[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Rules and Regulations]
[Pages 30-59]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33632]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 216

[Docket 990324081-9336-02, ID072098G]
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), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues an interim final rule to implement provisions of 
the International Dolphin Conservation Program Act (IDCPA). This 
interim final rule allows the entry of yellowfin tuna into the United 
States under certain conditions from nations fully complying with the 
International Dolphin Conservation Program (IDCP). It also allows U.S. 
vessels to set their purse seines on dolphins in the ETP. The standard 
for the use of ``dolphin-safe'' labels for tuna products also is 
changed. This interim final rule also establishes a tuna-tracking 
program to ensure adequate tracking and verification of tuna harvested 
in the ETP.

DATES: Effective February 2, 2000. Comments must be received no later 
than 5 p.m., Pacific standard time, on April 3, 2000.

ADDRESSES: Written comments should be sent to J. Allison Routt, NMFS, 
Southwest Region, Protected Resources Division, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA 90802-4213. Comments also may be sent via 
facsimile (fax) to 562-980-4027. Comments will not be accepted if 
submitted via e-mail or Internet. Copies of the Environmental 
Assessment (EA) accompanying this interim final rule may be obtained by 
writing to the same address. Send comments regarding reporting burden 
estimates or any other aspect of the collection-of-information 
requirements in this interim rule, including suggestions for reducing 
the burdens to J. Allison Routt and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest 
Region, Protected Resources Division, (562) 980-4020, fax 562-980-4027.

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 1993, nations fishing in the ETP under the La 
Jolla Agreement had reduced dolphin mortality to less than 5,000 
dolphins annually, 6 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,

[[Page 31]]

Spain, Vanuatu, and Venezuela to sign the Panama Declaration to 
strengthen and enhance the IDCP.
    The program outlined in the Panama Declaration provides greater 
protection for dolphins and enhances the conservation of yellowfin tuna 
and other living marine resources in the ETP ecosystem. The Panama 
Declaration anticipated that the United States would amend 16 U.S.C. 
1361 et seq., 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 Panama 
Declaration, signatory nations agreed to develop a legally binding 
international agreement.
    Congress considered several bills to implement the Panama 
Declaration, ultimately passing the IDCPA. The IDCPA was signed into 
law on August 15, 1997. The IDCPA was the domestic endorsement of the 
La Jolla Agreement, incorporating elements of the Panama Declaration, 
under the auspices of the Inter-American Tropical Tuna Commission 
(IATTC). The IDCPA primarily amends provisions in the MMPA and the 
Dolphin Protection Consumer Information Act (DPCIA), 16 U.S.C. 1385, 
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.
    The IDCPA, together with the Panama Declaration, became the 
blueprint for the Agreement on the IDCP. In May 1998, eight nations, 
including the United States, signed a binding, international agreement 
to implement the IDCP. The Agreement on the IDCP became effective on 
February 15, 1999, after four nations (United States, Panama, Equador, 
and Mexico) deposited their instruments of ratification, acceptance, or 
adherence with the depository for the agreement. On March 3, 1999, the 
Secretary of State provided the required certification to Congress that 
the Agreement on the IDCP had been adopted and was in force. 
Consequently, the IDCPA became effective on that date. Provisions to 
implement the IDCPA and the new international agreement for dolphin 
conservation in the ETP are the subject of this interim final rule.

Proposed Rule

    On June 14, 1999, NMFS published proposed regulations to implement 
the IDCPA (64 FR 31806). These regulations proposed to (1) allow the 
entry of yellowfin tuna into the United States under certain conditions 
from nations fully complying with the IDCP; (2) allow U.S. vessels to 
set their purse seines on dolphins in the ETP; (3) change the standard 
for use of dolphin-safe labels for tuna products and; (4) establish a 
system to ensure adequate tracking and verification of tuna harvested 
in the ETP.
    Public comments on the proposed rule were accepted through July 14, 
1999. NMFS held two public hearings on the proposed rule: one in Long 
Beach, CA, on July 8, 1999, and one in Silver Spring, MD, on July 14, 
1999. In addition to publishing the proposed rule in the Federal 
Register, NMFS sent it to industry representatives, environmental 
groups, vessel and operator certificate of inclusion holders, 
importers, IDCP member nations, Department of State, IATTC, U.S. 
Commissioners to the IATTC, Department of the Treasury, U.S. Customs 
Service, Marine Mammal Commission, Department of Justice, and the 
Federal Trade Commission. NMFS also issued a press release announcing 
the public hearings and summarizing the major issues contained in the 
proposed rule. Information in the press release was published in 
several national newspapers, NMFS websites, and broadcast on several 
radio stations.

Responses to Comments

    NMFS received over two thousand comments during the comment period 
for the proposed rule. Comments were received from industry, 
environmental organizations, members of the public, the Marine Mammal 
Commission, the IATTC, the Department of State, the U.S. Customs 
Service, and foreign nations. Key issues and concerns are summarized 
below and responded to as follows:

Comments on Definitions

    Comment 1: One commenter indicated that the ETP boundary in the 
regulations should reflect the boundary used by the IDCP. Another 
commenter indicated that the language in the Agreement on the IDCP does 
not state whether fishing on dolphin occurs west of 150o 
West. Another commenter requested that the language be clarified by 
inserting ``in the Dolphin Protection Consumer Information Act 
(DPCIA)'' in the preamble sentence of the proposed rule: ``Although the 
Agreement on the IDCP applies in the Pacific Ocean west only to 
150o W. meridian, the current definition of ETP is out to 
160o W.'' as well as by deleting ``that overlap with the 
waters covered by the Agreement'' from the preamble sentence ``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.'' Another commenter 
suggested clarifying the sentence by inserting ``between 
160o W and 150o W'' for the overlap area.
    Response: Although the Agreement on the IDCP defines ``ETP'' as the 
area of the Pacific Ocean west to the 150o W, the DPCIA 
defines the ``ETP'' as the area of the Pacific Ocean out to the 
160o West meridian. The recommended changes were not 
incorporated into the interim final rule since the background 
information on the ``ETP'' is not included in this preamble.
    Comment 2: Many commenters recommended defining the term ``serious 
injury'' in the final rule.
    Response: NMFS agrees and has defined a ``serious injury'' as an 
injury that will likely result in mortality. Individual reported 
injuries will be evaluated by the IATTC and NMFS using criteria 
developed by the International Program.
    Comment 3: One commenter suggested modifying the definition of 
``IDCPA'' in Sec. 216.3 by adding the phrase ``and any subsequent 
amendments thereto'' to the end of the sentence.
    Response: NMFS disagrees. The proposed definition for IDCPA is 
accurate.
    Comment 4: Two commenters indicated that the term ``significant 
adverse impact'' must be defined since the definition of ``dolphin-
safe'' is linked to the phrase.
    Response: NMFS disagrees that this term needs to be defined in 
these regulations. In making the ``findings'' required by paragraph (g) 
of the DPCIA, NMFS considered, and will consider, a number of factors 
for determining whether the tuna purse seine fishery ``is having a 
significant adverse impact'' on the depleted dolphin stocks in the ETP. 
NMFS' focus is on the recovery and growth of depleted dolphin stocks in 
the ETP, as well as assessing changes in their population sizes over 
time.
    Comment 5: One commenter suggested including a definition for 
``fishing operations'' to avoid any misunderstandings as to when a 
permit is required.
    Response: NMFS disagrees. The rule is clear when permits are 
required and exceptions are available for transiting the ETP.

[[Page 32]]

Comment on Harmonized Tariff Schedule (HTS) Item Numbers

    Comment 6: One commenter suggested removing the period from all the 
cited HTS numbers appearing before the HTS statistical suffixes for 
these numbers (e.g., 0303.42.00.20 should be 0303.42.0020) and under 
Sec. 216.24(f)(2)(i)(D) change 0304.20.60.99 to 0304.20.6096 and change 
0304.90.90.92 to 0304.90.9091; under Sec. 216.24(f)(iii)(A) change 
0303.79.40.96 to 0303.70.4097 and change 0304.20.60.99 to 0304.20.6096; 
and under Sec. 216.24(f)(iii)(C) change 0304.20.60.98 to 0304.20.6096.
    Response: NMFS agrees that the suggested numbers are correct and 
has made the changes.

Comments on Affirmative Findings and Embargoes

    Comment 7: Several commenters indicated that the proposed rule does 
not contain a provision that would prevent a nation from being 
embargoed because of a disaster set or actions of a rogue vessel which 
might cause a nation to exceed its fleet Dolphin Mortality Limit (DML) 
even though the IDCP contains a provision to handle this type of 
situation. The commenters felt yellowfin tuna should not be embargoed 
if a nation is in compliance with the IDCP.
    Response: NMFS agrees that if a nation's fleet's annual dolphin 
mortality or per-stock dolphin mortality exceeds its aggregate DMLs 
because of extraordinary circumstances beyond the control of the nation 
or of the vessel's captain, but otherwise is in conformance to the 
Agreement on the IDCP, that nation should not be embargoed. NMFS has 
made the change at Sec. 216.24(f)(9)(i)(C). However, the nation must 
have immediately required all its vessels to cease fishing for tuna in 
association with dolphins for the remainder of the calendar year. This 
flexibility should encourage harvesting nations to comply with the 
Agreement on the IDCP, yet threaten economic sanctions against nations 
that do not control or manage their fleets.
    Comment 8: One commenter questioned the accuracy of the title, 
``Affirmative finding procedure for yellowfin tuna harvested using a 
purse seine in the ETP'' of Sec. 216.24(f)(9) since under the IDCPA, an 
affirmative finding is made for a harvesting nation rather than for the 
yellowfin tuna that is harvested.
    Response: NMFS agrees and has changed the title of 
Sec. 216.24(f)(9) to read, ``Affirmative finding procedure for nations 
harvesting yellowfin tuna using a purse seine in the ETP.''
    Comment 9: One commenter pointed out that Sec. 216.24(f)(9)(i)(C) 
establishes different standards for United States and foreign fleets 
regarding the consequences of exceeding a nation's aggregate DMLs. A 
foreign nation would not receive an affirmative finding if it exceeded 
its aggregate DML the previous year. In contrast, as reflected by 
Sec. 214.24(c)(8)(x)(B), the U.S. fleet would have to cease setting on 
dolphins if it reached or exceeded its aggregate DML, but yellowfin 
tuna caught by U.S. vessels could still be sold in the United States in 
subsequent years.
    Response: NMFS agrees. Except in the case of a foreign nation that 
acts quickly to close its fishery after exceeding its national DML, as 
described in the response to Comment 7 above, the commenter's 
description is generally correct. The IDCPA does not require the United 
States to obtain an affirmative finding since U.S. vessels do not 
``import'' tuna into the United States. Because of this, U.S. vessels 
still would be allowed to sell yellowfin tuna and yellowfin tuna 
products in the United States even if the United States had reached or 
exceeded its aggregate DML. However, appropriate sanctions would be 
taken against individual U.S. vessels that exceed their DML.
    Comment 10: In Secs. 216.24(f)(9)(iv) and 216.24(f)(9)(vi), the 
word ``met'' should probably be ``meets'' to reflect that the finding 
is to be based on current information.
    Response: NMFS agrees in part and has changed the language to ``has 
met'' in Sec. 216.24(f)(9)(iv). The phrase ``has met'' has been kept in 
Sec. 216.24(f)(9)(vi) to be consistent with the verb tense of the 
sentence.
    Comment 11: One commenter indicated the first sentence of 
Sec. 216.24(f)(9)(viii) should be revised to indicate that yellowfin 
tuna is harvested ``using'' purse seine nets, rather than ``by'' purse 
seine nets.
    Response: NMFS agrees that the participle ``using'' and has made 
the change.
    Comment 12: One commenter indicated the second sentence of 
Sec. 216.24(f)(9)(viii) would be clearer if the word ``only'' were 
inserted after the phrase ``may be imported into the United States 
...''
    Response: NMFS agrees and has inserted the word ``only'' in the 
sentence.
    Comment 13: One commenter indicated that the proposed regulations 
at Sec. 216.24(f)(12) do not seem to allow the purchase or sale of non-
dolphin-safe tuna caught by U.S. vessels fishing in the ETP pursuant to 
a DML since the vessels will not be covered by an affirmative finding 
unless the United States issues an affirmative finding covering their 
own vessels.
    Response: NMFS agrees that the IDCPA does not prohibit the purchase 
or sale of non-dolphin-safe tuna harvested by U.S. vessels fishing in 
compliance with the IDCP. The IDCPA prohibits the sale, purchase, offer 
for sale, transport or shipment of non-dolphin-safe tuna products in 
the United States unless the tuna is harvested in compliance with the 
IDCP and the harvesting nation is a member of the IATTC (MMPA section 
307(a)(1)). For administrative convenience, NMFS proposed allowing only 
non-dolphin-safe tuna harvested by a nation with an affirmative finding 
to be sold, offered for sale, transported, purchased, or shipped in the 
United States. Upon further evaluation, NMFS has discovered that this 
requirement could inadvertently impact U.S. vessels because the U.S. 
does not give an affirmative finding to itself. The problem has been 
corrected by changing the title at Sec. 216.24(f)(12) from ``Dolphin-
Safe Requirements'' to ``Market Prohibitions'' and clarifying that the 
prohibition does not apply to tuna harvested by U.S. vessels in 
compliance with the IDCP.
    Comment 14: Several commenters disagreed with NMFS' interpretation 
of the language in MMPA section 101(a)(2)(B)(iii) and believed that 
Congress intended to cap the total DMLs assigned to each harvesting 
nation's vessels at the total DMLs assigned to its vessels during 1997, 
or subsequent calendar years, even if the number of vessels has 
increased since then.
    Response: NMFS disagrees that the IDCPA (or its legislative 
history) indicates Congress intended NMFS to compare a nation's 
aggregate (fleet) mortality limits to the nation's earlier limits. 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. Under the La Jolla Agreement, the annual international 
cap was allocated on a per-vessel basis. However, under the Agreement 
on the IDCP, while the annual international cap on dolphin mortality is 
allocated on a per-nation basis, each nation's allocation is based on 
the number of its eligible purse seine vessels that are expected to set 
on dolphin in the upcoming year. As a

