[Federal Register Volume 69, Number 176 (Monday, September 13, 2004)]
[Rules and Regulations]
[Pages 55288-55309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20468]



[[Page 55287]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



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

  Federal Register / Vol. 69, No. 176 / Monday, September 13, 2004 / 
Rules and Regulations  

[[Page 55288]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 040806232-4232-01, I.D. 041404C]
RIN 0648-AS45


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

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

ACTION:  Final rule.

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SUMMARY:  NMFS issues a final rule to implement provisions of the 
International Dolphin Conservation Program Act (IDCPA). This rule 
replaces the interim rule published in the Federal Register on January 
3, 2000. This final rule makes technical changes and clarifications to 
the interim final rule which is already in effect. The 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) and the Agreement on the IDCP. The 
interim final rule establishes a standard for the use of ``dolphin-
safe'' labels for tuna products and also establishes a tuna-tracking 
and verification program to ensure that the dolphin-safe status of tuna 
domestically produced and imported into the United States is 
documented. This final rule does not contain substantive changes to the 
actions implemented in the interim final rule unless suggested by 
commenters.

DATES: Effective October 13, 2004.

ADDRESSES: Written comments on the collection-of-information 
requirements should be sent to Jeremy Rusin, NMFS, Southwest Region, 
Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213. Comments also may via sent via facsimile (fax) to 
(562) 980-4027.

FOR FURTHER INFORMATION CONTACT:  Jeremy Rusin, NMFS, Southwest Region, 
Protected Resources Division, (562) 980-3248.

SUPPLEMENTARY INFORMATION:

Background

    In 1992, ten 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 
schedule for significantly reducing dolphin mortality. (These nations 
included Colombia, Costa Rica, Ecuador, Mexico, Nicaragua, Spain, 
Panama, Vanuatu, Venezuela and the United States.) 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, Spain, Vanuatu, and 
Venezuela to sign the Panama Declaration, another voluntary measure, to 
strengthen and enhance the IDCP.
    The program outlined in the Panama Declaration provided greater 
protection for dolphins and enhanced the conservation of yellowfin tuna 
and other living marine resources in the ETP ecosystem. The signers of 
the Panama Declaration anticipated that the United States would amend 
the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) 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 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.
    The IDCPA was signed into law August 15, 1997, and became effective 
March 3, 1999. The IDCPA was the United States' domestic endorsement of 
the Panama Declaration. The IDCPA amends the MMPA, the Dolphin 
Protection Consumer Information Act (DPCIA) (16 U.S.C. 1385), and the 
Tuna Conventions Act, 16 U.S.C. 951 et seq. It provides a framework for 
governing marine mammal mortality incidental to 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.

Agreement on the IDCP

    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 Mexico became the fourth nation to ratify the 
Agreement.
    The nations who are Parties to the Agreement on the IDCP agreed 
that 1999 would be a transition year and that 2000 would be the first 
year the Agreement would be fully implemented and nations would operate 
under the Agreement. This final rule is intended to implement the IDCPA 
and the Agreement for dolphin conservation in the ETP.

Proposed Rule and Interim Final 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 the use of dolphin-safe labels for tuna products and; (4) establish 
a system of tracking and verification for tuna harvested by U.S. and 
foreign vessels in the ETP that enter the commerce of the United 
States.
    Public comments on the proposed rule were accepted through July 14, 
1999. Several commenters on the proposed rule stated that the 30-day 
comment period for this proposed rule was too short and requested an 
extension of the public comment period. To accommodate this, NMFS 
published an interim final rule (65 FR 31, January 3, 2000) with a 90-
day comment period, instead of a final rule. Public comments on the 
interim final rule were accepted through April 3, 2000. 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 
publication of the interim final rule in the Federal Register, NMFS 
sent the proposed rule and the interim final rule to industry 
representatives, environmental organizations, vessel and operator 
permit holders, importers, IDCP member nations, Department of State 
(DoS), Inter-American Tropical Tuna Commission (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 press releases announcing 
the availability of the proposed rule and the interim final rule. 
Information in the press release was published in several national 
newspapers and on NMFS websites and was broadcast on several radio 
stations.

Litigation: Labeling Standard

    On August 17, 1999, in response to NMFS' issuance of the initial 
finding mandated under paragraph (g)(1) of the DPCIA, twelve 
environmental

[[Page 55289]]

organizations and individuals filed a complaint against the Department 
of Commerce and NMFS alleging that NMFS violated the MMPA, the DPCIA, 
the IDCPA and the National Environmental Policy Act (NEPA). The 
plaintiffs in Brower v. Daley sought to prevent the change of the 
dolphin-safe labeling standard that had resulted from NMFS' initial 
finding. The plaintiffs alleged that NMFS failed to follow the 
requirements of these Acts in its April 29, 1999, initial finding that 
there was insufficient evidence to conclude that the encirclement of 
dolphins with purse seine nets by fishing vessels in the ETP was having 
a significant adverse impact on depleted ETP dolphin stocks. Under 
NMFS' initial finding, the dolphin-safe labeling standard changed to 
the definition under paragraph (h)(1) of the DPCIA. This definition 
states that tuna harvested by ``large purse seine vessels,'' i.e. 
vessels with carrying capacity greater than 400 short tons (st), in the 
ETP may be labeled dolphin-safe only if no dolphins were killed or 
seriously injured during the sets in which the tuna were caught.
    On April 11, 2000, the U.S. District Court for the Northern 
District of California reversed NMFS' initial finding and reinstated 
the dolphin-safe labeling standard under paragraph (h)(2) of the DPCIA 
(Brower v. Daley, 93 F.Supp.2d 1071). Under this ruling, tuna harvested 
in the ETP could be labeled dolphin-safe only if no dolphins were 
intentionally encircled during the fishing trip and if no dolphins were 
killed or seriously injured during the sets in which the tuna were 
caught. On May 18, 2000, the Federal defendants appealed the order of 
the District Court. On July 23, 2001, the U.S. Court of Appeals for the 
Ninth Circuit upheld the District Court decision (Brower v. Evans, 257 
F.3d 1058). The appellate court ruled that (1) NMFS had not made 
sufficient progress in the required scientific research and (2) NMFS' 
decision was inconsistent with the DPCIA, which requires the Secretary 
of Commerce (Secretary) to determine whether or not there was an 
adverse impact on depleted dolphin stocks from chase and encirclement.
    On December 31, 2002, NMFS, on behalf of the Secretary, made a 
final finding, based on the results of required research, information 
obtained under the IDCP, and other relevant information, that the 
intentional deployment on or encirclement of dolphins with purse seine 
nets is not having a ``significant adverse impact'' on any depleted 
dolphin stock in the ETP (68 FR 2010, January 15, 2003). This finding 
meant that tuna harvested by large purse seine vessels in the ETP could 
be labeled dolphin-safe even if dolphins were encircled or chased, 
provided that no dolphins were killed or seriously injured in the set 
in which the tuna was harvested. The finding, and the change in the 
labeling standard, became effective immediately on December 31, 2002. 
This determination was based largely on the results of research 
projects mandated by Section 304 of the MMPA. NMFS conducted the 
research to determine if, despite the relatively low levels of observed 
mortality, the intentional chase and encirclement of dolphins by the 
tuna industry is having a significant adverse impact on any of the 
depleted dolphin stocks. The research results, including those of a 
chase-recapture experiment on dolphins in the ETP and other relevant 
information, were considered by the Secretary for the final dolphin-
safe determination.
    Also on December 31, 2002, Earth Island Institute, eight other 
environmental groups, and one individual filed a lawsuit against the 
Secretary in an effort to overturn the final finding. On January 22, 
2003, the United States District Court for the Northern District of 
California issued an order that stayed the implementation of the final 
finding (Earth Island Institute et al. v. Evans et al., C 03-0007 TEH, 
N.D.Cal.). Under the terms of the order, the dolphin-safe labeling 
standard for tuna harvested by large purse seine vessels in the ETP 
reverted to the standard in effect immediately prior to the December 
31, 2002, final finding. The terms of the order, outlined in the 
Federal Register (68 FR 4449, January 29, 2003), further provide that 
this labeling standard shall remain in effect for 90 days from the date 
of the order or until a ruling is issued on a motion for a preliminary 
injunction, which will also be published in the Federal Register. The 
stay was agreed to by all parties involved in the Earth Island 
Institute lawsuit. On April 10, 2003, the District Court issued a 
preliminary injunction that orders NMFS not to implement the final 
finding or the new dolphin-safe labeling standard (Earth Island 
Institute et al. v. Evans et al., C 03-0007 THE, N.D.Cal.). In an 
August 9, 2004, decision, the District Court set aside the final 
finding and declared that ``dolphin-safe'' may be used only on tuna 
products harvested by large purse seine vessels in the ETP if the tuna 
were caught on a trip in which (1) the purse seine was never 
intentionally deployed on or to encircle dolphins, and (2) no dolphins 
were killed or seriously injured during the sets in which the tuna were 
caught.

Litigation: Implementing Regulations

    On February 8, 2000, Defenders of Wildlife and other environmental 
organizations filed suit against the Assistant Administrator for 
Fisheries, NMFS, in the U.S. Court of International Trade. The 
plaintiffs alleged that NMFS did not lawfully follow the IDCPA, NEPA, 
and the Administrative Procedure Act in the implementation of the 
IDCPA. The plaintiffs motioned the Court for a preliminary injunction 
to prevent NMFS from making ``affirmative findings'' that would lift 
embargoes against Mexico or other ETP tuna fishing nations. This motion 
was denied on April 14, 2000.
    On December 7, 2001, the Court of International Trade denied 
plaintiffs' motion for summary judgement and dismissed the lawsuit 
against NMFS (Defenders of Wildlife v. Hogarth, 177 F.Supp.2d 1336). 
The Court agreed with NMFS' interpretation of the IDCPA and upheld the 
legality of the January 2000 interim final rule in regard to several 
very specific allegations. The Court also affirmed that the Federal 
government complied with NEPA in promulgating the interim final rule 
and in negotiating the 1999 Agreement on the IDCP. Finally, the Court 
held that NMFS' affirmative finding for Mexico was not arbitrary and 
capricious. The affirmative finding allows Mexico to export to the 
United States yellowfin tuna and yellowfin tuna products harvested in 
the ETP using purse seine vessels. The U.S. Court of Appeals for the 
Federal Circuit upheld the Court of International Trade's decision. 
Plaintiffs appealed to the U.S. Supreme Court and the Court declined to 
entertain the appeal on May 3, 2004.

