[Federal Register Volume 64, Number 113 (Monday, June 14, 1999)]
[Proposed Rules]
[Pages 31806-31822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15004]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990324081-9081-01; I.D. 072098G]
RIN 0648-AI85


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific 
Ocean (ETP)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Proposed rule; request for comments and notice of public 
hearings.

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SUMMARY: NMFS proposes regulations to implement provisions of the 
International Dolphin Conservation Program Act (IDCPA). These 
regulations would allow the entry of yellowfin tuna into the United 
States under certain conditions from nations signatory to the 
International Dolphin Conservation Program (IDCP) that otherwise would 
be under embargo. It would also allow U.S. fishing vessels to 
participate in the fishery in the ETP on equivalent terms with the flag 
vessels of other IDCP signatory nations. A U.S. citizen employed on a 
purse seine vessel of another IDCP signatory nation with an affirmative 
finding would not be in violation of U.S. prohibitions on the taking of 
marine mammals if that vessel takes marine mammals incidentally during 
fishing operations outside the U.S. exclusive economic zone (EEZ) in 
compliance with the requirements of the IDCP. The standard for use of 
``dolphin-safe'' labels for tuna products would also change. General 
requirements also are proposed to ensure adequate tracking and 
verification of tuna imports from the ETP.

DATES: Comments on the proposed regulations must be received on or 
before July 14, 1999. Public hearings on this proposed rule will be 
held on Thursday, July 8, 1999, in Long Beach, CA, at 10:00 a.m.- 1:00 
p.m. and on Wednesday, July 14, 1999, in Silver Spring, MD, at 1:00 
p.m.- 4:00 p.m.

ADDRESSES: Send comments to J. Allison Routt, NMFS, Southwest Region, 
Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213. The locations of the public hearings on this 
proposed rule are: (1) Room 3400, 501 W. Ocean Blvd., Long Beach, CA 
90802-4213; and (2) NOAA Building, SSMC IV, Room 1W611, 1305 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest 
Region, Protected Resources Division, (562) 980-4020. For additional 
information about the public hearing in Long Beach, CA, contact J. 
Allison Routt. For additional information about the public hearing in 
Silver Spring, MD, contact Cathy Eisele, NMFS, Headquarters, Marine 
Mammal Division,(301) 713-2322.

SUPPLEMENTARY INFORMATION:

Background

    In 1992, nations fishing for tuna in the ETP, including the United 
States, reached a non-binding international agreement (referred to as 
the La Jolla Agreement) that included, among other measures, a dolphin 
mortality reduction schedule providing for significant reductions in 
dolphin mortalities. By 1995, nations fishing in the ETP under the La 
Jolla Agreement had reduced dolphin mortality to less than 5,000 
dolphins annually, two years ahead of the schedule established in that 
Agreement. In October 1995, the success of the La Jolla Agreement led 
the United States, Belize, Colombia, Costa Rica, Ecuador, France, 
Honduras, Mexico, Panama, Spain, Vanuatu, and Venezuela to sign the 
Panama Declaration to strengthen and enhance the IDCP.
    The program outlined in the Panama Declaration will provide greater

[[Page 31807]]

protection for dolphins, and enhance the conservation of yellowfin tuna 
and other living marine resources in the ETP ecosystem. The Panama 
Declaration anticipated that the United States would change the 
provisions of the Marine Mammal Protection Act (MMPA) to allow import 
of yellowfin tuna into the United States from nations that are 
participating in, and are in compliance with, the IDCP. Implementation 
of the Panama Declaration by the United States was also anticipated in 
order to allow U.S. vessels to participate in the ETP fishery on an 
equal basis with the vessels of other nations. Under the Declaration, 
signatory nations agreed to develop a legally binding, international 
agreement. In May 1998, eight nations, including the United States, 
signed such a binding, international agreement to implement the IDCP. 
This Agreement will go into force after either ratification, 
acceptance, or approval by four nations.
    The IDCPA was signed into law on August 15, 1997, to recognize and 
implement the IDCP and to address related issues. The IDCPA was the 
domestic endorsement of an international management regime adopted 
during the last 20 years under the auspices of the Inter-American 
Tropical Tuna Commission (IATTC). The IDCPA primarily amends provisions 
in the MMPA governing marine mammal mortality in the U.S. ETP tuna 
purse seine fishery and the importation of yellowfin tuna and yellowfin 
tuna products from other nations with vessels engaged in the ETP tuna 
purse seine fishery. Key provisions of the IDCPA will become effective 
when two certifications are made. The Secretary of State must certify 
to Congress that a binding legal instrument establishing the IDCP has 
been adopted and is in force (i.e., Agreement on the IDCP). In 
addition, the Secretary of Commerce must certify that a study has 
commenced on the effects of intentional encirclement (including chase) 
on dolphins and dolphin stocks incidentally taken in the course of 
purse seine fishing for yellowfin tuna in the ETP, and that funds are 
available to complete the first year of this study. On July 27, 1998, 
the Secretary of Commerce provided the required certification to 
Congress on the research study.
    The Agreement on the IDCP becomes effective when four countries 
have deposited their instruments of either ratification, acceptance, or 
adherence with the United States. The United States, Panama, Ecuador, 
and Mexico have deposited their instruments of either ratification, 
acceptance, or adherence with the Depositary. The Agreement on the IDCP 
became effective on February 15, 1999. On March 3, 1999, the Secretary 
of State provided the required certification to Congress that the 
Agreement on the IDCP has been adopted and is in force. The IDCPA 
became effective on this date. Provisions to implement the IDCPA and 
the new international agreement for dolphin conservation in the ETP are 
the subject of these proposed regulations.
    Section 7 of the IDCPA amends the Tuna Conventions Act regarding a 
General Advisory Committee and a Scientific Advisory Committee, and 
provisions are proposed to address these changes. Section 6(c) of the 
IDCPA amends the permit sanction provisions in the MMPA applicable to 
permits issued to U.S. purse seine vessels in the ETP and their 
operators, and these changes will be addressed in a separate 
rulemaking.

Definitions

    Definitions are added for ``Administrator, Southwest Region,'' 
``Agreement on the International Dolphin Conservation Program,'' 
``Declaration of Panama,'' ``Force majeure,'' ``International Dolphin 
Conservation Program,'' ``International Dolphin Conservation Program 
Act,'' ``International Review Panel,'' and ``Per-stock per-year dolphin 
mortality limit.'' In addition, the definitions of ``ABI,'' ``Director, 
Southwest Region,'' ``ETP Fishing Area 1,'' `` ETP Fishing Area 2,'' 
``ETP Fishing Area 3,'' ``Fishing season,'' ``Kill-per-set,'' ``Kill-
per-ton,'' and ``Purse seine set on common dolphins'' are removed 
because they are no longer necessary.
    Although the Agreement on the IDCP applies in the Pacific Ocean 
west only to 150 deg. W. meridian, the current definition of ETP is out 
to 160 deg. W. meridian. This definition is not proposed to be changed 
because the existing definition is set by the Dolphin Protection 
Consumer Information Act (DPCIA) (16 U.S.C. 1305). This difference is 
expected to only affect a relatively small number of trips by U.S. 
purse seine vessels, when they extend their fishing activities under 
the Treaty that governs their fishing in the South Pacific into waters 
that overlap with the waters covered by the Agreement on the IDCP. This 
overlap will require these vessels to comply with the dolphin-safe 
requirements of the MMPA applicable to the ETP for fishing in the 
overlap area west of 150 deg. W. meridian even though the Agreement on 
the IDCP has determined that fishing on dolphins does not occur in this 
area.

Requirements for U.S. Vessels

    The certificate of inclusion process for U.S. vessel owners and 
operators under a general permit issued to the American Tunaboat 
Association would be replaced with a system of issuing permits directly 
to vessel owners and operators. Two permit categories would be retained 
for tuna purse seine vessels of greater than 400 short tons (362.8 
metric tons (mt)) carrying capacity. One category would apply to purse 
seining involving the intentional taking of marine mammals, and the 
other category would apply to purse seining not involving the 
intentional taking of marine mammals. As mandated by the IDCPA, the 
latter category of permits would not require that the vessel be 
equipped with special equipment or gear. The terms and conditions for 
both categories of permits would be modified to require that observers 
be carried on every trip. Existing dolphin stock and species 
prohibitions would be replaced with a provision prohibiting sets on a 
stock when the mortality limit for that stock has been reached or 
exceeded. The authorization to take marine mammals during a set to 
protect catch or gear would be eliminated, retaining only the 
authorization to take marine mammals if necessary during a set to 
prevent personal injury. The authorizations proposed for elimination 
are no longer justified based upon the experience of the U.S. fleet and 
the low levels of dolphin mortality allowed under the IDCP.
    The operator performance requirements are proposed to be removed 
and a subsection reserved for this subject. Because U.S. vessels have 
not been making intentional sets on dolphins in recent years, the 
existing performance requirements based upon older data do not reflect 
improvements in performance that should be expected from the U.S. 
operators based upon the performance of the international fleet in 
recent years. A subsection for operator performance requirements would 
be reserved to implement operator performance requirements when they 
are developed under the IDCP. Even without the performance requirements 
in effect now, the dolphin mortality limit (DML) system provides an 
effective incentive to both vessel owners and operators to achieve low 
dolphin mortalities, as demonstrated by the results since 1992. The 
implementation of operator performance standards under the IDCP is the 
best way to prevent substandard operators from moving among the vessels 
of various nations.

[[Page 31808]]

    Implementing a provision in the Agreement on the IDCP, purse seine 
vessels of 400 st (362.8 mt) or less carrying capacity would be 
prohibited from intentionally deploying a net on or encircling 
dolphins. The U.S. vessels that are in this size range have not been 
obtaining certificates of inclusion to intentionally set on dolphins, 
so this new provision is not anticipated to affect the operations of 
any U.S. vessels.
    The DML provisions are proposed to be revised to incorporate 
changes arising from the Agreement on the IDCP. These revisions include 
the following: adding a procedure for vessels that normally do not fish 
in the ETP to apply for a DML; removing the 15-percent limitation on 
adjusting DMLs as allocated by the IDCP; incorporating the DML re-
allocation criteria in Annex IV of the Agreement on the IDCP; and 
reducing the allocation for a DML for the second half of a year to one-
third of a full-year DML instead of the one-half of a full-year 
allocation previously provided.
    The regulations would preclude a vessel that fails in two 
consecutive years to make at least one intentional set on dolphins by 
April 1 from obtaining a DML in the subsequent year. Similarly, a 
vessel with a second-semester DML that fails to make at least one 
intentional set on dolphins by December 31 of that year, or a vessel 
with a per-trip DML that fails to make at least one intentional set on 
dolphins during that trip, would lose its DML. After two consecutive 
losses of its DML, a vessel would not be eligible to receive a DML for 
the following year. Exceptions might be granted for force majeure or 
extraordinary circumstances.
    The observers' access to certain vessel equipment and the working 
needs of observers on U.S. vessels would be elaborated upon in 
conformity with the Agreement on the IDCP.
    The sections on permits for ``Stationary gear,'' ``Other gear,'' 
and ``Commercial passenger fishing vessels'' would be removed because 
the take of marine mammals incidental to these fisheries is now 
regulated by 50 CFR part 229.
    Imports of Yellowfin Tuna and Yellowfin Tuna Products
    The existing Sec. 216.24(e) on imports would be revised for 
clarity, and would be redesignated as Sec. 216.24(f). The observer 
provisions would be redesignated from Sec. 216.24(f) to Sec. 216.24(e) 
so that they would immediately follow the other sections applicable to 
U.S. vessels.

