[House Report 105-74]
[From the U.S. Government Publishing Office]
105th Congress Rept. 105-74
HOUSE OF REPRESENTATIVES
1st Session Part 1
_______________________________________________________________________
INTERNATIONAL DOLPHIN CONSERVATION PROGRAM ACT
_______
April 24, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 408]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 408) 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, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``International
Dolphin Conservation Program Act''.
(b) References to Marine Mammal Protection Act.--Except as otherwise
expressly provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or
other provision of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1361 et seq.).
SEC. 2. PURPOSE AND FINDINGS.
(a) Purpose.--The purposes of this Act are--
(1) to give effect to the Declaration of Panama, signed
October 4, 1995, by the Governments of Belize, Colombia, Costa
Rica, Ecuador, France, Honduras, Mexico, Panama, Spain, the
United States of America, Vanuatu, and Venezuela, including the
establishment of the International Dolphin Conservation
Program, relating to the protection of dolphins and other
species, and the conservation and management of tuna in the
eastern tropical Pacific Ocean;
(2) to recognize that nations fishing for tuna in the eastern
tropical Pacific Ocean have achieved significant reductions in
dolphin mortality associated with that fishery; and
(3) to eliminate the ban on imports of tuna from those
nations that are in compliance with the International Dolphin
Conservation Program.
(b) Findings.--The Congress finds the following:
(1) The nations that fish for tuna in the eastern tropical
Pacific Ocean have achieved significant reductions in dolphin
mortalities associated with the purse seine fishery from
hundreds of thousands annually to fewer than 5,000 annually.
(2) The provisions of the Marine Mammal Protection Act of
1972 that impose a ban on imports from nations that fish for
tuna in the eastern tropical Pacific Ocean have served as an
incentive to reduce dolphin mortalities.
(3) Tuna canners and processors of the United States have led
the canning and processing industry in promoting a dolphin-safe
tuna market.
(4) 12 signatory nations to the Declaration of Panama,
including the United States, agreed under that Declaration to
require that the total annual dolphin mortality in the purse
seine fishery for yellowfin tuna in the eastern tropical
Pacific Ocean not exceed 5,000, with a commitment and objective
to progressively reduce dolphin mortality to a level
approaching zero through the setting of annual limits.
SEC. 3. DEFINITIONS.
Section 3 (16 U.S.C. 1362) is amended by adding at the end the
following new paragraphs:
``(28) The term `International Dolphin Conservation Program'
means the international program established by the agreement
signed in La Jolla, California, in June 1992, as formalized,
modified, and enhanced in accordance with the Declaration of
Panama, that requires--
``(A) that the total annual dolphin mortality in the
purse seine fishery for yellowfin tuna in the eastern
tropical Pacific Ocean not exceed 5,000, with the
commitment and objective to progressively reduce
dolphin mortality to levels approaching zero through
the setting of annual limits;
``(B) the establishment of a per-stock per-year
mortality limit for dolphins, for each year through the
year 2000, of between 0.2 percent and 0.1 percent of
the minimum population estimate;
``(C) beginning with the year 2001, that the per-
stock per-year mortality of dolphin not exceed 0.1
percent of the minimum population estimate;
``(D) that if the mortality limit set forth in
subparagraph (A) is exceeded, all sets on dolphins
shall cease for the fishing year concerned;
``(E) that if the mortality limit set forth in
subparagraph (B) or (C) is exceeded sets on such stock
and any mixed schools containing members of such stock
shall cease for that fishing year;
``(F) in the case of subparagraph (B), to conduct a
scientific review and assessment in 1998 of progress
toward the year 2000 objective and consider
recommendations as appropriate; and
``(G) in the case of subparagraph (C), to conduct a
scientific review and assessment regarding that stock
or those stocks and consider further recommendations;
``(H) the establishment of a per-vessel maximum
annual dolphin mortality limit consistent with the
established per-year mortality caps; and
``(I) the provision of a system of incentives to
vessel captains to continue to reduce dolphin
mortality, with the goal of eliminating dolphin
mortality.
``(29) The term `Declaration of Panama' means the declaration
signed in Panama City, Republic of Panama, on October 4,
1995.''.
SEC. 4. AMENDMENTS TO TITLE I.
(a) Authorization for Incidental Taking.--Section 101(a)(2) (16
U.S.C. 1371(a)(2)) is amended as follows:
(1) By inserting after the first sentence ``Such
authorizations may also be granted under title III with respect
to the yellowfin tuna fishery of the eastern tropical Pacific
Ocean, subject to regulations prescribed under that title by
the Secretary without regard to section 103.''.
(2) By striking the semicolon in the second sentence and all
that follows through ``practicable''.
(b) Documentary Evidence.--Section 101(a) (16 U.S.C. 1371(a)) is
amended by striking so much of paragraph (2) as follows subparagraph
(A) and as precedes subparagraph (C) and inserting:
``(B) in the case of yellowfin tuna harvested with
purse seine nets in the eastern tropical Pacific Ocean,
and products therefrom, to be exported to the United
States, shall require that the government of the
exporting nation provide documentary evidence that--
``(i) the tuna or products therefrom were not
banned from importation under this paragraph
before the effective date of the International
Dolphin Conservation Program Act;
``(ii) the tuna or products therefrom were
harvested after the effective date of the
International Dolphin Conservation Program Act
by vessels of a nation which participates in
the International Dolphin Conservation Program,
such harvesting nation is either a member of
the Inter-American Tropical Tuna Commission or
has initiated (and within 6 months thereafter
completed) all steps (in accordance with
article V, paragraph 3 of the Convention
establishing the Inter-American Tropical Tuna
Commission) necessary to become a member of
that organization;
``(iii) such nation is meeting the
obligations of the International Dolphin
Conservation Program and the obligations of
membership in the Inter-American Tropical Tuna
Commission, including all financial
obligations;
``(iv) the total dolphin mortality permitted
under the International Dolphin Conservation
Program will not exceed 5,000 in 1997, or in
any year thereafter, consistent with the
commitment and objective of progressively
reducing dolphin mortality to levels
approaching zero through the setting of annual
limits and the goal of eliminating dolphin
mortality; and
``(v) the tuna or products therefrom were
harvested after the effective date of the
International Dolphin Conservation Program Act
by vessels of a nation which participates in
the International Dolphin Conservation Program,
and such harvesting nation has not vetoed the
participation by any other nation in such
Program.''.
(c) Acceptance of Evidence Coverage.--Section 101 (16 U.S.C. 1371) is
amended by adding at the end the following new subsections:
``(d) Acceptance of Documentary Evidence.--The Secretary shall not
accept documentary evidence referred to in section 101(a)(2)(B) as
satisfactory proof for purposes of section 101(a)(2) if--
``(1) the government of the harvesting nation does not
provide directly or authorize the Inter-American Tropical Tuna
Commission to release complete and accurate information to the
Secretary to allow a determination of compliance with the
International Dolphin Conservation Program;
``(2) the government of the harvesting nation does not
provide directly or authorize the Inter-American Tropical Tuna
Commission to release complete and accurate information to the
Secretary in a timely manner for the purposes of tracking and
verifying compliance with the minimum requirements established
by the Secretary in regulations promulgated under subsection
(f) of the Dolphin Protection Consumer Information Act (16
U.S.C. 1385(f)); or
``(3) after taking into consideration this information,
findings of the Inter-American Tropical Tuna Commission, and
any other relevant information, including information that a
nation is consistently failing to take enforcement actions on
violations which diminish the effectiveness of the
International Dolphin Conservation Program, the Secretary, in
consultation with the Secretary of State, finds that the
harvesting nation is not in compliance with the International
Dolphin Conservation Program.
``(e) Exemption.--The provisions of this Act shall not apply to a
citizen of the United States who incidentally takes any marine mammal
during fishing operations outside the United States exclusive economic
zone (as defined in section 3(6) of the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1802(6))) when employed on a foreign
fishing vessel of a harvesting nation which is in compliance with the
International Dolphin Conservation Program.''.
(d) Annual Permits.--Section 104(h) is amended to read as follows:
``(h) Annual Permits.--(1) Consistent with the regulations prescribed
pursuant to section 103 and the requirements of section 101, the
Secretary may issue an annual permit to a United States vessel for the
taking of such marine mammals, and shall issue regulations to cover the
use of any such annual permits.
``(2) Annual permits described in paragraph (1) for the incidental
taking of marine mammals in the course of commercial purse seine
fishing for yellowfin tuna in the eastern tropical Pacific Ocean shall
be governed by section 304, subject to the regulations issued pursuant
to section 302.''.
(e) Revisions and Funding Sources.--Section 108(a)(2) (16 U.S.C.
1378(a)(2)) is amended as follows:
(1) By striking ``and'' at the end of subparagraph (A).
(2) By adding at the end the following:
``(C) discussions to expeditiously negotiate
revisions to the Convention for the Establishment of an
Inter-American Tropical Tuna Commission (1 UST 230,
TIAS 2044) which will incorporate conservation and
management provisions agreed to by the nations which
have signed the Declaration of Panama;
``(D) a revised schedule of annual contributions to
the expenses of the Inter-American Tropical Tuna
Commission that is equitable to participating nations;
and
``(E) discussions with those countries participating
or likely to participate in the International Dolphin
Conservation Program, to identify alternative sources
of funds to ensure that needed research and other
measures benefiting effective protection of dolphins,
other marine species, and the marine ecosystem;''.
(f) Repeal of NAS Review.--Section 110 (16 U.S.C. 1380) is amended as
follows:
(1) By redesignating subsection (a)(1) as subsection (a).
(2) By striking subsection (a)(2).
(g) Labeling of Tuna Products.--Paragraph (1) of section 901(d) of
the Dolphin Protection Consumer Information Act (16 U.S.C. 1385(d)(1))
is amended to read as follows:
``(1) It is a violation of section 5 of the Federal Trade Commission
Act for any producer, importer, exporter, distributor, or seller of any
tuna product that is exported from or offered for sale in the United
States to include on the label of that product the term `Dolphin Safe'
or any other term or symbol that falsely claims or suggests that the
tuna contained in the product was harvested using a method of fishing
that is not harmful to dolphins if the product contains any of the
following:
``(A) Tuna harvested on the high seas by a vessel engaged in
driftnet fishing.
``(B) Tuna harvested in the eastern tropical Pacific Ocean by
a vessel using purse seine nets unless the tuna is considered
dolphin safe under paragraph (2).
``(C) Tuna harvested outside the eastern tropical Pacific
Ocean by a vessel using purse seine nets unless the tuna is
considered dolphin safe under paragraph (3).
``(D) Tuna harvested by a vessel engaged in any fishery
identified by the Secretary pursuant to paragraph (4) as having
a regular and significant incidental mortality of marine
mammals.''.
(h) Dolphin Safe Tuna.--(1) Paragraph (2) of section 901(d) of the
Dolphin Protection Consumer Information Act (16 U.S.C. 1385(d)(2)) is
amended to read as follows:
``(2)(A) For purposes of paragraph (1)(B), a tuna product that
contains tuna harvested in the eastern tropical Pacific Ocean by a
vessel using purse seine nets is dolphin safe if the vessel is of a
type and size that the Secretary has determined, consistent with the
International Dolphin Conservation Program, is not capable of deploying
its purse seine nets on or to encircle dolphins, or if the product
meets the requirements of subparagraph (B).
``(B) For purposes of paragraph (1)(B), a tuna product that contains
tuna harvested in the eastern tropical Pacific Ocean by a vessel using
purse seine nets is dolphin safe if the product is accompanied by a
written statement executed by the captain of the vessel which harvested
the tuna certifying that no dolphins were killed during the sets in
which the tuna were caught and the product is accompanied by a written
statement executed by--
``(i) the Secretary or the Secretary's designee;
``(ii) a representative of the Inter-American Tropical Tuna
Commission; or
``(iii) an authorized representative of a participating
nation whose national program meets the requirements of the
International Dolphin Conservation Program,
which states that there was an observer approved by the International
Dolphin Conservation Program on board the vessel during the entire trip
and documents that no dolphins were killed during the sets in which the
tuna concerned were caught.
``(C) The statements referred to in clauses (i), (ii), and (iii) of
subparagraph (B) shall be valid only if they are endorsed in writing by
each exporter, importer, and processor of the product, and if such
statements and endorsements comply with regulations promulgated by the
Secretary which would provide for the verification of tuna products as
dolphin safe.''.
(2) Subsection (d) of section 901 of the Dolphin Protection Consumer
Information Act (16 U.S.C. 1385(d)) is amended by adding the following
new paragraphs at the end thereof:
``(3) For purposes of paragraph (1)(C), tuna or a tuna product that
contains tuna harvested outside the eastern tropical Pacific Ocean by a
vessel using purse seine nets is dolphin safe if--
``(A) it is accompanied by a written statement executed by
the captain of the vessel certifying that no purse seine net
was intentionally deployed on or to encircle dolphins during
the particular voyage on which the tuna was harvested; or
``(B) in any fishery in which the Secretary has determined
that a regular and significant association occurs between
marine mammals and tuna, it is accompanied by a written
statement executed by the captain of the vessel and an
observer, certifying that no purse seine net was intentionally
deployed on or to encircle marine mammals during the particular
voyage on which the tuna was harvested.
``(4) For purposes of paragraph (1)(D), tuna or a tuna product that
contains tuna harvested in a fishery identified by the Secretary as
having a regular and significant incidental mortality or serious injury
of marine mammals is dolphin safe if it is accompanied by a written
statement executed by the captain of the vessel and, where determined
to be practicable by the Secretary, an observer participating in a
national or international program acceptable to the Secretary
certifying that no marine mammals were killed in the course of the
fishing operation or operations in which the tuna were caught.
``(5) No tuna product may be labeled with any reference to dolphins,
porpoises, or marine mammals, unless such product is labeled as dolphin
safe in accordance with this subsection.''.
(i) Tracking and Verification.--Subsection (f) of section 901 of the
Dolphin Protection Consumer Information Act (16 U.S.C. 1385(f)) is
amended to read as follows:
``(f) Tracking and Verification.--The Secretary, in consultation with
the Secretary of the Treasury, shall issue regulations to implement
subsection (d) not later than 3 months after the date of enactment of
the International Dolphin Conservation Program Act. In the development
of these regulations, the Secretary shall establish appropriate
procedures for ensuring the confidentiality of proprietary information
the submission of which is voluntary or mandatory. Such regulations
shall, consistent with international efforts and in coordination with
the Inter-American Tropical Tuna Commission, establish a domestic and
international tracking and verification program that provides for the
effective tracking of tuna labeled under subsection (d), including but
not limited to each of the following:
``(1) Specific regulations and provisions addressing the use
of weight calculation for purposes of tracking tuna caught,
landed, processed, and exported.
``(2) Additional measures to enhance observer coverage if
necessary.
``(3) Well location and procedures for monitoring,
certifying, and sealing holds above and below deck or other
equally effective methods of tracking and verifying tuna
labeled under subsection (d).
``(4) Reporting receipt of and database storage of radio and
facsimile transmittals from fishing vessels containing
information related to the tracking and verification of tuna,
and the definition of sets.
``(5) Shore-based verification and tracking throughout the
transshipment and canning process by means of Inter-American
Tropical Tuna Commission trip records or otherwise.
``(6) Provisions for annual audits and spot checks for
caught, landed, and processed tuna products labeled in
accordance with subsection (d).
``(7) The provision of timely access to data required under
this subsection by the Secretary from harvesting nations to
undertake the actions required in paragraph (6) of this
subsection.''.
SEC. 5. AMENDMENTS TO TITLE III.
(a) Heading.--The heading of title III is amended to read as follows:
``TITLE III--INTERNATIONAL DOLPHIN CONSERVATION PROGRAM''.
(b) Findings.--Section 301 (16 U.S.C. 1411) is amended as follows:
(1) In subsection (a), by amending paragraph (4) to read as
follows:
``(4) Nations harvesting yellowfin tuna in the eastern
tropical Pacific Ocean have demonstrated their willingness to
participate in appropriate multilateral agreements to reduce,
with the goal of eliminating dolphin mortality in that fishery.
Recognition of the International Dolphin Conservation Program
will assure that the existing trend of reduced dolphin
mortality continues; that individual stocks of dolphins are
adequately protected; and that the goal of eliminating all
dolphin mortality continues to be a priority.''.
(2) In subsection (b), by amending paragraphs (2) and (3) to
read as follows:
``(2) support the International Dolphin Conservation Program
and efforts within the Program to reduce, with the goal of
eliminating, the mortality referred to in paragraph (1);
``(3) ensure that the market of the United States does not
act as an incentive to the harvest of tuna caught with
driftnets or caught by purse seine vessels in the eastern
tropical Pacific Ocean that are not operating in compliance
with the International Dolphin Conservation Program;''.
(c) International Dolphin Conservation Program.--Section 302 (16
U.S.C. 1412) is amended to read as follows:
``SEC. 302. AUTHORITY OF THE SECRETARY.
``(a) Regulations To Implement Program Regulations.--(1) The
Secretary shall issue regulations to implement the International
Dolphin Conservation Program.
``(2)(A) Not later than 3 months after the date of enactment of this
section, the Secretary shall issue regulations to authorize and govern
the incidental taking of marine mammals in the eastern tropical Pacific
Ocean, including any species of marine mammal designated as depleted
under this Act but not listed as endangered or threatened under the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), by vessels of
the United States participating in the International Dolphin
Conservation Program.
``(B) Regulations issued under this section shall include
provisions--
``(i) requiring observers on each vessel;
``(ii) requiring use of the backdown procedure or other
procedures equally or more effective in avoiding mortality of
marine mammals in fishing operations;
``(iii) prohibiting intentional deployment of nets on, or
encirclement of, dolphins in violation of the International
Dolphin Conservation Program;
``(iv) requiring the use of special equipment, including
dolphin safety panels in nets, monitoring devices as identified
by the International Dolphin Conservation Program, as
practicable, to detect unsafe fishing conditions before nets
are deployed by a tuna vessel, operable rafts, speedboats with
towing bridles, floodlights in operable condition, and diving
masks and snorkels;
``(v) ensuring that the backdown procedure during the
deployment of nets on, or encirclement of, dolphins is
completed and rolling of the net to sack up has begun no later
than 30 minutes after sundown;
``(vi) banning the use of explosive devices in all purse
seine operations;
``(vii) establishing per vessel maximum annual dolphin
mortality limits, total dolphin mortality limits and per-stock
per-year mortality limits, in accordance with the International
Dolphin Conservation Program;
``(viii) preventing the intentional deployment of nets on, or
encirclement of, dolphins after reaching either the vessel
maximum annual dolphin mortality limits, total dolphin
mortality limits, or per-stock per-year mortality limits;
``(ix) preventing the fishing on dolphins by a vessel without
an assigned vessel dolphin mortality limit;
``(x) allowing for the authorization and conduct of
experimental fishing operations, under such terms and
conditions as the Secretary may prescribe, for the purpose of
testing proposed improvements in fishing techniques and
equipment (including new technology for detecting unsafe
fishing conditions before nets are deployed by a tuna vessel)
that may reduce or eliminate dolphin mortality or do not
require the encirclement of dolphins in the course of
commercial yellowfin tuna fishing;
``(xi) authorizing fishing within the area covered by the
International Dolphin Conservation Program by vessels of the
United States without the use of special equipment or nets if
the vessel takes an observer and does not intentionally deploy
nets on, or encircle, dolphins, under such terms and conditions
as the Secretary may prescribe; and
``(xii) containing such other restrictions and requirements
as the Secretary determines are necessary to implement the
International Dolphin Conservation Program with respect to
vessels of the United States.
