The U.S. government has further modified its dolphin-safe labelling measure, in an attempt to bring the measure into compliance with the WTO rulings against it. Here are the various elements of the change:
This interim final rule makes six amendments to the regulations, as explained below, none of which affect the labeling of tuna originating from the ETP large purse seine fishery.
First, effective upon publication in the Federal Register, this interim final rule revises the determination provisions that previously had been codified at 50 CFR 216.91(a)(2)(i) and (a)(4)(iii), and which are now codified at 50 CFR 216.91(a)(3)(v). Under the amended determination provisions, the Assistant Administrator now has the authority to require, as a condition for labeling tuna product dolphin-safe, that an on-board observer (in addition to the captain) certify the tuna was caught in a manner that meets the dolphin-safe labeling requirements where the Assistant Administrator has determined that a fishery has a regular and significant association between tuna and dolphins (similar to the association between dolphins and tuna in the ETP) and/or has a regular and significant mortality or serious injury of dolphins. This expanded authority applies equally to purse seine and other gear-type tuna fisheries other than the ETP large purse seine fishery (where an observer certificate is already required) and large-scale driftnet fisheries (which produce tuna that is ineligible for the label). See 50 CFR 216.91(a)(1) and (a)(2). In the case of either “regular and significant” determination, only observers participating in a national or international observer program acceptable to the Assistant Administrator would be able to provide the necessary observer certifications.
NMFS notes that while the revised regulations provide for one standard for making determinations, NMFS will interpret in 50 CFR 216.91(a)(3)(v) consistent with both the DPCIA and U.S. WTO obligations on a fishery-by-fishery basis. In particular, NMFS will take into account that the DPCIA instructs NMFS to impose an observer requirement where the Assistant Administrator has determined that “a regular and significant association occurs between dolphins and tuna (similar to the association between dolphins and tuna in the ETP)” for purse seine fisheries outside the ETP, while the DPCIA affords NMFS more discretion to impose an observer requirement either when evaluating other types of fisheries or when evaluating all 50 CFR 216.91(a)(3) fisheries under the mortality or serious injury prong of 50 CFR 216.91(a)(3)(v). See 16 U.S.C. 1385(d)(1)(B)(i) and (D). At the same time, NMFS will also take U.S. WTO obligations into account in any exercise of such discretion.
Second, effective upon publication in the Federal Register, this interim final rule revises the determination provisions under which the Assistant Administrator is authorized to impose an observer certification requirement if a tuna fishery is determined to have either a “regular and significant” association of dolphins or a “regular and significant” mortality or serious injury of dolphins. If the Assistant Administrator makes such a determination, NMFS will now also require a government certificate validating: (1) The catch documentation; (2) whether the tuna or tuna products meet the dolphin-safe labeling standards under 50 CFR 216.91; and (3) the chain of custody information reported to the U.S. Government or maintained by the importer of record or the U.S. processor, as applicable.
Third, this interim final rule combines the previously separate categories of “non-ETP purse seine vessel” (50 CFR 216.91(a)(2)) and “Other fisheries” (50 CFR 216.91(a)(4)) into one category under the title “Other fisheries” (revised 50 CFR 216.91(a)(3)). Under the revised 50 CFR 216.91(a)(3)(iii), captains of all vessels in fisheries not covered in paragraphs (a)(1) (i.e., the ETP large purse seine fishery) and (a)(2) (i.e., a large-scale driftnet fishery) must certify that, no purse seine net or other fishing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. This revision makes clear that tuna does not meet the dolphin-safe standard if it is harvested by vessels that intentionally deploy fishing gear (regardless of the type) on dolphins. Moreover, this revision also makes clear that captains of all vessels not covered by 50 CFR 216.91(a)(1) (where the same certification is already required) and (a)(2) (which produces tuna that is ineligible for the label) must make such a certification. To be clear, a non-purse seine vessel intentionally deploys its fishing gear on a dolphin(s) where a vessel intentionally targets a dolphin(s) with the fishing gear. However, as is the case with intentional encirclement, the deployment must be intentional, and where a dolphin(s) is seen only after the fishing gear was deployed, then the vessel did not intentionally deploy the fishing gear on a dolphin(s). This revised certification will apply to tuna caught by a vessel on a fishing trip that begins on or after May 21, 2016. Until that date, the certifications provided by paragraphs (a)(3)(i) or (ii), as applicable, will continue to apply.
