IIA
104TH CONGRESS
2D SESSION
H.R. 2823
IN THE SENATE OF THE UNITED STATES
AUGUST 1, 1996
Received; read twice and referred to the Committee on Commerce, Science,
and Transportation
AN ACT
To amend the Marine Mammal Protection Act of 1972 to
support the International Dolphin Conservation Program
in the eastern tropical Pacific Ocean, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE; REFERENCES.
(a) SHORT TITLE.—This Act may be cited as the
‘‘International Dolphin Conservation Program Act’’.
(b) REFERENCES TO MARINE MAMMAL PROTECTION
ACT.—Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of the Marine Mammal Protec-
tion Act of 1972 (16 U.S.C. 1361 et seq.).
SEC. 2. PURPOSE AND FINDINGS.
(a) PURPOSE.—The purposes of this Act are—
(1) to give effect to the Declaration of Panama,
signed October 4, 1995, by the Governments of
Belize, Colombia, Costa Rica, Ecuador, France,
Honduras, Mexico, Panama, Spain, the United
States of America, Vanuatu, and Venezuela, includ-
ing the establishment of the International Dolphin
Conservation Program, relating to the protection of
dolphins and other species, and the conservation and
management of tuna in the eastern tropical Pacific
Ocean;
(2) to recognize that nations fishing for tuna in
the eastern tropical Pacific Ocean have achieved sig-
nificant reductions in dolphin mortality associated
with that fishery; and
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(3) to eliminate the ban on imports of tuna
from those nations that are in compliance with the
International Dolphin Conservation Program.
(b) FINDINGS.—The Congress finds the following:
(1) The nations that fish for tuna in the east-
ern tropical Pacific Ocean have achieved significant
reductions in dolphin mortalities associated with the
purse seine fishery from hundreds of thousands an-
nually to fewer than 5,000 annually.
(2) The provisions of the Marine Mammal Pro-
tection Act of 1972 that impose a ban on imports
from nations that fish for tuna in the eastern tropi-
cal Pacific Ocean have served as an incentive to re-
duce dolphin mortalities.
(3) Tuna canners and processors of the United
States have led the canning and processing industry
in promoting a dolphin-safe tuna market.
(4) 12 signatory nations to the Declaration of
Panama, including the United States, agreed under
that Declaration to require that the total annual dol-
phin mortality in the purse seine fishery for yellow-
fin tuna in the eastern tropical Pacific Ocean not ex-
ceed 5,000, with a commitment and objective to pro-
gressively reduce dolphin mortality to a level ap-
proaching zero through the setting of annual limits.
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SEC. 3. DEFINITIONS.
Section 3 (16 U.S.C. 1362) is amended by adding
at the end the following new paragraphs:
‘‘(28) The term ‘International Dolphin Con-
servation Program’ means the international program
established by the agreement signed in La Jolla,
California, in June 1992, as formalized, modified,
and enhanced in accordance with the Declaration of
Panama, that requires—
‘‘(A) that the total annual dolphin mortal-
ity in the purse seine fishery for yellowfin tuna
in the eastern tropical Pacific Ocean not exceed
5,000, with the commitment and objective to
progressively reduce dolphin mortality to levels
approaching zero through the setting of annual
limits;
‘‘(B) the establishment of a per-stock per-
year mortality limit for dolphins, for each year
through the year 2000, of between 0.2 percent
and 0.1 percent of the minimum population es-
timate;
‘‘(C) beginning with the year 2001, that
the per-stock per-year mortality of dolphin not
exceed 0.1 percent of the minimum population
estimate;
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‘‘(D) that if the mortality limit set forth in
subparagraph (A) is exceeded, all sets on dol-
phins shall cease for the fishing year concerned;
‘‘(E) that if the mortality limit set forth in
subparagraph (B) or (C) is exceeded sets on
such stock and any mixed schools containing
members of such stock shall cease for that fish-
ing year;
‘‘(F) in the case of subparagraph (B), to
conduct a scientific review and assessment in
1998 of progress toward the year 2000 objec-
tive and consider recommendations as appro-
priate; and
‘‘(G) in the case of subparagraph (C), to
conduct a scientific review and assessment re-
garding that stock or those stocks and consider
further recommendations;
‘‘(H) the establishment of a per-vessel
maximum annual dolphin mortality limit con-
sistent with the established per-year mortality
caps; and
‘‘(I) the provision of a system of incentives
to vessel captains to continue to reduce dolphin
mortality, with the goal of eliminating dolphin
mortality.
