Earth Island Institute
Statement on the Tuna/Dolphin Compromise in Congress

Earth Island Institute and the Dolphin Safe/Fair Trade Campaign have worked successfully for more than two years to block passage of legislation that we labeled "the Dolphin Death Act." Yesterday, the Senate approved, and today the House confirmed, legislation which retains the current strong definition of "dolphin safe" tuna for a minimum of 20 months, rather than immediately weakening the definition as proposed by the original Dolphin Death Act.

Thanks to the work of Senators Barbara Boxer (D-CA), Joseph Biden (D-DE), and Robert Smith (R-NH), and with appreciation for the work done by Representatives George Miller (D-CA), Richard Gephardt (D-MO), and others, many of the worst aspects of the bill were blocked.

The compromise legislation will:

(1) Lift the 5-year-old U.S. embargo on tuna imports from countries that continue to kill dolphins during fishing operations. However, these nations must first be certified by the U.S. State Department as having joined a binding international program and having domestic legislation in place to enforce international dolphin protection efforts; and

(2) Preserve the current strong definition of "dolphin safe" tuna, providing a means for American consumers to choose tuna caught by methods that do not harm dolphins. "Dolphin deadly" tuna, which will not be labeled, is likely to begin appearing on U.S. supermarket shelves within six months. By March 31, 1999, and again by Dec. 31, 2002, the Secretary of Commerce will make a finding, based on scientific research, on whether the practice of netting dolphins causes "significant adverse impacts" to depleted dolphin populations. If significant adverse impacts are confirmed, the current definition of "dolphin safe" tuna (supported by Earth Island Institute) will remain in effect. If no significant adverse impacts are detected, a new weaker definition for "dolphin safe" tuna will go into effect allowing the encirclement of dolphins with the deadly nets, but tuna canners and environmental groups will have the option of developing new labels with "dolphin safe" standards stronger than the weakened government label. Scientists are concerned that the short time for these findings will be too limited to confirm "significant adverse impacts" on dolphins.

Congressional efforts to pass legislation were seriously hampered by the unwillingness of the Mexican government and their highly-paid Washington lobbyists to accept ANY negotiations towards a compromise. Senator Barbara Boxer and her allies heroically blocked passage of the original "Dolphin Death Act," in order to bring the Mexican government and the Clinton Administration to the bargaining table.

More than 85 environmental, trade, animal welfare, and labor organizations of the Dolphin Safe/Fair Trade Campaign actively opposed the legislation, including Earth Island Institute, Humane Society of the U.S., Sierra Club, Friends of the Earth, Defenders of Wildlife, American SPCA, Fund for Animals, Society for Animal Protective Legislation, Earthtrust, the late oceanographer Jacques Cousteau, and Ralph Nader's Citizen Trade Campaign.

Despite the dramatic reduction in observed dolphin deaths in the fishery, dolphin populations in the Eastern Tropical Pacific have failed to recover -- several depleted populations appear to be still declining. Scientists suspect that the technique of chasing, harassing, injuring, and netting dolphins causes severe stress and interferes with the dolphins recovery. Many dolphins die but are never observed. This concern is detailed in studies conducted by the National Marine Fisheries Service on lethal physiological stress levels in netted dolphins. It is unarguable that the use of purse seine nets deliberately targeted on dolphins causes serious widespread injury and death to dolphins.

Earth Island Institute Executive Director David Phillips stated that: "The true "dolphin-safe" definition is safe for the moment, but there are great forces out to foist a fraudulent label on unsuspecting consumers.

"Now, it is up to American consumers to buy ONLY truly 'dolphin safe' tuna," Phillips added.

Earth Island Institute began the tuna boycott in 1988 with the belief that American consumers would refuse to buy tuna stained by the blood of dolphins. We still believe that, and we will work to ensure that tuna companies around the world continue to only sell tuna caught without any chasing, netting, or capturing of dolphins. We will also strongly oppose any erosion in the current strong definition of the "dolphin safe" tuna label.

Thanks to efforts of Senator Boxer, Representative George Miller, their allies in Congress, and the American public who care deeply about these marvelous marine mammals, dolphins still have a fighting chance.

