Oceans & Coastal Resources:
A Briefing Book
Congressional Research Service Report 97-588 ENR
Redistributed as a service of the National Library for the Environment

Dolphin Protection and Tuna Seining

Prepared by Eugene H. Buck,

Senior Analyst in Natural Resources Policy,
Environment and Natural Resources Policy Division

Issue Definition
Background and Analysis
Status of the Issue
Continuing Concerns
Sources and References for Further Information

Issue Definition

In the eastern tropical Pacific (ETP) Ocean, the United States reduced dolphin mortalities by U.S. tuna fishing vessels, but dolphin mortalities by foreign harvesters remain a concern. The issue is whether or how the United States should provide incentives or bring additional pressures to bear on nations perceived as acting contrary to U.S. objectives of protecting dolphins.

Background and Analysis 13

Public concern over massive mortalities of dolphins in ETP tuna fisheries encouraged initial congressional attention to marine mammal legislation. In 1972, the Marine Mammal Protection Act (MMPA) instituted a moratorium on all marine mammal taking by U.S. citizens, with closely regulated exceptions. The National Marine Fisheries Service (NMFS) within the National Oceanic and Atmospheric Administration (U.S. Department of Commerce) is responsible for MMPA regulations.

In the ETP, large yellowfin tuna congregate beneath schools of dolphins, especially common, spotted, and spinner dolphins. To capture these tuna, harvesters have traditionally encircled the dolphins and any tuna swimming beneath them with large purse seine nets. Initial use of this technique resulted in significant dolphin entanglement and death in the nets; more than 300,000 dolphins may have been killed annually in the late 1960s and early 1970s. In response to requirements in a series of MMPA permits granted to tuna seiners, fishing techniques were modified and dolphin mortality began to decline.

MMPA amendments in 1988 (P.L. 100-711) sought to reduce dolphin deaths attributed to foreign tuna seining by prohibiting U.S. imports of tuna unless proof was provided that these nations employed stringent dolphin protection measures. Imports of Mexican tuna (as well as tuna from several other nations) were prohibited in October 1990 under this provision, after a U.S. District Court forced the Department of Commerce to act. Under a subsequent U.S. court order early in 1992, U.S. tuna import sanctions were extended to a host of intermediary nations. Late in 1992, Congress enacted the International Do]phin Conservation Act, P.L. 102-523, to clarify the definition of an intermediary nation and reduce the number of countries adversely affected; to make it illegal to sell tuna which is not identified as "dolphin-safe" after March 1, 1994; and to authorize negotiation of a moratorium on harvesting tuna by surrounding dolphins.

On April 12, 1990, three major U.S. tuna canners announced that they no longer would accept and sell tuna harvested in association with dolphins. Legislation was introduced to mandate a labeling program for canned tuna to identify whether it was harvested in a "dolphin-safe" manner. Title Ix of P.L. 101-627, the Dolphin Protection Consumer Information Act, established standards for labeling canned tuna as "dolphin-safe" and called for negotiations to eliminate tuna seining on dolphins. In response to this action, almost all U.S. tuna seiners ceased fishing for tuna with seines in the ETP, and emigrated to the Western Pacific. The High Seas Driftnet Fisheries Enforcement Act, P.L. 102-582, prohibited imports of tuna that do not meet the dolphin-safe standards.

Mexico and other Latin American nations have been major suppliers of ETP tuna for U.S. canneries in Puerto Rico and elsewhere. However, tuna imports from Mexico (and several other nations) were prohibited in October 1990 under a U.S. District Court ruling. Late in 1990, Mexico protested to the GATT Council that U.S. sanctions on tuna exports were contrary to U.S. obligations under GATT, and a dispute panel reported in favor of Mexico in mid-1991. In 1992, a U.S. court order extended sanctions against tuna imports to a host of intermediary nations (e.g., the European Community) through which sanctioned tuna from Mexico, Venezuela and several other tuna-harvesting nations was believed to have been shipped to the United States. A second GATT dispute panel reported in late May 1994 that the United States had again acted contrary to GATT by taking action under the U.S. MMPA to ban imports of yellowfin tuna through intermediary nations. While the United States could have unilaterally blocked proposals for punitive sanctions for non-conformance in the former GATT regime, such self-protective recourse is not available under the new World Trade Organization, which began administering GATT in 1995. The greater likelihood of punitive sanctions by the WTO may increase pressures on the United States to modify MMPA language.