Responses to Comments

    NMFS received over 800 comments during the comment period for the 
interim final rule. Comments were received from tuna industry 
organizations, environmental organizations, members of the public, DoS, 
U.S. Customs Service, and foreign nations. Key issues and concerns are 
summarized below and responded to as follows:

Import Procedures

    Comment 1: For clarification purposes, revise the last sentence of 
Sec.  216.24(f)(9)(vi) to read as follows: ``Since shipments destined 
for the United States on a through bill of lading at the time of the 
original shipment are neither imported for consumption in the 
'intermediary nation' nor exported

[[Page 55290]]

therefrom under 50 CFR 216.24(f)(9)(viii), the nation would not be 
considered an 'intermediary nation' under the MMPA.
    Response: NMFS has revised the sentence to clarify its meaning. 
This sentence appears in Sec.  216.24(f)(9)(ii) of this final rule.
    Comment 2: NMFS has never requested that the U.S. Customs Service 
monitor compliance with the dolphin-safe labeling requirements. This 
would involve a significant increase in Customs Inspection workload. 
Before any Customs enforcement actions could be taken both agencies 
would have to concur in the development of a practical implementation 
plan.
    Response: U.S. Customs' monitoring of imports of certain frozen and 
canned tuna shipments enables NMFS to monitor compliance with the 
dolphin-safe labeling requirements. NMFS is working with U.S. Customs 
to develop a practicable implementation plan for enforcement of NMFS 
tuna import requirements.
    Comment 3: Over 95 percent of all U.S. Customs entries are 
electronic. Therefore, requiring submission of a paper Fisheries 
Certificate of Origin ((FCO), NOAA Form 370) at the time of importation 
inhibits the automation initiative of the U.S. Custom Service.
    Response: NMFS and U.S. Customs have agreed that, for the 
foreseeable future, import shipments of tuna and tuna products that 
require an accompanying FCO may not be entered electronically.
    Comment 4: If fish is denied entry, that action per se constitutes 
a U.S. Customs refusal of admission and no formal notice of such 
refusal is issued by Customs. Please remove the phrase ``and shall 
issue a notice of such refusal to the importer or consignee'' at the 
end of Sec.  216.24(f)(10). The issue of 'notice of refusal' and 
'redelivery' should be discussed by Customs and NMFS further.
    Response: NMFS consulted with U.S. Customs and made the requested 
changes.
    Comment 5: The regulations describe the old FCO that references 
non-encirclement of dolphins instead of the new FCO that references the 
Tuna Tracking Form and non-mortality or serious injury.
    Response: The regulations are fully up to date. Section 
216.24(f)(3) and (4) describe, in general terms, the requirements for 
processing and maintaining the FCOs.
    Comment 6: The regulations should include a provision for seizure 
of a product that is neither exported nor destroyed after the 90-day 
period has elapsed.
    Response: NMFS revised Sec.  216.24(f)(11) accordingly.
    Comment 7: U.S. Customs has informed NMFS that Harmonized Tariff 
Schedule (HTS) number 1605.90.6055 (which appears in Sec.  
216.24(f)(2)(iii)(B)) has changed from ``Squid, loligo, prepared/
preserved'' to ``Squid, other, prepared/preserved.'' U.S. Customs also 
informed NMFS that the current HTS number for ``Squid, loligo, 
prepared/preserved'' is 1605.90.6050. The commenter indicated that 
these changes should be reflected in the regulations.
    Response: NMFS has reviewed and updated all HTS numbers applicable 
to this final rule and has made the appropriate changes in Sec.  
216.24(f)(2)(iii)(B).

Definitions

    Comment 8: The definition of ``Serious injury'' under Sec.  216.3 
is not descriptive enough to be used by official observers to determine 
whether or not a dolphin is seriously injured.
    Response: The definition will enable officials to determine whether 
or not a dolphin is seriously injured. Further, an overly descriptive 
definition has the potential to restrict one's ability to categorize an 
injury as serious. Observers are responsible for noting information 
regarding any interactions with marine mammals; however, observers are 
not expected to determine whether or not a dolphin is seriously 
injured. The IATTC reviews and evaluates the Observer Forms, and the 
IATTC and NMFS evaluate individual reported injuries using criteria 
developed by the international program.

Application for Vessel Permit

    Comment 9: Section 216.24(b)(4) should specifically require the 
name and address of the owner of the vessel if it is different from the 
applicant.
    Response: MMPA section 306(a)(1)(A), 16 U.S.C. 1416(a)(1)(A), 
directs the Secretary to require the submission of the name and address 
of the owner of each vessel for which a vessel permit is sought. NMFS 
has addressed this issue in these regulations and the vessel permit 
application process. The vessel permit application specifically 
requires the name and address of the owner of the vessel if it is 
different from the applicant.

Observer Placement

    Comment 10: In order to ensure the competitiveness of U.S. purse 
seine vessels fishing pursuant to the South Pacific Tuna Treaty in the 
western Pacific Ocean, the Forum Fisheries Agency (FFA) observers 
should be approved for use in the ETP by the IDCP and the 
Administrator.
    Response: A vessel that does not normally fish for tuna in the ETP 
(for example, a vessel that typically fishes in the western Pacific 
Ocean) but desires to participate in the ETP fishery on a limited basis 
may do so after complying with Sec.  216.24. FFA observers have been 
approved for use in the Agreement Area of the Agreement on the IDCP. 
The IATTC is currently training FFA observers to record data on IATTC 
forms for compatibility and consistency.
    Mortality and Serious Injury Reports
    Comment 11: Section 216.24(b)(9) requires that the Secretary 
provide to the public ``periodic status reports summarizing the 
estimated incidental dolphin mortality and serious injury by U.S. 
vessels.'' These reports should be completed on either a quarterly or 
bi-annual basis.
    Response: NMFS provides this information on an annual basis. This 
information can be found in the Marine Mammal Protection Act Annual 
Reports. Historically, NMFS issued weekly reports of dolphin mortality 
in the ETP tuna purse seine fishery to assist the public in observing 
compliance with dolphin mortality quotas; however, U.S. vessels have 
not made intentional sets on dolphins since February 1994. While U.S. 
vessels continue to abstain from intentionally setting on dolphins, 
NMFS believes annual reports are adequate. In the event that U.S. 
vessels begin setting on dolphins, the regulations provide the 
flexibility for NMFS to issue more frequent reports.

Purse Seining by Vessels With Dolphin Mortality Limits (DMLs)

    Comment 12: There is no requirement or mechanism for any reduction 
in dolphin mortality in the regulations. We recommend that the 
regulations provide incentives to the vessels to reduce DMLs. Two 
possible incentives are (1) monetary reimbursement for unused DMLs or 
(2) ability to sell unused DMLs to other vessels. In addition, there 
should be civil and criminal penalties against persons who exceed their 
DML.
    Response: The Parties to the Agreement on the IDCP, of which the 
United States is a member, established a working group to develop 
incentives and rewards to encourage vessel operators to reduce dolphin 
mortality. Recently, this working group selected vessel operators who 
had met or exceeded the criteria for high performing captains in 
reducing dolphin mortality in this fishery and awarded them with 
plaques recognizing

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their performance. This working group will continue to develop 
incentives for vessel captains and methods to reduce dolphin mortality. 
Additionally, while penalties are not part of these regulations, Sec.  
216.24(c)(9)(v) provides that a DML assigned to a U.S. vessel that 
exceeded its DML in a given year will be reduced by 150 percent of the 
overage in the following year.
    Comment 13: These regulations create incentives for tuna fishermen 
to set on and potentially kill the maximum number of dolphins allowed 
under the international system.
    Response: These regulations do not create an incentive for tuna 
fishermen to set on dolphins. Since the implementation of these 
regulations, no U.S. purse seine vessels have made intentional sets on 
dolphins. Under the Agreement on the IDCP (Annex IV, section II, 
paragraph 1), any vessel that 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; however, an intentional set on dolphins does not 
necessarily lead to dolphin mortality. This requirement is part of the 
process established by the international program to deter frivolous 
requests for DMLs.

Backdown Procedure

    Comment 14: Although the regulations provide for the use of a 
backdown procedure, they do not address how the procedure will be 
carried out and do not provide vessels with the opportunity to 
implement a more effective procedure to avoid mortality or serious 
injury to dolphins.
    Response: Vessel operators receive formal training through either 
NMFS or the IATTC Captains training program on the requirements and 
execution of this procedure. In addition, new vessel operators 
participate in a lengthy apprentice program in which they master all 
operations of a vessel (including the backdown procedure) before 
becoming a Captain or vessel operator. The backdown process is a 
dynamic procedure that requires an in-depth knowledge and understanding 
of the net construction and design to effectively deploy this maneuver. 
Because of the complexities of the procedure and the training programs 
in place to ensure vessel operators learn the procedure, it is 
unnecessary to describe this procedure in these regulations. Further, 
NMFS has not determined that tuna purse seine fishers fail to adhere to 
the training they receive. In fact, they have an incentive to 
successfully perform the procedure and to avoid dolphin mortalities.
    The regulations allow for experimental fishing operations, 
consistent with 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.
    NMFS has funded research to test various methods of finding and 
fishing for yellowfin tuna not in association with dolphins. For 
example, funding priorities for the Saltonstall-Kennedy Grant Program 
include proposals that address marine mammal and fishery interactions.

Sundown Sets Prohibition

    Comment 15: The rule ignores the IDCPA requirement that backdown 
procedures be completed by 30 minutes before sundown.
    Response: NMFS research, previous NMFS regulations and previous 
amendments to the MMPA, the La Jolla Agreement and the IDCP specify 
that the backdown procedure 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, thus prohibiting sundown 
sets. Because early drafts of the IDCPA used the word ``after'' and no 
congressional reports or colloquy indicated that the change to 
``before'' 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. 
Furthermore, the IDCPA gives NMFS discretion to promulgate, and adjust 
through regulations, this requirement to carry out U.S. obligations 
under the Agreement on the IDCP. This interpretation was upheld by the 
Court of International Trade in the Defenders of Wildlife litigation 
(discussed above). Therefore, NMFS is retaining the ``30 minutes 
after'' language that appeared in the interim final rule.

Experimental Fishing Operations

    Comment 16: Section 216.24(c)(7) should specify which requirements 
may be waived for experimental fishing activities.
    Response: Section 216.24(c)(7) specifies that NOAA's Assistant 
Administrator for Fisheries, NMFS, may not waive the DML requirements 
and the obligation to carry an observer. The regulations allow the 
Administrator flexibility to waive other requirements of Sec.  216.24 
as appropriate. This flexibility is critical to encourage a variety of 
alternative experimental designs and techniques that might be 
effective.

Per-stock, Per-year Limits

    Comment 17: The regulations state that if the per-stock, per-year 
limits are exceeded for a depleted stock, then fishing on dolphin shall 
cease for all vessels for the year. The regulations should be changed 
to state that fishing on that particular dolphin stock should cease.
    Response: The commenter misunderstood this part of the regulations, 
which already focuses on fishing for tuna in association with 
particular dolphin stocks. Section 216.24(c)(9)(viii) of the 
regulations states that if a per-stock, per-year quota is exceeded, 
then fishing for tuna in association with the stock(s) whose limits had 
been exceeded would cease for the remainder of the calendar year.

