16 U.S.C. § 1385 — Dolphin protection

Page 1801 TITLE 16—CONSERVATION § 1385 under paragraph (1). Each year, the Secretary shall specify in the annual report prepared under section 1373(f) of this title what measures have been taken to prepare and implement such plans. (4) If the Secretary determines that a take re- duction plan is necessary to reduce the inci- dental taking of marine mammals in the course of commercial fishing operations from a stra- tegic stock, or for species or stocks which inter- act with a commercial fishery for which the Sec- retary has made a determination under section 1387(f)(1) of this title, any conservation plan pre- pared under this subsection for such species or stock shall incorporate the take reduction plan required under section 1387 of this title for such species or stock. (Pub. L. 92–522, title I, § 115, as added Pub. L. 100–711, § 3(a), Nov. 23, 1988, 102 Stat. 4763; amend- ed Pub. L. 103–238, § 8, Apr. 30, 1994, 108 Stat. 543.) Editorial Notes AMENDMENTS 1994—Subsec. (b)(4). Pub. L. 103–238 added par. (4). § 1384. Authorization of appropriations (a) Department of Commerce (1) There are authorized to be appropriated to the Department of Commerce, for purposes of carrying out its functions and responsibilities under this subchapter (other than sections 1386 and 1387 of this title) and subchapter V, $12,138,000 for fiscal year 1994, $12,623,000 for fis- cal year 1995, $13,128,000 for fiscal year 1996, $13,653,000 for fiscal year 1997, $14,200,000 for fis- cal year 1998, and $14,768,000 for fiscal year 1999. (2) There are authorized to be appropriated to the Department of Commerce, for purposes of carrying out sections 1386 and 1387 of this title, $20,000,000 for each of the fiscal years 1994 through 1999. (b) Department of the Interior There are authorized to be appropriated to the Department of the Interior, for purposes of car- rying out its functions and responsibilities under this subchapter, $8,000,000 for fiscal year 1994, $8,600,000 for fiscal year 1995, $9,000,000 for fiscal year 1996, $9,400,000 for fiscal year 1997, $9,900,000 for fiscal year 1998, and $10,296,000 for fiscal year 1999. (Pub. L. 92–522, title I, § 116, formerly § 114, Oct. 21, 1972, 86 Stat. 1043; Pub. L. 95–136, § 2, Oct. 18, 1977, 91 Stat. 1167; Pub. L. 95–316, § 3, July 10, 1978, 92 Stat. 380; renumbered § 116, Pub. L. 100–711, § 2(a)(1), Nov. 23, 1988, 102 Stat. 4755; Pub. L. 103–238, § 9(a), Apr. 30, 1994, 108 Stat. 543.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 97–58, § 7(a), (b), Oct. 9, 1981, 95 Stat. 987; Pub. L. 98–364, title I, § 104(1), (2), July 17, 1984, 98 Stat. 442; Pub. L. 100–711, § 6(1), (2), Nov. 23, 1988, 102 Stat. 4771, prior to repeal by Pub. L. 103–238, § 9(c), Apr. 30, 1994, 108 Stat. 543. AMENDMENTS 1994—Pub. L. 103–238 amended section generally. Prior to amendment, section read as follows: ‘‘(a) There are authorized to be appropriated not to exceed $2,000,000 for the fiscal year ending June 30, 1973, and the four next following fiscal years, not to exceed $11,500,000 for the fiscal year ending September 30, 1978, not to exceed $8,500,000 for the fiscal year ending Sep- tember 30, 1979, not to exceed $9,000,000 for the fiscal year ending September 30, 1980, and not to exceed $9,500,000 for the fiscal year ending September 30, 1981, to enable the department in which the National Oce- anic and Atmospheric Administration is operating to carry out such functions and responsibilities as it may have been given under this subchapter (other than sec- tions 1379 and 1380 of this title). ‘‘(b) There are authorized to be appropriated not to exceed $700,000 for the fiscal year ending June 30, 1973, not to exceed $525,000 for each of the next four fiscal years thereafter, not to exceed $850,000 for the fiscal year ending September 30, 1978, not to exceed $650,000 for the fiscal year ending September 30, 1979, not to ex- ceed $760,000 for the fiscal year ending September 30, 1980, and not to exceed $876,000 for the fiscal year end- ing September 30, 1981 to enable the Department of the Interior to carry out such functions and responsibil- ities as it may have been given under this subchapter (other than sections 1379 and 1380 of this title).’’ 1978—Subsec. (a). Pub. L. 95–316, § 3(1), added reference to sections 1379 and 1380 of this title and provisions au- thorizing appropriations for the fiscal years ending Sept. 30, 1979, Sept. 30, 1980, and Sept. 30, 1981. Subsec. (b). Pub. L. 95–316, § 3(2), added reference to sections 1379 and 1380 of this title and provisions au- thorizing appropriations for the fiscal years Sept. 30, 1979, Sept. 30, 1980, and Sept. 30, 1981. 1977—Subsec. (a). Pub. L. 95–136, § 2(1), inserted ‘‘, and not to exceed $11,500,000 for the fiscal year ending Sep- tember 30, 1978,’’ after ‘‘fiscal years’’. Subsec. (b). Pub. L. 95–136, § 2(2), inserted ‘‘, and not to exceed $850,000 for the fiscal year ending September 30, 1978’’ after ‘‘thereafter’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective upon the expiration of the sixty-day period following Oct. 21, 1972, see section 4 of Pub. L. 92–522, set out as a note under section 1361 of this title. § 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 fish- ing’’ have the meanings given those terms in section 4003 of the Driftnet Impact Moni- toring, 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 Page 1802 TITLE 16—CONSERVATION § 1385 1 See References in Text note below. bounded by 40 degrees north latitude, 40 de- grees south latitude, 160 degrees west lon- gitude, and the western coastlines of North, Central, and South America; (3) the term ‘‘label’’ means a display of writ- ten, printed, or graphic