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(continued)
following public notice and opportunity for comment, that such
information will not contribute to the protection of marine mammals
or the understanding of the marine ecosystem, including fishery
resources and seabirds.
(6) The Secretary shall not be required to place an observer on a
vessel in a fishery if the Secretary finds that -
(A) in a situation where harvesting vessels are delivering fish
to a processing vessel and the catch is not taken on board the
harvesting vessel, statistically reliable information can be
obtained from an observer on board the processing vessel to which
the fish are delivered;
(B) the facilities of a vessel for the quartering of an
observer, or for carrying out observer functions, are so
inadequate or unsafe that the health or safety of the observer or
the safe operation of the vessel would be jeopardized; or
(C) for reasons beyond the control of the Secretary, an
observer is not available.
(7)(A) An observer on a vessel (or the observer's personal
representative) under the requirements of this section or section
1374 of this title that is ill, disabled, injured, or killed from
service as an observer on that vessel may not bring a civil action
under any law of the United States for that illness, disability,
injury, or death against the vessel or vessel owner, except that a
civil action may be brought against the vessel owner for the
owner's willful misconduct.
(B) This paragraph does not apply if the observer is engaged by
the owner, master, or individual in charge of a vessel to perform
any duties in service to the vessel.
(8) There are authorized to be appropriated to the Department of
Commerce for the purposes of carrying out this subsection not to
exceed $2,700,000 for fiscal year 1989 and not to exceed $8,000,000
for each of the fiscal years 1990, 1991, 1992, and 1993.
(f) Alternative observation program
(1) The Secretary shall establish an alternative observation
program to provide statistically reliable information on the
species and number of marine mammals incidentally taken in those
fisheries identified pursuant to subsection (b)(1)(A)(i) of this
section for which the required level of observer coverage has not
been met or for any other fisheries about which such reliable
information is not otherwise available. The alternative program
shall include, but not be limited to, direct observation of fishing
activities from vessels, airplanes, or points on shore.
(2) Individuals engaged in the alternative observation program
shall collect scientific information on the fisheries subject to
observation, consistent with the requirements of paragraph (1) and
subsection (e)(4) and (5) of this section. All information
collected shall be subject to the provisions of subsection (j) of
this section.
(g) Review of information and evaluation of effects of incidental
taking on population stocks of marine mammals; promulgation of
emergency regulations to mitigate immediate and significant
adverse impacts; action to mitigate non-immediate impacts
(1) The Secretary shall review information regarding the
incidental taking of marine mammals and evaluate the effects of
such incidental taking on the affected population stocks of marine
mammals.
(2) If the Secretary finds, based on the information received
from the programs established under subsections (c), (d), (e), and
(f) of this section, that the incidental taking of marine mammals
in a fishery is having an immediate and significant adverse impact
on a marine mammal population stock or, in the case of Steller sea
lions and North Pacific fur seals, that more than 1,350 and 50,
respectively, will be incidentally killed during a calendar year,
the Secretary shall consult with appropriate Regional Fishery
Management Councils and State fishery managers and prescribe
emergency regulations to prevent to the maximum extent practicable
any further taking. Any emergency regulations prescribed under this
paragraph -
(A) shall, to the maximum extent practicable, avoid interfering
with existing State or regional fishery management plans;
(B) shall be published in the Federal Register together with
the reasons therefor;
(C) shall remain in effect for not more than one hundred and
eighty days or until the end of the fishing season, whichever is
earlier; and
(D) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination if
the Secretary determines the reasons for the emergency
regulations no longer exist.
In prescribing emergency regulations under this paragraph, the
Secretary shall take into account the economics of the fishery
concerned and the availability of existing technology to prevent or
minimize incidental taking of marine mammals.
(3) If the Secretary finds, based on information received from
the programs established under subsections (c), (d), (e), and (f)
of this section, that incidental taking of marine mammals in a
fishery is not having an immediate and significant adverse impact
on a marine mammal population stock but that it will likely have a
significant adverse impact over a period of time longer than one
year, the Secretary shall request the appropriate Regional Fishery
Management Council or State to initiate, recommend, or take such
action within its authority as it considers necessary to mitigate
the adverse impacts, including adjustments to requirements on
fishing times or areas or the imposition of restrictions on the use
of vessels or gear.