Dolphin Sets After Reaching DML

    Comment 18: The IDCPA states that regulations must be adopted to 
prevent the occurrence of intentional sets after reaching the DML. 
However, disqualifying the vessel from obtaining a DML for the 
following year is clearly not a preventive measure that will prohibit 
additional takes. A more immediate penalty is needed.
    Response: A vessel that reaches its DML must immediately cease 
fishing on dolphins in accordance with these regulations and the 
international program. If, after due process, it is determined that a 
vessel exceeded its DML, these regulations and the international 
program provide for the disqualification of the vessel from receiving a 
DML for the following year under certain circumstances. Also, any 
vessel that exceeds its assigned DML, if not disqualified, will have 
its DML for the subsequent year reduced by 150 percent of the overage. 
These measures conform to the Agreement on the IDCP and serve as a 
deterrent or preventative measure for vessels to not exceed their DMLs.

Purse Seining by Vessels Without Assigned DMLs

    Comment 19: Section 216.24(d) is invalid because the IDCPA requires 
every vessel to have a DML assigned. Section 216.24(d) is unclear 
regarding whether it applies only to vessels that are not engaging in 
tuna fishing operations or to tuna fishing vessels that do not have a 
DML or to both.
    Response: The heading of Sec.  216.24 makes clear that the section 
deals with

[[Page 55292]]

commercial fishing operations by tuna purse seine vessels in the ETP. 
Section 216.24(d) applies only to vessels without assigned DMLs, i.e. 
only vessels that do not intentionally deploy nets on or encircle 
dolphins. Under Sec.  216.24(a)(2), vessels that do not have DMLs may 
not make intentional sets on dolphins. The IDCPA does not require every 
vessel to have a DML assigned. MMPA section 303(a)(2)(B)(ix) prohibits 
a vessel without an assigned DML from intentionally setting on 
dolphins.

Observers

    Comment 20: While Sec.  216.24(e) of the proposed regulation 
addresses the role of the observer of the vessel, it fails to address 
the inherent problems associated with observer programs or to describe 
what criteria must be met in order to qualify as an observer. If these 
criteria are mentioned elsewhere in the Code of Federal Regulations, 
the section should either be referenced or restated in Sec.  216.24.
    Response: For the tuna purse seine fishery in the ETP, the IATTC 
trains observers so that they are qualified to perform observer duties. 
The IATTC observer program and its training requirements remain in 
effect.

Affirmative Finding Procedures

    Comment 21: In order for a country to receive an affirmative 
finding, nations should be required to supply documentary evidence of 
their fishing fleets' actions on an annual basis, not every 5 years as 
described in the interim final rule.
    Response: The MMPA does not specifically require a yearly 
submission of documentary evidence specifically from harvesting 
nations. NMFS' interpretation of the MMPA is reasonable because it 
enables NMFS to verify compliance while minimizing the burden on other 
nations. It places the burden on NMFS to make or renew an affirmative 
finding annually, if the harvesting nation has provided all of the 
information and authorizations required by Sec.  216.24 (f)(8)(i) and 
(ii). An annual review allows NMFS to verify compliance with the IDCP. 
Through these regulations NMFS is authorized in the annual renewal 
process to seek out documentation from the harvesting nation, DoS and 
IATTC.
    Comment 22: Allowing countries to exceed DMLs for ``extraordinary 
circumstances beyond the control of the nation and the vessel 
captain...'' undermines the IDCPA by allowing fishing nations to exceed 
DMLs without fear of enforcement actions by the U.S. Government.
    Response: NMFS does not have the authority to take enforcement 
actions against foreign nations. However, 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. Section 
216.24(f)(8)(i)(C) further explains that 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 
encourages harvesting nations to comply with the Agreement on the IDCP, 
yet threatens economic sanctions against nations that do not control or 
manage their fleets.

Dolphin-safe Labeling Standards

    Comment 23: These regulations burden U.S. purse seine vessel 
operators who do not intentionally set on dolphin. Under previous 
regulations, tuna could be labeled dolphin-safe, even if an accidental 
dolphin mortality occurred. Under the new regulations, U.S. vessels 
will not be able to sell their tuna to canneries as dolphin-safe if a 
single accidental fatality occurs during the trip.
    Response: Before the IDCPA was enacted, tuna could be labeled 
dolphin-safe even if dolphins were observed killed in a set in which 
they were accidentally captured. The IDCPA, however, changed the 
labeling standard such that no tuna product harvested in the ETP by a 
large purse seine vessel may be labeled dolphin-safe if an observed 
dolphin mortality, or serious injury, occurs during a set, whether or 
not the vessel intentionally deployed its nets on dolphin. (This part 
of the dolphin-safe labeling standard remains constant regardless of 
the ``significant adverse impact'' finding under paragraph (g) of the 
DPCIA.) Therefore, if an accidental dolphin mortality occurs in a set, 
that set is by definition non-dolphin-safe. The determination of 
whether tuna is dolphin-safe is made on a set-by-set basis; only tuna 
caught in a set in which a net was intentionally deployed on a marine 
mammal or in which dolphin mortality or serious injury occurs would be 
considered non-dolphin-safe. The U.S. canned tuna industry is not 
required by the final rule to refuse tuna caught in association with 
dolphins so long as all the requirements of the rule are met. That the 
U.S. canned tuna industry chooses to do so, is a private, corporate 
decision and not a requirement of this final rule.
    Comment 24: Section 216.92(a) seems to preclude a U.S. processor 
from labeling fish as dolphin-safe if the U.S. processor processes the 
fish at some location other than those listed in the paragraph. This 
would preclude a U.S. processor from ever processing such fish at a 
plant in a country that has entered into a Compact of Free Association 
with the United States. Because these states now have limited ``duty 
free'' access to the United States, it is possible that U.S. processors 
may establish plants there in the future. The paragraph should allow 
the fish to enter the United States as dolphin-safe from Compact of 
Free Association locations if it otherwise meets the dolphin-safe 
requirements of the IDCPA and has been processed in a plant that is in 
compliance with the tuna tracking and verification requirements of 
Sec.  216.94 (now found at Sec.  216.93 of this final rule).
    Response: Nothing in the rule precludes tuna processed in a Compact 
of Free Association nation (i.e., the Republic of Palau, Federated 
States of Micronesia or the Republic of the Marshall Islands) from 
being labeled dolphin-safe or from being imported into the United 
States. The requirements for tuna caught in the ETP and imported into 
the United States to carry a dolphin-safe label are described in Sec.  
216.92(b). All Compact of Free Association nations are located outside 
the U.S. Custom's territory and, therefore, tuna processed in those 
nations are subject to the procedures for imported tuna regardless of 
the nation's duty-free status.

Tuna Tracking and Verification Program

    Comment 25: These regulations fail to implement adequate monitoring 
systems for ensuring the separation and tracking of imported dolphin-
safe and non-dolphin-safe tuna.
    Response: The regulations implement adequate monitoring systems for 
ensuring the separation and tracking of imported dolphin-safe and non-
dolphin-safe tuna. All imports of tuna harvested in the ETP by large 
purse seine vessels must be accompanied by a certificate signed by an 
IDCP-member government official attesting to the dolphin-safe status of 
the tuna in that shipment. Shipments of tuna that are not declared to 
be dolphin-safe and that are imported into the United States from a 
nation that has an affirmative finding are spot-checked to ensure that 
no dolphin-safe logo appears on the product. In addition, NMFS tuna 
tracking and verification specialists perform spot-checks of canned 
tuna on grocery shelves. In this final rule, NMFS

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requires processors to provide documentary proof of the origin of that 
tuna. Finally, U.S. canned tuna processors report all purchases of 
imported frozen tuna to NMFS on a regular basis.
    Comment 26: The handling of the Tuna Tracking Forms is confusing 
and cumbersome. NMFS, the cannery, and the country where the tuna is 
offloaded all require the original tuna tracking forms. Furthermore, 
the regulations require that it be submitted in an unreasonably short 
time frame. In Mexico, the dolphin-safe certificate is duplicated and 
notarized, and the certified copies are distributed to various 
entities.
    Response: The final regulations require changes in the handling of 
Tuna Tracking Forms that streamline the process and are consistent with 
changes made to the International Tuna Tracking and Verification 
Program. Between February 3, 2000, and the effective date of this final 
rule, several improvements were made in the U.S. tuna tracking system. 
Changes also improve the process by which canned tuna processors report 
their activities. For example, early in the operation of the tuna 
tracking program it was recognized that requiring a separate report 
every time a canner received tuna for processing was unwieldy and did 
not provide useful information. Report forms and schedules were then 
revised so that systems could be automated and reports would include 
the information needed to assure the dolphin-safe status of canned tuna 
production in the United States. The links between NMFS and U.S. 
Customs were improved to provide faster and more easily usable tuna 
import information. Verification of the dolphin-safe status of tuna 
being sold in the United States was improved by development of a 
program to sample products on grocery store shelves around the country. 
Other changes were made in order to remain consistent with the 
requirements of the international tuna tracking system.
    The AIDCP Permanent Working Group on Tuna Tracking was formed to 
oversee the operation of the international tuna tracking system. As 
time passed, improvements were made in that system, which were 
subsequently incorporated in the U.S. program. Some of the changes 
included improved tuna tracking form handling procedures, the 
elimination of any ``mixed wells'' on tuna purse seine vessels, and 
requirements for safeguarding dolphin-safe status of tuna harvested by 
vessels that fish inside and outside the convention area during one 
trip.
    Comment 27: Observers may not see some seriously injured and killed 
dolphins and falsely report the catch as dolphin-safe.
    Response: The possibility for observers to miscount dolphin 
mortality and serious injury exists in all fishery observer programs 
worldwide. However, IATTC trained observers are well trained, and any 
miscounts that may occur would be negligible.
    Comment 28: Section 216.94(b)(2)(i) (now found at Sec.  216.93 of 
this final rule) should be rewritten to clarify that dolphin-safe and 
non-dolphin-safe tuna are segregated during the unloading of mixed-
wells.
    Response: A study of the need for and frequency of the use of fish 
wells in which dolphin-safe and non-dolphin-safe tuna are both stored 
aboard tuna purse seine vessels revealed that there is virtually no 
need for such ``mixed-wells.'' Therefore, the provisions for the use of 
mixed-wells have been removed from the final rule.
    Comment 29: Tuna caught by methods that kill and seriously injure 
dolphins should not be mixed with dolphin-safe tuna aboard tuna boats.
    Response: See response to Comment 28.

