[Federal Register Volume 65, Number 104 (Tuesday, May 30, 2000)]
[Rules and Regulations]
[Pages 34408-34410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13374]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 991210333-0089-02; I.D. 111099C]
RIN 0648-AN37


Dolphin-Safe Tuna Labeling; Official Mark

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to designate an official mark that 
can be used to label tuna products as being ``dolphin-safe.'' The 
Dolphin Protection Consumer Information Act (DPCIA), as amended by the 
International Dolphin Conservation Program Act (IDCPA), requires the 
Secretary of Commerce to develop an official mark that can be used to 
label tuna products as ``dolphin-safe.'' The intent of this rule is to 
establish and designate that mark.

DATES: Effective June 29, 2000.

ADDRESSES: A full color version of the official mark is available at 
the NMFS Southwest Region website at http://swr.ucsd.edu/dsl.htm or by 
contacting J. Allison Routt, NMFS, Southwest Region, Protected 
Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213.

FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest 
Region, Protected Resources Division, (562) 980-4020, fax (562) 980-
4027.

SUPPLEMENTARY INFORMATION:

Background

    The DPCIA, 16 U.S.C. 1385, as amended by the IDCPA, requires the 
Secretary of Commerce to develop an official mark that can be used to 
label tuna products as ``dolphin-safe.'' The IDCPA and the official 
mark provisions of the DPCIA became effective on March 3, 1999, when 
the Secretary of State certified to Congress that the Agreement on the 
International Dolphin Conservation Program had been adopted and was in 
force.

Official Mark

    As discussed in the proposed rule to implement the IDCPA (December 
22, 1999; 64 FR 71722), the Secretary of Commerce considered the 
designation of a commonly used ``dolphin-safe'' logo as the official 
mark, but instead decided to develop a unique logo as the official 
mark.
    The DPCIA establishes ``dolphin-safe'' standards applicable to tuna 
products labeled with either the official mark or an alternative mark 
(16 U.S.C. 1385(d)). The DPCIA does not mandate the use of the official 
mark nor does it prohibit the use of alternative marks. However, as set 
forth under paragraph (d)(3)(B) of the DPCIA, whenever a tuna product 
bears the official mark, it may not bear any other mark or label that 
refers to dolphins, porpoises, or marine mammals. The dolphin-safe 
labeling standards, which are not a part of this rule-making, appear at 
50 CFR 216.91 through 216.94. The standards are the subject of ongoing 
litigation. This final rule codifies the official mark at 50 CFR 
216.96.

Proposed Rule

    On December 22, 1999, NMFS published proposed regulations to 
designate an official mark that can be used to label tuna products as 
being dolphin-safe (64 FR 71722). Public comments on the proposed rule 
were accepted through January 5, 2000. In addition to publishing the 
proposed rule in the Federal Register, NMFS sent via fax and mail the 
notice to industry representatives, environmental groups, the 
Department of State, the Inter-American Tropical Tuna Commission 
(IATTC), the U.S. Commissioners to the IATTC, the Secretary of the 
Treasury, the U.S. Customs Service, the Marine Mammal Commission, and 
the Federal Trade Commission. NMFS also issued a press release 
summarizing the major issues contained in the proposed rule. 
Information in the press release was sent to several national 
newspapers and published on e-mail discussion groups and NMFS websites.

Responses to Comments

    NMFS received 43 letters of comment in response to the proposed 
rule. Comments were received from environmental organizations and 
members of the public.

[[Page 34409]]