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‘‘(29) The term ‘Declaration of Panama’ means
the declaration signed in Panama City, Republic of
Panama, on October 4, 1995.’’.
SEC. 4. AMENDMENTS TO TITLE I.
(a) AUTHORIZATION
FOR INCIDENTAL TAKING.—
Section 101(a)(2) (16 U.S.C. 1371(a)(2)) is amended as
follows:
(1) By inserting after the first sentence ‘‘Such
authorizations may also be granted under title III
with respect to the yellowfin tuna fishery of the east-
ern tropical Pacific Ocean, subject to regulations
prescribed under that title by the Secretary without
regard to section 103.’’.
(2) By striking the semicolon in the second sen-
tence and all that follows through ‘‘practicable’’.
(b) DOCUMENTARY EVIDENCE.—Section 101(a) (16
U.S.C. 1371(a)) is amended by striking so much of para-
graph (2) as follows subparagraph (A) and as precedes
subparagraph (C) and inserting:
‘‘(B) in the case of yellowfin tuna har-
vested with purse seine nets in the eastern trop-
ical Pacific Ocean, and products therefrom, to
be exported to the United States, shall require
that the government of the exporting nation
provide documentary evidence that—
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‘‘(i) the tuna or products therefrom
were not banned from importation under
this paragraph before the effective date of
the International Dolphin Conservation
Program Act;
‘‘(ii) the tuna or products therefrom
were harvested after the effective date of
the International Dolphin Conservation
Program Act by vessels of a nation which
participates in the International Dolphin
Conservation Program, such harvesting na-
tion is either a member of the Inter-Amer-
ican Tropical Tuna Commission or has ini-
tiated (and within 6 months thereafter
completed) all steps (in accordance with
article V, paragraph 3 of the Convention
establishing the Inter-American Tropical
Tuna Commission) necessary to become a
member of that organization;
‘‘(iii) such nation is meeting the obli-
gations of the International Dolphin Con-
servation Program and the obligations of
membership in the Inter-American Tropi-
cal Tuna Commission, including all finan-
cial obligations;
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‘‘(iv) the total dolphin mortality per-
mitted under the International Dolphin
Conservation Program will not exceed
5,000 in 1996, or in any year thereafter,
consistent with the commitment and objec-
tive of progressively reducing dolphin mor-
tality to levels approaching zero through
the setting of annual limits and the goal of
eliminating dolphin mortality; and
‘‘(v) the tuna or products therefrom
were harvested after the effective date of
the International Dolphin Conservation
Program Act by vessels of a nation which
participates in the International Dolphin
Conservation Program, and such harvest-
ing nation has not vetoed the participation
by any other nation in such Program.’’.
(c) ACCEPTANCE OF EVIDENCE COVERAGE.—Section
101 (16 U.S.C. 1371) is amended by adding at the end
the following new subsections:
‘‘(d) ACCEPTANCE OF DOCUMENTARY EVIDENCE.—
The Secretary shall not accept documentary evidence re-
ferred to in section 101(a)(2)(B) as satisfactory proof for
purposes of section 101(a)(2) if—
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with the International Dolphin Conservation Pro-
gram.
‘‘(e) EXEMPTION.—The provisions of this Act shall
not apply to a citizen of the United States who incidentally
takes any marine mammal during fishing operations out-
side the United States exclusive economic zone (as defined
in section 3(6) of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1802(6))) when employed on
a foreign fishing vessel of a harvesting nation which is
in compliance with the International Dolphin Conservation
Program.’’.
(d) ANNUAL PERMITS.—Section 104(h) is amended
to read as follows:
‘‘(h) ANNUAL PERMITS.—(1) Consistent with the
regulations prescribed pursuant to section 103 and the re-
quirements of section 101, the Secretary may issue an an-
nual permit to a United States vessel for the taking of
such marine mammals, and shall issue regulations to cover
the use of any such annual permits.
‘‘(2) Annual permits described in paragraph (1) for
the incidental taking of marine mammals in the course
of commercial purse seine fishing for yellowfin tuna in the
eastern tropical Pacific Ocean shall be governed by section
304, subject to the regulations issued pursuant to section
302.’’.