``(C) The Secretary may make such adjustments as may be appropriate
to the requirements of subparagraph (B) that pertain to fishing gear,
vessel equipment, and fishing practices to the extent the adjustments
are consistent with the International Dolphin Conservation Program.
``(b) Consultation.--In developing regulations under this section,
the Secretary shall consult with the Secretary of State, the Marine
Mammal Commission and the United States Commissioners to the Inter-
American Tropical Tuna Commission appointed under section 3 of the Tuna
Conventions Act of 1950 (16 U.S.C. 952).
``(c) Emergency Regulations.--(1) If the Secretary determines, on the
basis of the best scientific information available (including that
obtained under the International Dolphin Conservation Program) that the
incidental mortality and serious injury of marine mammals authorized
under this title is having, or is likely to have, a significant adverse
effect on a marine mammal stock or species, the Secretary shall take
actions as follows--
``(A) notify the Inter-American Tropical Tuna Commission of
the Secretary's findings, along with recommendations to the
Commission as to actions necessary to reduce incidental
mortality and serious injury and mitigate such adverse impact;
and
``(B) prescribe emergency regulations to reduce incidental
mortality and serious injury and mitigate such adverse impact.
``(2) Prior to taking action under paragraph (1) (A) or (B), the
Secretary shall consult with the Secretary of State, the Marine Mammal
Commission, and the United States Commissioners to the Inter-American
Tropical Tuna Commission.
``(3) Emergency regulations prescribed under this subsection--
``(A) shall be published in the Federal Register, together
with an explanation thereof; and
``(B) shall remain in effect for the duration of the
applicable fishing year; and
The Secretary may terminate such emergency regulations at a date
earlier than that required by subparagraph (B) by publication in the
Federal Register of a notice of termination, if the Secretary
determines that the reasons for the emergency action no longer exist.
``(4) If the Secretary finds that the incidental mortality and
serious injury of marine mammals in the yellowfin tuna fishery in the
eastern tropical Pacific Ocean is continuing to have a significant
adverse impact on a stock or species, the Secretary may extend the
emergency regulations for such additional periods as may be necessary.
``(d) Research.--The Secretary shall, in cooperation with the nations
participating in the International Dolphin Conservation Program and
with the Inter-American Tropical Tuna Commission, undertake or support
appropriate scientific research to further the goals of the
International Dolphin Conservation Program. Such research may include
but shall not be limited to any of the following:
``(1) Devising cost-effective fishing methods and gear so as
to reduce, with the goal of eliminating, the incidental
mortality and serious injury of marine mammals in connection
with commercial purse seine fishing in the eastern tropical
Pacific Ocean.
``(2) Developing cost-effective methods of fishing for mature
yellowfin tuna without deployment of nets on, or encirclement
of, dolphins or other marine mammals.
``(3) Carrying out stock assessments for those marine mammal
species and marine mammal stocks taken in the purse seine
fishery for yellowfin tuna in the eastern tropical Pacific
Ocean, including species or stocks not within waters under the
jurisdiction of the United States.
``(4) Studying the effects of chase and encirclement on the
health and biology of dolphin and individual dolphin
populations incidentally taken in the course of purse seine
fishing for yellowfin tuna in the eastern tropical Pacific
Ocean. There are authorized to be appropriated to the
Department of Commerce $1,000,000 to be used by the Secretary,
acting through the National Marine Fisheries Service, to carry
out this paragraph. Upon completion of the study, the Secretary
shall submit a report containing the results of the study,
together with recommendations, to the Congress and to the
Inter-American Tropical Tuna Commission.
``(5) Determining the extent to which the incidental take of
nontarget species, including juvenile tuna, occurs in the
course of purse seine fishing for yellowfin tuna in the eastern
tropical Pacific Ocean, the geographic location of the
incidental take, and the impact of that incidental take on tuna
stocks, and nontarget species.
The Secretary shall include a description of the annual results of
research carried out under this subsection in the report required under
section 303.''.
(d) Reports.--Section 303 (16 U.S.C. 1414) is amended to read as
follows:
``SEC. 303. REPORTS BY THE SECRETARY.
``Notwithstanding section 103(f), the Secretary shall submit an
annual report to the Congress which includes each of the following:
``(1) The results of research conducted pursuant to section
302.
``(2) A description of the status and trends of stocks of
tuna.
``(3) A description of the efforts to assess, avoid, reduce,
and minimize the bycatch of juvenile yellowfin tuna and other
nontarget species.
``(4) A description of the activities of the International
Dolphin Conservation Program and of the efforts of the United
States in support of the Program's goals and objectives,
including the protection of dolphin populations in the eastern
tropical Pacific Ocean, and an assessment of the effectiveness
of the Program.
``(5) Actions taken by the Secretary under subsections
(a)(2)(B) and (d) of section 101.
``(6) Copies of any relevant resolutions and decisions of the
Inter-American Tropical Tuna Commission, and any regulations
promulgated by the Secretary under this title.
``(7) Any other information deemed relevant by the
Secretary.''.
(e) Permits.--Section 304 (16 U.S.C. 1416) is amended to read as
follows:
``SEC. 304. PERMITS.
``(a) In General.--(1) Consistent with section 302, the Secretary is
authorized to issue a permit to a vessel of the United States
authorizing participation in the International Dolphin Conservation
Program and may require a permit for the person actually in charge of
and controlling the fishing operation of the vessel. The Secretary
shall prescribe such procedures as are necessary to carry out this
subsection, including, but not limited to, requiring the submission
of--
``(A) the name and official number or other identification of
each fishing vessel for which a permit is sought, together with
the name and address of the owner thereof; and
``(B) the tonnage, hold capacity, speed, processing
equipment, and type and quantity of gear, including an
inventory of special equipment required under section 302, with
respect to each vessel.
``(2) The Secretary is authorized to charge a fee for issuing a
permit under this section. The level of fees charged under this
paragraph may not exceed the administrative cost incurred in granting
an authorization and issuing a permit. Fees collected under this
paragraph shall be available, subject to appropriations, to the Under
Secretary of Commerce for Oceans and Atmosphere for expenses incurred
in issuing permits under this section.
``(3) After the effective date of the International Dolphin
Conservation Program Act, no vessel of the United States shall operate
in the yellowfin tuna fishery in the eastern tropical Pacific Ocean
without a valid permit issued under this section.
``(b) Permit Sanctions.--(1) In any case in which--
``(A) a vessel for which a permit has been issued under this
section has been used in the commission of an act prohibited
under section 305;
``(B) the owner or operator of any such vessel or any other
person who has applied for or been issued a permit under this
section has acted in violation of section 305; or
``(C) any civil penalty or criminal fine imposed on a vessel,
owner or operator of a vessel, or other person who has applied
for or been issued a permit under this section has not been
paid or is overdue, the Secretary may--
``(i) revoke any permit with respect to such vessel,
with or without prejudice to the issuance of subsequent
permits;
``(ii) suspend such permit for a period of time
considered by the Secretary to be appropriate;
``(iii) deny such permit; or
``(iv) impose additional conditions or restrictions
on any permit issued to, or applied for by, any such
vessel or person under this section.
``(2) In imposing a sanction under this subsection, the Secretary
shall take into account--
``(A) the nature, circumstances, extent, and gravity of the
prohibited acts for which the sanction is imposed; and
``(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and other such
matters as justice requires.
``(3) Transfer of ownership of a vessel, by sale or otherwise, shall
not extinguish any permit sanction that is in effect or is pending at
the time of transfer of ownership. Before executing the transfer of
ownership of a vessel, by sale or otherwise, the owner shall disclose
in writing to the prospective transferee the existence of any permit
sanction that will be in effect or pending with respect to the vessel
at the time of transfer.
``(4) In the case of any permit that is suspended for the failure to
pay a civil penalty or criminal fine, the Secretary shall reinstate the
permit upon payment of the penalty or fine and interest thereon at the
prevailing rate.
``(5) No sanctions shall be imposed under this section unless there
has been a prior opportunity for a hearing on the facts underlying the
violation for which the sanction is imposed, either in conjunction with
a civil penalty proceeding under this title or otherwise.''.
(f) Prohibitions.--Section 305 is repealed and section 307 (16 U.S.C.
1417) is redesignated as section 305, and amended as follows:
(1) In subsection (a):
(A) By amending paragraph (1) to read as follows:
``(1) for any person to sell, purchase, offer for sale,
transport, or ship, in the United States, any tuna or tuna
product unless the tuna or tuna product is either dolphin safe
or has been harvested in compliance with the International
Dolphin Conservation Program by a country that is a member of
the Inter-American Tropical Tuna Commission or has initiated
steps, in accordance with Article V, paragraph 3 of the
Convention establishing the Inter-American Tropical Tuna
Commission, to become a member of that organization;''.
(B) By amending paragraph (2) to read as follows:
``(2) except in accordance with this title and regulations
issued pursuant to this title as provided for in subsection
101(e), for any person or vessel subject to the jurisdiction of
the United States intentionally to set a purse seine net on or
to encircle any marine mammal in the course of tuna fishing
operations in the eastern tropical Pacific Ocean; or''.
(C) By amending paragraph (3) to read as follows:
``(3) for any person to import any yellowfin tuna or
yellowfin tuna product or any other fish or fish product in
violation of a ban on importation imposed under section
101(a)(2);''.
(2) In subsection (b)(2), by inserting ``(a)(5) and'' before
``(a)(6)''.
(3) By striking subsection (d).
(g) Repeal.--Section 306 is repealed and section 308 (16 U.S.C. 1418)
is redesignated as section 306, and amended by striking ``303'' and
inserting in lieu thereof ``302(d)''.
(h) Clerical Amendments.--The table of contents in the first section
of the Marine Mammal Protection Act of 1972 is amended by striking the
items relating to title III and inserting in lieu thereof the
following:
``TITLE III--INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
``Sec. 301. Findings and policy.
``Sec. 302. Authority of the Secretary.
``Sec. 303. Reports by the Secretary.
``Sec. 304. Permits.
``Sec. 305. Prohibitions.
``Sec. 306. Authorization of appropriations.''.
SEC. 6. AMENDMENTS TO THE TUNA CONVENTIONS ACTS.
(a) Membership.--Section 3(c) of the Tuna Conventions Act of 1950 (16
U.S.C. 952(c)) is amended to read as follows:
``(c) at least one shall be either the Director, or an
appropriate regional director, of the National Marine Fisheries
Service; and''.
(b) General Advisory Committee and Scientific Advisory
Subcommittee.--Section 4 of the Tuna Conventions Act of 1950 (16 U.S.C.
953) is amended to read as follows:
``SEC. 4. GENERAL ADVISORY COMMITTEE AND SCIENTIFIC ADVISORY
SUBCOMMITTEE.
``The Secretary, in consultation with the United States
Commissioners, shall:
``(1) Appoint a General Advisory Committee which shall be
composed of not less than 5 nor more than 15 persons with
balanced representation from the various groups participating
in the fisheries included under the conventions, and from
nongovernmental conservation organizations. The General
Advisory Committee shall be invited to have representatives
attend all nonexecutive meetings of the United States sections
and shall be given full opportunity to examine and to be heard
on all proposed programs of investigations, reports,
recommendations, and regulations of the commission. The General
Advisory Committee may attend all meetings of the international
commissions to which they are invited by such commissions.
``(2) Appoint a Scientific Advisory Subcommittee which shall
be composed of not less than 5 nor more than 15 qualified
scientists with balanced representation from the public and
private sectors, including nongovernmental conservation
organizations. The Scientific Advisory Subcommittee shall
advise the General Advisory Committee and the Commissioners on
matters including the conservation of ecosystems; the
sustainable uses of living marine resources related to the tuna
fishery in the eastern Pacific Ocean; and the long-term
conservation and management of stocks of living marine
resources in the eastern tropical Pacific Ocean. In addition,
the Scientific Advisory Subcommittee shall, as requested by the
General Advisory Committee, the United States Commissioners or
the Secretary, perform functions and provide assistance
required by formal agreements entered into by the United States
for this fishery, including the International Dolphin
Conservation Program. These functions may include each of the
following:
``(A) The review of data from the Program, including
data received from the Inter-American Tropical Tuna
Commission.
``(B) Recommendations on research needs, including
ecosystems, fishing practices, and gear technology
research, including the development and use of
selective, environmentally safe and cost-effective
fishing gear, and on the coordination and facilitation
of such research.
``(C) Recommendations concerning scientific reviews
and assessments required under the Program and
engaging, as appropriate, in such reviews and
assessments.
``(D) Consulting with other experts as needed.
``(E) Recommending measures to assure the regular and
timely full exchange of data among the parties to the
Program and each nation's National Scientific Advisory
Committee (or equivalent).
``(3) Establish procedures to provide for appropriate public
participation and public meetings and to provide for the
confidentiality of confidential business data. The Scientific
Advisory Subcommittee shall be invited to have representatives
attend all nonexecutive meetings of the United States sections
and the General Advisory Subcommittee and shall be given full
opportunity to examine and to be heard on all proposed programs
of scientific investigation, scientific reports, and scientific
recommendations of the commission. Representatives of the
Scientific Advisory Subcommittee may attend meetings of the
Inter-American Tropical Tuna Commission in accordance with the
rules of such Commission.
``(4) Fix the terms of office of the members of the General
Advisory Committee and Scientific Advisory Subcommittee, who
shall receive no compensation for their services as such
members.''.
(c) Bycatch Reduction.--The Atlantic Tunas Convention Act of 1975 (16
U.S.C. 971 et seq.) is amended by redesignating section 10, both
sections 11, and section 12 in order as sections 11, 12, 13, and 14,
and by inserting after section 9 the following new section:
``reduction of bycatch in eastern tropical pacific ocean
``Sec. 10. The Secretary of State, acting through the Comissioners,
should immediately take the necessary steps to establish standards and
measures for a bycatch reduction program for vessels fishing for
yellowfin tuna in the eastern tropical Pacific Ocean. The program shall
include to the maximum extent practicable--
``(1) that sea turtles and other threatened species and
endangered species are released alive, to the maximum extent
practicable;
``(2) measures to reduce, to the maximum extent practicable,
the harvest of nontarget species;
``(3) measures to reduce, to the maximum extent practicable,
the mortality of nontarget species; and
``(4) measures to reduce, to the maximum extent practicable,
the mortality of juveniles of the target species.''.
SEC. 7. EQUITABLE FINANCIAL CONTRIBUTIONS.
It is the sense of the Congress that each nation participating in the
International Dolphin Conservation Program should contribute an
equitable amount to the expenses of the Inter-American Tropical Tuna
Commission. Such contributions shall take into account the number of
vessels from that nation fishing for tuna in the eastern tropical
Pacific Ocean, the consumption of tuna and tuna products from the
eastern tropical Pacific Ocean and other relevant factors as determined
by the Secretary.
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect upon
certification by the Secretary of State to the Congress that a binding
resolution of the Inter-American Tropical Tuna Commission, or another
legally binding instrument, establishing the International Dolphin
Conservation Program has been adopted and is in effect.
Purpose of the Bill
The purposes of H.R. 408 are to amend the Marine Mammal
Protection Act of 1972 and to implement in domestic law the
Declaration of Panama, to recognize that significant reduction
in dolphin mortality has been achieved by nations fishing for
tuna in the eastern tropical Pacific Ocean, and to eliminate
the import bans on tuna from those nations that are certified
to be in compliance with the International Dolphin Conservation
Program.
Background and Need for Legislation
There are many fishing experts who believe that the eastern
tropical Pacific Ocean (ETP), an area of more than five million
square miles and stretching from southern California to Chile,
contains one of the world's most important fisheries. It is
here that large and valuable stocks of yellowfin tuna (Thunnus
albacares) reside. Development of this fishery began in the
early 1900s, mostly by baitboats from the United States. By the
1950s, however, the U.S. fleet was suffering economic hardship
due to foreign competition and the low efficiency of baitboat
fishing. Efficiency more than doubled in 1957 when the first
U.S. baitboat was converted to purse-seine fishing, making use
of newly developed synthetic nets and power blocks that were
used to retrieve the net. Within a few years, all the baitboats
had been converted to purse-seine vessels.
In the mid-1970s, the U.S. fleet consisted of more than 150
vessels and accounted for about 70 percent of the fishing
capacity in the ETP. Since then, the fleet has steadily
decreased due to foreign competition and increasing regulatory
pressures, and now has largely been replaced by foreign fleets.
While the U.S. fleet was at 106 vessels in 1976, by 1993 only
eight vessels remained, while the foreign fleet increased to
about 89 vessels.
For reasons not yet understood, schools of large yellowfin
tuna associate with schools of dolphins. By sighting the
surfacing dolphins, fishermen are able to locate these large
tuna. Since the late 1950s, fishermen have deployed these large
purse-seine nets around schools of dolphins to harvest the tuna
swimming below, a routine referred to as ``fishing on
dolphins'' or ``setting on dolphins''. Fishermen now use
improved techniques for hauling in the net that allow the
encircled dolphins to escape by swimming over the upper edge of
the net, but occasionally, some become tangled in the net and
are seriously injured or killed. This mortality of dolphins and
the biological, economic, and political effects of programs
developed both nationally and internationally to reduce dolphin
mortality have been the subject of strong debate.
The yearly catch of yellowfin tuna in the ETP is greater
than 300,000 short tons and, according to Inter-American
Tropical Tuna Commission (IATTC) reports, the stock is capable
of sustaining harvests at this level. Tuna caught by purse-
seine setting on dolphins average 45 pounds per fish, which are
approximately 2.5 years old, and about half the fish are at
spawning maturity. These large fish command a superior price
and are of a superior quality compared with tuna caught by
other methods.
By catching tuna with the setting on dolphin fishing
method, one of the interesting side effects is the lack of
bycatch of other species. During the early history of this
fishery, the dolphin mortality was estimated at 350,000 animals
per year, but it is more likely about half that number were
actually killed. In recent years, great improvements have been
realized in releasing the dolphins using a technique known as
the ``back down procedure''. This technique allows the back
edge of the net to sink below the surface and allows dolphins
to swim out of the net. The current level of dolphin mortality
for 1996 was 2,547 animals, a level considered to be below
biological significance.
As an alternative to setting on dolphins, other methods of
fishing include setting nets around tuna that have been
attracted to floating objects (log fishing) or around free
swimming schools of fish (school fishing). While these methods
almost totally eliminate dolphin mortality, they have other
negative aspects. Recent studies of log fishing have shown that
approximately 25 percent (by weight) of the harvest is bycatch.