Harmonized Tariff Schedule (HTS) Numbers

    Reflecting changes in the U.S. HTS, the list of HTS numbers in 
newly designated Sec. 216.24(f)(2) would be updated.
    All shipments, regardless of port of entry, identified by an HTS 
number in Sec. 216.24, must be accompanied by a Fisheries Certificate 
of Origin (FCO). Unfortunately, the existing regulations are incorrect 
and appear to apply the MMPA Sec. 101(a)(2) tuna embargo to encompass 
all shipments covered by these HTS numbers. Actually, the MMPA tuna 
embargos (for primary nations) cover only yellowfin tuna harvested by 
purse seines in the ETP. For instance, a shipment of skipjack harvested 
by longline may require an FCO because the importer has identified it 
with one of the HTS numbers listed under Sec. 216.24(e). Such a 
shipment would not be subject to the MMPA embargo.
    A provision would be added stating that no tuna or tuna products 
may be imported into the United States, even if there is an affirmative 
finding in place, if these tuna or tuna products were banned from 
importation under the MMPA before the effective date of section 4 of 
the IDCPA. The scope of the intermediary nation embargo on ETP 
yellowfin tuna and tuna products would be made the same as the scope of 
the embargo that applies to harvesting nations, conforming the 
regulations to changes made in the MMPA since the existing regulations 
were last changed. Dates related to tuna caught in large-scale driftnet 
fisheries, which are no longer relevant, would be removed.

Affirmative Findings

    Yellowfin tuna or yellowfin tuna products imported from the ETP 
tuna purse seine fishery must meet the new standards established by the 
IDCPA. The finding section of the regulations, which would be 
redesignated as Sec. 216.24(f)(9), would be revised to conform to the 
new standards and requirements of the IDCPA. No harvesting nation could 
export yellowfin tuna harvested by purse seine in the ETP into the 
United States unless the nation provided NMFS documentary evidence that 
it (1) participates in the IDCP; (2) is a member or applicant member 
of, and meeting the financial obligations of membership in, the IATTC; 
(3) keeps its fleet's stock-specific dolphin mortality within the 
IDCP's prescribed limits; and (4) keeps its fleet's annual dolphin 
mortality within the aggregate DMLs assigned to the fleet. The former 
two items are explicit in the IDCPA. The third item does not have much 
relevance until the IDCP nations allocate per-stock mortality limits 
between nations. The fourth item is NMFS' proposed interpretation of 
ambiguous statutory language in Sec. 101(a)(2)(B)(iii) of the MMPA as 
revised by the IDCPA:

     ...the total dolphin mortality limits * * * permitted for that 
nation's vessels under the [IDCP] do not exceed the limits 
determined for 1997, or for any year thereafter ...

    NMFS considered, but rejected, three alternative interpretations of 
Sec. 101(a)(2)(B)(iii) of the MMPA: (1) the aggregate of the DMLs 
assigned to each of the harvesting nation's vessels (``fleet DML'') for 
the upcoming year could not exceed the nation's fleet DML in 1997 or 
subsequent years; (2) the overall, international dolphin mortality cap 
set by the IDCP for the upcoming year could not exceed the cap in 1997 
[i.e., 7,500 dolphins] or subsequent years [e.g., 6,500 dolphins in 
1998]; and (3) the DML assigned to each vessel in the international 
fishery could never exceed the limit assigned in 1997 [i.e., 94 
dolphins/vessel] or subsequent years [e.g., 66 dolphins/vessel in 1998, 
and 39.68 dolphins/vessel in 1999].
    The first rejected alternative conforms best with the wording of 
Sec. 101(a)(2)(B)(iii): ``the total dolphin mortality limits ...for 
that nation's vessels...do not exceed the limits determined for 1997, 
or for any year thereafter * * *.'' However, comparing a nation's 
aggregate (fleet) mortality limits to the nation's earlier limits would 
prejudge decisions under the IDCP. In the Panama Declaration, the 
United States pledged to lift embargoes against nations participating 
in accordance with the international program. While the international 
program intended to reduce overall dolphin mortality, the parties to 
the Panama Declaration and the IDCP did not contemplate limiting the 
size of any nation's fleet (at least not for the purpose of dolphin 
protection) or the size of any nation's aggregate DML. The IDCP has 
always allocated the annual international cap on a per-vessel basis, 
not on a per-nation basis. Under this rejected alternative, a nation 
could fish in strict compliance with the program but be embargoed by 
the United States if its fleet happened to be relatively large in the 
upcoming year and therefore receive a relatively large aggregate 
(fleet) DML. Penalizing a nation whose fleet has grown could discourage 
efficient utilization of resources (fishing vessels transferring 
between nations) without affecting overall international dolphin 
mortality. Harvesting nations that adopted good

[[Page 31809]]

dolphin conservation programs because of the IDCP might quit the IDCP 
if subjected to this type of embargo.
    The second alternative interpretation was rejected because the 
statutory placement of an item relating to international management 
would not be logical or appropriate among a list of standards 
applicable to individual harvesting nations. While each IATTC 
participant could block a larger international cap (because the IATTC 
operates by consensus), imposing trade restrictions to penalize fellow 
harvesting nations would not be logical for the following reasons. 
First, the United States also participates in the IDCP, which operates 
by consensus. Therefore, this standard would only have significance 
(and result in an embargo) if the United States itself approved raising 
the international cap. In the statutory context, Congress certainly 
intended these importation standards to induce compliance with the IDCP 
by harvesting nations. Second, this is not the type of documentary 
evidence that the United States would require an individual harvesting 
nation to provide since the United States knows the international cap 
by virtue of our participation in the IDCP.
    The third rejected alternative is not logical for the same reasons 
as the second alternative; vessel DMLs are set by consensus, so the 
United States could unilaterally prevent this standard from being 
violated; and since we participate in the IDCP also, the United States 
need not rely upon documentary evidence from harvesting nations.
    The proposed interpretation makes the most sense in the context of 
Sec. 101(a)(2)(B) of the MMPA because it focuses on a nation's 
compliance with the international regime. Only a nation that failed to 
keep its own fleet's annual dolphin mortality within the aggregate DMLs 
assigned to the fleet would be embargoed. That is the type of 
documentary evidence that the United States would not necessarily have 
without a submission from the harvesting nation. In the embargo 
context, this interpretation focuses NMFS' attention on a fleet's 
results in protecting dolphin, which should reflect on the success of 
the harvesting nation's management and enforcement program, rather than 
decisions by other parties to the IDCP. This encourages other 
harvesting nations to comply with the IDCP and threatens economic 
sanctions only against nations that do not control or manage their own 
fleets.
    Although currently the IDCP does not assign per-stock dolphin 
mortality limits to individual nations, fleets, or vessels, if the IDCP 
assigns per-stock limits in the future, we would compare the total per-
stock dolphin mortality of a harvesting nation's fleet in a calendar 
year to the combined allocated annual per-stock mortality limits 
assigned to the fleet for that year. If the mortality exceeded the 
assigned limits, the United States would impose an ETP embargo against 
that nation for the subsequent April through March period.
    While the existing concept of nations applying for and renewing 
annual affirmative findings is retained, the proposed regulations 
reflect the reality that the documentary evidence used to make findings 
may be provided by a combination of the exporting nation, the 
harvesting nation (if different from the exporting nation), and the 
IDCP and IATTC. In addition, to reflect the fact that the IDCP 
principally uses the calendar year as the basis for management, 
including the calculation and monitoring of annual DMLs, the period of 
validity of a finding in the regulations is proposed to be from April 1 
through March 31 of the following year, relying upon data from the 
previous calendar year. To work effectively within this schedule, NMFS 
will reduce the processing time for complete applications from 120 days 
to 60 days. NMFS is considering a multi-year affirmative finding 
process and is seeking comments on this concept.

Dolphin-safe Requirements

    As mandated by section 6(d) of the IDCPA, the proposed regulations 
would exclude yellowfin tuna and yellowfin tuna products harvested by 
vessels of a nation which is in compliance with the IDCP, and which 
also has met the IATTC application and membership requirements 
specified in the IDCPA, from the prohibition on the sale, purchase, 
offer for sale, transport or shipment of tuna products in the United 
States which is not dolphin-safe.

Observers

    The language in redesignated Sec. 216.24(e)(1) would be revised to 
clarify that all permitted vessels are required to carry observers on 
every trip. In addition, the section providing for an application and 
waiver process regarding women observers is removed because the time 
period has expired for its use.

U.S. Citizens on Foreign Flag Vessels in the ETP

    A U.S. citizen employed on a foreign tuna purse seine vessel of a 
nation with an affirmative finding would not be subject to the MMPA's 
prohibitions on taking marine mammals while the vessel is engaged in 
fishing operations outside the U.S. EEZ. Use of an affirmative finding 
determination for this purpose is the most effective way for a U.S. 
citizen to determine that a nation is qualified under the IDCPA's 
criteria.

Dolphin-safe Labeling Requirements

    The labeling standard for use of the term ``dolphin-safe'' on the 
labels of tuna products would change under the proposed regulation. 
Currently, tuna products may be labeled ``dolphin-safe'' only if no 
intentional setting on dolphins occurred during the fishing trip. Under 
the IDCPA, the Secretary of Commerce (Secretary) would revise the 
labeling standard based upon the initial and final findings of a study 
mandated by the IDCPA on 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 
ETP. Dolphin stocks in the ETP now designated as depleted under the 
MMPA are the eastern spinner dolphin, northeastern offshore spotted 
dolphin, and the coastal spotted dolphin. The initial finding is due 
between March 1, 1999, and March 31, 1999, and the final finding is due 
between July 1, 2001, and December 31, 2002. Under the proposed 
regulations, a ``default standard'' will be established before the 
Secretary makes an initial finding. Under the default standard, tuna 
products can only be labeled ``dolphin-safe'' if no dolphins are 
intentionally encircled during the entire fishing trip and no dolphin 
is killed or seriously injured during the set. After the initial 
finding, unless the Secretary initially finds a ``significant adverse 
impact,'' the Assistant Administrator will apply the definition of 
``dolphin-safe'' specified in paragraph (h)(1) of the Dolphin Consumer 
Protection Information Act (DCPIA)(16 U.S.C. 1385(h)(1)), i.e., that no 
dolphins were killed or seriously injured during the sets in which the 
tuna were caught. Similarly, if the Secretary's final finding by 
December 31, 2002, concludes that a significant adverse impact is 
either not occurring or has not been detected, the definition of 
``dolphin-safe'' under paragraph (h)(1) of the DCPIA will apply. 
Alternatively, if the Secretary finds a ``significant adverse impact,'' 
the definition would revert to the default standard. The proposed 
regulations provide that, by notification in the Federal Register, the 
Assistant Administrator will implement any required change in the 
labeling standard without additional rulemaking.

[[Page 31810]]

Sundown Sets

    Under a 1988 amendment to the MMPA (Pub. L. 100-711), the backdown 
procedure must be completed no later than one-half hour after sundown. 
Moreover, the La Jolla Agreement and the IDCP both specified that this 
procedure must be completed no later than one-half hour after sundown. 
In contrast, apparently due to a typographical error, section 
303(a)(2)(B)(5) of the IDCPA states that backdown procedures must be 
completed no later than one-half hour before sundown. No Congressional 
reports or colloquy indicate that this ``revision'' was adopted 
purposefully. Furthermore, under the May 1998 Agreement on the IDCP, 
signatory nations agreed that the backdown procedure must be completed 
no later than one-half hour after sundown. Since the purpose of the May 
1998 Agreement on the IDCP is to implement the IDCP, NMFS proposes that 
requiring the backdown procedure to be completed no later than one-half 
hour after sundown, best represents the language of the May 1998 
Agreement on the IDCP and the spirit of the IDCP. Therefore, the 
proposed rule requires the backdown procedure be completed no later 
than one-half hour after sundown for every set encircling dolphin.