Earth Island Institute is a nonprofit conservation and education organization working to preserve the biological and cultural diversity of the Earth. The International Marine Mammal Project protects dolphins, whales, and other marine mammals around the world.

VIDEO AVAILABLE: Broadcast quality video footage of dolphins and the destructive effects of tuna fishing is available.

COMPROMISE ON DOLPHIN DEATH ACT

by Mark Palmer, Earth Island Institute, August 1997

The International Marine Mammal Project, with substantial help from Senator Barbara Boxer, managed to derail the "Dolphin Death Act," and achieved a compromise in Congress. The bill is now heading for the President's desk. A detailed IMMP statement about the compromise is available.

The new compromise drops the embargo against foreign tuna, but only if certain conditions are met, including adoption of an international agreement and provisions for domestic legislation to enforce the agreement are in place in all countries. Furthermore, the current strong definition of "dolphin safe" tuna remains in effect, so consumers can buy tuna with a "dolphin safe" symbol and remain confident that the tuna was caught by methods that do not kill dolphins. The Secretary of Commerce will make a finding before March 31, 1999, on whether or not catching dolphins in nets and then releasing them causes "significant adverse impacts" on depleted dolphin populations. If the Secretary determines that there are no such impacts, the "dolphin safe" label standards will become much weaker. IMMP will have its work cut out for us following this compromise to (1) educate the public to buy only truly "dolphin safe" tuna, and (2) fight for the integrity of the strong "dolphin safe" label standards against the Clinton Administration.

FROM: Mark J. Palmer

International Marine Mammal Project

DATE: Jan. 20, 1998

RE: Update on National Marine Fisheries Service Population Survey and Dolphin Stress Research and Tuna Tracking Regulations

This is an expanded version of a memo I did on Jan. 8th, 1998, outlining the status of NMFS's dolphin population survey research and tuna tracking regulations. I have spoken over the past few weeks with representatives of the National Marine Fisheries Service about the status of the tuna tracking regulations and the research studies required by the passage of last year's dolphin legislation.

Tuna Tracking Regulations:

As you know, the legislation requires NMFS to prepare regulations on tracking tuna (from boat to can on the supermarket shelf) to implement the new international dolphin agreement and to lift the embargo on canned tuna.

NMFS reports that regulations are being drafted now. However, they will not be completed pending the finalization of the International Dolphin Conservation Program agreement, which includes a draft appendix on setting up an international tuna tracking system (the NMFS domestic system is supposed to plug into and depends upon the international system). Mexico and Venezuela have not agreed to the international tuna tracking system proposed by the U.S. in the draft international agreement, reportedly balking at allowing international inspectors into their canneries. NMFS are hopeful the international dolphin agreement will be resolved in the February IATTC meetings in La Jolla, after which they can complete the federal tuna tracking regulations for publication in the Federal Register.

Dolphin Population Survey Research Moving Forward:

Progress is being made on setting up the dolphin research. The NMFS has given the "green light" to the population survey cruises, scheduled to go this year from Late July through early December (with 120 sea days for actual observations). Funding was a potential problem, but the agency approved the funding from internal sources. They are seeking a third vessel to do the surveys. A technical meeting last month outlined the protocols for the study -- the study area, line transects to be run, and other procedures, although they do not anticipate changing anything fundamentally from the study design used in the 1980's.

Many details have to be completed (they still need permits, for example, from the countries in the ETP), but they anticipate the surveys will be conducted in 1998, 1999, and 2000 as planned.

One question that has been resolved is about El Nino. I was told the NMFS has "laid to rest" the issue of whether El Nino would interfere with their surveys -- NMFS scientists concluded it would not have any effect on the surveys.

NMFS has still to tackle the issue of how to present their results in a manner consistent with the requirements by Congress of a finding of whether or not purse seining has "significant adverse impacts" on dolphin populations. They will need to define what significant adverse impacts means in terms of their population estimates.