[[Page 33]]

result, 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 
vessel transfers between nations) without affecting overall 
international dolphin mortality. Harvesting nations that adopted good 
dolphin conservation programs because of the IDCP might quit the IDCP 
if subjected to this type of embargo. NMFS' interpretation is 
consistent with the Agreement on the IDCP and the intent of Congress to 
discourage mortalities.
    Comment 15: One commenter suggested that, in addition to NMFS' 
proposal, an affirmative finding should also require that the DML 
assigned to each vessel in the international fishery never exceed the 
DML assigned in 1997. The commenter recommended inserting the language, 
``keeps its fleet's annual dolphin mortality within the aggregate DML 
assigned to the fleet, and that it did not assign an individual vessel 
a total annual DML in excess of the DML established in 1997.''
    Response: NMFS disagrees. NMFS proposes to focus on a nation's 
compliance with the international regime. Only a nation that fails to 
keep its own fleet's annual dolphin mortality within the aggregate DMLs 
assigned to the fleet would be embargoed, except in the case of 
extraordinary circumstances as described in the response to Comment 7. 
This 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 on decisions by other 
Parties to the IDCP. This encourages other harvesting nations to comply 
with the IDCP and threatens economic sanctions against only those 
nations that do not control or manage their own fleets.
    Comment 16: Commenters indicated that the intent of Congress in 
MMPA section 101(a)(2)(B)(iii) is to reduce dolphin mortality to a 
level approaching zero through the setting of annual limits and the 
goal of eliminating dolphin mortality. The commenters refer to the 
proposed rule at Sec. 216.24(f)(9)(C) which would not condition 
affirmative findings on reducing international mortality limits to a 
``level approaching zero.'' Commenters indicated that the proposed rule 
does not ratchet down the dolphin mortality as intended by Congress but 
rather establishes an international DML cap of 5,000 annually as stated 
in the IDCP agreement.
    Response: NMFS believes the language in the rule is consistent with 
the IDCPA and the Agreement on the IDCP. The IDCPA and the Agreement on 
the IDCP do not establish processes to reduce dolphin mortality in the 
ETP tuna purse seine fishery to zero. The proposed rule's 
interpretation makes the most sense in the context of MMPA section 
101(a)(2)(B) because it focuses on a nation's compliance within the 
international regime. Under this interpretation, 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, except for 
extraordinary circumstances as described in the response to Comment 7. 
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 programs, rather than on 
decisions by other Parties to the IDCP.
    Comment 17: Commenters indicated that to get an affirmative 
finding, nations should not have to apply on an annual basis, 
especially with regard to information such as whether the nation is a 
member of the IATTC or of the IDCP since the information is available 
from other sources (e.g., the IATTC and Department of State). A nation 
seeking to maintain an affirmative finding should only have to 
authorize the release of the information instead of having to submit 
the information on an annual basis. NMFS also received comments that it 
should be the responsibility of the harvesting nation to obtain and 
provide supporting documentation to the Assistant Administrator, and 
not the Assistant Administrator's responsibility to obtain the 
documentation from the IATTC. In addition, several commenters opposed 
the concept of a multi-year affirmative finding process and supported 
the existing annual application process for an affirmative finding.
    Response: NMFS will gather the necessary documentary information 
through other channels (e.g., the Department of State and/or the 
IATTC), provided nations authorize the release of the information, 
instead of having each nation submit the information to NMFS on an 
annual basis. NMFS will evaluate this evidence and continue to make 
affirmative findings on an annual basis. Beginning with the first year 
the regulations are effective and every 5 years thereafter, or if 
requested, nations will need to submit sufficient documentary evidence 
to NMFS for an affirmative finding. After considering alternatives, 
NMFS determined this is an appropriate balance of burdens between NMFS 
and applicant nations.
    Comment 18: One commenter recommended that NMFS require more 
detailed information than required by the IDCPA to be submitted by 
harvesting nations to obtain an affirmative finding. The commenter 
suggested keeping the previous implementing regulations at 
Sec. 216.24(e)(5)(i) through (v) and updating the information as 
necessary to reflect the requirements in the IDCP.
    Response: Many of the regulations listed under the previous 
implementing regulations at Sec. 216.24(e)(5)(i) through (v) are not 
consistent with the IDCPA or are no longer applicable (e.g., 
comparability standards) and would be unnecessary and burdensome to the 
harvesting nation requesting an affirmative finding. Most of the 
information required to make an affirmative finding is available 
through the IATTC. The IDCPA sets new standards for affirmative 
findings and no longer requires much of the information in the previous 
implementing regulations.
    Comment 19: One commenter suggested that, under the background 
information on affirmative findings in the proposed rule, language from 
Annex III to the Agreement on the IDCP that requires a system for 
allocating stock-specific quotas be established within 6 months of the 
entry of force of the Agreement on the IDCP (e.g., by August 15, 1999) 
should be included.
    Response: NMFS recognizes that Annex III, Per-Stock, Per-Year 
Dolphin Mortality Caps, to the Agreement on the IDCP indicates that, 
within 6 months of the entry into force, the Parties agreed to 
establish a system for the allocation of the per-stock, per-year 
dolphin mortality cap for each stock for the ensuing year and years 
thereafter by August 15, 1999. The Parties have agreed on a global 
allocation system that will establish per-stock, per-year mortality 
limits that will be in effect during calendar year 2000, at a level of 
0.2 percent of the minimum population estimate. In addition, the IATTC 
will monitor the per-stock, per-year mortality limits and notify 
nations when limits are being approached so that fishing will cease on 
the stock(s) whose limits have been reached.
    Comment 20: In the Preamble, the final rule should clearly indicate 
what Secretarial findings have been made, what findings remain to be 
made, and how the regulations relate to those findings.
    Response: The initial finding was published in the Federal Register 
on May 7, 1999 (64 FR 24590). NMFS found that there is insufficient 
evidence

[[Page 34]]

to determine that chase and encirclement by the tuna purse seine 
fishery ``[are] having a significant adverse impact'' on depleted 
dolphin stocks in the ETP. Based on this finding, the Assistant 
Administrator will apply the ``dolphin-safe'' definition specified in 
paragraph (h)(1) of the DPCIA (16 U.S.C. 1385(h)(1)) to tuna harvested 
in the ETP by purse seine vessels with carrying capacity greater than 
400 short tons (362.8 mt), e.g., that no dolphins were killed or 
seriously injured during the sets in which the tuna were caught. The 
final finding is due between July 1, 2001, and December 31, 2002.
    Comment 21: One commenter urged NMFS to develop and define a better 
process under Sec. 216.24(f)(5)(x), other than a statement from a 
responsible government official, to verify that shipments exported from 
designated ``high seas driftnet nations'' were not harvested by using 
large-scale driftnets.
    Response: NMFS disagrees. This system has been in place since 1992 
and was not proposed to be changed by this rule. In addition to 
statements from responsible government officials, the U.S. Coast Guard 
and NMFS will continue to monitor the world's oceans for the use of 
high seas driftnets as required by the High Seas Driftnet Fisheries 
Enforcement Act of 1992 (Pub. L. No. 102-582).
    Comment 22: One commenter asked whether the ``certification and 
reasonable proof'' required in Sec. 216.24(f)(9)(viii) of the proposed 
rule for intermediary nations to export tuna to the United States is 
applicable to all yellowfin tuna or specifically to tuna harvested by 
purse seine in the ETP.
    Response: The certification and reasonable proof required by 
Sec. 216.24(f)(9)(viii) applies to intermediary nations exporting 
yellowfin tuna and yellowfin tuna products harvested with purse seine 
nets in the ETP. For the purposes of Sec. 216.24(f)(9)(viii), the term 
``certification and reasonable proof'' entails the nation's customs 
records for the preceding 6 months, together with a certification 
attesting that the documents are accurate.
    Comment 23: One commenter indicated that the proposed 
Sec. 216.24(f)(9)(vi) was unclear whether determinations made by the 
Assistant Administrator and published in the Federal Register for 
intermediary nations are made only once or are made on an ongoing 
basis. The commenter suggested that NMFS conduct a periodic review of 
determinations rather than requiring the review only when requested by 
the intermediary nation.
    Response: The Assistant Administrator will publish the 
determination for intermediary nations only once in the Federal 
Register. However, the Assistant Administrator will review decisions 
upon the request of an intermediary nation and will review documentary 
evidence that indicates a nation has 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.
    Comment 24: One commenter felt that the United States should not 
require intermediary nations to prove that they did not import tuna 
that was caught by nations not subject to an embargo. The regulations 
should be clear that a nation will be considered to be an intermediary 
nation only when the Assistant Administrator becomes aware of credible 
evidence that the nation in question is importing yellowfin tuna from 
the ETP that are subject to a ban on direct importation into the United 
States. In addition, such nations should be provided an opportunity to 
refute any such allegations.
    Response: NMFS agrees. The regulations at Sec. 216.24(f)(9)(vi) 
have been revised to clarify that the Assistant Administrator will 
determine which nations are intermediary nations and publish such 
determinations in the Federal Register. After a nation is determined to 
be an ``intermediary nation,'' it will be the responsibility of the 
nation to provide the documentary evidence for a new determination by 
proving 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.
    Comment 25: One commenter stated that yellowfin tuna or yellowfin 
tuna products subject to direct ban on importation to the United States 
may pass through a nation on a through bill of lading without causing 
the nation to be an intermediary nation.
    Response: NMFS agrees since, under section 3 of the MMPA, an 
``intermediary nation'' is defined as a nation that exports yellowfin 
tuna or yellowfin tuna products to the United States and that imports 
yellowfin tuna or yellowfin tuna products that are subject to a direct 
ban on importation into the United States pursuant to MMPA section 
101(a)(2)(B). Since shipments on a through bill of lading are not 
actually imported or exported from a nation under U.S. regulations at 
Sec. 216.24(f)(9)(viii), the nation would not be considered an 
``intermediary nation'' under the MMPA.
    Comment 26: One commenter expressed concern that no nation whose 
vessels currently fish in the ETP are meeting their ``financial 
obligations to the IATTC'' as part of the requirement to receive an 
affirmative finding under Sec. 216.24(f)(9)(i)(B). In addition, several 
commenters requested a list of the criteria used by the United States 
to determine whether the nations whose vessels are fishing in the ETP 
are meeting their financial obligations.
    Response: The IDCPA does not specify what is meant by ``financial 
obligations.'' Under the Tuna Conventions Act (the Convention), the 
expenses of the IATTC are to be shared by the Contracting Parties in 
relation to the proportion of the total catch from the fisheries 
covered by the Convention utilized by each Party. ``Utilized'' is 
defined under the Tuna Conventions Act as tuna eaten fresh or processed 
for internal consumption or export. Thus, tuna landed by a Party and 
subsequently exported in the round are not included in computing that 
Party's contribution, but those which are exported in canned form are 
included. NMFS will request the IATTC Director to verify that a nation 
is fulfilling its financial obligations. The IATTC intends to develop a 
new framework for determining contributions that will allow the IATTC 
to continue functioning at its current level under the new 
international agreement. The U.S. delegation will assist with the 
development of this new framework.
    Comment 27: One commenter requested that NMFS include a table in 
the regulations indicating the ``level of utilization'' (e.g., amount 
of tuna eaten fresh or processed for internal consumption or export) in 
1998 by each nation, the approximate amount of financial contribution 
required, and the type of documentation that will be required to prove 
the financial obligations have been met.
    Response: NMFS will summarize the information used to make an 
affirmative finding for each nation at the time an affirmative finding 
notice is published in the Federal Register. Publishing information 
tables in regulations is not practical since information becomes 
obsolete too quickly. NMFS will rely on the IATTC staff to provide 
documentary information to determine whether Parties are meeting their 
financial obligations.
    Comment 28: One commenter indicated that ``financial obligations'' 
should mean ``equitable'' funding as defined in the Convention for the 
establishment of an IATTC (``shall be related to the proportion of the 
total catch'') to obtain an affirmative finding.

[[Page 35]]

The commenter also suggested the United States should pay no more than 
its share of the cost to operate the IATTC.
    Response: This rule does not govern dues paid to the IATTC. By 
meeting the membership obligations of the IATTC, including all 
financial obligations, nations are complying with the Convention for 
the establishment of an IATTC. The financial obligations are determined 
by the proportion of the total catch from the fisheries covered by the 
Convention utilized by each Party. ``Utilized'' is defined as tuna 
eaten fresh or processed for internal consumption or export.
    Comment 29: One commenter noted that, unless a harvesting nation is 
contributing an equitable amount to support the IATTC, the nation 
should be embargoed as required by the IDCPA.
    Response: NMFS disagrees since the IDCPA does not require a nation 
to provide ``equitable contributions'' to support the IATTC in order to 
obtain an affirmative finding, but rather to meet its ``financial 
obligations'' of membership to the IATTC. However, under section 
108(a)(2)(C) of the MMPA, the Secretary of Commerce through the 
Secretary of State may initiate negotiations to revise the Conventions 
for the Establishment of an Inter-American Tropical Tuna Commission 
which will incorporate a revised schedule of annual contributions to 
cover the expenses of the IATTC that is ``equitable'' to participating 
nations. As explained in the response to Comment 26, the State 
Department is proactively engaged in discussions on this topic with 
other IATTC member nations.
    Comment 30: Three commenters indicated there needs to be a 
mechanism for verifying that harvesting nations have become members of, 
or have ``initiated'' the process of becoming a member in, the IATTC 
and are meeting the financial obligations of such membership.
    Response: NMFS will be able to obtain the necessary information 
from the IATTC staff to verify whether harvesting nations have become 
members of, or have ``initiated'' the process of becoming members of, 
the IATTC and are meeting the financial obligations of such membership.
    Comment 31: One commenter indicated that, if the United States is 
going to continue to fund the IATTC in excess of 90 percent, then the 
observer data collected by the IATTC staff should be available to U.S. 
citizens under the Freedom of Information Act (FOIA).
    Response: NMFS disagrees since the FOIA does not apply to 
international organizations. U.S. money does not transform the IATTC 
into a U.S. government agency. Therefore, observer data collected by 
the IATTC are not available under the FOIA.

Comments on ``Dolphin-Safe'' Requirements

    Comment 32: One commenter wanted to confirm that U.S. customs would 
not be enforcing the labeling requirement.
    Response: The Federal Trade Commission is responsible for enforcing 
the labeling requirement of the DPCIA because of its role in enforcing 
consumer protection laws. NMFS also enforces violations related to 
knowingly and willfully false statements by captains, observers/
observer programs, importers, exporters, or processors, if used to 
support a dolphin-safe label under paragraph (d)(2)(B) of the DPCIA. 
The U.S. Customs Service and NMFS enforce tuna importation requirements 
and monitor compliance with the dolphin-safe labeling requirements.
    Comment 33: One commenter does not understand why Sec. 216.92(a) 
begins with the sentence ``For purposes of Sec. 216.91(a)(3) ...'' 
rather than with the word ``Tuna.''
    Response: NMFS agrees and has modified the sentence.
    Comment 34: One commenter wanted clarification that non-dolphin-
safe tuna, or tuna not accompanied by supporting documentation, could 
be imported and sold lawfully in the United States under the IDCPA, 
just not labeled as ``dolphin-safe.''
    Response: Non-dolphin-safe tuna may be imported or sold in the 
United States under the IDCPA provided the tuna products were harvested 
in compliance with the IDCP by a vessel flagged with an IATTC member 
nation. All tuna imports must be accompanied by a completed Fisheries 
Certificate of Origin, NOAA Form 370. However, tuna products must have 
the documentation described in Sec. 216.92 to be labeled ``dolphin-
safe.''
    Comment 35: One commenter indicated that the word ``or'' should be 
deleted between proposed Secs. 216.92(b)(1)(i) and 216.92(b)(1)(ii) and 
the word ``and'' should be inserted. Another commenter suggested that 
the word ``or'' should be deleted to clarify the certifications 
required for tuna products harvested in the ETP by purse seine vessels 
greater than 400 st (362.8 mt) carrying capacity.
    Response: NMFS has rewritten and restructured the certification 
provision to make it clearer.
    Comment 36: One commenter indicated that Sec. 216.92(b)(2) does not 
indicate that the initial finding effective date is the same as the 
effective date of the interim final rule. The final rule should 
indicate the actual date after which a certification under proposed 
Sec. 216.92(b)(1)(i) is no longer required.
    Response: NMFS agrees. The initial finding required by paragraph 
(g)(1) of the DPCIA becomes effective when this interim final rule 
becomes effective. The interim final rule now states that, for tuna 
harvested by large purse seine vessels in the ETP, a dolphin-safe label 
need not be supported by statements certifying ``no intentional 
encirclement during the trip'' as of the effective date of this rule. 
Of course, the standard could revert back, depending on the final 
finding that is required to be made by the year 2002.
    Comment 37: Two commenters indicated that the proposed rule 
requires tuna canneries to establish separate production facilities, 
one for dolphin-safe tuna and one for non-dolphin-safe tuna, a practice 
which would impose prohibitive capital and operational costs. The 
commenters recommend separate production times to facilitate monitoring 
and verification.
    Response: The proposed rule did not suggest that tuna canneries 
would be required to establish separate production facilities for 
dolphin-safe and non-dolphin-safe tuna. However, the rule does require 
separate production times for processing the different types of tuna.
    Comment 38: Commenters expressed concern that changing the 
definition of dolphin-safe tuna from the old definition of ``no 
dolphins were intentionally set on to capture tuna'' to the new 
definition ``no dolphins were killed or seriously injured in the sets 
or other gear deployments in which the tuna were caught'' will be 
confusing to the general public. Moreover, commenters expressed the 
need to reserve the term ``dolphin-safe'' for tuna caught without any 
intentional encircling of dolphin.
    Response: IDCPA mandates the change (for tuna harvested by large 
purse seine vessels in the ETP) unless the initial and/or final 
finding, based on NMFS' research, shows that 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. 
NMFS agrees that the public may be confused, and NMFS will make efforts 
to educate the public about the changes.
    Comment 39: Commenters expressed a need for a certification system 
that will distinguish between tuna caught without intentionally 
encircling dolphins and tuna caught by intentionally encircling 
dolphins.

