oversight

Tuna/Porpoise Observer Program: More Needs to Be Done to Identify and Report Harassment of Observers

Published by the Government Accountability Office on 1990-11-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                           TUNA/PORPOISE
                           OBSERVER PROGRAM

                           More Needs to Be Done~
                           to Identify and Report
                           Harassment of
                           Observers


                                           I
                                         142751




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                   United States
GAO                General Accounting Office
                   Washington, D.C. 20648

                   Resources, Community, and
                   Economic Development Division

                   B-240025

                   November 2,199O

                   The Honorable Ernest F. Hollings
                   Chairman, Committee on Commerce,
                     Science, and Transportation
                   United States Senate

                   The Honorable John F. Kerry
                   Vice Chairman, National Ocean
                     Policy Study
                   United States Senate

                   The Honorable Bob Packwood
                   The Honorable Pete Wilson
                   The Honorable John B. Breaux
                   United States Senate

                   In response to your request and subsequent discussions with your
                   offices, we evaluated certain aspects of the National Oceanic and Atmos-
                   pheric Administration’s (NOAA)management and operation of its tuna/
                   porpoise observer program. This program, administered by NOAA’S
                   National Marine Fisheries Service, Department of Commerce, places
                   observers aboard U.S. tuna boats to monitor the number of porpoise
                   killed by US. tuna fishing operations and compliance with regulations
                   promulgated under the Marine Mammal Protection Act of 1972, as
                   amended (16 U.S.C. 1361 et seq.). In 1981 the Fisheries Service set a
                   limit of 20,500 porpoise kills before U.S. fishermen are prohibited from
                   setting nets around porpoise. The estimated number of porpoise killed
                   annually by the U.S. tuna fleet has averaged about 18,000 for the period
                   from 1981 through 1988. In 1989 the total porpoise mortality due to
                   U.S. tuna boat fishing operations was 12,643.

                   Specifically, we evaluated the (1) extent to which shipboard harassment
                   of observers is occurring and whether it adversely influences the
                   observers’ reporting of porpoise kills, (2) adequacy of the procedures
                   and training to help identify harassment, and (3) adequacy of internal
                   controls for ensuring accurate reporting of porpoise kills and violations
                   of the act.


                   Harassment is defined by the Fisheries Service as conduct which has the
Results in Brief   purpose or effect of unreasonably interfering with the observers’ work
                   performance, or which creates an intimidating, hostile, or offensive


                   Page 1                           GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
             R-249925




             environment. We estimate that observers experienced some form of har-
             assment, such as being denied access to radio communications, on about
              18 percent of the 191 cruises listed in the Fisheries Service’s data base
             between 1986 and June 1989. Often the ship’s officers were the source
             of the harassment. However, we did not find evidence that the harassed
             observers were influenced to underreport the number of porpoise killed.
             Cases of harassment are not always reported because they are thought
             to be minor, not part of a recognizable pattern, or because observers are
             uncertain about the definition of harassment. In April 1990 three com-
             panies, which account for 75 percent of the U.S. tuna market,
             announced that they would no longer buy tuna caught with methods
             that would harm porpoise. This development may increase the extent of
             observer harassment in the future, because of the impact of a negative
             observer report.

             The Fisheries Service’s training program includes advice designed to
             help observers identify harassment and record it in their logbooks.’
             However, most observers we interviewed told us that the areas of
             training covering harassment were only moderately effective, while
             most observers stated that all other categories of training were very
             effective. Certain procedures in the tuna/porpoise observer program,
             dealing with the methods by which observers communicate and docu-
             ment harassment and the Fisheries Service debriefs observers after
             returning from a cruise, are inadequate.

             The Fisheries Service internal controls for collecting and reporting data
             on porpoise kills and violations, although recently significantly strength-
             ened, remain inadequate because the Fisheries Service still does not
             receive kill data, by vessel, on a timely basis to identify and correct erro-
             neous counting procedures.


             In the eastern tropical Pacific, schools of yellowfin tuna often swim
Background   below schools of porpoise. Commercial tuna fishermen use the porpoise
             to find the tuna, which they catch in large nets called purse seines. Por-
             poise sometimes become entangled in the nets and, if unable to surface,
             die.

             Because of widespread publicity in the 1960s about the high numbers of
             porpoise being killed by such fishing methods, the Congress passed the

             ‘The logbook, often called a greenbook, is used by observers to record information during the fishing
             trip.



             Page 2                                        GAO/RCED-91-38      Tuna/Porpoise   Observer   Program
B.240025




Marine Mammal Protection Act to reduce the incidental kill or incidental
serious injury of marine mammals.2 In 1976 the Fisheries Service ini-
tially established upper limits on the number of porpoise that may be
killed annually-20,600     since 1981-during commercial fishing opera-
tions. The Fisheries Service requires that observers be on board U.S.
tuna boats to collect data on porpoise kills. While at sea, the observers
report information to the Fisheries Service on the numbers of porpoise
killed, using ship radios.

Foreign countries, as well as the United States, do a significant amount
of tuna fishing in the eastern Pacific Ocean. Some of these countries
belong to the Inter-American Tropical Tuna Commission. Since 1979 the
Commission has been responsible for estimating incidental porpoise
mortality; reporting relative abundance of stocks; and identifying,
developing, testing, and promoting technologies and information to
reduce porpoise mortalities. In 1979 the Commission initiated a volun-
tary observer program to gather data in this regard. According to the
Director of Investigations for the Commission, these observers are citi-
zens of the country where the observed vessel is flagged. The Fisheries
Service agreed to designate about one-half of the U.S. tuna boat cruises
as Commission cruises.

While on board observers may face harassment. Many instances which
may constitute harassment may also be violations of Fisheries Service
regulations. Observers are encouraged to document instances of harass-
ment in logbooks and report them to the Enforcement Branch when they
return from the cruise. If warranted, NOAA'S Southwest Regional Counsel
will send the captain and/or boat owner a Notice of Violation and
Assessment of Administrative Penalty. If desired, the captain and/or
owner may request a hearing before an administrative law judge.




2The act applies to all marine mammals. We are using the term “porpoise” to refer to all small
cetaceans affected by the tuna fishery. While “dolphins” is the scientifically correct term, porpoise is
the term used by tuna fishermen.



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                                                                                                                                          1
                                         B240026




                                         On the basis of our review of samples of the observer-prepared log-
Shipboard Harassment                     books, we estimated that the observers were subjected to one or more
Has Occurred, but No                     types of harassment on about 18 percent of the 191 cruises designated
Evidence That It                         as non-Commission cruises in the Fisheries Service’s data base between
                                          1986 and June 1989.3 Often the ship’s officers are the source of the har-
Influenced Reporting                     assment. Although we estimated the number of cruises on which harass-
                                         ment occurred and the types of harassment, we could not estimate the
                                         frequency of harassment on an individual cruise. We did not find evi-
                                         dence that the observers subjected to the harassment were influenced to
                                         underreport the number of porpoise killed. (See app. I for additional
                                         information on instances of harassment.)

                                         Table 1 estimates the number and percent of cruises for which various
                                         types of harassment occurred, based on our samples of the cruises taken
                                         between January 1986 through June 1989. Each estimate developed
                                         from the samples has a measurable precision; that is, if we reviewed all
                                         191 cruises, the results would fall between the upper and lower limits of
                                         the confidence interval about 19 times out of 20. (See app. III for addi-
                                         tional information on our methodology.)

Table 1: Eatlmated Number (Percent) of
Cruise8 for Which Obrervsrs Reported                                                                          Estimated cruisesa
Harasrment of Variouo Types              Type                                                       Number                             Percentb
                                         -~- of harassment                                                                                  -
                                         Radio access denial                                                0                    4.2 (4.2-9.4)
                                         Porpoise specimen access denial                                   20                  10.5 (5.8-19.9)
                                         Ship’s position access -denial                                     6                    3.1 (3.1-8.4)
                                         Intimidation                                                      20                  10.5 (5.8-19.9)
                                         ‘We estimated that observers were subjected to one or more types of harassment on about 18 percent
                                         of the 191 cruises listed in the Fisheries Service data base between 1985 and June 1989.
                                         bThe numbers in parentheses are the lower and upper limits of estimates to the universe at the 95.
                                         percent confidence level.

                                         On April 12, 1990, three companies, which account for about 75 percent
                                         of the U.S. tuna market, announced that they would no longer buy tuna
                                         caught with methods that harm porpoise. Officials of these companies
                                         said that they would rely on reports from observers to decide whether
                                         to buy a particular catch of tuna. On April 13, 1990, the Fisheries Ser-
                                         vice announced its support of these companies’ actions and stated that
                                         this action should help reduce the number of porpoise killed. Although it
                                         is too early to tell what effect the companies’ action will have, this
                                         recent development may increase the extent of observer harassment

                                         3The lower and upper limits of the Qbpercent confidence interval are 11.Opercent and 28.3 percent.