This bycatch consists of many species, but most significantly,
sharks, billfish, sea turtles, and a great number of immature
yellowfin tuna. In 1993 and 1994, it is estimated that between
3 and 7 million small tuna were discarded in the log set
harvest method alone. These tuna are dead by the time they are
returned to the sea and this loss of immature tuna is
considered, by some, as a serious threat to maintaining the
tuna population. Also, compared to setting on dolphins, the
catch per day is significantly less, the average weight per
fish is much lower, the proportion of the smaller and less
valuable skipjack tuna in the catch is greater, and the catch
brings a significantly lower price.
While a few U.S. vessels continue to fish for tuna in the
ETP using methods other than setting on dolphins, the majority
of the vessels in the U.S. fleet have either been sold or
reflagged under Central and South American registries or have
moved to the western Pacific fishery where mid-depth trawling
is the preferred method and is ``dolphin-safe'' under current
U.S. law. Currently, the canned tuna market in the U.S. is
served primarily from this fishery where the catch is largely
skipjack tuna.
In addition, to the effects on the number of vessels
remaining in the fishery, those U.S. vessels which decided to
leave the fishery and move to the western Pacific Ocean
incurred costs amounting to almost $1 million per vessel to
regear for that fishery. Those vessels remaining in the fishery
had been led to believe that the increase in market price for
tuna caused by consumer interest in the new dolphin safe label
would make up for their reduced harvest. Unfortunately, sales
of canned tuna in the U.S. dropped from 35 percent in the mid-
1980s to less than 20 percent currently.
Domestic law protecting dolphins from effects of tuna fishing
The Marine Mammal Protection Act (MMPA) was enacted in 1972
for the purpose of protecting marine mammals from the adverse
effects of human activities. The law states in Section
101(a)(2) that ``marine mammals may be taken incidentally in
the course of commercial fishing operations * * *'' and ``in
any event it shall be 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. * * *''
During the 1984 reauthorization of the MMPA, the U.S. tuna
industry and the environmental community raised concerns that
the progress realized by the U.S. fleet in reducing dolphin
mortality was being offset by increased mortalities occurring
in the foreign tuna fleet. Because the U.S. was the largest
market for canned tuna, the MMPA was amended to require each
nation wishing to export tuna to the U.S. to document that
their adopted dolphin protection program was ``comparable'' to
that of the U.S. and that the incidental mortality rate was
``comparable'' to that of the U.S. fleet. Without this
documentation, an automatic embargo on the importation of
yellowfin tuna would be invoked. The U.S. also prevented the
export of tuna from those nations not meeting the comparability
standard through third party or ``intermediary'' nations.
The 1984 MMPA comparable amendments were not implemented
until March of 1988 and, in the interim, dolphin mortality by
foreign fleets steadily increased. In response, the MMPA was
further amended in 1988, affecting both the U.S. fleet and
foreign-flagged tuna fleets. These amendments included a
prohibition on setting nets on dolphins at sundown, a
prohibition on using all but the weakest explosive devices for
herding dolphins and tuna, and the establishment of a skipper
performance system.
In addition, the 1988 MMPA amendments gave specific
guidance as to when a foreign dolphin protection program would
be considered ``comparable'' to that of the United States. This
guidance included the requirement for remedial training for
skippers with poor records, regulations comparable to those for
U.S. vessels, and an observer program comparable to that of the
U.S. fleet. Most important was the requirement that the per-
vessel annual dolphin mortality rate of any foreign fleet was
to be less than 1.25 times that of the U.S. fleet. Any nation
not satisfying these conditions would be prevented from
exporting tuna to the U.S. market.
On April 12, 1990, the Starkist Seafood Company (a
subsidiary of the H. J. Heinz Company) announced its policy to
discontinue the purchase of any tuna caught in association with
dolphins and to begin to label products with ``dolphin-safe''
labels. Almost immediately, Van Camp Seafood (Chicken of the
Sea) and Bumble Bee endorsed this dolphin-safe policy. These
companies accounted for about 80 percent of the canned tuna
sold in the United States. This amount was further increased by
several smaller suppliers who also chose to adopt the dolphin-
safe policy.
Following this voluntary action, legislation was enacted in
1990 as part of the Fishery Conservation Amendments of 1990 to
codify criteria for labeling tuna and tuna products as dolphin-
safe. To qualify as dolphin-safe, tuna caught in the ETP must
have been caught either by a vessel too small to deploy nets
around dolphins or, for larger vessels, the catch must be
accompanied by certification from a qualified observer that no
dolphin sets were made for the entire fishing trip. Also, the
1990 Act specified that tuna caught in driftnets cannot qualify
as dolphin-safe.
In August 1990, Mexico was embargoed under the 1988
provisions for not achieving comparability with the U.S. fleet.
In response, Mexico requested consultations with the U.S. and,
after bilateral consultations failed to reach an accord,
requested that a panel be established under the General
Agreement on Tariffs and Trade (GATT) to resolve this dispute.
On September 3, 1991, the panel delivered its decision in favor
of Mexico. The panel found that the embargo of Mexican tuna and
the provision in the MMPA dealing with intermediary nations
were inconsistent with GATT. The GATT Council, however, did not
immediately adopt the panel's findings and, therefore, the U.S.
is technically not in violation of GATT. At present, Mexico has
not reinstituted the challenge to the World Trade Organization,
which is the successor to GATT.
In 1992, Congress enacted further amendments to the MMPA
(Public Law 102-523) designed to promote international dolphin
protection and to resolve the Mexican challenge. This
legislation imposed a five-year moratorium on setting on
dolphins and, in the interim before the effective date of the
moratorium, it lifted the embargoes against all nations that
made a declared commitment to implement the moratorium and to
take other steps to reduce dolphin mortality. After making
these commitments, nations that do not continue to honor the
agreement were subject to a reinstatement of the yellowfin tuna
embargo and an import ban on other fish products. To date, no
nation has issued an intent to honor the provisions of this
Act.
In 1994, the U.S. put into effect embargoes of tuna from
Colombia, Mexico, Panama, Vanuatu, and Venezuela and
intermediary nation embargoes against Costa Rica, Italy and
Japan.
The La Jolla Agreement
At about the same time, representatives from a number of
governments were attending a meeting sponsored by the IATTC in
La Jolla, California, (April 21-23, 1992) to prepare and adopt
a resolution with the goal of reducing dolphin mortality in the
ETP fishery to levels approaching zero. The governments in
attendance were Colombia, Costa Rica, Ecuador, Mexico,
Nicaragua, Panama, Spain, the United States, Vanuatu and
Venezuela. The limits established for dolphin mortality would
diminish each year, and by 1999 are to be below 5,000, a number
less than 0.1 percent of the estimated total dolphin
population.
Compliance with the agreement was to be assured by
assigning each vessel a dolphin mortality limit (DML) and by
requiring an observer on each vessel. When the DML limit for a
vessel is reached, that vessel would be required to discontinue
``setting on dolphins'' for the remainder of the year. In 1994,
75 vessels under the La Jolla Agreement requested and received
individual DMLs. Only three of those vessels were from the
United States. In 1995, 81 vessels requested DMLs, none of
which were U.S. vessels. To date, the signatories have
continued to operate under this agreement.
Deleterious effects of current law
In recent years, studies on the tuna fishery have shown an
alarming unintended effect of the U.S. law. Meant to discourage
the use of the encirclement technique, alternative fishing
practices were shown to have a negative effect on other marine
species including sea turtles, sharks, billfish and juvenile
tunas. The two primary methods of fishing dolphin safe are the
school set and the log set techniques. While both methods do
minimize dolphin mortality, there has been shown to be some
mortality in both methods of fishing. The bycatch of other
marine species associated with these two fishing techniques is
significantly higher than the bycatch associated with the
encirclement technique. School sets generate approximately 10
times the amount of bycatch and log sets generate approximately
100 times the bycatch of juvenile tunas and other marine
species. In short, while current law focuses on techniques of
reducing dolphin bycatch, the alternative fishing practices
exacerbate fishing pressure on other sensitive marine
populations.
The goal of each revision to the dolphin-specific
provisions of the MMPA was to further reduce dolphin mortality
in the ETP. The effectiveness of each of these changes has been
questioned. Though the embargo provisions have been credited
with bringing about international cooperation, recent studies
have shown that fishing effort using the encirclement technique
have remained fairly stable, approximately 50-60 percent of the
of the current effort in the fishery. It is important to note
that while dolphin stocks decreased rapidly in the 1970s, the
population levels have remained relatively stable during the
last decade despite continued effort using the encirclement
technique.
Many argue that the greatest contribution to the reduction
in the dolphin mortality was the development and implementation
of the voluntary La Jolla Agreement. As discussed above, this
agreement established a program of observer coverage, gear
modifications, and technological changes in former fishing
practices which led to drastic reductions in dolphin mortality.
It is important to note that none of the dolphin stocks in the
ETP are considered endangered or threatened. In fact the
National Marine Fisheries Service (NMFS) notes that the
rebuilding of one of the two stocks which are considered
depleted, the northeastern spotted dolphin, will not be
adversely affected by the continued practice of encircling
dolphins. In fact, NMFS estimates that rebuilding of this stock
to historical levels would take 27 years under the current
conditions, which includes the 50-60 percent effort directed on
dolphin stocks. With no effort directed on dolphin sets, NMFS
estimates the rebuilding would take 26 years.
As currently drafted, the U.S. dolphin safe definition
restricts the use of certain gear types, rather than basing the
definition on a mortality standard. The current definition
prohibits the use of driftnets and the practice of encircling
dolphin schools. A study presented at the 1994 International
Whaling Commission highlighted a gillnet fishery in Sri Lanka
which harvested tuna and had an estimated mortality of between
8,000 and 11,000 small cetaceans per year. Because this fishery
did not employ either prohibited fishing practice, this tuna
could, under current law, be imported as ``dolphin safe'' tuna.
H.R. 408 modifies the dolphin safe definition to base it on an
actual mortality-based standard rather than merely a gear
restriction.
A concern was raised last year during hearings on this
fishery on the effects encirclement will have on the
reproductive ability of dolphins in the fishery. While some
preliminary work has been conducted, there is little or no
evidence to indicate that there will be any long-term effect on
the populations. Despite the lack of evidence, H.R. 408
authorizes an additional $1 million to continue to study this
possibility.
Declamation of Panama
In October 1995, twelve nations, including the United
States, met in Panama to develop a binding international
agreement to protect dolphins and other species in the ETP. The
twelve nations involved in the development of this agreement
were: Belize, Colombia, Costa Rica, Ecuador, France, Honduras,
Mexico, Panama, Spain, Vanuatu, Venezuela and the United
States. Five environmental organizations were also instrumental
in developing this agreement. These groups included the Center
for Marine Conservation, World Wildlife Fund, Greenpeace,
National Wildlife Federation and the Environmental Defense
Fund.
These meetings resulted in the Declaration of Panama,
signed by all twelve nations on October 4, 1995. The Panama
Declaration would:
Establish a permanent dolphin mortality limit with
the goal of reducing dolphin mortality to zero for all
participants in the fishery. An increase in the number
of vessels entering the fishery will not result in an
increase in the overall cap;
Establish mortality caps for individual species of
dolphin found in the ETP;
Establish per-vessel mortality caps to provide for
individual vessel accountability;
Provide greater protection for other species
currently at risk from bycatch under certain harvesting
techniques;
Increase the enforcement and monitoring systems to
ensure compliance by signatory nations and the vessels
flagged by these nations, including the use of
mandatory observer coverage on all vessels; and
Continue scientific assessment and review of progress
toward meeting the goals of zero dolphin mortality and
to review the status of individual dolphin stocks.
H.R. 408 implements the La Jolla Agreement and the
Declaration of Panama for the United States.
Committee Action
H.R. 408 was introduced on January 9, 1997, by Congressman
Wayne Gilchrest (R-MD). The bill was referred to the Committee
on Resources, and within the Committee to the Subcommittee on
Fisheries Conservation, Wildlife and Oceans. On April 9, 1997,
the Subcommittee held a hearing on H.R. 408, where five
witnesses testified on the tuna fishery in the ETP, the status
of dolphin populations in that fishery and how the provisions
of H.R. 408 would effect this fishery. Witnesses included: Ms.
Mary Beth West, Deputy Assistant Secretary for Oceans, Bureau
of Oceans, Environment and Science, Department of State; Dr.
Elizabeth Edwards, Director, Dolphin Safe Research Program,
Southwest Fisheries Science Center, NMFS; Dr. James Joseph,
Director of Investigations, IATTC; Ms. Nina Young, Marine
Mammalogist, Center for Marine Conservation; and Mr. Jeffrey R.
Pike, Dolphin Safe/Fair Trade Campaign.
On April 10, 1997, the Subcommittee met to mark up H.R.
408. An amendment in the nature of a substitute was offered by
Congressman George Miller (D-CA); the amendment failed by a
rollcall vote of 4-7, as follows:
----------------------------------------------------------------------------------------------------------------
Members Yea Nay Present Members Yea Nay Present
----------------------------------------------------------------------------------------------------------------
Mr. Saxton, Chairman........... ........ X ......... Mr. Abercrombie.. X ........ .........
Mr. Tauzin..................... ........ X ......... Mr. Ortiz........ ........ X .........
Mr. Gilchrest.................. ........ X ......... Mr. Pallone...... X ........ .........
Mr. Jones...................... ........ X ......... Mr. Farr......... X ........ .........
Mr. Peterson................... ........ X ......... Mr. Kennedy...... X ........ .........
Mr. Crapo...................... ........ X ......... ................. X ........ .........
----------------------------------------------------------------------------------------------------------------
The bill was then ordered favorably reported to the Full
Committee in the presence of a quorum.
On April 16, 1997, the Full Resources Committee met to
consider H.R. 408. An amendment to cap the dolphin mortality at
the level of observed mortality for 1996 was offered by
Congressman George Miller, and not adopted by rollcall vote of
15-24, as follows:
An amendment to change the definition for dolphin safe to
include ``seriously injured or intentionally harassed'' to the
definition included in the bill was offered by Congressman
Frank Pallone (D-NJ), and not adopted by rollcall vote of 12-
28, as follows:
An amendment to encourage the Secretary of State through
the Commissioners to ensure that the IATTC further develops a
bycatch reduction program was offered by Congressman Neil
Abercrombie (D-HI), and after being further modified by a
unanimous consent request of Congressman Wayne Gilchrest, was
adopted by voice vote. An amendment requiring new language be
added to the dolphin safe label was offered by Congressman Sam
Farr (D-CA), and not adopted by voice vote. An amendment to
require certification of noninvolvement in drug trafficking by
vessels was offered by Congressman George Miller. The amendment
was ruled nongermane. Congressman George Miller appealed the
ruling of the Chair and the Chair's ruling was sustained by a
rollcall vote of 17-12, as follows:
The bill, as amended, was then ordered favorably reported
to the House of Representatives by voice vote, in the presence
of a quorum.
Section-by-Section Analysis
Section 1. Short Title; References
This Act may be cited as the ``International Dolphin
Conservation Program Act''.
Amendments in the Act are to the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1361 et seq.).
Section 2. Purpose and Findings
The purpose of this Act is to give effect to the
Declaration of Panama, including the establishment of the
International Dolphin Conservation Program, relating to the
protection of dolphins and other species, and the conservation
and management of tuna in the ETP. Another purpose of the Act
is to recognize the significant reductions in dolphin mortality
associated with that fishery by nations fishing for tuna and to
eliminate the ban on imports of tuna from those nations in
compliance with the International Dolphin Conservation Program.
The findings of this Act are: (1) that nations that fish in
the ETP yellowfin tuna fishery have achieved significant
reductions in dolphin mortality from hundreds of thousands
annually to fewer than 5,000 annually; (2) that provisions in
the MMPA that impose a ban on the imports of tuna from nations
fishing in the ETP have served as an incentive to reduce
dolphin mortalities; (3) that tuna canners and processors of
the United States have led the tuna products industry to
promote a dolphin-safe tuna market; and (4) that the 12
signatory nations to the Declaration of Panama, including the
United States, agreed under that Declaration to require that
the total annual dolphin mortality in the purse seine fishery
for yellowfin tuna in the ETP not exceed 5,000, with a
commitment and objective to progressively reduce dolphin
mortality to a level approaching zero through the setting of
annual limits.
Section 3. Definitions
The term ``International Dolphin Conservation Program'' has
been defined to mean the international program established by
the agreement in La Jolla, California, in June 1992, as
formalized, modified and enhanced by the Declaration of Panama,
that: (1) requires the total annual dolphin mortality in the
purse seine fishery for yellowfin tuna in the ETP not exceed
5,000, with the commitment to progressively reduce dolphin
mortality to levels approaching zero through the setting of
annual limits; (2) establishes a per-stock per-year mortality
limit up to the year 2001 of between 0.2 percent and 0.1
percent of the minimum population estimate; (3) beginning in
the year 2001, requires that the per-stock per-year mortality
of dolphin not exceed 0.1 percent of the minimum population
estimate; (4) requires that in the event the mortality limits
are exceeded, all sets on dolphins shall cease; (5) establishes
a per-vessel annual dolphin mortality limit consistent with the
established per-year mortality caps; and (6) provides a system
of incentives to vessel captains to continue to reduce dolphin
mortality, with the goal of eliminating all dolphin deaths.
The ``Declaration of Panama'' has been defined as the
declaration signed in Panama City, Republic of Panama, on
October 4, 1995.
Section 4. Amendments to Title I
Section 101 of the MMPA is amended to allow nations who
comply with the International Dolphin Conservation Act to
export yellowfin tuna harvested with purse seine nets in the
ETP into the United States. The government of the exporting
nation shall provide documentary evidence that: (1) the tuna or
tuna products were not caught prior to the effective date of
the International Dolphin Conservation Program Act; (2) the
tuna or tuna products were harvested after the effective date
of the International Dolphin Conservation program (IDCP) by a
harvesting nation that is either a member of the IATTC or is a
nation that has initiated (and within six months completed) all
steps necessary to become an IATTC member and has implemented
the appropriate international obligations, including financial
obligations; (3) total dolphin mortality permitted under the
IDCP will remain below 5,000 in the future, with the goal of
reducing dolphin mortality to levels approaching zero through
the setting of annual limits; and (4) that the participating
nation has not prevented any other nation from participating in
the IATTC.
Section 101 of the MMPA is further amended to include three
new subsections. Subsection (d) requires the Secretary of
Commerce to reject a government's documentary evidence if that
nation does not authorize the IATTC to release sufficient
information to the Secretary to determine the nation's
compliance with the IDCP. In addition, the Secretary must
reject the evidence if the government of the harvesting nation
does not provide directly or authorize the IATTC to release
information for the purposes of tracking and verifying
compliance with the IDCP. The Secretary may also refuse to
accept the documentary evidence, if the nation consistently
fails to take enforcement actions on violations that diminish
the effectiveness of the IDCP or the harvesting nation is not
in compliance with the IDCP. Subsection (e) exempts the
provisions of this Act from applying to a United States
citizen, when the citizen incidentally takes a marine mammal
outside of the United States Exclusive Economic Zone and is
employed on a foreign fishing vessel of a harvesting nation in
compliance with the IDCP.
