§ 1385. — Dolphin protection.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1385]
TITLE 16--CONSERVATION
CHAPTER 31--MARINE MAMMAL PROTECTION
SUBCHAPTER II--CONSERVATION AND PROTECTION OF MARINE MAMMALS
Sec. 1385. Dolphin protection
(a) Short title
This section may be cited as the ``Dolphin Protection Consumer
Information Act''.
(b) Findings
The Congress finds that--
(1) dolphins and other marine mammals are frequently killed in
the course of tuna fishing operations in the eastern tropical
Pacific Ocean and high seas driftnet fishing in other parts of the
world;
(2) it is the policy of the United States to support a worldwide
ban on high seas driftnet fishing, in part because of the harmful
effects that such driftnets have on marine mammals, including
dolphins; and
(3) consumers would like to know if the tuna they purchase is
falsely labeled as to the effect of the harvesting of the tuna on
dolphins.
(c) Definitions
For purposes of this section--
(1) the terms ``driftnet'' and ``driftnet fishing'' have the
meanings given those terms in section 4003 of the Driftnet Impact
Monitoring, Assessment, and Control Act of 1987 (16 U.S.C. 1822
note);
(2) the term ``eastern tropical Pacific Ocean'' means the area
of the Pacific Ocean bounded by 40 degrees north latitude, 40
degrees south latitude, 160 degrees west longitude, and the western
coastlines of North, Central, and South America;
(3) the term ``label'' means a display of written, printed, or
graphic matter on or affixed to the immediate container of any
article;
(4) the term ``Secretary'' means the Secretary of Commerce; and
(5) the term ``tuna product'' means a food item which contains
tuna and which has been processed for retail sale, except perishable
sandwiches, salads, or other products with a shelf life of less than
3 days.
(d) Labeling standard
(1) It is a violation of section 45 of title 15 for any producer,
importer, exporter, distributor, or seller of any tuna product that is
exported from or offered for sale in the United States to include on the
label of that product the term ``dolphin safe'' or any other term or
symbol that falsely claims or suggests that the tuna contained in the
product were harvested using a method of fishing that is not harmful to
dolphins if the product contains tuna harvested--
(A) on the high seas by a vessel engaged in driftnet fishing;
(B) outside the eastern tropical Pacific Ocean by a vessel using
purse seine nets--
(i) in a fishery in which the Secretary has determined that
a regular and significant association occurs between dolphins
and tuna (similar to the association between dolphins and tuna
in the eastern tropical Pacific Ocean), unless such product is
accompanied by a written statement, executed by the captain of
the vessel and an observer participating in a national or
international program acceptable to the Secretary, certifying
that no purse seine net was intentionally deployed on or used to
encircle dolphins during the particular voyage on which the tuna
were caught and no dolphins were killed or seriously injured in
the sets in which the tuna were caught; or
(ii) in any other fishery (other than a fishery described in
subparagraph (D)) unless the product is accompanied by a written
statement executed by the captain of the vessel certifying that
no purse seine net was intentionally deployed on or used to
encircle dolphins during the particular voyage on which the tuna
was harvested;
(C) in the eastern tropical Pacific Ocean by a vessel using a
purse seine net unless the tuna meet the requirements for being
considered dolphin safe under paragraph (2); or
(D) by a vessel in a fishery other than one described in
subparagraph (A), (B), or (C) that is identified by the Secretary as
having a regular and significant mortality or serious injury of
dolphins, unless such product is accompanied by a written statement
executed by the captain of the vessel and an observer participating
in a national or international program acceptable to the Secretary
that no dolphins were killed or seriously injured in the sets or
other gear deployments in which the tuna were caught, provided that
the Secretary determines that such an observer statement is
necessary.
(2) For purposes of paragraph (1)(C), a tuna product that contains
tuna harvested in the eastern tropical Pacific Ocean by a vessel using
purse seine nets is dolphin safe if--
(A) the vessel is of a type and size that the Secretary has
determined, consistent with the International Dolphin Conservation
Program, is not capable of deploying its purse seine nets on or to
encircle dolphins; or
(B)(i) the product is accompanied by a written statement
executed by the captain providing the certification required under
subsection (h) of this section;
(ii) the product is accompanied by a written statement executed
by--
(I) the Secretary or the Secretary's designee;
(II) a representative of the Inter-American Tropical Tuna
Commission; or
(III) an authorized representative of a participating nation
whose national program meets the requirements of the
International Dolphin Conservation Program,
which states that there was an observer approved by the
International Dolphin Conservation Program on board the vessel
during the entire trip and that such observer provided the
certification required under subsection (h) of this section; and
(iii) the statements referred to in clauses (i) and (ii) are
endorsed in writing by each exporter, importer, and processor of the
product; and
(C) the written statements and endorsements referred to in
subparagraph (B) comply with regulations promulgated by the
Secretary which provide for the verification of tuna products as
dolphin safe.
