A. MYTH #1: THE RISE OF DOLPHIN-SAFE FISHING 

IS DAMAGING THE FISHERY ..••••••............•........ 15 

B. MYTH #2 DOLPHIN-SAFE POLICIES HAVE 

INCREASED PRICES TO CONSUMERS ••...•.....•......••••• 17 

VI. CONCLUSIONS . . • . . . . . . . . • . • . . . . . . . . • • . . . . . . . . . . • • . . . . . . .. . 18 
107 

Mr. Chairman and Members of the Subcommittee, thank you for 

the opportunity to testify today. · My name is David Phillips and I 

am Executive Director of Earth Island Institute. I am testifying 

today on behalf of a coalition of 16 organizations listed on the 

cover sheet. These organizations have a strong commitment to 

ending dolphin mortality as a result of encirclement of dolphins 

in the Eastern.Tropical Pacific Ocean. Their combined membership 

in the United States is more than three million individuals. 

J: • OVBRVJ:EW: 

In the thirty-six years since the technique of intentional 

encirclement of dolphins was first ~loyed by the tuna industry, 

more than seven million dolphins have been killed. This 

represents the world's largest killing of marine mammalsl, 

dwarfing the total kill of whales by whaling nations in all 

history. Today, dolphins are still being routinely chased down 

with speedboats and helicopters and encircled with mile-long 

purse-seine nets. Despite the efforts of fishermen to reduce the 

kill, thousands of dolphins asphyxiate or are drowned every year. 

The slaughter of dolphins in tuna nets was one of the primary 

rationales for passage of the Marine Mammal Protection Act (MMPA) 

in 1972. On six occasions since then Congress has ·amended the 

Act's tuna/dolphin provisions,· In each instance steps have been 

designed to require US and foreign fleets to reduce the dolphin 

kill with the goal of bringing mortality down to levels 

approaching zero. 

1National Marine Fisheries Service; Revised Estimates of Fisheries Kill of 

Dolphin Stocks in the ETP; Wade; ·AR LJ-93-17 

(1) 
108 

By 1988 the US fleet operating in the eastern tropical 

Pacific had declined and foreign countries began to dominate the 

fishery. Because foreign fleets were responsible for the vast 

majority of dolphin mortality, MMPA provisions for the use of 

trade restrictions in order to promote dolphin protection were 

strengthened. As Rep. Gerry Studds, then Chairman of the 

Subcommittee on Fisheries and Wildlife Conservation and the 

Environment stated in 1989 : 

"We do not have the power to regulate foreign fishing 

operations in foreign waters or on the high seas. But we do have the right to bar our markets to any nation that 

does not share our concern for the conservation of marine 

mammals. The amendments we approved last year require the 

Executive branch to exercise that right, to tell any nation 

that harvests tuna without taking dolphin-protection measures comparable to ours that they will no longer have access to America's supermarket shelves . . . " 

There is little doubt that the tuna import restrictions have 

had a profoundly positive effect on dolphin conservation . They 

helped persuade Ecuador and Panama to prohibit their fleets from 

any encirclement of dolphins, and other nations including 

Thailand, Taiwan, the UK and France to prohibit imports of 

dolphin-unsafe tuna . Import restrictions provided the leverage to 

encourage foreign countries to carry more observers, use better 

dolphin-safety equipment and techniques, require better training 

of captains, enact prohibitions on the use of explosives, and stop 

the setting of nets on dolphins during hours of darkness when 

dolphin mortality is far higher . 

Yet in 1989 , seventeen years after passage of the Act, 

combined US and foreign mortality still exceeded 100,000 dolphins . 

All the while, consumer pressure to end the killing of dolphins 

continued to build. The American public made it clear that they 

did not want to buy tuna caught at the expense of dolphins. 

Finally, the tuna companies listened. 

(2) 
In 1990 the world's largest three tuna companies adopted 

policies prohibiting all purchase, processing, and sale of .tuna 

caught by setting nets on dolphins or by use of driftnets. 

Immediately, dolphin mortality began to drop. 

In 1990 the Dolphin Protection Consumer Info~tion Act was 

enacted by the US Congress, providing a uniform definition of 

"dolphin-safe•. The dolphin-safe definition helped prevent 

mislabeling of tuna. It also provided crucial help -- before the 

United Nations Resolution banning high seas driftnetting took 

effect -- to stem the flow of driftnet-caught tuna from the Far 

East into the US . 

By 1992, it became clear that further efforts were r~ired 

to end the practice of encircling dolphins. The International 

Dolphin Conservation Act (IOCA), sponsored by. Rep. Gerry Studds, 

Rep. Barbara Boxer, and Rep. Porter Goss, was adopted, .making it 

us national policy to eliminate the marine mammal mortality 

resulting from the intentional encirclement of dolphins in tuna 

purse seine fisheries, and establishing frameworks for the 

elimination of both US and foreign dolphin mortality. 

XX. THE XNTERNATIOHAL DOLPBIR CORSBRVATXOR ACT 

(IDCA) AND RBLATBD MKPA PROVXSIORS 

This subcommittee deserves great credit for assisting in the 

significant progress that has been made in reducing dolphin 

mortality caused by US and foreign tuna fishing. The combination 

of strong domestic dolphin protection· laws, the actions of tuna 

companies worldwide to purchase, process, and sell only dolphinsafe tuna, and efforts through the Inter-American Tropical Tuna 

Commission (IATTC) to improve captain performance, have had the 

beneficial effect of reducing dolphin mortality by 96% since 1989. 

(3) 
110 

Consumers around the world continue to make it clear that 

they don't want to buy tuna caught at the expense of dolphin 

lives. The largest tuna companies continue to maintain dolphinsafe policies. The European Community has prohibited its 

nationals from engaging in the practice of setting nets on 

dolphins, and the majority of canneries worldwide will no longer 

process tuna caught by setting nets on dolphins. Panama and 

Ecuador have passed laws prohibiting the practice of encircling 

dolphins. And no US vessels are currently engaged in the practice 

of setting nets on dolphins, although four vessels have signaled 

their interest in resuming sets on dolphins based on the raised 

expectations provided by their understanding of the 

Administration's position. It is our view that it is time to end 

the practice of intentional capture of dolphins as a way of 

catching tuna. 

To this end, we feel that: 

The current atatutory definition of •do1phin-aafe• tUD& 

ahou1d be aaintained1 

• The :!:DCA prohibition on aale of dolphin-unaafe tuna in 

the tis ahould be continued1 

• There ahould be no increaae in the current dolphin kill 

quota permitted to the US tUD& fleet1 

• The current us c~taent to purauing a global baD on 

the encircl-ent of dolphin• abould be -intained1 

• The dolphin kill level• of 3,601 in 1!1!13 and 4.,0!15 in 

19!14., while leas thaD previoua yeara, conatitutea a 

needles• slaughter and abould be pbaae4 out1 

(4) 
111 

• The •tructural, legal, and operatio-1 4eficieDcie• iD 

the I:Dter-Americ&D Tropical oru- Comai••ioD (I:ATTC) •houl4 

be rectified befgre the US ce4e• --g-Dt authority over 

4olphiD protectiODI 

• The IIIIPA •houl4 Dot be -akeDe4 iD re8POD8e to pre••ure 

fr0111 Datio-1 &D4 iD4u•try iDtere•t• workiDg through the GATT 

A. TBB •OOLPBI:H-SAJ'B• DBFI:HI:TI:OH 

We strongly oppose any and all efforts to change the US 

statutory definition of "dolphin-unsafe• tuna. In our view, the 

proposal to consider tuna •caught in accord with the rATTC La 

Jolla Agreement• to be dolphin-safe would constitute consumer 

fraud. TUna caught in accord with the IATTC La Jolla Agreement 

results in the killing of thousands of dolphins every year. That 

is not dolphin-safe . 

Further, allowing such a definition would create a 

marketplace in which "dolphin-safe• meant two completely different 

things. To the largest US tuna processors it would continue to 

mean tuna caught without any encirclement of dolphins. To other 

companies willing to mislead the public it would mean tuna caught 

in line with the LATTC agreement . Millions of consumers wo~ld be 

confused, more dolphins would be killed, and the massive public 

outrage would be re-kindled. 

B. '1'BB I:DCA PROBI:Bl:TI:OH ON SALB OF OOLPBI:H-UHSAFB 

TDJD. m , '1'BB us. 

Under provisions of the IDCA, beginning on June 1, 1994, the 

sale of dolphin-unsafe tuna was prohibited in the US . The intent 

of this provision was to ensure that the US market did not act as 

(5) 
112 

an incentive for the harvest of t~~a at the expense of dolphin 

lives. 

In our view this prohibition is working and should not be 

modified. Allowing dolphin-unsafe tuna back into the US 

unnecessarily hurts dolphins, US businesses, and US fishermen. 

Pamage to PolphinS 

The US canned tuna markets are by far the largest in the 

world . Many foreign vessels that are currently making dolphinsafe fishing trips as a way to ensure wider sales of their tuna 

product would be given reason to return to setting nets on 

dolphins if they perceive an ability- to leverage their tuna into 

the US. As a result dolphin mortality will inevitably rise. 

There are no provisions of the IATTC .regime to prevent the foreign 

dolphin kill from rising to more than double current.levels. 

Pamage to US Businesses 

Allowing sale of dolphin-unsafe tuna would also be damaging 

to US business and US jobs by opening up lucrative US markets to a 

flood of foreign dolphin-unsafe tuna at depressed prices. 

The major US tuna processors have indicated that they have no 

intention of abandoning their commitment to sell only dolphin-safe 

tuna. Dolphin-unsafe tuna from foreign countries negatively 

impact the progressive policies of the very tuna companies. that 

have taken strong steps to protect dolphins. 

The potential for dolphin-unsafe product-dumping is 

particularly serious in view of the drastic peso devaluation and 

economic crisis in Mexico. Mexico has the largest dolphin-killing 

tuna fleets and is intent on seeking markets in the US for any 

tuna oversupply that exists now or in the future. Why should the 

US allow foreign dolphin-unsafe tuna imports to undercut US 

businesses and jobs? 

(6) 
113 

PAmaaes to us Fishermen 

The vast majority of US tuna purse-seine fishermen now 

operate in the western tropical Pacific ocean (WTP), catching 

three times the amount of. tuna that is caught in the ETP, and 

doing so without any setting of nets on dolphins. Should 

significant markets be opened for dolphin-unsafe tuna imports, 

this would negatively affect the marketability of tuna from the US 

vessels in the WTP. 

Opening us markets to dolphin-unsafe tuna would also serve to 

remove the incentive for development of fishing techniques in the 

ETP that do not result in the killing of dolphins. Research is 

needed on ways to fish for tuna without encircling dolphins and at 

the same time reduce and eventually eliminating other bycatch. 

This research would be discouraged should dolphin-unsafe markets 

re-open. 

C. 'OS DOLPBDIJ ltl:LL Q'OO'l'.U • 

Provisions of the IDCA require US tuna fleets operating in 

the ETP to meet continually-reduced dolphin-kill quotas until 1999 

at which time the permit allowing continued intentional setting of 

nets on dolphins would end. 

The reality is that since 1990 dolphin-kills by the US fleet 

have been dictated far more by marketplace conditions than by MMPA 

quotas. After the largest US tuna companies stopped purchasing 

dolphin-unsafe tuna, most us vessels relocated to the WTP. The 

tuna vessels that remained, primarily fished dolphin-safe and 

therefore didn't kill dolphins. 

The table shown below demonstrates that US dolphin kill has 

since 1990 remained far less than allowable quota levels. 

(7) 
114 

YEAR MMPA ltl:LL OtlOTA us Dolphin Kill 

1990 20,500 5,083 

1991 20,500 1,002 

1992 1,000 439 

1993 800 115 

1994 114 106 

1995 105 0 

At present, for 1995 there is an allowable quota of 105 

dolphin-kills. However, the 4-6 US vessels that continue to 

operate in the ETP are doing so without setting nets on dolphins. 

Allowing any increase to the current IDCA quota regime is 

unjustified in light of the following points: 

(1) US fishermen have been provided with priority access to the 

most lucrative tuna fishing grounds in the world. Under the IDCA, 

the South Pacific Tuna treaty was re-authorized through the year 

2002. Currently approximately 47 US tuna vessels operate there, 

out of an allowable US vessel cap of 54 . The WTP skipjack fishery 

is booming, and extremely large catches are ~ing made without 

sett ing nets on dolphins . 

The current WTP skipjack catch is more than triple the combined 

catch of all tunas in the ETP, and is up approximately 200,000 

tons since 1990 and approximately 400 , 000 tons since 1985. 

ETP 1994 Catches 

Yellowfin 

Skipjack 

other tunas 

Short tons 

238,000 

81,000 

43 , 000 

(8) 
HTP 1994 Catches 

Skipjack 

115 

Short tons 

1,050,000 

(Data from IATTC; '94 Fishing Year; Background Paper 4; June, 

1995) 

(2) Several US vessels have demonstrated that they can continue to 

operate in the ETP without setting nets on dolphins. In 1995, a 

dolphin-kill quota of 105 has been available to them, however none 

have chosen to set nets on dolphins . They have been able to 

maintain a commercially viable operation without setting nets on 

dolphins. If dolphin-unsafe tuna were allowed into the US, 

however, they would have a significant incentive to resume 

dolphin-sets. 

(3) There are ample supplies of dolphin-safe tuna available on 

world markets such that preventing dolphin mortality in the ETP 

has no effect whatsoever on tuna availability or market price. 

(4) Proposals for increasing US dolphin-kill quotas run counter to 

the spirit and letter of the MMPA to reduce kills to level 

approaching zero. 

For all these reasons, we feel strongly that IDCA US dolphin-kill 

provisions should be maintained, without modification. 

D. RBDUCl:RG l:R'l'BRRA'l'l:ORAL DOLPBl:R Jtl:LL LB'VBLS 

4,095 dolphins were killed during 1994 by tuna purse-seine 

fleets, primarily from Mexico, Venezuela, Vanuatu, and the United 

States. Unfortunately, 1995 dolphin kill levels are not expected 

to decline significantly, and may in fact increase. 

{9) 
116 

Recent assessments of dolphin populations in the Eastern 

Tropical Pacific ocean (ETP) have demonstrated that the long-term 

effects of decades of massive dolphin kills are more severe that 

previously understood. The 1993 National Marine Fisheries Service 

Assessments demonstrate that the northeastern offshore spotted 

dolphins (Stenella attenuata) and the eastern spinner dolphins 

(Stenella longirostris orientalis) are both severely depleted. 

The northeastern offshore spotted dolphins -- the primary target 

of the ETP tuna fishery -- have been reduced to only 23% of their 

pre-exploitation population size, far below the 60% threshold used 

for full protection under the Marine Mammal Protection Act. 

(Source: NMFS Administrative Report LJ-93-18; August, 1993) 

Further, major portions of the dolphin populations in the ETP 

continue to be subject to repeated chase and capture in this yearround fishery. Studies have shown that the stress of chase and 

capture, even ·for dolphins not counted as injured or killed, is 

suspected to cause numerous physiological problems for the 

survivors. 

U::I. THE ADM:IN:ISTRAT:IOIII POS:IT:ION, :IF ADOPTED, WOtiLD 

CONST:ITUTE A SER:IOtJS SETBACK FOR DOLPH:IN COIIISBRVATl:ON. 

A. CED:ING AtJTHOR:ITY TO THE :IATTC 

We are deeply concerned that the Administration's position 

advocating the lifting of tuna import embargoes and ceding of US 

dolphin protection management authority to the IATTC signals a 

dangerous retreat in US conservation policy. Such a position 

would reverse the MMPA and !DCA policy directives to seek a global 

moratorium on the practice of encirclement of dolphins, and damage 

the effort to bring dolphin-kills to levels approaching zero . 

(10) 
117 

The IATTC is a fishery treaty, whose mission is to ensure 

sustainable tuna production. Only secondarily does it attempt 

minimize dolphin kills. The IATTC has no binding mandate to 

eliminate dolphin mortality, and some aspects of its program may 

encourage increased setting of nets on dolphins. 

The IATTC has numerous other structural problems that limit 

its effectiveness. Mexico, the country with the largest fleet 

operating in the ETP, is not a member. Colombia .and Ecuador, two 

other countries active in the fishery, are not members. Most 

countries make little or no financial contributions to the 

operation of the Commission, leaving the United States res~nsible 

for upwards of 90% of the IATTC budget. Decisions at the I~TTC 

must be taken by consensus, giving veto power to every member. 

Further, the La Jolla Agreement, to which the US would cede 

authority over dolphin protection, is at best ambiguous in its 

legal status. It was not ratified by the countries that are 

parties to it, nor adopted pursuant to the IATTC. Quotas, 

observer rates, equipment requirements, and penalty provisions 

established under it are not binding. 

The Justice Department stated the US's position on the IATTC 

agreement in court (Sabella et al v. USA; C.A. No. 94-0350 JLG): 

"The June 1992 IATTC Agreement and Resolution 

submitted by the plaintiffs do not have the force or effect of binding international agreements under 

international law. The documents constitute an informal 

arrangement among the participating countries, but they were not signed or entered into force under either 

domestic or international law. As such, the Agreement 

and Resolution, while they represent commendable and 

effective efforts at reducing dolphin mortality by 

foreign fleets, cannot bind the United States Congress, 

the Executive Branch, or the Judiciary in enacting, 

implementing, and construin~ the MMPA." 

(11) 
118 

It is our view that until the IATTC is properly re-structured, it 

should not form . the basis for US dolphin conservation policy. At 

a minimum, the La Jolla Agreement must be adopted by the IATTC and 

ratified by all member governments, and all nations currently 

fishing in the ETP should become members of the Commission. 

B. GATT, TBB WTO, UD IIAP'l'A DO HOT PROVIDI: LBGITIIIATB 

RBASORS TO ALTI:R OS DOLPBIR PROTBC'l'IOH POLICY 

We do not believe that US law and policy aimed at ending the 

practice of setting nets on dolphins should be undermined in 

response to pressure from trade institutions. This Committee has 

been repeatedly assured by US Trade Representative Mickey Kantor 

that our conservation laws such as the Marine Mammal Protection 

Act are safe from GATT attack. 

No one has ever seriously claimed that US dolphin protection 

laws are "trade protectionist.• Insofar as combating 

protectionism is the central purpose of GATT, it makes little 

sense that us dolphin protection laws continue to be subject to 

GATT pressure. Further, current US law meets all GATT'S legal 

requirements for "non-discrimination•. Americans have · the right 

to decide what products shall be sold in the American marketplace. 

We believe that maintaining a marketing regulation that only 

dolphin-safe tuna be sold in the US is consistent with current 

GATT rules and past Dispute Panel interpretations. 

The Administration's proposal to lift the current tuna 

embargoes is both damaging to dolphin conservation and a dangerous 

signal of US willingness to subjugate environmental laws to flawed 

GATT standards. 

(12) 
119 

1. Capdpg Bi,ghu Dolphi,p KUla 

Primary and secondary nation embargoes have been a major 

impetus behind the continued reductions in dolphin mortality. 

Tuna import restrictions have helped stop the "laundering• of tuna 

into US markets, and have provided a disincentive for other 

countries to purchase dolphin-unsafe tuna from embargoed nations. 

At least until fail-safe mechanisms have been developed to prevent 

laundering, current restrictions should be maintained. 

Further, lifting primary nation tuna embargoes and allowing 

dolphin-unsafe tuna imports from those countries participating in 

the IATTC "La Jolla Agreement• puts the US in the position of 

sanctioning international kill quot:a levels much higher than 

should be allowed. The 1995 "La Jolla Agreement" quota of 9,300 

allows a kill more than twice the actual dolphin kill for 1994. 

The 1996 proposed level of 9, 000 again provides absolutely no 

incentive for reduction from the current kill level of 4,035, and 

no assurances that the kill level will not increase to 9.000 or 

more . 

2. ••tablbhi.pg a Dapguou• Pnc;•4•pt 

Current proposals to lift embargoes, allow imports of 

dolphin-unsafe tuna, ·and increase US dolphin kill quota levels are 

contrary to the stated assurances from both the Bush 

Administration and the Clinton Administration not to weaken US 

laws as result of pressure from GATT or NAFTA. 

Weakening the MMPA in response to GATT pressure holds 

frightening implications for a variety of environmental protection 

laws. This policy reversal is of particular concern in view of 

(13) 
120 

the Administration's prior statements that both GATT Panel rulings 

were fundamentally flawed. Further, neither Dispute Panel ruling 

has even been adopted by the GATT General Council. 

In addition, trade sanctions for failure to meet the driftnet 

ban agreements or the Convention on International Trade in 

Endangered Species (CITES) requirements, are often the only 

effective means of ensuring ecologically responsible practices. 

Such sanctions are particularly necessary when the resources are 

comprised of highly migratory or threatened species. 

XV. UNDOB PRBSSURB I'R.OII I'ORBXGB GOVBIUIJIIBJITS 

We must point out our concern with the lobbying campaign 

against the Marine Mammal Protection Act by three Latin American 

nations and their tuna industries. Venezuela, Colombia and Mexico 

have employed some of the most powerful law firms and lobbyists in 

Washington to influence Congress and the Administration to open 

America's doors to dolphin-unsafe tuna. 

Colombia interests employ Akin, Gump, Strauss, Hauer and 

Feld, the law firm of former Democratic Party chief Robert Strauss 

and Vernon Jordon, who chaired the Clinton White House transition 

team. Akin Gump also·assists the Norwegian government to 

influence the strong anti-whaling policy of the US. Venezuela 

employs Arnold and Porter, Washington's largest firm. And doing 

lobbying for Mexico is Gold and Liebengood, a prominent Washington 

public relations firn,. 

Each of these foreign powers -- and their tuna industries --

is paying hundreds of thousands of dollars annually to undermine 

(14) 
121 

us law and government policy on dolphin conservation, according to 

filings with the Justice Department under the Foreign Agents 

Registration Act. Millions of dollars have been expended thus far 

in efforts to reverse the dramatic progress in wildlife protection 

under the MMPA . 

The conservation and animal welfare community does not have 

such enormous resources, nor the personal contacts of these wellconnected lobbyists, to gain high-level entree to the White House, 

the State Department, and to members of Congress . 

We do not believe that foreign governments and foreign 

fishing industries should be allowed to buy influence over mari ne 

mammal protection policy. No other nation would allow such 

foreign intrusions into national policy. Sound public policy and 

good science should not be abandoned for political considerations. 

V. SB'l"l'UlQ '1'RB UCORD S'l'RAJ:CDI'l' 1 IIY'l'IIS J:R '1'RB BTl' PJ:SDRY 

A. Myth 11: J:ncrea•ec! :DOlphin-Safe Pi•hing 1• 

Damaging the B'l'P Pi•hery 

There is no factual basis for any claim that the ETP has 

suffered damage since dolphin-safe policies went into effect in 

1990. In fact, the results of the past five years show just the 

opposite. 

Since the inception of dolphin-safe policies, fishing 

pressure in the ETP has been significantly reduced . This has 

benefited the status of ETP fish stocks. 

Compared with 1989, the last year before the dolphin-safe 

policies took effect, today there are fewer purse-seine vessels 

operating, fewer sets are being made on dolphins, and less tonnage 

(15) 
122 

of yellowfin and skipjack being caught. Catches of the primary 

target species; yellowfin tuna, are down about 25% over the five 

year period (see below). 

YEAR ETP YELLOWF:IN CATCH 

1989 318,980 

1990 301,417 

1991 263,400 

1992 262,660 

1993 249,486 

1994 238,000 

(Data from IATTC; Background Paper 1; June, 1995) 

Yellowfin and skipjack tuna recruitment, average size, sex 

ratio, and catch per unit effort all establish that the ETP 

fishery is in healthy condition. In fact, in 1994, the Commission 

determined that the stock of yellowfin is currently at a level of 

abundance "greater than optimum" (IATTC; '94 Fishing Year; 

Background Paper 1; June, 1995) 

Some have falsely claimed that dolphin-safe fishing is 

resulting in damaging levels of bycatch as a result of increased 

concentration on log sets and school sets. 

However, IATTC's own data demonstrate that there has been no 

appreciable increase in the number of logs sets or school sets in 

the five years since dolphin-safe policies were adopted. 

We strongly support efforts to eliminate bycatch, in the ETP 

and in other fisheries and encourage the appropriation of funds 

for research into more effective fishing methods. The solution 

should be more investment in research and development of more 

(16) 
123 

selective fishing gear, in accord with the evolving discussions at 

the UN on migratory fish stocks, rather than simply encouraging 

increased setting of nets on dolphins. CUrtailing fish bycatch 

must not be used as a rationale for increased killing of dolphins. 

Myth 12 J)olphin-Safe Polici•• Adoptee! by US 'l'una 

Various statements have been made suggesting that the result 

of companies adopting dolphin-safe policies would be higher tuna 

prices to consumers . 

These are not borne out by market price data. In April, 1990 

the average consumer price of tuna was .62 to .66 per can. 

Throughout 1994, and at present, the price of tuna is . 62 to .66 

per can (Source: Nielsen; Chunk light tuna in water 6-7 oz). 

After inflation, the real price of canned tuna has declined by 

approximately 10% since the dolphin-safe policies began . 

V. COJIJCLUSJ:ON 

Our vi~w remains that the current schedule of declining 

quotas for US vessels should continue, in line with efforts to 

achieve a permanent international ban on the practice of 

international setting of purse seine nets on dolphins . 

Regarding foreign fleets, the US should seek a negotiated 

global moratorium on the practice of setting nets on dolphins. 

Only after concluding such a binding moratorium should embargoes 

be lifted, consistent with the existing prohibition on sale of 

dolphin-unsafe tuna in the US . 

(17) 

2D-276 - 96 - 5 
1~ 

The positions outlined in this testimony are consistent with 

our past views, current law, the millions of constituents we 

represent, and the hundreds of millions of people worldwide who 

want an end to the tragic killing of dolphins. 

Thank you again for the opportunity to express our views on 

this important issue. 

Mr. Chairman, that COIIi>letes my testimony. 

(18) 
125 

STATEMENT 

OF THE 

-AMERICAN -TUNABOAT -ASSOCIATION 

JUNE 22, 1995 

I am Julius Zolezzi, President of the American Tunaboat 

Association (ATA) . I am also the Managing Owner of three tuna 

seiners, and I was a Captain of tuna vessels operating in the 

eastern tropical Pacific Ocean for over 20 years. 

Introduction. 

The ATA has been issued a General Permit that allows holders 

(Operators and Vessels) of Certificate of Inclusions to fish 

tuna/porpoise schools in the eastern tropical Pacific Ocean 

(ETPOl . The issuance of this General Permit by the National 

Marine Fisheries Service (NMFS) is authorized by the Marine 

Mammal Protection Act (MMPA), as amended. General Permits have 

been issued to the ATA since 1974. Under the 1992 Amendment to 

the MMPA, the ATA General Permit will expire December 31, 1999. 

For 1995, NMFS issued 5 Vessel Certificates and 11 Operator Certificates. To compare: in 1981, NMFS issued certificates to 

93 vessels and 165 operators. 

In 1994, the US tuna vessels operating in the ETPO captured slightly over 8 per cent of the total tuna catch of the 

International Tuna Fleet (370,000 tons) or about 31,000 tons. 

Yet, only 5 per cent of such catch or about 19,000 tons was landed in the United States. In 1981, the US Tuna Fleet caught over 396,000 tons in the ETPO, and almost all was landed in the 

United States. 

In 1994, 9 large US tuna seiners fished in the ETPO. During the first quarter of 1995, only 5 such vessels remain in 

competition with 92 large foreign tuna seiners. The US tuna 

Fleet of large seiners or as known in the industry as •super Tuna 

Seiners" (greater than 400 tons capacity) numbered 30 in 1990. 

Po•ition. 

The ATA strongly supports legislation that repeals the "dolphin safe" policies of the MMPA, as they apply to the ETPO, for the 

following reasons: 

the •dolphin •afe• provi•ion• of the 1990 and 1992 Amendment• to 

the MMPA have •eriou•ly injured the US Tuna Fi•hery in the BTPO, 

particularly fi•hermen and ve••el owners, threaten the long-ter.m intere•ts of the American Consumer to have available an adequate 

Page 1 
126 

supply of quality cumed tUDa, and have damaged the integrity and .credibility of the United States iD aattera of TuAa CODaervation. 

1 • :tn General. 

Although US fishermen fishing in the ETPO testified in opposition 

to the proposed legislation, Congress was persuaded to amend the 

tuna provisions of the MMPA in 1990 and 1992. These amendments were designed to prevent, discourage, and eliminate purse seine 

fishing of mixed schools of Yellowfin tuna and porpoise in the 

ETPO . The 1990 Amendment to the MMPA required that tuna caught by encircling a mixed school of tuna and porpoise with a purse seine net could not be labeled by tuna canneries as •dolphin safe•. Then, in an attempt to promote a moratorium on such 

fishing of tuna/porpoise schools in the ETPO, the 1992 MMPA 

Amendment prohibited the marketing of tuna to the American consumer that was not "dolphin safe". In addition to draconian 

reductions in porpoise mortality quotas, the new law required expiration of the ATA General Permit in 1999. Clearly, these 

tuna amendments provided only deterrents and penalties for 

American tuna fishermen to operate in the ETPO. 

The result has been (1) the removal of American tuna 

fishermen and vessels from the ETPO tuna fishery to the Western 

Pacific tuna fishery, (2) the selling of US tuna vessels to 

foreign citizens, (3) the transfer of US tuna vessels to foreign flags of convenience, (4) actions by US fishermen to seek jobs aboard foreign-owned tuna vessels operating in the ETPO, and (5) 

the disappearance in Pacific Coast States and Hawaii of the 

industrial support required to service tuna fleet operations. 

The past four years has been traumatic, chaotic and 

disappointing for American tuna fishermen living in Pacific Coast 

States and Hawaii, and also for those persons who serviced and 

provided products to such fishermen. As predicted before 

Congress, foreign tuna fleets, canners, and related industries 

have benefitted by the removal of American competition caused by the enactment of the 1990 and 1992 amendments. Foreign tuna 

fleets now effectively control almost 100 per cent of the 

production of tuna in the ETPO. In addition, foreign consumers of tuna have benefitted from such change, particularly in Latin 

America. Contrary to the claims of some persons, American consumers of canned tuna have not benefitted from the removal of 

the US Fleet in the ETPO. 

Some persons who testified before Congress in 1990 and 1992 were under the mistaken belief that the American fishermen would 

not give up such a valuable and traditional fishery, and that the 

Americans would somehow find a way of fishing large Yellowfin 

tuna without encircling a mixed school of tuna and porpoise. They thought that "American know-how• would solve the problem 

Page 2 
127 

created by nature when put to the "wall" by legislation. Some 

persons thought that the American tuna fishermen were not 

truthful in stating their experiences and beliefs that the 

Yellowfin tuna fishery could be fished responsibly and 

economically QDly by encircling tuna/porpoise schools. These 

persons also refused to accept the findings of the National 

Research Council report that •no methods of catching tuna without 

killing dolphins - currently available or capable of rapid 

development - are as efficient as current methods of catching 

large yellowfin tuna in the ETP(O) .• (This 1992 report was authorized by Congress in the 1988 Amendment to the MMPA.) These 

persons were also mistaken in their beliefs and opinions that the 

American market, American tuna canners, and American laws would 

force foreign tuna fishermen in the ETPO to fish only "dolphin 

safe". During consideration of the 1992 Amendment, Congress was wrongly misled by some persons who advised that certain Latin 

American Governments were prepared to accept a "global 

moratorium" on the fishing of tuna/porpoise schools in the ETPO. 

These same people were also mistaken in their belief that 

"dolphin safe" fishing practices were responsible and beneficial 

to the conservation of tuna and other fish stocks. time and 

scientific facts have proven that the American tuna fishermen were correct when they testified before Congress in 1990 and 1992 

against the concept of "dolphin safe•. 

2. Fishing tuna •Dolphin Safe• Endangers Tuna Conservation and 

Promotes Irresponsible Waste. 

Scientific facts about the ETPO tuna fishery confirm the 

conclusion explained to Congress by American tuna fishermen that 

"dolphin safe" fishing is "tuna unsafe•. Tuna scientists have 

proven beyond reasonable doubt that the fishing on tuna/porpoise 

schools benefits tuna conservation because it does not threaten 

the survival of "juvenile• tunas. Tunas caught in mixed schools 

of tuna and porpoise are near optimum size (55 lb average) in 

that they have been allowed to spawn many times prior to capture. 

World-renown tuna scientists have proven that fleet-wide 

compliance with the MMPA's •dolphin safe" would reduce tuna 

production, and severely threaten the conservation of ETPO tunas. 

When fishing "dolphin safe", the fishermen capture immature 

juvenile tunas and other non-commercial fish. Scientific studies 

show clearly that substantial quantities of by catch are wasted 

by tuna fishing practices defined by the MMPA as "dolphin safe". 

In most cases, Yellowfin tuna averaging less than 10 lbs are captured. Tunas do not start to spawn significantly until they 

weigh over 25 lbs. During a recent meeting held in La Jolla, 

California, and attended by representatives of Nations whose 

fleets fish in the ETPO, tuna scientists have demonstrated that 

the bycatch problem of "dolphin safe" fishing practices is 

extremely serious and shockingly wasteful. 

Page 3 
128 

By attempting to force tuna fishermen -American and Foreign - to conduct irresponsible and indiscriminate fishing practices 

in order to -satisfy the definition of •dolphin -safe" in the MMPA, 

Congress is promoting irresponsible and unacceptable tuna fishing 

to the economic injury of the American fishermen and to the longterm interests of the American consumer. Tuna scientists have 

declared that the overfishing of the most bountiful Yellowfin tun~ stock in the World would be the direct consequence of 

forcing all tuna fishermen in the ETPO to fish "dolphin safe•. 

This is how the interests of the American consumer, as well as the integrity of the United States, is threatened by the current 

"dolphin safe• policy of the MMPA amendments. 

3, Integrity of the United State• on Tuna Con•ervation ba• been 

injured by it• •Dolphin Safe• Policie• in the BTPO. 

The reason for the establishment of the IATTC was to promote a scientific approach to the stewardship of the tuna resources in 

the ETPO. After World War II, certain Latin American countries 

argued that the American tuna fishermen were fishing 

irresponsibly and threatening the conservation of tuna and other 

related resources. The 1949 Treaty creating the Inter-American 

Tropical Tuna Commission (IATTC) was the United States response 

to this challenge. Regional cooperation in adopting scientificbased measures for the conservation of the tunas and related resources was the objective. 

Unfortunately, the 1990 and 1992 Amendments to the MMPA 

regarding "dolphin safe" represents a unilateral effort by the 

United States to solve a problem that requires regional 

cooperation and multilateral action by the United States and 

other countries. Now, the tuna scientists of the IATTC have 

again reported to its members and the world-wide scientific 

community that the fishing of tuna/porpoise schools by the purse 

seine technique is a sound and responsible fishing a~tivity. 

They have again announced that such fishing technique does not 

threaten the porpoise populations, that the incidental mortality 

of porpoises is effectively at •zero•, that all porpoise 

populations are at levels that •assure their survival in 

perpetuity,• and that a policy of •dolphin safe• fishing adopted 

by all vessels fishing in the ETPO would be counterproductive to 

responsible tuna conservation practices and wasteful. 

These scientists report that a "dolphin safe" policy in the 

ETPO cannot be supported by scientific facts. On the contrary, 

scientific facts condemn such fishing policy. Therefore, for 

Congress not to change the •dolphin safe" policy as it affects 

the ETPO tuna fishery would be contrary to the policy of the 

United States regarding fishery conservation. More importantly, 

the integrity and scientific credibility of the United States has 

already been severely damaged by the defense of the "dolphin 

Page 4 
1~ 

safe" policies during recent meetings of the IATTC and other 

international forums. 

The United States cannot tell Latin American tuna fishing countries that scientific facts must control tuna conservation measures and policies, and at the same time say that scientific 

facts have no application to the fishing of tuna/porpoise schools 

in the ETPO because of the MMPA's policy regarding •dolphin safe" . 

4. The MMPA •Dolphin Safe• Policy has Injured the Pacific Coast 

States Tuna Industry and the US Tuna Fishery in the ETPO. 

time has shown that an American tuna seiner fleet cannot compete with foreign tuna fleets in the ETPO if Americans are denied the 

opportunity to fish tuna/porpoise schools. time has shown that 

economically, such a fleet cannot survive without fishing mixed 

schools of Yellowfin and porpoise. 

The tunas located in the ETPO, south of San Diego, California, have been fished by American fishermen since 1917. 

The American tuna fishermen have made this area the most 

productive Yellowfin tuna fishing grounds in the World. All of 

the major tuna fishing banks located in this area were discovered 

and developed by Americans. All major fishing techniques used in 

fishing Yellowfin tuna in this ocean area were developed by Americans. All of the significant production limits and other 

fishing controls required to successfully implement Yellowfin 

tuna conservation measures in the ETPO during 1966 to 1979 were borne almost exclusively by the American tuna fishermen. All of 

the procedures and fishing gear used to successfully fish mixed 

schools of tuna and porpoise were developed by the American tuna 

fishermen. In 1958, an American Tuna Captain developed the 

procedure to "back the porpoise alive out of the net". In 1971, an American Tuna Captain developed the "Medina net panel" to 

reduce porpoise entanglement. Both ideas. are largely responsible for the success in the ETPO of reducing porpoise mortality, and 

both of these ideas were used by American tuna fishermen before 

the enactment of the MMPA. 

World-wide, fishery scientists recognize that the tuna 

fishery in the ETPO is better documented than any other tuna 

fishery in the world. To a great degree that is a result of the 

catch and effort data recorded by American tuna fishermen and 

others. The collection of such data started with the 

establishment in 1949, by treaty, of the IATTC. This is why the 

dynamics of the Yellowfin tuna stock in the ETPO are better 

understood than are the population dynamics of any other stock of 

tuna in the world. This is why the IATTC's research program, its 

tuna conservation recommendations, and its tuna/porpoise 

Page 5 
180 

investigations have set the standards and represents the •model• 

for studies and comparisons in other areas of the world. 

Today, Southern California is no longer •homeport• to US 

•super Tuna Purse Seiners•. Its ports no longer provide these 

vessels with fuel, provisions, repair and other ship services. 

These vessels no longer unload their catches in Southern 

California. The 1990 and 1992 Amendments to the MMPA were major factors in contributing to the destruction of the California 

•super• tuna seiner fleet and its related servicing activities. 

The fishing boat known world-wide as the •super Tuna Purse 

Seiner" was built and designed by the shipyards in San Diego, California, and Tacoma, Washington, for California fishermen. 

Today, every nation engaged in tuna fishing has adopted the US 

"Super Tuna Purse Seiner" design. This is because in the mid 

1960s the production of frozen tuna for tuna canners was revolutionized by the California development of the •super tuna 

Seiner". Ironically, today, the benefits of such development are no longer enjoyed in California . 

Today, the California Tuna Industry - the birthplace of 

canned tuna in the United States - no longer produces enough canned tuna to meet the demands of the citizens of California let 

alone of the United States. Only~ small tuna California 

cannery operates to serve US tuna vessels in the continental 

United States. Only~ canneries operate in Puerto Rico. Only ~ canneries operate in American Samoa . No tuna canneries are operating anymore in Hawaii. 

Despite its many achievements, sacrifices, and contributions 

to the Tuna fisheries of the United States for the past 92 years, today, the American Tuna Fleet is no longer a significant factor 

in the production of tuna in the ETPO. Only with a change in the 

MMPA regarding its "dolphin safe" policies, can the American Tuna 

Fleet restore a US tuna fishery in the ETPO. 

Conclusion. 

The survival of the US Tuna Fishery in the ETPO is at stake 

at this hearing. The interests of the American consumer have not 

been advanced by the 1990 and 1992 MMPA Amendments. The 

interests of the United States in the conservation of tuna and 

other living resources in the ETPO require a change in the 

"dolphin safe" policies of the MMPA. I respectfully urge you to 

support legislation that will repeal the "dolphin safe• policies of the MMPA as they relate to the tuna fishery of the eastern 

tropical Pacific Ocean (ETPO) . 

Page 6 
131 

Thank you for the opportunity to submit this statement. 

* * * 
132 

\.'r ---v 

The 

-r(5~ Plsbermen's Coalltfon 

826 oi.nee AY- 1504 

C:Ofti!Mdo, CA il2118 USA 

• (GI8) 575 4054 

""' (618) 575 !1!178 

Testiaon}" to conqress !)}" The J'isheraen•s coalition on the review- of u.s. poliO}" as it relates to 

the Yellowfin tuna fisher}" of the eastern tropical 

Pacific ocean June 22, 1tt5 

Gentlemen and Women of Conqress: 

We appreciate this opportunity to comment on u-.s. policy as it relates to the yellowfin tuna fishery of the eastern tropical 

Pacific Ocean. 

The Fishermen's Coalition is a non-profit orqanization 

founded in 1992 by fishermen and other concerned citizens. The 

qoals of the Fishermen's Coalition are to educate the public 

about responsible fishinq practices and the importance of fishinq 

in providinq food to the world, to promote fishinq as a viable career and to celebrate and secure seafarinq communities. 

Fishinq People an4 the Marine Kamaal Protection Act 

To a fisherman, his boat is everythinq: It means food on the table, shelter for his family and the chance to fulfill the 

dreams of a better life for his children. He mortqaqes the house 

to make the payments when fishinq is ,.poor. He pays down debt 

with the sweat of hard work when fishinq is qood. The boat is 

his means to an honest livinq. 

All fishermen depend on a healthy ocean and live within 

constantly chanqinq fishery quidelines to protect the resource on which they depend. The Marine Mammal Protection Act (MMPA), much more restrictive than the Endanqered Species Act (ESA), qoes 

beyond protectinq the resource J)y demandinq that, no matter how 

plentiful marine mammals are, take by u.s. citizens must be 

reduced to levels approachinq zero. For fishermen and fish, this 

spells biq trouble. 
133 

There is not a fishermen in the world who can leave the dock 

without an allowance for marine mammal interaction and mortality. 

Every farmer knows agricultural harvests have accidental kills of 

animals and birds in the fields. No farmer or rancher could 

function under regulations prohibiting any takes of nuisance 

animals or any incidental kill of rodents, mammals or birds in 

food production process. Yet little thought is even to the 

impact comparable restrictions have on fishermen. 

We have lost the only real basis government should utilize 

for restricting fishermen's access to fisheries: science and 

sound conservation policies. The capricious nature in which laws 

and regulations have been promulgated has undermined confidence 

in what has always been a risky endeavor. Banks are hesitant to 

make loans, insurance companies are wary of the increased risk 

and fishermen are tired of fighting an endless stream of 

regulations. Regulations based on biases and bureaucratic zeal, 

not science, do not allow fisherman the flexibility to operate his boat as he needs, maximizing the use of his investment to 

satisfy an increasingly competitive global market. our fisheries 

policies are bleeding fishermen dry. 

southern california's TUna Fishermen 

In southern California, the u.s. high seas Pacific tuna 

fleet has been reduced by one third and the u.s. presence has 

been virtually eradicated from the eastern Pacific; This 

devastation is a direct result of the adoption of the "dolphin safe" policy by three major canners and confirmation of this 

policy by Congressional act stating "it is the policy of the 

United States to eliminate the marine mammal mortality resulting from the intentional encirclement of dolphins and other marine 

mammals in tuna purse seine fisheries." 

There are ten million dolphins present in the eastern 

tropical Pacific (ETP) yellowfin tuna fishery, an area almost 

three times the size of the United States stretching across the 

Pacific from California to Chile and out to Hawaii. The rate of 

marine mammal mortality in this fishery is far lower than 

virtually any fishery in the world and far pelow the most 

conservative estimates of sustainability. Despite this fact, the 

previous congress, afraid of being accused of not loving 

dolphins, decided to "eliminate" marine mammal mortality in this 

fishery. The simplistic solution of eliminating dolphin mortality by technically banning fishing activity of large tuna 

associating with dolphins was clearly not appropriate and set a dangerous precedent for marine conservation policies worldwide. 

It is not surprising that other fishing nations found this policy 

to be unacceptable. · 

In order to meet the definition of "dolphin safe," u.s. fishermen in the eastern Pacific attempted to fish on tunas not 

2 
184 

the eastern Pacific are well documented7 approximately thirty 

percent of the catch is discarded at sea and the harvest of 

immature tunas threatens the future of the tuna fishery. u.s. boats in the eastern Pacific declined from 35 to 4 from 1990 to 

1995. 

To survive, most of the u.s. tuna fishermen shifted 

operations to the skipjack fishery of the western Pacific. The 

financial cost of movinq to the western Pacific has taken its 

toll on the fleet. The result: the Pacific hiqh seas tuna fleet 

declined fully thirty percent, from 65 to 45 boats, durinq the 

period 1990 to 1995. 

Pishinq Boats are Private Property 

A boat is private property. Fishermen pay taxes on boats, 

just like any private property. If a u.s. flaq boat is seized in a foreiqn country, the·u.s. qovernment sends gunboats to rescue it. The u.s. takes the-validity of u.s. owned property 

seriously, no matter where that u.s. property sails. 

In hope of awakeninq Conqress to the severity of its 

actions, members of the Fishermen's coalition asked for a "takinqs assessment" in 1993 from the qovernment for the affected 

boats in this fishery. As stated by Executive Order 12630: 

"Restrictions on the use of private property shall not be 

disproportionate to the extent to which the use contributes to 

the overall problem that the restriction is imposed to redress." 

There is no conservation reason for "eliminatinq" unintentional, 

accidental and unavoidable mortality of the mammals in this 

fishery, and other fishery or any aqricultural harvest on land. 

Therefore the restrictions placed on the u.s. tuna fleet are excessive and confiscatory. Althouqh it has been two years since 

the fishermen requested the law be reviewed for takinqs 

considerations, the government has not yet responded. 

Simply stated, if Conqress wants to turn the ocean into a marine mammal park, then it should pay displaced fishermen for 

this decision and not hide behind regulatory flim-flam. Private 

property needs to be respected in our search to find solutions to 

environmental issues or vital human activity will be "eliminated" 

in the quest to "save" the earth from both real and imaginary demons. 

Riqht the wronqa 

We urqe Conqress to riqht the wronqs done to the fishermen. 

We support policies which recognize and confirm: 

the importance of u.s. citizens operatinq on the high seas to produce food for the world7 

3 
1~ 

respect for property rights by governmental actions is 

paramount to maintaining healthy, functioning industries: 

continued access by u.s. citizens to healthy fishing grounds is vital; 

long-term thinking in policy-making ensures security 

necessary to attract capital investment: 

the value of open trading patterns and good international relations; 

the good sense of marketing programs which support valid conservation efforts: and 

the worth of science-based, multi-lateral programs to manage fisheries sustain~bly. 

We support the successful programs of the Inter-American Tropical Tuna Commission (IATTC) and their efforts to reduce marine mammal mortality in this fishery. The current U.S. policy on dolphins is based on pure emotion and undermines the IATTC and bodies like it which apply scientific approaches to fisheries 

management issues. We applaud the IATTC's progress toward an ecosystem analysis of gear used in this fishery on a seasonal, area and species basis. Participation in the IATTC program should be the standard for operation in the eastern-tropical Pacific Ocean's tuna fishery and the basis for conservation of the many species which call this ocean home: tunas, sharks, billfish, turtles, dolphins ~ fishermen. Survival of mankind depends on our ability to maintain healthy fisheries ~ fishing communities. 

Thank you for your time and consideration 

Teresa Platt, The Fishermen's Coalition 

Other supporting organizations: 

Alliance for America 

Blue Water Fishermen's Association 

California Taxpayer's Network 

Communities for a Great Northwest 

East Coast Fisheries Federation, Inc. 

PUtting People First 

East Coast Tuna Association 

Defenders of Property Rights Alliance for Environment and Resource 

National Animal Interest Alliance 

4 
136 

July 14, 1995 

Honorable Don Young, Chainnan 

Subcommittee on Fisheries, Wildlife and Oceans 

Committee on Resources 

U.S. House of Representatives 

805 House Annex 1 

Washington, D.C. 20515 

Re: June 22, 1995 Hearing on Eastern Pacific Tuna Conflict 

Dear Chainnan Young: 

Greenpeace appreciates the leadership role that you and other Members of the Subcommittee 

on Fisheries, Wildlife and Oceans are taking in examining important fisheries issues in the 

context of the reauthorization of the Magnuson Fishery Conservation and Managemem Act. 

In that regard, your Subcommittee's hearing of June 22, 1995 provided a welcomed 

opportunity to address matters related to the ongoing Eastern Pacific tuna conflict. 

At the June 22nd hearing, the Center for Marine Conservation presented testimony that was 

co-sponsored by Greenpeace and several other environmental organization. In light of other 

testimony presemed during the hearing, my organization would like to talce this opportunity 

to supplemem that testimony. For that purpose, we respectfully request that this letter be 

made part of the official record of the hearing. 

INTRODUCTION 

As background, Greenpeace International is an environmental organization with offices in 30 

countries on four continents supported by almost 5 million people worldwide. For nearly 

two decades, Greenpeace has been actively involved in conservation of marine biodiversity 

with a focus on the threats posed by unsustainable development. One of these main threats is 

the adverse impacts of large-scale fiShing. 

Working with other non-governmental and f!Shworkers organizations worldwide, Greenpeace 

has been on the forefront in calling attention to the global fisheries crisis and working toward 

urgently needed solutions that are both ecologically sound and socially equitable.(!) In this 

regard, Greenpeace is actively involved intl!rnationally and nationally to achieve 

precautionary approaches to fiSheries management, strong legal frameworks for conservation 

in fisheries in general, and in commercial tuna fiShing more specifically. The Eastern 

Tropical Pacific (ETP) tuna fisltery, an area of international and national waters stretching 

from coastal waters of Mexico to Chile and into the high seas, is but one of many regional 

examples of fiSheries conflicts over marine living resources. (2) 

1436 U Street, NW•Washington, DC 20009•Tel (202) 462·1ln•Fax (202) 462-4507•Tbc 89-2359 

Alllrina; Austnllia • Auslrio • eOigun. Brazi • Canada •Chile • Czec:ll Aep.iJ1c • OerrnaJi< • Fnlard • Frarce • Geonany • an..,;, • Guatemala •Ireland •Italy 

.-.•L.uxemboulg•Mexoco•Tl'e-·-Zealond•No!woy•-·Spoin•s-•Swilzerland•Tunisia•U-•lkliledl<ir¢lm•USA 

"""""'"'~·--usi'9""""""Y-Sov ... 
137 

2 

It is critical to view the ETP tuna fishery against the backdrop of the very real challenges 

every nation faces with regards to fiSheries and marine biodiversity today. Globally, 

fisheries are in crisis. The UN Food and Agriculture (F AO) reports thst the majority of 

commercial fisheries are fully or over~xploited. Overall, bycatch estimates conservatively 

range from 17 to 34 million metric tonnes annually, not including marine mammals, sea 

birds and some invertcbrates.(3) 

Much of this crisis is fueled by over-capacity of large-scale fishing fleets, market-driven, 

short term strategies coupled with subsidization of large-scale fleets and a generalized lack of 

or in many cases ineffective conservation and nlanagement at all levels. The FAO, in the 

same report, points out thst "annual economic losses were estimated to amount to more than 

$US 50,000 million and were compensated by subsidies. In addition, 46 percent of the 

landed value of total world catches were required as a return on capital invested in the fleet 

and this was disproportionately high. "(4) 

The ETP commercial tuna fishery, using purse seine technology to capture tuna, is not 

isolated from the global dynamic of increasing competition for marine living resources. The 

same national and international tendencies toward deregulation influence this fishery and are 

coupled with competition and pressure to increase catches and capacity. In the absence of 

effective regional management and controls, deregulation (especially regionally), would lead 

to increased adverse impacts on fish stocks, associated and dependent species such as 

dolphins, other marine species and the marine ecosystems. 

At a meeting in June of the International Review Panel, a multilateral body operating under 

the auspices of the lA TIC La Jolla Agreement, nations requested dolphin mortality limits for 

the second half of 1995, in order to accommodate an increase of 35 vessels, up from no 

more than two vessel requests for the second half of 1993 and 1994. This sigualled an 

increasing interest of vessels to enter the ETP, and in particular, to fish on dolphins.(5) 

TIIE ETP COMMERCIAL FISHERY TODAY 

Vessels from 12 nations target primarily yellowfin and skipjack tuna in the ETP. In 

1994, the nations with the largest flagged purse seine fleets there were: Mexico (41 vessels 

of carrying capacity between 300 and more than 400 tons); Venezuela (20 vessels); Ecuador 

(14 vessels); and the United States (11 vessels). Vanuatu, Columbia and Panama also fish in 

the area. All of those nations have participated on an on-going basis in the regional. fisheries 

control and management efforts of the Inter-American Tropical Tuna Commission, including 

the La Jolla Agreement. Other nations with vessels in the fiShery, e.g., Spain, Belize, 

Cypress, St. Vincent and the Grenadines and New Zealand, have not participated in any type 

of fisheries management or control.(6) For twentY years, because of public outcry and 

because the U.S. fleet historically has been responsible for around 80 percent of dolphin 

mortality in the fiShery, the U.S. Congress has consistently passed legislation aimed at 

protecting marine mammals in the ETP. (7) The La Jolla Agreement, as described in footnote 

(8), establishes a regional management and control program overseen by the International 
138 

3 

Review Panel, which c:urrently focuses only upon addressing dolphin monality in the fishery. 

That agreement is an indication tbat tbe participating states are willing to work togetber and 

with other sectors such as industry, non-govermncntal organizations and civil society to solve 

international fiSheries conflicts and protect and conserve fisberies. 

Looking to the future, a key cballenge facing tbe United States is to achieve solutions to the 

fisheries conflicts in tbe Eastern PacifiC that balance tbe needs of tbe different sectors in our 

societies, achieve tbe highest conservation standards for our oceans and living marine 

resources as well as set an example of cooperation for our neighbor nations of the world. 

MULTilATERAL SOLUTIONS TO AN INTERNATIONAL CONFUCf 

It is worth noting that at least tbe majority of tbe U.S. fishing industry recognizes tbe 

international character of fisheries and tbe need to support and encourage strong multilateral 

controls. Consistent therewith, it was encouraging to bear that tbe National Fisheries 

Institute in tbeir statement to tbe Subcommittee believes that "stronger international 

arrangements are essential. "(9) · 

Since tbe Iaie 1980s, Greenpeace consistently bas advocated for regional and multilateral 

cooperation to solve tbe problems of dolphin deaths and otber enviromnental impacts In tbe 

ETP tuna fiShery. As part of tbat effort, Greenpeace applauded tbe establisbment of the La 

Jolla Agreement in 1992, with its goal of "eliminating dolphin mortality in this fishery, (and] 

seeking ecologically sound means of capturing large yellowfin tunas .... • That program, with 

tbe cooperation of fisbermen, scientists and NGOs from many countries, bas achieved a 

reduction in dolphin mortality from between 80,000- 100,000 animals annually to 4,095 

dolphins in 1994.(10) Tbe program bas functioned despite certain weaknesses tbat should be 

addressed in order to assure it continues to contribute to conserving and protecting all the 

marine species in tbe fishery, illcluding tbe tunas and tbe dolpbina as well as tbe otber fishes and marine wildlife. 

Tbe Lalolla Agreement's multilateral approach bas many of tbe elements needed for 

cooperative conservation and management of international marine life and oceans. Tbe 

regional program links different mechanisms into a regional regulatory system. It illcludes: 

100 percent scientific observation and data collection of fishing practices by tbe international 

fleet linked to reporting and oversight by tbe International Review Panel (IRP); standardized 

regional training of fishing captains and crews; certification, Iiceming and registries for tbe 

fleets; and stanilardized identification of infractions and followup on governments' actions on 

sanctioning vessels. Those initiatives are underpinned by ongoing scientific assessment of 

certain species in tbe fishery as well as research and monitoring of otber bycatches and waste 

of marine wildlife. 

An important component of tbe program bas been tbe IRP, which monitors and oversees 

fiShing activities in tbe ETP, identifies infractions, follows up on government sanction-related 
139 

4 

actions, and recoiJIJIIeDds policy and management measures to participating stares. Working 

with NGO colleagues from Latin America, Greenpeace bas participated in the IaP since 

being elected to one of the NGO seats in 1992. It is impo11aot to note that NGOs hold 

independent seats on the panel; wbicb serves as a model for other fora since most national, 

regional or international management bodies limit NGOs to either joining a governmental 

delegation, wbere they must represent that delegation's view, or to being observers, with few 

rigbts to participate. 

UNITED STATES REGULATORY ACTIONS, COOPERATION AND CONFUCT 

The ongoing efforts, to address nmaldolpbin conflicts, by the U.S. Congress through the 

MMP A bave been important especially with regards to cmmbuting to bigh standards in 

regional conservation and in terms of financial support for the lA TIC and ongoing 

programs. At the same time, the United States' imposition of ongoing unilateral embargoes 

bas been a preoccupation that, at times, overshadows whatever regional progress bas been 

accomplisbed. Those embargoes are in place against many of the other nations in the fiShery 

for failing to meet US standards. In Greenpeace's view, those unilateral embargoes bave 

become counterpioductive to reacbing solutions in tbe ETP. 

[ 

Perhaps due to the commercial character and competition within the ETP fiShery, tbe 

ongoing viability of regional cooservatinn and management appears always to be in question. 

Not only does this undermine stability for the environment, it bas a deleterious impact on the 

fiShermen. Management and cooservation in the fishery, especially over tbe ntedium and 

longer term, should not be subjected to change each time market conditions or a particular 

industry's or fleet's commercial strategies are altenid. Tbis is certainly no way to prntect the 

environment.] 

In addition, though the program is working, many problems bave been encountered from a 

structwal and legal point of view. For these and related reasons, participants in a June 1992 

IRP meeting urged the consideration of a .legal instrulnall to strengthen tbe Agreemenl -

inCluding, inter alia, a new.treaty or a protocol to the Convention establisbing the IATTC. 

Given that the U.S., Mexico, Columbia, Vawatu and Venezuela are all members of the IaP, 

wbicb made this rec:ommendation in 1992, progress toward a legally binding prntocol should 

be swift.(ll) 

ATOC's AMENDMENTS: CONFUCTS IN RETURN FOR SHORT-TERM ADVANTAGE 

One small sector of the U.S. fisbing industry, represented by the American Tunaboat Owners 

Coalition (ATOC), is (>llfSUlnl radk:al•mcnd!DC!!II to the MMPA which, If agreed, would 

facilitate conflict rather than conservation in the ETP tuna fiShery. Greeopcace is coDCCrned 

with the implications of the ATOC's recnmmcnd•ti<>ns to Congress, wbicb state that;(12) 

envision a regulatory regime that is essedially the same as under the permit 

issued to the American Tunaboat Association (Malina panels, backdown, 
140 

5 

swimmers in the waters, etc.) but subject to the quotas in the lA ITC program, 

including per-boat quotas which were not used in the previous U.S. regulatory 

program. The biological limit on mortality would be those in the lA ITC 

program as limited by the standard set forth in the 1994 MMP A Amendments 

for other domestic fisheries -- the potential biological removal levels for each 

affected stock of marine mammal. 

Quite simply, this proposal totally disregards and vitiates long-standing goals established by 

the U.S. Congress to bring marine mammal mortality to "levels approaching zero." Ignoring 

all the cooperative initiatives that .have been undertaken, the A TOC proposes a regulatory 

program that would not include the stricter inflllctions and sanctions defined by the La Jolla 

Agreement, and makes the outrageous suggestion that they be granted individual boat quotas 

"as limited by the standard set forth in the 1994 MMPA Amendments .. . " 

The ATOC' s proposal essentially would mean that, while the entire international fleet is 

achieving an overall real mortality of no more than 4,095 dolphins, the U.S. fleet is asking 

for a quota to ldll more than 5o;ooo dolpbins.(l3) As such, it directly contradicts their 

statement that they be treated "no differently than foreign fishermen operating uudcr the 

lA ITC program." Historically, the A TOC bas argued for special exemptions to the MMP A 

as compared to U.S. flsbermen. However, they rally behind the banner of "equal 

protection," as per note 16 of their testimony, when they perceive it to be in their 

commercial favor.(14) 

It is no irony that, over the past two decades, U.S. tunaboat owners have argued for and 

until only recently received special exceptions under the MMPA, setting the fleet apart from 

other U.S. fishermen. The fact remains, though, that the ETP is an international fishery 

with different characteristics than a national fishery. Clearly, the only parity the ATOC 

should suggest in this case would be that that which seeks to achieve the highest standards of 

conservation and equity in the international fishery in the ETP. 

It appears that the ATOC believes Congress' role in formulating the laws ofthe U.S. should 

focus only upon one small sectors' perceived commercial advantages. To take such action 

however, would be a recipe for chaos in the fishery. Regrettably, the owners coalition seems 

intent on investing almost exclusively in short-term commercial fishing strategies, rather than 

in working cooperatively with Congress and other nations and industries to achieve long-term 

stability and conservation of marine ecosystems and marine species. 

If tunaboat owners were truly invested in the viability of the ETP PS well as other 

commercial tuna fisheries there have been innumerable opportunities to make valuable 

contributions. For example, an outstanding problem in international fisheries of the 1990s 

bas been fleet migration to avoid regulation. This is what the U.S. tuna fleet did in 1992 --

invested "$1 million per vessel" refit the vessels and fled to less regulated fishery in the 

Western PacifiC OceaO. Another option could have been to invest that $1 million per vessel 

into new more selective technologies, enhanced regional management and scientifiC research. 
141 

6 

PRECAUTIONARY APPROACHES TO CRISIS PREVENTION 

This decade has seen the emergence of a new and wise recognition of what. is ueedcd 

to help solve the serious problems afflictina fisberies: a precautionary, ecosystem approach to 

managing fisberies. In the ETP, as in all COIIIIIICICial fisheries, this approach urgently is 

required. Generally stated, this means that where a potential hazard exists, cautious safety 

measures should be adopted even wbeo tbele is no definitive evidence that tbere is a 

threat.(1S) 

Since the beginning of the 1990s, this approach bas become established in international law 

and is included iD the. most n:ccot, nearly coocludcd draft treaty of the UN Conference on 

Slraddling Fish Stocks and Highly Migratory Fish Stocks. Nations with ioleresls in and/or 

involved in the ETP tuna fisbery could only be considered IeSpODSible if they heed· this 

approach and actively seek to incorporate it into regional management. To accomplish this, 

though, States need to take several urgently needed actions - both oatiooally and 

multilaterally. 

This First Session of the I 04th Congress bas the opportunity to take wise action related to 

the ETP, and for fisheries in general, by mandating application of a precautionary approach 

in fisheries. Without prejudicing the precautionary actions required for the fishery as a 

whole, multilateral action on non-t.arget species bycatches from log fiShing and school fishing 

is a priority. This is especially true, given data emerging from the ETP which indicates that 

purse seine fishing through the means of setting on floating objects and setting nets on school 

fish result in bycatches.(16) 

Against the backdrop of the global fisberies crisis, the issue of ~n-t.arget bycatches in the 

ETP fishery requires immediate at.teotion. The UN Food and Agriculture Organization 

estimates that every year, conservatively, between 17.9 to 39.5 million metric tonoes of 

marine species are discarded each year in fisheries - more than one-third the weight of all 

reported marine landings in commercial fisheries worldwide.(17) · 

• 

Unfortunately, the U.S. and other fiShing industries have obscured this important issue, 

nationally or regiooally, by linking ·it ooly with cleregulation strategies and ' dolphin safe' 

labeling programs. Yet neither approach adequately contributes to solving the problems of 

fishing impacts on other non-t.arget species.(18) However, this should ·not be used as an 

excuse for refusing to act upon the emerging problems with other purse seine fiShing 

practices. Instead, the success of the La Jolla program in reducing dolphin mortality should 

make it clear that successful regional conservation measures can be agreed to reduce bycatch 

of noo-t.arget species. 

Tbe U.S., as well as other nations participating in the. La Jolla Agrecmcot, have a unique 
142 

7 

opportunity to address Ibis issue by mandating an international review of the bycatch data 

and pursuing management and conservation measures in the multilareral framework to 

institure bycatcb reduction measures. Some measures may be as simple as requiring the band 

release of all sea tnrtles captured alive during the course of encirclement on floating objects. 

Others may be more sopbisticared, such as developing time, seasonal and locational 

boundaries around certain fishing practices where high bycatch is expecred to occur. 

The issue of "dolphin safe" labelling regulations is a separare issue. The regulations and 

operations offer many lessons for bow product labelling programs can be improved. 

"Dolphin safe" should be strenglbeoed and broadened to address all bycatcb in all fisheries. 

Linked to regulatory approaches, such as certification programs being developed through the 

Inremational Convention for the Conservation of Atlanlic 1\mas (ICCAT), such certification 

programs could assist in achieving conservation in fisheries. 

For these reasons, Congress should not act hastily on Ibis question. Instead, it would be 

much wiser to mandare broader international review of bycatcb data and tuna fishing impacts 

on marine species and ecosysrems with a dual gnal to establish: 

• multilaterally agreed principles and mechanisms for reducing bycatch in purse seine. 

fishing; and 

• more comprehensive labelling and product certification that both reduce and 

eliminare dolphin mortality and bycau:h and waste of other non-target marine 

species. 

CONCLUSION 

Today the ETP tuna fisbcry and all those involved are confronted with new cballenges and 

new opportunities to achieve progress in developing an important model of cooperation for 

conservation and sustainable, ecologically SOWJd fishing . If achieved, such an approach 

would bcnefn dolphins, other marine wildlife, the intrinsic values of marine biodiversity, as 

well stability for the fishermen and societies of many nations involved in the fiShery. With 

that objective in mind, Greeupcace summariz.cs llcn: tbc following five an:as for which U.S. 

Congn:ssional action is needed: 

• Recognize the La Jolla Agreement and its programs and din:ct the [national 

marine fisberies]U .S. to commence negotiations for a legally binding protocol 

that includes the Agn:cment and program, as well as compliance and 

enforcement mechanisms for parties and non-parties. Once in place, embargoes 

would be linked to compliance with that protocol.; 

• Stipolare that the dolphin mortality quotas in the fishery be grsnred, based on 
143 

8 

die real mortalities as reduc:edycar-by-ycar.; 

• Mandate an intemalional ~ew of bycatdl data from all methods of fishing 

for tuna in tbc Eastern Tropical Pacific; 

• Mandate an intemalional review and tbc establisbmcnt witbin tbc La Jolla 

Agreemem of JIUIII88CDICIIl and CODirol measures to reduce bycatdl of otbcr 

non-target marine wildlife caught in die coorse of purse seine· fishing; and 

• Following tbc ac:c:omplisbmcnt of such measum;, revisit and streogtben 

"dolphin safe" regulations. 

Greenpeac:e Sl8.ff look forward to wottiDg with you and your Subcommittee, as well as 

otbers, as efforts g0 forwanl in add1CssiDs importaDl aspec:U of tbc MMPA'a reauthorization. 

Please feel me to contact us if we can be of further asaistm;e. 

Reapec:tfully submitted, 

Traci Romine 

Fisberiea Campaigner 

Greenpeac:e International 

Gerald l.eape 

Fisberiea Campaigner 

Greenpeac:e, u.s. 
144 

9 

NOTES: 

I. Greenpeace worked with NGOs and flshwodcr groups worldwide to achieve the 

Alternative Fisheries Treaty, Negotiated by NGOs in Rio de Janeiro at the Global Forum, 

June 1-14, 1992, parallel to the UNCED Earth Summit. More than 128 organizations 

worldwide have endorsed the treaty. In addition, the treaty shaped the NGO Slatement to the 

UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, led by 

Gn:enpeace and endorsed by more than 130 organizations from 27 countries. These and 

numerous other joint declarations form a important framework for addressing the reforms 

needed to achieve environmentally sound and socially equilable fisheries. 

2. At the time of this drafting, the MV Greenpeace was operating throughout the 

Mediterranean Sea confronting large fleets of illegal driftnet vessels, using nets longer than 

2.5 kilometers on the higb seas and within coastal waters. Also, see attacbment I and 2 for 

an outline of fisheries battle lines globally and the most =nt submission to the United 

Nations regarding the continuing uses of higb seas driftnets. 

3. The State of World Fisheries and Aquaculture, UN Food and Agriculture Organization, 

Rome, 1995, page I. 

4. A Global Assessment of Fisheries Bycatch and Discards, taken from FAO Fisheries 

Technical Paper No. 338 (intpn:as) 

5. A total of 13 vessels wen: new entries for the 1995 fishing year, the remainder wen: 

requesting second semester DMI.s because they had not used the first semester limit. Four of 

the new vessels wen: less than 400 ton carrying capacity. It has been believed, thougb not 

studied in depth, that purse seine vessels of less than 400 tons carrying capacity an: incapable 

of setting on dolphin. However, the requests for DMI.s indicate that vessels of this size an: 

capable of encircling dolphins. The IRP recommended that these vessels receive DMI.s for 

the quarter in order to carry out an assessmen1 of their dolpbin-fisbing capability. It may be 

that the U.S. National Marine Fisheries Service indicated these smaller vessels wen: not 

capable of setting on dolphins because US vessels cannot venlure far offshore into the 

southern regions of the ETP. Smaller vessels from other nations, however, do not have to 

sail so far to the fiShery when: dolphins an: encircled. 

6. The Fishing Year, Background Paper ! ,55th Meeting of the IATTC, June 13-lS,Table 2. 

7. The U.S. Marine Mammal Conunission, Annual Report to Congress 1994, provides a 

summary of legislative action on Qlna/dolphin, including background on the special exception 

general permit for the U.S. tuna fleet. The most =nt action, in 1992, the U.S. Congress 

amended the MMP A, making it national policy to pursue international negotiations with the 

aim of eliminating dolphin mortality in the ETP. 

8. That same year, a regional International Dolphin Conservation Program (IDCP), otherwise 
145 

10 

known u tbe La Jolla Agreement, was agRCd in Aprill992 by Intergovemmelllal 

Agreemeal by 11 llltioaa with t1ee1s in tbe tiabcry and reaffirmed in La JoUa, California by 

those States in JUDe of 1992 . . The Agreement wu passed u a resolution u well by tbe ~merAmerican Tropical TilDa CommisliOo, wliicb ia tbe Agreemem' a aecretariat. Agreemeol for ' 

tbe Ccmaervation of Dolphins, Summuy Dcx:umt:nlation of Dcciaiona and Recommendations 

of tbe Inter-American Tropical TilDa Commlaaion, lntcrgovemmenral Plenary 8nd 

International Review Panel, Aprii1992-Jamwy I'm. 

9. Testimony of tbe National Fiabcria llillilute, Inc. before tbe Subcommittee on Fisheries, 

Wildlife and Oceana, JUDe 22, I'm 

10. Tuua-Dolpbin Investigations, Background Paper 6, SStb meeting of tbe lA TIC, JUDe 

13-15, 1995 

11. Ibid note 8, appendix 16. 

12. Testimony of Jlmcs P. Walsh,~ tbe American Tunaboat Ownen Coalition, 

before tbe Commiaec on Resoun:a, HOUle of Repreeemativea, Overs~ Hearinp on tbe . 

tuna/dolphin issue. . 

~ 

13. Eatimatcs of mortillity in tbe ETP under a pCnnitlcd biological removal scheme were 

at tbe moat recent IATI'C meeting, aee attachment 3. 

14. Ibid. IIDIC 12. 

15. A l'la:lulioauy Approach to Fiabcriea, Greellpell:c lmcrnational, March 1994. 

16. Of tbe total wmber of aeb aamplcd by oblenera in 1993, more than half (7992 aeb) 

were made on tloatins objoctl or acboola than were made uouncl dolphins (6, 749 aeb). In 

1994, tbe munben of ICII on floatilll objecll and lop (7"7 seta) wu about equal to tbe 

IIUIIIber of dolphin ICII (7715). The ealimaliDd total bycatcb for all aeb in tbe tiabcry for 

1~- 4,1195 clolpllina, 2937 bi1lfilbel, 1.19 million IUJe filbes, almoat 946,000 small 

filbel, 46,345 lbub, 5,044 nya, 167 sea curdel, and a1mo1t ooe million invertcbntea 

IIIOidy lqUida and jellyfiab. Obeervcr clala colleclled and lqiOrted by tbe llwer-Amerk:an 

Tropical Tuna Commiaaion, dolpbin program: Table n. 

17. aeenote4. 

18. "In tbe Race for Tlmaa, Dolphins Aren't tbe Only Sllcrifice, The Impacts of Comme1Cia1 

ldaDatioaal, 

Tuna Filbing on 

1993. 

Oceana, Marine Ufe and HIIIIWI ('mnmmitieo,' A Report by ~ 
146 

&I!PUBUCA DE COLOMBIA 

MINISTERJO DE • 

OOMEROO EXTERIOR 

Santafe de Bogota, D.C., f 6 JUH. !':'~5 

The Honorable Don Young 

Chairman 

Committee on Natural Resourses 

U.S. House of Representatives 

Washington, D.C., 

Honorable Congressman Young: 

0037 82 

I am writing in connection with the hearing to be held next Thursday, June 22, on the 

U.S. legislation for the protection of marine mammals (MMPA), which includes the 

dolphins associated with the fishing of yellowfin tuna in the Eastern Pacific Ocean 

(EPO). In that regard, we have the pleasure of infonning you that in recent years 

Colombia has been woriting intensively in the conservation of the marine ecosystems 

and the protection of the various species of coastal and offshore dolphins. 

Wrth that view, our country has strictly complied with the procedures established in 

the La Jolla Agreement, signed in 1992, which have contributed to the considerable 

reduction of the incidental mortality of dolphins associated with the fishing of yellowfin 

tuna. 

Our tuna fleet operates under national and international supervision, carrying on 

board at all times observers certified by the Inter-American Tropical Tuna 

Commission (IATTC). That supervision is the fundamental basis of the operation and 

effectiveness of the La Jolla Agreement. 

The tuna industry is one of Colombia's principal economic fisheries activities, since it 

directly creates around 17,500 jobs, most of them for women. These activities have 

an important social impact in marginal regions and the coastal areas of our nation. 

In 1994, Colombian exports of processed and preserved tuna reached 22,000 tons, 

with a value of US$89 million; of these, 3,000 tons went to the U.S. and Puerto Rican 

maritets. 
147 

kEPIJJUCA D£ <lOLO>OIA 

MINISTERIO DE • 

COMEROO EXTERIOR 

I would like to seize this opportunity to respectfully request through your good offices 

that the government of the United States lift the primary embargo imposed on 

yellowfin tuna caught with purse-seine nets in the eastern Pacific Ocean by 

Colombian-flag vessels, and also to redefine the concept of the so-called "dolphinsafe" policy which limits the sale of processed products to the United States. 

The effectiveness of the measures adopted in the .La Jolla Agreement for the 

protection of dolphins has been demonstrated at the 54th and 55th meetings of the 

IATTC, held in Cumana, Venezuela, and La Jolla, U.S.A., in 1994 and 1995, 

respectively. 

incerely, 
148 

COLOMBIAN GOVERNMENT TRADE BUREAU 

WASHINGTON 

June 16, 1995 

OCW-557 

The Honorable H. James Saxton 

Chairman 

Fisheries, Wildlife, and Oceans Subcommittee 

U. S. House of Representatives 

Washington D. C. 

Dear Mr. Chairman: 

For your information and for the record of the hearing to be hold next June 22nd, 

1995, on the Tuna and Dolphin Issues, I am enclosing a fax copy of the letter sent 

by the Colombian Minister of Foreign Trade to the Honorable Don Young, 

Chairman of the Committee on Natural Resources on behalf of the Colombian 

fishing sector. 

We are expecting via Express Mail some time next week, the original letter in 

order to submit it to y ur attention. 

1701 PENNSYLVANIA A VENUE, N. W.- WASHINGTON, D.C. 20006 

Tel: (202) 887-9000 - Fax: (202) 223-0526 
149 

lt.t;. Jfoust of Jltprtstntatiuts 

Committtt on ~t~ourc~ 

UlasJ:Jington, JlqC 20515 

July 7, 1995 

(S~mple Letter sent to ~itnesses.) 

Dear 

OIIIMl\IAl iU$H 

CMIIiFOF STAI'I 

MYIDG.. D'f'f 

CMIIifCOUffS(l 

IIU IOC-~~ M TICSfAH o-tKJOIII 

On behalf of the Subcommittee on Fisheries, Wildlife and Oceans, I would · to 

extend my sincere !banks and appnociation to you for your testimony at our ov ht hearing 

on the tuna/dolphin issue and provisions of the International Dolphin Conserv Act. 

I am grateful for the time and energy you expended in preparing for · 

With so many new Members on the Subcommittee, an issue of this complexity proved to 

he quite challenging. Your testimony was very insightful and you can be su that the 

Subcommittee will give serious considenlion to your rerommeadations du · our future 

deliberations oo this matter. In an effort to further assist our Members and to clarify certain 

issues, I would ask that you respond to the enclosed list of questions at your earliest 

convenience, but certainly no Iatei than July 31, 1995. 

Your patience was greatly appreciated and I apologize for any inconvenience that our 

hectic vote schedule may have caused you. Again, thank you for taking the time to appear 

before the Subcommittee. 

;iS:£ 

Subcommittee on Fisheries, 

Wildlife and Oceans 

lloclosun: 
150 

QUESTION FOR THE RECORD SUBMITT·ED T•) D~VID COLSCN 

BOUSE RESOURCES COI1MITTEE 

JUNE 22. 1995 

Ouest ion 

1. In your testimony·you suggest lifting the embargoes for 

those nations fishing for tuna under the International 

Dolphin Conservation Program (IDCP) developed by the 

IATTC. Are all of the countries participating in this 

program members of the IATTC? Is non-membership a problem? How can we encourage non-member countries to join 

the IATTC? 

1. All of the countries currently participating in the ETP 

tuna purse seine fishery are particip3ting .i.-n the 

international dolphin conservation program; however, not 

all are formally members of the IATTC. The countries which 

are part of the IDCP are the following: Colombia, Costa 

Rica. Ecuador, Mexico, Nicaragua, Panama. Spain, the United 

States, Vanuatu and Venezuela. Of these. Mexico, Colombia 

and Ecuador are not formal members of the IATTC, although 

each participates in IATTC meetings and programs. 

Non-membership in the IATTC has not been a problem to date 

due to the commitment of these countries to, and active 

participation in. the dolphin protection program. The best 

way to encourage these countries to jnin the IATTC ip n 

formal way is to amend U.S. law so as to no longer prohibit 

their exports of tuna to the United States. 
151 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

2. Me~ico has indicated that they will join the IATTC if the 

problems with the embar9oes and the definition of 

•dolphin-safe• are resolved. In your opinion, will Mexico 

insist that tuna caught under the La Jolla Agreement be 

designated as •dolphin-safe"? 

2. The Committee should be aware that it is not only Mexico 

which is seeking relief from the U. S. market prohibition. 

All of the fishin9 countries - Colombia, Costa Rica, 

Ecuador, Panama, Vanuatu and Venezuela - have joined in 

appealing for chan9es in u.s. law. What they have said is 

that removing the embar9oes without addressin9 the issue of 

the dolphin safe market does nothing for them because they 

would still not be able to sell their tuna in the United 

States. They have stated very clearly and forcefully their 

view that tuna caught under the La Jolla a9reement should 

be designated as dolphin-safe. 
152 

QUESTION FOR THE RECORD SUBMITTED TC DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

3. Does the IATTC currently have any enforcement mechanism? 

If not, is the u.s. willing to work within the IATTC to 

develop adequate enforcement? Do other international resource conservation and management commissions (such as the IWC, ICCAT, NAFO, etc.) have enforcement regimes in 

place and, if not, how does the u.s. ensure compliance by 

other countries? 

3. Yes, the IATTC does have an effective enforcement 

mechanism. The system implemented under the La Jolla 

agreement is to require 100\ observer coverage for all 

boats fishing in the region which are capable of setting on 

dolphins. If the observers detect violations, they are 

reported to an International Review Panel (IRP) which is 

composed of representatives from governments, environmental 

organizations, and the fishing industry. The IRP 

determines whether a violation has occurred, and if so, 

that fact is reported to the government whose flag the 

vessel in question is flying. The government then 

investigates and takes legal action if appropriate. A 

schedule of penalties matching various possible violl'tions 

has been agreed by all the governments involved. 
While the IATTC enforcement mechanism is very good, it is 

important that the United States do what it can to improve 

it, and we certainly are prepared to work within the IATTC 

to acco~plish this. 

Some other international marine resource conservation and 

management organizations have agreed enforcement 

mechanisms, but none is as strong as that of the IATTC 

although, once the new Central Bering Sea Pollock 

Convention enters into force, that region will also have an 

effective enforcement mechanism properly tailored to fit 

its needs. Compliance by other countries in other 

international commissions is oftentimes a problem. This 

compliance issue is one which has attracted considerable 

international attention recently and we are working to 

strengthen the international enforcement mechanisms of 

regional marine resource conservation organizations. 
154 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

4. If the u.s. lifted the embargoes and the u.s. fleet was able to fish in the eastern tropical Pacific Ocean (ETP), 

under the La Jolla Agreement. would you predict a large 

increase in the number of vessels fishing in the ETP? Do 

you think the La Jolla Agreement's caps on dolphin 

mortality could still be maintained? 

4. It is our understanding that there would not be a large 

increase in the number of u.s. vessels fishing in the 

Eastern Tropical Pacific Ocean (ETP) if the u.s. market was 

opened and U.S. vessels were able to fish on an equal 

footing with foreign fleets. Our understanding of what 

likely would happen is that some u.s. boats fishing under 

the South Pacific Regional Tuna Agreement, particularly in 

the eastern edge of the treaty area, might make some 

fishing trips in the western part of the ETP, which 

actually overlaps with the South Pacific Treaty area. 

The La Jolla Agreement's caps on dolphin mortality would 

still be maintained even if some new vessels entered the 

area. It would take unanimous agreement by all of the 

countries involved, including the United States, to change 

the mortality levels established by the La Jolla 

Agreement. 
155 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES CO~~ITTEE 

JUNE 22, 1995 

Question 

5. You mention a study to be undertaken by the IATTC on alternative fishing methods. Is the u.s. participating in 

the funding of this research? Are you aware of any 

prohibition on U.S. funds being spent on tuna/dolphin 

fishing technologies? 

5. Our understanding is that studies by the IATTC on 

alternative fishing methods have been constrained by lack 

of adequate funding. We are not aware of any prohibition 

on U.S. funds being spent on tuna/dolphin fishing 

technologies. 

20-276 - 96 - 6 
156 

QUESTION FOR THE RECORD SUBMITTED TO DAVID CO~SON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

6. What is the status of funding tor the IATTC? What is the 

Administration's opinion regarding membership, member's 

financial support, and U.S. funding for IATTC? 

6. The IATTC has been funded at the following level for the 

past five years: 

1990-91 - $3,204,882 

1991-92 - $3,243,263 

1992-93 - $3,016,731 

1993-94 - $2.997,261 

1994-95 - $3,226,025 

The U.S. contribution to this funding has been as 

follows: 

1990-91 - $2,958,000 

1991-92 - $2,958,000 

1992-93- $2,734,000 

1993-94 - $2,734,000 

l994-9S - $2,950,000 

The Administration's view has been that it is important for 

the United States to maintain a high level of funding for the 
157 

Commission could collapse. That is because the way the IATTC 

Convention is currently structured with respect to the budget, 

the current IATTC membership is not in a position to pay more 

into the Commission. This situation could change if Me~ico 

were to join the IATTC. 
1~ 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

7. If the La Jolla Agreement were to be used as the management and conservation regime for tuna and dolphin stocks in the 

ETP, what changes would the Administration recommend 

regarding the structure and bylaws of the IATTC? 

7. The La Jolla Agreement is already being used as the 

conservation regime for dolphin stocks in the ETP. The 

tuna management and conservation program is a long-standing 

one established pursuant to the IATTC Convention, which has 

been in effect since 1950. We do not believe that the 

structure of the IATTC really needs to be changed, at least 

in the near future. Long-term, it might be good to amend 

the Convention to update it and to incorporate the 

principles of the La Jolla Agreement with respect to 

dolphin conservation. 
159 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

8. Has the Administration received any indication from the 

U.S. tuna processing industry that the U.S. should support 

changes in current law and accept management of tuna and 

dolphins by the IATTC? 

8. It is our understanding that the U.S. tuna processing 

industry does support the IATTC, including its conservation 

programs for both dolphins and tuna. we are not certain as 

to what changes in U.S. law the processors might support at 

this time. 
1~ 

QUESTION FOR THE RECORD SUBMITTED TO DAVID COLSON 

HOUSE RESOURCES COMMITTEE 

JUNE 22, 1995 

Question 

9. You mention that the u.s. law applies to U.S. citizens even 1f they are hired to work on a foreign vessel. Can you elaborate on this point? 

9. The International Dolphin conservation Act of 1992 contains 

a prohibition in Section 307(a)(2) making it unlawful for 

any person subject to u.s. jurisdiction to set a purse 

seine net to encircle marine mammals during tuna fishing 

operations. In this situation the reference to persons 

subject to the jurisdiction of the United States is 

ambiguous. It could be interpreted to apply to U.S. 

citizens working as captains or crew on foreign flag 

fishing vessels. 
161 

Center for Marine 

~ Conservation 

RESPONSE TO QUESTIONS SUBMITTED TO SUZANNE IUDICELLO FROM 

SUBCOMMITTEE ON FISHERIES, WILDLIFE; AND OCEANS. 

QUESTION: You indicate in yo"! testimony_ that while you do not believe the MMPA 

should be amended at this time, you indicate a willingness to engage in a process to 

develop a workable and la·sting solution to the tuna/dolphin issue. Could you elaborate 

on what you believe should be the next steps to achieving such a reoolution? 

RESPONSE: In our testimony, we urge the Committee and the Administration to use 

their offices to bring all of the stakeholders together to develop a lasting oohition. In our 

opinion such a solution must be one which takes a multilateral international approach, 

promotes conservation of marine ecosystems and biological diversity, and maintains 

consumer confidence. One way to begin this process would be a facilitated meeting, 

possibly at the National Marine Fisheries Service Southwest Fishery Science Center in 

La Jolla, to include the foreign fishing nations, domestic tuna fishery, canners, IATTC, 

State Department, National Marine Fisheries/National Oceanic and Atmospheric 

Administration, US Trade Representative, foreign and domestic conservation groups, and 

other interest groups. 

QUESTION: In your opinion, what changes need to be made to the structure, bylaws, 

and membership of the IATTC in order for the environmental community to accept the 

Commission as the management authority for the ETP tuna fishery? 

RESPONSE: At a minimum, the member nations of the !A TIC Convention and the La 

Jolla Agreement must undertake action to ensure that the La Jolla Agreement is made 

into a legally binding protocol and that the Convention is strengthened to be a truly 

effective long-term conservation and management tool for the ETP ecosystem. In 

addition, we strongly believe that all nations wishing to fish in the ETP must be 

members of the lA TIC. 

Also, both the Agreement and the Convention (and the bylaws) should be evaluated for 

their ability to conserve and manage tuna stocks and prevent an increase in mortality 

of dolphins or other bycatch species should additional vessels enter or re-enter the 

fishery. The Agreement and the Convention potentially provide models, particularly in 

their commitment to NGO participation, for other international fishery management 

regimes. Nonetheless, these and other changes to the Agreement and Convention must 

be explored in the context of a negotiated process involving all stakeholders. 

QUESTION: Do you believe· that the La Jolla Agreement could be used as the standard 

for "dolphin-safe" tuna? If not, what changes need to be made to the La Jolla Agreement 

for it to be an acceptable standard to the environmental community? 

1725 De5ales Street. NW, Ste. SOO Washington . DC 20(HI:l 12021 420-'WI Telefax tl0lJ872-0619 

0 Pnnted on IC>O'O'o post-c:omumer, unble.J ched , recycled paper 
Response of the Center 

for Marine Conservation 

July 31, 1995 

162 

RESPONSE: The Center for Marine Conservation does not profess to speak for "the 

environmental community," but only for those organizations that endorsed our 

testimony. The program established under the La Jolla Agreement and implemented by 

the IATTC has been extremely effective. As evidenced by 1993 and 1994 mortalities of 

3,601 and 4,095 animals respectively-well below the 1999 target of 5,000 animals. 

However, as just stated in our response to the previous question the current international 

management regime needs to be improved and strengthened to assure continued 

progress in preventing dolphin deaths and conservation of tuna stocks. 

Further, the unanticipated success of the La Jolla Agreement requires that the signatories 

to this agreement revisit the Agreement as a whole, especially the dolphin mortality 

reduction schedule. For the past two years, the parties who participate in the 

intergovernmental body of the IATTC with oversight responsibility for the La Jolla 

Agreement have failed to revise the dolphin mortality limits for 1994 and 1995 to more 

accurately reflect the real mortality in the fishery and provide for further progress in the 

future. Revision of the mortality schedule is a necessary element of a multilateral 

negotiation. 

Finally, creating a new standard for "dolphin-safe" would be one of the objectives of the 

multinational process we've described in the answer to Question 1, taking into 

consideration: (1) conservation of the ecosystem and marine biological diversity in the 

ETP; (2) establishment of international conservation and management of tuna and 

dolphin stocks; and (3) maintenance of consumer confidence. 

QUESTION: In your opinion, how would making the "dolphin-safe" label voluntary 

affect the U.S. tuna market? 

RESPONSE: U.S. consumers have grown accustomed to the dolphin safe label and 

market. As a practical matter, maintaining consumer confidence is essential to 

promoting the stable political and commercial climate that is a requisite for a workable 

and lasting solution to the tuna/ dolphin problem. Consumer confidence will be 

undermined (as will the tuna markets) by piecemeal, precipitous attempts to deal with 

these complex questions. For these reasons, we support a multinational process for 

resolving this problem that involves all stakeholders, including the canners and 

consumer representatives. 

2 
Response of the Center 

for Marine Conservation 

July 31, 1995 

163 

QUESTION: H nations begin to abandon the lA TIC and the La Jolla Agreement, do you 

believe this will mean an end to all of the conservation measures that have been 

achieved? 

RESPONSE: As we have stated on several occasions the success of the La Jolla 

Agreement has been striking. The signatories to the La Jolla Agreement should be 

complimented for their staunch commitment to its implementation. It would be 

regrettable if, at this critical juncture, nations chose to abandon the lA TIC and the La 

Jolla Agreement. Never before have so many conservation groups been willing to work 

with these nations and the Administration to expend the · time and effort necessary to 

develop a lasting international resolution to this problem. 

Neither the process of negotiating a lasting resolution nor the conservation of the.fishery 

will benefit if nations abandon one of the most effective international fishery 

management agreements. 

QUESTION: H U.S. embargoes were tied to participation in the IATTC and the La Jolla 

Agreement, would this be consistent with U.S. policy in other international fishery 

agreements? Would the U.S. still have the ability to enforce the IATTC and the La Jolla 

Agreement standards through the Pelly Amendment? 

RESPONSE: Embargoes tied to participation in the lA TIC and the La Jolla Agreement 

would be consistent with other U.S. laws such as the Driftnet Enforcement Act and the 

Atlantic Tunas Convention Act. The Fishermans Protective Act and current international 

practice permit trade sanctions to enforce agreed upon elements of a regional or 

international regime such as lA TIC or the La Jolla Agreement. If the member parties 

agreed to a standard for "dolphin-safe" tuna, trade measures to enforce this standard 

would need to be part of the negotiation. 

QUESTION: Current studies of "dolphin-safe" fishing methods, such as fishing on logs 

or free swimming schools of tuna, show that these methods have bycatch of endangered 

sea turtles, sharks, and billfish. In terms of ecosystem conservation, is it in our best 

interest to encourage "dolphin-safe" fishing methods when they are adversely affecting 

sea turtle, shark, and billfish populations? 

RESPONSE: We recognize that recent preliminary data indicate that fishing methods for 

yellowfin tuna-such as log and school sets--that do not involve setting nets around 

dolphins may have a substantial bycatch of non-target species and juvenile tuna. While 

the data gives cause for concern, claims that increased fishing on logs or schoolfish could 

3 
164 

Response of the Center 

for Marine Conservation 

July 31, 1995 

reduce the catch of yellowfin tuna and cause severe declines in the fishery may be 

premature, inasmuch as there has been no pronounced shift to "dolphin safe" fishing 

methods such as school and log sets. In f~ct, the number of sets on dolphin has 

remained relatively unchanged between 1988 and 1992 (1988-10,515; 1989-12,580; 1990-

10,571; 1991-9,482; 1992-10,326). There was a decline in sets on dolphins in 1993 (6,953) 

and 1994 (7,715).1 

Current data for the first part of 1995 indicate that the number of dolphin sets was about 

20 to 25 percent greater than during the same period of 1994. If this trend continues, the 

number of sets conducted on dolphins will number between 9,300 to 9,500, similar to the 

number of sets prior to 1993. Further, fishing for·dolphin-associated fish accounted for 

about 60 to 70 percent of the yellowfin catch during 1986-1994.