(4) The Secretary shall impose appropriate conditions and
restrictions on an exemption granted under subsection (b) of this
section if -
(A) a Regional Fishery Management Council or State does not act
in a reasonable period of time on a request made by the Secretary
under paragraph (3); or
(B) if the Secretary determines after notice and opportunity
for public comment that the purposes of this section would be
better served by such action.
(h) Information and management system for processing and analyzing
reports and information; accessibility to public
The Secretary shall design and implement an information
management system capable of processing and analyzing reports
received from the programs established under subsections (c), (d),
(e), and (f) of this section, and other relevant sources, including
Federal and State enforcement authorities, marine mammal stranding
networks, and the marine mammal researchers. The information shall
be made accessible to the public on a continuing basis, but in any
case no later than six months after it is received, subject to the
provisions of subsection (j) of this section.
(i) Utilization of services of State and Federal agencies and
private entities
When carrying out the Secretary's responsibilities under
subsections (b), (d), (e), (f), and (h) of this section, the
Secretary shall, to the maximum extent practicable, utilize the
services and programs of State agencies, Federal agencies
(including programs established by Regional Fishery Management
Councils), marine fisheries commissions, universities, and private
entities, on a reimbursable basis or otherwise. The Secretary is
authorized to enter into contracts and agreements to carry out his
or her responsibilities and shall establish appropriate guidelines
to ensure that other programs used or contracted for will meet the
same standards as a program established by the Secretary. A person
contracting with the Secretary to provide observer services under
subsection (e) of this section must provide evidence of financial
responsibility in an amount and form prescribed by the Secretary to
compensate employees (or their survivors) adequately for any
illness, disability, injury, or death from service on a vessel.
(j) Confidentiality of information; exceptions
(1) Any information collected under subsection (c), (d), (e),
(f), or (h) of this section shall be confidential and shall not be
disclosed except -
(A) to Federal employees whose duties require access to such
information;
(B) to State employees pursuant to an agreement with the
Secretary that prevents public disclosure of the identity or
business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries,
to employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and
monitoring.
(2) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the
Secretary shall release or make public any such information in
aggregate, summary, or other form which does not directly or
indirectly disclose the identity or business of any person.
(k) Regulations
The Secretary, in consultation with any other Federal agency to
the extent that such agency may be affected, shall prescribe such
regulations as necessary and appropriate to carry out the purposes
of this section.
(l) Suggested regime governing incidental taking of marine mammals
following termination of interim exemptions
(1) The Chairman of the Marine Mammal Commission shall, after
consultation with interested parties and not later than February 1,
1990, transmit to the Secretary and make available to the public
recommended guidelines to govern the incidental taking of marine
mammals in the course of commercial fishing operations, other than
those subject to section 1374(h)(2) of this title, after October 1,
1993. Such guidelines shall be developed by the Commission and its
Committee of Scientific Advisers on Marine Mammals and shall -
(A) be designed to provide a scientific rationale and basis for
determining how many marine mammals may be incidentally taken
under a regime to be adopted to govern such taking after October
1, 1993;
(B) be based on sound principles of wildlife management, and be
consistent with and in furtherance of the purposes and policies
set forth in this chapter; and
(C) to the maximum extent practicable, include as factors to be
considered and utilized in determining permissible levels of such
taking -
(i) the status and trends of the affected marine mammal
population stocks;
(ii) the abundance and annual net recruitment of such stocks;
(iii) the level of confidence in the knowledge of the
affected stocks; and
(iv) the extent to which incidental taking will likely cause
or contribute to their decline or prevent their recovery to
optimum sustainable population levels.
(2) The Secretary shall advise the Chairman of the Commission in
writing if the Secretary determines that any additional information
or explanation of the Chairman's recommendations is needed, and the
Chairman shall respond in writing to any such request by the
Secretary.
(3) On or before February 1, 1991, the Secretary, after
consultation with the Marine Mammal Commission, Regional Fishery
Management Councils, and other interested governmental and
nongovernmental organizations, shall publish in the Federal
Register, for public comment, the suggested regime that the
Secretary considers should, if authorized by enactment of any
additional legislation, govern incidental taking of marine mammals,
other than those subject to section 1374(h)(2) of this title, after
October 1, 1993. The suggested regime shall include -
(A) the scientific guidelines to be used in determining
permissible levels of incidental taking;
(B) a description of the arrangements for consultation and
cooperation with other Federal agencies, the appropriate Regional
Fishery Management Councils and States, the commercial fishing
industry, and conservation organizations; and
(C) a summary of such regulations and legislation as would be
necessary to implement the suggested regime.
