[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
[[Page 55291]]
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
[[Page 55293]]
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