                                         Page 4                                        GAO/RCEDBl-38 Tuna/Porpoise          Observer   Program
                                 B-2499215




                                because of the adverse financial impact on the fishermen of a negative
                                observer report. (See app, 11.)


                       Procedural problems in the tuna/porpoise observer program and the
Procedures and         training of those observers adversely affect the identification, documen-
Training Inadequate to tatqion, and reporting of harassment. Specifically, (1) observers may
Help Identify          have   problems differentiating between harassment and harmless
                       pranks, (2) not all cases of harassment are being documented on-board
Harassment             or systematically identified when observers are debriefed, and (3)
                                observer training does not adequately cover harassment.


Observers May Have              The Fisheries Service does not provide clear guidance to observers that
Problems Identifying            enables them to adequately determine what constitutes harassment. On
                                one hand, the Fisheries Service’s field manual for observers advises
Harassment                      them to document any attempt to interfere with their work. On the
                                other hand, the manual defines harassment to include only “unreason-
                                able interference,” and during training observers are advised to expect
                                persistent, harmless pranks. The observer is to determine if, and when,
                                pranks become harassment. In contrast, the Fisheries Service’s foreign
                                fisheries observer training manual stated that its observers were to be
                                treated as guests on the boat and that persistent, harmless pranks were
                                to be reported to the captain4

                                Fisheries Service officials told us that the observers were not expected
                                to endure anything beyond innocent hazing. They said observers were
                                expected to document any behavior that they believed was unaccept-
                                able. However, because of a high turnover rate, many of the observers
                                may not have sufficient experience to make such a determination. For
                                example, from January 1976 to July 1989,55 percent of the tuna/por-
                                poise observers made two trips or fewer before leaving the program.
                                Moreover, 31 percent of the observers made only one trip. The Tuna/
                                Porpoise Management Branch Chief said that the first trip an observer
                                makes is basically a learning-on-the-job cruise.




                                4This program ceased operating during 1989 because foreign fishing in U.S. waters was phased out.
                                According to a NOAA program manager, the Fisheries Service domestic observer program uses many
                                of the same procedures followed in the foreign program.



                                Page 6                                      GAO/RCED-91.88     Tuna/Porpoise   Observer   Program
                         B240926




Methods to Communicate   Tuna/porpoise observers when at sea have no means to confidentially
and ResolveOn-Board      tell the Fisheries Service that they are being harassed. The Fisheries
                         Service does instruct the tuna/porpoise observers to seek assistance
Harassment Are           from the ship’s officers to resolve any problems associated with unac-
Inadequate               ceptable behavior. The Coast Guard requires that responsible personnel,
                         such as the captain and chief engineer, be licensed, and it may revoke a
                         license if a license holder is proven guilty of interfering with an
                         observer’s performance of official duties. However, of the harassment
                         being reported, the ship’s officers were often the source of the
                         harassment.

                         In contrast, observers in the foreign fisheries observer program were
                         provided with confidential safety radio codes to be included as part of,
                         their weekly radio reports. If necessary, the observer could request
                         Coast Guard assistance. As of September 1989, according to Fisheries
                         Service data, the code had been used six times since it was implemented
                         in 1986.

                         In 1986 the Tuna/Porpoise Management Branch Chief tried to imple-
                         ment confidential safety radio codes to be included as part of the
                         observers’ weekly reports of porpoise kills. However, the tuna
                         industry’s representative expressed his concern in a December 1986
                         letter that using such radio codes “will unnecessarily stimulate problems
                         aboard the vessel and damage the command position of the vessel’s cap-
                         tain.” In January 1987 the Fisheries Service’s Southwest Regional Office
                         Director rejected the proposed use of such codes. In response to our
                         draft report, the Department of Commerce stated that it was reviewing
                         the requirements and need for implementing observer radio codes for
                         reporting harassment.

                         Fisheries Service officials pointed out that the distance of the boats
                         from shore-foreign     observers were never more than 200 miles from
                         shore; tuna/porpoise observers can be as far as 3,000 miles-makes it
                         difficult for the Coast Guard to respond in case of an emergency. In our
                         discussions with Fisheries Service Southwest Region officials, a possible
                         alternative surfaced to Coast Guard assistance. The ship’s owner could
                         be required to contact the captain and caution him to immediately cease
                         harassing the observer. According to Fisheries Service officials, because
                         vessel owners can contact their vessels by radio, the Fisheries Service
                         could notify the owners when harassment occurs, and owners could
                         then contact the vessels.




                         Page 6                           GAO/RCED-91-38   Tuna/Porpohe   Observer   Program
                            B-240021




Not All Casesof             Observers are not documenting all instances of potential harassment.
Harassment Are              About 400 observers have been employed since the inception of the pro-
                            gram. Because of difficulty in locating the observers, we were unable to
Documented                  select a sample that would be representative of the universe of 400
                            observers, but we were able to contact and interview 32 current and
                            past observers about identifying and documenting instances of harass-
                            ment. The results of these interviews cannot be projected to the uni-
                            verse. Of the 32 observers interviewed, 8 told us that they did not
                            document all incidents of harassment because they believed the inci-
                            dents were isolated or not significant enough to report.

                            Fisheries Service representatives were unable to explain why observers
                            were not logging incidents of unacceptable behavior that occurred
                            during the cruises. The Chief of the Tuna/Porpoise Management Branch
                            said that during training, observers are told to document all instances of
                            interference with their work, regardless of how isolated or insignificant,
                            because they need to be looked at collectively. As a result of our discus-
                            sions, the Chief redesigned the format of the logbook to improve its
                            organization, elevate its significance to the observers, and aid in
                            ensuring that observers would document instances of harassment
                            regardless of significance.


Harassment Not              The tuna/porpoise observer is interviewed (debriefed) by a member of
                            the Fisheries Service’s Enforcement Branch concerning possible harass-
Systematically Identified   ment and violations of Fisheries Service regulations. Instances of har-
When Observers Debriefed    assment were not systematically identified during the debriefing process
                            because observers were not asked to prepare for the debriefing and
                            because the Enforcement Branch did not follow a standard set of ques-
                            tions. Before 1986, according to Enforcement Branch officials, this inter-
                            view often did not occur, and when it did occur, no documentation was
                            prepared. During 1986 efforts were strengthened to interview all
                            returning observers and to document the results of these interviews.

                            On the other hand, observers in the foreign fisheries observer program
                            were required to complete two debriefing questionnaires before meeting
                            with their enforcement people, One questionnaire was cruise-specific
                            and asked for responses on certain occurrences, including harassment,
                            the observer experienced on the cruise. The other questionnaire asked
                            program-specific questions such as adequacy of the training and the
                            value of the debriefing process. The information collected from these
                            questionnaires was used to determine how well the observer performed



                            Page 7                           GAO/RCED-91-98   Tuna/Porpoise   Observer   Program
                               B-240026




                               during a particular cruise, provide the basis for follow-up, prosecute
                               violators, and identify overall strengths and weaknesses in the program.

                               We discussed with Southwest Regional officials the need for such a
                               detailed debriefing questionnaire in the tuna/porpoise program. The
                               Tuna/Porpoise Management Branch Chief told us that, as the result of
                               our review, he had instituted a debriefing questionnaire in January 1990
                               for tuna/porpoise observers. Although it is too early to judge the ques-
                               tionnaire’s success in identifying instances of harassment, the 35 ques-
                               tions asked are very specific and at least as comprehensive as the
                               debriefing questionnaire used in the foreign fisheries program. The
                               revised questionnaire should improve the debriefing process.


Observer Training Does         Our discussions with 32 current and past observers indicate that the
Not Adequately Cover           areas of training covering harassment- specifically, interpersonal rela-
                               tions with the captain and crew and documentation of suspected viola-
Harassment                     tions-were moderately effective. (See table 2.) The most frequent
                               observer response for almost all other categories of training was that it
                               was “very effective.” When we pointed this out to the Tuna/Porpoise
                               Management Branch Chief, he told us that the training would be revised
                               to better address harassment.

Table 2: Observer Responses
Concerning Training Adequacy                                                                 Not      Moderately                 Very
                               Training    category
                               -- __..- _.____. -..                                   effective         effective           effective
                               Identification of species                                        0        .-       4       __- 28
                               Documentation of incidental deaths                               0                 7            25
                               identification of deaths               -___          __-         1                 8            23
                               Documentation of injuries                                        5                11       -__ 16
                               Identification of injuries ---                                   6                13
                                                                                                                 ___-____       13
                               Documentation of suspected violation9                            2                17       _____ 13
                               Interpersonal relations with captain and
                                  crewa                                                         1                20                11
                               aThese two categories include, among other things, identifying, dealing with, and documenting harass-
                               ment




                               Page 8                                        GAO/WED-9138       Tuna/Porpoise    Observer    F%ogram
                        8240026




                        The Fisheries Service estimate of total porpoise kills is based solely on
Fisheries Service Has   data observers reported during the fishing trips. Because the observers
Improved Internal       work alone, the Fisheries Service has no independent means of ensuring
Controls Over Data      that the observers accurately record porpoise kills. Some problems with
                        the internal controls, particularly the timely reporting of porpoise kill
Reporting               data, may affect the data’s reliability.