Tracking Cannery Operations

    Comment 30: In order to reduce paperwork and simplify the reporting 
process, receiving reports should be submitted on a monthly basis, 
along with the submissions contained in (3) and (5) of paragraph 
216.94(c)(3) and (5) (now found at Sec.  216.93 of this final rule). 
This would not have any negative impact on NMFS' monitoring role and 
will ensure that all reports are received together on a timely, monthly 
basis.
    Response: Instead of requiring a report within 5 days of delivery 
and a separate report every month, receiving reports are now required 
only on a monthly basis. The NMFS tuna tracking and verification staff, 
in cooperation with the U.S. canned tuna industry, tested various 
reporting methods for completeness and accuracy. Section 216.93 of this 
final rule contains changes and refinements to the reporting procedures 
that provide complete information to NMFS without over-burdening the 
industry contributors of those reports.
    Comment 31: The receiving report requires identifying containers 
(scows) by serial number for tracking; however, some systems of sizing 
tuna come after the unloading, thus possibly causing a perceived loss 
of identity of the original unloaded fish. This would require the 
issuance of two reports, one with the initial scow serial numbers and 
weights, and a second report (same total weight) with sized scow serial 
numbers and weights.
    Response: The requirement that receiving reports be submitted 
monthly, rather than within 5 working days of delivery, should 
alleviate this problem.

Miscellaneous Comments

    Comment 32: By the passage of the IDCPA and the entry into force of 
the Agreement on the IDCP in February 1999, can the United States 
ensure that all U.S. flag vessels act in accordance with the provisions 
of the Agreement on the IDCP at all times and enforce the provisions of 
the MMPA with respect to U.S. vessels operating in the territorial sea 
of another country?
    Response: The U.S. Government has the statutory authority to apply 
the provisions of the Agreement on the IDCP to the operation of U.S. 
vessels wherever they operate within the Agreement Area. The Agreement 
Area is defined as the waters of the Pacific Ocean bounded by the 
following: to the east, the coastline of North, Central and South 
America; to the north, the 40[deg] N parallel; to the west, the 
150[deg] W meridian and to the south, the 40[deg]S parallel. This 
includes the waters under the jurisdiction of the coastal states, 
including their exclusive economic zones and territorial seas.
    The United States has jurisdiction over U.S. flag vessels wherever 
they operate, even in the territorial seas of other countries. 
Specifically, Sec.  303(a), 306, and 307 of the MMPA clearly require 
the Secretary to implement and enforce the provisions of the IDCPA for 
all U.S. vessels anywhere in the Agreement Area.
    Comment 33: The DML cap of 5,000 animals per year is inconsistent 
with the MMPA and its goal of reducing incidental dolphin mortality to 
insignificant levels approaching zero mortality rate.
    Response: Section 302(1) of the MMPA provides that ``the total 
annual dolphin mortality in the purse seine fishery for yellowfin tuna 
in the eastern tropical Pacific Ocean shall not exceed 5,000 animals 
with a commitment and objective to progressively reduce dolphin 
mortality to a level approaching zero through the setting of annual 
limits.'' Further, section 302(1) of the MMPA only establishes an 
annual mortality limit of 5,000 animals; this is a cap rather than a 
goal.
    NMFS is striving to further reduce dolphin mortalities associated 
with the tuna purse seine fishery in the ETP. It is also important to 
note that no U.S. purse seine vessels are currently intentionally 
chasing or deploying purse

[[Page 55294]]

seine nets on dolphins. In addition, annual dolphin mortality in the 
ETP tuna purse seine fishery, including both the domestic and foreign 
fleets, has averaged less than 2,000 dolphins since 2000. An annual 
dolphin mortality limit is one of a suite of tools being used by NMFS 
and Parties to the Agreement on the IDCP to conserve dolphin stocks, as 
well as other components of the ETP ecosystem.
    Comment 34: Replace the current IDCPA and regulations with a 
different system that would end purse seining as a fishing method in 
the ETP and establish other mechanisms to protect dolphins and pursue 
fishing in the ETP.
    Response: These regulations implement the IDCPA as passed by 
Congress in 1997, which allows purse seining in the ETP as a method to 
harvest tuna and provides protection to dolphin stocks.

Changes From the Interim Final Rule

    In this final rule, NMFS is publishing 50 CFR 216.24, 216.46, 
216.90, 216.91, 216.92, and 216.93 in their entirety (including 
provisions that were not changed from the interim final rule) for the 
convenience of readers, to correct cross-referencing errors, and to 
improve clarity.
    The interim final rule contained a generic provision for NMFS to 
consider for potential enforcement action of alleged violations of the 
Agreement on the IDCP and/or these regulations that are identified by 
the International Review Panel (codified in the interim final rule in 
Sec.  216.24(c)(9)(xi)). The provision is maintained in this final rule 
except that it now appears in Sec.  216.24(a)(2)(vi). NMFS changed the 
position of the provision because it was concerned that in its previous 
position at the end of Sec.  216.24(c)(9) the provision might be 
overlooked. The current position of the provision is intuitive; the 
provision appears in a list of other, general prohibitions at the 
beginning of Sec.  216.24. NMFS also amended Sec.  216.24(a)(2)(vi) 
(formerly Sec.  216.24(c)(9)(xi)) to clarify that the International 
Review Panel may identify and recommend cases to NOAA for possible 
enforcement action as is provided in the Agreement on the IDCP. The 
International Review Panel is a panel created under Article XII of the 
Agreement on the IDCP to identify, review and make recommendations on 
potential violations of the Agreement on the IDCP. The former language 
of this section could have been read to imply that the International 
Review Panel would also recommend sanctions or penalties for those 
potential violations, which is not the case.

Changes to the Tracking and Verification Program

    Section 216.93 of the interim final rule has been revised as the 
result of comments received and in order to remain consistent with 
changes made to the Agreement on the IDCP System of Tracking and 
Verification of Tuna. NMFS believes that the changes described enhance 
the effectiveness of the NMFS Tuna Tracking and Verification Program.
    The international tuna tracking and verification system adopted by 
the Parties to the Agreement on the IDCP in June 1999 contained 
conditional provisions under which dolphin-safe and non-dolphin-safe 
tuna could be mixed in the same well aboard large purse seine vessels 
fishing in the ETP. Representatives of some environmental organizations 
expressed concern that any mixing of dolphin-safe and non-dolphin-safe 
tuna would compromise the effectiveness of the Agreement. Nonetheless, 
the Parties instituted the use of two mixed-well exceptions for a trial 
period, during which time the Secretariat of the IATTC would track 
their use. During the trial period, from January until June 2000, only 
five occurrences of a mixed-well exception were noted on over 200 
IATTC-observed trips. Citing a desire to maintain a fully credible 
system and acknowledging the low usage of mixed-well exceptions, the 
Permanent Working Group on Tuna Tracking and Verification recommended 
that all mixed-well exceptions be eliminated from the international 
system for tracking and verification of tuna. The Meeting of the 
Parties to the Agreement on the IDCP approved the recommendation at the 
June 2000 meeting. Therefore, the mixed-well language at Sec.  
216.94(b)(2) was removed from the regulations.
    At the meeting of the Parties to the Agreement on the IDCP held in 
June 2001, in San Salvador, El Salvador, the Parties adopted a 
voluntary IDCP Dolphin-Safe Tuna Certification Program. This program 
establishes a framework for member nations to issue a dolphin-safe 
certificate and to apply the IDCP dolphin-safe logo to tuna harvested 
by their flag vessels and offered for sale in international markets. 
The new program also provides that, upon request by a member nation, 
the Secretariat for the Agreement on the IDCP will evaluate such 
shipments of tuna that are labeled with the IDCP dolphin-safe logo and 
affirm, as appropriate, that they are dolphin-safe as defined by the 
Agreement.
    Under current U.S. law, the definition of ``dolphin-safe'' tuna is 
different from the definition adopted by the Parties to the Agreement 
on the IDCP. Thus, the United States is unable, at present, to adopt 
the voluntary IDCP Dolphin-Safe Tuna Certification Program. However, a 
NMFS dolphin-safe certificate is available.
    Upon request, the Office of the Administrator, Southwest Region, 
will provide written certification that tuna harvested by U.S. purse 
seine vessels greater than 400 st (362.8 mt) carrying capacity is 
dolphin-safe, but only if NMFS' review of the tuna tracking forms 
(TTFs) for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of 
the Agreement on the IDCP and U.S. law. These new procedures are 
included in the final rule at Sec.  216.93(b).
    The Parties to the Agreement on the IDCP have also adopted several 
technical and procedural modifications that have improved the 
international tuna tracking and verification program. These 
modifications include a change in Sec.  216.93(a) where the word 
``observer'' was changed to ``additional''. This change was made 
because observers are not the only ones that can make notes on TTFs; 
engineers or captains may also do so.
    Additional changes were made in Sec.  216.93(c)(5) (formerly 
216.94(b)(6)) to the procedures for handling and disposition of TTFs. 
In Sec.  216.93(c)(5)(ii), (iii) and (iv) of the final rule, NMFS 
specified that the captain of the vessel or the vessel's managing 
office is responsible for assuring delivery of the TTFs to the 
Administrator, Southwest Region, unless the TTF is retrieved by a NMFS 
representative meeting the vessel in port at the time of arrival. 
Sections 216.94(b)(6)(ii) and (iii) of the interim final rule now 
appear in Sec.  216.93(c)(5)(iii) and (ii) in the final rule; the order 
of the two paragraphs has been reversed. Section 216.93(c)(5)(ii) of 
the final rule includes an added provision allowing the captain to 
entrust the observer to deliver the signed TTFs to a local IATTC 
office, provided the captain notifies the Southwest Regional 
Administrator of this decision.
    In Sec.  216.93(c)(5), paragraphs (iii) and (iv) clarify the entity 
responsible for delivering completed TTFs to the Southwest Regional 
Administrator. Paragraph (iii) describes a situation in which a vessel 
lands in a country that is a Party to the Agreement on the IDCP this 
case, a representative of the country has first responsibility for the 
TTFs. Paragraph (iv) describes a situation in which the vessel lands in 
a country that is not a Party to the Agreement. In this

[[Page 55295]]

case, NMFS does not expect that a representative of the country will 
meet the vessel. Therefore, when landing in such a country, the vessel 
captain has responsibility for delivering the TTFs to the Southwest 
Regional Administrator.
    Paragraph (v) was added to Sec.  216.93(c)(5) pursuant to the IDCP 
Rules of Confidentiality to emphasize the confidential status of the 
TTFs as international documents that are the property of the 
Secretariat to the Agreement on the IDCP. Other modifications 
incorporated into the NMFS tuna tracking system in Sec.  216.93 
(formerly Sec.  216.94) include clarification of partial unloading 
procedures.
    NMFS has made certain changes to the tuna tracking procedures that 
will enable NMFS to track and verify the dolphin-safe status of canned 
tuna processed in U.S. canneries while not being overly burdensome to 
the U.S. canning industry. NMFS found that requiring canners to report 
the receipt of every shipment of raw tuna 48 hours in advance was not 
necessary because spot-checks and unscheduled visits by representatives 
of the Administrator, Southwest Region, coupled with monthly reports of 
all cannery activities, were already provided for in regulations.
    NMFS removed the requirement for U.S. purse seine vessels greater 
than 400 st (362.8 mt) harvesting tuna in the ETP to submit an FCO 
under 216.92(a) because this information is already available to NMFS 
through tuna processors.
    NMFS removed the requirement for an invoice to accompany the FCO at 
the time of import (Sec.  216.24(f)(3)(i)). Importers are required to 
keep all documents, including the invoice, that accompany import 
shipments, and to make the documents available to the Secretary or the 
Administrator, Southwest Region, on request. The requirement that an 
invoice accompany FCOs was found to be burdensome to U.S. Customs and 
did not provide any additional information needed for tracking and 
verifying import shipments.