[[Page 36]]

    Response: NMFS disagrees. The IDCPA requires a domestic tuna 
tracking and verification system that provides for the effective 
tracking of tuna harvested in the ETP by U.S. and by foreign vessels 
that may be labeled as ``dolphin-safe,'' which, for tuna harvested by 
large purse seine vessels in the ETP currently, means ``no serious 
injury or mortality during sets.'' The IDCPA does not require the tuna 
tracking and verification program to distinguish between tuna caught by 
intentional encirclement of dolphin and tuna caught without the 
intentional encirclement of dolphin.
    Comment 40: Some commenters indicated that the use of the term 
``dolphin-safe'' is deceptive to the consumer since the term does not 
suggest that tuna can be labeled ``dolphin-safe'' even though dolphins 
may have been killed in the process of capturing the tuna.
    Response: As required by the DPCIA, tuna product containing tuna 
harvested by large purse seine vessels in the ETP may only be labeled 
dolphin-safe if no dolphins were killed or seriously injured during the 
sets in which the tuna were caught.
    Comment 41: One commenter indicated that as long as tuna is 
harvested in accordance with the IDCP, it should be labeled ``dolphin-
safe.''
    Response: NMFS lacks statutory authority to change the labeling 
standard to allow all tuna harvested in accordance with the IDCP to be 
labeled as ``dolphin-safe.''
    Comment 42: One commenter opposes the importation of tuna into the 
United States that was caught by chasing or encircling dolphins.
    Response: The IDCPA does not restrict ETP purse seine harvested 
tuna imported into the United States if the tuna is caught by a nation 
with an affirmative finding under MMPA Sec. 101(a)(2)(B). Generally, a 
nation will qualify for an affirmative finding if tuna is caught in 
compliance with the Agreement on the IDCP, the harvesting nation is a 
member of the IATTC and meeting its financial obligations, and the 
nation does not exceed the total DMLs and per-stock per-year DMLs 
permitted for that nation's vessels under the IDCP. Furthermore, 
permitted U.S. vessels with DMLs are allowed to chase and encircle 
dolphins in the ETP under the IDCP.
    Comment 43: One commenter believed that the term ``default 
standard'' (e.g., no intentional encirclement during a trip and no 
mortality and serious injury during sets) in the SUPPLEMENTARY 
INFORMATION section of the proposed rule should not be used since it 
implies that there is a baseline against which other standards will be 
compared.
    Response: The ``default standard'' was a term used by NMFS in the 
proposed rule to differentiate between two possible dolphin-safe 
definitions under the DPCIA. The term was just an informal shorthand 
definition and was not intended to have any legal or policy 
significance. The term was not meant to imply that it was a comparison 
for other standards.
    Comment 44: One commenter indicated that the preamble to the 
proposed rule should have used more precise language to describe that 
the ``no mortality or serious injury during the set'' standard of 
``dolphin-safe'' would remain in effect unless the Secretary makes a 
finding that there is a significant adverse impact caused by the 
current fishing practices in the tuna purse seine fishery.
    Response: NMFS agrees that, in trying to describe the process in 
plain English, the preamble description could have been more precise. 
The commenter's description is correct.
    Comment 45: One commenter indicated that there should be an 
opportunity for public comment at the time the Secretary makes the 
final finding. Another commenter indicated that any required change in 
the labeling standard should be made without additional rulemaking.
    Response: The Secretary will publish the final finding in the 
Federal Register. However, the process of publishing a finding does not 
constitute a formal rulemaking and, therefore, there will be no formal 
comment period. Depending on the final finding, the dolphin-safe 
labeling standard could change.
    Comment 46: One commenter indicated that the intent of the Congress 
was to base the initial finding on a reasonable conclusion rather than 
on definitive proof.
    Response: NMFS does not necessarily require definitive proof, but 
the Secretary would be able to make a finding that 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 only if sufficient evidence were available to conclude that the 
significant impact is due to the fishery.

Comments on Dolphin Mortality Limits

    Comment 47: Two commenters indicated that it would be a violation 
of the IDCPA to lift tuna embargoes until the per-stock per-year limits 
have been adopted.
    Response: Per-stock per-year limits have been adopted. The Meeting 
of the Parties agreed to a global allocation system that will establish 
a per-stock per-year DML in calendar year 2000, at a level of 0.2 
percent of the minimum population estimate. If the IDCP allocates per-
stock per-year DMLs to the national level, then an affirmative finding 
will require a nation's per-stock mortality to stay within its per-
stock limits, as described in the response to Comment 7.
    Comment 48: One commenter indicated that the Secretary should make 
a finding not only on whether there is a significant adverse impact on 
any depleted dolphin stock in the ETP, but also on whether there is a 
significant adverse impact on any marine mammal stock.
    Response: Under paragraph (g) of the DPCIA (16 U.S.C. 1385(g)), the 
Secretary is required to make a finding only 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.
    Comment 49: One commenter expressed concern that it is not 
practical for vessel permit holders to request second semester DMLs by 
September 1, of the year before, more than 6 months in advance. The 
commenter recommended changing the application deadline to April 1, 3 
months before the second semester begins.
    Response: NMFS recognizes the difficulty and inconvenience caused 
by requesting vessel permit holders to request a half-year DML by 
September 1, approximately 10 months in advance. Nevertheless, under 
the Agreement on the IDCP (Annex IV, section 1, paragraph 1), nations 
are required to submit second semester DML requests to the Meeting of 
the Parties prior to October 1. However, per-trip DMLs are available 
for vessels which do not normally fish for tuna in the ETP, but which 
may occasionally desire to participate in the fishery on a limited 
basis, provided that such vessels and operators meet the permit 
requirements under Sec. 216.24(b).
    Comment 50: Commenters indicated that the IDCPA encourages vessel 
captains to make at least one intentional set on dolphins every year 
before April 1, which creates a ``use or lose'' mentality. This 
language contradicts the intent of the IDCPA and penalizes captains who 
try to reduce dolphin mortality instead of providing rewards and 
incentives. The commenter stated that the language at 
Sec. 216.24(c)(8)(iv) needs to be deleted.

[[Page 37]]

    Response: Under the Agreement on the IDCP (Annex IV, section II, 
paragraph 1), any vessel which is assigned a full-year DML must make at 
least one set on dolphins prior to April 1 to keep from losing its DML 
allocation. An intentional set on dolphins does not necessarily lead to 
dolphin mortality. In addition, this requirement is part of the process 
established by the international program for deterring frivolous 
requests.
    Comment 51: One commenter suggested revising Sec. 216.24(c)(8)(ii) 
to read, ``Each vessel permit holder that desires a DML only for the 
period July 1 to December 31, must provide to the Administrator, 
Southwest Region, by September 1, the name* * *. 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 6 month period ...''
    Response: NMFS agrees and has made the changes to accurately 
reflect the requirement under the Agreement on the IDCP to forward a 
list of purse seine vessels to the Director of the IATTC on or before 
October 1, rather than April 1, as proposed.
    Comment 52: One commenter recommended rewarding skippers who do not 
use all of their DMLs by reallocating additional DMLs, taken from those 
vessels with the worst performance. Operator performance could be 
measured by kill rate per set or kill rate per ton.
    Response: The Meeting of the Parties to the Agreement on the IDCP 
resolved to establish a working group to develop captain incentives. 
However, NMFS has not developed incentives to include in the interim 
final rule.
    Comment 53: One commenter recommended that NMFS propose a system of 
incentives to vessel captains in this rule as required by the IDCPA 
that could be used as a model by the international community. The 
commenter stated that DMLs are not an effective incentive to achieve 
low dolphin mortality since DMLs are not performance-based and do not 
provide incentives for good performance to reach the zero dolphin 
mortality rate goal.
    Response: Recently, the Meeting of the Parties established a 
working group of which the United States is a member to develop 
incentives and rewards to encourage vessel operators to lower dolphin 
mortality and serious injury.
    Comment 54: One commenter recommended that NMFS should wait to 
incorporate the DML utilization standard that will be developed by 
IATTC staff and the International Review Panel (IRP) under the 
Agreement on the IDCP, rather than establish a utilization standard of 
its own (e.g., lose its DML and may not set on dolphins for the 
remainder of the year if no dolphin sets are made prior to April 1 of 
that year) and potentially undermine the IDCP.
    Response: The language in the interim final rule reflects the 
current language in the Agreement on the IDCP and is consistent with 
the IDCPA.
    Comment 55: One commenter indicated that the ``trading in'' of 
unused DMLs to vessels requesting a second semester DML is counter to 
the IDCPA intent to reduce dolphin mortality and serious injury to 
levels approaching zero.
    Response: The procedure for issuing a second semester DML for the 
6-month period July 1 to December 31, is in accordance with the 
procedure described in Annex IV of the Agreement on the IDCP and 
consistent with the goals of the IDCPA. In addition, second semester 
DMLs are only 2/3 of an annual DML.
    Comment 56: One commenter strongly supported the provision that 
states, ``Any vessel that exceeds its assigned DML after any applicable 
adjustment under paragraph (c)(8)(v) of this section will have its DML 
for the subsequent year reduced by 150 percent of the overage.''
    Response: NMFS agrees. This requirement is consistent with the 
Agreement on the IDCP, Annex IV, Section III, paragraph 6.
    Comment 57: One commenter suggested the language, ``By March 15, 
the Administrator, Southwest Region shall notify the Director of the 
IATTC of any unused DML, that will be returned to the IDCP, to be added 
to the pool of unutilized DML'' at the end of Sec. 216.24(c)(8)(iv).
    Response: NMFS disagrees since under the Agreement on the IDCP, the 
Director of the IATTC will use data collected from the international 
observer program to determine whether any DMLs will not be used or 
whether any DMLs have been forfeited. In this case, the Administrator, 
Southwest Region will not need to notify the Director of the IATTC.
    Comment 58: One commenter urged NMFS to delete the phrase ``or 
exceeded'' from paragraph 216.24(c)(8)(x)(A) (``when the vessel's DML, 
as adjusted, is reached or exceeded;'') to make it clear that once a 
vessel has reached its DML, the vessel and operator permit holders must 
not intentionally deploy a purse seine net on or encircle dolphins.
    Response: NMFS disagrees. Although a vessel operator must not 
intentionally deploy a purse seine net on or encircle dolphins 
intentionally when the vessel's DML is reached, sometimes in a single 
set a vessel unintentionally exceeds its DML. If so, the vessel must 
stop fishing after the DML is ``exceeded.'' While this situation is 
discouraged and should be avoided, it is not in itself a violation of 
the IDCPA or the Agreement on the IDCP. In addition, as a penalty, the 
next year's DML for that vessel will be reduced by one and a half times 
the amount the previous year's DML was exceeded.
    Comment 59: One commenter indicated that in paragraph 
216.24(c)(8)(x)(B), the phrase ``in the absence of the notification to 
cease intentional sets on dolphins'' is confusing because it seems 
misplaced and suggested editing the paragraph.
    Response: NMFS agrees and has deleted the phrase ``in the absence 
of the notification to cease intentional sets on dolphins'' since it 
does not provide any additional value to the paragraph.

Comments on Observers

    Comment 60: Will observers provided by the Forum Fisheries Agency 
pursuant to the South Pacific Tuna Treaty be acceptable to the IATTC 
and NMFS for vessels fishing in the ETP whether or not the vessel 
intends to make intentional sets on dolphins?
    Response: There is a provision in the Agreement on the IDCP that 
allows the Director of the IATTC to use a trained observer from another 
international program if the placement of an observer from the On-Board 
Observer Program is not practical and the vessel will not set on 
dolphins. However, Forum Fisheries Agency observers are not currently 
recognized by the Meeting of the Parties.
    Comment 61: One commenter suggested modifying the language in the 
proposed rule to specify that the payment of observer placement fees 
are submitted to the Administrator, Southwest Region, and that the 
Administrator, Southwest Region will then forward the fees to the 
applicable international organization (e.g., the IATTC).
    Response: The rule has been modified to indicate the fees for 
observer placement will be forwarded to the applicable international 
organization by the Administrator, Southwest Region.
    Comment 62: One commenter indicated that the methods for 
communicating marine mammal mortality data by observers, as well as 
details as to whether the data will be coded or made secure in some 
other way, have yet to be finalized. Therefore,

[[Page 38]]

the text under Sec. 216.24(e)(2) ``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'' should be more general.
    Response: NMFS agrees and has changed the language at 
Sec. 216(e)(2) to read ``Masters must allow observers to use vessel 
communication equipment to report information concerning the take of 
marine mammals and other observer collected data upon request of the 
observer.''
    Comment 63: One commenter felt that having observers collect 
information that may be used in civil or criminal penalty proceedings 
would jeopardize the safety of an observer and lead to data 
falsification.
    Response: NMFS disagrees. NMFS has the authority to use observer 
data as evidence in civil or criminal cases and based on NMFS' 
experience observing U.S. tuna purse seine vessels from 1976 through 
1995, using observer data during legal proceedings has not jeopardized 
the safety of an observer or led to data falsification.
    Comment 64: One commenter objected to any type of national observer 
program being used other than the IATTC program as stated in 
Sec. 216.24(b)(8)(ii).
    Response: NMFS disagrees. The Agreement on the IDCP allows for each 
Party to maintain its own national observer program in accordance with 
the provisions of Annex II. However, at least 50 percent of the 
observers on the vessels of each Party shall be IATTC observers.
    Comment 65: One commenter indicated that the observer reports are 
routinely falsified and that is the only reason the annual fishery-wide 
dolphin mortality statistics have appeared to drop below 5,000 animals.
    Response: NMFS recognizes the possibility that the observer reports 
may be falsified, or incorrect for other reasons, and therefore 
continues to support and participate in the IRP's efforts to ensure 
observer objectivity and the collection of accurate and reliable 
scientific data.

Comments on Vessel and Operator Permits

    Comment 66: One commenter suggested that a 45-day processing time 
for vessel permits and operator permits is excessive. In addition, the 
commenter expressed confusion why operators must attend a skipper 
education workshop if the vessel does not have a DML.
    Response: NMFS would only require up to 45 days to process an 
application in the case where a captain must schedule a skipper 
education workshop to qualify for an operator permit or a vessel owner 
must schedule a vessel inspection of the required vessel gear and 
equipment to obtain a vessel permit. Although the focus of the skipper 
education workshop will be on dolphin safety requirements and the IDCP, 
the operator may accidentally encircle a marine mammal and needs to 
know the requirements for releasing the animal under the MMPA and the 
IDCP.
    Comment 67: One commenter believes that NMFS should require the 
release of marine mammals incidentally caught in a purse seine net by a 
vessel that does not have a DML. The following language was suggested 
to bring the proposed regulations into conformance with the Agreement 
on the IDCP's requirement under Annex VIII, paragraph 4: ``Any vessel 
that captures marine mammals taken incidental to commercial fishing 
operations shall attempt to release the marine mammals using every 
means at its disposal, including aborting the set. Marine mammals shall 
be immediately returned to the environment where captured without 
further injury. The use of sharp or pointed instruments to remove any 
marine mammal from the net is prohibited.''
    Response: Comparable language already exists in Sec. 216.24(d) 
which requires incidentally taken marine mammals to be released using 
procedures such as hand rescue and aborting the set without further 
injury at the earliest effective opportunity.
    Comment 68: One commenter indicated the proposed regulatory text 
pertaining to the observer fee is confusing and should be clarified in 
the final rule. In addition, the commenter indicated that it is not 
clear whether the vessel permit application would be considered 
adequate and complete if the observer fee had not been paid. Moreover, 
proposed Sec. 216.24(b)(8)(ii) included confusing language about the 
time of the submission of the observer fee since the language did not 
appear to require the observer fee to actually be paid, but rather to 
the consent to payment of the fee. These issues need to be clarified in 
the final rule.
    Response: NMFS has rewritten this section to clarify that the 
payment of observer fees is not required as part of the application 
process, but is required for the permit to be considered valid. Under 
the IDCPA, issuing a vessel permit and collecting observers fees are 
not dependent upon each other.
    Comment 69: Some commenters took issue with the provision that 
enforcement action will not be taken if a prohibited marine mammal 
species is taken using a purse seine provided that the animals are not 
``reasonably observable'' at the time the skiff attached to the net is 
released from the vessel at the start of a set and all the procedures 
required by the applicable regulations have been followed and 
recommended deleting the ``reasonably observable'' language from 
proposed Sec. 216.24(c)(8)(ix).
    Response: NMFS recognizes that occasionally a prohibited species is 
not detected prior to the time the skiff attached to the net is 
released from the vessel at the start of a set. To accommodate this 
unlikely event, NMFS is keeping the ``reasonably observable'' language 
in the regulatory text.
    Comment 70: One commenter questioned whether it is the intent of 
NMFS to require a tuna purse seine vessel transiting the ETP to obtain 
a vessel permit if there is tuna aboard that was caught elsewhere 
(e.g., western Pacific) as indicated by Sec. 216.24(a)(2)(ii) which 
states ``(ii) It is unlawful for any person using a United States purse 
seine fishing vessel * * * 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.''
    Response: Under Sec. 216.24(a)(3), vessels may obtain a waiver from 
the prohibition to possess or land tuna within the ETP without a vessel 
permit by submitting a written request in advance of entering the ETP 
to the Assistant Administrator, Southwest Region.
    Comment 71: One commenter believed that the language at 
Sec. 216.24(b)(8)(v) regarding the data release form should be modified 
to clarify that by using a permit, the permit holder authorizes the 
release of all data collected by observers aboard tuna purse seine 
vessels to NMFS and the IATTC.
    Response: NMFS agrees and has modified the language.
    Comment 72: One commenter indicated Sec. 216.24(b)(8)(vi) is 
unclear as written and needs to be rewritten.
    Response: NMFS agrees and has rewritten the provision.
    Comment 73: One commenter does not understand why the provision for 
the Administrator, Southwest Region to produce periodic status reports 
summarizing stock specific dolphin mortalities and serious injuries is 
included in the regulations under the permit section. In addition, the 
commenter indicated it would be helpful to ``explain'' in the preamble 
to

