[Federal Register Volume 69, Number 209 (Friday, October 29, 2004)]
[Proposed Rules]
[Pages 63122-63131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24008]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 040920271-4271-01; I.D. 102004A]
RIN 0648-AS05


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

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

ACTION:  Proposed rule; collection-of-information requirements; request 
for comments.

-----------------------------------------------------------------------

SUMMARY:  NMFS proposes regulations to implement resolutions adopted by 
the Inter-American Tropical Tuna Commission (IATTC) and by the Parties 
to the Agreement on the International Dolphin Conservation Program 
(IDCP). These regulations would prohibit activities that undermine the 
effective implementation and enforcement of the Marine Mammal 
Protection Act (MMPA), Dolphin Protection Consumer Information Act 
(DPCIA), and International Dolphin Conservation Program Act (IDCPA). 
This proposed rule would enlarge the class of vessels required to pay 
observer fees. The procedure to categorize tuna purse seine vessels as 
``active'' in the Eastern Tropical Pacific Ocean (ETP) and the deadline 
for submitting vessel permit applications would change. Procedures are 
proposed for managing the capacity of the U.S. tuna purse seine fleet 
operating in the ETP through maintenance of a Vessel Register, the 
definitive list of vessels authorized to purse seine for tuna in the 
ETP. This proposed rule is intended to contribute to the long-term 
conservation of dolphin and tuna stocks and to ensure that the domestic 
tuna tracking and verification program remains consistent with 
international standards.

DATES: Comments on the proposed regulations must be received by 
November 29, 2004.

ADDRESSES: Send comments on the rule and the Initial Regulatory 
Flexibility Analysis to Jeremy Rusin, NMFS,

[[Page 63123]]

Southwest Region, Protected Resources Division, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA 90802-4213. This address may also be used to 
submit observer fee payments, permit applications and other 
documentation to the Administrator, Southwest Region, with the 
exception of Fisheries Certificates of Origin (see below). Comments may 
be sent via facsimile (fax) to (562) 980-4027 or via E-mail. Include in 
the subject line of the E-mail the following document identifier: RIN 
0648-AS05. The mailbox address for providing E-mail comments is 0648-
[email protected]. Comments may also be submitted electronically through 
the Federal e-Rulemaking portal: http//www.regulations.gov.
    Fisheries Certificates of Origin submitted via mail should be sent 
to Tuna Tracking and Verification Program, Southwest Region, P.O. Box 
32469, Long Beach, CA 90832-2469.

FOR FURTHER INFORMATION CONTACT:  Jeremy Rusin, NMFS, Southwest Region, 
Protected Resources Division, at (562) 980-4020.

SUPPLEMENTARY INFORMATION:

Background

    The United States is a member of the IATTC, which was established 
in 1949 under the Convention for the Establishment of an Inter-American 
Tropical Tuna Commission (Convention). The IATTC provides an 
international forum to ensure the effective international conservation 
and management of highly migratory species of fish in the Convention 
Area. The Convention Area is defined to include waters of the ETP 
bounded by the coast of the Americas, the 40[deg] N. and 40[deg] S. 
parallels, and the 150[deg] W. meridian. The IATTC has maintained a 
scientific research and fishery monitoring program for many years and 
annually assesses the fisheries and the status of tuna stocks to 
determine appropriate harvest limits or other measures to prevent 
overexploitation of the stocks and promote viable fisheries. More 
recently, the IATTC has moved into other fishery management issues, 
such as managing the cumulative capacity of vessels fishing in the 
Convention Area, bycatch of non-target and protected species, and 
imposing time-area closures to conserve tuna stocks.
    In support of fleet capacity control, the United States agreed to 
an IATTC resolution that limited total ETP purse seine fleet capacity. 
Currently, the United States is committed to limiting the capacity of 
its domestic tuna purse seine fleet operating in the ETP to 8,969 
metric tons (mt) carrying capacity. The U.S. limit was originally based 
on the cumulative capacity of U.S. vessels actively fishing in the ETP 
in the years leading up to 1999. In addition, U.S. purse seine vessels 
based in the western Pacific Ocean (WPO) were allowed to make 32 trips 
into the ETP without counting against the 8,969 mt limit. Recent 
resolutions adopted under the IATTC have addressed limits on fleet 
capacity. The United States and other Parties to the IATTC Convention 
and Agreement on the IDCP are responsible for domestically implementing 
resolutions adopted each year. Under the U.S. Tuna Conventions Act (16 
U.S.C. 951 et seq.), the Secretary of Commerce is authorized to 
promulgate regulations implementing the recommendations of the IATTC. 
Implementation of recent capacity resolutions is one objective of this 
proposed rule.
     The IDCPA was signed into law August 15, 1997, and became 
effective March 3, 1999. The IDCPA amends the MMPA, DPCIA (16 U.S.C. 
1385), and Tuna Conventions Act. The IDCPA, together with previous 
declarations, became the blueprint for the Agreement on the IDCP. In 
May 1998, eight nations, including the United States, signed a binding, 
international agreement to implement the IDCP. The Agreement on the 
IDCP became effective on February 15, 1999, after four nations (United 
States, Panama, Ecuador, and Mexico) deposited their instruments of 
ratification, acceptance, or adherence with the depository for the 
Agreement. The IDCPA (16 U.S.C. 1413) mandates the Secretary of 
Commerce to issue and revise regulations, as appropriate, to implement 
the IDCP.
    This proposed rule is intended to revise current regulations to 
ensure consistency between operation of the U.S. tuna purse seine fleet 
in the ETP and resolutions adopted by the IATTC and by the Parties to 
the Agreement on the IDCP. This proposed rule also introduces 
procedural modifications needed in the domestic tuna tracking and 
verification program, especially regarding the maintenance and 
submission of tracking and verification records. In addition, these 
regulations would prohibit labeling tuna with a mark that refers to 
dolphins or other marine mammals if the label does not comply with the 
requirements of 16 U.S.C. 1385(d) and prohibit interference with 
enforcement and inspection activities that undermine the effectiveness 
of the MMPA.

Definitions

    The definition for ``Fisheries Certificate of Origin'' would be 
revised in Sec.  216.3 to include the acronym ``FCO'', as well as NOAA 
Form 370. In Sec.  216.3, a definition for ``South Pacific Tuna 
Treaty'' would be added to specify that the term refers to the Treaty 
on Fisheries Between the Governments of Certain Pacific Island States 
and the Government of the United States of America (South Pacific Tuna 
Treaty).
    In Sec.  300.21, a definition would be added for ``Vessel 
Register'' in order to formally name the list of vessels authorized to 
purse seine for tuna in the ETP, which is comprised of both U.S. and 
international vessels. A second definition would be added in Section 
300.21 for ``South Pacific Tuna Treaty'' to specify that the term 
refers to the Treaty on Fisheries Between the Governments of Certain 
Pacific Island States and the Government of the United States of 
America.

Interference with Investigations and Authorized Activities

    These regulations propose to add a new Sec.  216.17 to prohibit 
activities that undermine the effective implementation and enforcement 
of the MMPA, DPCIA, and IDCPA. Currently, individuals who refuse to 
permit boardings by enforcement agents, interfere with inspections or 
stranding response, or intentionally submit false information may not 
be subject to prosecution under the MMPA, as such activities are not 
specifically prohibited. Such activities constrain law enforcement 
actions needed to ensure compliance with the statute. Lastly, this 
action would ensure that there are regulations protecting law 
enforcement officials while conducting investigations in the field.