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(e) REVISIONS
AND FUNDING SOURCES.—Section
108(a)(2) (16 U.S.C. 1378(a)(2)) is amended as follows:
(1) By striking ‘‘and’’ at the end of subpara-
graph (A).
(2) By adding at the end the following:
‘‘(C) discussions to expeditiously negotiate
revisions to the Convention for the Establish-
ment of an Inter-American Tropical Tuna Com-
mission (1 UST 230, TIAS 2044) which will in-
corporate conservation and management provi-
sions agreed to by the nations which have
signed the Declaration of Panama;
‘‘(D) a revised schedule of annual con-
tributions to the expenses of the Inter-American
Tropical Tuna Commission that is equitable to
participating nations; and
‘‘(E) discussions with those countries par-
ticipating or likely to participate in the Inter-
national Dolphin Conservation Program, to
identify alternative sources of funds to ensure
that needed research and other measures bene-
fiting effective protection of dolphins, other ma-
rine species, and the marine ecosystem;’’.
(f) REPEAL
OF NAS REVIEW.—Section 110 (16
U.S.C. 1380) is amended as follows:
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(1) By redesignating subsection (a)(1) as sub-
section (a).
(2) By striking subsection (a)(2).
(g) LABELING OF TUNA PRODUCTS.—Paragraph (1)
of section 901(d) of the Dolphin Protection Consumer In-
formation Act (16 U.S.C. 1385(d)(1)) is amended to read
as follows:
‘‘(1) It is a violation of section 5 of the Federal Trade
Commission Act for any producer, importer, exporter, dis-
tributor, 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 any of the following:
‘‘(A) Tuna harvested on the high seas by a ves-
sel engaged in driftnet fishing.
‘‘(B) Tuna harvested in the eastern tropical Pa-
cific Ocean by a vessel using purse seine nets unless
the tuna is considered dolphin safe under paragraph
(2).
‘‘(C) Tuna harvested outside the eastern tropi-
cal Pacific Ocean by a vessel using purse seine nets
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unless the tuna is considered dolphin safe under
paragraph (3).
‘‘(D) Tuna harvested by a vessel engaged in
any fishery identified by the Secretary pursuant to
paragraph (4) as having a regular and significant in-
cidental mortality of marine mammals.’’.
(h) DOLPHIN SAFE TUNA.—(1) Paragraph (2) of
section 901(d) of the Dolphin Protection Consumer Infor-
mation Act (16 U.S.C. 1385(d)(2)) is amended to read
as follows:
‘‘(2)(A) For purposes of paragraph (1)(B), a tuna
product that contains tuna harvested in the eastern tropi-
cal Pacific Ocean by a vessel using purse seine nets is dol-
phin safe if the vessel is of a type and size that the Sec-
retary has determined, consistent with the International
Dolphin Conservation Program, is not capable of deploy-
ing its purse seine nets on or to encircle dolphins, or if
the product meets the requirements of subparagraph (B).
‘‘(B) For purposes of paragraph (1)(B), a tuna prod-
uct that contains tuna harvested in the eastern tropical
Pacific Ocean by a vessel using purse seine nets is dolphin
safe if the product is accompanied by a written statement
executed by the captain of the vessel which harvested the
tuna certifying that no dolphins were killed during the sets
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in which the tuna were caught and the product is accom-
panied 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 partici-
pating nation whose national program meets the re-
quirements of the International Dolphin Conserva-
tion Program,
which states that there was an observer approved by the
International Dolphin Conservation Program on board the
vessel during the entire trip and documents that no dol-
phins were killed during the sets in which the tuna con-
cerned were caught.
‘‘(C) The statements referred to in clauses (i), (ii),
and (iii) of subparagraph (B) shall be valid only if they
are endorsed in writing by each exporter, importer, and
processor of the product, and if such statements and en-
dorsements comply with regulations promulgated by the
Secretary which would provide for the verification of tuna
products as dolphin safe.’’.
