Dolphin-Safe Tuna Labeling; Official Mark
[Federal Register: May 30, 2000 (Volume 65, Number 104)]
[Rules and Regulations]
[Page 34408-34410]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my00-10]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 991210333008902; I.D. 111099C]
RIN 0648AN37
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
908024213.
FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest
Region, Protected Resources Division, (562) 9804020, fax (562) 9804027.
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 216REGULATIONS 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:
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 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. 0013374 Filed 52600; 8:45 am]
BILLING CODE 351022P
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