(3)(A) The Secretary of Commerce shall develop an official mark that
may be used to label tuna products as dolphin safe in accordance with
this Act.\1\
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``this section''.
---------------------------------------------------------------------------
(B) A tuna product that bears the dolphin safe mark developed under
subparagraph (A) shall not bear any other label or mark that refers to
dolphins, porpoises, or marine mammals.
(C) It is a violation of section 45 of title 15 to label a tuna
product with any label or mark that refers to dolphins, porpoises, or
marine mammals other than the mark developed under subparagraph (A)
unless--
(i) no dolphins were killed or seriously injured in the sets or
other gear deployments in which the tuna were caught;
(ii) the label is supported by a tracking and verification
program which is comparable in effectiveness to the program
established under subsection (f) of this section; and
(iii) the label complies with all applicable labeling,
marketing, and advertising laws and regulations of the Federal Trade
Commission, including any guidelines for environmental labeling.
(D) If the Secretary determines that the use of a label referred to
in subparagraph (C) is substantially undermining the conservation goals
of the International Dolphin Conservation Program, the Secretary shall
report that determination to the United States Senate Committee on
Commerce, Science, and Transportation and the United States House of
Representatives Committees on Resources and on Commerce, along with
recommendations to correct such problems.
(E) It is a violation of section 45 of title 15 willingly and
knowingly to use a label referred to in subparagraph (C) in a campaign
or effort to mislead or deceive consumers about the level of protection
afforded dolphins under the International Dolphin Conservation Program.
(e) Enforcement
Any person who knowingly and willfully makes a statement or
endorsement described in subsection (d)(2)(B) of this section that is
false is liable for a civil penalty of not to exceed $100,000 assessed
in an action brought in any appropriate district court of the United
States on behalf of the Secretary.
(f) Regulations
The Secretary, in consultation with the Secretary of the Treasury,
shall issue regulations to implement this Act,\1\ including regulations
to establish a domestic tracking and verification program that provides
for the effective tracking of tuna labeled under subsection (d) of this
section. In the development of these regulations, the Secretary shall
establish appropriate procedures for ensuring the confidentiality of
proprietary information the submission of which is voluntary or
mandatory. The regulations shall address each of the following items:
(1) The use of weight calculation for purposes of tracking tuna
caught, landed, processed, and exported.
(2) Additional measures to enhance current observer coverage,
including the establishment of criteria for training, and for
improving monitoring and reporting capabilities and procedures.
(3) The designation of well location, procedures for sealing
holds, procedures for monitoring and certifying both above and below
deck, or through equally effective methods, the tracking and
verification of tuna labeled under subsection (d) of this section.
(4) The reporting, receipt, and database storage of radio and
facsimile transmittals from fishing vessels containing information
related to the tracking and verification of tuna, and the definition
of set.
(5) The shore-based verification and tracking throughout the
fishing, transshipment, and canning process by means of Inter-
American Tropical Tuna Commission trip records or otherwise.
(6) The use of periodic audits and spot checks for caught,
landed, and processed tuna products labeled in accordance with
subsection (d) of this section.
(7) The provision of timely access to data required under this
subsection by the Secretary from harvesting nations to undertake the
actions required in paragraph (6) of this paragraph.\2\
---------------------------------------------------------------------------
\2\ So in original. Probably should be ``this subsection''.
The Secretary may make such adjustments as may be appropriate to the
regulations promulgated under this subsection to implement an
international tracking and verification program that meets or exceeds
the minimum requirements established by the Secretary under this
subsection.
(g) Secretarial findings
(1) Between March 1, 1999, and March 31, 1999, the Secretary shall,
on the basis of the research conducted before March 1, 1999, under
section 1414a(a) of this title, information obtained under the
International Dolphin Conservation Program, and any other relevant
information, make an initial finding regarding whether the intentional
deployment on or encirclement of dolphins with purse seine nets is
having a significant adverse impact on any depleted dolphin stock in the
eastern tropical Pacific Ocean. The initial finding shall be published
immediately in the Federal Register and shall become effective upon a
subsequent date determined by the Secretary.
(2) Between July 1, 2001, and December 31, 2002, the Secretary
shall, on the basis of the completed study conducted under section
1414a(a) of this title, information obtained under the International
Dolphin Conservation Program, and any other relevant information, make a
finding regarding whether the intentional deployment on or encirclement
of dolphins with purse seine nets is having a significant adverse impact
on any depleted dolphin stock in the eastern tropical Pacific Ocean. The
finding shall be published immediately in the Federal Register and shall
become effective upon a subsequent date determined by the Secretary.
(h) Certification by captain and observer
(1) Unless otherwise required by paragraph (2), the certification by
the captain under subsection (d)(2)(B)(i) of this section and the
certification provided by the observer as specified in subsection
(d)(2)(B)(ii) of this section shall be that no dolphins were killed or
seriously injured during the sets in which the tuna were caught.