                        Observers are placed on all U.S. tuna fishing boats, but about one-half of
                        the U.S. tuna boat cruises are designated as Inter-American Tropical
                        Tuna Commission cruises. Until recently, data requirements on the
                        cruises designated as Commission cruises differed from those designated
                        as Fisheries Service cruises. For example, observers on designated Com-
                        mission cruises (1) reported directly to the Commission, (2) did not doc-
                        ument or report violations, and (3) were not debriefed by the
                        Enforcement Branch. The Commission would aggregate the porpoise kill
                        data before giving it to the Fisheries Service to maintain confidentiality
                        of the data by individual cruise. However, as a result of negotiations
                        between the Fisheries Service and the Commission during 1989, data
                        provided the Fisheries Service are now similar regardless of the designa-
                        tion of the cruise, except that observers on Commission cruises still send
                        their weekly radio reports to the Commission. The Commission then pro-
                        vides the Fisheries Service with an aggregate total of porpoise killed.
                        For individual boat totals, the Fisheries Service must wait until
                        observers return to shore and submit the original data forms. Timely
                        reporting of porpoise kill data is important, especially when the aggre-
                        gate total approaches the annual upper limit of 20,500. The Chief said
                        that the Fisheries Service needs to receive data on the number of por-
                        poise killed each week by individual cruise to (1) determine if observers
                        are correctly counting the kills and (2) correct any observers’ erroneous
                        procedures in a timely manner.


                        Harassment of observers on U.S. tuna boats does occur, but we could
Conclusions             find no evidence that harassment affects the observers’ reporting of
                        porpoise killed. Observers told us that (1) they do not report all
                        instances of harassment and (2) improvements could be made in their
                        training on how to identify, document, and report harassment. No
                        covert means are available to the observers while at sea to report that
                        they are being harassed.

                        Recent developments have given the Fisheries Service improved controls
                        over the data and information used to report porpoise kills, but data
                        collection and reporting are still not adequate enough to ensure that


                        Page 9                           GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
                                                                                                       8
                     R-240026




                     observers are correctly counting kills or to correct observers’ erroneous
                     counting procedures in a timely manner.


                     To improve the management of the tuna/porpoise observer program, we
Recommendations      recommend that the Department of Commerce’s Under Secretary for
                     Oceans and Atmosphere direct the Assistant Administrator, National
                     Marine Fisheries Service, to

                     clearly define, and communicate to all parties, what constitutes
                     harassment;
                     reemphasize the requirement that observers document cases of
                     harassment;
                     provide the observers with means by which to quickly report problem
                     harassment, such as maintaining adequate personal safety radio codes
                     and requiring vessel owners to contact their captains on problem
                     cruises;
                     implement improvements in the training program to help observers to
                     better identify, document, and report harassment; and
                     improve the internal controls over porpoise kill data by seeking an
                     agreement with the Commission that its observers report by radio
                     directly to the Fisheries Service each week.


                     The Department of Commerce, Inter-American Tropical Tuna Commis-
Agencies’ Comments   sion, and the American Tunaboat Association (an association comprised
and Our Evaluation   exclusively of American tuna boat owners) provided written comments
                     on a draft of this report. Their comments and our evaluations are
                     included in appendixes IV through VI. The Department agreed with our
                     recommendations for improving the management of the tuna/porpoise
                     program to address harassment of observers and stated that it has
                     already taken certain actions in this regard. The Commission also agreed
                     on the need to define harassment clearly and to communicate that defi-
                     nition to all parties. The American Tunaboat Association stated that fur-
                     ther attempts to describe behavior aboard tuna boats as constituting
                     harassment will create more problems than solutions and that the
                     existing rules are more than adequate. None of the three organizations
                     agreed with us that it was necessary for observers on Commission
                     cruises to report directly to the Fisheries Service each week. However,
                     we continue to believe that the current reporting system that U.S.
                     observers use on Commission cruises is not adequate to allow the Fish-
                     eries Service to (1) determine if observers are correctly counting kills



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    8240026




    and (2) correct observers’ erroneous counting procedures in a timely
    manner.


    Our review was performed from May 1989 to August 1990 in accor-
    dance with generally accepted government auditing standards.
    Appendix III presents information on our scope and methodology.

    As agreed with your offices, unless you publicly announce its contents
    earlier, we plan no further distribution of this report until 30 days from
    the date of this letter. At that time we will send copies of this report to
    the Secretary of Commerce, the Administrator of the National Marine
    Fisheries Service, the Director of the Office of Management and Budget,
    and other interested parties. We will make copies available to others
    upon request.

    This report was prepared under the direction of John M. Ols, Jr.,
    Director, Housing and Community Development Issues, who can be
    reached at (202) 275-5525. Other major contributors are listed in
    appendix VII.




Y   J. Dexter Peach
    Assistant Comptroller General




    Page 11                           GAO/RCED-91-99   Tuna/Porpoim   Observer   Program
                                                                                    ,
Contents



Appendix I
Incidents of
Harassment
Appendix II                                                                             18
Recent Developments
That Could
Significantly Change
the Observers’ Role
Appendix III                                                                            19
Objectives, Scope,and objectives                                                        19
                      Scope                                                             19
Methodology           Methodology                                                       19

Appendix IV                                                                             22
Comments From the      GAO Comments                                                     26
Department of
Commerce
Appendix V                                                                              26
Comments From the      GAO Comments                                                     30
Inter-American
Tropical Tuna
Association
Appendix VI                                                                             31
Comments From the      GAO Comments                                                     36
American Tunaboat
Association

                             \

                       Page 12        GAO/RCEDBl-38   Tuna/Porpoise   Observer   Program
                        Contents




Appendix VII                                                                                              38
Major Contributors to
This Report
Tables                  Table 1: Estimated Number (Percent) of Cruises for                                     4
                            Which Observers Reported Harassment of Various
                            Types
                        Table 2: Observer Responses Concerning Training                                        8
                            Adequacy




          Y
                        Abbreviations

                        GAO        General Accounting Office
                        NOAA       National Oceanic and Atmospheric Administration


                        Page 13                          GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
Appendix I

hcidents of Harassment


               Incidents of harassment we reviewed ranged from the vessel captains
               and/or crew acting in ways intended to interfere with the observers’
               work to attempting to influence the observers by intimidating them. The
               actions to interfere with the observers included limiting or denying
               access to the two-way radio, not providing the observers with necessary
               vessel position information, and denying the observers access to por-
               poise carcasses to perform scientific research. The captains’ attempts to
               intimidate the observers typically consisted of verbal abuse. Many of
               these incidents constitute violations of Fisheries Service regulations,
               which state that “It is unlawful for any person to assault, impede, intim-
               idate, interfere with, influence or attempt to influence an observer
               placed aboard a vessel.”

               On the basis of our review of the logbooks, we estimated that radio
               access problems occurred on eight cruises (see table 1). A federal regula-
               tion (60 C.F.R. 216.24(d)(Z)(iii)(B)) states that observers must be
               allowed to report data to the Fisheries Service while at sea via the ship’s
               radio at such times as specified by the Fisheries Service. The Fisheries
               Service’s tuna/porpoise observer manual formerly stated that the
               observer was to report every Monday and Thursday, but the manual
               was later changed to require reporting once a week. If communications
               prove impossible on reporting days, the manual requires the observer to
               call every day until contact is made. Observers’ logbooks noted various
               ways in which the captain interfered with their radio communications:

             . An observer recorded that the captain would allow him to use the radio
               only on Mondays and Thursdays even if he was unable to contact the
               Fisheries Service on those days. The captain was assessed a civil penalty
               of $7,500 for denying the observer access to the ship’s radio and other
               offenses. The case was settled in December 1989 by payment of a $4,600
               penalty I
             . Another observer documented that the captain would allow him to use
               the radio only once each week during the period the regulations required
               two calls a week. The captain was not assessed a penalty for a radio
               access violation but was assessed a $500 civil penalty for specimen
               denial, The case was settled for $375.
             . An observer recorded that the captain refused to let him use the radio
               early in the day because the captain knew that he had recorded a high
               kill total for the reporting period. The observer wrote that, although the
               captain allowed him to use the radio later in the day, he was unable to
               contact the Fisheries Service station in San Diego to report his porpoise
               kill numbers until 10 days later. The observer did not identify the radio



               Page 14                           GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
    Appendix    I
    Incidenta   of Harassment




    denial to the Enforcement Branch during the debriefing process. No
    action was taken against the captain.
l   An observer recorded that he was not allowed to use the radio unless
    both the captain and the navigator were on the bridge. The observer
    recorded in his logbook that it was difficult to find a time when all three
    were actually present on the bridge. The observer did not identify this
    situation to the Enforcement Branch during debriefing. No action was
    taken against the captain.