Official Mark

    The DPCIA, as revised by the IDCPA, requires the Secretary to 
develop an official mark that can be used to indicate a tuna product is 
``dolphin-safe.'' The Secretary is considering designating a commonly 
used ``dolphin-safe'' logo as the official mark and will make this 
designation in a later rulemaking. In the meantime, this rule would 
only ``reserve'' 50 CFR 216.96 as the section of the regulations that 
NMFS will use in the future to describe the official mark.
    The DPCIA does not mandate the use of the official mark, or 
prohibit the use of a mark or label other than the official mark that 
suggests processed tuna is ``dolphin-safe'' (``alternative mark''). 
Although the DPCIA does not prohibit the use of alternative marks, 
paragraphs (d)(3)(C)(i)-(iii) of the DPCIA appear to establish 
standards applicable only to processed tuna labeled with alternative 
marks or labels that refer to marine mammals. Those apparently separate 
standards are (1) no dolphins were killed or seriously injured in the 
sets or other gear deployments in which the tuna were caught; (2) the 
mark is supported by a tracking and verification program comparable in 
effectiveness to the program established by NMFS regulations; and (3) 
the mark comports with applicable laws and regulations of the Federal 
Trade Commission.
    Upon analysis, DPCIA paragraph (d)(3)(C) does not require a 
separate set of standards in these regulations. First, the labeling 
standards in paragraphs (d)(1) and (2) of the DPCIA apply to all 
processed tuna whether labeled with the official mark or with an 
alternative mark. Second, the DPCIA paragraphs (d)(3)(C)(i) and (iii) 
standards applicable to processed tuna labeled with alternative marks 
are either less stringent or identical to the standards that apply to 
processed tuna labeled with the official mark. Third, the standard 
described in DPCIA paragraph (d)(3)(C)(ii) would only be applicable if 
an alternative mark were supported by an alternative tracking and 
verification program. Instead of determining whether alternative 
tracking and verification programs meet the NMFS standards, NMFS 
proposes to require that anyone who imports, exports, or sells tuna in 
the United States that was harvested in the ETP comply with the 
tracking and verification program described in this rule. In other 
words, an alternative mark would be required to be supported by the 
official tracking and verification program. Therefore, NMFS need not 
determine that an alternative program is ``comparable in 
effectiveness'' to the official program. While nothing in these 
regulations is intended to inhibit a company or group from establishing 
an alternative tracking and verification program, such a program would 
not be a substitute for the program described here.
    Therefore, NMFS proposes to establish a single standard for the use 
of labels on tuna product that refers to a marine mammal or suggests 
that the processed tuna was harvested by a method not injurious to 
dolphin. That standard would be the same, regardless of whether the 
label was the official mark that will be promulgated by the Secretary 
or an alternative mark.

Tracking and Verification

    Paragraph (f) of the DPCIA (16 U.S.C. 1385(f)), as revised by the 
IDCPA, requires the Secretary to issue regulations for a domestic 
program to track and verify tuna labeled ``dolphin-safe.'' At the same 
time as NMFS is developing a U.S. domestic program, parties to the May 
1998 Agreement on the IDCP are working together to develop an 
international tracking and verification system for tuna landed by purse 
seine vessels fishing in the ETP. Section 216.94 of the proposed 
regulations is intended to implement paragraph (f) of the DPCIA, while, 
to the greatest extent practicable, keeping the domestic program in 
line with the still-developing international program.
    The proposed domestic tracking and verification program provides 
for effective tracking of tuna harvested from the ETP by U.S. and 
foreign vessels. The proposed program would track tuna caught by U.S. 
purse seine vessels in the ETP from capture, to well, to processing, to 
final sale, while noting which tuna was ``dolphin-safe'' and which tuna 
was ``non-dolphin-safe.''
    The fishing vessel observer will designate each well into which 
tuna is loaded as either ``dolphin-safe,'' ``non-dolphin-safe,'' or 
``mixed.'' The vast majority of wells are expected to be either 
``dolphin-safe'' or ``non-dolphin-safe.'' ``Mixed'' wells should be a 
rare occurrence. Under the interim labeling standard, the fishing 
vessel observer will designate a well ``non-dolphin-safe'' if any tuna 
loaded into the well was harvested (1) on a trip in which purse seines 
were intentionally set on dolphin, or (2) in a set in which any dolphin 
died or was seriously injured. The observer will designate a well as 
``dolphin-safe'' if all the tuna loaded into the well was harvested 
during a trip without intentional sets on dolphins and during sets in 
which dolphins were intentionally encircled but no mortality or serious 
injury of dolphin was observed. If the labeling standard changes after 
March 1999, the observer would designate a well ``non-dolphin-safe'' if 
tuna is loaded into the well that was harvested during a set in which a 
dolphin died or was seriously injured. Conversely, the observer would 
designate a well ``dolphin-safe'' if all tuna loaded into that well was 
harvested during sets in which no dolphin died or was seriously 
injured.
    Regardless of which labeling standard is in effect, if a ``dolphin-
safe'' well, containing some amount of ``dolphin-safe'' tuna, is later 
loaded with tuna caught in a set in which a dead or seriously injured 
dolphin was discovered late in the loading process, that well would 
then be designated ``mixed.'' The observer will record the estimated 
weight of the ``dolphin-safe'' tuna already in the well. The tuna 
already in the well will retain its status as ``dolphin-safe'' tuna 
even though ``non-dolphin-safe'' tuna is stored in the same well. 
Subsequently, only ``non-dolphin-safe'' tuna could be loaded into that 
well.
    At least 48 hours before a scheduled arrival in port, including 
ports outside the United States, U.S. purse seine vessels would be 
required to report to NMFS the scheduled place and time of arrival. The 
purpose of this report

[[Page 31811]]

would be to give NMFS an opportunity to send a representative to meet 
the vessel and verify the contents of the wells and the ``dolphin-
safe'' status of the tuna. The Captain would be required to submit a 
written report of each set made during the fishing trip to NMFS 
detailing the weights by species composition, estimated tons loaded, 
the dates of loading into the well, the ``dolphin-safe'' ``non-dolphin-
safe'' or ``mixed'' designation of each well, set number, the trip 
number, the observer name, the captain name, the vessel name, and the 
trip dates.
    Likewise, when tuna harvested in the ETP is scheduled to be 
delivered to a tuna canning company, the company would be required to 
provide 48-hour advance notice to NMFS of the location and arrival time 
of such shipment.
    After unloading from the fishing vessel and throughout processing, 
``dolphin-safe'' and ``non-dolphin-safe'' tuna would be strictly 
segregated. Can codes (that is, the unique number pressed onto each can 
of processed tuna) could be used to trace the tuna to a particular 
fishing trip by a particular vessel and, indirectly, to a particular 
well on the vessel. Fishing companies, importers, and canners would all 
be required to maintain relevant FCO and other records of the tuna for 
three years. NMFS would have the authority to request copies of 
relevant documents for inspection and could conduct audits and spot-
checks of facilities.
    In these tracking and verification regulations and the 
Environmental Assessment analyzing this program, NMFS has addressed 
each subsection of section (f) of the DPCIA, as follows: (1) Weight 
calculations of the amount of ``dolphin-safe'' and ``non-dolphin-safe'' 
tuna loaded into segregated wells after each set will be a required 
part of observers' reporting on forms to be revised by the IATTC in 
accordance with the international tracking and verification program. 
Tuna processors will use weight calculations to report ``dolphin-safe'' 
and ``non-dolphin-safe'' tuna received for immediate processing or cold 
storage and also for tuna being removed from cold storage for sale or 
processing; (2) the U.S. observer program has not been used in this 
fishery for years so these regulations do not propose changes to our 
domestic program, but the parties to the IDCP are working to improve 
the training, monitoring, and reporting components of the existing 
IATTC and other national observer programs; (3) the observer reports 
would indicate the ``dolphin-safe'' or ``non-dolphin-safe'' status of 
each well aboard the fishing vessel; however, NMFS is not proposing to 
require wells be ``sealed'' because sealing wells effectively is not 
practicable and furtively moving significant quantities of frozen 
blocks of large tuna from well to well during a trip is very unlikely; 
(4) tracking and storage of radio and facsimile communications from 
vessels would not be useful to track or verify tuna products, but NMFS 
proposes to mandate the creation or maintenance of such records if the 
industry keeps the records anyway (for its own purposes); (5) shore-
based verification coupled with IATTC records and other reports 
required by these regulations form the backbone of the proposed 
tracking and verification program; (6) as indicated in proposed 
Sec. 216.94, NMFS would conduct periodic spot-checks and audits of tuna 
facilities; (7) negotiations with other ETP harvesting nations are 
expected to result in a cooperative, international tracking program 
under which participating nations will share data and inspect fish 
processing facilities under mutually agreeable protocols.

Public Comments Solicited; Public Hearings

    NMFS is soliciting comments on this proposed rule. Oral comments, 
as well as written comments, may be presented at public hearings on the 
proposed rule (see ADDRESSES and DATES). Written comments on the 
proposed rule may also be submitted to J. Allison Routt (see ADDRESSES 
and DATES).

Special Accommodations

    These hearings will be physically accessible to people with 
disabilities. Requests for sign language interpretation or other aids 
should be directed to J. Allison Routt at least 10 days prior to the 
hearing date (see ADDRESSES).

Classification

Executive Order 12866

    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, the Office of Management and Budget (OMB) has determined 
that this rule is significant.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. There are 15 to 17 small vessels in the U.S. purse 
seine fleet that fish most years; these have 363 mt or less carrying 
capacity. These vessels are small business entities generating less 
than $3 million in gross revenues each year from all landings. The only 
action in the proposed rule specifically intended to restrict small 
vessels is the formal prohibition of setting on dolphin. However, these 
vessels have not set on dolphin in the past. There would be no 
substantial compliance costs or paperwork burdens imposed on small 
vessels. Finally, while the proposed actions may result in increased 
supply of raw tuna to U.S. and foreign processors, it is not expected 
to result in lower prices being paid to fishing vessels, regardless of 
their size. With respect to the U.S. processing sector, there are no 
small processing firms. With respect to the wholesale and broker 
sectors, there are no known small U.S. firms involved in these sectors 
handling ETP-origin tuna or tuna products. Even if there were small 
entities involved in the business of brokering or wholesaling, they 
would be affected only minimally by recordkeeping requirements 
associated with tracking ``dolphin-safe'' tuna product. None of the 
other actions in this proposed rule would impose any costs nor affect 
revenues of such businesses.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor will any person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). One existing requirement 
is repeated: exporters from all countries importing tuna and tuna 
products, except some fresh products, into the United States must 
provide information about the shipment to U.S. Customs using the 
Fisheries Certificates of Origin (NOAA Form 370). Approved by the OMB 
under control number 0648-0335, the public reporting burden for this 
collection is estimated to average 20 minutes per submission.
    This proposed rule also contains new collection-of-information 
requirements which have been submitted to OMB for review and approval. 
The estimated burden for these requirements are as follows: 30 minutes 
for an application for a vessel permit; 10 minutes for an application 
for an operator permit; 30 minutes for a request for a waiver to 
transit the ETP without a permit; 10 minutes for a notification by a 
vessel

[[Page 31812]]

permit holder 5 days prior to departure on a fishing trip; 10 minutes 
for the requirement that vessel permit holders who intend to make 
intentional sets on marine mammals must notify NMFS at least 48 hours 
in advance if there is a vessel operator change or within 72 hours if 
the change was made due to an emergency; 10 minutes for a notification 
by a vessel permit holder of any net modification at least 5 days prior 
to departure of the vessel; 15 minutes for a request for a DML; 20 
hours for an experimental fishing operation waiver; 10 minutes for a 
notification by a captain; managing owner; or vessel agent 48 hours 
prior to arrival to unload; 1 hour for a captain to complete the tuna 
tracking form; 5 minutes for a captain to complete the dolphin-safe 
certification; 10 minutes for a notification by a cannery 24 hours 
prior to receiving a shipment of domestic or imported ETP caught tuna; 
10 minutes for a cannery to provide the processor's receiving report; 
10 minutes for a cannery to provide the processor's storage removal 
report; 1 hour for a cannery to provide the monthly cannery receipt 
report; 30 minutes for an exporter; transshipper; importer; or 
processor to produce records if requested by the Administrator, 
Southwest Region.
    The preceding public reporting burden estimates for collections of 
information include time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information.
    Public comment is sought regarding whether this proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information will have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility; and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to the Administrator, Southwest Region at 
the address above, and to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, D.C. 
20503 (Attention: NOAA Desk Officer).

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Marine mammals, Penalties, Reporting and 
recordkeeping requirements, Transportation.

    Dated: June 8, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
    For the reasons set out in the preamble, 50 CFR part 216 is 
proposed to be 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., unless otherwise noted.