2 In addition, no dear 

trends are evident in either Sets on schools or logs durin~ the same period. Finally, the 

average size of yellowfin tuna caught has not changed. Accordingly, the data do not 

support a conclusion that there has been a significant shift to dolphin safe f"IShing 

methods or that dolphin safe requirements are resulting in a decline in the tuna stock. 

Nevertheless, we believe that these bycatch data sound a cautionary note-both for the 

stocks of tuna and the overall biodiversity of the ETP ecosystem-concerning "dolphin 

safe'' fishing methods (especially if a widespread shift to dolphin-safe f"IShing methods 

were to occur as a result of the !DCA) and that these data should be evaluated further. 

Therefore, in our testimony we called upon the Administration to conduct an 

independent international scientific peer-review of this bycatch data to examine study 

methods, identify data gaps, review its conclusions, and make recommendations for 

future research. A similar peer-review was conducted in 1993 to evaluate the Revised 

Management Procedure of the International. Whaling Commission.• On July 26, we sent 

a letter to Dr. Baker formally requesting this independent scientific peer-review .<See 

Attachment). 

1 Minutes of the 54th and 55th Annual Meeting ol the Inter· American Tropical Tuna Commission. 

La Jolla, California. October 1994 and june 1995. 

2 Minutes of the 54th and 55th Annual Meeting of the Inter-American Tropical Tuna Commission. 

La jolla, California. October 1994 and june 1995. 

l Ibid. 

• Federal Register, Vol. 58, No. 134, pg. 38118, July 15, 1993 

4 
Response of the Center 

for Marine Conserva lion 

July 31, 1995 

165 

We believe that an ecosystem-based approach is essential. Accordingly, any solution 

must minimize bycatch, achieve further reductions in dolphin mortality, and ensure the 

continued health and growth of both the tuna and dolphin stotks. In addition, we want 

to be sure that the IA TIC is ready and capable to manage this fishery and prevent any 

increases in dolphin mortality in the event that changes in the overall regime causes an 

.increase in effort in the fishery. 

5 
Or. 0. James Baker 

Administrator 

National Oceanic and 

Atmospheric Administration 

14th SL-and ·constituUon Avenue 

Washington, D.C. 20230 

Dear Or. Baker: 

166 

July 26, 1995 

I am writing on behalf of the Center for Marine Conservation, Environmental Defense 

Fund, Greenpeace, National Audubon Society, National Wildlife FederaUon, and World WildUfe 

Fund to encourage NOAA to undertake a independent scientific peer-review of the bycalch data 

in the Eastern Tropical Pacific Ocean (ETP). 

On June 22, 1995, the Center for Marine Conservation (on behalf of these organizations) 

presented testimony before the Subcommittee on Fisheries, Wildlife, and Oceans within the 

Committee on Resources. The testimony examined the effectiveness of provisions in the Marine 

Mammal Protection Act (MMPA)and the International Dolphin Conservation Act (IOCA) to redUce 

the number of dolphins that drown each year in the purse seine fishery for yellowfin tuna in the 

Eastern Tropical Pacific Ocean. · 

A concern that has _been frequentiy raised by the lnter-Amercian Tropical Tuna 

Commission (lA TTC), foreign fishing nations, and other interest groups, is the bycatch of nontarget species and juvenile yellowfin tuna associated with methods of fishing that do not involve 

sets on dolphins--otherwise known as dolphin-safe fishing methods. The lA TTC and some foreign 

fishing nations have-raised concerns that increased fishing on logs or schoolfish (dolphin-safe 

fishing methods) could reduce the catch of yellowfin tuna and cause severe declines In the 

fishery. This notion is contributing, . in part, to Congress's revisiting the MMPA, specifically 

provisions related to the definition of 'dolphin-safe' and dolphin-safe fishing practices. 

Our organizations believe that these bycatch data sound a cautionary note--both for the 

stocks of tuna and the overall biodiversity of the ETP ecosystem--concerning 'dolphin safe' 

fishing methods (especially if a widespread shift to dolphin-safe· fishing methods were to occur 

as a result of the IDCA) and that these data should be evaluated further. Therefore, we request 

that the Administration conduct an Independent International scientific peer-review of the IATTC 

bycatch data. In parUcular, the peer-review should: 

• review trends in bycatch in data (historic, current, and projected) in the ETP yellowfin 

tuna purse seine fishery; 

• examine research methods to collect and analyze the bycatch data; 

• review and evaluate the scientific accuracy of conclusions that are currently being drawn 

or could be drawn from the bycatch data; 

• identify data gaps and make recommendations for future research. 

1725 DeSales Street. NW. Ste. 500 Washington. D.C. 20036 12021 429·5609 Telefaxl2021872-o619 

0 Primed on 10CM posr·consumer, unbleached, reeycled paper 
167 

We found this approach helpful in the past when the Adminstration conducted a similar 

peer-review In 1993 to evaluate the Revised Management Procedure of the International Whaling 

Commission.' Our organizations believe that n is crucial to base policy decisions on sound 

scientific Information. ·Therefore, we encourage the Administration to undertake this peer-review 

as soon as possible. 

Thank you tor your attention to this matter. 

Sincerely, 

A/-#n~~tb~~· /~~McManus :4-. 

President /& '--

1 Federal Register, VoL 58, No.·134. pg. 38118, July 15, 1993' 
168 

NATIONAL FISHERIES INSTITUTE, INC. 

1525 WILSON BOULEVARD • SUITE 500 • ARUNGTON, VA 22209 

703 • 524 • 8880 • FAX: 703 • 524 • 4819 

Hon. James saxton 

Subcommittee on Fisheries, Wildlife and Oceans 

committee on Resources 

u.s. House of Representatives Washington, D.c. 20515 

Dear Chairman Saxton, 

July 12, 1995 

Thank you for your letter of July 7, 1995 asking additional questions regarding the tuna/dolphin controversy. My answers are as follows: 

1. In your testiaon:r, you -de referecce to the declininq illlport&Dce of the u.s. marketplace for yellowfin tUDa IU14 the failure of u.s. embarqoee to qet foreiqu nations to comply with u.s. 4em&~~.de. Should we be •ore concerned about threats of retaliatioc from foreiqn ~~&tio~~& related to these &Uar9oee? 'llbat adverse effects could. this retaliation have oc the seafood industry? 

Yes. Those nations subject to U.S. yellowfin tuna embargoes provide major overseas markets for u.s. seafood exports. Japan, for example, is our largest overseas market accounting for more than 60 percent of all u.s. seafood exports. Europe is our third largest market with more than ten percent of overseas sales. 

These overseas markets are especially important for some u.s. seafood exporters. Japan, for example, is the major market for items such as salmon, crab, Bluefin tuna, butterfish, various fish roes and sea urchins. Europe, on the other hand, is the principle buyer for such products as eele and dogfish. 

It is evident that other nations resent the imposition of u.s. trade sanctions. More than one dozen nations intervened in two legal proceedings in opposition to the u.s. embargoes. No nation supported them. It is clear from the rulings in these proceedings that the nations beinq embargoed would be entitled under international trade law to retaliate if they decide to 

press their cases before the new World Trade organization. 

Fishing fleets in many nations are suffering economically. Retaliation against seafood imports is an attractive option because it provides qovernlllents with an opportunity to protect their markets for the benefit of their domestic fishermen. This 

1 
169 

is evident from the effort last year of French officials to close 

their markets to u.s. seafood exports. 

It is impossible to know which u.s. exports would be the 

tarqet of foreign retaliation. . Nevertheless, it is likely that 

seafood items would be included because the U.S. embarqo targets a seafood product. 

If the nations concerned chose to retaliate against those 

u.s. seafood items which are heavily dependent upon the markets 

concerned, such retaliation could have a devastating impact on individual exportinq firms. Such losses were incurred last year by several small family-run export firms when France closed its 

markets to U.S. exports in an effort to boost prices for its 

domestic fishermen. 

2. nat comparisoJlll call be -de between the IA'l"l'C and other 

international :aanaqeaent organizations to which the u.s. is a siqnatory, with respect to foreiqn meabership, nations that have 

failed to join, and types of enforcement mechanisms availa~le to 

these orqani1ations? 

The international agreements establishing the IATTC and its 

dolphin proqram are similar to other international fishery 

agreements to which the United states is a signatory. Most of 

these agreements lack specific enforcement and dispute resolution 

mechanisms. Indeed, with the exception of the agreement recently negotiated to manage fish stocks in the Bering Sea, it is common for international fishery agreements to allow member nations to 

file reservations against specific management measures. 

The IATTC's comprehensive vessel observer program, however, 

is unique. Most international fishery management organizations rely upon voluntary flag-state enforcement to ensure compliance and do not administer a vessel observer program. 

The fact that all nations with vessels fishing tor tuna in 

the eastern tropical Pacific Ocean are participating in the 

IATTC's dolphin program also mll.kes it -somewhat unusuaL It is common in other international organizations tor some of the 

nations harvesting the stocks under management to be nonmembers 

of the organization. 

As a general rule, customary international law provides that 

only a government vessel !lying the same flag as a fishing vessel 

(the so-called !lag state) may take enforcement measures on the 

high seas aqainst the fishing vessel. Exceptions include 

situations where a fishing vessel has committed acts of piracy, or where it flies more than one flag according to convenience. 

Some international fishery agreements provide for 

enforcement powers which can be exercised by non-flag member 

nations on the high seas. (See e.g., the NAFO Convention on Future Multilateral Cooperation in the Northwest Atlantic 

Fisheries, 19 7 8 , and the Agreement between the U. S. and Certain 

2 
170 

PAcific Island States, 1987.) These agreements, however, are not common. 

No mechanisms exist to allow international fishery organi~ations to enforce their management measures against nonmember nations. Similarly, there are few mechanisms available 

to nations to enforce the management measures of international 

fishery management orqani~ations upon nonmember nations. 

There are few mechanisms available to nations to enforce the 

management measures of international fishery organi~ations. 

Historically, the United States has relied upon the threat of 

trade sanctions under laws such as the Pelly Alllendlnent 'When violations occured. 

The United Nations Convention on the Law of the Sea 

(UNCLOS), however, may provide an important new enforcement 

mechanism in the future when it is adopted by more nations 

including the united states. 

The UNCLOS directs nations to "cooperate with each other," to "enter into negotiations" for the conservation and management of living resources in hiqh seas areas, and "as appropriate, cooperate to establish subregional or regional fisheries 

organizations to this end." (Article 118) With respect to marine 

mammals it provides: 

"States shall cooperate with a view to the conservation of 

marine mammals and in the case of cetaceans shall in 

particular work through the appropriate international 

organizations for their conservation, management and study. " 

(Article 120) 

This UNCLOS duty to "cooperate" has been repeated in numerous international fora. The UN General Assembly resolution 

44/225 on Large-scale Pelagic Driftnet Fishing in the High seas (December 1989), for example, recalls "the relevant principles elaborated in the United Nations Convention of the Law of the 

Sea," and affirms that: 

"in accordance with the relevant articles of the Convention, all members of the international co-unity have a duty to 

cooperate globally and regionally in the conservation and 

management of living resources on the hiqb seas, and a duty to take, or to cooperate with others in taking, such measures for their nationals as may be necessary for the 

conservation of those resources." 

The Declaration of Cancun, which was delivered on May 8, 1992 by the International Conference on Responsible Fishing, states in 

paragraph 11 that: 

"States should cooperate on bilateral, regional and 

multilateral levels to establish, reinforce and implement effective means and mechanisms to ensure responsible fishing 

3 
171 

on the high seas, in accordance vith relevant provisions of 

UNCLOS." 

This UNCLOS duty to "cooperate" is being further defined in 

the ongoing negotiation of a possible convention on highly migratory and straddling fish stocks. 

The dispute settlement provisions of the UNCLOS could be 

used to enforce this duty to "cooperate." Disputes over fishing beyond coastal state jurisdiction are subject to compulsory and 

binding arbitration or adjudication. UNCLOS anticipates that a new tribunal---the international tribunal for the law of the sea- --will have jurisdiction. 

This tribunal, therefore, may provide nations with a means to enforce compliance with the UNCLOS duty to cooperate in the 

future. Indeed, one legal scholar argues that any continuation 

of the U.S. yellowfin embargoes to enforce unilateral U.S. 

requirements would violate the duty to "cooperate" in the 

international management of the fishery. See, e.g., Richard 

McLaughlin, "U.s. Accession of the United Nations Convention on the Lav os the Sea and the Loss of Unilateral Trade Sanctions to 

Protect Marine Living Resources," ocean Yearbook, Vol. 11, 46-89, 

1994. 

3. If u.s. lav vas chaDqe4 to uae tbe La Jolla ~reemeDt as the et&Ddard, hov do ve eDSure foreiqD coapliaace? 

One option is to use the present mechanism in the Marine 

Mammal Protection Act which relies upon flag-state enforcement 

and the vritten submissions of the nations concerned to the 

United States. A similar mechanism is being used by the u.s. 

State Department to verify foreign compliance with u.s. sea turtle conservation standards. 

Another option is to rely upon the IATTC observer program. 

A third option an international agreement authorizing non- flaq =ember nations to board and inspect vessels in the fishery. 

4. IB your opinion, are tbo IATTC 4olpbia mortality levels 

vorJtiaq •• &D i~aoe~ative to re4uoe tl!.e aorta1ity or 4o1phine? 

What other steps should be taken to further reduce dolphin aort&lity? 

No. Mortality levels were reduced more rapidly than expected and are much lower than present IATTC dolphin quotas. The IATTC 

mortality levels, however, do provide an incentive to maintain 

low levels of dolphin mortality. 

The key factors in the success of the IATTC program continue 

to be individual vessel quotas and a comprehensive observer 

program. These should be retained. 

Until recently, dolphin quotas were initially established 
172 

under the MMPA based upon the idea that tuna purse seiners should use the "best available technology." Under this approach, lower 

dolphin mortality was to be achieved through research, not 

through the action-forcing mechanism of declining quotas. 

Later on declining u.s. dolphin quotas were tried as a mechanism in the MMPA to force technological improvements. Congress, for example, legislated declining quotas in the ATA 

permit conditions. Declining quotas also were tried in the La 

Jolla Agreement. This strategy has not proved to be successful 

because of the difficulty of setting realistic and obtainable 

goals in advance. Targets were set either too high or too low. 

I do not recommend the use of declining quotas in the 

future. The use of individual vessel quotas, vessel observers, 

crew training, expert panels and research in the IATTC program 

are helpful and should be continued. One area where more might be 

done concerns incentives. 

I recommend that you consider encouraging the IATTC to use incentives rather than command-and-control quotas to achieve 

further reductions in dolphin mortality. For example, a portion 

of the tuna quota and/or a preferential fishing season andfor 

area could be set aside by the IATTC as an incentive for vessels 

to reduce mortality. vessels achieving lower mortality levels 

and/or offering promising technology would receive the quota and or exclusive right to fish in the timefarea. 

5. :rn your opinion, if nations nov fishing under the La 

Jol.l.a Aqreement were to al:landon the Aqre-ent and the I:ATTC, voul.d 4olphin mortality increase? 

Yes. The La Jolla Agreement has substantially reduced 

dolphin mortality and there is no basis to assume that nations 

would continue to comply with its restrictions if they withdrew 

from its provisions. 

There are economic reasons for nations to consider 

abandoning the agreement. The agreement imposes restrictions on vessels which make it more expensive to operate. Without the 

agreement, fleets would no lonqer be constrained by individual 

quotas and would no longer be monitored by observers. Because the U.s. has imposed unilateral embargos and refuses to accept the 

present agreement, the member nations obtain no market advantage from the present agreement. 

If nations abandon the agreement they may or may not 

negotiate a substitute arrangement to limit dolphin mortality. Any new agreement, however, is likely to be less effective. 

6. '!'his Colllmittee is curreDtly vorltinq to reauthorise the 

Kaqnuso11 Act and has talten a stronq approach to re4uce l:lycatch 

levels in u.s. fisheries. How do the !:lycatch levels of the 

current "dolphin-safe" fishing methods compare to other fisheries 

in the u.s.? 

5 
173 

Under the Marine Mammal Protection Act, any tuna harvested 

in A fishery not using driftnets nor involving the encirclement 

of dolphin with purse seine nets in the eastern tropical Pacific 

Ocean is deemed to be "dolphin safe" even thouqh dolphin are taken in the fishery. (16 u.s.c. 1385(d)) The bycatch associated 

with "dolphin safe" aethods in general, therefore, is the sallie as that associated with other u.s. fisheries since these fisheries 

involve the use of "dolphin safe" methods. 

The bycatch levels of tuna purse seine vessels using 

"dolphin safe" methods in the eastern tropical Pacific Ocean, 

however, is hiqher than that in many U. S, fisheries. Compare, 

for example, the bycatch described in "The Tuna-Dolphin 

controversy in the Eastern Pacific Ocean: Biological, Economic, 

and Political Impacts" ( QStin peyelopment An2 International I..A.!:!, 

Volume 25, pp. 1-30 (1994)) with the bycatch tor other fisheries 

described in A ~ Assessment Qt. Fisheries Bycatch W 

Discards (FAO Fisheries Technical Paper 339 (1994)). The bycatch 

of sea turtles, billfish and sharks in the eastern tropical 

Pacific are of particular interest. 

The bycatch rate of sea turtles when tuna purse seines are set on loqs in the eastern tropical Pacific Ocean, for example, 

varies in different qeoqraphical areas of the fishery but can exceed 20 sea turtles per hundred sets. This rate far exceeds the 

turtle bycatcb rate in many areas of the shrimp trawl fishery in 

the Gulf of Mexico which has been severely critised for its 

turtle bycatch. 

It is arbitrary and unfair tor u. S. officials to insist 

that u.s. tuna fishermen use a fishinq practice with a mortality 

rate which is far more destructive of sea turtles at the same time it is subjectinq the u.s. shrimp fleet to punishing 

restrictions for a sea turtle mortality rate which is much lower. 

Likewise the bycatch of billfish per sat by tuna purse 

seiners fishing on loqs in the eastern tropical Pacific can exceed the billtish and shark bycatch rates in other u.s. 

fisheries. 

Thank you aqain for the opportunity to testify. 

contact me if r can be of further help. 

Please 

6 

chard E. Gutting, 

Vice President - Government Relations 
174 

Represantative Jim Saxton 

Chairman, Subcommittee on Fisheries, 

Wildlife and Oceans 

Committee on Resources 

Washington, DC 20515 

Dear Mr. Saxton, 

July 27, 1995 

The following answers are in response to your letter of July 7th, 

regarding the oversight hearings on the tuna/dolphin issue and 

provisions of the International Dolphin Conservation Act. 

RESPONSBS TO QUI:S'l'IOHS 

1. Do you beHwve thw J:ATTC • 1 Xnearpatiopal Dolphin 

C:pnlwrvatigp Proqry hAl bweD effwctiv• ip nc!ucina the 

oyerall 1110rt;a1ity pt dolpbips in the eutern tropical 

P&cifig Ocunt 

The reduction in ETP dolphin mortality is only partially 

attributable to the IATTC program. Significant reductions in 

dolphin mortality resulted from relocation of more than 20 class 6 us purse-seine vessels to.the Western Tropical Pacific (WTP) where 

tuna is caught without killing dolphins. This relocation resulted 

from the decision by US processors to sell only dolphin-safe tuna. 

Dolphin mortality has also been reduced as a result the large- scale closure of markets around the world to dolphin-unsafe tuna. 

Canneries in Thailand no longer can dolphin-unsafe tuna, and large canned tuna markets such as the US, Canada, UK, Germany, France, 

and Italy no longer purchase dolphin-unsafe tuna. This has 

reduced the number of ETP vessels setting nets on dolphins. 

The actions of countries such as Ecuador to prohibited their 

fleets from setting nets on dolphins have also reduced dolphin 

mortality. Further, the comparability provisions under the us 

Marine Mammal Protection act have served as an incentive to 

foreign tuna fleets to implement dolphin protection measures such as the ban on setting nets on dolphins during darkness hours, and 

the ban on the use of explosives. The implementation of these 

provisions has reduced dolphin mortality. 

lOG ....... , ...... 21 

lao Frtnclaco, CA 14133 

'lol: 11&·711·3111 
175 

Page two 

The IATTC quotas have DQt acted as a deterrent or l~itation to 

the killing of dolphins, because the IATTC dolphin kill quotas have, since their inception, greatly exceeded actual dolphin kill. 

In 1993 the total dolphin kill was 3,601; 

meanwhile the IATTC set the '93 quota at 19,500. 

In 1994 the total dolphin kill was 4,095, 

meanwhile the IATTC set the '94 quota at 9,300 . 

The current IATTC program provides no incentiye for reducing 

current dolphin mortality. The IATTc's recommendations for 

levels 

increased 

of dolphin 

setting 

mortality. 

of nets on dolphins actually promote ~ 

The IATTC program has been effective in conducting skipper training to encourage individual vessels to reduce dolphin mortality. The IATTC has also assisted in increasing foreign observer coverage levels to 100\. This observer .Program, however, has been made possible only through tunding provided by the US. 

The structural and enforcement deficiencies of the IATTC program are outlined in greater detail below. 

2 I %p ygur opipipp. llj'O the curnpt; • dolphin mortality 

1eyelt ip the ·l'l'P at •leyolt APprpaghipq zuo•7 

No. 1994 ETP dolphin kill exceeded 4,000 dolphins. Included in 

this mortality are Eastern Spinner dolphins, and Northeastern 

Offshore Spotted dolphins, which the National Marine Fisheries 

Service has determined to be severely 'Depleted' . 

For comparison purposes, the current level of dolphin kill in the 

ETP is more than ten times the number of whales killed by Iceland. 

This ETP dolphin kill is also more than ten times the number of 

whales killed by Japan. 

The killing of dolphins in the E1'1:' represents, without doubt, of 

the largest directed kills of marine mammals in the world . 

At current levels, the MMPA requirement of reduction of dolphin kills to levels approaching zero has clearly not been met. 

3, U us el!bamo91 were tied to parUaipation in the 

l:AT'J'C aM the La Jolla h;eaunt, wul4 thia pintaip the 

currapt low levila of 4olpbip aprtaU.t;y !p the ITR gr do 

You beHaxe that .. rq 4olpbip aortaU.t;y it tha only 

agcepUble level Cor this filhtrv? 

Tying ·us tuna import embargoes were tied to participation in the 

IATTC and the La Jolla Agreement would prgmote the killing of more 

dolphin& than the current law. In our view it would result in a 
176 

Page three 

significant increase in dolphin kills from the current level of 

.4,095 per year, to up to 9,000 per year. 

The current IATTC La Jolla Agreement allowable dolphin kill quota 

is 9,300 for 1995. This is more than double the current kill 

level. Allowing dolphin-unsafe tuna to again be imported into the 

US would provide a strong incentive for increased setting of nets on dolphins and increased dolphin mortality. 

Linking the lifting of embargoes to the current IATTC quota level 

of 9,300 would be a significant step backward in the protection of 

dolphins. 

It. is our belief that the practice of setting nets on dolphins 

should be prohibited. US vessels have found areas to catch huge 

amounts of tuna without setting nets on dolphins. Under terms of 

the Sout~ Pacific Treaty, US vessels in the Western Tropical 

Pacific vessels are granted preferred access to the most prolific 

tuna grounds in the world. There are ample supplies of dolphinsafe tuna on world markets. Vessels from the US. Mexico, and 

other foreign countries have demonstrated an ability to fish in 

the ETP without setting nets on dolphins. 

6 I Do ygu balian that the gs tupa neat hat b9•n 

.raaponlive to gongup1 &bout 4olphip mortality loyall in 

t:ha l'l'P? 

As a result of the decision by tuna processors in 1990, as well as enactment of the Dolphin Protection Consumer Information Act of 

1990 and the International Dolphin Conservation Act of 1992, the 

vast majority of US vessels relocated to the Western Tropical 

Pacific (WTP). There, under a treaty agreement, the US catches 

record amounts of tuna without killing dolphins. This has been 

extremely helpful in reducing dolphin mortality. 

Several us vessels have remained in the ETP fishery and continue 

to purse-seine using dolphin-safe methods. These vessels have 

been innovators in developing new techniques for catching tuna 

without dolphin mortality and this has been extremely important. 

We dispute the claimS that a· significant portion of. the US WTP 

fleet seeks to return to dolphin-unsafe fishing techniques in the 

ETP. OUr information indicates that the markets for dolphin- unsafe tuna, both in the US and around the world, are so restricted that changing back to dolphin-unsafe fishing techniques 

would be economically impractical. 

5, You teatifb4 that •there ahou14 be no ipcr .. sa in the 

current dolphin kill quota pag.itted to the us tuna 

n .. t. I RoO I thia Map that if tb,e rATTC; paiptainad the 

gurropt mo:rtaHty leDL · vou 1fOU14 agree to · allowina the 

QS fleet to »Ia do~phin ••S.• to hatDtt tuna in the l'l'P? 
177 

Page four 

It is our view that .dolphin mortality in the ETP should conti nue to be reduced from current levels toward zero . Dolphin mortality 

levels for 1995. should be lower than the 1994 dolphin kill of 

4,095. 

We strongly oppose proposals which would allow backsliding to 

increased levels of dolphin killing. 

If the IA~ program were to commit to continued significant and 

enforceable decreases in dolphin mortality from curren~ levels, we would not categorically oppose having US vessels operate in the· ETP under IATTC prOIJram limits. However, the current IATTC limits are more than ~ the current level of dolphi n kill, and to 

allow the US vessels to set on dolphins up to this limit would 

represent a significant increase in dolphin killing and a serious 

erosion of current dolphin protection programs. 

We also believe that from a ecological and scientific standpoint 

sets on dolphins declared "Depleted" by the National Marine 

Fisheries Service should remain prohibited. 

7. What chapqtt would be ntt4t4 ip tht UT'fC • • bvlpp. 

I!Db•nhip. aM epfgrgant: proyitiqpt Cor the 

epyirpQMAAa1 Q9MUpity to accept the UT'l'(; u tho 

int;erpatioul muaqnept bo4v for t;ht filhedet 1p the 

I!'Pl 1fh&t ipterpat;iopal QQMlllion 40 ypu believe 

repre1ept1 I ao4el fgr f.ptUP.&dgnal qopper&tiQD &n4 

retpopdbility renrdipq thl CAAII"&Uop of ipternatignal 

Chheriett 

The following are significant deficiencies in the IATTC structure: 

<ll Me!Dbership 

The fact that Mexico, the country with the largest tuna 

fleet in the ETP, is not a member of the IATTC is 

ludicrous. Further, Colombia and ECuador are not members . 

All countries involved in the fishery must be required to be 

full members of .the Commission 

(2) La Jo1lo Agreement io Non-Bin4ing 

The Agreement and as such all quotas, enforcement, and 

regulations do not have the force or effect of binding 

international· agreements under international law. The . ~ents are an informal hand-shake agreements that have not 

been aigned or entered into force under either domestic or int.ernational law. The La Jolla Aweernent must be adn[lt.<'ld as 

an IATTC Protocol. 

(3) F\lnding 

Currently the US provides more than 90\ of all funding for 

the !ATTC, despite the fact the very little of the fish from 
178 

Page five 

the ETP are utilized by the us . This is counterproductive 

and unsustainable. Mechanisms must be put in place for all 

countries involved in the fishery to contribute to the 

maintenance of the IATTC . 

(4) Enforcement 

Enforcement provision of the La Jolla Agreement are grossly 

inadequate. Despite numerous violations, no penalty fees 

have been assessed by any country. No mechanism currently 

exists to ensure country cooperation and compliance . This is a serious deficiency . The La Jolla Agreement Protocol must be 

enacted as domestic law by each member country . 

(5) LaCk of Independent Scientific Committee 

The IATTC lacks any independent scientific arm for review and 

recommendations . A Scientific Committee must be created to 

advise decision of the member. countries. 

(6) Voting Structure 

The IATTC's requirement for all ~easures to require consensus for adoption is a significant deficiency. It effectively 

gives every country veto power over any conservation measure. The current voting system should be 

Regarding other models in international resource management, there are structural aspects of ICCAT (the International Commission for 

the Conservation of Atlantic Tunas that are far stronger than 

IATTC. Further. the scientific committee models of the 

International Whaling Commission, and the Antarctic Treaty are far more effective than that at the IATTC. 

8, Are dolphins oggadonally gQght in thw fhhing 

practigu conlidertd to :b• "dolphin-nfe". IUCh u fishing 

on loq1 or on fre•-•yiwlnq •qhool• of t11pat A.rw tiho 

fhhing mwtbod•. !rhigh an currently supplying tuna to the 

us market complettly fret from dolphin mortalities? 

Our view is that the current definition of dolphin-safe is the 

correct one. It prohibits the setting of nets on dolphins or the use of high-seas driftnets. The use of these two fishing 

techniques has been responsible for the vast majority of all 

fisheries-related dolphin mortality. 

The killing of dolphins in school sets or log sets is an extremely 

unusual occurrence, whereas the killing of dolphins in dolphinsets is intrinsic, predictable, and results in thousands of 

dolphin deaths. 

One disaster set by a single ETP purse seine vessel in 1994 killed more dolphins than were killed in more than ten years of combined 

school and log sets in the ET~ . 
179 

Page six 

No fishing technology is perfect. However, there is little 

question that setting nets on dolphins and the use of driftnets are by far the most destructive to dolphins.and other marine 

mammals. 

9. :r:n 1990, maior US ganntn adopted a yoluntarv 

"dolphin-safe• label. u you belieye the us market will 

dictate the uae of •dolphin-u(e labeling, why h it 

negeuarv to have a federal atatute mandating the 

•dolphin-aafe• label. 

It is our view that consumers will continue to demand that tuna be 

"dolphin-safe•. However, the federal statute mandating a uniform . definition is essential to preventing mis-labeling and consuroer fraud. 

For example, current law properly prevents companies· from 

marketing tuna as dolphin-safe that is caught by setting nets on dolphins. Without the statute, a co~any could call its product dolphin-safe even if large numbers ofdolphins were k~lled in the 

production of that tuna, simply by saying that the source vessels 

participated in the _IATTC program. 

10. :Xn your ppinion, whAt WQUld pc;cur if the •c!plphipIP.feq d-fipitipn for labeling t\1AI, wu maintained. but 

begJU19 dilcretipnarv fpr qannera and pop mandated by us 

l.ul -

The only way for tuna labeling to become discretionary would be 

for the law to be changed to remove the current prohibition on the 

sale of dolphin-unsafe tuna. 

This change in the law, in our opinion, would encourage some canners to sell dolphin-unsafe tuna and forgo use of· the dolphin- safe label. These canners would be able to buy dolphin-unsafe tuna at extremely l _ow prices from Mexico. This would encourage further setting on dolphins and therefore increase dolphin mortality. · 

Discretionary labeling would allow such canners to undermine the 

dolphin protection procurement policies of the major US canners, 

and would unfairly penalize them. This change would be a step backwards for US marine mammal protection policy . 

11. :ra there qurrently a market for dolpbin-unaafe tuna? 

:rf ao, wbere are the market• •n4 Who suppliaa the tuna for 

theu marbt•Z 

Some markets continue to exist for dolphin-unsafe tuna. These 

include Mexico, Venezuela, and several additional countries in 

central and South America, and Japan. These markets are currently 
180 

Page seven 

being supplied by the dol.phin-un::;afe vessels from Mexico, 

Venezuela, and Vanuatu. 

However, the dominant US and European canned tuna markets are virtually closed to dolphin-unsafe tuna. 

Further, because of the economic crisis in Mexico, tuna sales have 

been drastically reduced, and tuna prices have dropped 

precipitously. This has resulted in intensified efforts by the 

Mexican tuna fleets to find ways of leveraging their dolphin- unsafe tuna into the US and Europe. 

Thank you for the opportunity to reply to these questions, and 

please feel free to contact me if you have any further questions. 

Sincerely, 

~l~~Hf Executive Director 
181 

DAVIS WRIGHT TREMAINE LAW OFFICES 

SUITE 700. 1155 CoNNECTICUT AVENUE, N.W .. WASHINGTON, D.C. 200J6 

(•o•) so8-66oo- FAXO (•o•) so8-6699 

]AMES P. WALSH 

(•o•l soS-66•6 

The Honorable Jim Saxton 

July 24, 1995 

Chairman, Subcommittee on Fisheries, Wildlife and Oceans 

Committee on Resources 

u.s. House of Representatives Room 805 O'Neill Building Washington, D.C. 20515-6201 

Dear Mr. Chairman: 

This letter provides responses to the questions posed in 

your letter of July 7, 1995 with respect to tuna/dolphin issues. We provide these responses on behalf of the American Tunaboat owners' Coalition (except as noted below), which is seeking amendments to the International Dolphin conservation Act such that U.S. tuna fishermen are treated fairly in the management of both tuna and dolphin populations in the eastern tropical Pacific Ocean. We greatly appreciate the attention of the Subcommittee 

to these issues. 

1. In your written testimony, you request fairness tor the 

u.s. tuna fishing fleet. What steps are necessary to accomplish this goal? 

The essential step is to amend the International Dolphin Conservation Act ("IDCA") to allow encirclement of dolphins by the u.s. fleet subject to: (a) the original Marine Mammal Protection Act ("MMPA") goal of limiting incidental takes to insignificant levels approaching a zero mortality and serious injury rate; (b) a fail-safe mortality limit based on potential biological removals, which is the standard applicable to all other domestic fisheries under the 1994 MMPA Amendments; and (c) a regulatory system that is based on the Inter-American Tropical Tuna Commission ("IATTC") Dolphin Conservation Program. These changes must also include alterations to the embargo provisions of the MMPA and to the "dolphin-safe" advertising restrictions in the IDCA and the Dolphin Protection Consumer Information Act so 

ANcHoRAGE, ALAsKA · BELLEVUE, WASHINGroN • BoiSE, IDAHO· HoNOLULU, HAWAII • Los ANGELES, CALIFORNIA 

PoRTLAND, OREGoN ·RICHLAND, WASHINGTON ·SAN fRANCISCO, CALIFORNIA· SEArrLE, WASHINGTON 

SHANGHAI, CHINA 
The Honorable Jim Saxton 

July 24, 1995 

Page 2 

182 

that u.s. tuna fishermen can sell their catch in u.s. and world 

markets on an equal basis with other fishermen. 

These changes will assure that u.s. tuna fishermen are treated no differently in the law than other u.s. domestic 

fishermen and that they can compete with foreign tuna fishermen 

operating in the eastern tropical Pacific Ocean. Such changes 

will also recognize the great success of tuna fishermen in 

protecting dolphin populations, rather than adopting a policy that environmental laws such as the MMPA can only be met by 

achieving absolute perfection. 

2. Why did the u.s. tuna fleet prefer to move to the 

western Pacific Ocean and adopt modified fishing 

methods rather than fish "dolphin-safe" in the ETP? Do 

any of the fishing vessels in the western Pacific Ocean 

set their nets on dolphins? Xf so, what nations? 

First of all, u.s. processors refused to buy any fish caught 

through the encirclement of dolphins, regardless of whether 

vessel owners complied with the Marine Mammal Protection Act or not. In addition, fishing for tuna in a "dolphin-safe" manner (e.g. without encircling dolphins that are associated with large 

yellowfin tuna by school fishing or log fishing) is not very 

productive in the ETP. So nearly all tuna vessels operating in 

the ETP in 1990 moved to the western Pacific Ocean. 

To the best of my knowledge, none of the fishing vessels of 

any nation operating in the western Pacific encircle dolphins to 

assist their tuna fishing operations. This is because tuna and 

dolphin do not associate in the same manner in this area as in 

the ETP. 

3. Your testimony states that the u.s. tuna fleet numbers 

about 47 vessels. Many of these vessels are currently 

operating in the western Pacific ocean. Do you have 

any knowledge of how many vessels would return to the 

eastern tropical Pacific Ocean (ETP) if legislative 

changes, as you have recommended, were enacted? 

Based on what the tunaboat owners have told me, perhaps up 

to 12-15 vessels might return for one or two "dolphin-fishing" 

trips in the ETP if the law is changed. The four u.s. vessels now operating in the ETP have already indicated, by applying for a individual vessel limit under the IATTC program, of their 

intent to engage in dolphin fishing in the ETP. The desire of 

most of these vessel owners is to obtain enough higher priced 

yellowfin tuna in the ETP to improve the economics of their 

vessel operations. Most of these vessels would land their fish 
The Honorable Jim Saxton 

July 24, 1995 

Page 3 

183 

in American Samoa, if u.s. processors are legally able and 

willing to· buy their fish. 

4. If the u.s. embargo remained in place, but was tied to 

participation in the IATTC•s dolphin conservation 

program, would the u.s. fleet be comfortable returning 

to the BTP? would those currently fishing in the BTP 

continue in this fishery? 

Resolution of the embargo problem, in and of itself, does 

not eliminate the current legal barriers to u.s. tuna fishermen 

operations in the ETP. Thus, the other changes in law noted 

above are required for the u.s. fleet to return to the ETP. In 

addition, the current embargoes would no longer be in place if 

they were tied to participation in the ETP program. All the 

countries whose tuna fleets fish in the region now participate in 

that program. Thus, there would be no basis for imposing embargoes if the law is changed as we suggest. The embargo authority would assure that those nations stay in the program. 

s. In your opinion, could the BTP tuna fishery support an increase in the number of fishing vessels without 

increasing the current IATTC dolphin mortality cap? 

The current annual mortality caps are contained in the 

resolutions adopted by the participating countries and are set 

forth on page 4 of Dr. James Joseph's testimony of June 22. We see no need to change these annual caps to accommodate u.s. vessels that return to the ETP. 

6. In your opinion, is repeal of the 11 dolphin-safe11 

definition an essential component of legislation to 

amend the International Dolphin conservation Act? If 

so, why? In your opinion, will the American people buy 

tuna without the "dolphin-safe" label? 

The concept of "green-labeling" and its impact on the 

American consumer is not well developed. The decision to pass a Federal law--and institute a major regulatory program to enforce a particular labeling restriction--was made in 1990 for canned 

tuna without much in-depth investigation or policy analysis. The 

definition of "dolphin-safe" adopted at that time was completely 

at odds with the policies defining legal fishing activity under 

the MMPA and the Endangered Species Act ("ESA"), which 

concentrate on managing and protecting populations or stocks of 

animals, not each and every individual animal. Thus, fish caught 

legally under the MMPA or the ESA became legally defined as "dolphin-unsafe" with no biological basis for doing so. 
The Honorable Jim Saxton 

July 24, 1995 

Page 4 

184 

The "dolphin-safe" label did not give Americans a choice; it 

resulted in all tuna be labeled the same way. "Dolphin-safe" 

tuna did not pay a premium to u.s. fishermen who caught it--quite 

the opposite. We believe that American consumers, who are not 

necessarily well-informed in such matters, are also confused 

about what it means. The "dolphin-safe" label was used by small 

minority of activists to achieve ~ policy goals, which they 

wrongly claim are the same as those of most American consumers, 

by forcing large buyers to avoid tuna not labeled "dolphin-safe". 

We believe strongly that eliminating the existing special 

statutory definition of "dolphin-safe" is essential for two 

reasons. First, the label creates the impression that fishing 

under the IATTC program is somehow bad for dolphin populations--

which is not true. Second, eliminating the statutory standard 

would open world and domestic markets to tuna caught under the 

IATTC program. Fair labeling would continue to be governed by 

Section 5 of the Federal Trade Commission Act and the FTC's 

regulations on the subject, just as any other type of 

environmental claim would be. American consumers, if allowed to 

chose, will buy the best priced and best quality tuna, with or 

without a "dolphin-safe" label. 

1. In your written testimony concerninq the mortality of 

the harbor porpoise, you state that the level of 

mortality is 4 percent of net recruitment. How does 

this relate to the total population of the species? 

According to the Final Environmental Assessment of Framework 

Adjustment i4 to the Northeast Fishery Management Plan (To Reduce 

Bycatch of Harbor Porpoise in the Gulf of Maine Sink Gillnet 

Fishery) (April, 1994), the estimated weighted average abundance 

for the harbor porpoise population in the Gulf of Maine/Bay of 

Fundy region during the summers of 1991 and 1992 was 47,500 

animals. The lower bound of the 95 percent confidence level is 

39,500 animals, which is used to determine acceptable bycatch 

levels. In 1991 and 1992, the porpoise bycatch levels in the 

sink gillnet fishery was estimated at 5 percent and 4 percent, 

respectively, of the estimated population size in that region, 

according to that document. The objective of Framework 

Adjustment 14 was to reduce the bycatch to a ievel below 2 

percent in about 3 to 4 years. 

Obviously, the incidental take of marine mammals in this 

area of New England is having a far greater impact on the harbor 

porpoise population in the region than tuna fishing is having on 

the populations of dolphins in the ETP. 

I wish to comment on one other issue, which relates to 

whether the MMPA and the IDCA apply to u.s. citizens who serve on 
The Honorable Jim Saxton 

July 24, 1995 

Page 5 

185 

foreign tuna vessels operating in the IATTC program.Y our firm has represented u.s. citizens who serve as fishing captains and crew on foreign vessels in challenging a legal position taken by NOAA with respect to the application of u.s. law to their activities. NOAA has taken the legal position that the MMPA and the IDCA apply to these individuals. We challenged this position in court, Sabella et al. v. u.s., 863 F. Supp. 1 (D.o.c. 1994), and the judge did not endorse the agency's position. 

Our view is that Congress never considered the issue of extraterritorial application of either the MMPA or the IDCA to u.s. citizens who serve on foreign vessels operating outside U.S. 

waters. Under basic principles of statutory interpretation, Congress is presumed not to apply u.s. laws to foreign territory or foreign vessels operating outside U.S. waters, even to u.s. citizens unless such extraterritorial application is 

unequivocally clear from the statute. EEOC y. Arabian American Oil Co., 111 s. ct. 1227 (1991); NEPA Coalition of Japan v. ~. 837 F. supp. 466 (D.o.c. 1993). Having never considered this issue in the past, Congress did not clearly extend these laws to American citizens on foreign vessels. Attached is a letter from Congressman Don Young on this point. 

We continue to disagree with NOAA on this point but are willing to support an amendment that makes it clear that the MMPA and the IDCA do not apply to a u.s. citizen employed on a foreign flag vessel operating in the IATTC program~ 

I trust this letter responds to your questions in full. If I can provide anything further, please let me know. 

sincerely, 

DAVIS WRIGHT TREMAINE 

Enclosure 

l/ These views do not concern the American Tunaboat owners' Coalition but rather a group of u.s. citizens serving on foreign tuna vessels. 
Ms . Hilda Diaz-Soltero 

186 

'«1.35>. J;toust of l\tprelStntatibtlS 

C:ommilttt on 

;fllmbant ;fllarint anb .:lfiSbtrits 

Jloom 1334, J.on!IIDortll J(lou•r 4'1fict Jluilbina 

llasi.Jin!Jion. ;&C 20515--6230 

November 14, 1994 [)/J~ 

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n:.c::::~~ MittOIIIl"fiTAif~(lOII 

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nt~n•"'w..~.ao. 

-· ~· ~ 

~dL·· ... "t; 

<" " 0 "•-'U. CJ:~/ .(.~CA.Q 

'S>•···~ ~ 

Southwest Region Direccor 

National Marine Fisheries Service 

SOl W. Ocean Boulevard, Room 4200 

Long Beach, California 90802 

Lc.o...w ~<A~·"" .:;o-. 

~. 

Dear Ms. Diaz-Soltero: 

I understand that your agency has published proposed rules 

that would have the effecc of ~ng the Marine Mammal 

Protection Act~) and the~ational Dolphin Conservation 

Act (mCAl to Americans who work on foreign-flaa tuna vessels in 

the eastern tropical Pacific Ocean. If the MMPA and !DCA apply as proposed, then these Americans must cease working because they cannot get permits since NMFS has issued no regulations to issue 

permits for this activity, and a ban on participating in any 

encirclement of dolphins would apply. 

As a long-time member of the House Merchant Marine and 

Fisheries Collllllittee who has helped draft all legislation for the 

last 20 years addressing the tuna/dolphin controversy, I can state categorically that ac no our committee ever discuss the issue o a s to Amer1cans serving on fore1gn- ag tuna vessels. For certain, we did not act on any 

bilL tnat specifically woUld apply either the MMPA or the IDCA 

extraterritorily to Americans on vessels other than those 

documented under the laws of the United States. 

I am shocked that the agency is considering a regulation of 

this type. Given how effective foreign vessels have become in 

protecting dolphins and the role of U.S. employees in achieving 

such an extraordinary reduction in mortality, it seems unreasonable to adopt such a regulation. In addition, this 

action 18 l1kely to offend Mex1co ana other countries. But the most compelling reason not to adopt the regulation is that 

Congress never specifically authorized extraterritorial 

appl1CaE1on 1n tHee~ c1rcumsEances. 

DlPT ~f~a 

lt Cf I'll D 

NOV 17 '94 
187 

2 -

Consequently, I strongly urge NMFS not to adopt the proposed - regulations. There are certainly far more important marine resource management problems for the agency to address, using ita limited budget . 

ilY:rms 

20-276 - 96 - 7 

;JZY>~ Ranking ~~ ican Member 

Subcommitt on Fi sheries 

Management 
188 

INTER-AMERICAN TROPICAL TUNA COMMISSION 

COMISION INTERAMERICANA DEL ATUN TROPICAL 

OOSTA RICA· FRANCE· JN'NI· NICARAGUA · PANAMA· UNITED STATES OF AMERICA· VANUATU· VENEZUELA 

$crWa Institution of Oceanography, 8804 La Jolla ShoiM Drtve, La Jolla, CA 92037·1508, U.S.A. 

Tel: (819) 646 7100 • Fax: (819) 646 7133 • Director: James Joaeph, Ph. D. 

FTS Tel: (700) 893 8100 • FTS Fax: (700) 893 8133 

Congressman Jim Saxlon 

Chairman 

Subcommittee on Fisheries 

Wildlife and Oceans 

US. House of Representatives 

Committee on Resources 

Washington, OC 20515 

Dear Congressman Saxlon: 

July 26, 1995 

Ref: ll606-aOO 

Enclosed are my responses to the ten questions you posed to me in your letter of July 7, 1995. I hope 

that you will find them helpful. 

JJ:bj 

Enclosures 

As above 

Sincerely yours, 
189 

1. While the total population of clolphlna In the eaotern tropical Pacific Ocean (ETP) Is large, It 

hao been noted that a few otodca have been cluoifiecl ao clepletecl. What otepa hao the lA TIC taken In 

its International Dolphin Conservation Program to protect these clepleteclstocka7 

There are seven major stocks of dolphins involved in the tuna fishery of the eastern Pacific Ocean. 

Of these, two have been classified as depleted. A stock or population of dolphins is defined by the 

Secretary of Commerce as being depleted if its abundance falls below its optimum sustainable population 

(OSP) level, which has been defined to be 60 percent of "the population level of a given species or stock 

which is the largest supportable within the ecosystem (K)." The two stocks declared depleted are (I) the 

northeastern spotted dolphin and (2) the eastern spinner dolphin. They are considered to be at 23% and 

44%, respectively, of their OSP levels. 

Through its International Dolphin Conservation Program (IDCP), the JAITC sets upper limits on 

the number of dolphins that can be taken by the purse-seine fleet operating in the eastern Pacific Ocean. 

These limits are progressively reduced to a level of less than 5000 animals per year by 1999, but, in fact, 

annual mortalities, as a result of the program, have been already reduced less than 5000 animals. The 

international program also sets a safeguard that would call for a ban On purse-seine sets on dolphins for 

which the mortality caused by the fishery exceeds 4% of the abundance of that stock. 

The current level of mortality, expressed as a percentage of current stock abundance, is well below 

4%; in fact, it is 0.13% and 0.12%, respectively, for northeastern spotted and eastern spinner dolphins. 

'These mortality rates are well below the Potential Biological Removal levels (PBR) which are applied to 

stocks of marine mammals taken in association with oornmercial fisheries within U.S. waters. PBR limits 

are defined by the MMP A as "the maximum number of animals, not Including natural mortalities, that 

may be removed from a marine mammal stock while allowing that stock to reach or maintain its 

optimum sustainable population." PBRs for the northeastern spotted and eastern spinner dolphins are 

6,420 and 5,094, respectively, while the actual mortalities in 1994 caused by the fishery were 934 and 743, 

respectively. The MMPA defines Zero Mortality Rate Goals (ZMRGs) as 0.10 x PBR, and states that for 

any species at or below ZMRG no management is required. Of the seven stocks of dolphins involved in 

the fishery, the mortalities for four of them are already below ZMRG, and the other three stocks are very 

close to ZMRG. 

Under current levels of mortality, and assuming a net recruitment rate of 0.04, the stock of eastern 

spirmer dolphins should reach OSP and therefore be removed from the depleted list by the year 2000, and 

the same should be the case for the stock of northeastern spotted dolphins by the year 2021. Current 

mortality is so low, compared to the natural rate of increase of these stocks, that under current conditions, 
190 

and in the absence of fishing on dolphins, the estimated number of yean required to reach OSP would be 

virtually unchanged. 

2. Do you believe that the IATTC can achieve further re4actiona ln the annual mortality of 

dolphins ln the ETP? If ao, what method• or change• ln current flahlng practice• are the moat 

promlalng for further reductlona? 

There are two ways to reduce mortality that allow the continuation of the fishery and produce a 

relatively low impact on the environment 

(1) Catching large yellowfm without dolphlna and without increasing bycatches of tunas or of 

other species. 

(2) Allowing fishing for tunas associated with dolphlna to continue, while imprmiing the purseseine net and the technology used to reduce roll-ups, collapses, and canopies, and the 

instruments used to detect strong currents and other hydrographic conditions which may 

contribute to these events. These events account for at leut 50% of dolphin mortality, and if 

we can diminish their incidence we can significantly reduce dolphin mortality. 

The Scientific Advisory Board convened by the lATI'C has reviewed many possible research lines, 

including changes to the net design and materials, use of additional equipment (e.g. improved current 

detection systems and improved rescue boats), exploration of alternative ways of fishing through the use 

of Fbh Aggregating Devices (FADs), and exploration of ways of separating tunas and dolphins prior to 

setting the net. However, no funds were available to follow-up on these various research proposals and 

recommendations. The most promising proposals, in the opinion of the experts present, were: (i) 

experimentation with model nets, (ll) addition of fine mesh in the nets, (iii) conversion from single to 

double corklines, (iv) use of hexagonal mesh, (v) use of hyperester or other heavy materials in the 

construction of the net, (vi) introduction of the "Freitas" Panel in the net, (vii) introduction of Jet-powered 

rescue boats, (viii) other changes in the corkline, and (ix) experiments with FADs. 

3. Ia the yellowfln tuna population ln the ETP at a auatalnable level1 If ao, do you feel that the 

IATTC will be able to maintain thla population If new veuela begin to flah ln the ETP7 

The yellowfin tuna population is above the level at which it can support the maximum sustainable 

yield. At current levels of fishing effort, and with the current pattern of fishing mortality by age, it 

should remain at that level without restricting on the fishery. 

2 
191 

During the early 1960s the yellowfin stock was overflshed, and its abundance reduced to below the 

optimum level. The lA 1TC instituted a conservation program that restored the stock of yellowfin to its 

optimum size. This was during a period when the international fleet operating in the eastern Pacific 

Ocean was 60% larger that it is today. The mechanism employed in the conservation program to ensure 

the sustainability of the population was to set an annual limit on the harvest of yellowfin that did not 

exceed the sustainable yield. In recent years limits have been recommended by the lA TfC staff, but 

actual catches of yellowf"m have been below these limits, so that there has been no need to restrict the 

fishery. If enough new vessels enter the fishery of the eastern Pacific Ocean to cause the catch to 

approach or reach those limits, then the lA TfC staff would recommend that nations restrict catches by 

their vessels so that the recommended sustainable levels of harvest would not be exceeded. I There is no 

guarantee that the nations which participate in the fishery would agree to follow the recommendations of 

the lA TIC to restrict their fishing effort, but if the tuna-dolphin problems were resolved there is no 

reason to believe that they would not. 

4. We understand research has shown there to be an unintended conservation problem 

aaaodated with other "dolphin-safe" methods of flehlng for yellowfln tuna in the ETP. Is there any 

data that would euggeet that if all ETP fiehing were by these other methods, the bycatch problem 

would seriously reduce recruitment of yellowfln tuna? 

If the fishery in the eastern Pacific Ocean were 100% dolphin-safe, which is the objective of the 

International Dolphin Conservation Act, there would be a very large bycatch of small tunas, including 

yellowfin, skipjack, bigeye, frigate tuna, and black skipjack. 

It is estimated that if all re-directed fishing effort were applied to logs there would be between 15 

and 30 million small dead yellowfin discarded at sea. If half the re-directed effort where applied to logs 

and half to free-swimming schools, discards would be between 9 and 19 million. This represents 11 to 38 

percent of total recruitment to the yellowfin population, which is currently estimated to be about 80 

million fish. Such discards represent a large proportion of total recruitment, and would likely have a 

major detrimental impact on the yellowfin population and fishery. This loss to the fishery recruitment 

would occur in addition to an approximate 25 to 50 percent reduction in catch due to a shift of fishing 

effort from the large area in which dolphin sets take place to the smaller area in which sets on log fish and 

free-swimming schools are made. 

However, even if the current level of fishing effort is maintained, a shift in fishing pressure toward the 

smaller fish (as would be the case if dolphin fishing is significantly reduced or eliminated) could result 

in a significant reduction of the sustainable yield. 

3 
192 

5. Other nations have raioed quHiiona concernins the bycatch of other epeciH, euch •• blgeye 

tuna, In the ETP flahery. Could you pleaae diacua• the ongoing reaearch of bycatch from other 

"dolphln-•afe" fishing method. uaed In the ETP1 

Beginning in 1993, our observers started collecting data on bycatches of all species taken during 

tuna purse-seining operations. This database is one of the two most complete bycatch databases in the 

world today; in 1994, our observers recorded bycatches from 89% of the log sets, 66% of the school sets, 

and 69% of the dolphin sets made in the eastern Pacific Ocean. As soon as the data for the Mexican 

observer program become available, the percentage will approach 100. Bycatch data were not collected 

for less than 5% of the sets sampled by the lA lTC because a few of the observers had not yet completed 

training in the necessary procedures. In any case, the level of coverage is so high that the process of 

estimating bycatch is quite simple. 

Large catches of bigeye tuna are taken in the eastern Pacific Ocean by Japanese longline vessels. In 

recent years such catches have averaged about 71,000 tons. Nearly all of this catch is marketed in the 

high-priced Japanese sashimi market. This fishery is one of the most lucrative for the Japanese. Because 

bigeye spend most of their lives in deep water, catches by purse-seine gear have historically been 

minimal. However, with a shift by some vessels to dolphin-safe fishing. techniques to capture bigeye in 

association with floating objects have been developed by purse seiners. In 1994 a catch of 31,000 tons of 

bigeye was taken by purse seiners in the eastern Pacific Ocean, of which more than half was small fish. 

The catch of medium to large bigeye is considered intentional, rather than bycatch, as it results from 

restrictions against fishing for tunas in association with dolphins. In addition to small bigeye, small 

yellowfin and other unmarketable fish are taken in sets on bigeye; these should be considered as 

bycatches, of course. 

The lA TfC staff is currently studying the impact of these large catches of small bigeye taken by 

purse seiners on the catches of large bigeye taken by longline vessels. The results are preliminary, but 

they indicate that if such catches are sustained in the purse-seine fishery bigeye catches in the longline 

fishery could decline significantly. 

In addition to bigeye tuna, many other species are taken as a bycatch, including tuna-like fishes, 

mahi-mahi, yellowtail, triggerfish, sharks, blllfish, and other fishes, as well as endangered sea turtles. The 

changes in magnitude of these bycatches would depend on the proportion of the fishing effort that is 

shifted from fishing on tunas associated with dolphins that would be re-directed to fishing on schoolfish 

and log-associated fish. In the most recent decade, the number of sets on dolphins has oscillated around 

10.000 (highest 12,580; lowest 6,953). The attached table shows the expected bycatches that would result 

4 
193 

if aU 10,000 sets were directed to floating objects ("log sets"), to free-swimming tunas (school sets), or to 

dolphins. If fishing on dolphins Is banned, the fishermen would have to switch their effort to other 

oceans, or to the other ways of fishing available to them. Because many fishing nations in this region are 

also coastal nations and/or work with canneries in this region, and because there would be problems of 

access for them in other areas, it seems unlikely that a large portion of the eastern Pacific fleet would 

move elsewhere. U the boats remain in the eastern Pacific Ocean, they would have to redirect their effort 

toward logs and schools. U the 10,000 dolphin sets were transferred completely to logs the bycatches 

would change from those listed in the table under the dolphin set heading to those under the log set 

heading. There would obviously be a huge increase in the bycatches of tunas and many other species. U 

all vessels switched to school sets the effect would be to replace the dolphin sets column with the school 

set column; in this case the increase would be much smaller. The most realistic scenario would be a 

combination of both changes, with some of the effort going to log sets and some to school sets. 

The current impacts of the fishery can be computed by using the most recent estimates of numbers 

of dolphin sets (7,715), log sets (3,149), and school sets (4,428), and multiplying the respective columns in 

the table for 10,000 sets, by 0.7715, 0.3149, and 0.4428. As this fishery currently operates, most of the sets 

are made on dolphins, that have practically no non-dolphin bycatch, so the fishery is quite "clean" 

compared to others where sets on logs are much more common. The reason the fishery has remained 

relatively clean is that the efforts to eliminate fishing on dolphins have failed, and the fishermen have not 

switched to other fishing methods. 

6. What are the observation requirements for veuela fiahingln the ETP? What portion of time Is 

the observer on duty? Do you feel the obterver program Ia extensive enough and sufficiently 

independent to ensure compliance with the La Jolla Agreement? 

The La Jolla Agreement calls for the participating governments of the IDCP to require tuna purseseine vessels of carrying capacity greater than 400 short tons under their Jurisdiction which operate in the 

eastern Pacific Ocean to carry an observer during each fishing trip. An observer can be from the lA TTC 

program or a country's national observer program, but at least 50% of the observers must be from the 

IA1TC program. (Currently only Mexico has its own national program, and it shares the sampling of its 

fleet equally with the IA1TC.) Recently two vessels with carrying capacities of under 400 short tons 

requested and received permission from the International Review Panel (IRP) to participate in the IDCP, 

and they will also be required to carry an observer on each fishing trip in the eastern Pacific Ocean. The 

IRP is a panel of government, industry, and environmental representatives that was established by the La 

Jolla Agreement to review and report on the compliance of the international fleet with the IDCP. 

5 
194 

An IATfC observer Is responsible for recording the vessel's activity mode throughout the trip. 

When the vessel is searching for fish, the observer is to be on duty on or near the bridge, but is allowed to 

take necessary breaks for meals, snacks, etc. During actual fishing operations, the observer is required to 

position himself at a good vantage point in order to observe the operation and record the required data. 

Thus, the observer is on duty 24 hours a day, and Is at his duty station during a large majority of the 

fishing day. Observers from Mexico's national program follow these same guidelines. 

Every vessel capable of fishing for tuna in association with dolphins carries an observer, regardless 

of whether it is fishing for tuna with dolphins or fishing dolphin-safe. From this point of view, the 

coverage cannot be improved. All observers are either government employees or international civil 

servants, so they are independent of the fishing industry and other possible influence groups. Their 

independence is protected by regulations recommended through the La Jolla Agreement and 

implemented by the governments that prohibit harassing or attempting to influence observers during the 

exercise of their duties. These two factors, coverage and independence, help to ensure that all vessels 

comply with the terms and conditions of the La JoUa Agreement. 

7. If the embargoes were lifte<l baaed on putidpatlon In the La Jolla Agreement and the IATrC, 

do you feel that aU the countriea which are aignatoriea lo La Jolla would join and •upport the lA TrC7 

Mexico, and the other nations whose vessels fish for tuna in the eastern Pacific Ocean have called 

for a lifting of the U.S. embargo against any nation which is party to the La Jolla Agreement. They have 

also sought to have the U .5. market opened to yellowfin tuna caught in association with dolphins in the 

eastern Pacific Ocean, so long as vessels catching such fish are registered in states party to the Agreement, 

and to have dolphin-safe include yellowfin tuna caught with dolphins in accord with the La Jolla 

Agreement. 

These nations question the merits of continuing in the IDCP unless such changes are effected. The 

rationale they give is that being forced to fish in a dolphin-safe manner Is ecologically unsound and is 

contrary to the principles of biodiversity and sustainable development as outlined during the Rio Summit 

in Agenda 21. 

I have been informed by the government of Mexico that it will adhere to the IATfC Convention if 

the embargoes are lifted and if the other changes noted above concerning dolphin safe are made. 

At the present time the legislative branch of the Colombian government is currently discussing a bill 

dealing with its possible adherence to the lA lTC convention. 

6 
195 

8. Would an embargo proviaion, if lied to the International Dolphin Conaervalion Program. be 

adequate enforc:ementto enaure compllance by member nations? 

' ' 

If changes were made in U.S: Jaws which resulted in the lifting of embargoes and the redefinition of 

dolphin safe an international accord within the framework of the La Jolla AgreementiO apply sanctions 

against any nation violating the terms of the IDCP would serve as a strong incentive to ensure 

compliance by participating states. In fact, the states party 10 the La Jolla Agreement have had extensive 

discussions already of possible multilateral mechanisms 10 ensure compliance of both party and nonparty states. 

9. Is current lA TIC research being adequately funded? 

The regular annual budget of the IATI'C, which is provided through member contributions, has 

been relatively constant at about $3,000,000 since 1988. This represents about 65% of the amount actually 

approved by the member governments. Each year a larger share of the overall budget is allocated 10 the 

dolphin program, so consequently the proportion of the budget spent on the tuna and billfish program 

has been decreasing. In FY 1993/1994 about 48% of the regular budget was spent on the dolphin 

program, whereas only 35% of that budget was actually allocated for that purpose. An additional 

$540,000, which was collected through vessel assessments, was spent on the dolphin program. Total 

annual expenditures on the dolphin program amounted to approximately 2 million dollars. All of these 

funds were used to maintain 100% observer coverage, monitor dolphin mortality and abundance, 

conduct training and workshops 10 reduce dolphin mortality, and to carry out net alignments and gear 

inspections. There were very few funds from these two sources available for research into seeking 

alternative methods to capture large yellowfin without encircling dolphins nor research to improve 

current purse-seine technology 10 further reduce dolphin mortality. During the last two years there were 

funds available 10 do cooperative research with the U.S. National Marine Fisheries Service to study the 

tuna-dolphin bond and to examine environmental features associated with dolphin-safe fishing. Such 

funds were very limited, however, and are no longer available. Additionally, the U.S. Congress has 

mandated that funds coming from it can be used only to conduct research on methods of capturing tuna 

that do not involve encircling dolphins. 

Current funding is inadequate, and indeed unavailable, to conduct the kind of research needed 10 

seek means 10 further reduce dolphin mortality. Funds aJe urgently needed to conduct research in two 

areas: 1) the development of techniques 10 capture tuna that do not involve encircling dolphins nor result 

7 
196 

in large bycatches, and 2) the modification of current pune-te1ne gear that will eliminate or reduce rollups, collapse$, and canopies. 

10. Could you pleue comment on the different methoda of fiahing In the ETP and the weatem 

Padfic7 What Ia responalble for thla dlffennce In your opinion? Can yoa compare theae fl.eherlea ao 

to aize and value of catch and level of fiahing effort? 

Of the nearly 500,000 tons of tunas taken from the eastem Padfic Ocean, more than 80% is captured 

by purse-seine vessels, and the remainder Is taken mostly by longline vessels. Pune-seine vessels capture 

about 18 tons of tuna per day of fishing, and almost all of this catch is destined for the canned fish market, 

where it fetches about $800 to $1200 per short ton. Longline vessels capture about 1 ton of tuna per day 

of fishing, but the product Is sold to the Japanese sashlmi market, where the value Is more than 10 times 

that of pune-seine caught fish. The latter market Is Umited, however, whereas the former is not. 

The pune-selne fishery of the eastem Padfic Ocean captures tuna in three ways: (1) school fishing -

the capture of free-swimming schools of tuna; (2) log fishing - fishing near floating objects, such as tree 

trunks, under which tunas congregate; (3) dolphin fishing - capturing large tuna that are found in 

association with dolphins by endn:ling both the tuna and the dolphins. About 70% of the yellowfin tuna 

captured is taken from dolphin-associated schools, 17% from free-swimming schools, and 13% In schools 

associated with logs. The average sizes of fish caught by the three methods are about 44, 17, and 10 

pounds, respectively. 

Since 1986 about 77% of the tuna captured in all sets Is yeUowfin. but about 99% of the tuna caught 

in dolphin sets Is yellowfin. 

To da':e In 1995, 100 large purse-seine vessels (> 400 tons), representing a total carrying capacity of 

about 102,000 tons, have operated In the eastem Padfic Ocean. 

In recent years, the dockside value of the purse-seine catch from the eastem Pacific Ocean was 

probably about 350 to 400 million dollars. 

In the area of the western tropical Pacific Ocean (WTP), where the U.S. fleet has significant 

operations, the annual catch of yellowfin and skipjack tuna taken by the international purse-seine fleet 

amounts to about 850,000 tons, and of this only 27% Is yellowfin. About 190 purse-seine vessels are 

responsible for that catch. Of these 190 vessels, about 44 fly the US. Oag. Nearly all of the catch from the 

WTP purse-seine fishery Is reported to be from school and log fishing. No dolphin-associated fishing has 

8 
197 

been reported by vessels in the WTP, but fishing on whales accounts for up to 5% of the sets In some 

areas and seasons. In waters around the Philippines, mortality of dolphins per ton of tuna caught by the 

municipal purse-seine fleet is reported to be greater than that observed in the eastern Pacific Ocean. 

'The average size of yellowfin captured in the WTP purse-seine fishery is 36.4 pounds for school fish 

and 9.7 pounds for the log fishery. 

Because tuna from the WTP Is processed in so many different locations (Thailand, American Samoa, 

Philippines, Puerto Rico, Europe, Japan, Korea, Taiwan, etc.) it is very difficult to place a value on the 

catch. Most of the purse-seine catch in the WTP is sldpjack, which carries a lower price than yellowfin. 

Prices for sldpjack reached very low levels during 1994 (<$600 per ton) and have reached even lower 

levels during 1995. Because of the magnitude of catch from the WTP compared to the eastern Pacific 

Ocean, the gross value for the latter must be higher. In addition to the large catches made by purscHeine 

vessels, significant catches of sashiml-grade tuna are also made by longline vessels. 

The principal difference between fishing In the WTP and the eastern Pacific Ocean by the high-seas 

purse-seine fleets is that no fishing an dolphins is reported in the WTP. 'The same species of tuna and the 

same species of dolphins occur In both the eastern Pacific Ocean and the WTP, but tunas and dolphins are 

closely associated only In the eastern Pacific. It has been suggested that the lack of reported association in 

the WTP may be due to the deeper thermocline, the layer of greatest temperature change. The 

thermocline gradually deepens from a depth of 20 to 50 meters near the American continents to about 100 

to 150 meters in the central Pacific, to depths about 200 meters In the WTP. Yellowfin tuna are normally 

found above the thermocline, so that in the eastern Pacific Ocean they may be more concentrated near the 

surface than In the WTP. Since dolphins spend much of their time near the surface, they may have more 

opportunity for contact with yellowfin in the eastern Pacific. 'The fact of the matter is no one knows why 

tuna associate with dolphins, so it is difficult to speculate on why they do not. 

9 
FOR 1 0,000 SETS 

School Sets Log Sets Dolphin Sets 

(n = 2,317) (n = 702) (n = 2,447) 

Dolphins 1 36 

I 5,340 

Small tunas 4,110,000 103,180,000 1,560,000 

Mahi-mahi 3,703 715,954 417 

Sharks 45,865 140,185 11,046 I ...... U) 00 Wahoo 255 291,923 110 

Rainbow runners 117 38,419 

Other small fish 6,560 264,886 3,641 

Billfish 1,938 7,806 703 

Yellowtail 14,678 16,068 123 

Sea turtles 298 456 98 

Other large fish 755 7,251 

Trigger fish 993 337,137 
TUNA/DOLPHIN IN THE EASTERN TROPICAL 

PACIFIC 

THURSDAY, FEBRUARY 29, 1996 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS, COMMITTEE ON RESOURCES, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:10 a.m., in room 

1334, Longworth House Office Building, Hon. Jim Saxton (Chairman of the Subcommittee) presiding. 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE 

FROM NEW JERSEY, AND CHAIRMAN, SUBCOMMITTEE ON 

FISHERIES, WILDLIFE AND OCEANS 

Mr. SAXTON. The Subcommittee on Fisheries, Wildlife and 

Oceans is meeting today to hear testimony on a very important issue. I want to begin by thanking everyone for coming. I want to 

apologize for our slow start. 

There are two bills that we will be discussing today, H.R. 2823, the International Dolphin Conservation Act introduced by Mr. Gilchrest, and H.R. 2856, the International Dolphin Protection and 

Consumer Information Act introduced by Mr. Miller. We will be 

hearing opening statements with regard to both bills shortly. These two bills have brought together diverse groups of supporters. For example, Mr. Gilchrest's bill is fully supported by many of 

Congress's most conservative members, as well as the Clinton Administration, the Center for Marine Conservation, Greenpeace, the 

Environmental Defense Fund, the World Wildlife Fund, and the 

National Wildlife Federation. 

The Miller bill is supported by the Humane Society of the United 

States, along with a host of other humane groups, unions-including the International Brotherhood of Teamsters, International Electrical Workers Union, and the National Family Farm Coalitionas well as the Sierra Club, the Earth Island Institute, and Defenders of Wildlife. The environmental community, in other words, is 

split and so are many members of Congress, as well as members 

on this subcommittee. 

The issue, as I see it, is how can we encourage other nations to 

fish in a dolphin-safe manner without causing a huge bycatch of ju- venile tuna, sea turtles, and sharks? Harming dolphins is an emotionally charged issue. In a perfect world, dolphins would not interact with any type of gear. Unfortunately, we know that even the 

most selective gear produces dolphin bycatch when fishing for yel- lowfin tuna in the Eastern Tropical Pacific. 

(199) 
200 

Perhaps together we can fmd a way to reduce the bycatch of 

other species while setting on floating objects, protect dolphins 

from harm, and reward nations that have significantly reduced 

mortality of dolphins. I look forward to hearing from our witnesses 

about how the law can be changed to achieve these goals. I would 

now like to recognize the ranking member, the gentleman from 

Massachusetts. 

[H.R. 2823 and H.R. 2856 may be found at end of hearing.] 

STATEMENT OF HON. GERRY STUDDS, A U.S. 

REPRESENTATIVE FROM MASSACHUSETTS 

Mr. STUDDS. Thank you, Mr. Chairman. As I think you know, we 

have been down this road before and before and before and before. 

It was, as some people here are old enough to remember it, in response to the slaughter of dolphins in the ETP tuna fishery that 

we originally enacted this Act in 1972. And in four different sessions of the Congress since then, the gentleman from Alaska, 

whose heavy breath I sense is around here somewhere, and I have 

been able to work out our differences, which have been occasionally 

quite considerable. 

For three of those colorful episodes, I was privileged to chair the 

subcommittee of jurisdiction. And having been there, I do not envy 

my colleague from New Jersey today. In the event there is anyone 

here who is not up to date, we have apparently reassembled to consider, among other things, redefining the word "safe" to allow injuring or deliberately exhausting dolphins. 

Where I grew up, that word used to mean "secure from danger, 

harm or evil." As I understand it, "safe" would now permit doing 

all kinds of things to dolphins, including killing them as long as no 

one happens to notice it actually happening. God knows what 

would happen if the Judiciary Committee gets a hold of that definition when they are looking at the criminal code. 

If any of this is confusing, we are asked at least to draw comfort 

from the new alliance of the tuna industry, the government of Mexico, our Administration, and some of the very environmental groups 

which have championed the dolphin's cause in the past. 

I can't imagine that the coalition behind this change would for 

one moment allow my Massachusetts's whale-watching fleet, for example, to harass whales or to separate mothers from nursing 

calves, and then to market their cruises as "whale-safe." You would 

certainly react, as they would, if Mr. Young's oil companies, for example, giddy at the news that I am not seeking reelection this fall, 

were to conduct exploratory drilling that disrupted whale feeding, 

on!Y to hawk their wares as "whale-safe." · Three years ago, I agonized over whether to support U.S. implementation of NAFTA and the Uruguay Round of GATT. I ultimately did support them because I believe this nation must and 

can compete in a global economy. But I also based that vote on assurances from the Administration, and some of the organizations 

we will hear from today, that our environmental standards would 

not be compromised at the whitn of trading partners. 

On that basis, I promised my constituents that American standards would hot be weakened merely to ensure market share to 

Mexico or anyone else, whether the market is for tuna, or tomatoes, 
201 

or cars. I will not renege on that commitment, and I am, frankly, 

perplexed by the rationale of those who do so. 

In my view, Mr. Miller, Senator Boxer, Senator Biden are right 

and have crafted a responsible alternative to the status quo. Their 

bill, of which I am a co-sponsor, invites to our shelves all Mexican 

tuna that is harvested in a genuinely safe manner. So here, Mr. 

Chairman, we go again, and for once I am Godly grateful that you 

are in the chair. 

Mr. SAXTON. Mr. Gilchrest, do you have an opening statement? 

STATEMENT OF HON. WAYNE GILCHREST, A U.S. 

REPRESENTATIVE FROM MARYLAND 

Mr. GILCHREST. Thank you, Mr. Chairman. I have been here a 

little over five years I guess, and on almost all the environmental 

issues and policies I certainly have aggressively supported a number of environmental groups and certainly the former chairman of 

this subcommittee, Mr. Studds. 

We are pursuing this policy for no other reason-we are not pursuing the policy to deal with trade laws; we are not pursuing the 

policy to deal in any way related to GATT or NAFTA, but we are 

pursuing the policy of what we think is the most pragmatic and, 

yes, the most idealistic way to ensure the management of the resources of the oceans. We want to protect and, if not, bring down 

the mortality of dolphins to zero. We want to protect and reduce 

as much as is humanly possible the bycatch of all the marine resources, which are other marine mammals and specifically fish as 

well. 

I am not sure what a utopia is, and I don't think a utopia exists. 

And we can't achieve utopia if we try to redo that cliche of ignoring 

the good to achieve a purpose. We as people-it would be, I guess, 

a utopia if we could obtain the technique of photosynthesis and 

change sunlight into energy and food, but we can't do that. So we 

have attempted to craft a bill that we feel will achieve the goals 

of a zero dolphin mortality in an international marketplace that 

needs to be considered because we are residents of the earth. 

Mr. Chairman, I appreciate you holding these hearings today, 

and if I could make just a couple more comments very quick. In 

expressing the issue before us, we face a very difficult question 

that we have faced in decades in the past. Part of the question we 

deal with today is how we can best use our trade laws to further 

environmental goals especially on the high seas. 

Our current embargo on imports of tuna caught by means of dolphin/turtle nets can easily be compared to corporate stock. When 

you buy a stock, you watch its price rise, and you hold it until you 

believe it has gone as far as it can go, and then at that point you 

sell it before its price drops. Our current embargo has done a great 

deal of good, and I compliment the former Chairman of the Fisheries Subcommittee, Mr. Studds, for being a part of that. 

I believe U.S. leadership in the ETP has resulted in a remarkable decrease in dolphin mortality over the years, but I believe we 

have done all we can with our unilateral approach. And if we hold 

onto this approach too long, we will lose many of the gains we have 

made, and none of us want to do that. 
202 

The steps that our trading partners have taken to eliminate dolphin mortality have been in an effort to placate the U.S. Congress. 

If we fail to reward these steps, it is reasonable to believe that they will back away from those steps that they have taken. Mr. Miller's 

bill, while well-intended, implements an agreement we don't have, 

and its provisions will not lead to an international regulatory regime in the Eastern Tropical Pacific. And because of that failure, 

it is my opinion that Mr. Miller's bill will lead to more dolphin 

deaths. Today, we will hear that our bill is not really intended to protect 

dolphins, but rather that it is an ill-conceived effort to address a 

five-year-old GATT ruling. Let me make one thing clear about that. 

I do not care in relationship to this topic about the GATT ruling. 

I don't think it amounts to anything. We will soon hear testimony 

from supporters of the Miller approach that their bill addresses the 

GATT problem in our law. Fine. Then we all agree that in choosing 

between my bill and my good friend George's bill, there is no GATT 

issue. 

We are choosing between two bills, both of which will make us 

GATT-compliant, and that someone whose main concern was GATT 

compliance would have no preference between the two bills. But no 

one here is primarily concerned about GATT compliance, I among 

them as well. 

Everyone who supports this bill, my bill, our bill, does so because 

they believe an international agreement is the best means to address an environmental problem on the high seas. So I would encourage my colleagues and the witnesses to avoid disparaging peo- ple's motives and agree that while neither bill was crafted for this 

purpose, both bills resolve the GATT issue, and the GATT compliance is a nonissue in which people have to decide which bill they 

want to support. 

My bill enjoys a wide range of support: the Clinton Administration, the tuna-boat owners, the National Wildlife Federation. The 

list goes on and on and on. It is unusual to think that George Miller and I to be on opposite ends of an environmental issue, just as 

it is unusual for Greenpeace and the Humane Society to disagree, 

or our good friend Barbara Boxer or Tim Wirth to disagree. 

I respect everyone's motives, and I hope that as reasonable people we can reach an agreement on this. But I must insist in my 

belief that international problems require international solutions. 

We can either treat trade policy and environmental policy as inherently inimical to each other, or we can try to make them work together for the betterment of both. I believe that a multilateral approach in this field follows the latter approach and will protect the 

interests of dolphins and the tuna industry and the marine 

ecosystems. Mr. Chairman, once again thank you for the time to 

give an opening statement. 

Mr. SAXTON. I thank the gentleman from Maryland. Let me just 

say it is my intention to move now to an opening statement from 

Mr. Miller and then Mr. Richardson and--

Mr. MILLER. I will pass. 

Mr. SAXTON. To Mr. Richardson and then to ask unanimous consent that all of their opening statements be placed in the record. 

Mr. Miller passes. Mr. Richardson. 
203 

STATEMENT OF BON. BILL RICHARDSON, A U.S. 

REPRESENTATIVE FROM NEW MEXICO 

Mr. RICHARDSON. Mr. Chairman, thank you. I want to commend 

you for your very strong environmental record and for holding this 

hearing on this very important issue. I think, as Mr. Gilchrest 

mentioned, this is not just an environmental issue, it is a foreign 

f

olicy issue. And I think we have to be responsible on both fronts. 

am supporting Mr. Gilchrest's bill which, in my opinion, is the 

next step in the process of minimizing the impact of tuna fishing 

on dolphin populations and the marine ecosystem as he explained. In 1972, over 400,000 dolphins died in tuna nets, and last year the number was just over 3,000. Mr. Gilchrest's bill, which I am 

a co-sponsor of, locks into place a 99 percent improvement in environmental protection. Dolphin protection in international waters 

can't be carried out by the United States alone. We need an international coalition. 

We have to rely upon the commitments of several fishing nations 

to coo:perate with us to protect the dolphins, and we can't risk losing th1s important international coalition. And if we do, the United 

States runs the risk of never again being a leader as we have been 

in dolphin protection. The changes promoted by the Gilchrest bill will give incentives 

to make tuna fishing less wasteful for nontarget fish, as well as 

safe for dolphins. The bill guarantees, through the best observer 

program in the world, that every time a net is deployed, only tuna 

that is truly safe will receive this label. The dolphin-safe certification would be given to any haul of tuna in which no dolphins 

were killed or seriously injured. Although there are reasonable concerns from my colleagues that 

dolphins will be stressed by this fishing technique, the bill. which 

I support calls for a study on dolphin stress so that we can finally make some solid conclusions about this issue. Clearly, the United 

States must continue to hold the finn line on compliance with 

sound tuna fishing. That is why this bill would use the same tough trade measures and push countries to improve their fishing methods in the first place. On a final note, I think it is important that we implement the 

Panama Declaration to reward the efforts taken by our trading 

partners. If we fail to implement this agreement, there is reason 

to fear that our trading partners will return to their old ways of 

fishing. And if this happens, the dolphin mortality levels will rise. 

Mr. Chainnan, thank you for allowing me to make this statement. I am not a member of the subcommittee. I want to conclude 

by welcoming our former colleagues and our present colleagues here, many with very distinguished environmental records. And, 

Mr. Chairman, thank you once again for holding this hearing. Mr. SAXTON. Thank you, Mr. Richardson, and I ask unanimous 

consent at this point that all members' opening statements be 

placed in the record. And before we move to our panel, let me just 

say that we are anticipating a number of votes this morning, and 

our plan is to have Mr. Gilchrest leave about five minutes before 

the vote begins and he will rush back so that I can leave, and we 

will keep a continuous dialog going and move through the material 

in a more expeditious manner in that way. 
204 

Our first panel really needs no introduction. Senator Biden, Senator Boxer, Duke Cunningham, and Brian Bilbray are well known 

to all of us-to all people in the room, I think. We welcome you 

here, and I would just remind Senator Biden that his state is located directly between Mr. Gilchrest's and mine so be careful. 

STATEMENT OF HON. JOSEPH BIDEN, A U.S. SENATOR FROM 

DELAWARE 

Senator BIDEN. Thank you very much, Mr. Chairman. It is a 

pleasure to have the opportunity to be here. I want to begin by 

thanking Mr. Gilchrest, my neighbor to the west, for injecting some 

sanity into the debate on wetlands. Quite frankly, sir, you helped 

me a great deal with the State of Delaware by taking the stand you 

did. They figure if a conservative Republican like you could take 

the position they could take, you gave a guy like me a lot of cover 

for taking the right position for the first time in the minds of many 

people in my state. 

But I sincerely thank you because the eastern shore of Maryland 

is the western shore of Delaware, and, as you know, we share a 

common geography and a common culture and a common background and a common concern, and I thank you for your help-not 

your help-your leadership. 

And although the ranking member is delighted he is not Chairman, I wish he were, and notwithstanding the fact that Mr. Saxton 

and I have been friends for some time. And I always point out to 

him that the Delaware River-all of it-is part of the State of Delaware-all of it. I want you all to know that for the record. 

I would like to ask unanimous consent in the interest of your 

time that my statement be placed in the record as if read if that 

is appropriate. And I will try to summarize. I would like to make 

what I think is-important distinction. 

As Mr. Studds indicated, in the early '70's we passed an Act that 

was designed to end the carnage or at least diminish it. In the 

early '90's, in 1990, on the Senate side, I, and on the House sideactually on both sides-Senator Boxer, along with Mr. Miller and 

others, we passed a dolphin-safe tuna bill. And then in 1992, we 

amended the Act again by limiting the kinds of nets that could be 

used to fish on dolphin or fish period. 

There are three separate distinct issues here. Now, let us assume 

for the sake of discussion that Mr. Gilchrest and Mr. Richardson 

and the Chairman are correct, that either because of international 

agreements or because of international cooperation that has nothing to do with any agreement that there is a need to change the 

Marine Mammal Protection Act. Assume that is true, and I do not, 

but assume it is true. There is no need to change the labeling Act. 

It has nothing to do with any of that. It is overkill, no pun intended. 

Even if you concluded that in order to protect dolphins, as I believe is the motivation of Mr. Gilchrest, we need to change the Marine Mammal Protection Act, or if you share the view of Mr. Miller 

and Senator Boxer and myself that that is a bad way to do it and 

our bill is the more appropriate way to save the most dolphins, the 

labeling portion of this Act is not a law that has any impact upon 

a foreign country. 
205 

It is like the FDA. For example, let us say that you are only allowed to have five percent sodium in crackers, but along comes the 

medical profession, and it thinks that the really safe level of consumption of sodium in crackers is one percent. And we pass a law 

that says if you want to list on your crackers that they are sodiumsafe, you have to prove you only have one percent. You are allowed 

to sell crackers that have five percent sodium in them. But if you 

want to use this label that says sodium-safe, you have to prove 

there is only one percent. 

Now, companies are free not to do that. Starkist Tuna can go out 

there if they want to-if you change the law and don't change the 

labeling Act-and sell tuna that was caught in purse seine nets. 

But they can't put the dolphin-safe label on it. 

First of all, you are wrong, in my humble opinion, substantively 

on whether or not you should change the real part of the law which 

has to do with the '92 amendments. But assume you are right on 

that, which you are not, in my humble opinion, why do you have 

to change the labeling provision? 

If you change the law the way you want but for the labeling, you 

can bring in all the tuna you want from Mexico, all the tuna you 

want from Venezuela, all the tuna you want from anywhere. But 

when Starkist Tuna cans it, if they buy it, they have to have two 

different cans; one can that says dolphin-safe on it and one can 

that says tuna. That is all. 

So what is your motivation? What is your motivation if you really 

want to protect dolphins and/or deal with it as foreign policy issue? 

If that is your concern, what the heck does tuna labeling have 

to do with it? And if Mr. Gilchrest is correct, that this has nothing 

to do with international trade, nothing to do with an international 

trade agreement, it is to save more dolphins, why are you opposed 

to a truth-in-labeling requirement? 

What does that have to do with anything? The company doesn't 

have to do it. They don't have to put dolphin-safe on their labels, 

but please do not change our definition. This is one of the few 

places I would think Republicans would find concert with folks like 

me, and that is let the consumer decide. This isn't government regulation. This is truth-in-labeling. Now, my prepared statement, and I have already gone too long 

in the interest of all of your time-my prepared statement speaks 

more broadly. But please, let us make a logical distinction. It is illogical to suggest that eliminating the dolphin-safe legislation has anything to 

do with increasing the prospect that fewer dolphins will be killed. 

That is fundamentally illogical. 

I ask you please, just ask your staff to do like we used to have 

to do in graduate school. Set up a little syllogism. Your basic 

premise, you want to save dolphins. Flesh out the syllogism, and 

you tell me where labeling comes into it. What does labeling have 

to do with the fundamental debate? 

So please, if you insist on changing, at least have the good grace 

to let a voluntary program stay in place. Companies don't have to 

comply. Importers don't have to comply. Exporters don't have to 

comply if they don't want to. But just let my mom when she walks 
206 

in to the grocery store to buy a can of tuna to have a choice of 

knowing that the tuna she buys is tuna not caught on dolphin. 

Please, please, acknowledge at least, if you don't agree with me, 

the distinction between the action taken in '92 changing the law 

and the action taken in '90 relative to labeling. 

I thank the Chair. But I will be happy to answer questions if it 

is appropriate or- answer them in writing at a later date, Mr. 

Chairman, or come back-whatever is the wish of the Chair. I 

thank you. 

[Statement of Senator Biden may be found at end of hearing.] 

Mr. SAXTON. Senator, thank you very much for your very articulate testimony. We are, because of our time constraints, going to 

move through this panel, and so any members that have questions 

for you will submit them to you in writing. 

Senator BIDEN. Thank you all very much. 

Mr. SAXTON. Thank you. Senator Boxer, please proceed. 

STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM 

CALIFORNIA 

Senator BOXER. Thank you so much, Mr. Chairman. 

Mr. SAXTON. Welcome back. 

Senator BOXER. Thank you. It is wonderful to be here, although 

I have to say I didn't think I was going to have to be here to fight 

an old battle that we already fought and we already won on behalf 

of the dolphin. I mean, it is just outrageous that we are even here 

doing this, but, then again, it seems to me in this Congress we are 

always fighting old battles, whether it is Medicare or education, 

things that I thought we already fought and put aside. 

Having said that, let me take issue with one thing you said, Mr. 

Chairman, which is that there is a split in this issue. Mr. Chairman, let me tell you the people who led the fight to protect the dolphin are not split at all. We are together, just as we always have 

been. Senator Biden, Senator Boxer, Congressman Studds, and 

Congressman Miller, we are together. 

Seventy groups are together as opposed to about four or five environmental groups on the other side. And the fact that the Administration is on the other side to me is outrageous, which I have told 

them, and I think it is completely because of foreign policy reasons. 

And I have to commend Mr. Richardson who is the one who said 

it. 

This Gilchrest-Breaux-Stevens law is not about protecting the 

dolphin. It is about foreign policy, and that is plain and simple. 

Now, I want to make a point as to where I stand on this so there 

is no misunderstanding. I will fight this bill, the Gilchrest bill, 

being introduced in the Senate side by Senators Breaux and Stevens, with everything I have got, and I am going to let the American people know if this passes, there is going to be a fraud perpetrated on consumers. 

Because it isn't as if the Gilchrest bill simply repeals the labeling 

law, it changes the definition of what constitutes dolphin-safe. And 

it keeps that label on the tuna can so that when Mr. and Mrs. 

Consumer goes into the supermarket, that same smiling dolphin is 

there except for one small fact, that tuna catch could have resulted 

in a huge dolphin death because we do not yet know the impact 
207 

of harassment on these mammals. The studies are not yet done, 

and everyone, including the Administration, says that is a fact. 

Mr. Chairman, I am going to conclude in about two or three more 

minutes, but I would like to ask your permission to place into the 

record my entire statement at this time, in addition to several of 

these-the list of the 70 groups who are going to get out there with 

me and let the American people know of the consumer fraud that 

is coming if this bill passes, plus a March 4 article from Time Magazine in which Anthony O'Reilly, the Chairman of Heinz who owns 

Star kist, the largest tuna processing in the world today, say, "I believe the definition should not be changed in the absence of consensus of scientists and public opinion," and there clearly is no such 

consensus. We don't even have the studies. 

An October 9, 1995, San Francisco Examiner editorial which concludes, "And that is the reason why we suggest the Clinton Administration back off from the Panama Pact." A January 2 letter to the 

editor to the Washington Post by myself and Senator Biden. 

A February 26 letter to members of Congress by eminent marine 

biologist Dr. Roger Payne, President of the Whale Conservation Institute, who says about the Gilchrest-Cunningham-Stevens-Breaux 

bill, "It could have a strong negative impact on dolphins. The bill 

seems to constitute a significant step backwards in what has been 

one of the major achievements in the conservation of wild marine 

mammal populations." 

He also says, "The current definition of the dolphin-safe label 

gives a conservative and scientifically defensible definition." And he 

concludes by saying, "I cannot support a policy that promotes the 

harassing, chasing, encircling, and capturing of dolphins in purse 

seine nets and calls it dolphin-safe, and I hope Congress will not 

support it either." So with your permission, I would like to put all 

of those into the record at this time. 

Mr. SAXTON. Without objection. 

Senator BOXER. Mr. Chairman, we should be celebrating this 

law. It is one of the few things we have done around here that 

works. We have seen the dolphin mortality plummet from hundreds of thousands a year down to below 5,000, and now because 

somebody is talking about trade and there are some special interests behind this, we are now going to destroy a very carefully crafted policy, Mr. Chairman, that you have helped, by the way, bring 

to the American people. And it goes back to the '70's. It has 

worked. It has worked. 

But yet we are about to throw caution to the wind because some 

agreement was cut in an unwise fashion before there are any signs 

to know whether harassing the dolphin indeed leads to their mortality at a later time. This Gilchrest-Stevens-Breaux bill is unbelievable. You have to see the mortality. But what happens if there 

are adverse impacts later? No problem. You still get the dolphinsafe label. 

So here we have a policy that has come about in a bipartisan 

way over the years. It has worked, and it is going to be blown apart 

not because people care about the dolphin, because they don't care 

about the dolphin, and I got to tell you and I have to remind you 

about how the children in this country reacted to the tuna boycott 

that went on in this country. 
208 

And I again reiterate, and believe me, this is not any type of a 

threat because many of you here, you know, have the power to 

carry your side magnificently, but I intend working with my colleagues to lead the charge to let every American consumer know 

what is about to happen. Dolphin are going to start getting killed 

again in large numbers, and there is about to be a fraud perpetrated on the consumers when they see that dolphin-safe label. 