(4) On or before January 1, 1992, the Secretary, after
consultation with the Marine Mammal Commission, and consideration
of public comment, shall transmit to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives
recommendations pertaining to the incidental taking of marine
mammals, other than those subject to section 1374(h)(2) of this
title, after October 1, 1993. The recommendations shall include -
(A) the suggested regime developed under paragraph (3) of this
subsection as modified after comment and consultations;
(B) a proposed schedule for implementing the suggested regime;
and
(C) such recommendations for additional legislation as the
Secretary considers necessary or desirable to implement the
suggested regime.
(m) Consultation with Secretary of the Interior
The Secretary shall consult with the Secretary of the Interior
prior to taking actions or making determinations under this section
that affect or relate to species or population stocks of marine
mammals for which the Secretary of the Interior is responsible
under this subchapter.
(n) Owner of fixed commercial fishing gear deemed owner of vessel
engaged in fishery in which gear deployed
For the purposes of this section, the owner of fixed or other
commercial fishing gear that is deployed with or without the use of
a vessel shall be deemed to be an owner of a vessel engaged in the
fishery in which that gear is deployed.
(o) Definitions
As used in this section -
(1) the term "fishery" has the same meaning as it does in
section 1802(8) (!2) of this title.
(2) the term "Secretary" means the Secretary of Commerce.
(3) the term "vessel engaged in a fishery" means a fishing
vessel as defined in section 2101(11a) of title 46 or a fish
processing vessel as defined in section 2101(11b) of that title,
which is engaged in fishery.
(4) the term "vessel of the United States" has the same meaning
as it does in section 1802(27) (!2) of this title.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 114, as added Pub. L. 100-711, Sec.
2(a)(2), Nov. 23, 1988, 102 Stat. 4755; amended Pub. L. 103-86,
Sept. 30, 1993, 107 Stat. 930; Pub. L. 103-228, Mar. 31, 1994, 108
Stat. 281; Pub. L. 103-238, Sec. 15(a), Apr. 30, 1994, 108 Stat.
559; Pub. L. 104-43, title IV, Sec. 404(a)(1), Nov. 3, 1995, 109
Stat. 390; Pub. L. 104-208, div. A, title I, Sec. 101(a) [title II,
Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009-41.)
-REFTEXT-
REFERENCES IN TEXT
Section 1802 of this title, referred to in subsec. (o)(1), (4),
was subsequently amended, and section 1802(8) and (27) no longer
defines the terms "fishery" and "vessel of the United States".
However, such terms are defined elsewhere in that section.
-MISC1-
AMENDMENTS
1996 - Subsecs. (a)(1), (b)(2)(B)(ii), (o)(1), (4). Pub. L.
104-208 made technical amendment to references in original act
which appear in text as references to sections 1802(8), (27) and
1824(b) of this title.
1995 - Pub. L. 104-43 amended directory language of Pub. L.
103-238. See 1994 Amendment note below.
1994 - Subsec. (a)(1). Pub. L. 103-238, as amended by Pub. L.
104-43, substituted "until superseded by regulations prescribed
under section 1387 of this title, or until September 1, 1995,
whichever is earlier," for "ending May 1, 1994."
Pub. L. 103-228 substituted "May 1, 1994." for "April 1, 1994,".
1993 - Subsec. (a)(1). Pub. L. 103-86 substituted "April 1, 1994"
for "October 1, 1993".
EFFECTIVE DATE OF 1996 AMENDMENT
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L.
104-208 provided that the amendment made by that section is
effective 15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1995 AMENDMENT
Section 404(a)(2) of Pub. L. 104-43 provided that: "The amendment
made by paragraph (1) [amending this section] shall be effective on
and after April 30, 1994."
-TRANS-
ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES
Committee on Merchant Marine and Fisheries of House of
Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.
Committee on Merchant Marine and Fisheries of House of
Representatives treated as referring to Committee on Resources of
House of Representatives in case of provisions relating to
fisheries, wildlife, international fishing agreements, marine
affairs (including coastal zone management) except for measures
relating to oil and other pollution of navigable waters, or
oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a
note preceding section 21 of Title 2, The Congress.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1372, 1384, 1387 of this
title.