Fourth, this interim final rule modifies the FCO and the requirements for the associated captain's statement by requiring captains of vessels operating in “other fisheries” to certify completion of a NMFS Tuna Tracking and Verification Program (TTVP) dolphin-safe training course (training course). The training course will include information on: (1) Identifying dolphins of the taxonomic family Delphinidae; (2) identifying intentional gear deployment on or encirclement of dolphins; (3) identifying dolphin mortality and serious injury; and (4) physically separating dolphin-safe tuna from non-dolphin-safe tuna from the time of capture through unloading. The training course is available on the NMFS TTVP Internet home page at http://www.nmfs.noaa.gov/pr/dolphinsafe. Captain certification of completion of the training course applies to all tuna product labeled dolphin-safe if the product contains tuna harvested on a fishing trip that begins on or after May 21, 2016. Existing captain's statement templates found at the NMFS TTVP Internet home page have been modified and may be used to certify completion of the NMFS TTVP training course. The 2013 final rule required all completed FCOs to have associated captain's statement certifications for all tuna harvested other than the ETP large purse seine fishery.
As a starting point, NMFS will translate the TTVP training course into a sufficient number of languages to ensure that the vast majority of languages spoken by captains producing tuna for the U.S. tuna product market are covered by the translation. Internet links to the translated courses will be posted on the TTVP Internet home page at http://www.nmfs.noaa.gov/pr/dolphinsafe as they become available. In addition to posting on the Internet translated versions of the training course, the United States Government will send a démarche to embassies of all countries that supply tuna product to the United States, explaining the new requirements and enclosing a copy of the training course. The démarche will also include the TTVP Internet home page address, as well as a copy of this interim final rule. Providing this information to embassies is intended to aid in disseminating the training course to tuna captains as well as in the dissemination of the new U.S. dolphin-safe tuna labeling requirements to processors.
Fifth, this interim final rule requires U.S. processors and importers of record to collect and retain for 2 years, information on each point in the chain of custody regarding the shipment of the tuna or tuna product to the point of entry into U.S. commerce as a recordkeeping requirement on the part of that U.S. processor or importer of record. The information must be maintained at the place of business, or be accessible from that place of business through, for example, an Internet connection to an off site server where the information is held. This is to ensure that information is readily available to NMFS to allow it to trace the tuna or tuna product back to the point of harvest. As is the case for the Traceability Proposed Rule (discussed above), such information would include records regarding each custodian of the tuna or tuna product, including, as applicable, transshippers, processors, storage facilities, and wholesalers/distributors. The retained information must be provided to NMFS upon request and must be sufficient for NMFS to conduct a trace back to verify that the tuna product certified as dolphin-safe to NMFS, in fact, meets the dolphin-safe labeling requirements for such certification. NMFS expects that typical supply chain records that are kept in the normal course of business, including declarations by harvesting and carrier vessels, bills of lading and forms voluntarily used or required under foreign government or international monitoring programs, which include such information as the identity of the custodian, the type of processing, and the weight of the product, would provide sufficient information for NMFS to conduct a trace back. In addition, the information maintained must be sufficient in order to trace any non-dolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip to prove that such non-dolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading.
These chain of custody requirements augment existing requirements that dolphin-safe tuna shall, from the time of capture, during unloading, storage, transfer, and processing, be kept separate from non-dolphin safe tuna set out in 50 CFR 216.91(a)(4) and 50 CFR 216.93(c)(2) and (3). These chain of custody requirements apply to all tuna product labeled dolphin-safe if the product contains tuna harvested on a fishing trip that begins on or after May 21, 2016.
Sixth, this interim final rule makes several non-substantive modifications to 50 CFR 216.91 including redesignating regulatory text paragraphs; updating Internet Web addresses to the NMFS TTVP Internet home page located at http://www.nmfs.noaa.gov/pr/dolphinsafe;and changing the word “distributor” to “wholesaler/distributor” for consistency in the regulatory text. NMFS is publishing 50 CFR 216.91 in its entirety (including provisions that were not changed) for the convenience of readers and to improve clarity.
NMFS has broad authority to issue regulations to implement the DPCIA, including specifically the authority to establish a domestic tracking and verification program to track tuna labeled dolphin-safe, and to adjust such regulations as appropriate to implement an international tracking and verification program (16 U.S.C. 1385(f)). Among other things, this rule is expected to better ensure that consumers are more easily able to determine the veracity of dolphin-safe labels on tuna products they purchase, in accordance with the findings of the DPCIA (16 U.S.C. 1385(b)).
A couple questions:
-- Does this new measure bring the U.S. into compliance?
-- What steps will the U.S. take now to prove its compliance? Note that Mexico has already proposed suspension of concessions, and the U.S. has objected to the level of suspension, so the matter has been referred to arbitration. Is the U.S. hoping the arbitrator will look into whether compliance has been achieved? Or will it request another Article 21.5 panel to examine this issue?