    On the basis of our review of the logbooks, we estimated that observers
    were denied ship positions on six cruises (see table 1). A federal regula-
    tion (60 C.F.R. 216.24(f)(2)) states that, upon request by the observer,
    the navigator shall provide the vessel’s position by latitude and longi-
    tude. Positions are important because the location, in addition to scien-
    tific data collected by the observer, allows the Fisheries Service to keep
    track of porpoise stocks by distribution and size of herd. In one case, an
    observer recorded that the captain said the observer made him nervous
    by coming into the pilot house to read the position instruments. As a
    result, the observer recorded that the captain forced him to remain
    outside the ship’s pilot house and use binoculars to read the ship’s
    instruments. Again, the observer did not point out this situation to the
    Enforcement Branch, and no action was taken against the captain. The
    observer told a staff attorney in the Southwest Regional Counsel’s office
    that he had problems on the cruise but decided not to tell anyone about
    them.

    On the basis of our review of the logbooks, we estimated that, on 20
    cruises (see table I), vessel operators interfered with the observers’
    work by discarding dead porpoise before the observers had an opportu-
    nity to obtain scientific samples. A federal regulation (50 C.F.R.
    216.24(f)(3)) specifies that

    Marine mammals [porpoise] killed during fishing operations which are
    accessible to crewmen and requested from the certificate holder or
    master by the observer shall be brought aboard the vessel and retained
    for biological processing, until released by the observer for return to the
    ocean.

    Observer logbooks noted various ways in which the captain and/or crew
    interfered with the observers’ need to obtain specimens:

l   An observer recorded that he “asked deckboss to put porpoise aside so I
    could process but crewman threw them over before I could get to them.”


    Page 16                           GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
    Appendix    I
    Incidents   of Harassment




  During another set when a total of 92 porpoise were killed,’ the observer
  recorded in the Marine Mammal Set Log that “33 spotters [type of por-
  poise] were thrown off work deck by crew as they came up during
  brailing.“z We found no record that this observer was debriefed by the
  Enforcement Branch. According to a Branch official, this cruise
  occurred before the Branch established a debriefing file. No action was
  taken against the captain.
. An observer recorded that he “was not able to process any specimens as
  they were dumped from sack, and immediately thrown overboard when
  brailed. Skipper wouldn’t allow any to remain on deck.” This situation
  occurred during a set when a total of 446 porpoise were killed. The
  observer did not identify any problems with specimens during the
  debriefing session. No action was taken against the captain.
. On two cruises the deckboss required the observers to process specimens
  during brailing. Both observers stated that processing specimens at that
  time could adversely affect an accurate mortality count. Neither
  observer reported any problems during the debriefing session; one
  observer acknowledged later that he had problems on the cruise but
  decided not to tell anyone about them.
l One captain told an observer to wear a hard hat, get under the net, and
  retrieve the porpoise himself. The observer concluded that such an
  action was a safety hazard and would not do so. Although the captain
  was not assessed a civil penalty for this specific instance, he was
  assessed $7,000 in civil penalties for observer interference and intimida-
  tion on this cruise. Final settlement with the captain was for $5,200.

    On the basis of our review of the logbooks, we estimated that, on 20
    cruises (see table l), the vessel captains attempted to intimidate the
    observers, which under Fisheries Service regulations is unlawful.
    Observers’ logbooks indicated various ways in which the captain ver-
    bally abused them:

. An observer recorded that the “Skipper claims I am not cooperating
  with him . . .” and that “I was tired of the confrontations that occurred
  nightly between the captain and myself whenever there was a kill.” He
  later reported to enforcement agents that the captain became hostile and
  verbally abusive toward him as the number of porpoise killed increased
  during the trip. The observer counted a total of 173 porpoise killed


    ‘Each time the purse seine is deployed is considered a net set. When the net is deployed around a
    school of porpoise in order to catch the accompanying tuna, it is called a porpoise set.
    2The process of moving the catch from the net to the work deck of a tuna boat.



    Page 16                                       GAO/RCED-91-38     Tuna/Porpoise    Observer   Program
    Appendix    I
    Incidenta   of Harassment




  during the 27 sets involving porpoise. Enforcement agents had investi-
  gated this case and referred it to Regional Counsel in October 1989 for
  prosecution. As of April 1990 the case was still pending.
l An observer recorded that “He [the captain] wanted to know how I got 2
  kills in set #l 1 when only one [porpoise] came on deck.” Then later,
  “The captain said if the ‘anti’(?) kept going up and I couldn’t count right
  that I wouldn’t be able to go up in the half mast during chase/set any-
  more.” The observer recorded that later the pilot told the observer that
  “most observers knocked a few porpoise off the total because the cap-
  tain and the crew tried hard to release the porpoise.” The logbook con-
  tained two “Set Summary” forms. A handwritten note on the top of one
  of the forms indicated that the numbers marked with an asterisk were
  “Numbers told to captain, but not actual #‘s killed.” Another note in the
  margin said that “It seems like another set or 2 I told him lesser #‘s also,
  but didn’t note it in greenbook - check sets 12 - 21.” The observer
  recorded 444 total kills on one form and 429 on the other. The observer
  told the enforcement agent during debriefing that he had a “smooth
  trip.” We were unable to contact the observer to determine why he did
  not alert the enforcement agent during debriefing about what happened
  during the trip.
. An observer recorded that the captain told him to overlook some por-
  poise mortality and said that “you help me and I’ll help you.” He added
  that if the observer did not start overlooking some mortality he would
  make life difficult for him. The captain was assessed a civil penalty of
  $7,500 for trying to get the observer to overlook some porpoise mortali-
  ties and other offenses. The case was settled in December 1989 by pay-
  ment of a $4,000 penalty. Another observer documented in the logbook
  that the captain told him to cooperate or “he could make my life diffi-
  cult, deny access to the pilot house, tell crew not to talk to me, and make
  my life hell.” The captain was assessed a civil penalty of $12,000 for 16
  violations dealing with denial of radio and specimen access. The case
  was settled for $2,500 because the Southwest Regional Counsel received
  excellent cooperation from the boat’s managing owner.




    Page 17                          GAO/lUXD-91-38   Tuna/Porpoise   Observer   Program




                                ,’
Appendix II

Fkcent Developments That Could Significantly *
Changethe Observers’ Role

.~-----
               In April 1990 three large tuna processing companies announced that
               they will no longer buy tuna caught with methods that harm porpoise.
               The Fisheries Service pointed out that the observers will be the primary
               source for verifying that tuna caught have not involved porpoise.
               Observers are present on all U.S. tuna boat cruises in the eastern trop-
               ical Pacific. On the other hand, foreign observers are present only on
               between 33 and 60 percent of cruises from other nations that are mem-
               bers of the Commission. The Fisheries Service is currently working out
               the details of how porpoise kill information will be provided to the
               various companies’ representatives.

               On the other hand, the tuna fishing industry stated that the new policy
               will force many fishermen out of business. They believe that there is no
               absolute guarantee that some porpoise will not become ensnared in the
               nets. Thus, they said it is unlikely that they can profitably fish in the
               eastern tropical Pacific given the new porpoise-safe standard.




               Page 18                          GAO/RCED91-38   Tuna/Porpoise   Observer   Program
 ppendix III

?!Ibjectives,Scope,and Methodology


                          The objectives of this review were to determine the (1) extent to which
Objectives                shipboard harassment is occurring and whether it adversely influences
                          the observers’ reporting of porpoise kills, (2) adequacy of the proce-
                          dures and training to help identify harassment, and (3) adequacy of
                          internal controls for ensuring accurate reporting of porpoise kills and
                          violations of the Marine Mammal Protection Act of 1972.


scope                     We visited the Fisheries Service Northwest Regional Office at Seattle,
                          Washington; its Southwest Regional Office, Terminal Island, California;
                          and the Tuna/Porpoise Management Branch in San Diego. We reviewed
                          the procedures for minimizing observer harassment and the procedures
                          for assuring accurate reporting of violations of law. We also visited the
                          offices of the Inter-American Tropical Tuna Commission in La Jolla, Cal-
                          ifornia, as well as the U.S. Tuna Foundation in San Diego, California,
                          and discussed with representatives of those organizations their roles in
                          managing porpoise kills.



Methodology

Observer Harassment and   To estimate the extent to which observers reported harassment on the
Training                  cruises, we took two separate samples from the Fisheries Service’s 1985
                          through June 1989 cruise data base of observer departures and arrivals.
                          The data base indicated that 19 1 cruises with observers were non-corn-
                          mission cruises. Initially, we reviewed a judgmental sample of 30 such
                          cruises, We later reviewed a simple random sample of 41 of the
                          remaining 161 cruises. For each cruise in the sample, we examined the
                          observer-prepared logbook to determine if the observer had documented
                          any instances of interference with duties or intimidation.