There will be a redefinition, and I just hope that the message 

goes out from this committee room today that there are those in 

this country who will not allow it to happen. Just to give you a 

sense of some of these people on my side of this issue, American 

Society for the Prevention of Cruelty to Animals, Defendants of 

Wildlife, Earth Island Institute, Friends of the Earth, Humane Society of the United States of America, Humane Society International, International Wildlife Coalition, Marine Mammal Fund, 

American Humane Association, American Oceans Campaign, Coalition for Humane Legislation, Friends of the Animals, Fund for Animals, In Defense of Animals, Public Citizen's Global Trade Watch, 

Greenpeace Foundation Hawaii, environmental groups in Mexico, 

Dolphin Alliance, Dolphin Connection, Dolphin Defenders, Dolphin 

Data base, Dolphin Freedom Foundation, Endangered Species 

Project, Friends of the Dolphin, Friends of the Protection of Marine 

Life. It goes on and on-from this country to Canada to Ireland. 

And I think there is a lot of power there. 

In conclusion, I intend to filibuster this one if it gets to the other 

side. Maybe I will be all alone with Senator Biden for hours, but 

we are not going to allow these protections to be stripped away 

when they have worked so beautifully. Thank you very much, Mr. 

Chairman. 

[Statement and attachments of Senator Boxer may be found at 

end of hearing.] 

Mr. SAXTON. Thank you, Senator. Congressman Bilbray. 

STATEMENT OF HON. BRIAN Bll..BRAY, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. BILBRAY. Thank you, Mr. Chairman. I would like to first 

point out, Mr. Chairman, that I am not here to address foreign policy or international trade. I am here to talk about species management, and I think the battle for good species management is never 

over. You can't say we did it all in the '70's and thus it is all over. 

Mr. Chairman, one of the most exciting things that we have run 

into in species management in the last few years is two basic concepts; one, of moving beyond single-species management to 

multispecies management-looking at the big picture-the interrelationship of all the species among themselves and the environment. The other is the expansion of our domestic species management concepts and strategies into an international strategy to, 

again, take care of the whole issue rather than to just doing those 

piecemeal things. 

Mr. Chairman, when we sit down here and talk about the experts, I look forward to you getting the testimony from Dr. James 

Joseph, who is one of the world's most knowledgeable and respected experts in the complex relationship between tuna fisheries 
209 

and dolphin populations. He is one of the primary architects of the 

landmark 1992 La Jolla Agreement. · I also look forward to you receiving testimony from Mary Walker, 

who is an environmental attorney from my home city of San Diego, and has significant background in natural resource issues. She is 

a former Deputy Assistant Attorney General of the Land and Natural Resource Division of the Department of Justice. She is a former 

Deputy Solicitor for the U.S. Department of the Interior, Assistant 

Secretary for the Environment at the U.S. Department of Energy, and she was a participant and deeply involved in the crafting of 

the 1992 La Jolla Agreement. 

Mr. Chairman, there are those who are going to say that it is 

only dolphins which are the official issue. I think that we can point 

out that the 1970's ERA strategy was very successful, and I think 

the drafters of that proposal should be praised. It has been a very, 

very successful program. The fact is is that it has been used as a 

model or foundation of the type of cooperation we need more of. But I think that we have got to recognize that the time has come 

for abiding long-term policies, because the incentive to the successes of the voluntary programs was the fact that this issue would 

be addressed by Washington if the international community was 

willing to work together cooperatively. And the fact is if we walk 

away from this issue now and say, "Sorry. What we did then is all 

we are ever going to do," we are locking us in concrete. There is 

no incentive at all for these agencies and these countries to not 

walk away from this very, very successfulfolicy. Now, Mr. Chairman, the bycatch issue think is one that has to 

be addressed. I don't think any of us want to say that the only pri- ority of this Congress is dolphins and only dolphins, and we don't 

care about .the Endangered Species Act, we don't care about 

bycatch, we don't care about the destruction of species other than 

the dolphins. 

The agreement that is being proposed in H.R. .2823 protects the 

dolphins, but it expands the sophistication of the protection level 

to say that endangered sea turtles, or bill fish, have as much right 

to have life in the ocean as any other species. And, in fact, the Endangered Species Act should mandate that we look at this. If I as a county commissioner or a mayor had passed laws and 

regulations that de facto encourage people to go all over and take 

and destroy the endangered species, under our existing Endangered Species Act, there is no way of triggering intervention on it. 

What I am asking you to do is for Washington to have the guts to 

recognize it is time to move forward and address this very real 

issue. 

I think the Panama Declaration is one of those unique products 

that recognizes that we have to look at the whole environment, and 

not have tunnel vision. We need to be able to expand our perspective here and go to a strategy of multispecies management. I think 

that we need to go beyond just defending the status quo. 

As I said before, the 1970 strategy was great. It was great up to 

this point, where now we have recognized that there are areas that 

need to be improved, -and that is what H.R. 2923 does. The status 

quo is not something that you and I want to move into the next 

century with and say this is the best America and the world could 
210 

ever do. The fact is that H.R. 2823 implements the Panama Declaration, but what it really does is recognizes in the ocean what we 

are looking and encouraging people to do on land, and that is looking at the entire environment. 

I would like to say that we have taken a world leadership role 

in environmental strategies. Now, there are those in this country that would say that isolationism, either in trade or foreign policy 

or in international environmental issues is the way to go. I think 

this bill is recognizing our responsibility to lead the world-maintain our world leadership in environmental strategies. And I think 

that anyone who would say that what we have done in the past is 

good enough for the future will be ignoring not only our environmental responsibility, but also our world leadership. 

Mr. Chairman, I think that we can say quite clearly that there 

are those that would try to scare us away from doing the right thing, and I leave you with just a comparison. There are places all 

over, and I guess the gentleman from Alaska may take exception 

to this, where we are introducing predators back into the wildlife. 

We are allowing mountain lions, coyotes, and wolves to be reintroduced into the environment so that we address all of the issues. 

There are those that would then claim that we are somehow endangering deer, or this strategy would be antideer and would be 

cruel, and use those tactics to try to stop us from doing what is 

best for the environment as a whole. I am asking those that are 

looking at this-don't try to use the dolphin to scare us away from 

doing what is right. 

And I challenge you if you want to say that you want to be up- front about your listing and about your labeling, then let us have 

dolphin-safe but sea turtle-unsafe because right now the documentation shows that the log fishing, the alternative to what we 

are proposing, which is to set on logs has been documented as 

being a very big killer of sea turtles and other species bycatch. So have the guts to say, "Look. It was great in 1970, but what 

was great in 1970 is not good for the year 2000. And let us be 

brave enough to take that step." We not only have the right, Mr. 

Chairman, to improve our environmental laws to reflect good sciences, but those of us who claim to really care about the environment have a responsibility to have the guts to do the right thing 

to improve our environmental laws. If we don't, we don't have the 

right to say that we are environmentally responsible. Thank you, 

Mr. Chairman. 

[Statement of Mr. Bilbray may be found at end of hearing.] Senator BOXER. Mr. Chairman, may I make one very brief point? 

Mr. SAXTON. Senator, I am sorry but we are going to move--

Senator BOXER. It would take 10 seconds if I might. 

Mr. SAXTON. I am sorry. We are going to move to Mr. 

Cunningham now. We have been at this for almost--

Senator BOXER. OK. Well, I will just wait until after he finishes. 

Mr. SAXTON. Go ahead, Mr. Cunningham. 

STATEMENT OF BON. RANDY "DUKE" CUNNINGHAM, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. CUNNINGHAM. Thank you. I just talked to San Diego out in 

California, Senator. It is 75 degrees and the surf is up. 
211 

Senator BOXER. Let us go. Mr. CUNNINGHAM. Mr. Chairman, you know, this is like being 

back in the old committee when Chairman Studds was up there in 

the old Merchant Marine and Fisheries. And it was one of the most 

bipartisan committees that I ever served on under Mr. Studds and 

his predecessor except on this particular bill. 

And we have gone through a lot of iterations of it, and, unfortunately, you know, sometimes this place, whether we are trying to 

reduce bureaucracy or the NRA or if it is trial lawyers and we are 

trying to stop frivolous lawsuits that-! think sometimes groups feel that, well, "If I let this little chink go over, there is going to 

be a domino effect," and I wish we could get away from this. 

Because, you know, Mr. Gilchrest and I have taken a look at this 

thing and said how can we actually make it better? How can we 

improve tuna-safe and dolphin-safe labeling that where actually 

100 percent of the tuna that go . in there have got dolphin-safe instead of the current system and try to actually improve the system. 

Also, we took a look at the-right now we do not have jurisdiction over the countries that signed the Panama Agreement. They 

can go out and slaughter millions of dolphin if they really want, 

and by the Panama Agreement tying these different groups into a 

package, making sure that every single one of those boats has an 

observer, every single one before they sell their tuna has got to be 

dolphin-safe. Even if you kill one dolphin, then it is not dolphin- safe which right now that you can have dolphin kill and still be 

dolphin-safe. 

And it is beyond me that why we can't-this is not intended to 

be a domino effect kind of piece of legislation. It is to preserve a 

resource that we have. It is to preserve a tradition of fishing that 

we have in our country, and I know, Mr. Studds, in your particular 

part of the world, they have a lot of fishing and need those natural 

resources to be replenished. 

I think that if we take a look at what we are really trying to do, 

it does not exacerbate a problem but really, you know, to fix it. It 

strengthens the conservation program, and in many cases we have 

got the environmental groups that su_pport this bill. 

I know there was mention to GATT. When we created it, I had 

no intention of dealing with GATT or NAFTA or any other trade 

bill, but this was specifically focused on how (a) to save an industry, (b) how to save a resource, and (c) how to do it in a most efficient manner with the least amount of mortality to the dolphin. 

And that is the intent of this whole bill, and it is beyond me, and 

when people come up and they don't want you to fish for trout because it hurts the trout, I mean, sometimes we just need to say, 

hey, enough is enough, and let us go back, and let us revisit some 

of these issues and help instead of hinder what we are taking a 

look at. 

I know a lot of the opposition comes from a group called Earth 

Island. We have identified-they have admitted they get like 20 

percent of their total funding, $1 million, for managing the tunayou know, the dolphin-safe, and this is a financial thing for them. 

And I know many of the members in here support Earth Island. 

It doesn't mean you have to support them on every issue, just like 

the NRA, that, you know, most of the people on the other side just 
212 

chaste the NRA. It doesn't mean we have to support every item in 

those for or against, you know, the Federal bureaucracy or what. 

But where we actually reduce the amount of dolphin that are 

killed around the world by including these other nations, these 

other 13 nations, that has got to be better. If we don't and we don't 

pass this legislation, that agreement will fail, and every effort to 

actually decrease dolphin mortality will be worse. 

And that is what I don't understand of those that are opposite. 

Maybe I am willing to sit down with them, and if we can make it 

better, and I have tried to sit down with the groups in San Diego 

and say, "Listen. This is the intent." 

How can I work with Mr. Gilchrest? Mr. Gilchrest and I bump 

heads on a lot of different issues in this area, but we sat downMr. Saxton, the same things-sat down and said, "OK. If I can 

make it better, that is what I want to do, and I want to stop the 

dolphin from being killed, and I want to preserve the resource, and 

I also want to protect the jobs that we have in hundreds of years 

of an industry." 

And I urge the subcommittee to pass this proenvironment, 

probusiness, projob, proconsumer legislation as well as prodolphin. 

And I thank you for allowing me to testify and thank you for having me before the committee. And it is a pleasure to be back in this 

room with my former colleagues, Mr. Studds and Mr. Saxton. 

[Statement of Mr. Cunningham may be found at end of hearing.] 

Mr. SAXTON. Thank you very much, Mr. Cunningham. Are there 

questions for any members of the panel? 

Mr. YOUNG. Mr. Chairman? 

Mr. SAXTON. Mr. Young. 

Mr. YOUNG. I would just like to make one comment. I am a little 

upset with Mr. Cunningham. He recognizes you and he recognizes 

Mr. Studds--

Mr. CUNNINGHAM. I said Mr.--

Mr. YOUNG. No, you didn't say Mr. Young, and I am deeply 

upset. 

Mr. CUNNINGHAM. It was just a lapse. 

Mr. YOUNG. I heard you. I have got it on the record. But, anyway, deja vu. It is interesting. I know Mr. Studds read a very short 

statement and referred to me in his statement. I have to respond 

we did not dance when we heard that you were retiring. In fact, 

there was great sadness. You have been an honorable gentleman in this committee and--

Mr. STUDDS. I have never ever suggested the gentleman danced. 

Mr. YOUNG. No, no. You suggested those in Alaska danced, but 

we did not. We will miss you immensely. I miss Senator Boxer too 

because she was on the top of the wheel when she was on this committee, and now she is in the minority on the other side. 

And it is interesting to understand that we are talking about an 

issue that has been with us five times. First, we were amending 

the law to save the dolphin, make it better, make it better, make 

it better. When we first started, we had 64 ships in San Diego that 

were tuna ships. I think we have got three left. 

And it concerns me there is no consideration of what we have 

done to an industry that is trying to meet-every time they have 

met the qualifications that we set forth out of this committee, and 
213 

then we move the goalpost, and then we move it again, and then 

we move it again. And this bill, very frankly, introduced by Mr. Gilchrest and Mr. 

Cunningham, is the bill that was requested and thought of by this 

Administration. And I want everybody to understand that. I mean, 

it doesn't make it right. In fact, that gives me great concern. 

But I would urge the members to look at the facts of this issue 

and see if we can not only protect the dolphin, but understand that 

there is a point where we have to understand that other countries 

are not protecting the dolphin. Our fishing fleet has done their job, 

and they have been virtually eliminated from this industry, and I 

think it is very, very unfortunate. 

Mr. Bilbray, I don't care what you do in California. Just don't try 

reintroducing anything from California into Alaska. I was an example of what happens when that occurs, you see, so just don't do 

that. I don't think that is quite fair. And with that, Mr. Chairman, 

my written statement is so moved and put into the record. Thank 

you. 

[Statement of Mr. Don Young follows:] 

STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE FROM ALAsKA, AND 

CHAIRMAN, COMMITTEE ON RESOURCES 

Mr. Chairman, we are gathered here to once again hear testimon_y on the best 

way to protect dolphin populations in the Eastern Tropical Pacific (ETP) Ocean. I said at the hearing on this issue in 1992, we have "struggled to reach two often 

conflicting goals: that of dolphin protection and that of maintaining a domestic tuna 

industry which provides low-cost, nutritious food for American consumers and em- ploys American citizens." 

It appears that the 1988, 1990 and 1992 amendments to the Marine Mammal Protection Act have failed on both counts. Our U.S. fleet is almost non-existent in the 

ETP, we have lost domestic canners, and the foreign fleets are still fishing for tuna 

by whatever method they choose. 

We now have the potential for a binding international agreement. One which will 

provide protection for dolphins in general and for individual species of dolphins. This will provide a reduction in bycatch associated with "dolphin-safe" fishing methods. 

I believe everyone here will agree that since the enactment on the Marine Mammal Protection Act in 1972 the U.S. tuna fleet has been a world leader in adopting new and innovative methods of reducing dolphin mortality. And yet they were not 

rewarded for this effort-in fact, they were almost totally forced out of this valuable 

fishery. The Panama Declaration will allow U.S. fishermen an opportunity to regain their place as good stewards of the tuna resource. We now have an opportunity to implement a new international agreement known as the "Declaration of Panama." As we all are aware, this fishery is an international 

fishery. Unilateral restrictions and regulations cannot always provide adequate pro- tection. 

I believe the Panama Declaration offers us the best opportunity to protect dolphin populations, to reduce bycatch, to get international compliance, to provide adequate 

enforcement, and to strengthen the science we need to make wise management decisions. 

I am sure that all of the groups, governments, and individuals who have supported the Panama Declaration have done so for different reasons. The fact that all 

of these interests came together and crafted a binding international agreement is 

commendable. 

It is not often that you see a broad range of support for a controversial piece of 

environmental legislation. Mr. Gilchrest and I have not always a~ed on specifics of legislation; however, I complement him for his leadership on this issue. It is also 

not often that I agree with the Administration or Greenpeace on how to ensure sus- tainability of our natural resources. From my point of view, we should never have enacted the 1990 amendments that 

legislatively required companies to adopt the "dolphin-safe" definition to sell their 

product in the U.S. market. 
214 

I am pleased that we are now able to put forward reasonable legislation to solve 

this problem once and for all. This legislation will provide a mechanism to hold 

other countries accountable for their actions. It will protect overall dolphin popu- lations and those specific populations that nee~ protectio~. It ~ll ~ward U.S_. fishermen who played by the rules and were purushed desp1te bemg Innovators m the 

reduction of dolphin mortality. I understand some opponents of the Gilchrest bill are telling Members that whatever action we take, the Senate will never act on this legislation. Again, that is nonsense. Senator Stevens has already requested that time be set aside in April for a 

hearing on this bill. I expect the Senate will move this legislation this year. I thank Chairman Saxton for holding this hearing and look forward to moving the 

Gilchrest bill following this hearing. [The attachments to Mr. Young's statement may be found at end of hearing.] 

Mr. SAXTON. Thank you. 

Mr. CUNNINGHAM. It has always been a pleasure to serve with 

Chairman Young. 

Mr. SAXTON. Mr. Gilchrest I believe would like to be recognized 

for five minutes. 

Mr. GILCHREST. I would like to make just a quick statement to, 

in my judgment, set the tone of the debate. This is not going to be 

voted on today. It is not going to be voted on tomorrow. We have 

an interim of time where everyone that is concerned about the marine ecosystems can work together. 

I don't question the other side's motives. I assume they want to 

protect the ecosystem. They want to protect marine mammals. 

They want to protect dolphins. I will never use the word fraud to 

describe the other side's efforts to achieve these ends. I would 

much prefer all of us consider a timeframe where we can meet on 

a regular basis to discuss the issue of dolphin-safe, what is labeling. I know there is a great deal of differences of opinions right 

now regarding the stress of the dolphins inside the net and what 

that means down the line. 

But I would hope that if our goal is to achieve the maximum 

safety for marine mammals that we all closely look at each other's 

literature, not in a passing second or two, not flamboyant rhetoric. 

Let us each of us look at each other's information, work together 

to achieve this goal. Brian said it, that we are in a leadership position, and I think we don't want to discard that for any reason. So 

,J would just like to-let us set the tone, let us move forward, let 

us cooperate. Thank you, Mr. Chairman. 

Mr. SAXTON. Thank you, Mr. Gilchrest. Mr. Miller, recognized for 

five minutes. 

Mr. MILLER. Thank you, Mr. Chairman. Mrs. Boxer, if you had 

a comment, you are welcome to make that. 

Senator BOXER. Thanks. 

Mr. MILLER. And then I will have to preserve for comment or 

maybe a question. 

Senator BOXER. A comment to the point that those of us who 

were against this bill before the status quo is false. Read our bill. 

What we do is we actually lift the embargo on all countries. We do 

because we realize that is important, and we put the onus on the 

individual fishing company to use dolphin-safe practices. 

And let me just say to Mr. Gilchrest, I ap~reciate the opportunity 

to sit down and talk about your bill. I didn t get it before. It would 

have been nice if we did since we wrote the other language, but 

better late than never. Let us talk. But I will say I will not back 
215 

off from what I said, and I just have to repeat it. And I don't say it to be overly aggressive to you, but I feel that we have come to 

appreciate dolphin-safe labeling, what it means. 

If we keep that label, which your bill says we do, but then just behind the scenes change the defmition so that if no mortality is 

perceived, observed, they can still use it or if purse seining is used 

or if they are harassed and encircled, I think, in fact, that it is 

fraud. I am sorry that you don't agree with me. I have full respect for you, but I think that would, in fact, be a fraud on the consumer 

who has come to rely on that label. Thank you. I would yield back 

to Mr. Miller. 

Mr. MILLER. Well, thank you. I was going to make somewhat 

that same point, that, in fact, this bill, the bill that I have introduced or that you have introduced, allowed-it gets rid of the nation-by-nation embargo. And if there are fleets and there are canners that want to fish dolphin-safe, we would then allow that tuna 

to be imported into this, and they can fish the others however they 

want. 

Why is that? Because, obviously, they have made a determination, and that is why these negotiations were entered into. They have made a determination about the value of the American market. What they want us to do though in the process is to prostitute the American market so that they can bring in what it really isn't, 

dolphin-safe. 

What it is is kind of a wink and a nod at dolphin-safe, and if you don't observe certain things, you could get in under that criteria. 

That is far different than current law which says you are either a 

witness or you are not allowed in at all, and so we do allow access 

to that market. 

The other one is that we keep hearing that the group of countries 

that don't like the current situation, that the reason we have to do 

this is because they are going to go off and act irresponsible, that 

they are going to go off and murder dolphins, and then they are 

just going to sell their product wherever they want. 

I don't think the world is that easy today. I don't think the European Community is going to accept tuna where people act in that 

fashion. I am not even sure that you have given all of their inherent practice. I am not even sure the Japanese market is open to 

that notion that we are going to get out of these, we are going to 

get rid of our observer, we are just going to go fish the way we fish. 

I am not sure the world is that easy. You are banking that it is, 

they are banking that it is, but as we have seen before, that doesn't 

necessarily lend itself to the consumers and the people who orga- nized for this label. But I think Senator Boxer makes a very important point. This bill is being characterized as somehow this is the 

status quo. This isn't. 

This is trying to allow people who fish in a responsible manner 

and can document that to have access to the market that they state 

that they are now closed out and, correctly so, they are. So a little 

change in behavior, and you get access to a very, very valuable 

market for this commodity. And thank you for making that point, Barbara. 

Mr. SAXTON. I thank the gentleman. Mr. Farr. 
216 

Mr. F ARR. Yes. I would like to echo Senator Boxer's point. I 

mean, I am new to this issue, and I wasn't here when it was debated before. But your point is that the American public has accepted a process that worked, that is, the labeling process works 

well. It is fantastic. There is nothing wrong with the law as far as 

labeling is concerned. 

What is wrong with it is the way we try to enforce it, and we 

have been told that we can't do this on a nation-by-nation specific. 

Therefore, your bill addresses what is really broken, and I think 

that that needs to be pointed out, that the part about labeling in 

America ain't broke. It works beautifully. It is a problem about how 

you enforce----

Mr. GILCHREST. Would the gentleman yield? I think the issue of 

labeling here is-just so everybody--

Mr. F ARR. Yes. I will yield. 

Mr. GILCHREST [continuing]. in the room-pardon? 

Mr. FARR. Yes. I will yield. 

Mr. GILCHREST. Thank you. Sorry. If you kill a dolphin, it can't 

be labeled dolphin-safe. I mean, we both agree with that, if you kill 

a dolphin. What we disagree with, which is I think we can work 

out I believe in the next coming weeks to find the best sciencewhat we disagree with is whether or not the stress the dolphins experience inside the nets ends up with less reproduction and maybe 

to the point of some dolphins dying as a result of it. That is the 

point of a real disagreement with dolphin-safe labeling. And I 

would like to sit down and work that particular difference out. I 

yield back. 

Mr. FARR. Claiming my time, if you create the other alternative 

to allow this bifurcated message to the American public that you 

are going to have two kinds of dolphin-! mean, tuna cans, one 

with a label and one without, you are destroying the very essence 

of what has been so effective in America, and that is to allow the 

consumer to control them, to have an impact on the marketplace, 

to have an impact on how the process-you know, it essentially 

goes to not only the health and safety issues, but I think to the issues that we all care about-the humane way in which we process 

living things for our consumption. And I just hope that in the process you don't throw the baby out with the bath water. I think the 

Miller bill better addresses that issue. 

Mr. MILLER. Will the gentleman yield? 

Mr. SAXTON. I am sorry but because of time constraints, we are 

going to have to move on to the next panel. I thank the gentleman 

for his comments and thank all of you very much for being here. 

We have 12 additional witnesses that we plan on hearing from 

sometime today or tonight, and so we are going to move along. And 

let me introduce the next panel. I would like to--

Senator BOXER. Thank you very much, Mr. Chairman, for your 

generosity of spirit here. 

Mr. SAXTON. Thank you. I would like to introduce at this time 

the Honor;:tble Timothy Wirth, Under Secretary for Global Affairs 

at the Department of State, and the Honorable Douglas K. Hall, 

Assistant Secretary for Oceans and Atmosphere at NOAA. If you 

gentlemen would come forward, and as soon as you are ready, Mr. 

Wirth, you may proceed. And let me just say that we are going to-
217 

if you can limit your opening statements to five minutes, there are 

those series of lights there on the table in front of you. The green light will go on. With something like 30 seconds to go, the yellow light will come on, and then final!y you will conclude your thoughts when the red light appears. Mr. Wirth. 

STATEMENT OF THE HONORABLE TIMOTHY WIRTH, UNDER 

SECRETARY FOR GLOBAL AFFAIRS, DEPARTMENT OF 

STATE; ACCOMPANIED BY AMBASSADOR DAVID COLSON, 

DEPUTY ASSISTANT SECRETARY OF STATE 

Mr. WIRTH. Thank you very much, Mr. Chairman. It is good to 

be back, and I appreciate the opportunity to be here on behalf of 

the Administration today. At the outset, let me start by thanking the leadership of Senators Boxer and Biden and Congressmen Miller and Studds whose efforts over so many years have resulted in 

sharply reduced dolphin mortality. I wish to recognize those who 

have sponsored the legislation to codify the Panama Declaration, 

including Congressman Gilchrest, Chairman Young, and Senators 

Stevens and Breaux. 

And I would like to thank the five environmental groups, the 

Center for Marine Conservation, the World Wildlife Fund, the National Wildlife Federation, Greenpeace, and EDF. They were instrumental in forging the Panama Agreement, and we applaud their imagination and vision. 

This hearing will demonstrate that this is an extremely difficult 

issue. Many of us have been involved with this for many years and 

recognize, more than most, that this issue raises concerns and emotions that are challenging to grapple with and elicit strongly held 

views. 

This hearing is held after 20 proud years of solid work dedicated 

to the protection of dolphins. We have effectively used both our 

laws and the leverage of our markets to reduce dolphin mortality in tuna fisheries. Our efforts and those of other nations have pro- duced a remarkable environmental success story as has been discussed earlier. This dramatic and encouraging progress results 

from two things, our strong stance and international cooperation. Without both, we wouldn't have achieved this success. 

But these efforts aren't complete. We can still realize even greater protection for dolphins in the years ahead. The question is how 

best to achieve this shared objective, and on this, there are legitimate differences of opinion, heartfelt, well thought out, legitimate differences. 

The two approaches may be summarized as follows: stay the 

course and make no significant changes in approach, absent a ~at 

deal more research and a more perfect certain gain; or, consohdate 

and lock in the gains, build upon them with a more flexible regime, and with our market as the continuing incentive. 

The Clinton Administration is convinced that the time has come 

for a modest change of approach, one, that assures no backward 

movement and, second, lays the groundwork for international co~ 

operation that we believe is essential to the future. This international cooperation is essential. These dolphins are not in U.S. ju- risdiction. This fishery occurs exclusively on the high seas and in 
218 

waters under the jurisdiction of other countries. We need international cooperation for dolphin protection. 

In that spirit, on balance, we believe the Panama Declaration 

ought to be codified for a variety of reasons which are included in 

my full statement, which, Mr. Chairman, I would like to have included, if I might, in the record. There are a series of reasons to 

enact the Panama Declaration. 

In addition to the reasons for doing so, there are seven legitimate 

issues that are raised by these deliberations. First, how should we 

use trade sanctions to advance an environmental goal? H.R. 2823 

continues to use trade sanctions for countries that don't cooperate. 

We would not give up our trade leverage. 

Second, what do we know about the issue of bycatch? The only 

data available raise serious questions about the impact on the marine environment of the alternative methods said to be dolphinsafe. As witnesses today will testify, it is our best judgment that 

loss of juveniles and other species outweighs slight dolphin mortality and the impact of encirclement. But more work needs to be 

done on this question. 

Third, on the issue of enforcement, no enforcement can be 100 

percent effective, but the IATTC system is strong and transparent. 

We have a clear view of what goes on in the fishery. We have the 

means to encourage better enforcement. We have the means toreimpose trade sanctions. Fourth is the issue of whether tuna can be 

tracked throughout the fishery. We are confident that this could be 

done. It is done under present law, and the Panama Declaration 

approach will add important new steps. 

Fifth, will other nations be legally bound to protect dolphins? The 

Panama Declaration requires that all nations join the IATI'C and 

bind themselves legally to this international program if they are to 

sell in the U.S. Sixth, and related to the bycatch question is the 

issue of whether the practice of encircling dolphins with nets in 

and of itself causes stress or other biological problems. 

This is an issue that we take seriously. While instinct and appearance suggest that problems could result, at present we have no 

scientific evidence that encirclement does cause harm. We do know 

that the dolphin populations which have been encircled for 30 

years are increasing. Nonetheless, the matter needs study, and the 

Panama Declaration requires that it be done. 

Finally, we have to make a judgment on the market issue. If we 

do not amend the law, build on our successes, and legislatively affirm the Panama Agreement, what will be the response of other nations? It is our judgment that nations who have agreed with our 

stringent standards but still are embargoed at selling into the U.S. 

may well throw up their hands in frustration and simply take their 

tuna catch to other growing global markets. 

Thus, the significant gains in the last years may be lost. On balance, we do not believe that this is a risk that we should take. All 

of these matters are those of legitimate debate, and the subcommittee is working on those, and we appreciate your good efforts. 

There are a couple of issues that are being raised that are not 

legitimate. In particular, some say that this is a bailout of Mexico 

or that we do this only due to pressures from the World Trade Organization. Such attacks, Mr. Chairman, sound good if you say 
219 

them fast enough, but they are simply off target. Raising these issues tends to confuse and avoid debate; the real issues are the legitimate issues that I referred to earlier. 

Finally, Mr. Chairman, there was a comment before us as to why 

we would change the label, and the answer to that is very simple, 

because we want to reward better fishing practices and also because one cannot sell nondolphin-safe tuna in the United States of 

America, as was suggested. 

In closing, we believe that the Panama Declaration is a good 

international program, the best of its kind. It may not be perfect. 

We want the chance to make it better. If we strive for perfection 

and refuse to support it, we will have lost that chance and will 

have taken a step backward in our efforts to protect dolphins. 

Thus, the Administration supports the Panama Declaration and 

H.R. 2823. Thank you, Mr. Chairman. 

[Statement of Mr. Wirth may be found at end of hearing.] 

Mr. SAXTON. Mr. Secretary, thank you. Mr. Hall, you may proceed. 

STATEMENT OF THE HONORABLE DOUGLAS K. HALL, ASSISTANT SECRETARY FOR OCEANS AND ATMOSPHERE AND DEP· 

UTY ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

Mr. DOUGLAS HALL. Thank you, Mr. Chairman. Efforts to control 

dolphin mortality in the Eastern Tropical Pacific tuna fishery represent one of the great conservation victories of the 20th century. 

The measures implemented through the enforcement of the Marine 

Mammal Protection Act and through the La Jolla Agreement in 

1992 have dramatically reduced dolphin deaths from perhaps as 

much as 130,000 or more a year in 1986 to less than 5,000 per year 

in the last three years. 

Our challenge now is to ensure that we preserve and build on 

these gains. The tremendous work and accomplishments of the past decade will be lost if we cannot achieve an international agreement 

that is sustainable in the long-term. 

The success of the Panama Declaration is remarkable, an agreement worked out by fishing nations, conservation groups, and other 

stakeholders that commits the signatories to mortality-per-stock 

rates of two-tenths of one percent to one-tenth of one percent of the 

minimum population estimate until the year 2001, after which the 

mortality rate could not exceed one-tenth of one percent. And this 

is substantially more conservative than the zero mortality rate goal 

being considered for application to other domestic fisheries that result in the take of marine mammals. 

Under Secretary Wirth has addressed the serious environmental 

and policy issues raised by this legislation, and I would like to 

elaborate just on one area. We have examined this from a very narrow perspective, really on two fronts; first, what is best for the 

health of the dolphin populations, and, second, what is the most 

ecologically sound fishing regime. 

I have had extensive discussions with scientists at the National 

Marine Fisheries Service, including some who have dedicated most 

of their careers to dolphin conservation and have been involved in 

the issue for more than two decades. I have found a strong consen2Q-276 - 96 - 8 
220 

sus that on both points the Panama Declaration represents the 

best policy for the United States Government. 

The current situation which has resulted in major gains in dolphin conservation is simply unsustainable. Failure to enact this 

agreement into U.S. law will lead to an unraveling of the InterAmerican Tropical Tuna Commission, which is recognized as one of 

the most successful regional fishery management organizations in 

the world. 

The United States has only 30 percent of the world's canned tuna 

market. That is a substantial percentage, but it is not enough for 

us to unilaterally dictate fishing practices around the world. We 

are committed to healthy, growing dolphin populations, not just for 

the next several years, but for 100 years, 200 years to the future. 

And that can only be accomplished by an international agreement. 

The two alternative fishing methods to setting on dolphins, log 

sets and school sets, carry substantial environmental risk for tuna 

stocks, as well as endangered sea turtles, large sportfishes, and 

sharks. For log sets, the discard rate for juvenile tuna is 100 times 

that of the dolphin sets; for school sets, 10 times. 

We have concluded that the most ecologically responsible method 

currently available for harvesting yellowfin tuna in the Eastern 

Tropical Pacific involves the current mix of effort mainly directed 

at capturing large yellowfin tuna. 

H.R. 2823 represents a significant step forward in dolphin conservation, and we look forward to working with you, Mr. Chairman, 

to ensure that dolphin populations in our oceans continue to be 

healthy for many generations to come. And I would also join Under 

Secretary Wirth in complimenting Congressman Studds and Congressman Miller and Senator Biden and Senator Boxer for their efforts in this regard. I think a lot of the progress we have made is 

due to their efforts. 

[Statement of Mr. Douglas Hall may be found at end of hearing.] 

Mr. SAXTON. Thank you, Mr. Douglas Hall. We are going to suspend for just a few minutes until Mr. Gilchrest gets back. I have 

to go vote; about three minutes left so I am going to run. Thank 

you. 

[Recess.] 

Mr. SAXTON. Sorry. We will do better on the next go-around. Mr. 

Douglas Hall, let me begin by asking you this. From discussions 

that we have had this year and in past years, it seems as though 

there are at least three issues that are of primary importance in 

terms of this decision, and they are these. And I would like to ask 

you to comment on them, and if you would like to add to this series 

of questions that have to do directly with dolphin mortality or the 

condition of dolphins, please feel free to do so. 

The first question involves the number of dolphins that would be 

injured or killed under the current regime as opposed to what has 

been proposed by Mr. Gilchrest's bill. The second question would 

involve other harm that may come to the species or individual 

members of the species resulting from stress or other related problems. And the third involves other sea mammals or other sea creatures that are affected in the process. 

It seems to me that those are the three questions that we need 

to be concerned about other than those questions that have inter-
221 

national and trade implications. Would you comment on those 

three issues and let us know what your position is? And please feel 

free then to add additional issues if you feel that there are some. 

Mr. DouGLAS HALL. Thank you, Mr. Chairman. I think those are 

three of the most critical issues that we face. Dr. Liz Edwards, who 

heads up the National Marine Fisheries Service's Dolphin-Safe Research Program in the Southwest Center, is appearing on a later 

panel so you may want to elaborate on some of these issues because she has conducted a lot of the research into these specific 

areas. 

But, briefly, at the present time, we do not have a legally binding 

agreement. We have worked through a voluntary, cooperative 

agreement that was worked out in La Jolla in 1992. So the efforts 

that have been achieved to date have been with the understanding 

that we were working toward an international agreement. 

Our belief is that status quo will not be maintained. The continued effectiveness of the IDCP depends on the codification of this 

legislation and enactment of a permanent agreement to achieve 

dolphin conservation goals. 

The goals that are set are one-tenth of one percent of the dolphin-the minimum estimated size of the dolphin populations. We 

think that is very conservative, more conservative than from most 

U.S. fisheries. So we think that the number of dolphin deaths will 

go down under this legislation, not go up. 

The second issue is the unobserved dolphin deaths that may 

occur because of the stress of encirclement of dolphins. Because 

these are unobserved mortalities by definition, we don't know very 

much about them. We have seen no information to indicate that 

this has had a significant impact on the dolphin populations one 

way or the other. 

More research would be required to answer that question, but if 

you look at the potential increase in kill that would be due to 

deaths following observed injuries, that we can see dolphins that 

are injured but not killed, that still would be very low-a five percent increase off of a base again that we are talking about as onetenth of one percent or two-tenths of one percent. So that is a very 

small fact. 

The other issue is really an ecosystem issue. There is a significant bycatch of sea turtles, sharks and large pelagic fish in some 

of the other types of fisheries. That is a serious concern. 

At the present time, we think it is manageable, but if you had 

a significant movement of effort to the other types of fishing, you 

could have a situation in which up to 25 percent of the biomass 

could be affected on the yellowfin tuna populations. It is a significant threat, and that if you are going to follow the precautionary 

principle, is not one that we think that we should adopt. 

Sharks are the other species that we are concerned about, and 

they are long lived, slow to reproduce. You can decimate their population very quickly, and there is a significant bycatch of sharks 

in the other alternative fishing methods. 

Mr. SAXTON. Sharks? 

Mr. DouGLAS HALL. Yes. Although the impacts on juvenile tuna 

from alternate fishing methods are of most concern, sharks are an 
222 

important top level predator in the ecosysttem and should be managed wisely, not just discarded as bycatch. 

Mr. SAXTON. OK. Thank you very much. Mr. Gilchrest. 

Mr. GILCHREST. Thank you, Mr. Chairman. Can you respond, Mr. 

Douglas Hall, to the confusion surrounding the labeling disagreements as to whether or not American consumers would be taken 

advantage of if this agreement were to become law? 

Mr. DOUGLAS HALL. Congressman Gilchrest, we think that the 

approach that is adopted in the Panama Declaration is best for dolphins. We think the tracking proposal that we have seen guarantees that you will not have tuna sold that has been caught in a set 

which resulted in dolphin mortality. So we think that there are 

safeguards built into this. We feel comfortable with it. 

We have had a lot of experience with the current inspection and 

tracking regime. This is more complicated, but it is something that 

we think can be accommodated with an expansion of the current 

program. So we feel that what is dolphin-safe is what is best for 

the dolphins. 

Mr. GILCHREST. Thank you. Secretary Wirth, in recent weeks 

there has been a number of I would almost characterize personal 

attacks against your integrity as a result of your involvement in 

this particular issue. I have another question, but could you respond to some of the attacks that people have made against you? 

Mr. WIRTH. Well, I think this is a highly emotional issue for 

many, and it is very understandable as I have tried to point out 

in my opening remarks, Congressman. And people feel very deeply 

about it, and when that sort of thing happens, people get committed and often say things that they probably regret in the light of 

day that they hadn't said or done. 

And, you know, I have been in politics for a long time, and I understand that these things happen. I think one just has to understand that maybe that is the price of admission. That price seems 

to get a little higher every year which is very unfortunate, but you 

understand that that is the price of admission and go ahead because you think you are doing the right thing. 

Mr. GILCHREST. Just one other to follow up on that one. The 

price of admission seems to be getting steeper and steeper. Would 

you, for the record, have any advice on the opposing teams on this 

issue as to how to deal with it in the coming weeks? 

Mr. WIRTH. Well, just first of all on the general issue, the price 

of admission, you know, I made a decision that the price of admission was higher than I wanted to pay anymore. That is a general 

commentary on elected politics. I have enormous respect for those 

who continue to charge into the midst of this and would encourage 

others to do so, but I got to a point of sort of a personal burnout. 

And, as a general comment, that is all right. I mean, other people do it. We each have to do what is appropriate for us. But you 

learn I think in the process to try not to personalize things and try 

not to get engaged in the kind of ad hominem attacks that have 

characterized a lot of American politics in the last few years. I 

think it is terribly unfortunate. 

I might say, if I might, as something of a gratuitous comment, 

but a very important one, as a general commentary about what we 

are doing here, Mr. Chairman, I think that the fact that we find 
223 

this very unusual and good coalition surrounding your legislation 

is a positive thing. 

What has concerned me over a number of years is the fact that 

a movement that began when all of us were much younger with, 

say, Earth Day and the Cuyahoga River and Rachel Carson and so 

on almost 30 years ago, was at that point very much of a bipartisan effort. And it survived and succeeded because it was a bipartisan effort. 

In the 1980's, that shifted in a very unfortunate way so that in 

many ways the Democrats acted as if it was their issue only, and 

the Republicans demurred and allowed that to happen. I think that . that was very damaging to the environmental movement overall. 

There is a basic rule of American politics, I think, which you and 

I have discussed, and that is that any movement, any issue is better if both parties are competing for that issue and for that issue's 

supporters. I think with your engagement as aggressively as you 

have and Sherwood Boehlert and Curt Weldon and Connie Morella 

and others-as you have engaged so constructively on the environmental issue on your side of the aisle, but that has been not only, 

I know, difficult for you politically many times, but it is so much 

the right thing to do in terms of the spirit of where American 

environmentalism has to be. It has to have that hard core of bipartisan support. It is not going to succeed otherwise. 

This is an enormously powerful movement in the United States 

of America. I think you are tapping that. I think you see that in 

these very discussions. And because it is so powerful, you also see 

the emotions that run very deep, and that gets back to your question again. 

I have sort of gone around that, but here it is very, very deep, 

and people feel very strongly, and that is a very good thing. We 

just have to keep it so that the level of debate is clear and I 

wouldn't say clean-that is not the word that I mean-but the level 

of debate really is on the issues and doesn't get personalized or 

sidetracked. I appreciate your question, Congressman. 

Mr. GILCHREST. Thank you, gentlemen. Thank you, Mr. Chairman. 

Mr. SAXTON. Mr. Miller. 

Mr. MILLER. Thank you, Mr. Chairman. Well, let me just respond 

here. Let us not pretend that those who are supporting the Panama Agreement or the legislation that embodies it somehow are 

those who are only right about the environmental movement, Mr. 

Secretary. That was an interesting comment. It just happens to be 

historically wrong. 

Mr. WIRTH. If I might commentMr. MILLER. In fact-let me finish. When, in fact, what we had 

from the outset, whether you want to date it at Earth Day or what 

have you, is we have had huge bipartisan agreements on the largest of the environmental issues in this country-Colorado wilderness, the Presidio, the California desert, the Alaska lands, Utah 

wilderness, today the dolphin bill, marine mammal protection bill. 

These have been huge bipartisan issues. 

What happened on January 1 was it all stopped last year, and 

now, in fact, what we see is this is one of the few areas where we 

continue to have bipartisan agreement. Mr. Gilchrest, Mr. Saxton, 
224 

and Mr. Boehlert and others have on a number of issues, and many of the freshmen, in fact, on a number of issues on mining law, on 

these other issues, have been part of it because it continues to be 

bipartisan. 

Let us not pretend that somebody took off with a bipartisan 

group here and said this is the group that is the legitimate group for protecting dolphins and the other group isn't. That is just not 

the case. 

And, in fact, what we have seen is one of the things that has per- severed through sort of the contract and everything else was we 

were able to reclaim the environment on a bipartisan basis. And 

certain factions are reeling from that, and I hope we are able to 

continue to do that. But the only legislation that has gotten through here on an environmental basis has been on a bipartisan basis, and we have stopped some pretty bad ideas on a bipartisan basis. 

Mr. Douglas Hall, let me ask you a question on this one. As I 

understand it, and correct me if I am wrong on this agreement, and 

I think is under the legislation of Mr. Gilchrest and others, you can 

chase and net the dolphins. The test is the mortality, is that correct, and observe mortality? 

Mr. DOUGLAS HALL. Yes. 

Mr. MILLER. Well, as I understand it, and, again, correct me if 

I am wrong, under the Marine Mammal Protection Act, if you want 

to harass a dolphin, don't you have to get a permit? Mr. DOUGLAS HALL. Yes, Congressman, and, in fact, this particu- lar fishery has operated under a permit now for more than 20 

years, and so that is correct, that you have to have a permit. 

Mr. MILLER. They have operated under a mortality permit? 

Mr. DouGLAS HALL. I would have to defer--

Mr. MILLER. It is measured by mortality? Mr. DOUGLAS HALL. This fishery has operated--

Mr. MILLER. Right. No. I think we are kind of both accurate here. 

They have operated in this fashion, but it has been under a mortality permit, not a harassment permit. So without a lot of evidence, 

again, as I understand, on the impacts of encirclement and harassment-ehasing and harassment and apparently the ability to chase 

over fairly long distances and to chase the same dolphin multiple times and conceivably, you know, there is no R & R for dolphins. You know, we can get right back to you. Then the next time we 

think you got tuna with you. That can all take place under this 

agreement. Is that correct? 

Mr. DOUGLAS HALL. Yes. 

Mr. MILLER. Why wouldn't that be a taking under the current 

definitions of the Marine Mammal Protection Act? 

Mr. DOUGLAS HALL. Congressman, again, this fishery has oper- ated prior--

Mr. MILLER. I understand that. That is why we don't let them 

into the United States. 

Mr. DOUGLAS HALL. Yes. I was clarifying your-the permit does 

authorize harassment as well as-the mortality permit is a separate permit. And so there isMr. MILLER. But the test in this case would be mortality? You 

can harass these dolphins right up until an observed death? 
225 

Mr. DOUGLAS HALL. No. The test and the permit authorizes the 

activity that occurs in the fishery. It could be harassment, it could 

b~ 

Mr. MILLER. I understand that, but you authorize the chasing, 

the encirclement, and the netting of the dolphins, and that can 

happen time and again to the same dolphin, the same species, the 

same school, pod, however you want to describe it. Right? 

Mr. DOUGLAS HALL. Yes, it can. 

Mr. MILLER. Because the restriction on the event is, in fact, the 

mortality level-an observed mortality? 

Mr. DOUGLAS HALL. The mortality level for all of our domestic 

fisheries that result in an incidental take result in some level of 

mortality, and we protect the populations of dolphins through those 

levels. 

Mr. MILLER. We are taking two fairly depleted stocks here, and 

they are going to be eligible for unlimited harassment under this 

regime? 

Mr. DouGLAS HALL. Congressman, this fishery has taken place 

for 35 years, and the populations-the life span is about 30 years. 

We have done extensive research on these populations of dolphins, 

and while the mortality that occurred in the 1970's and early 

1980's was devastating, many of these populations-two of the populations are down to one-fifth of their historic level so I don't want 

to minimize the damage that has been done to these stocks. But 

there has not been scientific information or evidence that there has 

been a significant impact by the stress or stress-related deaths that 

occur after the encirclement. 

So I think the evidence that we have seen is that the deaththis is caused by mortalities, not because of some delayed or a 

cryptic mortality. But we have not conducted the research to determine that was a certainty, and I think it would probably take a 

year and a half to two years of intensive research to know the answer to that question. Mr. MILLER. Well, then why don't we let in dolphin-safe tuna in 

the meantime, and then we can determine the rest? They can fish 

dolphin-safe under my bill, have access to the market, and we can 

do the studies, and then we can make these determinations. 

Mr. DOUGLAS HALL. Well, Congressman, that was not negotiated--

Mr. MILLER. Well, I know that. 

Mr. DouGLAS HALL. [continuing]--at the Panama Agreement, 

and that is not what we have before us in terms of an international 

agreement that we think can be sustained on an international 

basis. 

Mr. MILLER. Thank you. 

Mr. SAXTON. Mr. Farr. 

Mr. F ARR. I am trying to understand what your biggest problem 

with the Miller bill is. I know the Gilchrest bill is one the Administration supports. And you point out in your testimony that the Miller bill implements some but not all of the Panama Declaration, 

but I don't find what your problems are with the Miller bill. 

Mr. DOUGLAS HALL. Under Secretary Wirth? 

Mr. WIRTH. Congressman, if I might, there are I think in this 

two different judgments that are made. One relates to, in part, the 
226 

previous discussion between Congressman Miller and Assistant 

Secretary Hall on harassment versus bycatch. One of the judgments is the problem of bycatch of other species worse than minimum dolphin mortality and potential problems of harassment of 

dolphin. We would make the judgment that the increasing evidence 

on problems of bycatch is greater, and, therefore, we ought to try 

to avoid wherever possible the kind of fishing that would cause a 

bycatch problem. 

Mr. FARR. That is an alternative way of fishing, and if you use 

that alternative way, then you would have a higher incident of.--

Mr. WIRTH. You would have higher incidents ofbycatch. 

Mr. F ARR. [continuing]--dolphin mortality? 

Mr. WIRTH. Well, you have higher incidents of-the alternative 

way you would have higher incidents of bycatch of other species. If you do not fish with the kind of technique that allow people to 

set around dolphin. 

Mr. F ARR. Perhaps you are saying the same thing. The existing law you claim gives you a higher incident of bycatch? 

Mr. WIRTH. That is right. 

Mr. FARR. And there are issues of bycatch for sea turtles and 

others that you would like--

Mr. WIRTH. That is correct. 

Mr. F ARR. [continuing]-to try to lower the incidents of mortality--

Mr. WIRTH. That is correct. 

Mr. FARR. [continuing]-among the bycatch? 

Mr. WIRTH. And the other issue of judgment, Congressman--

Mr. FARR. So you err on the side of having a higher mortality of dolphin? 

Mr. WIRTH. We don't think, in fact, you end up with a higher mortality of dolphin. Under the existing regime, it is a voluntary regime with a ceiling-you can talk about percentages that ends up with about nine-the allowance of about 9,000 in mortality of dolphin. Under the Gilchrest bill, which is a binding regime, you would end up with 5,000 overall ceiling, and of the five species, a 

ceiling in each one of those different species. 

Mr. FARR. Why would--

Mr. WIRTH. Both bills attempt to get down to zero after a certain 

period of time and research. 

Mr. FARR. Why do you need to change the labeling process in 

order to have an alternative way of.--

Mr. WIRTH. That gets to the second judgment issue-what will 

other countries' fishing industries do? They are not now allowed 

into U.S. markets even though their fishing practices have increased in efficiency and conservation practices dramatically. 

Mr. FARR. Do you think you need that market to drive them to 

the alternative practices? 

Mr. WIRTH. Well, we believe this is, again, a judgment issue, and 

it is our judgment that if we do not change the labeling in a minor 

fashion that what is likely to happen is that a number of countries' 

fishing industries are going to give up on the U.S. market and are 

going to turn to very rapidly growing markets particularly in the 

Pacific. 
227 

Those rapidly growing markets largely do not have the enforcement or the requirements of the U.S. market. And as they turn to 

those Asian markets, there will be no constraints on their fishermen, and you will see very sharply increased dolp'hin mortality. Now, again, that is a judgment issue. 

I think those on the other side would say the power of the U.S. 

market is so great that we can hold onto that. We have talked to 

these fleets and to these governments and so on, and it is our judgment that if we do not put into law the agreements in Panama, we 

will lose all of the protections that have been gained so far. 

Mr. FARR. I appreciate that sensitivity, and let me share with 

you a judgment call that I have to make as a member of another 

committee-in Agriculture-regarding Mexican imports to America. 

I just was in Mexico regarding the tomato issue from Florida. 

What struck me with the Mexican growers was that they said, "Look. We don't have any standards in Mexico, and if we do, we 

are going to have a hard time enforcing them. We don't have the 

infrastructure for it. But your market is so valuable to us that we 

want you to set the standards, and we don't care how high they are 

because we will produce to those standards." 

And, in fact, they said, ''We are ahead of your growers in this 

country," and I thought, well, that is just a statement. I went back 

to my growers in Salinas Valley, and I said, "I have been in Mexico," and before I could say anything else, they said, ''You know, those guys are years ahead of us." 

I mean, this is the kind of dilemma we are in is that one commodity we are importing in the country, the producers of that commodity want those standards to be high because the market is so 

strong for it. Quality is what Americans buy. They also indicate 

that quality is what other people are buying. . And I guess in this judgment call, I think that the world is waking up to the fact that these companies that produce tuna are try- ing to produce quality products, and those quality products do demand a higher price, but people are willing to pay for it because 

they are paying for quality. If part of that quality is the process in which the crop is harvested or grown, so to speak, to give the ag analogy, then why can't 

you still maintain these tough labeling standards in America and 

drive that market with best management practices for catch? And 

why do you have to do-what you are arguing is that you can't do 

one without the other, and I question that. 

Mr. WIRTH. I don't think, Congressman, we are saying you can't 

do one without the other. We have, as both Assistant Secretary Hall and I pointed out, achieved an enormous amount with all of 

the restrictions that have been built so far. Tuna fishing practices have changed and reformed very, very sharply. 

We now understand that coming into this are a set of other marine conservation issues that we also want to take into account. 

That is another part of what has been learned over the last decade. 

We want to make sure that we are achieving the highest possible objectives; in this case, you know, in one sense, the perfect is the 

enemy of the very good. 

What we believe is possible to do is to have an inspection regime, which is in Panama; have a declining mortality target, which is in 
228 

the Panama Agreement, declining from where we are today; anallowance of U.S. fishermen to get into the Eastern Tropical Pacific, 

which is another pieee of what we believe will happen; and attention to the bycatch issue. 

There are a number of goals that get achieved in the Panama 

Agreement. We believe that the Panama Agreement will keep all 

of the eight fishing fleets whose fish would be then allowed in the 

American markets-keep them engaged in the very rigorous protection standards that currently exist. We think that we can achieve 

all of those pieces. Let me put it another way. This is more than 

just a tuna-dolphin issue. It goes to a series of other questions as 

well. 

Mr. FARR. Why do you need to change the labeling part? 

Mr. WIRTH. Do you want to try? Do you want to give that a shot? 

Mr. DouGLAS HALL. Congressman, I think that the question is 

whether we would get participation in an international agreement, 

and that, again, is a judgment call, as to whether the other countries that are engaged in this fishery would participate if they don't 

have access to our market. And that is not necessarily just a legal 

question, but whether they de facto are barred from the market. 

And there has been a lot of talk about whether the Federal Government should just get out and let consumers decide. Well, the 

Federal Government has already gotten involved because the Federal Government has intervened and defined what is dolphin-safe 

and what is not. 

And by doing that, if you set up two standards, the question is 

whether the market would accept a product that was not marked 

as dolphin-safe. And I think that is really, again, a judgment call, 

and our belief is that we would not get the international agreement that we need to effectively enforce these conservation standards. 

And one point in terms of the lessening of standards, we think 

that these standards are not being lessened at all from a conservation standpoint. This would be among the highest standards in the 

world in terms of conservation of marine mammals; significantly higher, as I have said, than we have for our own domestic fisheries. 

And for us to go out and impose these types of standards that are 

far higher than our own domestic fisheries we don't think you can 

sustain in the long-term. 

Mr. SAXTON. The gentleman's time has expired. Gentlemen, I am 

tempted to ask you some more questions, but in light of the fact 

that we have gotMr. MILLER. Mr. Chairman? 

Mr. SAXTON. [continuing]--still a continuing long list of witnesses. Mr. Miller? 

Mr. MILLER. I would like to exercise my rights to ask Secretary 

Wirth a question. If I might, it would be a quick question. 

Mr. SAXTON. And a quick answer I hope. 

Mr. MILLER. And that is, Secretary, on the question of the 

bycatch. I guess what I find troubling is that the evidence doesn't 

really seem to be clear exactly what we would accomplish with respect to bycatch. One, if I am correct, the agreement doesn't speak 

to the issue of bycatch. Is that correct? 

Mr. WIRTH. Let me ask Mr. Douglas Hall who had written I 

think an extensive reply to the committee on the issue of bycatch. 
229 

Mr. DOUGLAS HALL. Yes. Congressman, I think the concern is 

that there will be a shifting of effort if you eliminate all of the sets 

on dolphins. 

Mr. MILLER. Oh, I understand that but--

Mr. DOUGLAS HALL. And that if you have a shift-and I don't 

think that we have said that there is evidence at the current time 

of substantial impacts, but if you shift, it could have a very major 

impact particularly on tuna and turtles and sharks. 

Mr. MILLER. I understand that. But the Panama Agreement does 

not speak to bycatch-what we are going to do with bycatch in the 

future. Is that correct? 

Mr. DouGLAS HALL. It does not but it has implications for what 

kind of bycatch would occur. 

Mr. MILLER. OK. Let me try to stay within my time here. That 

that concern then is, obviously, that the decision that has been 

made here is the management tool in dealing with bycatch is to 

manage the dolphins, if you will? 

Mr. DOUGLAS HALL. We are concerned about all of the species, 

not just the dolphin. 

Mr. MILLER. Oh, I understand that, but you have decided the 

way to deal with-my interpretation would be that the decision 

here-the way of dealing with bycatch is to now deal with the dolphins as opposed to-what considerations have you given to other 

techniques that we have used in other-you know, whether it is 

seasons or management of the smaller fish or what have you? 

Mr. DOUGLAS HALL. Congressman, we think we are dealing not 

only with the bycatch issue, but we are also getting a binding 

agreement. What we currently have is a voluntary agreement. 

Mr. MILLER. I understand but--

Mr. DoUGLAS HALL. So we are dealing with the bycatch issue 

and getting a binding agreement. 

Mr. MILLER. [continuing]--the determination is that that is underwritten by the ability to chase and harass and encircle dolphins. Mr. DOUGLAS HALL. But this whole issue is about the fishing of 

tuna and various techniques for the fishing of tuna and what impact does that have on the overall ecosystem, not just on dolphinon the overall ecosystem. 

Mr. MILLER. But you have selected one management tool, and we 

have very little evidence or study on any workup on the others. I 

mean, we have only been sort of looking at this bycatch in these 

fisheries for a couple of years. And so, you know, you have picked 

an option but without sufficient evidence to detennine whether 

there were other options in the management of the tuna as you 

would manage other fisheries as to whether or not that will provide 

you the same yield without having to chase and encircle the dolphin. 

Mr. DOUGLAS HALL. Congressman, our scientific research to date 

gives us a pretty good understanding of what the impact of the current regime is. If there is a change and we end up having more of 

this effort diverted away from the setting on dolphins to the other 

areas, then we will have a significant environmental risk in that 

area. And I think that is what we want to avoid. 

Mr. MILLER. So in light of the threat, what we have done is we 

have picked one regime that takes care of the concerns of the peo-
230 

ple who are threatening you, and we don't know whether or not 

that will work. And, in the meantime, you have opened up the market. You have no procedure if this doesn't work out to go back to 

reimpose that, and here we are. 

Mr. DOUGLAS HALL. Well, the Panama Declaration did address 

bycatch, and it required the signatories to minimize bycatch. The 

IA'ITC has been one of the most effective organizations in the 

world for managing a fishery. And if by working with them--

Mr. MILLER. But that has all been based upon managing the dolphin? 

Mr. DOUGLAS HALL. But, no, managing the tuna too, and these 

populations of tuna have been very healthy. 

Mr. MILLER. By managing the dolphin? 

Mr. DOUGLAS HALL. In terms of the standards that are set for 

the amount of take on tuna, this has also been managed so it is 

an overall fishery that is being managed, not just by managing the 

dolphins. And if you hit a certain level of--

Mr. MILLER. I appreciate the fisheries being managed. You know, 

it is like the lead horse, you know, or the lead dog in a sled. You 

manage the lead dog, and you kind of manage the pack here. The 

point is you are managing the tuna by managing the dolphin. I am 

asking whether or not you have looked at other means of managing 

the tuna that aren't so stressful and may end up in the taking of 

dolphins, and the answer is we are going to kind of look at that, 

but, in the meantime, we are going to take these protections off. 

Mr. DOUGLAS HALL. Well, the particular stocks that we are talking about in terms of tuna, there is not an alternative. The mature 

yellowfin tuna in the Eastern Tropical Pacific-this is where those 

tuna swim at that point in their life cycle-lives with the dolphins. 

We look at the current mix, and we have determined that the current level of mortality is not having a significant impact on the 

population of dolphins, and that is a tremendous achievement. 

And you deserve a lot of credit for that, and other members of 

Congress deserve a lot of credit. That wouldn't have happened 

without the efforts that we have had to date, and the question is 

whether we want to now look longer term and have something that 

can be sustained for all of the different parts of the ecosystem. 

Mr. MILLER. Well, I guess the response would be, you know, in 

the process of determining that, our legislation would say you get 

some limited access based upon compliance with current law. We 

won't provide 100 percent embargo, and we can search out these 

other things in the meantime and then make some determinations. 

You have made the determinations, and you are going to throw 

open the market, and then we will find out afterwards. 

Mr. DOUGLAS HALL. We have made the judgment that we are in 

a very precarious situation and that the gains that we have made 

over the last decade could be destroyed if we don't do something 

and we do lock this into an international agreement. And that is, 

again, a judgment call that we have made that is based on--

Mr. MILLER. That international agreement is the full-blown opening of the market as opposed to letting off the pressure while we 

make those determinations. 

Mr. DOUGLAS HALL. The embargoes could be reinstated if these 

caps were violated. It would not be a full-blown opening of the mar-
231 

ket because we have safeguards in this agreement that would guarantee that they would be followed. Right now, we just have a voluntary agreement. We have no protection except the good will of 

the countries involved. They have worked in good faith and have 

made enormous progress; and as a result of their support we have 

got a 97 percent decrease in mortality of dolphins. 

Mr. MILLER. Well, then, obviously, it wouldn't be so irresponsible 

to go off in the other direction. 

Mr. SAXTON. The gentleman's time has expired. Before you leave, 

I didn't know this issue of bycatch was this complicated. For my 

own brain, let me try to simplify it at least for myself. The historic 

way of fishing for tuna has been to fish on dolphins, and that is 

what this issue has been about since--we have been dealing with 

it since 1988. Correct? 

Mr. DOUGLAS HALL. Yes. 

Mr. SAXTON. Other ways of fishing for tuna include identifying 

schools by use of airplanes or sonar or some other technology. Is 

that correct? That is one way? 

Mr. DOUGLAS HALL. Yes. 

Mr. SAXTON. Another way is to identify locations where tuna 

school by using floating debris of some kind. They school up under 

the floating debris. Right? 

Mr. DoUGLAS HALL. A log or something like that. 

Mr. SAXTON. A log. OK Now, in the case of fishing on tuna on 

dolphins, you make the case that you get a cleaner catch or another 

way of saying it is less bycatch-less turtles or maybe none, less 

shark or maybe none, and less juvenile tuna. Is that correct? 

Mr. DOUGLAS HALL. Yes. 

Mr. SAXTON. And is there evidence to support that? 

Mr. DOUGLAS HALL. Yes. And Dr. Liz Edwards, who has done extensive research on that, is going to appear on a later panel. She 

did research, and you might want to ask her. 

Mr. SAXTON. Now, when we identify schools of tuna by use of 

technology and we fish on them, what happens relative to this 

bycatch issue? 

Mr. DOUGLAS HALL. Setting on schools of dolphin ends up with 

a bycatch of juvenile tuna that is approximately 10 times greater 

than you would have by setting on dolphins. 

Mr. SAXTON. I think you said that wrong. You said setting on 

schools of dolphin. 

Mr. DoUGLAS HALL. I am sorry. Setting on schools of tuna. 

Mr. SAXTON. You end up with a bycatch that is 10 times greater 

in terms of juvenile fish? 

Mr. DOUGLAS HALL. Yes, that have to be discarded and not be 

used in any way. 

Mr. SAXTON. And what is the bycatch situation when you set on 

logs? 

Mr. DOUGLAS HALL. It would be approximately 100 times greater. 

Mr. SAXTON. In terms of juvenile tuna? 

Mr. DOUGLAS HALL. Yes. 

Mr. SAXTON. And what about shark? 

Mr. DOUGLAS HALL. It is substantially more in both those fisheries. I would defer to Dr. Edwards to get into the precise number. 
232 

Mr. SAXTON. And sea turtles? 

Mr. DOUGLAS HALL. Sea turtles bycatch also increases substantially when setting on school tuna close to shore. 

Mr. SAXTON. And there is evidence to support those contentions, 

and we will hear that evidence you say from Dr. Elizabeth Edwards? 

Mr. DOUGLAS HALL. Yes. Mr. SAXTON. OK Thank you very much. 

Mr. MILLER. So the label should read good for bycatch, bad for 

tuna? I mean, bad for dolphins? 

Mr. DOUGLAS HALL. I think it is good for bycatch and good for 

dolphins. 

Mr. SAXTON. Thank you very much. Thank you, and we are going 

to introduce the next panel. Thank you very much. Dr. James Joseph, Director of Investigations, Inter-American Tropical Tuna 

Commission, and Dr. Elizabeth Edwards, Leader, Dolp}lin Safe Research Program, Southwest Fisheries Science Center, National Marine Fisheries Service. 

Before you begin, Dr. Joseph and Dr. Edwards, let me just say that, as you know, we are in the middle of a vote. We have done 

it right this time. Mr. Gilchrest went to vote. Now I can, and so 

Mr. Gilchrest will assume the Chair. Thank you, and you may begin. Mr. GILCHREST. [presiding] Dr. James Joseph and Dr. Elizabeth 

Edwards. Thank you for coming. I guess we will start with Dr. 

Elizabeth Edwards. 

STATEMENT OF DR. ELIZABETH EDWARDS, LEADER, DOLPHIN 

SAFE RESEARCH PROGRAM, SOUTHWEST FISHERIES 

SCIENCE CENTER, NATIONAL MARINE FISHERIES SERVICE 

Dr. EDWARDS. All right. I would like to submit my written testimony for the record, and I am going to present some oral statements summarizing that written statement because it will be 

shorter. And thank you, Mr. Chairman, for having me here today. I am going to restrict my remarks this morning to my scientific understanding of three issues related to the tuna-dolphin problem in 

the Eastern Tropical Pacific. 

I am going to talk a little bit about the apparent abundance of 

the dolphin stocks involved. They are current versus historical 

abundance, the ten year-apparent stability for all of the stocks affected by the fishery, and the current population levels versus the 

current kill due to the fishery. 

I am going to talk also about bycatch, both dolphin bycatch and 

nondolphin bycatch, current and potential bycatch under future effort patterns, and then I am also going to talk a little bit about the 

stress issue which is the cryptic kill issue-arguments for and 

against and the fact that all the available data at the moment is 

inconclusive on this point. Now, in terms of abundance, there are about 10 stocks that are 

affected by the fishery in the Eastern Tropical Pacific. Estimates 

of current abundance compared to historical abundance indicate 

that most of those stocks have been affected little or not at all. Two 

stocks, however, have been significantly affected apparently by the 

fishery and appear to be depleted to about one-fifth of their original 
233 

abundance. That is the eastern spinner dolphin and the spotted 

dolphin; in particular, the northeastern spotted dolphin. 

I am going to use some numerical examples in a couple of minutes, and I am going to be referring to the spotted dolphin stock 

of dolphins because that is the one that is the primary problem in 

this fishery. About 80 percent of fishing effort is directed toward 

that particular stock so that is the major worry at the moment. 

Now, as I mentioned, the current level for, in particular, the 

spotted stock is low relative to historical levels, but the abundance 

that began decreasing with the beginning of the fishery in about 

the early '60's appears, from all the data that we have collected 

over the last decade or so, to have ceased decreasing about 10 years 

ago. Since the early to mid-'80's, we have seen no consistent longterm trends either up or down in the abundance of any of the 

stocks affected by the fishery for which we do abundance estimates. 

The variability in the data is such that we would not probably 

be able to detect small changes-a few percent up or down-in 

those populations even over that time period. But we certainly 

have seen no dramatic, consistent changes in the apparent population levels of any of those stocks. So they are low but apparently 

stable at this time and have been for the last few years. 

Now, in terms of kill, an important point to consider numerically-now I am just presenting numerical data here-I am not 

making value judgments-the current stock of spotted dolphins is 

low relative to its historical level, but that low level is still estimated to be about 700,000 animals. The current kill by the fishery 

is approximately 1,000 animals per year. 

And even the most conservative estimate of population replacement rate-in other words, how many dolphins could this stock 

produce within a: given year to make up any losses-is 7,000 per 

year, one percent of the standing stock. A more realistic estimate 

is maybe two to four percent; in other words, a replacement of 14 

to 28,000 dolphins per year to replace the approximately 1,000 lost 

in the fishery. 

So in terms of population abundance, at least for spotted dolphins, the current population is much lower than it used to be, but 

it is not endangered, it doesn't appear to be decreasing, and its replacement capacity is at least two order of magnitude larger than 

the current fishery kill. 

Now, this comparison between the apparent abundance level of 

dolphins and its relationship to the current loss to the fishery 

brings me into the bycatch issue because there are two. kinds of 

bycatch in the fishery. There is dolphin bycatch, and there is 

nondolphin bycatch. 

One point I would like to make right up front is that the bycatch 

problem, if you will, is not a numerical or species-survival problem 

at the moment under current effort patterns for any of the animals 

in this ecosystem. 

The current effort patterns, in which about 50 percent of the sets 

are on dolphins, about 25 percent are on school sets, and about 25 

percent are on log sets, do not appear to be having any significant 

effect on the populations of either dolphins or yellowfin tuna. 

Those are the only two groups of animals in the ETP for which 

we have population abundance estimates that we can compare to 
234 

the fishery kill. In both cases, the current situation is that losses 

are much, much less than either population's ability to replace itself. 

Now, the problem with bycatch is not a current issue. The prob- lem is what might happen to the bycatch situation in the circumstance that a significant number of dolphin sets were replaced by log sets. That is because dolphin bycatch occurs only during dolphin sets, not during log sets, not during school sets, and dolphin bycatch, if you will, is low now because there are lots of sets but 

very little bycatch per set. 

Mr. GILCHREST. Can I ask you to repeat that again? I heard you, but I am not sure if I understood. You were comparing sets to log 

sets. 

Dr. EDWARDS. OK. There are three types of fishing modes in the 

Eastern Tropical Pacific; dolphin sets, where the boats set nets 

around dolphins; schoolfish sets, where the boats set nets around 

schools purely composed of fish; and log sets in which they set a 

purse seine around a log and capture all the associated biota. 

Dolphin bycatch, if you will, occurs only during dolphin sets. 

There is no dolphin bycatch during school sets; no dolphin bycatch during log sets except for an occasional incidental take. If you look 

through the data, I am sure you will find an instance or two when 

a dolphin was caught during log or school sets, but those would be 

totally undirected, accidental, if you will. So that is dolphin bycatch. 

Tuna bycatch occurs during all three types of sets. There is tuna 

bycatch during dolphin sets, there is tuna bycatch during school 

sets, and there is tuna bycatch during log sets. Tuna bycatch in 

this situation are small tuna, too small for the fishermen to feel 

that they are going to be able to sell at market. 

The problem with this bycatch is that the bycatch of small tuna 

that is composed of yellowfin is small, prereproductive, this year's recruits into the fishery. So when you throw them away, you throw 

away future biomass. The other problem is you may be throwing 

away some relationship between your current stock and your future stock. 

There is no stock-recruitment relationship demonstrated for yel- lowfin tuna right now, but basically when you throw away a tuna 

in the Eastern Tropical Pacific, it is a little tuna. If it is a yellow- fin, it is a little tuna that isn't going to grow up to be a big tuna. 

Now, the tuna bycatch on dolphin sets is about a tenth of a ton 

per set. The tuna ·bycatch on school sets is about a ton per set. The 

tuna bycatch on a log set is about ten tons per set. So we go from 

basically one dolphin set to one school set increases your tuna 

bycatch by a factor of 10. One dolphin set to one log set increases 

your tuna bycatch by a factor of 100. That is why it is such a concern. Just any significant reallocation of dolphin sets to log sets has 

this 100-to-1 change in tuna bycatch. So we are concerned about that because in a practical sense, if 

fishing on dolphins is discouraged or eliminated and there is still 

strong market pressure to harvest yellowfin from the Eastern Trop- ical Pacific, the only other two ways to do it at the moment are setting on schoolfish and setting on logs. 
235 

Every time you set on a log instead of a dolphin set-instead of 

a school of dolphins-you increase the tuna bycatch by a factor of 

100. So that is the potential bycatch problem. It is more a future 

problem if there is a change in the current effort patterns. So my bycatch point is that it is a potential problem in the future. Maybe Dr. Joseph will speak to that. 

In terms of the dolphin populations and the yellowfin tuna popu- lations, the current effort patterns do not appear to be seriously damaging the ability of either of those groups to reproduce themselves and to survive in the system. There are a huge number of 

other species that are caught as bycatch on log sets. I can't make 

any comments about now that catch relates to the abundance of 

those animals because we don't have any population abundance estimates for those other types of biota. 

Now, the third issue that I wanted to address this morning from 

a scientific perspective is the potential for stress effects of fishing 

on dolphin populations. Now, the problem with this question is that 

it is as easy to argue one side as the other. Yes, it is very easy to 

imagine it being chased by a tuna boat and, you know, have a net 

set around you and then released again is a very stressful experience. That is easy to imagine. Unfortunately, it is also easy to imagine that, you know, all the 

animals that live in this fishery at the moment were born into this 

kind of fishing practice. This practice has been going for about 30 

years. The maximum life span of a dolphin is about 30 years. So, 

you know, you can make the argument on the other side, well, they 

grew up with it and so at least some of them, obviously, are doing all right with it. 

You could make the argument that nature is normally stressful, 

and the majority of animals in a population tend to adjust to it. 

You could make analogies to other species that have to put up with 

stressful chases by other things. Oh, I don't know-wildebeest on 

the Serengeti or something. These are all just simplistic arguments on the against-stress side 

just like the totally verbal arguments for stress. The problem is 

that we have very few data on this available at the moment, and 

those data are inconclusive. 

None of the few studies that have been done to date show any unequivocal strong effect of stress on dolphins, and there have been 

a few, little studies. They don't show a strong effect. They also 

don't allow us to completely throw out the concept that stress may be affecting the dolphin populations out there somewhere. 

So we don't have a strong answer for that at the moment. We 

need to work on that more, but it is obvious that at least some of 

the population must have been able to sustain it because they are 

out there now. This is the time, obviously, to begin studying that 

question because the focus in the past has been reducing the enormous observed mortality down to levels that were not dangerous to 

the population. That has been very, very strongly achieved in the 

last several years. The next question then is, well, how many of them are dying that 

we don't see? We can't answer that definitively with the data that 

are available to us. I would like to say that the data that we have 
236 

show very strong stress effects, but I am a scientist, and I can't say 

that because it is not true. 

One statement that was made before, we have done studies on 

what the increase in mortality would be if all the animals that 

were observed to be injured in some way-seriously injured in 

some way were added into the estimate of mortality, and that 

study was done, oh, five or six years ago, and basically that would 

increase the mortality estimate by five or six percent. So the data base at least indicates a very low percentage of animals that were seriously injured, and if you assume that all of 

those did die-if you assume that those seriously injured animals 

died cryptically later, then the increase would be six percer.t. 

Mr. GILCHREST. Ms. Edwards, I think we could-! know I could 

probably sit here and I probably should in the near future discuss 

this issue at greater length with someone with your expertise, and 

I appreciate your testimony. But there are other peopleOr. EDWARDS. I am done. That was it. That was the end of my 

opinion. 

[Statement of Dr. Edwards may be found at end of hearing.] 

Mr. GILCHREST. And Jim will be back and reprimand me for not 

being done with this panel. But on a serious note, I appreciate the 

information that you are providing us, and I would be interested 

in continuing this line of communication with you as we progress 

over the next few weeks to deal with this issue. Dr. Joseph. 

STATEMENT OF DR. JAMES JOSEPH, DIRECTOR OF INVESTIGATIONS, INTER-AMERICAN TROPICAL TUNA COMMISSION 

Mr. JoSEPH. Thank you, Mr. Chairman. What I am going to try 

to do is race because I have only got five minutes. I would like to 

start off by just mentioning the International Dolphin Conservation 

Program that was mentioned earlier and tell you a bit about it because I think it is germane to what we are doing. 

This program is really unique and innovative. It sets a standard 

for conservation programs for other species around the world. What 

it does is sets limits on mortality. It requires an observer on every 

boat that sails, and sets up, as a very unique part, a review panel 

that monitors compliance with the program. You are going to hear 

testimony probably today that that panel isn't working, but, in fact, 

Mr. Chairman, it is working and it is working very well by any 

standard that you judge it against. 

The review panel is made up of members from governments, but 

it is innovative in that it has nongovernment members on it as 

well, including members from the environmental community. This 

group meets three times a year, they actually inspect the records 

that are kept by observers, and they identify infractions against 

the program. They report those infractions to the government, and 

they ask the governments to report back on action they took respecting those infractions. 

Since the inception of the program, when the first report was 

sent to governments in June 1993, to October 1994, the review 

panel has reported 34 major infractions, 1,450 minor infractions. It 

reported infractions for observer interference, and governments 

have taken action on these. 
237 

Of 17 cases of observer interference, governments have suspended the licenses of two fishermen. They are in the process of ap- plying sanctions that will either be 2,000 times the minimum daily 

wage base in that country or prison terms. It has found three of 

the infractions were nonsanctionable, and the rest are in due process. 

Of the 1,400 minor infractions, Mr. Chairman, half of those were 

committed by vessels that are fishing dolphin-safe. They did not 

have the kind of gear that is required if you are going to operate in this EPO fishery. For the other half of them, governments have 

reported that 50 percent of them are in due process. Now, due process, you know, can take a long time. GOvernments have already taken action, but they are still working on them. 

When the United States had a program that enforced laws with 

respect to marine mammals in this fishery, due process usually took from two to four years. So these governments are commensurate at their rate of progress with the United States. 

The other thing that this program does, and Dr. Edwards has 

mentioned, is sets limits on dolphin mortality, and as a result, dolphin mortality has been brought down 98 percent from its higher level in 1986 when the program started. Mortality in 1995 was 

3,270 animals. Now, the populations of dolphin are in relatively stable condition. AJ:, Dr. Edwards said, none are threatened and 

none are endangered. 

You are probably going to hear testimony that some of the stocks 

are declining. The indices of abundance do show a decline in the 

last two years for spotted dolphins, but, in fact, that is probably related to the environment and the boundaries that are set for assessing those abundances. Whenever we have had an El Nino condition, an anomalous ocean condition in the past, we have seen a 

drop in the apparent abundance but a gain as soon as that condition is over. We saw that in '82, '83. We saw it in '86, '87, and '93, 

and '94. 

Dr. Edwards has already mentioned stress, and there is no 

strong evidence to indicate stress is or is not operating. There has 

been one key paper that has been written in which stress was studied, and measures of hypocalcemia, hypoactivity, and adrenal cortex darkening were used as criteria. But the question is open. For example, hypocalcemia, low blood levels of calcium-calcium 

levels were measured in dolphins. They were compared mostly with 

human levels. They weren't compared with dolphin levels to any degree and when compared with available dolphin levels in the literature, they look to be relatively normal. 

The governments have been doing a pretty good job of this program, and they intend to continue, but they are concerned. They 

say that if they are forced to go more and more to dolphin-safe fishing, that will cause ecological damage in two respects, and the scientific data support that. 

One, and these have both been mentioned, is that there would 

be a reduction in the catch of yellowfin tuna because shifting from 

catching large tuna with dolphins to catching small sexually immature tuna on logs and in schools would decrease the yield per recruit by anywhere from 25 to 50 percent. 
238 

That does not take into account the decrease that Dr. Edwards 

said would probably occur if we went 100 percent dolphin-safe fishing because of a bycatch of small tuna that are caught and thrown 

away. That would be an added loss. The bycatch issue we have already discussed a lot, but the kind 

of animals caught in bycatch are not only the small tuna that are 

dumped, but the sharks, mahi-mahi that are very important to Ecuador and Costa Rica and Panama in the artisanal fishery, large numbers of those are dumped over the side dead-billfish, which 

are important to sportsmen, and turtles. 

The governments got together and discussed this in Panama and 

came up with the Panama Declaration. You have before you two 

bills that you are contemplating action with respect to the Panama 

Declaration. One, H.R. 2856, incorporates some of the recommendations of the Panama Agreement but not all of them. It more or less 

with respect to dolphin-safe does the same but more of it. It would 

require a significantly decreased mortality year after year in the 

fishery. That would force more boats to fish dolphin-safe. We want to remember, Mr. Chairman, and I am sorry, my time 

is up, but I would like to make a couple of points. There was a lot 

of discussion earlier about the Mexican market and their need for 

the U.S. market and what has happened to international markets. 

Well, as a matter of fact, the embargo provisions-all of these pro- visions have changed very little fishing on dolphin. Still, we are 

catching 60 percent of our tuna on dolphins. So embargoes really haven't worked from that point of view. 

Mexico has not exported fish to the United States probably for 

15 years. They have been embargoed for one reason or the other. 

They have developed an internal market that takes most of their 

catch. The rest they export to the Middle East, to Europe, and to 

the Orient. 

So there are alternate markets for all of these countries, and 

they are using them. Latin America is 500 million people, and the 

tuna market is growing very rapidly. So H.R. 2856 I don't see resolving that problem. 

Going to H.R. 2823, in my opinion, it is ecologically sound. It is 

consistent with a number of international instruments to which the 

United States has been party recently-the Law of the Sea Convention, the Code of Conduct for Responsible Fishing, Agenda 21 of the 

Rio Summit, the Highly Migratory and Straddling Stocks Agreement of the United Nations. 

All of those called for an ecosystem approach to the management of resources, and that is what H.R. 2823 does. And I think any responsible ecologist and any serious conservationist will recognize that. Thank you, Mr. Chairman. I apologize for the red light. [Statement of Mr. Joseph may be found at end of hearing.] Mr. SAXTON. [presiding] Thank you. I guess as you can see, we 

don't have an efficient system in any sense of the word here so I 

missed your testimony which I am sorry about. So if you covered 

the answers to the questions that I am going to ask, I apologize, but I need to ask them anyway. 

You were here, and I think Dr. Edwards heard my final ques- tions of the previous panel relative to bycatch. Do you agree with 
239 

the answers in a general sense that were given relative to bycatch 

in terms of fishing on dolphins? Dr. EDWARDS. Having just gone through that fairly intensively, 

I can't remember what they said. 

Mr. SAXTON. Well, what they said was that in fishing on dolphins, there is a relatively low yield in terms of bycatch, and they 

specifically mentioned juvenile tuna. 

Dr. EDWARDS. Correct. 

Mr. SAXTON. They specifically mentioned shark, and they specifically mentioned sea turtles. 

Dr. EDWARDS. I can speak to the tuna question because that is 

the data base and the research that I personally have done. The 

nontuna bycatch has been looked at by Dr. Joseph's agency. But 

can I give you a couple of words about bycatch if that is helpful? 

Mr. SAXTON. Please. Dr. EDWARDS. OK. There are two kinds of bycatch-dolphin 

bycatch, nondolphin bycatch. I am sorry to call it dolphin bycatch, 

but it supplies the explanation. There are two types of bycatch, 

three types of sets-dolphin sets, schoolfish sets, log sets. Dolphin 

bycatch occurs only during dolphin sets; no dolphin bycatch on 

school sets; no dolphin bycatch on log sets. Nondolphin bycatch includes tunas of various sizes including juvenile yellowfin and also 

a number of other species--other types of biota. 

Mr. SAXTON. Can you pull that microphone just a tad closer to 

you please? 

Dr. EDWARDS. Sure. 

Mr. SAXTON. Thank you. 

Dr. EDWARDS. Is that better? OK. Three types of bycatch. 

Nondolphin bycatch-of all kinds pretty much-occurs very rarely 

in dolphin sets, occurs at a higher level but relatively moderate 

level in school sets, and occurs at an extremely much higher level 

for log sets. 

In terms of tuna, which is the specific group that I have looked 

at, tuna bycatch in dolphin sets is about 0.1 ton per set. Tuna 

bycatch in school sets 'is about one ton per set or 10 times higher. 

Tuna bycatch on log sets is about 10 tons per set or 100 times higher than the bycatch on a single dolphin set. So bycatch is a concern 

for future effort patterns in which a significant number of dolphin 

sets would be reallocated to log sets because there is this 100-to1 increase in tuna bycatch for each dolphin-to-log-set reallocation. 

Mr. SAXTON. And what does that mean to the tuna fishery? 

Dr. EDWARDS. Well, the estimates that I have done from theresearch-from the data base that I have worked with-indicate that 

if all dolphin sets were reallocated to log sets that you could lose, 

just due to bycatch, 15 to 25 percent of annual fishery recruitment. 

You would simply be throwing those little fish away so you 

wouldn't be bringing them home. In addition, you would also be catching a lot more small yellowfin and keeping them. You would change the yield per recruit of 

the commercial stock because you were changing the size frequency 

distribution of what you brought home, and you would be decreasing the number of fish available to catch because you would be 

throwing a greatly increased number of them away. 
240 

There is also a potential effect for decreased stock levels, decreased reproduction in the future if there is some sort of statistically significant, which has not been shown yet, stock-recruitment 

relationship-some relationship between the number of big tuna 

you have and the number of little tuna that come into the fishery each year. 

Mr. SAXTON. For a novice like myself then to draw a conclusion 

based on what you have said, would it be fair for me to draw a conclusion that it is significantly less harmful to the tuna to fish on 

dolphins than on school sets or on log sets? 

Dr. EDWARDS. Absolutely correct, for tuna. 

Mr. SAXTON. Thank you. Dr. Joseph, would you like to address 

this issue of bycatch? 

Mr. JosEPH. Sure. Liz Edwards has done a good job of reviewing all that. I would just say that there is some experience on this, Mr. 

Chairman, back in the mid to late 1970's. The fleet in the eastern 

Pacific grew to be about twice the size as it is now. Fishing effort 

got very high. When fishing effort gets high, the older age classes 

of fish get reduced first. Less fish were found with dolphins. Boats 

concentrated more on small fish and accelerated that pattern for 

several years. 

That concentration on small fish reduced the potential of those 

fish to provide catch because they were caught before they had a 

chance to grow to their optimum size so that catches in the fishery ~lummeted to the lowest levels for a series of years during the late 

70's, early 1980's. The stocks were basically overfished, and that 

is what would happen, Mr. Chairman, if we reverted to applying 

our effort to log and schoolfish over the proportions that are currently applied to log and schoolfish. 

Mr. SAXTON. Can you speak for us to the bycatch as it relates 

to billfish, sharks, rays, and sea turtles? I have a sheet of paper here in front of me. I believe that it comes from your testimony, and it appears that there is a huge bycatch. In the figures that you show here from 1993 and from 1994 that there is a huge bycatch, for example, on sharks and a relatively large bycatch on billfish in 

log sets. 

Mr. JOSEPH. Yes, Mr. Chairman, that is right. There is a very large bycatch of other species-marlins-striped marlin and blue 

marlin and black marlin-for the fishery now in the thousands; for, 

as I mentioned, mahi-mahi, which is a food fish; for trigger fish, 

which we don't know what their importance in the ecosystem is; for 

sharks; for turtles-very high catches of all of those. 

If we were to decrease the amount of fishing on dolphins, then 

those bycatches would proportionately go up. We don't know what 

the impact of that would be on the populations. We saw no impact back in the late '70's when it did go up, but we still caught 30 to 

40 percent of our tuna on dolphins in those days. If we were to stop dolphin fishing, those bycatches would go very, very high. 

We want to be cautious because sharks have a low birth rate. 

Their fecundity is not high. They are easy to overfish. Turtles are 

caught in this fishery, and I think in thelast couple of years maybe 200 turtles a year. That doesn't seem like much, but when you put it-I saw some figures in some of the testimony that one of the 

populations or stocks of turtles was 500,000. Well, if it is 500,000 
241 

and 2 or 300 are being taken, that is about the same level of mortality that is in the dolphin fishery. 

So on the one hand people are not concerned about that level of 

mortality in turtles, but they are very concerned about that level 

of mortality in dolphins, and turtles are much slower growing animals-longer living animals. 

The thing is we are in a time where-and this has been mentioned already before-where the precautionary approach to fisheries management has become very popular. That is contained in 

all of these international, and in our case national, instruments 

that have to do with management. 

We don't know much about the biomass of these bycatch species 

in general, but caution tells us to be prudent. We know a lot about 

the dolphin, and we know a lot about the tunas. We know that the 

dolphins are neither endangered or threatened. We know what the 

potential production is for tuna so we ought to put all of this information together in a single approach to managing this ecosystem, 

and, in my opinion, Mr. Chairman, that is what H.R. 2823 does. 

Thank you. 

Mr. SAXTON. Let me ask you just a curious question. Are the sea 

turtles that we are talking about in the eastern Pacific the same 

variety of turtles that exist in the Gulf of Mexico? 

Mr. JOSEPH. I don't know, Mr. Chairman, the species that occur 

in the Pacific. I don't have that information with me so I wouldn't 

want to mislead you. 

Mr. SAXTON. Yes. Thank you. Mr. Miller, do you have questions? 

Mr. MILLER. Quickly, and if you responded to this earlier, I 

would be happy to read it in the record. When the Secretary was 

here, he was suggesting that this decision was as a result of some 

judgments and some choices that were to be made, and that one 

of them was this subject that you have just been discussing on the 

question of bycatch. But what I am not clear about is sort of how 

we quantify that given the range of options or expected decisions 

by the current fisheries to change the manner in which they fish 

today. I mean, are they all going to go off and fish in a way that 

is detrimental to bycatch? Are some of them, you know--

Mr. JOSEPH. To the--

Mr. MILLER. [continuing]--very often around here we pick a 

scenario, and then we make public policy based upon the scenario. 

And as the guy who just won the Nobel Price for economics said, 

"People probably don't usually behave the way you think they are 

going to behave." 

But we are saying here that if they don't get this agreement, 

these people are all going to go off and fish in a way that is going 

to have this dramatic impact on the bycatch over and above what 

you have today. And I am just asking is that really what we-is 

that a real scenario or is that a basis on which you can then justify 

this policy? And I don't mean that in a derogatory sense. I mean, 

I am just trying to determine--

Mr. JOSEPH. That is an issue-- . Mr. MILLER. [continuing]--how did the evidence get entered 

here. 

Mr. JosEPH. That is an issue to be concerned with. There are two 

things that you are addressing. One is what happens as we con-
242 

tinue to require less sets on dolphin-more dolphin-safe fishing. To 

the degree that that is required, to that same degree the bycatch will increase, and the problems of small yellowfin catch will increase. 

The other part of your question, are the nations going to go off 

and rape and pillage, that is a judgment call. But let me say just for your own information-give you a little background, the nations 

party to this agreement consider that they have done a herculean 

task of reducing dolphin mortality, and they have. It is down to 

biologically in the population sense insignificant levels. 

They are still being embargoed, although the embargoes, as I 

said when you were out, Mr. Congressman, I don't think have had 

much effect. They still are fishing as much on dolphins as they ever 

had-60 percent. What has happened is the performance of vessels 

and skippers has improved, and mortality per set has gone down 

from 13 or 14 animals back in '86 to .4 7 animals last year. Now, they consider that pressure on them to fish dolphin-safe is 

pressure on them to fish unsound ecologically because they are 

forced to do this fishing that has a bycatch. They met in Panama. 

They have tried to reach an agreement that will make a solution 

acceptable to everyone. They have indicated in four different international fora that if 

they can't get this problem resolved, if they are continued to be 

pressured to fish dolphin-safe, they are going to have to look at 

their options and maybe look at other approaches. And one approach that they have already-they have already had in a meeting of an international group-coalition of Latin 

American nations-a group called OLDPESCA-that won't mean 

much to you-it is an acronym-discussed the possibility of other 

alternatives and the forming of a Latin coalition for the management of the ecosystem of the east--

Mr. MILLER. But we don't know what they will do? 

Mr. JosEPH. No. We don't know. One thing I can tell you that 

did happen is Mexico, like the other countries, provided funds to 

us for the management of this program, both funds that comes 

from the vessels-and I know in the testimony there is something that says Mexico has never given us any money, but they gave us 

$200,000 last year in addition to what--

Mr. MILLER. What is the cost of the program? Mr. JOSEPH. The program-our whole budget is $4 million, but 

they give us another $1 million for that program from--

Mr. MILLER. Dr. Edwards, before I run out of time, let me ask 

you something. 

Mr. JOSEPH. Just let me finish-that they have only paid-every other year they have paid the full quota at the beginning of the 

year. This year they only paid the first quarter. Mr. MILLER. Dr. Edwards, the stocks of depleted dolphin-as I 

understand it, in one instance we are dealing with two fairly depleted stocks of dolphin. Is that correct? 

Dr. EDWARDS. Yes. 

Mr. MILLER. They have not increased or why have they not increased? 

Dr. EDWARDS. I have no idea why they have not increased. I am 

sorry. That is a flippant answer. I apologize. The stocks of dolphins 
243 

appear to have had relatively stable abundance over the last 10 

years. There are no consistent sustained trends either up or down 

for any of the stocks for which we have abundance data or abundance indices. 

We would not expect to see a tremendous increase in the population levels of these animals even over a 10-year period because 

their capacity to reproduce is on the order of one to two percent per 

year-their net gain per year is on the order of one to two percent 

of whatever the current standing stock is. 

