Balelo v. Baldrige

Nos. 81-5806, -5807 (9th Cir. January 5, 1983)

The court, reversing in part the district court decision, 12 ELR 20040, invalidates Department of Commerce regulations that require tuna fishermen to carry inspectors on their boats as a condition to receiving Marine Mammal Protection Act (MMPA) permits allowing the incidental taking of porpoises. The court holds that the stationing of inspectors on boats constitutes a search, rejecting the Secretary's argument that the plain view doctrine applies since the fishing operations occur in waters open to the public. Without ruling whether the observer program is constitutional, the court rules that such a program of suspect, warrantless searches must have express congressional authorization. Congressional acquiescence is insufficient. Furthermore, the court rules that the program does not fall within the pervasively regulated industry exception to the warrant requirement. The court holds that the inspection program would be invalid even if, as the district court had ordered, the inspectors were limited to collecting scientific data.

The dissent would find that the tuna industry is pervasively regulated. Also, because the Secretary cannot effectively enforce the MMPA without inspections, the dissent would find implicit authorization for the searches in the Act.

Counsel for Appellants
James Lorenz, Ass't U.S. Attorney
940 Front St., San Diego CA 92819
(619) 895-5662

Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7378

Counsel for Appellants-Intervenors
Wayne S. Braveman
Tuttle & Taylor
609 S. Grand Ave., Los Angeles CA 90017
(213) 683-0600

Counsel for Appellees
Raymond F. Zvetina
Haskins, Nugent, Newnham, Kane & Zvetina
Suite 2300, 110 W. C St., San Diego CA 92101
(619) 236-1323

Before ELY, GOODWIN, and WALLACE, Circuit Judges.

[13 ELR 20203]

WALLACE, Circuit Judge:

Balelo and other tuna boat captains (the captains) brought this action seeking a declaration that 50 C.F.R. § 216.24(f), promulgated by the Secretary of Commerce (the Secretary), is invalid because it requires the captains to allow government observers on board their ships to qualify for permits allowing the incidental taking of porpoises during tuna fishing. The captains also seek to enjoin the Secretary's conditioning of permits on acquiescence to the observer program and the use of any observer-gathered data or its fruits in civil, criminal, and administrative proceedings.

The district court held that the regulation is invalid insofar as it permits the use of observers to gather information for purposes other than scientific research and enjoined the Secretary's use of the information in civil and criminal penalty proceedings or as grounds for administrative sanctions. The district court also enjoined the Secretary's conditioning the grant of porpoise-taking permits upon acceptance of on-board observers who might collect information to be used for non-scientific purposes. The Secretary did not challenge the district court's order except by arguing that the regulation is valid. We therefore found it unnecessary, with one exception, to express any opinion on whether the scope of the relief granted was appropriate. We affirm in part, reverse in part and remand.

The facts of this case are detailed in the district court's opinion, 519 F. Supp. 573 (S.D.Cal.1981). Briefly, tuna, especially yellowfin, tend to swim in association with certain species of porpoise. Capitalizing on this known, but scientifically unexplained phenomenon, tuna fishermen often set their nets around schools of porpoise to capture the tuna swimming beneath. When the nets are pursed, porpoises as well as tuna often are caught; the porpoises, air-breathing mammals, sometimes are drowned or injured.

In 1972 Congress enacted the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-407 (the Act). The Act imposed a moratorium on the taking of marine mammals, but permitted takings incidental to commercial fishing during a two-year period. Id. § 1371. The Act permitted authorized observers to board commercial fishing vessels during the two-year period, after notice, for purposes of research and observation. Id. § 1381(d). In 1974, both the statutory research observation program and the commercial fishing exemption expired. Commercial fishermen now are allowed to take marine mammals incidentally during fishing operations only under permits issued subject to the Secretary's regulations. The Act provides severe civil and criminal penalties for violations of its provisions or of the regulations and permits issued by the Secretary. Fines not to exceed $10,000 or $20,000 per violation, imprisonment for not more than one year per violation, and forfeiture of the violator's cargo may be imposed. Id. §§ 1375-76.

The captains specifically challenge the validity of 50 C.F.R. § 216.24(f)(1), which provides:

The vessel certificate holder of any certificated vessel shall, upon the proper notification by the National Marine Fisheries Service, allow an observer duly authorized by the Secretary to accompany the vessel on any or all regular fishing trips for the purpose of conducting research and observing operations, including collecting information which may be used in civil or criminal penalty proceedings, forfeiture actions, or permit or certificate sanctions.