[[Page 39]]

the final rule how frequently these reports are expected to be issued.
    Response: The provision for the Administrator, Southwest Region to 
produce periodic status reports summarizing stock specific dolphin 
mortalities and serious injuries is included under the permit section 
of the regulations since the permits are what allow U.S. tuna purse 
seine fishing vessels in the ETP to incidentally take marine mammals 
during the course of commercial fishing operations. The reports are 
intended to provide a mechanism to disseminate information on the 
number and species of marine mammals killed or seriously injured under 
the issued permits. The Administrator, Southwest Region intends to 
issue these reports quarterly.
    Comment 74: One commenter recommended inserting a cross reference 
in Sec. 216.24(c)(3)(i) to indicate what the specific requirements and 
conditions are for purse seine nets, gear and equipment under the 
vessel inspection provision for vessel permit holders.
    Response: NMFS agrees and has added the cross reference.
    Comment 75: One commenter recommended rewriting the introductory 
sentence of Sec. 216.24(c)(8)(viii) to read, ``It is unlawful for the 
holder of a vessel or operator permit to deploy ...''
    Response: NMFS disagrees since similar language is included in 
Sec. 216.24(a).
    Comment 76: One commenter requested that Sec. 216.24(d) explain how 
any accidental mortalities or serious injuries would be treated.
    Response: NMFS disagrees that Sec. 216.24(d) is the appropriate 
place to make that explanation. Under Annex IV, section I, paragraph 6 
of the Agreement on the IDCP, incidental mortalities caused by tuna 
purse seine vessel permit holders operating in the ETP without an 
assigned DML shall be deducted from the Reserve DML Allocation set 
aside. Tuna harvested in a purse seine set in the ETP with an 
accidental dolphin mortality would be considered ``non-dolphin-safe.''
    Comment 77: One commenter indicated that the language in 
216.24(b)(1) seems to allow a vessel permit holder to transfer the 
vessel permit to a new owner when the vessel ownership changes, yet 
there is no language that requires the new owner to notify NMFS.
    Response: Vessel permits are not transferable. The language in 
Sec. 216.24(b)(1) has been modified by deleting ``except that a permit 
may be transferred to the new owner when the vessel ownership 
changes.''
    Comment 78: One commenter indicated that the regulations do not 
require the vessel and operator permit applicant to use a standardized 
form, nor does there seem to be a requirement for the applicant to 
certify the accuracy of the information contained in the application. 
The commenter also believed that the application form or regulations 
should include language that states that, if the applicant knowingly or 
materially falsified the information contained in the application, the 
permit will be denied or revoked.
    Response: Applicants are required to use standardized vessel and 
operator permit application forms approved by the Office of Management 
and Budget. The forms require the applicants to certify, under penalty 
of perjury, that the information is true and complete.
    Comment 79: One commenter believes vessels that do not 
intentionally take marine mammals should be required to carry all the 
special dolphin safety equipment and gear (e.g., rafts and face masks) 
so that accidentally caught dolphins may be released using every means 
at its disposal. The commenter would like the regulations modified to 
require vessels that do not practice purse seining fish on dolphins to 
carry a raft and face masks.
    Response: Although the use of a raft and face mask could facilitate 
the release of an accidentally caught dolphin, the IDCPA does not 
require vessels not fishing on dolphin and not assigned a DML to carry 
the equipment. Furthermore, since accidental sets are rare events and 
the vessel operator is required to use procedures such as hand release 
and aborting the set at the earliest effective opportunity to prevent 
injury, NMFS decided the vessel operator and owner should determine 
whether having a raft and face mask aboard the vessel might eliminate 
the need to abort a set under some circumstances. However, NMFS 
recommends the use of one or more rafts and face masks or view boxes to 
aid in the rescue of dolphins.
    Comment 80: One commenter suggested that Sec. 216.24(b)(4) should 
cross reference the vessel inspection provisions that will be used to 
verify whether the vessel possesses the required dolphin safety gear.
    Response: NMFS does not think the cross reference is necessary 
since the vessel inspection provision at Sec. 216.24(c)(3) contains a 
cross reference to the required gear and equipment necessary for a 
valid vessel permit.

Comments on Sundown Sets

    Comment 81: Commenters felt NMFS' interpretation of section 
303(a)(2)(B)(V) of the MMPA is contrary to the intent and meaning of 
the law. The law clearly states that backdown procedures must be 
completed 30 minutes before sundown, whereas the proposed rule would 
have required backdown to be completed 30 minutes after sundown. If 
NMFS believes that Congress erred, NMFS should seek an amendment to the 
statute, rather than promulgating regulations weaker than required by 
the law to fix a potential typographical error. NMFS also received 
comments in support of the proposed rule on sunset sets because the 
language of the rule is consistent with the Agreement on the IDCP.
    Response: NMFS disagrees since the previous regulations, previous 
amendments to the MMPA, the La Jolla Agreement and the IDCP all specify 
that backdown procedures must be completed no later than one-half hour 
after sundown. Furthermore, under the Agreement on the IDCP, signatory 
nations agreed that the backdown procedure must be completed no later 
than one-half hour after sundown. Since no congressional reports or 
colloquy indicated that this ``revision'' was adopted purposefully, 
NMFS concludes the language in the IDCPA stating that backdown 
procedures must be completed no later than one-half hour before sundown 
must have been a drafting error.
    Comment 82: One commenter felt that ``sufficiently in advance of 
sundown'' should be clearly defined as a period of time such as 2 
hours.
    Response: NMFS agrees and has determined that ``sufficiently in 
advance of sundown'' is if the seine skiff is let go 90 or more minutes 
before sunset. This is based on earlier analysis of the length of 
daytime sets in the U.S. fleet in the late 1980s. The analysis showed 
that 96 percent of the daytime sets took no more than 120 minutes from 
the time the seine skiff was let go until the completion of backdown.

Comments on Official and Alternative Marks

    Comment 83: The regulations should allow for alternative marks in 
addition to the official mark. The regulations should allow alternative 
marks to use a tracking and verification system other than the official 
tracking system and a method for obtaining a determination from the 
agency that the proposed alternative tracking and verification program 
is comparable to the official program. Other commenters indicated

[[Page 40]]

that a single tuna tracking and verification mechanism should be used.
    Response: The proposed rule does not prevent the use of alternative 
marks or an alternative tracking system. However, all tuna imported, 
exported, or sold in the United States that was harvested by purse 
seine vessels greater than 400 st (362.8 mt) carrying capacity in the 
ETP must comply with the tracking and verification program described in 
this rule. Any dolphin-safe label, whether the official label or an 
alternative label, must comply with the labeling standards in 
paragraphs (d)(1) and (2) of the DPCIA. Under paragraph (f) of the 
DPCIA, NMFS is required to establish a tracking and verification system 
to support any dolphin-safe label under paragraph (d). In other words, 
an alternative mark would be required to be supported by the official 
tracking and verification program. Nothing in these regulations is 
intended to inhibit a company or group from establishing an alternative 
tracking and verification program, however, such a program would not be 
a substitute for the program described here.
    Comment 84: One commenter suggested that NMFS include a provision 
in the regulations as follows: ``The Assistant Administrator may 
determine that an international tracking and verification program for 
certain tuna and tuna products meets or exceeds the minimum 
requirements for documentation set forth in Sec. 216.94(b) upon a 
review of the program and written determination of approval and notice 
of that determination in the Federal Register. Upon publication of this 
notice, the Assistant Administrator will accept a determination by the 
approved program as satisfying the documentary evidence requirements of 
Sec. 216.94(d). An approval of a program will remain in effect for the 
period of acceptance established by the Assistant Administrator, or 
until the Assistant Administrator determines that the program no longer 
qualifies for approval based upon new information or a lack of updated 
information. The Assistant Administrator will publish a notice in the 
Federal Register announcing any change in status of an approved 
program.''
    Response: NMFS disagrees since these regulations do not include 
foreign tuna tracking and verification programs. However, certain 
commitments were made in the Tracking and Verification Working Group 
and by the Meeting of the Parties to comply with the Agreement on the 
IDCP system for tracking and verifying dolphin-safe tuna from non-
dolphin-safe tuna from the time it is caught to the time it is ready 
for retail sale.
    Comment 85: One commenter indicated that there should only be a 
single labeling standard and that no alternative labels should be 
permitted.
    Response: There is only one currently applicable standard for 
dolphin-safe tuna (for ETP purse seine vessels: no dolphins were killed 
or seriously injured during the sets in which the tuna were caught). 
However, the IDCPA does allow for the use of alternative marks, and 
NMFS sees no basis for prohibiting the use of alternative marks.
    Comment 86: One commenter felt that there is a distinction between 
``alternate'' and ``alternative'' marks. An alternate mark could be 
used in conjunction with the official mark and an alternative mark 
could be used in lieu of the official mark.
    Response: The IDCPA states that a tuna product that bears the 
official dolphin-safe mark shall not bear any other label or mark that 
refers to dolphins, porpoises, or marine mammals.
    Comment 87: One commenter felt that the alternative mark must 
achieve a standard that, at a minimum, is equivalent to the official 
mark.
    Response: NMFS agrees. Upon analysis of DPCIA paragraph (d)(3)(C), 
NMFS has concluded that the standards for using an alternative mark 
must meet, or exceed, the standards established for the official mark.

Comments on Tuna Tracking and Verification Program

    Comment 88: One commenter expressed concern about the practicality 
of having the signed Tuna Tracking Form (TTF) delivered within 5 days 
of the end of the trip to the Regional Administrator, Southwest Region 
for remote or foreign ports. The commenter indicated that it may be 
unrealistic to have the form postmarked within 5 days of the end of the 
trip.
    Response: In most cases, a representative of NMFS will meet the 
fishing vessel and receive the TTFs. In cases where the NMFS 
representative does not meet the vessel, the IATTC observer can deliver 
the TTFs to the IATTC office, and the forms can be forwarded to NMFS 
from that location within 5 working days of the end of the trip.
    Comment 89: One commenter suggested including an explanation of 
``fish condition'' similar to the explanation provided in 
216.94(b)(5)(i) ``round, loin, dressed, gilled and gutted, other'' for 
Sec. 216.94(b)(2) ``designation of each container, species, fish 
condition, and weight of tuna in each container'' and that the term 
``fish condition'' be used consistently throughout the final rule. 
Another commenter suggested using the term ``fish status'' instead of 
the term ``fish condition.''
    Response: NMFS agrees that the meaning of the term ``fish 
condition'' as it appears in Sec. 216.94(b)(2) is not consistent with 
the meaning of the term as it appears in Sec. 216.94(b)(5)(i). The term 
``fish condition'' in Sec. 216.94(b)(2) has been changed to ``product 
description.''
    Comment 90: One commenter felt that it was premature to 
specifically define the details of the observer duties pertaining to 
the tracking and verification of tuna since the tracking program has 
not been finalized by the Parties to the Agreement on the IDCP.
    Response: An international tracking and verification program using 
TTFs has been adopted by the Parties to the Agreement on the IDCP. At 
the second Meeting of the Parties, in June 1999, a tuna tracking and 
verification working group was created to develop the elements of the 
international tracking and verification program. Nevertheless, NMFS 
must develop a tuna tracking and verification program in order to 
implement the IDCPA. This interim final rule establishes a tuna 
tracking and verification program that is consistent, to the maximum 
extent practicable, with both the IDCPA and the international program.
    Comment 91: One commenter suggested it might be appropriate for 
vessel owners to share the burden of maintaining trip report records in 
addition to exporters, transhippers, importers, and processors as 
described in Sec. 216.94(d).
    Response: Section 216.94 of the regulations does not impose 
reporting requirements, beyond the certification of TTFs, compelling 
vessel captains to maintain records. The on-board observer is 
responsible for maintaining the TTFs, which vessel captains are 
required to sign, until the end of the trip.
    Comment 92: Two commenters believed that the regulations will lift 
the embargo on non-dolphin-safe tuna before an international tracking 
system is in place. Furthermore, it would be contrary to the 
requirements of the IDCPA to institute final implementing regulations 
allowing tuna imports before the international tracking and 
verification programs have been agreed to and are in place.
    Response: An international tracking and verification program using 
TTFs has been adopted by the Parties to the IDCP. At the second Meeting 
of the Parties, a tuna tracking and verification working group was 
created to develop the

[[Page 41]]