Changes to Vessel Permit Holder, Dolphin Mortality Limits

    NMFS modified the heading of Sec.  216.24(c)(2) to clarify that 
live marine mammals may not be retained. In the interim final rule, 
``live'' was not included in the heading, but was used in the 
regulatory text of Sec.  216.24(c)(2), and continues to be in this 
final rule. Therefore, this modification does not change the meaning of 
paragraph (c)(2); it just provides clarification.
    NMFS added a requirement in Sec.  216.24(c)(7)(i) of this final 
rule that the signature of the permitted operator or the operator's 
representative applying for an experimental fishing operation waiver be 
included in the application. This requirement was added to indicate 
ownership of the experimental fishing operation waiver application, as 
well as ensure the validity of such applications and maintain 
consistency with other applications, such as those for vessel and 
operator permits described in Sec.  216.24(b)(4) and (b)(5), 
respectively.
    NMFS amended Sec.  216.24(c)(9) to identify the policy of NOAA's 
Office of the General Counsel that, in any enforcement action, the 
appropriate sanction to be assessed should be determined by referring 
to a NOAA civil administrative penalty schedule and the discretion of 
the prosecutor, except where a specific penalty is mandated by an 
international agreement. Specific sanctions and fines cannot be 
established by regulation. Accordingly, NMFS deleted Sec.  
216.24(c)(9)(xii) because it created a specific penalty by regulation, 
contrary to NOAA's policy, and added language to Sec.  216.24(c)(9)(v) 
to identify that the sanction of reducing a vessel's DML, which is 
identified in that section, was mandated by an international agreement.
    In addition, NMFS modified Sec.  216.24(c)(9)(x)(A) to clarify the 
point at which vessel and operator permit holders on vessels with 
assigned DMLs must refrain from intentionally setting purse seine nets 
on or encircling dolphins because the DML was reached or exceeded. The 
interim final rule was ambiguous in that it used the term ``when'', 
which could have been interpreted to mean that vessel and operator 
permit holders would be in violation of this rule at the moment their 
DMLs were reached or exceeded. The intent of Sec.  216.24(c)(9)(x)(A) 
was to prohibit vessel and operator permit holders from intentionally 
setting on or encircling dolphins in sets subsequent to that in which 
their DMLs were reached or exceeded. To achieve this clarity, ``when'' 
was changed to ``after a set in which.''

Changes to Market Prohibitions

    Section 216.24(f)(120)(iii) of the interim final rule described the 
dolphin-safe standard. This paragraph was removed from the final rule 
because the provision was redundant. The dolphin-safe standard appears 
in Sec.  216.91 and is already cross referenced in Sec.  
216.24(f)(12)(i).

De-certification Under Pelly

    NMFS added a provision that the Secretary will initiate a Pelly 
certification under section 8(a) of the Fisherman's Protective Act (22 
U.S.C. 1978(a)) against any nation embargoed for 6 months under Sec.  
216.24(f)(6) of this final rule (formerly Sec.  216.24(f)(7)). A new 
provision in Sec.  216.24(f)(6)(iii) provides that after the embargo is 
lifted, the Secretary will terminate the Pelly certification.

Changes to Penalties

    NMFS expanded Sec.  216.24(g) to identify the various options for 
enforcement action available to NOAA to respond to violations of these 
regulations. For example, options for enforcement action may include 
civil monetary fines, permit suspension or revocation, and reductions 
in current or future DMLs. In addition, NMFS added language to inform 
the reader that recommended sanction levels for the various violations 
are listed in NOAA's Civil Administrative Penalty Schedule and that the 
regulations detailing the procedures for the various enforcement 
actions can be found at 15 CFR part 904. This language was added to 
clarify the enforcement process and to allow readers to conduct their 
own research on the processes and penalties.

Changes to Observer Placement Fee

    Small Class 1-5, as well as large Class 6 (in excess of 400 st 
(362.8 mt) carrying capacity), purse seine vessels classified as either 
active or inactive on the register of vessels authorized to purse seine 
for tunas in the ETP are now required to pay observer fees, or vessel 
assessments, as a result of the Resolution on Vessel Assessments and 
Financing, adopted at the Meeting of the Parties to the Agreement on 
the IDCP in June 2003. Therefore, NMFS modified Sec.  216.24(b)(6)(iii) 
of the interim final rule to be consistent with the June 2003 
Resolution. As a result, the due date for payment of the observer 
placement fee, previously September 1, was changed to December 1 in the 
final rule. The final rule also provides for a late payment surcharge 
of 10 percent, consistent with that specified in the June 2003 
Resolution. NMFS added language to Sec.  216.24(b)(6)(iii) to clarify 
that observer fees may be used to maintain the IATTC observer program, 
generally, rather than solely for placement of observers on individual 
vessels.

Corrections, Updates, and Technical Changes

    Section 216.24(c)(9)(ii) of the interim final rule incorrectly 
described the second semester DML calculation by the

[[Page 55296]]

IDCP as not to exceed ``one-third'' of an unadjusted full-year DML. 
Annex IV of the Agreement on the IDCP clearly states that ``one-half'' 
of an unadjusted full-year DML shall constitute the amount of a second 
semester DML. Therefore, NMFS has corrected Sec.  216.24(c)(9)(ii) to 
state ``one-half'' instead of ``one-third'' in this final rule.
    The Harmonized Tariff Schedule (HTS) of the United States is 
revised and updated periodically. NMFS revised the HTS codes listed in 
Sec.  216.24(f)(2) to reflect those updates and changes.
    The HTS codes for fresh/chilled products were included in the 
interim final rule in error. Fresh/chilled products under these HTS 
codes do not require a Fisheries Certificate of Origin. Fresh and 
chilled tuna and tuna products are always dolphin-safe because they are 
harvested only by methods that do not involve the presence of dolphins. 
Therefore, the HTS codes for fresh/chilled products have been removed 
in this final rule.
    In addition, NMFS revised Sec.  216.24(f)(2)(i) to remedy a 
drafting error that appeared to require nations that are mere conduits 
of tuna harvested in the ETP by purse seine vessels of other nations to 
receive an affirmative finding to export that yellowfin tuna to the 
U.S. Language that appeared in the interim final rule indicated that 
both the harvesting nation and exporting nation were required to have 
an affirmative finding to export yellowfin tuna or yellowfin tuna 
products harvested by purse seine vessels in the ETP to the United 
States. A harvesting nation, as defined in 50 CFR 216.3, is subject to 
a primary nation embargo unless it obtains an affirmative finding. 
Under 50 CFR 216.24(f)(7) (now Sec.  216.24(f)(6)), it is clear that an 
exporting nation, if it is not also a harvesting nation, is not 
required to obtain an affirmative finding to export yellowfin tuna to 
the United States. However, exporting nations are subject to 
intermediary nation embargoes if they currently, or in the previous 6 
months, imported, as defined in 50 CFR 216.3, any yellowfin tuna or 
yellowfin tuna products subject to a direct ban under section 
101(a)(2)(B) of the MMPA. The scope of yellowfin tuna embargoes and 
procedures for obtaining an affirmative finding are described in Sec.  
216.24(f)(6) and (f)(8), respectively, of this final rule.
    In Sec.  216.24(f)(8)(i) of the final rule, NMFS clarified that 
affirmative findings are based on documentary evidence provided by the 
governments of harvesting nations, or by the IDCP and IATTC. Language 
that appeared in the interim final rule indicated that documentary 
evidence would be provided by harvesting nations or exporting nations. 
However, nations that serve as mere conduits for tuna harvested by 
purse seine vessels of other nations in the ETP are not required to 
obtain affirmative findings. This change is consistent with Sec.  
216.24(f)(2)(i) and (f)(6) of this final rule.
    In Sec.  216.24(f)(4) (formerly Sec.  216.24(f)(5)), the words 
``described by checking the appropriate statement on the form and 
attaching additional certifications if required'' were added to further 
describe the contents of an FCO. The language added to paragraph 
(f)(4)(xii) of this section, a technical change, requires that the 
dolphin-safe condition of the shipment must be indicated on the 
Certificate by checking a box, and that additional certifications may 
be required depending on which box is checked. Although descriptive 
language has been added to the final rule, the FCO and boxes to be 
checked remain unchanged.
    In the first sentence of Sec.  216.24(f)(9) (formerly codified at 
Sec.  216.24(f)(9)(vi)), NMFS added the words ``yellowfin'', ``ETP'', 
and ``purse seine'' to clarify the scope of the intermediary nation 
embargo within the explanation of procedures for embargoing certain 
tuna from ``intermediary nations.'' This clarification is consistent 
with the MMPA. In the interim final rule the words ``yellowfin'', 
``ETP'', and ``purse seine'' were unintentionally left out of this 
explanation, which appeared to prevent an intermediary nation from 
exporting to the United States any tuna or tuna products classified 
under an HTS number listed in Sec.  216.24(f)(2)(i). That error was 
corrected in this final rule. Sec.  216.24(f)(9) now correctly 
describes the scope of the embargo, i.e., intermediary nations may not 
export to the United States only yellowfin tuna and yellowfin tuna 
products harvested by purse seine in the ETP classified under an HTS 
number listed in Sec.  216.24(f)(2)(i). This conforms with Sec.  
216.24(f)(6)(i)(B) (formerly Sec.  216.24(f)(7)(i)(B)), which correctly 
describes the scope of an intermediary nation embargo. The description 
of intermediary nation embargoes in Sec.  216.24(f)(6)(i)(B) included 
the words ``yellowfin'', ``ETP'', and ``purse seine'' in the proposed 
and interim final rules; it was always correct.
    NMFS modified Sec.  216.93(d)(2)(i) (formerly Sec.  
216.94(c)(5)(i)) to require processors to include the dolphin-safe 
status of the tuna in their monthly cannery receipt reports (the 
monthly reports were required in the interim final rule). This 
requirement was inadvertently deleted from the interim final rule.
    NMFS reduced the length of time that records must be maintained by 
exporters, trans-shippers, importers, or processors under Sec.  
216.93(f)(1) (formerly Sec.  216.94(e)) in this rule from 3 to 2 years 
to be consistent with the length of time required to maintain records 
throughout this final rule.
    NMFS has removed Sec.  216.93 ``Submission of documentation,'' as 
the requirements for the submission of documentation were repeated 
elsewhere in the final rule. The requirements for the submission of 
documents concerning the activities of U.S. flag purse seine vessels 
greater than 400 st (362.8 mt) carrying capacity fishing in the ETP are 
contained in newly designated Sec.  216.93 ``Tracking and verification 
program.'' Requirements for the submission of import documents referred 
to in Sec.  216.91 and 216.92 are contained in Sec.  216.24(f)(3).