The captains argue that the regulation subjects them to a search that is neither statutorily authorized nor constitutionally permissible. The Secretary argues that the regulation is authorized by section 103 of the Act, 16 U.S.C. § 1373, which empowers the Secretary to:

prescribe such regulations with respect to the taking . . . of animals from each species of marine mammal . . . as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies [of this Act].

The Secretary further argues that an observer's presence on the ship does not constitute a search. Alternatively, the Secretary argues that even if stationing an observer aboard constitutes a search, the search is constitutionally permissible under the pervasively-regulated industry exception established by Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972), and most recently applied by the Supreme Court in Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981).

The first question we address is [13 ELR 20204] whether stationing an observer aboard a tuna boat constitutes a search. We agree with the district judge's conclusion that it does. Although not every boarding constitutes a search, see United States v. Olander, 584 F.2d 876, 888 (9th Cir.1978) (boarding to serve process), vacated on other grounds sub nom. Harrington v. United States, 443 U.S. 914, 99 S. Ct. 3104, 61 L. Ed. 2d 878 (1979), boarding of a vessel for any type of investigation or inspection is a search within the scope of the fourth amendment. United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.), cert. denied, 449 U.S. 922, 101 S. Ct. 322, 66 L. Ed. 2d 150 (1980). The boarding and stationing of government agents on tuna boats, as mandated by the regulation, subjects the captain and crew at the very least to an inspection of their fishing operations. Whether the government intends to use the information it gathers for scientific research alone or in criminal and civil proceedings, the inspection falls within the fourth amendment.

This result is consistent with the rationale of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), where the Supreme Court held that a violation of an individual's "legitimate expectation of privacy," see Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978), constitutes a fourth amendment search. Commercial fishermen often operate in isolated areas of the ocean. Although their operations are in areas accessible to law enforcement officers and to the public, giving them no reasonable expectation of absolute privacy, we conclude that they could reasonably expect a greater amount of privacy than that available in the presence of uninvited on-board observers.

The Secretary argues that the "plain view" doctrine applies because the fishing operations occur in waters accessible to the public. Under the "plain view" doctrine, an officer whose presence at a certain location is legal may observe his surroundings without violating the fourth amendment. See Colorado v. Bannister, 449 U.S. 1, 4 & n. 4, 101 S. Ct. 42, 44 & n. 4, 66 L. Ed. 2d 1 (1980) (per curiam); Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067 (1968); United States v. Wheeler, 641 F.2d 1321, 1324-25 (9th Cir.1981).The Secretary argues that because government agents could be present legally in the vicinity of any tuna boat by use of an airplane or another vessel and could observe legally the fishing operations in "plain view," he is simply procuring information in a more efficient way.

The Secretary's argument distorts the "plain view" doctrine. The protections of the fourth amendment are not abrogated simply because information is otherwise legally accessible. Information legally accessible should be legally procured. If it is so procured, no violation of the fourth amendment occurs. If, however, it is procured via an unreasonable search, a fourth amendment violation occurs. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S. Ct. 2319, 2326, 60 L. Ed. 2d 920 (1979) (retail store inviting the public to enter consents only to examination of merchandise in the manner used by the ordinary customer). The plain view doctrine comes into play when a government officer is legally present and then observes something in plain view. See, e.g., Colorado v. Bannister, supra; Harris v. United States, supra. Here, the government attempts to use its police powers to require mandatory observer presence on the fishing vessel and then to allow the observer to report what he saw. This avenue of access to information about the vessel's fishing operations is not accessible to the public; the information which might be procured by on-board observers does not fall under the plain view doctrine.

III

Holding that the plain view doctrine does not apply and that the forced presence of an on-board observer constitutes a search under the fourth amendment is only our first step. Our next inquiry does not require us to go so far as to determine whether there was a constitutional violation. In this case, we need only determine if the observer program raises substantial constitutional questions. When agency action raises issues of "questionable constitutionality," see Greene v. McElroy, 360 U.S. 474, 506-08, 79 S. Ct. 1400, 1418-19, 3 L. Ed. 2d 1377 (1959), the statutory authorization for that action must be clear. We conclude that there is no clear statutory authorization for the observer program and therefore hold that promulgation of the regulations establishing the program was outside the power granted the Secretary.