                          We combined the results of these two samples to make estimates related
                          to the 191 cruises.l Because we reviewed a probability sample of cruises,
                          each estimate developed from the samples has a measurable precision.
                          The precision of our statistical estimates is developed at the 95-percent
                          confidence level and is shown as the lower and upper bounds of the 95-
                          percent confidence interval. This confidence level means that if we
                          reviewed all of the 191 cruises, the results of such a review would lie

                          ‘In combining the results, we treated the judgmental sample as a separate stratum from which we
                          selected ail 30 cruises for review.



                          Page 19                                     GAO/RCJ3D9l-39     Tuna/Porpoise   Observer   Program
                                  Apperullx In
                                  Objectivea, Scope, and Methodology




                                  between the lower and upper bounds of the confidence interval about 19
                                  times out of 20.

                                  For each estimate based on the sample, the associated lower and upper
                                  bounds are given in table 1.

                                   In addition, we obtained a list of former and current tuna/porpoise
                                   observers from the Fisheries Service. The Fisheries Service does not
                                   maintain an up-to-date list of addresses and telephone numbers for the
                                   about 400 observers that have been involved in the program since its
                                   inception, but agency personnel provided us a list of 85 current and past
                                  observers’ names, addresses, and telephone numbers. After allowing for
                                  those who no longer could be reached at the number given or were out to
                                  sea, we ended up interviewing 32 of the 85. Because of the difficulty in
                                   locating the observers, we were unable to select a sample that would be
                                   representative of the universe of 400 observers. Consequently, the
                                   results of the interviews with the 32 observers contacted cannot be pro-
                                  jected to the universe. During the structured interview, we asked them
                                  various questions, including identification of harassment, if any, on
                                  their latest cruise, documentation of harassment, and the effectiveness
                                  of the training received.

                                  We discussed observer-identified violations during the debriefing pro-
                                  cess with enforcement agents at the Southwest Regional Office, and
                                  with the Southwest Regional Counsel, to determine how incidents had
                                  been resolved. The enforcement agents are responsible for interviewing
                                  returning observers to identify possible violations of the Marine
                                  Mammal Act and reporting violations to the Southwest Regional
                                  Counsel. The Regional Counsel determines which cases will be
                                  prosecuted.

  ..“._... _.“_..   -_____.I
                          ..---
Controls Over Porpoise            We discussed data validation procedures used at the Tuna/Porpoise
Kill Data                         Management Branch and at the Southwest Fisheries Center in La Jolla,
                                  California. We discussed the procedures with officials of those offices,
                                  including the Branch Chief and data editors. In our structured interview
                                  of 32 current or past tuna/porpoise observers, we asked whether har-
                                  assment, if present, affected the observers’ weekly reporting of kills
                                  over the radio or the observers’ reporting of kills in the logbooks. Fur-
                                  thermore, we asked observers if a difference in the number of kills
                                  reported and the actual number of kills was brought up and discussed
                                  during the debriefing process.



                                  Page 20                              GAO/RCED-91-39   Tuna/Porpoise   Observer   Program
                         Appendix III
                         ObJectives, Scope,   and Methodology




Comparing the Foreign    We compared how the foreign fisheries program and the tuna/porpoise
Fisheries Program With   program deal with harassment of observers and whether they provide
                         effective training. We interviewed managers from the two programs and
the
-- Tuna/Porpoise         reviewed program documents to determine efforts to minimize observer
Program                  harassment, including the type of debriefing procedures used and the
                         involvement of enforcement agents in investigating alleged violations. In
                         addition, we reviewed available documentation describing the observers’
                         duties and identifying the observers as either Fisheries Service
                         employees or hired under contract, and interviewed the program man-
                         agers to determine how they assured themselves that the data reported
                         by the observers were reliable.




                         Page 2 1                               GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
Appendix IV

Comments From the Department of Commerce’


~    .._.--.~_-_
Note GAO comments
supplemenllng lhose In the
report lcxl appear al the
end of this appendix

                                                             UNITeD   StATeC   DEPARTMBNT             OF COMMeRCE
                                                             Thm Ammimtmnt   Cmcrotrry for      Adminlmtrmtlon
                                                             Washington.     O.C.   20230




                             Mr.  John M. 016, Jr.
                             Director,  Housing and Community
                                Development Issues
                             U.S. General Accounting Office
                             Washington, D.C. 20548
                             Dear Mr. 01s:
                             Thank you for your letter     requesting comments on the draft report
                             entitled    Vuna/Porpoise  Observer Program: More Needs to be Done
                             to Identify    and Report Harrassment of Observers.81
                             We have reviewed the enclosed comments of the Under Secretary                  for
                             Oceans and Atmosphere and believe they are responsive to the
                             matters discussed in the report.
                                                             Sincerely,




                                                             Assist&t          Secretary
                                                                 for Administration

                             Enclosure




                                   Page 22                                 GAO/RCED81-38    Tuna/Porpoise   Observer   Program
                             AppendixN
                             CommentsFromtbeDepartment
                             of Commerce




                 Mr. John M. 018, Jr.
                 Director,      Housing and
                    Community Development              Issues
                 U.S.   General    Accounting          Office
                 Washington, D.C. 20548
                 Dear      Mr.    01s:
                 Thank you for your letter requesting   the Department's
                 comments on the draft General Accounting Office report entitled
                 "TUNA/PORPOISE OBSERVERPROGRAM:More Needs to be Done to
                 Identify and Report Harassment of Obeervers1g  (GAO/RCED-90-159).
                 I understand the investigation  of harassment of observers
                 assigned to our tuna/porpoise  observer program was complex.
                 We wish to acknowledge the courtesy and special   efforts  made
                 by Mr. Lew Adams and Mr. Charles Sylvis   of your staff to keep
                 the National Marine Fisheries  Senrice advised throughout   the
                 investigation.
                 We concur with the first   recommendation of the draft report
                 which involves  improvements in the management of the tuna/
                 porpoise program to address harassment of observers.     Major
                 modifications  have been made in the observer   training program
                 since January 1990. The observer training     curriculum has been
                 revised         to   define   what   actions      constitute         harassment     and
                 enforcement officers    lecture trainees      on the facts necessary to
                 document instances of harassment so that effective          prosecutions
See comment 1,   can be made. The "greenbook" has been revised to prompt
                 observer8 to record instance8 of harassment, and harassment has
                 been added to the post-cruise       interview   checklist  as a specific
                 item for review.     Observers are reminded that they are required
                 to report immediately     any instances of harassment to the licensed
                 master of the vessel who has the sole responsibility           for the
See comment 2.   health and welfare of all persons on the vessel.           We also are
                 reviewing  the requirements     and need for implementing      observer
                 radio codes for reporting      harassment.




                             Page23                                              GAO/RCED-91-38Tuna/PorpoiseObserverProgram




                                                            ,,‘,           ..:
                     Appendix    Iv
                     CommentsFrom the Department
                     of Canmeree




                                                             2

                 We believe that the existing      protocol   requiring  direct radio
                 reporting    of porpoise kill   data by Inter-American     Tropical  Tuna
                 Commiesion observers provides the necessary data and information
                 to meet our program commitments.        Direct control    over all aspects
                 of observer reporting     might be desirable     from a technical   data
                 collection     viewpoint.  However, as a participant      in the
See comment 3.   Commission's international      observer program, the United States
                 and other cooperating     nations have designated observers who
                 report to the Commission, not to the U.S. Government, while
                 aboard their assigned vessels.        We will continue to monitor this
                 protocol    along with the Commission to ensure that effective
                 control    over porpoise kill   data is maintained.
                 We appreciate        the opportunity    to comment on the draft       report.
                                                             incerely,


                                                                           4.44
                                                             ray         tle
                                                        f+




                     Page 24                                       GAO/RCED-9l-38Tuna/PorpoiseObserverProgram
               Appendix Iv
               Cwtunan~ From the Department
               of Cammerce




               The following are GAO’S comments on the Department of Commerce’s
               letter dated June 29, 1990.


               1. The Department’s concurrence with our recommendation and the
GAO Comments   actions it has taken as a result are summarized in the agency comment
               section and at appropriate places in the report.

               2. We revised the report where appropriate to reflect these comments.

               3. We have not revised the report to reflect these comments. We believe
               that U.S. observers on Commission cruises should report directly to the
               Fisheries Service so that it can (1) determine if observers are correctly
               counting kills and (2) correct observers’ erroneous counting procedures
               on a timely basis.