elements of the international tracking and verification program. In 
addition, nations must apply for and receive an affirmative finding 
under the IDCPA before tuna may be imported into the United States. To 
receive an affirmative finding, nations must submit documentary 
evidence that will allow the Secretary to make a determination of 
compliance with the IDCP.
    Comment 93: One commenter recommended that a harvesting nation must 
have a tracking and verification system for all tuna it harvests, not 
just the tuna it imports.
    Response: NMFS has no authority to require a nation to implement a 
tuna tracking and verification program. However, each party to the IDCP 
agreement is required to implement a tuna tracking and verification 
program in its respective territory, on vessels subject to its 
jurisdiction and in marine areas with respect to which it exercises 
sovereignty with respect to ETP harvested tuna. The U.S. tracking and 
verification plan includes all U.S. caught tuna and all tuna imported 
into the United States from the ETP.
    Comment 94: One commenter indicated that there needs to be two 
certification processes to allow tuna to be imported into the United 
States. One certification would be for tuna caught by purse seine 
vessels fishing within the ETP and the other certification would be for 
tuna caught by purse seine vessels, or by other fisheries, outside the 
ETP.
    Response: NMFS agrees. The NOAA Form 370, Certificate of Origin, 
allows for the appropriate certification of tuna, except fresh tuna, 
imported into the United States. The DPCIA and these regulations 
require different certifications for tuna harvested in different ocean 
areas and by different gear types.
    Comment 95: One commenter indicated that Sec. 216.93(b) would be 
clearer and conform better to other provisions of the proposed rule if 
it were revised to read: ``the documents are endorsed as required by 
Sec. 216.92(a)(4) and the final processor delivers the endorsed 
documents to the Administrator, Southwest Region, or to the U.S. 
Customs Service.''
    Response: NMFS agrees and has made the suggested change.
    Comment 96: One commenter believed that it would be impractical for 
U.S. Customs to receive the Fisheries Certificate of Origin at the time 
of import because of existing duties and responsibilities of the U.S. 
Custom Service and limited available personnel. The commenter suggested 
that the importer retain the required documentation for later 
verification by either NMFS or U.S. Customs.
    Response: NMFS has depended on U.S. Customs offices around the 
United States and in Puerto Rico for a number of years. Only the U.S. 
Customs Service can assure that the NOAA Form 370 accompanies imported 
shipments of tuna. Under the interim final rule, importers are required 
to include the NOAA Form 370, Certificate of Origin, with all other 
required import documents when the documents are filed with U.S. 
Customs. In addition, importers are required by Secs. 216.94(d)(1) and 
216.94(d)(2) to: (1) maintain their tuna import records for a period of 
3 years, and (2) to provide copies of such records requested by the 
Administrator, Southwest Region within 30 days of receiving a written 
request.
    Comment 97: One commenter asked whether the sentence in 
Sec. 216.94, ``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 into the U.S. and abroad ...'' was 
intended to include fishing by U.S. vessels in waters not subject to 
U.S. jurisdiction. If so, the commenter suggested it would be more 
accurate to revise this provision to read: ``during purse seine fishing 
operations by U.S. vessels ...''
    Response: NMFS agrees that one could misunderstand ``domestic purse 
seine fishing'' to mean that vessels are fishing within the U.S. 
Exclusive Economic Zone; therefore, the requested change has been made.
    Comment 98: Commenters indicated that the IDCPA does not sanction 
the collection of information about gear type and method of capture on 
the Fisheries Certificate of Origin. In addition, the collection of 
such information is contrary to the intent of the Panama Declaration 
and inconsistent with the IDCPA. Collecting such information on the 
Fisheries Certificate of Origin will undermine the IDCP. Finally, the 
regulations should not require observer data forms to accompany 
imported tuna.
    Response: NMFS disagrees in part. Information collected on the 
Fisheries Certificate of Origin includes gear type because the use of 
some gear types indicates the tuna was not caught in association with 
dolphin, while the use of other gear types indicate interactions with 
dolphins (and require captain statements, etc.). Moreover, NMFS is not 
requiring observer data forms or TTFs to accompany imported tuna.
    Comment 99: One commenter expressed concern that the proposed IATTC 
tracking system has no provisions for international inspections or 
enforcement.
    Response: The international tracking and verification system 
approved by the Parties to the Agreement of the IDCP contains 
provisions for development of an international program to facilitate 
general reviews and spot checks of national tracking and verification 
programs. In addition, the Parties have agreed to make TTFs and 
documentation on national tracking and verification programs available 
to the IATTC's IRP. The IRP can then recommend a nation take 
enforcement action on a violation.
    Comment 100: One commenter indicated that it is not clear what 
effort NMFS intends to undertake to observe and monitor offloading, 
deliveries, and processing of yellowfin tuna. It would be useful if 
NMFS were to provide an estimate of the effort (annual budget, total 
hours per year, percentage of off loadings and deliveries) expected to 
be made to track tuna under the tracking and verification program. If 
only a few off loadings are expected to be observed each year, then 
maybe the reporting burden to provide advance notice of the scheduled 
arrival in port may not be necessary.
    Response: NMFS plans to monitor all off loadings by U.S. purse 
seine vessels fishing in the ETP and does not consider the time for a 
radio message and/or a phone call to be overly burdensome. NMFS 
requested and has received funding to operate the tuna tracking and 
verification program and hire two inspectors to monitor the unloading 
of tuna from U.S. tuna purse seine vessels.
    Comment 101: One commenter indicated that the practicality of 
tracking tuna throughout a trip is not realistic for one observer. The 
commenter suggested mandatory use of wide-angle time-lapse cameras 
encoded with position data in addition to observers.
    Response: NMFS disagrees since there is no data that supports the 
conclusion that any type of camera would be more efficient than a 
trained observer assigned to a vessel.
    Comment 102: One commenter indicated NMFS should clarify that the 
requirement to notify NMFS at least 48 hours prior to unloading fish 
only pertains to U.S. vessels. In addition, the commenter indicated 
that NMFS does not have the authority to inspect and monitor U.S. 
vessels unloading in foreign nations because the Declaration of Panama 
and the Agreement on the IDCP (Article XVI paragraph 1) reserves the 
right to the sovereign territory to exercise enforcement authority.

[[Page 42]]

    Response: The 48 hour notification requirement pertains only to 
U.S. vessels subject to U.S. law. NMFS would not expect to be notified 
of vessel landings on foreign shores other than landings of U.S. flag 
vessels. However, through their adoption of an international tuna 
tracking and verification plan, the Parties to the IDCPA have indicated 
their willingness to cooperate with each other, including allowing a 
representative of the national authority under whose jurisdiction a 
fishing vessel operates to meet its flag vessels wherever they land to 
receive TTFs and observe the vessel unloading.
    Comment 103: The reporting requirements of U.S. canneries should be 
clarified to indicate that the reporting requirement does not apply to 
non-U.S. canneries operating within the sovereign territory of another 
nation.
    Response: The regulation, by virtue of the fact that it is a U.S. 
regulation, applies only to U.S. canneries.
    Comment 104: One commenter indicated that the regulations should 
specify whether prohibited importations would be seized or exported 
back to the nation of origin.
    Response: NMFS agrees. Under existing regulations (recodified here 
at Sec. 216.24(f)(11)), fish that is denied entry and has not been 
exported under U.S. Customs supervision within 90 days from the date of 
notice of refusal of admission or date of redelivery shall be disposed 
of under Customs laws and regulations.
    Comment 105: One commenter questioned whether the sentence in 
Sec. 216.24(f)(2)(i), ``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 ...'' accurately reflects the 
requirements under the IDCPA and suggested that the provision should 
prohibit all tuna harvested by that nation, whether exported from that 
nation or an intermediary nation, or imported directly from the 
harvesting vessel to a U.S. processor.
    Response: Section 101(a)(2)(B) of the MMPA clearly states that the 
import restrictions apply to ``yellowfin tuna harvested with purse 
seine nets in the eastern tropical Pacific Ocean.'' The purpose of 
Sec. 216.24(f)(2)(i) is to present a list of Harmonized Tariff Schedule 
numbers for yellowfin tuna or tuna products that must be accompanied by 
a NOAA Form 370, Certificate of Origin. More detailed requirements for 
harvesting nations and intermediary nations importing yellowfin tuna 
harvested by purse seiners fishing in the ETP are codified at 
Sec. 216.24(f)(9).
    Comment 106: One commenter suggested referencing the effective date 
of the Agreement on the IDCP in Secs. 216.24(f)(7)(i)(A) and 
216.24(f)(7)(i)(C) to facilitate the application of the provision.
    Response: NMFS agrees and has added the date that section 4 of the 
IDCPA became effective (March 3, 1999) to those paragraphs of the 
regulations. March 3 was the date that the Secretary of State certified 
that the Agreement on the IDCP was effective and in force.

Comments on Mixed Wells

    Comment 107: Several commenters questioned NMFS' proposal to (1) 
allow mixed wells, containing both dolphin-safe and non-dolphin-safe 
tuna; (2) not require sealed wells or some other equally effective 
method for tracking and verifying the tuna caught in the ETP; and (3) 
not require monitoring and certifying of the caught tuna brought aboard 
the vessel and the loading of the wells below deck.
    Response: NMFS disagrees. Under the DPCIA, the Secretary may make 
adjustments as appropriate to the regulations to implement an 
international tracking and verification program that meets or exceeds 
the minimum requirements established under the DPCIA. NMFS has 
determined that the U.S. tracking and verification program meets the 
minimum requirements. Sealing and unsealing wells during a trip does 
not provide additional confidence of the well contents than having an 
observer record the contents of the well during the loading process and 
during periodic inspections. The observer will record the information 
on the TTF. The likelihood of fish being transferred between wells is 
rare and does not support the need for placing one observer above deck 
and another observer below deck. Having two observers aboard a vessel 
would be cost prohibitive and redundant. The two mixed well exceptions 
were added by the Parties to the Agreement on the IDCP to accommodate 
rare occurrences in a reasonable manner. The IATTC is monitoring the 
occurrence of mixed wells and will report at its June 2000 meeting on 
the frequency of a mixed well event. If this monitoring shows that the 
frequency of mixed wells is not a rare event, NMFS will reconsider 
whether it will allow the use of mixed wells. Also, paragraph (f) of 
DPCIA requires regulations to address all those points, but not 
necessarily that NMFS implement each of them.
    Comment 108: Commenters expressed concern that dolphin-safe tuna in 
mixed wells would be based on observers' estimates of weight and that 
no provision is made for how an observer will make a weight estimate of 
tuna and the accuracy of such an estimate. This procedure is not 
``equally effective'' to having separate, sealed wells as envisioned by 
Congress. NMFS should amend the proposed rule to prohibit the mixing of 
tuna and to require sealed wells. Any non-dolphin-safe tuna dumped into 
a previously dolphin-safe well should be treated as ``non-dolphin-
safe'' since the cannery will not be able to distinguish dolphin-safe 
tuna from non-dolphin-safe tuna during the canning of the tuna. The 
consumer cannot be guaranteed that a particular fish is ``dolphin-
safe.''
    Response: NMFS disagrees and has decided to allow the use of mixed 
wells under two very specific and limited circumstances. Occasionally, 
a well already designated as ``dolphin-safe'' and containing some 
amount of dolphin-safe tuna may be loaded with tuna caught in a set in 
which a dead or seriously injured dolphin is discovered during the 
loading process. Once such non-dolphin-safe tuna is loaded into the 
well, it is re-designated as a ``mixed'' well, and all tuna loaded into 
that well for the remainder of the trip is ``non-dolphin-safe.'' When 
the contents of such ``mixed well'' are unloaded, the tuna is 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. In addition, 15 percent of the dolphin-safe tuna will be 
designated as ``non-dolphin-safe'' at the time of unloading to provide 
a buffer between the dolphin-safe tuna and the non-dolphin-safe tuna. 
NMFS is allowing this exception, but will monitor the frequency of 
occurrence to determine whether this exception needs to be 
reconsidered. Moreover, as part of training, observers are taught to 
estimate the weight of fish loaded inside a brailer and the IATTC can 
provide the observer with information about the carrying capacity of 
the vessel and its wells. The second mixed well case would occur at the 
end of a trip if all available wells were used and an opportunity for 
one last set occurs. In this case dolphin-safe tuna could be loaded on 
top of non-dolphin-safe tuna provided a physical barrier such as 
netting is used to prevent the mixing of the non-dolphin-safe and 
dolphin-safe tuna. The use of mixed wells is consistent with the 
international tracking and verification program. Although there is no 
physical

[[Page 43]]

barrier or other way of identifying a particular fish unloaded from a 
mixed well described in the first scenario as ``dolphin-safe,'' the 15 
percent weight buffer establishes a safety margin to ensure non-
dolphin-safe tuna is not labeled ``dolphin-safe,'' and it could 
compromise the quality of the fish.
    Comment 109: One commenter indicated that the regulations should 
allow the observer to estimate the weight of loaded tuna and allow the 
operator to place a net or similar marker in the well to separate the 
dolphin-safe from the non-dolphin-safe tuna. Response: Although the 
observer estimates the weight, species, and the status of fish loaded 
into each well, there are only two allowed circumstances for mixed 
wells. A net or similar marker may only be used to separate dolphin-
safe tuna from non-dolphin-safe tuna during the last set of a trip when 
all the available wells are full, and there is an opportunity to load 
dolphin-safe tuna in a non-dolphin-safe designated well. Otherwise, 
indiscriminate use of nets or other materials throughout the wells 
could lead to confusion over what is ``dolphin-safe.''

Comments on Additional Topics

    Comment 110: One commenter indicated that it would have been more 
accurate to state in the ``supplementary information'' section of the 
proposed rule that the annual dolphin mortality in the eastern Pacific 
Ocean had been reduced to below 5,000 animals by 1993, 6 years ahead of 
the schedule established under the La Jolla Agreement.
    Response: NMFS agrees. The annual dolphin mortality in the ETP had 
been reduced to below 5,000 animals since 1993, 6 years ahead of the 
schedule established under the La Jolla Agreement.
    Comment 111: One commenter indicated that the preamble of the 
proposed rule should have clearly indicated that the IDCP is in force 
by not using certain future tense verbs in the codified text of the 
rule.
    Response: NMFS agrees.
    Comment 112: One commenter asked why the difference in the 
definition of ``ETP'' between the DPCIA (east to 160o W) and 
the Agreement on the IDCP (east to 150o W) would not affect 
foreign vessels.
    Response: Foreign vessels will not be affected by these regulations 
except when keeping records for dolphin-safe labels destined for the 
U.S. market and the harvests occur between 160o W and 
150o W. However, tuna imports into the United States will be 
subject to the DPCIA's ETP definition. The DPCIA defines the ETP as the 
area of the Pacific Ocean bounded by the 160o West meridian, 
whereas the Agreement on the IDCP defines the ETP as the area of the 
Pacific Ocean west to the 150o. According to the IATTC 
observer data, no intentional sets have been made on dolphin west of 
150o W.
    Comment 113: One commenter suggested deleting the phrase, ``that 
would otherwise be under embargo'' from the sentence ``These 
regulations would allow the entry of yellowfin tuna into the United 
States under certain conditions from nations signatory to the IDCP that 
otherwise would be under embargo'' in the summary section of the 
proposed rule since it doesn't add any meaning to the sentence.
    Response: NMFS agrees. The summary section for this interim final 
rule reads ``This interim final rule will allow the entry of yellowfin 
tuna into the United States under certain conditions from nations fully 
complying with the International Dolphin Conservation Program (IDCP).''
    Comment 114: One commenter recommended expanding the penalties 
language codified at Sec. 216.24(g) to include tuna imports and 
labeling violations.
    Response: NMFS disagrees. 50 CFR 216.95, which is applicable to 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 
specifically prohibits any person from making a knowing and willful 
false statement or false endorsement related to dolphin-safe tuna 
requirements, or the importation of dolphin-safe tuna, and specifies 
that a violator is liable for a civil penalty not to exceed $100,000. 
Labeling violations would be prosecuted by the Federal Trade Commission 
which is responsible for enforcing the Federal Trade Commission Act 
(FTCA) and the DPCIA which states that violations of the labeling 
standard are violations of the FTCA.
    Comment 115: Several commenters indicated that the regulations must 
be made fully consistent with the Declaration of Panama and the IDCP 
Agreement.
    Response: NMFS agrees and will follow the Agreement on the IDCP to 
the extent allowable under the IDCPA. NMFS presumes Congress intended 
the IDCPA to be consistent with the IDCP and Declaration of Panama.
    Comment 116: One commenter suggested replacing the word 
``skipjack'' with the words ``yellowfin tuna'' in the ``supplementary 
information'' of the proposed rule under the rubric for Harmonized 
Tariff Schedule Numbers ``For instance, a shipment of skipjack 
harvested by longline may require an FCO because the importer ...'' 
since skipjack tuna are not harvested by longline.
    Response: NMFS disagrees because skipjack are occasionally caught 
using longline gear. The example is not used in the interim final rule.
    Comment 117: One commenter indicated that the regulations should 
not be a forum to cover up the failure of the Clinton Administration to 
negotiate an agreement consistent with U.S. law.
    Response: The Agreement on the IDCP is consistent with U.S. law.
     Comment 118: One commenter suggested adding the phrases to the 
preamble discussion, ``Congress considered several bills to implement 
the Panama Declaration, ultimately passing the IDCPA. The IDCPA was 
signed into law on August 15, 1997. The IDCPA together with the Panama 
Declaration became the blueprint for the IDCP.'' to clarify the linkage 
between the IDCP and the IDCPA.
    Response: NMFS has included this language in the background 
information for the interim final rule.
    Comment 119: One commenter disagrees that the IDCPA was the 
domestic endorsement of an international management regime adopted 
during the last 20 years under the auspices of the IATTC. Instead, the 
IDCPA codified the La Jolla Agreement, incorporated provisions of the 
Panama Declaration, and set the stage for the new binding international 
agreement embodied in the IDCP.
    Response: NMFS concurs although the La Jolla Agreement embodied a 
number of measures developed over many years of regulating the ETP 
fishery to reduce dolphin mortality.
    Comment 120: One commenter indicated that the U.S. tuna purse seine 
fleet should be treated fairly and equitably in the U.S. regulations 
implementing the IDCPA.
    Response: NMFS agrees.
    Comment 121: One commenter indicated that the proposed rule fails 
to provide substantial background information about DOC's and NMFS' 
failure to abide by the clear intent of marine mammal protection law, 
multiple court rulings against NMFS' administration of the MMPA's tuna-
dolphin provisions, public opposition to the DOC interpretation of the 
MMPA, and multiple amendments to the MMPA by Congress in order to force 
compliance by the DOC and NMFS.
    Response: The historical information provided in the background 
section of the proposed rule focuses mainly on the

