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Dolphin-Safe Tuna

After the 1988 MMPA amendments, some consumer groups began to suggest a consumer boycott of tuna caught by encircling dolphins with purse seines. In April 1990, the three largest tuna processors supplying the U.S. market responded to continuing public concerns over dolphin mortality by announcing that they would no longer purchase tuna caught in association with dolphins. This action caused all but 11 of the 35 U.S. tuna seiners operating in the ETP to relocate to the western Pacific, where the dolphin-encirclement method of tuna fishing was not reported to occur, in the nine-month period following the processors' announcement. Congress responded by enacting Title IX of P.L. 101-627, the Dolphin Protection Consumer Information Act, to set standards for labeling tuna as "dolphin-safe." The International Dolphin Conservation Act of 1992, P.L. 102-523, prohibited the sale, purchase, transport, or shipment in the United States of any tuna that was not dolphin-safe after June 1, 1994. By early 1996, only four or five large U.S. purse seiners continued to fish for yellowfin tuna in the ETP.

Tuna industry sources, however, claim dolphin-safe labeling did little to promote any further decline in ETP dolphin mortalities, because most foreign tuna seiners continued to encircle dolphins and could not qualify for the label. IATTC data support this assertion, showing that, while tonnages of tuna caught on dolphins and number of sets on dolphins remained steady, dolphin mortality declined -- probably due to increasing skill of the seiners. Those vessels that tried alternative fishing methods found they would lose as much as $100,000 per trip due to the difference in value between large yellowfin tuna and small skipjack/juvenile yellowfin tuna. Instead, the industry claims that an increased understanding, gained primarily through IATTC educational efforts under the 1992 La Jolla Agreement, of how to avoid dolphin injury and mortality and prevent resource waste was a more effective incentive. Animal protection advocates, however, note that dolphin sets did decrease by 27% and that IATTC intensified its educational efforts after dolphin-safe tuna measures were enacted. Thus, these critics of the tuna industry claim that dolphin-safe labeling did indeed provide some incentive for increased attention to reducing dolphin mortalities, although foreign seiners may also have been attempting to preclude U.S. tuna embargoes by reducing dolphin mortalities rather than eliminating dolphin sets.

Although total sales volume of tuna in the United States is reported to have declined between 20% and 25% since the dolphin-safe policy was implemented in 1990, no studies have attempted to identify the reasons. Some contributing factors may include consumer resistance as the canned tuna product changed from an 80% yellowfin/20% skipjack pack to an 80% skipjack/20% yellowfin pack and possible aversion to dolphin- safe labeling.

Critics of the dolphin-safe labeling policy have pointed out that these standards are misleading in that they allow tuna caught outside the ETP to be labelled as "dolphin- safe" even though the fisheries, and any dolphin mortalities, are unobserved. For example, tuna caught by gillnets in the Indian Ocean can be labeled dolphin-safe even though significant numbers of dolphins may be killed in this fishery. ETP tuna caught in purse seine sets where independent observers have verified that no dolphin mortality occurred, however, are not considered "dolphin-safe." Thus, "dolphin-safe," as currently defined, does not mean that no dolphins are killed to catch the tuna, but that no dolphins are surrounded by purse seines in the ETP to catch the tuna. However, the intent of the dolphin-safe provisions was to address what critics of tuna seining saw as an inherently flawed fishing method (surrounding dolphins by purse seines to catch tuna) in the ETP rather than to enact an industry-wide mortality standard.

Tuna Sanctions and Trade Obligations

General Agreement on Tariffs and Trade. In 1990, Mexico requested that the General Agreement on Tariffs and Trade (GATT) parties convene a dispute panel to consider whether the United States was inconsistent with its obligations under GATT by imposing embargoes on tuna imports under the authority of the MMPA. In August 1991, the GATT dispute panel found that the United States had acted inconsistently with its obligations under GATT (for further information, see CRS Report 91-666 ENR, Tuna and the GATT). However, GATT's dispute panel suggested that sanctions could be permissible if they were designed to ensure compliance with a multilateral agreement. A subsequent challenge by the European Community on embargo provisions applicable to tuna trade through intermediary nations also resulted in a dispute panel finding that the United States had acted inconsistently with GATT obligations. While the United States could unilaterally block any punitive sanctions for non-conformance in the former GATT regime, such self- protective recourse is not available under the new World Trade Organization.

North American Free Trade Agreement. Because of the conflict between the United States and Mexico over dolphin protection, negotiators of the North America Free Trade Agreement (NAFTA) chose to exclude discussion of controversial tuna- dolphin issues from this agreement.