    2. In Sec. 216.3, definitions of ``ABI'', ``Director, Southwest 
Region'', ``ETP Fishing Area 1'', ``ETP Fishing Area 2'', ``ETP Fishing 
Area 3'', ``Fishing season'', ``Kill-per-set'', ``Kill-per-ton'', and 
``Purse seine set on common dolphins'' are removed, and definitions for 
``Administrator, Southwest Region'', ``Agreement on the International 
Dolphin Conservation Program'', ``Declaration of Panama'', ``Force 
majeure'', ``International Dolphin Conservation Program'', 
``International Dolphin Conservation Program Act'', ``International 
Review Panel'', and ``Per-stock per-year dolphin mortality limit'' are 
added in alphabetical order to read as follows:


Sec. 216.3  Definitions.

* * * * *
    Administrator, Southwest Region means the Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
    Agreement on the International Dolphin Conservation Program 
(Agreement on the IDCP) means the Agreement establishing the formal 
binding IDCP that was signed in Washington, DC on May 21, 1998.
* * * * *
    Declaration of Panama means the declaration signed in Panama City, 
Republic of Panama, on October 4, 1995.
* * * * *
    Force majeure means forces outside the vessel operator's or vessel 
owner's control that could not be avoided by the exercise of due care.
* * * * *
    International Dolphin Conservation Program (IDCP) 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 and the Agreement on the 
IDCP.
    International Dolphin Conservation Program Act (IDCPA) means Public 
Law 105-42, enacted into law on August 15, 1997.
    International Review Panel (IRP) means the International Review 
Panel established by the Agreement on the IDCP.
* * * * *
    Per-stock per-year dolphin mortality limit means the maximum 
allowable number of incidental dolphin mortalities and serious injuries 
from a specified stock per calendar year, as established under the 
IDCP.
* * * * *
    3. In Sec. 216.24, the introductory Note to Sec. 216.24 and 
paragraphs (e)(9), (f)(4), and (f)(7) are removed; paragraphs (e) and 
(f) are redesignated as paragraphs (f) and (e) respectively; newly 
designated paragraphs (e)(5) and (e)(6) are redesignated as paragraphs 
(e)(4) and (e)(5) respectively; newly designated paragraphs (f)(6) and 
(f)(8) are redesignated as paragraphs (f)(10) and (f)(11) respectively; 
and the section heading, paragraphs (a)(1), (a)(2)(i), (a)(2)(ii), 
(a)(3), (b) through (d), newly designated paragraphs (e)(1) through 
(e)(3), (f)(2), (f)(3) through (f)(5), and paragraph (g) are revised; 
and paragraphs (f)(6) through (f)(9), and (f)(12) are added to read as 
follows:


Sec. 216.24  Taking and related acts incidental to commercial fishing 
operations by tuna purse seine vessels in the eastern tropical Pacific 
Ocean.

    (a)(1) No marine mammal may be taken in the course of a commercial 
fishing operation by a United States purse seine fishing vessel in the 
ETP unless the taking constitutes an incidental catch as defined in 
Sec. 216.3, and vessel and operator permits have been obtained in 
accordance with these regulations, and such taking is not in violation 
of such permits or regulations.
    (2)(i) It is unlawful for any person using a United States purse 
seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) 
carrying capacity or less intentionally to deploy a net on or to 
encircle dolphins, or to carry more than two speedboats, if any part of 
its fishing trip is in the ETP.
    (ii) It is unlawful for any person using a United States purse 
seine fishing vessel of greater than 400 short tons (362.8 mt) carrying 
capacity that does not have a valid permit obtained under these 
regulations to catch, possess, or land tuna if any part of the vessel's 
fishing trip is in the ETP.
* * * * *
    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may 
be waived by the Administrator, Southwest

[[Page 31813]]

Region, for the purpose of allowing transit through the ETP. The waiver 
will provide, in writing, the terms and conditions under which the 
vessel must operate, including a requirement to report by radio to the 
Administrator, Southwest Region, the vessel's date of exit from or 
subsequent entry into the permit area, in order to transit the area 
with more than two speedboats.
    (b) Permits--(1) Vessel permit. The owner or managing owner of a 
United States purse seine fishing vessel of greater than 400 st (362.8 
mt) carrying capacity that participates in commercial fishing 
operations in the ETP must possess a valid vessel permit issued under 
this paragraph (b) of this section. This permit is not transferable and 
must be renewed annually. If a vessel permit holder surrenders his/her 
permit to the Administrator, Southwest Region, the permit will not be 
returned and a new permit will not be issued before the end of the 
calendar year, except that a permit may be transferred to the new owner 
when the vessel ownership changes. Vessel permits will be valid through 
December 31 of each year.
    (2) Operator permit. The person in charge of and actually 
controlling fishing operations (hereinafter referred to as the 
operator) on a United States purse seine fishing vessel engaged in 
commercial fishing operations under a vessel permit must possess a 
valid operator permit issued under this paragraph (b) of this section. 
Such permits are not transferable and must be renewed annually. To 
receive a permit, the operator must have satisfactorily completed all 
required training under (c)(4) of this section. The operator's permit 
is valid only when the permit holder is on a vessel with a valid vessel 
permit. Operator permits will be valid through December 31 of each 
year.
    (3) Possession and display. A valid vessel permit issued pursuant 
to paragraph (b)(1) of this section must be on board the vessel while 
engaged in fishing operations, and a valid operator permit issued 
pursuant to paragraph (b)(2) of this section must be in the possession 
of the operator to whom it was issued. Permits must be shown upon 
request to NMFS enforcement agents, or to U.S. Coast Guard officers, 
and to designated agents of NMFS and IATTC (including observers). A 
vessel owner or operator who is at sea on a fishing trip when his or 
her permit expires and to whom a permit for the next year has been 
issued may take marine mammals under the terms of the new permit 
without having to display it on board the vessel until the vessel 
returns to port.
    (4) Application for vessel permit. The owner or managing owner of a 
purse seine vessel may apply for a permit from the Administrator, 
Southwest Region, allowing at least 45 days for processing. An 
application must contain:
    (i) The name, official number, tonnage, carrying capacity in short 
or metric tons, maximum speed in knots, processing equipment, and type 
and quantity of gear, including an inventory of equipment required 
under paragraph (c)(2) of this section if the application is for purse 
seining involving the intentional taking of marine mammals, of the 
vessel that is to be covered under the permit;
    (ii) A statement of whether or not the vessel will make sets 
involving the intentional taking of marine mammals;
    (iii) The type and identification number(s) of Federal, State, and 
local commercial fishing licenses under which vessel operations are 
conducted, and the dates of expiration;
    (iv) The name(s) of the operator(s) anticipated to be used; and
    (v) The name and signature of the applicant, whether he/she is the 
owner or the managing owner, his/her address, telephone and fax 
numbers, and, if applicable, the name, address, telephone and fax 
numbers of the agent or organization acting on behalf of the vessel.
    (5) Application for operator permit. An applicant for an operator 
permit must provide the following information to the Administrator, 
Southwest Region, allowing at least 45 days for processing:
    (i) The name, address, telephone and fax numbers of the applicant;
    (ii) The type and identification number(s) of any Federal, state, 
and local fishing licenses held by the applicant;
    (iii) The name of the vessel(s) on which the applicant anticipates 
serving as an operator;
    (iv) The date, location, and provider of any training for the 
operator permit; and
    (v) The applicant's signature or the signature of the applicants 
representative, if any.
    (6) Fees. An application for a permit under paragraph (b)(1) of 
this section must include a fee of $200.00 for each vessel. There is no 
fee for the operator certificate. The Assistant Administrator may 
change the amount of these fees required at any time if a different fee 
is determined in accordance with the NOAA Finance Handbook and 
specified by the Administrator, Southwest Region, on the application 
form. Notification of such change will be published in the Federal 
Register. The vessel permit holder will submit the fee for the 
placement of observers, as established by the IATTC or other approved 
observer program, to the Administrator, Southwest Region, by September 
1 of the year prior to the year in which the vessel will be operated in 
the ETP, for transmittal by the date the application for a vessel 
permit is due.
    (7) The Administrator, Southwest Region, will determine the 
adequacy and completeness of an application and, upon determining that 
an application is adequate and complete, will approve that application 
and issue the appropriate permit, except for applicants having unpaid 
or overdue civil penalties, criminal fines, or other liabilities 
incurred in a legal proceeding.
    (8) Conditions applicable to all permits-- (i) General conditions. 
Failure to comply with the provisions of a permit or with these 
regulations may lead to suspension, revocation, modification, or denial 
of a permit. The permit holder, vessel, vessel owner, operator, or 
master may be subject, jointly and severally, to the penalties provided 
for under the MMPA. Procedures governing permit sanctions and denials 
are found at subpart D of 15 CFR part 904.
    (ii) Observer placement. By obtaining a permit, the permit holder 
consents to the placement of an observer on the vessel during every 
trip involving operations in the ETP and agrees to payment of the fees 
for observer placement to the IATTC or other designated international 
organization. The observers may be placed under an observer program of 
NMFS or of the IATTC, or under another international observer program 
approved by the IDCP and the Administrator, Southwest Region.
    (iii) Explosives. The use of explosive devices is prohibited in all 
tuna purse seine operations that involve marine mammals.
    (iv) Reporting requirements. In accordance with paragraph (e) of 
this section, the vessel permit holder of each permitted vessel will 
notify the Administrator, Southwest Region or the IATTC contact 
designated by the Administrator, Southwest Region, at least 5 days in 
advance of the vessel's departure on a fishing voyage to allow for 
observer placement on every voyage. After a fishing voyage is 
initiated, the vessel is obligated to carry an observer until the 
vessel completes its voyage. A vessel that fails to carry an observer 
in accordance with these observer placement requirements must not 
engage in fishing operations for which a vessel permit is required.
    (v) Data release. By using a permit, the permit holder authorizes 
the release

[[Page 31814]]