Vessel Register

    The IATTC established a international Vessel Register on June 28, 
2002. In Sec.  300.22(b), NMFS proposes to maintain a domestic Vessel 
Register in accordance with recommendations of the IATTC. In addition, 
procedures would be established for vessels to be categorized as active 
or inactive on the Vessel Register for a given calendar year. Vessels 
would be eligible for inclusion on the Vessel Register if they were 
determined to have a history of fishing in the ETP prior to the 
establishment of the IATTC Vessel Register on June 28, 2002. Vessels 
that were not originally eligible for inclusion on the Vessel Register 
could be added only to replace another vessel of equal or greater 
capacity that has been removed from the Vessel Register.
    As of September 2004, the following U.S. purse seine vessels, with 
carrying capacities in parentheses, are eligible for inclusion on the 
Vessel Register

[[Page 63124]]

maintained by the IATTC: Andrea C (1,089 mt); Anna Maria II (82 mt); 
Annie D (100 mt); Anthony G (35 mt); Antoinette W (25 mt); Atlantis 
(1,089 mt); Barbara H. (91 mt); Bold Adventuress (1,361 mt); Calogera A 
(62 mt); Cape Elizabeth (1,542 mt); Cape Finisterre (1,361 mt); Carol 
Linda (1,587 mt); Cassie (62 mt); Connie Jean (517 mt); Daniela (1,217 
mt); Diana (1,089 mt); Donna B (145 mt); Eileen (42 mt); Ferrigno Boy 
(70 mt); Fiore D'Mare (85 mt); G Nazzareno (75 mt); Gallant (91 mt); 
Gloria Marie (23 mt); Jeanette (1,542 mt); Jeannine (1,089 mt); Jenny 
Lynne (59 mt); Kathy Jeanne (73 mt); King Philip (91 mt); Koorale (998 
mt); Lady Elizabeth (288 mt); Lady Renee (36 mt); Linda C. (11 mt); 
Margaret F (54 mt); Maria (89 mt); Maria T (45 mt); Mary Louise (54 
mt); Mauritania (340 mt); Midnight Hour (45 mt); Nancy B II (68 mt); 
New Horizon (33 mt); Odette Therese II (1,089 mt); Pacific Princess 
(1,089 mt); Pioneer (64 mt); Proud Heritage (998 mt); Retriever (45 
mt); Romani Sons (91 mt); Saint Joseph (79 mt); San Antonio (86 mt); 
San Pedro Pride (104 mt); Santa Maria (77 mt); Sea Encounter (1,814 
mt); Sea Queen (91 mt); Sheelagh B (82 mt); St George II (91 mt); 
Tradition (1,089 mt); Trionfo (68 mt); and Western Pacific (1,678 mt).
    In order for vessels in excess of 400 short tons (st), (362.8 mt) 
carrying capacity to purse seine for tuna in the ETP, they would be 
required to be categorized as active on the Vessel Register, have 
obtained a vessel permit, and have paid the permit application fee and 
the observer placement fee associated with the active status.
    Owners who request to have purse seine vessels in excess of 400 st 
(362.8 mt) listed as inactive on the Vessel Register would be required 
to pay the observer placement fee associated with inactive status. 
However, only purse seine vessels in excess of 400 st (362.8 mt) listed 
as active on the Vessel Register would be allowed to fish in the ETP; 
large purse seine vessels listed as inactive would be prohibited from 
fishing.
    Purse seine vessels licensed under the South Pacific Tuna Treaty 
would be allowed to make a single trip in the ETP per year, not to 
exceed 90 days in duration. They would not be required to be listed on 
the Vessel Register; however, they would be required to obtain a vessel 
permit, pay the permit application fee and the observer placement fee 
associated with active status, and carry an approved IDCP or ETP-
trained Forum Fisheries Agency observer prior to entering the ETP to 
fish. No more than 32 such trips would be allowed per year.
    Purse seine vessels of less than 400 st (362.8 mt) carrying 
capacity that do not target tuna on a full-time basis (in other words, 
50 percent or less of annual landings by the vessel are tuna caught in 
the ETP) would not be required to be categorized as active, or even be 
listed on the Vessel Register, in order to purse seine for tuna in the 
ETP when tuna are seasonally available.
    Purse seine vessels of less than 400 st (362.8 mt) carrying 
capacity that target tuna on a full-time basis (in other words, more 
than 50 percent of annual landings by the vessel are tuna caught in the 
ETP) would be required to be categorized as active on the Vessel 
Register. In order to be categorized as active on the Vessel Register, 
these small purse seine vessels would be required to submit payment of 