               Page 26                          GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
                                                                                                                                                                l




Appendix V

Comments From the InterAmerican Tropical *
Tuna Association


                     -coubmm-WY                                INTER-AMERICAN TROPICAL TUNA COMMISSION                                                 LI”*,
                     MASUA                                     COMISION INTERAMERICANA DEL ATUN TROPICAL                                             -
                     -                                               lMhlbbsdlml9Mb/tm             bawmnUuUmiudS4aUdAmrka
                                                                                                                                                J*L*Cy&-&wvk
                                                                     l odlluRa     bIkolCc*U        hrlbmbvdplla~~mnmmum                              U.SAIII
                     WY                                                        s tb8t”Mna.~Oftb8-hdhODur
                                                                                               lL
                     -                                                                                                                            Tmb#kmn~“8 m-ml
                                                                     m&bd&*n1mpadbJ&u~mUda.atnlQ                YkudaUnbkx                        abbuLrrlusAcoml
                     cuuu                                                                                                                              mmb w11*
                                                                     C AmWay       kR.pOblh&bURh           n kIm.tIpdhY
                     wno”*nao?-                                      maw-~Iamnads,               .mm.m., AL qoPu-IIkoorknuL                          ,I*“~uulm




                                                                                                                            June 22, 1990
                                                                                                                            Ref: 0428-100-800



                                  Mr. Frank V. Subalusky,      Assistant Director
                                  Housfng and Community Development Issuss
                                  Cenernl Accounting    Office
                                  Room 1992, Jackson Federal Building
                                  915 Second Avenue
                                  Seattle,  Washington,    98174

                                  Dear Mr.Subolusky:

                                            Thank you for providing     me with the opportunity   to comment on the draft
                                  report,      TunA/Porpoiae Observer Program: More Needs to Be Done to Identify       and
                                  Report      Harrassment of Observers.      Key members of my staff   and I have read the
                                  report,      and our comments follow.

                                  Specific      Commants:

                                  Page 2, last         par.:

                                         The IATTC staff  has its own procedures       to verify      the quality   of the data,
                                  the performance    of the observer,     and his/her    interactions      with the crew.      The
                                  data collected   on IATTC U.S. trips      were confidential       with regard to violations
                                  only ; they were available       to NMFS scientists     for research      purposes even on a
                                  single-vessel   basis,   replacing   the name of the boat with a numeric code.                 We
                                  have had for years an exchange of information               with the Southwest       Fisheries
                                  Center.

                                          The fact that we had confidentiality         constraints     in the past did not mean
See comment 1,                    that our data could not be audited           or verified.        In fact,    we have repeatedly
                                  offered      the opportunity  to do so to qualified         people,    e.g. your employee Mr.
                                  Sylvis.         All that is needed is to replace          the names and flags          by numeric
                                  codes, and the whole data base could be made available                   without  violating    our
                                  confidentiality.

                                         Currently,      the logbooks            collected     by our observers        are examined by the
                                  NMFS enforcement          staff.        The radio reports            from our observers     are passed to
                                  the NMFS after        decoding in an aggregate                 form.      This is still  being done that
                                  way because no one has requested                     that it be done differently.          Given that the
                                  entire   observer       log is examined by the NMFS, it makes no sense to keep the
See comment 2                     weekly radio reports             confidential.           We will   have no problem in switching       from
                                  the current       system to some other if that is more convenient.                         From the point
                                  of view of mortality             estimation,        the current      system does not affect     in any way
                 Y




                                       Page 26                                                       GAO/RCEDSl-38              Tuna/Porpoise     Observer      Program
                               Cammenta From the Inter-herican                Tropical
                               Tuna AaaochtIon




                     tha promptness      or quality      of the estimates.     The data are used to compute
                     kill-porday     ratios,    and they have to be aggregated       for that purpose,   so the
                     way thay are obtainad       is irrelevant.     The data are also transferred   weekly,   so
                     the matter   of timeliness     does not appear to be a problem.

Now on p, 3.         Page 5, par.        1: before   “In    1979...”

                             Since 1979, the IATTC staff        has had responsibility                 for the estimation         of
See comment 3        incidental      mortality     of dolphins,     relative     abundance               of the stocks,          and
                     idancification,        development,   and testing       and promotion               of technologies         and
                     information     to reduce dolphin mortality.

Now on p, 3          Page 5, par.        2: “To encourage...”

                            It is my recollection          that  the U.S. decided       to participate          in the
                     internatfonal       obsorvor    program    because   it shared     the objectives         of the
                     program, not bacauso        it wanted to encourage the other nations          to participate.
See comment 3        Also,     in order to improve the accuracy        of the estimates     of dolphin      mortality
                     and abundance,      the data had to be standardized       by placing      observers     from the
                     international     program on vessels of all national       fleets,    including     that of the
                     U.S.

                     Paga 14, par.        3: “.. .aummarizing          and editing...”

                            Radio roports    are added up for all vessels      reporting     in that week and
See comment 3.       provided    as a single   figure.  With the data for total    mortality    and the number
                     of days at sea added to the NMFS figures,        a single   ratio    is computed.   There
                     is no oditing    of any kind here.

                               With other     data,  the IATTC staff                has a series   of editing        procedures,
                     similar       to those   of the NMFS, to control               the quality  of the data.

Now on p. 9.         Paga 15, par.      3: “The            chief       said    ..      reliability     of    data   gathered       on
                     Commission cruises, n

                            The radio reports      sent to us are nearly            identical     to those sent to the
See comment 4        NIFS.     They are decoded          In a similar         way and examined         for problems  by
                     porsonnsl   with the same experience             or more experience      than those reviewing  the
                     NMFS data.        Tbo statement,      II. . . they need to receive         data on the number of
                     porpoise   killed    each week by individual           vessels    to know that the observer      is
                     properly   counting     the kills,”       doesn't    make sense to me; only the debriefing
                     procodura   can help in answering           that question.

                     Coneral      Commants:




                 Y




                               Page 27                                                GAO/RCED-91-38        Tuna/Porpoise      Observer   Program
                                                                                                                                    .


                       Appendix V
                       Comment8 Prom the IntiwAmerlcan              Tropical
                       Tuna Aesociation




                      We fully      agree with yOUK conclusion      that     there      is            a need         to define
See comment 5   harassment      clearly   and to communicate     that      definition                  to all          parties.
                Concerning    these, we wish to make the following       classification:

                I)    Interference    with    duties:

                Passive:
                      a) lack of cooperation  (denial to access of position                       data,    failure       to
                         provide space to process specimens,   etc.).

                Active:
                          a) providing misleading   data.
                          b) pranks OK other interactions           with   the observer       on duty

                II)    Harassment:
                        a) Threats or intimidation     in an attempt to produce underreporting.
                        b) Offers of bribes of any kind to produce underreporting.
                        c) Denial of the use of the radio for the weekly reports.
                        d) Hiding OK destroying    observer  equipment or forms.

                          This
                             classification     is not complete,     but it distinguishes     clearly    what is
                a major   problem from the “petty       revenges”     such as forcing     an observer    to read
                the positions        with binoculars!      If an observer       doesn’t   have positions,      OK
                cannot process specimens, he/she         could still     perform the main duties.

                          The officers       and crew of the vessels            should be fully        aware of whatever
                definitions         are established,         because the same action            could be considered           a
                prank by one person and an assault                   by another.       An example that comes to mind
                is the common prank of one crewmember                         throwing     a seal bomb near another
                unsuspecting         crewmember.       Even if the intention           is not hostile,        the safety    of
                the observer           requires    that that action           should be unacceptable,             even as a
                prank, when directed            at an observer.            It is going to be difficult             to draw a
                clear       line   separating      behaviors,         because    the normal       interactions        between
                fishermen        sometimes include        actions       that appear to be very aggressive               to an
                outsider.         With the high proportion            of beginners      in the program, they are more
                likely       to be the target      of the crews and officers.              I am sure you are aware of
                recent incidents           aboard navy and coast guard vessels               involving      “heavy hazing”
                of recruits,         and how violent       and dangerous some of those incidents                 may be; yet
                they are performed within             tightly-structured          groups and considered          part of the
                “initiation        process.”

                       In the case of IATTC observers,      these problems are handled through          the
                vessel managers, which has proven to be quick and efficient.             During training
                we emphasize to the observers      that they, especially      the beginners,   are going
                to experience   at least some form of interference,      but if they are prepared         to
                handle such incidents    they will   remain minor inconveniences.       One of the areas
                accentuated   is the idea that the observer     should project    the image of a person




                      Page 28                                                  GAO/RCED-91-38      Tuna/Porpoise         Observer       Program
                         Comments Prom the InUr4merican               Tropical
                         Tuna A.ssociation




                    doing his/her       job in the best possible              way, standing      solidly       by his/her      own
                    observations,         listening          to everyone,        but staying       firm      on his/her        own
                    aasessmenta.         Some observers           have said in the past (affidavits                in a court
                    case) that they changed their                 numbers to improve their          environment,       but kept
                    records    of the right          figures     for the debriefing       process.        Our staff      informs
                    IATTC observers        that such an attitude            is wrong; it creates          more problems        for
                    other observers        who are trying           to do their     jobs properly.          If the observers
                    stand’by      their   observations         they will,     after    some time, be accepted           as what
                    they are and their         difficulties,         in almost all cases, will          disappear.