Classification

Executive Order 12866

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

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that it would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for the certification was published in the proposed 
rule. Specifically, the expected impacts to 15 to 17 small (less than 
362.8 metric tons carrying capacity) purse seine vessels that 
participate on a seasonal basis in the fishery, domestic and foreign 
tuna processors, and tuna wholesalers and brokers were discussed in the 
proposed rule. Possible compliance costs, paperwork burdens, and other 
restrictions on these small business entities were expected to be 
minimal or nonexistent at the time the proposed rule was published. 
Experience since that time indicate that our expectations were correct, 
as there has not been a significant economic impact on a substantial 
number of small entities. In fact, any impacts to small purse seine 
vessels are expected to have decreased, as the number of small purse 
seine vessels participating in the ETP fishery has decreased from 
approximately 16 in 1999, the year in which this rule was proposed, to 
approximately 6 in 2004.

[[Page 55297]]

 The per vessel impact is expected to be equal to the impact 
anticipated when this rule was proposed. Further, no comments have been 
received regarding the 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 OMB control 
number.
    This final rule contains collection of information requirements 
subject to the PRA. 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 by OMB under 
control number 0648-0335, the public reporting burden for this 
collection is estimated to average 20 minutes per submission.
    This final rule also contains a collection-of-information 
requirement that was discussed at the proposed and interim final rule 
stages for this rule and is being repeated here for the convenience of 
readers and to improve clarity. This revised collection-of-information 
requirement has been approved by OMB under 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; 10 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 tuna tracking form; 10 minutes for a 
cannery to provide the monthly processor's storage removal report; 1 
hour for a cannery to provide the monthly cannery receipt report; 30 
minutes for an exporter, trans-shipper, 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 this burden estimate, or any other aspect 
of this data collection, including suggestions for reducing the burden 
to NMFS (see ADDRESSES) and OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (Attention: NOAA Desk Officer).

National Environmental Policy Act

    NMFS prepared an environmental assessment (EA) for the interim 
final rule, and the Administrator for Fisheries concluded that there 
will be no significant impact on the human environment as a result of 
this final rule. A copy of the EA is available at: http://www.nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/IDCPA.html

Endangered Species Act

    NMFS prepared a Biological Opinion for the interim final rule, 
concluding that fishing activities conducted under the 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. 
NMFS is unaware of any new information that would indicate the effects 
of the action may affect listed species in a manner or to an extent not 
previously considered, nor does the final rule modify the fishery in a 
manner that causes an effect to listed species not previously 
considered in the Opinion. Therefore, NMFS has determined that the 
conclusions and incidental take statement of the Biological Opinion 
remain valid and reinitiation of consultation is not required.

List of Subjects in 50 CFR Part 216

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

    Dated: August 31, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 216 is amended as 
follows:

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

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Section 216.24 is revised 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 U.S. 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 U.S. 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 U.S. purse seine fishing 
vessel of greater than 400 st (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 any 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 there is not 
a DML assigned to that vessel.
    (v) It is unlawful for any 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 with an assigned 
DML after a set in which the DML assigned to that vessel has been 
reached or exceeded.

[[Page 55298]]

    (vi) Alleged violations of the Agreement on the IDCP and/or these 
regulations identified by the International Review Panel will be 
considered for potential enforcement action by NMFS.
    (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 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 
U.S. 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 paragraph (b) 
of this section. This permit is not transferable and must be renewed 
annually. If a vessel permit holder surrenders his/her permit to the 
Administrator, Southwest Region, the permit will not be returned and a 
new permit will not be issued before the end of the calendar year. 
Vessel permits will be valid through December 31 of each year.
    (2) Operator permit. The person in charge of and actually 
controlling fishing operations (hereinafter referred to as the 
operator) on a U.S. 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)(5) 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, U.S. Coast Guard officers, or 
designated agents of NMFS or the Inter-American Tropical Tuna 
Commission (IATTC) (including observers). A vessel owner or operator 
who is at sea on a fishing trip when his or her permit expires and to 
whom a permit for the next year has been issued, may take marine 
mammals under the terms of the new permit without having to display it 
on board the vessel until the vessel returns to port.
    (4) Application for vessel permit. The owner or managing owner of a 
purse seine vessel may apply for a permit from the Administrator, 
Southwest Region, allowing at least 45 days for processing. An 
application must contain:
    (i) The name, official number, tonnage, carrying capacity in short 
or metric tons, maximum speed in knots, processing equipment, and type 
and quantity of gear, including an inventory of equipment required 
under paragraph (c)(3) 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 and signature of the applicant, whether he/she is the 
owner or the managing owner, his/her address, telephone and fax 
numbers, and, if applicable, the name, address, telephone and fax 
numbers of the agent or organization acting on behalf of the vessel.
    (5) Application for operator permit. An applicant for an operator 
permit must provide the following information to the Administrator, 
Southwest Region, allowing at least 45 days for processing:
    (i) The name, address, telephone and fax numbers of the applicant;
    (ii) The type and identification number(s) of any Federal, state, 
and local fishing licenses held by the applicant;
    (iii) The name of the vessel(s) on which the applicant anticipates 
serving as an operator;
    (iv) The date, location, and provider of training required under 
paragraph (c)(5) of this section for the operator permit; and
    (v) The applicant's signature or the signature of the applicant's 
representative.
    (6) Fees.--(i) Vessel permit application fees. An application for a 
permit under paragraph (b)(1) of this section will include a fee for 
each vessel. The Assistant Administrator may change the amount of this 
fee required at any time if a different fee is determined in accordance 
with the NOAA Finance Handbook and specified by the Administrator, 
Southwest Region, on the application form.
    (ii) Operator permit fee. There is no fee for the operator permit. 
The Assistant Administrator may require a fee at any time if a 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 owner or managing owner 
must submit the fee for the placement of observers, and maintenance of 
the observer program, as established by the IATTC or other approved 
observer program, to the Administrator, Southwest Region by December 1 
of the year prior to the year in which the vessel will be operated in 
the ETP. Payments received after December 1 will be subject to a 10-
percent surcharge. The Administrator, Southwest Region, will forward 
all observer placement fees to the IATTC or to the applicable 
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 observer program approved 
by the Administrator, Southwest Region.

[[Page 55299]]

    (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 trip to 
allow for observer placement on every trip.
    (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 fishing 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 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 Dolphin Mortality Limits (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)(9) 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 live marine mammals. Except as otherwise 
authorized by a specific permit, live 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 may 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 
centimeters (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, if present, 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 
if present, 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-shaped 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-shaped 
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) Facemask and snorkel, or viewbox. At least two facemasks and 
snorkels or viewboxes must be carried.
    (viii) Lights. The vessel must be equipped with lights capable of 
producing a minimum of 140,000 lumens of output for use in darkness to 
ensure sufficient light to observe that procedures for dolphin release 
are carried out and to monitor incidental dolphin mortality.
    (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)(3) 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) Failure to pass inspection. 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

[[Page 55300]]

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 fishing 
pursuant to paragraph (c) of this section 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 
crewmember must be deployed during backdown to aid in the release of 
dolphins. Thereafter, other release procedures required will be 
continued so that all live dolphins are released prior to the 
initiation of the sack-up procedure.
    (ii) Prohibited use of sharp or pointed instrument. The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (iii) Sundown sets prohibited. On every set encircling dolphin, the 
backdown procedure must be completed no later than one-half hour after 
sundown, except as provided here. For the purpose of this section, 
sundown is defined as the time at which the upper edge of the sun 
disappears below the horizon or, if the view of the sun is obscured, 
the local time of sunset calculated from tables developed by the U.S. 
Naval Observatory or other authoritative source approved by the 
Administrator, Southwest Region. A sundown set is a set in which the 
backdown procedure has not been completed and rolling the net to sack-
up has not begun within one-half hour after sundown. Should a set 
extend beyond one-half hour after sundown, the operator must use the 
required marine mammal release procedures including the use of the high 
intensity lighting system. In the event a sundown set occurs where the 
seine skiff was let go 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 for an experimental fishing 
operation waiver by submitting the following information to the 
Administrator, Southwest Region, no less than 90 days before the date 
the proposed operation is intended to begin:
    (A) The name(s) of the vessel(s) and the vessel permit holder(s) to 
participate;
    (B) A statement of the specific vessel gear and equipment or 
procedural requirement to be exempted and why such an exemption is 
necessary to conduct the experiment;
    (C) A description of how the proposed modification to the gear and 
equipment or procedures is expected to reduce incidental mortality or 
serious injury of marine mammals;
    (D) A description of the applicability of this modification to 
other purse seine vessels;
    (E) The planned design, time, duration, and general area of the 
experimental operation;
    (F) The name(s) of the permitted operator(s) of the vessel(s) 
during the experiment;
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research; and
    (H) Signature of the permitted operator or of the operator's 
representative.
    (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 submitted in the application identified in paragraph 
(c)(7)(i) of this section and the comments received, will either issue 
a waiver to conduct the experiment that 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, and 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 U.S. purse seine fishing vessel(s) of carrying 
capacity greater than 400 st (362.8 mt) that the owner intends to use 
to intentionally deploy purse seine fishing nets in the ETP to encircle 
dolphins in an effort to capture tuna during the following year. NMFS 
will forward the list of purse seine vessels to the Director of the 
IATTC on or before October 1, or as otherwise required by the IDCP, for 
assignment of a DML for the following year under the provisions of 
Annex IV of the Agreement on the IDCP.