So whereas you might, of course, expect to see tremendous yearto-year decreases in a population because it is certainly easy to kill 

something in a hurry, for dolphins, in particular, it is very difficult 

for them to increase in a hurry. So the variability in the data is 

such that we would not have been able to detect a one or two percent per year increase over the last four or five or six years anyway. 

Mr. JOSEPH. Could I add something to that? 

Mr. MILLER. Mr. Chairman? Yes, fine. 

Mr. JOSEPH. I was just going to say that for the northeastern 

spotted dolphins, the one that people are concerned about, if you 

use current levels of mortality caused by the fishery and current 

levels of population growth, then that population which is now depleted will take about 27 years before it surpasses the depleted 

level and come off the depleted list. If there were no fishery at all, 

it would take about 28 1/2 years. So the mortality caused by the 

fishery is a very small part of the total population. It doesn't have 

a big effect. 

Mr. SAXTON. Well, we thank you very much for spending this 

time with us and for your views and-oh, I am sorry. Mr. Gilchrest. 

Mr. GILCHREST. Thank you, Mr. Chairman. 

Mr. SAXTON. I thought you had preceded me. 

Mr. GILCHREST. Well, I thought I was going to be penalized for 

letting Ms. Edwards talk way over her time, but I am glad I 

wasn't. Just a couple of quick questions. Dr. Edwards, the Eastern 

Tropical Pacific has probably one of the best monitoring systems of 

any fishery in the world. In fact, it is pretty extraordinary from my 

perspective. 

Can you tell us what you feel the impact of the Panama Declaration and H.R. 2823 would have on that monitoring system? Would 

it improve it? Make it worse? If this legislation were passed as a 

result of the group getting together and having the Panama Declaration, what would happen to the monitoring system in the Eastern Tropical Pacific? 

Dr. EDWARDS. Well, my personal opinion is that nothing would 

happen. It is excellent now, and it would remain excellent because 

that is codified in the Panama Declaration wording. It is 100 percent observer coverage on all the boats. 

Mr. GILCHREST. What would happen if Mr. Miller's legislation 

passed to the Panama Declaration and the monitoring system, in 

your judgment? 

Dr. EDWARDS. In my judgment, it would depend on-oh, in terms 

of the monitoring system? 

Mr. GILCHREST. Yes. 
244 

Dr. EDWARDS. Are we talking about the labeling and whether we 

can track an effort? 

Mr. GILCHREST. No. Let us put the labeling aside, and let us put 

the observers on the boats and observing what happens to-this is 

almost mixing apples and oranges. 

Dr. EDWARDS. Well, 100 percent observer coverage is 100 percent 

observer coverage. During dolphin sets, they are observing dolphins 

generally because that is primarily what you catch in addition to 

tuna, and on school and log sets, the observers would be observing 

the nondolphin bycatch because you don't catch dolphins in those 

sets. 

Mr. GILCHREST. Dr. Joseph? 

Mr. JOSEPH. Yes. Well, I would agree with Dr. Liz Edwards on 

the first one. H.R. 2823 would strengthen the resolve of the countries to continue participating and to maintain the data systemthe monitoring. H.R. 2856-that is a judgment call. If you believe 

that the Latins would move away from the agreement, then it will 

destroy the monitoring system. We won't have any mechanism for 

collecting the data on the fishery. It will be whatever they decide 

to do on their vessels. 

Mr. GILCHREST. Dr. Edwards, do you have preference-! am not 

asking for a vote. I don't think you live in my district. And I hate 

to ask you this question, but in my mind as we go through this 

process, I would just like-and you gave us some excellent biological data-from a scientific perspective to the range that you can, 

which one of these bills-and I know it is not a popularity contest, 

and I am going to ask Dr. Joseph the same thing-maybe I will ask 

Dr. Joseph first-it will give you a little time to think-Dr. Joseph-and I think you-1 guess you have answered it-in the perspective of bycatch and the perspective of human relations in the 

Western Hemisphere and the perspective of long-term healthy 

stock of various species of dolphins, in your professional opinion, 

which one of the bills would go a long way into protecting the ecosystem-the ocean marine ecosystem? 

Mr. JoSEPH. Mr. Chairman, my comment is going to be based on 

40 years of working in the field of science and on 30 years of working in these sorts of programs in the international fora. I have been 

an adviser to the United Nations and just about every major fishing nation in the world on fisheries matters. 

I think that H.R. 2823 serves our purposes well because it looks 

at the whole ecosystem. It doesn't force fishing in an unsound ecological manner. I think it will in the long run encourage a reduction in dolphin mortality because of the labeling aspect of it. 85 

percent of all of the sets now made on dolphins kill no dolphins. 

That would then be termed dolphin-safe. 

That will encourage fishermen to increase that percentage so 

that there are no market constraints anywhere in the world, not 

just the United States, on that product. I think that will work to 

reduce dolphin mortality. 

So I favor H.R. 2823 because it takes an ecological approach, and 

I think it will reduce dolphin mortality. And I think it is the best 

thing for the dolphin stocks, the tuna stocks, and the other members of the ecosystem to which those animals belong. And it is consistent with international instruments. 
245 

Mr. GILCHREST. Dr. Edwards-, before you answer, I have another 

question before the yellow light turns to red. Then you can answer 

both I guess, but this one goes to the issue of bycatch I guess we 

could say. Putting stress aside, as far as encirclement is concerned, 

would you say that the method of purse seine fishing for tuna 

where the dolphins to the extent that it is possible are released is 

better than log sets or school sets for catching tuna as far as the 

dolphins are concerned and the tuna? 

Dr. EDWARDS. Well, that is the thing. The answer to both of 

those questions are going to be related to the fact that I am a systems ecologist and a pragmatist. And I support 28-the bill. I am 

not a politician in any way, shape, or form. 

Anyway, as a systems ecologist and as a pragmatist, I support 

your bill because it essentially would codify the effort distributions 

that are occurring in the Eastern Tropical Pacific at this time, 

where most of the effort is on dolphins-50 percent is on dolphins, 25 percent is on schoolfish, 25 percent is on log fish. 

In the best of all possible worlds, you know, maybe everyone would go away and leave the entire ecosystem alone, but it does 

not appear that that is going to be the case. Somebody is going to 

want to harvest yellowfin tuna from that system. If that is the case, if there is an undiminished economic interest 

in harvesting the yellowfin tuna from that ecosystem, the most ecologically conservative method that we have to do that right now is 

using the system that we have now, basically focusing on dolphin 

sets under the circumstances that you have 100 percent observer 

coverage, very strong international pressure to continue to reduce 

the dolphin mortality. 

Mr. GILCHREST. Can I ask you one quick question before the 

hammer comes down on me? Can we ever know the effect of stress 

on dolphins as far as mortality down the road and reproduction is 

concerned from a scientific perspective? 

Dr. EDWARDS. With a very small confidence interval, probably 

not. We can probably make some fairly supportable guesses one 

way or the other based on various analyses and analyses of dolphin physiological and population data and comparisons to other similar 

mammals. 

Mr. GILCHREST. Thank you. 

Mr. MILLER. Mr. Chairman, just a point of clarification if I 

might? You said that the legislation you support codifies the current practices. I don't think that is accurate. It doesn't apportion 

out how you fish. 

Dr. EDWARDS. No, but it encourages--

Mr. MILLER. That is different. That is different. 

Dr. EDWARDS. All right. Then I withdraw--

Mr. MILLER. OK No, I mean, it is important because you are not 

mandating practices in this--

Or. EDWARDS. OK I withdraw that word. I mean-encourages. Mr. SAXTON. Thank you very much and thank you both again for 

being with us this afternoon, and we look forward to seeing you again. In the meantime, we are going to move on to our fourth and 

final panel. 

And let me just say that they include Clifton Curtis of 

Greenpeace; Nina Young of the Center for Marine Conservation; 
246 

our friend and fonner staffer Jeff Pike of the Dolphin Safe Fair 

Trade Campaign, and he is accompanied by Dr. Naomi Rose of the 

United States Humane Society; Mary L. Walker, Inter-American 

Tropic;al Tuna Commission; Lori Wallach of the Public Citizen's 

Global Trade Watch; Dr. John D. Hall, Coastal and Offshore Pacific 

Corporation; and James P. Walsh of the American Tuna Owners 

Coalition. 

Mr. CURTIS. Thank you, Chainnan Saxton. Shall I begin? 

Mr. SAXTON. Yes. We welcome you all, and, of course, let me just 

remind you that we are proceeding, as Jeff Pike is so familiar, with 

our five-minute rule. And those little lights in front of you have a 

meaning which are evident. And so we will begin from your right 

to your left with Cliff Curtis, and you all may proceed. Go ahead, 

Mr. Curtis. 

STATEMENT OF CLIFTON CURTIS, OCEANS/BIODIVERSITY 

POLITICAL ADVISOR, GREENPEACE INTERNATIONAL 

Mr. CURTIS. Thank you for the opportunity to appear before your 

subcommittee. It is a privilege to appear here today and to speak 

to the important issues that you are considering. As addressed in 

detail in my written statement, for which I request that it be accepted into the hearing record, Greenpeace believes that Representative Gilchrest's bill, H.R. 2823, offers the best foundation for the 

U.S. and other nations to resolve the tuna-dolphin issue. Our group 

is one of five major environmental groups-the names have been 

mentioned earlier-that support H.R. 2823. 

At the same time, there are provisions in Representative Miller's 

bill, H.R. 2856, that should be added as you move through this legislative dance consistent with H.R. 2823's objective of building on 

the Panama Declaration and underlying La Jolla Agreement. 

From an environmental perspective--environmental underlined-H.R. 2823 provides an effective way forward to a complementary U.S./multilateral solution that offers the best prospects 

for eliminating dolphin deaths, as well as ensuring greater protection for other species. 

Mr. Chainnan, Greenpeace has long worked to achieve stronger 

protections for dolphin and whales, among other animals, and that 

commitment remains constant. At the same time, our efforts, including tactical strategies or tools, need to be responsive to changing conditions, and that is what is happening in the ETP tuna fishery. The current conditions there, in our view, demand an international response, as is true with a growing number of environmental issues, in combination with strong national measures. 

In opening and other statements earlier today, the issue of the 

changes in U.S. law over the years involving this committee, as 

well as the La Jolla Agreement and the Panama Declaration, have 

been addressed, so I will leave that to my written statement. 

In Greenpeace's view, the Panama Declaration sets the stage, 

opens the door, paves the way-you can choose the words-but it 

creates the basis for moving forward, for strengthening and locking 

in through a legally binding instrument what is now a wholly voluntary multilateral program among the various fleets and fishing 

nations in the ETP. 
247 

Such an agreement binding on all fishing countries through their 

own national laws would protect not only dolphins, but other marine species including the long-term sustainability of the tuna 

stocks-something we have heard about in the earlier panel during which the impacts on juvenile tuna was discussed. Moreover, resolving these problems in the ETP would set some important prece- dents that could lead to similar agreements in other regions, which 

we would welcome. 

While the differences between Representative Gilchrest's and 

Miller's bills have received a lot of attention, which is normally the 

case, they share many common features, and that is encouraging. On research, for example, chase and encirclement is an area that 

needs further study, and both bills call for that research to be done. 

And we strongly support such an effort to be undertaken in an expedited manner. 

Let me turn briefly to three other points-dolphin-safe, enforcement, and trade. On the dolphin-safe label issue, it has been and 

continues to be my organization's position that there should be an 

end to encirclement of dolphins. And with respect to other fishing techniques such as log or school sets, there should be an end to the 

killing of dolphins in all fishing. The dolphin-safe ·label did what was necessary at the time of its 

passage. It has brought much-needed attention to the issue, but we 

believe it has gone as far as it can. It is a tool, and we think it 

needs to remain as a tool, but we think the revised definition will 

be more effective in protecting dolphins and ensuring that the continued decline in dolphin deaths will continue. 

Failure to redefine dolphin-safe also will preclude any effort to 

negotiate a new multilateral, legally binding instrument. It risks 

other countries walking away from the now voluntary La Jolla 

Agreement and fishing without restriction. For these and other reasons, H.R. 2823 adopts the preferred approach by incorporating the 

Panama Declaration's call for a change in our definition of dolphin- safe. If properly monitored and enforced, we believe it increases the 

likelihood that no dolphins died while catching tuna. 

On the enforcement issue, giving effect to the Panama Declaration would enable the U.S. for the first time to address enforcement, internationally, in a manner that would enhance efforts 

taken at the national level. Absent international agreement, there 

has been inadequate enforcement measures that subject all nations 

involved to trade sanctions when required. While the trade sanctions, dolphin-safe label, and the MMPA have enhanced monitoring and conservation in the fishery, in our view, they will not continue 

to provide the stimulation needed. 

And, finally, Mr. Chairman, in relation to trade, and I realize my time has expired so I will s~_ this in just two or three sentences. 

My organization opposed NAFTA, and it disputed many of the findings in the GATT decision involving tuna-dolphin in Mexico. We 

are not opposed though to trade per se but to trade that dominates 

or threatens to undermine environmental conservation policies, social equity, and democracy. 

We support the Panama Declaration and the multilateral instrument it envisions because it is good conservation policy for dolphins, for other species, and for the marine ecosystem. We look for-
248 

ward to working with your Subcommittee and others in moving forward on this important issue. Thank you. 

[Statement of Mr. Curtis may be found at end of hearing.] 

Mr. SAXTON. Thank you very much, Mr. Curtis. Nina Young is 

from the Center for Marine Conservation. Ms. Young, proceed 

please. 

STATEMENT OF NINA YOUNG, MARINE MAMMALOGIST, 

CENTER FOR MARINE CONSERVATION 

Ms. YOUNG. Good afternoon and thank you. Mr. Chairman and 

members of the subcommittee, we are delighted to have this opportunity to present our views on H.R. 2823, the International Dolphin 

Conservation Act, as introduced by Representative Gilchrest. My 

name is Nina Young, and I am the marine mammalogist for the 

Center for Marine Conservation. And our statement today is made 

on behalf of the Environmental Defense Fund, Greenpeace, National Wildlife Federation, and World Wildlife Fund. 

Last June, we appeared before this subcommittee in opposition 

to a bill that would have weakened protection for dolphins. Instead, 

we recommended development of a long-term, multilateral solution 

to the tuna-dolphin issue that would conserve tuna and dolphin 

stocks, biological diversity, and the marine ecosystem. 

That multilateral solution is embodied in the Panama Declaration which raises the standards for conservation in the ETP. Our 

organizations strongly support Mr. Gilchrest's bill for this reason: 

it would implement the Panama Declaration, the basis for a binding, legal agreement under the IA'ITC that will strengthen protection for dolphins, tuna, and other marine life. 

While our written statement addresses the scientific merits of 

this bill, I will focus on recovery of dolphin stocks, stress, and 

bycatch. H.R. 2823 will allow dolphin stocks to recover. The remarkable success of the MMPA and the voluntary La Jolla Agreement have resulted in an almost 99 percent reduction in dolphin 

mortality. 

For almost a decade, dolphin stocks in this tuna fishery have 

been stable. One exception is the northeastern offshore spotted dolphin, but that is no wonder since up until early 1990's, the annual 

kill of this and several other stocks were high enough to hamper 

or retard the recovery. But now the kill rates for all stocks are 

below two-tenths of one percent of the population abundance, a 

level that is more than four times lower than that recommended 

by the National Research Council to allow recovery of those stocks. 

Some claim that chase and encirclement causes stress levels that 

can impede dolphin reproduction or result in dolphin deaths. Our 

organizations would prefer that fishing be conducted without encircling dolphins, but there is currently no ecologically sound or economically viable alternative. 

While dolphins chased and encircled probably experience some 

level of stress, there is no conclusiva scientific evidence that chase 

and encirclement reduces reproductive capacity, causes death after 

release, or the development of stress-related diseases. In fact, there 

is evidence that dolphins have habituated to encirclement and have 

developed behaviors that reduce their risk in the nets. 
249 

Nevertheless, we believe that stress should be further investigated, and we support the provisions in Mr. Gilchrest's bill that 

would examine the impact of chase and encirclement on dolphin biology and health. Absent such research findings, we support the 

approach taken in H.R. 2823 which seeks to protect dolphins while 

addressing the equally important need to reduce ecologically damaging bycatch. One of the MMPA's stated objectives is to maintain the health 

and stability of marine ecosystems. To date, not much attention 

has been given to that objective. H.R. 2823 will for the first time 

require measures to protect the ETP ecosystem. Recent data indicate that fishing methods that do not involve setting nets around 

dolphins such as log and school sets have substantially greater bycatch of juvenile tuna and other marine life. 

The bycatch numbers summarized in our written testimony are 

alarming, especially for species that reproduce slowly such as 

sharks, billfish, and sea turtles. Domestic and international fishery conservation and management efforts have made bycatch reduction 

a priority. H.R. 2823 provides a vehicle to develop measures to 

avoid, reduce, and minimize bycatch of juvenile yellowfin tuna and 

other marine life. 

We are not advocating a shift to dolphin sets. Based on the peer review of the bycatch data, the most effective conservation strategy is one that would reduce dolphin and non-dolphin bycatch at current proportions of log, school, and dolphin fishing. We believe that 

H.R. 2823 will enable the fishery to reduce bycatch and conserve 

tuna stocks. 

In conclusion, international problems demand international solutions. We can no longer protect marine life in international waters 

solely through unilateral mandates. We must cement the international cooperation manifested in the Panama Declaration. Failure to act could undermine the world's most ambitious international fisheries management and dolphin conservation regime and place dolphins at risk. 

We believe that now is the time for U.S. leadership in charting 

a new course that strengthens international protection for dolphins, biodiversity, and marine ecosystems. For these reasons, we 

urge speedy passage of H.R. 2823. Thank you. [Statement of Ms. Nina Young may be found at end of hearing.] Mr. SAXTON. Thank you very much, Ms. Young. Mr. Pike. 

STATEMENT OF JEFFREY R. PIKE, DOLPHIN SAFE FAIR TRADE 

CAMPAIGN; ACCOMPANIED BY DR. NAOMI ROSE, MARINE 

MAMMAL SCIENTIST, U.S. HUMANE SOCIETY 

Mr. PIKE. Thank you, Mr. Chairman. Thank you for your hospi- tality. I am, as Bud Walsh says in his testimony, one of those that 

supports the spoiler bill that will completely undercut the Panama 

Declaration, and it is designed to solely satisfy a single-issue, animal protection group. I think if you look at the groups that support 

our campaign, you will find that it is far from that. 

I would like to mention a couple things and set the record 

straight because earlier today one of the six previous speakers mentioned personal attack. I don't condone that, and I have not 

been associated with any of that. And as far as emotions, I think 
250 

this is a little bit of an emotional issue, but we don't approach it 

that way. And with respect to attacking our conservation credentials, as Dr. Joseph did, I think our record will stand for itself on 

that. 

As you know, this is the only fishery in the world that targets 

dolphins, marine mammals to make a profit off of the tuna beneath 

them. It was developed by the U.S. fishermen, and to their credit, 

and I have great respect for the U.S. tuna industry, they have done 

a marvelous job in reducing dolphin deaths. 

They have not done as nearly as good a job in coming up with 

other technologies that don't involve encirclement, and that is really what the debate is about today-is the intentional, and I emphasize intentional, encirclement of a marine mammal to catch fish beneath it. Our campaign does not support that. And from my experience in the past 15 years, we have worked to try to find alternatives to that method. 

I think Mr. Miller's bill incorporates 80 to 90 percent of Mr. 

Gilchrest's bill. We support international cooperation. We support 

reducing bycatch. We are not for status quo as some people have 

suggested. And, yes, we want to reward foreign fishermen that 

have done a good job, and we do that by opening up our markets 

to truly dolphin-safe tuna. 

In fact, Senator Biden even put on the table the notion today 

that we allow dolphin nonsafe tuna to come into our markets and 

let the consumer decide. But we are told from the other side that 

that is not good enough, that we must have a redefinition. And in 

my view, that is simply a strategy to legitimize the technique of encircling dolphins. 

Now, I believe that reasonable people with a lot of integrity can 

disagree on this question. I have the utmost respect for Chairman 

Young who has agreed from day one that encirclement is an acceptable type of fishing. I don't agree with that, but he has been consistent, as has the American Tunaboat Association, and many others. They see nothing wrong with that. 

But in our view, we have to get beyond encirclement, and work 

is being done now on FADS. John Hall, who you will hear from 

later, will tell you about some marvelous work with FADS in terms 

of productivity in increasing catches in Ecuador. So there are alternatives. It will take hard work, and we want to see a legislative 

legal structure that encourages that. But by adopting the change 

in definition we are saying, OK, as long as you don't actually see 

some dolphin die in a net, it is OK to do, we think that is going 

to prolong the setting of dolphins from now, and forever. 

So we ask ourselves why is it that we have to have this change 

in definition? Is it to satisfy international trade commitments? No. 

We have already heard from many witnesses that both bills address trade commitments. Is it for the American consumer? Well, 

we represent the American consumer, and we don't think we ought 

to touch that label. We have come to rely on a very good and sound 

label, and we don't want to jeopardize its integrity. 

So are we making this extreme change for the U.S. canneries? 

Well, they are not even here today. But Mr. Heinz said he agrees 

in a dolphin-safe policy, and he is not going to change unless there 
251 

is science-based information that says encircling, in fact, does not 

harm dolphins in any way. It is in the March 4 Time Magazine. 

Are we doing this for the American taxpayer? I don't think so. 

If you remember in 1988, we enacted the South Pacific Tuna Treaty, and we obligated $10 million annually to those island nations. 

From 1988-1992, we spent approximately $40 million. 

A treaty extension now commits this government to paying $14 

million through the year 2002. So by the year 2002, the American 

taxpayer will have paid almost $200 million to guarantee access to 

our U.S. tuna fleet to dolphin-safe fishing grounds in the West Pac 

area. If they leave that area, we don't get a rebate. We don't think 

we are doing this for the taxpayer. 

Are we doing it to address bycatch issues? Well, bycatch issues 

do need to be addressed. As we know historically, there have been 

essentially 50 percent log and school sets and 50 percent dolphin 

sets. That has continued for many years. We think that bycatch 

ought to be addressed, but you don't address it by saying, OK, let 

us go set on dolphins. That is like saying to preserve crab in the 

Bering Sea you go set on salmon. 

It doesn't make sense. We don't do it that way in other fisheries. 

We look at mesh size, time-area closures, seasons, gear. All those 

things need to be explored, much like we are doing in H.R. 39, 

which Mr. Gilchrest has had a major part in. 

So are we doing this for the U.S. tuna fishermen? And I will be 

one more minute. Well, no one knows for certain how many boats 

will move to the ETP. We have got four fishing dolphin-safe right 

now in the ETP. There may be a couple that come over from West 

Pac into ETP, but no one should expect 30, 40, or 50 large tuna 

seiners to operate out of California. It is not going to happen. 

We are not doing this for the dolphins. It is very clear who we 

are doing this for, and it is for a handful of U.S. boat owners, the 

Mexican and Latin tuna industry, and the Mexican Government. 

And their interests are telling you that unless you do precisely 

what we said in Panama, we are going to go kill lots of dolphins. 

We don't think that is fair. We don't think it is right. We are willing to work with you on every item in your bill. We are willing to 

sit down and negotiate on everything except the integrity of the 

dolphin-safe label. We would be happy to respond to any question. 

[Statement ofMr. Pike may be found at end of hearing.] 

Mr. SAXTON. Thank you very much, Jeff. Mary Walker, we are 

going to hear from next, of the Inter-American Tropical Tuna Commission. You may go ahead. 

STATEMENT OF MARY L. WALKER, FORMER U.S. COMMISSIONER, INTER-AMERICAN TROPICAL TUNA COMMISSION 

Ms. WALKER. Mr. Chairman and members of the subcommittee, 

thank you for this opportunity. From 1988 to 1995, I was a U.S. 

Commissioner on the Inter-American Tropical Tuna Commission. 

Beyond that, I am an ecologist and an environmental lawyer, who, 

for the last almost quarter of a century, has been involved in the 

formulation and implementation of U.S. environmental policies, 

and rather than go into my testimony, which will be in the record, 

let me just say that I support H.R. 2823 because I believe it is 

sound management of a fishery based on the entire ecosystem, and 

2Q-276 - 96 - 9 
252 

that it wiU encourage further reduction in dolphin mortality as 

well. 

But I would like to address and emphasize some points and respond to some comments made earlier this morning by other witnesses. First, I would like to clarify what I believe we know to be 

true. The IATTC program is working. Mortality for dolphins is 

down to 3,300 in 1995, a 98 percent reduction out of 9.6 million dolphins. 

We have proven that it is possible to fish for large yellowfin tuna 

in association with dolphin and not take dolphin. 85 percent of the 

Eastern Pacific Ocean sets, as Dr. Joseph testified, are free of any dolphin mortality now. 

The dolphin-safe label had nothing to do with this achievement. 

None of this tuna achieved the dolphin-safe label, nor was accessible to U.S. markets. The effect of our current legislation has been 

only to destroy a U.S. fishing opportunity. Once, more than 100 

boats, we are now down to less than five in the EPO. 

I would like to offer my own prediction, my own view, for what 

itis worth, of what will happen under the two bills since you have 

asked that of other witnesses. I believe that H.R. 2823 makes the 

IATTC program U.S. statutory policy and takes further steps toreduce dolphin mortality while allowing a U.S. EPO fishery once 

again. 

Under this legislation, I believe our future concern will be with 

the sustainability of the tuna populations, not the dolphin, and I 

would be willing to say five to ten years from now we will be back 

talking about the tuna, and we will no longer be worried about the 

dolphin in the fishery. 

H.R. 2856, on the other hand, I believe will either have no effect 

whatsoever because it will maintain the lack of any U.S. fishing op- portunity, while allowing other countries to continue their own successful fisheries in the Eastern Pacific Ocean in association with 

dolphin; or, if it were to be implemented, if there were for some 

reason no incentive to stay in the program, it would. have a nega- tive effect by forcing, through its statistically significant reductions 

in vessel mortality limits, a diversion to alternative fishing technologies. I believe this would occur with harmful effects on the 

tuna through harvesting of immature tuna through log and school 

sets and a large bycatch of sensitive, even endangered species as 

you have heard other witnesses testify. And it would cause the governments now participating in the implementation of the La Jolla 

Agreement to go their own way. And I believe that is what is more 

likely to result. 

The result of this will be to end our multilateral management of 

the fishery, which has been the most important, not only to our 

data base and our statistics and our understanding of the resource, 

but to working together cooperatively to achieve the result that has 

been achieved and I believe can be built upon. So I do believe that 

H.R. 2823 is the bill that should be made law. 

I would like to address myself to some comments from earlier 

witnesses beginning with Senator Boxer. She said that her bill, 

H.R. 2856, lifts embargoes and urges other countries to use dolphin-safe practices. Well, I think that is a little disingenuous. 
253 

She is really saying the U.S. market is closed to anyone, including U.S. fishermen, fishing in association with dolphin even if no 

dolphin are killed and dolphin-safe practices are employed. Practices that are sanctioned by the IATIC are designed to be dolphinsafe and, in fact, have proven that they can achieve that result. 

And as I understand your comment, Congressman Miller, you believe there is a fear out there that other countries will go off and 

"murder'' dolphins. I don't say that will occur. I don't believe that 

is the intent of the other countries. I do say that we will have no 

multilateral management of the fishery. They will go their own 

way, and they have developed and will continue to develop other 

markets. Only U.S. fishermen and the ecosystem will suffer. And, 

yes, not working together may result in higher dolphin mortality 

as welL 

We talked about truth-in-labeling this morning, and I think that 

the real consumer cares a lot about factors that perhaps haven't 

been talked about here like price and like quality of the market .. I mean, it is true that tuna fish buying in the country has dropped 

off, and it is in part due to the quality of the product. 

If you were going to have real truth-in-labeling, you would have 

on the shelf three kinds of tuna. You would have tuna caught in 

association with dolphin with no dolphin mortality resulting. You 

would have tuna caught in association with dolphin with dolphin 

having been taken-those would be large yellowfin tuna, the first 

two categories-and then you would have tuna not caught in association with dolphin which often would be skipjack tuna, clearly a 

lesser quality, and consumers have shown us they don't prefer it. 

So let me just conclude that comment by saying let us be clear 

that not only will price be a factor, but the consumer will eventually figure out that the best tasting tuna is the large yellowfin, and 

it may not be in the last can. So I think we should be clear when 

we talk about truth-in-labeling. Thank you. 

[Statement of Ms. Walker may be found at end of hearing.] 

Mr. SAXTON. Thank you very much. We are going to move to Lori 

Wallach at this point. Let me say before you begin your testimony 

that we must leave here in five minutes for this vote. And the information is that there will be a motion to recommit following this 

vote which means we have two votes separated by probably five or 

ten minutes of debate. So after Ms. Wallach, we will have to take 

a 20 minute or so break. As a matter of fact, I was just reminded 

by Mr. Miller there could be three votes, and so it would be more 

like a half-hour break probably. 

STATEMENT OF LORI WALLACH, PUBLIC CITIZEN'S GLOBAL 

TRADE WATCH 

Ms. WALLACH. Thank you, Mr. Chairman and members of the 

committee, for the opportunity to testify. Public Citizen is a 

consumer group founded by Ralph Nader in 1971, and my testimony is also endorsed by the Citizens Trade Campaign, which is 

a nationwide coalition of environmental, labor, consumer, family 

farm, and religious groups that include 7 million group members. 

The ·citizens Trade Campaign and Public Citizen strongly support the Miller bill, H.R. 2856, as strongly as we oppose the 

Gilchrest bill, H.R. 2823. The reason why is not for the environ-
254 

mental reasons alone that you have heard about. It is because we 

see the Gilchrest bill as setting a dangerous precedent in the trade 

regime, as one of trading away our sovereignty and democracy to 

the GATF World Trade Organization. While the committee has heard a lot about the environmental 

and conservation issues, at least as important are the trade impli- cations, and why is the question. I think Secretary Wirth's protest- ing ever too loudly that contrary to the truth, that there is no connection with these bills to trade policy highlights that in this case, 

trade is unavoidably linked. What is really under discussion here 

is the standard for the U.S. domestic policy on tuna to be sold in 

this market. 

And that policy set now by the Marine Mammal Protection Act 

was the very first major U.S. environmental law that was successfully attacked at the GA'IT. It was a successful target in '91. It was 

again successfully challenged at GATT in '93. As many of the Members here know, it was that case, "GATTzilla vs. Flipper'', that 

made the U.S. public suddenly start paying attention to GA'IT as 

something that was their problem. That "GATTzilla versus Flipper'' label came from the New York Times, from CNN, and as we have 

seen, the public is still paying very close attention to these issues. 

So in 1991, GATT ordered the U.S. to gut core provisions of the 

MMPA, and luckily the U.S. still had a veto at GATT, and we 

blocked the case. One service I can provide this committee is to 

make it very clear how the current U.S. debate on the dolphin pro- tection issue is perceived at the World Trade Organization, and as 

well in capitals of WTO members around the world. 

It is being seen as an internal political fight in the United States 

about Congress' allegiance to the WTO/GATT. The Gilchrest bill, 

H.R. 2823, is seen as implementing the GATT panel ruling. That 

would set a terrible precedent for the future of laws attacked at the 

WTO. 

Meanwhile, the Miller bill, H.R. 2856, is seen as a bill that quite stubbornly insists that the U.S. Congress keep setting U.S. domestic standards for products in our market, and as well that the U.S. 

Congress will demand the sovereign right to set conditions for access to this market. 

Also well known in those trade circles, and I know as well in 

Congress is that Mexico has stated its intention to bring a case 

against the U.S. MMPA again at the World Trade Organization because we never did implement that GATT ruling. Now we can't 

block rulings at the WTO. How does this all relate to the Administration's sudden enthusiasm for drastically changing an effective 

environmental policy given all of the polling that shows broad pub- lic support for effective environmental policies? 

It is a preemptive capitulation on this dolphin protection policy because it avoids an even more politically damaging scenario. What 

would that scenario be? After the Administration promised Congress and promised the American public that the World Trade Organization would not undermine U.S. sovereignty, the very first 

case that the WTO decided was against another U.S. environmental law, to reformulate gasoline rules under the Clean Air Act. 

And then imagine the situation if suddenly the World Trade Organization goes after a well-known, truly beloved dolphin protec-
255 

tion. Assume you don't even care about dolphins for a minute. This 

is a broad trade precedent that would be set of the U.S. submitting 

to the GAIT. So what is at stake is who decides U.S. policy. Proponents of the Gilchrest bill, H.R. 2823, are blurring two different issues. There is the issue of international standards or other 

agreements for fishing practices. It would be wonderful if we had 

an enforceable, powerful one for protecting dolphins. On the other 

hand, and the Miller bill, H.R. 2856, notes some of the good parts 

of the Panama Declaration, and it has elements that could be a 

first step. 

A separate piece of business that is now at stake here is how the 

U.S. enforces such policies as regards our domestic market and our 

domestic consumer standards. That is what GATT attacked in 

'91---our domestic standards for tuna fish sold in the U.S. markets-and that is what is at stake now. 

So will U.S. Members of Congress continue to set standards according to what their constituents want? And do it here democratically? Or will Congress be pressured by the threat of trade sanctions or new GATT/WTO challenges and break down a law and replace it with one that will not be as effective? Make no mistake. 

In trade circles, the Gilchrest bill, H.R. 2823, will be seen as implementing the '91 GATT order to eliminate the core provision of the 

MMPA. 

So, in conclusion, if Congress is determined that U.S. dolphin 

conservation policy needs changes for environmental purposes, an 

issue on which I would reserve judgment to experts in those areas, 

then I urge Congress, if it is going to make those changes, to make 

them via the Miller bill, H.R. 2856. That bill makes major changes 

to the MMPA, that I understand environmental and conservation 

experts say are important. 

It does repair several technical GATT problems that are not essential to the effective operation of U.S. dolphin protection. But 

what it does not compromise on is that the U.S. Congress has the 

sovereign right to set domestic standards for our market. And it 

does not compromise on enforceable domestic standards that ensure dolphin conservation. Thank you. 

[Statement of Ms. Wallach may be found at end of hearing.] 

Mr. SAXTON. Thank you very much. We will suspend for a few 

minutes. We will be back as soon as possible. Thank you for your 

patience. [Recess.] 

Mr. SAXTON. Well, somehow when these things happen, it reminds me of a business partner that I had at one time who was 

never on time, and it always bothered people to not have him 

there. Anyway, we are sorry. So, Mr. Hall, I believe we are at the 

point in the program where we will ask you to testify. 

STATEMENT OF DR. JOHN D. HALL, COASTAL AND OFFSHORE 

PACIFIC CORPORATION 

Mr. JOHN HALL. Thank you, Mr. Chairman. I appreciate the opportunity to be here today. I am here both as a marine biologist 

and as a commercial fisherman. I currently have a tunaboat, not 

a purse seiner, but a tunaboat that is fishing about 1,000 miles 
256 

east of New Zealand. And so I come with a background of both academia as well as commercial fishing. 

And what I have heard here today-1 think you have my testimony for the record-but it seems to me that what I have heard 

here today is a great deal of common interest in terms of reducing 

mortalities on dolphins that are set on in this fishery, as well as 

reducing those nondolphin elements of bycatch that are currently 

in the fishery. 

I think that it is important that we give some consideration to 

moving forward and trying to put together a plan that will do both 

those things. I have heard today people comment that it would be 

very worthwhile to reduce or eliminate sets on dolphins. I think 

that is a worthwhile goal. 

I think that we need to work as hard as we can, and as diligently 

as possible, toward reducing nondolphin bycatch specifically in log 

and school sets. And it is my understanding that a substantial por- tion of the log set bycatch has been, and is currently occurring, 

during a relatively short period of the year-a three or four~month 

period-in the area from about Costa Rica to northern Ecuador. If 

we were able to encourage the fishermen to reduce or eliminate log 

sets in that area during that short portion of the year, that we may 

see a very substantial reduction in turtle, shark, small tuna 

bycatch that are associated with those inshore log sets from Costa 

Rica to northern Ecuador. 

I don't think it is a silver bullet, but I think it is a worthwhile 

first step. It is the kind of time area management option that has 

been used in many, many fisheries. It has been used in Alaska 

where I have fished for a number of years. It has been used all 

over the world, and I certainly think it is something that we should 

give some serious consideration to. 

I think it is important to remember that it has taken at least 25 

years for us to make dramatic inroads into the reduction in dolphin 

mortalities, and it is unreasonable, I think, to believe that we will 

make dramatic reductions in nondolphin bycatch in a very short 

period of time. We need to do whatever we can to implement programs that will reduce nondolphin bycatch, while we move forward 

with continuing to reduce dolphin bycatch. 

I note that the National Marine Fisheries Service-! guess the 

current term is NOAA Fisheries--have been funding work research 

on alternatives, including the use of LIDAR and radar as techniques to find large yellowfin tuna schools that are not associated 

with dolphins. 

At least one recent report I have read suggested there has been 

some substantial progress made there, and that, it seems to me, is 

a very reasonable place to put some effort to continue looking at 

alternatives such as LIDAR and radar to look for schoolfish that 

are not associated with dolphins. 

In addition, from another NOAA fisheries report I just read, I 

understand that the harvest of large skipjack and large to quite 

large bigeye tuna from FADs that had been set by the fishermenhomemade FADs that were set off northern EcU.ador-has increased the harvest in that area by 600 percent in a single year. 

And in looking at the yield of bigeye over the first three quarters 

of 1995, it appears that almost all of the nations that are fishing 
257 

in the Eastern Tropical Pacific with purse seines have increased 

their harvests of bigeye tuna dramatically. I have not yet seen any 

bycatch data for that, but it is my understanding that those sets 

on those FADs were occurring in very short periods of time. 

For instance, in one report, none of the FADs were at liberty 

more than 36 days and some very substantial fishing occurred after 

these buoys had been in the water only a few days. On at least one 

trip, the purse seiner that reported the catches was catching 200 

tons per set, more than 10 times the normal dolphin catch level of 

yellowfin tuna. 

Now, this was mostly skipjack and bigeye, but it shows howdynamic this fishery has been, and continues to be, in terms of the 

fishermen working to develop new and alternative forms to continue their harvests. 

We need to work incrementally forward, and I think when we 

have made the maximum reduction in dolphin and nondolphin 

bycatch that we can, we may find it is appropriate to review the 

potential tuna harvest under new low levels of bycatch for the eastern Pacific. Thank you. 

[Statement of Mr. John Hall may be found at end of hearing.] 

Mr. SAXTON. Thank you, Mr. Hall. Mr. Walsh, if you would just 

stand by for just one moment. I am told that Ms. Walker needs to 

leave shortly to catch a plane back to California, and I had one 

question that I wanted to ask you before you go. 

We have heard reference made to the dolphin mortality in the 

existing system, and I want to explore this with other members as 

well. But since you have to leave, I would like to ask you now. Can 

you give me your impression based on science and based on your 

experience of what the mortality situation is now relative to dolphins under the current system? 

Ms. WALKER. Well, if I understand your question, Mr. Chairman, 

and as I testified, there has been a decrease in mortality experienced in that fishery. It was 3,300 dolphin in 1995, which represents a 98 percent reduction. And what it shows is that the fishermen are getting better and better in terms of their own practices, 

that the vessel mortality limits are working, and that the program 

is successful. The enforcement of the program is working as well. 

And so we are seeing continued reductions. 

Mr. SAXTON. Does that mean that there is currently still a significant mortality in the system? 

Ms. WALKER. I don't believe it is considered significant. In fact, 

the scientific testimony you heard earlier I believe by Dr. Joseph 

and others as well confirms that it is considered biologically insignificant in terms of the ability of the populations to reproduce and 

the sustainability of the dolphin populations and the health of the 

dolphin populations, and that there are only two stocks that are depleted. The latter is really a phenomena that they believe is going 

to recover in the next year and beyond. 

Mr. SAXTON. The term dolphin-safe conveys the notion that no 

dolphins are killed in the process. Is that true? 

Ms. WALKER. What I was talking about when I was speaking to 

Senator Boxer's remarks is that she said she was encouraging 

through the Miller legislation dolphin-safe practices to be employed. Now, I took it to mean not that there was no fishing al-
258 

lowed, but that she was suggesting some practices which were put in place for the benefit of reduced mortality. 

That is the IATI'C program. That isn't to say that there aren't 

still some dolphin taken, and we recognize that. I wasn't suggest- ing that. It is just that I thought it was less than perfectly candid 

to suggest that we do not now have dolphin-safe practices in effect. 

But the way the senator would define dolphin-safe, it would actually preclude any fish coming from the EPO fishery in association 

with dolphin to be sold in the United States. And, in fact, that 

would be the same under the new legislation that she proposes as 

under the current practice. 

So it wouldn't represent a change, but what I am saying is the 

IATTC program both as carried forward in the past under the La 

Jolla Agreement, under the Panama Declaration, and as carried 

forward in H.R. 2823 does encourage dolphin-safe practices in the 

sense that the practices are there for the benefit of reducing dolphin mortality. 

And, in fact, 85 percent of the sets result in no dolphin mortality 

at all, and I would consider that dolphin-safe, although I understand there is an issue of stress that some say we will never have 

an answer to. But I doubt if there is a stress-free life whether you 

are in the ocean environment or in the human environment, and 

I am not so sure they will ever be able to distinguish between 

stress from a dolphin running from a killer whale or stress from 

a dolphin running from a net. 

Mr. SAXTON. Just let me follow up with one more quick question. 

You mentioned the 85 percent factor, in that 85 percent of the sets 

are, in fact, totally dolphin-free. 

Ms. WALKER. Without dolphin mortality. Correct. 

Mr. SAXTON. So that in the other 15 percent, there is some dolphin take? 

Ms. WALKER. That is the 3,300-the 3,300 dolphin that were 

taken in the fishery last year. Mr. SAXTON. OK. Well, listen. Thank you very much. 

Ms. WALKER. I will be here for a while so I am sorry to have 

taken myself out of order. 

Mr. SAXTON. OK. No problem. Mr. Walsh, please proceed. 

STATEMENT OF JAMES P. WALSH, AMERICAN TUNABOAT 

OWNERS COALITION 

Mr. WALSH. Thank you, Mr. Chairman. I appreciate the oppor- tunity to appear before you today. And, as you know, you have seen 

me before on this issue. Last June, we submitted significant-well, by weight anyway-testimony to this subcommittee. 

I represent the American Tunaboat Owners Coalition who are interested in seeing a change in the nation's marine mammal protec- tion policies such that their opportunities for fishing can be broadened, and they can be rewarded for pioneering this activity, leading the world in reducing dolphin mortality, and then, unfortunately, because of legislation passed in 1992, effectively have been barred 

from this fishery with respect to the encirclement of dolphins. We have set forth in our testimony the reasons why we believe 

change is needed. I think it would interest you to know that at the 

time that this agreement was negotiated, the Panama Agreement, 
259 

it was quite unique, and I have been involved in these fishery matters for about 25 years, ever since I started on the Senate Commerce Committee for Senator Magnuson. 

This is very unique because it was a negotiation with environmental groups and with other countries, with a view to establishing the kind of regime that we, the tuna fishermen, have always 

felt necessary to take care of this complex international problem. 

We did not participate in that negotiation. I think it is important 

for people to know that. We support the outcome, however. 

With respect to the trade issue, as best I can recall, the U.S. 

Trade Representative's Office did not participate in the negotiation 

either. It was I think a negotiation related to how we best manage 

international fisheries on a comprehensive and common basis. It is 

not unlike what was done in the Tuna Commission before. It is not 

unlike what has happened at the Whaling Commission. We all get 

together. We all have a common rule. 

We support the outcome because the tuna industry, our fleet, 

does not survive without access to international fishing areas. All 

our fish is caught somewhere else, either on the high seas or in 

other exclusive economic zones. Earlier today was mentioned the 

South Pacific Tuna Treaty. The South Pacific Tuna Treaty was negotiated by the Reagan Administration, approved again by the 

Bush Administration, and its funding has been continued under 

this Administration. 

Why? Because that treaty agreement was the fundamental issue 

which brought about a better relationship in the South Pacific 

where we had problems with moving our nuclear weapons. As a 

consequence, at the islanders' demand, a tuna treaty was developed 

under which we pay fees. But the United States Government also 

pays foreign aid associated with the treaty. It is a foreign aid program. It is not something that you could call a subsidy. The foreign 

aid may very well be there with or without the tuna treaty. 

We also believe that the ban on encirclement is discriminato·ry. 

Every fishery in this country is provided the ability to operate their 

gear on the basis of the principles in the Marine Mammal Protection Act, zero mortality or approaching zero mortality or that rate. 

This is the only fishery in which American fishermen did their 

job and have not created a conservation problem, as has occurred 

in some other fisheries. And what was their reward? Well, what 

has been done is not much different than the way Congress treats 

those moving illegal drugs or arms. We think this new agreement 

is the proper way to manage the fishery. 

We greatly appreciate the leadership of the environmental 

groups because we are not powerful enough to effect this on our 

own. We are small, and we do not control these kinds of complex 

issues. But in the end, tuna fishermen have usually been the victims. 

I do want to get down to the heart of what this issue is all about 

and the differences in this legislation because it really comes down 

to a couple of points. And I can tell you that I don't think I could 

have bet my year's salary to look at pieces of legislation-both of 

them framed in this way-a year ago. Both offer quite dramatic 

changes, and people are beginning to move in their direction-in 

each direction. 
260 

The number one difference is the fact that there is a ratchetdown principle in Mr. Miller's bill. That ratchet-down principle basically would be dictated to countries which have agreed on another 

principle equally as strong almost. 

That ratchet-down principle would force movement away from 

setting on dolphins to other bycatch problems. We know that will 

happen. It doesn't take a rocket scientist, and it doesn't take definitive, fmal evidence to use the best available scientific information 

to make a management decision of this kind. 

Secondly, and the biggest difference we have is the fact that in 

H.R. 2853, dolphin-safe is defined to mean that a particular voyage there was no encirclement. What this means is in the 30 or 40 sets 

on a trip, if you encircle dolphins once, every other set on that trip is deemed dolphin-unsafe. That is to say, if there is fraud involved, the label basically tells 

the public that even though no dolphins were killed in the 39 sets 

where no encirclements occurred, that tuna is still considered dolphin-unsafe. There is no incentive under this definition to do better. It forces the bycatch issue. It will not work, and it will not 

make these countries agree commonly as I think they should. 

In the end, Mr. Chairman, we are greatly pleased with the developments here. We are finding colleagues that before we didn't used 

to have, and we are glad to support them in trying to get this 

through as soon as possible. Thank you, Mr. Chairman. 

[Statement of Mr. Walsh may be found at end of hearing.] Mr. SAXTON. Thank you very much, Mr. Walsh; in fact, thank all 

of you. Mr. Gilchrest, would you like to proceed for whatever time 

you may wish to use? 

Mr. GILCHREST. Thank you, Mr. Chairman. I wish I had another 

couple days to develop my thought process to come up with some 

questions and then have all of us reassemble again and to ask 

those questions. I guess I will start off with Mr. Curtis, Ms. Young, and Mr. Pike, in that order of answering the questions I guess. I just had a thought that I had before I left to go vote, and if 

I don't ask it now, I am going to forget it. So I am going to lookMs. Walker-no-Ms. Wallach, just sort of a friendly thought that 

I had before that may have escaped the group now, you made reference to the supporters of my bill, and I hope Ms. Edwards appre- ciates this-sometimes I can't remember the number either-if you ask me right now, 28, 30-1 couldn't remember it. 

My whole reason for getting into this had absolutely nothing to 

do with GA'IT or NAFTA or trade or the Clinton Administration 

or Republican politics or Democratic politics at all. In fact, I don't 

live in the Eastern Tropical Pacific. I have no tuna voters in my district. And I probably don't even like tuna. But I do see dolphins off the coast every once in a while, and it is neat. So I asked myself 

this morning why did I get involved in this issue, but I did. 

Mr. SAXTON. He asked himself several times this morning. 

Mr. GILCHREST. But, anyway, I just want you to know-and peo- ple can say this so if you can believe it or not, believe it I guess, but first of all, my motivation for getting involved in this stemmed 

from my first involvement with the Magnuson Act and understanding the nature of the importance of the marine environment. 
261 

So sort of to wrap up the point, my whole perspective is dealing 

with, I think, the same thing that George Miller and Barbara 

Boxer want to do, and that is find the best management regime to 

protect our resources for generations to come. And this is the first 

step in that process. There is still room for negotiating in all of 

this. But the motive behind most of us up here is to do the best 

thing we can. 

When we first dropped the Magnuson Act a year or so ago, boy, 

it just raised the hackles of a lot of people. But if it didn't raise 

the hackles of a lot of people, you would have had very little debate, and the debate probably would have been less sophisticated 

and we needed it to be. 

And so we are all in this learning process, and I think that 

maybe our goal is to kill no dolphins, no immature tuna, and no 

turtles, and not to encircle dolphins at all, to leave them stressfree. But in the timeframe that we have, we have to work with 

what we have. And at this point, I have concluded at this pointbut I am still open-minded about it-is to go in the direction that 

we are going. Some of the issues continue to swirl around the labeling. But, anyway-and I didn't even give you a chance to respond. 

Ms. WALLACH. I am very glad that you made the statement you 

did because, in fact, many environmental groups have saidjust that 

as to your intentions for getting involved in this issue. They've said 

it based on your terrific past environmental record. And the reason 

I focused on trade, and thought it was an important thing I can 

contribute to the committee, is because, in fact, in other places in 

the government I would suggest that intentions weren't just about 

dolphins. And that is a very important thing to keep in mind, in 

that inadvertently an entire, different--

Mr. GILCHREST. Oh, sure. It is out there. 

Ms. WALLACH. [continuing]----dialog is playing out that is dire. 

And I think even on this committee, for instance, of Congressman 

Tauzin's and Congressman Ortiz's shrimpers and the level playing 

field that the recent court case got enforced for them or, for instance, the driftnet issues that Congressman Young cares about so 

much. As a trade jurisprudence matter, what would be done by 

your bill would damn, under the same GATI' precedence, the ability of those other policies to exist. 

Mr. GILCHREST. I would like to continue to talk about that to understand the ramifications of what we are doing here. I really 

would. I would like to ask Mr. Curtis and Ms. Young and Mr. Pike, 

starting with Mr. Curtis, what is your differences with the supporters of Mr. Miller's bill in regard to the dolphin-safe definition? It 

seems that Mr. Pike has a problem with us changing the dolphinsafe definition so that consumers won't know what the dolphin-safe 

definition really means. Could you respond to that? 

Mr. CURTIS. Sure. The concern that my organization has with the 

current definition of dolphin-safe, which Jeff Pike and his colleagues would like to see retained, is that it focuses narrowly on 

one fishing technique to the exclusion of other techniques inside 

the Eastern Pacific Ocean, as well as the fishing outside the ETP 

that could result in dolphin mortalities. 

With the exception of focusing on the encirclement technique, 

other tuna that is caught where dolphin have died could come into 
262 

the country-could come into the U.S. as dolphin-safe. There are 

some measures to try and guard against that, but those appear to 

be very weak. So in that sense, our feeling is that when push 

comes to shove, when the consumers sees that dolphin-safe label on 

the tuna can, they belileve, mistakenly, that there weren't any dolphins killed while catching this tuna. 

And I think that there is some misinformation associated with 

that by focusing narrowly on one fishing technique within the ETP. 

We feel that the redefinition focuses more sharply on dolphin 

deaths whether it is through encirclement or if they were to occur 

in setting on logs or setting on schools. We also think that your bill 

as well as any other bill should try and come to grips more sharply 

with the dolphin issue outside the ETP. 

Mr. GILCHREST. Thank you. Ms. Young. 

Ms. YOUNG. Well, you touched upon some of the reasons why we 

believe that your bill is the best bill, and we worked very closely 

with you and with this committee to pass the recent H.R. 39 

amendments to the Magnuson Act which were very clear in calling 

upon the United States to avoid, reduce, and minimize bycatch, 

and that is the language that is mirrored in the Panama Declaration. And we think that is important to move forward as quickly 

as possible and undertake those measures. 

The IATTC has the most extensive data base for bycatch in the 

world, and it is very clear and it has been brought up in testimony 

that we really do know what to do in order to begin to reduce 

bycatch. So that is important. On the other hand, while we are 

doing that, we don't want to create an incentive to shift effort over 

into logs and school sets which, as Dr. Edwards said, have a greater bycatch associated with them. 

So we believe that what would work best is a regime that continues to allow fishermen to fish in the proportions that they always 

have on schools and log sets, create an incentive through changing 

the definition to a no mortality standard to further reduce their 

dolphin bycatch, and mandate reductions of bycatch in logs and 

school sets of other marine life, especially sharks and sea turtles. 

Mr. GILCHREST. Can you comment on that, Jeff? 

Mr. PIKE. I don't necessarily disagree with much of that, but we 

certainly want to see proportions not increase for bycatch. We support that. We think the Miller bill or your bill can be improved to 

focus on that. But, remember, dolphin-safe doesn't just go to ETP. 

It goes to driftnetting. Any tuna caught or fish caught with large 

scale driftnets is not dolphin-safe. And the definition extends beyond the---

Mr. GILCHREST. Let me interrupt just for a second so I have it 

clear in my mind. 

Mr. PIKE. Look at the definition in the code of what dolphin-safe 

is. 

Mr. GILCHREST. Well, Ms. Wallach mentioned this too. Correct 

me if I am wrong. I think you are alluding to the fact that if our 

bill became law, we would have problems in other fisheries as aresult of the precedent we are setting, and I am not sure I understand that. 

Mr. PIKE. No. What I meant to say, and I apologize if I didn't, 

was that when we dealt with the issue of defining what dolphin-
263 

safe was-because as you remember we had the voluntary canners 

policy. Then in '92 we actually defined the term. We dealt with not 

just the ETP purse seine fishery, but we dealt with other fisheries 

as well. 

And Cliff indicated that it was really focused just in the ETP on 

one type of fishery. That is not really the case. And I don't mean 

to put words in his mouth, but we looked at destructive types of 

fishing methods, and we determined-you determined-the Congress that large scale driftnet fishing was a destructive type that 

you did not want to tolerate. Mr. GILCHREST. Right. 

Mr. PIKE. You also made a determination that intentionally setting on dolphins was not considered dolphin-safe. We support low 

mortalities. We support a lowering and--

Mr. GILCHREST. So then the focus now at least in my bill from 

your perspective is that we are violating that earlier agreement by 

focusing on dolphins and unnecessarily then creating stress on the 

dolphins when they get encircled, even though there is a tremendous movement without observers and the whole ball of wax to get 

those dolphins out of the net as soon as possible. Is that--

Mr. PIKE. U.S. fishermen have always and continually make 

progress in getting dolphins out. But, remember, we are focusing 

on the technique. It is the only technique-it is close to commercial 

whaling, quite frankly. If you want to kill marine mammals, go out 

target them, encircle them. You know that you are going to kill 

some. It is the technique. 

Mr. GILCHREST. So I guess then the problem we have is chasing 

dolphins--

Mr. PIKE. Yes, encircling them. 

Mr. GILCHREST. [continuing]--to catch the tuna? 

Mr. PIKE. Yes. 

Mr. GILCHREST. Encircling the dolphins? 

Mr. PIKE. Yes. 

Mr. GILCHREST. Causing stress which--

Mr. PIKE. Or injury. 

Mr. GILCHREST. Or injury or even death? 

Mr. PIKE. Unobserved. Right. 

Mr.- GILCHREST. Versus-your problem with that is legitimizing 

the practice with the Panama Declaration and this legislation because you feel it violates past practices and sets a very poor precedent as opposed to not honoring-and maybe that is not a good 

word-or not following through with the Panama Declaration, not 

passing this legislation, continuing the law as it stands now, under 

the assumption that the progress we have made with other dolphin-tuna fishermen will not reverse itself. 

And I think maybe-and some of the people on the panel could 

correct me if I am wrong-some of you feel that if we don't honor 

the La Jolla Agreement with the Panama Declaration through U.S. 

legislation, that we will reverse the progress that is made with 

more dolphin kills and more bycatch deaths. 

And some feel that we won't reverse the progress, that we can 

continue to find new techniques to reduce bycatch on school sets or 

log sets, and that our friends in Latin America will not begin to 

look for other markets and pursue the matter in which they have 
264 

been catching dolphins but maybe-! mean, tuna-and kill more 

dolphins. I don't know if.--

Mr. PIKE. I think you almost got it. 

Mr. GILCHREST. I think I understand what I am saying. 

Mr. PIKE. Let me just add and then I will be quiet-is that Senator Biden even suggested that he would look at the proEosition of 

letting in dolphin-unsafe tuna. That is to say if you don t encircle, 

it is dolphin-safe. If you do encircle and you don't kill any dolphin, 

we will let it come in. But just don't put that dolphin-safe label on 

it. Every time the American public has spoken, they have spoken 

loudly about nonencirclement. 

Mr. GILCHREST. Well, see, I am not suggesting that. 

Mr. PIKE. All right. But let me just suggest that if you-we 

talked about these judgments. We talked about bycatch versus dolphin. We talked about, you know--

Mr. GILCHREST. Well, I don't want to take up too-l think and 

I don't want to narrow your answer down, but I am just trying to 

find specifically where we know very clearly the point at which we 

disagree. Mr. Curtis? 

Mr. CURTIS. Let me just add, I think your point is an excellent 

one, and Dr. Joseph has touched on it as well, that there is a risk 

that these other countries will walk away from the wholly voluntary approach. We don't have a crystal ball to know that forcertain, but we do know for a fact that there is a substantial number 

of those other countries or substantial number of boats out there 

continuing to set on dolphins. They can't come in-bring that tuna 

into the U.S. But that practice continues. 

And, yes, that doesn't address the label issue, but dolphins are 

being affected in relation to those fisheries. We think if we can get 

a multilateral instrument to put a set of agreed controls on there 

that we are going to influence those practices a lot more and push them--

Mr. GILCHREST. I just got the signal to wrap it up. But maybe 

Ms. Walker can wrap it up for me, and I am done. Thank you, Mr. 

Chairman. 

Ms. WALKER. Well, I would just like to say one thing, addressing 

the issue of the other fisheries and the issue of what is dolphinsafe and I think supporting something Mr. Curtis said. The only 

independent observers are in the Eastern Tropical Pacific. 

The other fisheries-in the other tuna fisheries in the world for 

dolphin-safe all it takes is the captain's statement that there were 

no dolphins caught. So the only place you really have a verification 

by an independent observer that indeed no dolphins were caught 

is in the Eastern Tropical Pacific fishery. 

The other point that I would like to make in response to what 

you said is that what we have seen over time is that the dolphin 

fishery is there. It will remain there. 60 percent of the tuna caught 

is caught in association with dolphins-so the point that Dr. Joseph made earlier. 

And so that fishery is there, and to say that we are going to deny 

an opportunity, we may deny an opportunity to U.S. fishermen, but 

there will be fishermen that will take advantage of that market. 

And the question is will it be under a program like the IATTC 

which is embodied in your bill, or will it be under some other pro-
265 

gram that other nations themselves adopt as Dr. Joseph suggested 

the Latin countries are considering. Thank you. 

Mr. SAXTON. Thank you. And, Mr. Studds. 

Mr. STUDDS. Thank you, Mr. Chairman. I was going to say I regret-! don't totally regret that I was unable to be here for the entire five hours. I have a horrible feeling that I didn't miss much 

that I have not heard before. I apologize to those who I missed. 

Actually, I just had to come back and look at Jeffrey just once 

in that position. Mter all these years it is about time someone paid 

you for what you are doing is all I can say-1 am sure not enough. 

We can discuss that later. You do very well there. 

I think Jeffrey and I are probably amongst the very few, maybe 

not the only two, but the very few that have actually discussed the 

situation with the dolphins and can speak with some authority 

with respect to personal conversations with Flipper and his cousins. 

Mr. PIKE. Save it for the book. 

Mr. STUDDS. Yes. Just warn you about that though. We have had 

extensive conversations at sea with the critters in question, and 

they have some very strong feelings about this. I only have one 

question. It is for Mr. Curtis. I am a little confused by Greenpeace's 

position. I would like to read to you, which you probably are expecting me to do, from a Greenpeace statement submitted to our 

subcommittee during the debates on this matter in tuna labeling 

in 1990-the statement also supported I think by the Center for 

Marine Conservation. 

And I quote, "The practice of encircling dolphins and consequently killing millions has been occurring for over 30 years. Attempts to fine-tune technology and/or reduce mortality have involved numerous extensive and costly hearings,"-God knows that 

was true-"legislation, and litigation. These mortality estimates do 

not count animals that may die because of crushed bones, flipper, 

or rostrum loss, or other mortal injuries, nor do they take into effect deaths which may occur due to separation from mothers, other 

pod members, or due to stress." 

And I continue to quote, "The problem is that as long as dolphins 

are chased and encircled as a means to catch tuna fish, there will 

be dolphins dying from the practice. We recognize that much of the 

reported mortality is not due to inept or insensitive skippers. Instead, it is due to an inherently flawed fishing practice." 

And in your written testimony for today, you state that, 

"Greenpeace's position has always been and continues to be that 

there should be an end to encirclement of dolphins." I don't quite 

understand, frankly, how you reconcile those clear statements with 

support of an agreement that actually as I read it encourages chase 

and encirclement by calling it safe for dolphins and is likely to encourage increased ETP fishing effort using that method. And I 

would be interested to hear your reflections on that. 

Mr. CURTIS. Let me start from your last point, Congressman 

Studds. We don't think there is likely to be an increase in dolphin 

deaths under H.R. 2823. We feel, as you correctly read from our 

statement today, that there should be an end to encirclement of 

dolphin. We said that in 1990. We say that today. The reality is 
266 

that dolphins continue to die. The issue of the strategy you take 

to reach that is a tool. Our goal is the best protection for dolphins. 

We are at a critical point in time, at a crossroads. Do we continue with the current approach, with a stalemate vis-a-vis other 

nations who continue to set on dolphins in their fishing effort with 

the U.S., having very little, if any, ability to influence their behavior other than to build a brick wall at our border to address that 

problem? 

Or do we look for a more effective way to end encirclement by 

moving into a multilateral regime where we can have some leverage and enforcement follow-up behind our concern for the problem? 

We· are still committed, as we have always been, to ending encirclement. We happen to think that Congressman Gilchrest's bill takes 

us in that direction more effectively than remaining lodged with 

the status quo of the current dolphin-safe law. 

Mr. STUDDS. And how is it that you propose to end encirclement? 

Are you proposing a complex set of renegotiations or what? The 

last time the State Department assured us something would happen, you may recall, with regard to moratoria, somehow it didn't 

happen. 

Mr. CURTIS. As we all know, and I think occasionally we have 

maybe misstated that somehow the Panama Declaration is a binding agreement, it is a stage setter for a negotiation that has to happen. It sets the parameters for it. In addition, H.R. 2823 as well 

as H.R. 2856 have some important qualifiers that feed into that. 

That negotiation has to occur, and in that context, we believe it 

will be possible to achieve some stronger enforcement measures. 

There are additional things that could be added. We could require video cameras on board the vessels. We could require sensors 

in the holds to make sure that dolphin-safe and dolphin-unsafe 

don't get mixed. Things that aren't even yet being done we need 

to continue to push to make sure that we are doing as much as we 

can to ensure that dolphin-safe is really dolphin-safe. 

Mr. STUDDS. Let me just observe, if there is a lesson in thisI mean, I am willing to credit virtually everybody at the proverbial 

table with the same long-term goals here. I felt a little sympathy 

with Senator Boxer earlier when she observed that she thought 

this was one problem we had solved, and that there is, God knows, 

no shortage of problems before us these days to be solved, but we 

don't hire people to go around finding new ones just as a challenge. 

But having said that, quite apart from the merits or demerits of 

the various organizations and positions at the moment, if there is 

any lesson to be learned here, for the Administration in particular, 

it seems to me and for the various organizations concerned, it is 

that when one is-I was going to say mucking around with-when 

one is dealing with an issue as complex, with as long a history as 

this, with as much emotion and controversy and complexity and 

statutory and other history behind it-legislative history-it might 

be wise before presenting a fait accompli to the Congress to have 

talked to someone therein, and maybe all of this could have been 

avoided in the first place. Thank you, Mr. Chairman. 

Mr. SAXTON. Before we conclude, I would just like to ask one 

more quick question. Somebody said something that made me curl-
267 

ous. Someone mentioned gillnetting. I am just curious. Under current law, is gillnetting considered dolphin-safe? Mr. PIKE. I mentioned large scale driftnet fishing which any tuna 

caught with a large scale driftnet is not considered dolphin-safe. Mr. WALSH. Gillnetting is considered dolphin-safe. Yes. If you caught tuna in the United States gillnetting, it would be dolphin- safe because the whole definition is on encirclement. 

Mr. SAXTON. Is that another subject that we need to look at? 

Mr. WALSH. There is not much of that that goes on. In fact, if 

you look at dolphin-safe, the only place that encirclement occurred 

was in the Eastern Tropical Pacific. All albacore tuna is caught on 

a line unless it was caught in a high seas gillnet. Line caught tuna 

was always dolphin-safe. The vast majority of the tuna imported in 

this country and canned in U.S. processing plants was always dolphin-safe, caught with practices that did not ensnare dolphins. Really, the only issue has always been encirclement. That is why what these definitions do is to convince the public that there are 

all kinds of other practices that threaten dolphins that never did. 

Or under this new bill by Mr. Miller, it basically says that if one 

set out of your 40 was encirclement, all the rest of them, even 

though you didn't encircle any dolphins, is dolphin-unsafe. So you have created the reverse problem, which is you are misleading the public into believing ·that those practices were unsafe 

when they weren't. It is a bit of a more complex problem, and that 

is why the new definition is much, much more precise and much 

more effective if you are trying to tell the public what is safe. 

Mr. SAXTON. Well, thank you all very much. It has been a very interesting day, even though I must say it has been long. Let me 

ask you if you would each agree to answer additional questions that might be submitted to you in writing. We appreciate that very much. Let me also ask unanimous consent that the record be kept 

open for five days so that members may submit additional statements or questions. And so thank you very much for being here, and the hearing is adjourned. [Whereupon, at 3:20p.m., the subcommittee was adjourned; and 

the following was submitted for the record:] 
268 

STATEMENT BY SENATOR JQSEPH R. BIDEN. JR. 

SUBCOMMITTEE ON FISHERIES, WILDLIFE, & OCEANS 

HOUSE RESOURCES COMMITTEE 

FEBRUARY 29, 1996 

FIRST LET ME THANK THE SUBCOMMITTEE, PARTICULARLY CHAIRMAN 

SAXTON, FOR INVITING ME TO TESTIFY THIS MORNING. 

AS THE SENATE SPONSOR OF THE "DOLPHIN-SAFEH LABELING LAW 

FIVE YEARS AGO, I HAVE A KEEN INTEREST IN THE ISSUE OF DOLPHINSAFE TUNA HARVESTING. I AM ESPECIALLY PLEASED TO JOIN MY 

LONGTIME ALLY IN THIS ENDEAVOR MY DISTINGUISHED COLLEAGUE FROM 

CALIFORNIA, SENATOR BARBARA BOXER. 

IN 1990, THEN-CONGRESSWOMAN BOXER AND I WORKED TOGETHER TO 

PASS THE "DOLPHIN PROTECTION & CONSUMER INFORMATION ACT," A 

LANDMARK LAW WHICH REVOLUTIONIZED THE WAY IN WHICH AMERICAN, AND 

MANY FOREIGN, TUNA BOATS HARVEST TUNA. 

UP TO THAT POINT, HUNDREDS OF THOUSANDS OF DOLPHIN WERE 

SENSELESSLY SLAUGHTERED EVERY YEAR BECAUSE OF THE USE OF GIGANTIC 

PURSE SEINE NETS. THE PUBLIC OUTCRY WHICH RESULTED FROM THIS 

PRACTICE -- PARTICULARLY THE GRASS ROOTS CAMPAIGN WAGED BY 

MILLIONS OF AMERICAN CHILDREN -- WAS SIMPLY ENORMOUS. 

LITERALLY TENS OF THOUSANDS OF LETTERS, TELEGRAMS AND PHONE 

CALLS POURED INTO CAPITOL HILL. THE MESSAGE HEARD WAS LOUD AND 

CLEAR: DON 'T PERMIT THIS NEEDLESS MASSACRE TO CONTINUE. 

BECAUSE OF THIS LAW, STARKIST, AND SHORTLY THEREAFTER 

CHICKEN OF THE SEA, AND BUMBLEBEE, ANNOUNCED A VOLUNTARY 

PURCHASING BAN AGAINST ALL TUNA CAUGHT IN A MANNER, NAMELY, PURSE 

NETS, HARMFUL TO DOLPHINS. 

OUR LAW, AND THE TUNA INDUSTRY' S VOLUNTARY ACTION -- AGAIN, 

LET ME STRESS, VOLUNTARY ACTION -- HAVE RESULTED IN AN ASTOUNDING 

DROP IN THE NUMBER OF DOLPHIN MORTALITIES, FROM MORE THAN 112,000 

IN 1986 , TO JUST OVER 4,000 IN 1994 . 

A MIRACULOUS 96 PERCENT DECREASE. 

MILLIONS OF AMERICAN CONSUMERS NOW PURCHASE TUNA WITH A 

CLEAR CONSCIENCE, KNOWING THAT THE METHOD EMPLOYED DID NOT HARM 

THESE GENTLE SEA MAMMALS. 

SIMPLY PUT, THIS LAW HAS BEEN A REMARKABLE SUCCESS STORY . 

AND ITS POWER LIES NOT IN SOME BUREAUCRATIC REGULATORY AGENCY, 

BUT IN THE HEARTS AND SOULS OF AMERICAN CONSUMERS, AND IN THE 

VOLUNTARY ACTION OF AMERICAN INDUSTRY. 
269 

UNFORTUNATELY, H.R. 2823 PENDING BEFORE. THIS SUBCOMMITTEE, 

AND A COMPANION BILL INTRODUCED IN THE SENATE, CHANGE THE 

DEFINITION OF THE "DOLPHIN-SAFE" LABEL. THESE PROPOSALS WOULD 

DRAMATICALLY DIMINISH THE PROTECTION THAT THE LAW NOW PROVIDES. 

WHILE I AGREE THAT WE NEED TO OPEN OUR MARKET TO OTHER 

"DOLPHIN-SAFE" TUNA -- REGARDLESS OF THE NATIONAL AFFILIATION OF 

THE TUNA BOAT -- I ADAMANTLY DISAGREE WITH THOSE WHO SAY THAT WE 

MUST CHANGE THE DEFINITION OF "DOLPHIN-SAFE . " 

OUR POLICY OF OPEN MARKETS IS INTENDED TO GIVE AMERICAN 

CONSUMERS MORE CHOICES AND LOWER PRICES. BUT, WE DO NOT, AND 

SHOULD NOT, REDUCE OUR ENVIRONMENTAL PROTECTIONS IN PURSUIT OF 

SOME ABSTRACT IDEAL OF FREE TRADE . 

I HAVE NOT HEARD FROM A SINGLE CONSUMER IN AMERICA ASKING 

FOR A CHANGE IN THE LITTLE BLUE LABEL. NOT A SINGLE CONSTITUENT 

HAS APPROACHED ME AND SAID, "SENATOR BIDEN, WE DON'T WANT TO KNOW 

WHETHER DOLPH:NS WERE KILLED IN THE HARVESTING OF TUNA." "PLEASE 

CHANGE THIS LAW." 

WE HAVE HEARD, HOWEVER, FROM OUR CENTRAL AND SOUTH AMERICAN 

NEIGHBORS WHO DON'T WANT, OR ARE UNABLE, TO COMPLY WITH OUR LAWS. 

TO OUR FRIENDS I SIMPLY SAY, "AMERICA WILL NOT COMPROMISE ITS 

ENVIRONMENTAL LAWS AS A PRECONDITION TO TRADE." 

THE BOXER-EIDEN-MILLER BILL REWARDS COUNTRIES THAT HAVE 

TAKEN STEPS TO DECREASE DOLPHIN MORTALITIES, BY REPEALING THE 

CURRENT EMBARGOES AND OPENING OUR MARKET -- LITERALLY THE MOST 

LUCRATIVE MARKET IN THE WORLD -- TO ALL TUNA CAUGHT IN A 

"DOLPHIN- SAFE" MANNER. 

BUT BECAUSE THERE IS NO WAY TO GUARANTEE THE CONTINUED 

SUCCESS IN PROTECTING DOLPHINS, OTHER THAN THE CURRENT BAN ON THE 

USE OF GIGANTIC PURSE SEINE NETS , OUR BILL DOES NOT CHANGE WHAT 

"DOLPHIN- SAFE" MEANS . 

FURTHER MORTALITIES WOULD BE PARTICULARLY HARMFUL FOR TWO 

SPECIES -- THE EASTERN SPINNER AND THE NORTHEASTERN OFFSHORE 

SPOTTED -- THAT ARE NOW LISTED AS DEPLETED DUE TO STOCK DECLINES 

ASSOCIATED WITH PURSE SEINE NET FISHING. 

CONSUMERS MUST BE CERTAIN THAT WHEN THEY· LOOK ON THE 

SUPERMARKET SHELF AND SEE A TUNA CAN MARKED "DOLPHIN-SAFE," IN 

FACT THAT IS TRUE. 

OUR BILL DOES NOT CONFUSE CONSUMERS, AND IT DOES NOT TAKE 

ADVANTAGE OF THEIR GOOD INTENTIONS BY CHANGING THE CURRENT LABEL. 

PROVISIONS OF OUR BILL ALSO REQUIRE OUR CENTRAL AND SOUTH 

AMERICAN NEIGHBORS TO ENTER THE INTERNATIONAL AMERICAN TROPICAL 

TUNA COMMISSION, A UNIQUE, MULTILATERAL AGREEMENT FOR THE 

SUSTAINABLE USE OF THE EASTERN TROPICAL PACIFIC OCEAN. 
270 

FOR THE FIRST TIME, A NEEDED RESEARCH PROGRAM KILL DETERMINE 

THE EFFECTS OF CHASING AND ENCIRCLING UPON THE HEALTH OF 

DOLPHINS. 

OUR LEGISLATION ALSO IMPLEMENTS THE RECENTLY-SIGNED PANAMA 

DECLARATION, THEREBY ELEVATING THE NOW VOLUNTARY LA JOLLA FISHERY 

MANAGEMENT AGREEMENT, TO THAT OF AN INTERNATIONALLY BINDING 

ACCORD. 

OUR BILL IS CONSISTENT WITH OUR INTERNATIONAL TRADE 

TREATIES, INCLUDING THE GENERAL AGREEMENT ON TARIFFS AND TRADE 

(GATT) . 

LASTLY, WE REWARD AMERICAN TUNA BOATS WHICH HAVE BEEN PUSHED 

INTO THE WESTERN TROPICAL PACIFIC OCEAN . THESE SHIPS CAN COME 

BACK INTO THE EASTERN TROPICAL PACIFIC OCEAN AND FISH IN A 

DOLPHIN-SAFE MANNER FOR THE U.S. MARKET. , 

THE BOXER-BIDEN-MILLER BILL IS SUPPORTED BY 70 NATIONAL AND 

INTERNATIONAL ENVIRONMENTAL GROUPS INCLUDING THE SIERRA CLUB, THE 

HUMANE SOCIETY, PUBLIC CITIZEN, THE FUND FOR ANIMALS, AND EARTH 

ISLAND INSTITUTE. 

WITH ALL THE PROBLEMS WE FACE TODAY, LABELING ON TUNA FISH MAY 

NOT SEEM ALL THAT CRITICAL . BUT IT IS IMPORTANT TO THE AMERICAN 

CONSUMER, IT IS IMPORTANT TO THE FUTURE SURVIVAL OF THE DOLPHIN, 

AND IT IS AN IMPORTANT STATEMENT ABOUT OUR COMMITMENT TO RESPECTING 

THE ENVIRONMENT WHICH IS THE GREATEST LEGACY WE WILL LEAVE TO OUR 

CHILDREN. 

I THANK THE SUBCOMMITTEE. 

### 
271 

STATDmNT BY SBNATOR BAR.BARP. BOXD. 

Subcommittee on Pi•herie•, Wildlife and Ocean• 

Hou•e Re•ource• Committee 

February 29th, 1996 

Mr. Chairman, I am pleased to be here today to testify 

before your subcommittee. I would like to make some brief 

comments and also request that you insert my written statement 

into the record. 

Some of us here today have for years worked to resolve the 

tuna/dolphin problem, including myself and Senator Biden, 

Congressman Miller, Congressman Studds, and Chairman Saxton. And our approach has worked . It is a great success story that we should be very proud of . 

In 1990, the Ameri can people spoke . They wanted to end the 

deaths of hundreds of thousands of dolphins every year associated 

with tuna fishing and called for an end to tuna caught by chasing 

and capturing dolphins . 

Tuna processing companies listened and announced that they 

would only accept tuna that had been caught without harassing 

dolphins. 

Congress listened and enacted a definition of "dolphin safe" 

tuna fishing that is scientifically defensible. Senator Biden 

and I sponsored the Senate and House versions of the legislation 

that defined "dolphin safe • tuna fishing as fishing practices 

where dolphins are not chased or encircled with nets during a tuna fishing trip . 

Our legislation enacted for several reasons: 

(1) for the consumers, who were opposed to the encirclement 

of dolphins with purse seine nets and wanted guarantees that the 

tuna they consume did not result in harassment, capture and 

killing of dolphins; 

(2) for the U.S. tuna companies, who wanted a uniform 

definition that would not undercut their voluntary efforts to 

remain dolphin-safe; 

(3) for the dolphins, to avoid harassment, injury and deaths 

by encirclement; and 

(4) for truth in labeling . 

Congress enacted the "dolphin safe " definition for all the 

right reasons in 1990, and those reasons are still valid today. 

Today, the $1 billion u .s . canned tuna market is a "dolphin 

safe" market. Consumers know that the "dolphin safe" label means that dolphins were not harassed or killed. 
272 

The Miller/Boxer/Biden bill retains the current definition 

whereas the Gilchrest/Cunningham and Stevens/Breaux bill guts it. 

I firmly believe we chose the right definition in 1990 and we must stick with it . 

The Gilchrest/Cunriingham and Stevens/Breaux bill redefines 

"dolphin safe" to allow dolphins to be chased, and encircled with 

purse seine nets as long as there is no "observed mortality". 

Observed mortality is a tricky issue that leaves room for errors and a lot of judgment calls. What if the dolphin isn't quite 

dead yet? Injury to dolphins often occurs and can lead to 

eventual death. We don't know for sure that dolphins don't 

suffer from the constant chasing and encircling that they are subjected to. 

I believe that the definition of "dolphin safe" should not 

be changed until we know for sure that setting purse seine nets on dolphins and then freeing them is "dolphin safe" . I urge 

members of this committee to take the time to watch the videos on the practice of encircling dolphins. There is no scientific 

evidence proving it is not harmful. No one can tell me that the 

stress of relentless high speed chasing, and the encircling and 

netting is dolphin safe practice. It isn't. It would be a lie 

to call it dolphin safe. It would be consumer fraud. You can't 

tell me that the American people and the millions of school 

children who pressed for an end to the harassment and injury and 

death of dolphins will stand by and let us call that dolphin 

safe. 

The Miller/Boxer/Biden bill embraces the positive aspects of 

the Panama Declaration, lifts the U.S. country by country 

embargo, and gives all tuna fishermen the opportunity to export 

to the u.s. market as long as they use dolphin safe practices. 

In other words, we open the U.S. markets and comply with 

international trade agreements without gutting u.s. dolphin 

protection laws. I believe it is a good compromise that is in 

the best interest of the American consumer, dolphins, and our U.S. tuna processing industry. 

Our bill is supported by 70 organizations representing over 5 million people, including the Sierra Club, the Humane Society 

of the United States, Earth Island Institute, Public Citizen's 

Global Trade Watch, American Society for the Prevention of 

Cruelty to Animals, Friends of the Earth, International Dolphin 

Project, and Defenders of Wildlife. 

It is also supported by the Citizens Trade Campaign which 

consists of organizations including the AFL-CIO District 11, 

International Brotherhood of Teamsters, Federation for Industrial 

Retention and Renewal, Institute for Agriculture for Trade 

Policy, National Consumers League, Public Citizen, and the Pure 

Food Campaign. 
u.s. canners have not taken a formal position on any 

legislation, but they have clearly stated their firm support for 

the current definition of "dolphin safe" . 

I firmly believe that our bill is a responsible alternative 

to the Gilchrest/Cunningham and Stevens/Breaux bill. We say - look at the science first - then make changes to U. S . law. We 

say - let's encourage and help those who are fishing "dolphin 

safe " and canning "dolphin safe " by opening the U.S market to 

them. We say - let's not sacrifice our dolphin protection laws 

in the name of trade. 

Let me briefly explain other major provisions and outcomes 

of the Miller/Boxer/Biden bill: 

(l) It requires that the Panama Declaration and its 5,000 

cap on dolphin mortality be enforceable and binding. 

The Gilchrest/CUnningham and Stevens/Breaux bill states 

the cap as an objective but does not make it 

enforceable . Our bill makes it clear that if the limit 

is exceeded, all sets on dolphins allowed by the Panama 

Declaration would stop for the rest of the fishing 

year. 

(2) It requires that the Panama Declaration establish an enforceable time frame for the reduction of dolphin 

mortality from the cap of 5,000 to zero . The 

Gilchrest/CUnningham and Stevens/Breaux bill states 

reduction as an objective, but it does not specify how 

the number should decline over time. Our bill requires 

that dolphin mortality be reduced by a statistically 

significant amount each year. 

(3) It will result in the protection of U.S . canners (who five 

years ago made a commitment to the American public to 

process and sell only dolphin safe tuna) from unfair foreign 

competition and from the dumping of stockpiled dolphin 

unsafe tuna in the U.S. market . 

(4) It ensures that countries will enforce their 

obligation8 under the International Dolphin 

Conservation Program (established in the Panama 

Declaration and fully reflected in our bill) to protect 

dolphins and the Eastern Tropical Pacific ecosystem by 

requiring that an embargo be reestablished for any 

country which consistently fails to take enforcement 

actions. Countries must show that they are acting to 

punish fishermen who do not comply with the 

requirements of the Panama Declaration - the embargoes 

could be reestablished. 

(5) It requires the.establishment of a research program to 

determine (1) the effect of harassment by chase and 

encirclement on the health and biology of dolphins and 
274 

its impact on dolphin populations encircled by purse 

seine nets in the ETP and (2) the extent to which the 

incidental take of non-target species, including 

j uvenile tuna, occurs when fishing for yellowfin t una using dolphin-sate methods and the impact of that 

incidental take 6n tuna stocks. (The bycatch problem 

is a valid issue that must be looked at closely. In an August 1995 letter to Congressman Studds, NOAA 

Administrator James Baker said that "conversion of all 

effort to log fishing (which tends to produce about 100 

times more tuna bycatch that the tuna bycatch produced 

by dolphin sets) might or might not lead to significant 

reductions in commercial catch of yellowfin tuna per 

year. Administrator Baker states that more research is 

needed. The Miller/Boxer/Biden bill authorizes funding 

for bycatch research. The Gilchrest/Cunningham and 

Stevens/Breaux bill does not . Also, some experts have 

said that most bycatch occurs in territorial waters 

that are not within the jurisdiction of the Panama 

Agreement or the proposed implementing legislation. 

(6) It ensures that Congress is informed of progress in the 

fishery by requiring that the Secretary of Commerce report 

to Congress within 3 years on the results of the dolphin 

stress and bycatch research. 

(7) It directs the Secretary of Commerce to make 

recommendations on how U.S . law should be modified 

according to what the research results show. 

Thank you, Mr. Chairman, for this opportunity to testify 

before your committee. I look forward to working with you_on 

this issue. 
275 

/8oX.~/81J~ 

8UPPOil'!Eil8 OJ' B. ll. 2151, ~ (; • /1.1 ~ 0 

'l'BII Ill"rERD'!IOIIAL DOLPBIII PRO'!BCTIOII AIID COIJ8UIIER IIIJ'OilXATIOII ACT 

citi•an. ~rade c .. paign, includinq: AFL-CIO District 11 

Americans tor Democratic Action 

Clean Water Action 

Colorado Plateau Ecoloqy Alliance 

Federation !or Industrial Retention and Renewal 

Hoosier Environmental Council 

Institute tor Aqriculture and Trade Policy International Brotherhood of Teamsters 

International onion ot Electrical Workers Int~hemispharic Resource Center 

Maine Green Party Midwest Canter for Labor Research 

National Consumers Le&que National Family Farm coalition 

Oil, Chemical and Atomic Workers Onion 

Public Citizen 

Pure Food Campaiqn UNITE! 

Dolphin Safe/Fair ~rade c .. paign, includinq: American Humane Association 

American Oceana campaiqn 

ASPCA . 

Animal Protection Institute 

Animal Welfare Institute 

Ark Trust 

Born Free Foundation 

Briqantine New Jersey Marine Mammal Strandinq Center 

Cetacean Society International 

community Nutrition Institute 

Defenders of Wildlife 

Dolphin Connection 

Earth Island Institute 

Friends of Animals 

Friends of the Earth 

FUnd tor Animals 

Greenpeace Hawaii 

Humane Society of the United States 

In Defense of Aniaals 

International Wildlife Coalition 

Marine Maamal FUnd 

Society !or Animal Protective Leqislation South Carolina Association for Marina Mammal Protection 

Whale Rescue Team 

Sierra Club 
276 

senator Barbara Boxer 

Senate Otfiee Building 

Washinqton, OC 20510 

November 29. 1995 

Dear Senator Boxer: 

The following organizationa stronqly support your -/•i.s- DDlpiLt.a J~Zoe-eiGD Ace, whieh will: 

• Maintain the eurrent striet federal definition of 

•Dolphin Safe•; 

Reward dolphin-safe tuna fishermen by opening up u.s markets to their eatc~; 

Cap and ratchet down the dolphin kill quota by the 

foreign tuna fleet; and 

Reinforce the Inter-American Tropical Tuna 

Commission's Dolphin Conservation Program. us~ng the u.s. market to continue incentives for fisher~en to fish dolphin-safe. 

Sets a precedent that u.s. environmental, health. 

safety. and animal welfare laws will not be sacr1!iced to international trade agreements. 

Thank you for your support ror dolphins and 

sustainable tuna fishing. 

Co.mtn:Tr llti'1'Rr=l:OII 1Ji8fllbfii 1 

PUBLJ:C =ZDI• S C1L0BAL 'r1IAI3 1Q'1'CI .. 

~12.~~ P::.~.tw,0.471D~ I 

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HcXI'Co 
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G.O.P. Hears 

Nature's Call 

The party scrambles on 

environmental policy 

L

AST YLU THE 1\EPUBUCAN FRESHNI.H 

rolled into Washington toting the 

Contract with America and V'O'Yiinl to 

dilute and roU back decides of laws 

and regula~ons, including those aimed at ensuring clean air. clean water and unsul· 

lied wilderness ueas. But because they misread popular s.ntiment on the environ· 

r •. the c.o.r. took a beating in the poU. 

<.. _.is issue. Now as many as 91 Houa Re--

publicans are volin& with the Democrats 

on environmental measures. Shortly after 

the House reconvenes this week. Speaker Newt Gingrich is expected to announce 

the fonnation of a wk force to review the 

Republican approacb to the environmon~ 

he says the pony "mishandled" the matter 

last year. 

A sampling last fall by Republican pollster Unda DIYaD revaled that 5ll11o at C.O.P. Y0ten do not trust their party top teet the environmea.t. .... mch prompted her 

to note that •our party is out of syBe witb 

mainstream American opinion. • Suddaly 

"Senaton and Conpeamen who hod a lin 

ear for the ODYironmeDt for the put three 

yean are all over the issua." says Cree 

Wbetstone of the Natunll ~ De- fense Council. So. too, is the Clinton Administration, after a brief hiatus in which the Democrau snmed willing to compromise with the antiregulatory zealotJ. (Clin- ton even signed a bill that bad the eBect of 

opening vast tracts of national forest for 

loging-whicb he now "regrets.") s-tly, with much fanlan, Vice Pnsideat AI 

Core unveiled a plan to protect the !-- glades. dapito oppoaition by powerful S\' :om ponies. On the eve of tho Florida pt.. ..ry, it was a clear challenge to c.o.r. 

efforts to reel.airn the green vote. • 

278 

Chicken of the Sea? 

A "dolphin~safe" tuna flap makes the U.S. squirm 

C

AU rr nu ru:rru FIJP-rLOP. A 

squobble over attemptJ to amend 

the Marine Mammal ProtectioD AA:t 

is forging some strange alliances eveu u it opens up a bitter rift iD the envi· 

roamental movemeat. Jn tbe end, it may be business intereru:-once the Yil1.aiM i.a. 

the piece but now torrilied of a boycott by 

dolphin-lavina OQJUUmen-that decide the matter. 

AI issue are amendments to the 1972 oct. which forbode imports of tuna cauibl usinl nets ID encirde dolphins that lor unaplained --rwim IDptlwr wilb tuna in parts of the Pa<i6c. Bofon the oct. this 

metbacl suft"ocoted u liWlY u 500,000 of 

the marine mammals each you. Aft« 1972, 

American fishermen drutically reduced their dolphin kill. but in the 

1980s the number of dolphins killed by foreign boots role clromaticaDy. Then in 1989, environmental &<:tivist Sam La· 

Budde plvani.zed public 

opinion by roleuin1 dra· malic Videos of drownin& 

dolphins. In 1990, StoriCist. the world"s largest tuna 

canner, responclins to 

consumer sentiment. an· 

nounced that it would buy 

only tuna caught by other 

methods. That same year, 

LaBIIdde'saroup. Earth I.ska Senator Ted StevenJ that woWd, among other thlnp,lift the U.S. embuJ<>. Califorma Senator Barbora Bo•er. a Democrat, has mttoduoed a oompelin& bill that would also 

lift the SOnctions on the Latin nations but 

11\llutain them on individuol vasels that catch tuna by oneirdement of dolphins. 

ProYina ooco again thet politics makes 

ttnngo bedieUows; the Clinton Administration baa sided with Stevens-a Ieider of Republican efforts to roll back environmental r"'U!ations-u have tho Environm.ontal Dofmle Fund, tho World Wildlife Fodontlon ODd the Center for Morine 

Conoervat~on. Thoy araue that unless the !:.tin nallool are pY'Oil credit for their ef. 

"""-they will simply reswne their bad old way,. M-while, Earth Island Institute, 

=:==· -·---.... , ..,,......"'_...,_ tion to bor tuna imports from Maico ODd the. Sierra Cub, tho Hwnano Society and 

other Latin Am- c:owJtries that failed Fn.nc!a of the Earth vehemently oppo<e 

to protect dolphiDI. EwopooD natioall fol- lhe St-... bill and support BOJ<er's, low..! Ali~ whieb ntonci.d the emboqD to ohorginl that tho deloption In Panama an atimated 8~ of the cannecl-tuna ann· IOid out tho dolphins to freo troda. 

swner markot. Proponents of the BOJ<er bill say com- Maico prompdy filed an inlemAtioaol [lli<atecl onforcemont procedW'OS and the 

tilde a>mpLaint. But it also took stllpl ID potential for oorruptioo undor the Stevens ...,_ dolphin daollls, ODd by 1995 the bill will mean that dolphin deaths will rise 

nWIIber of dolphins killocl by tuna ftoher- &pin. Proponents of tho Stevens bill ugue men annually hod droppOcl below 5,000 that the alternatives to encircling dolphins 

wor!dwide-dernotiD&, Moxicons u- ha>e proved destructive to both tuna 

sert, that flshin& boats can onc:iro1e dolphiDs pop Illations and other species. Nch as sea without ldlling the onimala. The U.S. and a turtles and sharks. All thet leaves......, 

ooalitionofgroon Sl"'lP" mot with Latin na- ....... - " BJ. .._ 01., 

tioallinl'mamalutOc:tobortDbommerout .......... lii!IM; loath to moJce any 

now guidelinos for onYironmentally IIOIIDd chan'• that micht be misinterprwted by 

tuna &shine- Their declarotioo permits.,.. =dol hu>·Jovioa COIISUJMJ'L , .._. ._ c:irdoment 10 long u 011boonl ~ ___;_ I '3 .............. .. 

certify that no dolphin drowDecl clw;ng tbt ._., ......... _.,..... 

netting operation, and its provisions be- --.·•e says. And he's the one wbo bas came the buis for a bill introduced by Ala- to move the goocla. _,.. '-,_ 

57 
.I 

J 

279 

·~ . ·No more. dolphin kills : ~ ... . e need. to reject death quotas Eo~ ~ playful creatures, ·:· ~~·have been massacred, by th. e mtlhon m the 20th century J 

E DON'T kllow. And in 1~ a fedenl Judp in San Fran· 'j 

' : much about the ca. bmoed American tuna boata &em ut- I 

Wuily dt/phlni- mr the liN. Thea be ordced an embarao j 

doe, or clolphilll, · 011 the Import or tuna from forelplllahlar : 

except for tWr s..ta that iiM the killer llllta. '1\ma cana be, l 

forbear a ace pa to come with a label, "dolpbln Afa. • u 

1

! 

with their wom . deftDtcl by the Dolphill ProtecttoD CoD- · 

. t~~~~Q-.JIIcbll\la. • ..m-Aetcl1980. Thia wu tbllowed bytbe 

Fw ziaamma1a an 10 acr-ble wbea . IDterllatloul Dolphill Conawvatioa Act; ; 

murder~: lmjlrlloAecl or tauaht bow to ' baJmlnr lmporta or tuna !'rom dolpbiJI. ' 

Jeep 2() ... climk a baWtball and matdl ' ~ IIAtlonL . :i . the tramen deed fllb on the way dOWD. .All illlllnlatlonal quota of 5,000 clolphlD ·I 

They emltwblatllllr eounda and cllW u a. claatha wu qreed IIPOD· Boata from Meld· . 

lbrm or .mar uul u • wa.y to commllllicate .· co, Pall&ma,'Coata ltlca; Venezuela and the i 

: with each other. Their braiu ara biglr PICific ii1IDd ofVaau"atu continued to kill 1 

. tlwl ~. •II8PitiDI the ~t polllbfll· ~with pune .me Mtl, buttheirbl.· 

tyclan~uy.toutlidatbellm· ~couldn'tbelmponed"-- ''' 

it:l af'hUIUD UJUleiwtuldinc. M or lut year, the total dolpbln ldll. 

