[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14247]


[[Page Unknown]]

[Federal Register: June 13, 1994]


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DEPARTMENT OF COMMERCE
National Ocenic and Atmospheric Administration
50 CFR Part 216
[Docket No. 940667-4167; I.D. 053194B]
RIN 0648-AG34
 

Taking and Importing of Marine Mammals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; with request for comments.

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SUMMARY: NMFS implements provisions of the International Dolphin 
Conservation Act (IDCA) that make it unlawful, after June 1, 1994, for 
any person, to sell, purchase, offer for sale, transport, or ship, in 
the United States, any tuna or tuna product that is not dolphin safe. 
The intent of this action is to ensure that the U.S. market does not 
act as an incentive to the harvest of tuna caught in association with 
dolphins or with driftnets.
DATES: This rule is effective June 2, 1994. Comments on this rule must 
be received or postmarked on or before August 12, 1994.

ADDRESSES: Comments should be sent to: Director, Southwest Region, 
NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: LT Dana Wilkes, NMFS, 310-980-4000.

SUPPLEMENTARY INFORMATION: 
Background
    NMFS is required to monitor the importation of certain fish and 
fish products to ensure compliance with various provisions of the 
Marine Mammal Protection Act (MMPA), as amended by the IDCA and the 
Dolphin Protection Consumer Information Act (DPCIA). The IDCA states, 
among other things, that ``It is the policy of the United States.. to 
ensure that the market of the United States does not act as an 
incentive to the harvest of tuna caught in association with dolphins or 
with driftnets.''
    The IDCA makes it unlawful, after June 1, 1994, for any person to 
sell, purchase, offer for sale, transport, or ship, in the United 
States, any tuna or tuna product that is not dolphin safe.
    Tuna, or a tuna product, is not dolphin safe if it contains tuna 
that was harvested on the high seas by a vessel engaged in fishing with 
driftnets 2.5 km or longer in length (``large-scale driftnets''). As of 
May 31, 1994, the Secretary had not identified any nation whose vessels 
are engaging in fishing with large-scale driftnets.
    Tuna or a product containing tuna that was harvested in the eastern 
tropical Pacific Ocean (ETP) by a vessel 400 short tons (362.8 metric 
tons (mt)) carrying capacity or greater, is dolphin safe only if it is 
accompanied by two written statements: one executed by the captain of 
the vessel that harvested the tuna, certifying that purse seine nets 
were not intentionally deployed on or to encircle dolphins at any time 
during the fishing trip (captain's statement); and the other from a 
NMFS or Inter-American Tropical Tuna Commission official certifying 
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, dolphins (observer's statement). 
Both the captain's and the observer's statements must be endorsed in 
writing by each exporter, importer, and processor of the product.
    Tuna or a product containing tuna harvested outside the ETP by a 
purse seine vessel, is dolphin safe if it is accompanied by a captain's 
statement, certifying that no purse seine net was intentionally 
deployed on, or to encircle, dolphins during the particular voyage on 
which the tuna was harvested.
    Tuna or a product containing tuna harvested outside the ETP by a 
purse seine vessel in a fishery in which the Secretary has determined 
that a regular and significant association occurs between marine 
mammals and tuna, and in which tuna is harvested through the use of 
purse seine nets deployed on, or to encircle, marine mammals, is 
dolphin safe if it is accompanied by a captain's statement and an 
observer's statement. As of May 31, 1994, the Secretary had not made 
such a determination.
    NMFS anticipates that the dolphin-safe documentation requirements 
of the IDCA and this final rule will primarily affect tuna harvested 
with purse seine nets outside of the ETP. In accordance with the 
importation requirements of 50 CFR 216.24(e), all tuna, other than 
fresh, is required to be accompanied by a NOAA Form 370 ``Fisheries 
Certificate of Origin'' (FCO) upon importation into the United States. 
NMFS believes that most tuna marketed in the United States (U.S.-
harvested, as well as imports) is labeled ``dolphin safe'' in 
accordance with DPCIA labeling standards. Therefore, most tuna 
harvested in the ETP by purse seine vessels 400 short tons (362.8 mt) 
carrying capacity or greater and sold in the United States meets the 
dolphin-safe documentation requirements (i.e., it is accompanied by an 
FCO, as well as captain's and observer's statements and endorsements). 
For imported tuna harvested outside the ETP by a purse seine vessel, 
this regulation requires that a captain's statement be attached to the 
FCO. In addition, for tuna harvested outside the ETP by a U.S. purse 
seine vessel, this regulation requires a captain's statement. The FCO's 
must be endorsed by each exporter, importer, and processor of the tuna, 
as described above.
    The U.S. Customs Service (USCS) controls the importation of tuna 
and tuna products into the United States. USCS will verify that a 
captain's statement accompanies shipments of tuna and tuna product 
containing tuna harvested by purse seine outside the ETP, and that a 
captain's statement and an observer's statement, endorsed in writing by 
every exporter, importer, and processor, accompany tuna or tuna product 
containing tuna harvested by purse seine in the ETP.
    This rule is codified in 50 CFR 216.24(e)(9). The former text of 
paragraph 216.24(e)(9) that is replaced by this regulation was 
effective only through 1986. Therefore, deletion of that language has 
no regulatory effect.