Generally, they agree with us that we should anticipate a population estimate that indicates recovery of the dolphin populations if in fact there are no adverse impacts, and that anything less than recovery would indicate a problem. However, they need to decide the level of recovery (we discussed the population parameters of the Atlantic bottlenosed dolphins in Florida, which quickly recovered from a serious decline in the 1980's; gray whale recovery; and general recovery rates that could be inferred from what we know about the reproductive rate of ETP dolphin species) and the probability of being able to detect the population changes from their surveys.

I was told that they would prefer to set up probability rates for the magnitude of possible adverse effects, rather than "vague generalizations of the effects, as these studies are usually worded." (e.g. there is an 80% probability that the population is being adversely effected). They feel that claims of other "unknown ecological effects" to explain a lack of recovery of the dolphins would not be likely -- the only certain impact on dolphins is from purse seine netting, so if any adverse impacts are detected, netting is the most likely cause.

These NMFS issues, by the way, are being published in a series of reports on the workshops, and copies of the reports will be available to us as they come out. NMFS is also setting up a special Internet Web site on the subject, which will allow interested parties (like us) to get reports on the workshops, find out the status of the studies, and other information on the tuna/dolphin issue. I am told the Web site will hopefully be up within the next month if all goes well (it was scheduled to be up by the end of this month, but the holidays have slowed down progress.) Workshop drafts from last year are still be edited, and then will be sent out for review by the participants, so it may be a few months before we see copies of the workshop reports.

NMFS Dolphin Stress Research Also Moving Forward:

There are three basic studies being proposed by NMFS to be conducted, based upon a workshop held last July on dolphin stress issues by NMFS, with experts on stress in marine mammals, large mammals, and mammal reproduction experts. (A draft report of the workshop should be finished within the next two weeks, but will then be circulated to participants for review before being finalized and released to us.)

The three studies include:

(1) Review of several decades of historical data now with the NMFS, including data on dolphin population parameters (how many died? sex? age? reproductive status? etc.) and biological samples. NMFS is also conducting a literature review of stress in marine mammals and other large mammals for additional information.

(2) Necropsy and sampling of dead dolphins aboard commercial tuna fishing vessels, including looking for stress hormones and other indicators (apparently, one conclusion of the stress workshop was that blood samples could not only determine if the animal was stressed, but also if physiological damage, such as muscle deterioration, was present). Dedicated technicians, trained in this work, will be assigned to commercial tuna vessels, although NMFS is still working on getting permission from Latin nations and cooperation of the IATTC to allow such technicians on board. NMFS hopes to get people on board the vessels this year, so that they will have a full three years of data collected. They will NOT use the on-board observers to do this work (who have plenty of other things to do -- the necropsy work is technical and time-consuming, but very revealing of stress levels).

(3) Chase and recapture of dolphins using a dedicated commercial tuna vessel and research vessel. This is the most complicated study, but important in showing if stress is cumulative in repeated chase of dolphins. Dolphins will be chased and netted, then tagged (some with radio tags), then released. A few days later, the school will be chased and netted again. Blood samples taken during each capture can show whether stress hormones and problems occur over time, or dissipate between each episode of chase. As this study is the most elaborate, they plan to wait until the last year to do it.

I asked specifically if they plan to deliberately kill any dolphins. The answer is no, there will be no lethal studies (except for the sampling of dead dolphins in commercial tuna nets noted above). NMFS will be putting on the record, in the workshop report on stress, what information they will lose because they will NOT be doing any deliberate lethal research on dolphins.

They are also exploring doing some of this research in cooperation with Latin nations, for example training Mexican graduate students to conduct necropsies, etc.

Conclusions on Research Relation to Dolphin-Safe Tuna Standards:

In March 1999, when the Secretary of Commerce makes the first preliminary decision on impacts (which in turn will effect the federal standards for labeling tuna as "dolphin safe"), NMFS anticipates that there will only be the first year's survey results (a population estimate) as new evidence. Results of the stress studies and subsequent two additional survey population estimates (in 1999 and 2000) will be completed in time for the second determination by the Secretary in 2001.

I asked specifically if some preliminary stress information (particularly the necropsy information from commercial tuna vessels) might be available, but was told the information would be too preliminary and too limited to stand up to scientific scrutiny in that short of time. I am a little skeptical about this -- there should be some information, even if preliminary -- but NMFS seems firm about this.