Depeia41nc on ipac:IN, they come --~thewwldhadclruppedto4,075.'-f! aquipp&llwith u many u 224 biJteeth.. · Earth bland Inltituta conalderad thi1 a"' 

But In s:OOO )'111'1 of recorded h!ltory, JIOo aOod ltUt ~ • p1 of zero ldlla. 

. body bu'._l8pll'tada dalpbiD bite. Theli- . Outclthe blue WIIU biD by the U.S. tu- . 

. anouta .. mUICII!ar anouah to whack • . 

0 Jia lleefa min Waahlnpn. Rep. ReDdy . 

·. lhark 111f9 ~ JD!Iinmcjellyftab, but manfall _, (Dub) Cunninpem, MACODdido. He 

adriA ~ hu huaed that bir- ~ ra.,..I the redan! embarlo uul eat . 

while bllqto'!Nd to the bellch. • .· · , •thi lr&tilnlaticlllldJI q110ta at 55,000. j' 

We !i&w l'llpCIIIdtd, ~~aturelly, by miD'- · Davtd Pbillip8, eueutlve dtnctor of 

dazinr ~!a tl!e lllll&aa. ' . ; Earth Ialud, h8d ICarC8Iy tlnilbed • deIn Ja,pa. Pa-u a a dozeD other pia-, aiDICiatloll or the CuJminPem bill before ·I 

Bolpblniliiet li a .118m. '. ·' .. ,.,, luhlnc into a pact llped WedDaday In 

. In t!M·~tre, the auznberl orjuat • '::, Pliiama b:r.tz'lde iepreMnt.ative~ or12 -~ apecial,~tliii)IOU.id*'phin, clec:linedhm ,, tlolll-lncludlncthe U.S. dalepta. Supo' 

8 :mllllaa la.tblltGOI to leal tlwl700,000. n· ported, unlbrtlmatab', by otberwile 81"7. · 

· In the tuna boata bepn to equip · · • ·poogpeiiiCh aa Green~. EDvlraamelltal. : 

~ID the 1a601 with pllrl8~ .": _ ............... "'!"'~· ·.· ... that·often dron IPinDer and epot;tecl· ·' .eratloll, the qrMD~~Dt will be 0 

·!lolphlDI. iD 1w, uu 74 1pinDera w , Ill JUIIW'J b:r the Inter AIMrican no 

bi tha.MtAI clU.S. tuu boata; In 1989, ·'. Tcma CommluiaD. U aJIPI'O"WCC, the 

102,000; )illiltlUOO. · ; · . ·;>!would allow the "dolpbln...re"label to .o,c 

The ldJI rata dropped in part because ct .. · 011 bnportad tuna I! obea~ aboard Car- , 

the Mume Mammal Protection Act ct etrn tuna boata certify DO dolph!U'-' 

·19'72, ~ Wuc-d spec~ee Act or 1878 · clrowud 1n the aeta. 'l'biiDtamatlollalldll ·. 

and m 'e,aazlnciJ e!'.ctive boycott orp." ·quota wwld be Mt atii,OOO. :-' 

niHd bY the San Pzudlco-bued Euth fa. · ADcl thet'a the reuon why . a · Z\ 

1uul Inatltilta. In 1990, Bumble Bee, Star- . • sa& . I 1TJ 1Wd11Miu«~ 

kilt,~oftheS.uulotbcrU.S.D~ : . . . DolpbiDunc:reaturucf. 

~ ~to quit ielllnr tuna ftoom lor·.. dalfrht. Kill quota of 55,000,15,000 or.50 , 
280 

THE WASHINGTON POST ]ANUAIIY 2, 1996 

LETTE~S TO THE EDITOR 

A Better Wfzy to Save D()lphins 

A Dec. 16 editorial endorsed the · ;... . - · - · Stevens-Breaux bill as the best approach world's lari"st, aa:ountinfl !for more ~ly t llfrom countnes that don't 

for continuing the declioe in dolphin than 60 percent of elobal 1un.1 u1ea. 0 ow dolphin-sate practices 

mortalities and implementin& the l'ana· And the European Community, the lee· will be amended to allow 6shermen wbo 

ma A,reemeut for m euforceable fish.. ood-lareest market.,bas dolphin-safe tu- uae these methods to sell that tuna in 

ery manaeement policy in the easteril na ~ that pnctic:ally mirror _the ~ vut $1 billion U.S. market. This 

P3Cific Ocean. As memhen of Consresa Boxer·Biden biD. Toeether, the Umted unportant modificabon wiD reward thooe 

lone involved with tbis issue, we take States and European Cooununity domi- who .have altered their fishing metbodt 

exception to this statement ri support. nate the world's tuna market. and encourai" the rest to follow suit. 

Despite popular sentiment behind the Ultimately, the victim of thil atreme BARBARA BOXER 

current "dolpbin sate• label-which effort to Jill dolpbin ~ ~ u.s.s...r.raKdl.) 

means what it says-the Stevens- would_ be not only the dolpl1ins, ~ allo JOSEPH R. BID EN JR. 

Bruux biD waJid allow tuna caught ~~By~ the U.Hout .. (l).Dol.l 

using deadly netting llld encirclement definition of dolphin safe, as the Ste- Washington 

techniques to be sold as "dolphin sate• as vens-Breaux bill propoees, e¥eD blnl 

lone as no ooe saw any dolpltins die caucbt by killinelumdreda or thoulanda 

Supporters ri the Stevea.Breaut bili I ri. dolphins could conceMbly receive 

areue that becauae an .internaticnal ob- , tllis libel · ...-.er will be oo eacb tuna boat in the · There is a better way: The Boxer-Bi- eastem Pacific Ocean, dolphin mortality den International . Dolphin Protectioo 

be easily IIIOIIitored and controlled. and Consumer Information Act ri 1995. 

, ... t argument just doesn't hold water. This bill mamtallll every word ri the 

One ~ cannot ~y IDOIIitDr -i:uriiiit dolpiiiHif~ delilliticxl. While. 

the mtire catch ri a 1()()-(oot Yesael oi- · ca~tinuillg the existint biD m llelliq all 

investipte the ca~tents ri a mile-lao& other types of tuna. Our bill allo makes 

pune eeiae net. particuJarly wl!en the ~ oecessary chanees in current Jaw to 

deadly dolpbin clwe is being carried out ini:orpcnte the Panama Acreement (a 

by speedboats tmoelial ahead of the broad manaeement plan fer the eastern 

mother lbip with no obleners oo board. Pacific Ocean recently siped by the 

Another assertion by the biD's pro- United States and 11 other countries). 

--tba~ ~ we ~ c;>"f·. · Moot si&nificantly, our bill p1'llrideo an laws s_ubatantiallY. intematiooa1 1isbiDI important inanlive for foreign and ~ 

~~: aooo. abandca ~ ~ ·· mealil: tuna 6abermeo to fish in a dDIniques in fa-~~ iod - •pbin-aafe manner: aa:eu to' the u.s. 

permissive Asian and I.alin Amerian market. Under our bill, the biD m all 

marlreb-allo lklrl.., credibility.. the .... fact il tbat the u.s. arlret Rllllinl tbe .·. 
281 

Dr. RogerS. Payne· 

Whale Conse~V&Uon Institute 

191 Wealon Road 

Uncoln, MA. 01773 

•••o 1 To Members of Conqress 

Sub::lec:t 1 S. 1420 and H. a. 2123, Legislation now being considered 

by Congress, would change the official definition of 

"Dolphin Safe• that ~~ currently in use to identify 

canned tuna for consumers. and would reopen the threat 

to dolphins from the tuna industry. 

Datea February 26, 1996 

As President of the Whale Conservation Institute, I have spent the past twenty-nine years studying whales in the wild. The Whale 

Conservation Institute is best known for its discovery that 

h\lq)back whales sing sonqs, and that the calls of fin and blue 

whales can travel across oceana (a theory now being demonstrated 

to be correct). Our institute has trained many of the leaders in 

whale research and pioneered many of the benign research 

techniques now used around the world. our research project on the 

behavior of Argentine right whales (now in its 27th season) is the 

longest continuous field study of a whale species in existence 

that is based on known individual animals (we recognize over 1300 

whales). I have led over 100 expeditions to all oceans and have 

studied every species of large whale in the wild. 

As a member (in 1989 and '90) of the National Academy of 

Sciences/National Research Council's Committee on Reducing Porpoise Mortality from Tuna Fishing, I had extensive exposurQ to 

the Tuna-Dolphin problem. 

I am writing to present my concerns on the above-mentioned 

legislation because' t z, ... ,-....wa.._..,...._ .. JW9Ative 1 ... ,., .. j 7 

• t . I feel strongly that any legislation which 

fosters or legitimizes the practice of setting nets on dolphins is 

wrong. I believe that we must, instead, foster alternative 

fishing techniques which do not require severe disruption and 

danger to dolphin populations (several such techniques exist and are used successfully). It has been conservatively estimated that some dolphin groups spend as many as four hours per day fleeing boats from.the tuna industry. 

At present, a ra )lt•=-aafe• ~ton a can of tuna mean~ that 

the tuna was not caught by chasing, harassment, encirclement or capture of dolphins by tuna purse seine nets. It._., 

aeoe:w...u .. ..t ~ifically cat-.i.Wa·...-..-..., 

(over) 
282 

A proposal, by the Inter-Ameri can Tropical Tuna Commission 

(IATTC) and Congressional legislation (S . l420 and H.R.2823) would 

weaken the definition of "Dolphin Safe.• The current federal 

definition excludes the encirclement of schools of dolphins by 

purse seine nets. The new definition would allow chasing, 

harassing, encircling, and catching of dolphins by purse seine 

nata, as long as no dolphins were •observed" to be killed outright 

in the nets. 

This new definition thus ignores the effects on dolphins of 

direct injuries, as well as the physiological effects from the 

stress of repeated capture . Dolphins released alive may later die 

from injuries sustained during chase and capture. and recent 

evidence suggests that stress fFom repeated captures disrupts 

dolphin societies and causes physiological harm. Despite the 

decline in observed dolphin deaths over the past five years. 

recent research suggests that the primary target dolphin 

populations have not shown any signa of recovering and that target 

popul ations of at least two species appear to be declining . 

The proposed change of rules also raises questions about 

observer reliability. It is probable that dolphin mortality will occur during the chase a~ capture which, for various reasons , will not be detected by observers. For example, the nets are over a mile in length and the observers will remain on the main vessel 

during chase, deployment of nets. and final loading of tuna. 

Further, mixing of tuna in different holds aboard ship during 

trips risks confusion and encourages misleading reporting . 

For all of the above reasons, proposed bills 5.1420 and 

lt·.a.214i seem to GC~Datitute a eitaificeot •teu.,b&c:kw&rc:l in what 

a.. GeeD. ODe of the -jor achi...-u iD ca. CG~Wuvation of wile:\ 

.art. ..... 1 papulatioaa living in international waters, and I do 

not believe that the re-definition of "Dolphin Safe• would result 

in procedures that were safe for dolphins, or that ~ould be 

defensible on scientific grounds . ~ ~~ a poU.cy t.A&~ 

pc-e~~~Dtet~ . U. llarMalaf, c:ba•iag, eac:izclJ..,, 111111 ceptudnsr of 

dDlpb4ee ia pu'M-.... MU .ad call.ll 1' •DDlplda late,, aDCl I. 

.... -t «:be cauzwa will aot .uppon it eita. •• 

Thank you for your consideration of these concerns. 

nc./ty·~ 

Dr ~L {Jt.yne 

President, and Scientific Director 
BRIAN P. BILBHAY 49TH DtSTRICT, CALIFORNIA 

COMME!ta COMMITTEE 

SUBCOMMITTEE ON 

COMMERCE, TRADE AND 

HAZARDOUS MATERIALS ld:ongrrgg of tbr Wnitrb ~tatrg 

AJou~r of l\rprr~rntatibt~ 

alaSI)ington, M 20515 

Statement ofthe Honorable Briaa Bilbray 

VIIASttlf<fuiON O~~l(;t 

1(104lONGWOfltH HOUSE OFFICf SLO<i 

WASHINGTON. DC~~~ 

1)011115-1040 

f.UCtXI11215l!M8 

OIS TRICTOHICf 

1011 CAMINO DH RIO SOlJT<l 

SUIT£ 3lD 

SAN DIEGO. CA ~11108 

161112'9 1-I•JO 

FAXI0191291-IIISoll 

Email: ....... ..,. ... _._..._...., WorldWide Witb: 

hllp :l hoto••.govlbilbr•yl 

Hearing on H.R.l823, the Iotematioaal Dolphla Coooervation Program Act 

Subcommittee on Fisheries, Wildlife, and Oc:eana 

Committee on Resources 

Febraary 29, 1996 

Mr. Chairman, thank you for holding this hearing, and for allowing me the opportunity to testify 

here today. This is an issue of great importance both to our marine environment. and to the 

process by which we will craft future environmental policy. We have a number of distinguished 

witoesses bere today who will attest to this in greater detail, and I would like to take a moment to 

introduce two of them, who are from my home town of San Diego. Dr. James Joseph is the 

Director of the Inter-American Tropical Tuna Commission (IATTC), one of the world's most 

knowledgeable and respected experts on the complex interrelationships between the tuna 

fisheries and dolphin populations, and a primary architect of the landmarlc La Jolla Agreement 

Mary Walker is an environmental attorney in San Diego with significant background in natural 

resource issues, and the tuna/dolphin issue in particular. She is a former Deputy Assistant 

Attorney General of the Land and Natural Resources Division of the Department of Justice, 

Deputy Solicitor of the U.S. Department of the Interior, and Assistant Secretary for the 

Environment, Safety and Health al the U.S. Department of Energy. She served as a U.S. 

Commissioner on the lA TTC for seven years, and was also a key participant in the crafting of the 

1992 La Jolla Agreement 

Mr. Chairman, both of these individuals have been instrumental in expanding my understanding 

of this complex issue, and will provide the Subcommittee with excellent testimony on the merits 

ofH.R. 2823 today. I am pleased to let them provide the comprehensive technical overview, and 

in the interests of time will focus my own remarks on one major theme which I believe is of 

extreme importance. 'Ibis is an .issue which resonates with me, as I can recall the days when San 

Diego was the thriving homeport to the U.S. tuna fleet, of which only several boats now remain. 

Mr. Chairman, great strides have been made in reducing dolphin mortality in the eastern tropical 

Pacific, due to improved fishing methods (pioneered by the U.S. fleet) and increased levels of 

on-vessel monitoring. The 1992 La Jolla Agreement was a resolution agreed to by a number of 

fishing nations, including the United States, Mexico, and several Latin American countries. This 

agreement established strict diminishing annual dolphin mortality rates, requiring the rate to be 

below 5,000 by 1999, which is less that 0.1 percent of the estimated total dolphin population. 

The current rate is roughly 4,000 annually, which is considered by many scientists to be below 

biological significance. 

THIS STATION(AV PRINTED 0,. PAPER MADE Of RECYCL£0 fiBfRS 

20-276 - 96 - 10 
The Ajp'eemenlllso required en obselver on each licensed vessel, which wen assigned a lllricl 

dolphin mortality limit {DML). To dale. the lligMlories have c:ontiNJed to operate in good taith 

under this non-binding Asr-t; however, 10111e nations had openly considered dropping out of 

the lA TTC end the La Jolla Asr=nent. becaule despite the advances made in dolphin mortality 

reduction, U.S. Law had not been changed to lift the current embargoes against tuna impc)rwion 

into the U.S. 

Additionally, a problem of potentially significant biological dimensions has arisen u a reault of 

fishing methods other than "llllttini on dolphin". Suc:h methods include setting nell around tuna 

attracted to floating objecu (loa filhina), or around free IWirruning lc:hools of fish (lc:hool 

fishing). While these methods reduce dolphin contact, they create other problems. Studies have 

indicated that up to 25% of suc:h harvest methods ia "bycatch, • whic:h comprises a number of 

species. but includes high volumea of sharks, billtiJh, and other pelaaiQ, endangered 101 tUrtles, 

end immature tuna. These tuna are. not market-ready, end are largely dead by the time they are 

returned to the ocean. This posa a saious threat to maintaining healthy, !ong-term populations 

of ydlowfin iuna, in addition to strelling the populations of these other seruitive species. 

Convenely, setting •on dolphin" creates Utt1e bycatc:h other than dolphin. While this wu a 

problein in early years of the fishery, recent improvements in hlrwltina methods, IUc:h U the 

"backing down" procedure (m whic:h the edge of the nets are allowed to link below the swtace, 

allowing dolphins to leave the net) have served to greatly minimize the threat to dolphin. Small 

boats and a munber of divers are also deployed to assist dolphin out of the net. 

However, the bycatc:h problem~ a polic:y dilemma u to how best to manaae our marine 

resourcea on en •ecosystem• balia, rather than c:hanneling all our energy end resourcea into single 

populations. While it is -.tial to continue our targeted reduction of dolphin mortl1ity rate 

toward zero, this cannot occur at the expense of other parts of the ocean biol)'ltcm. Fortunately, 

a long-term solution il dose at hand. 

In October of 1995, lllllllions, including the U.S., met in Panama to c:raft a biodiDa intemationsl 

.,__ to proteet clolpbinl end other-species in the euta'n tropical Pacific. rMI 

environmental orpnizati0111 WCR inltrumaltal in fomadaling this asreement, wbic:h has been 

dubbed the Panama Declaration. The Declaration will estlblilh ai!CIJDIIIIIIIl mortality limit, with 

the target of reducing dolphin mortality to zero for all panicipants in the fishery. It will set 

mortality ClpS for individual species of dolphin. end provide for individual vesseiiiCCOUntability by 

setting per vessel mortality ClpS. lUll u lianificantly. it will provide areater protection for and 

study of other species now at rille fiom "bycatch. • end increue enforcement end monitoring 

systems to IIIIIUI'e compliance by panicipatina nations. 

The Panama Declaration creates a bindina proceu to IIIIIUI'e continued reduction of dolphin 

mortality, wbile for the lint time lldoptina en "ecosystem-based" approach to ocean resource 

rnanapment. While dolphin populations must end will continue to be protecled and llrengthened 

under our........,_ -.r. we con no longer ignore the potential prob1eins crested by our 

well-intended existing "dolphin-aafe" policies. The Panama Declaration should be codified into 

law, in order to enlure that we 1111111118<' our marine resoun:es for Ill species, in a sound end 
285 

science-based manner. We must reject efforts to reinforce the status quo, and move swiftly on the 

legislation now before us. H.R 2823, which I have cosponsored along with a number of my 

colleagues from both sides of the aisle, is the vehicle to accomplish this, and I thank the 

Subcommittee for its willingness to hold this hearing today, and would urge that we proceed 

quickly to a markup in order to put a bill on the President's desk this year. 

This legislation is more than sound ocean resources management, Mr. Chairman. It is a blueprint 

for how we should proceed on future environmental strategy matters. This is an opportunity for 

us to move beyond the outdated 'single-species' approach of years past, and embrace a more 

comprehensive and effective multi-species management style. We must see the whole picture, and 

structure our strategies accordingly. The increased losses of other marine life and pelagics under 

existing law has to date been largely overlooked, and is a looming biological threat which merits 

the same levels of concern and proper scientific attention as has the dolphin population. 

These unintended consequences of existing law are troubling, and will be addressed by the 

Panama Declaration and H.R. 2823. We have created the technology and the incentives to keep 

dolphin mortality rates on the path to zero, which will be reinforced and locked in by H.R. 2823. 

However, ensured protection of the dolphin is not the 'end of the story' for conserving our ocean 

environment. It is also not the end of our responsibilities. A3 we have with other strategies, we 

need to take a comprehensive approach to marine conservation as well, in order to recognize 

these threats and take action on them before they reach a crisis point. H.R. 2823 is a bipartisan 

proposal, strongly supported by the Adminstration and a number of environmental groups, which 

uses sound science to recognize and act on the unforeseen problems with the existing policy, 

while reinforcing the continued dramatic successes of the dolphin conservation program. 

Mr. Chairman, I thank you again for this opportunity to testilY here today. 
286 

MNOY "DUIC!" CUNNIHGIIAM cm~...,.OI'N::I-- ---... ........._oc ...... 1 

MnotrW. ~COMIITIII 

------ - ,.._: MDICIUCA ........ Of'I'IICIIn'WIT Q IUWIITMU.I'f-'1' I .,_.... _ ....... .. _ . ....-CMIIAIM.~Ge!IIMI.Y 

oaGMOCIO. 'I'CIIUQt, MID,.... ...-rANT........-rY .. 

~grr.ss of th£ tinittd ~mtts 

t\aut or RrvrommtiDo 

~.M~n-om Fcbruaty 29, 1996 

... ,., .... 

; 

StaDent by 1be Hooorable Rmdy "Duke" ClllllliDaJiam 

to !be 

SubcommiUee oa Filberies, Wlkllifc ADd Ocans 

on 

1be r-a.tioaal Dolpbin Coalervalion l'loplm Ad, H.R. 2823 ADd 

1be r-a.tioaal Dolphin Protection llld Consumer Informalion Act, H.R. 2856 

Subcommittee Cllairmm Saxton, Rankiaa Member Studdl, ADd Members of 1be Sulx:ommittee, I 

rise today to speak in 1UP1J01t of !be lmmnatical Dolphin COIIMVIIion l'loplm Act (H.R. 

2823). The issue of dolpbin protection bu been a tou&h one for many years. Dolpbins are loved 

by all. ADd I want to make sure tblt !be dolphin poputuion is protected llld thrives in the 

eastern tropical Paci1lc: OceiD (E11'). This Jqislatioa. H.R. 2823, will allow 1be dolphin 

population to pow, while revRa1iz:iDa 1be eastern P.afic yellowfin tuna fisbery tblt bu been 

c108ed to U.S. fisbennen. ADd it will ensure tblt every can of tuna llldai "dolphin safe" 

actually il"dolphin safe .• 

In 1990, !be Marine Mlamnal Protection Act {MMP A) of I m wu IIIDCIIded to place an 

emblqo on tuna fisbiDa in 1be ETP. American tuna fisbcrmcn wac shut out of !be ETP, one of 

!be world's ricbelt reserves of Jarae lldult yellowfin nma. The ETP is huge - over 8 million 

square miles, l1most three times 1be size of 1be United States. It runs ftom San Die11o. past 

Cenlnl America, to Chile ADd out to Hawaii. ADd it produces about 800 million pounds of 

skipjll:k ADd yeUoWfio tuna per year. 

FoUowins !be tuna emboqo in 1be ETP, !be American market for tuna was cut off from any 

operations that fished in !be rqion. The tuna fleet in San Diego, which relied on this fishery in 

!be ETP for lbeir livelihood, was reduced by one-third. 

Mr. Gilchrest llld I introduced H.R. 2823 to brina U.S. fisbcrmcn back to 1be ETP and protect 

dolphin. The biJJ implements 1be Pan.na Declaration, which WliS signed last October by 12 

countries, includin& !be United s-. Our bill bu bipartisan support in Congress, and is 

endorsed by !be Center for Marine Conaerwtion, Environments! Defmse Fund, Greenpeace, 

National Wlkllifc Fedenlion, World Wildlife Fund, !be Clinton Administrstion, and !be U.S. 

fishing industty. The fact tbat lhese poups have come together oo this issue bu something to 
287 

say for the merit of our bill. 

The Panama Declaration makes the La Jolla Agreement, 'Wdch was signed by 13 nations in 

1992, a legally binding document. The La Jolla Agreement was established by the InterAmerican Tropical Tuna Commission (lA TIC), and has reduced dolphin mortality from 133,000 

in 1986 to less than 4,000 today. The lA TIC is so successful because it trains fishermen to use 

safe fishing techniques. They mal>e sure that fishermen are equipped with the conect gear, and 

edw:aled in how that gear is properly used. Each fishing vessel is equipped with a licensed 

captain, and an observer trained by the lA TTC to monitor any violation of the La Jolla 

Agreement. 

The Panama Declaration strengthens the lA TIC's dolphin conservation program, which has 

helped this fishery become one of the cleanest, most efficient fisheries in the world. Those who 

signed the Panama Declaration will follow the lA TICs dolphin conservation program to 1ilnlu:I 

reduce dolphin mortality. This successful program must be rewarded. If Congress fails to pass 

H.R. 2823, and the Panama Declaration is not implemented, many of the nations who signed the 

agreement will withdraw from it. They may well return to old-style fishing practices leading to 

drastic~ in dolphin mortalities. 

Our bill opens the U.S. market to tuna caught according to lA TIC rules. It lifts the tuna 

embargoes in the ETP. And it strengthens "dolphin-safe" labeling to require that ~mix tuna 

caught without killing &DX dolphin can be labeled "dolphin-safe." 

Let me focus on the "dolphin safe" labeling issue. H.R. 2823 would allow tuna that was caught 

using encirclement to be labeled "dolphin-safe" ~mix if~ tuna set releases llll dolphins 

llllbamlcd. The opposition to our bill considers this change "consumer fraud." This simply is 

not possible. Under H.R. 2823, there will be an internationally trained observer on each vessel 

wbo monitors any dolphin mortality. It's quite simple: if there are no dolphin deaths, the tuna is 

"dolphin-safe." If there are deaths, it ldiiii1Q1 be labeled dolphin-safe. 

Even so, the Earth Island Institute opposes our bill because of the "dolphin safe" labeling 

changes. Let me tell you that their interest is a monetary one. During an NPR interview I took 

part in last year, a representative ofEartb Island confirmed that 20% of their entire budget comes 

to their international monitoring program from foreign cooperatives. They are paid by canneries 

around the world to help certify tuna as "dolphin safe." Our direct "no dolphin deaths" labeling 

provisions create a monetary problem for Earth Island. 

H.R. 2823 also places a cap of 5,000 on annual dolphin mortality. With over 9.5 million 

dolphins in the region, this level is five one-hundredths of one percent of the population. This 

level of mortality is significantly lower than the mortality limits established in the MMP A for 

other U.S. fisheries. An individual cap would be placed on each vessel fishing in the ETP. If the 

cap is reached, the vessel must stop fishing on tuna that swim with dolphin. The fishermen will 

closely follow the lA TIC's guidelines, or they will face financial loss. 

2 
288 

Our bill also proleets tbe wbole ec:osystan by preveotiJia excessive bycatdl or endanaered sea 

turtles, sharks, billfish, juw:aile tuDa, llld ocber fbh specia dllt rault fiom Utcmllive fishing 

methods. In filet, since tbe ETP- clolrd to U.S. tuna fishing, !bey have been fishing on 

smaller yellowfin tuna. That raults in a ttoublina amount of bycatdl or other species. H.R. 

2823 alleviates dllt problem. 

This debate bu notbin& to do with NAFT A or GAIT as tbe opposition claims. The 

eoviromnental groups dllt support our bill were oppooed to GAIT. They support our bill 

because it is pro-eovironmcnt. · They know dllt H.R. 2823 is tbe lllllx solution dllt will protect 

dolphins. 

I have spoken with several ~ wbo left tbe ETP in 1990. They are excited to return usina 

tbe am fishing techniques dllt tbey have muta'ecl. Let's l'dlllll U.S. fisbina veuels to tbe ETP. 

Let's save tbe dolpbin population by ensurina dllt tbe lA rrc continues to monitor all veuels in 

tbe ETP. And let's keep consumcn informed, by ensuring dllt "dolphin safe" does wba! it says. 

I urge this subcommit= to pesa this pro-environment, pro-business, pro-jobs. and pnH:OilSIIII1er 

legislation. 
i•· " r 

percent. But without prompt Congrl'ssioual .lCtiou, 

dolphins will again be at risk. 

A new international agrnnJ<'III. the Panama 

lh'd.lr.llion, will assure contilllll'd proll·t"tiou ·1o1· this 

new protection for sharks. tunics 

and other marine life 

Protects tuna populations and the fishermen that 

depentl on them. 

!partisan legislation has been iutroduced 

~"Qsistent with tlw Panama l>cdaration, S-1420 an•l 

The kgisl.11ion. supported hy l<·ading 

conservationists and lishermen. protects marine manunals 

and fishing johs alike. 

~ 

Now is the Time for 

Congressional Leadership. 

Keep Tuna on the Tahle • 

and Dolphins in the Sea. WWF 

Sponsored h1· 

World Wil<llik 

Fund 

~-14lll and IIR-2823 an• l'Julors~d by (,•,Jtling mns••rvation organizations, fishermen, the Clinton Administration, and leading l!epubllcans. ~ 
290 

Dear Mr. Chairman: 

United Stale!! Department of State 

W~"· D.C. 20520 

FEB I 4 l~G:i 

This letter responds to your Committee's request for views on H.R. 2823, to amend the Marine Mammal Protection Act of 1972 

to support the International Dolphin Conservation Program in 

the eastern tropical Pacific Ocean. · · 

The Administration Rtronqly ~up~ort3 this legislation, which is crucial for the implementation of the ~an~ma 

Declaration and the continued viability of the International 

Dolphin Conservation Program (IDCP), as weil as the 

organization which runs it, the Inter-American· Tropical Tuna 

Commission (IATTC). We consider that this legislation, as it 

is premised on a multilateral approach to dolphin .conservation, 

is particularly constructive. 

The work of the IATTC to conserve dolphins has been 

extremely successful. In the early years of the· eastern 

tropical Pacific tuna fishery, as many as 500,000 dolphins were killed annually during fishing operations. With the adoption of the IDCP under the auspices of the IATTC in Ju~e of 1992, 

the success of ·this program has been dramatic. For the past three years, dolphin mortalities have been below 5,000 

annually, a figure which is approximately five one-hundredths 

of one percent of the estim,ted 9.6 million dolphins in the 

eastern Pacific OCean. The program is strictly enforced, with an observer on every vessel. Siaply put, it is one of the best 

international fisheries programs anywhere in the world, and is 

serving as a model for other efforts to deal with difficult 

international marine conservation questions. 

Rece~tly, the countries perticipetinq in the IOCP 

negotiated improvements to the IATTC program with five major environmental organizations - Greenpeace, the Center for Marine 

Conservation, the World Wildlife Fund, the Environmental 

Defense Fund, and the National Wildlife Federation. In 

October, 1995, this new program was endorsed by 12 nations, 

including the United States, in a document called the Panama 

Declaration. 

The Honorable 

Don Young, Chairman, 

Committee on Resources, 

House of Representatives. 
291 

- 2 -

Before the strengthened dolphin protection agreement 

contemplated by the Panama Declaration can be implemented, 

changes in U.S. law to open our market to tuna caught with zero 

dolphin mortality occuring in the set must first be made. The 

pending legislation before your Committee, H.R. 2823, and its 

counterpart in the Senate, s. 1420, represent those necessary 

changes. 

It is important for this legislation to be passed to ensure 

that the tremendous gains in dolphin protection achieved to 

date, and the efforts of the countries which achieved them, 

continue in the future. We urge quick action by the Committee 

and Congress to enact this legislation in order that the 

implementation .·of the Panama Declaration can be. fully 

realized. We look forward to working with the Committee as the 

bill moves through Congress. 

The Office of Management and Budget advises that from the 

standpoint of the Administration's program there is no 

objection to the submission of this report. 

I hope this information is useful to you. Please do not 

hesitate to call if we can be of further assistance. 

Sinc;erely, 

Wendy R. Sherman 

Assistant Secretary 

Legislative Affairs 
The Honorable Don Young 

Chainnan, Committee on Resources 

House of Representatives 

Washington, D.C. 20215 

Dear Mr. Chainnan: 

292 

GENERAL COUNSEL OF THE UNITED STATES DEPARTMENT OF COMMERCE 

WashlnQton. D.C. 202311 . 

FEB 2 2 1900 

I am responding to your request for the views of the AdmiDistration on H.R. 2823. 

This bill would amend the Marine Mammal Protection AI:J. (MMPA) to implement the 

International Dolphin Conservation Program in the eastern tropical Pacific Ocean (EI'P). 

The Administration strongly supports the Panama Declaration, and this legislation is 

crucial for the implementation of that Declaratiou. H.R. 2823 provides for the continued 

viability of the Intematiooal Dolphin CooseiVation Program (IDCP), u well u the InterAmerican Tropical Tuna Commission (IATI'C), which runs the IDCP. 

The IA TTC bas beeo very successful in its efforts to protect dolphins in the BTP 

yellowfm tuoa purse seine fishery. Only a decade ago, dolphin mortality inciclental to ftsbing 

by the interoational yellowfm tuoa pune seine t1cet in the BTP was 130,000 annually. Since 

adoption of the IDCP in Juoe 1992, dolpbin mortality bas dropped dramatically. Foi the past 

three years, total annual dolpbin mortality bas beeo below five thousand. Five thousand 

dolphins represents approximately five one-bundRICiths of one pen:ent of the 9.6 million 

dolphins in the BTP. The fishery is strictly monitored with an observer on every vessel. 

Simply put, the IDCP is one of the most IUCCCSSful interoational environmental programs in 

the world, and serves as a model for other efforts to deal with difficult international marine 

conservation issues. 

The codonemeal of the Pallama Declaration in October of 1m, by 12 nations, 

includiJJ& the United Stall:s, will filrtb« IOiidify and ltlaJgtbeo the IDCP. Frve major 

eoviroomeotal organizatioru (Gremlpelce, Ceoter for Marine Coalervation, World Wildlife 

Fund, Bnviroomerllal Deleole PuDd, and the Natloaal Wildlife FoderalioD) helped to 

oegociate, · and bave eadoned, the Pallama Decluatloo. The Declarllino reaffirms the 

COIIIIIIitmeatl and objectlva of the OlCP to nWco propeaively dolpbln IIIOI1Ility in the 

BTP to levels 8ppR)III:biDa zero, wilh 111 u111ma1e p1 of e!imjnatjna dolpbin IIIOI1Ility In this 

filbcry. In ldditioG to r-. .... and objecdvel, the Pallama Declllllioa woulcllhnit total 

'~~DUal mortality for the iDiaDadoaal filbcry to DOt men dllll 5,000 with a per ltoCk 

.nuimum of DOt 11101e dllll 0.2 penlSil of the millimum eltimaled ahi!Jdanoe of the ltoCk 

throu&b the year 2000, and aot 11101e dllll 0.1 peiQellt of the minimum eatlmated abuaclance 
293 

2 

of the stock starting in 2001 . This will help ensure that all dolphin stocks in the EfP are 

protected from mortality levels which would have an unacceptable impact on individual 

population or stock growth rates. 

Before the strengthened dolphin protection agreement contemplated by the Panama 

Declaration can be implemented, U.S. law needs to be amended to open our market to tuna 

caught in compliance with the newly strengthened regime. The enactment of H.R. 2823, and 

its companion billS. 1420, will make these critical changes. This legislation should ensure 

that the tremendous gains in dolphin protection that have been achieved, and support of the 

countries which help to achieve them, will continue in the future. 

The Office of Management and Budget advises that there is no objection to the 

submission of this report from the standpoint of the Administration's program. 

h_,i-r--

CJ"geruj 
STATEMENT OF 

TIMOTHY E. WIRTH 

UNDER SECRETARY FOR GLOBAL AP'FAIRS 

U.S. DEPARTMENT OF STATE 

BEFORE THE 

HOUSE COMMITTEE ON RESOURCES 

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS 

FEBRUARY 29, 1996 

TESTIMONY 

Mr. Chairman and Members of the Subcommittee: 

Thank you for this opportunity to appear before the 

Subcommittee to discuss legislation to promote dolphin 

conservation and protection in the Eastern Pacific Ocean. At the 

onset, I would thank the Committee for all your efforts to bring 

this issue to the public. I want to note the leadership of 

Senators Boxer and Biden and Congressmen Miller and Studds, who 

have over the years played an important role in helping to reduce 

dolphin mortality. Also, I would like to recognize those who 

have come forward to support the Panama Declaration including 

Congressmen Gilchrest and Young and Senators Stevens and Breaux. 

Last June, the Administration had the pleasure of appearing 

before the Subcommittee on Fisheries, Wildlife and Oceans to 

discuss this issue. In Ambassador Colson's testimony then, he 

described in some detail the international dolphin conservation 

program of the Inter-American Tropical Tuna Commission (IATTC), 

and, in particular, the La Jolla Agreement which establishes the 
295 

- 2 -

program. I will not repeat that testimony today, Mr . Chairman. 

I would, however, emphasize that this program is perhaps the 

strongest international marine resource conservation program in 

the world. This strong international program, and the leadership 

of the United States acting pursuant to the Marine Mammal 

Protection Act (MMPA), has produced a profound drop in dolphin 

mortalities in the Eastern Pacific tuna fishery. In the early 

years of this fishery, scientists estimate that many hundreds of 

thousands of dolphins died annually during fishing operations. 

As recently as 1989, dolphin mortality exceeded 100,000 dolphins 

annually. But for the past several years, dolphin mortalities 

have fallen below 5,000 a year. This level represents 

approximately four one-hundredths of one percent of the more than 

9 . 5 million dolphins that live in the Eastern Pacific Ocean, 

where dolphin populations are stable or increasing. 

Mr. Chairman, this is nothing short of a phenomenal 

environmental success story, achieved through considerable effort 

by governments, fisheries managers , fishermen, and dedicated 

environmental groups . 

But today, Mr. Chairman, we are in danger of reversing and 

undoing this phenomenal success if we do not take action. In the 

view of the Administration, we must seize the opportunity 

represented by H. R. 2823 to recognize the success we have 

achieved, to solidify these gains and to generate the 

international cooperation required to protect these dolphins 

further. We must remember, after all, that the Eastern Pacific 
296 

- 3 -

tuna fishery takes place in waters entirely outside of u.s. 

jurisdiction and involves virtually no vessels flying the u.s. 

flag . we need international cooperation if we are to protect 

dolphins and manage the fishery on a sustainable basis. 

When Ambassador Colson testified last June, he presented 

three questions that needed to be answered: 

• What standard should we use for embargoing tuna 

imports? 

• How can we increase opportunities for U.S. 

fishermen to return to this fishery? 

• How should we define "dolphin-safe• tuna? 

In the testimony, we put forward Administration proposals 

to change the embargo standard so as not to embargo countries 

complying with the IATTC program and to allow greater 

participation by u.s. fishermen in the fishery. As for the 

"dolphin safe" definition, we outlined a range of options that 

we proposed to consider together with all the interests 

involved. 

Following that hearing, we sought to find a consensus on a 

new definition for "dolphin safe• tuna, but made little 

headway . Then, early last fall, representatives of five 

environmental organizations brought to us a preliminary 

understanding they had reached with the countries whose vessels 

operate in this fishery. 

While there are many details, Mr. Chairman, the essence of 

that understanding was to strengthen even further the 
- 4 -

international program to protect dolphin and to make that 

program legally binding. These improvements were to be 

contingent on the enactment of certain changes in u.s. law. 

The Administration reviewed the understanding and decided to 

support it. In October that understanding was formally adopted 

and supported by all the countries concerned in what is known 

as the Panama Declaration. 

The Administration supports the Panama Declaration. The 

question now is whether Congress will support it as well by 

enacting H.R. 2823. We are gratified that there is bipartisan 

support to do so, as reflected in this bill and its companion 

bill in the Senate, s. 1420. The Administration strongly 

supports these bills and encourages their rapid passage. 

Mr. Chairman, I have attached the Panama Declaration as an 

annex to this testimony for the review of the Subcommittee. I 

can summarize our reasons for supporting the Panama Declaration 

and H.R. 2823 as follows: 

• The dolphin protection program of the IATTC is 

perhaps the best international conservation regime 

in the world. 

The IATTC program protects the ecosystem as a 

whole. It avoids alternative fishing methods that 

would produce a high by-catch of juvenile tunas, 

billfish, sharks, endangered sea turtles and other 

species. 
298 

- 5 -

• The IATTC program has strict monitoring, with an 

internationally trained observer on every boat and a 

review panel consisting of government, industry and 

environmental representatives to monitor compliance. 

• The Panama Declaration would strengthen this program 

even further and make it legally binding. 

• To bring the Panama Declaration into force, we need 

to make certain changes to u.s. law, changes that we 

regard as not only acceptable, but also beneficial. 

• Enactment of H.R. 2823 will strengthen the 

protection of dolphins, provide for sustainable tuna 

fishing, and allow U.S. vessels an opportunity to 

return to the fishery. 

• Failure to enact H.R. 2823 will mean the likely 

death of the IATTC program and significantly higher 

dolphin mortality. 

For these reasons, we do not see the question of whether to 

support the Panama Declaration and H.R. 2823 as a close call. 

This is a very good deal for dolphins and for the tuna 

fishery. The alternative could spell disaster for both. 

I would now like to address certain criticisms that have 

been leveled at the Panama Declaration, and the bills that 
- 6 -

would implement it successfully, by certain animal rights 

groups and others who stand in opposition. 

First, Mr. Chairman, some have argued that we are pursuing 

these policies because of international trade concerns or a 

desire to "bail out• Mexico. We believe this is a red herring 

that has nothing to do with the substance of the agreement. 

The Panama initiative is about good economic policy and good 

environmental policy. 

Second, the opponents of H.R. 2823 contend that the Panama 

Declaration does not cap dolphin mortalities. This contention 

clearly is erroneous . The Panama Declaration sets an overall 

mortality limit of 5 , 000 dolphins annually , Mortalities can 

never increase above this limit . Moreover, the Panama 

Declaration, for the first time , also sets particular caps on 

individual species of dolphins, to ensure protection for all 

species. This means that in any given year, the overall 

mortality may well be below 5,000 due to the individual species 

caps. 

Third, critics argue that the dolphin mortality limits are 

not enforceable. As I noted, Mr . Chairman, for several years 

there has been an internationally trained observer aboard each 

and every vessel in thi s fishery, whose job it is t o monitor 

and report each and every dolphin mortality. As a result, we 

know far more about dolphins and dolphin mortality in this 

fishery, which is conducted outside our zone, than we do about 
300 

- 7 -

many fisheries conducted within U.S. waters. We will know if 

the dolphin mortality limits are exceeded . And if foreign 

nations do not comply, H.R. 2823 requires the reimposition of 

our tuna embargo . Thus, we will continue to use our market to 

encourage cooperation and good performance. 

Fourth, critics of the Panama Declaration say that we 

cannot define "dolphin-safe" tuna as tuna caught with no 

dolphin mortalities, because tuna cannot be separated and 

tracked on board vessels or at canneries. This too is not 

true. It is feasible to separate and track the tuna both on 

board the vessel and at the cannery, and it can be done with 

only one observer aboard each vessel . Mr . Chairman I request 

that this comprehensive and detailed analysis of this matter, 

which is produced by the National Marine Fisheries Service, be 

placed in the record. Tuna can be tracked. Indeed, our 

present law requires tuna tracking. The Panama Declaration 

only requires some adjustments to the tracking process, all of 

which are feasible . 

A fifth criticism is that the Panama Declaration does not 

end encirclement of dolphins . That is true. It is also true 

that U. S . law alone cannot end the encirclement of dolphins in 

a fishery that is conducted by foreign fishing fleets on the 

high seas and in the exclusive economic zones of other 

nations. The only way that zero mortality will be achieved, or 

a new way found to fish for tuna that is both economically and 

environmentally sound that does not involve encirclement, is 

through international cooperation. In this regard, I note t hat 
301 

- 8 -

the goal of the Panama Declaration is to achieve zero mortality 

and to facilitate the required investigation into alternative 

fishing techniques. 

Further, scientists believe, at the current level of 

mortality, dolphin populations should grow and recover.However, 

some environmentalists claim that stress related to chase and 

encirclement causes dolphin to die after their release from the 

nets or severely impedes their potential to reproduce. 

Presently, there is no solid scientific information to support 

this contention; the Panama Declaration will require 

investigation into the question. 

The present alternative to encircling dolphins, which the 

opponents support, is for fishermen to fish by encircling logs 

or on in-shore schools of small tuna. These fishing methods, 

particularly fishing around logs and ocean debris, result in 

high bycatches of long-lived species such as sharks, billfish, 

and endangered sea turtles, which are generally in greater need 

of protection than dolphins. Fishing on logs or schooling fish 

also results in dangerously high catches of juvenile tunas, 

which, if practiced over time, can be expected to lead to a 

substantial decline in the tuna stocks. If practiced over 

time, we can expect a substantial decline in the tuna stocks. 

In contrast, allowing setting on dolphins under strictly 

monitored conditions will cause much less harm to the ecosystem 

as a whole, and supports a policy of conserving and protecting 

aLl species of marine life in the region. 
002 

- 9 -

Mr. Chairman, the by-catch issue is a very serious one and 

can't be dismissed as irrelevant. That is why so much hard 

scientific analysis has gone into evaluating it, based on 

logbook records and catch information verified by international 

observers and by a peer review of independent scientists. It 

is true that under the current operation of the fishery the 

bycatches are not at harmful levels. But if all of the sets 

now being made on dolphins were made instead around logs or 

schooling fish, we would harm many other,species of marine life 

in the Eastern Pacific. Yet that will be the result if we do 

not enact 2823. 

Sixth, opponents argue that since several countries whose 

vessels now fish in the Eastern Pacific are not members of the 

IATTC , the Panama Declaration does not adequately address the 

problem. We agree that all such countries should join that 

organization. Indeed, that is one of the reasons we support 

the Panama Declaration and H.R. 2823, which require, for 

another country to sell its tuna in the U.S. market, that it 

join the IATTC and participate in the program to conserve 

dolphins. For those countries now outside the IATTC, we would 

grant market access only if they took all steps necessary, 

under the IATTC treaty, to join the organization . 

Seventh, opponents of the legislation say that the Panama 

Declaration approach changes the definition of •take" in the 

MMPA or the Endangered Species Act. Again, this simply is not 

true. Nothing in H.R. 2823 changes the definition of •take" or 
- 10 -

deviates from current practices under the MMPA. The MMPA 

outlaws •taking• of marine mammals except in certain regulated 

situations. Encirclement of dolphins in the tuna fishery has 

always been one of these regulated situations. The legislation 

would not change the definition of •take.• 

Eighth, opponents criticize the Panama Declaration and the 

current dolphin protection program on the grounds that it is 

not well enforced. Mr. Chairman, as I stated earlier, there is 

an observer on every vessel; and, with the operation of the 

International Review Panel, the program has a monitoring and 

enforcement referral mechanism better than any other 

international marine resource program. In fact, it includes 

representatives of some of the very NGO groups that will 

testify here today. Moreover, Mr. Chairman, if H.R. 2823 is 

passed, we will be in a strong position to ensure that 

countries effectively enforce the program's provisions. 

This last issue highlights the difference between those who 

support the Panama Declaration and those who oppose it. 

Enforcement is always an issue. What is going to happen if we 

do not support the Panama Declaration? At a minimum we can 

expect lax compliance, lax enforcement and minimal penalties. 

Our law now is based on the days when a u.s. fleet dominated 

the fishery and has no positive incentives for good fishing 

behavior, for strong enforcement of the rules, or for strong 

penalties for their violation that are relevant to others in 

the fishery. The Panama Declaration and H.R. 2823 will, 
304 

- ll -

however, strengthen the standards, provide an incentive for 

adhering to them, and provide the U.S. with leverage to ensure 

the standards are observed. 

The fact is, Mr. Chairman, that after three years of 

adhering to the MMPA's current stringent dolphin protection 

program and seeing no prospect of relief in terms of access to 

the u.s. market, the foreign fleets and governments do not have 

a strong incentive to continue pursuing an effective compliance 

and penalty regime, and the United States has little leverage. 

We believe that with the passage of H.R. 2823, this situation 

would change. We would be in a much stronger position to 

pursue tough enforcement, and would in fact gain the leverage 

in the legislation which calls for embargoes against countries 

not adhering to the program. 

Mr. Chairman, I have also been asked to also comment on 

another bill addressing dolphin protection in the Eastern 

Pacific, H.R. 2856. This bill implements some, but not all of 

the Panama Declaration. 

We need international cooperation if we wish to accomplish 

our dolphin protection objectives and we feel H.R. 2856 will 

not bring it about, and may even lead to increased dolphin 

deaths in the years to come. We should continue to reduce 

dolphin mortalities and should have a goal of eliminating them, 

as does the Panama Declaration, but we believe further 

cooperation, not inflexible mandates is the best way to achieve 

our objectives. 
305 

- 12 -

H.R. 2856 is based upon the assumption that there are no 

alternatives to the u.s. market, and therefore we are in a 

position to unilaterally determine what happens in the fishery 

by dictating terms and conditions for access to the u.s. 

market. We can, of course, dictate the terms and conditions 

for access to the u.s. market, but we do not control the world 

market for canned tuna. The u.s. market for canned tuna is 

approximately one quarter of the world market. There are 

strong canned tuna markets in Europe, Japan, and Latin America, 

and growing markets around the world. Mexico and Venezuela, 

the two largest fishing nations for tuna in the eastern 

Pacific, have large domestic markets for tuna which can 

accommodate between 100,000 to 150,000 tons, over half the 

catch from the region. The fact is that we have had tuna 

embargoes for over six years which have had minimal impact on 

the foreign nations' ability to market their catch. 

Thank you Mr. Chairman. I look forward to answering any 

questions which you and other members of the Subcommittee may 

have. 

[Attachments to statement were placed in Subcommittee files.] 
306 

STATEMENT 

OF 

DOUGLAS HALL 

ASSIST ANT SECRETARY AND DEPUTY ADMINISTRATOR 

FOR THE 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

BEFORE THE 

HOUSE COMMITTEE ON RESOURCES 

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS 

Mr. Chairman and members of the Committee: 

Thank you for this opportunity to discuss the two bills before this committee to amend the 

tuna/dolphin provisions of the Marine Mammal Protection Act (MMPA), H.R. 2823 and HR 

2856. NOAA has long been involved in the tuna/dolphin issue in the eastern tropical Pacific 

(ETP). I would like to briefly explain our participation in the International Dolphin Conservation 

Program (IDCP) and the Inter-American Tropical Tuna Commission (IATTC} and how our 

agency's expertise and knowledge can be useful in helping to ensure that the strengthened 

program proposed under the Panama Declaration is successfully implemented. 

NOAA's role on this subject is primarily that of an agency with both scientific and 

management expertise and responsibilities for living marine resources. Our predominant concern 

is to promote responsible management of these resources. NOAA's participation in the IDCP 

and the IATTC has focused on supporting the development of the best possible conservation, 

management and protection regime for tuna and dolphin stocks in the ETP. One of the four 

U.S. Commissioners to the IATTC is the director of the NMFS Southwest Science Center, Dr. 

Michael Tillman. Through the .NMFS Southwest Science Center and the Southwest Regional 
307 

office, NMFS cooperates with the lA TIC to study tunas and related species of the eastern Pacific 

Ocean. This research has included, but is not limited to, dolphin behavioral studies, tuna stock 

assessments, and non-dolphin bycatch assessments. Many experts in NOAA have led or 

participated in tuna and dolphin research programs and their efforts have contributed greatly to 

the development of the current dolphin-safe monitoring system. Their expertise and advice has 

provided critical guidance during our review of the new management regime proposed under the 

Panama Declaration. 

Over the past year I have spent many hours discussing with the scientists and experts the 

issue we are addressing today. I have repeatedly asked them: what is the right thing to do for the 

protection of dolphins in the Pacific, and what is the right thing to do for the conservation of 

tuna? All parties agree that we are at a crossroads. We have come a long way toward ensuring 

the protection of dolphins in the ETP, thanks to progress made under the MMP A and, in recent 

years, the International Dolphin Conservation Act (IDCA). However, there is a concern at 

NOAA that the current regime under the IDCP and the lA TIC will not be able to provide the 

same level of protection and conservation to both the dolphin and tuna stocks in the future. This 

is because the Latin American countries are threatening to walkout of the IDCP and the lA TIC if 

legislation implementing the Panama Declaration is not enacted. The inevitable disintegration of 

the IDCP and the lA TIC following a walkout by the Latin American member countries would 

result in a serious erosion of the United States' capability to address the conservation and 

protection needs ofETP tuna and dolphins. We also anticipate that support for and participation 

in the comprehensive observer program would be significantly reduced. This would result in 

2 
308 

unverifiable data on dolphin monality usociated with unobserved purse seine sets on dolphins as 

well as decreased data on non-dolphin bycatch levels. Additionally, this healthy tuna fishery 

could also eventually become the target of foreign distant water fleets, who would probably not 

be a member of any regional regime, further diminishing our ability to monitor the status of both 

tuna and dolphin stocks and reducing our efforts to ensure that "safe" dolphin mortality limits are 

maintained. The ETP fishery has produced a sustainable yield ofyellowfin tuna for decades. The 

survival of the lA TIC and the IDCP is threatened because the Latin American members are 

frustrated that they have made continuing good faith efforts to address the dolphin protection 

measures demanded by the U.S., and yet access to the valuable U.S. market remains closed. After 

carefully considering the benefits of requiring a zero dolphin mortality level in the ETP tuna 

fishery, verses the impact this policy could have on the conservation of the tuna stocks in the form 

of elevated levels of juvenile tuna bycatch. non-dolphin bycatch such as sharks and endangered 

sea turtles, and the associated threat to the continuation of the lA TIC and IDCP, the experts in 

NOAA agree that the Panama Declaration represents a biologically sound approach which 

represents a significant improvement over the status quo that is technically feasible and generally 

desirable. 

I would like to join Under Secretary Wirth in supporting H.R. My agency also strongly 

supports the H.R. 2823. which would implement the Panama Declaration. We feel that the 

lA TIC is one of the most effective international fisheries agreements in existence today and that 

passage of this legislation is necessary to further strengthen this organization and to give it the 

capability of managing both dolphin and tuna stocks in the ETP. The Panama Declaration and 

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H.R. 2823 .offer an opportunity which has eluded the U.S. - the ability to consolidate dolphin 

conservation gains through an international agreement and to cap future dolphin mortality at a 

level which will have an insignificant impact on future growth of dolphin populations. H.R. 2823 

would secure the participation of all the major fishing nations in this fishery, including Mexico, 

and would provide a foundation from which to continue ETP dolphin conservation efforts. Let 

me be clear, the Panama Declaration and H.R. 2823 do not represent an endpoint or a lessening of 

the United States commitment towards dolphin conservation. Rather, this legislation represents 

recognition of the major accomplishments of the IDCP in protecting dolphins in an international 

fishery, and provides a solid basis for making further progress in protecting dolphins. Failure to 

implement this agreement by denying passage of implementing legislation significantly increases 

the possibility of the collapse of the existing IDCP and the eventual dismantling of the 

international organization that has been essential for ensuring that the dolphin conservation 

concerns of this nation are being fulfilled in the ETP. Finally, I want to. commend Representatives 

Studds and Miller for their outstanding contributions which have resulted in the current success in 

ETP dolphin protection. They have been at the forefront of this issue for years and I applaud 

their commitment to this cause. The question now is: what is the best strategy to achieve 

continued success in dolphin protection in the ETP? I am concerned that given the present 

situation, H.R. 2856 will not get us where we want to go because it does not fully implement the 

Panama Declaration. We understand that this would be unacceptable to the signatories of the 

agreement and may well result in the termination of their participation in the IDCP and the 

IATTC. I believe that the subsequent loss of international cooperation resulting from a walkout 

would significantly weaken the United States' ability to maintain the current level of protection, 

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much less improve on it, as required by the Panama Declaration. 

At this point I would like to address some of the technical and scientific concerns raised by 

opponents to the modified regime proposed in the Panama Declaration. FirSt, let me address the 

issue of tracking tuna that has been caught in a set without any observed dolphin mortality. The 

dolphin-safe monitoring system currently required by the MMP A is based on individual vessel 

trips, which means that if any intentional sets are made on dolphins in the course of a trip the 

entire catch is designated as non-dolphin-safe and not permitted to be transponed or sold in the 

U.S. This system wiU need to be modified to meet the new requirements of the set-by-set 

monitoring system proposed in the Panama Declaration. While this does increase the complexity 

of the monitoring effon, it does not represent a significant depanure from the current tracking 

system. Concern has been expressed regarding the IDCP's ability to provide a satisfactory 

degree of assurance that dolphin-safe tuna does not get mixed with tuna which is caught in sets in 

which there has been observed dolphin monality. The IDCP requires observers to be present on 

aU large purse-seine vessels fishing in the ETP. These observers would become responsible for 

tracking the loading oftuna from the two types of sets into segregated weUs. Once a designated 

weU is full, it can be sealed and coded as either dolphin-safe or non-dolphin-safe. Mechanisms 

can be established to allow an observer to monitor temperature fluctuations in the proper well, 

since temperature variations will occur when fresh fish are dumped into individual coldwater 

wells. If non-dolphin-safe tuna is directed into a well previously designated as dolphin-safe, the 

subsequent rise in water temperature would be noticeable and that well would then be 

redesignated as non-dolphin-safe. 

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Once at the canneries, the tuna can continue to be tracked during the Cllllling process 

through a paper trail derived from the required oblei'Vel"'s and captains' certificates. The 

certification papers identifY blocks of tuna as being dolphin-safe and document this status by 

identifying the vessel, the well location and the weight of tuna that was placed in that well during 

the trip in question.· This same dociunentation follows the tuna throughout the canning process, 

into cold storage and during any subsequent transportation of the product. Additionally, each can 

is printed with an encrypted code which provides an investigator access to the processing records 

which certifY the origins and processing of that particular batch of tuna. This is essentially the 

same scheme used to track tuna for human health purposes. 

Another concern of opponents (as well as proponents) ofH.R. 2823 is the amount of nondolphin bycatch (undersized tuna. sea turtles, sharks, and sportfish) associated with alternative 

methods of fishing for tuna. Purse seining "on dolphins" is the method used when dolphins are 

encircled and the net drawn tight from below, capturing the large tuna which travel below schools 

of dolphins. The two alternative purse seine methods to setting "on dolphins" are setting on tuna 

in association with Jogs or other floating debris on the surface (log-sets); and setting on tuna 

schooling on the surface (school sets). Dr. Elizabeth Edwards, a NMFS scientist from the 

Southwest Science Center who will be testifYing later in this hearing on the technical panel, has 

recently completed a paper for publication on this issue. A brief summary of her investigations 

indicates that the expected tuna discard rate per set was 100 times higher for log sets, and 10 

times higher for school sets, than for dolphin sets. If fishing effort is shifted from sets on 

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dolphins, where the largest and most sexually mature fish are caught with the least bycatch, to log 

and school sets where smaller and even pre-reproductive fish are caught, we risk compromising 

the long-term sustainability of the tuna fishery in the ETP. 

Opponents are also concerned about the enforcement of the program requirements of the 

ecisting IDCP. The International Review Panel (IRP) of the IDCP is responsible for referring 

possible violations to member countries and monitoring their responses. The IRP meets three 

times a year. Each country participating in tile program has a govenunent representative on the 

IRP. The NMFS Southwest Regional Director, Hilda Diai~Soltero, is the U.S. representative. 

Additionally, several environmental nongovernmental organizations and industry representatives 

participate as non-voting members. The IRP reviews observer records, which have been initially 

screened by lA TIC staff, for dolphin rescue, gear and other possible violations. The IRP 

determines whether the violations are major or minor, and then has this information transmitted 

to the country under whose ftag an offending vessel operates, and requests that the country 

investigate and take appropriate legal action. At subsequent meetings, the IRP requests these 

countries provide reports of actions taken against violators. The IRP helps to ensure that U.S. · 

interests are acknowledged and acted upon and allows the costly and time consuming burden of 

enforcement to be shared among the member nations. One benefit of the Panama Declaration and 

H.R. 2823 is that the provisions of a strengthened La Jolla Agreement would become binding on 

the participating countries. In addition, under H.R. 2823, if it is determined that a nation is 

consistently failing to take enforcement action on violations which diminish the effectiveness of 

the IDCP, the U.S. can pursue sanctions against the non-complying nation. 

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Fmally, there is the issue of how the legislation would impact the status and growth rate of 

the various dolphin stocks, particularly those whose populations have been designatl!d as depleted 

under the MMP A. Obviously, not setting on dolphins at all would be the surest way to eliminate 

dolphin mortality. Unfortunately the elevated amount of juvenile tuna bycatch and other nondolphin bycatch associated with the alternative fishing methods such as log and school fish sets, 

detracts from this preferred option. Setting on dolphins is preferable from the perspective of tuna 

stock conservation because the largest,. most sexually mature fish are caught during dolphin sets 

while generating the least amount of juvenile tuna bycatch and other non-dolphin bycatch. The 

Panama Declaration acknowledges the need to balance these competing conservation needs by 

establishing that the maximum annual level of dolphin mortality for individual populations not 

exceed 0.2% of the minimum population estimate through the year 2000. The maximum 

allowable level would drop to 0.1% of the minimum estimate in 2001. The 0.1% level for ETP 

dolphins is equivalent to the "insignificant level approaching zero [mortality rate]" goal for the US 

domestic commercial fishery identified in the 1994 reauthorization of the MMPA to be met 

before 200 I. 'Therefore. adopting the Panama Declaration would ensure that IATTC member 

countries be required to reach the "insignificant" mortality levels the U.S. is demanding of its own 

domestic commercial fishing fleets by the year 200 I. While the Panama Declaration does not 

completely eliminate dolphin mortality, it limits mortality to a level that has an insignificant impact 

on the rate of growth of any of the dolphin populations. It should be noted that the Panama 

Declaration has as a stated goal the elimination of dolphin mortality. Also, research will continue 

into ways of harvesting large yellowfin tuna without setting on dolphins and without shifting 

efforts toward fishing practices which may result in higher levels of non-dolphin bycatch. 

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In conclusion, it is NOAA's position that the tuna/dolphin management regime to be 

established by the Panama Declaration and the associated implementing legislation, H.R. 2823, 

provides for conservative, ecologically responsible living marine resource management in the 

ETP yellowfin tuna fishery and provides a responsible basis for protecting dolphins in this 

international fishery. As the U.S. agency with stewardship responsibility for living marine 

resources, we believe that the Panama Declaration and its implementing legislation offer the U.S. 

the best opportunity for balancing the need to ensure adequate protection for dolphin stocks with 

the desire to maintain a healthy, sustainable and commercially viable international tuna fishery in 

the ETP. I urge Members of this committee to support passage of HR. 2823 . 

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315 

STATEMENT 

OF 

DR. ELIZABETH EDWARDS 

LEADER, DOLPHIN-SAFE RESEARCH PROGRAM 

NATIONAL MARINE FISHERIES SERVICE 

SOUiliWEST FISHERIES SCIENCE CENTER 

FOR THE 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

BEFORE THE 

HOUSE COMMITTEE ON RESOURCES 

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS 

Mr. Chairman and members of the Committee: 

Thank you for the opportunity to testifY before this committee. My testimony summarizes 

the current state of scientific knowledge in three areas related t.o the purse-seine fishery for tuna in 

the eastern tropical Pacific Ocean (ETP); I) the estimated current and historical population levels 

of dolphins affected by the fishery, 2) the non-dolphin bycatch generated by the fishery, and 3) the 

potential for fishery-related stress effects on population dynamics of dolphins affected by the 

fishery. 

1) Abuadanee aad incidental mortality of ETP dolphins. 

Estimates of current abundance exist for four species (divided among ten stocks) of 

dolphins that inhabit various portions of the area used by the ETP tuna purse-seine fishery. 

2Q-276 - 96 - 11 
316 

Comparisons of estimated historical vs. rurrent abundance have been made for seven of the ten 

stocks. Two of these stocks (northeastern spotted and eastern spinner) are apparently depleted to 

about 1/Sth of their abundlllCe prior to initiation of tuna purse seine fishery (prior to 1960). One 

of these stocks (southern common dolphin) has apparently been little affected by the fishery, and 

the other 4 stocks (southeastern spotted, whitebelly spinner, and central and northern conunon 

dolphins) have apparently been reduced to between 213 and 3/4 of their historical abundance. 

Estimates of abundance for stocks affected by the fishery indicate that population levels decreased 

rapidly during the 1970's, decreased somewhat more slowly during the early 1980's, and have 

been relatively stable during the last 10 years (no statistically significant trends have been found). 

None of the stocks are in danger of extinction. 

Fishery interference with these dolphin stocks (expressed as number of dolphin sets) is 

directed primarily at one species- the spotted dolphin. Over 85% of the purse-seine sets on 

dolphins by this fishery during 1993 and 1994 were made on pure or mixed schools of this 

species. About 5 % of sets were made on common dolphins, 5% on spinner dolphins mixed with 

spotted dolphins, and the remaining 5% of sets on various other stocks. Mortality data reflect 

these preferences, with spotted dolphins accounting for about 65% of annual fishery-related 

mortality during 1993 and 1994, common dolphins about 1 0"/o, and the remaining stocks the 

remaining 25%. Observed mortality levels during recent years are quite low relative to estimated 

rurrent abundance. Current set-related losses per year are less than Ill OOOth of rurrent estimated 

abundance for all but 2 stocks (northeastern spotted and eastern spinner). For those two stocks, 

rurrent losses are less than 2/1 OOOths of rurrent estimated abundance. 

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Thus, although current abundance levels of some stocks are considerably lower than 

historical levels, current levels of observed fishery-related mortality are quite low relative to 

current abundance. It is not likely that annual losses ofthis magnitude seriously affect dolphin 

stock dynamics. 

1) Non-Dolphin Byeatch. 

tuna purse-seine fishery in ETP captures yellowfin tuna under 3 different circumstances; 

when fish are swimming with dolphins (dolphin sets), when they ·are swimming by themselves or 

with some other like-sized tuna (school fish sets), and when fish are collected under or near 

floating objects (log fishing). Dolphin sets generally catch large yellowfin, school sets generally 

catch small yellowfin, and log sets generally catch small and very small yellowfin tuna. All three 

set types generate bycatch, i.e., catch animals other than desired tuna. bycatch is generally 

returned to ocean. In case of dolphin sets, "bycatch" of dolphins is almost always released 

alive. In case of schoolfish and log sets, bycatch is usually returned to ocean dead. Dolphin 

sets generate primarily dolphin "bycatch"; few if any other animals are caught other than targeted 

large yeUowfin tuna. School sets and log sets do not catch dolphins but do catch other animals; 

including many types of fish. Log sets catch an especially wide variety of animals, including large 

sportfishes, sharks, and turtles, in addition to many types of small fishes including a variety of tuna 

species. Bycatch of yellowfin tuna from schoolfish and logs sets is particular unfortunate, because 

these small discarded fish are wasted resources that cannot subsequently grow to harvestable size. 

In addition, aithough no stock-recruitment relationship has yet been demonstrated for yellowfin 

tuna, it may .also be significant that these small discarded yellowfin are pre-reproductive. By 

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discarding them, fishers have also discarded any future contribution these fish might have made to 

replenishing the parent stock. 

NMFS conducted a study of tuna bycatch in the ETP from dolphin, schoolfish, and log 

sets during 1989-1992. The results of this study are corroborated by a much more extensive 

bycatch sampling program being conducted by the lA TIC. For tuna bycatch only, expected 

discard per set was approximately 200 pounds per dolphin set, 1.0 ton per school set, and 10 tons 

per log set, i.e., each school set generates 10 times, and each log set generates I 00 times, the tuna 

bycatch generated by a single dolphin set. Other types of non-dolphin bycatch show similar 

patterns, with bycatch generally being low or non-existent in dolphin sets, low to moderate 

(relatively) in school sets, and high to very high (again, relatively) in log sets. 

For yellowfin tuna, it is possible to make rough estimates of amount of discard relative to 

annual recruitment to the fishery and the long-term effects on commercial catch if fishing effort is 

redirecting from dolphin set to log or schoolfish sets. Under current yellowfin fishing effort 

patterns, in which about SO % of effort is on dolphins and 25 % each on school and log sets, 

discard is probably about S-10% of recruitment (i.e., S-10"/o of the number of small yellowfin 

large enough to get caught in purse-seines). This amount probably has a negligible impact on 

annual recruitment. If all current fishing effort is redirected from dolphin sets to log sets 

yellowfin discard rate is estimated to increase by a factor of about 3.5, generating a combined 

effect of discard and changes in yield per recruit that results in an estimated 30-SO"/o reduction in 

yield. This level of change in recruitment is likely not negligible. 

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Similar calculations cannot be done for any otl)er non-dolphin bycatch species, because no 

information exists on population abundance or dynamics for any of these species. Therefore, the 

effect on these species of increased bycatch due to changes in patterns of fishing effort cannot be 

quantified at this time; but neither should it be ignored. Despite the current lack of population 

data, the general picture is clear; non-dolphin bycatch is very low in dolphin sets, higher in school 

sets, and much higher in log sets. The additional non-dolphin bycatch generated by a single 

additional log set far outweighs the decrease in non-dolphin bycatch achieved by eliminating a 

single dolphin or school set. 

From a scientific perspective, given that current fishery practices and I 00% scientific 

observer coverage have helped reduced dolphin mortality far below levels that might threaten the 

survival ofETP dolphin stocks, and given that market forces continue to dictate an undiminished 

interest in harvesting yellowfin tuna from this ecosystem, the most ecologically responsible 

method currently available for effecting harvest of yellowfin from the ETP is the current 

situation, in which the majority of effort is directed at capturing large yellowfin. However, 

minimizing bycatch, both dolphin and non-dolphin, remains a strong international concern, and 

research should continue on methods which reduce all types of bycatch. 

3) Fishery-induced stress in ETP dolphins. 

Concerns have been expressed that fishery interference with these dolphins also includes a 

significant effect of fishery-induced stress on population dynamics. In particular, it has been 

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320 

suggested that physiological stresses engendered by the process of chase, set, and release during 

tuna purse-seining may be causing unobserved mortality and/or reproductive difficulties, leading 

to decreased rates of survival or fecundity in these dolphin stocks. Either or both of these effects 

could potentially interfere with any rate of population recovery occurring within a dolphin stock. 

Some preliminary work has been done in this area, however no definitive results are yet available 

because research to date has focussed on reducing directly observed mortality and injury rates to 

non-threatening levels. · preliminary stress research available to date suggests but does not 

unequivocally demonstrate the presence of stress effects in these animals. 

In the absence of more precise data, it is difficult to predict the response of ETP dolphins 

to fishery-induced stress, given that all of the dolphins currently affected by the fishery were born 

into and grew up with it (the maximum life span ofETP dolphins is about 30 years; the purseseine fishery has been in existence about 35 years). Obviously, at least some fraction of the 

dolphin stocks have been able to tolerate the practice, but there is as yet no information about the 

fraction(s) that may have been adversely affected, and to what extent. Much more detailed 

investigation is needed with respect to the potential effects of fishery-related stress on population 

dynamics in ETP dolphins. 

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U.S. House of Representatives 

Committee on Resources 

Subcommittee on Fisheries and Wilcllife and Oceans 

HEARING 

To Obtain Testimony on 

H.R. 2823, 

International Dolphin Conservation Act, 

and H.R. 2856, 

International Dolphin Protection 

and Consumer Information Act of 1995. 

Statement of 

James Joseph, PhD. 

Director, Inter-American Tropical Tuna Commission 

Washington, D.C. 

February 29,1996 
322 

Mr. Chairman, Members of the Committee: 

Thank you for giving me this opportunity to present information to your 

Committee concerning the conservation of tunas and dolphins in the eastern Pacific 

Ocean. 

In my testimony I will describe briefly the background to the present situation of 

the tuna purse-seine fishery of the eastern Pacific Ocean, review the current status of the 

tuna and dolphin populations involved in the fiShery, outline the successes and problems 

of the current International Dolphin Conservation Program, administered by the InterAmerican Tropical Tuna Commission (IATTC), and describe how the program could be 

affected by the implementation of the proposed legislation, H.R 2823 and H.R 2856. 

I. PRIOR TO 1975 

Development of the fishery 

The fishery for yellowfm tuna, Thunnus albacares, in the eastern Pacific Ocean (EPO) 

began shortly after the turn of the century off Southern California and Baja California. 

As demand increased, the fishery moved southward and seaward, and by 1940 vessels 

were fishing in an area that extended from the U.S.-Mexican border to the equator and 

several hundred miles offshore (Figure 1). During this period nearly all the vessels were 

U.S.-registered baitboats. 

Due to the low productivity of the baitboats and the import into the United States 

during the mid-19505 of cheap tuna caught by vessels of other nations, the U.S. fleet 

suffered severe economic hardship, and many vessels were retired from the fishery. 

However, that period saw the development of synthetic fiber purse-seine nets and the 

hydraulic power block for retrieving the nets, and in 1957 the first U.S. baitboat was 

converted to purse-seine fishing. The immediate result was that the vessel's catch rate 

more than doubled; this success started a wave of conversions, and within a few years 

nearly all the baitboats in the fleet had been converted to purse-seining. However, use of 

the new gear .had several other consequences, one of which was incidental mortality of 

dolphins. 

Before the advent of the modern tuna purse-seine vessel, commercial fishermen 

mostly caught tunas in free-swimming schools, a mode of fishing known as "school 

fishing," or by fishing near floating objects, such as tree trunks, under which tunas often 

congregate, a mode known as "log fishing." The fishermen had long known that herds of 

some species of dolphins were often accompanied by schools of large yellowfin tuna, and 

with the new purse-seine gear they were able to develop a technique that took advantage 

of this association to increase their efficiency in capturing tuna. In this mode of fishing, 

known as "dolphin fiShing" or fiShing "on dolphins," the net is set around the tunas and 

the dolphins, and then the dolphins are released and the tunas loaded onto the vessel. 

Often dolphins die as a result of becoming trapped or entangled in the net, and in the 

early years of the fishery these incidental mortalities were very high. 

House Hearing, 2/96 -1 
323 

It was not until1968 that data on the magnitude of the problem were collected. 1n 

that year a scientist who had accompanied a tuna-fishing trip made by a U.S. purse seiner 

reported on the dolphin mortality he observed during that trip. As a result of these 

reports, the possibility that high mortalities of dolphins wer~ being caused by the fishery 

became public knowledge. 

All this occurred about the time of the controversy over harp seals in Canada and 

the international concern over the overexploitation of some populations of great whales. 

Action by the International Whaling Commission to halt the hunting of the whales and 

efforts to ban the harvesting of seals for furs brought intense public attention and 

pressure to the issue of marine mammal protection. 

The U.S. Marine Mammal Protection Act 

Congress moved to draft legislation for the protection of marine mammals. Public 

awareness of the high dolphin mortality in the tuna fishery in the eastern Pacific, coupled 

with the fact that vessels of U.S. registry were responsible for almost all fishing for tuna 

in association with dolphins, was instrumental in the passage of the Marine Mammal 

Protection Act (MMPA) of 1972. This Act directs that all marine mammal populations be 

managed for their "optimum sustainable population," defined as "the number of animals 

which will result in the maximum productivity of the population or species." It imposed 

a moratorium on the taking of marine mammals, but with two exceptions, applicable 

only to species or populations which were not endangered: taking for subsistence or 

traditional purposes by Native Americans, and incidental captures during commercial 

fishing operations. With respect to the latter, the Act states as its aim that "the immediate 

goal that the incidental kill or incidental serious injury of marine mammals permitted in 

the course of commercial fishing operations be reduced to insignificant levels 

approaching a zero mortality and serious injury rate." 1n addition, it provides for a ban 

on "the importation of commercial fish or products from fish which have been caught 

with commercial fishing technology which results in the incidental kill or incidental 

serious injury of ocean mammals in excess of United States standards." 

Once the MMPA became law, the National Marine Fisheries Service (NMFS) 

initiated a program to study the tuna-dolphin problem and to seek ways to reduce the 

mortality of dolphins caused by the fishery. The program included the regular 

placement of observers aboard tuna boats in order to collect data on this mortality. From 

1973 through 1975 annual mortality was estimated at about 140,000 dolphins per year. It 

was estimated that from 1960 through 1972 the annual mortality might have been as high 

as some 350,000 dolphins, but these early estimates were based on very scanty data. 

During this period nearly all vessels fishing for tunas associated with dolphins were 

of U.S. registry, and efforts by environmental organizations, Congress, and the U.S. 

administration succeeded in bringing the problem of incidental mortality under control. 

However, the increasing numbers of vessels of other nations fishing on dolphins (Table 1) 

and the concomitant increase in dolphin mortality were outside U.S. jurisdiction. The 

two principal outcomes of this situation were the development of an international 

program to resolve the problem, and the imposition of trade measures by the United 

House Hearing, 2/96 - 2 
324 

States to ensure that imports of yellowfin tuna from the eastern Pacific were caught in 

conformity with U.S. standards for dolphin protection. 

II. 1975-1991 

Internationalization of the tuna-dolphin problem 

Because of the increasingly international composition of the tuna fleet in the eastern 

Pacific, action was initiated within the lA TrC to establish an international program to 

address the tuna-dolphin problem. In 1976 the member governments of the IATIC 

agreed to a program with the following objectives: "(1) to maintain a high level of tuna 

production, and also [2) to maintain [dolphin) stocks at or above levels that assure their 

survival in perpetuity, [3) with every reasonable effort being made to avoid needless or 

senseless killing of [dolphins)." 

The aims of the program were to estimate the extent of the dolphin mortality 

caused by the international fleet, assess the impact of this mortality on the dolphin 

populations, and investigate ways to reduce dolphin mortality caused by the fishery to 

the lowest possible levels. 

One of the first steps the IA TTC took was to establish an observer program, similar 

to that of the NMFS. However, funds did not become available to implement the 

program until1979, and the first observers were placed on non-U.S. vessels in 1980. It 

was not until 1986 that all nations with vessels capable of fishing on dolphins in the 

eastern Pacific participated in the IATTC program. The level of observer coverage from 

1980 to the present is shown in Table 2. 

Another part of the IATTC program involved the development and identification of 

fishing gear and methods that could prove useful in reducing dolphin mortality, and the 

transfer of this information to the fishing fleet. Some aspects of this program were 

patterned after the NMFS program, initiated for the U.S. fleet some years earlier, and 

both programs worked in close cooperation. Information and training workshops for 

key personnel from the tuna industry were held in the home ports of tuna vessels 

involved in the fishery, and IATTC personnel carried out routine inspections of fishing 

gear and nets to ensure that they were as effective as possible in minimizing dolphin 

mortality. 

The total mortality of dolphins in the fishery in 1986, the first year in which all 

national fleets took part in the program, was estimated by the IATTC staff to be 133,000 

animals. With the exception of 1989, the mortality declined each year, and by the end of 

1991 fell to 27,300 dolphins, a reduction of some 80% from 1986. These reductions were 

due to a number of factors, the most important of which were the commitment of the 

fishermen, the presence of observers aboard the vessels, workshops and training sessions 

conducted by IATTC staff, the continuing pressure from environmental groups to reduce 

the mortality, and the efforts of governments to work with the tuna industry to achieve 

that aim. 

House Hearing, 2/96 • 3 
325 

At about the same time as the IATIC program was becoming fully operational, 

Congress was drafting legislation which provided for embargoes on nations whose 

vessels fished for tunas associated with dolphins in a manner proscribed for U.S. vessels. 

This legislation resulted in the imposition of embargoes on as many as 20 nations. In 

1990, as a result of threatened boycotts of the products of companies which canned tuna 

caught in association with dolphins, the largest u.s. tuna-canning company announced 

that it would no longer purchase tuna from purse-seine vessels fishing in the eastern 

Pacific unless such tuna was accompanied by a certification from the lA TIC or the U.S. 

Department of Commerce that it was not taken in association with dolphins. Within 

days, the other U.S. canners followed suit. In that same year Congress passed the 

Dolphin Protection and Consumer Information Act, included as an amendment to the 

Magnuson Fishery Conservation and Management Act (MFCMA) of 1990 (Title IX), 

which provided for the use of a "dolphin-safe" label on cans of tuna not caught in 

association with dolphins. 

Impact of the U.S. embargoes and the U.S. canners' "dolphin-safe" policy 

One result of the U.S. canners' "dolphin-safe" policy was a sudden change in the 

world trade in tuna. The United States, the most important market for canned tuna in 

the world, was in effect closed to imports of large yellowfin from the eastern Pacific. 

Much of this catch was diverted to Latin America and to Europe, the second largest 

market; the resulting abundance of supply and the lack of competition from U.S. canners 

led to a precipitous fall in the price paid for the fish in Europe. This, in turn, affected the 

prices paid in other markets elsewhere in the world. 

Another consequence was the almost immediate departure of most of the remaining 

U.S. vessels from the eastern Pacific. Prior to the U.S. canners' decision, there were about 

35large U.S. vessels fishing for tuna in association with dolphins; of these, only 5 remain 

in the eastern Pacific. The primary reason for this exodus was that vessel operators did 

not consider it economically feasible to remain in the eastern Pacific unless they could 

fish for tunas associated with dolphins. Not only is the catch rate of yellowfin for this 

mode of fishing significantly higher than that of fishing on schoolfish or on logs, but the 

large yellowfin caught mainly in association with dolphins command a higher price than 

do small yellowfin and skipjack tunas. 

Neither these "dolphin-safe" policies nor the embargoes were successful in putting 

an end to fishing on dolphins: the proportion of the catch taken in this way did not 

change in 1990 nor 1991. However, these actions did help to stimulate efforts on the part 

of the fishing fleets to cooperate in the international program and to employ methods for 

reducing dolphin mortality recommended by the program. 

Although the levels of mortality had been reduced to substantially below the rate of 

growth of the dolphin population there was still great pressure from environmental 

groups and the U.S. government to prohibit the practice of fishing on dolphins. 

However, because of the nature of the fishery and the association of tunas and dolphins, 

a prohibition on catching tunas associated with dolphins would result in other ecological 

problems. 

House Hearing, 2/96- 4 
326 

Yield of yellowfin and bycatch 

In order to understand what these problems are it is necessary to understand how 

the fishery operates. 

As mentioned above, there are three modes of fishing for tunas with purse seines: 

on dolphins, on logs, and on schoolfish. The tuna caught in association with dolphins are 

almost exclusively large, sexually mature yellowfin, averaging about 45 pounds; log and 

school fishing catch principally yellowfin and skipjack tunas, but the schools of yellowfin 

caught with these modes of fishing consist of small, sexually immature fish, averaging 

about 10 to 15 pounds (Figure 2). If fishing on dolphins were prohibited, all effort would 

be directed to these other modes of fishing either in the EPO or other areas. Most of the 

yellow fin caught would be small, and would not yet have spawned nor had a chance to 

grow to a size at which they would contribute more to the catch. The eventual result 

would be a reduction of over one-half in the average size of fish in the catch, causing a 

substantial decline in the yield per recruit (Figure 3). Eventually, this "growth 

overfishing" would reduce the catch of yellow fin by between 25 and 60% even if fishing 

effort increased. An additional concern is the bycatch of large numbers of other marine 

species. This is particularly significant in log fishing, in which large amounts of very 

small tunas of no commercial value, as well as large numbers of other species such as 

billfish, sharks, mahi-mahi, and some sea turtles, are discarded to the sea, most of them 

dead. 

Table 3 lists the species or species groups discarded dead by each of the three 

modes of fishing during 1993-1994, for a sample of the international fleet, expressed in 

number of animals per thousand tons of yellowfin tuna landed. The lowest discard rate 

is for dolphin-associated fish; the highest, for log fishing, is several hundred times higher. 

Additionally, large numbers of small yellowfin of no commercial value are discarded: it 

is estimated that in 1993 and 1994 the fishery on logs discarded between 3 and 7 million 

small individuals of the species. This represents between about 4 and 9% of the total 

recruitment of young yellowfin into the fishery. Although itis not currently possible to 

assess the impact of such discards on the ecosystem being exploited, caution should be 

exercised with regard to any possible action which might lead to an increase in bycatch. 

If all fishing on dolphins were prohibited, the bycatch problem would become 

much more severe. The 7 to 10 thousand sets now made on dolphins would be made on 

logs and schoolfish; by catches would increase considerably. It is estimated that between 

8 and 25 million small yellow fin would be discarded to the sea dead; this represents 

between about 10 and 32% of the total recruitment for the species, and would very likely 

have a significant impact on the yellowfin population. 

In view of these factors, it seemed clear to the nations of the region that a 

prohibition on fishing for tunas on dolphins could be ecologically dangerous. Therefore, 

in an effort to further reduce dolphin mortality and at the same time maintain a healthy 

ecosystem and promote a rational conservation of tuna stocks, in 1990 the member 

governments of the lA 1TC initiated discussions of possible mechanisms to achieve these 

goals. 

House Hearing, 2/96 - 5 
327 

III. 1992-PRESENT 

The International Dolphin Conservation Program 

The result of these efforts was the Agreement for the Conservation of Dolphins, 

known as the La Jolla Agreement, reached in June 1992 by ten nations with an interest in 

the fishery. This Agreement, a copy of which is attached as Appendix 1, is unique, and 

sets a number of precedents in the management of international fisheries resources. Its 

objectives are: 

"(1) progressively reducing dolphin mortality in the [eastern Pacific Ocean) fishery 

to levels approaching zero through the setting of annual limits and (2), with a goal of 

eliminating dolphin mortality in this fishery, seeking ecologically sound means of 

capturing large yellow fin tunas not in association with dolphins while maintaining the 

populations of yellowfin tuna in the [eastern Pacific Ocean) at a level which will permit 

maximum sustained catches year after year." 

To achieve these objectives, a schedule of progressively decreasing annual limits on 

dolphin mortality was implemented, and a research program approved. This program is 

intended to find methods to improve the effectiveness of current purse-seine technology 

in reducing dolphin mortality, and to seek alternative means of catching large yelloWfin 

tunas which do not involve encircling dolphins. 

The mortality reduction program would limit mortality to less than 5,000 animals 

by 1999, in accordance with the following schedule: 

Year Limit 

1993 19,500 

1994 15,500 

1995 12,000 

1996 9,000 

1997 7,500 

1998 6,500 

1999 <5,000 

It was agreed that the overall limit for each year would be divided among vessels 

that intended to fish for tunas associated with dolphins and that met certain 

requirements regarding fishing equipment and procedures and crew training. These 

vessels could apply for individual dolphin mortality limits (DMLs); these would be 

calculated by dividing the annual limit for all vessels by the number of vessels requesting 

DMLs. With this system, those vessels that kept within their individual DMLs could fish 

on dolphins all year, but those that did not would have to abandon this mode of fishing 

for the rest of the year when they reac:hed their DMLs. Thus, each vessel would be 

House Hearing, 2/96 • 6 
328 

competing not against other vessels for a share of a quota, but rather against its own 

ability to reduce dolphin mortality, and careful operators would not be hurt by careless 

ones. Compliance with the limits would be verified by observers, who would 

accompany every trip made by vessels of carrying capacity greater than 400 tons. 

Many of the provisions of the Agreement establish precedents in the management 

of multinational fisheries. Two examples of this are the allocation of limits to individual 

vessels of different nations by an international organization, and the composition and 

function of the International Review Panel (IRP) established to monitor compliance with 

the provisions of the Agreement. 

The International Review Panel is composed of representatives of governments, the 

fishing industry, and environmental organizations. Its principal duty is to review the 

observers' records of each vessel's fishing activities, and to make recommendations to the 

governments party to the Agreement on technical aspects affecting the implementation 

of the program. Infractions of the Agreement are reported to the vessel's flag state, 

which is requested to notify the Panel of any measures taken against the vessel. To date, 

the Panel has identified and classified infractions of the Agreement and recommended to 

the governments standardized sanctions for specific infractions, proposed multinational 

measures to be taken against nations that violate the terms of the Agreement, established 

criteria to determine which vessels qualify for DMLs, set up guidelines for dealing with 

specific situations, such as high-mortality sets, and developed rules for the distribution of 

DMLs in the second semester of the year. 

These infractions are categorized into two types: major infractions which directly 

compromise the objectives of the program, and minor infractions which constitute poor 

fishing practices. From the inception of the program until October 1995, there have been 

about 35 major and 1500 minor infractions reported to governments by the IRP. In 

addition, there have been 17 instances of observer interference. The program managers 

have considered that some cases of observer interference could be serious threats to the 

success of the program, so they have accelerated communication with governments 

concerning these cases. In all these cases, whether major or minor, governments have 

reported the actions they have taken to the IRP. In three cases governments determined 

that a sanctionable act did not occur or that they could not act on the evidence presented. 

In two cases the fishing captains' licenses were suspended for one year. For three cases, 

after due process, sanctions will be applied. (These can be fines equivalent to up to 2000 

times the minimum daily wage, license suspension, or jail terms.) In one case a warning 

was issued. The remaining nine cases are still being investigated and processed. There 

were an additional34 major infractions in which no backdown fO remove dolphins was 

made or in which dolphins were still in the net when it was sacked. In 19 of these cases, 

governments have reported to the IRP that investigations are in process. 

About 40% of the approximately 1500 minor infractions, were due to lack of 

required dolphin safety gear on board (most of these were for vessels that fished dolphin 

safe), and about 50% involved the use of explosive devices to herd the dolphins. Of these 

1500 minor infractions, governments have reported in 51% for more than half the cases 

that they are being processed. 

House Hearing, 2/96- 7 
329 

In late 1995, three vessels made sets on dolphins after their DMI.s were filled. One 

vessel made four sets, the other made 14, and information for the third is still being 

collected. These were reported to governments in January, and are being processed. 

All of these reports of infractions are the result of reviews by the lRP of 1,201 trips 

and 19,089 sets made during 1993, 1994, and 1995. Action by governments respecting 

these reported infractions has not been as complete nor as rapid as we wo.uld like it to be, 

but it is improving. Part of this has to do with the ability of governments to take action 

within their own legal system. In some cases "due process" is slow and cumbersome. In 

one case, a national law makes it difficult to take action based on the recommendations of 

an international agreement which is not legally binding. In another case, a national laws 

prohibits the use of reports of international observers in the legal system of that country. 

In both cases the national laws are being modified. Considering the legal and political 

constraints affecting some states, and considering the fact that the lRP is a referral body 

not a "police" body, progress being made in the program is quite good, and is far in 

advance of progress made in international cooperation in other fisheries. If the 

recommendations of the Declaration of Panama are implemented, the program will be 

strengthened significantly. 

The Agreement also provides for the establishment of a Scientific Advisory Board 

(SAB) of technical experts to assist the IATTC in matters regarding research to modify 

current purse-seine technology aimed at reducing dolphin mortality and seeking 

alternative means of capturing large yellowfin tuna. The SAB has identified a number of 

research projects which could lead to further reductions in mortality, but due to lack of 

funding it has not been possible to carry out these projects. 