(2) Subsection (d) of section 901 of the Dolphin Pro-
tection Consumer Information Act (16 U.S.C. 1385(d)) is
amended by adding the following new paragraphs at the
end thereof:
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‘‘(3) For purposes of paragraph (1)(C), tuna or a
tuna product that contains tuna harvested outside the
eastern tropical Pacific Ocean by a vessel using purse
seine nets is dolphin safe if—
‘‘(A) it is accompanied by a written statement
executed by the captain of the vessel certifying that
no purse seine net was intentionally deployed on or
to encircle dolphins during the particular voyage on
which the tuna was harvested; or
‘‘(B) in any fishery in which the Secretary has
determined that a regular and significant association
occurs between marine mammals and tuna, it is ac-
companied by a written statement executed by the
captain of the vessel and an observer, certifying that
no purse seine net was intentionally deployed on or
to encircle marine mammals during the particular
voyage on which the tuna was harvested.
‘‘(4) For purposes of paragraph (1)(D), tuna or a
tuna product that contains tuna harvested in a fishery
identified by the Secretary as having a regular and signifi-
cant incidental mortality or serious injury of marine mam-
mals is dolphin safe if it is accompanied by a written state-
ment executed by the captain of the vessel and, where de-
termined to be practicable by the Secretary, an observer
participating in a national or international program ac-
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ceptable to the Secretary certifying that no marine mam-
mals were killed in the course of the fishing operation or
operations in which the tuna were caught.
‘‘(5) No tuna product may be labeled with any ref-
erence to dolphins, porpoises, or marine mammals, unless
such product is labeled as dolphin safe in accordance with
this subsection.’’.
(i) TRACKING AND VERIFICATION.—Subsection (f) of
section 901 of the Dolphin Protection Consumer Informa-
tion Act (16 U.S.C. 1385(f)) is amended to read as fol-
lows:
‘‘(f) TRACKING AND VERIFICATION.—The Secretary,
in consultation with the Secretary of the Treasury, shall
issue regulations to implement subsection (d) not later
than 3 months after the date of enactment of the Inter-
national Dolphin Conservation Program Act. In the devel-
opment of these regulations, the Secretary shall establish
appropriate procedures for ensuring the confidentiality of
proprietary information the submission of which is vol-
untary or mandatory. Such regulations shall, consistent
with international efforts and in coordination with the
Inter-American Tropical Tuna Commission, establish a
domestic and international tracking and verification pro-
gram that provides for the effective tracking of tuna la-
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beled under subsection (d), including but not limited to
each of the following:
‘‘(1) Specific regulations and provisions ad-
dressing the use of weight calculation for purposes
of tracking tuna caught, landed, processed, and ex-
ported.
‘‘(2) Additional measures to enhance observer
coverage if necessary.
‘‘(3) Well location and procedures for monitor-
ing, certifying, and sealing holds above and below
deck or other equally effective methods of tracking
and verifying tuna labeled under subsection (d).
‘‘(4) Reporting receipt of and database storage
of radio and facsimile transmittals from fishing ves-
sels containing information related to the tracking
and verification of tuna, and the definition of sets.
‘‘(5) Shore-based verification and tracking
throughout the transshipment and canning process
by means of Inter-American Tropical Tuna Commis-
sion trip records or otherwise.
‘‘(6) Provisions for annual audits and spot
checks for caught, landed, and processed tuna prod-
ucts labeled in accordance with subsection (d).
‘‘(7) The provision of timely access to data re-
quired under this subsection by the Secretary from
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harvesting nations to undertake the actions required
in paragraph (6) of this subsection.’’.
SEC. 5. AMENDMENTS TO TITLE III.
(a) HEADING.—The heading of title III is amended
to read as follows:
‘‘TITLE 
III—INTERNATIONAL
DOLPHIN 
CONSERVATION
PROGRAM’’.
(b) FINDINGS.—Section 301 (16 U.S.C. 1411) is
amended as follows:
(1) In subsection (a), by amending paragraph
(4) to read as follows:
‘‘(4) Nations harvesting yellowfin tuna in the
eastern tropical Pacific Ocean have demonstrated
their willingness to participate in appropriate multi-
lateral agreements to reduce, with the goal of elimi-
nating, dolphin mortality in that fishery. Recognition
of the International Dolphin Conservation Program
will assure that the existing trend of reduced dolphin
mortality continues; that individual stocks of dol-
phins are adequately protected; and that the goal of
eliminating all dolphin mortality continues to be a
priority.’’.