[[Page 44]]

key events leading to the passage of the IDCPA.
    Comment 122: One commenter indicated that it is wrong that Vice 
President Al Gore, Secretary of Commerce William Daley, and Secretary 
of the Interior Bruce Babbit actively campaigned for the passage of the 
IDCPA in Congress and now the DOC claims that the legislation mandates 
that the United States allow non-dolphin-safe tuna to be imported.
    Response: This comment is not relevant to this rulemaking. The 
IDCPA does not completely prohibit the importation of non-dolphin-safe 
tuna into the United States but allows non-dolphin-safe tuna to be 
imported provided it was harvested in compliance with the IDCP by a 
vessel operating under the jurisdiction of a nation that is a member of 
the IATTC or has initiated an application to join the IATTC (and 
completes the process within 6 months).
    Comment 123: One commenter indicated that the language in the 
proposed rule needs to be updated to reflect the current status with 
respect to the initial finding by the Secretary of Commerce and the 
international agreement signatory status.
    Response: NMFS has updated all the sections in the interim final 
rule to reflect the current status of the initial finding (DPCIA 
paragraph (g)(1)) and the international agreement signatory status.
    Comment 124: One commenter urged NMFS and the Department of State 
to renegotiate the Panama Declaration that has led to the redefinition 
of dolphin-safe tuna under the IDCP. The Panama Declaration undermines 
the MMPA and results in the injury and deaths of thousands of animals 
each year.
    Response: NMFS does not agree. The IDCP provides a mechanism to 
reduce the level of incidental take of marine mammals associated with 
the yellowfin tuna purse seine fishery in the ETP to biologically 
sustainable levels. The comment is not focused on this rule per se, but 
it involves larger policy issues of international agreements and 
legislation.
    Comment 125: One commenter requested clarification regarding when 
the coastal spotted dolphin was designated as depleted under the MMPA 
and the procedure by which such designation was made since the 1982 
court ruling overturned the depleted status for this stock. If the 
coastal spotted dolphin is not officially depleted, the reference to 
the stock being depleted should be removed.
    Response: NMFS designated the coastal spotted dolphin as depleted 
under the MMPA in Federal Register (45 FR 72178, Oct. 31, 1980). The 
court ruling did not overturn the depleted status but rather required 
NMFS to recalculate the population estimates. The depleted status was 
not changed after recalculating the coastal spotted dolphin stock 
population estimates.
    Comment 126: One commenter indicated that the proposed regulation 
reflects a strong influence of foreign interests and illegal drug 
trafficking activity in the foreign tuna fishery and the governments 
involved.
    Response: The regulations implement the IDCPA. NMFS does not know 
if any commenters are involved in illegal drug trafficking, but 
comments from foreign organizations and persons were received and 
considered. The rulemaking process itself was conducted in an open 
manner in accordance with the Administrative Procedure Act.
    Comment 127: One commenter felt that the regulations significantly 
impact small businesses by placing the burden of supporting and 
promoting an alternative mark standard on the small canneries and 
wholesalers while the official mark standard is subsidized by tax 
dollars.
    Response: Alternative marks will have to be supported by comparable 
tracking and verification programs, but NMFS disagrees with the 
characterization that the official mark is subsidized by tax dollars. 
The IDCPA requires NMFS to establish a mark for dolphin safe tuna. The 
program for tracking the mark consists primarily of information 
collected by the IATTC and IATTC approved national observer programs 
and cooperation of the canning and processing industry in maintaining 
appropriate documentation. For U.S. vessels and processors, these 
programs are entirely industry funded. There are no tax dollars being 
expended for these activities. NMFS is neither is funding nor 
supporting any promotion of the official dolphin safe mark. NMFS funds 
are being expended on staff to review and monitor documentation from 
these industry funded programs whether the information is submitted 
from the IDCP or alternate programs.
    Comment 128: Some commenters requested that NMFS completely rewrite 
the proposed rule and submit the rule again for public comment, whereas 
other commenters praised NMFS for doing a good job drafting the rule.
    Response: By publishing an interim final rule, NMFS will continue 
to accept additional public comments during a 90-day comment period 
while meeting programmatic and mission goals in a timely manner.
    Comment 129: Commenters indicated that the proposed regulations try 
to implement international programs that have not yet been finalized by 
tuna treaty Parties.
    Response: The regulations implement, in part, the Agreement on the 
IDCP, which has been ratified by fishing nations in the ETP such as 
Ecuador, El Salvador, Mexico, Nicaragua, Panama, Venezuela, and the 
United States.
    Comment 130: Many commenters requested an extension for public 
comments of at least 30 days due to the technical and complex issues 
that require research and analysis.
    Response: NMFS disagrees that this is necessary. By publishing an 
interim final rule, NMFS will continue to accept additional public 
comments for 90 days while meeting programmatic and mission goals in a 
timely manner. Furthermore, commenters who did request an extension 
submitted extensive and comprehensive comments.
    Comment 131: One commenter disagreed with the proposed rule which 
allows a permit holder to injure or kill a marine mammal if the animal 
is causing or is about to cause immediate personal injury.
    Response: This provision of the regulations is only a restatement 
of the statute. According to section 101(c) of the MMPA, if there is 
imminent danger to a person, a dolphin may be injured or killed to 
prevent injury or death of that person.
    Comment 132: Commenters suggested that the term ``incidental take'' 
not be used in the ETP tuna fishery since the MMPA refers to takes as 
incidental or accidental to distinguish them from intentional takes. 
The commenter believes that if dolphin are deliberately set on by purse 
seiners then any take should be considered intentional.
    Response: NMFS disagrees since Congress used this term to describe 
the ETP purse seine fishery in section 104(h) of the MMPA.
    Comment 133: One commenter suggested inserting the word 
``incidental'' into the phrase in the U.S. Citizens on Foreign Flag 
Vessels in the supplementary information of the proposed rule, ``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 prohibition 
on incidental taking marine mammals while the vessel is engaged in 
fishing operations outside the U.S. EEZ ...'' to be consistent with the 
IDCPA.
    Response: NMFS agrees that it is only ``incidental taking'' that is 
authorized.
    Comment 134: NMFS received numerous editorial comments on

[[Page 45]]

typographical errors and suggestions on sentence wording.
    Response: NMFS incorporated many of the suggestions.
    Comment 135: In a March 24, 1999 letter to Senator Barbara Boxer, 
the DOC stated that the final finding in 2001 would include a public 
comment period for substantive comments. In addition, the Secretary 
promised Members of Congress that future dolphin-safe label standards 
would be a formal rulemaking action. However, in the ``supplementary 
information'' section of the proposed rule (at page 31809 of the 
Federal Register document) the sentence ``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 ...,'' NMFS indicates that the 
Assistant Administrator will implement any required change in the 
labeling standard without additional rulemaking.
    Response: NMFS will publish the final finding on whether the 
intentional deployment on, or encirclement of, dolphins with purse 
seine nets ``is having a significant adverse impact'' on any depleted 
dolphin stocks in the ETP between July 1, 2001, and December 31, 2002. 
There is no provision in the finding process to include public comment, 
and commenters apparently had a different understanding of the March 24 
letter to Senator Boxer. In the response to Senator Barbara Boxer, NMFS 
indicated that supporting documentation for the initial finding and the 
research results as they become available would be posted on the 
Internet as at http://swfsc.ucsd.edu/IDCPA/IDCPAfront.html. In 
addition, NMFS indicated that, as usual, substantive comments on the 
initial finding will be considered throughout the remainder of the 3 
year process toward the final determination. NMFS will accept public 
comment on changes to the dolphin-safe labeling standards under this 
interim final rule and any subsequent rulemakings.
    Comment 136: One commenter felt that it was never the intent of 
Congress to require a high standard of proof that the tuna fishery is 
causing adverse impacts on the dolphin populations when making the 
initial and final finding, but rather to use the best available 
scientific information that clearly supports the conclusion that the 
two depleted stocks of dolphins are not recovering at the rate 
expected.
    Response: Under the IDCPA, the Secretary is required to make 
findings regarding 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. The finding 
shall be based on studies assessing the effect 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, population abundance surveys, information obtained 
under the IDCP, and any other relevant information. NMFS has an 
obligation to conduct the research mandated by section 304(a) of the 
MMPA, and has an obligation to make the DPCIA findings using the best 
scientific information available at the time of the finding.

Changes From the Proposed Rule

    Instead of publishing only the revised or new provisions of 
Sec. 216.24, in the interim final rule, NMFS is publishing the revised 
Sec. 216.24 in its entirety, for the convenience of readers, to correct 
cross-reference errors and to improve clarity. The interim final rule 
includes revised definitions for ``Fisheries Certificate of Origin,'' 
``Import,'' and ``Tuna product.'' In addition, a definition for 
``Serious injury'' was added in response to comments. The language 
pertaining to taking a marine mammal to protect crew members from 
personal injury that appeared in Sec. 216.24(b)(vi) and 
Sec. 216.24(b)(vii) has been removed since, under section 101(c) of the 
MMPA, all persons are allowed to take a marine mammal in self-defense 
or to save the life of a person in immediate danger. Under 
Sec. 216.91(c) (labeling requirements) a paragraph was added to include 
the requirement in the DPCIA that any tuna product that is labeled with 
the official mark cannot be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

Changes to Affirmative Findings

    Every 5 years, the government of a harvesting nation must request 
an affirmative finding and submit documentary evidence to the Assistant 
Administrator. In addition, the Assistant Administrator will continue 
to determine on an annual basis whether to make an affirmative finding 
to allow a nation to import ETP yellowfin tuna into the United States. 
The annual finding will be based mostly upon documentary evidence 
provided by the IATTC and the Department of State, although documentary 
evidence may also be requested from the government of the exporting 
nation or the government of the harvesting nation. Documentary evidence 
will need to be submitted by the harvesting nation for the first 
affirmative finding after the effective date of this interim final 
rule. Furthermore, NMFS has revised the affirmative finding criteria 
that require the annual total dolphin mortality of the nation's purse 
seine fleet not to exceed the aggregated total of the mortality limits 
assigned by the IDCP for the nations's purse seine vessels for the year 
preceding the year in which the finding would start. Under the revised 
language, nations could receive an affirmative finding if the total 
dolphin mortality of the nation's purse seine fleet exceeded the 
aggregated total of the mortality limits because of extraordinary 
circumstances beyond the control of the nation or vessel captains. 
However, the nation must immediately require all its vessels to cease 
fishing for tuna in association with dolphins for the remainder of the 
calendar year. In addition, nations may exceed the annual per-stock 
per-year limits assigned by the IDCP for that nation's purse seine 
vessels for the year preceding the year in which the finding would 
start provided there were extraordinary circumstances beyond the 
control of the nation or vessel captains that caused the per-stock per-
year dolphin mortality to exceed the aggregated total of the per-stock 
per-year limits. Under this circumstance, the nation must immediately 
require all its vessels to cease fishing for tuna in association with 
dolphins for the remainder of the calendar year. Under these criteria, 
a nation will not be embargoed for exceeding its DML (e.g., by just one 
dolphin) if the nation is operating under the Agreement of the IDCP, 
and making good faith efforts to ensure compliance by all vessels 
operating under their flag. This flexibility will allow nations that 
are fully implementing the Agreement on the IDCP not to be embargoed if 
their DMLS are exceeded. This flexibility will encourage harvesting 
nations to comply with the Agreement on the IDCP, but it will threaten 
economic sanctions against nations that do not control or manage their 
own fleets.

Changes to Tuna Tracking and Verification

    Instead of one rare event that would allow a mixed well to occur as 
described in the proposed rule, there are now two rare events in which 
mixed wells are allowed. In the first type of rare event described in 
the proposed rule where an observer has designated the set ``dolphin-
safe,'' but during the loading process dolphin mortality or serious 
injury is identified, the dolphin-safe status of the set changes to 
non-dolphin-safe, and the well changes to a mixed well designation. 
Fifteen percent of the dolphin-safe tuna unloaded (by

[[Page 46]]

weight) from this type of mixed well will be designated as ``non-
dolphin-safe'' to provide a buffer between the dolphin-safe and non-
dolphin-safe tuna loaded into the well.
    The second rare event would occur near the end of an ETP fishing 
trip if the only well space available is in a non-dolphin-safe well, 
and there is an opportunity to make one last set. Dolphin-safe tuna 
caught in that set may be loaded into the non-dolphin-safe well 
provided the dolphin-safe tuna is kept physically separate from the 
non-dolphin-safe tuna using netting or similar material. This will 
allow vessels to return to port completely full without compromising 
the status of the dolphin-safe tuna aboard the vessel. Although there 
is no physical barrier or other way of identifying a particular fish 
unloaded from a ``mixed'' well described in the first scenario as 
``dolphin-safe,'' the 15 percent weight buffer establishes a safety 
margin to ensure non-dolphin-safe tuna is not labeled ``dolphin-safe.'' 
In the second scenario, the use of a physical barrier such as netting 
is considered sufficient to ensure non-dolphin-safe tuna is not labeled 
``dolphin-safe.'' The IATTC is monitoring the occurrence of mixed wells 
and will report at its June 2000 meeting on the frequency of a mixed 
well event. If this monitoring shows that the frequency of mixed wells 
is not a rare event, NMFS will reconsider whether it will allow the use 
of mixed wells.

Changes to the Tracking and Verification Program

    The TTF developed by the IATTC will be used to track and verify 
tuna loaded as ``dolphin-safe'' and ``non-dolphin-safe'' aboard a 
vessel and will double as the captain and observer certifications that 
no dolphin were seriously injured or killed during the sets loaded in 
the dolphin-safe wells. Also, the TTF will confirm there was an 
observer approved by the IDCP aboard the vessel the entire trip. Two 
TTFs will be used for each trip: one for dolphin-safe sets and one for 
non-dolphin-safe sets. The two TTFs used on each trip will have a 
unique number assigned by the IATTC which will represent the cruise 
number assigned to the trip. The observer and vessel engineer will 
initial the entry after each set and the captain and observer will 
review and sign each TTF at the end of the fishing trip. The TTF will 
not include the set number as discussed in the proposed rule. The 
harvesting nation will retain the original TTF and the IATTC will 
receive a copy.
    Another difference in the tuna tracking and verification program is 
that each national authority is responsible for the tracking and 
verification of dolphin-safe tuna when it enters a processing plant 
located within that nation, regardless of the flag of the harvesting 
vessel. In other words, if a U.S. vessel unloads tuna in Ecuador, 
Ecuador is responsible for the tracking and verification of dolphin-
safe tuna throughout its processing facilities. A representative of the 
national authority will receive the original TTFs from the observer, 
and copies of the TTFs will be forwarded to the Administrator, 
Southwest Region. When ETP caught tuna is offloaded from an U.S. purse 
seiner in any port and subsequently loaded aboard a carrier vessel for 
transport to a cannery outside the jurisdiction of the United States, a 
NMFS representative may meet the vessel to receive the TTFs from the 
observer and monitor the offloading. The U.S. caught tuna becomes the 
tracking and verification responsibility of the foreign buyer when it 
is offloaded from the U.S. vessel. Imports of tuna harvested by large 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity in 
the ETP and labeled ``dolphin-safe'' must be accompanied by Fisheries 
Certificate of Origin endorsements by importers, exporters, and 
processors attesting to the accuracy of the captain's and observer's 
statements.