Although courts ordinarily give deference to agency interpretations of the statutes they are charged to enforce, see New York State Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 2516, 37 L. Ed. 2d 688 (1973); Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir.), cert. denied, U.S. , 102 S. Ct. 3494, 73 L. Ed. 2d 1373 (1982), such deference is inappropriate when an agency interprets its general enabling legislation to permit actions of doubtful constitutionality. In Greene v. McElroy, supra, the Supreme Court held that absent explicit presidential or congressional authorization, an agency could not deprive a federal employee of his job in a proceeding in which he was not afforded the right to confront and cross-examine witnesses. The Court found that executive orders granting the agency power to establish a system to protect classified information was not a sufficient authorization. The Court reasoned that, absent an express contrary indication, it assumes that Congress or the President intends to afford persons traditional constitutional rights. Therefore, administrative action raising serious constitutional questions must be explicitly authorized. A decision to employ constitutionally questionable procedures

must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, . . . but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.

360 U.S. at 507, 79 S. Ct. at 1419 (citation omitted). The Court held that before it would decide whether a person could be deprived of his employment in a proceeding not permitting confrontation of witnesses, "it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use." Id.; cf. Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052 (8th Cir.1978) ("[W]here . . . potential incursions into sensitive constitutional rights are involved, careful scrutiny is required in delineating the scope of authority that Congress intended the agency to exercise."), aff'd, 440 U.S. 689, 99 S. Ct. 1435, 59 L. Ed. 2d 692 (1979).

Under the regulations promulgated by the Secretary, a tuna boat operator must agree to allow observers aboard to qualify for a permit allowing the incidental taking of porpoise during fishing operations. We have concluded that stationing the observer on board constitutes a search. Therefore, if such searches raise serious constitutional questions, the observer program must be invalidated. We conclude that they do.

In See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), the Supreme Court held that warrantless administrative entry, without consent, into the portions of commercial premises that are not open to the public violates the fourth amendment. Id. at 545, 87 S. Ct. at 1740. The Court reasoned:

As we explained in Camara [v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)], a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. [13 ELR 20205] The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.

Id. at 543, 87 S. Ct. at 1739. Based on our reading of this statement, we conclude that warrantles searches of tuna boats by government observers are presumptively unreasonable. Therefore, unless these searches fall within a recognized exception to the warrant requirement, they raise serious constitutional questions.

The Secretary contends that the observer program falls within the pervasively-regulated industry exception to the warrant requirement established by Colonnade Catering Corp. v. United States, supra, and United States v. Biswell, supra. Colonnade dealt with warrantless inspections of commercial premises in the regulation of liquor sales; Biswell dealt with such searches in the regulation of firearms. More recently, the Court upheld the warrantless inspection of mines. Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). The Court has observed, however, that these cases are "exceptions" involving "relatively unique circumstances." Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 1820, 56 L. Ed. 2d 305 (1978).

The pervasively-regulated industry cases are distinguishable from the case before us. In each case upholding a warrantless search, the inspection was expressly authorized by statute. See Donovan v. Dewey, supra, 452 U.S. at 596, 101 S. Ct. at 2536; United States v. Biswell, supra, 406 U.S. at 311-12, 92 S. Ct. at 1594. The statute in each case was a critical factor in the Court's determination that an exception to the warrant requirement was appropriate. In Biswell, the Court stated that "the legality of the search depends not on consent but on the authority of a valid statute." 406 U.S. at 315, 92 S. Ct. at 1596. In Donovan v. Dewey, the Court explained that an exception to the warrant requirement can be recognized only when a "statute's inspection program, in terms of the certainty and regularity of ts application, provides a constitutionally adequate substitute for a warrant." 452 U.S. at 603, 101 S. Ct. at 2540. See also Colonnade Catering Corp. v. United States, supra, 397 U.S. at 73 nn. 1 & 2, 77, 90 S. Ct. at 775 nn. 1 & 2, 777 (statute did not include forcible entries without a warrant; applying fourth amendment standards); United States v. Raub, supra, 637 F.2d at 1207 (holding that search of a fishing vessel in area where certain fishing rights were reserved for Indians was within administrative search exception to warrant requirement) ("Both the statute under which the [fishing] regulations were promulgated and the court orders authorized enforcement agents to board vessels without warrants to check identification and to ascertain whether fishermen were in compliance with the applicable fishing regulations.") (footnote omitted).

None of the cases dealt with the issue before us: whether regulations promulgated under a statute authorizing an agency to prescribe regulations to carry out the purposes of an act, but not specifically authorizing warrantless searches, are valid. Our review of the cases convinces us that express statutory authorization of the inspections was critical to their holdings and that, absent that authorization, administrative regulations would not have been held sufficient. The statutes made it clear that Congress had decided "that the imposed procedures [were] necessary and warranted and [had] authorized their use." Greene v. McElroy, supra, 360 U.S. at 507, 79 S. Ct. at 1419.