Section 104(h) is amended to allow the Secretary of
Commerce to issue an annual permit to a United States vessel
for the taking of marine mammals in the course of commercial
purse seine fishing for yellowfin tuna in the ETP. The permits
shall be governed by section 304, subject to regulations issued
through section 302 of MMPA.
Section 108 is amended to allow the Secretary to initiate
discussions: (1) to expeditiously negotiate revisions to the
Convention for the Establishment of an Inter-American Tropical
Tuna Commission which will incorporate conservation and
management provisions agreed to by nations which have signed
the Declaration of Panama; (2) pursue a revision to the
schedule of annual contributions to the expenses of the Inter-
American Tropical Tuna Commission that is equitable to
participating nations; and (3) with those countries likely to
participate in the IDCP, to identify alternative sources of
funding to ensure that needed research and other measures
benefiting effective protection of dolphins, other marine
species, and the marine ecosystem.
Section 110 repeals a National Academy of Sciences review.
Paragraph 1 of section 901(d) of the Dolphin Protection
Consumer Information Act (16 U.S.C. 1385(d)(1)) is amended to
make it a violation of section 5 of the Federal Trade
Commission Act for any producer, importer, exporter,
distributor, or seller of any tuna product that is exported
from or offered for sale in the United States to include on the
label of that product the term ``dolphin-safe'' or any other
term or symbol that falsely claims or suggests that the tuna
contained in the product was harvested using a method of
fishing that is not harmful to dolphins if the product contains
the following: tuna harvested on the high seas by a vessel
engaged in driftnet fishing; tuna harvested from the ETP and
outside of the ETP using purse seine nets in a manner not
considered dolphin-safe under paragraphs (2) and (3): or tuna
harvested by a vessel engaged in any fishery identified by the
Secretary pursuant to paragraph (4) as having a regular and
significant incidental mortality of marine mammals.
Paragraph (2) of subsection (d) of the Dolphin Protection
Consumer Information Act is amended to define dolphin-safe tuna
as a tuna product that contains tuna harvested in the ETP by a
vessel not capable of deploying its purse seine nets on or to
encircle dolphins, or which deployed purse seine nets, but with
certification that no dolphins died in the set.
Subsection (d) is further amended by requiring that tuna
harvested outside the ETP by vessels using purse seine nets is
dolphin-safe if it is certified that the nets were not
intentionally deployed on dolphins or, in a fishery which the
Secretary has determined that a regular and significant
association occurs between marine mammals and tuna, it is
accompanied by a written statement by the captain and, where
determined practicable by the Secretary, an observer certifying
that no purse seine net was deployed on or used to encircled
marine mammals. No tuna product may be labeled with any
reference to dolphins, porpoises, or marine mammals, except as
dolphin-safe in accordance with this subsection.
Subsection (f) of the Dolphin Protection Consumer
Information Act is amended to establish a domestic and
international tracking and verification program that provides
for the effective tracking of tuna labeled under subsection
(d). The Secretary, when developing the regulations, shall
establish appropriate procedures for ensuring the
confidentiality of proprietary information.
Section 5. Amendments to Title III
Title III of the MMPA is renamed the International Dolphin
Conservation Program.
The findings in section 301 are amended to recognize that
nations harvesting yellowfin tuna in the ETP have demonstrated
their willingness to participate in appropriate multilateral
agreements to reduce dolphin mortality; recognize that the IDCP
will assure that the existing trend of reduced dolphin
mortality continues; recognize that the goal of eliminating
dolphin mortality continues to be a priority; and to ensure
that the U.S. market does not act as an incentive to the
harvest of tuna using purse seine nets not in compliance with
the IDCP.
Section 302 is amended to require the Secretary of Commerce
to issue regulations, not later than three months after the
date of enactment, to implement the International Dolphin
Conservation Program. In developing the regulations under this
section, the Secretary will consult with the Marine Mammal
Commission and the U.S. Commissioners to the IATTC.
These regulations shall include provisions requiring
observers on each vessel; requiring the use of the backdown
method or other equally effective procedures; prohibiting the
intentional deployment of nets in violation of the IDCP;
requiring the use of special equipment; ensuring that the
backdown procedure or deployment of nets begin no later than 30
minutes after sundown; banning the use of explosive devices;
establishing per vessel mortality limits, total dolphin
mortality limits, and per stock per year mortality limits;
preventing the intentional deployment of nets on dolphins after
reaching the total dolphin mortality limits, the per stock or
vessel mortality limits; preventing fishing by vessels not
assigned a vessel mortality limit; allowing for the
authorization of experimental fishing operations; authorizing
fishing within the area covered by the IDCP by vessels of the
U.S. without specific requirements under special conditions
prescribed by the Secretary; and containing other such
necessary restrictions or requirements as determined by the
Secretary.
If the Secretary determines, using the best scientific
information available, that the incidental mortality and
serious injury of marine mammals authorized under this title is
having, or is likely to have, a significant adverse impact on a
marine mammal stock or species, the Secretary shall prescribe
emergency regulations and notify, along with recommendations on
actions necessary to reduce the adverse impacts, to the IATTC.
The Secretary shall, in cooperation with the nations
participating in the IDCP and the IATTC, undertake or support
appropriate scientific research to further the goals of the
Program. The research may include but is not limited to:
devising cost-effective fishing methods and gear so as to
reduce, with the goal of eliminating, the incidental mortality
and serious injury of marine mammals; devising cost-effective
fishing methods for mature yellowfin tuna without deployment of
nets on dolphins or other marine mammals; carrying out a stock
assessment of those marine mammal species and stocks taken in
the purse seine fishery for yellowfin tuna in the ETP; studying
the effects of chase and encirclement on the health and biology
of dolphin and individual dolphin populations incidentally
taken in the course of purse seine fishing in the ETP and
determining the extent to which the incidental take of
nontarget species, including juvenile tuna, occurs in the ETP
yellowfin tuna fishery. The results of the research in this
section shall be included in the report required in section
303.
Section 303 of the MMPA is amended to have the Secretary
submit an annual report to Congress which includes: the results
of research conducted in section 302; a description of the
status and trends of stocks of tuna; a description of the
efforts to assess, avoid, reduce, and minimize the bycatch of
juvenile yellowfin tuna and other nontarget species; a
description of activities of the IDCP and the efforts of the
U.S. in support of the Program's goals and objectives; an
assessment of the effectiveness of the IDCP; and any other
information the Secretary deems relevant.
Section 304 is amended to authorize the Secretary to issue
permits to a vessel of the United States authorizing
participation in the IDCP. This may include issuing a permit to
the person actually in charge of and controlling the fishing
operation of the vessel. The Secretary is authorized to charge
a fee for granting an authorization and issuing a permit under
this section. The levels of fees charged under this paragraph
may not exceed the administrative cost incurred in granting an
authorization and issuing a permit.
After the effective date of the IDCP, no vessel of the
United States shall operate in the yellowfin tuna fishery in
the ETP without a valid permit. Permits may be sanctioned if a
vessel has been used in the commission of an act in violation
of section 305, or the owner, operator, or any other person who
has applied for or been issued a permit under this section has
acted in violation of section 305. The Secretary may also
revoke, suspend, deny, or impose conditions or restrictions on
a permit for any person who has not paid and is overdue on a
civil penalty or criminal fine.
When imposing sanctions under this subsection the Secretary
shall take into account the nature, circumstances, extent, and
gravity of the prohibited act for which the sanction is
imposed, and with respect to the violator, the degree of
culpability, any history or prior offenses, and other matters
as justice requires. No sanctions will be imposed unless there
has been a prior opportunity for a hearing on the facts
underlying the violation for which the sanction is imposed.
Transfer of ownership of a vessel, by sale or otherwise, shall
not extinguish any permit sanction that is in effect or is
pending at the time of transfer of ownership. The Secretary
shall reinstate the permit upon payment of the penalty of fine
and any interest.
Section 305 of the MMPA is repealed, section 307 is
redesignated as 305, and is amended to prohibit any person from
selling, transporting, or shipping, in the United States, any
tuna or tuna product unless the tuna or tuna product is either
dolphin safe or has been harvested in compliance with the IDCP
by a country that is a member of the IATTC, or has initiated
steps to join the IATTC.
The amendments to redesignated MMPA section 305 also
prohibit, except in accordance with this title, any person or
vessel subject to the jurisdiction of the United States from
intentionally deploying a purse seine net on or encircling any
marine mammal in the course of tuna fishing in the ETP or for
any person to import any yellowfin tuna or yellowfin tuna
product or any other fish or fish product in violation of a ban
on importation imposed under section 101(a)(2).
Finally, section 5 of the bill repeals MMPA section 306,
redesignates section 308 as section 306, and further amends
that section by striking ``303'' and inserting ``302(d)''.
section 6. amendments to the tuna conventions act
Section 3 of the Tunas Conventions Act is amended to
require at least one IATTC commissioner be the Director or an
appropriate regional director of the NMFS.
Section 4 of the Tuna Conventions Act is amended to have
the Secretary, in consultation with the United States
Commissioners, appoint a General Advisory Committee and a
Scientific Advisory Subcommittee. The General Advisory
Committee will be composed of not less than five nor more than
15 persons with balanced representation from the various groups
participating in the fisheries included under the conventions,
and from nongovernmental conservation organizations. The
Committee shall be invited to have representatives attend all
nonexecutive meetings of the United States sections and shall
be given full opportunity to examine and to be heard on all
proposed programs of investigations, reports, recommendations
and regulations of the commissions.
The Scientific Advisory Subcommittee will be composed of
not less than five nor more than 15 qualified scientists with
balanced representation from the public and private sectors,
including nongovernmental conservation organizations. The
Subcommittee shall advise the General Advisory Committee and
the United States Commissioners on matters including the
conservation of ecosystems; the sustainable uses of living
marine resources related to the tuna fishery in the ETP; and
the long-term conservation and management of stocks of living
marine resources in the ETP. The Subcommittee, as requested by
the Committee, the United States Commissioners, or the
Secretary, will perform functions and provide assistance
required by formal agreements entered into by the United States
for this fishery, including the IDCP. The functions may
include: review of data from the Program, including data from
the IATTC; recommendations on research needs, including
ecosystems, fishing practices, and gear technology research,
including the development and use of selective, environmentally
safe and cost-effective fishing gear, and on the coordination
and facilitation of such research; recommendations concerning
scientific reviews and assessments required under the Program;
consultation with other experts; recommendations of measures to
assure the regular and timely full exchange of data among the
parties to the Program and each nation's National Scientific
Advisory Committee (or equivalent).
Subsection (c) amends the Atlantic Tunas Convention Act of
1975 to encourage the Secretary of State, acting through the
IATT Commissioners, to take the necessary steps to further
develop a bycatch reduction program which shall, to the extent
practicable, consist of the following provisions: (1) that sea
turtles and other threatened and endangered species are
released alive to the maximum extent practicable, (2) measures
to reduce, to the maximum extent practicable, the harvest of
nontarget species, (3) measures to reduce, to the maximum
extent practicable, the mortality of nontarget species, and (4)
measures to reduce, to the maximum extent practicable, the
mortality of juveniles of the target species.
section 7. equitable financial contributions
This section adds a new Sense of the Congress provision
that each nation participating in the International Dolphin
Conservation Program should contribute an equitable amount to
the expenses of the IATTC and that such contributions should
take into account the number of vessels from that nation
fishing for tuna in the ETP and the consumption of tuna and
tuna products from the ETP, as well as any other relevant
factors as determined by the Secretary.
section 8. effective date
This Act and the amendments made by this Act shall take
effect upon the certification by the Secretary of State to
Congress that a binding resolution of the IATTC, or another
legally binding instrument, establishing the IDCP has been
adopted and is in effect.
Committee Oversight Findings and Recommendations
With respect to the requirements of clause 2(l)(3) of rule
XI of the Rules of the House of Representatives, and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee on Resources' oversight findings and
recommendations are reflected in the body of this report.
Federal Advisory Committee Statement
The functions of the proposed advisory committees
authorized in H.R. 408 are not currently being nor could they
be performed by one or more agencies, an advisory committee
already in existence or by enlarging the mandate of an existing
advisory committee.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact H.R. 408.
Cost of the Legislation
Clause 7(a) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 408. However, clause 7(d) of that Rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
Compliance With House Rule XI
1. With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, H.R.
408 does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease tax
expenditures. The bill would lead to a increase in appropriated
spending but also decreases direct spending by increasing
offsetting receipts from permit fees. In addition, H.R. 408
would increase government receipts from tariffs on imported
canned tuna.
2. With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 408.
3. With respect to the requirement of clause 2(l)(3)(C) of
rule XI of the Rules of the House of Representatives and
section 403 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R. 408
from the Director of the Congressional Budget Office.
Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 23, 1997.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 408, the
International Dolphin Conservation Program Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Victoria V.
Heid (for federal costs), and Lesley Frymier (for the private-
sector impact).
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 408--International Dolphin Conservation Program Act
Summary: H.R. 408 would modify the protection of marine
mammals, including dolphins, in connection with tuna
harvesting. CBO estimates that enacting H.R. 408 would lead to
an increase in appropriated spending of about $1 million in
fiscal year 1998, assuming appropriations consistent with the
bill's provisions. In addition, CBO estimates that enacting
H.R. 408 could decrease direct spending beginning in fiscal
year 1998 by generating additional offsetting receipts from
fees on fishing permits. We estimate that any new permit fees
would total less than $100,000 a year over the 1998-2002
period. Finally, based on information from the International
Trade Commission (ITC), CBO estimates that H.R. 408 would
increase governmental receipts by less than $500,000 annually.
Because H.R. 408 could affect both direct spending and
receipts, pay-as-you-go procedures would apply.
H.R. 408 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act of 1995 (UMRA), and would
have no impact on state, local, or tribal governments. The bill
would impose new private-sector mandates on tuna vessels while
removing an existing mandate on tuna vessels and providing
other benefits to tuna importers. CBO estimates that the direct
costs of the new private-sector mandates would most likely be
less than the costs of the existing mandate.
Description of the bill's major provisions
The bill would recognize and incorporate into law many of
the provisions of the Declaration of Panama, signed October 4,
1995, by the United States and the governments of Belize,
Colombia, Costa Rica, Ecuador, France, Honduras, Mexico,
Panama, Spain, Vanuatu, and Venezuela. The Declaration of
Panama addresses the protection of dolphins and other species,
and the conservation and management of tuna, in the eastern
tropical Pacific Ocean (ETP). Several provisions of the bill
would address the use of purse seines in tuna fishing. Purse
seines are large nets that encircle tuna and are then drawn
shut like a purse.
Specifically, the bill would:
declare that it is U.S. policy to support the
International Dolphin Conservation Program (IDCP)
operated under the auspices of the Inter-American
Tropical Tuna Commission (IATTC);
eliminate the current ban by the Secretary of the
Treasury on imports of yellowfin tuna from countries
whose vessels catch tuna in the ETP using a procedure
known as ``setting on dolphins'' by allowing tuna
imports from those nations complying with the IDCP;
amend the Marine Mammal Protection Act of 1972 to
allow the Department of Commerce (DOC) to issue permits
to U.S. fishermen authorizing the incidental taking of
dolphins during commercial yellowfin tuna harvesting;
limit the number of dolphins that can be killed by
tuna fishing in the ETP to 5,000 annually, with the
mortality limit apportioned among various dolphin
types--but the limit for each type could not exceed 0.2
percent of the minimum estimated abundance of that type
through 2000, and 0.1 percent of that minimum in 2001
and thereafter;
require U.S. vessels fishing for tuna in the ETP to
obtain individual, annual permits from the Secretary of
Commerce to authorize their participation in the IDCP,
and authorize the Secretary to charge fees to cover the
administrative costs of the permits (Under current law,
vessels must pay an annual fee for a certificate of
inclusion in one umbrella permit.);
authorize to be appropriated to the DOC $1 million
for scientific research on dolphin conservation;
amend the Dolphin Protection Consumer Information Act
by redefining tuna that may be labeled ``dolphin safe''
as that caught in any set of a purse seine net in which
no dolphins were killed, regardless of whether any
dolphins were encircled as part of the tuna harvest
(Under the bill, tuna would be determined to be
``dolphin safe'' on a set-by-set basis, rather than by
vessel-trip as under current law.); and
state that is the sense of the Congress that each
nation participating in the International Dolphin
Conservation Program should contribute an equitable
amount to the expenses of the IATTC.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 408 is shown in the table below. CBO
estimates that implementing the bill would increase
discretionary spending by about $1 million in 1998, and by less
than $100,000 annually thereafter. The bill also could affect
direct spending and revenues, but in each case CBO estimates
that any such changes would be less than $500,000 a year.
----------------------------------------------------------------------------------------------------------------
By fiscal years, in millions of dollars
-----------------------------------------------
1997 1998 1999 2000 2001 0002
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level................................... 0 1 (1) (1) (1) (1)
Estimated outlays............................................... 0 1 (1) (1) (1) (1)
----------------------------------------------------------------------------------------------------------------
\1\ Less than $100,000.
The costs of this legislation fall within budget function
300 (natural resources and environment).
Basis of estimate
Spending subject to appropriation
Assuming appropriations consistent with the bill, enacting
H.R. 408 would result in about $1 million in additional
appropriated spending in fiscal year 1998. H.R. 408 would
authorize the appropriation of $1 million to be used by the
DOC's National Marine Fisheries Service to support scientific
research on dolphin conservation. We estimate outlays of about
$1 million in fiscal year 1998, assuming appropriation of the
authorized amount.
The bill also states that it is the sense of the Congress
that each nation participating in the International Dolphin
Conservation Program should contribute an equitable amount to
the expenses of the IATTC, which administers the International
Dolphin Conservation Program and employs the international
observers currently required on all tuna boats operating in the
ETP. Currently, the Department of State contributes about $3
million annually to the IATTC. That amount represents about 90
percent of the contributions from all nations to the IATTC, and
about 65 percent of the IATTC's $4.5 million budget. H.R. 408
would not, by itself, change the U.S. contribution to the
IATTC, and it is unclear whether the factors identified in the
bill would lead to a change in the U.S. contribution. Hence,
CBO estimates that this provision would not change
discretionary spending.
H.R. 408 would require U.S. vessels operating in the ETP to
obtain individual permits from the Secretary of Commerce. Such
permits would authorize vessels' participation in the IDCP and
allow some incidental deaths of marine mammals from using purse
seines in commercial fishing for yellowfin tuna. H.R. 408 would
authorize the Secretary to charge a permit fee, but such fees
could not exceed the administrative costs of issuing permits.
Income from fees could be spent, subject to appropriation, by
the Under Secretary of Commerce for Oceans and Atmosphere for
the expenses incurred in issuing permits. As explained below,
CBO estimates that any such increase in fees would be less than
$100,000 a year. Hence, the potential effect of this provision
on discretionary spending also would be less than $100,000 a
year.
