| Legislative Notice #32 | July 23, 1997 |
Calendar No. 109
Reported from the Senate Commerce, Science and Transportation Committee on July 14, 1997,
with an amendment in the nature of a substitute, by voice vote. No written report.
Since the early 1900s, the eastern tropical Pacific Ocean, which extends from southern California to Chile, has been a primary site of the yellowfin tuna fishery. The tuna were once caught with baited lines. In 1957, the first American boat began using the purse-seine or encirclement method, in which a school of tuna is encircled with a net, which is then "pursed" (closed at the bottom) and hauled onto the fishing boat. A much less labor-intensive method, purse-seine fishing proved more than twice as efficient as bait-boat fishing.
The purse-seine method requires fishing vessels to locate a school of tuna. Mature tuna, which are most valuable, tend to congregate beneath schools of dolphins in the Eastern Tropical Pacific (ETP), allowing fishermen to locate their catch simply by spotting dolphins on the surface and deploying their nets around them to catch the tuna swimming below. This practice, known as "setting on dolphins" or "fishing on dolphins," can, if improperly conducted, kill or injure dolphins that become entangled in the nets. By 1972, purse-seine fishing killed an estimated 350,000 dolphins per year; about 6 million have been killed since the purse-seine came into widespread use.
The Marine Mammal Protection Act
In 1972, to combat this problem, Congress included provisions in the Marine Mammal Protection Act (MMPA), which required the use of improved equipment, federal observers on U.S. vessels, and an annual maximum number of permitted dolphin deaths. By 1980, the number of dolphins killed by the American tuna fleet declined to approximately 15,000.
Despite improvements made by the American fleet, dolphin mortalities increased during the 1980s, due largely to the foreign fleet, which expanded as the U.S. fleet declined. The 1984 reauthorization of the MMPA conditioned foreign countries' access to the American tuna market -- one of the world's largest -- on a certification by each nation that its marine mammal protection program and dolphin mortality rate were "comparable" to those of the U.S. fleet. In the intervening period until these standards were implemented in 1988, the number of dolphins killed by foreign-flagged vessels increased to more than 100,000 per year.
The "Dolphin-Safe" Standard
In April 1990, the three largest U.S. tuna processors responded to public pressure and announced they no longer would purchase tuna caught in association with dolphins, and would begin labeling their product as "dolphin-safe." Later that year, Congress codified the "dolphin-safe" label, defining "dolphin-safe" tuna as tuna which was not caught by the setting of purse-seine nets around dolphin. In 1992, Congress further addressed the issue by banning the sale, purchase, transport, or shipment within the United States after June 1, 1994 of any tuna that did not meet the definition of "dolphin-safe" set out in the Fishery Conservation Amendments of 1990 (P.L. 101-627), i.e., tuna either caught by a vessel too small to set on dolphins or accompanied by an observer's certification that no "dolphin sets" were made for the entire fishing trip. It also enacted a five-year moratorium on the encirclement method and offered to lift embargoes against any nation that committed to the moratorium. No nation has done so to date; American embargoes against tuna from Colombia, Mexico, Panama, Vanuatu, and Venezuela are currently in effect, as are intermediary nation embargoes against Costa Rica, Italy, and Japan.
In 1992, the Inter-American Tropical Tuna Commission (IATTC), to which the U.S. belongs, and which manages the ETP tuna fishery, adopted a voluntary international agreement, the La Jolla agreement, which established a multilateral program to progressively reduce dolphin mortality in the ETP to levels approaching zero. Although La Jolla is a non-binding agreement, the ten signatories -- including all five of the nations currently under the U.S. primary embargo -- have since then continued to operate under its provisions, which included per-vessel "Dolphin Mortality Limits" and observer coverage on all eastern tropical Pacific tuna purse-seine vessels. Since 1992, dolphin mortalities have continued to decline sharply from more than 15,000 in 1992 to approximately 2,100 in 1996. Mexico and others have expressed concerns that their efforts to reduce dolphin mortality have not released them from the embargo, and they have urged the United States to modify its definition of "dolphin-safe" to encompass some tuna caught using encirclement fishing methods, as long as no dolphins were killed in the process.