Changes to Captain Certification and Observer Certification

    The DPCIA paragraph (d)(2)(B)(i) requires that tuna or tuna 
products imported into the United States and labeled ``dolphin-safe'' 
must be accompanied by a written statement executed by the vessel 
captain providing a certification that no dolphins were killed or 
seriously injured during the sets in which the tuna were caught by 
purse seine vessel greater than 400 st (362.8 mt) carrying capacity in 
the ETP. NMFS has determined that there is a practical limitation on 
this certification that limits its utility as a mechanism to track 
dolphin-safe tuna. Therefore, NMFS has developed an alternative 
mechanism to achieve the intended purpose of this certification.
    Prior to amendment by the IDCPA, the DPCIA, required the captain 
and observer certify that ``no tuna were caught on the trip in which 
such tuna were harvested using a purse seine net intentionally deployed 
on or to encircle dolphin.'' This certification followed the tuna 
through processing and import into the United States. At the time of 
importation, NMFS could determine that the product was ``dolphin-safe'' 
because the Fisheries Certificate of Origin contained information that 
allowed NMFS to determine which fishing vessels had contributed to the 
shipment and the captain and observer certifications applied to all the 
tuna on board each vessel for its referenced trip.
    Under the amended DPCIA, the captain and observer are required to 
certify that no dolphin were killed or seriously injured in the sets in 
which the tuna were caught. The captain and observer are potentially 
verifying only a portion of the tuna on board the vessel is ``dolphin-
safe.'' In the event that a dolphin is killed or seriously in a set, 
tuna from that set will be loaded into a non-dolphin-safe well for 
which there would be no certification. After the tuna is off loaded at 
a processing plant, the responsibility for ensuring dolphin-safe tuna 
are separated from non-dolphin-safe tuna transfers from the vessel 
captain and observer to the processor. Presenting captain and observer 
certification at the time of import does not provide sufficient 
information to allow NMFS to determine that the tuna in the shipment is 
dolphin-safe, because the captain's and observer's statements do not 
necessarily apply to all of the tuna in the shipment and there is no 
certification by the processor or government body of the exporting 
nation that ensures that non-dolphin-safe tuna were not mixed with 
dolphin-safe tuna during processing.
    NMFS has developed the following strategy to ensure its capability 
to track dolphin-safe tuna and comply with the intent of the DPCIA. 
Each shipment of tuna imported to the United States will be required to 
be accompanied by documentation signed by a representative of the 
appropriate IDCP member nation certifying that there was an IDCP 
approved observer on board the vessel(s) during the trip(s) and that 
the tuna contained in the shipment were caught according to the 
dolphin-safe labeling standard. This documentation will also be 
required to include a list of TTFs for all trips from which tuna in the 
shipment were taken. This mechanism links the requirements of the DPCIA 
paragraph (d)(2)(B)(i) to the international tracking program agreed to 
by the Parties to the Agreement on the IDCP.
    The international tracking and verification program to which the 
United States has agreed, as a Party of the IDCP, lays out a system to 
enable dolphin-safe tuna to be distinguished from non-dolphin-safe tuna 
from the time it is caught to the time it is ready for retail sale. The 
international system is based on TTFs. TTFs used during a fishing trip 
are identified by a unique

[[Page 47]]

number. Dolphin-safe and non-dolphin-safe tuna caught in sets in the 
course of a trip are recorded on separate TTFs. At the end of each set 
the observer records and the chief engineer initials the date of the 
set, estimated weight of tuna loaded by species, and well location on 
the appropriate TTF. At the end of each fishing trip, when no more sets 
are to be made, the observer and the captain review the TTF(s), and 
both sign the forms. The signing of the dolphin-safe only form by the 
captain and observer certifies that no dolphins were killed or 
seriously injured in the sets in which the tuna were caught. NMFS has 
determined that these signatures constitute a certification that no 
dolphins were killed or seriously injured in the sets in which the tuna 
were caught and therefore meets the requirements of the DPCIA.
    A copy of the TTF is sent to the IATTC by the national authority of 
each member nation that is a Party to the IDCP agreement. NMFS will 
rely on the documentation provided by the representative of the IDCP 
member nation and the cooperation of the IATTC to verify that dolphin-
safe tuna imported from member nations is supported by TTFs containing 
the required certification that the tuna is from sets in which no 
dolphins were killed or seriously injured.

Public Comments Solicited

    NMFS is soliciting comments on this interim final rule. Written 
comments on the interim final rule may be submitted to J. Allison Routt 
(see ADDRESSES and DATES).

Classification

Executive Order 12866

    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, this rule has been determined to be significant.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that it would not have a 
significant economic impact on a substantial number of small entities. 
No comments were received regarding this certification. As a result, no 
regulatory flexibility analysis was prepared.

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 Paperwork Reduction Act (PRA), unless that 
collection of information displays a currently valid Office of 
Management and Budget (OMB) control number.
    This interim final rule contains collection-of-information 
requirements subject to the 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 Certificate of 
Origin (NOAA Form 370). Approved under OMB control number 0648-0335, 
the public reporting burden for this collection is estimated to average 
20 minutes per submission.
    This interim final rule also contains new collection-of-information 
requirements. Approved under OMB control number 0648-0387, the public 
reporting burden for this collection is estimated to average 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 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 
review and sign the TTF; 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. Send comments regarding 
reporting burden estimates or any other aspect of the collection-of-
information requirements in this interim rule, including suggestions 
for reducing the burdens to J. Allison Routt and to the Office of 
Information and Regulatory Affairs, OMB, (see ADDRESSES).

National Environmental Policy Act

    NMFS prepared an EA for this interim final rule and the Assistant 
Administrator concluded that there will be no significant impact on the 
human environment as a result of this rule. A copy of the EA is 
available from NMFS (see ADDRESSES).

Endangered Species Act

    NMFS prepared a biological opinion for this rule. NMFS concluded 
that fishing activities conducted under this interim final rule are not 
likely to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS or result in the 
destruction or adverse modification of critical habitat. A copy of the 
biological opinion is available from NMFS (see ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and record keeping requirements.

50 CFR Part 216

    Exports, Fish, Imports, Labeling, Marine mammals, Penalties, 
Reporting and record keeping requirements, Transportation.
    Dated: December 21, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR 
part 216 are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, in paragraph (b) the table under 50 CFR, in the 
left column, remove the entry ``216.24(c)'' and, in the right column in 
the corresponding position, the control number ``-0083''; and add, in 
numeric order, the following entry to read as follows:

[[Page 48]]

Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information     (All numbers begin with
     collection requirement is located                 064809)
------------------------------------------------------------------------
 
                  *        *        *        *        *
50 CFR
 
                  *        *        *        *        *
216.24                                      -0387
 
                  *        *        *        *        *
------------------------------------------------------------------------

* * * * * * *

50 CFR Chapter II

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    4. In Sec. 216.3:
    a. Remove the definitions--``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'';
    b. Revise the definitions-- ``Fisheries Certificate of Origin'', 
``Import'', and ``Tuna product''; and
    c. Add the definitions-- ``Administrator, Southwest Region'', 
``Agreement on the International Dolphin Conservation Program 
(Agreement on the IDCP)'', ``Declaration of Panama'', ``Force 
majeure'', ``International Dolphin Conservation Program (IDCP)'', 
``International Dolphin Conservation Program Act (IDCPA)'', 
``International Review Panel (IRP)'', ``Per-stock per-year dolphin 
mortality limit'' and ``Serious injury'' 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.
* * * * *
    Fisheries Certificate of Origin means NOAA Form 370, as described 
in Sec. 216.24(f)(5).
* * * * *
    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.
* * * * *
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the Customs 
laws of the United States; except that, for the purpose of any ban 
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish 
products, the definition of ``import'' in Sec. 216.24(f)(1)(ii) shall 
apply.
* * * * *
    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.
* * * * *
    Serious injury means any injury that will likely result in 
mortality.
* * * * *
    Tuna product means any food product processed for retail sale and 
intended for human or animal consumption that contains an item listed 
in Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items 
with a shelf life of less than 3 days.
* * * * *
    5. Revise Sec. 216.24 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 to intentionally 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.
    (iii) It is unlawful for any person subject to the jurisdiction of 
the United States to receive, purchase, or possess tuna caught, 
possessed, or landed in violation of paragraph (a)(2)(ii) of this 
section.
    (iv) It is unlawful for a person subject to the jurisdiction of the 
United States to intentionally deploy a purse seine net on, or to 
encircle, dolphins from a vessel operating in the ETP when the DML 
assigned to that vessel has been reached, or when there is not a DML 
assigned to that vessel.
    (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 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.
    (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

[[Page 49]]

Administrator, Southwest Region, the permit will not be returned and a 
new permit will not be issued before the end of the calendar year. 
Vessel permits are 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 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 paragraph (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, or 
to designated agents of NMFS or the 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 vessel permit from the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. The application must be signed by the applicant and 
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 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 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. A person wishing to operate a 
purse seine vessel may apply for an operator permit from the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. The application must be signed by the applicant or the 
applicant's representative, if applicable, and contain:
    (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; and
    (iv) The date, location, and provider of any training for the 
operator permit.
    (6) Fees. (i) Vessel permit application fees. An application for a 
permit under paragraph (b)(1) of this section must include a fee for 
each vessel as specified on the application form. The Assistant 
Administrator may change the amount of this fee 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.
    (ii) Operator permit fee. There is no fee for a operator permit 
under paragraph (b)(2) of this section. The Assistant Administrator may 
impose a fee or change the amount of this fee 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.
    (iii) Observer placement fee. The vessel permit holder must 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. The Administrator, Southwest 
Region, will forward all observer placement fees to the IATTC or to the 
applicable international organization approved by the Administrator, 
Southwest Region.
    (7) Application approval. 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 or 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. No observer will be assigned to a vessel unless 
that vessel owner has submitted payment of observer fees to the 
Administrator, Southwest Region. The observers may be placed under an 
observer program of NMFS, IATTC, or another international observer 
program approved by the IDCP and the Administrator, Southwest Region.
    (iii) Explosives. The use of explosive devices is prohibited during 
all tuna purse seine operations that involve marine mammals.
    (iv) Reporting requirements. (A) The vessel permit holder of each 
permitted vessel must 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.
    (B) The vessel permit holder must 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.
    (v) Data release. By using a permit, the permit holder authorizes 
the release to NMFS and the IATTC 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

[[Page 50]]

program with all release forms required to authorize the observer data 
to be provided to NMFS and the IATTC. 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.
    (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) A vessel may be used to chase and encircle schools of dolphins 
in the ETP only under the immediate direction of the holder of a valid 
operator's permit.
    (2) No retention of Marine Mammals. Except as otherwise authorized 
by a specific permit, marine mammals incidentally taken must be 
immediately returned to the ocean 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.
    (3) Gear and equipment 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 must 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 may 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) Face mask and snorkel, or view box. At least two face masks 
and snorkels or view boxes 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.
    (4) Vessel inspection--(i) Annual. At least once during each 
calendar year, purse seine nets and other gear and equipment required 
under Sec. 216.24(c)(2) 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.
    (5) Operator permit holder training requirements. An operator must 
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 
instructed on 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.
    (6) 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

[[Page 51]]

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 90 or more minutes before sundown, 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 States 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.
    (7) 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 to the Administrator, 
Southwest Region, for an experimental fishing operation waiver allowing 
for processing no less than 90 days before the date the proposed 
operation is intended to begin. An application must be signed by the 
permitted operator and contain:
    (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 in the application and the comments received on it, 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.
    (8) Operator permit holder performance requirements. [Reserved]
    (9) 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) 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 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 year under the provisions of Annex IV of the Agreement on the 
IDCP.
    (ii) Each vessel permit holder that desires a DML only for the 
period between July 1 to December 31 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 October 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

[[Page 52]]

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 (or 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 by 
letter, facsimile, radio, or electronic mail, 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.
    (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 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 must 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 face masks or 
view boxes 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 sanctions. A vessel that fails to carry 
an observer in

[[Page 53]]

accordance with these requirements may not engage in fishing 
operations.
    (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 use vessel communication equipment to report 
information 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.
    (4) It is unlawful for any person to forcibly assault, impede, 
intimidate, interfere with, or to influence or attempt to influence an 
observer, or to harass (including sexual harassment) an observer by 
conduct which has the purpose or effect of unreasonably interfering 
with the observer's work performance, or which creates an intimidating, 
hostile, or offensive environment. In determining whether conduct 
constitutes harassment, the totality of the circumstances, including 
the nature of the conduct and the context in which it occurred, will be 
considered. The determination of the legality of a particular action 
will be made from the facts on a case-by-case basis.
    (5)(i) All observers must be provided sleeping, toilet and eating 
accommodations at least equal to that provided to a full crew member. A 
mattress or futon on the floor or a cot is not acceptable in place of a 
regular bunk. Meal and other galley privileges must be the same for the 
observer as for other crew members.
    (ii) Female observers on a vessel with an all-male crew must be 
accommodated either in a single-person cabin or, if reasonable privacy 
can be ensured by installing a curtain or other temporary divider, in a 
two-person cabin shared with a licensed officer of the vessel. If the 
cabin assigned to a female observer does not have its own toilet and 
shower facilities that can be provided for the exclusive use of the 
observer, then a schedule for time-sharing common facilities must be 
established before the placement meeting and approved by NMFS or other 
approved observer program and must be followed during the entire trip.
    (iii) In the event there are one or more female crew members, the 
female observer must be provided a bunk in a cabin shared solely with 
female crew members, and provided toilet and shower facilities shared 
solely with these female crew members.
    (f) Importation, purchase, shipment, sale and transport. (1)(i) It 
is illegal to import into the United States any fish, whether fresh, 
frozen, or otherwise prepared, if the fish have been caught with 
commercial fishing technology that results in the incidental kill or 
incidental serious injury of marine mammals in excess of that allowed 
under this part for U.S. fishermen, or as specified at paragraphs 
(f)(7) through (f)(9) of this section.
    (ii) For purposes of this paragraph(f), and in applying the 
definition of an ``intermediary nation,'' an import occurs when the 
fish or fish product is released from a nation's Customs' custody and 
enters into the territory of the nation. For other purposes, ``import'' 
is defined in Sec. 216.3.
    (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 identified by any of the following HTS numbers that was 
harvested using a purse seine in the ETP may not be imported into the 
United States unless both the nation with jurisdiction over the 
harvesting vessel and the exporting nation (if different) have an 
affirmative finding under paragraph (f)(9) of this section.

 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
(A) Frozen:
0303.42.0020                                Yellowfin tuna, whole,
                                             frozen.
0303.42.0040                                Yellowfin tuna, eviscerated,
                                             head on, frozen.
0303.42.0060                                Yellowfin tuna, other,
                                             frozen.
(B) Canned:
1604.14.1000                                Tuna, non-specific, in
                                             airtight containers, in
                                             oil.
1604.14.2040                                Tuna, other than albacore,
                                             not over 7kg, in airtight
                                             containers.
1604.14.3040                                Tuna, other than albacore,
                                             in airtight containers, not
                                             in oil, over quota.
(C) Loins:
1604.14.4000                                Tuna, not in airtight
                                             containers, not in oil,
                                             over 6.8kg.
1604.14.5000                                Tuna, other, not in airtight
                                             containers.
(D) Other (only if the product contains
 tuna):
0304.10.4099                                Other fish, fillets and
                                             other fish meat, fresh or
                                             chilled.
0304.20.2066                                Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5kg, frozen.
0304.20.6096                                Other fish, fillets, frozen.
0304.90.1089                                Other fish meat, in bulk or
                                             immediate containers, fresh
                                             or chilled.
0304.90.9091                                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 FCO. 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:
0303.41.0000                                Albacore or longfinned
                                             tunas, frozen.
0303.43.0000                                Skipjack, frozen.
0303.49.0020                                Bluefin, frozen.
0303.49.0040                                Other tuna, frozen.
(B) Canned:

[[Page 54]]

 
1604.14.2020                                Albacore tuna, in airtight
                                             containers, not in oil, not
                                             over 7kg, in quota.
1604.14.3020                                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:
0303.10.0012                                Salmon, chinook, frozen.
0303.10.0022                                Salmon, chum, frozen.
0303.10.0032                                Salmon, pink, frozen.
0303.10.0042                                Salmon, sockeye, frozen.
0303.10.0052                                Salmon, coho, frozen.
0303.10.0062                                Salmon, Pacific, non-
                                             specific, frozen.
0303.21.0000                                Trout, frozen.
0303.22.0000                                Salmon, Atlantic and Danube,
                                             frozen.
0303.29.0000                                Salmonidae, other, frozen.
0303.70.4097                                Fish, other, frozen.
0303.75.0010                                Dogfish, frozen.
0303.75.0090                                Other sharks, frozen.
0303.79.2041                                Swordfish steaks, frozen
0303.79.2049                                Swordfish, other, frozen.
 