Direct spending (including offsetting receipts)
Under current law, all U.S. vessels fishing for tuna in the
ETP may operate under one permit issued to the American
Tunaboat Association in 1980 by the Secretary of Commerce.
Individual vessels pay an annual fee to the DOC to renew
certificates of inclusion under that permit. The current permit
expires December 31, 1999. Over the last year, about five U.S.
vessels have been harvesting tuna in the ETP under the permit.
H.R. 408 would not affect the fees paid by U.S. vessels
currently fishing for tuna. The bill could result in additional
U.S. vessels seeking permit authority to operate in the ETP.
Under current law, to meet the ``dolphin safe'' definition for
tuna, U.S. vessels in the ETP cannot set purse seine nets on
dolphins in the course of fishing for tuna. The bill would
permit this practice and allow for limited dolphin mortality in
accordance with the international program as long as certain
safeguards are adopted. This increase in flexibility could
encourage additional U.S. vessels to operate in the ETP, where
they would be subject to permit fees. We estimate, however,
that any change in receipts from permit fees would be less than
$100,000 a year.
Revenues
The Marine Mammal Protection Act of 1972 bans imports of
yellowfin tuna from nations that fish for tuna in the eastern
tropical Pacific Ocean. H.R. 408 allow tuna imports from
nations that comply with the IDCP. Currently, fresh tuna
imported to the U.S. is not subject to duty. However, the U.S.
Customs Service collects about $30 million annually from
tariffs on canned tuna. Based on historical information
provided by the ITC, prior to the embargo about 1 percent of
the duties collected on canned tuna imports were from IDCP
signatory nations. Therefore, CBO estimates that eliminating
the ban on imports of tuna from these nations would not
significantly increase governmental receipts.
Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-
as-you-go procedures for legislation affecting direct spending
or receipts through 1998. CBO estimates that enacting H.R. 408
could affect both direct spending and governmental receipts,
but that any change would be less than $500,000 a year in both
cases.
Estimated impact on State, local, and tribal governments:
H.R. 408 contains no intergovernmental mandates as defined in
the UMRA and would have no impact on the budgets of state,
local, or tribal governments.
Estimated impact on the private sector: The bill would
impose new private-sector mandates on tuna vessels while
removing an existing mandate on tuna vessels and providing
other benefits to tuna importers. CBO estimates that the direct
costs of the new mandates would most likely be less than the
costs of the existing mandate.
Section 4 of H.R. 408 would change the labeling of dolphin-
safe tuna. In order to be labeled dolphin-safe, tuna harvested
in the ETP would have to be accompanied by a certification that
no dolphins were killed (instead of the current requirement
that no dolphin sets are made). Tuna harvested outside of the
ETP could be labeled dolphin-safe if it is accompanied by a
statement certifying that no sets were intentionally set on
dolphins, or, in some fisheries, marine mammals. Based on
information obtained from industry and government sources,
these mandates would impose minimal, if any, costs on U.S.
vessels.
Section 4 of the bill also would give the Secretary of
Commerce the authority to require certain vessels to provide
observer certification in fisheries where the Secretary has
identified a regular and significant incidental mortality or
serious injury rate of marine mammals. In those fisheries, in
order for tuna to be labeled as dolphin-safe, observers would
have to certify that no marine mammals were killed. Based on
information obtained from industry and government sources, CBO
does not expect the Secretary would use this authority for
U.S.-registered vessels.
H.R. 408 would require U.S. tuna vessels fishing in the ETP
to comply with tracking and verification procedures to separate
dolphin-safe and dolphin-unsafe tuna. In addition, each tuna
vessel in the ETP would be required to register for a dolphin
mortality limit with the IATTC. Based on information provided
by industry experts, CBO does not expect these requirements to
entail significant costs to the U.S. tuna industry.
Section 5 of the bill includes provisions that would codify
existing regulations of the National Oceanic and Atmospheric
Administration. These include provisions that would require the
use of certain gear and procedures and would require vessels to
obtain permits from the Secretary of Commerce for the
incidental taking of marine mammals.
Section 6 of the bill would encourage the Secretary of
State to establish a bycatch reduction program that would
include the live release of threatened and endangered species,
and measures to reduce the harvest and mortality of nontarget
species and the mortality of juvenile tuna. Based on
information provided by the U.S. Department of State, CBO does
not expect that such a program, if established, would result in
measurable costs to the private sector.
H.R. 408 would lift the existing prohibition on U.S.
vessels setting nets on dolphins in the ETP as long as vessels
comply with all appropriate regulations. The bill also would
lift the ban on the importation and sale of dolphin-unsafe tuna
from countries participating in the International Dolphin
Conservation Program. Overall, CBO estimates that enacting this
bill would result in decreased costs to the private sector.
Estimate prepared by: Federal Costs: Victoria V. Heid and
Gary Brown. Revenues: Stephanie Weiner. Impact on the Private
Sector: Lesley Frymier.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
H.R. 408 contains no unfunded mandates.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
* * * * * * *
TABLE OF CONTENTS
Sec. 2. Findings and declaration of policy.
Sec. 3. Definitions.
* * * * * * *
[Title III--Global Moratorium to Prohibit Certain Tuna Harvesting
Practices
[Sec. 301. Findings and policy.
[Sec. 302. International agreements to establish global moratorium to
prohibit certain tuna harvesting practices.
[Sec. 303. Research program.
[Sec. 304. Reviews, reports, and recommendations.
[Sec. 305. International commitments.
[Sec. 306. Permits for taking dolphins.
[Sec. 307. Prohibitions.
[Sec. 308. Authorization of appropriations.]
TITLE III--INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
Sec. 301. Findings and policy.
Sec. 302. Authority of the Secretary.
Sec. 303. Reports by the Secretary.
Sec. 304. Permits.
Sec. 305. Prohibitions.
Sec. 306. Authorization of appropriations.
* * * * * * *
Definitions
Sec. 3. For the purposes of this Act--
(1) * * *
* * * * * * *
(28) The term ``International Dolphin Conservation
Program'' means the international program established
by the agreement signed in La Jolla, California, in
June 1992, as formalized, modified, and enhanced in
accordance with the Declaration of Panama, that
requires--
(A) that the total annual dolphin mortality
in the purse seine fishery for yellowfin tuna
in the eastern tropical Pacific Ocean not
exceed 5,000, with the commitment and objective
to progressively reduce dolphin mortality to
levels approaching zero through the setting of
annual limits;
(B) the establishment of a per-stock per-year
mortality limit for dolphins, for each year
through the year 2000, of between 0.2 percent
and 0.1 percent of the minimum population
estimate;
(C) beginning with the year 2001, that the
per-stock per-year mortality of dolphin not
exceed 0.1 percent of the minimum population
estimate;
(D) that if the mortality limit set forth in
subparagraph (A) is exceeded, all sets on
dolphins shall cease for the fishing year
concerned;
(E) that if the mortality limit set forth in
subparagraph (B) or (C) is exceeded sets on
such stock and any mixed schools containing
members of such stock shall cease for that
fishing year;
(F) in the case of subparagraph (B), to
conduct a scientific review and assessment in
1998 of progress toward the year 2000 objective
and consider recommendations as appropriate;
and
(G) in the case of subparagraph (C), to
conduct a scientific review and assessment
regarding that stock or those stocks and
consider further recommendations;
(H) the establishment of a per-vessel maximum
annual dolphin mortality limit consistent with
the established per-year mortality caps; and
(I) the provision of a system of incentives
to vessel captains to continue to reduce
dolphin mortality, with the goal of eliminating
dolphin mortality.
(29) The term ``Declaration of Panama'' means the
declaration signed in Panama City, Republic of Panama,
on October 4, 1995.
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Moratorium and Exceptions
Sec. 101. (a) There shall be a moratorium on the taking and
importation of marine mammals and marine mammal products,
commencing on the effective date of this Act, during which time
no permit may be issued for the taking of any marine mammal and
no marine mammal or marine mammal product may be imported into
the United States except in the following cases:
(1) * * *
(2) Marine mammals may be taken incidentally in the
course of commercial fishing operations and permits may
be issued therefor under section 104 subject to
regulations prescribed by the Secretary in accordance
with section 103, or in lieu of such permits,
authorizations may be granted therefor under section
118, subject to regulations prescribed under that
section by the Secretary without regard to section 103.
Such authorizations may also be granted under title III
with respect to the yellowfin tuna fishery of the
eastern tropical Pacific Ocean, subject to regulations
prescribed under that title by the Secretary without
regard to section 103. In any event it shall be 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[; provided 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].
The Secretary of the Treasury shall ban 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. For purposes of applying the preceding
sentence, the Secretary--
(A) * * *
[(B) in the case of yellowfin tuna harvested
with purse seines in the eastern tropical
Pacific Ocean, and products therefrom, to be
exported to the United States, shall require
that the government of the exporting nation
provide documentary evidence that--
[(i) the government of the harvesting
nation has adopted a regulatory program
governing the incidental taking of
marine mammals in the course of such
harvesting that is comparable to that
of the United States; and
[(ii) the average rate of that
incidental taking by the vessels of the
harvesting nation is comparable to the
average rate of incidental taking of
marine mammals by United States vessels
in the course of such harvesting,
except that the Secretary shall not find that the
regulatory program, or the average rate of incidental
taking by vessels, of a harvesting nation is comparable
to that of the United States for purposes of clause (i)
or (ii) of this paragraph unless
[(I) the regulatory program
of the harvesting nation
includes, by no later than the
beginning of the 1990 fishing
season, such prohibitions
against encircling pure schools
of species of marine mammals,
conducting sundown sets, and
other activities as are made
applicable to United States
vessels;
[(II) the average rate of the
incidental taking by vessels of
the harvesting nation is no
more than 2.0 times that of
United States vessels during
the same period by the end of
the 1989 fishing season and no
more than 1.25 times that of
United States vessels during
the same period by the end of
the 1990 fishing season and
thereafter;
[(III) the total number of
eastern spinner dolphin
(Stenella longirostris)
incidentally taken by vessels
of the harvesting nation during
the 1989 and subsequent fishing
seasons does not exceed 15
percent of the total number of
all marine mammals incidentally
taken by such vessels in such
year and the total number of
coastal spotted dolphin
(Stenella attenuata)
incidentally taken by such
vessels in such seasons does
not exceed 2 percent of the
total number of all marine
mammals incidentally taken by
such vessels in such year;
[(IV) the rate of incidental
taking of marine mammals by the
vessels of the harvesting
nation during the 1989 and
subsequent fishing seasons is
monitored by the porpoise
mortality observer program of
the Inter-American Tropical
Tuna Commission or an
equivalent international
program in which the United
States participates and is
based upon observer coverage
that is equal to that achieved
for United States vessels
during the same period, except
that the Secretary may approve
an alternative observer program
if the Secretary determines, no
less than sixty days after
publication in the Federal
Register of the Secretary's
proposal and reasons therefor,
that such an alternative
observer program will provide
sufficiently reliable
documentary evidence of the
average rate of incidental
taking by a harvesting nation;
and
[(V) the harvesting nation
complies with all reasonable
requests by the Secretary for
cooperation in carrying out the
scientific research program
required by section 104(h)(3)
of this title;]
(B) in the case of yellowfin tuna harvested
with purse seine nets in the eastern tropical
Pacific Ocean, and products therefrom, to be
exported to the United States, shall require
that the government of the exporting nation
provide documentary evidence that--
(i) the tuna or products therefrom
were not banned from importation under
this paragraph before the effective
date of the International Dolphin
Conservation Program Act;
(ii) the tuna or products therefrom
were harvested after the effective date
of the International Dolphin
Conservation Program Act by vessels of
a nation which participates in the
International Dolphin Conservation
Program, such harvesting nation is
either a member of the Inter-American
Tropical Tuna Commission or has
initiated (and within 6 months
thereafter completed) all steps (in
accordance with article V, paragraph 3
of the Convention establishing the
Inter-American Tropical Tuna
Commission) necessary to become a
member of that organization;
(iii) such nation is meeting the
obligations of the International
Dolphin Conservation Program and the
obligations of membership in the Inter-
American Tropical Tuna Commission,
including all financial obligations;
(iv) the total dolphin mortality
permitted under the International
Dolphin Conservation Program will not
exceed 5,000 in 1997, or in any year
thereafter, consistent with the
commitment and objective of
progressively reducing dolphin
mortality to levels approaching zero
through the setting of annual limits
and the goal of eliminating dolphin
mortality; and
(v) the tuna or products therefrom
were harvested after the effective date
of the International Dolphin
Conservation Program Act by vessels of
a nation which participates in the
International Dolphin Conservation
Program, and such harvesting nation has
not vetoed the participation by any
other nation in such Program.
* * * * * * *
(d) Acceptance of Documentary Evidence.--The Secretary shall
not accept documentary evidence referred to in section
101(a)(2)(B) as satisfactory proof for purposes of section
101(a)(2) if--
(1) the government of the harvesting nation does not
provide directly or authorize the Inter-American
Tropical Tuna Commission to release complete and
accurate information to the Secretary to allow a
determination of compliance with the International
Dolphin Conservation Program;
(2) the government of the harvesting nation does not
provide directly or authorize the Inter-American
Tropical Tuna Commission to release complete and
accurate information to the Secretary in a timely
manner for the purposes of tracking and verifying
compliance with the minimum requirements established by
the Secretary in regulations promulgated under
subsection (f) of the Dolphin Protection Consumer
Information Act (16 U.S.C. 1385(f)); or
(3) after taking into consideration this information,
findings of the Inter-American Tropical Tuna
Commission, and any other relevant information,
including information that a nation is consistently
failing to take enforcement actions on violations which
diminish the effectiveness of the International Dolphin
Conservation Program, the Secretary, in consultation
with the Secretary of State, finds that the harvesting
nation is not in compliance with the International
Dolphin Conservation Program.
(e) Exemption.--The provisions of this Act shall not apply to
a citizen of the United States who incidentally takes any
marine mammal during fishing operations outside the United
States exclusive economic zone (as defined in section 3(6) of
the Magnuson Fishery Conservation and Management Act (16 U.S.C.
1802(6))) when employed on a foreign fishing vessel of a
harvesting nation which is in compliance with the International
Dolphin Conservation Program.
* * * * * * *
Permits
Sec. 104. (a) * * *
* * * * * * *
[(h)(1) Consistent with the regulations prescribed pursuant
to section 103 of this title and to the requirements of section
101 of this title, the Secretary may issue general permits for
the taking of such marine mammals, together with regulations to
cover the use of such general permits.
[(2)(A) Subject to subparagraph (B), the general permit
issued under paragraph (1) on December 1, 1980 to the American
Tunaboat Association is extended to authorize and govern the
taking of marine mammals incidental to commercial purse seine
fishing for yellowfin tuna during each year after December 31,
1984.
[(B) The extension granted under subparagraph (A) is subject
to the following conditions:
[(i) The extension shall cease to have force and
effect at the time the general permit is surrendered or
terminated.
[(ii) The permittee and certificate holders shall use
the best marine mammal safety techniques and equipment
that are economically and technologically practicable.
[(iii) During the period of the extension, the terms
and conditions of the general permit that are in effect
on the date of the enactment of this paragraph shall
apply, except that
[(I) the Secretary may make such adjustments
as may be appropriate to those terms and
conditions that pertain to fishing gear and
fishing practice requirements and to permit
administration;
[(II) any such term and condition may be
amended or terminated if the amendment or
termination is based on the best scientific
information available, including that obtained
under the monitoring program required under
paragraph (3)(A); and
[(III) during each year of the extension, not
to exceed 250 coastal spotted dolphin (Stenella
attenuata) and not to exceed 2,750 eastern
spinner dolphin (Stenella longirostris) may be
incidentally taken under the general permit,
and no accidental taking of either species is
authorized at any time when incidental taking
of that species is permitted.
[(iv) The Secretary shall, by January 1, 1989,
prescribe regulations to ensure that the backdown
procedure during sets of the purse seine net on marine
mammals is completed and rolling of the net to sack up
has begun no later than thirty minutes after sundown.
The Secretary may waive or otherwise modify such
regulations for--
[(I) a designated certificate holder on an
observed trip if the Secretary determines,
based on observer reports, that such
restriction is not necessary because the
certificate holder has consistently utilized
fishing techniques and equipment so as to
result in an incidental marine mammal mortality
rate during sundown sets that is no higher than
the average such rate for the fleet during
daylight sets; or
[(II) all certificate holders on observed
trips if the Secretary determines that such
restriction is not necessary because all
certificate holders have developed and are
utilizing fishing techniques and equipment that
assure that the incidental marine mammal
mortality rate during sundown sets will be no
higher than such rate during daylight sets.
[(v) The Secretary may authorize, after public notice
and opportunity for comment, designated certificate
holders to conduct experimental fishing operations on
observed trips, under such terms and conditions as the
Secretary may prescribe, for the purpose of testing
proposed improvements in fishing techniques and
equipment that may reduce the incidental mortality of
marine mammals in the course of commercial yellowfin
tuna fishing operations, and the Secretary may waive
such terms and conditions of the general permit and
this section, other than the quotas on incidental
taking of marine mammals and the prohibition against
encircling pure schools of certain species of marine
mammals, as the Secretary determines to be necessary
and appropriate for the conduct of such experimental
fishing.
[(vi) The Secretary, after public notice and
opportunity for comment and consultation with the
skippers' panel of experts established pursuant to the
general permit, shall develop and implement by not
later than the beginning of the 1990 fishing season a
system of performance standards to maintain the
diligence and proficiency of certificate holders in the
use of the best marine mammal safety techniques and
equipment that are economically and technologically
practicable. The system shall include such arrangements
as are necessary for the identification of certificate
holders whose incidental marine mammal mortality rate
is consistently and substantially higher than the
average rate of the fleet, and for the supplemental
training and observation of such certificate holders,
and provisions for suspension or revocation of
certificates of inclusion of those certificate holders
whose unacceptably high rate of incidental taking
reflects a lack of diligence or proficiency in the use
of the best marine mammal safety techniques and
equipment.
[(vii) It shall be unlawful to use any explosive
devices other than class C explosive pest control
devices in the course of commercial yellowfin tuna
fishing subject to the general permit. The Secretary
shall prescribe regulations, effective April 1, 1990,
to prohibit or restrict the use of class C explosive
pest control devices in the course of commercial
yellowfin tuna fishing unless the Secretary determines,
based on a study which the Secretary shall undertake,
that the use of such devices does not result in
physical impairment or increased mortality of marine
mammals.
[(viii) During the 1989 and subsequent fishing
seasons, each certificated vessel shall carry on every
fishing trip subject to this subsection an official
observer certified by the Secretary or by the Inter-
American Tropical Tuna Commission for the purpose of
conducting research and observing fishing operations
unless, for reasons beyond the control of the
Secretary, an observer is not available for such
purpose. The Secretary may waive this requirement after
the 1991 fishing season and establish a less extensive
observer program if the Secretary, after notice and
opportunity for comment, determines that such an
alternative program will provide sufficiently reliable
information.