matter on or affixed to the immediate container of any article; (4) the term ‘‘Secretary’’ means the Sec- retary 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 in- clude on the label of that product the term ‘‘dol- phin safe’’ or any other term or symbol that falsely claims or suggests that the tuna con- tained in the product were harvested using a method of fishing that is not harmful to dol- phins 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 as- sociation 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 cap- tain of the vessel and an observer partici- pating in a national or international pro- gram acceptable to the Secretary, certifying that no purse seine net was intentionally de- ployed 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 fish- ery 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 consid- ered 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 reg- ular and significant mortality or serious in- jury of dolphins, unless such product is accom- panied by a written statement executed by the captain of the vessel and an observer partici- pating 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 de- termines 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 writ- ten statement executed by the captain pro- viding the certification required under sub- section (h); (ii) the product is accompanied by a written statement executed by— (I) the Secretary or the Secretary’s des- ignee; (II) a representative of the Inter-American Tropical Tuna Commission; or (III) an authorized representative of a par- ticipating nation whose national program meets the requirements of the International Dolphin Conservation Program, which states that there was an observer ap- proved by the International Dolphin Conserva- tion Program on board the vessel during the entire trip and that such observer provided the certification required under subsection (h); and (iii) the statements referred to in clauses (i) and (ii) are endorsed in writing by each ex- porter, importer, and processor of the product; and (C) the written statements and endorse- ments referred to in subparagraph (B) comply with regulations promulgated by the Sec- retary which provide for the verification of tuna products as dolphin safe. (3)(A) The Secretary of Commerce shall de- velop an official mark that may be used to label tuna products as dolphin safe in accordance with this section.1 (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 mam- mals other than the mark developed under sub- paragraph (A) unless— (i) no dolphins were killed or seriously in- jured 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); and (iii) the label complies with all applicable la- beling, marketing, and advertising laws and regulations of the Federal Trade Commission, including any guidelines for environmental la- beling. (D) If the Secretary determines that the use of a label referred to in subparagraph (C) is sub- stantially undermining the conservation goals of the International Dolphin Conservation Pro- gram, the Secretary shall report that deter- Page 1803 TITLE 16—CONSERVATION § 1385 2 So in original. Probably should be ‘‘this subsection’’. mination to the United States Senate Com- mittee on Commerce, Science, and Transpor- tation and the United States House of Rep- resentatives Committees on Resources and on Commerce, along with recommendations to cor- rect 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 Inter- national Dolphin Conservation Program. (e) Additional prohibitions and enforcement For additional prohibitions relating to this section 1 and enforcement of this section,1 see section 1826g of this title. (f) Regulations The Secretary, in consultation with the Sec- retary of the Treasury, shall issue regulations to implement this section,1 including regulations to establish a domestic tracking and verification program that provides for the effec- tive tracking of tuna labeled under subsection (d). In the development of these regulations, the Secretary shall establish appropriate procedures for ensuring the confidentiality of proprietary information the submission of which is vol- untary or mandatory. The regulations shall ad- dress each of the following items: (1) The use of weight calculation for pur- poses of tracking tuna caught, landed, proc- essed, and exported. (2) Additional measures to enhance current observer coverage, including the establish- ment of criteria for training, and for improv- ing monitoring and reporting capabilities and procedures. (3) The designation of well location, proce- dures for sealing holds, procedures for moni- toring and certifying both above and below deck, or through equally effective methods, the tracking and verification of tuna labeled under subsection (d). (4) The reporting, receipt, and database stor- age 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 oth- erwise. (6) The use of periodic audits and spot checks for caught, landed, and processed tuna products labeled in accordance with sub- section (d). (7) The provision of timely access to data re- quired under this subsection by the Secretary from harvesting nations to undertake the ac- tions required in paragraph (6) of this para- graph.2 The Secretary may make such adjustments as may be appropriate to the regulations promul- gated under this subsection to implement an international tracking and verification program that meets or exceeds the minimum require- ments 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 Pro- gram, and any other relevant information, make an initial finding regarding whether the inten- tional deployment on or encirclement of dol- phins with purse seine nets is having a signifi- cant 