0304.20.2066                                Fish, fillet, skinned, in
                                             blocks frozen over 4.5kg.
0304.20.6008                                Salmonidae, salmon fillet,
                                             frozen.
0304.20.6096                                Fish, fillet, frozen.
0307.49.0010                                Squid, other, fillet,
                                             frozen.
(B) Canned:
1604.11.2020                                Salmon, pink, canned in oil,
                                             in airtight containers.
1604.11.2030                                Salmon, sockeye, canned in
                                             oil, in airtight
                                             containers.
1604.11.2090                                Salmon, other, canned in
                                             oil, in airtight
                                             containers.
1604.11.4010                                Salmon, chum, canned, not in
                                             oil.
1604.11.4020                                Salmon, pink, canned, not in
                                             oil.
1604.11.4030                                Salmon, sockeye, canned, not
                                             in oil.
1604.11.4040                                Salmon, other, canned, not
                                             in oil.
1604.11.4050                                Salmon, other, canned, not
                                             in oil.
1604.19.2000                                Fish, other, in airtight
                                             containers, not in oil.
1604.19.3000                                Fish, other, in airtight
                                             containers, in oil.
1605.90.6055                                Squid, loligo, prepared/
                                             preserved.
(C) Other:
0304.10.4099                                Other fish, fillets and
                                             other fish meat, fresh or
                                             chilled.
0304.20.2066                                Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5kg, frozen.
0304.20.6098                                Other fish, fillets, frozen.
0304.90.1089                                Other fish, fillets and fish
                                             meat, in bulk or in
                                             immediate containers, fresh
                                             or chilled.
0304.90.9092                                Other fish meat, fresh or
                                             chilled.
 
0305.30.6080                                Fish, non-specific, fillet.
                                             dried/salted/brine.
0305.49.4040                                Fish, non-specific, smoked.
0305.59.2000                                Shark fins.
0305.59.4000                                Fish, non-specific, dried.
0305.69.4000                                Salmon, non-specific,
                                             salted.
 
0305.69.5000                                Fish, non-specific, in
                                             immediate containers,
                                             salted, not over 6.8kg.
0305.69.6000                                Fish, non-specific, salted,
                                             other.
0307.49.0050                                Squid, non-specific, frozen/
                                             dried/salted/brine.
0307.49.0060                                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, 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) Customs entry identification;
    (ii) Date of entry;
    (iii) Exporter's full name and complete address;
    (iv) Importer's or consignee's full name and complete address;
    (v) Species description, product form, and HTS number;
    (vi) Total net weight of the shipment in kilograms;
    (vii) Ocean area where the fish were harvested (ETP, Western 
Pacific Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, 
Indian Ocean, or other);
    (viii) Type of fishing gear used to harvest the fish (purse seine, 
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and 
line, or other);
    (ix) 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;
    (x) Dates on which the fishing trip began and ended;
    (xi) If the shipment includes tuna or products harvested with a 
purse seine net, the name of the harvesting vessel;
    (xii) Dolphin safe condition of the shipment;
    (xiv) 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 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; and
    (xii) If the shipment contains tuna harvested in the ETP by a purse 
seine vessel of more than 400 st (362.8 mt) carrying capacity, each 
importer or processor who takes custody of the shipment must sign and 
date the form to certify that the form and attached

[[Page 55]]

documentation accurately describe the shipment of fish that they 
accompany.
    (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 March 3, 1999, the effective date of 
section 4 of the IDCPA, and harvested 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 March 3, 1999, the effective date of section 4 
of the IDCPA, and would have been banned from importation under 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 if it:
    (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 having been 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 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 nations harvesting yellowfin 
tuna using a purse seine in the ETP. (i) The Assistant Administrator 
will determine, on an annual basis, 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, or by the IDCP and the IATTC, and will publish the finding 
in the Federal Register. 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. Every 5 years, the government of the harvesting nation, must 
submit such documentary evidence directly to the Assistant 
Administrator and request an affirmative finding. Documentary evidence 
needs to be submitted by the harvesting nation for the first 
affirmative finding subsequent to the effective date of this rule. The 
Assistant Administrator may require the submission of supporting 
documentation or other verification of statements made in connection 
with requests to allow importations. An affirmative finding applies to 
tuna and tuna products that were harvested by vessels of the nation 
after February 15, 1999. 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;
    (C)(1) The annual total 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; or
    (2)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the total dolphin mortality of the 
nation's purse seine fleet (including certified charter vessels 
operating under its jurisdiction) exceeded the aggregated total of the 
mortality limits assigned by the IDCP for that nation's purse seine 
vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate mortality of its fleet had been exceeded, the nation required 
all its vessels to cease fishing for tuna in association with dolphins 
for the remainder of the calendar year; and
    (D)(1) For calendar year 2000 and any subsequent years in which the 
parties agree to a global allocation system for per-stock per-year 
individual stock quotas, the nation responded to the notification from 
the IATTC that an individual stock quota had been reached by 
prohibiting any additional sets on the stock for which the quota had 
been reached;
    (2) If a per-stock per-year quota is allocated to each nation, 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 per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels 
(if any) for the year preceding the year in which the finding would 
start; or
    (3)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the per-stock per-year dolphin 
mortality of the nation's purse seine fleet (including certified 
charter vessels operating under its jurisdiction) exceeded the 
aggregated total of the per-stock per-year limits assigned by the IDCP 
for that nation's purse seine vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate per-stock mortality limits of its fleet had been exceeded, 
the nation required all its vessels to cease fishing for tuna in 
association with the stocks whose limits had been exceeded, for the 
remainder of the calendar year.
    (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

[[Page 56]]

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 financial 
obligations to 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 has met the requirements of paragraphs (f)(9)(i) and 
(f)(9)(ii) of this section.
    (v) 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.
    (vi) Intermediary nation. Except as authorized under this 
paragraph, no tuna or tuna products classified under one of the HTS 
numbers listed in paragraph (f)(2)(i) of this section may be imported 
into the United States from any intermediary nation. An ``intermediary 
nation'' is a nation that exports yellowfin tuna or yellowfin tuna 
products to the United States and that imports yellowfin tuna or 
yellowfin tuna products that are subject to a direct ban on importation 
into the United States pursuant to section 101(a)(2)(B) of the MMPA, 
unless shown not to be yellowfin tuna or yellowfin tuna products 
harvested using purse seine in the ETP. The Assistant Administrator 
will publish in the Federal Register a notice announcing when NMFS has 
determined, based on the best information available, that a nation is 
an ``intermediary nation.'' After the effective date of that notice, 
these import restrictions shall apply. Shipments of yellowfin tuna or 
yellowfin tuna products shipped 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.
    (A) Intermediary nation determination status. Imports from an 
intermediary nation of tuna and tuna products classified under any of 
the HTS numbers in paragraph (f)(2)(i) of this section may be imported 
into the United States only 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. At that time, the nation shall no 
longer be considered an ``intermediary nation'' and these import 
restrictions shall no longer apply.
    (B) Changing the status of intermediary nation determinations. The 
Assistant Administrator will review decisions under this paragraph 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, 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.
    (vii) 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.
    (viii) Coordination. The Assistant Administrator will promptly 
advise the Department of State and the Department of the Treasury of 
embargo decisions, actions and finding determinations.
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(3) of this section, the District Director of Customs shall refuse 
to release the fish for entry into the United States and shall issue a 
notice of such refusal to the importer or consignee.
    (11) Disposition of fish refused entry into the United States; 
redelivered fish. Fish which is denied entry under paragraph (f)(3) of 
this section and which is not exported under Customs supervision within 
90 days from the date of notice of refusal of admission or date of 
redelivery shall be disposed of under Customs laws and regulations. 
Provided however, that any disposition shall not result in an 
introduction into the United States of fish caught in violation of the 
MMPA.
    (12) Market Prohibitions. 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:
    (i) Dolphin-safe under subpart H; or
    (ii) harvested in compliance with the IDCP by vessels under the 
jurisdiction of a nation that is a member of the IATTC or has 
initiated, and within 6 months thereafter completes, all steps required 
by applicant nations to become members of the IATTC.
    (iii) For purposes of this section, tuna or tuna products are 
``dolphin-safe'' if they are dolphin-safe under subpart H.
    (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.
    6. In Subpart D, a new Sec. 216.46 is added to read as follows:


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

    The MMPA's provisions do 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. 1802)), while employed on a 
fishing vessel of a harvesting nation that is participating in, and in 
compliance with, the IDCP.
    7. Sections 216.90 through 216.94 are revised to read as follows:


Sec. 216.90  Purposes.

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

[[Page 57]]

Sec. 216.91  Dolphin-safe labeling standards.

    (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) ETP large purse seine vessel. In the ETP by a purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) The documentation requirements for dolphin-safe tuna under 
Secs. 216.92 and 216.94 are met;
    (ii) No dolphin were killed or seriously injured during the sets in 
which the tuna were caught; or
    (iii) If the Assistant Administrator publishes notification in the 
Federal Register announcing a finding that the intentional deployment 
of purse seine nets on or encirclement of dolphins is having a 
significant adverse impact on any depleted stock:
    (A) No tuna products were caught on a trip using a purse seine net 
intentionally deployed on or to encircle dolphins; and
    (B) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught.
    (2) Non-ETP purse seine vessel. 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) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (4) Other fisheries. By a vessel in a fishery other than one 
described in paragraphs (a)(1) through(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.
    (c) A tuna product that is labeled with the official mark, 
described in Sec. 216.96, may not be labeled with any other label or 
mark that refers to dolphins, porpoises, or marine mammals.


Sec. 216.92  Dolphin-safe requirements for tuna harvested in the ETP by 
large purse seine vessels.

    (a) U.S. vessels. Tuna products that contain tuna harvested by U.S. 
flag purse seine vessels of greater than 400 st (362.8 mt) carrying 
capacity in the ETP may be labeled ``dolphin-safe'' if the following 
requirements are met:
    (1) ``Dolphin-safe'' Tuna Tracking Forms certified by the vessel 
captain and the observer are submitted to the Regional Administrator, 
Southwest Region, at the end of the fishing trip during which the tuna 
was harvested;
    (2) The tuna has been processed by a U.S. tuna processor in a plant 
located in one of the 50 states, Puerto Rico, or American Samoa that is 
in compliance with the tuna tracking and verification requirements of 
Sec. 216.94;
    (3) The tuna or tuna products are accompanied by a properly 
completed FCO;
    (4) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 216.91; and
    (5) The FCO is properly endorsed by each processor certifying that, 
to the best of his or her knowledge and belief, the FCO and attached 
documentation are complete and accurate.
    (b) Imported tuna. Tuna or tuna products harvested in the ETP by 
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity 
and presented for import into the United States are dolphin safe if:
    (1) The tuna was harvested by a U.S. vessel fishing in compliance 
with the requirements of the IDCP and applicable U.S. law, or by a 
vessel belonging to a nation that has obtained an affirmative finding 
of Sec. 216.24(f)(9);
    (2) The tuna or tuna products are accompanied by a properly 
completed FCO;
    (3) The tuna or tuna products are accompanied by valid 
documentation signed by a representative of the appropriate IDCP member 
nation, certifying that:
    (i) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and
    (ii) The tuna contained in the shipment were caught according to 
the dolphin-safe labeling standards of Sec. 216.91;
    (4) The documentation provided in paragraph(b)(3) of this section 
includes a listing of vessel names and identifying numbers of the 
associated Tuna Tracking Forms for each trip of which tuna in the 
shipment originates; and
    (5) The FCO is properly endorsed 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.


Sec. 216.93  Submission of documentation.

    (a) Requirements for the submission of documents concerning the 
activities of U.S. flag vessels with greater than 400 st carrying 
capacity fishing in the ETP are contained in Sec. 216.94.
    (b) The import documents required by Secs. 216.91 and 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:
    (1) 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
    (2) the documents are endorsed as required by Sec. 216.92(b)(4) and 
the final processor delivers 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 national 
tracking and verification program to accurately document the ``dolphin-
safe'' condition of tuna, under the standards set forth in 
Sec. 216.91(a). The tracking program

[[Page 58]]

includes procedures and reports for use when importing tuna into the 
U.S. and during U.S. 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. The tracking program is consistent with the international 
tuna tracking and verification program adopted by the Parties to the 
IDCP.
    (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in 
the ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing the IATTC 
cruise number assigned to that trip, are used by the observer to record 
every set made during that trip. One TTF is used to record ``dolphin-
safe'' sets and a second TTF is used to record ``non-dolphin-safe'' 
sets. The information entered on the TTFs following each set includes 
date of trip, set number, date of loading, name of the vessel, vessel 
Captain's name, observer's name, well number, weights by species 
composition, estimated tons loaded, and date of the set. The observer 
and the vessel engineer initial the entry for each set, and the vessel 
Captain and observer review and sign both TTFs at the end of the 
fishing trip certifying that the information on the form is accurate. 
The captain's and observer's certification of the TTF on which dolphin-
safe sets are recorded complies with 16 U.S.C. 1385(h).
    (b) 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 (b)(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 (b)(2)(i) 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.
    (2) Mixed wells. Only two acceptable conditions exist under which a 
``mixed'' well can be created.
    (i) In the event that a set has been designated ``dolphin-safe'' by 
the observer, but during 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 ``non-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. In addition, 15 percent of the ``dolphin-safe'' 
tuna unloaded from the ``mixed well'' will be designated as ``non-
dolphin-safe.''
    (ii) Near the end of an ETP fishing trip, if the only well space 
available is in a ``non-dolphin-safe'' well, and there is an 
opportunity to make one last set, ``dolphin-safe'' tuna caught in that 
set may be loaded into the ``non-dolphin-safe'' well. The ``dolphin-
safe'' tuna must be kept physically separate from the ``non-dolphin-
safe'' tuna already in the well, using netting or other material.
    (3) The captain, managing owner, or vessel agent of a U.S. 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.
    (4) If the trip terminates when the vessel enters port to unload 
part or all of its catch, new TTFs will be assigned to the new trip, 
and any information concerning tuna retained on the vessel will be 
recorded as the first entry on the TTFs for the new trip. If the trip 
is not terminated following a partial unloading, the vessel will retain 
the original TTFs and submit a copy of those TTFs to the Administrator, 
Southwest Region, within 5 working days. In either case, the species 
and amount unloaded will be noted on the respective originals.
    (5) Tuna offloaded to trucks, storage facilities or carrier vessels 
must be loaded or stored 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.
    (6)(i) When ETP caught tuna is to be offloaded from a U.S. purse 
seiner directly to a U.S. canner within the 50 states, Puerto Rico, or 
American Samoa, or in any port and subsequently loaded aboard a carrier 
vessel for transport to a U.S. processing location, a NMFS 
representative may meet the U.S. purse seiner to receive the TTFs from 
the vessel observer and to monitor the handling of ``dolphin-safe'' and 
``non-dolphin-safe'' tuna.
    (ii) When ETP caught tuna is offloaded from an U.S. purse seiner in 
any port and subsequently loaded aboard a carrier vessel for transport 
to a cannery outside the jurisdiction of the United States, a NMFS 
representative may meet the vessel to receive copies of the TTFs from 
the observer and monitor the offloading. The U.S. caught tuna becomes 
the tracking and verification responsibility of the foreign buyer when 
it is offloaded from the U.S. vessel.
    (iii) If a NMFS representative does not meet the vessel in port at 
the time of arrival, the observer may take the signed TTFs to the IATTC 
office and mail copies to the Administrator, Southwest Region, from 
that location within 5 working days of the end of the trip.
    (iv) When ETP caught tuna is offloaded from a U.S. purse seiner 
directly to a processing facility located outside the jurisdiction of 
the United States in a country that is a party to the IDCP, the 
national authority in whose area of jurisdiction the tuna is to be 
processed will assume the responsibility for tracking and verification 
of the tuna offloaded. A representative of the national authority will 
receive copies of the TTFs from the observer, and copies of the TTFs 
will be forwarded to the Administrator, Southwest Region.
    (c) Tracking cannery operations. (1) Whenever a tuna canning 
company in the 50 states, Puerto Rico, or American Samoa 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.

[[Page 59]]

    (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, 
electronically, by mail, or by 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, product description, 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 (c)(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 (c)(5)(i) of this section, a copy of the FCO for each 
imported receipt must be provided.
    (d) 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).
    (e) Verification requirements.--(1) Record maintenance. Any 
exporter, 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 paragraph (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 harvested in the ETP must submit to the Administrator 
any record required to be maintained under paragraph (e)(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.
    (f) 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.''
    8. In subpart H, Sec. 216.96 is added and reserved to read as 
follows:


Sec. 216.96  Official mark [Reserved]

[FR Doc. 99-33632 Filed 12-30-99; 8:45 am]
BILLING CODE 3510-22-F