    Numerous comments received were beyond the scope of the proposed 
rule to designate an official mark. These comments included concerns 
about subjects other than the official mark itself, such as: the 
dolphin-safe labeling standards, the initial finding required by the 
IDCPA on whether chase and encirclement of dolphins by the tuna purse 
seine fishery is having an adverse impact on depleted dolphin stocks in 
the eastern tropical Pacific Ocean (ETP) (notice published at 64 FR 
24590), World Trade Organization influence and decisions related to 
U.S. embargoes against tuna harvested by purse seine in the ETP, 
enforcement of the Tuna Tracking and Verification Program, observer 
safety and objectivity, foreign trade interests and influence on the 
United States legislative process, the effects of purse seine fishing 
methods on dolphin stocks, mixed well storage of caught tuna onboard 
purse seine vessels, and decisions and procedures of the IATTC. The 
scope of the proposed rule is limited to the design elements of an 
official mark such as the graphics, color, appearance, and shape. The 
following is a summary of the comments NMFS received and NMFS 
responses.
    Comment 1: Several commenters indicated that the short 14-day 
comment period and the publishing of the rule near the holidays did not 
provide adequate time for public comment.
    Response: NMFS disagrees. The short comment period was adequate 
given the limited scope of the proposed rule.
    Comment 2: Several commenters indicated that by designating an 
official mark NMFS would be intentionally defrauding the public about 
the effects of chase and encirclement on dolphins and unnecessarily 
confusing consumers with regard to the dolphin-safe status of labeled 
tuna.
    Response: NMFS disagrees. The commenters appear to disagree with 
the standards for designating tuna products as being dolphin-safe. The 
standards are not the subject of this rule-making. The subject of this 
rule-making is an appropriate mark that can be used to show that a 
product is in compliance with the standards.
    Comment 3: To avoid fraudulent representations, one commenter 
indicated ``dolphin-safe'' should not be used on the official mark 
without additional clarifying language such as ``Dolphin Safe as 
Defined by Congressional Committee.''
    Response: NMFS disagrees. The official mark may only be used to 
label tuna products that meet the ``dolphin-safe'' standards set forth 
in the DCPIA and its implementing regulations. The words ``Dolphin 
Safe'' are defined in the DCPIA (16 U.S.C. 1385(d)). A reference to 
Congressional committees is inappropriate since the law was enacted by 
the entire Congress and signed by the President.
    Comment 4: One commenter indicated that use of the official mark 
would be damaging to alternative tracking and certification programs.
    Response: NMFS disagrees. Use of the official mark is discretionary 
and not mandated (16 U.S.C. 1385 (d)(3)(2)). Tuna products labeled as 
being dolphin-safe by any mark must meet the dolphin-safe labeling 
standards (16 U.S.C. 1385(d)) and the standards of the Tuna Tracking 
and Verification Program (16 U.S.C. 1385 (d)(3)(c)(ii)), this does not 
preclude the use of alternative marks or alternative tracking and 
certification programs.
    Comment 5: One environmental organization asserted that the 
proposed official mark would detract, or undermine, their trademarked 
``Flipper Seal of Approval'' by misleading the consumer about the 
``true'' definition of dolphin-safe tuna.
    Response: NMFS disagrees. The commenter appears to disagree with 
the standards for designating tuna products as being dolphin-safe. The 
standards are not the subject of this rule-making. The subject of this 
rule-making is an appropriate mark that can be used to show that a 
product is in compliance with the standards.
    The design and layout of the official mark and the Flipper Seal of 
Approval are very different and do not resemble each other. The 
official mark contains the words ``U.S. Department of Commerce'' in red 
letters, along with a blue-colored dolphin profile facing the upper 
left, and a tricolor (light blue, blue, and a dark blue) banner along 
the bottom of the mark that overlaps the dolphin's fluke. In contrast, 
the Flipper Seal of Approval depicts a partly submerged dolphin that is 
smiling and waving, with the word ``Flipper'' written across the top in 
bright yellow letters and the words ``Seal of Approval'' along the 
bottom of the mark. The unique official mark is easily distinguishable 
and could not mislead consumers into believing that it was the Flipper 
Seal of Approval.
    Comment 6: Several commenters felt that the development and 
designation of the official mark is a waste of taxpayer money and 
contrary to the will of United States consumers.
    Response: The DPCIA (16 U.S.C. 1385) requires the Secretary of 
Commerce to develop an official mark that may be used to label tuna 
products as ``dolphin-safe.'' The Secretary is obligated to implement 
this mandate.
    Comment 7: One commenter expressed concern that the designation of 
an official mark would limit the right of tuna companies to use an 
alternative dolphin-safe marks.
    Response: The DPCIA does not mandate the use of the official mark 
nor does it prohibit the use of alternative marks. However, as set 
forth under paragraph (d)(3)(B) of the DPCIA, whenever a tuna product 
bears the official mark, it may not bear any other mark or label that 
refers to dolphins, porpoises, or marine mammals.
    After considering the comments received, there are no changes to 
the regulatory text from the proposed rule.

Classification

Executive Order 12866

    This final rule has been determined to not be significant for 
purposes of E.O. 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule would not have a significant 
economic impact on a substantial number of small entities. NMFS 
received one comment regarding this certification. The commenter 
indicated that a Regulatory Flexibility Analysis should be completed 
before designating the official mark because of potential impacts and 
costs to small businesses to educate the consumer about the official 
mark. Because the IDCPA does not mandate the use of the official mark, 
and use of the official mark is discretionary, there are no compliance 
costs associated with use of the official mark. This comment did not 
cause NMFS to change its determination regarding the certification. As 
a result, no regulatory flexibility analysis was prepared.

List of Subjects in 50 CFR Part 216

    Dolphin-safe, Exports, Fish, Imports, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Transportation.

    Dated: May 22, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    The authority citation for part 216 continues to read as follows:


[[Page 34410]]


    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. Section 216.96 is added to read as follows:


Sec. 216.96  Official mark for ``Dolphin-safe'' tuna products.

    (a) This is the ``official mark'' (see figure 1) designated by the 
United States Department of Commerce that may be used to label tuna 
products that meet the ``dolphin-safe'' standards set forth in the 
Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and 
implementing regulations at Secs. 216.91 through 216.94:
[GRAPHIC] [TIFF OMITTED] TR30MY00.019

    (b) Location and size of the official mark. The official mark on 
labels must allow the consumer to identify the official mark and be 
similar in design and scale to figure 1. A full color version of the 
official mark is available at http://swr.ucsd.edu/dsl.htm.

[FR Doc. 00-13374 Filed 5-26-00; 8:45 am]
BILLING CODE 3510-22-P