(2) The certification by the captain under subsection (d)(2)(B)(i)
of this section and the certification provided by the observer as
specified under subsection (d)(2)(B)(ii) of this section shall be that
no tuna were caught on the trip in which such tuna were harvested using
a purse seine net intentionally deployed on or to encircle dolphins, and
that no dolphins were killed or seriously injured during the sets in
which the tuna were caught, if the tuna were caught on a trip
commencing--
(A) before the effective date of the initial finding by the
Secretary under subsection (g)(1) of this section;
(B) after the effective date of such initial finding and before
the effective date of the finding of the Secretary under subsection
(g)(2) of this section, where the initial finding is that the
intentional deployment on or encirclement of dolphins is having a
significant adverse impact on any depleted dolphin stock; or
(C) after the effective date of the finding under subsection
(g)(2) of this section, where such finding is that the intentional
deployment on or encirclement of dolphins is having a significant
adverse impact on any such depleted stock.
(Pub. L. 101-627, title IX, Sec. 901, Nov. 28, 1990, 104 Stat. 4465;
Pub. L. 105-42, Sec. 5, Aug. 15, 1997, 111 Stat. 1125.)
Codification
Section was not enacted as part of the Marine Mammal Protection Act
of 1972 which comprises this chapter.
Amendments
1997--Subsec. (d). Pub. L. 105-42, Sec. 5(a), amended heading and
text of subsec. (d) generally. Prior to amendment, text read as follows:
``(1) It is a violation of section 45 of title 15 for any producer,
importer, exporter, distributor, or seller of any tuna product that is
exported from or offered for sale in the United States to include on the
label of that product the term `Dolphin Safe' or any other term or
symbol that falsely claims or suggests that the tuna contained in the
product was harvested using a method of fishing that is not harmful to
dolphins if the product contains--
``(A) tuna harvested on the high seas by a vessel engaged in
driftnet fishing; or
``(B) tuna harvested in the eastern tropical Pacific Ocean by a
vessel using purse seine nets which do not meet the requirements for
being considered dolphin safe under paragraph (2).
``(2) For purposes of paragraph (1)(B), a tuna product that contains
tuna harvested in the eastern tropical Pacific Ocean by a fishing vessel
using purse seine nets is dolphin safe if--
``(A) the vessel is of a type and size that the Secretary has
determined is not capable of deploying its purse seine nets on or to
encircle dolphin; or
``(B)(i) the product is accompanied by a written statement
executed by the captain of the vessel which harvested the tuna
certifying that no tuna were caught on the trip in which such tuna
were harvested using a purse seine net intentionally deployed on or
to encircle dolphin;
``(ii) the product is accompanied by a written statement
executed by--
``(I) the Secretary or the Secretary's designee, or
``(II) a representative of the Inter-American Tropical Tuna
Commission,
which states that there was an approved observer on board the vessel
during the entire trip and that purse seine nets were not
intentionally deployed during the trip on or to encircle dolphin;
and
``(iii) the statements referred to in clauses (i) and (ii) are
endorsed in writing by each exporter, importer, and processor of the
product.''
Subsec. (f). Pub. L. 105-42, Sec. 5(b), amended heading and text of
subsec. (f) generally. Prior to amendment, text read as follows: ``The
Secretary, in consultation with the Secretary of the Treasury, shall
issue regulations to implement this section not later than 6 months
after November 28, 1990, including regulations establishing procedures
and requirements for ensuring that tuna products are labeled in
accordance with subsection (d) of this section.''
Subsec. (g). Pub. L. 105-42, Sec. 5(c), added subsec. (g) and struck
out former subsec. (g), which had amended section 1371 of this title.
Subsecs. (h), (i). Pub. L. 105-42, Sec. 5(c), added subsec. (h) and
struck out former subsecs. (h) and (i) which read as follows:
``(h) Negotiations.--The Secretary of State shall immediately seek,
through negotiations and discussions with appropriate foreign
governments, to reduce and, as soon as possible, eliminate the practice
of harvesting tuna through the use of purse seine nets intentionally
deployed to encircle dolphins.
``(i) Effective Date.--Subsections (d) and (e) of this section shall
take effect 6 months after November 28, 1990.''
Change of Name
Committee on Commerce of House of Representatives changed to
Committee on Energy and Commerce of House of Representatives, and
jurisdiction over matters relating to securities and exchanges and
insurance generally transferred to Committee on Financial Services of
House of Representatives by House Resolution No. 5, One Hundred Seventh
Congress, Jan. 3, 2001.
Effective Date of 1997 Amendment
For effective date of amendment by Pub. L. 105-42, see section 8 of
Pub. L. 105-42, set out as a note under section 1362 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1371, 1414a of this title.