                            Regarding         your    specific    request      for    soma comments on the idea of
Now on p. 4.        observers       verifying       non-dolphin    fishing    as presented        in page 16, we believe
                    that such an approach is the most reliable                    one to follow.        Some have suggested
                    that observers          would not be needed and that any loads of fish with individual
See comment 3       fish greater         than 30 pounds would be considered               as being taken in association
                    with dolphins.           We do not believe       that this would be appropriate,             as some fish
                    over 30 pounds are caught in schools not associated                         with dolphins.        We agree
                    with your contention              that this verification          procedure      may increase     observer
                    harassment        because       of the financial        impact.        If observers       are used for
                    verification,          extra care will      be required        to ensure that their        data continue
                    to be accurate.               It may be necessary         to introduce         some rather     innovative
                    techniques,       such as the use aboard the vessel of soma sort of automatic                         video
                    recorder      that sweeps the net when a set is being made. This could be used to
                    evaluate      observer      reports.

                          I hope these       comments are useful         to you.

                                                                                                 Sincerely,



                                                                                           f#F James Joseph
                                                                                               Director




                Y




                        Page 29                                                  GAO/RCED-91-38       Tuna/Porpoise      Observer    Program
                                                                                                            .


                Appendixv
                Communta      From the Inter-Amerkan   Tropkal
                Tuna   Associntlon




                The following are GAO'Scomments on the Inter-American Tropical Tuna
                Association letter dated June 22, 1990.


                 1. No revision was made in the report to reflect this comment. Much of
GAO Comments    the information presented here is already discussed in the report, specif-
                ically the (1) confidentiality of the data on a cruise by cruise basis, (2)
                reporting of the data on Commission cruises to the Fisheries Service
                only in aggregate form, and (3) recent changes that now allow the Fish-
                eries Service to examine the observers’ logbooks from Commission
                cruises. It should be made clear that the Fisheries Service, by law, is
                responsible for collecting data on porpoise killed in U.S. tuna boat opera-
                tions, regardless of whether the cruise is designated as a Commission or
                Fisheries Service cruise.

                2. We recognized the willingness of the Commission to switch the cur-
                rent system of reporting if requested. We believe that reporting directly
                to the Fisheries Service will be beneficial because the Fisheries Service
                is responsible for collecting porpoise kill data on all US. tuna boat
                cruises, including those designated as Commission cruises.

                3. We revised the report where appropriate to reflect these comments.

                4. Report was revised to more clearly state that the Fisheries Service
                needs the data reported to it directly to determine if the observers are
                correctly counting kills and correcting observers’ erroneous counting
                procedures in a timely manner.

                5. The Commission’s agreement with our conclusion and recognition of
                its attempt to define harassment is summarized in the agency comment
                section of this report. We would not argue against a definition of harass-
                ment that clearly distinguishes major problems from “petty revenges.”
                As the Commission pointed out, the officers and crew should be made
                fully aware of the definition established.




               Page 30                                           GAO/RCEDSl-38   Tuna/Porpoise   Observer       Program
              .

Appendix          VI

Ckbments From the American
Tunaboat Association



                                                      Membership     comprised    ~xcIu~~Y~I~ of American     Tunaboat   CWners
                                                       One Tuna Lane, San Diego, CA 92101.5896U.S.A.
                       Association       Telephone (619)233.6405 Telex 984603 (AM TUNA SDG) Fax                             (619) 233-7913
                                                                          July       3,    1990


                             Mr. Frank V. Subalusky
                             Assistant  Director,  Housing and
                                  Community Development Issues
                             U.S. General Accounting Offices
                             Room 1992, Jackson Federal Bld.
                             915 Second Avenue
                             Seattle,  WA 98174
                             RE:        Draft  Report entitled “Tuna/Porpoise Observer
                                        Program: More Needs to be Done to Identify
                                        and Report Harassment of Observers” (GAO/RCED-90-159)
                             Dear    Mr. Subalusky:
                                        Thank you for         the opportunity                  to review             the above
                             Draft    Report.
                                        We are pleased             to note the following                       results        of such
                             Draft    Report:
                                        (1)   That the observere were not influenced                                        to under
                                              report the number of porpoise killed.
                                        (2)   Except for training    covering harassment, “the
                                              most frequent observer response for almost all
                                              other categories    of training was very
                                              effective.”
                             Comments:
                                        1. We dispute the conclusion          that “data collection
                             and reporting     are still     not adequate enough to assure
                             accurate kill     counts and timely enough to enable it (NMFS)
                             to take    quick corrective      action”.    The quota directly
                             impacts the fleet.         With closure,    our fleet is prohibited
                             from further      fishing    on tuna/porpoise      schools.  Therefore,
See comment       1.         we also monitor very closely           the weekly reporting    of
                             mortality.      We are convinced that there exists very
                             satisfactory     mortality     counta on a timely basis.       The
                             statement    of the Draft Report on page 3 that the NMFS does
See comment       2.         not receive kill       data on a timely basis is just not true.
                             There is no need to require the IATTC to report directly                to
                             the NMFS by radio.         The present mode of reporting       does not
                             cause, and has not caused any difficulty.              Such
                             recommendation merely increases costly and unnecessary




                           Page 31                                               GAO/RCED-91.38             Tuna/Porpoise         Observer   Program
                      Appendix VI
                      Comments From the American
                      Tunaboat Association




                     bureaucratic    activity   on the false       premise   that   timely
                     reporting    is not occurring.
See comment 3.                   2. Regarding the problem of "harassment" and its
                     definition.     We note that sometimes observer trainees have
                     pre-conceived    ideas about tuna fishermen and about the
                     tuna/porpoise    problem.   The Draft Report is silent  about this
                     aspect and the fact that a significant      number of observer
                     have been discharged for cause.       What constitutes
See comment 4.       "harassment" can be a very subjective      conclusion.  In what
                     ways are the fishermen protected from an observer that
                     decides to make it tough on the fishermen?
                                3. This is to object about the listing    of certain
                     incidents    used to describe alleged violations  over (1) radio
                     reporting1    (2) positions,  and (3) access to porpoise
                     speciments.     Only one side of the story is reported.
See comment 5.                  The Marine Mammal Protection    Act clearly    states that
                     activities    of the observers "shall be carried out in such
                     manner as to minimize interference      with fishing     operations".
                     This statement is repeated in the existing        regulations.
                                  a.   Radio Reporting        Incidents
                                 Essential     to fishing   operations    is the exchange of
                     fishing     information      between fishermen.      This is done
                     exclusively        by radio.    Therefore,    the timely use of the radio
                     by the Fish Captain or his designee is important.                If by
See comment 6.       negligent       use radio communication is cut off, then the
                     fishing     trip's    success is placed in doubt.        There are many
                     other reasons why the Captain must have absolute control over
                     radio communication.           The regulations    allow the Regional
                     Director      to set forth the times when the observer can use the
See comment 7        radio.      The observer placement meeting provides the
                     opportunity        for the Captain and the observer to understand
                     the rules.
                                  b.   Position    Location     Incidents
                                The Draft Report makes reference to incidents           where
                     it is alleged that the observer was not provided positions                by
                     the Navigator.        We know of no instance when the position         of a
                     fishing    set was denied to an observer.         The incidents
                     reported concern positions         of marine mammal sightings      as
See comment 6        distinguished      from sets.    This involves    the personal
                     relationship      between the observer and the Navigator.          Since
                     sightings     can occur at any time during the day, the Navigator
                     would be required to provide many positions.              But, the
                     Navigator     has many other duties related to the actual
                     fishing    operation.     Therefore,    a working relationship     should
                     be established       between the Navigator and the observer so as
                     to reduce burdens.        Should difficulties     occur, the observer



                 Y




                     Page 32                                   GAO/RCED-91-38   Tuna/Porpoise   Observer   Program
                 Appendix VI
                 Comments From the American
                 Tunaboat Association




                 can complain directly     to the Captain. Such understandings
                 should be worked out during the observer placement meeting
See comment 7.   where the Captain,    observer, NMFS and Industry
                 representatives    are present.
                               c. Porpoise    Biological      Specimen Incidents
                           The Draft Report refers to the failure     to provide
                 porpoise specimens "which are accessible      to crewmen and
                 requested".    In many of these instances,    we found that the
                 crew would "clean up the deck" and get the net and other gear
See comment 9.   ready for the next fishing     operation.   Meanwhile, the Captain
                 waa busy in the helicopter     or at the Bridge or in the
                 crowsnest.    We found instances    when the observer would take
                 an unusually   long time to get to the specimens.       The Captain
                 would  usually delegate this duty of allowing      porpoise
                 specimens to be retained    by the observer   to the Deck Boss.
See comment 7    Again, this procedure should be developed during the
                 placement meeting.
                            4. Regarding the alleged instances of direct
                 interference     by the Certificate      Holder/Captain,    it is not
                 proper for the Draft Report to refer to a pending case.
                 Based upon my experience of handling many of the cases filed
See comment 10   since 1976, there is always         another side to the story.
                 Observers    are not always innocent       of wrongdoing.     Personality
                 problems do develop at sea as well as on shore, and this fact
                 has caused difficulties       between the parties.        Nevertheless,
                 we believe that when given an opportunity,             such problems can
                 be quickly corrected by the Managing Owner of the vessel.
                          We note with regret that the Draft Report does not
See comment 11   discuss the issue of whether applicants   for observer duties
                 are properly  screened for personal problems that would arise
                 at sea when voyages last from 60 to 100 days.
                            5. On page 1 of the Draft Report, the last sentence
                 refers to the fact that the annual porpoise mortality       by the
                 U.S. Tuna Fleet "averaged about 18,000 for the period 1981
                 through 1988". The Draft Report covers 1989 and part of
                 1990.
See comment 12
                    We believe it more appropriate    for the Draft Report to use
                 a ten (10) year period    1980-1989.    The estimated annual
                 porpoise mortality   for this period averaged about 16,606.       In
                 1989, the total mortality    was 12,643.    As of 24 June 1990,
                 the NMFS estimates total porpoise mortality       for the U.S. Tuna
                 Fleet at 3,901.
                 CONCLUSION:

See comment 13           The word "harassment" is not used in the Marine
                 Mammal Protection  Act or in the NMFS regulations.   Yet,                the
                 Draft report gives the impression to the reader that




                 Page 33                                   GAO/RCED91-38   Tus/Porpoise   Observer   Program
                   Appendix   VI
                   CommentsFrom the American
                   Tunaboat   Association




                  harassment of the observer is the target of the inquiry.        In
                  fact, the target was the claim that observers were being
                  intimidated   to under report porpoise mortality.     We note that
                  the law and the regulations   are more precise in selecting     the
                  potential   wrongdoing by the fishermen.   The regulations   state
                  as follows:
                              "It is unlawful   for any person to forcibly
                              assault,  impede, intimidate,   interfere   with,
                              influence  or attempt to influence     an observer
                              placed aboard a vessel."
                              *No owner, Master, operator,        or crewmember
                              of a certificated       vessel shall impair or in
                              any way interfere       with the research or
                              observations     carried out".
                             The Draft Report does not suggest that a "hostile
                  environment"      could exist aboard vessels that would lead to
See comment 14.   the under-reporting          of porpoise mortality.       The incidents
                  involving     radio reporting,       position   locations   and access to
                  porpoise     specimens all relate to the performance of fishing
                  operations      conflicting     with the duties of the observer.        The
                  crew clears the deck of porpoise to get ready for the
                  impending fishing          set before the observer can work the
                  specimens; the Navigator           is using the radio to obtain coded
                  fishing    information       when the observer wants to use the radio:
                  the Navigator is busy when the observer wants the location                of
                  the vessel after he makes a mammal sighting.                Are these
                  situations      where the observer is harassed 50 as to prevent
                  the performance of his duties?              Why the use of the word
                  "harassment" to describe these situations.                It seems that the
See comment 15.   term "harassment" is more identified              with sex cases on shore,
                  and it can be argued that maybe this is the reason the term
                  "harassment" is in vogue. Why the term is used to describe
                  shipboard problems involving            observers is difficult      to
                  understand.
                           We do not believe that rudeness and annoying behavior
See comment 16.   can bs regulated out of existence?    Who can claim a perfect
                  work climate?   How do we determine when good-humored kidding
                  ceases and harassment begins?
                            We note that the Draft Report does not claim that a
See comment 17.   hostile,   persuasive environment of serious harassment was
                  experienced or reported.     Despite this fact, the Draft Report
                  dwells on the subject of "harassment" in its recommendation
                  eection.    In this way, it unfairly   derogates the conclusion,




                   Page84
                   Appendix VI
                   Commenta From the American
                   Tunaboat Association




                  the Draft Report reached, namely that no actions by the
                  owner0, Masters, operators or crewmembers affected the
                  obscrver'e reporting  of porpoise mortality.
                           And, we contend that thie was the reason for the
                  inquiry by the GAO - the claim of observer under-reporting            of
See comment 13.   porpoise mortality   aboard U.S. Tuna Vessels because of
                  illegal  actions by the owner, Captain and crew. Now, the
                  Draft Report directs    the focus on that uncertain world of
                  what constitutes   "harassment".
                           The existing rules are more than adequate to protect
                  the observer from conduct that unreaeonably interferes      with
                  his performance of the job.    Attempting    to describe behavior
See comment 18    aboard tuna vessels as constituting     "harassment" will create
                  more problems than solutions.
                             Thank you for   the opportunity    to review   the Draft
                  Report.
                                                    Regards,
                                                    ~FIATX~N


                                                    President
                  AF/ep




                   Page 36                                GAO/WED-91-38Tuna/Porpoise    Observer   Program
                                                                                           ,


               Appendix VI
               Comments From the American
               Tunaboat Association




               The following are GAO'Scomments on the American Tunaboat Associa-
               tion’s letter dated July 3, 1990.


               1. We revised the report where appropriate to make it clear that the
GAO Comments   Fisheries Service needs data on a cruise-by-cruise basis to ensure that
               the observers are correctly counting the kills and to correct the
               observers’ erroneous procedures in a timely manner. The Fisheries Ser-
               vice has, by law, the responsibility to collect data on porpoise kills from
               all U.S. tuna boat operations and, thus, should have control of all
               reporting procedures.

               2. We do not believe that such reporting increases costly and unneces-
               sary bureaucratic activity. Observers are already directly reporting
               weekly to the Fisheries Service on all non-Commission cruises.

               3. We did not revise the report to reflect this comment. A clear definition
               of harassment will aid both the captain and the observer to identify
               what is harassment. Such a clear definition should negate the adverse
               effect of observers’ “. . . pre-conceived ideas about tuna fishermen.”

               4. We agree with the Association that what constitutes harassment can
               be a very subjective conclusion. A clear definition of harassment would
               significantly decrease the degree of subjectivity in making such
               conclusions.

               5. We did not revise the report to reflect this comment. For each instance
               of harassment included in appendix I, we identified actions taken by the
               Fisheries Service. Before deciding to assess penalties, the Fisheries Ser-
               vice requests and takes into account the captain’s statements on the sit-
               uation For those examples in which penalties were not assessed, we
               identified the reason why.

               6. We did not revise the report to reflect this comment. We agree that
               the observer should not request use of the radio when it is in use by the
               captain, but sufficient time should exist when the observer can make a
               report. We found no documentation in the logbooks we examined that
               the captain’s continual use of the radio was used as a sole reason why
               the observer could not make a weekly report.

               7. We agree with the Association’s idea of discussing these topics in
               detail at the observer placement meeting.



               Page 86                           GAO/RCED-91-38   Tuna/Porp&e   Observer       Program
Appendix   VI
CJanmente From the American
Tunaboat   Aseoclation




8. We did not revise the report to reflect these comments, Federal regu-
lations require the navigator to provide positions to the observer. There
is no documentation in our sample that the positions were denied
because navigators were busy with their other duties.

9. We did not revise the report to reflect this comment. On the basis of
observer comments in the logbooks, the specimens were requested and
accessible to the crewmen, but the specimens were not retained.

10. We did not revise the report to reflect this comment. We do not
believe that because a case is pending it is not proper to use it as an
example, especially when we do not identify the captain, ship, or cruise
number in the report.

11. We did not revise the report to reflect this comment. Such a topic
was not an objective in this assignment.

12. We revised the report where appropriate to reflect these comments.

13. We did not revise the report to reflect this comment. We were
requested to examine both the extent of harassment and whether it
caused observers to underreport porpoise mortalities-e     did not, as
indicated by the Association, report on the extent of harassment only
after we could find no documentation of underreporting.

14. We did not revise the report to reflect this comment. This represents
a summary of the Association’s previous comments that we responded
to in comments 6,8, and 9.

16. We did not revise the report to reflect this comment. Our definition
of the word “harassment” is discussed early in the report,

16. We did not revise the report to reflect this comment, but have
already done so for similar comments, especially comment 4.

17. We did not revise the report to reflect this comment. We believe we
have made it sufficiently clear that we could find no documentation that
observers underreported porpoise kills but that we did find instances of
harassment.

18. The Association’s opinions on our recommendation to clearly define
harassment are included in the agency comment section of the report.



Page 97                           GAO/RCED-91-39   Tuna/Porpoise   Observer   Program
   Ppc

&tGzi Contributors to This Report


                          Frank V. Subalusky, Assistant Director
Resources,
Community, and            Karen E. Bracey, Assistant Director, Design, Methodology, and Tech-
Economic                  nical Assistance
Development Division,     Eugene J. Chuday, Jr., Assignment Manager
Washington, DC.
                          Harold F. Creasy, Staff Evaluator


                          Charles D. Mosher, Regional Manager Representative
Seattle Regional Office
                          Charles A. Sylvis, Evaluator-in-Charge




           Y




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                                                                                                   PA). 130x 6015
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