-FOOTNOTE-
(!1) So in original. Probably should not be capitalized.
(!2) See References in Text note below.
-End-
-CITE-
16 USC Sec. 1383b 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1383b. Status review; conservation plans
-STATUTE-
(a) Determinations by rule; notice and hearing; findings; final
rule on status of species or stock involved
(1) In any action by the Secretary to determine if a species or
stock should be designated as depleted, or should no longer be
designated as depleted, regardless of whether such action is taken
on the initiative of the Secretary or in response to a petition for
a status review, the Secretary shall only make such a determination
by issuance of a rule, after notice and opportunity for public
comment and after a call for information in accordance with
paragraph (2).
(2) The Secretary shall make any determination described in
paragraph (1) solely on the basis of the best scientific
information available. Prior to the issuance of a proposed rule
concerning any such determination, the Secretary shall publish in
the Federal Register a call to assist the Secretary in obtaining
scientific information from individuals and organizations concerned
with the conservation of marine mammals, from persons in any
industry which might be affected by the determination, and from
academic institutions. In addition, the Secretary shall utilize, to
the extent the Secretary determines to be feasible, informal
working groups of interested parties and other methods to gather
the necessary information.
(3)(A) If the Secretary receives a petition for a status review
as described in paragraph (1), the Secretary shall publish a notice
in the Federal Register that such a petition has been received and
is available for public review.
(B) Within sixty days after receipt of the petition, the
Secretary shall publish a finding in the Federal Register as to
whether the petition presents substantial information indicating
that the petitioned action may be warranted.
(C) If the Secretary makes a positive finding under subparagraph
(B), the Secretary shall include in the Federal Register notice, a
finding that -
(i) a review of the status of the species or stock will be
commenced promptly; or
(ii) a prompt review of the petition is precluded by other
pending status determination petitions and that expeditious
progress is being made to process pending status determination
petitions under this subchapter.
In no case after making a finding under this subparagraph shall the
Secretary delay commencing a review of the status of a species or
stock for more than one hundred and twenty days after receipt of
the petition.
(D) No later than two hundred and ten days after the receipt of
the petition, the Secretary shall publish in the Federal Register a
proposed rule as to the status of the species or stock, along with
the reasons underlying the proposed status determination. Persons
shall have at least sixty days to submit comments on such a
proposed rule.
(E) Not later than ninety days after the close of the comment
period on a proposed rule issued under subparagraph (D), the
Secretary shall issue a final rule on the status of the species or
stock involved, along with the reasons for the status
determination. If the Secretary finds with respect to such a
proposed rule that there is substantial disagreement regarding the
sufficiency or accuracy of the available information relevant to a
status determination, the Secretary may delay the issuance of a
final rule for a period of not more than six months for purposes of
soliciting additional information.
(F) Notwithstanding subparagraphs (D) and (E) of this paragraph
and section 553 of title 5, the Secretary may issue a final rule as
to the status of a species or stock any time sixty or more days
after a positive finding under subparagraph (B) if the Secretary
determines there is substantial information available to warrant
such final status determination and further delay would pose a
significant risk to the well-being of any species or stock. Along
with the final rule, the Secretary shall publish in the Federal
Register detailed reasons for the expedited determination.
(b) Conservation plans; preparation and implementation
(1) The Secretary shall prepare conservation plans -
(A) By (!1) December 31, 1989, for North Pacific fur seals;
(B) by December 31, 1990, for Steller sea lions; and
(C) as soon as possible, for any species or stock designated as
depleted under this subchapter, except that a conservation plan
need not be prepared if the Secretary determines that it will not
promote the conservation of the species or stock.
(2) Each plan shall have the purpose of conserving and restoring
the species or stock to its optimum sustainable population. The
Secretary shall model such plans on recovery plans required under
section 1533(f) of this title.
(3) The Secretary shall act expeditiously to implement each
conservation plan prepared 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 reduction plan is
necessary to reduce the incidental taking of marine mammals in the
course of commercial fishing operations from a strategic stock, or
for species or stocks which interact with a commercial fishery for
which the Secretary has made a determination under section
1387(f)(1) of this title, any conservation plan prepared 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.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 115, as added Pub. L. 100-711, Sec.