observer placement fees associated with active status to the 
Administrator, Southwest Region. Owners may request to have purse seine 
vessels of less than 400 st (362.8 mt) carrying capacity listed as 
inactive on the Vessel Register by submitting payment of the observer 
placement fee associated with inactive status.
    New Sec.  300.22(b)(4)(i) would provide that when the owner of a 
vessel in excess of 400 st (362.8 mt) carrying capacity submits a 
vessel permit application, permit application fee, and observer 
placement fee, the Administrator, Southwest Region, would interpret the 
submissions as the owner's request for the subject vessel to be 
categorized as active under the Vessel Register in a given calendar 
year. The owner of a vessel of 400 st (362.8 mt) carrying capacity or 
less would be required to submit only payment of the observer placement 
fee associated with active status in order to request the vessel be 
listed on the Vessel Register as active.
    For 2005 only, requests to be categorized as active that are 
received by the Administrator, Southwest Region, would be prioritized 
on a first-come, first-served basis. Requests to be active for 2006 and 
subsequent years that are received by the Administrator, Southwest 
Region, between August 1 and September 15 of the previous year, for 
vessels requesting DMLs, or between August 1 and November 30 of the 
previous year, for vessels not requesting a DMLs, would be prioritized 
according to the following hierarchy: (1) requests for vessels that 
were categorized as active in the previous year except for vessels that 
were determined by the Administrator, Southwest Region, to have made 
frivolous requests for the previous year; (2) requests for vessels that 
were categorized as inactive in the previous year; (3) requests for 
vessels not described in (1) or (2) will be prioritized on a first-
come, first-served basis; and (4) requests for vessels that were 
determined to have made a frivolous request for active status for the 
previous year. Vessels in excess of 400 st (362.8 mt) carrying capacity 
would not be categorized as active on the Vessel Register unless the 
captain of the vessel possessed a valid operator permit.
    Under new Sec.  300.22(b)(5), vessels could be removed from the 
Vessel Register by the Administrator, Southwest Region: (1) if they 
have sunk, (2) at the written request of the owner or managing owner, 
(3) if they have not paid the required observer placement fee, (4) if 
the vessel owner or managing owner does not submit, within the allotted 
time, a vessel permit application and associated processing fee, (5) if 
the United States Coast Guard notifies NMFS that the U.S. documentation 
for the vessel has been deleted, or (6) for serious violations, for 
failure to pay a penalty, or for default on a penalty payment 
agreement.
    In new Sec.  300.22(b)(6), vessels removed from the Vessel Register 
for a given year or years could be added back to the Vessel Register 
and categorized as inactive at any time, provided they pay the vessel 
assessment associated with inactive status. Vessels removed from active 
status on the Vessel Register for one of the reasons described in the 
previous paragraph may be replaced with another vessel by the 
Administrator, Southwest Region, at any point during the year. Owners 
or managing owners of vessels eligible for inclusion on the Vessel 
Register would be notified by the Administrator, Southwest Region, when 
an opportunity to replace a removed vessel arises.
    Vessels categorized as inactive at the time that a vessel is 
removed from active status, and active capacity becomes available, 
would be given first priority to become active for the remainder of the 
year. Second priority would be given to vessels not included on, but 
eligible for inclusion, on the Vessel Register. In order to replace a 
vessel removed from active status on the Vessel Register, the owner of 
a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity 
would be required to submit to the Administrator, Southwest Region, a 
vessel permit application, as well as payment of the permit application 
processing fee and observer placement fee consistent with active status 
and verification that the captain of the vessel possessed a valid 
operator permit.