In parallel June 1992 action under the leadership of the Inter-American Tropical Tuna Commission (IATTFC), the United States and other tuna-harvesting nations formally adopted a multilateral program (the "La Jolla Agreement) to reduce the international dolphin mortality in the ETP to less than 5,000 by 1999 through annual mortality limits. However, this Agreement would be superseded if a moratorium authorized by P.L. 102-523 is implemented. By 1994, incidental dolphin mortalities in the ETP totaled 105 by U.S. vessels and about 4,100 by foreign vessels, according to estimates by NMFS and the IATTC.

A draft agreement providing for coordinated efforts to change U.S. "dolphinsafe" sanctions on importing yellowfin tuna captured by surrounding dolphins in the ETP was initially agreed to by the five environmental groups --Greenpeace, World Wildlife Fund, Center for Marine Conservation, National Wildlife Federation, and Environmental Defense Fund -- at meetings with Latin American government representatives in Huatulco, Mexico, on September 27, 1995. On October 4, 1995, eleven tuna-exporting nations, meeting in Panama, signed a "Declaration of Panama" agreeing to place legal limits of 5,000 dolphins or fewer killed per year during tuna seining if the United States agreed to lift its embargo on importing tuna caught by surrounding dolphins; the United States also signed this Declaration.

Status of the Issue

In the 104th Congress, five bills were introduced to implement the Declaration of Panama and address tuna-dolphin concerns through amendments to the International Dolphin Conservation Act and the MMPA. The major controversy focused on whether tuna caught by surrounding dolphins should be allowed to be imported to the United States if no dolphins were observed to have been killed. Whether or not this approach should be adopted depends, to a certain extent, upon how one views the tradeoffs between the incidental bycatch of other marine species taken with dolphin-safe methods and the possibility of detrimental long-term effects of stress during chase and encirclement of dolphins by purse seiners. One permissive bill passed the House and another was reported in the Senate, but the threat of a filibuster precluded further consideration.

H.R. 408 and S.39 were introduced early in the 105th Congress, and the House Subcommittee on Fisheries Conservation, Wildlife, and Oceans held a hearing on H.R. 408. These measures incorporate the approaches taken by House-passed and Senate-reported bills in the 104th Congress, which would allow tuna to be labeled "dolphin-safe" as long as no dolphins were observed to have been killed during purse seine fishing. Alternative measures are anticipated to be introduced or offered during mark-up.

The following questions are provided to stimulate further discussion of the issues noted above.

Continuing Concerns

These concerns and questions are provided to stimulate further discussion of the issues noted above.

  1. Should the United States work with the International Whaling Commission to address concerns over whether the IWC may regulate small cetaceans? Should the United States encourage the IWC to give more attention to dolphin protection concerns, and if so, how? Alternatively, should the United States pursue dolphin protection through other means?
  2. To what extent and in what ways does public education and human contact with dolphins increase or diminish our ability to protect dolphins? What guidance might Congress enact to regulate such activities?
  3. To what extent, if any, does herding and encircling of dolphins to harvest tuna cause long-term harm to dolphin populations?

Sources and References for Further Information

Joseph, James. "The Tuna-Dolphin Controversy in the Eastern Pacific Ocean: Biological, Economic, and Political Impacts." Ocean Development and International Law, v.25 (1994): 1-30.

MeDorm an, Ted L. "The GATT Consistency of U.S. Fish Import Embargoes to Stop Driftnet Fishing and Save Whales, Dolphins and Turtles." George Washington Journal of International Law and Economics, v.24, no.3 (1991): 477-525.

.S. Congress, Office of Technology Assessment. Trade and Environment: Conflicts and Opportunities. OTA-BP-ITE-94. Washington, DC: U.S. Govt. Print. Off., May 1992. 109 p.

U.S. Library of Congress, Congressional Research Service. Dolphin Protection and Tuna Seining. CRS Report for Congress IB96011. [by Eugene H. Buck.] Washington, DC: updated regularly.

-----------. Tuna and the GATT. CRS Report for Congress 91-666 ENR. [by Eugene H. Buck.] Washington, DC: Dec.12, 1991. 7 p.

U.S. Marine Mammal Commission. Annual Report to Congress, 1996. Washington, DC: Jan. 31,1997. 247 p.

U.S. National Research Council, Committee on Reducing Porpoise Mortality from Tuna Fishing. Dolphins and the Tuna Industry. Board on Biology, Board on Environmental Studies and Toxicology, Commission on Life Sciences. Washington, DC: National Academy Press, 1992. 176 p.

ENDNOTES:

13 Data for this history is drawn primarily from annual reports prepared by the U.S. Marine Mammal Commission.


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