Proponents of changing the standards point out that, in recent years, adoption of the "back down" technique, in which dolphins are released from the net with fishermen's help, has greatly reduced dolphin mortality and injury associated with the encirclement method. In fact, in 1996, approximately 90 percent of the dolphin sets did not involve any observed mortality or injury of dolphins. Encirclement has very little by-catch other than dolphins; the other commonly used methods of yellowfin tuna fishing have almost no dolphin by-catch, but significant by-catch of other species -- a threat to biodiversity which concerns the IATTC. These other methods (known as "school sets" and "log sets") also catch higher numbers of juvenile, pre-spawning tuna than do dolphin sets. Additionally, the current standards allow tuna caught outside the eastern tropical Pacific to be labeled "dolphin-safe" even though the fisheries -- and any dolphin mortalities -- are unobserved, but do not allow eastern Pacific tuna caught in purse-seine nets to be so labeled, even if independent observers have verified that no dolphin mortality occurred. The current standards also permit tuna caught by "log" and "school sets" in the ETP to be labeled "dolphin-safe" even if a dolphin mortality or injury occurred, albeit infrequently.
The International Dolphin Conservation Program
In 1995, the United States and 11 other nations which fish for tuna in the affected region signed an initiative, the "Declaration of Panama," which expressed a commitment to conclude an international binding agreement based on the provisions of the nonbinding La Jolla agreement, but with additional provisions to further reduce dolphin mortality. Specifically, the Declaration would set 5,000 dolphins as the permanent maximum dolphin mortality limit for the region, a number which would be reduced further through declining annual mortality limits. The Declaration would also allow tuna harvested by setting on dolphins to enter the U.S. market under a program administered by the IATTC. The Declaration's provisions, collectively called the International Dolphin Conservation Program (IDCP), also enumerate a further set of activities and goals for tuna conservation, information exchange, and dolphin protection.
Under the terms of Panama, implementation of the IDCP can occur only after U.S. law is changed: first, to end the current primary and secondary American embargos on yellowfin tuna from the Pacific region which is caught in compliance with the IDCP; second, to open the American market to nations harvesting tuna in the eastern tropical Pacific in compliance with the IDCP, and which hold or are seeking IATTC membership; and third, to change the statutory definition of "dolphin-safe" tuna to tuna caught in a set in which no dolphin mortality was observed and documented by observers. This bill, S. 39, represents the execution of the Panama Declaration's three conditions.
Legislative History
In the 104th Congress, the House passed a tuna-dolphin bill, but the Senate did not: S. 1430 was reported by the Senate Commerce Committee, but due to a planned filibuster by Senator Boxer, the bill died.
S. 39 was introduced on January 21, 1997, by Senator Stevens, along with Senators Breaux, Chafee, Murkowski, Bumpers and Thurmond as cosponsors. The bill, as introduced, is the reported language of the IDCPA bill introduced during the 104th Congress. On May 14, 1997, a hearing on the bill was conducted by Senator Snowe, Chairman of the Subcommittee on Oceans and Fisheries. Senators Boxer and Biden testified, along with representatives of the Department of State, the Department of Commerce, the IATTC, the Center for Marine Conservation, and the Dolphin-Safe/Fair Trade Campaign.
On June 26, 1997, the Committee ordered S. 39 reported with an amendment by Senator Snowe in the form of a substitute. During consideration, Senators Kerry and Inouye raised concerns regarding the lifting of the embargo against tuna caught through setting on dolphins and the provision prohibiting canneries from displaying any dolphin-safe label other than the approved federal "dolphin safe" label mandated by S. 39. Current law allows canneries to display alternative voluntary labels; however, S. 39 would prohibit alternative labels.
The Snowe amendment resulted from consultations and discussions among Members, the Administration, scientists, and conservation organizations and includes language designed to address some of these concerns. The Snowe amendment to S. 39:
S. 39, as reported, amends the Marine Mammal Protection Act, and makes other necessary changes to implement the Declaration of Panama, an international agreement to regulate tuna fishing methods to protect the safety of dolphins and other aquatic life in the eastern tropical Pacific Ocean (ETP). The bill would:
The Administration strongly supports S. 39, and they oppose any procedural obstacles when the bill is considered by the Senate.