(2) In subsection (b), by amending paragraphs
(2) and (3) to read as follows:
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‘‘(2) support the International Dolphin Con-
servation Program and efforts within the Program
to reduce, with the goal of eliminating, the mortality
referred to in paragraph (1);
‘‘(3) ensure that the market of the United
States does not act as an incentive to the harvest of
tuna caught with driftnets or caught by purse seine
vessels in the eastern tropical Pacific Ocean that are
not operating in compliance with the International
Dolphin Conservation Program;’’.
(c) INTERNATIONAL DOLPHIN CONSERVATION PRO-
GRAM.—Section 302 (16 U.S.C. 1412) is amended to read
as follows:
‘‘SEC. 302. AUTHORITY OF THE SECRETARY.
‘‘(a) REGULATIONS TO IMPLEMENT PROGRAM REGU-
LATIONS.—(1) The Secretary shall issue regulations to
implement the International Dolphin Conservation Pro-
gram.
‘‘(2)(A) Not later than 3 months after the date of
enactment of this section, the Secretary shall issue regula-
tions to authorize and govern the incidental taking of ma-
rine mammals in the eastern tropical Pacific Ocean, in-
cluding any species of marine mammal designated as de-
pleted under this Act but not listed as endangered or
threatened under the Endangered Species Act of 1973 (16
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U.S.C. 1531 et seq.), by vessels of the United States par-
ticipating in the International Dolphin Conservation Pro-
gram.
‘‘(B) Regulations issued under this section shall in-
clude provisions—
‘‘(i) requiring observers on each vessel;
‘‘(ii) requiring use of the backdown procedure
or other procedures equally or more effective in
avoiding mortality of marine mammals in fishing op-
erations;
‘‘(iii) prohibiting intentional deployment of nets
on, or encirclement of, dolphins in violation of the
International Dolphin Conservation Program;
‘‘(iv) requiring the use of special equipment, in-
cluding dolphin safety panels in nets, monitoring de-
vices as identified by the International Dolphin Con-
servation Program, as practicable, to detect unsafe
fishing conditions before nets are deployed by a tuna
vessel, operable rafts, speedboats with towing bri-
dles, floodlights in operable condition, and diving
masks and snorkels;
‘‘(v) ensuring that the backdown procedure dur-
ing the deployment of nets on, or encirclement of,
dolphins is completed and rolling of the net to sack
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up has begun no later than 30 minutes after sun-
down;
‘‘(vi) banning the use of explosive devices in all
purse seine operations;
‘‘(vii) establishing per vessel maximum annual
dolphin mortality limits, total dolphin mortality lim-
its and per-stock per-year mortality limits, in ac-
cordance with the International Dolphin Conserva-
tion Program;
‘‘(viii) preventing the intentional deployment of
nets on, or encirclement of, dolphins after reaching
either the vessel maximum annual dolphin mortality
limits, total dolphin mortality limits, or per-stock
per-year mortality limits;
‘‘(ix) preventing the fishing on dolphins by a
vessel without an assigned vessel dolphin mortality
limit;
‘‘(x) allowing for the authorization and conduct
of experimental fishing operations, under such terms
and conditions as the Secretary may prescribe, for
the purpose of testing proposed improvements in
fishing techniques and equipment (including new
technology for detecting unsafe fishing conditions
before nets are deployed by a tuna vessel) that may
reduce or eliminate dolphin mortality or do not re-
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‘‘(A) the nature, circumstances, extent, and
gravity of the prohibited acts for which the sanction
is imposed; and
‘‘(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and other
such matters as justice requires.
‘‘(3) Transfer of ownership of a vessel, by sale or oth-
erwise, shall not extinguish any permit sanction that is
in effect or is pending at the time of transfer of ownership.
Before executing the transfer of ownership of a vessel, by
sale or otherwise, the owner shall disclose in writing to
the prospective transferee the existence of any permit
sanction that will be in effect or pending with respect to
the vessel at the time of transfer.
‘‘(4) In the case of any permit that is suspended for
the failure to pay a civil penalty or criminal fine, the Sec-
retary shall reinstate the permit upon payment of the pen-
alty or fine and interest thereon at the prevailing rate.
‘‘(5) No sanctions shall be imposed under this section
unless there has been a prior opportunity for a hearing
on the facts underlying the violation for which the sanction
is imposed, either in conjunction with a civil penalty pro-
ceeding under this title or otherwise.’’.