This international program is not only unique in attempting to resolve a 

multispecies conservation problem and in establishing a series of technical, enforcement, 

and research mechanisms to accomplish this objective, but is also consistent with the 

objectives of the MMPA regarding international cooperation, which mandate that: 

"The Secretary, through the Secretary of State, shall.. ... (2) initiate ..... (B) 

discussions with foreign governments whose vessels harvest yellowfin tuna with 

purse seines in the eastern tropical Pacific Ocean, for the purpose of concluding, 

through the Inter-American Tropical Tuna Commission or such other bilateral or 

multilateral institutions as may be appropriate, international arrangements for 

the conservation of marine mammals taken incidentally in the course of 

harvesting such tuna, which should include provisions for (i) cooperative 

research into alternative methods of locating and catchirtg yellowfin tuna which 

do not involve the taking of marine mammals, (ii) cooperative research on the 

status of affected marine mammal population stocks, (iii) reliable monitoring of 

the number, rate, and species of marine mammals taken by vessels of harvesting 

nations, (iv) limitations on incidental take levels based upon the best scientific 

information available, and (v) the use of the best marine mammal safety 

techniques and equipment that are economically and technologically practicable 

to reduce the incidental kill and serious injury of marine mammals to 

insignificant levels approaching a zero mortality and serious injury rate." 

House Hearing, 2/96- 8 
330 

During 1992, at the time the Agreement was being negotiated, dolphin mortality 

continued to decline; the total for that year was 15,539 dolphins. 

The first year of the new DML program was 1993, and in that year the mortality fell 

dramatically, to 3,601 dolphins, a level not only far below the overall limit set for that 

year, but also lower than the target set for 1999. Based on these results, the governments 

lowered the 1994limit from 15,500 to 9,300 animals; in that year the mortality totaled 

4,095 dolphins. The increase over 1993 was due to a single set in which a rare 

combination of mechanical problems and environmental conditions had led to high 

mortality of dolphins, despite the fishermen's best efforts. Excluding that one set, the 

mortality was once again lower than in the pre~ding year. 

For 1995, the governments once again lowered the overall limit, from 12,000 

animals to 9,300; in that year the fishing effort on dolphins remained about the same but 

mortality was reduced to 3274. 

In summary, the International Dolphin Conservation Program is working 

remarkably well. Between 1986 and 1995 the annual mortality of dolphins in the fishery 

has been reduced by 98%. During that period th~ mortality per set, the measure used to 

gauge the fishermen's performance in reducing mortality, declined from about 13.0 

animals killed in each set of the net to less than 0.5 animals, a decline of 96%. Despite the 

U.S. canners' "dolphin-safe" policy and the severe restrictions imposed on fishing on 

dolphins by the U.S. government, the proportion of the total catch of tunas from the 

eastern Pacific which is caught in this manner has not changed appreciably. U.S. vessels 

have been replaced by vessels of other nations, and fishing on dolphins has continued: in 

1995 the catch on dolphins decreased by about 10% over the 1986-1992 average. 

The trends in total dolphin mortality, mortality per set, and the total number of sets 

made from 1986 to 1995 are shown in Figure 4. 

The International Dolphin Conservation Act of 1992 

At about the same time as the nations of the eastern Pacific region were drawing up 

the La Jolla Agreement, Congress was considering legislation that would impose a 

moratorium on fishing on dolphins in the eastern Pacific. This legislation, approved as 

the International Dolphin Conservation Act in 1992, required that before the moratorium 

could go into effect at least one other nation with a purse-seine tuna fleet enter into an 

agreement with the United States, prior to March 1, 1994, to prohibit fishing on dolphins. 

Failing such an agreement, U.S. vessels would be limited to a maXimum total mortality of 

800 dolphins in the period from March 1 to December 31, 1994, or to a maximum which 

was less, to a statistically significant degree, than the actual mortality caused by U.S. 

vessels during that period. 

No other nation agreed to the moratorium, so it never came into force. However, 

the limitations were imposed on U.S. vessels, effectively prohibiting them from fishing 

on dolphins. 

House Hearing, 2/%- 9 
331 

As already noted, the La Jolla Agreement has been very successful in reducing 

dolphin mortality. Total mortality has been reduced to extremely low levels, 

representing about 0.03% of the total population of dolphins (see Table 4 for a 

breakdown by stocks) and less than 0.15% for each of the stocks individually, catches of 

tuna have remained high, as has the average size of the yellowfin caught, and.all nations 

with tuna vessels operating in the eastern Pacific continue to cooperate in the program. 

However, many of these nations are still very concerned, because they continue to be 

encouraged to fish "dolphin-safe," a mode of fishing they consider ecologically unsound. 

The Declaration of Panama 

The concern of these nations led to extensive discussions on possible ways of 

modifying the current management arrangements for the tunas and dolphins of the 

eastern Pacific to take into account the issues outlined above. On October 4, 1995, in 

Panama City, Panama, these discussions culminated in the signing of the Declaration of 

Panama (Appendix 2) by the governments of 12 nations. In this Declaration, which seeks 

to modify some of the provisions of the La Jolla Agreement, the governments committed 

themselves, through the adoption of a binding resolution of the IATTC or other legal 

instrument, to an approach aimed at the conservation of the ecosystem to which the 

tunas and dolphins belong rather than of only one or two of its components. They also 

committed to an assessment of the impact of bycatch on the ecosystem and the 

establishment of measures to minimize such by catch, as well as to the setting of an upper 

limit of 5,000 on dolphin mortality. This overall limit would be apportioned among the 

various stocks, and the limit for each stock would not exceed 0.2% of the minimum 

estimated abundance (Nmin) of that stock until 2001, and 0.1% of Nmin in 2001 and 

thereafter. Table 4lists estimates of these limits at current levels of Nmm· 

One of the objectives of the Declaration is to strengthen the International Dolphin 

Conservation Program and bring it into conformity with other international conventions 

related to the management of marine resources, such as the Third United Nations 

Convention on the Law of the Sea, Agenda 21 of the United Nations Programme of 

Action from Rio (Earth Summit), the FAO Code of Conduct for Responsible Fishing, and 

the United Nations Agreement on the Conservation and Management of Straddling Fish 

Stocks and Highly Migratory Fish Stocks. 

A number of non-governmental environmental organizations (NGOs) present at the 

meeting at which the Declaration of Panama was signed issued a joint statement of 

support for the Declaration (Appendix 3). These organizations (Center for Marine 

Conservation, Environmental Defense Fund, Greenpeace, National Wildlife Federation, 

and World Wildlife Fund), commended the governments for their commitment to the La 

Jolla Agreement, the reduction in dolphin mortality, and their commitment to achieving 

the objectives of the Declaration of Panama. They also stated that they would support 

changes in U.S.law that would lift the embargoes imposed on nations participating in 

the international dolphin conservation programs envisioned in the Declaration, provide 

market access for tuna caught in·compliance with the proposed new agreement, and 

strengthen the current "dolphin-safe" labelling rules to encourage further reductions in 

dolphin mortality. 

House Hearing, 2/96 - 10 
322 

Action in the U.S. following the Panama Declaration 

The Panama Declaration and the statement of support by the NGOs led to much 

activity and debate about the measures proposed in the Declaration, and to the 

introduction of various bills into Congress. On one side was H.R. 2823; and on the other 

H.R. 2856 which, although implementing some of the provisions of the Panama 

Declaration, excluded some of its most significant provisions. 

The major differences between the two approaches are as follows: H.R. 2823 sets an 

annual mortality limit of 5,000 dolphins, to be apportioned among the stocks in 

proportion to their abundance; redefines "dolphin-safe" to permit encirclement of 

dolphins but no mortality; and opens the U.S. market to the sale of tuna not classified as 

"dolphin-safe." H.R. 2856 retains the current definition of "dolphin-safe," continues the 

prohibition on selling tuna caught in association with dolphins, and requires a 

statistically significant decrease each year in the overall dolphin mortality. 

Before commenting on the these two approaches in more detail, I would like to 

briefly review the status of the tuna and dolphin stocks of the EPO. 

The status of tuna and dolphin stocks 

The fishery for tunas in the eastern Pacific harvests several species of tuna with a 

variety of fishing gears. Most of the catch consists of yellowfin and skipjack tunas, and is 

taken by purse-seine vessels. In terms of catch, the next most important is the fishery 

with longlines, which catches mainly bigeye tuna. The two fisheries have different 

objectives: the purse-seine fishery supplies the canned fish market and is interested in the 

volume of the catch; the longline fishery supplies fresh fish for the sashimi market, and 

concentrates more on the quality of the fish. Longlining is not efficient enough to supply 

the market for canned fish, and the quality of the fish caught with purse seines is not 

high enough for the sashimi market. 

The yellowfin stock that supports the fishery in the eastern Pacific is virtually 

independent of the stocks of yellowfin in the central and western Pacific, whereas the 

skipjack stock is part of a larger population which extends beyond the eastern Pacific. 

From 1986 to 1995 the annual catch of these two species by the purse-seine fleet varied 

between 325,000 and 425,000 tons, about three-quarters of it yellowfin. The dockside 

value of this fishery approaches $500 million; the wholesale value of the canned product 

approaches one billion dollars. 

According to studies made by the lA TIC staff, the yellow fin stock is capable of 

sustaining annual catches of about 300,000 tons at optimum levels of fishing effort, 

providing the age structure of the population does not change. With current levels of 

fishing effort, the catch is below this level; abundance and catch rates remain high, and 

the population is not overfished. 

This was not always the case. In the late 1970s, fishing effort in the EPO reached 

levels nearly twice as high as they are currently. This heavy effort caused overfishing 

House Hearing, 2/96-11 
and a reduction in both the catch-rate and average size of fish. Less fiSh reached the large 

size at which they associated with dolphins so consequently fishing on schools and logs 

increased. Catches began to decline and reached record low levels and vessels began to 

leave the fishery. In 1982 and 1983, the area experienced the strongest El Niiio on record 

and fish became hard to catch because of a change in behavior and more vessels left the 

fishery. Because of this decreasing effort, the stock had a chance to recover and by 1985 

was at the highest levels it had been since early in the fishery. In 1985, vessels began to 

return to the fishery, and they concentrated their effort on large tuna associated with 

dolphins. Since then, stock abundance and catches have remained high. They will 

remain high so long as effort continues to concentrate on large fish. If effort reverts to 

catching small fish as it would if dolphin-safe fishing were to be increased over current 

levels, as already noted, catches could decline by as much as 25-60%. 

The abundance of skipjack tuna in the eastern Pacific is variable, but the stock also 

appears to be in good condition. During years when skipjack migrate into the region in 

greater than usual numbers, catches could increase substantially; in years of low 

migration, catches would be correspondingly lower. 

Overall, the stocks of yellowfin and skipjack in the eastern Pacific are at high levels 

of abundance and are not considered to be overexploited. 

Several species of dolphins are captured during tuna-fishing operations in the 

eastern Pacific, but of these only three are frequently found associated with tunas, and 

consequently suffer the greatest mortality in the fishery. These three species are, in order 

of their importance in the fishery, the spotted dolphin (Stenella attenuata), the spinner 

dolphin (Stenella longirostris), and the common dolphin (Delphinus delphis). 

In order to assess the impact of the fishery on these three species since the advent of 

modern purse-seining, estimates of their abundance have been calculated, based on data 

collected by research vessels and by observers aboard fiShing vessels. 

Between 1986 and 1990 the NMFS conducted five research vessel cruises to assess 

dolphin abundance. The total population of the three above species in the eastern Pacific 

is estimated to be about 6.8 million animals, and that for all species involved in the 

fishery about 9.6 million. None of the stocks of dolphins involved in the fishery are 

considered to be threatened or endangered. Two stocks, the northeastern spotted 

dolphin and the eastern spinner dolphin, have been declared depleted by the U.S. 

government. At projected population growth rates, the northeastern spotted stock 

should increase to above the depleted level in about 27 years"if fishing continues at 

current levels (it should reach the same level in 28 years without fishing). The eastern 

spinner stock should increase above the depleted level in the next few years in either 

case. 

Table 4 shows the estimates of average dolphin abundance, by stock, made by 

NMFS from research vessel surveys during 1986-1990. Also shown is the mortality of 

dolphins caused by the tuna fleet in the eastern Pacific during 1994 and 1995, the 

potential biological removals (PBRs) and the zero mortality rate goal (ZMRG). 

House Hearing, 2/96 - 12 
The MMPA calls for estimates of the PBR for each marine mammal stock in U.S. 

waters. A PBR is defined as "the maximum number of animals, not including natural 

mortalities, that may be removed from a marine mammal stock while allowing that stock 

to reach or maintain its optimum sustainable population." These PBR estimates are very 

conservative: a minimal estimate of abundance is multiplied by a low estimate of 

recruitment, and an additional safety factor is added. 

The MMP A calls for a reduction of mortality and serious injury to "insignificant 

levels approaching zero mortality ... rate." There are two definitions of this zero 

mortality rate goal (ZMRG). One has been interpreted to mean the reduction of marine 

mammal mortality caused by commercial fishing operations to levels significantly below 

the PBR rate, so that the mortality has a negligible effect on the status of the affected 

stock. It has been proposed by the NMFS that the ZMRG be set at one-tenth (0.1 x PBR) 

of the estimated PBR value. These estimates are shown in Table 4. Of the seven stocks of 

dolphins in the table, four have already reached the zero mortality rate, and another is 

very close to it. One of the remaining two, the eastern spinner dolphin, should, at 

current levels of mortality, reach the ZMRG in the next few years. The other definition, 

which applies only to dolphins in the eastern Pacific, is the "application of the best 

marine mammal safety techniques and equipment that are economically and 

technologically practicable;" by this definition, the goal of zero mortality has already 

been reached. 

The IATTC scientific staff developed an index of dolphin abundance based on data 

collected by observers accompanying commercial purse-seine vessels in the EPO. 

Because of difficulties in estimation when utilizing such data, the estimates are not 

considered to measure absolute abundance as do surveys from research vessels, but 

rather they are considered to reflect relative, apparent abundance. The indices have been 

computed for the period 1975 to 1994. All of the major stocks involved in the fishery 

show abundance declining in a statistically significant fashion from 1975 to the early 

1980s; thereafter abundance has been increasing or is stable with one exception being the 

northeastern spotted dolphin. For this stock, the abundance index for 1993 and 1994 

shows a significant decline. The reasons for the significant decline are still unclear. 

Recent incidental mortality for this stock has been reduced to levels that would allow a 

recovery. Therefore, these are reasons to suspect that the apparent decline is originated 

in either changes in the biases that still affect the estimates, or in spatial movements 

across assumed boundaries of the stock. Recent analyses tends to support the second 

hypothesis. 

An alternate hypothesis has been proposed which would suggest that the decline is 

due to stress on the dolphin stocks due to the effects of the fishery. Discussion of the 

possible deleterious effects of stress on dolphins that are chased and encircled by purseseine vessels is presented in two articles published in 1988 and 1995. The articles 

postulate that the stress of chase and capture causes an increase in the production of 

adrenal hormones, resulting in darkening of the adrenal cortex due to lipid depletion and 

blood engorgement, hypocalcemia, behavioral hypoactivity, and potentially, reduced 

viability or death. 

House Hearing, 2/96 - 13 
335 

Since the publication of these articles, there has been a great deal of debate over 

their content and conclusions. The debate has centered around the issues of 

hypocalcemia, hypoactivity, and darkening of the adrenal glands. 

With respect to hypocalcemia, spotted dolphin blood-calcium values were 

compared with those for other animals, mainly humans, to show hypocalcemia. 

However, blood-calcium levels for spotted dolphins are within the published normal 

ranges for other delphinids. This would tend to discount the conclusion that 

hypocalcemia is occurring in spotted dolphins. 

During research cruises aboard purse-seine vessels capturing dolphins in the 

eastern Pacific Ocean during the 1970s, scientists noted certain behavioral characteristics 

of dolphins that could be attributed to stress. Such behavior inside the net included 

rapid swimming, diving and charging the net, and sinking tail-first to the bottom of the 

net, where they lay in heaps for extended periods of time (termed "sleeping behavior"). 

The authors of the articles on stress report that such indicators of serious stress are still 

commonly qbserved in the fishery. However, studies in the late 1970s, 1980s, and early 

1990s did not report "sleeping behavior," or rapid swimming, diving or charging of the 

nets, but rather increased quiescent behavior, such as "rafting." This quiescent behavior 

has been attributed to learning by the dolphins, and has been correlated with lower 

mortality rates. 

With respect to adrenal darkening, the situation is more complicated. One article 

argues that adrenal darkening is caused by stress and not by the physiological events 

accompanying asphyxiation. The authors assume that any dolphin whose cause of 

mortality was not seen by the observer and who had no visible net marks must have died 

due to stress This assumption is not valid. Observers are not able to see every dolphin 

that gets entangled in the net, and to infer that unknown mortality is not net-related is 

inappropriate. Also, the observers are not instructed to record the occurrence of net 

marks, and underwater observations contradict the assumption that net marks are 

always present on entrapped animals. The study also ignored the possibility that postmortem darkening had occurred due to continued hormone activity at the cellular level. 

Informal reviews of the paper by biologists and veterinarians have recommended that 

this point should be studied before dismissing asphyxiation as a cause of adrenal 

darkening. 

It has been argued that unobserved mortality outside the nets and reproductive 

depression may be occurring due to stress. The contention of unobserved mortality, 

however, is unsupported. The reproductive harm is inferred frCSm an article by Chivers 

and Myrick (1993) which showed that predicted density-dependent changes in 

Western/Southern spotted dolphins were not observed. In a later paper (Chivers and 

DeMaster, 1994), these predicted changes in reproductive parameters were observed, 

which does not support the stress hypothesis. Also, IA TIC data indicate that the 

proportion of neonates in the population has increased in 1993-1994 to the highest levels 

since 1979. 

House Hearing, 2/96 -14 
336 

These observations, of course, do not preclude the possibility that stress-related 

harm occurs. Nevertheless, the arguments that stress-induced mortality is an important 

component of total mortality are poorly supported. This is an area that needs much 

more research. 

The alternatives 

The issue of dolphin mortality in the tuna fishery of the eastern Pacific has been the 

focus of much public interest and of massive efforts by governments to resolve the 

problem. Dolphin mortality has declined to a level which nearly all scientific experts in 

the field consider poses no danger to the stocks, none of which are threatened or 

endangered. The mortality is below or very near the legal definition of zero, regardless 

of which definition is applied. The International Dolphin Conservation Program (IDCP) 

is a unique, innovative, and effective program for the management of marine resources. 

Despite these successes, the future of the program may be in jeopardy. Much will 

depend on the direction taken by governments to address the tuna-dolphin problem; at 

the moment, the three possibilities under consideration are the status quo, H.R. 2823 and 

H.R. 2856. 

As regards the status quo, the IDCP, although widely recognized as both successful 

and desirable, has a number of problems which may jeopardize its future. In the first 

place, current U.S. law seeks to discourage fishing for tunas associated with dolphins, but 

by so doing it increases school fishing and log fishing, which in tum leads to problems of 

bycatch and reduced yields of yellowfin tuna. Second, nations whose vessels fish for 

tunas associated with dolphins are prohibited from selling yellowfin tuna and its 

products in the United States, and are also subject to secondary embargoes. All nations 

with vessels fishing for tuna in the eastern Pacific maintain that requiring them to fish 

"dolphin-safe," as currently defined, is ecologically unsound because of the resulting 

bycatch of other species and the capture of small yellowfin. In the last year or so these 

nations have declared in several international fora that, unless a solution to these 

problems can be found, they will be forced to explore other options for the management 

of tunas, dolphins, and other species in the eastern Pacific. It is difficult to predict the 

outcome of any such action, but it seems reasonable to suppose that, in the short term at 

least, the effect would be prejudicial to the intended beneficiaries of all these actions, the 

tunas, the dolphins, and other components of the ecosystem. 

Furthermore, under the present system U.S. vessel owners, pioneers of modern 

tuna-fishing technology and of the fishery in the eastern Pacific, are for all practical 

purposes shut out of that fishery. As noted above, when they were prohibited from 

fishing on dolphins they mostly either sold their vessels or transferred them to other 

areas. 

The second alternative, H.R. 2823, would incorporate into U.S. law most of the 

provisions of the Declaration of Panama to strengthen the IDCP. There would be an 

immediate reduction in the permissible annual dolphin mortality to 5,000 animals, 

compared to the current IDCP limits of 9,000 in 1996,7,500 in 1997,6,500 in 1998, and 

House Hearing, 2/96 - 15 
337 

5,000 in 1999. This limit would be distributed among stocks in proportion to their 

abundance, using the lowest estimate as a basis, thus ensuring the greatest possible 

protection for each stock. These limits would be reduced by 50% in 2001, which would 

probably cause the permissible mortality in that year to fall below the current observed 

mortality (Table 4). 

"Dolphin-safe" tuna would be redefined as tuna caught in any set of the net in 

which no dolphins were killed, regardless of whether any were encircled. At present, 

about 85% of all sets on dolphins result in no mortality. The proposed redefinition 

would act as an added incentive for the fishermen to release all captured dolphins alive, 

and the result of this provision could be expected to be a reduction in the average 

mortality per set. 

The U.S. market would be opened to all tuna caught by vessels of nations 

participating in the IDCP which are, or have taken steps to become, members of the 

IATTC. This would act as an incentive for nations to continue their participation in the 

IDCP, and would also give U.S. consumers the choice of whether to buy "dolphin-safe" 

tuna or not. 

More generally, H.R 2823 calls for a legally-binding instrument to strengthen the 

IDCP so that it can be a continuing force for the rational and effective management of the 

tuna and dolphin resources of the eastern Pacific. 

It would provide for improved enforcement of the provisions of the IDCP. As 

already noted, the nations party to the Agreement for the Conservation of Dolphins have 

done a good job of enforcing compliance by their fleets with the provisions of the 

Agreement, but compliance could and should be even better. Compliance will be 

strengthened by H.R. 2823, because nations participating in the program will do so 

through a legally-binding agreement. Such an agreement will provide for legal status of 

the program within the signatory states. This will make it much easier for those states to 

incorporate the provisions of the Agreement into their domestic laws and regulations. 

This will eliminate problems that some states have in enforcing the recommendations of 

the Agreement and with the legal status of international observers accompanying vessels 

flying their flag. 

It would be precautionary because it would allow the continued harvesting of 

yellowfin tuna associated with dolphins, but would set very conservative limits on 

dolphin mortality and would offer protection for the ecosystem generally. It would not 

encourage a form of fishing that would result in heavy exploitation of small yellowfin 

and subsequent reduced catches, nor would it contribute to increased problems of 

bycatch of other components of the ecosystem. It would be one of the few international 

programs which took an ecosystem approaCh to resource management. 

The third alternative, H.R. 2856, incorporates a number of the provisions of the 

Panama Declaration, but differs from H.R 2823 in several of its most important elements. 

The definition of "dolphin-safe" would be unchanged, the U.S. market would be closed to 

all but "dolphin-safe" tuna, and the mortality limit for each vessel would be reduced by a 

House Hearing, 2/% - 16 
338 

statistically significant amount in each successive year. H.R. 2856 would further the 

efforts taken several years ago by the U.S. to halt fishing tuna on dolphins. Those efforts 

failed, fishing on dolphins has continued at nearly the same levels since 1986. What the 

approach did accomplish was to eliminate nearly the entire U.S. fleet from the fishery in 

theEPO. 

This bill would do very little to resolve the problems surrounding the tuna-dolphin 

issue which put the current conservation program in jeopardy, and in fact may well add 

to them. It would continue to put pressure on vessels to capture tuna on schools and logs 

because of U.S. policy on domestic and foreign markets, and this pressure would be 

further increased by the mandatory decline in permissible mortality of dolphins. All this 

would exacerbate the problems of bycatch and capture of small yellowfin tuna, not to 

mention open the region up to increased political confrontation. 

Of these three alternatives, it seems clear that H.R. 2823 offers the best framework 

for an international program which will ensure increased protection for dolphins and at 

the same time ensure that other species, such as yellowfin tuna, billfish, and sharks, are 

also afforded similar protection. It strengthens what is considered to be an outstanding 

international resource management program, and provides incentives for nations and 

fishermen to continue to participate. 

We are living at a time when many of our marine resources are suffering from poor 

management or no management at all. Many of our resources of the high seas are 

overfished because of a lack of scientific understanding or of political will to act. In the 

case of the tunas and dolphins of the eastern Pacific, our scientific understanding is 

exceptionally good, and forms a sound basis for the decisions which need to be made 

concerning these resources. · 

H.R. 2823, which is based on sound scientific evidence, provides the opportunity to 

put into effect an international conservation program which will manage the tuna, 

dolphin, and other associated stocks of the eastern Pacific in a rational and effective 

manner, and will set an example for other fisheries for which we bear similar 

responsibilities as stewards of these resources. 

Thank you. 

[Attachments to statement were placed in Subcommittee files.) 

House Hearing, 2/96- 17 
339 

~EN?E~" '-!' -~· 

TESTIMONY OF CLIFTON CURTIS 

ON BEHALF OF GREENPEACE 

BEFORE THE SUBCOMMI'ITEE ON FISHERIES, WD..DLIFE AND OCEANS 

OF THE U.S. HOUSE OF REPRESENTATIVES COMMI'ITEE ON RESOURCES 

ON TUNAIDOLPHIN-RELA TED ISSUES AS ADDRESSED IN 

H.R. 2823 AND H.R. 2856 

FEBRUARY 29, 1996 

1436 U Slr9et, ml• Washington, DC 20009 • Tel (202) 462·1177 • Fax (202) 462-4507 • T1x 89-2359 

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340 

My name is Clifton Curtis, and I am the Oceans/Biodiversity Political Advisor for 

Greenpeace International. My testimony is presented on behalf of Greenpeace International and 

Greenpeace in the U.S. I respectfully request that this written statement be made part of the record 

of this hearing. 

Greenpeace is an environmental organization with offices in 32 countries, on four continents, 

supported by almost 5 million people worldwide. For over two decades, we have been actively 

involved in promoting conservation of marine biodiversity, with a focus on threats posed by 

unsustainable development - including adverse impacts associated with fishing. 

It is a privilege to appear before your Subcommittee, and to present Greenpeace's views on 

tuna/dolphin-related issues, as addressed in H.R. 2823, the International Dolphin Conservation 

Program Act, and H.R. 2856, the International Dolphin Protection and Consumer Information Act. 

The issues framed by those legislative proposals are extremely important. Our organization 

appreciates the longstanding and continuing leadership role that your Committee has taken on these 

issues, among others concerned with fisheries, marine mammals and protection and wise use of the 

oceans. 

As addressed more fully, below, Greenpeace believes that H.R. 2823, as introduced by Rep. 

Gilchrest, offers the best foundation for the U.S., and other nations, to resolve the tuna/dolphin issue. 

As is well known, four other major environmental groups-the Center for Marine Conservation, the 

Environmental Defense Fund, the National Wildlife Federation, and the World Wildlife Fund-have 

taken a similar position. At the same time, there are provisions in H.R. 2856, introduced by Rep. 

Miller, that should be added, consistent with H.R. 2823's objective of building on the Panama 

Declaration and La Jolla Agreement. From an environmental perspective, despite misinformation 

by some non-governmental organizations (NGOs), H.R. 2823 provides an effective way forwardthrough a complementary U.S./multilateral solution that offers the best prospects for eliminating 

dolphin deaths, as well as ensuring greater protection for other species. 

I. Global Context 

For this hearing, an infamous Yogi Berra malapropism bears repeating, i.e., "where you 

stands depends on where you sits." Where Greenpeace "stands" on tuna/dolphin issues is rooted in 

our organization's unbending mission. Simply stated, as conveyed by our name, we strive for a 

"greener and more peaceful planet." In support thereof, Green peace has long worked to achieve 

stronger protection for dolphins and whales, among other animals, and that will remain constant. At 

the same time, our efforts, including tactical strategies, do need to respond to changing conditions, as 

is the case in the Eastern Tropical Pacific (ETP) tuna fishery. The current conditions there, in our 

view, demand an international response - as is true with a growing number of environmental issues -

in combination with strong national measures. 

Globally, fisheries are in crisis. The UN Food and Agriculture (FAO) reports that the 

majority of commercial fisheries are fully or over-exploited. In addition, global bycatch estimates 

conservatively range from 17 to 39 million metric tonnes annually, not including marine mammals, 

sea birds and some invertebrates. 
341 

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Working with other non-governmental and fishworker groups_y,-orldwide, Greenpeace has 

been in the forefront in calling attention to the global fisheries crisis and working toward urgently 

needed solutions - at international and national levels. Those solutions include, among others: a 

precautionary approach to fisheries management, NGO transparency, conservation measures that 

protect biodiversity from the impacts of fishing (e.g., bycatch, discards, harmful gear technologies), 

mandated data gathering, targeted initiatives to resolve excess of fishing capacity, legally binding 

agreements with effective enforcement and compliance mechanisms, strengthened regional 

agreements, and arrangements that enhance the interests of indigenous and artisanal fishworkers. 

Following the 1992 Earth Summit in Rio de Janeiro, 1_1 special window of opportunity existed 

at the global level to address the fisheries crisis by pressing for the kinds of solutions mentioned 

above. In particular, the spotlight focused on the UN Fisheries Conference on straddling and highly 

migratory fish stocks, and on the FAO's consultations on a Code of Conduct for Responsible 

Fisheries- with both of those processes reaching conclusion in late 1995. 

Greenpeace played a very active role in urging solutions in those global negotiations, along 

with other environmental and fishworker groups. Some significant advances were made, but not 

surprisingly, the struggle to achieve sustainable, ecologically sound fisheries is far from over. Even 

more to the point, while fora such as this year's Commission on Sustainable Development offer 

continuing opportunities to press for reforms at the global level, in important respects the real battle 

has now shifted to the regional, and national levels. 

2. The El'f> Commercial Fishery and U.S. Action 

The ETP tuna fishery, an area of international and national waters stretching from coastal 

waters ofMexico to Chile and into the high seas, is but one of many regional examples of fisheries 

conflicts involving marine living resources. It is critical to view the ETP tuna fishery against the 

backdrop of the situation that coastal nations face, around the world, with regards to fisheries and 

marine biodiversity. 

The ETP commercial tuna fishery, using purse. seine technology to capture tuna, is part of the 

global dynamic of increasing competition for marine living resources. Vessels from 12 nations target 

primarily yellowfin and skipjack tuna in that fishery. In 1994, the nations with the largest purse seine 

fleets there were: Mexico (41 vessels); Venezuela (20 vessels); Ecuador ( 14 vessels); and the United 

States (I I vessels). Vanuatu, Colombia, Panama and Costa Rica also fish in the area. 

All of those nations have participated on an on-going basis in the regional fisheries control 

and management efforts of the Inter-American Tropical Tuna Commission (IATTC). Other nations 

with vessels that have fished recently or continued to fish in the ETP fishery, e.g., Spain, Belize, 

Cypress, St. Vincent and the Grenadines and New Zealand, have not participated in any type of 

fisheries management or control. 

In the ETP, nearly 30 years ago the U.S. tuna fleet found that the largest, most valuable tuna 

swam beneath dolphins. The U.S. fleet began the practice of encirclement of dolphins to catch the 
342 

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tuna. By the early 1960s, U.S. purse-seiners fishing for tuna in the ETP were killing hundreds of 

thousands of dolphins annually. 

Over many years, Greenpeace has campaigned aggressively on the tuna/dolphin issue. 

Working with other organizations-in the early 1990s, our efforts finally paid off, thrusting the issue to 

the forefront of the international environmental agenda. The U.S. public, the largest consumers of 

tuna in the world, began to take notice. Through citizen action, consumer boycotts, and other 

political activities, laws were passed in the United States to help put a stop to this unnecessary 

killing. 

In 1988, Congress first used economic pressure for dolphin conservation by adding a new 

provision to the Marine Mammal Protection Act (MMPA), requiring other fleets in the ETP to kill 

dolphins at a rate no higher than the U.S. fleet in order to import tuna into the United States. This 

measure failed to reduce dolphin deaths significantly. Within two years, all other fishing nations had 

been embargoed, yet dolphin deaths and the practice of encirclement of dolphins continues to this 

day. 

Criteria for use of the "dolphin-safe" label was enacted by Congress as an amendment to the 

MMP A in 1990. This legislation prohibited the practice of encirclement of dolphins in the ETP in 

order for that tuna to be labeled as "dolphin-safe". Another amendment to the MMPA was added in 

1992 directing the U.S. to negotiate a five-year moratorium on the practice of encirclement of 

dolphins with the other countries active in the ETP. If the moratorium was not agreed by June 1994, 

the U.S. would ban the sale ofnon-"dolphin-safe" tuna within its borders. As we now know, the 

moratorium effort did not succeed, necessitating U.S. bans on imports of dolphin-unsafe tuna. 

3. La Jolla Agreement and Panama Declaration 

In response to changes to the MMP A in the late 1980s and early 1990s, and grounded in the 

belief that an agreed, multilateral solution was required, the fishing countries in the ETP came 

together in 1992 in La Jolla, California. There they negotiated, voluntarily, the so-called "La Jolla 

Agreement," which includes a schedule for reducing dolphin kills over seven years. 

Greenpeace applauded the establishment of the La Jolla Agreement, with its goal of 

"eliminating dolphin mortality in this fishery, [and] seeking ecologically sound means of capturing 

large yellowfin tunas not in association with dolphins .... " That program, with the cooperation of 

fishermen, scientists and NGOs from many countries, has helped achieve a dramatic reduction in 

dolphin mortality to around 4,000 in 1994. 

The La Jolla Agreement's approach has many of the elements needed for cooperative 

conservation and management of international marine life and oceans. The regional program links 

different mechanisms into a regional regulatory system. It includes: I 00 percent observer coverage 

on vessels, as well as data collection of fishing practices by the international purse seine fleet linked 

to reporting and oversight by the International Review Panel (IRP); standardized regional training of 

fishing captains and crews; certification, licensing and registries for the fleets; and standardized 
343 

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identification of infractions and follow-up on governments' actions on sanctioning vessels. Those 

initiatives are underpinned by ongoing scientific assessment of dolphins and tunas in the fishery as 

well as monitoring of other bycatches and waste of marine wildlife. 

An important component of the program has been the IRP, which monitors and oversees 

fishing activities in the ETP, identifies infractions, follows up on government sanction-related 

actions, and recommends policy, allows NGO transparency, and management measures to 

participating states. Working with NGO colleagues from Latin America, Greenpeace has 

participated in the IRP since being elected to one of the NGO seats in 1992. 

The countries participating in the La Jolla Agreement, including the U.S., Latin American 

nations, France and Spain, agreed, on October 4, 1995, in Panama, to boost dolphin protection 

significantly in the ETP, provided that existing tuna embargoes are lifted for tuna caught in 

compliance with the new program. The international agreement envisioned by the "Panama 

Declaration" would improve significantly the current situation for dolphins and expand protection for 

other marine species in the ETP tuna fishery. 

With the leadership of our sister Greenpeace offices in Latin America -- Mexico, Chile, 

Brazil, Guatemala and Argentina -- Greenpeace and several other NGOs participated in the Panama 

Declaration discussions. The Declaration brought all of the countries fishing for tuna in the ETP to 

the table, and is a critical first step toward creating a legally-enforceable international agreement to 

address dolphin protection and environmental problems in the ETP tuna fishery. 

The consensus support for the Panama Declaration indicates a strong willingness among the 

fishing countries to negotiate and adopt an agreement that would: 

• Commit all countries fishing for tuna to reduce dolphin deaths toward zero; 

• Ensure stronger compliance and enforcement measures rather than the current voluntary 

compliance scheme; 

• Require mandatory reporting and enforcement measures to be shared with all fishing nations; 

* Protect already depleted dolphin populations; 

* Ensure healthier marine ecosystems by protecting dolphins as well as juvenile tuna and other 

marine species caught in the course of fishing operations; 

• Provide incentives for fishers who do not kill dolphins; and 

• Allow the U.S. to impose future trade sanctions on nations failing to live up to their commitment 

to protect dolphins. 

The Panama Declaration thus sets the stage for strengthening and locking in, through a 

legally binding instrument, the wholly voluntary La Jolla program. Such an international agreement, 

binding on all fishing countries through national laws, will protect not only dolphins, but other 

marine species, including the long-term sustainability of the tuna stocks. Moreover, resolving these · 

problems in the ETP would set an important precedent that could lead to similar agreements for all 

regions where tuna are caught. 
344 

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4. B.R. 2823 and B.R. 2856 Have A Lot in Common 

While the differences between Rep. Gilchrest's and Rep. Miller's bills have received a lot of 

attention, as always happens, they share many common features. And that's encouraging. 

Both bills, for example, require adherence to the dolphin protection provisions of the Panama 

Declaration. Both bills establish a dolphin mortality cap of 5,000 and retain the goal of eliminating 

dolphin mortality through the setting of annual vessel dolphin mortality limits. 

In issuing regulation~ to implement the International Dolphin Conservation Program created 

under the La Jolla Agreement, both bills require maintaining the Current restrictions on fishermen as 

detailed under the MMP A and the La Jolla Agreement. In addition, with respect to the dolphin-safe 

label, all tuna caught outside the ETP would continue to be certified as it is currently. With respect 

to research, both bills are substantively similar in supporting ongoing and new initiatives related to 

environmentally sound fishing gears and conservation of the ETP ecosystem. To the extent that one 

bill or the other calls for mandatory or more explicit studies (e.g., HR. 2856's chase and 

encirclement studies), Greenpeace would support the stronger version of the two. Moreover, we 

believe that there is considerable room for additional research, on matters such as bycatch or 

harassment of whales. 

The above listing of common features between the two bills is not exhaustive, but it serves to 

highlight the substantial agreement or common denominator between the alternative approaches. 

5. Keeping the Bone In Front ofthe Cart 

Despite some NGO propaganda which suggests that the Panama Declaration will result in 

U.S. markets being inundated with tuna caught while killing dolphins, that just isn't true. As per 

Annex I of the Declaration, lifting of embargoes and market access to the U.S. can only occur if the 

tuna caught "is in compliance with the La Jolla Agreement as formalized and modified through the 

processes set forth in the Panama Declaration." 

The above provision means that, before the MMP A changes take effect, the ETP fishing 

nations must become members of the IATTC, and they must formalize and adopt a legally binding 

instrument that reaffirms the La Jolla Agreement's commitments and objectives of: 

(I) progressively reducing dolphin mortality in the Eastern Pacific 

Ocean (EPO) fishery to levels approaching zero through the 

setting of annual limits and (2) with a goal of eliminating dolphin 

mortality in this fishery, seeking ecologically sound means of 

capturing large yellowfin tunas not in association with dolphins. 

That process was highlighted by Greenpeace and other NGOs in a Statement in Panama on 

October 4, 1995 (Attachment 1), which said that for all nations that adopt such a legally binding 
345 

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instrument, we "will support changes in the US law that will: lift the embargoes; provide market 

access for tuna caught in compliance with the new accord; and strengthen the current dolphin safe 

labelling regime to provide incentives to achieve further reductions in mortality" (para. 6). 

6. Broader Reforms of the lA TIC 

While the lA TIC has been built on nearly 50 years of scientific research and knowledge of 

the EPO tuna stocks, there still are far too few conservation and management measures for tuna and 

other fish species in that fishery. Moreover, while the IAITC structure is operational, many 

problems have been encountered. 

As alluded to earlier, governments from around the world, including the ETP fishing nations, 

recently concluded the new Agreement at the United Nations to conserve and manage highly 

migratory species such as tuna, as well as straddling stocks. In that regard, during the recent Panama 

negotiation, it is noteworthy that the nations declared in a separate statement (appended as 

Attachment II) that they need: 

to initiate, as soon as possible, under the auspices of the IATTC, in light of 

commitments and objectives of the Panama Declaration, negotiations for the 

formulation of a new binding [IATTC] instrument under the following principles, 

inter alia: ... [i]ncorporation of the principles of[UNCLOS], in p~icular, the rights 

and obligations related to the conservation and management ofliving marine 

resources as recognized in that Convention ... [and]. .. [i]nterpretation and application 

in a manner consistent with the relevant provisions of the Agreement [on straddling 

and highly migratory fish stocks]. 

While it is clear from Attachment II that this second instrument is different from the legally 

binding one envisioned by the Panama Declaration, that first instrument, addressing tuna/dolphin 

matters, is a necessary precursor to, and complementary of, the second. The second, legally binding 

instrument envisioned here, by building on the Law of the Sea treaty, as well as the recent UN 

Fisheries Agreement, offers additional opportunities to reform fishing practices through structural 

changes to the underlying treaty that created the IATTC in 1949. 

This is another reason - one that has received too little notice - for adopting H.R. 2823's 

approach here in the U.S. By embracing the Panama Declaration, Rep. Gilchrest's bill provides the 

opportunity finally to overcome the political polarization that exists today in the ETP fishery. Doing 

so would set the stage for expeditiously updating the IAITC, as envisioned in the Attachment II 

statement, to incorporate additional, conservation-based standards and reforms that need to be made. 

In our view, that offers the prospect of a win-win scenario- for the dolphins, other species, the 

fishery and for those whose livelihoods are linked to it. 
346 

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7. Reducing Dolphin Deaths Through DMLs 

As the name indicates, dolphin mortality limits (DMLs) are not quotas. To interpret or 

encourage such an understanding ofDMLs, as some NGOs have done, actually undermines efforts to 

reduce and eliminate dolphin deaths and to protect those animals. DMLs are exactly what the name 

implies - limits on dolphin mortality. 

As one example, the La Jolla Agreement's DML for 1994 was set at 9,500 animals, but the 

actual mortality was less than 4,000 animals. In practice, all the incentives on vessels participating in 

the program are to reduce the takes of dolphins. The fewer dolphins that are killed equals more 

fishing time and thus more tuna available to the vessel over the year - which, by itself, is a strong 

incentive for the fishermen not to kill dolphins. 

Although some NGOs have argued that the Panama Declaration could allow DMLs in excess 

of the established cap of5,000 in or after the year 2001, they are mistaken. Under the Panama 

Declaration's approach, mortality levels permitted on individual stocks of dolphins would decrease 

from 0.2% of their Minimum Estimated Abundance (Nmin) to 0.1% in 2001. As the Declaration 

states with respect to the establishment of per-year, per-stock caps before or after the year 2001, "in 

no event shall the total annual mortality exceed 5,000 consistent with the commitments and 

objectives stated in the preamble above." In addition, up to and beyond 200 I, it is agreed that all sets 

on pure or mixed stocks, especially of Northeastern Spotted or Eastern Spinner dolphins that exceed 

these declining Nmin calculations, shall cease. 

Up to the year 2001 and beyond, with continued research, implementation of ever more 

selective fishing technologies and strict conservation measures, every effort should be directed 

toward eliminating dolphin deaths. This is the spirit of the Panama Declaration, which embodies the 

La Jolla Agreement, and the legally binding instrument which needs to be agreed. 

8. Is the MMPA Definition Really Dolphin-Safe? 

Despite the similarities, there are key differences between the bills, especially in connection 

with the tuna label and associated embargoes, and that's where this Subcommittee and parent 

Committee can provide a real service in advancing a mutually acceptable way forward. To do so, 

though, requires some truth-in-labeling with regards to what has, and has not happened, under the 

current labeling arrangements. 

The "dolphin-safe" label, by definition, was intended to end the practice of encirclement of 

dolphins to catch tuna. It has failed to do so. Since 1990, dolphin kills have declined by over 90% 

while settings on dolphin have declined by just over 25%. This smaller decrease in dolphin 

encirclement sets can be attributed to the public and Congressional pressure in the United States that 

forced the U.S. tuna fleet to leave the ETP. Unfortunately, other fishing fleets are and will continue 

to encircle dolphins. 
347 

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The "dolphin-safe" label we have come to trust has been manipulated by the Starkist, 

Bumblebee and Chicken of the Sea companies and has become, in important respects, a marketing 

tool to sell more tuna. The canners have used the label to imply that all catches are verified as 

"dolphin-safe" through an airtight enforcement and monitoring scheme. This is far from the truth. 

In the ETP, where orily 20% of the world's canned tuna is caught, verification is the tightest, 

with independent observers on every boat, as well as dockside observers at some of the canneries. 

For the rest of the world's canned tuna, the burden of verification rests solely with dockside monitors 

who essentially accept the word of the skipper as to whether the tuna is "dolphin-safe". 

Many of the transnational corporations involved in tuna fishing have moved their tuna boats 

and processing facilities to areas where there is less regulation than in the ETP. Most U.S. tuna 

boats have been sold to other countries or moved to other regions to avoid the restrictions of the 

"dolphin-safe" law and U.S. legal jurisdiction. As a result, most of the tuna canning production has 

moved from U.S. territories in the South Pacific to Southeast Asia where monitoring and 

enforcement of these U.S.- based policies are almost impossible. 

Large tuna transport ships complicate efforts to track "dolphin-safe" tuna by taking to port 

tuna comingled from several boats from different ocean regions. Once on land, determining which 

tuna is "dolphin-safe" gets even more complicated as "dolphin-safe" tuna are mixed with loads from 

other transport boats: By the time it reaches your grocery store, there is little surety that it is actually 

"dolphin-safe" -especially given that as much as 80% of the tuna caught worldwide comes from 

outside the ETP. 

Finally, it is also important to note that in the ETP and elsewhere, dolphins have never been 

the only creatures killed by vessels purse-seining for mature tuna. Millions of juvenile tuna, shark, 

sea turtles and billfish are taken, with no effort made to reduce the take or assess the full impact of 

this bycatch on the marine environment. It is clear that even so-called "dolphin-safe" tuna still causes 

significant environmental damage. 

Greenpeace's position has always been, and continues to be, that there should be an end to 

encirclement of dolphins. And with respect to other fishing techniques, such as log or school sets, 

Greenpeace's position is that there should be an end to the killing of dolphins in all tuna fishing. 

The "dolphin-safe" label did what was necessary atthe time of its passage: it brought much 

needed attention to this issue. But the current law has gone as far as it can, in significant part because 

it has had limited impact on the encirclement of dolphins by non-U.S. tuna fishing fleets. 

Failure to redefine "dolphin safe" will preclude any effort to negotiate a new, multilateral 

legally binding instrument. In tum, it will serve only to encourage the leading ETP fishing countries, 

Mexico and Venezuela, to walk away from the voluntary La Jolla Agreement and to fish without 

restriction. That most certainly would lead to a continuance of dolphin encirclement, by non-U.S. 

fleets. And that situation, which is not a pipe dream, would take us backwards, rather than forward. 

20-276 - 96 - 12 
348 

-9-

For these reasons, H.R. 2823 adopts the preferred approach by incorporating the Panama 

Declaration's call for a change in our U.S. law's definition of"dolphin-safe". Such a change, if 

properly monitored and enforced, increases the likelihood that no dolphins died in catching that tuna. 

It continues to concern us, though, that neither biD effectively addresses the tuna/dolphin issue in 

oceans outside of the ETP. 

9. Strengthening Enforcement 

Much has been said about the problems of enforcement in the EPO fishery. Perennial 

problems such as the continued use of banned explosives to herd animals, failure to carry dolphin 

safety panels and more seriously, observer harassment, are among those that could be addressed far 

more effectively through a multilateral, legally binding agreement. 

The accountability of any new fishing regime will rest with reliability of its monitoring 

scheme. Under the new definition of dolphin safe, the independent observers will need additional 

technical support to ensure that all dolphin deaths are monitored on each fishing trip. We would 

encourage acceptance of amendments to strengthen these provisions. 

Giving effect to the Panama Declaration, as envisioned by H.R. 2823, would enable the U.S. 

for the first time to address enforcement in a manner that would enhance efforts taken at the national 

level. This is because failure to take enforcement measures would subject all nations involved to 

trade sanctions from the U.S. 

For example, stricter enforcement measures are needed for vessels that continue to fish after 

reaching their DMLs. This has only occurred recently . Currently, these vessels are subject to 

$50,000 fines and suspension from the fishery for two years. By giving effect to the Panama 

Declaration, the U.S. would be acting to ensure that these kinds of penalties are implemented and 

enforced. effectively. 

Under the current MMPA policy, and that advocated by those NGOs who favor no change in 

the "dolphin-safe" label, there are no internationally mandated provisions to ensure that nations will 

enforce the monitoring and conservation provisions with respect to their own national fishing vessels. 

Currently, the only incentive to do so is based on a political desire to bring about a mutually agreed, 

binding multilateral program. While the provisions for trade sanctions and the "dolphin-safe" label 

now in the MMP A have facilitated monitoring and conservation in the fishery, in our view they will 

not continue to provide the stimulation needed for progress. 

10. Bycatcb in tbe ETP Fisbery 

As noted in the "Global Context" section above, bycatch is a global problem in commercial 

fisheries today. Most fisheries of commercial and industrial scale have some level of bycatch. The 

issue, though, is not to compare the levels ofbycatch in one fishery against those in other fisheries 

using different types of fishing technology. The real issue is the impact of fishing gear on marine 

animals and their populations in each fishery. Clearly, high levels ofbycatch and waste of juvenile 
349 

- 10-

tunas have been documented in the Eastern Pacific purse seine fishery when "dolphin-safe" fishing 

practices such as setting around schools of tuna or floating objects are used. 

The Panama Declaration sets the stage for achieving measures aimed at protecting marine life 

caught incidentally in the ETP tuna fishery, and represents an imponant step toward sound 

ecosystem management, including bycatch reductions. Once incorporated into a legally binding 

international instrument, there is a much greater likelihood of providing greater protection for marine 

species that are at risk, such as endangered sea tunles, sharks, and biUfish, as well as juvenile tuna 

and dolphins. 

Killing juvenile tuna, especially at a rate that jeopardizes the reproduction of the stocks, will 

impact the tuna population overall and drive the species down to dangerously low levels. Less is 

known about the implications for populations of sea tunle, sharks, billfish and cenain marine 

mammal bycatch in the fishery. This is because these populations have not been assessed, the impact 

of purse seine fishing on their populations has not been quantified, and measures to reduce this 

bycatch have not been put into place. These measures finally could be accomplished under the 

commitments in the Panama Declaration. 

Some measures may be as simple as requiring the hand release of all sea tunles captured alive 

during the course of encirclement on floating objects. Others may be more sophisticated, such as 

developing time, seasonal and locational boundaries around cenain fishing practices where high 

bycatch is expected to occur. 

Sweeping this problem under the rug, or arguing that it's okay in the ETP because bycatch is 

worse in other fisheries, or working to avoid regulations on these fishing practices are all contrary to 

sound conservation policy and the precautionary approach. In this regard, an August 31, 1995 letter 

and Q&A addendum from NOAA to Rep. Studds indicated that "a conservative management 

approach in the face of sparse information would be to select the harvest strategy that minimizes 

bycatch of long-lived, easily depleted species such as the sharks and sea turtles captured, in 

panicular, by log sets" (Addendum, p. 3). 

II. Using Trade Arguments Correctly 

Greenpeace opposed the North American Free Trade Agreement, and criticized many of the 

1991 findings of the General Agreement of Tariffs and Trade Panel (GATT) in the tuna/dolphin 

dispute between Mexico and the U.S. In these and related processes, Greenpeace has not opposed 

trade per se, but trade policies that dominate or threaten to undermine environmental conservation 

policies, social equity and democracy. 

Greenpeace supports the Panama Declaration because it is good conservation policy for 

dolphins, as well as other marine species impacted in that fishery. The notion that the Panama 

Declaration is part of a free-trade agenda to weaken U.S. conservation policy, or that it undermines 

U.S. ability to use trade sanctions to pursue conservation aims, is erroneous. Such a notion brings to 
350 

· II · 

mind a statement made by Tweedle-dee in Lewis Carroll's Through the Looking Glass when he said, 

"if it was so, it might be; and if it were so, it would be; but as it isn't, it ain't." 

The program envisioned in the Panama Declaration includes strengthened conservation 

measures, as well as provisions for all the ETP nations to enforce safety and conservation-oriented 

fishing practices that are not in effect in the MMPA. For example, based on an IRP review, the La 

Jolla Agreement, as carried forward into the Panama Declaration, includes 16 major infractions as 

well as other infractions and sanctions controlling fishing practices and gears required in the fishery. 

These measures are not currently defined as such in the MMP A. 

Trade sanctions, hardly a free trade tool, are one of the means of ensuring compliance with 

and enforcement of the proposed legally binding international instrument called for in the Panama 

Declaration. Such sanctions would help protect dolphins and other marine species at risk. As such, 

the Panama Declaration is not some "free trade" monster, nor does it undermine the U.S. Congress' 

ability to use trade sanctions to protect the environment. 

In this regard, what is key is the difference between the Panama Declaration-linked trade 

sanctions that would be possible under H.R. 2823, and those currently in the MMP A. With regards 

the trade sanctions provided for in the Panama Declaration, they would be agreed, under a legally 

binding instrument, by all nations with vessels participating in the ETP. In contrast, the MMP A 

trade sanctions that Mexico challenged in 1991 had not been agreed by the ETP fishing nations, with 

many of those countries complaining that they only learned of the sanctions after they had been 

implemented. 

12. Conclusion 

Today the ETP tuna fishery and all those involved are confronted with new challenges and 

new opportunities to progress in developing an important model of cooperation for conservation and 

sustainable, ecologically sound fishing. If achieved, such an approach would benefit dolphins, other 

marine wildlife, the intrinsic values of marine biodiversity, as well as stability for the fishermen and 

societies of many nations involved in the fishery. 

Greenpeace looks forward to working with you, Chairman Saxton, members of your 

Subcommittee, and others, as efforts go forward in finding effective solutions for resolving the ETP 

tuna/dolphin situation. Please feel free to contact us if we can be of assistance. Thank you. 
351 

Attachment I 

STATEMENT OF THE CENTER FOR MARINE CONSERVATION, THE 

ENVIRONMENTAL DEFENSE FUND, GREENPEACE, THE NATIONAL WILDLIFE 

FEDERATION, AND THE WORLD WILDLIFE FUND TO THE 

INTERGOVERNMENTAL MEETING OF NATIONS PARTICIPATING IN THE 1992 LA 

JOLLA AGREEMENT TO REDUCE DOLPHIN MORTALITY IN THE EASTERN 

PACIFIC TROPICAL TUNA FISHERY, MEETING IN PANAMA CITY, PANAMA, 

4 OCTOBER 1995 

The following statement is made behalf of the Center for marine ConseiVation. The Environmental 

Defense Fund, Greenpeace, the National Wildlife Federation, and the World Wildlife Fund. These 

organizations comprise I 0 million members around the world, with offices and affiliate organizations 

in most if not all of the countries represented here today as well as worldwide. 

I. The organizations wish to thank the Intergovernmental meeting for providing this open and 

transparent forum where non-governmental organizations have been invited to participate. The 

organizations appreciate very much the willingness of the nations meeting here to recognize that 

nongovernmental organizations have expertise that can be useful to governments that seek to 

enhance sustainable management and conseiVation in the Eastern Tropical Pacific Tuna Fishery. 

2. This is an issue that has called the attention of the world. Many of our organizations have 

worked on this issue for more than a decade. Since 1992 our organizations have worked hard to 

ensure the La Jolla Agreement. achieves strict conseJVation in a multilateral model of cooperation. 

3. Our organizations commend the governments for their commitment to the La Jolla Agreement. 

We wish to recognize that the achievements accomplished in the La Jolla Agreement are largely due 

to the dedicated efforts of the fishermen and vessel owners. Further, the efforts of the conseiVation 

community, worldwide, the fishermen, crews, captains, vessel owners. Further, the efforts of the 

conseiVation community, worldwide, the fishermen, crews, captains, vessel owners, observers, and 

national and international scientists have resulted in rapid and significant reductions in dolphin 

mortality. 

4. The system established in the La Jolla Agreement has shown it can be successful in moving 

toward our goal of eliminating dolphin mortality in the Eastern Tropical Pacific tuna fishery. Since 

1992, dolphin mortality has declined, under the La Jolla Agreement 75%. 

5. To further this goal and undertake actions to conserve the ecosystem and marine life in the 

Eastern Tropical Pacific, governments have taken major steps this week that we welcome. Our 

organizations regard it as very significant that the governments here in Panama are declaring their 

intention to strengthen and improve the international regime for dolphin and ecosystem protection in 

the Eastern Tropical Pacific tuna fishery. The Panama Declaration wiil achieve the following : 

• continued progress toward the goal of eliminating dolphin mortality 

through measures that protect individual species/stocks of dolphins; 
352 

• the establishment of an objective to assess, avoid, reduce, and minimize 

bycatches of other marine species such as endangered sea turtles and sharks; 

• a precautionary methodology to conserve tuna stocks and other marine 

life associated with the tuna fishery; 

• strengthened conservation and enforcement, through both international 

and national mechanisms to ensure compliance. 

Attachment ll 

DECLARATION ON STRENGTHENING THE OBJECilVES AND OPERATION OF THE 

CONVENTION ESTABLISHING THE INTER-AMERICAN TROPICAL TUNA 

COMMISSION 

The governments of Belize, Colombia, Costa Rica, Ecuador, United States of America, Honduras, 

Mexico, Panama, Vanuatu and Venezuela, meeting in Panama City, Republic of Panama on October 

4, 1995 express the need to initiate, as soon as possible, under the auspices of the IATTC, in light of 

the commitments and objectives of the "Panama Declaration, • negotiations for the formulation of a 

new binding instrument under the following principles, inter alia: 

a) Incorporation of the principles of the Law of the Sea as reflected in the United Nations 

Convention of the Law of the Sea, 1982, in particular, the rights and obligations related to the 

conservation and management of living marine resources as recognized in that Convention; 

b) Interpretation and application in a manner consistent with the relevant provisions of the 

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law 

of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish 

Stocks and Highly Migratory Fish Stocks; 

c) Operation of the tuna fishery of the EPO shall be managed consistent with the concepts of 

sustainable development and the ecosystem approach, in particular, to adopt measures based on the 

best scientific evidence available, for the conservation and sustainable use of tuna species; 

d) Incorporation of measures to ensure the long-term protection of dolphins; 

e) Incorporation of democratic decision-making processes in order to ensure the conservation and 

sustainable use of the regulated species; 

f) Adoption of a new equitable system of allocating financial contributions; 

g) Development of mechanisms for enhanced public participation and transparency, according to 

procedures to be adopted for such purpose and; 

h) Promotion of international cooperation in order to foster the development of national research 

capabilities on ecosystems, fishing practices, and gear technology. 

ENDS 
353 

Attachment ill 

References: 

FAO, The State ofWorld Fisheries and Aquaculture, UN Food and Agriculture Organization, Rome, 

1995, page I. 

FAO, "A Global Assessment ofFisheries Bycatch and Discards," FAO Fisheries Technical Paper 

339, Rome 1994, ISSN 0429-9345, Pages 5-13. 

NOAA Letter and Addendum from Dr. D. James Baker to Rep. Gerry Studds, House of 

Representatives, 31 August 1995, 14 pages. 

"NGO Declaration: A Call for Action by Environmental, Fishworkers and Other NGOs," 24 July 

1995, as presented at the 5th substantive session of the UN Conference on Straddling Fish Stocks 

and Highly Migratory Fish Stocks and endorsed by nearly 140 environmental, fishworkers and other 

NGOs globally. 

FAO Code of Conduct for Responsible Fisheries, as adopted at the 28th Session of the FAO 

Conference, October 31, 1995. 

Greenpeace International, "A Precautionary Approach to Fisheries," prepared for distribution at the 

second negotiating session of the UN Fisheries Conference on Straddling and Highly Migratory Fish 

Stocks, March 1994. 

Greenpeace International, "In the Race for Tunas, Dolphins Aren't the Only Sacrifice, The Impacts of 

Commercial Tuna Fishing on Oceans, Marine Life and Human Communities," a report prepared for 

use in relation to IATTC work, 1993. 

IATTC, "Agreement for the Conservation of Dolphins," Summary Documentation of Decisions and 

Recommendations of the Inter-American Tropical Tuna Commission, Intergovernmental Plenary and 

International Review Panel, April 1992-January 1995. 

IATTC, "The 1994 Fishing Year," Background Paper I, 55th Meeting of the IATTC, June 13-15, 

1995, Table 2. 

UN, "Agreement for the implementation of the provisions of the United Nations Convention of the 

Law of the Sea of 10 December, 1982 relating to the conservation and management of Straddling 

Fish Stocks and Highly Migratory Fish Stocks," as open tor signature and ratification on December 

4, 1995. 

US Marine Mammal Commission annual reports to Congress which provide summaries of legislative 

action on tuna/dolphin. 
354 

Center for Marine 

~ Cc:Jmervatlon 

SfATEMENT OF NINA M. YOUNG, MARINE MAMMALOGJST, CENTER FOR 

MARINE CONSERVATION 

Before the 

Subcommittee on Flaherles, WIJdUfe, and Oceana 

Committee 01\ Resources 

February 29, 1996 

Mr. Chairman and MeD\ben of the Subcommittee, thank you for the opportunity 

to present our views 01\ the JntematloNl Dolphin Conaeryation Program Act. H.R. 2823. 

My name is Nina M. Youns; I am the MariJie MmunalosiJt for the Center for MariJie 

Conservation. Our statement today is also made on behalf of the Envirorunental Defense 

Fund, Greenpeace, National Wildlife Federation. and World Wildlife Fund. 

Our organizatiON strongly support H.R. 2823 for one limple reason: H.R. 2823 

will strengthen protection for dolphiN, tuna and other mariJie life In the Eastern 

Tropical Pacific (ETP) ocean ec:osyatem:1 H.R. 2823 implementa the Panama Declaration. 

The Panama DedaratiOI\ .11 the baaiJ.for a binding legal agreement under the InterAmerican Tropical Tuna Comznillion (IATJ'C) which: 

• sets a goal of eliminating dolphin mortality by progressively reducing mortality 

through the setting of annual limits; 

• caps mOrtality at low Ieveli; 

. • establishes apecieJ/atock mOrtality limits which, by the year 2001, will meet the 

Marine Mammal Protection Act (MMPA) goal of a zero mortality rate for all 

dolphiN and for ach species or ltock; · 

• establishes a ayatem that provides Incentives to vessel captaiN to reduce and 

eventually eliminate dolphin mortality; 

• mandates redw:tions In bycatd\ of marine life taken. In the fishery; • requires that the fishery be managed USing a precautionary approach; · 

• establishes scientific advisory groups to advise their national goverrunent and 

the IATJ'C on research and the conaervation and management of the fishery and 

the ecosystem; • strengthens the International Dolphin CO!IIervation Program under the exilting 

La Jolla Agreement by requiring membership In the IATI'C; 

• strengtheN enforcement by impoalrig trade embargoes on countries that fail to 

comply with the new agreement; . 

• provides, through a strengthened labeling ayatem, a strong econolilic incentive 

for fishers to fish for tuna without ldlling a single dolphin. 

1 In particular, the dolphin ~lion provlllons ollhe Puwna Dedu'atlon, erilodleclln H.R. 2823, 

have been endoned by U MtioNI and lnlernatioNI'-Iers ln .marine ftlllft1'l\ll 8Cience Mid marine 

~tlon.(Appendlx A). 

1725 DeSales Street. NW, Ste. 500 Washington, D.C. 20036 (202) 429-5609 Telefax (202) 872-()619 

· Q Printed on loaMI post·consumcr, unbleached, recycled paper 
Testimony. of the 

Center for Marine Conservation 

February 29, 1996 

355 

Substantial progress has been made under the MMPA, but more must be done 

to reduce and eventually eliminate dolphin mortality and ensure the health and stability 

of the E1P marine ecosystem. These goals can only be achieved internationally through 

a legally binding international regime based on sound scientific principles and tied to 

strong enforcement provisions. In our testimony we will review the progress made 

under the MMPA, examine the status of dolphin stocks, describe from a scientific 

standpoint why we believe H.R. 2823 will allow dolphin stocks to recover, discuss 

concerns that have been raised about stress on dolphins from encirclement, and explain 

how H.R. 2823 will reduce the bycatch of juvenile yellowfin tuna and other marine life. 

PROGRESS MADE UNDER TilE MARINE MAMMAL PROTECTION ACT 

The National Marine FISheries Service (NMFS) estimates that approximately 6.3 

million2 dolphins have been killed in the course of tuna purse seine operations by U.S. 

and foreign fleets in the Eastern Tropical Pacific since 1959.3 The MMPA was enacted 

in 1972 to protect marine mammals, including dolphins, from the adverse effects of 

human activities. Reducing dolphin deaths in the E1P yellowfm tuna purse seine fishery 

was among the driving factors behind the passage of the MMPA in 1972. 

The MMPA has been remarkably successful. The 1984 and 1988 amendments 

included the comparability standards, that required foreign nations exporting tuna to the 

·U.S. to provide evidence that they had adopted a dolphin conservation program and had 

reduced mortality to levels comparable to those of the United States. In 1990, the 

Dolphin Protection Consumer Information Act (DPCIA) responded to consumer pressure 

to reduce dolphin mortality by implementing the dolphin safe labeling program. These 

requirements under the MMPA, plus improvements in gear design and fiShing 

operations, improved dolphin release methods, and implementation of the voluntary 

multilateral program to reduce dolphin mortalities known as the La Jolla Agreement, 

have resulted in a dramatic lowering of dolphin mortality from 423,678 in 1972 to 

approximately 3,300 in 199!Hl 99% reduction. 

2 Gerrodette, T., and Wade P.R. 1995. Status of Dolphin Stocks Affected by the Tuna Purse-Seine 

Fishery in the Easllem Tropical Padfic: A 36-Year Summary. Abstract, Elevenlh Biennial Conference on 

the Biology of Marine Mammals. Orlando, FL. December 1995. 

3 Federal Register, Vol. 57, No. 117, pg. 21010, June 17, 1992 

• Marine MaJNnaJ CommiSiion Annual Report to Congress 1994, Marine Mammal Commission, 1825 

Connedlcut Avenue, N.W. Washington, D.C. 20009, January 31, 1995. !in u Pers. comm. by Martin 

HaD, lnll!r-American Tropical Tuna Commission, estimall! of 1995 dolphin mortality. 

2 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

356 

H.R. 2823 WILL FURTHER DOLPHIN PROTECilON: 

Despite the dramatic progress made under the MMPA. dolphins have continued 

to die in the ETP and, at the individual species or stock level the fishery has not met the 

MMPA's zero mortality rate goal. The goal of the DPCIA was to end the practice of 

intentionally deploying nets to encircle dolphins! 1n adopting the DPCIA, however, 

Congress recognized that •a major obstacle to such a change [the end of encirclement) 

has been the difficulty of imposing it [DPCIA) upon the fishing fleets of nations other 

than the United States."' And, unfortunately, the DPCIA did little to change the fishing 

practices of international fishers in the ETP-fishers continued to encircle dolphins at 

approximately the same rate as prior to 1990. 1n fact, as a percentage of total sets, sets 

made on dolphins represent 52% of the total sets made between 1980 and 1990, and 

about 54% between 1990 and 1995.7 

On the other hand, although the relative rlltt of sets made on dolphins did not 

decrease significantly after the passage of the DPCIA, dolphin mortality per stt did 

decrease from 5.0 in 1990 to 0.46 in 1995. Moreover, the percentage of sets that involved 

no dolphin mortality increased from 54% to 85% during that same time period.' Both 

of these measure demonstrate that fishers are rescuing greater numbers of dolphins and 

fishing with less mortality. 

Thus, despite the DPCIA, fishers continue to set on dolphins in the ETP, but 

dolphin mortality has substantially decreased. The challenge, then, is to find a way to 

preserve the substantial progress that has been made in reducing dolphin mortality and 

provide incentives for further progress. We strongly believe H.R. 2823 will accomplish 

these objectives. To understand why, it is useful to review the status of dolphin stocks 

in the ETP and discuss the impact H.R. 2823 is likely to have. 

1 Rept. 101-5:79, 101st Congre.. 2nd Seaeion. House of ReJ>r-ntatives on the Dolphin Proll!ction and 

Consumer Information Act of 1990. p..5. 

'II!· 

7 twl, M.A. and Boyer, S.D. 1992. Elllma ... of Incidental mortality of dolphiN in the J'UI1'HI!Ine 

fishery for -~~~ the asCiem lloplcal Padflc Oceoulln 1990. Rep. lnL Whal. Commn. 41. 1992. pp 5B531. Sa IIIIo: Pen. eotmL by Martin Hall, Inlier-American Tropicll TlDIA c-Nulon, eltlmaee of 1995 

dolphin 8el data. 

'.IlL 

3 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

357 

WHAT IS THE STATUS OF THE DOLPHIN POPULATIONS IN THE ETP? 

Absolute abundance estimates for dolphins taken in the ETP tuna fishery, 

obtained from research vessel cruises conducted between 1986 and 1990, are summarized 

in Table 1. 

Table 1. shows the nine dolphin stocks (or populations) from four dolphin species 

that are frequently taken as bycatch in the yellowfin tuna fishery. Spotted (Stenellll 

attenuata), spinner (5. longirostris orienta/is), and common (Delphinus de/phis) dolphins 

account for over 95% of the mortality.' More than 85% and perhaps as high as 95% of 

all of the sets made on dolphins in any given year involve either spotted or spinner 

dolphins or both.

1

° Consequently, while all stocks have declined since the fishery 

began, two, the northeastern offshore spotted and the eastern spinner, have declined to 

approximately 23%11 and 44%12 respectively of their pre-fishery abundance, and are 

listed as "depleted" under the MMPA.13 · 

' 5« supra noll! at 2 

•• HaD, M.A., Lennert. C and Arenas, P. 1992. The association of tunas with floating objects and 

dolphins In the easll!m tropic:al Pacific Ocean. U: The purse-seine fishery for tunas in the easlem tropic:al 

Pacific Ocean. Presenll!d at the lnll!r-American Tropical Tuna Commission, lnll!rnational Workshop on the 

Ecology and Fisheries for Tunas Assoclall!d with Floating Objects and On Assessment Issues Arising from 

the Association of Tunas with Floating a.jects. February 11-14, 1992, Scripps Institution ofOoeanography, 

La)oUa,CA. 

11 Federal Regisll!r, Vol 57. No 117, pg. 27010, June 17, 1972. 

12 Federal Register, Vol 57. No 118, pg. 272f17, June 18, 1972. 

" Recent unpublished analyses suggest that the easll!m spinner stock may be below one-fourth of its 

pre-fishery abundance-See: Gerrodetll!, T., and Wade P.R. 1995. Status of Dolphin Stocks Affected by the 

Tuna J'urso>.Seine FIShery in the Eastern Tropic:al Pacific: A 36-Year Summary. Abstr.oct, Eleventh Biennial 

Conlermce on the Biology of Marine Mammals. Orlando, FL. December 1995. 

4 
Testimony of the . 

Center for Marine Conservation 

February 29, 1996 

358 

Recent data, based on relative indices of abundance", indicate that all but one 

of these stoclcs (including the depleted eastern spinner stock) are stable, fluctuating 

around the same levels for the past decade.15 The exception is the 1993 and 1994 

decrease in the relative abundance for the northeastern offshore spotted stock. Scientists 

do not know the exact reason for the decrease, but there are two hypotheses. First, 

evidence indicates the large scale movements of these dolphins across stock boundaries 

results in some portion of the overall population being outside the range assumed by 

the relative index of abundance analysis and, therefore, that portion is not accounted for 

in the calculation of the relative index of abundance." These movements are often in 

response to climatic and oceanographic changes, in this case the prolonged E1 Nil\o from 

1991 to the first part of 1994. 

Second, the population decline may be attributable to a natural lag. The estimated 

age of sexual maturity for northeastern offshore spotted dolphins is 12 years. For 

northeastern offshore spotted dolphins, scientific data indicate that more mature animals 

are killed in the fishery." Because the incidental kill declined substantially after 1976, 

one might have expected the northeastern offshore spotted stock to have increased 

"These relative lndicli!S of abundance-indic derived from tuna vessel """"'- data-should be used 

with caution. A number of problems prevent thae data from providing an unbiued estimate of the 

absolute number of dolphin In a population (absolute abundance). Any relative index of abundance must 

be used In combination with absolute abundance estimates obtained from research vessel surveys 1o 

accurately determine the actual abundance of a dolphin stock. Problems include the non-random oearchintJ behavior of the tuna-. oelectiw .-..s of lnlonnation from the fisher to the--(e.g. 

schoola not ..O.Ied with tuna oftm are Nlt reported), higher school encounter rates than .-reb 

vessels, and a bias towards large IIChool size In tuna veuel """"'- data. Because of thae biases and the 

limitations opeclfically del<rlbed In relation to ~offshore spotted and eu1em spiru>e< dolphins, 

relative lndla!s of abundance only provide rough estimates of trend• In abundance. 

" Anpnuzzi, A.A. and Buckland, S. T. 1995. Preliminary nosults on the relative abundance of dolphins 

associated with tuna In the eu1em tropical Padllc 0.:... for 1994. Rep. lnL Whal. CDmmn. 47. 5<r 11/so: 

Edwards. E.F. 1989. Using tuna-vessel """"'- data to detect trends In abundance of dolphin 

populations: history and reoearcll to (1988). NOAA Technical Memorandum NMfS.SWFC-122, 123 p. 

"hl. 

17 Barlow, J. and Hohn, A. 1984. lnll!rpn!tirl8 epotted dolphin age distributions. NOAA Technical 

Memorandum NMfS.SWFC-48, 22p. 

5 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

359 

between 19'79 and 1990.11 However, the mean annual kill of northeastern spotted 

dolphins from 1979-1990 was 19,200 or 2.5% of the population abundance estimate. Kill 

estimates between 1988 and 1990 were between 3% and 4% of the population abundance 

estimate. The bias toward kills of sexually mature animals in particular would have 

prevented any substantial population growth given an estimated maximum population 

growth rate of 3.8%.

19 Therefore, the population may have continued to decline 

because of a natural lag induced by the relatively late sexual maturity-the population 

may only now be reaching a point when there are a sufficient number of sexually 

mature females so the stock can begin to grow.20 

The same may also be true for eastern spinner dolphins with an estimated age of 

sexual maturity of ten years. It has not been determined whether kill estimates for this 

species are biased toward mature animals; nonetheless, the mean annual kill of the 

eastern spinner dolphin from 1979-1990 was 7,700 or 1.5% of the population abundance 

estimate. Kill estimates between 1988 and 1989 were between 2% and 3% of the 

population abundance estimate. The high kill rates would have retarded any substantial 

population growth given the estimated maximum population growth rate of 2.2% 21 

1f the fishery killed more mature animals, the recovery of this population would be 

further delayed. 

In summary, all dolphin stodcs taken in the tuna fishery have experienced some 

level of decline since the fishery began. Most of these dolphin stocks are now stable. 

However, given the low levels of take for most species in recent years some of these 

stocks may actually be increasing. But, the low estimated rates of increase for these 

stocks (<5%) combined with our inability to detect increases of less than 5% means we 

cannot reliably state that these stodcs are recovering. The northeastern offshore spotted 

and the eastern spinner have declined substantially from their original size and are 

11 Due ID large interannual variation in the abundance estimates, for trends to be detected over the 

five-yeat survey period, stock sizes would have had to increase or decrease by approximately 40-50 

percent (or more than 5% annually) in Marine Mammal Conunission. 1992. Annual Report ID Congress 

for 1991, Marine Mammal Commission, Washington, D.C. 

11 Wade, P. 1994. Abundance and Population Dynamics of Two Eastern Pacific Dolphins, Stm&. 

•llmiUI/4 and Sttn<IIG longimstris orimt.Jis. Doctoral Dissertation, University of California, San Diego. 

"'!!t 

21 Wade, P. 1994. Abundance and Population Dynamics of Two Eastern Pacific Dolphins, StmeiUI 

GlltnuiJ/4 and SteMIG longiroslris orimtolis. Doctoral Dissertation, University of California, San Diego. 

6 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

360 

considered depleted under the MMPA." Until the implementation of the 1988 

amendments to the MMPA and, subsequently, the La Jolla agreement, the annual 

mortality of these two stocks was )ugh enough to hamper or retard recovery of these 

populations. With the annual incidental mortality for all stocks now below 0.2% of the 

population abundance, these dolphin populations should be able to recover.

23 

WILL H.R 2823 ALLOW DOLPHIN POPULATIONS TO RECOVER? 

In 1992, the National Research Council (NRC) stated that "A kill rate of 40,000 

animals per year would thus represent a kill rate of 25% or less of recruitment, almost 

certainly low enough to permit current dolphin populations to be stable and perhaps to 

increase. An annual kill of 20,000 (12.5% or less of recruitment) would probably result 

in substantial increases in dolphin populations . ..,. By the end of the 1992 fishing 

season, incidental mortality levels for all of the dolphin stocks had declined to less than 

1 percent of the estimated population. Once again scientists stated that at these levels 

the stocks would eventually increase and recover.25 

At present the annual incidental mortality in the ETP fishery is less than 0.2%·and, 

in all but two cases (northeastern offshore spotted and eastern spinner), is less than 0.1% 

of population size for all dolphin stocks. While any human-caused dolphin mortality 

is undesirable, the great majority of independent and government marine mammal 

scientists consider these mortality levels to have a "neglipble impact" on the dolphin 

stocks and to meet the MMPA's zero mortality rate goal. 

H.R. 2823 caps stock-specific mortality at the 0.2% level and requires that the 

fishery be at or below the 0.1% level by the year 2001. According to the NRC, "the 

committee notes that a complete ban on dolphin fishing or the purchase of tuna caught 

on dolphins is not required to ensure the survival and even the increase of dolphin 

22 5« 111p111 notes at 11, 12, and 13. 

23 National Research Council. 1992. Dolphins and the Tuna Industry. National 

Academy Press, Washington, D.C . 

.. .lsi. 

25 5« .,,. note at 19 

» SOC.F.R. §228.3. S«.UO: Report of the PBR (Potential Biological Removal) Workshop. 1994. Notional 

Marine Fllherles Servk2. Offi<e ol Proeoc:ted Reooun:es. Silver Spring. MD. 

7 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

361 

populations.'o27 Undoubtedly, by providing overall and stock specific mortality levels 

more than four times lower than that recommended by the NRC panel, H.R. 2823 will 

pennit the recovery of these stoclcs to their former abundance. 

WILL CHANGING THE DEFINITION OF "DOLPHIN SAFE" RESULT IN LEVELS OF 

STRESS ASSOCIATED WITH CHASE AND ENCIRCLEMENT THAT WILL RETARD 

THE RECOVERY OF THESE POPULATIONS? 

To answer this question, several others must be answered firsl rust, what is 

stress? Stress is a nonspecific response of the body to any demand made upon il Stress 

can consist of three phases. The fmt phase, the Alarm Phase, is where the animal 

perceives a threat and the body initiates a rapid physiological response involving the 

nervous system and the endocrine system. The Adaptation or Compensation Phase, the 

second phase, occurs when, after prolonged exposure to the stressors, the animal adapts 

to or compensates for the altered conditions causing the stress. The third phase, the 

Maladaption Phase occurs when the stress is of sufficient intensity and duration that 

compensation or adaption is impossible. 1n this phase, if the stress is severe or 

persistent, the body may fail to compensate for the stress and, under the worst 

circumstances, develop a pathological condition (e.g. illness, infection, immune 

suppression, death). 

Second, what is lcnown about marine mammals and stress? Dolphins, having 

evolved in the rigorous marine environment, are adapted to cope with many natural and 

human-related stressors.21 For nearly 20 years, U.S. vessels could obtain a general 

pennit under the MMPA and its regulations to annually chase and encircle hundreds of 

thousands of dolphins in yellowfin tuna fishery in the ETP.

29 Dolphins have been 

chased and encircled in this fishery for more than thirty-five years and have displayed 

adaptive behaviors in the nets since the 1970s (e.g. fewer displays of panicky dashing 

about the net).30 1n 1992, the NRC noted that "no specific information is available 

concerning the effects of the chase on the biology of dolphins. The chase is likely to 

71 Set SUprll note at 23 

21 Dierauf, LA. 1990. CRC Handbook of Marine Mammal Medicine: Health, o;...,se, and 

Rehabilitation. CRC Press. Boston, MA. 

,. 50 CF .R. 216.24 (dX2XIXA)(2) 

" Pryor, K. and Shallenberger, I.K. 1991. Social structure in spotted dolphins (StmeiUo at/.,...la) in the 

tuna purse seine fishely in the easlll!m tropical Pacific. In Pryor, K. and Norris, K.S. (Eds), Dolphin 

Societies: Discoveries and Puzzles, Univ. Calif. Press, Berkeley, pp. 161-196. 

8 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

362 

result in stress. Some herds have developed strategies to avoid capture; others seem to 

have habituated to encirclement and seem to have developed behavioral patterns that 

reduce their risks once in the net "

31 

Some have argued that the chase and encirclement of dolphins causes stress of 

a duration and magnitude that severely impedes dolphin reproduction or even results 

in dolphin deaths-sometimes referred to as cryptic death. According to the phases 

outlined above, the chase, capture, and release of dolphins in the yellowfin tuna fishery 

is lilcely to result in an Alarm Phase and an Adaptation Phase. Whether it results in the 

Maladaption Phase is simply not known. Available scientific data provide no indication 

that mortality occurs after the dolphins are released from tuna purse seine nets. 

Furthermore, no scientific data demonstrate a preponderance of stress-related diseases 

or injuries in these dolphin stocks. 

Claims of reproductive complications or depressed reproductive capacity caused 

by stress related to chase and encirclement also are unfounded. One researcher reports 

negative evidence of such mortality, stating that "Reproductive tracts (of dolphins 

collected from tuna vessels) were examined for evidence of spontaneous abortion, and 

muscle myopathy; no evidence of either was found. on Myrick and Perkins claimed that 

stock differences in density dependent reproductive factors were not as predicted by 

scientific models and thus supported the hypothesis that stress can cause reproductive 

depression." Density dependent factors are: juvenile and adult survival rates, average 

age at sexual maturity, pregnancy rates, and juvenile growth rates. These factors change 

in response to population status. For example, in populations that have been severely 

reduced, such as the eastern spinner and northeastern offshore spotted, one would 

expect changes in reproductive density dependent factors such as: a decline in the 

average age of sexual maturity and an increase in the proportion of simultaneously 

pregnant and lactating females. The study by Myrick and Perkins cite a study by 

Chivers and Myrick" that found that a stock with a longer fishing history had a higher 

" See ..,,... note at 23. 

32 Smith. T.D. (1983) Olanges In size of three dolphin (StmtlU. spp.) populations in the eastern tropical 

Pacific. Fish. Bull. 81, 1-13. 

"Myrick, A.C. and Perkins, P.C. 1995. Adrenocortical color darkness and correlates as indicators of 

continuous acute premortem streso in chased and purse-seine captured male dolphins. J. Pathophysiology 

2: 191-liM. 

" Chivers, S.J. and Myrick. A.C. 1993. Comparison of age at sexual maturity and other reproductive 

parameters for tow stocks of spotted dolphins (StmdU. attt~UU~ta). Fish. Bull. 91:611.018. 

9 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

363 

age at sexual maturity than a population with a short history. As stated, this difference 

was contrary to what would be predicted (e.g a decline in age at reproduction). The 

researchers attributed these findings to stress. However, the Chivers and Myrick study 

and a subsequent study, with larger sample sizes, demonstrated that changes in several 

density dependent reproductive factors were present as expected for several dolphin 

stocks with no evidence of stress-related reproductive inhibition." 

In addition, Myrick investigated several potential physical indicators of stress as 

they relate to chase and encirclement In one study, he reported that spotted dolphins 

chased and captured in tuna purse seine nets have substantially depressed serum 

calcium values which, potentially, could lead to death. Presumably, the perception of 

a threat may cause the release of either cortisol or corticosterone from the adrenal cortex; 

these glucocorticoids can affect electrolyte balance, causing calcium to be removed from 

the serum and sequestered in the cells-lowering serum calcium. Myrick found that as 

a result of being chased for approximately 45 minutes and being held prior to release 

for an additional two hours, serum calcium levels were 7.3 to 8.7 mg/ dl-he assumed 

these levels were far below normal.lll In fact these observed values fall within the 

published normal ranges for dolphins of 4- 11 mg/dl.37 

Myrick and Perkins", postulate that dolphin adrenal gland color changes could 

be used as an indicator of stress. However, due to problems in experimental design, the 

hypothesis is not proven.:'' 

• Chivers, S.J. and DeMasler, D.P. 1994. Evaluation of biological indices for three eas1ern tropical 

Pacific dolphin species. J. Wildl. Manage. 58(3):-(70-478. 

" Myrick. A.C, Jr., Stuntz, W.E., Ridgway, S.H. and Odell, O.K. 1987. Hypocalcemia in spotted 

dolphins (Sitrtt& lllltniUIIa) chased and captured by purse seiners in the eastern tropical Padfic. Proc. 

Abstr., Seventh Biennial Conlerena! on the Biology of Marine Mammals, Miami, pp. 49. 

" Dierauf, LA. 1990. CRC Handbook of Marine Mammal Medidne: Health, Disease, and 

Rehabititation. CRC Press. Boston, MA. p. 26. 5« IJiso: Medway, W. and Gerad, J.R. 1978. Clindal 

Pathology of Marine Mammals. Jn Zoo and Wild Animal Medidne. (eel) M.E. Fowler. pp 604-610. 

" See supnr note at 33. 

" 'This assumption is likely not valid since the results of the study are undermined by lack of controls 

(e.g. adrenal glands from unsueued dolphins of the same or similar species; sample collection of at 

various postmortem intervals to determine degradation; color differences between frozen versus formalin 

fuced tissue; color differences between entangled/asphyxiated animals verse stressed animals) and failure 

to examine the dolphins for other underlying diseases (e.g. pneumonia, parasitism. nutritional state) which 

could have caused discoloration in the adrenal cortex. 

10 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

364 

Returning to the original question, then, will changing the definition of "dolphin 

safe" result in levels of stress associated with chase and encirclement that will retard the 

recovery of dolphin populations? Dolphins caught in association with tuna fishing 

probably exhibit the various stress phases. It is likely that the dolphins experience the 

Alarm Phase of stress (or "fight or flight" response) when they hear the distinctive sound 

of the helicopters, speedboats, or the purse seiner. During chase, capture, confinement, 

and release, the body's reaction to stress in the Adaptation Phase is individual, but may 

be positively influenced by the dolphins past experience in the fishery. Does the 

available published scientific literature indicate that this stress could be so severe as to 

result in death or impede the long-term recovery of a dolphin stock? No. Does this 

issue merit further scientific investigation? Absolutely, and H.R 2823 contains 

provisions requiring further investigation into the impact of chase and encirclement on 

dolphin biology and health. 

Our organizations would prefer that tuna fishing be conducted without encircling 

dolphins, but there is currently no ecologically sound and economically viable 

alternative. If further research shows that stress resulting from encirclement is likely to 

retard recovery, we will demand an end to encirclement under the ''Emergency" 

provisions of H.R 2823. In the absence of such research findings, however, we support 

the approach taken by H.R. 2823, which seeks to protect dolphins while addressing the 

equally important and scientifically demonstrated need to reduce the ecologicallydamaging bycatch of sea turtles, juvenile tuna, sharks, and billfish resulting from fishing 

methods other than setting on dolphins. 

H.R. 2823 WILL PROTECT ENDANGERED SEA TURnES, JUVENILE TUNA, 

SHARKS, AND BILLFISH, IN ADDmON TO DOLPHINS, BY REDUONG 

BYCATCH IN THE ETP TUNA FISHERY: 

In the MMPA, Congress stated: " ... it is the sense of the Congress that they 

[dolphins) should be protected and encouraged to develop to the greatest extent feasible 

commensurate with sound policies of resource management and that the primary 

objective of their management should be to maintain the health and stability of the 

marine ecosystem."'" To date, not much attention has been given to maintaining the 

health and stability of the marine ecosystem in the ETP. H.R. 2823 will, for the first 

time, require measures to protect the ETP ecosystem . 

.. 16 u.s.c. 1361 (6) 

11 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

365 

As our knowledge about fishery conservation and management increases, so does 

our concern about the impact of bycatch on the marine ecosystem. This concern is 

reflected in recent action in Congress and at the United Nations mandating bycatch 

reduction as part of fishery conservation and management. The House of 

Representatives recently passed H.R 39, the Fishery Conservation and Management 

Amendments of 1995. H.R 39 amended the Magnuson Fishery Conservation and 

Management Act's (FCMA) National Standards to specifically address bycatch: 

"Conservation and management measures shall, to the maximum extent practicable, 

minimize bycatch." Similar language exists in the United Nations Treaty on Straddling 

Fish Stocks and Highly Migratory Fish Stocks (U.N. Treaty), which the President recently 

sent to the Senate for its advice and consent. 

Recent data indicate that fishing methods that do not involve setting nets around 

dolphins, such as setting nets on logs and floating objects or on schools of juvenile tuna, 

may have a substantial bycatch of non-target species and juvenile tuna. Of particular 

concern are species that reproduce more slowly than other species-sharks, billfish, and 

sea turtles. The IATTC has been using observers to collect data on the species and 

number of animals captured by vessels with capacities greater than 400 tons, since the 

latter part of 1992. These data, which constitute one of the largest and most complete 

bycatch data sets in the world, form the basis for examining the quantities and types of 

animals taken by the various fishing methods." Table 2 summarizes bycatch data from 

the IATTC for all species incidentally caught by the various methods used to harvest 

yellowfin tuna. 

Moreover, there is also growing concern about the discard of dead juvenile tuna. 

Data collected by the IATTC during 1993 and 1994 indicate that the average tons of tuna 

discarded per set for dolphin, schoolfish, and log sets was 0.17, 0.58, and 8.3 tons 

respectively.42 These estimated average weights of discarded juvenile tuna reasonably 

correspond to those estimated by NMFS of 7.Q-15.0 tons per set on logs, l.Q-1.2 tons per 

set on schoolfish, and 0.06 tons per set on dolphins, depending on the geographic 

area." Further, the IATTC estimates that, overall, 7.4% of all tuna caught in the fishery 

"lnler-American Tropical Tuna Commission. 1995. A Peer Review of the IATTC Bycatch Data Base. 

La Jolla, CA 

" Stt SUprtl note at 7 

" Director's Report to the 45th Tuna Conference On Tuna and Tuna-Related Activities at the 

Southwest Fisheries Science Cenler for the Period May 1, 1993 to April30, 1994. National Marine Fisheries 

Service, Southwest Fisheries Science Cenler, P.O. Box 271, La Jolla, CA 92038. Administrative Report LJ-94-

12 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

366 

during 1993 and 1994 were discarded-this is 31,660 tons of discarded tuna.

44 Then, 

according to IATTC reports, for 1993 and 1994, the total tons of yellowfin discarded by 

the international fleet was 449-917 tons from dolphin sets, 606-2108 tons from school sets, 

and 3802-4150 from log sets." 

From these data and that of the lA TIC, it has become dear that action is 

necessary not only to reduce dolphin mortality but also to reduce overall bycatch of 

other species in the fishery and avert a large-scale shift to log and school sets. Indeed, 

a scientific peer review of the IATTC bycatch data concluded " ... that the various bycatch 

summaries [e.g. Table 2) allowed it to conclude that substantial differences in discard 

levels occurred for different set types [log, school, and dolphin sets). On the other hand, 

the peer group did not believe there were adequate data or statistical analyses provided 

to estimate the degree of these differences .... Nevertheless, the sheer magnitude of the 

rate differences by set type makes it difficult to dismiss the conclusion that a major shift 

in the proportion of each set category would likely lead to substantial differences in 

levels and species compositions of the bycatches and size categories of harvested target 

species. Based on the findings of the peer review panel, it would be prudent that any 

proposed major shifts in fishing modes take into account the implied ecological 

impacts."" 

While the peer review could not ascertain the overall quantitative impact, or the 

impact of shifts to school or log sets on a particular species, the data qualitatively 

indicated that current "dolphin safe" fishing methods (school and log sets) resulted in 

greater bycatch. Moreover, any shift of fishing effort to these methods that may be 

caused by statutory requirements to end the encirclement of dolphins would likely result 

in grtllter bycatch of vulnerable marine species, including sea turtles already in danger 

of extinction. 

Opponents of H.R. 2823 have asserted that bycatch considerations are not that 

important. They claim that in the 1970s and 1980s, when the fishery was larger, bycatch 

was probably greater because the number of school and log sets was larger and, 

05. 

" Set supro noll! at 7 

"lA 1TC TIUrd Quarte1" Report. 1995. Table 10. Inter-American Tropical Tuna Commission, c/o Scripps 

Institute of Oceanography, 8604 La jolla Shores Drive, La jolla, CA 92038. 

" Set supro note at 23 

13 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

367 

furthermore, compared to other commercial fisheries, the ETP tuna fishery has relatively 

little bycatch. But the data indicate that bycatch is a problem in the ETP and 

prohibitions on dolphin sets will exacerbate the problem. It does not matter whether 

historically bycatch in the fishery was either greater than or Jess than it is today. 