So, the issue for the Secretary of Commerce in 1999 will boil down to interpretation of population statistics that may or may not show anything significant for the first year of the survey. The new population estimate (from 1998 survey) will be comparable to earlier estimates made in the late 1980's. Even an adverse population (e.g. a population estimate that is lower than the 1980 surveys) may not be significant or show probable adverse effects, due to the quality of the data obtained and/or the assumptions about what the current population of dolphins should now look like. NMFS scientists are concerned that they will not be able to detect "adverse impacts" to the dolphin populations, which does not mean that such impacts aren't present.

(This assumes of course that NMFS continues to reject the stress research by Dr. Myrick and the "abundance indices" conducted by IATTC, both of which show problems with chasing and netting dolphins.)

In order to preserve the current Dolphin-safe Tuna label standards, then, our job will be to ensure that the population data obtained by the NMFS is interpreted correctly. If indeed cryptic mortality or reproductive interference is not being caused by the current chasing, netting, and harassing of dolphins, the ETP dolphin populations should be rebounding strongly from the lows of the late 1980's surveys.

One of the arguments made by supporters of dropping U.S. embargoes against dolphin-deadly tuna was that the U.S. should take "multi-lateral" action -- e.g. obtain a binding international agreement to protect dolphins -- rather than "unilateral" actions.

In fact, within a few weeks of Congress abandoning the tuna embargo this fall, Mexico and Venezuela have effectively rejected a proposed international agreement to protect dolphins, putting the U.S. negotiating team practically back to square one.

Part of the problem stems from the weak U.S. stance to begin with. The U.S. State Department, in preparing a draft dolphin agreement for consideration by Mexico, Venezuela, and other nations which fish for tuna with purse seine nets in the Eastern Tropical Pacific, did not provide a strong text. For example, while the State Dept. draft proposed a goal to reduce dolphin deaths in the fishery, in fact the text did not specify any mechanism to do so. Similarly, the draft text referred only vaguely to enforcement provisions (fines and other sanctions against boat captains who harm dolphins) recommended by the International Review Panel of the Inter-American Tropical Tuna Commission (IATTC). Language proposed to reduce bycatch was similarly vague, lacking specific steps that nations should take to reduce bycatch of nontarget species like sharks and billfish.

At the negotiating meeting, sponsored by the IATTC in La Jolla during the last week of October 1997, Mexico and Venezuela were unwilling to accept even this watered-down draft prepared by the U.S. State Department. Despite their pledge, in signing the "Panama Declaration" in 1995, to support reducing the dolphin kill during tuna fishing operations, they now refused such language, arguing instead for maintaining a steady level of dolphin mortality. They further rejected any specific language on penalties for boat captains who violate the agreement or specific bycatch reduction language.

The stalling stance of the Mexican and Venezuelan delegations was a surprise to those who had championed the effort to overturn U.S. laws for dolphins. To Earth Island Institute, the appalling rejection of conservation policies previously agreed to was a vindication of our opposition to the weakening of the Marine Mammal Protection Act.

No consensus on the final text of an international dolphin agreement was reached during the 4-day meeting. Further negotiations are proceeding by mail, and the next meeting of the fishing nations is scheduled for February 1998 in Cancun, Mexico.

Thanks to the efforts of Earth Island Institute and the Dolphin Safe/Fair Trade Campaign, the U.S. legislation specifies that imports of tuna from these fishing nations cannot be allowed until an international agreement is completed and in force. Earth Island will continue to lobby for a strong international agreement, which truly protects dolphins and with meaningful enforcement and bycatch provisions, and will seek to block tuna imports until an acceptable agreement is completed.

RE: Comments on Draft Resolution of the IATTC

Regarding the Agreement on the International Dolphin Conservation Program
(Draft from Oct. 16th State Dept.)