The limited nature of our holding in this case is obvious. We need not decide whether a properly authorized observer program is constitutional. The current program is of questionable constitutionality because it includes warrantless searches; those searches are not expressly authorized by Congress. Also, we need not decide whether adequate congressional auahotization could ever be found in the absence of an express statutory statement.¹ We think that it would be difficult for Congress to manifest clearly its authorization in another manner, but we only hold that congressional authorization in this case is not clear. Except for the general enabling statute, the Secretary's only evidence of congressional authorization is testimony from the Congessional Oversight Hearings held in 1977, five years after the enabling legislation was passed. Whatever the significance of that evidence, it is irrelevant. Congressional authorization in areas of doubtful constitutionality "cannot be assumed by acquiescence or non-action." Id. Even assuming that Congress, without amending the statute, indicated its approval of the Secretary's actions, that approval is not sufficient evidence of authorization.

We therefore conclude that congressional authorization for the warrantless inspection of tuna boats is not clear, that promulgation of the observer program was not within the powers that Congress granted the Secretary, and that the regulation requiring certificate holders to allow observers on board is invalid.²

One part of the order of the district court requires special attention. We have held that the regulation is invalid. The district judge, however, held the regulation invalid only insofar as it allows observers to gather information for non-scientific purposes. 519 F. Supp. at 580-81. We find no basis in the cases for upholding the use of the observer program for scientific but not for non-scientific purposes, nor has any sound reasoning been asserted in support of such a distinction. The regulation mandates an unauthorized search whether the Secretary intends to use the information he gathers for scientific research or in criminal or civil proceedings. Thus, we hold that the regulation requiring the search is invalid for all purposes. We therefore affirm the district court's judgment in part, reverse in part, and remand for entry of injunctive relief consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

1. None of the cases cited to us by the Secretary suggests that an express statutory authorization is dispensable. United States v. Schafer, 461 F.2d 856 (9th Cir.), cert. denied, 409 U.S. 881, 93 S. Ct. 211, 34 L. Ed. 2d 136 (1972), and United States v. Watson, 678 F.2d 765 (9th Cir.1982), both dealt with regulations promulgated under statutes that expressly authorized inspections. United States v. Davis, 482 F.2d 893 (9th Cir.1973), dealt with regulations promulgated under the authority of an executive order, and is not helpful on the question of congressional authorization. United States v. Rucinski, 658 F.2d 741 (10th Cir.1981), cert. denied, U.S. , 102 S. Ct. 1430, 71 L. Ed. 2d 649 (1982), is not binding precedent in this circuit and is distinguishable because it raises questions of contract and waiver that we need not and do not address.

2. Our disposition of the case on these grounds makes it unnecessary to reach the captains' argument that the regulation is inconsistent with section 107 of the Act, 16 U.S.C. § 1377, which authorizes searches with warrants or upon reasonable cause to believe that the vessel or its crew is in violation of the Act. We observe, however, that congressional authorization for the two-year observation program, 16 U.S.C. § 1381(d), which has now expired, was part of the same law as section 107, which was not to expire.

[13 ELR 20205]

GOODWIN, Circuit Judge, dissenting.

Assuming that stationing a government agent on board a tuna boat constitutes a search, United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.1980), I would hold that the search in this case is constitutionally permissible.

In United States v. Raub, we held that the need to enforce Indian treaty rights and the pervasive regulation of commercial fishing made the warrantless boarding of fishing vessels in the Puget Sound salmon fishery constitutionally permissible. Tuna fishing, like salmon fishing, is a pervasively regulated industry. This case is like Raub because enforcement of the Marine Mammal Protection Act similarly requires boarding and observation of fishing vessels.

The federal government's concern about the destruction of porpoise populations by tuna fishing permeates the statutory scheme of which 16 U.S.C. § 1373 is a part. The overriding purpose of the Marine Mammal [13 ELR 20206] Protection Act, 16 U.S.C. §§ 1361-1407, is the protection of marine mammals. Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297, 306-309 (D.C. Cir.), affirmed, 176 U.S. App. D.C. 362, 540 F.2d 1141 (1976). The majority unnecessarily eliminates the only practicable method en enforcing the statute. Without observers stationed aboard tuna vessels, the government is powerless to enforce the Act, or to collect the scientific data upon which intelligent regulation of the tuna industry's incidental harvest of porpoises must be predicated.

Commercial fishing is not only pervasively regulated,¹ but the very activity at issue in this case has been the focus of Congressional action. Congress has banded the incidental taking of porpoises by vessels under United States jurisdiction, 16 U.S.C. § 1372, except under permits issued pursuant to 16 U.S.C. § 1374. Section 1374 requires that permits issue only in conformance with regulations promulgated under 16 U.S.C. § 1373."Existing and future levels of marine mammal species and population stocks" 16 U.S.C. § 1373(b)(1), and "the marine ecosystem and related environmental considerations," 16 U.S.C. § 1373(b)(3), must be considered in promulgating the regulations. The regulations may restrict the taking of porpoises by species, number, age, sex or other factors, 16 U.S.C. § 1373(c).