Domestic and international fisheries conservation and management efforts have clearly 

made bycatch reduction a priority. IATTC's extensive database on bycatch in the ETP 

tuna fishery will enable us to develop clear, effective, and, in some cases, immediate 

measures for bycatch reduction. H.R. 2823 provides the vehicle that enables us to work 

with the IATTC to develop these measures to "avoid, reduce, and minimize bycatch of 

juvenile yellowfin tuna and bycatch of non-target species . ..c 

Furthermore, we cannot condone the catch and discard of juvenile tuna, while we 

work to manage commercial fisheries using a precautionary approach. Every effort 

should be made to avoid and reduce the catch and discard of juvenile tuna, so as to 

further promote the long-term sustainability and health of tuna stocks in the ETP. H.R. 

2823 provides a mechanism to further advance the precautionary goals, internationally, 

of the FCMA and the U.N. Treaty. 

In summary, we are not advocating a shift to dolphin sets. We do advocate 

increasing dolphin protection without shifting to school and log sets. We prefer that the 

fishery continues to operate within its existing proportion of log, school, and dolphin 

sets while requiring bycatch reduction measures for dolphin and non-dolphin bycatch. 

We believe H.R. 2823 will enable the fishery to achieve this goal. 

CONCLUSION: 

By assuring the successful implementation of the Panama Declaration, H.R. 2823 

helps secure lasting, effective protection for dolphins and other marine life in the ETP. 

It does this by preserving and building on the unprecedented progress of the La Jolla 

Agreement in reducing dolphin mortality. 

International problems demand international solutions. In the long run we cannot 

protect marine life in international waters solely through unilateral mandates. We must 

act now to cement the international cooperation manifested in the Panama Declarationfailure to act could undermine the world's most ambitious international fisheries 

management and dolphin conservation regime and place dolphins themselves at risk. 

., Panama Declaration. Signed October 4, 1995. Inter-American Tropical Tuna Commission. La Jolla, 

CA. 

14 
Testimony of the 

Center for Marine Conservation 

February 29, 1996 

368 

Together the Panama Declaration and H.R. 2823 provide an effective model for 

fishery conservation and management throughout the world. They assure the protection 

of the tuna resource, dolphins, marine biodiversity, and fishers alike. They provide for 

this protection through measures based on sound science. 

More importantly the Panama Declaration will allow the establishment of a 

binding legal agreement within the IATI'C. In addition, the Panama Declaration requires 

nations to become members of the IATI'C, further strengthening the IATTC, and to 

implement the provisions of the agreement in national law or regulations thereby 

facilitating a country's ability to enforce the Panama Declaration conditions-a flaw of 

the La Jolla Agreement 

The U.S. will continue to use its markets to enforce an international agreement 

Once the new binding legal agreement instituting the Panama Declaration has been 

developed, the existing tuna embargoes will be lifted. However, the U.S. will only 

import tuna from other countries in compliance with the new agreement Any nation 

found to be out of compliance or diminishing the effectiveness of the new agreement 

will be embargoed. 

The complexities of the problem require that we strike a balance, a balance that 

maintains the active partidpatio,n of the fishing nations in a binding international 

agreement that will reduce and' potentially eliminate dolphin mortality, protect and 

recover depleted dolphin species, reduce bycatch and conserVe other marine life, and 

guarantee the conservation and proper management of the tuna fishery. The Panama 

Declaration and H.R. 2823 represents a delicate compromise and consensus among our 

five conservation groups, the Ointon Administration, the U.S. tuna fishing industry, and 

eleven foreign fishing nations-all of which fully support fully H.R.2823. 

We believe that now is the time for U.S. leadership in charting a new course that 

strengthens international protection for dolphins and marine ecOsystems. For these 

reasons we urge speedy passage of H.R. 2823. 

[Attachments were placed in Subcommittee files.] 

15 
369 

Testimony of Jeffrey Pike 

on behalf of the 

Dolphin Safe Fair Trade Campaign 

on H.R. 2858 and H.R. 2823 

Before the 

Subcommittee on Fisheries, Wildlife and Oceans 

Committee on Resources 

U.S. House of Representatives 

February 29, 1996 
370 

Table of Contents 

SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1 

OVERVIEW ................................................ Page 1 

MAKING MODIFICATIONS TO U.S. LAW TO ALLOW IMPORTATION OF "DOLPHIN 

SAFE" TUNA AND PROMOTE INTERNATIONAL COOPERATION, WHILE 

MAINTAINING CURRENT U.S. LABELING LAWS TO PREVENT CONSUMER 

FRAUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 

Environmental Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 

Acknowledging Significant Efforts to Reduce Dolphin Mortality, The Miller bill 2856 

Lifts the Current Embargoes . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 

Preserving the Integrity of U.S. Dolphin-Safe Labeling Law and Preventing 

Consumer Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4 

Implementing the Panama Declaration and Addressing By-Catch and Other 

Scientific Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 

A BAILOUT FOR THE MEXICAN TUNA INDUSTRY AND A TERRIBLE GATI 

PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 

A Bad GATI/WTO Precedent ........... . ............. Page 6 

A Better Approach . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . Page 6 

THE LATIN AMERICAN FACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 

ENCIRCLEMENT, THE PRECAUTIONARY PRINCIPLE AND SOUND SCIENCE 

Page 8 

BY-CATCH ASSOCIATED WITH LOG AND SCHOOL SETS .............. Page 9 

THE INTERNATIONAL REGIME HAS NO COMPLIANCE MECHANISM ..... Page 12 

CONCLUSION ...................................... .. .... Page 13 
371 

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity 

to testily today. My name Is Jeflr&y Pike and I am coordinator of the Dolphin Safe Fair Trade 

Campaign. I am testllylng today on behalf of a coalition of over 70 trade, consumer, labor, 

conservation and animal welfare organizations. These organizations have a strong commitment 

to ending dolphin mortality resulting from encirclement of dolphins in the Eastern Tropical Pacific 

Ocean (ETP). The Dolphin Safe Fair Trade Campaign supports the Miller bill, H.R. 2856, and is 

strongly opposed to the Gllchntst!Cunnlngham bill, H.R. 2823. The combined membership of 

these groups In the United States Is in excess of 5 million Individuals. 

I. SUMMARY 

The Dolphin Safe Fair Trade Campaign supports the Miller bill because it: 

e Maintains the current strict federal definition' of 'Dolphin Safe;' 

e Rewards foreign dolphin safe tuna fishers by opening up U.S. markets to their 

catch; 

e Requires annual reductions in the dolphin kill quota authorized by the lA TTC; 

e Reinforces the IATTC's Dolphin Conservation Program, using the U.S. rnarl<et to 

continue incentives for ftshers to fish dolphin-safe; and 

• Sends a strong message that U.S. environmental, health, consumer safety 

standards and animal protection laws will not be weakened or repealed whenever 

they appear to conflict with U.S. trade obligations. 

II. OVERVIEW 

In the thirty-seven years since tuna fishers first employed the technique of chasing 

down dolphins with speed boats and helicopters and encln:ling them with mile-long purse-seine 

nets, more than seven million dolphins have been killed. Aocorcllng to the National Marine 

Fisheries Service', this represents the world's largest killing of marine mammals, dwarfing the 

total kill of whales by whaling nations, even ecUpsing those years when industrial whalers drove 

many whale species to near extinction. 

The tuna/dolphin fishery of the ETP Is not Uke other marine mammal interaction 

ftsheries. In the ETP tuna fishery, targeting of dolphin schools Is deliberate. Yet, 96% or more 

of tuna worldwide is caught by hook and line fisheries or by setting nets without encircling any 

dolphins. 

' NMFS: Revised Estimates of Fisheries Kill of Dolphin Stocks in the ETP; Wade: 

AR W-93-17. 

Page 1 
372 

In 1972, Congress enacted the Marine Mammal Protection Act, largely to stop the 

carnage resulting from the intentional encirclement and slaughter of dolphins by tuna seiners. 

On six occasions since then, Congress has amended the Act's tuna/dolphin provisions, in each 

instance requiring U.S. and foreign fleets to reduce their dolphin kill in en attempt to bring 

mortality down to levels approaching zero. 

· By 1988, foreign countries began to dominate the fishery and, since then, have 

been responsible for the vast majority of dolphins killed. As a result, Congress strengthened the 

trade provisions contained in the MMPA to address the killing of dolphins by foreign nations. As 

Rep. Gerry Studds, then Chairman of the Subcommittee on Fisheries and Wildlife Conservation 

and the Environment, stated in 1989: 

We do not have the power to regulate foreign fiahing operations in foreign 

watera or on the high aeas. But - do have the right to bar our markets to 

any nation that does not share our concern for the conservation of marine 

mammals. 

Rep. Studds' statement is as relevant today as~ was seven years ago. Eight years 

ago the American people spoke out against the carnage of dolphins when millions of Americans 

threatened to boycott all tuna rather than have the U.S. market contribute to the death of 

hundreds of thousands of dolphins. Responding to this public outcry, the major U.S. tuna 

canners became 'dolphin safe. • 

Today, dolphins are under a new threat - ~ is called 'free trade. • The American 

public feels strongly, as evidenced by the C:urrent Presidential debates and numerous polls, that 

the U.S. should continue to maintain strong environmental standards, irrespective of threats by 

foreign nations that they will challenge the Un~ed States at the World Trade Organization (WTO). 

Clearly, U.S. tuna import restrictions have succeeded in dramatically reducing 

dolphin deaths. Our high standards, coupled w~h our market restrictions, have forced other 

countries to harmonize their standards upward. Our import restrictions helped persuade Ecuador 

and Panama to pro hi~ their fleets from any encirclement of dolphins, and other nations including 

Thailand, Taiwan, the UK, Germany, and France to prohi~ imports of dolphin-unsafe tuna. U.S. 

import restrictions also provided the necessary leverage to encourage foreign countries to carry 

more observers, use better dolphin-safety equipment and techniques, require better training of 

captains, enact prohibitions on the use of explosives, and stop the setting of nets on dolphins 

during hours of darkness when dolphin mortality is three to five times higher. By any measure, 

our import restrictions have been the impetus for real change. 

Yet despite this winning strategy, there are those who want to undo our successes 

and repeal key provisions of our U.S. tuna/dolphin laws. To do so is to tum back the clock, 

abdicate U.S. environmental leadership and set a precedent of repealing U.S. environmental laws 

whenever they appear to conflict with U.S. trade obligations. 

Page2 
373 

Ill. MAKING MODIFICATIONS TO U.S. LAW TO ALLOW IMPORTATION OF 'DOLPHIN 

SAFE' nJNA AND PROMOTE INTERNATIONAL COOPERATION, WHILE 

MAINTAINING CURRENT U.S. LABEUNG LAWS TO PREVENT CONSUMER FRAUD. 

At issue today ant three U.S. laws: the current embargo provisions contained in 

the MMPA (prohibiting the importation of yellowfin tuna from any country whose tuna fishers kill 

dolphins at a rate more than 25% higher than U.S. fishers), the International Dolphin Conservation 

Act (prohibiting the sale of dolphin unsafe tuna in the U.S. market) and the Dolphin Protection 

Consumer lnfonnation Act (prohibiting the use of the 'dolphin-safe' label on any tuna caught by 

chasing, encircling and capturing dolphins). 

A. Environmental Controywsles 

H.R. 2823 would (1) repeal the current embargo provisions, (2) repeal the 

prohibition on the sale of dolphin unsafe tuna in the U.S. market, and (3) substantially alter the 

definition of 'dolphin safe' to penni! the chase, encirclement, capture, and injury of dolphins so 

long as no dolphins ant 'observed' killed. 

At the heart of the debate over whether to repeal U.S. 'dolphin safe' laws is the 

fact that several countries, Mexico in particular, want access to our two billion dollar U.S. canned 

tuna market and are willing to press their claim at the WTO. To claim, as supporters of H.R. 

2823 do, that we need to change U.S. dolphin safe laws for 'environmental' reasons is simply 

nonsense. Mexico's concem is trade, not the environment. 

B. Acknowledging Significant Efforts to Reduce Dolphin Mortality, The Miller bill 2856 Lifts 

the Current Embargoes 

Recognizing the significant effort by U.S. and foreign fishers to reduce dolphin 

mortality In the Eastern Tropical Pacific (ETP) tuna fisherf, H.R. 2856 would maintain current U.S. 

market standards, but would lift the MMPA embargo to penni! all 'dolphin sale' tuna to be sold 

in the United States. By repealing the current embargo provisions, but maintaining U.S. domestic 

standards, H.R. 2856 creates an added incentive for foreign and U.S. fishers to fish for yeliowfin 

tuna without chasing, netting and capturing dolphins. 

Under current U.S. law foreign fishers who fiSh dolphin safe ant penalized if their 

colleagues kill too many dolphins. The MMPA currently establishes a country standard, which 

means that the country as a whole has to n.at U.S. standards or all fishers from that country ant 

penalized. H.R. 2856 would eliminate the country standard and Instead establish a 'vessel' 

standard. Each vessel that meets current U.S. standards" could import its tuna into the United 

a According to estimates by the Inter-American Tropical Tuna Commission 

(IATTC), observed dolphin mortality in the ETP tuna fishery has been reduced by 96% 

in the last five years. 

• Only 'dolphin-safe" tuna would qualify to be imported into the United States. 

Under current U.S. law, in a fishery where there is a known association between 

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374 

States. 

The Miller bill allows each fisher to make his or her own economic choice. Over 

90 percent of the world canned tuna market is dolphin safe. • If a fisher can profitably sell his or 

her tuna in a dolphin-safe market such as the dominant U.S. market, that fisher will have an 

incentive to fish dolphin safe. If, for any reason, a fisher decides to set on dolphins and sell to 

a non-dolphin safe market, but later in the season decides to go on a dolphin safe voyage, this 

latter tuna can be Imported without penalty, as long as only the tuna from the dolphin safe 

voyage is imported into the United States. This change to current law makes sense ecologically, 

as well as economically. It encourages fishers to fish dolphin safe without penalizing them if they 

don't perform 100% of the tima. 

C. Preserving the Integrity of U.S. Dolphin-Safe labeling law and Preventing Consumer 

Fraud 

The Gilchrest/Cunningham bill would change the definition of 'dolphin safe• to 

include tuna harvested by chasing, netting and capturing dolphins, a practice which most 

Americans deplore, and in our view is decidedly not 'dolphin safe. • Under the 

Gilchrest/Cunningham bill, tuna is considered "dolphin safe' as long as no dolphins are 

'observed' killed during the set In which the tuna is caught. 

Tuna seiners make many sets (average is 30-40) during a single voyage. The 

Gilchrest/Cunningham bill envisions a system whereby both dolphin unsafe and newly defined 

'dolphin safe' tuna are kept on board a single vessel during a single voyage. Such a system not 

only undermines the integrity of U.S. laws, but is unenforceable. Under the 

Gilchrest/Cunningham bill the reliability of such a regime will depend solely on a single observer 

who will be under tremendous economic pressure not to •see• dead dolphins. The reality will be 

that dolphin deadly tuna will flood into the United States labeled as "dolphin safe' and consumer 

confidence will be undermined. Lack of confidence by consumers could again spark a 

consumer boycott of canned tuna which would, in tum, damage the U.S. market for U.S. canners 

and fishars. 

The Miller bill preserves the current definition of "dolphin safe, • thereby preventing 

consumer fraud and safeguarding consumer confidence. 

dolphin and yeUowfin tuna such as in the ETP, to qualify as 'dolphin safe' an observer 

must certify that no encirclement occurred on the voyage on which the tuna was 

harvested. 16 U.S.C. 1417. In other oceans where there is no known association, a 

vessel captain can make such certification. Tuna caught with driftnets does not 

qualify as dolphin safe. ~. 16 U.S.C. 1417. 

• FAO statistics. 

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D. lmolementinq the Panama Declaration and Addressing Bv-Catch and Other Scientific 

Concerns 

The Miller bill promcites international cooperation by Implementing key provisions 

of the Panama Declaration aa it haa been intet'pfWted by the Clinton Administration and the fiVe 

environmental groups supporting the Gilchrest/Cunningham bill. It requires that the total annual 

dolphin mortality in the ETP purse seine fishery not exceed 5000 animals in 1996, and that this 

number be reduced by a statistically significant amount each year thereafter with the goal of 

eliminating dolphin mortality In the fishery. The Miller bill also requires that countries become 

members of the lA TIC and ensures that countries will enforce their obligations under the lA TIC 

by requiring that a country embargo be reestablished for any country which consistently fails to 

take enforcement action. 

The Gllchreat/Cunnlngham bill Ia not utiafactory b8CIIuae It falla to provide 

even minimal enforcement provlalona and does not require countrlea Importing tuna to the 

United Statea to be members of the IATTC, the International organization reaponalble for 

the ETP tuna flahery. 

The Miller bill addresses scientific concerns by requiring the establishment of a 

research program to determine: (1) the effect of harassment by chase and encirclement on the 

health and biology of dolphins and Its impact on dolphin populations encircled by purse seine 

nets in the ETP, and (2) the extent to which the Incidental take of non-target species, Including 

juvenile tuna, occurs when fishing for yellowfin tuna using dolphin-safe methods and the impact 

of that incidental take on tuna stocks. H.R. 2856 authorizes up to $1,000,000 to be spent on 

such reseen::h and requires that the Secretary of Commerce report to Congress wit"'ln three years 

the results of such research, thus ensuring timely completion. 

The Gllchreat/Cunnlngham bill requlrea no by-catch reaearch and allocatea 

no money towarda any r-rch. 

IV. A BAILOUT FOR THE MEXICAN 1\JNA INDUSTRY AND A lERRIBLE GAlT 

PRECEDENT 

Many of the organizations which aupport the Miller bill opposed the North 

American Free Trade Agreement (NAFTA) and the implementation of the World Trade 

Organization (WTO) because we believed It waa only a matter of time before these agreements 

would be used offensively against democratically ~ed domestic laws. Supporters of NAFTA 

and GAlT promised that a vote for 'free trade' would not be a vote against American values, 

and that our environmental laws, In particular, would be sate from attack. 

Not utiafled with Ha NAFTA galna • a huge trade aurplua with the UnHed 

Statea and over 20 billion dollara In U.S. aid, Mexican Prealdent Zedillo aought aaaurancea 

laat fall that the Clinton Admlnlatration would support the repeal of our dolphin ufe lawa. 

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376 

A. A Bad GATI/WTO Precedent 

In 1991 and 1994, GATI ruled that the tuna,ldolphin provisions of the MMPA were 

inconsistent with U.S. GATI obligations. Under the old GATI rules, the U.S. could ignore these 

rulings - which It did. Now, faced with mandatory trade sanctions under the new WTO, the 

Clinton Administration Is seeking to avoid another trade challenge by Mexico • one that could be 

enforced with trade penalties. 

The precedent that is being set, however, is to quickly and quietly repeal U.S. 

environmental laws which conflict with GATI/WTO. What other laws might be affected by this 

strategy? 

The very first case filed at the WTO is a case challenging certain provisions of the 

U.S. Clean Air Act. The WTO ruled against the U.S. in that case. Other likely future challenges 

include the U.S. High Seas Driftnet Enforcement Act and U.S. laws protecting sea turtles. 

Last December the U.S. Court of International Trade (CIT) ruled that the Clinton 

Administration had wrongly failed to enforce a U.S. conservation law enacted in 1989 to protect 

tens of thousands of sea turtles from being killed by U.S. and foreign shrimp trawlers. Currantly, 

all U.S. shrimp trawlers use Turtle Excluder Devicas (TED), as required by U.S. law, but many 

foreign vessels do not. Under the terms of the CIT Order, by Juna 1996, shrimp from over 50 

countries may be embargoed if the foreign vessels have not complied with U.S. standards. The 

E.U. is threatening a WTO challenge If this conservation law is enforced against any of its 

member nations. Will this law also be repealed because it too conflicts with WTO rules? 

This month the CIT again ruled against the Clinton Administration for failing to 

enforce the High Seas Driftnet Enforcement Act. H Italian vessels do not stop using oversized 

driftnets on the high seas within 60 days, the Administration will be required by court order to 

embargo Italian fish products. The European Union has already indicated that it will challenge 

this U.S. law at the WTO if the U.S. enforces it. Will It too be repealed for the sake of GATI 

consistency? 

B. A Better Aporoach 

The Miller bill adopts a fair trade approach, rather than the trade supremacist 

approach of Giichrest/Cunningham bill. The Miller bHI repeals the comparability provision of the 

MMPA, which is the only provision of currant U.S. law that has been detennined (by a GATI 

paneQ to be Inconsistent with GA n rules. Instead of eradicating over 20 years of conservation 

effort, the Miller approach is to maintain high U.S. standards while allowing individual foreign 

vessels that nwet our standards to have accass to the U.S. market. It was the fact that the 

United States embargoed even 'dolphin safe' tuna from countries which did not nwet the U.S. 

comparability standard that caused the most concem to a previous GATI panel.5 The Miller bill 

rectifies this problem by allowing all 'dolphin safe' tuna to be imported into the United States. 

' Tuna Dolphin II case. 

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V. Tl1E LATIN AMERICAN FACTOR 

According to industry sources, 28 of Mexico's 39" class six Miners are fishing 

dolphin safe and seiNng their tuna to dolphin safe markets. This represents almost three-quarters 

of the Mexican class six wssels. What Is needed is a mechanism to encourage the remaining 

Mexican tuna seiners to fish dolphin safe. The Miller bill does this by giving them access (which 

they currently do not have) to the U.S. market for their dolphin safe tuna. Incidentally, If more 

Mexican fishers shift to dolphin-safe techniques they will gain increased access to the European 

dolphin-safe market as well. 

Supporters of the Giichrest,ICunningham biD claim that Mexico 'will walk" from the 

international program If the United States does not open its markets to Mexico's dolphin unsafe 

tuna and change the U.S. definition of "dolphin safe.• The implicit threat is that Mexico will go 

back to the days of killing tens of thousands of dolphins. While this claim may be emotionally 

appealing, it is not grounded In fact. 

Ironically, Mexico is currently not a member of the lA TIC. Although it has the 

largest tuna seining fleet In the ETP, Mexico pays none of the operating cost of the international 

regime. 7 Only 50% of the Mexican vessels participate in the lA TIC's observer program. Although 

the other 50% participate in a Mexican observer program, Mexico is seriously behind in its 

reporting to the lA TIC the results of its observer program.8 Despite hundreds of violations of 

lA TIC's rules regarding dolphin protection, not one Mexican fisher has ever been fined or 

punished. Clearly, Mexico now is barely "participating" in the current international regime. 

The v .. t majority of the worldwide canned tuna market Is now dolphin .. ta. 

Although supporters of the Gilchrest/CuMingham bill claim that the growing Latin 

and Asian markets for canned tuna make the U.S. embargoes Increasingly meaningless in terms 

of market Impact, FAO statistics demonstrate that in 1993, no Latin country other than Colombia 

had even a notable market share of the canned tuna market.' Furthermore, no Asian country 

other than Japan has any significant market share of canned tuna, and even Japan's market 

share is tiny. 10 According to industry sources, the statistics for 1994 and 1995 (which have not 

been published yet) do not differ significantly from the 1993 trends. The United States, Europe 

and Canada, which all have dolphin-safe markets, consume more than 90'11. of the world's supply 

• IATTC, 1995, 3rd Quarter Report. 

7 The U.S. has only 4 vessels operating in the ETP yet pays 95% of the budget 

of the IATTC. 

• Pers. comm. by Leesteffy Jenkins with Martin Hall, June 1995. 

• FAO FIShery Statistics, 1993. 

10 .lsL. 

Page7 
378 

of canned tuna. 11 

If Mexico 'walks' and Mexican fishers again kill tens of thousands of dolphin, where 

will Mexico sell its tuna? Clearly, even if it is Mexico's intention to carry out its threat to kill tens 

of thousands of dolphins, such action will have severe economic consequences to Mexico. 

VI. ENCIRCLEMENT, THE PRECAUTlONARY PRINCIPLE AND SOUND SCIENCE 

Supporters of the Gilchrest/Cunningham bill argue that the dramatic 

reduction since 1989 in dolphin deaths in the ETP tuna fishery demonstrates that encirclement 

is an acceptable method of fishing. They argue that although dolphin sets as a percentage of 

total sets have decreased in the last eight years by only slightly more than 30%, dolphin mortality 

has decreased by almost 96%, demonstrating that dolphin deaths can be reduced even with 

encirclement. 

The impact of encirclement on ETP dolphin populations, however, is more than 

just an issue of dolphin mortality. The real issue is which dolphin populations are being affected 

and what is the impact on them. 

The two most commonly encircled dolphin populations-the Northeastern offshore 

spotted and the Eastern spinner dolphins - are severely depleted according to recent National 

Marine Fisheries Service Assessments. 12 The Northeastern offshore spotted dolphins have been 

reduced to only 23% of their pre-exploitation population size and the Eastern spinner has been 

reduced to 44%. 13 Both are far below the 60% threshold used for lull protection under the Marine 

Mammal Protection Act. Moreover, despite relatively low numbers of 'observed kills' in recent 

years 14, both populations have continued to decline for reasons which are unclear to scientists." 

12 NMFS Administrative Report W-93-16, August, 1993. 

13 At the December 1995 Biennial Conference on the Biology of Marine Mammals 

in Orlando, Florida, NMFS representatives reported that the latest stock assessments 

for these 2 species in the ETP indicated an even greater reduction in population 

abundance. Both species are currently at approximately 1/5 of their original 

estimated population sizes. 

14 The IATIC estimates that 1,143 Northeastern spotted dolphin died as a result 

of the ETP tuna fishery in 1993, and 934 died in 1994. The lA TIC estimates that 624 

Eastern spinner dolphins were killed in 1993, and 743 were killed in 1994. 

15 "Preliminary results on the relative abundance of dolphins associated with tuna 

in the eastern Pacific Ocean for 1994," by Anganuzzi and Buckland, submitted to the 

Scientific Committee of the International Whaling Commission, SC/47/SM51 (1995). 

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379 

Some scientists believe that certain stress factors related to chase and 

encirclement may provide some preliminary answers to this. Although the studies conducted to 

date are preliminary, Initial observations indicate that dolphins caught in the ETP tuna fishery are 

subjected to many strong, unavoidable stimuli, Including repeated forced high-speed swimming 

(some estimate that schools of targeted dolphins are chased and encircled twice or more a day 

by the purse seiners'"), close pursuit, gear and vessel noise, turbulence, confinement and 

crowding. 

11 These dolphins have indices of stress not found in similar dolphin species not 

directly affected by the fishery or affected at lower rates.'" Results of preliminary studies on 

heavily fished populations of spotted dolphins indicate a substantially lower pregnancy rate and 

a significantly delayed age at sexual maturity, compared to a less exploited stock. •• While 

scientists have not ruled out other causes for this, application of the precautionary principle would 

require that absent scientific proof that encirclement is not a problem for these severely depleted 

populations, their encirclement should be drastically reduced if not eliminated altogether. 

Current acientlflc data atrongly auggeat that encirclement and Ita effects on 

targeted dolphin populations should be subject to a thorough scientific examination before 

abandoning a 20-yeer U.S. goal of eliminating encirclement and dolphin mortality. To do 

anything alae would not be sound aclence and would represent very poor resource 

management. 

VII. BY-CATCH ASSOCIATED WITH LOG AND SCHOOL SETS 

lA TIC observer data indicate that norKiolphin by-catch is higher in log and school 

sets than in dolphin sets. Supporters of Gilchrest/Cunningham bill fear that if dolphin sets are 

further decreased or eliminated, log and school sets would increase, thereby further Increasing 

non-dolphin discards, especially juvenile tuna. They support the Gilchrest/Cunningham bill 

because it encourages fishers to continue to set on dolphins. thereby giving them an alternative 

to log and school sets. 

18 Pers. comm. by John Hall with American tuna boat owner. 

17 §ti, "Adrenocortical color darkness and correlates as indicators of continuous 

acute premortem stress in chased and purse-seined captured male dolphins, • Myrick 

and Perkins, Pathophysiology. 1995. See also. "Is tissue resorption and replacement 

in permanent teeth of mammals caused by stress-induced hypocalcemia?" Myrick, 

The Biological Mechanisms of Tooth Eruption and Root Resorotion, Edited by Z. 

Davidovitch, at 379-389 (1988). 

'" JQ.. at 3. See also. "Comparison of age at sexual maturity and other 

reproductive parameters for two stocks of spotted dolphin, Stenella attenuata," 

Chivers and Myrick, Fishery Bulletin 91 :611~18 (1993). 

Page9 

20-276 - 96 - 13 
380 

This laaue has been mlaconatruecl by the supporters of the 

Gllchreat/Cunnlngham bill. 

Dolphin sets occur primarily on the high seas. Log and school sets occur 

predominately within co115tal waters or within exclusive economic zones (EEZs). 20 In fact, more 

than 57% of all sightings and sets on logs occur just in the Panama Bight, an area which 

encompasses the coastal waters of Costa Rica, Panama, Colombia and the northern tip of 

Ecuador.

2

' 

The key laaue therefore, Ia whether encouraging fishers to Mt on dolphlna 

on the high Maa will correspondingly encourage them [!21 to Mt on logs or schools In 

coaatal waters. We believe the ana_, Ia no. 

Historically, even when ETP tuna fishers can set on dolphins without regulation or 

penalty, they also continue to fish on logs and schools of tuna a significant portion of the time. 

A review of lA TIC log book data22 spanning the past 20 years demonstrates that even during the 

years when there were large numbers of dolphins sets (and hundreds of thousands of dolphins 

killed annually) tbe number of log and school sets was still hiober than it Is today. 

23 The reason 

for this is that large yellowlin tuna are present in the coastal areas at certain times of the year and 

fishermen will continue to exploit this situation. 24 

Absent domestic regulation by foreign governments (tuna seining does not occur 

in U.S. coastal waters) the history of the fishery demonstrates that foreign fishers are not going 

to voluntarily leave their coastal zones to fish exclusively, or even primarily on the high seas. 

20 "The Association of tunas with floating objects and dolphins in the eastern 

pacific ocean • A proposed migratory circuit for yellowfin tuna in the EPO," Hall and 

Lennert, lA TIC, 1992. (While we had hoped to have access to the lA TIC's raw data 

on by-catch, the lA TIC refused to give us access. When we contacted NMFS 

scientists to get the data, we were told that the information has not been released to 

NMFS either. Thus, we had to rely on summaries of collected data that the lA TIC 

has published to date.) 

22 Note: the lA TIC log book data covers all ETP tuna vessels while the lA TIC 

observer data covers only vessels over 400 short tons. Note also that log book data 

are typically vastly ur!der-reported and thus are not considered "robust" by scientists. 

23 Background paper 1 ·55th Meeting of the lA TIC, June, 1995, La Jolla, 

California. The average number of log sets made between 1990-1991 is 1741 per 

year. This is substantially less than the average during the 1980's which was 3250 

log sets per year or the 1970's which was 38041og sets per year. 

24 ~ l.!:!fm.. Hall and Lennert at note 9. 

Page 10 
381 

Thua, amending U.S. law to encourage aeta on dolphins will not significantly 

reduce or even addreaa the non-dolphin by~tch laaue. 

A more appropriate and effective way to address the by-catch issue, especially the 

by~tch of juvenile tuna, is to require time and area closure on log sets in coastal waters, such 

as the Panama Bight where there is a high incidence of juvenile tuna and other by-catch species. 

For example, according to the IATTC, during the months of March-May there is a proliferation 

of small tuna in the Panama Bight area. A closure of the Panama Bight to log sets during those 

months would thus directly reduce the by-catch of juvenile tuna. It would also reduce the bycatch of all other species since the coastal and nearshore areas of the Panama Bight have been 

shown to contain all the species assemblages measured by the IATTC."" 

An additional solution is to develop incentives or regulatory measures for 

encouraging tuna canneries to accept (without price differentiaQ smaller yellowlin tuna. Prior to 

1985, the tuna canneries did not have a price differential for the larger tuna. This meant that 

purse seine vessel owners received the same economic retum for all yellowlin tuna weighing 

more than about 7 lbs. Without an economic incentive to separate the large tuna from the small, 

tuna seiners had fewer Incentives to discard small tuna. After the price differential went into effect 

in 1985, the amount of small tuna discards rose dramatically."" 

It is likely that the number of small yellowlin tuna harvested and !s!e! before 1985 

was not substantially lower than the number harvested and discarded today. Yet, the IATTC has 

never claimed that the number of small yellowlin tuna harvested prior to 1985 had a measurable 

impact on the overall yellowfin tuna biomass in the ETP. On the contrary, the lA TIC has stated 

that the stock of yellowfin tuna in the ETP increased dramatically during the mid to late 1980's. 

Thus despite recent claims to the contrary by supporters of the Gilchrest/Cunningham bill, it 

seems likely that the harvest of small yellowfin tuna has not negatively impacted the status of the 

stocks of yellowlin tuna In the ETP, whather kept and canned or discarded. 

Supporters of the Gilchrest/Cunningham bill also continue to incorrectly portray 

the ETP fishery as a high by-catch fishery, which It is not. 27 Claims of large sea turtle mortality 

25 "The Association of Tunas with Floating Objects and Dolphins in the Eastern 

Pacific Ocean- VI. Association of fauna with floating objects in the EPO," Arenas, Hall 

and Garcia, IATTC, 1992. 

211 "The Association of Tunas with Floating Objects and Dolphins in the Eastern 

Pacific Ocean • II. The purse-seine fishery for tuna in the eastern Pacific Ocean, • Hall, 

Lennert and Arenas, IATTC, 1992. 

-n Testimony of Dr. James Joseph, Director, IATTC, June 1995, attachment 5 

(citing an FAO report that the ETP tuna purse seine fishery has one of the ten lowest 

numbers-based discard ratios in the world.) 

Page 11 
382 

also have not been substantiated ... 

VIII. THI! IN1ERNA110NAL REGIME HAS NO COMPUANCE MECHANISM 

A review of the lA TIC's compliance record demonstrates that the lA TIC has no 

enforceable compliance ITIIIChanisms and has failed to penalize reported infractions. Thus, even 

though there are obMrvers aboard Hch ve ... l, the obMrver report• are not acted on by 

the International regime. 

To date, despite the fact that hundreds of violations have been reported, no 

monetary fines have been colltcted or penalties assessed. 

In fact, a review of the !ATIC's International Review Panel (IRP) reports 

demonstrate that many countries have failed to take action against severe infractions. Mexico 

is one of the worst offenders. In 1994, Mexican vessels made 19 night sets. The IRP 

recommends a penalty of $20,000 for each night set infraction. No penalties were col!ected. 211 

During the same period, Mexican vessels used explosives 102 times, an infraction for which the 

IRP recommends a penalty of $20,000 per use.

30 No penalties were collected. In fact, in most 

instances, the Mexican government took no action whatsoever."' Similarly, in 1994 during four 

trips !A TIC observers reported that they were prohibited by the vessel captain from carrying out 

their duties, an offense for which the IRP recommends a penalty of $50,000 each from the 

captain and the vessel owners.

32 In no case was the penalty col!ected.

33 

These are only a few of the reported infractions which occur without any penalty 

or even notice by the governments involved. In practice, the !ATIC regime is not working. 

Therefore, It Ia not an adequate aubstltute for atrong U.S. Ia-. 

28 The lA TIC has estimated that 102 sea turtles were taken in the fishery in 1993 

and 48 in 1994. The most common sea turtle in the ETP is the olive ridley, 

Leoidoche!vis olivacea,(Arenas, Hall & Garcia, il::!frB. note 13) whose ETP population 

has been estimated at more than 500,000 (pars. comm. by John Hall with T. Steiner, 

Sea Turtle Restoration Project, 1995.) In contrast, the number of sea turtles caught 

and killed by the Central American shrimp fisheries is estimated at 60,042 annually. 

(Arauz, A.M., Sea Turtle Symposium, 1995.) 

211 IATTC, 19941RP Annual Report. 

so!.Q.. 

Page 12 
383 

AbMnt a complete overhaul of the IA1TC ayatem, by meana of a multilateral 

negotiation of an enforc .. ble, legally binding and fully implemented fiaheriea agrHment, 

enforcement under the Panama Declaration will be aa non-existent aa under the current 

regime. 

The Panama Declaration makes no provision for enforcement. It simply provides 

that the members will 'adopt cooperative measures to ensure compliance, • and 'enhance the 

practice of reviewing and reporting on compliance ... bullding upon past practices under the La 

Jolla Agreement.... This Is a rather meaningless statement given that there has been no 

enforcement under the La Jolla Agreement. 

IX. CONCLUSION 

• Despite reductions in dolphin deaths, the 20 year U.S. goal to eliminate 

encirclement of dolphins is still valid absent sound scientific evidence that 

encirclement is not harmful, especially to already severely depleted dolphin 

populations. 

• Nothing in the Panama Declaration requires the decrease of non-dolphin by-catch, 

nor will maintaining the current definition of 'dolphin-safe' and the U.S. market 

prohibition on the sale of dolphin unsafe tuna increase non-dolphin by-catch. 

• Latin American fishers have a strong market dis-incentive to return to the days of 

killing tens of thousands of dolphins even If the U.S. does not substantially 

weaken its laws. 

• Access to the U.S. market acts as a major and continuing incentive for tuna 

seiners to use dolphin safe methods. 

• In the absence of a strong, reliable, enforceable international regime, the best 

protection for dolphins is still strong U.S. and foreign dolphin safe laws and 

labeling requirements. 

We hope that the Information provided herein will encourage you to support HR. 

2856, the Miller bill. Your support would greatly enhance efforts to promote dolphin protection. 

""IATTC, Panama Declaration, Panama City, Panama, Oct. 3, 1995. 

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384 

Statement of 

Mary L. Walker 

former U.S. Commissioner, lA TIC 

Before the 

U.S. House of Representatives 

Committee on Resources 

Subcommittee on Fisheries, Wildlife and Oceans 

HEARING ON H.R. 2823 (Gilchrest) 

TilE INTERNATIONAL DOLPHIN CONSERVATION PROGRAM ACI' 

AND H.R. 2856 (Miller) 

TilE INTERNATIONAL DOLPHIN PROTECTION AND CONSUMER 

INFORMATION ACT OF 1995 

February 29, 1996 
385 

My name is Mary Walker, and I am an environmental lawyer, currently in private 

practice in San Diego. I have an education in biological sciences/ecology as well as law, 

and I have practiced in the area of environmental law for nearly 23 years. As such, I have 

been closely involved in the implementation of federal environmental statutory policies, in 

many cases from their inception. I have also served the federal government in various 

positions involving the management of natural resources and the protection of the 

environment. During the period 1982 to 1988, I served as the Chief Deputy Assistant 

Attorney General of the U.S. Department of Justice's Land and Natural Resources Division 

(now the Environment and Natural Resources Division), as the Deputy Solicitor of the U.S. 

Department of Interior, and as the Assistant Secretary for Environment, Safety & Health 

of the U.S. Department of Energy. In these positions, I represented the federal government 

in legal matters, policy formulation and decisionmaking involving domestic and international 

environmental issues, including, in some instances, fisheries. 

From 1988 to 1995, I was a U.S. Commissioner on the.lnterAmerican Tropical Tuna 

Commission ("lA TTC'). In this latter role, I participated in the negotiations and drafting 

of the La Jolla Agreement in April and June 1992 and oversaw its implementation in the 

years that followed. It is the La Jolla Agreement and the International Dolphin 

Conservation Program contained within it, upon which the 1995 Panama Declaration and 

at least one of the bills before you today are based. 

My perspective is that of an ecologist and an environmental lawyer who has devoted 

her career to achieving a balance between the needs of man that dictate the use of our 

natural resources, and the desire to conserve our natural resources for the future. When 

such competing needs and demands exist, achieving a balance is often difficult. Over the 

last quarter century, I have observed what has worked and what has not. Supporting 

positive change that preserves and protects the ecosystem while recognizing and allowing 

a reasonable use of our resources works, particularly when such a program is based upon 

sound science and good technical information. On the other hand, prohibitions and 

moratoria that effectively disallow the use of a resource and embargoes that close access to 

markets do not work. It is, therefore, no surprise to me that the La Jolla Agreement, and 

the efforts of the fishermen who made its implementation possible, have been a success and 

are now being recognized internationally as models for progressive fisheries management. 

The La Jolla Agreement 

In April 1992 at a special meeting of the lA TTC, which included not only member 

countries but participating observer governments, suppon was expressed for the concept of 

a multi-lateral approach to dolphin conservation in the Eastern Pacific Ocean ("EPO") tuna 

fishery, rather than the unilateral embargoes mandated by the Marine Mammal Protection 

Act. We wrestled with such issues as monality limits and enforcement of the limits and 

program elements by member and nonmember countries. Notwithstanding these difficult 

-2-
386 

issues, we reached agreement on key aspects of the program, including 100% observer 

coverage, and mortality limits for the next 7 years. Representatives of Greenpeace, who 

participated in the meeting, concurred in the approach utilizing a multi-lateral agreement 

and recognized the fishermen's efforts in reducing dolphin mortality. 

In its regular meeting in June 1992, the lA TIC reaffirmed its Apri11992 action to 

adopt a multi-lateral program with the objectives of (1) progressively reducing dolphin 

mortality to levels approaching zero through the setting of annual limits and with a goal of 

eliminating dolphin mortality in the fishery, (2) seeking ecologically sound means of 

capturing large yellowfin tuna not in association with dolphin while maintaining the 

populations of yellowfin tuna at a level which would permit maximum sustained catches year 

after year, and (3) to limit, and if possible eliminate, the mortality of dolphins in the fishery. 

The Commission also took action to establish a Review Panel including non-governmental 

organizations to make the process more transparent in the review and reporting of the 

international fleet's compliance with the agreed to mortality limits. This Panel, in turn, set 

vessel mortality limits. These were the fundamental elements of the program that bas 

resulted in a decrease in dolphin mortality to a level scientists have now determined to be 

biologically insignificant. 

The Panama Declaration 

The 1995 Panama Declaration was a response to the desire of all the countries 

involved in the lA TIC and the EPO fishery to see the voluntary successes of the lA TIC 

International Dolphin Conservation Program be established as formal policy in the United 

States and elsewhere. This necessarily involves a change in U.S. statutory policy regarding 

the proper method to achieve the goals of protecting one resource (the dolphin) while 

utilizing on a sustained basis another (the yellowfin tuna), thus achieving balance in the 

ecosystem. The Panama Declaration and the legislative change it seeks, are a natural 

product of the successful lA TIC program and the underlying treaty between the member 

countries. 

H.R. 2823 - The International Dolphin Conservation Program Act 

H.R. 2823 is the proposed bill that implements both the letter and spirit of the 

Panama Declaration and the La Jolla Agreement. In implementing the successful 

International Dolphin Conservation Program, it includes per-vessel annual dolphin mortality 

limits, and a total EPO mortality limit of 5,000 with a goal of zero mortality. It goes further, 

however, and provides for a per-stock, per-year limit, and it allows tuna caught in association 

with dolphin to be labeled "dolphin safe" if no dolphin monality occurred in the set. The 

latter provides a clear incentive to continue sound fishing techniques and to develop new 

techniques and implement new gear technology that will continue to improve the already 

BPHSO\MLW\0152442.WP -3-
387 

outstanding performance of the fishermen in the EPO. 

H.R. 2856 • The International Dolphin Protection and Consumer Information Act or 1995 

H.R. 2856 purports to implement some provisions of the Panama Declaration and 

the La Jolla Agreement while missing the mark entirely. It fails to lift existing embargoes 

and defines "dolphin safe" in a manner that would preclude U.S. fishermen from fishing in 

association with dolphin. 

This bill elevates a single species over others in the ecosystem, including those 

endangered species, like the sea turtle, that would be adversely affected if fishing in 

association with dolphin were no longer pursued and fishermen were forced to fish only on 

logs or schools. However, we know the fishermen of other countries can and will pursue 

a dolphin fishery even if we deny this to U.S. fishermen. Thus, this bill would deny 

participation in the fishery to U.S. fishermen while having no effect upon the fleets of other 

countries. If this bill is adopted into law, the international community that has worked so 

bard to build the International Dolphin Conservation Program will likely not remain united. 

The end result will not be a balanced multinational approach to managing the fishery in an 

ecologically sound manner, but an open invitation for the other countries to go their own 

way. 

Since 1990, when the U.S. canneries announced their "dolphin safe" policy, only 5 of 

the then 35 U.S. vessels fishing in the EPO remain. The rest have moved to the Western 

Pacific, have gone inactive, or have been sold to foreign companies. The industry the U.S. 

began in the EPO was abandoned to other countries. Notwithstanding the cannery policy, 

which was essentially a prohibition against U.S. fishermen fishing for tuna in association with 

dolphin, fishing in association with dolphin bas continued by the tuna fleets of other 

countries, and it remains the most common fishing method in the EPO today. In other 

words, we may have eliminated a U.S. fishing opportunity, but we did not eliminate the 

practice that is used because it is the most sound practice from the standpoint of the 

resource, but which H.R. 2856 seeks to prohibit. Importantly, while the practice of fishing 

in association with dolphin has continued (by other countries), the mortality of dolphin from 

this practice bas declined to levels that are now a mere fraction of natural mortality and are 

considered biologically insignificant. 

Since 1986, the mortality of dolphin in the tuna fishery in the EPO has declined from 

133,000 to less than 3,300 in 1995-a 98% decrease. The mortality per set has also declined 

96%. This is due to the efforts of the fishermen operating under the La Jolla 

Agreement--and not, as some have claimed, to the negative "dolphin safe" policy of the U.S. 

canneries. (None of the fish produced by fishing in association with dolphin received the 

"dolphin safe" label.) The fishermen operating under the intergovernmental agreement bad 

an incentive to reduce mortality--they could fish on large tuna while conserving a resource 

BPHSO\ML.1N\01~24.42 WP 
388 

they sought to protect. The incentive worked well. But there must be continued incentives 

in order for these countries to continue to participate in this program and an opportunity 

for U.S. fishermen to return to the fishery. The Panama Declaration provides such support 

by allowing the fishermen to sell their fish as "dolphin safe" in U.S. markets as long as no 

dolphin mortality bas occurred. New methods, new equipment and highly trained captains 

and crews have achieved--and can continue to achieve--this result. 

We now have an opportunity to make this scientifically sound and successful program 

our U.S. statutory policy. H.R. 2823 accomplishes that. The current U.S. policy on 

dolphins, under the Marine Mammal Protection Act may have been well intended but it bas 

not been the impetus behind the now healthy dolphin populations that we have achieved in 

the EPO. Instead, we must codify a policy that balances our need to fish in the soundest 

manner possible for the tuna resource, while preserving the optimum populations of dolphin 

and other species. This is the policy that is consistent with the U.S. positions taken in the 

discussions on the UN treaty on Highly Migratory Species and Straddling Stocks, Agenda 

21 of the Rio Summit on the Environment, and the F AO Code of Conduct for Responsible 

Fishing. These instruments call for us to maintain commercially harvested populations at 

levels which can support maximum sustainable yields, and to maintain ecosystem balance 

and biodiversity. If you support H.R. 2856, which prohibits fishing for tuna in association 

with dolphin, you will not be acting in a manner consistent with these policies. The use of 

alternative fishing techniques that involve fishing on logs or schools results in an excessive 

take of immature yellowfin tuna threatening the future health of the fishery. It would also 

involve the taking of many other species as a "bycatch" adversely affecting the ecosystem. 

I live in San Diego. There was a time that U.S. tuna fishing boats dotted our coast. 

Now they are gone. I would like to see U.S. tuna boats in the EPO, and I'd like to see the 

tuna industry continue in California. I'd also like to see the continued growth of healthy 

populations of dolphin. I know the members of the Congressional delegation from San 

Diego agree with me because of their strong role in developing and supporting H.R. 2823. 

Your vote for H.R. 2823 will be a vote for the U.S. tuna industry as well as a vote for the 

dolphin. It will also be a vote for balance in our domestic and international environmental 

policies and an endorsement of a science-based program that will effectively manage our 

natural resources for the future. Twelve countries, five major environmental groups 

representing 10 million members, and all the scientists and fishermen involved in the EPO 

fishery can't be wrong-and they aren't. I join them in strongly urging you to support H.R. 

2823. 

Thank you for the opportunity to address the Subcommittee. 

-5· 
389 

IN>I'~ Ctftzen 

Buyers Up • Congress Warch • Critical Mass • Global Trade Watch • Health Research Group • Litigation Group 

Joan Oaybrook, President 

Testimony of Lori Wallach 

Public Citizen's Global Trade Watch 

Trade Implications of Congressional Action on U.S. Dolphin Protection Laws 

Before the House Resources Fisheries, Wildlife and Oceans Subcommittee 

February 29, 1996 

Mr. Chairman and members of the committee, on behalf of Public Citizen and its 

members nationwide, thank you for the opportunity to testify on the two bills, H.R 2823 and 

H.R 2856, now before Congress which would alter the U.S. Marine Mammal Protection Act 

(MMPA,) a long standing U.S. Jaw that was successful challenged in 1991 and 1993 at the 

General Agreement on Tariffs and Trade (GATT.) 

My name is Lori Wallach. I am the director of Public Citizen's Global Trade Watch. 

Public Citizen is a consumer advocacy group founded in 1974 by Ralph Nader. My testimony 

today is also endorsed by the Citizens Trade Campaign of which Public Citizen is a member 

group along with hundreds of other consumer, labor, religious, environmental, family farm 

and other citizens groups across the country. The combined membership of the Citizens Trade 

Campaign member organizations is over 7 million nationwide. Both the Citizens Trade 

Campaign and Public Citizen are members of the Fair Trade Dolphin Safe Campaign. 

Congress' decision to change U.S. policies relating to the protection of dolphins in tuna 

fishing certainly has major environmental and conservation consequences. However, of equal 

importance are the enormous implications on U.S. international trade policy. The domestic 

standards for tuna sold in the U.S. market now at question were the target of successful 1991 

and 1993 GATT challenges. The United States was ordered to eliminate the core provisions 

of our existing dolphin protection Jaw, the MMPA. Under old GATT rules, the United States 

was able to block the ruling instead of implementing it at the time. 

To most of the world, this current U.S. debate about our tuna-dolphin policy is seen 

as the belated U.S. implementation of the GATT order to eliminate core provisions of the 

MMPA. More broadly, the current debate on U.S. dolphin protection policy is understood to 

concern U.S. allegiance to the World Trade Organization (WfO,) GATT's new successor 

organization, and will set a precedent for U.S. compliance with the WTO's future rulings. As 

is described below, there is also wide awareness that the Mexican government has threatened 

to take the U.S. dolphin protection Jaws to the World Trade Organization where the United 

Ralph Nader, Founder 

21S Pennsylvania Avenue SE • Washington, D.C. 20003 • (202) ~ 
390 

States no longer has the capacity to block decisions. Pre-emptively implementing the old 

GAIT order would avoid the Clinton Administration the enormous embarrassment of having 

a popular dolphin protection law become a well-publicized victim of the WTO and would 

avoid a high visibility, no-win decision after such a WTO defeat of either killing the law or 

paying perpetual trade sanctions. This was exactly the sort of sovereignty threat that the 

Clinton Administration promised Congress would .llQ1 occur if Congress supported the WTO. 

Thus, what is really at stake in congressional consideration of these two bills is setting 

the precedent about who decides U.S. domestic policy and set standards for our internal 

market. After all, the policy at question concerns regulating what sorts of products are 

allowed into our domestic market, not international fishing practices generally. Thus, in 

considering these bills, this committee is not only deciding whether and how the United States 

will protect dolphins, but also how the U.S. Congress will relate to the orders of the WTO 

concerning U.S. domestic policy. It is this latter trade issue that has gained much more 

attention in Geneva and in the capitols of major WTO countries. 

1. H.R. 2823 Implements the GAIT Rulinis Ordering the U.S. Congress to Remove the 

Core Provisions of the MMPA· 

Most simply, H.R. 2823 introduced by Rep. Randy "Duke" Cunningham and Rep. 

Wayne Gilgrest and Sen. Ted Stevens and Sen. John Breaux in the Senate implements the 1991 

and 1993 GAIT rulings against the U.S. dolphin protection policies.1 The GAIT panel of three 

foreign trade experts ruled that the United States could not require foreign fishers to meet the 

same standards for sale of tuna fish in the U.S. market as U.S. fishers concerning the way in 

which tuna is caught to avoid dolphin deaths.

2 The MMPA sets a generally applicable 

standard for the conditions under which any tuna fisher may sell tuna in the U.S. market. At 

the Geneva-based World Trade Organization, the GAIT successor agency charged with 

enforcing the far reaching rules of the 1994 Uruguay Round of GAIT, and in capitols around 

the world, H.R. 2823 is viewed as a long over due implementation vehicle for the GAIT 

1 GAIT Panel Report, United States - "Restrictions on Imports of Tuna" (dated' Sept. 3, 1991) and 

GAIT Panel Report, United States- "Restrictions on Imports of Tuna" (dated May 20. 1994.) 

'The 1991 GAIT ruling focuased on numerous grounds for why the MMPA did not meet GATT 

rules. The panel found several elements of technical discrimination under GATT Article m. The panel also 

ruled that the United States wu not allowed under GATT to set standards relating to the way a product 

was produced, as compared to illl phyaical characteristics. The same logic has been used against adoption 

of a proposed U.S. ban on child labor products because it would be illegal under GAIT /WTO. The panel 

also ruled that the United States could not maintain laws regulating illl own domeatic market with extraterritorial effects. That means the Congresa could not require foreign producen to meet the same 

standards u domestic producers for goods sold in the United States. H.R 2823, which has been spun by 

ita promoters as implementing the so-called Panams Declaration - a non-binding document developed 

between some U.S. environmental groups and a group of Latin American govenunenta - actually does 

what the GATT panel ordered: gut the core provisions of the MMP A. As other witneues in this hearing 

have noted, H.R 2823 eliminates a meaningful, enforceable dolphin safe lllandard and also lifts embargoes 

against dolphin-deadly tuna without condition. H.R 2823 would thus set a precedent that the Congress 

can no longer control standards for products entering the U.S. domestic market. 

2 
391 

rulings against the MMP A. As well, for the millions of members of the Citizens Trade 

Campaign groups and many Perot United We Stand state and local groups, the trade 

implications of the two bills are also of at least equal importance to the environmental 

implications. 

Why? Because the precedent that would be set by the U.S. Congress gutting a longstanding U.S. law that GATI has demanded be eliminated would put at risk an enormous 

number of other. U.S. domestic policies on issues ranging from state taxes to procurement to 

national defense to food safety that other countries have already listed as targets for future 

WTO challenges. Perhaps the bill's proponents would not have built a record of public 

documents supporting the bill that contain arguments about the necessity of the United States 

complying with trade rules and avoiding unilateral conditions on access to the U.S. domestic 

market could they only have forecast the recent escalation in U.S. public awareness and 

opposition to the undemocratic, sovereignty-undermining operation of the GATI. 

While I am very appreciative of the opportunity of this hearing to discuss the two bills, 

given both the surge in public awareness and opposition to the prospect of foreign trade 

bureaucrats forcing the U.S. Congress to change our domestic laws and recent polls of GOP 

pollster Linda DiVan showing broad public support for environmental protection, it is 

politically odd that Congress is even considenng H.R. 2823. The political hazards of H.R. 2823 

now have an additional batch of real life evidence with the deep, broad public sentiments on 

the trade issue brought out by the primary candidacy of Patrick Buchannen. 

The political liability is especially high when trade activists across the country and 

across the political spectrum - from members of the progressive Citizens Trade campaign to 

many of Ross Perot's United We Stand activists to conservative supporters of Pat Buchanen 

support a good compromise alternative bill, H.R. 2856. That bill, introduced by Rep. George 

Miller with bipartisan cosponsors in the House and Senators Barbara Boxer and Joseph Biden 

in the Senate, is available to Members of the U.S. Congress who will not submit U.S. 

democracy and sovereignty to the WTO, but believe that existing U.S. dolphin protection 

policy of the MMP A could benefit from changes. 

2. What Is Really At Stake Is Who Decides U.S. Domestic Polices - The U.S. Congress or 

the Foreisn Trade Bureaucrats of the GATI. 

What is really at stake here is who decides U.S. domestic policies. Even if you do not 

care about this dolphin policy, Congress' actions with this case will set the precedent for 

future GATI/WTO rulings that declare we can no longer maintain other democraticallyachieved U.S. laws without paying permanent trade sanctions.

3 Thus, America's sovereignty 

to set its own laws and control the terms of access to its own consumer market is at stake. In 

considering your position on the two bills offered, I urge you to consider: What law will be 

attacked next at the World Trade Organization? Maybe .it will be something for which you 

3 Ironically, the United States is now under no international law obligation under the old GA TI to 

implement the past Tuna-dolphin rulings. The United States blocked adoption of both panels. 

3 
392 

have fought for decades and about which you deeply care. 

The European Union has listed many U.S. defense, procurement, and product standard 

laws as GA 'IT /WTO illegal. If Congress passes H.R 2823, gutting the Marine Mammal 

Protection Act, a long-standing, court-tested and popularly-supported measure, the Congress 

will have proved what the bureaucrats at the GA'IT/WTO already are saying: the United 

States must conform jts domestic laws to the GAlT /World Trade Organization rules. 

As a trade matter, H.R. 2856 is dearly a compromise offering which carefully sets the 

precedent at GAlT that the United States will not blindly implement that institution's rulings 

against our domestic laws. As described below, H.R. 2856 eliminates several technical 

elements in the Marine Mammal Protection Act's provisions on which the 1991 and 1993 

GAIT panels focussed as problematic. However, what is importantly maintained is the 

principle that the United States has the sovereign right to set the terms for products to be sold 

in its domestic market regardless of whether they are produced in the United States or abroad. 

H.R. 2856 provides a mechanism to ensure this principle is enforced. 

The GAIT's provisions challenge this rather obvious sovereign right to make 

nondiscriminatory rules on certain topics about the terms of access to a nation's domestic 

market. The new WTO provides automatic, strong enforcement for this world view . Because 

the U.S. Marine Mammal Protection Act was the first well-known, widely supported piece of 

U.S. environmental legislation that the GATT attempted to sublimate to its rule, what 

Congress does the with the Marine Mammal Protection Act has enormous presidential value 

in the trade world. This case was the first one that made GAIT known to the American 

public. Written about in Newsweek, the New York Times and other national publications as the 

case of "GATTzilla versus Flipper," it was this real life example that brought home the threat 

that seemed inconceivable: an unaccountable bureaucracy in another country telling the U.S. 

Congress to kill a U.S. domestic law or pay sanctions to maintain it. 

3. H.R. 2823: Premature Capitulation to Avoid the Clinton Administration the Political 

Embarrassment of a Successful. Unblockable WTO Challenge Against the MMfA. 

Why is the Clinton Administration pushing this bill that would gut dolphin protection, 

a policy it purports to support, and would prove true the worst concerns of opponents of the 

WTO across the political spectrum that the GA'IT/WTO would push the United States into 

undermining democratically-achieved U.S. domestic laws? After promising a Congress 

concerned about NAFfA and GAIT that neither pact would undermine U.S. domestic policy, 

how could the Administration now demand Congress to conform a highly popular U.S. law 

to GAlT's demands? 

The answer is that the Administration is willing to preemptively gut this law attacked 

4 
393 

by GAlT to avoid an even more embarrassing situation.• The Mexican government has made 

clear at the WTO and to the Clinton Administration that it intended to challenge the MMPA 

again at the WTO because the United States had not implemented the earlier GAlT ruling.• 

At the WTO, the United States no longer has the veto that has allowed it not to implement 

the original GA 1T rulings against the MMP A. 

In the fall of 1995, when Mexican President Ernesto Zedillo visited Washington to 

obtain a roll over for the first installments in the billions of peso bailout loans it could not 

repay on time, he also obtained another promises from the Administration. Apparently, in 

exchange for a commitment that the Mexican government would hold off its planned WTO 

challenge, the Administration agreed to get rid of the MMP A through lower-profile 

congressional action. It may have been a short-sighted deal to make considering the public 

and press fervor that have been raised about the prospect of Congress eliminating important 

provisions of U.S. dolphin protection law. 

4. Setting a terrible GA 1T /WTO precedent: Congress Caves in to the WTO and 

Eliminates a Democratically-Achieve<i. Publicly-Supoorte<l U.S. Domestic Policy. 

The Clinton Administration may have concluded that the strategy to avoid humiliation 

by a WTO attack on a beloved U.S.law is to preemptively cave in. However, Congress should 

not take the same strategy. Even for those Members who voted for GAlT, also arguing that 

it was not a sovereignty threat, the damage of the precedent that would be set by killing a 

GAlT-attacked law is far worse than having to admit they relied on bad information about 

the WTO's sovereignty implications. This is especially the case after the rather unavoidable 

embarrassment of the first WTO ruling in January 1996 being against a U.S. environmental 

law, the reformulated gasoline rules implementing some of the 1990 amendments to the Clean 

Air Act. 

Overall, the United States has not had a very good track record in defending its laws 

at the GA TI. Now the WTO provides even stronger enforcement. Since 1980, when the Tokyo 

Round of GAlT first included limitations on a country's domestic non-trade laws- known 

in GA1Tese as "non-tariff barriers" - the United States has lost 80% of the cases raised by 

other nations against our laws.• Recently, the United States has lost three GA 1T challenges 

against its envirnmentallaws and obtained a split decision ruling against a part of a fourth 

• As well, it is notable that the majority of the splinter group of environmental organization that were 

involved in the so-called Panama Declaration were also the minority who supported NAFTA (National 

Wildlife Federation, World Wildlife, the Environmental Defence Fund,) and thus were pressed into service 

defending the Mexican government's commitment to environmental protection. It would also be a major 

embarrassment for these groups, many of whose opposition to the WI'O was inappropriately quiet, for 

the Mtxiam government to win a major WI'O attack against a beloved U.S. environmental law. 

5 Memorandum, Tom Garrett-Craig van Note , Reporting Discussions with Mexican government 

officials, February 23, 1996. (On file at Public Citizen.) 

• "U.S. Is More Often the Loser In GATT Challenges," Essential Information Report, September 1994. 

(Essential Information, P.O. Box 19367, Washington, D.C., 20036.) 

5 
394 

environmental law.' There have only been four challenges against US. environmental laws 

at GAIT. 

What U.S. law will be attacked next? The European Union, Japan and Canada publish 

annual reports listing the U.S. laws they believe conflict with trade rules.• Since the 

establishment of the WTO, they have been listing U.S. policies they are targeting as WTO 

illegal. Such past listings have provided grim foreshadowing of the U.S.laws to be challenged. 

Past European Union reports listed the CAFE standards and gas guzzler tax and the Marine 

Mammal Protection Act's secondary embargoes which the European Union then successfully 

challenged at the GATI.

9 

A recent sampling of targeted U.S. laws in the European Union, Japan and Canada's 

annual reports include: the Nuclear Non-proliferation Act, state and federal procurement laws, 

the U.S. asbestos ban, U.S. federal and state raw log export bans, driftnet fishing, turtle and 

whale rules, the U.S. Cuba embargo, the Consumer Nutrition and Education Labeling Act 

(which provides for the new, more complete labels on aU food products sold in the United 

States), state recycling laws, limitations on lead in consumer products, and the Delaney Clause 

prohibiting carcinogenic food additives. 

On this subcommittee there are Members for whom there are personal examples of the 

bad precedential effect congressional support for H.R. 2823's gutting of the MMPA would 

have. For instance, the shrimpers in Rep. Tauzin's Louisiana and rep. Ortiz's Texas have just 

had a major victory in the U.S. courts. In January, the U.S. International Trade Court ruled 

that the Administration must begin enforcing rules commonly known as the Sea Turtle 

Conservation Act that would level the playing field between U.S. and foreign shrimp fishers 

by requiring that foreign fishers use sea turtle conservation techniques - such as the Turtle 

Excluder Devises - if they want to sell their shrimp in the United States.

10 

The very same GAIT rules that were applied to rule against the MMP A would apply 

to declare the sea turtle conservation policy to also be an illegal trade barrier. Already in 

GATT cases since the 1991 MMPA ruling, the bad jurisprudence of that case would has been 

applied to rule against other U.S. laws. This bad GAlT law would also be applied to rule 

7 The US. Corporate Average Fuel Economy (CAFE) standards and gas guzzler tax were challenged 

in 1994 under the old GATT by the European Union and were ruled to be partially in violation of GATT; 

Different provisions of the Marine Mammal Protection Act have been ruled GAIT-illegal in two separate 

cases brought by Mexico and by European countries under the old GATT rules. Venezuela and Brazil 

recently won the first case brought to the new WTO which was against the reformulated gasoline rules 

of the 1990 U.S. Clean Air Act amendments. (United States - '"Regulation of Fuels and Additives -

Standards for Reformulated and Conventional Gasoline, (dated january 17, 1996.) 

1 ~ Services of the Commission of the European Communities, Report on Un ited States Trade 

&rrins and Unfair Trruk PrtUtiets, 1995. 

' EU Report -• get formal name 

10 Sea Turtle Conservation act, P.L. 101-162, 103 Stat. 988 (1989.) 

6 
395 

against the sea turtle conservation policy because in GAIT jurisprudence, the MMP A, the Sea 

Turtle Conservation Act- and also the U.S. Driftnet fishing laws- are all viewed as the same 

GAIT-illegal problem: they are laws that set standards for domestic sale of fisheries regulating 

how the products are caught that apply to both U.S. and foreign fishers. In fact, shrimp 

industry sources have reported that following a U.S. federal court ruling last month requiring 

enforcement of the Sea Turtle Conservation Act, several nations that import shrimp to !he 

United States have already stated their intention to bring a WTO case against this U.S. law 

which provides a level playing field for all shrimp fishers - U.S. and foreign. 

Thus, setting the precedent of the U.S. Congress eliminating the MMP A after the GAIT 

ruling against it, would all but doom the prospects for the sea turtle conservation policy's 

treatment in the Congress after what would almost certainly be a successful challenge against 

it. Most simply, if the U.S. does not defend its right to control access to its market for tuna 

caught in ways that protect dolphins, then the precedent will have been set so that the U.S. 

cannot insist imported shrimp sold in this market be caught in a manner required under the 

sea turtle conservation policy. The same can be said for the High Seas Driftnet Act. This 

month, a U.S. federal court ordered enforcement of that U.S. law as against the imports of 

Italy which is a notorious violator of the law. As has been noted in the European Union 

reports on U.S. trade barriers for several years, the Europeans consider the U.S. domestic 

standard to be illegal under GAIT. Setting a bad precedent on dolphin conservation would 

also cast a deep shadow over U.S. driftnet policy. 

For Representatives Farr and Torklidson, who supported NAFTA over the 

environmental concerns of many constituents, the prospect of the U.S. gutting a long-standing 

and much loved dolphin protection Jaw to avoid a new Mexican WTO challenge will be 

highly controversial, as it contradicts the notion that the Mexican government is committed 

to environmental protection. The imprudence of moving a bill such as H.R. 2823 is heightened 

by the very first World Trade Organization ruling on January 19, 1996, which was against the 

U.S. reformulated gasoline rules under the Clean Air Act. This case provides a real life 

example of the problems raised during the contentious WTO 1994 congressional approval 

battle by WTO opponents across the political spectrum. 

In its outcome, tone, and reasoning, the WTO's first ruling provides real life evidence 

of the WTO's threat to demochtic policy making, national sovereignty and to environmental 

and health protections. The WTO tribunal in this case declared that the means the United 

States employed to implement public health improvements in U.S. air quality under the Clean 

Air Act were not acceptable under WTO rules. 

The WTO requires "each Member ensure the conformity of its Jaws, regulations and 

administrative procedures" WTO rules." Beyond a limited internal appeal to a WTO review 

panel, the United States faces only two undesirable choices: change the rule or pay $150 

million in trade sanctions annually. 

11 Agreement Establishing the WTO, Article XVI-4. 

7 
396 

If implemented, the ruling would result in dirtier U.S. air quality because 

$150 million annually in Venezuelan gasoline too dirty to now enter into U.S. markets could 

be sold in the most-polluted U.S. cities where reformulated gas in mandated. As well, scores 

of independent refineries would be forced out of business by having to face competition from 

dirtier, cheaper Venezuelan gasoline at the very time that they are amortizing their costs of 

having complied with the same rules on which Venezuela would get a pass. It is the WTO 

that must be changed, not the U.S. policy. 

The first WTO ruling also illustrates the WTO's curtailment of U.S. policy-makers 

attempts to implement our domestic laws. This WTO ruling would strip the U.S. government 

of some basic, practical enforcement tools: the ability to demand certain data from foreign 

producers about their products and to regulate the producer of a target product. The WTO 

declares the myriad enforcement and compliance issues that inevitably shape laws and 

regulations to be irrelevant. The tribunal's report states: The WTO "does not allow less 

favorable treatment dependent on the characteristics of the producer and the nature of the 

data held by it."

12 This limitation calls into question how the United States can effectively 

enforce any domestic Jaw that requires provision of data for all producers - that is domestic 

and foreign producers- to ensure compliance." 

The ruling is a classic example of the WTO's democracy threat because the losing rule 

had withstood all challenges available through the U.S. democratic process. The rule's 

domestic and foreign opponents had lobbied Congress on the 1990 amendments to the Clean 

Air Act, had participated in the EPA rule making, had threatened the resulting rule with a 

lawsuit and had lobbied Congress to make later changes. Venezuela was re?resented in the 

process by the high-powered D.C. law firm of Arnold & Porter. Ironically, Arnold and Porter 

is also representing the Venezuelan government in their attempts with the Mexican 

government to get the 1991 GA 1T ruling against the MMP A enforced. They are now lobbying 

furiously in favor of H.R. 2823, which would do the job of implementing the GA 1T decision. 

During the extended battle against the rule, the U.S. refineries had available to them 

the same U.S. democratic procedures - lobbying, rule making and the courts - as were 

available to Venezuela. Once these options were exhausted, U.S. gasoline refiners began 

implementing the Jaw with the expectation that they would amortize the cost over the many 

years in which all gasoline in the U.S. market would face similar environmental costs. 

Meanwhile, the Venezuelans were able to go to a different, internatienal jurisdiction without 

the same due process guarantees and with a different substantive rule of law and successfully 

attack the rule. The U.S. refineries, which had strongly opposed the rule during its creation, 

have since spent billions implementing it. They are now demanding that the rule continue to 

11 WI'O Panel Report on Venezuela and Brazil's Olallenge of the U.S. Reformulated Gasoline Rules, 

January 16, 1996, p. 35. 

" This limitation is an extension of the 1994 GAlT ruling against provisions of the U.S. Corporate 

Average Fuel Economy standards (CAFE) in which a tribunal held that the U.S. could not distinguish 

between specific automobiles on the basis of the producer's average fuel economy even when a law was 

facially nondiscriminatory. 

8 
397 

be applied to foreign refineries as weD as US. refineries. From a business perspective, they 

argue, the WTO's sovereignty threat undermines their ability to make business plans. 

The WTO's secretive tribunal was quite open about second guessing the best way to 

implement U.S. policy. The ruling vividly demonstrates what occurs when the WTO 

authorizes foreign bureaucrats with no stake in promoting the best interests of the United 

States, nor expertise in U.S. health or environmental goals, to oversee implementation of U.S. 

domestic policy. The ruling states: " ... WTO Members were free to set their own environmental 

objectives, but they were bound to implement those objectives through measures consistent 

with its [WTO's) provisions ... 14" This is the WTO rule of "say what you want, but do only 

what we say.15" 

5. H.R. 2856 Is A Compromise Offering that Protects Dolphins While Setting A Clear 

Trade Precesient Protecting US. Soverei&nt.Y· 

H.R. 2856 eliminates a "national treatment" problem identified by the GATT panels that 

is not essential to the effective operation of the U.S. dolphin protection policy. GATT Article 

m generally requires that countries do not treat foreign producers differently than domestic 

producers. While the logic of this rule from a trade perspective is to avoid arbitrary 

discrimination in commerce based on nationality, in application it can cause significant 

difficulties for domestic policy makers. Because the U.S. government does not have police 

powers over foreign producers, often the only way to enforce compliance with standards for 

domestic sale of imported products it to condition entry of the products of another nation into 

the JJ.S. domestic market on meeting the standards.•• The GATT panel ruled that the MMP A 

" WI'O Panel Report on Venezuela and Brazil's Challenge of the U.S. Reformulated Gasoline Rules, 

January 16, 1996, p. 46. 

15 The panel dismissed as practical grounds presented by the U.S. as to why the EPA had created the 

rule. The wro bibunal suSS""ts that the U.S. could have required all refineries to meet the same 

contamination standard. However, during the rule's creation through the Administrative Procedure Act, 

this option was ruled out when it wu detennined to have unacceptable costs: major disruptions in gas 

production, and thus shortages, price hikes and national security problems. The bibunal also noted that 

the United States could have allowed every refiner to set its own standards. Interestingly, U.S. refineries 

had urged for just that. This method would have kept foreign-refined gasoline entirely out of U.S. 

markets. Foreign refiners have not been required to keep the detailed data that would have been needed 

to calculate the standard. When EPA suggested that foreign refineries try to provide data in a proposed 

1994 rule change, Venezuela and Brazil opposed the proposal because the data requirements were too 

cumbersome. Ultimately, the EPA UMd its judgement to craft a compromioe allowing oome flexibility for 

refineries with data to set their own baseline. The EPA concluded it could not ensure reliability of foreign 

data, nor did it have police powers to sanctions falsified foreign data. US. refineries that had not been 

operating for six months (and thus did not have good data) and foreign refineries were given a statutory 

standard. That level was the actual average of all of the refineries for which data were available, ensuring 

that foreign refiners as a group were treated identially to domestic refineries as a group. 

"For instance, the ability to pursue criminal penalties or civil fines for violation of a US. domestic 

law, which are enforcement mechanisms available for policy makers as regards US. companies, is not 

generally available as against a foreign fishing vessel. 

9 
398 

in application provided different, unfavorable treatment in access to the U.S. tuna market for 

foreign fishers compared to domestic fishers. 

The exiting MMPA sets a comparability standard which sets a rate for foreign fleets 

based on 1.25 times the U.S. rate of dolphin kill. While this standard actually provides 

preferential treatment for foreign fishers, as a technical matter it is difficult to apply because 

the foreign standard cannot be calculated until data is available for the U.S. fishers. The GA 1T 

ruled that this was illegal discrimination between fishers of different nations. To avoid this 

different treatment of domestic and foreign fishers, H.R. 2856 sets exactly the same standard 

for all fishers: they simply cannot use the encirclement technique of tuna fishing. 

As well, H.R. 2856 eliminates another national treatment problem. Under the MMP A, 

if a fishing boat of a country fails to meet the MMPA's standards, then the tuna from that 

entire country's fishing fleet is not allowed into the United States. This provision provided 

increased incentives for all tuna boats to meet the dolphin safe standard. Now that the 

international tropical tuna association requires an observer on each tuna boat, other 

enforcement techniques are available that can reliability ensure compliance with the standards. 

H.R. 2856 thus shifts the focus from the nation to specific tuna fishing boats. Under H.R. 2856, 

standards are applied to a specific boat's behavior. Thus, if one boat in a foreign fleet does 

not meet the rules of not encircling dolphins, only the tuna from that boat is not allowed into 

the United States. Tuna from other boats from the same country would be allowed as long 

as those boats are not catching tuna by encircling dolphins. 

Where H.R. 2856 does not budge is in staking out the sovereign U.S. right to determine 

what products enter our domestic market through our domestic democratic processes and in 

the· principle that U.S. producers should not be put at a competitive disadvantage for meeting 

the laws the people of this land demand while foreign producers are given a pass. 

Thus, H.R. 2856 continues to condition access to the U.S. market for domestic and 

foreign producers -- on a boat-by-boat level - on meeting an enforceable dolphin safe 

standard. That is, to sell tuna in the U.S. market you must meet the same clear standard of 

not encircling dolphins to catch tuna whether you are a U.S. or foreign tuna fisher. 

6. Consumer Fraud: fublic Reliance on a Fake "Dolphin Safe'" Label 

As a consumer group representing our large membership, I would be remiss if I did 

not also raise the consumer fraud problems H.R. 2823 would cause. 

Most simply, H.R. 2823 would allow tuna to come into the United States labelled 

'"dolphin safe'' even though it was caught with the very encirclement techniques that killed 

hundreds of thousands of dolphins before the Marine Mammal Protection Act was passed in 

the 1970s. Whatsmore, H.R. 2823 would allow tuna to be called dolphin safe merely if an 

observer did not witness a dolphin die within their view during fishing. Given the compelling 

evidence about the trauma, stress and injuries dolphins suffer from encirclement fishing -

explosives, motor boat chase, and being released from nets - not seeing dead dolphins mixed 

on the deck with tuna fish certainly does not ensure that dolphins are not dying in significant 

10 
399 

numbers. Yet, tuna caught under these very circumstances would be allowed into the United 

States labelled as dolphin safe under H.R. 2823. 

The MMP A was passed after a massive public campaign in which millions of school 

children, and ultimately all of the major U.S. tuna companies, pressured Congress to stop the 

sale of dolphin-deadly tuna. The tuna companies still support the Marine Mammal Protection 

Act because U.S. consumers demand dolphin safe tuna. Under the current law, consumers 

know that no company can sell tuna labelled "dolphin safe" if it is not. Under H.R. 2823 this 

would no longer be ·the case. The "dolphin safe" label consumers have come to rely on 

guaranteeing one thing would actually have an entirely other and unacceptable meaning -

Dolphin Deadly, but not in Front of the Observer on the Tuna Boat. 

Conclusion 

Congressional action to change the MMPA has far reaching implications for U.S. 

sovereignty and international trade policy. Around the W!Jrld, Congress action on U.S. dolphin 

policy is understood to be a response to the GATT rulings against the U.S. law which sets our 

domestic standards for tuna fish to be sold in the United States. If the U.S. Congress 

implements the GATT rulings, and removes core provisions of the MMPA, a dangerous 

precedent will have been set with implications on a wide range of other U.S. domestic policies 

which other countries actually have targeted as WTO illegal. 

The World Trade Organization attempts to largely shifted such domestic policy 

questions as the standards for access to our internal market away from citizen control and 

domestic democratic bodies to negotiating committees and a dispute resolution body located 

in Geneva, Switzerland which operate in secret and without the guarantees of due process or 

accountability to U.S. citizens, domestic legislatures or courts. 

The MMPA was the first case in which GATT tried to extend it authority to demand 

changes in a well-know, beloved U.S. domestic policy. Congress' actions on this legislation 

will directly affect the future ability of the Congress and other legislative bodies around the 

world to implement policies to regulate commercial activity to guarantee their inhabitants' 

well being and health and the protection of the environment. 

It is inevitable that different policy goals will at times conflict, for instance goals of 

maximizing international trade and the goals of environmental protection. However, the 

decision about which policy goal should take precedence in a particular instance should be 

decided by those who will live with the results - in this case the American people and their 

democratically elected representatives in Congress. Thus, if Congress decides to change U.S. 

dolphin protection policy, H.R. 2856 is the mechanism. 

11 
400 

Testimony of Dr. John D. Hall 

on Behalf of 

The Dolphin Safe Fair Trade Campaign 

H.R. 2856 and H.R. 2823 

Subcommittee on Fisheries, Wildlife and Oceans 

Committee on Resources 

U.S. House of Representatives 

February 29, 1996 
401 

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity 

to testifY today. My name is John Hall. I hold a Ph.D. from the University of California 

at Santa ·cruz, am a marine biologist and a commercial fisherman. I have been engaged 

as a scientific consultant on behalf of the Dolphin Safe Fair Trade Campaign. Since 1970 

I have followed the ETP tuna fishery as a marine scientist, former member of the Board 

of Directors of the Porpoise Rescue Foundation and commercial fisherman. 

My testimony today will concentrate on the issue of bycatch in the eastern tropical 

Pacific (ETP) tuna purse seine fishery. When I refer to bycatch I mean the taking, 

including mortalities and organisms released alive, of species not targeted directly by the 

fishery for harvest. Since the ETP tuna purse seine fishery targets primarily adult 

yellowfin, bigeye and skipjack tuna, the take of other species, including dolphins and 

small tuna, should be considered bycatch. 

It is important to note that the ETP tuna purse seine fishery is apparently the 

only large scale fishery with a djrected take of marine mammals as bycatch. While 

marine mammals are taken, both by harassment and as mortalities, in other fisheries, the 

ETP tuna purse seine fishery seems to be the only large scale fishery that intentionally 

targets marine mammals as bycatch. 

I first became involved in the tuna-dolphin purse seine fishery in the eastern 

tropical Pacific in 1970 when I was employed as a marine biologist by the US Navy's 

marine mammal laboratory in San Diego. At that time Dr. William Perrin of the NMFS 

Southwest Fisheries Science Center in La Jolla, approached the Navy's marine mammal 

laboratory seeking technical assistance regarding the need to reduce the mortality of 

pelagic dolphins involved in the ETP tuna purse seine fishery. This was well before the 

enactment of the Marine Mammal Protection Act, and at a time when mortalities of 

dolphins involved in the fishery were at extremely high levels according to scientists and 

commercial fishermen involved in the fishery at the time. 

Although the annual mortality of dolphins by the ETP purse seine fishery has 

been reduced dramatically since 1970, the stocks of the two primary species involved in 

the fishery (northeastern offshore spotted and eastern spinner dolphin) remain severely 

depleted and, according to NMFS and lA ITC data, show no measurable increase in 

numbers despite the reduction in mortalities (Anganuzzi and Buckland, 1995). 

Furthermore, while the mortality of dolphins has been greatly reduced, it is important to 

note that currently several million dolphins are hunted, chased at high speed and 

encircled in purse seine nets each year. 

A number of hypotheses have been generated to account for the fact that the two 

primary species of dolphins involved in the fishery have shown no increase in population 

size over the past several years, and are currently estimated to be at only one quarter 

(1/4) of their pre-fishery abundance (Gerrodette and Wade, 1995). There is credible 

Pagel 
402 

scientific data that the stress of being chased at high speed, sometimes for several hours 

and sometimes more than once a day, is causing physiological stress-related changes in 

dolphins." These changes may be reducing the ability of the dolphins to recover (Myrick, 

1988; Chivers and Myrick, 1993; Myrick and Perkins, 1995). If this hypothesis proves to 

be correct, then measurable increases in the stocks of these two highly depleted species 

may be unlikely as long as the current dolphin encirclement techniques continue. 

Given the dramatic improvements that have been made towards reducing the 

bycatch of dolphins in the ETP tuna purse seine fishery over the past 25 or so years, any 

consideration of returning to the historical level of encirclement on dolphins would be 

extremely ill advised, retrogressive and represent poor fishery management practices. It 

would clearly be contradictory to the need to continue to reduce !ill elements of bycatch 

in the ETP tuna purse seine fishery. 

It seems clear that more and more tuna boat operators and owners have turned to 

dolphin-safe fishing operations that do not entail encircling dolphins. Based on current 

reports it appears that almost three quarters of the Mexican Oass 6 fleet of purse seiners 

is currently using dolphin-safe techniques, and the first Mexican cannery has recently 

been certified dolphin-safe. In combination, it appears that the majority of Oass 6 vessels 

currently fishing in the ETP are not encircling dolphins as they continue to harvest tuna 

We should be encouraging the remainder of the ETP tuna purse seine fleet to do 

likewise by allowing those fishermen who fish without encircling dolphins to be able to 

import their dolphin-safe tuna into the US markets as proposed under H.R. 2856. That 

action would provide a strong economic incentive for the remainder of the ETP tuna 

purse seine fleet to fish dolphin-safe and enjoy the economic benefits of being able to 

import their tuna into the US. This action would also directly benefit the US by bringing 

us into greater compliance with the world trade community. 

In order to reduce the bycatch of species other than dolphins in the ETP tuna 

purse seine fishery fishermen should be encouraged to adopt new or modified techniques 

and standard fishery management options should be adopted that will reduce or 

eliminate the overall bycatch in the fishery. As an example, we know from the scientific 

literature and the database that has been made available to date, that a substantial 

portion of the juvenile tuna and other finfish bycatch is taken in "log• sets made in the 

coastal waters from Costa Rica to northern Equador during a portion of the year (Hall, 

eta!., 1992; Martin Hall, lA TIC, 1996 pers. commun.). Employing a standard fishery 

management technique, the time-area closure to setting on "logs" in these waters during 

that portion of the year when juvenile tuna, and by association, all the other species 

known to aggregate under "logs" are most prevalent, should result in a substantial 

reduction in the take of "log" associated bycatch. The two positive benefits from this 

action sort would be to directly reduce the bycatch level and ultimately increase the 

number of tuna available for harvest as adults. 

Establishment of a time-area closure on "log" sets during part of the year in the 

Page2 
403 

coastal waters mentioned above may not eliminate the bycatch associated with "log" sets 

throughout the ETP, but it would provide a documented first effort that will allow us to 

judge itS _effectiveness and move forward with other bycatch reduction efforts. It is 

important to remember that mortalities on dolphins were not reduced to their current 

level overnight. It took many years, much effort. and cooperation by governments, 

fishermen and the private sector. The same will likely be true as we move to reduce the 

other bycatch elements associated with the EI'P tuna purse seine fishery. 

Before 1985, when the canneries reportedly decided to no longer accept small 

fish, there were typically as many, or more, log sets each year as today (IATIC,l995). 

The bycatch of small yellowfin tuna prior to 1985 was apparently similar to today and the 

primary difference is that prior to 1985 small tuna were canned while today they arc 

discarded. Oearly, we should be moving to reduce the bycatch of small yellowfin tuna 

and implementing fishery management actions to do that, but it also seems clear that 

current discard levels of small tuna may not be higher than the harvest level of small 

tuna from log sets during the 1970's and 1980's. 

The EI'P tuna fishery has been dynamic in nature with dramatic technological 

changes having modified the fishery a number of times over the past 40 years, and it is 

clear this is continuing today. Recently fishermen have begun to successfully use Fish 

Aggregating Devices (FADs) to attract bigeyc and skipjack tuna in portions of the ETP 

(Armstrong & Oliver, 1995). This recent NMFS report indicated that the average catch 

per FAD set by one skipper on a trip in 1993 was about 200 tons/set. This is more than 

10 times the catch rate for dolphin sets during most years. In addition, the NMFS report 

indicated that large catches of bigeye and skipjack tuna occurred at the FADs within only 

a few days to a few weeks after the FADs had been deployed. Only two sets reported in 

the NFMS report occurred more than 30 days after the FADs had been deployed. 

Furthermore, the NMFS report indicated that where the size of tuna caught was 

estimated by the skippers' fishing logs, few sets resulted in small fish. In several sets the 

size of the skipjack tuna averaged about 15 lbs and the bigeye tuna ranged from about 20 

lbs to about 80 lbs. While the FAD fishing results from 1993-1994, as reported by the 

NMFS, indicate only initial success, the available data for 1995 suggest that purse seine 

vessels from several countries that participate in the ETP tuna purse seine fishery have 

been increasing their harvests of bigeye tuna, a species know to aggregate under FADs, 

especially in some areas of the EI'P (IATIC,1995). 

Moving to reduce the non-dolphin elements of bycatch in the ETP tuna purse 

seine fishery, as we continue to reduce dolphin bycatch, will likely lead to a review of the 

potential yield of the ETP tuna fishery under reduced bycatch guidelines. It is possible 

that when we have reduced bycatch in the fishery to the lowest possible levels we will 

find that the potential yield of tuna in the EI'P is not as high as previously thought. By 

reducing or eliminating bycatch from this fishery, we may find that the fishery simply 

cannot be driven as hard as when the impact of bycatch on the eastern tropical Pacific 

ecosystem was disregarded. 

Pagc3 
404 

CONCLUSIONS: 

1: Bycatch, in this testimony, refers to the taking, including mortalities and 

· organisms released alive, of species not targeted directly by the fishery for 

harvest. 

2. While marine mammals are taken, both by harassment and as mortalities, in 

other fisheries, the ETP tuna purse seine fishery appears to be the only large 

scale fishery that intentionally targets marine mammals as bycatch. 

3. The annual mortality of dolphins by the ETP purse seine fishery has been 

reduced dramatically since 1970, even though the stocks of the two primary 

species involved in the fishery (northeastern offshore spotted and eastern 

spinner dolphins) remain severely depleted and show no measurable increase 

in numbers, despite the current reduction in mortalities. Furthermore, while 

the mortalities of dolphins have been greatly reduced, current techniques 

result in several million dolphins being hunted, chased at high speed and 

encircled each year. 

4. The stress of being chased at high speed, sometimes for several hours and 

sometimes more than once a day, may be causing physiological stress-related 

changes in dolphins. These changes may be impacting the ability of the 

dolphins to reproduce. 

5. Returning to historical levels of encircling dolphins would be extremely ill 

advised, retrogressive and represent poor fishery management practices. It 

would contradict the need to continue to reduce !11 elements of bycatch in the 

ETP tuna purse seine fishery. 

6. Legislation and international agreements should be sought to encourage 

fishermen to adopt new or modified techniques that reduce bycatch, and we 

should employ standard fishery management options in our efforts to reduce 

bycatch. A time-area closure to setting on "logs" in the Panama Bight during 

that time of year when small tuna and other log associated fauna are most 

prevalent would likely accomplish substantial bycatch reduction. Another will 

be to continue to investigate the efficacy of using FADs to aggregate tuna, 

especially as has been done during 1993-1995 in certain areas of the ETP. 

Other promising technologies for finding schools of large tuna not associated 

with dolphins include UDAR and radar technologies. 

7. The number of log sets during this decade appears to be lower than during 

periods of the 1980's or 1970's (according to lA TIC data), and the catch of 

small tuna and other finfish bycatch was as probably as high then as today, yet 

the status of the tuna stocks in the ETP appears to continue to be healthy. 

Page4 
405 

8. When we have done everything we can to reduce bycatch in the ETP tuna 

purse seine fishery a review of the potential yield of tuna under reduced 

bycatch guidelines may be appropriate. It is possible that when we have 

reduced bycatch in the fishery to the lowest possible levels we will find that the 

potential yield of tuna in the ETP is not as high as previously thought when 

bycatch reduction was not factored into the yield equations. 

PageS 
406 

Uterature Cited 

Ailganuzzi, A.A. and S.T. Buckland. 1995. Preliminary results of the relative 

abundante of dolphins associated with tuna in the eastern Pacific Ocean for 1994. Int. 

Whal. Comm. Report No. SC/47/SM 51. 16pp. 

Armstrong,W. and C. Oliver. 1995. Recent Use of Fish Aggregating Devices in 

the Eastern Tropical Pacific Tuna Purse-Seine Fishery: 1990-1994. SWFSC Admin. 

Report U-95-14. 45pp. 

Chivers, S.J. and A.C. Myrick. 1993. Comparison of age at sexual maturity and 

other reproductive parameters for two stocks of spotted dolphin, Stenella attenuata. Fish. 

Bull. 91:611-618. 

Gerrodette, T. and P. Wade. 1995. Status of dolphin stocks affected by the tuna 

purse-seine fishery in the eastern tropical Pacific: A 36-year summary. (Abstract). 111.11 

Biennial Conference on the Biology of Marine Mammals. Orlando, FL. December 1995. 

Hall, M., M. C. Lennert and P. Arenas. 1992. Paper III. Characteristics of 

Aoating Objects and Their Attractiveness for Tunas. IATTC Workshop on the 

Association of Tunas with Aoating Objects and Dolphins in the Eastern Pacific Ocean. 

La Jolla, CA. 

IATTC. 1995. Quarterly Reports: First, Second and Third Quarters, 1995. La 

Jolla, CA. 92037. 

IATTC. Background Paper No. 1. Attachment #2, 551.11 Meeting of the IATTC. 

June 1995. 

IATTC. Background Paper No. 1. Attachment #3, 551.11 Meeting of the IATTC, 

June 1995. 

Myrick, A.C. and P.C. Perkins. 1995. Adrenocortical color darkness and correlates 

as indicators of continuous acute premortem stress in chased and purse-seine captured 

male dolphins. Pathophysiology 2. Elsevier Science B.V. pp. 191-204. 

Myrick, A.C. 1988. Is tissue resorption and replacement in permanent teeth of 

mammals caused by stress-induced hypocalcemia? In: Davidovitch, S. (Ed.). The 

Biological Mechanisms of Tooth Eruption and Root Resorption. EBSCO Media, 

Birmingham. pp. 379-389. 