[[Page 55301]]

    (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 
U.S. 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-half of an unadjusted full-year DML as 
calculated by the IDCP.
    (iii)(A) The Administrator, Southwest Region, will notify vessel 
owners of the DML assigned for each vessel for the following year, or 
the second half of the year, as applicable.
    (B) The Administrator, Southwest Region, may adjust the DMLs in 
accordance with Annex IV of the Agreement on the IDCP. All adjustments 
of full-year DMLs will be made before January 1, and the Administrator, 
Southwest Region, will notify the Director of the IATTC of any 
adjustments prior to a vessel departing on a trip using its adjusted 
DML. The notification will be no later than February 1 in the case of 
adjustments to full-year DMLs, and no later than May 1 in the case of 
adjustments to DMLs for the second half of the year.
    (C) In accordance with 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 that vessel 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. 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)(9)(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, as mandated by the Agreement on the IDCP.
    (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 Secretariat 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 Agreement on 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 for the remainder of the calendar 
year:
    (A) after 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) after a set in which the vessel's DML, as adjusted, has been 
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.
    (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

[[Page 55302]]

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, or aborting the set at 
the earliest effective opportunity; and the use of one or more rafts 
and facemasks or viewboxes to aid in the rescue of dolphins is 
recommended.
    (e) Observers--(1) The holder of a vessel permit must allow an 
observer duly authorized by the Administrator, Southwest Region, to 
accompany the vessel on all fishing trips in the ETP for the purpose of 
conducting research and observing operations, including collecting 
information that may be used in civil or criminal penalty proceedings, 
forfeiture actions, or permit sanctions. A vessel that fails to carry 
an observer in 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 necessary 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 that has the purpose or effect of unreasonably interfering with 
the observer's work performance, or that 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 paragraph (f)(6) 
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 commerce of the nation. For other purposes, ``import'' 
is defined in Sec.  216.3.
    (2) Imports requiring a Fisheries Certificate of Origin. Shipments 
of tuna, tuna products, and certain other fish products identified by 
the U.S. Harmonized Tariff Schedule (HTS) numbers listed in paragraphs 
(f)(2)(i), (f)(2)(ii) and (f)(2)(iii) of this section may not be 
imported into the United States unless a properly completed Fisheries 
Certificate of Origin (FCO), NOAA Form 370, is filed with the U.S. 
Customs Service at the time of importation.
    (i) HTS numbers requiring a Fisheries Certificate of Origin, 
subject to yellowfin tuna embargo. The following HTS numbers identify 
yellowfin tuna or yellowfin tuna products (other than fresh tuna) known 
to be imported into the United States. All shipments imported into the 
United States under these HTS numbers must be accompanied by an FCO. 
The scope of yellowfin tuna embargoes and procedures for attaining an 
affirmative finding are described under paragraphs (f)(6) and (f)(8) of 
this section, respectively.

(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) Airtight Containers: (products containing            .......................................................
 Yellowfin)............................................
1604.14.1010...........................................   Tuna, non-specific, in oil, in foil or other flexible
                                                           airtight containers weighing with their contents not
                                                                                          more than 6.8 kg each
1604.14.1090...........................................     Tuna, non-specific, in oil, in airtight containers,
                                                                                                          other

[[Page 55303]]

 
1604.14.2291...........................................  Tuna, other than albacore, not in oil, in foil or other
                                                               flexible airtight containers weighing with their
                                                                contents not more than 6.8 kg each, under quota
1604.14.2299...........................................      Tuna, other than albacore, not in oil, in airtight
                                                                                        containers, under quota
1604.14.3091...........................................  Tuna, other than albacore, not in oil, in foil or other
                                                               flexible airtight containers weighing with their
                                                                 contents not more than 6.8 kg each, over quota
1604.14.3099...........................................      Tuna, other than albacore, not in oil, in airtight
                                                                                         containers, over quota
(C) Loins: (Yellowfin).................................  .......................................................
1604.14.4000...........................................  Tuna, not in airtight containers, not in oil, weighing
                                                                                with their contents over 6.8 kg
1604.14.5000...........................................                 Tuna, not in airtight containers, other
(D) Other: (products containing Yellowfin).............  .......................................................
0304.20.2066...........................................   Other fish, fillets, skinned, in blocks weighing over
                                                                                                 4.5 kg, frozen
0304.20.6096...........................................                             Other fish, fillets, frozen
1604.20.2500...........................................    Balls and cakes, not in oil, in airtight containers,
                                                                                                          other
1604.20.3000...........................................                                  Balls and cakes, other
----------------------------------------------------------------------------------------------------------------

    (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 yellowfin 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 an FCO.

(A) Frozen:............................................  .......................................................
0303.41.0000...........................................                    Albacore or longfinned tunas, frozen
0303.43.0000...........................................                                        Skipjack, frozen
0303.44.0000...........................................                                          Bigeye, frozen
0303.45.0000...........................................                                         Bluefin, frozen
0303.46.0000...........................................                                Bluefin Southern, frozen
0303.49.0100...........................................                                      Other tuna, frozen
(B) Airtight Containers: (Other than Yellowfin)........  .......................................................
1604.14.1010...........................................   Tuna, non-specific, in oil, in foil or other flexible
                                                           airtight containers weighing with their contents not
                                                                                          more than 6.8 kg each
1604.14.1090...........................................     Tuna, non-specific, in oil, in airtight containers,
                                                                                                          other
1604.14.2251...........................................   Tuna, albacore, not in oil, in foil or other flexible
                                                           airtight containers weighing with their contents not
                                                                             more than 6.8 kg each, under quota
1604.14.2259...........................................     Tuna, albacore, not in oil, in airtight containers,
                                                                                             other, under quota
1604.14.2291...........................................  Tuna, other than albacore, not in oil, in foil or other
                                                               flexible airtight containers weighing with their
                                                                contents not more than 6.8 kg each, under quota
1604.14.2299...........................................      Tuna, other than albacore, not in oil, in airtight
                                                                                 containers, other, under quota
1604.14.3051...........................................   Tuna, albacore, not in oil, in foil or other flexible
                                                           airtight containers weighing with their contents not
                                                                              more than 6.8 kg each, over quota
1604.14.3059...........................................     Tuna, albacore, not in oil, in airtight containers,
                                                                                              other, over quota
1604.14.3091...........................................  Tuna, other than albacore, not in oil, in foil or other
                                                               flexible airtight containers weighing with their
                                                                 contents not more than 6.8 kg each, over quota
1604.14.3099...........................................      Tuna, other than albacore, not in oil, in airtight
                                                                                  containers, other, over quota
(C) Loins: (Other than Yellowfin)......................  .......................................................
1604.14.4000...........................................         Tuna, not in airtight containers, in bulk or in
                                                         immediate containers weighing with their contents over
                                                                                                 6.8 kg, in oil
1604.14.5000...........................................                 Tuna, not in airtight containers, other
(D) Other: (only if the product contains tuna).........  .......................................................
0304.20.2066...........................................   Other fish, fillets, skinned, in blocks weighing over
                                                                                                 4.5 kg, frozen
0304.20.6096...........................................                             Other fish, fillets, frozen
1604.20.2500...........................................    Balls and cakes, not in oil, in airtight containers,
                                                                                                          other
1604.20.3000...........................................                                  Balls and cakes, other
----------------------------------------------------------------------------------------------------------------

    (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, in 
addition to those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of 
this section, known to have been harvested using a large-scale driftnet

[[Page 55304]]

and imported into the United States. Shipments exported from a large-
scale driftnet nation, as identified under paragraph (f)(7) of this 
section, 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)(4)(xiii) of this section.

(A) Frozen:............................................
0303.19.0012...........................................                                 Salmon, chinook, frozen
0303.19.0022...........................................                                    Salmon, chum, frozen
0303.19.0032...........................................                                    Salmon, pink, frozen
0303.19.0052...........................................                                    Salmon, coho, frozen
0303.19.0062...........................................                   Salmon, Pacific, non-specific, frozen
0303.21.0000...........................................                                           Trout, frozen
0303.22.0000...........................................                     Salmon, Atlantic and Danube, frozen
0303.29.0000...........................................                               Salmonidae, other, frozen
0303.75.0010...........................................                                         Dogfish, frozen
0303.75.0090...........................................                                    Other sharks, frozen
0303.79.2041...........................................                                Swordfish steaks, frozen
0303.79.2049...........................................                                Swordfish, other, frozen
0303.79.4097...........................................                                     Fish, other, frozen
0304.20.2066...........................................    Fish, fillet, skinned, in blocks, frozen over 4.5 kg
0304.20.6008...........................................                       Salmonidae, salmon fillet, frozen
0304.20.6092...........................................                               Swordfish fillets, frozen
0304.20.6096...........................................                             Fish, fillet, other, 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
1605.90.6050...........................................                       Squid, loligo, prepared/preserved
1605.90.6055...........................................                        Squid, other, prepared/preserved
(C) Other:.............................................  .......................................................
0305.30.6080...........................................                 Fish, other, fillet, dried/salted/brine
0305.49.4040...........................................                                     Fish, other, smoked
0305.59.2000...........................................                                       Shark fins, dried
0305.59.4000...........................................                                      Fish, other, dried
0305.69.4000...........................................                     Salmon, other, salted (or in brine)
0305.69.5000...........................................         Fish, other, salted (or in brine), in immediate
                                                                                    containers, not over 6.8 kg
0305.69.6000...........................................                       Fish, other, salted (or in brine)
0307.49.0050...........................................                 Squid, other, frozen/dried/salted/brine
0307.49.0060...........................................   Squid, other, & cuttle fish frozen/dried/salted/brine
----------------------------------------------------------------------------------------------------------------

    (3) Disposition of Fisheries Certificates of Origin. The FCO 
described in paragraph (f)(4) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.nmfs.noaa.gov/noaa370.htm.
    (i) A properly completed FCO and its attached certificates, if 
applicable, must accompany the required U.S. Customs entry documents 
that are filed at the time of import.
    (ii) FCOs that accompany imported shipments of tuna destined for 
further processing in the United States must be endorsed at each change 
in ownership and submitted to the Administrator, Southwest Region, by 
the last endorser when all required endorsements are completed.
    (iii) Importers and exporters are required to retain their records, 
including FCOs, import or export documents, invoices, and bills of 
lading for 2 years, and such records must be made available within 30 
days of a request by the Secretary or the Administrator, Southwest 
Region.
    (4) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) 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, eastern Atlantic Ocean, western 
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, described by checking 
the