The challenged practice is vital to development of reasonable regulations under § 1373(b) and to enforcement of restrictions promulgated under § 1373(c). Acceptance of observers is a reasonable condition for the issuance of a permit to fish under the restrictions of 16 U.S.C. § 1373.

Without the ability to promulgate sensible regulations under the Act and to enforce those regulations, the Secretary's power to issue permits is in doubt. Without validly issued permits, fishing would be impaired. NOAA observers thus not only protect porpoises, but may help to keep American tuna on the supermarket shelves in a manner consistent with the preservation of the mammals. See Committee for Humane Legislation v. Richardson, 176 U.S. App. D.C. 362, 540 F.2d 1141 (1976); "[T]he Act was deliberately designed to permit takings of marine mammals only when it was known that that taking would not be to the disadvantage of the species." Id., 540 F.2d at 1150 (Emphasis in original.)

Observation of tuna fishing is necessary for enforcement of the Marine Mammal Protection Act. Authorization is thus clearly implied by the statute. Explicit authority for inspections of other regulated industries has been given by statute, and upheld for the same reason as we would uphold this regulation: that the inspections were necessary to carry out the intent of Congress. See, e.g., Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); Colonnade Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970). The majority's attempt to distinguish these cases is unconvincing.

Here, as in Colonnade, Biswell and Dewey, the potential for abuse of warrantless searches is slim because the inspection is limited to a narrowly defined and specialized activity, tuna fishing.

Like the businessmen in Colonnade, Biswell, and Dewey, boat operators enter the business of tuna fishing with every expectation that inspection, not freedom from inspection, will be the rule. In fact, the tuna industry argued before Congress that its continued cooperation with the inspection program is one reason why permits to kill porpoises should issue.²

To strike down this inspection regulation, necessary to both the protection of porpoises and to the continued vitality of the legislative scheme, upon a concern that "congressional authorization in this case is not clear" seems contrary not only to the clear policy of the statute, but also to our own recent precedent. United States v. Raub, supra.

1. "Federal regulation of the fishing industry dates back to a 1793 federal license requirement for fishing vessels. Act of Feb. 18, 1793, 1 Stat. 305 . . . . See generally Northern Pacific Halibut Act of 1937, 50 Stat. 325, 16 U.S.C. §§ 772-772j; Act of Aug. 4, 1949, 38 Stat. 692, 16 U.S.C. §§ 781-786 (sponges from Gulf of Mexico or Straits of Florida); Whaling Convention Act of 1950, 64 Stat. 421, 16 U.S.C. §§ 916-916l, Tuna Conventions Act of 1950, 64 Stat. 777, 16 U.S.C. §§ 951-961; Northwest Atlantic Fisheries Act of 1950, 64 Stat. 1067, 16 U.S.C. §§ 981-991; North Pacific Fisheries Act of 1954, 68 Stat. 698, 16 U.S.C. §§ 1021-1032; Offshore Shrimp Fisheries Act of 1973, 87 Stat. 1061, 16 U.S.C. §§ 1100b to 1100b-10; Fishery Conservation Management Act of 1976, 90 Stat. 331, 16 U.S.C. §§ 1801-1882." United States v. Raub, 637 F.2d 1205, 1209 n. 5 (9th Cir.1980).

2. John P. Mulligan, representing the Tuna Research Foundation, Inc., stated:

"it is imperative that we continue present research activities in order that reliable data is produced and that we be given the necessary time to complete the studies. All of the principal [sic] elements of the porpoise program are just at beginning stages — those being: gear research and development and its related behavorial studies; life histories — studies and surveys which include the observer program; . . ." Marine Mammal Protection Act: Hearings before Subcommittee on Fisheries and Wildlife Conservation and the Environment, 93rd Cong., 1st Sess., 72 (1973).

In another hearing later in 1974, the industry again lauded the observer program as an example of its cooperation toward the goal of de minimis porpoise mortality, and appended to its testimony a summary of observer cruises conducted to that date. Marine Mammal Protection Act: Hearings on H.R. 15273, H.R. 15459, H.R. 15810, H.R. 15967, H.R. 16043, H.R. 16777, before Subcomm. on Fisheries and Wildlife Conservation and the Environment, 93rd Cong., 2d Sess. 195, 207-211 (1974).