[(ix) The Secretary shall annually convene meetings
with representatives of conservation and environmental
organizations, the commercial tuna fishing industry,
and other interested persons for the purpose of
discussing the results of efforts to reduce the
incidental mortality and serious injury of marine
mammals under this subsection as well as throughout the
international fleet as a whole and developing plans for
such efforts during the next year. On or before April
1, 1992, the Secretary shall submit to the Committee on
Commerce, Science, and Transportation of the Senate and
the Committee on Merchant Marine and Fisheries of the
House of Representatives a comprehensive report on the
results of such efforts. The report shall discuss the
results of the scientific research programs,
performance standards, observer program, prohibition on
sundown sets, development of alternative fishing
techniques, and other efforts required by this section,
and shall include recommendations for such action as
the Secretary considers necessary and desirable to
reduce further the total mortality and serious injury
of marine mammals in the course of commercial yellowfin
tuna fishing throughout the international fleet.
[(C) The quota on the incidental taking of coastal spotted
dolphin and eastern spinner dolphin under paragraph
(2)(B)(iii)(III) shall be treated
[(i) as within, and not in addition to, the overall
annual quota under the general permit on the incidental
taking of marine mammals; and
[(ii) for purposes of paragraph (2)(B)(iii)(II), as a
term of the general permit in effect on the date of the
enactment of this paragraph.
[(3)(A) The Secretary shall, commencing on January 1, 1985,
undertake a scientific research program to monitor for at least
five consecutive years, and periodically as necessary
thereafter, the indices of abundance and trends of marine
mammal population stocks which are incidentally taken in the
course of commercial purse seine fishing for yellowfin tuna in
the eastern tropical Pacific Ocean.
[(B) If the Secretary determines, on the basis of the best
scientific information available (including that obtained under
the monitoring program), that the incidental taking of marine
mammals permitted under the general permit referred to in
paragraph (2) is having a significant adverse effect on a
marine mammal population stock, the Secretary shall take such
action as is necessary, after notice and an opportunity for an
agency hearing on the record, to modify the applicable
incidental take quotas or requirements for gear and fishing
practices (or both such quotas and requirements) for such
fishing so as to ensure that the marine mammal population stock
is not significantly adversely affected by the incidental
taking.
[(C) For each year after 1984, the Secretary shall include in
his annual report to the public and the Congress under section
103(f) a discussion of the proposed activities to be conducted
each year as part of the monitoring program required by
subparagraph (A).
[(D) There are authorized to be appropriated to the
Department of Commerce for purposes of carrying out the
monitoring program required under this paragraph not to exceed
$4,000,000 for the period beginning October 1, 1984, and ending
September 30, 1988.]
(h) Annual Permits.--(1) Consistent with the regulations
prescribed pursuant to section 103 and the requirements of
section 101, the Secretary may issue an annual permit to a
United States vessel for the taking of such marine mammals, and
shall issue regulations to cover the use of any such annual
permits.
(2) Annual permits described in paragraph (1) for the
incidental taking of marine mammals in the course of commercial
purse seine fishing for yellowfin tuna in the eastern tropical
Pacific Ocean shall be governed by section 304, subject to the
regulations issued pursuant to section 302.
* * * * * * *
International Program
Sec. 108. (a) The Secretary, through the Secretary of State,
shall--
(1) * * *
(2) initiate--
(A) negotiations as soon as possible with all
foreign governments which are engaged in, or
which have persons or companies engaged in,
commercial fishing operations which are found
by the Secretary to be unduly harmful to any
species or population stock of marine mammal,
for the purpose of entering into bilateral and
multilateral treaties with such countries to
protect marine mammals, with the Secretary of
State to prepare a draft agenda relating to
this matter for discussion at appropriate
international meetings and forums; [and]
* * * * * * *
(C) discussions to expeditiously negotiate
revisions to the Convention for the
Establishment of an Inter-American Tropical
Tuna Commission (1 UST 230, TIAS 2044) which
will incorporate conservation and management
provisions agreed to by the nations which have
signed the Declaration of Panama;
(D) a revised schedule of annual
contributions to the expenses of the Inter-
American Tropical Tuna Commission that is
equitable to participating nations; and
(E) discussions with those countries
participating or likely to participate in the
International Dolphin Conservation Program, to
identify alternative sources of funds to ensure
that needed research and other measures
benefiting effective protection of dolphins,
other marine species, and the marine ecosystem;
* * * * * * *
Marine Mammal Research Grants
Sec. 110. [(a)(1)] (a) The Secretary is authorized to make
grants, or to provide financial assistance in such other form
as he deems appropriate, to any Federal or State agency, public
or private institution, or other person for the purpose of
assisting such agency, institution, or person to undertake
research in subjects which are relevant to the protection and
conservation of marine mammals. In carrying out this
subsection, the Secretary shall undertake a program of, and
shall provide financial assistance for, research into new
methods of locating and catching yellowfin tuna without the
incidental taking of marine mammals. The Secretary shall
include a description of the annual results of research carried
out under this section in the report required under section
103(f).
[(2) For purposes of identifying appropriate research into
promising new methods of locating and catching yellowfin tuna
without the incidental taking of marine mammals, the Secretary
shall contract for an independent review of information
pertaining to such potential alternative methods to be
conducted by the National Academy of Sciences with individuals
having scientific, technical, or other expertise that may be
relevant to the identification of promising alternative fishing
techniques. The Secretary shall request that the independent
review be submitted to the Secretary on or before September 8,
1989, and the Secretary shall submit the report of the
independent review, together with a proposed plan for research,
development, and implementation of alternative fishing
techniques, to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Merchant
Marine and Fisheries of the House of Representatives on or
before December 5, 1989.]
* * * * * * *
[TITLE III--GLOBAL MORATORIUM TO PROHIBIT CERTAIN TUNA HARVESTING
PRACTICES]
TITLE III--INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
SEC. 301. FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) * * *
* * * * * * *
[(4) Nations harvesting yellowfin tuna in the eastern
tropical Pacific Ocean have indicated their willingness
to participate in appropriate multilateral agreements
to reduce, and eventually eliminate, dolphin mortality
in that fishery.]
(4) Nations harvesting yellowfin tuna in the eastern
tropical Pacific Ocean have demonstrated their
willingness to participate in appropriate multilateral
agreements to reduce, with the goal of eliminating,
dolphin mortality in that fishery. Recognition of the
International Dolphin Conservation Program will assure
that the existing trend of reduced dolphin mortality
continues; that individual stocks of dolphins are
adequately protected; and that the goal of eliminating
all dolphin mortality continues to be a priority.
(b) Policy.--It is the policy of the United States to--
(1) * * *
[(2) secure appropriate multilateral agreements to
reduce, and eventually eliminate, the mortality
referred to in paragraph (1);
[(3) ensure that the market of the United States does
not act as an incentive to the harvest of tuna caught
in association with dolphins or with driftnets;]
(2) support the International Dolphin Conservation
Program and efforts within the Program to reduce, with
the goal of eliminating, the mortality referred to in
paragraph (1);
(3) ensure that the market of the United States does
not act as an incentive to the harvest of tuna caught
with driftnets or caught by purse seine vessels in the
eastern tropical Pacific Ocean that are not operating
in compliance with the International Dolphin
Conservation Program;
* * * * * * *
[SEC. 302. INTERNATIONAL AGREEMENTS TO ESTABLISH GLOBAL MORATORIUM TO
PROHIBIT CERTAIN TUNA HARVESTING PRACTICES.
[(a) In General.--The Secretary of State, in consultation
with the Secretary, may enter into international agreements
which establish, in accordance with this title, a global
moratorium of at least 5 years duration to prohibit harvesting
tuna through the use of purse seine nets deployed on or to
encircle dolphins or other marine mammals.
[(b) Terms of Agreement.--Any agreement entered into under
this section shall--
[(1) establish a moratorium described in subsection
(a) which takes effect on March 1, 1994;
[(2) include an international research program and,
notwithstanding the moratorium, authorize harvesting of
tuna under that program;
[(3) provide for reviews and reports in accordance
with section 304 on results of research conducted under
the research program;
[(4) require each country that is a party to the
agreement to take all the necessary and appropriate
steps to ensure compliance with the moratorium; and
[(5) encourage each country that is a party to the
agreement to seek, through bilateral and multilateral
negotiations, to encourage other countries that
participate in fisheries to which the agreement applies
to become parties to the agreement.
[(c) Compliance by United States With Moratorium.--The
moratorium authorized under subsection (a) may be terminated
prior to December 31, 1999, with respect to the United States
for the harvesting of tuna in the eastern tropical Pacific
Ocean only if--
[(1) the Secretary submits to the Congress in
accordance with section 304(b) a recommendation that
the moratorium be terminated; and
[(2) the recommendation is approved by enactment of a
joint resolution of approval.
[SEC. 303. RESEARCH PROGRAMS.
[(a) In General.--An agreement entered into under section 302
shall--
[(1) establish an international research program to
develop methods of fishing for large yellowfin tuna--
[(A) without setting nets on dolphins or
other marine mammals; or
[(B) by setting nets on dolphins or other
marine mammals with zero set-caused mortality;
[(2) require that proposals for research under the
program be reviewed and authorized by a competent
regional organization;
[(3) require that research under the program be
conducted by dedicated vessels that--
[(A) are authorized to conduct that research
by a competent regional organization; and
[(B) have on board in accordance with section
305(a)(2) an observer who is responsible to,
and supervised by, a competent regional
organization.
[(b) Limitations on Dolphin Mortality.--For the eastern
tropical Pacific Ocean, an agreement entered into under section
302 shall require that--
[(1) the total number of research sets on dolphins
conducted pursuant to this section during the period
beginning March 1, 1994, and ending December 31, 1999,
shall not exceed 400 annually, and that the total
annual dolphin mortality shall not exceed 1,000;
[(2) the Inter-American Tropical Tuna Commission
shall establish a panel to review and report on the
compliance of the international yellowfin tuna fishery
fleet with the limits established in paragraph (1) and
make recommendations as appropriate; and
[(3) the Inter-American Tropical Tuna Commission
shall establish an Advisory Board of technical
specialists from the international communities of
scientists, government agencies, environmental groups,
and the fishing industry, to assist that commission in
efforts to coordinate, facilitate, and guide research.
[(c) Funding.--
[(1) In general.--An agreement entered into under
section 302 shall establish fair and equitable
mechanisms for funding research conducted pursuant to
this section.
[(2) Proceeds of research harvests.--An agreement
entered into under section 302 shall provide that the
proceeds of any tuna harvested for the purpose of
research conducted pursuant to this section should, to
the extent possible, be used for funding research
conducted pursuant to this section.
[(3) Limitation on use of united states funding.--
Funding provided by the United States for research
shall be used only for the purpose of developing
methods of fishing for large yellowfin tuna that do not
involve intentionally encircling dolphins or other
marine mammals.
[(d) Review of Research Proposals.--The Marine Mammal
Commission established under section 201 shall--
[(1) review all research proposals submitted to the
Inter-American Tropical Tuna Commission; and
[(2) recommend an appropriate response to each of
those proposals, to the United States Commissioners on
the Inter-American Tropical Tuna Commission.
[SEC. 304. REVIEWS, REPORTS, AND RECOMMENDATIONS.
[(a) Reports by the Secretary.--The Secretary shall submit
annual reports to the Congress which include--
[(1) results of research conducted pursuant to
section 303;
[(2) a description of the status of stocks of
yellowfin tuna;
[(3) an assessment of the economic impacts on the
tuna industry and consumers caused by the moratorium
established by agreements entered into under section
302;
[(4) an assessment of the effectiveness of the
moratorium in protecting dolphin populations in the
eastern tropical Pacific Ocean;
[(5) results of reviews conducted under section
305(c);
[(6) copies of any international agreements or
undertakings authorized by or related to this title;
[(7) an assessment of the impact on fishery
resources, other than yellowfin tuna, of methods of
fishing for large yellowfin tuna in the eastern
tropical Pacific Ocean that do not involve the
intentional encirclement of dolphins; and
[(8) any other relevant information.
[(b) Recommendations of the Secretary.--If a competent
regional organization under the auspices of which research is
conducted pursuant to section 303, or any country which
participates in such an organization, submits to the United
States a recommendation that a moratorium established by
agreements entered into under section 302 should be terminated
prior to December 31, 1999, the Secretary shall--
[(1) review the information on which the
recommendation is based;
[(2) consult with relevant Federal agencies,
including the Marine Mammal Commission, and other
interested persons; and
[(3) submit to the Congress a recommendation
regarding the termination of the moratorium.
[SEC. 305. INTERNATIONAL COMMITMENTS.
[(a) Limitation on Application of Ban on Imports.--Except as
provided in subsection (b), the Secretary of the Treasury shall
not, under section 101(a)(2) (A) and (B), ban the importation
of yellowfin tuna or yellowfin tuna products from a country
that transmits to the Secretary of State a formal communication
in which the country commits to--
[(1) implement a moratorium of at least 5 years
duration beginning March 1, 1994, on the practice of
harvesting tuna through the use of purse seine nets
deployed on or to encircle dolphins or other marine
mammals unless the moratorium is terminated in
accordance with section 302(c);
[(2) require an observer on each vessel of the
country larger than 400 short tons carrying capacity
which engages in purse seine fishing for yellowfin tuna
in the eastern tropical Pacific Ocean, and ensure that
at least 50 percent of all such observers are
responsible to, and supervised by, a competent regional
organization;
[(3) reduce the dolphin mortality resulting from
purse seine net operations conducted by vessels of the
country in 1992 to a level that is lower than such
mortality in 1991 by a statistically significant
margin; and
[(4) reduce the dolphin mortality resulting from
purse seine net operations conducted by vessels of the
country in the period beginning January 1, 1993, and
ending February 28, 1994, to a level that is lower than
such mortality in 1992 by a statistically significant
margin.
[(b) Subsequent Bans on Fish and Fish Product Imports for
Failure To Comply With Commitments.--
[(1) Ban on imports of yellowfin tuna and yellowfin
tuna products.--The Secretary, in consultation with the
Secretary of State, shall periodically determine
whether each country which has transmitted a formal
communication expressing the commitments described in
subsection (a) is fully implementing those commitments.
If the Secretary determines that any such country is
not implementing those commitments--
[(A) the Secretary shall notify the President
and the Congress of that determination; and
[(B) 15 days after such notification, the
Secretary of the Treasury shall ban the
importation from that country of all yellowfin
tuna and yellowfin tuna products.
[(2) Ban on imports of other fish and fish
products.--
[(A) In general.--If--
[(i) a country does not, within 60
days after the establishment with
respect to that country of a ban on
importation under paragraph (1)(B),
certify and provide reasonable proof to
the Secretary that the country has
fully implemented the commitment
described in subsection (a)(1) or has
taken the necessary actions to remedy
its failure to comply with the
commitments described in subsection (a)
(2), (3), and (4); and
[(ii) the Secretary does not, before
the end of that 60-day period, certify
to the President that the country has
provided such certification and proof;
the President shall direct the Secretary of the
Treasury to ban the importation from that
country of all articles (other than those
subject to an importation ban under paragraph
(1)(B)) that are classified under one or more
of those fish and fish product categories that
the President, subject to subparagraph (B),
considers appropriate to carry out this
paragraph.
[(B) Ban criteria.--The one or more fish and
fish product categories to which the President
imposes an import ban under subparagraph (A)
with respect to a country must be a fish and
fish product category or categories with
respect to which the articles classified
thereunder and imported from that country in
the base year had an aggregate customs
valuation equal to 40 percent of the aggregate
customs valuation of all articles classified
under all fish and fish product categories that
were imported from that country during the base
year.
[(C) Definition of base year.--For purposes
of subparagraph (B), the term ``base year''
means the calendar year immediately occurring
before the calendar year in which the import
ban under subparagraph (A) commences with
respect to the country.
[(3) Duration of import bans.--Bans on importation
imposed under paragraphs (1) and (2) with respect to a
country shall continue in effect until the Secretary
determines that the country is implementing the
commitments described in subsection (a).
[(4) Implementation of import bans.--The Secretary of
the Treasury shall take such action as may be necessary
or appropriate to implement importation bans imposed
under paragraphs (1) and (2).
[(c) Reviews and Reports.--The Secretary, in consultation
with the Secretary of State, shall--
[(1) periodically review the activities of countries
which have transmitted to the Secretary of State formal
communications expressing the commitments described in
subsection (a), to determine whether those countries
are complying with those commitments; and
[(2) include the results of those reviews in annual
reports submitted to the Congress pursuant to section
304(a).
[SEC. 306. PERMITS FOR TAKING DOLPHINS.
[(a) Additional Restrictions Under General Permit.--
Notwithstanding section 104(h), the general permit issued to
the American Tunaboat Association on December 1, 1980, shall be
subject to the following additional restrictions:
[(1) Total dolphin mortalities (including mortalities
resulting from research) authorized by the permit shall
not exceed 1,000 during the period beginning January 1,
1992, and ending December 31, 1992, and 800 during the
period beginning January 1, 1993, and ending March 1,
1994.
[(2) No purse seine net may be deployed under the
permit on or to encircle any school of dolphins in
which any eastern spinner dolphin (Stenella
longirostris) or coastal spotted dolphin (Stenella
attenuata) is observed prior to release of the net
skiff.
[(3) The permit shall expire March 1, 1994, unless no
major purse seine tuna fishing country enters into an
agreement with the Secretary in accordance with section
302 before that date (notwithstanding any agreement
under that section with a country that is not a major
purse seine tuna fishing country).
[(4) If no major purse seine tuna fishing country
enters into an agreement with the Secretary in
accordance with section 302 before March 1, 1994, and
notwithstanding any agreement under that section with a
country that is not a major purse seine tuna fishing
country--
[(A) the total dolphin mortalities authorized
by the permit for each year after 1992,
including mortalities caused by research, shall
not exceed the number of dolphin mortalities
which occurred under the permit during the
preceding year;
[(B) the total dolphin mortalities occurring
under the permit each year shall continue to be
reduced by statistically significant amounts
each year to levels approaching zero by
December 31, 1999;
[(C) the permit shall be subject to any
additional restrictions that the Secretary
considers appropriate; and
[(D) the permit shall expire December 31,
1999.
[(b) Permits Required for Taking Dolphins for Research
Purposes.--An agreement entered into under section 302 shall
not supersede or be interpreted to supersede any provision of
this Act under which a permit under this Act is required for
activities conducted pursuant to this title.
[(c) Major Purse Seine Tuna Fishing Country Defined.--For
purposes of this section, the term ``major purse seine tuna
fishing country'' means a country which on the effective date
of this title has an active purse seine tuna fishing fleet of
20 or more vessels.]
SEC. 302. AUTHORITY OF THE SECRETARY.
(a) Regulations To Implement Program Regulations.--(1) The
Secretary shall issue regulations to implement the
International Dolphin Conservation Program.
