34408 Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Rules and Regulations

that it is appropriate to amend

§ 54.724(a) in this respect to conform to

the rule that applies to Commissionlevel appeals. At the same time, we

recognize the need of applicants under

the schools and libraries program to

have certainty over the status of their

funding requests, and we remain

committed to timely resolution of all

appeals before us.

7. We believe this procedural

amendment will clarify our

administrative processes and prevent

confusion regarding the procedural

status of requests for review of

Administrator decisions that are

pending before the Bureau. Accordingly,

as set forth, we amend § 54.724(a) of the

Commission’s rules to clarify that a

decision of the Administrator will not

be deemed approved upon the running

of the 90-day time period for taking

action on requests for review that are

pending before the Bureau.

Ordering Clauses

8. The authority contained in sections

1–4, 201–205, 218–220, 254, 303(r), 403,

and 405 of the Communications Act of

1934, as amended, and § 1.108 of the

Commission’s rules, is adopted.

9. Part 54 of the Commission’s Rules

47 CFR part 54, is revised as set forth.

10. This action is exempt from the

notice and comment requirements of the

Administrative Procedure Act, 5 U.S.C.

553, because it affects only rules of

agency procedure or practice.

11. Because this action involves an

internal procedural matter, it is further

ordered that the rule change set forth is

May 30, 2000.

List of Subjects in 47 CFR Part 54

Universal service.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 54 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 54—UNIVERSAL SERVICE

1. The authority citation for part 54

continues to read as follows:

Authority: 47 U.S.C. 1, 4(i), 201, 205, 214,

and 254 unless otherwise noted.

2. Amend § 54.724 by revising

paragraph (a) to read as follows:

§ 54.724 Time periods for Commission

approval of Administrator decisions.

(a) The Common Carrier Bureau shall,

within ninety (90) days, take action in

response to a request for review of an

Administrator decision that is properly

before it. The Common Carrier Bureau

may extend the time period for taking

action on a request for review of an

Administrator decision for a period of

up to ninety days. The Commission may

also, at any time, extend the time period

for taking action on a request for review

of an Administrator decision pending

before the Common Carrier Bureau.

* * * * *

[FR Doc. 00–13401 Filed 5–26–00; 8:45 am]

BILLING CODE 6712–01–P

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.

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 ‘‘dolphinsafe.’’ 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 InterAmerican 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.

Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Rules and Regulations 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 ‘‘dolphinsafe’’ 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 dolphinsafe 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:

34410 Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Rules and Regulations

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:

(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