Page6 
407 

TBSTIKO)IY OP 

JAMBS P. WALSH 

RBPRBSBKTIHQ TKB 

AKBRICAH TUNABOAT OWNERS COALITION 

BBPORB TKB 

COKMITTBB OR RBSOURCBS 

U.S. BOUSB OP RBPRBSBKTATIVBS 

SUBCOMMITTBB OM PISBBRIBS, WILDLIPB AND OCBAHS 

Hearing-s on 

H.R. 2823, the International Dolphin conservation 

Prog-ram Act, and H.R. 2856, the International Dolphin Protection and consumer Information Act of 1995 

Pebruary 29, 1996 

Mr. Chairman, and Members of the Subcommittee: 

My name is James P. Walsh and I am a partner in the 

Washington, D.C. office of Davis Wright Tremaine. I am 

testifying today on behalf of the American Tunaboat Owners 

Coalition, a group of owners of U.S.-flag tuna purse seine 

vessels.V With me in the audience today is Mr. Julius Zolezzi, 

who leads the Coalition and is the owner of three U.S.-flag tuna 

purse seine vessels. 

The Coalition is seeking to return science-based management 

to the international yellowfin tuna fishery of the eastern 

l/ The u.s. long-distance tuna fleet, which supplies about 40% 

of the tuna canned by u.s. processors, is made up of 47 vessels, 

all operating in the Pacific Ocean, mainly in the Central and 

Western Pacific. Each vessel is approximately 1,200 tons in 

size. In 1993, u.s. vessel landings of tuna totalled 470 million 

pounds, worth $270 million. 
408 

tropical Pacific Ocean ("ETP") and allow our fleet greater access 

to the tuna fisheries in that region. At a hearing before this 

Subcommittee last year, we sought legislative changes in the 1992 

International Dolphin Conservation Act for these purposes, as 

well as to return a •easure of fairness to the •anner in which 

our tuna fisher.en have been treated by national policies that 

protect .arine •ammals. 

Since that hearing, through a very unique series of 

discussions involving five u.s.-based environmental organizations 

and representatives of the nations that fish for tuna in the ETP, 

a land•ark agree•ent has been reached--the Pana•a Declaration--

which offers the pro•ise of strengthening the Inter-American 

Tropical Tuna Commission ("IATTC"), recognizing the tremendous 

success tuna fisher.en have had in reducing incidental dolphin 

mortality, and creating a widely-supported program to keep 

dolphin •ortality at biologically insignificant levels while 

insuring a healthy and stable tuna fishery.V All elements of 

the Panama Declaration are consistent with, and in some respects 

exceed, the objectives Congress originally set forth in the 

Marine Mammal Protection Act of 1972, as amended through 1988. 

The coalition supports enactment of H.R. 2823, the 

International Dolphin conservation Program Act, with an amendment 

which I will discuss shortly. We urge this Subcommittee, and the 

full Committee, to move this legislation expeditiously so that it 

•ay become law this year. We are grateful to see the bipartisan 

4/ ~.Marine Mammal Commission, Annual Report, 121 (1994). 

BTATZKBBT OP AKBRICAH TONABOAT OWNERS COALITION - Page 2 
409 

group of supporters behind these bills, something many thought 

impossible on what was once such a contentious environmental 

issue. The development of H.R. 2823 is a tribute to the 

farsighted policy decisions of Greenpeace, the Center for Marine 

Conservation, the World Wildlife Fund, the Environmental Defense 

Fund, and the National Wildlife Federation and their recognition 

of the importance of balanced international management. We have 

always believed this type of comprehensive international 

management is the best approach for conserving marine resources. 

In addition, we applaud the Clinton Administration for 

supporting this effort, taking a bipartisan political position, 

and providing leadership in support of H.R. 2823. Finally, we 

particularly wish to thank our local Congressmen cunningham, 

Hunter, Bilbray, and Packard, and the Chairman, Mr. Young, for 

their continued support of the objectives of our Coalition. 

The Coalition opposes H.R. 2856, the International Dolphin 

Protection and Consumer Information Act, which is merely a 

"spoiler bill" that will completely undercut the Panama 

Declaration and is designed solely to satisfy single-issue animal 

protection groups who have traditionally relied upon the 

tuna/dolphin controversy for memberships and financial support. 

Unfortunately, continuing controversy satisfies their objectives 

far more than achievement of a reasonable resolution that is 

environmentally sound. The unilateral action-forcing techniques 

which they espouse are no longer necessary and will in fact be 

counterproductive. 

STATBKBNT OF AMERICAN TUNABOAT OWNERS COALITIOB - Page 3 
410 

WhY the American Tunaboat Owners coalition Supports H.R. 2823 

1. U.S. vessel owners Have Long Supported International 

Management of Their Iuna Fisheries and strongly Support 

Strengthening of the IAITC. 

Ever since the California-based industry developed the 

canned tuna market earlier this century, representatives of u.s. 

tunaboat owners have pressed the United States Government for 

international agreements to provide access to, and sustainable 

management of, the resource needed to supply an expanding market. 

The u.s. tuna fleet, more than any other segment of the u.s. 

fisheries industry, bas been active and instrumental in 

negotiating and implementing multilateral agreements for the 

management of the world's tuna resources, including the U.N. 

Convention on Law of the Sea and the recently concluded 

Convention on Highly Migratory Species and Straddling Stocks. 

In 1992 , in response to the so-called global moratorium 

agreement initiative proposed in the International Dolphin 

Conservation Act, which was never agreed to by any country, u.s. 

vessel owners worked with Senator John Breaux to develop 

legislation~ that would have implemented the predecessor to the 

Panama Declaration--the La Jolla Agreement. The 1992 La Jolla 

Agreement provided the multilateral basis for the tremendous 

reduction in dolphin mortality in the ETP fishery that everyone 

now acknowledges. Senator Breaux's 1992 legislation was 

remarkably similar to H.R. 2823 and his counterpart bill in tho 

Senate, S. 1420. 

11 s. 2995, introduced on Jul. 21, 19921 138 Conq. Rec . 510036. 

STATEMENT OP AMERICAN TUNABOAT OWNERS COALITION - Paqe 4 
411 

Thus, the Coalition support for H.R. 2823 is simply a 

continuation of the long-time efforts of the U.S. tuna industry 

to support science-based international management of the world's 

tuna resources. The IATTC is one of the world's most successful 

multilateral resource management organizations and is critical to 

the maintenance of healthy tuna stocks and other elements parts 

of the ocean ecology affected by tuna fishing operations, 

including the 9.5 million dolphins found in the region. Failure 

to enact H.R. 2823, or if it is amended with any of the 

objectionable provisions of H.R. 2856, will, we believe, threaten 

the continued viability of the IATTC and the future health of the 

ETP tuna fishery. 

In its 1992 report entitled "Dolphins and the Tuna 

Industry," the National Research Council summarized the issue 

very well: 

The committee did not attempt to judge the desirability or validity of various management policy goals, but it 

is clear that any policy designed to reduce dolphin 

mortality or prevent it absolutely will be effective 

only if it is based on sound information and if most or all nations that fish for dolphin-associated tuna 

anywhere in the world participate in its 

implementation. 

NRC Report, 71. We urge Congress to give meaning to this wise 

advice by enacting H.R. 2823. 

2. The Ban on Encirclement in the 1992 International 

Dolphin Conservation Act Is Discriminatory and Has No 

Rational Scientific Basis. And It Should Be Repealed. 

It was truly ironic that, at the very time that u.s. tuna 

fishermen had developed the technology and operational techniques 

and dramatically reduced incidental dolphin mortality, Congress 

STATEMENT OF AMERICAN TUNABOAT OWNERS COALITION - Page 5 

20-276 - 96 - 14 
412 

adopted policies that essentially prevented u.s. fishermen from 

using this practice.~ In no other fishery in this nation has a 

harvest technique that incidentally takes marine mammals or 

endangered species been outlawed, without regard to the 

biological impact of that practice. In addition, certain types 

of fishing cannot even reduce morality to lower levels, such as 

sink gillnets. But such gear has not been outlawed in other 

fisheries but is controlled by scientific management as to area 

and time of use. Moreover, as others have already indicated in 

their testimony, there is no basis to conclude that encirclement 

is creating the exaggerated "unseen and undocumented" harm to 

dolphins claimed by animal protection groups. To succumb to 

their approach is to require the proving of a negative, which 

cannot be done and is unnecessary given the knowledge we have of 

the dolphin populations in the ETP. 

The original Marine Mammal Protection Act sought to reduce 

incidental harm to marine mammals during fishing operations (of 

any kind) to "insignificant levels approaching a zero mortality 

and serious injury rate."~' No one can now honestly dispute that 

that goal has now been achieved and surpassed in the ETP tuna 

fishery. The purpose of the Panama Declaration and H.R. 2823 is 

to assure that this very low level of mortality is sustained 

if ~ 16 u.s.c. § 1417(a) (1) (banning the sale, purchase, transport, or shipment of tuna caught through encirclement of 

dolphins after June 1, 1994). 

~ 16 u.s.c. § 1371(a) (2). This same objective applies to the 

taking of marine mammals in all other domestic fisheries. 16 

u.s.c. § 1387(a)(1). 

STATEMENT OP AKBRICAH TUNABOAT OWHBRS COALITION - Paqe I 
413 

indefinitely. Congress considered a complete ban on tuna purse 

seining when it was drafting the original Marine Mammal 

Protection Act in 1972 but rejected it in favor of scientific 

management.~ In 1992, the National Council reached essentially 

the same conclusion and reported: 

In addition, the committee notes that a complete ban on dolphin fishing or the purchase of tuna caught on dolphins is not required to ensure the survival and even the increase of dolphin populations. 

~, at 71. This advice, unfortunately, was ignored by Congress 

in 1992 on the premise that several key countries supported a 

moratorium on encirclement of dolphins. None agreed to the 

moratorium. In the end, the 1992 International Dolphin 

Conservation Act meant that only u.s. vessels were banned from 

using the encirclement method while the international fleet 

continued to use the technique and reduced dolphin mortality to 

the present insignificant levels. No doubt U.S. vessels could 

have done just as well, if not better. 

Legally banning encirclement creates an unfair and 

undeserved cloud on the reputation of u.s. tuna fishing practices 

which the Coalition opposes. We believe a restriction on 

encirclement is scientifically indefensible and unfairly 

~ s. Rep. 92-863, 92d Cong., 2d Sess. 5 (Committee on Commerce: Jul. 15, 1972) (" ••• [a) strong body of evidence was presented to the committee that total and complete protection 

without scientific management is not necessarily the best answer to solving the problems of marine mammals.") 

STATBKBNT OP AKBRICAK TUKABOAT OWHBRS COALITIOH - Page 7 
414 

discriminates against u.s. tuna fishermen.Y our citizens 

should be rewarded for achieving strict environmental protection 

goals, not be punished or required to meet new standards 

demanding absolute perfection. This is another important reason 

why the Coalition supports H.R. 2823. 

3. The Coalition Qesires Access to the runa Resources in 

the ETP On An Equal Blsis With Foreign Fleets. 

The vessels in the coalition are all dependent upon access 

to the abundant tuna resources throughout the Pacific ocean. All 

u.s. vessels, except for three, operate in the area covered by 

the South Pacific TUna Treaty.V Nearly all the tuna caught by 

Coalition members is found either on the high seas or in the 

exclusive economic zones of the treaty parties. While the stocks 

of tuna in this region are considered healthy,V it is always 

important for tunaboat owners that opportunities for alternative 

supply be available because change is the only certainty in any 

business these days, whether it is political uncertainty or 

natural environmental variability. Consequently, Coalition 

1/ This issue of fairness between and among various sectors of 

the fishing industry was recently the subject of an amendment 

offered by Mr. Goss to eliminate the fish bycatch regulatory moratorium benefiting the Gulf of Mexico shrimp trawl fleet. 141 

Cong. Rec. H.10236~42 (Oct. 18, 1995) (Mr. Studds: "I think on the grounds of fairness ••• we are going to treat all regions of 

the Nation equally."). This same principle should apply here. 

II The treaty is implemented through the South Pacific Tuna Act 

of 1988 (Pub.L. 100-3307 codified at 973-973r. The treaty area is comprised of waters in the South, Central, and Western 

Pacific. 

1/ National Marine Fisheries Service, Qur Liyinq Qcean: Report on the Status of u.s. Marine Liyinq Resources, 95-100 (1992). 

STATBKBHT OP AKBRicaa ~UXlBOA~ Ow.BRS COALI~Io• - Paqe 8 
415 

-IIbera want to have access to the tuna resources in the ETP, 

something now denied to th .. by requlatory restraints and 

economic impediments. 

Last year, Congress expanded our area of operation by 

amending the South Pacific Tuna Treaty Act to allow operations in 

~·area of the ETP that overlapped the South Pacific Treaty 

Ar a.llV Under the Marine Mammal Protection Act and related 

regulations, u.s. tuna purse seine vessels could not operate in 

the •overlap• area unless they carried the dolphin protection 

equipment and nets required under that Act. Thus, our vessels, 

which had no intent to encircle dolphins in the overlap area but 

to fish on school fish and loqs, were needlessly restricted from 

valuable fishing grounds. Congress has now authorized operations 

in the overlap area for school and loq fishing. However, the 

restrictions on similar operations in the other parts of the ETP 

still remain. 

Two weeks ago U.S. vessel owners met and agreed to support 

H.R. 2823, with an amendment. The amendment is attached and is 

designed to ensure that those vessel owners who do not wish to 

invest in new netting or wish to avoid sets on dolphins may 

nonetheless fish in the ETP on schools and loqs. To fish in this 

manner under our proposed amendment, a u.s. tuna vessel operating 

priaarily in the South Pacific would take an IATTC-approved 

observer when entering the ETP but would not need all the 

12/ Fisheries Act of 1995, PUb.L. 104-43, sec. 801 (Nov. 3, 

1995). The amendment forbids the encirclement of dolphins when 

fishing for tuna under the South Pacific Treaty Act. 

8TATBKBMT OF ANBRI~ TUBABOAT OWHBRS COALITIO. - Page I 
416 

required dolphin protection equipment or nets. The observer 

would verify that the vessel only engaged in log or school 

fbhing. 

Finally, several of our Coalition members want access to the 

large yellowfin tuna found in ass~iation with dolphins in the 

same manner as foreign fleets. We cannot say for certain bow 

many vessels will want to operate in this manner, perhaps for one 

or two trips a year, because present law is still so rigid that 

no one can predict with great accuracy what will happen after the 

Panama Agreement is implemented. Nonetheless, our Coalition is 

committed to supporting the changes in policy contained in H.R. 

2823. our goal is obtain secure access to healthy stocks of tuna 

wherever our vessels are able to operate in the Pacific Ocean. 

Summary and Conclusion 

Contrary to the assertions of those who oppose H.R. 2823, 

the issue before this Subcommittee is not a bail-out for Mexico, 

or evidence of the failure of NAFTA, or anything other than the 

continuing battle by those who wish to provide absolute 

protection to a particular charismatic aniaal--the dolphin, 

regardless of the environmental, social, international or 

economic consequences. These groups have skillfully absorbed 

energy from--and used for their own particular goals--the 

public's general affection for these animals. The political 

power that derives from these public feelings is obvious but it 

should be directed in a positive not negative direction. 
417 

In 1992, the political aoaentua of the save-the-dolphin 

campaign, fed by overstateaent and. aisinforaation; created 

overreaction in the 1992 International Dolph~n Conservation Act 

and a departure from this country's tradition•l policy of beinq 

fair to u.s. fishermen while pro~ectinq marine aammal populations 

and supportinq science-based multilateral decisionmakinq on 

international environmental problems. But now that our existinq 

tuna/dolphin policies are clearly indefensible on any qround 

other than placatinq some noisy and intransiqent environmental 

qroups, this Subco.mittee faces a. clear choice in policy 

direction. 

The Coalition urqes the Subcommittee, and the entire 

Conqress, to return to reasoned, scientifically-based 

international manaqement and to acknowledqe the need to provide 

for responsible fishinq by our citizens. We urqe your support 

for H. R. 2823 and the amendment we suqqested here today. 

Thank you for the opportunity to testify. I would be happy 

to answer any questions the members of the Subcommittee may have. 

* * * * 

&TAT~ 0~ AKBRica. TVMABOAT OWBIRI COALITIOM - Paqe 11 
418 

·~ ~ •••• 1111 

A bill to aaend the Marine Mammal Protection Act 

to support the rnternational Dolphin Conservation Proqraa in the eastern tropical Pacific OCean, and for other purpos .. 

Page 15, line 19, strike the word •and.• 

Page 15, after line 19, in .. rt the followinq new paragraph: 

•(xi) authorizing fishing within the area covered by the Xnternational Dolphin Conservation Proqraa by vessels of the United States without the use of special equipaent or nets if the vessel takes an observer and 

does not aake any intentional sets on dolphins, under 

such teras and conditions as the Secretary may prescribe: and• 

Page 15, line 20, delete •(xi)" and insert in lieu thereof 

"(xii).• 

EXPLANATXOK: This aaendment will allow a u.s. vessel that 

operates in the Western Pacific to fish on loqs and school fish in the ETP without all the special equipment and a paneled net if the vessel takes an observer and does not intentionally set on dolphin schools. 
419 

DOLPHINS AND THE TUNA INDUSTRY 

Statement of 

R. C. Francis, Ph.D. 

Chairman, Committee on Reducing Porpoise 

Mortality from Tuna Fishing 

Commission on Life Sciences 

National Research Council 

and 

Professor, School of Fisheries 

University of Washington 

before the 

Subcommittee on Fisheries, Wildlife and Oceans 

Committee on House Resources 

U.S. House of Representatives 

February 29, 1996 
420 

Mr. Chairman and Members of the Subcommittee: 

I am Robert C. Francis, Professor at the School of Fisheries of the University of 

Washington and Chairman of the National Research Council (NRC) Committee on Reducing 

Porpoise Mortality from Tuna Fishing. I am pleased to submit the following general 

testimony regarding the findings of the Committee. 

The Committee on Reducing Porpoise Mortality from Tuna Fishing was formed on 

October 10, 1989 and issued its report in 1992. Its task was to conduct an independent review 

of information pertaining to promising new methods of locating and catching yellowfin tuna 

(in the eastern tropical Pacific Ocean) without the incidental capture of dolphins. 

The important findings of the committee can be summarized as follows: 

I) After extensive analysis, the committee was unable to identify any currently available 

alternative ot setting nets on dolphins that is as efficient as dolphin seining for catching large 

yellowfin tuna (in the eastern tropical Pacific - ETP). 

2) The committee could not identify experimental modifications to gear or techniques of 

catching dolphin-associated tuna that would reduce dolphin mortality to or near to zero and 

would be practical in the fishery in the immediate future. 

3) The committee judged that improvement in captain performance is the single most 

important step that can be taken to reduce dolphin mortaility in the ETP purse-seine fishery. 

With the above in mind, the committee recommended that two major international efforts be 

undertaken to reduce the mortality of dolphins in the ETP tuna fishery. · 

a) Develop an educational, monitoring and incentives program for tuna vessel captains aimed 

at reducing the dolphin mortalitY associated with the relatively small number of captains 

who account for a large proportion of the kill. This program would include: 

(i) Training and evaluation of captain performance. 

(ii) Criteria for certification of captains 

(iii) Monitoring through I 00"/o observer coverage. 

b) Develop a major international program for gear and behavior reserach aimed at reducing 

dolphin mortality through the following: 

(i) Systematic deployment of small currently available modifications of present day purse 

seining methods. 

(ii) Development of major new modifications in purse seine technology through a 

three-pronged program of engineering, modeling and full-scale testing using a 

chartered purse seiner. 
421 

(iii) Design and implement a major research program on behavior of tuna and dolphins in 

the ETP. 

(iv) Design and implement a major research program on new methods of harvesting tuna in 

the ETP without encircling dolphins. 

The committee recommended that both programs should be initiated immediately and that the 

former (vessel captain education, monitoring and incentives program) should be created 

through international meetings of government and industry representatives of all nations 

currently purse seining in the ETP. 
422 

. '\_)r 

_,~-

_(j~ The Fishermen's Coalition 

Testimony to Congress by The Fishermen's Coalition 

on the rniew of U.S. policy as it relates to 

the yellowfin tuna fishery of the eastern tropical Patific Ocean 

Committee on Resources 

U.S. House of Representatives 

Subcommittee on Fisheries, Wildlife and Oceans 

Hearings on H.R. 2113, the International Dolphin Conservation Program Act and 

H.R. 2856, tbe International Dolphin Protection and Consumer Information Ad of 1995. 

February 29, 1996 

Gentlemen and Women of Congress: 

We appreciate this opportunity to comment on U.S. policy as it relates to the yellowfin 

tuna fishery of the eastern tropical Pacific Ocean. 

The Fishermen's Coalition is a non-profit organization founded in 1992 by fishermen and 

other concerned citizens. The goals of The Fishermen's Coalition are to educate the public about 

responsible fishing practices and the importance of fishing in providing food to the world, to 

promote fishing as-a viable career and to celebrate and secure seafaring communities. 

We submit the following statement on behalf of our members and the members of the 

following groups, representing over twenty-five million U.S. citizens involved in resource 

management issues. These groups, which include Alliance for America, Defenders of Property 

Rights, Farm Credit Property Rights Foundation, National Fisheries Institute and the Western 

States Coalition among others, support scientifically sound solutions to environmental issues, 

solutions which respect the people involved in the environmental equation. 

The Southern California T11aa Fishing Fleet 

For generations, the United States' high-seas tuna fleet bas plied the waters of the eastern 

tropical Pacific (ETP) from San Diego to Chile and out to Hawaii. This rich fishery produces 800 

million pounds of tuna annually and is also home to a variety of other fishes, turtles, whales and 

approximately ten million dolphins. 

826 Orange Avenue, 1504 Coronado, CA 92118 USA • Tel: (619)575-4664 Fax: (619)575-5578 
423 

Fishing for fish that do not associate with dolphins, "dolphin safe" by the current 

definition, focuses effort on baby tunas and incurs a troubling waste of other fish, sharks and 

billfish. To avoid this ecological impact, fishermen have always sought out hundreds to thousands 

of dolphins scattered widely across the surface of the sea as indicators of dean schools of large 

tuna beneath the surface. An encircling net fences in the dolphins and tunas, with cables closing 

the floor. 

Reversing the boat and dragging the net through the water elongates it and creates a sinks 

the corkline six to eight feet below the surface. Men in rafts float inside the net and herd the 

dolphins over this opening and out to the open sea. A diver searches for any animals still 

remaining in the net, helps any stragglers up and over the side of the net, then gives the all-clear 

signal. Finally, the net is pulled tight and the fish funneled into wells of icy water below deck. 

In the '60's and early '70's, guesstimates of the dolphins killed in this fishery numbered in 

the hundreds of thousands annually. Although the data was sparse in the early years of the fishery 

and the resulting numbers hold little scientific worth, reports of dolphin kills numbering in excess 

of half a million dolphins annually continue to be repeated verbally and in print as if they were 

tactual. A quick look at the "confidence interval," a measure of the confidence in the strength of 

the data, informs anyone reading the reports that these numbers hold little validity due to the lack 

of observer coverage. No one will ever know the take of dolphins during this period although it 

may have exceeded I 00,000 in several years. 

further compounding the issue, these guesstimates of kill rates were considered "best 

available data" and were used in back calculations to estimate stock sizes prior to the existence of 

the fishery, resulting in a "depleted" listing under the Endangered Species Act (ESA) for two 

stocks of dolphins. We did our fishermen a grave injustice by publishing. with no disclaimer, 

outrageous numbers based on sparse data, fueling a political battle which continues today. 

By 1973, observers placed on some of the fishing boats improved the data collection and, 

therefore, the final published numbers. Observer coverage by 1979 was extensive and scientists 

agree that the numbers from this point on are more accurate. 1979's estimated kill rate for the 

international fleet was approximately 20,000 animals. 

from 1979 through the '80's, the fishery's estimates of marine mammal mortalities 

fluctuated from tens of thousands of animals per year to a spike rising to over 100,000 animals 

once in the last fifteen years. This spike was caused by inexperienced fishermen from Latin 

America joining the fishery as the U.S. fleet moved westward as a response to a reduction in 

fishing due to a strong El Nino effect. for the last decade, fishing activity on dolphin-associated 

schools of tuna has remained steady. 100 percent observer coverage of the entire international 

high seas fleet has yielded counts by on-board observers of a take of approximately 4,000 marine 

mammals annually. This number, 0.04 percent of the abundance of the animals, is a fraction of the 

net reprodu<:tive rate and ia biologically insignificant. In fact, because the area fished is so large 

(almost three times the size of the U.S.) and populated by so many dolphins (approximately 10 

million), the existing provisions of the Marine Mammal Protection Act, if applied equally to this 

2 
424 

fishery, would consider a take of approximately SS,OOO to 60,000 animals annually to be 

biologically insignificant. 

Thanks to the concerted efforts of governments and scientists, the eastern Pacific 

yellowfin tuna fishery has benefited from good cooperation among the involved nations in 

addressing the tuna/dolphin association in this ocean. The Inter-American Tropical Tuna 

Commission (lA TTC}, the management body in the eastern Pacific, developed a solid "applied 

science" program to assess the gear and techniques which fishermen invented and perfected, 

moving the information efficiently across borders and through the fleet. Goals were set and 

reevaluated and reset. Dolphin mortality plummeted as regulations stressed individual 

responsibility on the part of the fishermen and the fishing boats. The program is a model for other 

fisheries and State Department calls it an "environmental success story." So the answers in the 

eastern Pacific were what they always are: international cooperation, education, individual 

responsibility and science, science, science. 

We do not believe that continuing conflict between U.S. policy and product produced 

under the supervision of the IATTC program wiU'cause fishermen to abandon the techniques they 

have mastered for dolphin release. However, we do believe that if U.S. policy is not changed, the 

program will splinter, setting fisheries management and marine mammal protection back a decade 

or more. At a time when we are urging fishermen to work together to solve problems, it would 

be a tragedy to see the most successful bycatch reduction program in the world collapse from lack 

of real support. 

Tbe Marine Mammal Protection Act 

All fishermen depend on a healthy ocean and live within constantly changing fishery 

guidelines to protect the resource on which they depend. The Marine Mammal Protection Act 

(MMPA), however, is much more restrictive than the Endangered Species Act (ESA). The 

MMP A goes beyond protecting the resource by demanding that, no matter how plentiful marine 

mammals are, intentional take by U.S. citizens is outlawed. We disallow takes of abundant 

nuisanCe animals feasting on endangered salmon runs. We outlaw all sales in marine mammal 

products, even marine mammal products produced by indigenous people under governmentsanctioned and biologically sustainable regimes. The United States has, officially, created a sacred 

cow of the seas. For fishermen and fish, this often means big trouble. 

There is not a fisherman in the world who can leave the dock without an allowance for 

marine mammal interaction and mortality. Marine mammals are present in every ocean and, 

therefore, by extension, in virtually every fishery. Although the Marine Mammal Protection Act 

recognizes this, fishermen must fight to maintain this allowance as was demonstrated in the 

extensive and often heated negotiations by our domestic fishermen during the reauthorization 

hearings of the MMP A. 

In 1992, the U.S. high seas tuna fishermen lost this allowance for unavoidable marine 

mammal kills in the eastern Pacific. As a result, the Southern California high seas Pacific tuna 

fleet's presence has been virtually eliminated from the eastern Pacific, the fleet's traditional fishing 

grounds and the world's largest yellowfin tuna fishery. To survive, most of the U.S. tuna 
425 

fishermen shifted operations to the skipjack fishery of the western Pacific. The financial cost of 

moving to the western Pacific has taken its toll on the fleet. The result: the U.S. Pacific high seas 

tuna fleet declined fully thiny percent, from 65 to 47 boats, during the period I 990 to 1996. 

This devastation is a direct result of the adoption of the U.S. "dolphin safe" policy and the 

establishment of the U.S. goal "to~ marine mammal mortality resulting from the 

intentional encirclement of dolphins and other marine mammals in tuna purse seine fisheries." 

Zero Tolerance Standards or Ecosystem Management? 

This zero tolerance standard for dolphins for t~ eastern Pacific high-seas tuna purse seine 

fishing fleet went beyond "levels approaching zero" which is stated as the objective for all other 

U.S. fishermen fishing in domestic waters, a goal which the international high seas fleet has most 

assuredly reached. These fishermen reached the goal only to see the rules of the game changed. 

Fishermen cannot operate under zero tolerance standards for any negative whether that negative 

be the take of a dolphin, a shark, a billfish, a turtle or the accidental death of a fisherman. We 

cannot give you zero anything. The continuing emphasis on reaching a standard of complete 

protection for any one creature is in direct conflict with reality and this fishery's ecosystem 

management regime and must be abandoned. 

There are ten million dolphins present in the eight million square mile eastern tropical 

Pacific (ETP) yellowfin tuna fishery. The rate of marine mammal mortality in this fishery is far 

lower than virtually any fishery in the world and far below the most conservative estimates of 

sustainability. The simplistic solution of eliminating dolphin mortality by technically banning 

fishing activity on large tuna associating with dolphins was clearly not ecologically sound and set 

a dangerous precedent for marine conservation policies worldwide. It is not surprising that other 

fishing nations found this policy to be unacceptable. 

In order to meet the current definition of "dolphin safe," fishermen in the eastern Pacific 

fish on tunas not found swimming in association with dolphin. Unfortunately, environmental 

problems associated with "dolphin safe" fishing in the eastern Pacific are well documented: 

discards at sea rose from 0. I percent of the catch when fishing in association with dolphins to 

approximately 20 to 30 percent when fishing under the present definition of"dolphin safe." 

Additionally, if the entire international fleet were to adopt "dolphin safe" harvesting techniques, 

the impact on immature tunas would threaten the future health of the tuna fishery, resulting in a 

reduction ofyellowfin tuna production of as much as 60 percent. Although a recently passed 

United Nations resolution urges fisheries to reduce bycatch of unwanted species, present U.S. 

policy urges eastern Pacific tuna fishermen to dramatically increase bycatch in order to avoid a 

biologically insignificant impact on dolphin stocks. The current "dolphin safe" policy is nonsensical and environmentally unsound. 

Philoaophical Differences 

Many groups argue that there is a moral difference between a fishermen acadentally 

killing a mammal that wanders into his gear, mesh or line, and fishermen intentionally herding, 

intentionally encircling and intentionally releasing the dolphins associating with the tunas they 

4 
426 

need to harvest. These groups object to intentional encirclement of the mammals based on the 

animal's "right" to be left alone. 

But what if protecting dolphin stocks requires us to use the best gear possible in order to 

have the most minimal impact on these stocks? And what if intentionally herding the tunas and 

the associated dolphins strips out small tunas, sharks, billfish and turtles, creating schools which 

do not exist naturally: very, very clean schools of very, very large fish, the perfect fish to harvest 

to keep the fishery healthy? And what if the purse seine method of herding, encircling and 

releasing dolphins swimming with tunas, when done correctly, results in the lowest possible 

mortality rates for the animals present in the fishery? What if substitution of a variety of other 

gear and equipment, such as trawls and gillnets, will result in higher dolphin deaths? What if 

other gear will result in environmental takes greater and potentially more damaging to other 

creatures than the present negligible impact on dolphins stocks in the ETP? What if substitution 

of line gear will result in high takes of gamefish such as billfish, takes of three sharks to every one 

tuna caught, and produce a can of tuna at the price of sashirni? What ifforcing fishermen to 

simply avoid large tunas swimming with dolphins, forcing them to capture baby tunas, results in a 

collapse of the fish production? What if forcing fishermen away from dolphin associated schools 

forces fishermen onto schools mixed with sharks, billfish, miscellaneous fish and turtles, increasing 

bycatch and discards by a magnitude of several hundred? What if setting a zero tolerance policy 

in this highly visible fishery sends a message to fishermen around the world that cooperation with 

government and science equals going out of business? What if we set back dolphin protection 

globally by teaching other fishermen with marine mammal interactions that they should hide and 

not address their problems because their product will be blacklisted? And what if our policies 

result in the loss of fifth generation seafaring communities and the knowledge contained within? 

We understand that this issue has split what used to be termed as the "conservation 

community." We do not see it that way. We see the split as more clearly defining the involved 

players as the groups fall into two ranks. In one group, we find those who object to the use and 

ownership of the world's living creatures such as the animal rights groups, the preservationists 

and those who espouse "non consumptive" use of the world's resources. The second group is 

made up of those who believe in ecologically sound conservation, sustainable use, animal welfare, 

wise use, and the protection of civil liberties and property in the debate over how to best protect 

the environment. We welcome new allies to the conservation side of the tuna/dolphin issue and 

feel that the American public will learn much about their natural world from this issue. 

International Implications 

When the U.S. fleet fled the area under the mass of U.S. regulations which did not allow 

them to harvest the ETP fish in a rational manner, the Marine Mammal Protection Act's 

comparability standard kicked in with a vengeance. The MMPA embargo provision was 

developed years ago in the belief that if U.S. fishermen have to suffer a competitive disadvantage 

due to regulation, then everyone around the world should. Whether the bycatch reduction 

program is effective, scientifically sound or even necessary is irrelevant. Two wrongs supposedly 

would make a right and a level playing field. Too often, however, our idea of a level playing field 

is to level the U.S. fishermen, then use an economic battering ram to bludgeon the rest of the 

world into submission. We continue to embrace this misdirected and World Trade Organization 

(WTO)-illegal approach. Another symptom of the problem with the U.S.'s continuing insistence 

s 
427 

on using illegal unilateral trade embargoes appears on the horizon in the form of the recent Hayes 

Amendment to the Magnuson Act. 

In the case of the ETP tuna fishery, the U.S. fleet was unable to fish under the "dolphin 

safe»/zero tolerance regime and abandoned the area. This brought the MMPA comparability 

standard for the ETP to essentially zero. Animal rights groups touted this as a great victory. No 

fishermen, no marine mammal deaths. Now, if they could just get rid of those pesky foreigners 

who-insisted on continuing to fish and feed people .... 

In a graphic example of how interwoven fisheries trade is and how damaging unilateral 

trade barriers are, over twenty countries at one point found their trade in yellowfin tuna 

embargoed under primary and secondary embargoes, caught in the mesh of the embargo 

provisions of a U.S. law most of their fishermen had never heard of Never mind that the U.S. 

standard for perfection in the eastern Pacific high seas tuna fishery had sent the U.S. fleet fleeing 

to the other side of the Pacific. Never mind that the eastern Pacific's international fishermen 

experienced marine mammal mortality rates a fraction of what the U.S. allows as biologically 

insignificant in fisheries within her own domestic waters. Never mind that the MMPA's unilateral 

trade barriers were declared illegal twice under international trade laws by the General Agreement 

on Tariffs and Trade (GATT), now the World Trade Organization (WTO). 

The U.S., a powerhouse of purchasing power, ignored the complaints of the suffering 

countries and her own fishermen. U.S. flag boats unloading in foreign ports, and U.S. fishennen 

working on foreign flag boats, were caught up in the primary and secondary embargoes. Closing 

markets without a concomitant reduction in production depressed prices, hurting all the world's 

tuna fishermen wherever they fished. The result of the tuna embargo was trade havoc, collapsed 

global tuna prices, capital flight, soured international relationships, decimated fleets and may yet 

collapse the fishery's long-standing international management regime. 

If the United States desires to effectively participate in programs to address the great and 

global fisheries management clean up, then these issues must be addressed respectfully, rationally 

and regionally. We must work across borders, with goodwill and good science, with our eyes on 

the long term sustainability of the fisheries and the fishing communities. Disrupting worldwide 

fisheries trade and ruining fishermen's lives may be called playing hardball but it also reeks of 

good old-fashioned power play politics as enacted by the United States mutating into the Bycatch 

Bogeyman. 

Respect lor Fishermen 

We are losing sight of the only real basis government should utilize for restricting access 

to fisheries: science and sound conservation policies. The capricious nature in which laws and 

regulations have been promulgated have undermined confidence in what has always been a risky 

endeavor. Banks are hesitant to make loans, insurance companies are wary of the increased risk 

and fishermen are tired of fighting an endless stream of regulations. Regulations based on good 

intentions, biases, and bureaucratic zeal, not science, do not allow a fisherman the flexibility to 

operate his boat as he needs, maximizing the use of his investment to satisfY an increasingly 

6 

20-276 - 96 - 15 
competitive global market. Worse yet, policy errors of this magnitude undermine our confidence 

in our ability to work together to solve real problems. 

Support the Efforts of Responsible Fishenaea 

We urge Congress to support the efforts of responsible fishermen, not blacklist their 

products. The uni-lateral embargoes must be removed. We need to support programs that work. 

The Inter-American Tropical Tuna Commission program must survive as a model for other 

fishermen facing international fisheries management and bycatch issues around the world. The 

coalition which has been built on this issue must endure. Over what was once one of the most 

contentious issues of the decade, a solution has been forged by a united force of fishermen, 

conservationists, resource producers, govenunent statesmen, scientists and countries, a solution 

that gives hope to fishermen around the world. 

The International Dolphin Conservation Program Act, H.R. 2823, as introduced by our 

local San Diego representatives and a varietY of other Congressional leaders, incorporates the 

origin&l La Jolla Agreement of 1992, which enacted the first ever per boat bycatch quota for an 

international fishery. The Panama Declaration of 1994 confirmed the succesS of the La Jolla 

Agreement, adding stronger per stock protections for dolphin and redefining "dolphin safe" to 

meet our conservation objectives, resulting in the support of some of the world's largest 

environmental groups. 

H.R. 2823 recognizes the important contribution of seafaring U.S. citizens oper1t~g on 

the high seas to produce food for the world. It reopens the healthy ETP fishery to U.S. fishermen 

and reopens international trade in 1 product produced in 1 sustainable fishery. It reestablishes 

solid international relations. H.R. 2823 redefines "dolphin safe" to ensure the consumer that no 

dolphins died in the production of their fish. H.R. 2823 rewards responsible fishermen with a 

"gold star" for perfect performance in releasing the dolphins during their fishing operations. H.R. 

2823 also recognizes that no one is perfect. H.R. 2823 allows the global sale of the small amount 

of fish produced in the few sets where not all the dolphins are released unhanned, recognizing that 

fishermen would be forced to dump this product at sea if it were deemed unmarketable. H.R. 

2823 reconciles the demands of the marketplace with our valid conservation efforts. H.R. 2823 

balances the needs of the people in this fishery with the complexities of ecosystem management 

and the concerns of an aware and involved public. 

A Thank You To Those Responsible For This Saccen 

We would like to take this opportunity to thank the enviromnental groups who rejected 

exploiting the American pgblic's affinity for dolphins for financial gain. By looking at the facts of 

this fishery, they recognized that long-term progress for the protection of all the ocean's creature!< 

in all the world's oceans depends on the survival of the International Dolphin Conservation 

Program. Fishermen hope that this shift tignals a change in the environmental groups' message 

toward a presentation of real environmental information designed to meet the demands of a more 

discerning audience. Fishermen are watching dosely, hoping that we are finally approaching the 

day wben those involved in the environmental debate forever abandon the use of totems, taboos 

and sacred cows. 

7 
429 

We would also like to issue a heartfelt thank you to the stientists of the Inter-American 

Tropical Tuna Commission and the involved governmental representatives from the dozen 

countries involved in this fishery. We would like to thank State Department, Commerce 

Department, the Clinton administration and the representatives of the many involved nations for 

their efforts in forging this binding agreement and the multi-lateral, science-based conservation 

regime which the fishermen have desired for many, many years. 

We would like to thank the co-sponsors ofH.R. 2823 for supporting a valuable program 

in spite of name calling and threats from those who do not understand. This is not a battle over a 

can of tunafish versus Flipper. This is a battle to establish the ground rules on how we solve 

environmental issues globally. It is a battle to communicate with and educate a public dependent 

on, but isolated from, the resource producers of the world. It is a battle to curb irresponsible talk 

as much as irresponsible fishing. 

We would like to thank the fishermen for their efforts on the high seas, the faceless 

fishermen in hundreds of thousands of sets, the fishermen who jump into the tropical seas to 

ensure that dolphins are returned to the sea quickly and safely. Fishermen now experience a 

higher chance of dying in fishing operations in the eastern Pacific than do dolphins. 

ation, 

rpnizations that have indicated in writing to The Y11hermen's Coalition that they 

support H.R. 2123 and the International Dolphin Conservation Program: 

Adirondack Blue Line Confederation 

AUiance for America 

Alliance for Environment and Resources 

American Land Rights Association 

American Lands Access Association 

American Rights Coalition 

American Tunaboat Otvnen' Coalition 

Arizona Trailriden Association 

Association of Nationa' Grasslands 

Bear Lodge Grazing Association 

Bear Lodge Multiple Use Association 

Black Hilb 4 Wheelen - Rapid City Cllapter 

Black Hilb 4 Wheelen - Sturgis Chapter 

Black Hills Forest Resource Associates 

Black Hills Mountain Bike Association 

Black Hills Off-Roaden 

8 
430 

Black Hils Reaioaal Muhiple Ute Cotlition 

Black Hills Tilllbei'Wlla's Aaoclatioa 

Black Hills Women In Timber 

Blue Ribbon Collitioa, lac. 

Blue Water Fishermen's Association 

California 4 Wheel Drive Oub, Inc. 

California Forestry Association 

California Gillnetten AIIOCiation 

California Tupayer's Network 

Califonla Veterillarilu for Allimal Welfare 

California Women in Tiaber 

Campbell Shipyard 

Citizens Equal Rights Alliance 

Citizens for Constitutional Property Rights, Inc. 

Coeur D'Alene Snowmobile Oub 

Commercial Fishermen of Santa Barbara, Inc. 

Communities for a Great Northwest 

Davis Mountains Trans-Pecos Heritage Assoc.lation 

Defe.nden of Property Rights 

Environmental Contervation Organization (eco) 

Farm Credit Property Rights Foundation 

Fishermen's Coalition 

Foothill Tnpayen Coalition 

Forest Scene 

Gloucester Fishermen's Wives Association 

Golden State Resource Management, Inc. 

Grand River Muhiple Ute Coalition 

Harney Grazing AJJOCiation 

High Detert Muhiple-Use Cotlition, Inc. 

Bill Country Heritage AIIOCiation 

Keep South Dakota Green 

Marco Marine of Seattle 

Multiple Use Association (New Hampshire) 

National Animal Interest Alliance 

National Fisheries lnstitltte 

National Trappen AJJOCiation 

Network for Environmental Policy Awareness 

New Hampshire Landownen ADiance 

Niobrara Resource Aaoclation 

North Carolina Fisheries AJJOCiation, Inc. 

Northern Hills Community Development Corporation 

Oft'·Road Riden Aaoclation (South Dakota) 

Offshore Resource Management Corp. 

Okanogan Resource Council 

Outdoor Channel 

9 
Outdoon Unlimited 

People For tbe West! 

Private Landownen of Wisconsin 

Putting People Fint 

431 

Rapid City Economk Development Partnenhip 

Roney Land & Cattle Co. 

San Diego Tupayen Coalition 

Sioli'l FaJb Turkey Bunten 

South Dakota Association of Conservation Distrkts 

South Dakota Farm Bureau 

South Dakota Home Builden Association 

South Dakota Mining Association 

South Dakota Public: Lands Council 

South Dakota Snowmobile Association 

South Dakota Stockgrowen 

South Dakota Trail Riden 

South Dakota Trapper Association 

Southern California Furrien Association 

Spearfish Livestock Association 

SpearfiSh Pistol and Gun Club 

Sportfishing Association of California 

Timber Resources Equal Ec:onomk Stability (TREES) - Coastal Chapter 

Trans Teus Heritage Association 

Tri-State A~~otiation of Building Material Supplien 

Tuolume County AUianc:e for Resources and Environment, Inc. (TUCARE) 

Western Fishboat Ownen A~~otiation 

Western South Dakota Fur Harvesten 

Westera States Coalition 

Weston County Multiple Use Coalition 

Women for Califomia 

Wyoming Farm Bureau 

Wyoming Stockgrowen Association 

10 
432 

(}IEL. 

CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW 

1621 Connecticut Ave. NW 

Suite 200 

Washington DC 20009-1052 

Phone: 202-332-4840 

Fax: 202-332-4865 

E-Mail: cie1us@igc.apc.org 

"An analysis of S. 1460 as applied to 

the General Agreement on Tariffs and Trade" 

by Brennan Van Dyke, 

Director, Geneva Office of 

Center for International Environmental Law 

February 26, 1996 
433 

I. INTRODUCTION 

The United States Congress is presently considering modifying the Marine Mammal 

Protection Act of 19721 (MMPA). Efforts to amend the MMPA have arisen because it has been the 

subject of two challenges brought by Mexico (Tuna/Dolphin I)2 and the European Union 

(Tuna/Dolphin lit' under the General Agreement on Tariffs and Trade of 1947 (GATT) 4 Although 

the reasoning of the two panel decisions differed considerably, both dispute panels determined that 

the "Tuna/Dolphin" provisions of the MMPA were inconsistent with U.S. obligations under GATT. 

Now, Senators Boxer and Biden have introduced S.l460,' a bill that would amend those provisions 

of the MMPA which the GATT panels determined were inconsistent with U.S. obligations under 

GATT. Representative Miller has introduced the same bill H.R. 28566 in the House. From this 

point forward, this memorandum will refer only to S. 1460. However, this analysis applies equally 

to both bills. 

This memorandum examines S. 1460 in light of the Tuna/Dolphin II panel decision,' 

as the most relevant GATT jurisprudence, to determine whether the GATT inconsistencies found 

by the Tuna/Dolphin II panel have been remedied. This memorandum also reviews whether S. 1460 

is consistent with the rules of the GATT. The Agreement Establishing the World Trade 

Marine Mammal Protection Act of 1972, Pub. L. No. 92-522, 86 Stat. 1027 (1972) 

(codified as amended at 16 U.S.C. sees. 1361 -1407) [hereinafter "MMPA"]. 

GATT, Panel Report on "United States-Restrictions on Imports ofTuna", adopted 

Sept. 3, 1991, DS21/R [hereinafter "Tuna/Dolphin I"]. 

GATT, Panel Report on "United States-Restrictions on Imports ofTuna", adopted 

July 4, 1994, 33 I.LM. 839 [hereinafter "Tuna/Dolphin II"]. 

General Agreements on Tariffs and Trade, opened for signature Oct. 30, 1947, 61 

St. A3, T.I.A.S. No. 1700, 55 U.N.T.S. 187 [hereinafter "GATT"]. 

S. 1460, 1 04th Con g., 1st Sess. ( 1995). 

H.R. 2856, 104th Cong., 1st Sess. (1995). 

This memorandum will not focus on whether the GATT inconsistencies raised by the 

Tuna/Dolphin I decision have been addressed by S.l460. To the extent that the two 

Tuna/Dolphin decisions are similar, no separate analysis is necessary. To the extent 

that they differ, it is generally agreed that a future GATT panel is more likely to 

follow the rationale of the Tuna/Dolphin II decision, being the later in time and more 

widely accepted decisionote However, as neither decision represents binding 

precedent, in principle, a future GATT panel would be free to ignore both decisions. 

Page 2 
Jrganization (WT0)1 is composed of numerous sub-Agreements. of which the GATT (with slight 

modifications) is only one. Other agreements, such as the Agreement on Technical Barriers to Trade 

(TBT).' could be relevant to a WTO challenge; however, an analysis of the consistency of S. 1460 

with each sub-Agreement of the WTO is beyond the scope of this memorandum. 

II. THE MMPA and the GATT 

At issue in the Tuna/Dolphin II challenge was what is referred to as the primary 

import prohibition of the MMPA. specifically. its "comparability" provisions.

1

° Found in section 

IOJ(a) of the MMPA. the primary import ban applies to fish imports from entire countries; not just 

to imports of particular fishing vessels .. The comparability requirement has two parts. It prohibits 

the importation into the United States of any yellowfin tuna or tuna products harvested in the Eastern 

Tropical Pacific (ETP) by vessels from nations: I) without a regulatory program protecting against 

the incidental kill or serious injury of marine mammals comparable to that of the United States, 11 

or 2) whose actual kill rate exceeds 1.25 times that of the United States fleet. 12 

Ill 

II 

ll 

Agreement Establishing the World Trade Organization, opened for signature April 

15, 1994, 33 I.L.M. 13; (1994) [hereinafter "WTO"]. Two reservations must be 

borne in mind when examining existing GATT panel decisions. First, panel 

decisions (even adopted decisions) have limited precedential value; the reasoning 

of decisions provides guidance to, but is not binding on, future panelists in future 

cases. The very different rationales behind the two Tuna/Dolphin decisions 

demonstrates well this jurisprudential structure of the GATT. Second, neither of the 

two Tuna/Dolphin disputes, produced a panel decision that was adopted by the 

Contracting Parties to the GATT; both decisions ultimately were blocked by the 

United States, in accordance with the rules of the then-existing GATT. 

Consequently, the value of those GATT panel decisions lies in the guidance they 

provide, not in any certainty they might offer. 

WTO. supra note 7, at app. I A. 

Also at issue in Tuna/Dolphin II were the provisions in the MMPA which banned the 

import of tuna or tuna products from nations that within the previous six months had 

imported tuna products from nations that were subject to the MMPA's primary 

embargo provisions (the "secondary import prohibition"). S. 1460 repeals these 

provisions in their entirety, so this memorandum does not discuss the secondary 

embargo issue. 

16 U.S.C. sec. 1371(aX2)(B). 

ld 

Page 3 
435 

A. The Embargo· Oyantitative Restriction or Internal Measure? 

The first substantive question addressed by the Tuna/Dolphin II panel was whether 

the MMPA's import prohibition constituted a quantitative restriction in violation of GATT Article 

XI or a point of importation measure consistent with GATT Article mu The panel reasoned that 

because the MMPA regulates the production of a product (i.e., the harvesting of tuna) rather than 

the product itself. the MMP A embargo was a quantitative restriction and thus violated Article XI." 

B. The Embargo as an Environmental Exception 

The Tuna/Dolphin II panel next turned to the exceptions to the GATT rules found 

in GATT Article XX paragraphs (b) and (g) (the environmental exceptions) to detennine whether 

the MMP A import bans were justified. The panel applied the following test: 

First, whether the MMP A import prohibition implemented a policy either to 

protect human, animal, or plant life or health, or to conserve exhaustible 

natural resources. Second, whether the MMP A provisions were either 

~to protect human animal or plant life or health, or primarily aimed 

~ the conservation of exhaustible natural resources, opf:rating in conjunction 

with parallel domestic policies. Finally, whether the MMP A provisions had 

been "applied in a manner which would constitute a means of arbitrary or 

unjustifiable discrimination between countries where the same conditions 

prevail, or a disguised restriction on trade."" 

With respect to the first part of the test, the Tuna/Dolphin II panel began by noting 

that because "dolphin stocks could potentially be exhausted, and that the basis of a policy to 

conserve them did not depend on whether at present their stocks were depleted, ... a policy to 

conserve dolphins was a policy to conserve an exhaustible natural resource. "16 

In addition, the panel observed that the natural resource to be protected need not be 

located within the territory of the party imposing the measure to protect the resource, so that, in 

principle, U.S. measures to protect dolphins in the ETP would fall within the range of policies 

protected by the environmental exceptions. 

11 

ll 

" 

•• 

17 

Tuna/Dolphin II, .mpra note 3, paras. 5.7-5.10. 

/d. para. 5.1 0. 

Sl!l! id, paras. 5.12, 5.29 (quoting from GATT, art. XX) . 

ld, para. 5.13. 

Sl!l! id., paras. 5.20. 5.33. 

Page4 
436 

With respect to the second pan of the environmental exceptions test, the 

Tuna/Dolphin II panel focused on the fact that the U.S. prohibition could result in "dolphin-safe" 

tuna being banned merely because the country from which the tuna came did not meet the U.S. 

comparability requirement. 11 

In concluding that the MMP A embargo was not protected by the environmental 

exceptions. the panel noted the impon ban "could not possibly, by itself, funher the United States 

conservation objectives"" or "the United States objective of protecting the life and health of 

dolphins."» Rather, the measures were taken "so as to force other countries to change their policies 

with respect to persons and things within their own jurisdiction" in order for the embargo to have 

its intended effect. 21 The Panel funher concluded that if Anicle XX were interpreted to permit 

contracting panies to take such trade measures, "the balance of rights and obligations among 

contracting panies, in particular the right of access to markets, would be seriously impaired. Under 

such an interpretation the General Agreement could no longer serve as a multilateral framework for 

trade among contracting parties. •ZZ Thus the Tuna/Dolphin II panel concluded that "measures taken 

so as to force other countries to change tbejr policies and that wm effectjye onlv if such chanm 

~·2.1 - a two-pronged test - could be considered neither "necessary to protect human, animal 

nor plant life or health" as requi~ by Anicle XX(b) nor "primarily aimed at the conservation of an 

exhaustible natural resource" as reqUired by Anicle XX(g). 24 

Since the panel had already determined that the MMP A embargo failed to meet the 

requirements of Anicles XX paragraphs (b) or (g). it did not consider on the third pan of the 

nvironmental exceptions test. 

11 

, 19 

21 

n 

2.' 

/J. para. 5.24. (The panel criticized the United States for prohibiting "impons from 

a country of any tuna, whether or not the particular tuna was harvested in a manner 

that harmed or could harm dolphins. as long as the country's tuna harvesting 

practices and policies were not comparable to those of the United States.") 

/d. 

lti .. para. 5.37. 

See id., paras. 5.24, 5.37. 

ld.. paras. 5.26. 5.38. 

/d., paras. 5.27, 5.39 (emphasis added). 

/d. 

PageS 
437 

Ill. S. 1460 Amendments to the MMPA 

The primary import prohibitions of the current MMPA, a unilateral U.S. measure, 

were held by the Tuna/Dolphin II GATT panel to have violated GATT Article XI's prohibition 

against quantitative restrictions because they attempted to condition market access on the adoption 

by a trading partner of U.S. performance standards. How well, if at all, does S. 1460 address this 

problem? In order to answer that question, the changes S. 1460 makes to the MMPA must first be 

identified. The question of whether these changes will be sufficient to overcome the objections 

raised in the Tuna/Dolphin II decision will then be discussed. 

A. The Comparability Standard 

The most important revision of S. 1460 is the replacement of the comparability 

standard of the MMP A with a standard established pursuant to a multilateral environmental 

agreement. Under the MMP A, in order for a nation to demonstrate the comparability of its regime, 

it must verity that it has a marine mammal protection program comparable to that of the U.S. and 

that its fleet has an average rate of incidental "taking" of marine mammals no greater than 25% over 

the U.S. fleet's actual rate oftaking.

2

' However, S. 1460 eliminates the U.S. comparability standard 

contained in section IOI(a) of the MMPA and replaces it with a requirement that exporting nations 

meet an international standard.

26 Although S. 1460 still makes access to the U.S. market contingent 

upon national performance, the performance requirements reflect the standards of an international 

organization. specifically, the commitments, objectives and requirements of the Panama 

.Jeclaration2

' and the existing international dolphin conservation program. 

The provisions ofS. 1460 would ban imports ofyellowfin tuna harvested with purse 

seine nets in the ETP and products therefrom if the imports are from countries that arl! not members 

of the Inter-American Tropical Tuna Commission (lA TIC) or have not implemented their 

obligations thereunder. In accordance with what S.l460 recognizes as obligations arising under 

membership in the international regime, S. 1460 also requires that the total annual dolphin mortality 

not exceed 5,000; that each vessel make annual progress toward the goal of zero dolphin mortality; 

25 

21 

As the U.S. fleet has killed no dolphin in the ETP tuna fishery during 1995, foreign 

fleets must match the no incidental kill rate if they are to import AllY tuna into the 

United States. 

See S.l460, supra note 5, sec. 4(b). The words "in excess of United States 

standards" have been left in the text of section IOI(a)(2) of the MMPA as revised by 

S.l460. However. as the new section IOI(a)(2)(B) appears to direct that the U.S. 

standards are to be interpreted as parallel to international standards on this issue, as 

a practical matter the two terms are synonymous. 

Tropical Tuna Commission, La Jolla Agreement. La Jolla Cal .• June 1992. 

Page6 
md that mortality limits for specified depleted stocks remain at or below 1994 levels. 

21 

B. S 1460 Revjsjons tbe GATT and Tuna/Dolohjn II 

Because the proposed legislation still regulates based on the means by which tuna 

is harvested. rather than on tuna as a product, the proposed revisions are unlikely to qualifY as a 

point ofimportation measure consistent with Article Ill of GATT, in which case they will be found 

to be a quantitative restriction prohibited under Article XI. Therefore, to be CO_!!!J!atible with U.S. 

obligations under the GAIT, S. 1460's revisions to the MMP A embargo provisions must fall within 

the scope of the environmental exceptions found in GATT Article XX paragraphs (b) or (g). 

It is possible that the MMPA, as amended by S. 1460, could still be vulnerable in an 

Article XX analysis as a law that "forces other countries to change their policies," and is therefore 

neither "necessary" to achieve the goals of paragraph (b) of Article XX nor "primarily aimed at" 

conserving an exhaustible natural resource, as required under paragraph (g). Nevertheless, a strong 

argument can be made that the proposed legislation does qualifY for protection under GATT Article 

XX. 

If challenged under GATT, the strength of the U.S. argument lies in the fact that the 

proposed legislation enlists the authority of and implements trade measures pursuant to an 

international accord and therefore significantly alters the factual attributes to which the 

Tuna/Dolphin II panel objected. Under S. 1460, the U.S. impetus for a country-wide embargo would 

·e predicated upon violation of the rules and regulations set by the international regime • a 

significant change from current U.S. law which embargoes all tuna from countries which do not 

have regulations comparable to the MMPA or which kill more dolphins than does the U.S. fleet. 

Therefore. any GAIT panel review of S. 1460 should discuss the new embargo provisions as an 

issue of first impressionote 

Concern for ensuring compliance with international regimes as a basis for employing 

trade measures should be viewed more favorably by GAIT panels than trade measures undertaken 

solely to impose standards achieved by the U.S. fleet on other countries. A panel should afford 

greater deference to trade measures established pursuant to international standards. Because the 

Panama Declaration has been accepted by parties representing a range of interests with respect to 

tuna harvesting in the ETP. it is mare likely than any one country acting on its own to promote tair, 

nondiscriminatory commitments, rules and regulations.

29 

ll 

29 

S.l460, supra noteS, sec. 4(b). 

.we Declaration of Panama, supra note 27. The Panama Declaration provides for a 

maximum annual dolphin mortality limit of S,OOO and generally commits to the goal 

of progressively reducing dolphin mortality to levels approaching zero, and if 

possible. eliminating dolphin mortality. It also undertakes to protect depleted species 

(continued ... ) 

Page7 
( ... continued) 

439 

from further decline by committing to restore all dolphin stocks to levels capable of 

producing maximum sustainable yield. Consequently, S.J460 imposes an export ban 

on foreign tuna if the lA TIC fails to enforce the dolphin mortality limits of the 

Panama Declaration or respect its commitment to the goal of progressively reducing 

dolphin mortality or fails to protect depleted stocks adequately. 

Although the Panama Declaration does not explicitly state that the mortality rate for 

depleted species may not exceed the 1994 level, even under current mortality levels, 

the two species specified as depleted in S.I460 continue to decline. See Anganuzzi, 

Buckland. "Preliminary results on the relative abundance of dolphins associated with 

tuna in the eastern Pacific Ocean for 1994," International Whaling Commission 

Document, SC/4 7/SM 5 I. The Panama Declaration therefore, has been interpreted 

by those who negotiated it to require an annual reduction in the mortality of depleted 

species. ~Press Releases, dated Oct. 1995, Nov. 12 1995, Dec. 22 1995, by Center 

for Marine Conservation, Environmental Defense Fund, Greenpeace, National 

Wildlife Federation, World Wildlife Fund. 

If, however, the Panama Declaration is interpreted to permit the killing of higher 

numbers of depleted dolphin species than were killed in 1994, this provision ofthe 

proposed legislation may not be consistent with past GATT panel rulings because it 

would not reflect the weaker requirements of the international regime. Under this 

circumstance, the United States would be required to harmonize its standards 

downwards to meet a lower international standard in order to be consistent with 

GATT. 

In addition, the Panama Declaration does not specifically require that each tuna 

fishing vessel reduce its total dolphin mortality limit by a statistically significant 

amount in each successive year. However, the Panama Declaration has an expressly 

stated goal of "eliminating dolphin mortality" in the eastern Pacific Ocean and 

includes a commitment from the signatory governments to "[establish a system that 

provides incentives to vessel captains to continue to reduce dolphin mortality, with 

the goal of eliminating dolphin mortality in the [eastern Pacific Ocean]." The 

requirement of S. 1460 that individual vessels reduce their total dolphin mortality 

constitutes a system established by the United States, a signatory government, to 

establish incentives for vessel captains to reduce dolphin mortality as called for in 

the Panama Declaration It is possible that a GATT panel would note that this 

particular measure is not explicitly required by the Panama Declaration and find that 

only measures so required deserve deference as multilateral environmental measures. 

However, some WTO Members, including the United States, have indicated support 

for a policy of providing deference to multilaterally-inspired domestic measures 

(continued ... ) 

Page 8 
440 

The Agreement Establishing the WTO has recognized a special status for 

international standards in other places. The Agreements on Technical Barriers to Trade and on the 

Application of Sanitary and Phytosanitary Measures, for example, create a presumption that 

measures adopted in accordance with an international standard do not create unnecessary obstacles 

to international trade;"' and. in the case ofthe SPS Agreement, that they are GATT consistene• 

Moreover, an Understanding on the Interpretation of Article XX that would establish a presumption 

of compliance with paragraphs (b) and (g) of Article XX for trade measures adopted pursuant to 

multilateral environmental agreements is under consideration right now in the WTO's Committee 

on Trade and Environment. 

Furthermore. S. 1460's revisions to the MMPA embargo provisions could also 

overcome the objection raised in Tuna/Dolphin II that the United States is restricting tuna imports 

"whether or not the particular tuna was harvested in a manner that harmed or could harm dolphins, 

and whether or not the country had tuna harvesting practices and policies that harmed or could harm 

dolphins." The logic would be that the proposed legislation, in contrast with the present embargo 

provisions, seeks to ensure compliance with an international regime. While some of the conditions 

of S. 1460's ban are not explicitly spelled out in the Panama Declaration, they reflect the 

Declaration's stated commitments, objectives and requirements. An international regime cannot be 

successful unless it enjoys wide subscription and members of the regime observe their obligations 

thereunder. Any departure from those obligations threatens the integrity of the entire agreement. 

Consequently, harvesting of tuna in a manner contrary to the international dolphin protection regime 

s harmful to dolphins. 

This is not to say that no argument could be made against the provisions contained 

inS. 1460. A country, for example, could argue that an import restriction cannot be based on the 

( ... continued) 

.. 

·" 

undertaken in furtherance of the explicit goals of a multilateral environmental 

agreement. As the issue of how to integrate WTO rules and the exigencies of 

multilateral environmental agreements remains unsettled, the United States should 

feel free to enact legislation that complies with the most environmentally progressive 

interpretation of the WTO rules. · 

As a final note, it is conceivable that the IATTC might establish or recognize 

different methods for achieving the continual reduction and eventual elimination of 

dolphin mortality. In such case, S. l460 might need to be revised in the future to 

continue to reflect the international standard established under the Panama 

Declaration in order to remain consistent with U.S. obligations under the GATT . 

See WTO, .mpra note 7, app. lA, art. 2.5. 

lcl. art. 3, para. 2. 

Page9 
441 

:1arvesting practices used by an entire country to produce tuna; therefore, the failure of a country to 

become a member of and comply with an international regime does not thereby mean that any harm 

occurred to dolphins in the course of purse seining for tuna. This counter-argument would be 

strengthened in so far as the legislation makes no provision for relieving from trade restrictions nonparties to the lA TTC that are, nevertheless, respecting its requirements. Many international 

environmental agreements that explicitly require parties to use trade measures against non-parties, 

such as the Montreal Protocol. also provide that those trade measures will not apply against nonparties that are found to be in compliance with the requirements of the Protocol. 

Essentially. any time a WTO member nation closes off access to its market for any 

reason, a GATT challenge could be raised. However, as the proposed legislation is consistent with 

an appropriate interpretation of the application of the GATT to environmental measures taken 

pursuant to a multilateral environmental agreement, and as it furthers domestic U.S. environmental 

policy, the U.S. Government should not withhold support for the bill on the grounds that a WTO 

panel might not find the bill to be consistent with u.s. obligations under the WTOn 

The last remaining issue in an environmental exceptions analysis will be whether the 

measures are "applied in a manner which would constitute a means of arbitrary or unjustifiable 

discrimination between countries where the same conditions prevail, or a disguised restriction on 

trade-""'·' The S. 1460 revisions to sec. IOI(a) of the MMPA ensures that all trading partners will be 

equally treated with respect to the requirements for selling ETP yellowfin tuna and tuna products 

in the United States, and the revisions go a step further by ensuring that individual fishers will be 

reated equally, and lastly that the requirements imposed upon our own nationals will, under most 

circumstances,34 be equal to or even more onerous than those imposed on foreign importers. 3

j 

. 1.1 

·" 

S. 1420, I 04th Cong., I st Sess. ( 1995), an opposing bill introduced by Stevens and 

Breaux. imposes a similar contingency for access to the U.S. market that examines 

the policies of trading partners. Under S.l420 countries must have "initiated steps" 

to join the lA TTC and be participating in the international dolphin conservation 

program. If these conditions are not met, a country-wide ban would be instituted. 

Apparently, the United States Trade Representative has reviewed this provision of 

S. l420 and concluded that the country-wide ban would be consistent with U.S. 

obligations under the WTO . 

GATT, supra note 4, art. XX; see also Tuna/Dolphin II, supra note 3, paras. 5.12, 

5.29. 

Should. however. the IATTC regime fail to implement its commitments and meet its 

goals, namely, to cap total annual dolphin mortality at 5,000, to make annual 

progress toward the goal of zero dolphin mortality, and to protect adequately 

specified depleted stocks. pursuant to S.l460, a ban would be imposed against all 

imports ofyellowfin tuna and tuna products from the ETP. As U.S. fishers would 

be able to continue selling their dolphin-safe tuna in the U.S. market, in this 

(continued ... ) 

Page 10 
;v. The International Dolphin Conservation Act 

The existing embargoes that gave rise to the Tuna/Dolphin II challenge have been 

implemented pursuant to section IOI(a) of the MMPA. As discussed in the previous section, S. 

1460 would alter that section of the MMPA in ways consistent with the GAIT. given the reasoning 

of the Tuna/Dolphin II decision. Since 1991 when the current embargoes were put in place, 

however. another U.S. law. the International Dolphin Conservation Act (IDCA), has been passed 

by Congress:"' The I DCA bans the sale and transport within U.S. territory of any tuna or tuna 

products that are not "dolphin-safe" (according to the definition of that term as provided in the 

Dolphin Protection Consumer Information Act).

31 

or: 

To be dolphin-safe. Eastern Tropical Pacific tuna must either: 

have been harvested on a vessel incapable of deploying purse seine nets on 

or to encircle dolphins; 

carry with it proPer certification that it was not harvested using a purse seine 

net intentionally deployed on or to encircle dolphin 31 

The question is whether these provisions of the !DCA are consistent with the rules 

of the GA TI. The Tuna/Dolphin II decision provides some guidance in answering this question, 

( ... continued) 

.\S 

J6 

.17 

circumstance the provisions ofS.I460 would impose more onerous restrictions on 

foreign imports than on domestic products. Thus, if the lA TIC regime fails, the 

S.l460-revised sec. IOI(a) of the MMPA would require the U.S. government to 

impose an import ban that probably would be inconsistent with the U.S. obligations 

under the WTO (as they have been interpreted by panel decisions to date), unless the 

U S also prohibits the sale of dolphin-safe tuna from ll S fishers ooeratina in the 

&.If. Given the improbability of an abandonment of the Panama Declaration, in 

practice, this inconsistency should not give rise to a conflict . 

United States law prohibits the "taking of any marine mammal which has been 

designated by the secretary as depleted." 16 U.S.C. sec. 1371 (a)(3)(B). In 1993. 

National Marine Fisheries Service designated the northeast offshore spotted and 

eastern spinner. two dolphin populations that Eastern Tropical Pacific fishers 

typically chase and capture, as depleted. NMFS Admin. Rep. U-93-18. Aug. 1993. 

International Dolphin Conservation Act, Pub. L. No. 102-523, 106 Stat. 3425 (1992) 

[hereinafter "I DCA"]. 

16 U.S.C. sec. 1385 (d). 

/d. sec. I 385 (d)(2)(8). 

Page II 
·,ut it is not conclusive. However, again, the more relevant inquiry is whether an argument can be 

made in support of the I DCA that both promotes a coherent interpretation of the GATT and furthers 

U.S. environmental policies and goals. 

In the event of a GATT challenge to the !DCA. the rationale and reasoning used by 

the Tuna/Dolphin II panel could be used favorably by the United States. In Tuna/Dolphin II, the 

panel reacted strongly against the fact that the MMPA embargo failed to distinguish between tuna 

caught by dolphin-safe and dolphin-unsafe practices. Instead, the MMP A embargo penalized all 

fishermen from countries whose laws and practices were not comparable to those of the United 

States. These measures. the panel reasoned, were "taken to force other countries to change their 

pol ides and [would be] effective only if such changes occurred. "

19 

The IDCA's provisions differ in a crucial respect from the current MMP A embargo 

proVIstons. The !DCA bans imports of tuna and tuna products based on the tuna harvesting methods 

used by individual fishers to harvest the actual tuna being imported . .a The IDCA does not embargo 

tuna or tuna products based on the policies and practices of the country of export, as did the ban at 

issue in the Tuna/Dolphin II challenge. In other words, the IDCA sets a producer-performance 

standard. whereas the current MMPA utilizes a country standard (i.e., .the country as a whole has to 

meet the performance standard of the U.S. fleet and the government has to adopt a dolphin 

protection regime comparable to the United States). Consequently, it cannot be argued that the 

IDCA's embargo aims to force other countries to change their policies, and thus the embargo should 

survive a Tuna/Dolphin II analysis. 

Given the Tuna/Dolphin II panel's reasoning. the IDCA's provisions should fit within 

the scope of the Article XX environmental exceptions. First, as determined in the Tuna/Dolphin II 

decision, the policy of protecting dolphins falls within the scope of Article XX, paragraphs (b) and 

(g). In addition, the IDCA's market prohibition should qualifY for the "necessary" and "primarily 

aimed at" requirements under paragraphs (b) and (g), respectively, because the IDCA is not aimed 

at forcing other countries to adopt new or to change existing government policies. Moreover, there 

are strong arguments that can be made to demonstrate that the IDCA's market prohibition falls 

within the scope of both paragraphs (b) and (g). 

Because Article XX(g) does not require that a trade measure be necessary or essential 

to conserve an exhaustible natural resource, but only "primarily aimed" both at the conservation of 

the resource and at rendering effective the restrictions on domestic production and consumption, 

paragraph (g) imposes a test that may be easier to meet than that of paragraph (b). It is also relevant 

to mention that in the Tuna/Dolphin I panel decision, the panel "noted that Article XX(g) allows 

each contracting party to adopt its own conservation policies. The conditions set out in Article 

XX(g) which limit resort to this exception ... refer to the trade measure requiring justification under 

.19 Tuna/Dolphin II, supra note 3, paras. 5.24, 5.37 . 

... See !DCA. supra note 38. 

Page 12 
444 

~rticle XX(g), not however to the conservation policies adopted by the contracting party. ••• 

Arguably, the !DCA embargo meets these criteria. There is internationally recognized scientific 

evidence to demonstrate that certain species of dolphin are continuing to decline" and that setting 

on dolphins increases the likelihood of dolphin mortality associated with tuna fishing. 

0 The !DCA 

embargo, which applies to any tuna producer -- domestic or foreign -- is primarily aimed at 

conserving dolphins, and it is a restriction on domestic consumption and production. 

Moreover, an argument can be made that these measures should qualifY as 

"necessary" under Article XX(b). There have been many meanings assigned to this term in Article 

XX(b ), including the one developed through the Tuna/Dolphin II decision that already has been 

discussed. Perhaps the most onerous of these requires a "necessary" measure to be one for which 

no alternative measure that is less inconsistent with other GATT provisions could reasonably be 

substituted." The United States could reasonably argue that protecting the life and health of 

dolphins requires that they close off U.S. markets to dolphin-unsafe tuna (so that the dominant U.S. 

market is not used as an impetus to kill dolphins), and that other measures to promote dolphin-safe 

tuna fishing would not be as effective as the IDCA embargo. Of course, it is always easy to imagine 

an alternative measure that would be less trade restrictive and to determine that such an alternative 

is a "reasonably available" means for a country to achieve its policy objectives. And a GATT panel 

might do so in the event of a challenge to the IDCA. 

Finally, the embargo is neither arbitrary nor unjustifiably discriminatory. It is not 

arbitrary because it furthers a legitimate U.S. policy -- protecting dolphins -- that fits within the 

;cope of protection envisaged by the environmental exceptions (the protection of animal life and 

health as well as the. conservation of an exhaustible natural resource). Moreover, it applies equally 

to all producers, that is, all producers may export and sell dolphin-safe tuna in the United States. 

Nor is the embargo unjustifiably discriminatory between countries. First, the 

discrimination is between producers, not countries. Second, the discrimination is justified by 

science, the precautionary principle and an expressed national desire to protect dolphins. Finally, 

., 

" 

4.1 

" 

Tuna/Dolphin II, supra note 3, para. 5.32. 

See Anganuzzi, supra note 29. The findings of this document are recognized by the 

Inter-American Tropical Tuna Commission 

See Tuna/Dolphin I, supra note 2, para. 5.43 . (Panel's favorable ruling on 

ecolabelling based in part on fact that U.S. legislation designed to combat frequent 

dolphin killing resulting from encirclement.) 

See 1989 Panel Report on "Thailand-Restrictions on Importation of and Internal 

Taxes on Cigarettes", DSIOIR, adopted on Nov. 7, 1990, 37S/200, 222, paras. 69-70. 

This interpretation of "necessity" was also used in the recent Venezuela Gas 

Decision. See Panel Report "United States-Standards for Reformulated and 

Conventional Gasoline," (undecided) Jan, 1996, para. 6.24. 

Page 13 
445 

the discrimination is applied evenhandedly; all trading partners and national producers are treated 

equally. 

Again. arguments can be made to the contrary,· and it is impossible to determine how 

a wro panel would ultimately rule. The fact, however, is that the IDCA's embargo furthers dearly 

held U.S. conservation and animal welfare values and a strong argument can be made that it 

qualifies for the protective cover of the environmental exceptions to the rules of the GATT. 

V. The Dolphin Protection Consumer Information Act 

A second U.S dolphin protection law, the Dolphin Protection Consumer Information 

Act (DPCIA)." was also at issue in Tuna/Dolphin I. In Tuna/Dolphin I, Mexico complained that 

the DPCIA restricted the use of"Dolphin-Safe" promotional labels on tuna products sold in the U.S 

by prohibiting its usage on tuna products harvested in the ETP by vessels using purse seine nets 

intentionally deployed to encircie dolphins. 

In that case the GATT panel ruled that the labeling requirements of the DPCIA were 

not inconsistent with U.S. GATT obligations." Therefore, and for the same reasons, it is likely that 

these labeling provisions will be found consistent with the rules of the GATT. 

VI. CONCLUSION 

For the foregoing reasons, S. 1460 should be viewed as consistent with U.S. 

obligations under the GATT. Its tuna importation requirements completely eliminate the 

comparability standard of the existing embargo of the MMPA. Further, because the proposed 

legislation ties the importation requirements to standards, rules and regulations that have been 

established internationally, these provisions of the proposed law should receive deference from a 

GATT panel in the event of a challenge. Moreover, the tuna market prohibitions of the IDCA 

should withstand GATT scrutiny by finding cover under the protective umbrella of Articles XX(b) 

and (g) of the GATT. Finally, the ecolabelling provisions of the existing DPCIA have already been 

found to be GATT consistent by the first Tuna/Dolphin panel. 

As a country we should support an interpretation of the GATT that safeguards our 

right to endorse and promote social policies. By passing legislation that reflects an environmentally 

progressive understanding of the GATT, the Congress will exercise an opportunity to shape the U.S. 

position on how Articie XX should be interpreted and on how far the long arm of the GATT should 

be allowed to reach into the fabric of our social structure and national sovereignty . 

. , Dolphin Protection Consumer Information Act, Pub. L. No. 101-627, 104 Stat. 4465 

( 1990). 

s~~ Tuna/Dolphin l, .wtpra note 2, para. 5.44. 

Page 14 
446 

Acknowledgment 

The author would like to thank Don Goldberg, Rob Housman, and Leestef!Y Jenkins for their 

valuable insights and comments. All errors, however, are solely the responsibility of the author. 

Page 15 
Testimony of Campbell Indnstries and MARCO Seattle, Inc. 

Submitted Before the Committee on Resources 

Hearing on International Dolphin Conservation Program Act 

February 29, 1996 

Campbell Industries and MARCO Seattle, Inc. submit this testimony in support of the 

Tuna/Dolphin legislation introduced by Congressman Gilchrest and Young. We agree with the 

merits of the arguments put forth by the fishermen and their associated organizations. This 

testimony is intended to supplement the record by highlighting the adverse economic impacts of 

current law on tuna fishery-dependent companies. 

Campbell Industries operates Campbell Shipyard in San Diego, California. Our shipyard 

has been the major builder and repairer of the American tuna fleet from the beginning of this 

industry in San Diego in the early 1900's. Campbell is known as the designer and builder of the 

most advanced tuna purse seine fishing vessels in the world. As a result, we have produced 73 

ships specifically designed for tuna fishing. Out of the last 19 tuna seiners built by Campbell, 17 

have been for export, making Campbell one of the leading exporters for all types of ships from 

the United States. 

As a result of the embargo imposed by the Marine Mammal Protection Act ("MMP A") 

and other regulations, the U.S. fleet has steadily decreased in size. In 1976, the U.S. fleet stood 

at 106 vessels, by 1996 the U.S. fleet in the Eastern Pacific stood at only six vessels. In the 
448 

meantime the foreign fleet has increased by 89 vessels. Notwithstanding the significant losses of 

the U.S. fleet, the fishing in the Eastern Pacific has also declined. The cumulative impact of the 

embargo has adversely affected the San Diego economy through declined port use, as well as 

significantly decreased new shipbuilding .opportunities for Campbell'. Campbell once employed 

250 shipyard workers to service the tuna fleet. The embargo has, to a large extent, cost these 

workers their jobs. 

San Diego was the home port for the American tuna fleet in Southern California All but 

a very few of the former San Diego fleet have gone to the Western Pacific. If the embargo is 

lifted, many are reportedly considering returning to the Eastern Pacific due to the abundance of 

large fish there and favorable economics of operating close to home. Vessels fishing in the 

Eastern Pacific return to San Diego annually for a variety of services including: haul-out and 

shipyard repairs; machinery and electronics service; resupplying of fuel, provisions and salt for 

making brine; and replacement of rigging and nets. The average tuna seiner spends 

approximately $900,000 per year for these services and supplies. The return of this fleet to San 

Diego would, therefore, be a significant improvement to the shipyards, suppliers, and merchants 

of San Diego. 

In regards to new construction, the American fleet has aged to the extent that the average 

vessel is now over 18 years old and no new vessels have been added in the last five years. If new 

seiners were built by U.S. fishermen, construction would likely take place at a U.S. shipyard. 

Campbell is well poised to be the construction shipyard of choice under this circumstance. 

2 
449 

Latin American tuna vessel owners have already expressed a desire to augment their 

fleets with new seiners, if the embargo is lifted. These owners, however, are not compelled to 

buy U.S. built ships and Campbell would be hard pressed to match the government subsidized 

financing available from our competitors in Europe, and the lower cost in Latin America and 

Asian shipyards. This is a competitive industry on the fishing grounds. Campbell ships have 

developed a reputation for being the top producers for their size in both the Atlantic and Pacific 

oceans. Campbell's technology is sought after as there is a considerable desire on the part of the 

tuna vessel owners to acquire the latest technology and design for their new ships. This will 

result in either new construction at our San Diego shipyard or, because of competitive necessity, 

license construction in other areas for which Campbell would receive remuneration. Our 

southern neighbors will not, however, do business with us if the U.S. continues to apply a "zero 

tolerance" approach to incidental take of dolphins that it is not prepared to impose on our other 

domestic fisheries. The double standard being applied to tuna fishermen is costing Campbell 

shipyard opportunities. 

A new tuna seiner costs between $1 S-23 million fuJJy outfitted. American designs and 

equipment are the standard of the industry, and are well poised to be specified in any new ship 

for this fishery, regardless of where it is constructed. MARCO Seattle is the major manufacturer 

of net hauling, fish handling, and deck machinery for the tuna purse seine fisheries throughout 

the world. The cost of a new deck machinery system by today's standards is approximately $1.5 

million per ship. This equipment will undoubtedly be utilized in new vessels for the Eastern 

Pacific fishery, in addition to other American made machinery, such as engines, generators, 

3 
450 

refrigeration, and pumps, which cost approximately $2.25 million per vessel. The economic 

benefits of tuna purse seine construction and retrofitting would therefore be shared by the San 

Diego economy and the Puget Sound economy should Eastern Tropical Pacific fisheries be 

restored and the embargo lifted. 

The revitalization of this important industry is, therefore, of economic benefit to our 

nation regardless of which countries within .the region choose to expand participation in the 

fishery as a result of lifting this embargo. Therefore, we strongly support the Tuna/Dolphin 

legislation and request swift passage. 

1. The following is a list of companies that at one time existed and flourished in San Diego due 

to the tuna industry. As a result of the virtual disappearance of the Eastern Pacific fleet, these 

businesses have also disappeared, which translates into lost jobs for the community. 

Marco Marine San Diego 

Diesel Electric 

Van Camp Sea Foods Cannery 

National Pump and Injector 

CasamarNet 

Caribbean Fishing Co. 

Tuna Clipper Marine 

Pacific Electric 

Morris Whaley, Inc 

Embarcadero Marine 

4 

San Diego Master Marine 

San Diego Master Marine 

Maurico and Sons 

Bumble Bee Canner 

Standard Meats 

Tuna Bird Helicopter 

Ets Hokin and Galvin 

Global Electric 

California Electric Works 

Global Pump Co. 
Possible Methods to Track Tuna Under the Panama Declaration 

The tracking process as represented below would allow for the venfiable tracking at tuna from the net to the can. Throughout this process there 

would be the necessity for penoclc spat checks and audits at records In order to enhance compliance with, and confidence In, the tracking 

system. i&&J .. _w:w:: am y,. 1 r 

Tuna Purse Seiner Dlve<s Releasing Dolphin The "Bockdown" Procedure.· "Broiler" Remcwlng Tuna From the Net. 

Segregation ond Tracking at Sea: 

• 

• 

• • • 

Following encirclement of the !uno and associated dolphins. the captain and crew engage in a dolphin release maneuver called the "backdown" procedure. during which the net is formed into a channel and crew in the net guide the dolphins out safely through the release panel. 

In the course of encirclement of the fish, the engineer begins the process of preparing the wells to receive the coming load of tuna. He 

circulates the brine In the well and chills n to freezing. As the fish ore added to the well. the temperature of the water rises for a period of 

ffme. 

After the tuna Is removed from the net (broiling), the observer estimates the quantity of tuna In that set. The observer verifies whether n was 

dolphin sate or not by observing the set nsetf, the tuna as n is removed from the net in the broiler, and the contents of the broiler as n is 

empffed Into the hopper and the bycotch removed. The Captain and Engineer also record the amount and dolphin sate status of tuna. as 

well as the particular well of the ship In which the tuna is stored. 

Observers regularly file coded radio reports with the LA.ITC or Notional Program providing data such as amount of tuna caught, any 

dolphin mortality by species and boot location. Some observers report weekly. while others report after every set. 

The tracking system would ensure that dolphin safe tuna is going into specific wells. A system could include the designation and sealing of 

wells that are ulllized to ensure the segregoffon of dolphin safe tuna from non-dolphin safe tuna. In addnion to freezing and sealing dolphin 

sate wells alter loading, the observer con further verify the proper well was loaded by checking for temperature variations in the well nself. ,.) "'!!!!.!!!I'? Once the Tuna Enters the Chutes. it is Directed to One of. in the Case the Ship Blueprint to the Left, Seventeen Sealable Wells" 

Tuna Slides from Hopper 

Through Hatch to the Chute 

SYstem Belo-H Decks. 

B-

'""'f e:· ..... 11000;' 

,

'.···. ,• .. '-l .. , ".-.· )JJI, ' / f:. 

'J ,_;• ' • t i 

. :. 

Tuna is Directed to an Unsealed 

Well. 

...... 
I' n l :Iii: 

Vessels Retum from a "Trip" to Unlood TlJ"'IO. 

As the Vessel retuns to Port. the Temperature 

in the Wells Is Raised, Causing the Tuna to 

Thaw and Rise to the Sl..rloce. 

Tuna In One of the Welo has 111awed 

SUghtty, has Risen to the Surfoce. and Is 

Off-l oaded Well-By-Well. 

Tuna are loaded Into Containers Marked 'Nith Trip 

Number, Weight. Well Number. Vessel. Dolphin Safe 

Deslgnotlon e>n« Certificate Refererces. 

Entrance to COld Storage Building Where TlXlO Is Kept Frozen In Their Marked Containers Until Ready fa 

Processing. 

Segregation and Tracking on Land: 

• The U.S. cannenes can track tuna fish through the required observer and captains' certificates which will identify dolphin safe tuna by well location and 

by weight of tuna in that segregcned well. The tuna is unloaded by well and placed into smaller containers marked with tnp number, weight, well 

number. vessel. dolphin safe and certificate references. The relevant paperwork accompanies the tuna through cold storage and 

processing. There would be furliher venficcnion of the integrity of the process through spot checks . 

• • 

In order to be labelet:J dolphin safe for the U.S. market, foreign nations would need to use comparable tracking systems. standards for 

such tracking could be developec by the signatory of the of Panama as part of the legally binding instrument to be fomnalized 

by January 31. 1996. 

The processor will ensure the tuna received is accompanied by the proper documentation referencing observer and captain of dolphin 

safe, as well as the chain of custody for thct tuna. This same process will be used if the tuna is divided among muttiple processors or is pre-processed 

into loins pnor to reaching the cannery. This process is followed to effectively track dolphin safe tuna and to assure food safety. 

• To keep separcne the processing of dolphin safe and non-dolphin safe tuna. canners have available such mechanisms as tuna by 

processing table, by processing dale, and/or by processing rack. This is already accomplished to scnisfy federal and company fooc safety mandates 

and is trackable by intemal record keeping. 

• The FDA requires thct each can of tuna be Identified with a code that indiccnes the dcte and en which the tuna was canned. u.s. and same foreign canners impnnt the cans with addiftonal enc rypted codes such as filler machine, seamer, dcne, yecr, species of fish, 

and balch penod (2-4 hour ftme-span). Canners have an economic incenftve to conftnue this encrypfton process so then, In the event of a recall, 

the amount of product recalled Is limijed, This lnfomnafton allows the product to be tracked back to the vessel of ongln after ij has been canned and 

Shippee. 

w...;;;; ..... ofS! 

¢l ¢1 ¢1 

Chunked Tuna Is Packed Into Cons by 

Encrypted Codes on the Seamer Machine Seals cans the Filler Machine. 

Top of o Con of Tuna. of Tuna with Encoded Lids 

Cooked Tuna Is Processed Into 

Loins and Moves to the Filler. 

¢1 

i -- I r 

.; -' :;·- (.._ .-

' I i I t L 

Rocks ore Placed In Lorge 

Pressure·Cookefs fOf Cooldng. 

segregated '!ldptln Safe' -

IWhln the COld 

u 

. 

.. 

"/ 

When T<.nO o Ready fa Processing, 

lndlvldJal Contai""' ore Taken 1o 

the C<rroery. T<.nO o Tracked and 

Processed by wei so that Losses 

ae t.linfrrjzed Food sote1y Issues 

Should Arl<e. Shown above, T<.nO o 

Cleoned and placed In Rocks fa £:2 Cooking. 
100 

453 

TUNA. COMMISSION 

EASTERN PACifiC TElLOWFIN TUNA 

HGUlATOIY AREA 

UNITtO $TAT(S 

FIGV&E 1. Commission .Regulatory Area <CRA) tor eastern Pacific: yeUow11n tuna. 

FIGtJR.A 1. Area Reglamentaria de la Comi;i6n (ARC> para el al(Jn &leta amarilla 

del Pacific;o oriental. 
454 

408 C Street, N .E. Washington, D.C. 20002 202·547 · 1141 

Rep. iim SaXton 

Chair 

House Resources Committee 

Subcommittee on Fisheries, Wildlife, and Oceans 

805 O'Neil HOB 

U.S. House of Representatives 

Washington, .DC '20510 

Dear Rep. Saxton: 

February 29, 1996 

The Sierra Club supports the testimony provided by the Dolphin Safe· Fair Trade 

Campaign regarding proposed legislation to modify U.S. dolphin conservation laWs. 

Specifically, the Sierra Club Supports the Miller International Dolphin Conservation 

Act, H.R. i8S6, because it: . . 

• maintains tho current strict federal defmition of "dolphin safe;" 

• rewards foreign dolphin-safe tuna fishers by opening up U.S. markets to their catch; 

• requires annual reductions in the dolphin kill quota authorized by the lA TIC; 

• reinforces the lA TIC's Dolphin Conservation Program, using the U.S. market to 

continue incentives for fishers to fish dolphin-safe; and 

• sends a strong message that U.S. environmental, healtii, consumer safety and animal 

protection laws will not be repealed whenever they ap~ to conflict with U.S. trade 

obligations. 

''When we uy to pick out mything by itself, "" fmd it hitched to e>aything ebc in the univene." }olm Mllir 

National Headquaners: 730 Polk Saeet, San Frmcioco, California 94109 (4U) 776-2211 .· 

fiAIHTf.o ON lJN&EACHEO 100'IIIo POST .coNSIJYfA ~ASTE 
SPORTFISHING ASSOCIATION OF CALIFORNIA 

-C.F!Zft:HD -

2t17c...-~ 

SAN DUICIO. Ca~ fZIOO 

~lfiUH<>s PI\XlSI"U6'1115 

February 23, 1996 

The Honorable Jamea Saxon, Chairman 

Subcommittee on. Fiaberiea, Wildlife ~ oceans 105 O'Neill Kouae Office Building 

Washington! PC 30515 

Subject: Support for HR 2123 Clnternational DOlphin 

Conse:rvation Program Act). 

Dear Chairman Saxon • Membera: 

'\ll'.~t..,.:on 

--

The Sportfishing Association of C&lifornia (SAC) has since 

1972 represented the interests of the majority of the 

commercial passenger fishing vessel (CPFV) fleet in southern 

California. Over half of the fleet of SAC vessels operate 

seasonally in the waters of Mexico's BiZ, and SAC has enjoyed 

the privilege of fiahing within theae vatera for over half a century. It is for this reason that SAC vishea to express 

its concern over the inequity that exists in U.S. law 

regar4ing the commercial take of tuna found in aasociation 

with dolphina in the eaatern tropical pacific, and its 

support for HR 2823 (The International Dolphin Conservation 

Progr&lll) • 

The United States ia at a croaaroads regar4ing ita 

credibility with the other tuna fiahing nations of the world. 

While the court-mandated tuna embargo vas not the result of u .s . government action, it was widely perceived as a "United 

States• deciaion. To reatore our credibility, the Congress 

must paaa anc1 the President must aign a bill CHR 2833) to 

replace the outdated language in the Marine Mammal Protection 

Act (MMPA) with lllllg\Uige fOWI4 in the 'Panall\& Declaration' , an agreement aigned by all the tuna fishing nations involved 

it the eaatern tropical Pacific tWla fishery. As the Panama 

Declaration furthers the efforta ot the IATTC' a 'Dolphin 

Conservation Prosram•, it will continue, under U.S. law, 

those incentive& to reduce dolphin mortalities in the 

fishery. 
456 

HJl 2823 2 

Pinally, we must crank scae reality into the current 

definition of 'Dolphin-safe'. At present, the definition 

fatally penalizes fishermen vho for years have worked to 

reduce dolphin mortalities. ~ 2823 redefines 'dolphin-~afe ' 

in an environmentally sensitive fashion that awards fishermen 

for their efforts. In addition, tbe current definition 

continues a ~latant 'd~le-standard' regarding incidental 

take of marine mammals in U.S. fisheries. If we are to 

regain our ere4ibility in the world fisheries arena, we have 

to re4efine 'dolphin-.safe' to place incidental dolphin take 

within the sideboards of accepted incidental take of marine 

'lll&lllllals .a allowed in other U.S . fisheries. HR 2823 does 

this in the fashion laid out in the Panama Declaration. 

SAC thanks you for your consideration of our concerns, and we encourage you to support HR 2823. 

0 

ISBN 0-16-052646-9 

90000