Dear Mr. Hallman:

Earth Island Institute offers the following comments with regard to the U.S. State Dept's draft "Resolution of the IATTC Regarding the Agreement on the International Dolphin Conservation Program" and draft "Agreement" (draft dated Oct. 16, 1997):

1) While the draft resolution calls upon nations to become members of the IATTC and participate in the International Dolphin Conservation Program (IDCP), nowhere does the draft agreement require "equitable payments" or mandate that nations meet "all financial obligations" to fund the IATTC activities (Section 4(a) of Public Law 105-42). Currently, the U.S. pays more than 90% of the expenses of the IATTC, although less than 5% of the fish from the ETP are harvested by U.S. vessels. This violates the original charter of the IATTC and is inconsistent with obligations under PL 105-42. The draft IATTC resolution should reflect the equitable payment language of PL 105-42. Nations that do not join the IATTC or that do not pay their equitable dues to the IATTC should be denied Dolphin Mortality Limits (DML's) for their fishing fleet.

2) Furthermore, it is our view that if a nation does not fully join the IATTC (not simply its observer program) or joins but does not make "equitable payments" to the IATTC, the Commerce Department cannot lawfully allow that nation to import tuna to the U.S. Our belief is that imports under these circumstances would be a violation of PL 105-42 and would undermine the effectiveness of the IDCP.

3) In our view, Annex II presents an unacceptable trading regime for dolphin mortality limits (DML's) among vessels, which would ensure vessels which kill large numbers of dolphins are rewarded and which would erode any incentive to further reduce dolphin mortality. We believe this draft Annex is in violation of the provisions of PL 105-42 that seek a goal of zero dolphin mortality. We strongly urge the inclusion of a mechanism in the resolution/agreement to annually reduce the DML's by a statistically significant amount, in keeping with the stated goals of the Agreement.

4) While the draft resolution's section on "General Measures" mentions bycatch and the most recent draft adds provisions (Article V) on Reduction of Bycatch, the specific steps outlined in PL 105-42 (Section 15) are not included. Clearly, the draft should reflect the language from PL 105-42 to require specific steps by nations to reduce bycatch. We support the inclusion of the provision to release sea turtles and other endangered species alive, but specific steps to reduce bycatch of nontarget species and juvenile tuna should be included. We further recommend such steps include language to annually reduce bycatch by statistically significant amounts.

5) The section of the draft Agreement on the IDCP (Article IV, Section 3) requires at least 50% of the observers on board a nation's fleet to be from the observer program of the IATTC. We strongly urge that 100% of the observers be from the IATTC observer program, to maintain standard observations, increase transparency, speed transfer of data, and assure compliance.

6) The section of the draft resolution/agreement on compliance (Article VII) is vague. This section needs to specify that nations must have effective laws in place and take specific enforcement actions to ensure vessels within their jurisdiction comply with the IDCP. Furthermore, the individual nation compliance measures should comport with the recommended fines, forfeitures, and license suspensions recommended by the IATTC's International Review Panel for infractions (Annex VII). Absent a nation acting to implement and enforce the provisions of the resolution/agreement, we believe it would be unlawful for the Department of Commerce to allow importation of that country's tuna into the U.S.

7) Annex I states that the per-year overall dolphin mortality shall not exceed 5,000 total. However, the next sentence specifies a mortality cap of 0.1 percent of Nmin after the year 2001, which has been estimated at greater than 5,000 dolphins per year. This disparity should be eliminated, specifying that the 5,000 total cap, and mandate for continued reduction, must be continued past 2001.

8) Annex V deals with tuna tracking and verification. We strongly support provisions for international inspection of tuna processing canneries and other facilities to ensure the dolphin-safe status of tuna. We feel that the resolution/agreement should stipulate that no nation allow landing or transshipment of tuna from non-parties through that member nation's ports of entry.

Thank you for the opportunity to review the draft resolution. We strongly urge you to incorporate our concerns in your negotiations on the implementation of PL 105-42 to ensure protection for dolphins and marine ecosystems.

Sincerely yours,

David Phillips, Director
Mark J. Palmer, Program Associate

cc Dr. Michael Tillman, NOAA
Dr. James Joseph, Inter-American Tropical Tuna Commission
Senator Barbara Boxer
Senator Joseph Biden
Senator John Kerry
Senator Ernst Hollings
Representative George Miller