(2)(A) Not later than 3 months after the date of enactment of
this section, the Secretary shall issue regulations to
authorize and govern the incidental taking of marine mammals in
the eastern tropical Pacific Ocean, including any species of
marine mammal designated as depleted under this Act but not
listed as endangered or threatened under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), by vessels of the United
States participating in the International Dolphin Conservation
Program.
(B) Regulations issued under this section shall include
provisions--
(i) requiring observers on each vessel;
(ii) requiring use of the backdown procedure or other
procedures equally or more effective in avoiding
mortality of marine mammals in fishing operations;
(iii) prohibiting intentional deployment of nets on,
or encirclement of, dolphins in violation of the
International Dolphin Conservation Program;
(iv) requiring the use of special equipment,
including dolphin safety panels in nets, monitoring
devices as identified by the International Dolphin
Conservation Program, as practicable, to detect unsafe
fishing conditions before nets are deployed by a tuna
vessel, operable rafts, speedboats with towing bridles,
floodlights in operable condition, and diving masks and
snorkels;
(v) ensuring that the backdown procedure during the
deployment of nets on, or encirclement of, dolphins is
completed and rolling of the net to sack up has begun
no later than 30 minutes after sundown;
(vi) banning the use of explosive devices in all
purse seine operations;
(vii) establishing per vessel maximum annual dolphin
mortality limits, total dolphin mortality limits and
per-stock per-year mortality limits, in accordance with
the International Dolphin Conservation Program;
(viii) preventing the intentional deployment of nets
on, or encirclement of, dolphins after reaching either
the vessel maximum annual dolphin mortality limits,
total dolphin mortality limits, or per-stock per-year
mortality limits;
(ix) preventing the fishing on dolphins by a vessel
without an assigned vessel dolphin mortality limit;
(x) allowing for the authorization and conduct of
experimental fishing operations, under such terms and
conditions as the Secretary may prescribe, for the
purpose of testing proposed improvements in fishing
techniques and equipment (including new technology for
detecting unsafe fishing conditions before nets are
deployed by a tuna vessel) that may reduce or eliminate
dolphin mortality or do not require the encirclement of
dolphins in the course of commercial yellowfin tuna
fishing;
(xi) authorizing fishing within the area covered by
the International Dolphin Conservation Program by
vessels of the United States without the use of special
equipment or nets if the vessel takes an observer and
does not intentionally deploy nets on, or encircle,
dolphins, under such terms and conditions as the
Secretary may prescribe; and
(xii) containing such other restrictions and
requirements as the Secretary determines are necessary
to implement the International Dolphin Conservation
Program with respect to vessels of the United States.
(C) The Secretary may make such adjustments as may be
appropriate to the requirements of subparagraph (B) that
pertain to fishing gear, vessel equipment, and fishing
practices to the extent the adjustments are consistent with the
International Dolphin Conservation Program.
(b) Consultation.--In developing regulations under this
section, the Secretary shall consult with the Secretary of
State, the Marine Mammal Commission and the United States
Commissioners to the Inter-American Tropical Tuna Commission
appointed under section 3 of the Tuna Conventions Act of 1950
(16 U.S.C. 952).
(c) Emergency Regulations.--(1) If the Secretary determines,
on the basis of the best scientific information available
(including that obtained under the International Dolphin
Conservation Program) that the incidental mortality and serious
injury of marine mammals authorized under this title is having,
or is likely to have, a significant adverse effect on a marine
mammal stock or species, the Secretary shall take actions as
follows--
(A) notify the Inter-American Tropical Tuna
Commission of the Secretary's findings, along with
recommendations to the Commission as to actions
necessary to reduce incidental mortality and serious
injury and mitigate such adverse impact; and
(B) prescribe emergency regulations to reduce
incidental mortality and serious injury and mitigate
such adverse impact.
(2) Prior to taking action under paragraph (1) (A) or (B),
the Secretary shall consult with the Secretary of State, the
Marine Mammal Commission, and the United States Commissioners
to the Inter-American Tropical Tuna Commission.
(3) Emergency regulations prescribed under this subsection--
(A) shall be published in the Federal Register,
together with an explanation thereof; and
(B) shall remain in effect for the duration of the
applicable fishing year; and
The Secretary may terminate such emergency regulations at a
date earlier than that required by subparagraph (B) by
publication in the Federal Register of a notice of termination,
if the Secretary determines that the reasons for the emergency
action no longer exist.
(4) If the Secretary finds that the incidental mortality and
serious injury of marine mammals in the yellowfin tuna fishery
in the eastern tropical Pacific Ocean is continuing to have a
significant adverse impact on a stock or species, the Secretary
may extend the emergency regulations for such additional
periods as may be necessary.
(d) Research.--The Secretary shall, in cooperation with the
nations participating in the International Dolphin Conservation
Program and with the Inter-American Tropical Tuna Commission,
undertake or support appropriate scientific research to further
the goals of the International Dolphin Conservation Program.
Such research may include but shall not be limited to any of
the following:
(1) Devising cost-effective fishing methods and gear
so as to reduce, with the goal of eliminating, the
incidental mortality and serious injury of marine
mammals in connection with commercial purse seine
fishing in the eastern tropical Pacific Ocean.
(2) Developing cost-effective methods of fishing for
mature yellowfin tuna without deployment of nets on, or
encirclement of, dolphins or other marine mammals.
(3) Carrying out stock assessments for those marine
mammal species and marine mammal stocks taken in the
purse seine fishery for yellowfin tuna in the eastern
tropical Pacific Ocean, including species or stocks not
within waters under the jurisdiction of the United
States.
(4) Studying the effects of chase and encirclement on
the health and biology of dolphin and individual
dolphin populations incidentally taken in the course of
purse seine fishing for yellowfin tuna in the eastern
tropical Pacific Ocean. There are authorized to be
appropriated to the Department of Commerce $1,000,000
to be used by the Secretary, acting through the
National Marine Fisheries Service, to carry out this
paragraph. Upon completion of the study, the Secretary
shall submit a report containing the results of the
study, together with recommendations, to the Congress
and to the Inter-American Tropical Tuna Commission.
(5) Determining the extent to which the incidental
take of nontarget species, including juvenile tuna,
occurs in the course of purse seine fishing for
yellowfin tuna in the eastern tropical Pacific Ocean,
the geographic location of the incidental take, and the
impact of that incidental take on tuna stocks, and
nontarget species.
The Secretary shall include a description of the annual results
of research carried out under this subsection in the report
required under section 303.
SEC. 303. REPORTS BY THE SECRETARY.
Notwithstanding section 103(f), the Secretary shall submit an
annual report to the Congress which includes each of the
following:
(1) The results of research conducted pursuant to
section 302.
(2) A description of the status and trends of stocks
of tuna.
(3) A description of the efforts to assess, avoid,
reduce, and minimize the bycatch of juvenile yellowfin
tuna and other nontarget species.
(4) A description of the activities of the
International Dolphin Conservation Program and of the
efforts of the United States in support of the
Program's goals and objectives, including the
protection of dolphin populations in the eastern
tropical Pacific Ocean, and an assessment of the
effectiveness of the Program.
(5) Actions taken by the Secretary under subsections
(a)(2)(B) and (d) of section 101.
(6) Copies of any relevant resolutions and decisions
of the Inter-American Tropical Tuna Commission, and any
regulations promulgated by the Secretary under this
title.
(7) Any other information deemed relevant by the
Secretary.
SEC. 304. PERMITS.
(a) In General.--(1) Consistent with section 302, the
Secretary is authorized to issue a permit to a vessel of the
United States authorizing participation in the International
Dolphin Conservation Program and may require a permit for the
person actually in charge of and controlling the fishing
operation of the vessel. The Secretary shall prescribe such
procedures as are necessary to carry out this subsection,
including, but not limited to, requiring the submission of--
(A) the name and official number or other
identification of each fishing vessel for which a
permit is sought, together with the name and address of
the owner thereof; and
(B) the tonnage, hold capacity, speed, processing
equipment, and type and quantity of gear, including an
inventory of special equipment required under section
302, with respect to each vessel.
(2) The Secretary is authorized to charge a fee for issuing a
permit under this section. The level of fees charged under this
paragraph may not exceed the administrative cost incurred in
granting an authorization and issuing a permit. Fees collected
under this paragraph shall be available, subject to
appropriations, to the Under Secretary of Commerce for Oceans
and Atmosphere for expenses incurred in issuing permits under
this section.
(3) After the effective date of the International Dolphin
Conservation Program Act, no vessel of the United States shall
operate in the yellowfin tuna fishery in the eastern tropical
Pacific Ocean without a valid permit issued under this section.
(b) Permit Sanctions.--(1) In any case in which--
(A) a vessel for which a permit has been issued under
this section has been used in the commission of an act
prohibited under section 305;
(B) the owner or operator of any such vessel or any
other person who has applied for or been issued a
permit under this section has acted in violation of
section 305; or
(C) any civil penalty or criminal fine imposed on a
vessel, owner or operator of a vessel, or other person
who has applied for or been issued a permit under this
section has not been paid or is overdue, the Secretary
may--
(i) revoke any permit with respect to such
vessel, with or without prejudice to the
issuance of subsequent permits;
(ii) suspend such permit for a period of time
considered by the Secretary to be appropriate;
(iii) deny such permit; or
(iv) impose additional conditions or
restrictions on any permit issued to, or
applied for by, any such vessel or person under
this section.
(2) In imposing a sanction under this subsection, the
Secretary shall take into account--
(A) the nature, circumstances, extent, and gravity of
the prohibited acts for which the sanction is imposed;
and
(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and other
such matters as justice requires.
(3) Transfer of ownership of a vessel, by sale or otherwise,
shall not extinguish any permit sanction that is in effect or
is pending at the time of transfer of ownership. Before
executing the transfer of ownership of a vessel, by sale or
otherwise, the owner shall disclose in writing to the
prospective transferee the existence of any permit sanction
that will be in effect or pending with respect to the vessel at
the time of transfer.
(4) In the case of any permit that is suspended for the
failure to pay a civil penalty or criminal fine, the Secretary
shall reinstate the permit upon payment of the penalty or fine
and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this section unless
there has been a prior opportunity for a hearing on the facts
underlying the violation for which the sanction is imposed,
either in conjunction with a civil penalty proceeding under
this title or otherwise.
SEC. [307.] 305. PROHIBITIONS.
(a) In General.--It is unlawful--
[(1) for any person, after June 1, 1994, to sell,
purchase, offer for sale, transport, or ship, in the
United States, any tuna or tuna product that is not
dolphin safe;
[(2) for any person or vessel that is subject to the
jurisdiction of the United States, intentionally to set
a purse seine net on or to encircle any marine mammal
during any tuna fishing operation after February 28,
1994, except--
[(A) as necessary for scientific research
approved by the Inter-American Tropical Tuna
Commission;
[(B) in accordance with a recommendation that
is approved under section 302(c)(2); or
[(C) as authorized by the general permit
issued to the American Tunaboat Association on
December 1, 1980 (including any additional
restrictions applicable under section 306(a)),
notwithstanding any agreement under section 302
with a country that is not a major purse seine
tuna fishing country (as that term is defined
in section 306(c));
[(3) for any person to import any yellowfin tuna or
yellowfin tuna product or any other fish or fish
product in violation of a ban on importation imposed
under section 305(b) (1) or (2);]
(1) for any person to sell, purchase, offer for sale,
transport, or ship, in the United States, any tuna or
tuna product unless the tuna or tuna product is either
dolphin safe or has been harvested in compliance with
the International Dolphin Conservation Program by a
country that is a member of the Inter-American Tropical
Tuna Commission or has initiated steps, in accordance
with Article V, paragraph 3 of the Convention
establishing the Inter-American Tropical Tuna
Commission, to become a member of that organization;
(2) except in accordance with this title and
regulations issued pursuant to this title as provided
for in subsection 101(e), for any person or vessel
subject to the jurisdiction of the United States
intentionally to set a purse seine net on or to
encircle any marine mammal in the course of tuna
fishing operations in the eastern tropical Pacific
Ocean; or
(3) for any person to import any yellowfin tuna or
yellowfin tuna product or any other fish or fish
product in violation of a ban on importation imposed
under section 101(a)(2);
* * * * * * *
(b) Penalties.--
(1) * * *
(2) Criminal penalty.--A person that knowingly and
willfully violates subsection (a)(5) and (a)(6) shall
be subject to a criminal penalty under section 105(b).
* * * * * * *
[(d) Dolphin Safe Tuna.--For purposes of this section, tuna
or a tuna product is dolphin safe if--
[(1) it does not contain tuna that was harvested on
the high seas by a vessel engaged in driftnet fishing,
as that term is defined in section 4003 of the Driftnet
Impact, Monitoring, Assessment, and Control Act of
1987;
[(2) in the case of tuna or a tuna product that
contains tuna harvested in the eastern tropical Pacific
Ocean, it is dolphin safe under subsection (d)(2) of
the Dolphin Protection Consumer Information Act;
[(3) in the case of tuna or a tuna product that
contains tuna harvested outside the eastern tropical
Pacific Ocean by a purse seine vessel, it is
accompanied by a written statement executed by the
captain of the vessel certifying that no purse seine
net was intentionally deployed on or to encircle
dolphins during the particular voyage on which the tuna
was harvested; and
[(4) in the case of tuna or a product that contains
tuna harvested outside the eastern tropical Pacific
Ocean by a purse seine vessel in a fishery in which the
Secretary has determined that a regular and significant
association occurs between marine mammals and tuna, and
in which tuna is harvested through the use of purse
seine nets deployed on or to encircle marine mammals,
it is accompanied by a written statement executed by
the captain of the vessel and by an observer,
certifying that no purse seine net was intentionally
deployed on or to encircle marine mammals during the
particular voyage on which the tuna was harvested.]
SEC. [308.] 306. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the National
Marine Fisheries Service for carrying out section [303] 302(d),
$3,000,000 for each of the fiscal years 1993, 1994, 1995, 1996,
1997, and 1998.
* * * * * * *
----------
SECTION 901 OF THE DOLPHIN PROTECTION CONSUMER INFORMATION ACT
Sec. 901. (a) Short Title.--This section may be cited as the
``Dolphin Protection Consumer Information Act''.
* * * * * * *
(d) Labeling Standard.--[(1) It is a violation of section 5
of the Federal Trade Commission Act for any producer, importer,
exporter, distributor, or seller of any tuna product that is
exported from or offered for sale in the United States to
include on the label of that product the term ``Dolphin Safe''
or any other term or symbol that falsely claims or suggests
that the tuna contained in the product was harvested using a
method of fishing that is not harmful to dolphins if the
product contains--
[(A) tuna harvested on the high seas by a
vessel engaged in driftnet fishing; or
[(B) tuna harvested in the eastern tropical
Pacific Ocean by a vessel using purse seine
nets which do not meet the requirements for
being considered dolphin safe under paragraph
(2).
[(2) For purposes of paragraph (1)(B), a tuna product
that contains tuna harvested in the eastern tropical
Pacific Ocean by a fishing vessel using purse seine
nets is dolphin safe if--
[(A) the vessel is of a type and size that
the Secretary has determined is not capable of
deploying its purse seine nets on or to
encircle dolphin; or
[(B)(i) the product is accompanied by a
written statement executed by the captain of
the vessel which harvested the tuna certifying
that no tuna were caught on the trip in which
such tuna were harvested using a purse seine
net intentionally deployed on or to encircle
dolphin;
[(ii) the product is accompanied by a written
statement executed by--
[(I) the Secretary or the Secretary's
designee, or
[(II) a representative of the Inter-
American Tropical Tuna Commission,
which states that there was an approved
observer on board the vessel during the entire
trip and that purse seine nets were not
intentionally deployed during the trip on or to
encircle dolphin; and
[(iii) the statements referred to in clauses
(i) and (ii) are endorsed in writing by each
exporter, importer, and processor of the
product.]
(1) It is a violation of section 5 of the Federal Trade
Commission Act for any producer, importer, exporter,
distributor, or seller of any tuna product that is exported
from or offered for sale in the United States to include on the
label of that product the term ``Dolphin Safe'' or any other
term or symbol that falsely claims or suggests that the tuna
contained in the product was harvested using a method of
fishing that is not harmful to dolphins if the product contains
any of the following:
(A) Tuna harvested on the high seas by a vessel
engaged in driftnet fishing.
(B) Tuna harvested in the eastern tropical Pacific
Ocean by a vessel using purse seine nets unless the
tuna is considered dolphin safe under paragraph (2).
(C) Tuna harvested outside the eastern tropical
Pacific Ocean by a vessel using purse seine nets unless
the tuna is considered dolphin safe under paragraph
(3).
(D) Tuna harvested by a vessel engaged in any fishery
identified by the Secretary pursuant to paragraph (4)
as having a regular and significant incidental
mortality of marine mammals.
(2)(A) For purposes of paragraph (1)(B), a tuna product that
contains tuna harvested in the eastern tropical Pacific Ocean
by a vessel using purse seine nets is dolphin safe if the
vessel is of a type and size that the Secretary has determined,
consistent with the International Dolphin Conservation Program,
is not capable of deploying its purse seine nets on or to
encircle dolphins, or if the product meets the requirements of
subparagraph (B).
(B) For purposes of paragraph (1)(B), a tuna product that
contains tuna harvested in the eastern tropical Pacific Ocean
by a vessel using purse seine nets is dolphin safe if the
product is accompanied by a written statement executed by the
captain of the vessel which harvested the tuna certifying that
no dolphins were killed during the sets in which the tuna were
caught and the product is accompanied by a written statement
executed by--
(i) the Secretary or the Secretary's designee;
(ii) a representative of the Inter-American Tropical
Tuna Commission; or
(iii) an authorized representative of a participating
nation whose national program meets the requirements of
the International Dolphin Conservation Program,
which states that there was an observer approved by the
International Dolphin Conservation Program on board the vessel
during the entire trip and documents that no dolphins were
killed during the sets in which the tuna concerned were caught.
(C) The statements referred to in clauses (i), (ii), and
(iii) of subparagraph (B) shall be valid only if they are
endorsed in writing by each exporter, importer, and processor
of the product, and if such statements and endorsements comply
with regulations promulgated by the Secretary which would
provide for the verification of tuna products as dolphin safe.
(3) For purposes of paragraph (1)(C), tuna or a tuna product
that contains tuna harvested outside the eastern tropical
Pacific Ocean by a vessel using purse seine nets is dolphin
safe if--
(A) it is accompanied by a written statement executed
by the captain of the vessel certifying that no purse
seine net was intentionally deployed on or to encircle
dolphins during the particular voyage on which the tuna
was harvested; or
(B) in any fishery in which the Secretary has
determined that a regular and significant association
occurs between marine mammals and tuna, it is
accompanied by a written statement executed by the
captain of the vessel and an observer, certifying that
no purse seine net was intentionally deployed on or to
encircle marine mammals during the particular voyage on
which the tuna was harvested.