[[Page 55305]]

appropriate statement on the form and attaching additional 
certifications if required;
    (xiii) For shipments harvested by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (f)(7) of this section, the High Seas Driftnet Certification 
contained on the FCO must be 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
    (xiv) 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 documentation 
accurately describe the shipment of fish they accompany.
    (5) 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 (Sec.  216.90 et seq.).
    (6) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin 
tuna or products of yellowfin tuna 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 jurisdiction over 
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)(8) 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) 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 fish or fish products 
identified by an HTS number listed in paragraph (f)(2) of this section 
may not be imported into the United States if it is harvested by a 
large-scale driftnet, or if it is 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 a government official 
of the large-scale driftnet nation completes, signs and dates the High 
Seas Driftnet section of the FCO certifying that the fish or fish 
products were harvested by a method other than large-scale driftnet.
    (iii) Pelly certification. After 6 months of an embargo being in 
place against a nation under this section, the Secretary will certify 
that nation under section 8(a) of the Fishermen's Protective Act (22 
U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will 
terminate the certification under Section 8(d) of that Act (22 U.S.C. 
1978(d)).
    (iv) Coordination. The Assistant Administrator will promptly advise 
the Department of State and the Department of Homeland Security of 
embargo decisions, actions, and finding determinations.
    (7) 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.
    (8) 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 harvesting nation 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 
must be submitted by the harvesting nation for the first affirmative 
finding application. 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 yellowfin tuna and yellowfin tuna 
products that were harvested by vessels of the nation after March 3, 
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) In any 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

[[Page 55306]]

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.
    (iii) Documentary Evidence and Compliance with the IDCP.--(A) 
Documentary Evidence. The Assistant Administrator will make an 
affirmative finding under paragraph (f)(8)(i) of this section only if 
the government of the harvesting nation provides directly to the 
Assistant Administrator, or authorizes the IATTC to release to the 
Assistant Administrator, complete, accurate, and timely information 
that enables the Assistant Administrator to determine whether the 
harvesting nation is meeting the obligations of the IDCP, and whether 
ETP-harvested tuna imported from such nation comports with the tracking 
and verification regulations of subpart H of this part.
    (B) Revocation. After considering the information provided under 
paragraph (f)(8)(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 that 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.
    (iv) 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)(8)(i) and (f)(8)(ii) of 
this section, allowing at least 60 days from the submission of complete 
information to NMFS for processing.
    (v) The Assistant Administrator will make or renew an affirmative 
finding for the period from April 1 through March 31 of the following 
year, or portion thereof, if the harvesting nation has provided all the 
information and authorizations required by paragraphs (f)(8)(i) and 
(f)(8)(ii) of this section, and has met the requirements of paragraphs 
(f)(8)(i) and (f)(8)(ii) of this section.
    (vi) Reconsideration of finding. The Assistant Administrator may 
reconsider a finding upon a request from, and the submission of 
additional information by, the harvesting nation, if the information 
indicates that the nation has met the requirements under paragraphs 
(f)(8)(i) and (f)(8)(ii) of this section.
    (9) Intermediary nation. Except as authorized under this paragraph, 
no yellowfin tuna or yellowfin tuna products harvested by purse seine 
in the ETP 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.
    (i) 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.
    (ii) Shipments of yellowfin tuna that pass through any nation (e.g. 
on a 'through Bill of Lading') and are not entered for consumption in 
that nation are not considered to be imports to that nation and thus, 
would not cause that nation to be considered an intermediary nation 
under the MMPA.
    (iii) 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, the import 
restrictions of this paragraph shall apply.
    (iv) Changing the status of intermediary nation determinations. 
Imports from an intermediary nation of yellowfin tuna and yellowfin 
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 a notice of 
such determination 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.
    (v) 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.
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(2) of this section, the Port Director of Customs shall refuse to 
release the fish for entry into the United States.
    (11) Disposition of fish refused entry into the United States. Fish 
that is denied entry under paragraph (f)(2) of this section and that is 
not exported under Customs supervision within 90 days shall be disposed 
of under Customs laws and regulations at the importer's expense. 
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 of this part; 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 an applicant nation to become a member of the IATTC and the nation 
has an affirmative finding.
    (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. Penalties for violating these regulations may include, but 
are not limited to, civil monetary fines, permit suspension or 
revocation, and reductions in current and future DMLs. Recommended 
sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil 
Administrative Penalty Schedule. Procedures for the imposition of 
penalties under the MMPA are found at 15 CFR part 904.

0
3. Section 216.46 is republished to read as follows:

[[Page 55307]]

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 that 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 other than the United States that is 
participating in, and is in compliance with, the IDCP.

0
4. In subpart H, Sec.  216.93 is removed, Sec. Sec.  216.94 through 
216.96 are redesignated as Sec. Sec.  216.93 through 216.95, and 
Sec. Sec.  216.90 through 216.92 and the newly redesignated Sec.  
216.93 are revised to read as follows:


Sec.  216.90  Purposes.

    This subpart governs the requirements for using the official mark 
described in Sec.  216.95 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.


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 
Sec.  216.92 and 216.93 are met;
    (ii) No dolphins were killed or seriously injured during the sets 
in which the tuna were caught; and
    (iii) None of the tuna were caught on a trip using a purse seine 
net intentionally deployed on or to encircle dolphins, provided that 
this paragraph (a)(1)(iii) will not apply if the Assistant 
Administrator publishes a notification in the Federal Register 
announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional 
deployment of purse seine nets on or encirclement of dolphins is not 
having a significant adverse impact on any depleted stock.
    (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 trip 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 trip 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.  216.95, 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 only if the following 
requirements are met:
    (1) Tuna Tracking Forms containing a complete record of all the 
fishing activities on the trip, certified by the vessel Captain and the 
observer, are submitted to the Administrator, Southwest Region, at the 
end of the fishing trip during which the tuna was harvested;
    (2) The tuna is delivered for processing to 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.  216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec.  216.91.
    (b) Imported tuna.
    (1) Yellowfin tuna or tuna products harvested in the ETP by vessels 
of greater than 400 st (362.8 mt) carrying capacity and presented for 
import into the United States may be labeled dolphin-safe only if the 
yellowfin 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 
under Sec.  216.24(f)(8).
    (2) Tuna or tuna products, other than yellowfin tuna, 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 may 
be labeled dolphin-safe only if:
    (i) 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 is a Party to the Agreement on the 
IDCP or has applied to become a Party and is adhering to all the 
requirements of the Agreement on the IDCP Tuna Tracking and 
Verification Plan;
    (ii) The tuna or tuna products are accompanied by a properly 
completed FCO; and
    (iii) The tuna or tuna products are accompanied by valid 
documentation signed by a representative of the appropriate IDCP member 
nation, containing the harvesting vessel names and tuna tracking form 
numbers represented in the shipment, and certifying that:

[[Page 55308]]

    (A) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and
    (B) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards of Sec.  216.91.


Sec.  216.93  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. Sec.  
216.91 and 216.92. The tracking program includes procedures and reports 
for use when importing tuna into the United States and during U.S. 
purse seine fishing, processing, and marketing in the United States 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 Agreement on 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 a unique 
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 the date, 
well number, weights by species composition, estimated tons loaded, and 
additional notes, if any. The observer and the vessel engineer initial 
the entry as soon as possible following 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 forms is accurate. 
TTFs are confidential official documents of the IDCP, consistent with 
Article XVIII of the Agreement on the IDCP, and the Agreement on the 
IDCP Rules of Confidentiality.
    (b) Dolphin-Safe Certification. Upon request, the Office of the 
Administrator, Southwest Region, will provide written certification 
that tuna harvested by U.S. purse seine vessels greater than 400 st 
(362.8 mt) carrying capacity is dolphin-safe, but only if NMFS' review 
of the TTFs for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of 
the Agreement on the IDCP and U.S. law.
    (c) Tracking fishing operations. (1) During ETP fishing trips by 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 
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. 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 is considered non-dolphin-safe tuna. 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) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel greater than 400 st (362.8 mt) 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.
    (3) 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.
    (4) 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.
    (5)(i) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) 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 
seine vessel to receive the TTFs from the vessel observer and to 
monitor the handling of dolphin-safe and non-dolphin-safe tuna.
    (ii) If a NMFS representative does not meet the vessel in port at 
the time of arrival, the captain of the vessel or the vessel's managing 
office must assure delivery of the TTFs to the Administrator, Southwest 
Region, from that location within 5 working days of the end of the 
trip. Alternatively, if the captain approves and notifies the 
Administrator, Southwest Region, the captain may entrust the observer 
to deliver the signed TTFs to the local office of the IATTC.
    (iii) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) carrying capacity directly to a 
processing facility located outside the jurisdiction of the United 
States in a country that is a Party to the Agreement on 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. If a representative of the national authority 
meets the vessel in port, that representative will receive the original 
TTFs and assume the responsibility for providing copies of the TTFs to 
the Administrator, Southwest Region. If a representative of the 
national authority does not meet the vessel, the fishing vessel captain 
or the vessel's managing office must assure delivery of the completed 
TTFs in accordance with paragraphs (ii) and (v) of this section.
    (iv) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) carrying capacity in a country 
that is not a Party to the Agreement on the IDCP, the tuna becomes the 
tracking and verification responsibility of the national authority of 
the processing facility when it is unloaded from the fishing vessel. 
The captain or the vessel's managing office must assure delivery of the 
completed TTFs in accordance with paragraphs (ii) and (v) of this 
section.
    (v) TTFs are confidential official documents of the IDCP. Vessel 
captains and managing offices shall not provide copies of TTFs to any 
representatives of private organizations or non-member states.
    (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning 
company in the 50 states, Puerto Rico, or American Samoa receives a 
domestic or imported shipment of ETP caught tuna for processing, a NMFS 
representative may be present to monitor delivery and verify that 
dolphin-safe and non-

[[Page 55309]]

dolphin-safe tuna are clearly identified and remain segregated. Such 
inspections may be scheduled or unscheduled, and canners must allow the 
NMFS representative access to all areas and records.
    (2) 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: dolphin-safe status, species, condition 
(round, loin, dressed, gilled and gutted, other), weight in short tons 
to the fourth decimal, ocean area of capture (ETP, 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 (d)(2)(i) of this section, a copy of the FCO for each 
imported receipt must be provided.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-caught tuna that were immediately utilized upon receipt or removed 
from cold storage. This report may be submitted in conjunction with the 
monthly report required in paragraph (d)(2) of this section. This 
report must contain:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; 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 during 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.
    (e) Tracking imports. All tuna products, except fresh tuna, that 
are imported into the United States must be accompanied by a properly 
certified FCO that is submitted to the Administrator, Southwest Region, 
as required by section 216.24(f).
    (f) Verification requirements.--(1) Record maintenance. Any 
exporter, trans-shipper, 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 2 years. These records include, but 
are not limited to: FCO and required certifications, any report 
required in paragraphs (a), (b) and (d) 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, trans-
shipper, importer, or processor of tuna or tuna products containing 
tuna harvested in the ETP must submit to the Administrator, Southwest 
Region, any record required to be maintained under paragraph (f)(1) of 
this section.
    (3) Audits and spot-checks. Upon request of the Administrator, 
Southwest Region, any such exporter, trans-shipper, 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, stored, and processed tuna.
    (g) 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.''
[FR Doc. 04-20468 Filed 9-10-04; 8:45 am]
BILLING CODE 3510-22-S