to NMFS of all data collected by observers aboard purse seine vessels 
during fishing trips under the IATTC observer program or another 
international observer program approved by the Administrator, Southwest 
Region. The permit holder must furnish the international observer 
program with all release forms required to authorize the observer data 
to be provided to NMFS. Data obtained under such releases will be used 
for the same purposes as would data collected directly by observers 
placed by NMFS and will be subject to the same standards of 
confidentiality.
    (vi) Protection from personal injury. A permit holder must take all 
necessary steps to protect a person from personal injury without 
killing or injuring a marine mammal.
    (vii) Protection from personal injury. Only if there are no 
alternative means to deter a marine mammal from causing personal 
injury, may a permit holder injure or kill the animal causing or about 
to cause immediate personal injury.
    (viii) Retention ermit. Marine mammals taken in the course of 
commercial fishing operations will be subject to the provisions of 
Sec. 216.3 with respect to ``incidental catch,'' and must not be 
retained except where a specific permit has been obtained authorizing 
the retention.
    (9) Mortality and serious injury reports. The Administrator, 
Southwest Region, will provide to the public periodic status reports 
summarizing the estimated incidental dolphin mortality and serious 
injury by U.S. vessels of individual species and stocks.
    (c) Purse seining by vessels with DMLs. In addition to the terms 
and conditions set forth in paragraph (b) of this section, any permit 
for a vessel to which a DML has been assigned under paragraph (c)(8) of 
this section and any operator permit when used on such a vessel are 
subject to the following terms and conditions:
    (1) General conditions. (i) A vessel may be used to take marine 
mammals only if the taking is an incidental occurrence in the course of 
normal commercial tuna purse seine fishing operations and the fishing 
operations are under the immediate direction of the holder of a valid 
operator's permit.
    (ii) Except as otherwise authorized by a specific permit, marine 
mammals incidentally taken must be immediately returned to the 
environment where captured without further injury. The operator of a 
purse seine vessel must take every precaution to refrain from causing 
or permitting incidental mortality or serious injury of marine mammals. 
Live marine mammals must not be brailed, sacked up, or hoisted onto the 
deck during ortza retrieval.
    (iii) The vessel permit holder will notify the Administrator, 
Southwest Region, or the IATTC contact designated by the Administrator, 
Southwest Region, of any change of vessel operator at least 48 hours 
prior to departing on a trip. In the case of a change in operator due 
to an emergency, notification must be made within 72 hours of the 
change.
    (2) Gear, equipment, and release procedures required for valid 
permit. A vessel possessing a vessel permit for purse seining involving 
the intentional taking of marine mammals may not engage in fishing 
operations involving the intentional deployment of the net on or 
encirclement of dolphins unless it is equipped with a dolphin safety 
panel in its purse seine, has the other required gear and equipment, 
and uses the required procedures.
    (i) Dolphin safety panel. The dolphin safety panel must be a 
minimum of 180 fathoms in length (as measured before installation), 
except that the minimum length of the panel in nets deeper than 18 
strips must be determined in a ratio of 10 fathoms in length for each 
strip of net depth. It must be installed so as to protect the perimeter 
of the backdown area. The perimeter of the backdown area is the length 
of corkline that begins at the outboard end of the last bowbunch pulled 
and continues to at least two-thirds the distance from the backdown 
channel apex to the stern tiedown point. The dolphin safety panel must 
consist of small mesh webbing not to exceed 1 1/4 inches (3.18 
centimeter (cm)) stretch mesh extending downward from the corkline and, 
if present, the base of the dolphin apron to a minimum depth equivalent 
to two strips of 100 meshes of 4 1/4 inches (10.80 cm) stretch mesh 
webbing. In addition, at least a 20-fathom length of corkline must be 
free from bunchlines at the apex of the backdown channel.
    (ii) Dolphin safety panel markers. Each end of the dolphin safety 
panel and dolphin apron must be identified with an easily 
distinguishable marker.
    (iii) Dolphin safety panel hand holds. Throughout the length of the 
corkline under which the dolphin safety panel and dolphin apron are 
located, hand hold openings must be secured so that they will not allow 
the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped 
object.
    (iv) Dolphin safety panel corkline hangings. Throughout the length 
of the corkline under which the dolphin safety panel and dolphin apron 
are located, corkline hangings will be inspected by the vessel operator 
following each trip. Hangings found to have loosened to the extent that 
a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be 
inserted between the cork and corkline hangings, must be tightened so 
as not to allow the insertion of a cylindrical object with a 1 3/8 inch 
(3.50 cm) diameter.
    (v) Speedboats. A minimum of three speedboats in operating 
condition must be carried. All speedboats carried aboard purse seine 
vessels and in operating condition must be rigged with tow lines and 
towing bridles or towing posts. Speedboat hoisting bridles must not be 
substituted for towing bridles.
    (vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
    (vii) Facemask and snorkel, or viewbox. At least two facemasks and 
snorkels or viewboxes must be carried.
    (viii) Lights. The vessel must be equipped with lights capable of 
producing a minimum of 140,000 lumens of output for use in darkness to 
ensure sufficient light to observe that procedures for dolphin release 
are carried out and to monitor incidental dolphin mortality.
    (3) Vessel inspection--(i) Annual. At least once during each 
calendar year, purse seine nets and other gear and equipment required 
by these regulations must be made available for inspection and for a 
trial set/net alignment by an authorized NMFS inspector or IATTC staff 
as specified by the Administrator, Southwest Region, in order to obtain 
a vessel permit.
    (ii) Reinspection. Purse seine nets and other gear and equipment 
required by these regulations must be made available for reinspection 
by an authorized NMFS inspector or IATTC staff as specified by the 
Administrator, Southwest Region. The vessel permit holder must notify 
the Administrator, Southwest Region, of any net modification at least 5 
days prior to departure of the vessel in order to determine whether a 
reinspection or trial set/net alignment is required.
    (iii) Upon failure to pass an inspection or reinspection, a vessel 
may not engage in purse seining involving the intentional taking of 
marine mammals until the deficiencies in gear or equipment are 
corrected as required by NMFS.
    (4) Operator permit holder training requirements. An operator will 
maintain proficiency sufficient to perform the procedures required 
herein, and must attend and satisfactorily complete a formal training 
session approved by the Administrator, Southwest Region, in order to 
obtain his or her permit. At the training session an attendee will be

[[Page 31815]]

instructed concerning the relevant provisions and regulatory 
requirements of the MMPA and the IDCP, and the fishing gear and 
techniques that are required for, or will contribute to, reducing 
serious injury and mortality of dolphin incidental to purse seining for 
tuna. Operators who have received a written certificate of satisfactory 
completion of training and who possess a current or previous calendar 
year permit will not be required to attend additional formal training 
sessions unless there are substantial changes in the relevant 
provisions or implementing regulations of the MMPA or the IDCP, or in 
fishing gear and techniques. Additional training may be required for 
any operator who is found by the Administrator, Southwest Region, to 
lack proficiency in the required fishing procedures or familiarity with 
the relevant provisions or regulations of the MMPA or the IDCP.
    (5) Marine mammal release requirements. All operators must use the 
following procedures during all sets involving the incidental taking of 
marine mammals in association with the capture and landing of tuna.
    (i) Backdown procedure. Backdown must be performed following a 
purse seine set in which dolphins are captured in the course of 
catching tuna, and must be continued until it is no longer possible to 
remove live dolphins from the net by this procedure. At least one 
crewman must be deployed during backdown to aid in the release of 
dolphins. Thereafter, other release procedures required will be 
continued so that all live dolphins are released prior to the 
initiation of the sack-up procedure.
    (ii) Prohibited use of sharp or pointed instrument. The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (iii) Sundown sets prohibited. On every set encircling dolphin, the 
backdown procedure must be completed no later than one-half hour after 
sundown, except as provided here. For the purpose of this section, 
sundown is defined as the time at which the upper edge of the sun 
disappears below the horizon or, if the view of the sun is obscured, 
the local time of sunset calculated from tables developed by the U.S. 
Naval Observatory or other authoritative source approved by the 
Administrator, Southwest Region. A sundown set is a set in which the 
backdown procedure has not been completed and rolling the net to sack-
up has not begun within one-half hour after sundown. Should a set 
extend beyond one-half hour after sundown, the operator must use the 
required marine mammal release procedures including the use of the high 
intensity lighting system. In the event a sundown set occurs where the 
seine skiff was let go sufficiently in advance of sundown that the 
vessel should have been able to comply with the sundown set 
prohibition, and an earnest effort to rescue dolphins is made, the 
International Review Panel of the IDCP may recommend to the United 
States that in the view of the International Review Panel, prosecution 
by the United Sates is not recommended. Any such recommendation will be 
considered by the United States in evaluating the appropriateness of 
prosecution in a particular circumstance.
    (iv) Dolphin safety panel. During backdown, the dolphin safety 
panel must be positioned so that it protects the perimeter of the 
backdown area. The perimeter of the backdown area is the length of 
corkline that begins at the outboard end of the last bow bunch pulled 
and continues to at least two-thirds the distance from the backdown 
channel apex to the stern tiedown point.
    (6) Experimental fishing operations. The Administrator, Southwest 
Region, may authorize experimental fishing operations, consistent with 
the provisions of the IDCP, for the purpose of testing proposed 
improvements in fishing techniques and equipment that may reduce or 
eliminate dolphin mortality or serious injury, or do not require the 
encirclement of dolphins in the course of fishing operations. The 
Administrator, Southwest Region, may waive, as appropriate, any 
requirements of this section except DMLs and the obligation to carry an 
observer.
    (i) A vessel permit holder may apply for an experimental fishing 
operation waiver by submitting the following information to the 
Administrator, Southwest Region, no less than 90 days before the date 
the proposed operation is intended to begin:
    (A) The name(s) of the vessel(s) and the vessel permit holder(s) to 
participate;
    (B) A statement of the specific vessel gear and equipment or 
procedural requirement to be exempted and why such an exemption is 
necessary to conduct the experiment;
    (C) A description of how the proposed modification to the gear and 
equipment or procedures is expected to reduce incidental mortality or 
serious injury of marine mammals;
    (D) A description of the applicability of this modification to 
other purse seine vessels;
    (E) The planned design, time, duration, and general area of the 
experimental operation;
    (F) The name(s) of the permitted operator(s) of the vessel(s) 
during the experiment; and
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research.
    (ii) The Administrator, Southwest Region, will acknowledge receipt 
of the application and, upon determining that it is complete, will 
publish a notice in the Federal Register summarizing the application, 
making the full application available for inspection and inviting 
comments for a minimum period of 30 days from the date of publication.
    (iii) The Administrator, Southwest Region, after considering the 
information identified in paragraph (c)(6)(i) of this section and the 
comments received, will either issue a waiver to conduct the experiment 
which includes restrictions or conditions deemed appropriate, or deny 
the application, giving the reasons for denial.
    (iv) A waiver for an experimental fishing operation will be valid 
only for the vessels and operators named in the permit, for the time 
period and areas specified, for trips carrying an observer designated 
by the Administrator, Southwest Region, when all the terms and 
conditions of the permit are met.
    (v) The Administrator, Southwest Region, may suspend or revoke an 
experimental fishing waiver in accordance with 15 CFR part 904 if the 
terms and conditions of the waiver or the provisions of the regulations 
are not followed.
    (7) Operator permit holder performance requirements. [Reserved]
    (8) Vessel permit holder dolphin mortality limits. For purposes of 
this paragraph, the term ``vessel permit holder'' includes both the 
holder of a current vessel permit and also the holder of a vessel 
permit for the following year.
    (i) By September 1 each year, a vessel permit holder desiring a DML 
for the following year must provide to the Administrator, Southwest 
Region, the name of the United States purse seine fishing vessel(s) of 
carrying capacity greater than 400 st (362.8 mt) that the owner intends 
to use to intentionally deploy purse seine fishing nets in the ETP to 
encircle dolphins in an effort to capture tuna during the following 
year. NMFS will forward the list of purse seine vessels to the Director 
of the IATTC on or before October 1, or as otherwise required by the 
IDCP, for assignment of a DML for the following

[[Page 31816]]