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 Sec- retary. (2) Between July 1, 2001, and December 31, 2002, the Secretary shall, on the basis of the com- pleted study conducted under section 1414a(a) of this title, information obtained under the Inter- national 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 trop- ical Pacific Ocean. The finding shall be pub- lished 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 sub- section (d)(2)(B)(i) and the certification provided by the observer as specified in subsection (d)(2)(B)(ii) 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 sub- section (d)(2)(B)(i) and the certification provided by the observer as specified under subsection (d)(2)(B)(ii) 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); (B) after the effective date of such initial finding and before the effective date of the finding of the Secretary under subsection (g)(2), where the initial finding is that the in- tentional deployment on or encirclement of dolphins is having a significant adverse im- pact on any depleted dolphin stock; or (C) after the effective date of the finding under subsection (g)(2), where such finding is that the intentional deployment on or encir- clement of dolphins is having a significant ad- verse impact on any such depleted stock. (Pub. L. 101–627, title IX, § 901, Nov. 28, 1990, 104 Stat. 4465; Pub. L. 105–42, § 5, Aug. 15, 1997, 111 Stat. 1125; Pub. L. 114–81, title I, § 109, Nov. 5, 2015, 129 Stat. 659.) Page 1804 TITLE 16—CONSERVATION § 1386 Editorial Notes REFERENCES IN TEXT This section, referred to in subsecs. (d)(3)(A), (e), and (f), was in the original ‘‘this Act’’, and was translated as referring to the Dolphin Protection Consumer Infor- mation Act, which is classified to this section, to re- flect the probable intent of Congress. CODIFICATION Section was not enacted as part of the Marine Mam- mal Protection Act of 1972 which comprises this chap- ter. AMENDMENTS 2015—Subsec. (e). Pub. L. 114–81 amended subsec. (e) generally. Prior to amendment, text read as follows: ‘‘Any person who knowingly and willfully makes a statement or endorsement described in subsection (d)(2)(B) 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 be- half of the Secretary.’’ 1997—Subsec. (d). Pub. L. 105–42, § 5(a), amended head- ing and text of subsec. (d) generally. Prior to amend- ment, 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 en- gaged 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 Sec- retary 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 har- vested using a purse seine net intentionally deployed on or to encircle dolphin; ‘‘(ii) the product is accompanied by a written state- ment executed by— ‘‘(I) the Secretary or the Secretary’s designee, or ‘‘(II) a representative of the Inter-American Trop- ical 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, im- porter, and processor of the product.’’ Subsec. (f). Pub. L. 105–42, § 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, § 5(c), added subsec. (g) and struck out former subsec. (g), which had amended sec- tion 1371 of this title. Subsecs. (h), (i). Pub. L. 105–42, § 5(c), added subsec. (h) and struck out former subsecs. (h) and (i) which read as follows: ‘‘(h) NEGOTIATIONS.—The Secretary of State shall im- mediately seek, through negotiations and discussions with appropriate foreign governments, to reduce and, as soon as possible, eliminate the practice of har- vesting tuna through the use of purse seine nets inten- tionally deployed to encircle dolphins. ‘‘(i) EFFECTIVE DATE.—Subsections (d) and (e) of this section shall take effect 6 months after November 28, 1990.’’ Statutory Notes and Related Subsidiaries 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 gen- erally 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. § 1386. Stock assessments (a) In general Not later than August 1, 1994, the Secretary shall, in consultation with the appropriate re- gional scientific review group established under subsection (d), prepare a draft stock assessment for each marine mammal stock which occurs in waters under the jurisdiction of the United States. Each draft stock assessment, based on the best scientific information available, shall— (1) describe the geographic range of the af- fected stock, including any seasonal or tem- poral variation in such range; (2) provide for such stock the minimum pop- ulation estimate, current and maximum net productivity rates, and current population trend, including a description of the informa- tion upon which these are based; (3) estimate the annual human-caused mor- tality and serious injury of the stock by source and, for a strategic stock, other factors that may be causing a decline or impeding re- covery of the stock, including effects on ma- rine mammal habitat and prey; (4) describe commercial fisheries that inter- act with the stock, including— (A) the approximate number of vessels ac- tively participating in each such fishery; (B) the estimated level of incidental mor- tality and serious injury of the stock by each such fishery on an annual basis; (C) seasonal or area differences in such in- cidental mortality or serious injury; and (D) the rate, based on the appropriate standard unit of fishing effort, of such inci- dental mortality and serious injury, and an analysis stating whether such level is insig- nificant and is approaching a zero mortality and serious injury rate; (5) categorize the status of the stock as one that either— (A) has a level of human-caused mortality and serious injury that is not likely to cause the stock to be reduced below its optimum sustainable population; or (B) is a strategic stock, with a description of the reasons therefor; and