3(a), Nov. 23, 1988, 102 Stat. 4763; amended Pub. L. 103-238, Sec.
8, Apr. 30, 1994, 108 Stat. 543.)
-MISC1-
AMENDMENTS
1994 - Subsec. (b)(4). Pub. L. 103-238 added par. (4).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1374 of this title.
-FOOTNOTE-
(!1) So in original. Probably should not be capitalized.
-End-
-CITE-
16 USC Sec. 1384 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1384. Authorization of appropriations
-STATUTE-
(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 of this chapter,
$12,138,000 for fiscal year 1994, $12,623,000 for fiscal year 1995,
$13,128,000 for fiscal year 1996, $13,653,000 for fiscal year 1997,
$14,200,000 for fiscal 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 carrying 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.
-SOURCE-
(Pub. L. 92-522, title I, Sec. 116, formerly Sec. 114, Oct. 21,
1972, 86 Stat. 1043; Pub. L. 95-136, Sec. 2, Oct. 18, 1977, 91
Stat. 1167; Pub. L. 95-316, Sec. 3, July 10, 1978, 92 Stat. 380;
renumbered Sec. 116, Pub. L. 100-711, Sec. 2(a)(1), Nov. 23, 1988,
102 Stat. 4755; Pub. L. 103-238, Sec. 9(a), Apr. 30, 1994, 108
Stat. 543.)
-MISC1-
PRIOR PROVISIONS
Provisions similar to those in this section were contained in
Pub. L. 97-58, Sec. 7(a), (b), Oct. 9, 1981, 95 Stat. 987; Pub. L.
98-364, title I, Sec. 104(1), (2), July 17, 1984, 98 Stat. 442;
Pub. L. 100-711, Sec. 6(1), (2), Nov. 23, 1988, 102 Stat. 4771,
prior to repeal by Pub. L. 103-238, Sec. 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 September 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 Oceanic and Atmospheric
Administration is operating to carry out such functions and
responsibilities as it may have been given under this subchapter
(other than sections 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 exceed $760,000 for the fiscal year ending September 30,
1980, and not to exceed $876,000 for the fiscal year ending
September 30, 1981 to enable the Department of the Interior to
carry out such functions and responsibilities 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, Sec. 3(1), added reference to
sections 1379 and 1380 of this title and provisions authorizing
appropriations for the fiscal years ending Sept. 30, 1979, Sept.
30, 1980, and Sept. 30, 1981.
Subsec. (b). Pub. L. 95-316, Sec. 3(2), added reference to
sections 1379 and 1380 of this title and provisions authorizing
appropriations for the fiscal years Sept. 30, 1979, Sept. 30, 1980,
and Sept. 30, 1981.
1977 - Subsec. (a). Pub. L. 95-136, Sec. 2(1), inserted ", and
not to exceed $11,500,000 for the fiscal year ending September 30,
1978," after "fiscal years".
Subsec. (b). Pub. L. 95-136, Sec. 2(2), inserted ", and not to
exceed $850,000 for the fiscal year ending September 30, 1978"
after "thereafter".
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1388 of this title.
-End-
-CITE-
16 USC Sec. 1385 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1385. Dolphin protection
-STATUTE-
(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)
(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)
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.
-SOURCE-
(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.)
-COD-
CODIFICATION
Section was not enacted as part of the Marine Mammal Protection
Act of 1972 which comprises this chapter.
-MISC1-
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-
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.
-MISC2-
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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1371, 1414a of this
title.
-FOOTNOTE-
(!1) So in original. Probably should be "this section".
(!2) So in original. Probably should be "this subsection".
-End-
-CITE-
16 USC Sec. 1386 01/19/04
-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 31 - MARINE MAMMAL PROTECTION
SUBCHAPTER II - CONSERVATION AND PROTECTION OF MARINE MAMMALS
-HEAD-
Sec. 1386. Stock assessments
-STATUTE-
(a) In general
Not later than August 1, 1994, the Secretary shall, in
consultation with the appropriate regional scientific review group
established under subsection (d) of this section, 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 affected stock,
including any seasonal or temporal variation in such range;
(2) provide for such stock the minimum population estimate,
current and maximum net productivity rates, and current
population trend, including a description of the information upon (continued)