year under the provisions of Annex IV of the Agreement on the IDCP.
    (ii) Each vessel permit holder who desires a DML for the period 
July 1 to December 31 for a vessel that has not previously had a DML 
assigned for the year must provide the Administrator, Southwest Region, 
by September 1 of the prior year, the name of the United States purse 
seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying 
capacity that the owner intends to use to intentionally deploy purse 
seine fishing nets in the ETP to encircle dolphins in an effort to 
capture tuna during the period. NMFS will forward the list of purse 
seine vessels to the Director of the IATTC on or before April 1, or as 
otherwise required under the IDCP, for possible assignment of a DML for 
the 6-month period July 1 to December 31. Under the IDCP, the DML will 
be calculated by the IDCP from any unutilized pool of DMLs in 
accordance with the procedure described in Annex IV of the Agreement on 
the IDCP and will not exceed one-third of an unadjusted full-year DML 
as calculated by the IDCP.
    (iii)(A) The Administrator, Southwest Region, will notify vessel 
owners of the DML assigned for each vessel for the following year, or 
the second half of the year, as applicable.
    (B) The Administrator, Southwest Region, may adjust the DMLs in 
accordance with Annex IV of the Agreement on the IDCP. All adjustments 
of full-year DMLs will be made before January 1, and the Administrator, 
Southwest Region, will notify the Director of the IATTC of any 
adjustments prior to a vessel departing on a trip using its adjusted 
DML. The notification will be no later than February 1 in the case of 
adjustments to full-year DMLs, and no later than May 1 in the case of 
adjustments to DMLs for the second half of the year.
    (C) Within the requirements of Annex IV of the Agreement on the 
IDCP, the Administrator, Southwest Region, may adjust a vessel's DML if 
it will further scientific or technological advancement in the 
protection of marine mammals in the fishery or if the past performance 
of the vessel indicates that the protection or use of the yellowfin 
tuna stocks or marine mammals is best served by the adjustment, within 
the mandates of the MMPA. Experimental fishing operation waivers or 
scientific research permits will be considered a basis for adjustments.
    (iv)(A) A vessel assigned a full-year DML that does not make a set 
on dolphins by April 1 or that leaves the fishery will lose its DML for 
the remainder of the year, unless the failure to set on dolphins is due 
to force majeure or other extraordinary circumstances as determined by 
the International Review Panel.
    (B) A vessel assigned a DML for the second half of the year will be 
considered to have lost its DML if the vessel has not made a set on 
dolphins before December 31, unless the failure to set on dolphins is 
due to force majeure or extraordinary circumstances as determined by 
the International Review Panel.
    (C) Any vessel that loses its DML for 2 consecutive years will not 
be eligible to receive a DML for the following year.
    (D) NMFS will determine, based on available information, whether a 
vessel has left the fishery.
    (1) A vessel lost at sea, undergoing extensive repairs, operating 
in an ocean area other than the ETP, or for which other information 
indicates will no longer be conducting purse seine operations in the 
ETP for the remainder of the period covered by the DML will be 
determined to have left the fishery.
    (2) NMFS will make all reasonable efforts to determine the 
intentions of the vessel owner, and the owner of any vessel that has 
been preliminarily determined to have left the fishery will be provided 
notice of such preliminary determination and given the opportunity to 
provide information on whether the vessel has left the fishery prior to 
NMFS making a final determination under 15 CFR part 904 and notifying 
the IATTC.
    (v) Any vessel that exceeds its assigned DML after any applicable 
adjustment under paragraph (c)(8)(iii) of this section will have its 
DML for the subsequent year reduced by 150 percent of the overage, 
unless another adjustment is determined by the International Review 
Panel.
    (vi) A vessel that is covered by a valid vessel permit and that 
does not normally fish for tuna in the ETP but desires to participate 
in the fishery on a limited basis may apply for a per-trip DML from the 
Administrator, Southwest Region, at any time, allowing at least 60 days 
for processing. The request must state the expected number of trips 
involving sets on dolphins and the anticipated dates of the trip or 
trips. The request will be forwarded to the Director of the IATTC for 
processing in accordance with Annex IV of the Agreement on the IDCP. A 
per-trip DML will be assigned if one is made available in accordance 
with the terms of Annex IV of the IDCP. If a vessel assigned a per-trip 
DML does not set on dolphins during that trip, the vessel will be 
considered to have lost its DML unless this was a result of force 
majeure or other extraordinary circumstances as determined by the 
International Review Panel. After two consecutive losses of a DML, a 
vessel will not be eligible to receive a DML for the next fishing year.
    (vii) Observers will make their records available to the vessel 
operator at any reasonable time, including after each set, in order for 
the operator to monitor the balance of the DML(s) remaining for use.
    (viii) Vessel and operator permit holders must not deploy a purse 
seine net on or encircle any school of dolphins containing individuals 
of a particular stock of dolphins:
    (A) when the applicable per-stock per-year dolphin mortality limit 
for that stock of dolphins for that vessel, if so assigned, has been 
reached or exceeded; or
    (B) after the time and date provided in actual notification or 
notification in the Federal Register by the Administrator, Southwest 
Region, based upon the best available evidence, stating when any 
applicable per-stock per-year dolphin mortality limit has been reached 
or exceeded, or is expected to be reached in the near future.
    (ix) If individual dolphins belonging to a stock that is prohibited 
from being taken are not reasonably observable at the time the net 
skiff attached to the net is released from the vessel at the start of a 
set, the fact that individuals of that stock are subsequently taken 
will not be cause for enforcement action provided that all procedures 
required by the applicable regulations have been followed.
    (x) Vessel and operator permit holders must not intentionally 
deploy a purse seine net on or encircle dolphins intentionally:
    (A) when the vessel's DML, as adjusted, is reached or exceeded; or
    (B) after the date and time provided in actual notification or 
notice in the Federal Register by the Administrator, Southwest Region, 
based upon the best available evidence, that intentional sets on 
dolphins must cease because the total of the DMLs assigned to the U.S. 
fleet has been reached or exceeded, or is expected to be exceeded in 
the near future in the absence of the notification to cease intentional 
sets on dolphins.
    (xi) Sanctions recommended by the International Review Panel for 
any violation of these rules will be considered by NMFS and NOAA in 
enforcement actions brought under these regulations.
    (xii) Intentionally deploying a purse seine net on, or to encircle, 
dolphins after a vessel's DML, as adjusted, has been reached will 
disqualify the vessel from consideration for a DML for the

[[Page 31817]]

following year. If already assigned, the DML for the following year 
will be withdrawn, and the Director of the IATTC will be notified by 
NMFS that the DML assigned to that vessel will be unutilized. 
Procedures found at 15 CFR part 904 apply to the withdrawal of the 
permit.
    (d) Purse seining by vessels without assigned DMLs. In addition to 
the requirements of paragraph (b) of this section, a vessel permit used 
for a trip not involving an assigned DML and the operator's permit when 
used on such a vessel are subject to the following terms and 
conditions: a permit holder may take marine mammals provided that such 
taking is an accidental occurrence in the course of normal commercial 
fishing operations and the vessel does not intentionally deploy its net 
on, or to encircle, dolphins; marine mammals taken incidental to such 
commercial fishing operations will be immediately returned to the 
environment where captured without further injury, using release 
procedures such as hand rescue, and aborting the set at the earliest 
effective opportunity; the use of one or more rafts and facemasks or 
viewboxes to aid in the rescue of dolphins is recommended.
    (e) Observers--(1) The holder of a vessel permit must allow an 
observer duly authorized by the Administrator, Southwest Region, to 
accompany the vessel on all fishing trips in the ETP for the purpose of 
conducting research and observing operations, including collecting 
information that may be used in civil or criminal penalty proceedings, 
forfeiture actions, or permit or certificate sanctions.
    (2) Research and observation duties will be carried out in such a 
manner as to minimize interference with commercial fishing operations. 
Observers must be provided access to vessel personnel and to dolphin 
safety gear and equipment, electronic navigation equipment, radar 
displays, high powered binoculars, and electronic communication 
equipment. The navigator must provide true vessel locations by latitude 
and longitude, accurate to the nearest minute, upon request by the 
observer. Observers must be provided with adequate space on the bridge 
or pilothouse for clerical work, as well as space on deck adequate for 
carrying out observer duties. No vessel owner, master, operator, or 
crew member of a permitted vessel may impair, or in any way interfere 
with, the research or observations being carried out. Masters must 
allow observers to report, in coded form, information by radio 
concerning the take of marine mammals and other observer collected data 
upon request of the observer.
    (3) Any marine mammals killed during fishing operations that are 
accessible to crewmen and requested from the permit holder or master by 
the observer must be brought aboard the vessel and retained for 
biological processing, until released by the observer for return to the 
ocean. Whole marine mammals or marine mammal parts designated as 
biological specimens by the observer must be retained in cold storage 
aboard the vessel until retrieved by authorized personnel of NMFS or 
the IATTC when the vessel returns to port for unloading.
* * * * *
    (f) * * *
    (2)(i) HTS numbers requiring a fisheries certificate of origin, 
subject to yellowfin tuna embargo. The following U.S. Harmonized Tariff 
Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna 
products that are harvested in the ETP purse seine fishery and imported 
into the United States. All shipments containing tuna or tuna products 
imported into the United States under these HTS numbers must be 
accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370. 
Yellowfin tuna harvested using a purse seine in the ETP, if exported 
from a nation with purse seine vessels that fish for tuna in the ETP, 
may not be imported into the United States unless the nation has an 
affirmative finding under paragraph (f)(9) of this section.
    (A) Frozen:
    0303.42.00.20 Yellowfin tuna, whole, frozen.
    0303.42.00.40 Yellowfin tuna, eviscerated, head on, frozen.
    0303.42.00.60 Yellowfin tuna, other, frozen.
    (B) Canned:
    1604.14.10.00 Tuna, non-specific, in airtight containers, in oil.
    1604.14.20.40 Tuna, other than albacore, not over 7kg, in airtight 
containers.
    1604.14.30.40 Tuna, other than albacore, in airtight containers, 
not in oil, over quota.
    (C) Loins:
    1604.14.40.00 Tuna, not in airtight containers, not in oil, over 
6.8 kg.
    1604.14.50.00 Tuna, other, not in airtight containers.
    (D) Other (only if the product contains tuna):
    0304.10.40.99 Other fish, fillets and other fish meat, fresh or 
chilled.
    0304.20.20.66 Other fish, fillets, skinned, in blocks weighing over 
4.5kg, frozen.
    0304.20.60.99 Other fish, fillets, frozen.
    0304.90.10.89 Other fish meat, in bulk or immediate containers, 
fresh or chilled.
    0304.90.90.92 Other fish meat, fresh or chilled.
    (ii) HTS numbers requiring a fisheries certificate of origin, not 
subject to yellowfin tuna embargo. The following HTS numbers identify 
tuna or tuna products, other than fresh tuna or tuna identified in 
paragraph (f)(2)(i) of this section, known to be imported into the 
United States. All shipments imported into the United States under 
these HTS numbers must be accompanied by a Fisheries Certificate of 
Origin (FCO), NOAA Form 370. The shipment may not be imported into the 
United States if harvested by a large-scale driftnet nation, unless 
accompanied by the official statement described in paragraph (f)(5)(x) 
of this section.
    (A) Frozen:
    0303.41.00.00 Albacore or longfinned tunas, frozen.
    0303.43.00.00 Skipjack, frozen.
    0303.49.00.20 Bluefin, frozen.
    0303.49.00.40 Other tuna, frozen.
    (B) Canned:
    1604.14.20.20 Albacore tuna, in airtight containers, not in oil, 
not over 7kg, in quota.
    1604.14.30.20 Albacore tuna, in airtight containers, not in oil, 
not in quota.
    (iii) Exports from driftnet nations only: HTS numbers requiring a 
fisheries certificate of origin and official certification. The 
following HTS numbers identify categories of fish and shellfish, other 
than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this 
section, known to have been harvested using a large-scale driftnet and 
imported into the United States. Shipments exported from a large-scale 
driftnet nation and imported into the United States under any of the 
HTS numbers listed in paragraph (f)(2) of this section must be 
accompanied by an FCO and the official statement described in paragraph 
(f)(5)(x) of this section.
    (A) Frozen:

    0303.10.00.12 Salmon, chinook, frozen.
    0303.10.00.22 Salmon, chum, frozen.
    0303.10.00.32 Salmon, pink, frozen.
    0303.10.00.42 Salmon, sockeye, frozen.
    0303.10.00.52 Salmon, coho, frozen.
    0303.10.00.62 Salmon, Pacific, non-specific, frozen.
    0303.21.00.00 Trout, frozen.
    0303.22.00.00 Salmon, Atlantic and Danube, frozen.
    0303.29.00.00 Salmonidae, other, frozen.
    0303.75.00.10 Dogfish, frozen.
    0303.75.00.90 Other sharks, frozen.
    0303.79.20.41 Swordfish steaks, frozen
    0303.79.20.49 Swordfish, other, frozen.
    0303.79.40.96 Fish, other, frozen.
    0304.20.20.66 Fish, fillet, skinned, in blocks frozen over 4.5 
kg.

[[Page 31818]]

    0304.20.60.08 Salmonidae, salmon fillet, frozen.
    0304.20.60.99 Fish, fillet, frozen.
    0307.49.00.10 Squid, other, fillet, frozen.

    (B) Canned:

    1604.11.20.20 Salmon, pink, canned in oil, in airtight 
containers.
    1604.11.20.30 Salmon, sockeye, canned in oil, in airtight 
containers.
    1604.11.20.90 Salmon, other, canned in oil, in airtight 
containers.
    1604.11.40.10 Salmon, chum, canned, not in oil.
    1604.11.40.20 Salmon, pink, canned, not in oil.
    1604.11.40.30 Salmon, sockeye, canned, not in oil.
    1604.11.40.40 Salmon, other, canned, not in oil.
    1604.11.40.50 Salmon, other, canned, not in oil.
    1604.19.20.00 Fish, other, in airtight containers, not in oil.
    1604.19.30.00 Fish, other, in airtight containers, in oil.
    1605.90.60.55 Squid, loligo, prepared/preserved.