The 1992 La Jolla Agreement

After years of discussion and 6 months of focussed work, ETP tuna fishing nations concluded a non-binding international agreement establishing an International Dolphin Conservation Program (IDCP) under the auspices of the IATTC at a special 1992 meeting in La Jolla, CA. Annual limits on incidental dolphin mortality were established as 19,500 in 1993, 15,500 in 1994, 12,000 in 1995, 9,000 in 1996, 7,500 in 1997, 6,500 in 1998, and less than 5,000 in 1999. In addition, the Program required: 1) 100% observer coverage, with at least 50% of the observers for each nation being from the IATTC observer program; 2) a review panel (that would include representatives of environmental and industry groups) be established to monitor fleet compliance with dolphin mortality limits; 3) a scientific research and education program be expanded to find methods of catching large yellowfin tuna without encircling dolphins; and 4) a scientific advisory board be established to assist the IATTC in coordinating, facilitating, and guiding research on reducing dolphin mortalities. In addition, dolphin mortality limits were imposed for individual tuna seiners. Each tuna seiner operates with an individual Dolphin Mortality Limit (DML), which is calculated by dividing the total annual mortality quota by the number of seiners fishing. If a seiner reaches its DML, it must cease fishing. Subsequently and in recognition of progress in mortality reduction, 1994 and 1995 annual mortality limits were reduced to 9,300 animals.

U.S. tuna seiners, following the La Jolla Agreement, operated under domestic regulations limiting their total annual mortality quota to no more than the total actual mortality recorded for the previous year. This rapidly pushed the U.S. quota lower. Thus, when divided into DMLs, careful U.S. seiners were less secure and became more likely to be penalized by an early closure of the fishery if a few sloppy operators far exceeded their individual DMLs with catastrophic sets. As the total U.S. quota declined, this increased risk further discouraged U.S. seiner participation.

Environmental groups, however, are concerned that, although 53 major (e.g., non-cooperation with an observer) and hundreds of minor infractions of the La Jolla Agreement have been reported, sufficient enforcement, so far, has been lacking -- with few penalties imposed. Such an enforcement record, they maintain, provides little incentive for compliance. IATTC has no enforcement powers, but must rely on each participating nation's national justice system having jurisdiction over a vessel to determine whether a violation occurred and, if so, to assess an appropriate penalty under its domestic law. IATTC maintains, however, that it is premature to conclude much about enforcement and compliance for a program that had been operating for barely 2 years. IATTC also notes that the justice systems of other nations do not move any more speedily than the U.S. system. The IATTC points out that for 17 infractions involving non-cooperation with the observer, 2 have resulted in suspended licenses, 1 resulted in a warning, 3 resulted in sanctions that have not yet been decided upon, 3 resulted in decisions that no sanctions were warranted, and 8 are still in judicial review.

Bycatch and Associated Ecosystem Concerns

The two primary alternative (dolphin-safe) methods of harvesting yellowfin tuna in the ETP are school sets (surrounding schools of free-swimming yellowfin tuna with seines) and log sets (encircling logs and other floating debris to capture yellowfin tuna that tend to congregate beneath such material). Comparative bycatch data from 1994 are shown in Table 2, indicating the tradeoffs in bycatch discards and tuna harvest for the three types of sets.

***TABLE or GRAPHIC not shown here***

At the June 1995 meeting of the IATTC, six parties to the 1992 La Jolla Agreement issued a statement expressing concern that the increased use of "dolphin-safe equals no encirclement" fishing methods would harm biodiversity by increasing the discard of juvenile tuna and the bycatch of non-target species, such as billfish, sharks, mahi-mahi, and sea turtles (For further information on bycatch concerns generally, see CRS Report 90-575 ENR, Waste from Fish Harvesting and Processing: Growing Environmental Concerns). These nations endorsed fishing for tuna by encircling dolphins with purse seines as the most efficient method for harvesting tuna stocks and other ETP living resources, and argued that U.S. embargoes on tuna not caught by dolphin-safe methods lack a scientific basis and are counterproductive to broader marine conservation objectives.

Some environmental groups, however, believe that the total number of non-dolphin sets, and thus also bycatch, was actually greater in the ETP in the past due to the larger number of vessels fishing the area prior to the dolphin-safe era. Since current tuna stocks are robust, they argue that bycatch could not have been a severe problem for the ecosystem. Even with a fishery-wide switch to non-dolphin sets, these groups do not foresee a larger number of vessels fishing the ETP than in the past.

The IATTC, however, has pointed out that this argument runs counter to fishery data that suggest that the high catches of small tuna from non-dolphin sets in the 1970s resulted in overfishing of yellowfin tuna. Yellowfin catches declined 30%, and boats were either forced to leave the area or cease fishing. The IATTC argues that, if the fishery were to convert to 100% dolphin-safe methods, these problems for yellowfin tuna stocks would become even worse. Critics of the IATTC's concerns suggest that 1970s non-dolphin sets were probably primarily log sets and that fish-finding technology has advanced sufficiently since the 1970s to enable fishers to rely more today on school sets, with their mid-level bycatch, rather than high-bycatch log sets.

Those most concerned with school and log set bycatch may presume that no change can or will be made in the way log and school sets are currently conducted that would reduce school and log set bycatch. Thus, critics believe that allowing dolphin sets will not indirectly solve the bycatch problem, but that the IATTC should propose guidelines or take other direct mitigating action that might reduce bycatch in non-dolphin sets.

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