(4) For purposes of paragraph (1)(D), tuna or a tuna product
that contains tuna harvested in a fishery identified by the
Secretary as having a regular and significant incidental
mortality or serious injury of marine mammals is dolphin safe
if it is accompanied by a written statement executed by the
captain of the vessel and, where determined to be practicable
by the Secretary, an observer participating in a national or
international program acceptable to the Secretary certifying
that no marine mammals were killed in the course of the fishing
operation or operations in which the tuna were caught.
(5) No tuna product may be labeled with any reference to
dolphins, porpoises, or marine mammals, unless such product is
labeled as dolphin safe in accordance with this subsection.
* * * * * * *
[(f) Regulations.--The Secretary, in consultation with the
Secretary of the Treasury, shall issue regulations to implement
this section not later than 6 months after the date of the
enactment of this Act, including regulations establishing
procedures and requirements for ensuring that tuna products are
labeled in accordance with subsection (d).]
(f) Tracking and Verification.--The Secretary, in
consultation with the Secretary of the Treasury, shall issue
regulations to implement subsection (d) not later than 3 months
after the date of enactment of the International Dolphin
Conservation Program Act. In the development of these
regulations, the Secretary shall establish appropriate
procedures for ensuring the confidentiality of proprietary
information the submission of which is voluntary or mandatory.
Such regulations shall, consistent with international efforts
and in coordination with the Inter-American Tropical Tuna
Commission, establish a domestic and international tracking and
verification program that provides for the effective tracking
of tuna labeled under subsection (d), including but not limited
to each of the following:
(1) Specific regulations and provisions addressing
the use of weight calculation for purposes of tracking
tuna caught, landed, processed, and exported.
(2) Additional measures to enhance observer coverage
if necessary.
(3) Well location and procedures for monitoring,
certifying, and sealing holds above and below deck or
other equally effective methods of tracking and
verifying tuna labeled under subsection (d).
(4) Reporting receipt of and database storage of
radio and facsimile transmittals from fishing vessels
containing information related to the tracking and
verification of tuna, and the definition of sets.
(5) Shore-based verification and tracking throughout
the transshipment and canning process by means of
Inter-American Tropical Tuna Commission trip records or
otherwise.
(6) Provisions for annual audits and spot checks for
caught, landed, and processed tuna products labeled in
accordance with subsection (d).
(7) The provision of timely access to data required
under this subsection by the Secretary from harvesting
nations to undertake the actions required in paragraph
(6) of this subsection.
* * * * * * *
---------- 01
ATLANTIC TUNAS CONVENTION ACT OF 1975
* * * * * * *
reduction of bycatch in eastern tropical pacific ocean
Sec. 10. The Secretary of State, acting through the
Comissioners, should immediately take the necessary steps to
establish standards and measures for a bycatch reduction
program for vessels fishing for yellowfin tuna in the eastern
tropical Pacific Ocean. The program shall include to the
maximum extent practicable--
(1) that sea turtles and other threatened species and
endangered species are released alive, to the maximum
extent practicable;
(2) measures to reduce, to the maximum extent
practicable, the harvest of nontarget species;
(3) measures to reduce, to the maximum extent
practicable, the mortality of nontarget species; and
(4) measures to reduce, to the maximum extent
practicable, the mortality of juveniles of the target
species.
AUTHORIZATION OF APPROPRIATIONS
Sec. [10.] 11. There are authorized to be appropriated to
carry out this Act, including use for payment of the United
States share of the joint expenses of the Commission as
provided in Article X of the Convention, the following sums:
(1) For fiscal year 1995, $4,103,000, of which
$50,000 are authorized in the aggregate for the
advisory committee established under section 4 and the
species working groups established under section 4A,
and $2,890,000 are authorized for research activities
under this Act and the Act of September 4, 1980 (16
U.S.C. 971i).
(2) For fiscal year 1996, $5,453,000, of which
$50,000 are authorized in the aggregate for such
advisory committee and such working groups, and
$4,240,000 are authorized for such research activities.
(3) For fiscal year 1997, $5,465,000 of which $62,000
are authorized in the aggregate for such advisory
committee and such working groups, and $4,240,000 are
authorized for such research activities.
(4) For fiscal year 1998, $5,465,000 of which $75,000
are authorized in the aggregate for such advisory
committee and such working groups, and $4,240,000 are
authorized for such research activities.
separability
Sec. [11.] 12. If any provision of this Act or the
applications of such provision to any circumstance or persons
shall be held invalid, the validity of the remainder of the Act
and the applicability of such provision to other circumstances
or persons shall not be affected thereby.
Sec. [11.] 13. Annual report
Not later than April 1, 1996, and annually thereafter, the
Secretary shall prepare and transmit to the Committee on
Resources of the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate a report,
that--
(1) details for the previous 10-year period the
catches and exports to the United States of highly
migratory species (including tunas, swordfish, marlin
and sharks) from Nations fishing on Atlantic stocks of
such species that are subject to management by the
Commission;
(2) identifies those fishing Nations whose harvests
are inconsistent with conservation and management
recommendations of the Commission;
(3) describes reporting requirements established by
the Secretary to ensure that imported fish products are
in compliance with all international management
measures, including minimum size requirements,
established by the Commission and other international
fishery organizations to which the United States is a
party; and
(4) describes actions taken by the Secretary under
section 6.
Sec. [12.] 14. Savings clause
Nothing in this Act shall have the effect of diminishing the
rights and obligations of any Nation under Article VIII(3) of
the Convention.
----------
TUNA CONVENTIONS ACT OF 1950
* * * * * * *
Sec. 3. The United States shall be represented on the two
commissions by a total of not more than four United States
Commissioners, who shall be appointed by the President, serve
as such during his pleasure, and receive no compensation for
their services as such Commissioners. Of such Commissioners--
(a) * * *
* * * * * * *
[(c) at least one shall be an officer of the United
States Fish and Wildlife Service; and]
(c) at least one shall be either the Director, or an
appropriate regional director, of the National Marine
Fisheries Service; and
* * * * * * *
[Sec. 4. The United States Commissioners shall (a) appoint an
advisory committee which shall be composed of not less than
five nor more than fifteen persons who shall be selected from
the various groups participating in the fisheries included
under the conventions, and from nongovernmental conservation
organizations, and (b) shall fix the terms of office of the
members of such committee, who shall receive no compensation
for their services as such members. The advisory committee
shall be invited to attend all nonexecutive meetings of the
United States sections and shall be given full opportunity to
examine and to be heard on all proposed programs of
investigation, reports, recommendations, and regulations of the
commissions. The advisory committee may attend all meetings of
the international commissions to which they are invited by such
commissions.]
SEC. 4. GENERAL ADVISORY COMMITTEE AND SCIENTIFIC ADVISORY
SUBCOMMITTEE.
The Secretary, in consultation with the United States
Commissioners, shall:
(1) Appoint a General Advisory Committee which shall
be composed of not less than 5 nor more than 15 persons
with balanced representation from the various groups
participating in the fisheries included under the
conventions, and from nongovernmental conservation
organizations. The General Advisory Committee shall be
invited to have representatives attend all nonexecutive
meetings of the United States sections and shall be
given full opportunity to examine and to be heard on
all proposed programs of investigations, reports,
recommendations, and regulations of the commission. The
General Advisory Committee may attend all meetings of
the international commissions to which they are invited
by such commissions.
(2) Appoint a Scientific Advisory Subcommittee which
shall be composed of not less than 5 nor more than 15
qualified scientists with balanced representation from
the public and private sectors, including
nongovernmental conservation organizations. The
Scientific Advisory Subcommittee shall advise the
General Advisory Committee and the Commissioners on
matters including the conservation of ecosystems; the
sustainable uses of living marine resources related to
the tuna fishery in the eastern Pacific Ocean; and the
long-term conservation and management of stocks of
living marine resources in the eastern tropical Pacific
Ocean. In addition, the Scientific Advisory
Subcommittee shall, as requested by the General
Advisory Committee, the United States Commissioners or
the Secretary, perform functions and provide assistance
required by formal agreements entered into by the
United States for this fishery, including the
International Dolphin Conservation Program. These
functions may include each of the following:
(A) The review of data from the Program,
including data received from the Inter-American
Tropical Tuna Commission.
(B) Recommendations on research needs,
including ecosystems, fishing practices, and
gear technology research, including the
development and use of selective,
environmentally safe and cost-effective fishing
gear, and on the coordination and facilitation
of such research.
(C) Recommendations concerning scientific
reviews and assessments required under the
Program and engaging, as appropriate, in such
reviews and assessments.
(D) Consulting with other experts as needed.
(E) Recommending measures to assure the
regular and timely full exchange of data among
the parties to the Program and each nation's
National Scientific Advisory Committee (or
equivalent).
(3) Establish procedures to provide for appropriate
public participation and public meetings and to provide
for the confidentiality of confidential business data.
The Scientific Advisory Subcommittee shall be invited
to have representatives attend all nonexecutive
meetings of the United States sections and the General
Advisory Subcommittee and shall be given full
opportunity to examine and to be heard on all proposed
programs of scientific investigation, scientific
reports, and scientific recommendations of the
commission. Representatives of the Scientific Advisory
Subcommittee may attend meetings of the Inter-American
Tropical Tuna Commission in accordance with the rules
of such Commission.
(4) Fix the terms of office of the members of the
General Advisory Committee and Scientific Advisory
Subcommittee, who shall receive no compensation for
their services as such members.
* * * * * * *
DISSENTING VIEWS
H.R. 408 is a deeply flawed bill that undercuts a broadly
popular mammal protection law because of foreign government
trade pressure on the United States to weaken our environmental
standards. Good faith efforts to develop a reasonable
compromise that would open U.S. markets to tuna caught by
foreign fleets while protecting the integrity of U.S.
environmental and consumer protection laws have been spurned.
The Congress is being told, in effect, take this bill or leave
it. We believe the sound pro-environment, pro-consumer vote is
to leave it if reasonable compromise continues to be rejected.
In October 1995, five environmental organizations announced
their support for a document which became known as the ``Panama
Declaration'': the result of their negotiations with the
government of Mexico on changes to the Marine Mammal Protection
Act (MMPA) and U.S. tuna labeling law. Until their
announcement, the Congress, general public, and other
interested parties had been unaware that these negotiations
were underway.
Since that time, numerous efforts have been made by those
not included in the negotiations--including more than 80
environmental, labor, and consumer protection organizations--to
find a compromise on this highly controversial and emotional
issue. However, the supporters of H.R. 408 have consistently
argued that the Panama Declaration is an unamendable agreement,
presented to the Congress under much the same terms as a Fast
Track agreement. They have rejected any compromise not
supported by the Mexican government and the Mexican tuna
industry. We find the substance of this legislation
unacceptable, and object to the dangerous precedent set by the
process under which it was brought before the Congress.
The ``fast track'' analogy is appropriate, since there is
little doubt that the international trade dispute between
Mexico and the United States over dolphin protection is the
driving force behind the legislation. The U.S. Marine Mammal
Protection Act contains provisions which prohibit imports of
tuna from nations whose tuna fishing fleets kill more dolphins
than the U.S. fleet. Public outrage at the high level of
dolphin slaughter by the eastern Pacific tuna fishery prompted
the original passage of this provision, and it is clear that
the American public continues to hold broad support for this
law. In fact, public outcry against this well-documented
slaughter has historically been so strong that in 1990 the U.S.
tuna canning industry announced a voluntary policy of refusing
to purchase tuna caught by harming or killing dolphins: the now
well-known ``Dolphin Safe'' label found on cans of tuna sold in
the United States.
In response to the U.S. embargo of their canned tuna, in
1990, Mexico and Venezuela filed a formal complaint with the
General Agreement on Tariffs and Trade (GATT). The GATT panel
of judges hearing the Mexican complaint ruled against the
United States, declaring, among other things, that no nation
could impose trade restrictions against another (a) based on
the way a product is harvested or made; or (b) to conserve
natural resources outside of its territorial jurisdiction.
Since that time, Mexico has been pressuring the U.S. to change
its laws and lift the embargoes. It should be noted, however,
that the GATT panel made no ruling on the dolphin-safe label
itself. Mexico is aware that American consumers will not choose
to purchase tuna caught by harming dolphins; therefore, in
order to gain a large share of the U.S. tuna market, they are
urging that we dupe American consumers into purchasing tuna
labeled with a redefined ``Dolphin Safe'' label that has a much
weaker standard. This label change is contained in H.R. 408.
The fact that this issue continues to be of major
importance to international relations between Mexico and the
U.S.--as evidenced by the strong lobbying of the State
Department in support of H.R. 408--is an indication that it
concerns far more than dolphins and a single tuna fishery.
H.R. 408 is designed to solve a trade problem, not a
conservation problem. We are concerned that the labeling change
sets a sweeping and damaging precedent for other U.S. labeling
laws designed to protect and inform American consumers.
For example, in response to concerns about the safety of
imported produce--raised most recently by the importation of
unlabeled, contaminated strawberries from Mexico--the Congress
is beginning to consider legislation requiring the country of
origin to be clearly labeled on both fresh and frozen produce.
At the same time, other nations and multinational corporations
are increasingly raising objections to labeling laws--even
those as simple as requiring that country of origin be clearly
visible on the front of a package of frozen produce. Some have
even gone so far as to complain that such labels constitute a
barrier to trade. Why? Because they know that American
consumers rely on these labels, and prefer to purchase American
products.
Under the current statutory definition of dolphin-safe--
which when enacted in 1990 was supported by the Bush
Administration and most of the organizations now supporting
H.R. 408--no tuna product can be labeled ``Dolphin Safe'' if
caught by chasing, harassing, or netting of dolphins.
Currently, it is common practice for large tuna purse-seine
vessels to deploy several speedboats and a helicopter in a
high-speed, non-stop chase until the exhausted dolphins and the
tuna swimming with them can be encircled with a net.
H.R. 408 as adopted by the Committee on Resources would
change the meaning of dolphin-safe to allow dolphins to be
injured, chased, and netted without limit. Mothers could be
separated from their calves, feeding disrupted or prevented,
animals could even be seriously injured and, provided that no
dolphins are observed to die during this process, the tuna
could be labeled with the famous ``Dolphin Safe'' label.
Marine mammal biologists are divided over the potential
impact this fishing method may have on dolphin populations.
Committee staff spoke with several biologists who have studied
these dolphin populations for years--in some cases, for more
than a decade--and those biologists have expressed serious
concerns about the ramifications of changing the dolphin-safe
definitionwhile also opening U.S. markets to all tuna caught
under international agreement in the eastern Pacific. The change would
certainly increase the effort to catch tuna through the chasing and
netting of dolphins.
The two dolphin stocks most frequently chased and netted
during tuna fishing--the eastern spinner and the northern
offshore spotted dolphin--are at 20% or less of their original
population sizes, according to biologists from the National
Marine Fisheries Service. Although mortalities of these two
stocks have been reduced greatly in recent years, neither stock
is increasing. The best that biologists can tell us is that, if
mortalities remain at their current low levels, the depleted
dolphin stocks should increase. The fact that mortalities
remain low but stocks are not currently increasing may be due
to the effects of chase and netting. Committee Democrats have
urged that Congress authorize a study to determine the possible
effects of chase and encirclement and the status of dolphin
stocks prior to changing the law.
The Committee Majority rejected this amendment, based on
sound scientific advice, and chose instead to change the law
first and study the effects later. The Majority could offer no
better defense for their adherence to Mexico's insistence on a
definition change than that no studies had been conducted to
indicate that the process was not safe for dolphins. We find
this defense short-sighted, and suggest that the above
information on dolphin stocks demonstrates that the little
evidence we have on this issue indicates that the wiser course
would be the opposite of that chosen by the Committee. Applying
the Majority's views to other products would support, for
example, the application of a ``Child Safe'' label to toys
provided that no studies had been conducted to prove them
harmful to children. We believe this standard sets a dangerous
precedent for other consumer information programs, and cannot
support any legislation containing this provision.
H.R. 408 would also authorize a doubling of the number of
dolphin permitted to be killed by this fishery. Over the last
six years, Mexico and the other nations fishing in the eastern
Pacific have drastically reduced their level of dolphin
mortality, to 2,574 animals in 1996. Yet H.R. 408--while
claiming a goal of reducing dolphin mortality to zero--would
allow the fishing nations to kill 5000 dolphins annually and
still import their tuna into the U.S. An amendment was offered
by Mr. Miller to H.R. 408 which would have reduced the quota of
dolphin kills allowed by the bill from 5000 to 2,574. Mr.
Miller argued that, since the proponents of H.R. 408 claim that
the goal of the legislation is to eventually reduce dolphin
deaths to zero, it made little sense to begin by increasing the
mortality quota to double the actual kill level. The amendment
was rejected by the Committee Majority.
It is clear from a close examination of this legislation
that it is a misguided effort to resolve a trade dispute while
weakening U.S. environmental protection and consumer
information standards, and should be rejected unless its flaws
are corrected.
George Miller.
Frank Pallone.
Maurice Hinchey.
Eni Faleomavaega.
Dale E. Kildee.
Sam Farr.
William Delahunt.
Peter DeFazio.
Neil Abercrombie.
Patrick J. Kennedy.
A P P E N D I X
----------
House of Representatives,
Committee on Commerce,
Washington, DC, April 23, 1997.
Hon. Don Young,
Chairman, Committee on Resources, Longworth House Office Building,
House of Representatives, Washington, DC.
Dear Mr. Chairman: On April 16, 1997, the Committee on
Resources ordered reported H.R. 408, the ``International
Dolphin Conservation Program Act.'' This measure, just as H.R.
2823 from the 104th Congress, provides for the implementation
of the Declaration of Panama signed in 1995 by the United
States and 11 other nations.
H.R. 408 includes several provisions within the
jurisdiction of the Committee on Commerce. In implementing the
Declaration, the bill amends the ``Dolphin Consumer Information
Act of 1989,'' on which the Commerce Committee took action
during the 101st Congress. The 1989 Act was incorporated into
the reauthorization bill for the Magnuson Fishery Conservation
and Management Act (Pub. L. 101-627). H.R. 408 provides for
implementation of the Declaration in an effort to increase
international participation in activities to reduce the number
of dolphins and other marine mammals that die each year as a
result of tuna fishing techniques. The Act would modify the
definition of ``dolphin safe'' for the purpose of labeling tuna
products sold in the United States, and alter current
regulations on the importation of tuna products. Also, the bill
would make misuse of the ``dolphin safe'' label an unfair and
deceptive trade practice under Section 5 of the Federal Trade
Commission Act.
Recognizing your Committee's desire to bring this
legislation expeditiously before the House, I will not seek a
sequential referral of the bill. However, by agreeing not to
seek a sequential referral, this Committee does not waive its
jurisdictional interest in any matter within its purview. I
reserve the right to seek equal conferees on all provisions of
the bill that are within my Committee's jurisdiction during any
House-Senate conference that may be convened on this
legislation. I want to thank you and your staff for your
assistance in providing the Commerce Committee with an
opportunity to review its jurisdictional interests in H.R. 408.
I would appreciate your including this letter as a part of
the Resource Committee's report on H.R. 2823, and as part of
the record during consideration of this bill by the House.
Sincerely,
Thomas J. Bliley Jr., Chairman.