    (C) Other:

    0304.10.40.99 Other fish, fillets and other fish meat, fresh or 
chilled.
    0304.20.20.66 Other fish, fillets, skinned, in blocks weighing 
over 4.5kg, frozen.
    0304.20.60.98 Other fish, fillets, frozen.
    0304.90.10.89 Other fish, fillets and fish meat, in bulk or in 
immediate containers, fresh or chilled.
    0304.90.90.92 Other fish meat, fresh or chilled.
    0305.30.60.80 Fish, non-specific, fillet. dried/salted/brine.
    0305.49.40.40 Fish, non-specific, smoked.
    0305.59.20.00 Shark fins.
    0305.59.40.00 Fish, non-specific, dried.
    0305.69.40.00 Salmon, non-specific, salted.
    0305.69.50.00 Fish, non-specific, in immediate containers, 
salted, not over 6.8kg.
    0305.69.60.00 Fish, non-specific, salted, other.
    0307.49.00.50 Squid, non-specific, frozen/dried/salted/brine.
    0307.49.00.60 Squid, non-specific, & cuttle fish frozen/dried/
salted/brine.

    (3) Imports requiring a fisheries certificate of origin.
    Shipments containing the following may not be imported into the 
United States unless a completed FCO is filed with the Customs Service 
at the time of importation:
    (i) Tuna classified under an HTS number listed in paragraphs 
(f)(2)(i) or (f)(2)(ii) of this section, or
    (ii) Fish classified under an HTS number listed in paragraph (f)(2) 
of this section that was harvested by a vessel of a large-scale 
driftnet nation, as identified under paragraph (f)(8) of this section.
    (4) Disposition of fisheries certificates of origin. The FCO form 
described in paragraph (f)(5) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph 
(f)(3) of this section must accompany the tuna or tuna products from 
entry into the United States, through final processing for wholesale or 
retail sale, and it must be endorsed at each change in ownership. FCOs 
that require multiple endorsements must be submitted to the 
Administrator, Southwest Region, by the last endorser when all required 
endorsements are completed. An invoice must accompany the shipment at 
the time of importation or, in the alternative, must be made available 
within 30 days of a request by the Secretary or the Administrator, 
Southwest Region, to produce the invoice.
    (5) Contents of fisheries certificate of origin. An FCO, certified 
to be accurate by the first exporter of the accompanying shipment, must 
include the following information:
    (i) Exporter's full name and complete address;
    (ii) Consignee's full name and complete address;
    (iii) Species description (common and scientific names), product 
form, and HTS number;
    (iv) Quantity in kilograms of the fish or fish products;
    (v) Ocean area where the fish were harvested (ETP, Western Pacific 
Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian 
Ocean, or other);
    (vi) Type of fishing gear used to harvest the fish (purse seine, 
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and 
line, or other);
    (vii) Country under whose laws the harvesting vessel operated based 
upon the flag of the vessel or, if a certified charter vessel, the 
country that accepted responsibility for the vessel's fishing 
operations;
    (viii) Dates on which the fishing trip began and ended;
    (ix) If the shipment includes tuna or products from tuna harvested 
with a purse seine net in the eastern tropical Pacific, the name of the 
harvesting vessel; and
    (x) For shipments harvested by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (f)(8) of this section, a statement must be included on the 
Fisheries Certificate of Origin, or by separate attachment, that is 
dated and signed by a responsible government official of the harvesting 
nation, certifying that the fish or fish products were harvested by a 
method other than large-scale driftnet.
    (6) Dolphin-safe label. Tuna or tuna products sold in or exported 
from the United States that include on the label the term ``dolphin-
safe'' or any other term or symbol that claims or suggests the tuna 
were harvested in a manner not injurious to dolphins are subject to the 
requirements of subpart H of this part.
    (7) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin 
tuna or yellowfin tuna products harvested using a purse seine in the 
ETP identified by an HTS number listed in paragraph (f)(2)(i) of this 
section may not be imported into the United States if such tuna or tuna 
products were:
    (A) Harvested on or after the effective date of section 4 of the 
IDCPA by, or exported from, a nation that the Assistant Administrator 
has determined has purse seine vessels of greater than 400 st (362.8 
mt) carrying capacity harvesting tuna in the ETP, unless the Assistant 
Administrator has made an affirmative finding required for importation 
for that nation under paragraph (f)(9) of this section;
    (B) Exported from an intermediary nation, as defined in section 3 
of the MMPA, and a ban is currently in force prohibiting the 
importation from that nation under paragraph (f)(9)(viii) of this 
section; or
    (C) Harvested before the effective date of section 4 of the IDCPA 
and would have been banned from importation under the section 101 
(a)(2) of the MMPA at the time of harvest.
    (ii) Driftnet embargo. A shipment containing an item listed in 
paragraph (f)(2) of this section may not be imported into the United 
States that:
    (A) Was exported from or harvested on the high seas by any nation 
determined by the Assistant Administrator to be engaged in large-scale 
driftnet fishing, unless the FCO is accompanied by an original 
statement by a responsible government official of the harvesting 
nation, signed and dated by that official, certifying that the fish or 
fish products were harvested by a method other than large-scale 
driftnet; or
    (B) Is identified on the FCO as harvested by a large-scale 
driftnet.
    (8) Large-scale driftnet nation: determination. Based upon the best 
information available, the Assistant Administrator will determine which 
nations have registered vessels that engage in fishing using large-
scale driftnets. Such determinations will be published in the Federal 
Register. A responsible government official of any such nation may 
certify to the Assistant Administrator that none of the nation's 
vessels use large-scale driftnets. Upon receipt of the certification, 
the Assistant

[[Page 31819]]

Administrator may find, and publish such finding in the Federal 
Register, that none of that nation's vessels engage in fishing with 
large-scale driftnets.
    (9) Affirmative finding procedure for yellowfin tuna harvested 
using a purse seine in the ETP. (i) The Assistant Administrator will 
determine whether to make an affirmative finding based upon documentary 
evidence provided by the government of the exporting nation, by the 
government of the harvesting nation, if different, and by the IDCP and 
the IATTC, and will publish the finding in the Federal Register. An 
affirmative finding applies to tuna and tuna products that were 
harvested by vessels of the nation after the effective date of section 
4 of the IDCPA. To make an affirmative finding, the Assistant 
Administrator must find that:
    (A) The harvesting nation participates in the IDCP and is either a 
member of the IATTC or has initiated (and within 6 months thereafter 
completed) all steps required of applicant nations, in accordance with 
article V, paragraph 3, of the Convention establishing the IATTC, to 
become a member of that organization;
    (B) The nation is meeting its obligations under the IDCP and its 
obligations of membership in the IATTC, including all financial 
obligations; and
    (C) The annual total dolphin mortality and the annual per-stock 
per-year dolphin mortality of the nation's purse seine fleet (including 
certified charter vessels operating under its jurisdiction) did not 
exceed the aggregated total of the mortality limits assigned by the 
IDCP for that nation's purse seine vessels for the year preceding the 
year in which the finding would start.
    (ii) Documentary evidence and compliance with the IDCP.--(A) 
Documentary evidence. The Assistant Administrator will make an 
affirmative finding under paragraph (f)(9)(i) of this section only if 
the government of the harvesting nation provides directly to the 
Assistant Administrator, or authorizes the IATTC to release to the 
Assistant Administrator, complete, accurate, and timely information 
that enables the Assistant Administrator to determine whether the 
harvesting nation is meeting the obligations of the IDCP, and whether 
ETP-harvested tuna imported from such nation comports with the tracking 
and verification regulations of subpart H of this part.
    (B) Revocation. After considering the information provided under 
paragraph (f)(9)(ii)(A) of this section, each party's funding of the 
IATTC, and any other relevant information, including information that a 
nation is consistently failing to take enforcement actions on 
violations which diminish the effectiveness of the IDCP, the Assistant 
Administrator, in consultation with the Secretary of State, will revoke 
an affirmative finding issued to a nation that is not meeting the 
obligations of the IDCP.
    (iii) A harvesting nation may apply for an affirmative finding at 
any time by providing to the Assistant Administrator the information 
and authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of 
this section, allowing at least 60 days from the submission of complete 
information to NMFS for processing.
    (iv) The Assistant Administrator will make or renew an affirmative 
finding for the period from April 1 through March 31, or portion 
thereof, if the harvesting nation has provided all the information and 
authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this 
section, and met the requirements of paragraphs (f)(9)(i) and 
(f)(9)(ii) of this section.
    (v) Period of validity. A finding will remain valid for 1 year or 
for such other period as the Assistant Administrator may determine. An 
affirmative finding will be terminated if the Assistant Administrator 
determines that the requirements of this paragraph are no longer being 
met.
    (vi) Reconsideration of finding. The Assistant Administrator may 
reconsider a finding upon a request from, and the submission of 
additional information by, the harvesting nation, if the information 
indicates that the nation has met the requirements under paragraphs 
(f)(9)(i) and (f)(9)(ii) of this section.
    (vii) Verification. The Assistant Administrator may require the 
submission of supporting documentation or other verification of 
statements made in connection with requests to allow importations.
    (viii) Intermediary nation. Except as authorized under this 
paragraph (f)(9)(viii), any tuna or tuna products in the 
classifications listed in paragraph (f)(2)(i) of this section from any 
intermediary nation, as that term is defined in section 3 of the MMPA, 
may not be imported into the United States, unless shown not to be 
yellowfin tuna or yellowfin tuna products harvested by purse seine in 
the ETP. Imports from an intermediary nation of tuna and tuna products 
in these classifications may be imported into the United States if the 
Assistant Administrator determines and publishes in the Federal 
Register that the intermediary nation has provided certification and 
reasonable proof that it has not imported in the preceding 6 months 
yellowfin tuna or yellowfin tuna products that are subject to a ban on 
direct importation into the United States under section 101(a)(2)(B) of 
the MMPA. Shipments of yellowfin tuna or yellowfin tuna products 
through a nation on a through bill of lading or in another manner that 
does not enter the shipments into that nation as an importation do not 
make that nation an intermediary nation. The Assistant Administrator 
will review decisions under this paragraph (f)(9)(viii) upon the 
request of an intermediary nation. Such requests must be accompanied by 
specific and detailed supporting information or documentation 
indicating that a review or reconsideration is warranted. For purposes 
of this paragraph (f)(9)(viii), the term ``certification and reasonable 
proof'' means the submission to the Assistant Administrator by a 
responsible government official from the nation of a document 
reflecting the nation's customs records for the preceding 6 months, 
together with a certification attesting that the document is accurate.
    (ix) Pelly certification. After 6 months of an embargo being in 
place against a nation under this section, that fact will be certified 
to the President for purposes of certification under section 8(a) of 
the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long 
as the embargo remains in effect.
    (x) Coordination. The Assistant Administrator will promptly advise 
the Department of State and the Department of the Treasury of embargo 
decisions, actions and finding determinations.
* * * * *
    (12) 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 products unless the tuna products are either 
dolphin-safe or otherwise are covered by an affirmative finding made 
under paragraphs (f)(9)(i) through (f)(9)(v) of this section.
    (ii) For purposes of this section, tuna or tuna products are 
dolphin-safe if they are dolphin-safe under subpart H of this part.
    (g) Penalties. Any person or vessel subject to the jurisdiction of 
the United States will be subject to the penalties provided for under 
the MMPA for the conduct of fishing operations in violation of these 
regulations.
    4. In Subpart D, a new Sec. 216.46, is added to read as follows:

[[Page 31820]]

Sec. 216.46  U.S. citizens on foreign flag vessels operating under the 
International Dolphin Conservation Program.

    The MMPA's provisions will not apply to a citizen of the United 
States who incidentally takes any marine mammal during fishing 
operations in the ETP which are outside the U.S. exclusive economic 
zone (as defined in section 3 of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. Sec. 1802)), while employed 
on a fishing vessel of a harvesting nation that has an affirmative 
finding under Sec. 216.24(f) based upon the harvesting nation's 
participation in, and compliance with, the IDCP.
    5. Sections 216.90 through 216.94 are revised to read as follows:


Sec. 216.90  Purposes.

    This subpart governs the requirements for labeling tuna or tuna 
products offered for sale in or exported from the United States that 
uses the term ``dolphin-safe'' or that suggests the tuna were harvested 
in a manner not injurious to dolphins, or that uses any label or mark 
that refers to dolphins, porpoises, or marine mammals other than the 
official mark described in Sec. 216.96.


Sec. 216.91  Labeling requirements.