Classification

    This rule codifies statutory requirements and prohibitions that 
became effective pursuant to the IDCA after June 1, 1994. Therefore, 
under authority set forth at 5 U.S.C. 553(b)(B), good cause exists to 
waive the notice and comment requirements of the Administrative 
Procedure Act as such procedures are unnecessary. Further, in that this 
rule incorporates a statutory requirement already in effect, good cause 
exists under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective 
date.
    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act. The collections found at 50 CFR 
216.24(e) have been previously approved by the Office of Management and 
Budget (OMB) under Control Number 0648-0040 for tuna or a tuna product 
that contains tuna harvested in the ETP by purse seine vessels of 400 
short tons (362.8 metric tons) carrying capacity or greater and that is 
labeled ''dolphin safe.'' The public reporting burden for this 
collection was previously estimated to be 0.66 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information (56 FR 47418, September 19, 
1991). The IDCA now mandates that the same reporting requirement apply 
to all tuna or tuna products containing tuna harvested by purse seine 
in the ETP by these vessels, and it is expected that the same reporting 
burden will apply. In addition, all tuna or tuna products containing 
tuna harvested by purse seine vessel outside the ETP must now be 
accompanied by the captain's statement described above. The reporting 
burden for the completion of the captain's statement for tuna harvested 
by purse seine outside of the ETP is estimated to be 0.083 hours per 
response. Also, tuna harvested outside the ETP must now be accompanied 
by an FCO and captain's statement. Send comments regarding this burden 
estimate or on any other aspect of this collection of information, 
including suggestions for reducing this burden, to the Director, 
Southwest Region, NMFS (see ADDRESSES) and to the Office of Management 
and Budget, Paperwork Reduction Project 0648-0400, Washington, D.C. 
20503 (Attn: NOAA Desk Officer).

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

    Dated: June 6, 1994.
Charles Karnella,
Acting Program Management Officer, 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

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. In Sec. 216.24, the heading of paragraph (e) is revised and 
paragraph (e)(9) is revised to read as follows:


Sec. 216.24  Taking and related acts incidental to commercial fishing 
operations.

* * * * *
    (e) Importation, purchase, shipment, sale and transport.
    (9) Dolphin safe requirements. (i) It is unlawful for any person to 
sell, purchase, offer for sale, transport, or ship in the United 
States, any tuna or tuna product that is not dolphin safe.
    (ii) For purposes of this section, tuna or a tuna product is 
dolphin safe if:
    (A) It does not contain tuna that was harvested on the high seas by 
a vessel engaged in large-scale driftnet fishing;
    (B) In the case of tuna or tuna product that contains tuna 
harvested in the ETP by a purse seine vessel, either the purse seine 
vessel is of less than 400 short tons (362.8 metric tons (mt)) carrying 
capacity or, if the purse seine vessel is of 400 short tons (362.8 mt) 
carrying capacity or greater, the tuna or tuna product is accompanied 
by:
    (1) A completed Fisheries Certificate of Origin;
    (2) A written statement by the captain of each vessel that 
harvested the tuna, certifying that the vessel did not intentionally 
deploy a purse seine net on, or to encircle, dolphins at any time 
during the trip; a written statement, signed by either the Secretary or 
a representative of the Inter-American Tropical Tuna Commission, 
certifying that an observer employed by or working under contract with 
the Inter-American Tropical Tuna Commission or the Secretary, was on 
board the vessel during the entire trip and that the vessel did not 
intentionally deploy a purse seine net on, or to encircle, dolphin at 
any time during the trip; and
    (3) An endorsement on the Fisheries Certificate of Origin by each 
exporter, importer, and processor certifying that, to the best of his 
or her knowledge and belief, the Fisheries Certificate of Origin and 
attached documents, and the statements required by this paragraph 
(e)(9)(ii) accurately describe the tuna products;
    (C) In the case of tuna or a tuna product containing tuna harvested 
outside the eastern tropical Pacific Ocean by a purse seine vessel, 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; and
    (D) In the case of tuna or a tuna product containing tuna harvested 
outside the ETP by a purse seine vessel in a fishery in which the 
Secretary has determined that a regular and significant association 
occurs between marine mammals and tuna, and in which tuna is harvested 
through the use of purse seine nets deployed on, or to encircle, marine 
mammals, it is accompanied by a written statement, executed by the 
captain of the vessel and by 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.
    (iii) Submission of documentation.--(A) Imported tuna or tuna 
product. The documents required by paragraph (e)(9)(ii) of this section 
must accompany the imported tuna or tuna product until no further 
endorsements are required on the documentation and the documents have 
been submitted to officials of the U.S. Customs Service at the time of 
importation.
    (B) U.S. domestic shipments. The documents required by paragraph 
(e)(9)(ii) of this section must accompany tuna or tuna product, other 
than imported, until no further endorsements are required on the 
documentation and the documents have been submitted to the Director, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802.
* * * * *
[FR Doc. 94-14247 Filed 6-10-94; 8:45 am]
BILLING CODE 3510-22-F