    (a) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, 
or seller of any tuna products that are exported from or offered for 
sale in the United States to include on the label of those products the 
term ``dolphin-safe'' or any other term or symbol that claims or 
suggests that the tuna contained in the products were harvested using a 
method of fishing that is not harmful to dolphins if the products 
contain tuna harvested:
    (1) By a vessel engaged in large-scale driftnet fishing;
    (2) Outside the ETP by a vessel using a purse seine net:
    (i) In a fishery in which 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), unless such products are 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 
Assistant Administrator, 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 unless the products are 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;
    (3) In the ETP by a purse seine vessel of greater than 400 st 
(362.8 mt) carrying capacity unless the tuna meets the requirements for 
being considered dolphin-safe under Secs. 216.92 and 216.94; or
    (4) By a vessel in a fishery other than one described in paragraphs 
(a)(1), (a)(2), or (a)(3) of this section that is identified by the 
Assistant Administrator 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 Assistant Administrator, that no dolphins were killed 
or seriously injured in the sets or other gear deployments in which the 
tuna were caught, provided that the Assistant Administrator determines 
that such an observer statement is necessary.
    (b) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to 
in this section in a campaign or effort to mislead or deceive consumers 
about the level of protection afforded dolphins under the IDCP.


Sec. 216.92  Tuna products harvested in the ETP by purse seine vessels 
greater than 400 st (362.8 mt) carrying capacity.

    (a) For purposes of Sec. 216.91(a)(3), tuna products that contain 
tuna harvested in the ETP by a purse seine vessel greater than 400 st 
(362.8 mt) carrying capacity are dolphin-safe if accompanied by:
    (1) A completed FCO;
    (2) A written statement executed by the captain providing the 
certification required under paragraph (b) of this section;
    (3) A written statement certifying that an observer approved by the 
IDCP was on board the vessel during the entire trip and that such 
observer provided the certification required under paragraph (b) of 
this section. The statement must be signed by:
    (i) The Assistant Administrator or his/her designee; or
    (ii) A representative of the IATTC; or
    (iii) An authorized representative of a nation participating in the 
IDCP whose national observer program meets the requirements of the 
IDCP; or
    (iv) An authorized representative of an international 
organization's observer program approved by the IDCP; and
    (4) An endorsement on the FCO by each exporter, importer, and 
processor certifying that, to the best of his or her knowledge and 
belief, the FCO and attached documentation are complete and accurate.
    (b) Certifications. (1) Both the written certifications of the 
captain and the observer must state that:
    (i) 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; or
    (ii) No dolphins were killed or seriously injured during the sets 
in which the tuna were caught.
    (2) After the date set by the Assistant Administrator in a notice 
in the Federal Register announcing an initial finding that does not 
conclude that the intentional deployment of purse seine nets on or 
encirclement of dolphins is having a significant adverse impact on any 
depleted dolphin stock, the written certifications of the captain and 
the observer need only provide the statement required in paragraph 
(b)(1)(ii) of this section.
    (3) If, after publishing notification under paragraph (b)(2) of 
this section, the Assistant Administrator publishes notification in the 
Federal Register announcing a subsequent finding that the intentional 
deployment of purse seine nets on or encirclement of dolphins is having 
a significant adverse impact on any depleted stock, the written 
certifications of the captain and the observer must provide all of the 
statements set forth in paragraph (b)(1) of this section commencing 
with the effective date provided in the notice.


Sec. 216.93  Submission of documentation.

    The documents required by Sec. 216.91 and Sec. 216.92 must 
accompany the tuna product whenever it is offered for sale or export, 
except that these documents need not accompany the product when offered 
for sale if:
    (a) The documents do not require further endorsement by any 
importer or processor, and are submitted to officials of the U.S. 
Customs Service at the time of import; or
    (b) the documents are endorsed as required by Sec. 216.92 (a)(4) 
and the final processor must deliver the endorsed documents to the 
Administrator, Southwest Region, or to U.S. Customs as required.


Sec. 216.94  Tracking and verification program.

    The Administrator, Southwest Region, has established a tracking and

[[Page 31821]]

verification program to accurately document the ``dolphin-safe'' 
condition of tuna as it is fished, processed, and sold to wholesale and 
retail markets in the United States and throughout the world. The 
tracking program includes procedures and reports for use when importing 
tuna into the U.S. and during domestic purse seine fishing, processing, 
and marketing in the U.S. and abroad. Verification of tracking system 
operations is attained through the establishment of audit and document 
review requirements.
    (a) Tracking fishing operations. (1) During ETP fishing trips by 
purse seine vessels, tuna caught in sets designated as ``dolphin-safe'' 
by the vessel observer must be stored separately from tuna caught in 
``non-dolphin-safe'' sets from the time of capture through unloading, 
except as provided in paragraph (a)(2) of this section. Vessel 
personnel will decide into which wells tuna will be loaded. The 
observer will initially designate whether each set is ``dolphin-safe'' 
or not, based on his/her observation of the set. The observer will 
initially identify a vessel fish well as ``dolphin-safe'' if the first 
tuna loaded into the well during a trip was captured in a set in which 
no dolphin died or was seriously injured. The observer will initially 
identify a vessel fish well as ``non-dolphin-safe'' if the first tuna 
loaded into the well during a trip was captured in a set in which a 
dolphin died or was seriously injured. Any tuna loaded into a well 
previously designated ``non-dolphin-safe'' or ``mixed well'' is 
considered ``non-dolphin-safe'' tuna. Except as provided for in 
paragraph (a)(2) of this section, the observer will change the 
designation of a ``dolphin-safe'' well to ``non-dolphin-safe'' if any 
tuna are loaded into the well that were captured in a set in which a 
dolphin died or was seriously injured. The well designation ``dolphin-
safe'' may change during a trip; however, a well designation of ``non-
dolphin-safe'' cannot be changed for the duration of the trip.
    (2) In the event that a set has been designated ``dolphin-safe'' by 
the observer, but late in the loading process dolphin mortality or 
serious injury is identified, the ``dolphin-safe'' designation of the 
set will change to ``non-dolphin-safe.'' If one or more of the wells 
into which the newly designated ``non-dolphin-safe'' tuna are loaded 
already contains ``dolphin-safe'' tuna loaded during a previous set, 
the observer will note in his or her trip records the well numbers and 
the estimated weight of such ``dolphin-safe'' tuna and designate such 
well(s) as ``mixed well(s).'' Once a well has been identified as ``non-
dolphin-safe'' or ``mixed'' all tuna subsequently loaded into that well 
will be designated as ``non-dolphin-safe.'' When the contents of such a 
``mixed well'' are received by a processor, the tuna will be weighed 
and separated according to the observer's report of the estimated 
weight of ``dolphin-safe'' and ``non-dolphin-safe'' tuna contained in 
that well.
    (3) Tuna tracking form. The observer will keep an IATTC tuna 
tracking form upon which an entry will be made for each set that 
includes identification by well number of ``dolphin-safe,'' ``non-
dolphin-safe,'' and ``mixed'' wells; weights by species composition, 
estimated tons loaded, set number, date of loading, trip number and 
dates, observer name, captain name, vessel name.
    (i) The Captain, managing owner, or vessel agent of a purse seine 
vessel returning to port from a trip, any part of which included 
fishing in the ETP, must provide at least 48 hours notice of the 
vessel's intended place of landing, arrival time, and schedule of 
unloading to the Administrator, Southwest Region.
    (ii) A NMFS representative may meet the vessel to receive the IATTC 
tuna tracking form(s) from the vessel captain and to monitor the 
handling of ``dolphin-safe'' and ``non-dolphin-safe'' tuna.
    (iii) The Captain must submit the completed, signed IATTC tuna 
tracking form that covers all tuna on board to the NMFS representative 
in person, or by mail to the Administrator, Southwest Region, within 5 
working days of the end of the trip.
    (4) Tuna off-loaded to trucks, storage facilities or carrier 
vessels must be loaded or stowed in such a way as to maintain and 
safeguard the identification of the ``dolphin-safe'' or ``non-dolphin-
safe'' designation of the tuna as it left the fishing vessel.
    (b) Tracking cannery operations. (1) Whenever a tuna canning 
company is scheduled to receive a domestic or imported shipment of ETP-
caught tuna for processing, the company must provide at least 48 hours 
notice of the location and arrival date and time of such a shipment, to 
the Administrator, Southwest Region, so that a NMFS representative can 
be present to monitor delivery and verify that ``dolphin-safe'' and 
``non-dolphin-safe'' tuna are clearly identified and remain segregated.
    (2) At the close of delivery activities, which may include 
weighing, boxing or containerizing, and transfer to cold storage or 
processing, the company must provide a copy of the processor's 
receiving report to the NMFS representative, if present. If a NMFS 
representative is not present, the company must submit a copy of the 
processor's receiving report to the Administrator, Southwest Region, by 
mail or fax within 5 working days. The processor's receiving report 
must contain, at a minimum: date of delivery, catcher vessel name and 
flag, trip number and dates, storage container number(s), ``dolphin-
safe'' or ``non-dolphin-safe'' designation of each container, species, 
fish condition, and weight of tuna in each container.
    (3) Tuna canning companies will report on a monthly basis the 
amounts of ETP-caught tuna that are removed from cold storage. This 
report may be submitted in conjunction with the monthly report required 
in paragraph (b)(5) of this section. This report must contain:
    (i) The date of removal;
    (ii) Storage container number(s) and ``dolphin-safe'' or ``non-
dolphin-safe'' designation of each container; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (4) During canning activities, ``non-dolphin-safe'' tuna may not be 
mixed in any manner or at any time in its processing with any 
``dolphin-safe'' tuna or tuna products and may not share the same 
storage containers, cookers, conveyers, tables, or other canning and 
labeling machinery.
    (5) Canned tuna processors must submit a report to the 
Administrator, Southwest Region, of all tuna received at their 
processing facilities in each calendar month whether or not the tuna is 
actually canned or stored during that month. Monthly cannery receipt 
reports must be submitted electronically or by mail before the last day 
of the month following the month being reported. Monthly reports must 
contain the following information:
    (i) Domestic receipts: species, condition (round, loin, dressed, 
gilled and gutted, other), weight in short tons to the fourth decimal, 
ocean area of capture (eastern tropical Pacific, western Pacific, 
Indian, eastern and western Atlantic, other), catcher vessel, trip 
dates, carrier name, unloading dates, and location of unloading.
    (ii) Import receipts: In addition to the information required in 
paragraph (b)(5)(i) of this section, a copy of the FCO for each 
imported receipt must be provided.
    (c) Tracking imports. All tuna products, except fresh tuna, that 
are imported into the United States must be accompanied by a properly 
certified FCO as required by Sec. 216.24(f).
    (d) Verification requirements.--(1) Record maintenance. Any 
exporter,

[[Page 31822]]

transshipper, importer, or processor of any tuna or tuna products 
containing tuna harvested in the ETP must maintain records related to 
that tuna for at least 3 years. These records include, but are not 
limited to: FCO and required certifications, any report required in 
paragraphs (a) and (b) of this section, invoices, other import 
documents, and trip reports.
    (2) Record submission. Within 30 days of receiving a written 
request from the Administrator, Southwest Region, any exporter, 
transshipper, importer, or processor of any tuna or tuna products 
containing tuna harvesting in the ETP must submit to the Administrator 
any record required to be maintained under paragraph (d)(1) of this 
section.
    (3) Audits and spot-checks. Upon request of the Administrator, 
Southwest Region, any such exporter, transshipper, importer, or 
processor must provide the Administrator, Southwest Region, timely 
access to all pertinent records and facilities to allow for audits and 
spot-checks on caught, landed, and processed tuna.
    (e) Confidentiality of proprietary information. Information 
submitted to the Assistant Administrator under this section will be 
treated as confidential in accordance with NOAA Administrative Order 
216-100 ``Protection of Confidential Fisheries Statistics.''
    6. In subpart H, Sec. 216.96 is added and reserved as follows:


Sec. 216.96  Official mark. [Reserved]

[FR Doc. 99-15004 Filed 6-9-99; 5:05 pm]
BILLING CODE 3510-22-F