[[Page 63125]]

    In order to replace a vessel removed from active status on the 
Vessel Register, the owner of a purse seine vessel of 400 st (362.8 mt) 
carrying capacity or less would be required to submit to the 
Administrator, Southwest Region, only payment of the observer placement 
fee consistent with active status.
    The regulations would require that the owner of a purse seine 
vessel listed as inactive on the Vessel Register, who requests to have 
the vessel's status changed to active, pay an observer placement fee 
equal to the difference between the fee for active status and the fee 
for inactive status that was already paid. The observer placement fee 
for an owner of a replacement vessel not already listed as inactive on 
the Vessel Register would be the full observer placement fee associated 
with active status.

Vessel Permit Application and Payment of Observer Placement Fee

    Section 216.24(b)(4) would require vessel permit applications to be 
faxed and establish deadlines for submission of vessel permit 
applications and application processing fees. No vessel permit 
application or application processing fee may be submitted prior to 
August 1 of the year prior to year for which permit would be valid. 
Vessel owners or managing owners requesting a dolphin mortality limit 
(DML) and that a vessel be categorized as active on the Vessel Register 
for the following year, would be required to submit the vessel permit 
application, observer placement fee, and application processing fee no 
later than September 15 of the year prior to year for which the DML is 
requested.
    Vessel owners or managing owners not requesting a DML for a vessel, 
but requesting a vessel greater than 400 st (362.8 mt) be categorized 
as active on the Vessel Register for the following year, would be 
required to submit the vessel permit application, observer placement 
fee, and application processing fee no later than November 30 of the 
year prior to the year for which inclusion on the Vessel Register is 
requested.
    Owners or managing owners of vessels not on the Vessel Register and 
licensed under the South Pacific Tuna Treaty would be required to 
submit vessel permit applications, observer placement fees, and 
application processing fees before the vessel is assigned an observer 
and enters the ETP to fish, allowing 15 days for NMFS to process the 
application.
    Owners or managing owners of vessels equal to or less than 400 st 
(362.8 mt) would not be required to submit a vessel permit application 
or application processing fee; vessel permits are not required for 
vessels of this size regardless of whether or not they are listed on 
the Vessel Register.
    Any owner that requests to have a purse seine vessel of less than 
400 st (362.8 mt) carrying capacity listed as active on the Vessel 
Register would be required to submit payment of the observer placement 
fee associated with active status no later than November 30 of the year 
prior to the year for which inclusion on the Vessel Register is 
requested. Owners of small purse seine vessels for which at least 50 
percent of annual catch is comprised of tuna caught in the ETP would be 
required to request these vessels be listed as active on the Vessel 
Register by submitting payment of observer placement fees associated 
with active status no later than November 30 of the year prior to the 
year for which inclusion on the Vessel Register is requested. Owners 
that request to have these small vessels listed as inactive on the 
Vessel Register would be required to submit payment of observer 
placement fees associated with inactive status no later than November 
30 of the year prior to the year for which inclusion on the Vessel 
Register is requested.
    Owners requesting to replace a vessel removed from active status on 
the Vessel Register would be required to submit to the Administrator, 
Southwest Region, a vessel permit application, payment of the permit 
application processing fee, and payment of the observer placement fee 
consistent with active status before the vessel would be listed as 
active. In addition, these owners would be required to verify that the 
captain of the vessel possessed a valid operator permit.

Importation, Purchase, Shipment, Sale, and Transport

    In Sec.  216.24, a new paragraph (f)(3)(ii) would be added 
requiring that Fisheries Certificates of Origin (FCOs) and associated 
certifications be submitted by the importer of record within 30 days of 
the shipment's entry into the commerce of the United States. The 
proposed regulations would allow certifications to be submitted 
electronically to the Tuna Tracking and Verification Program using a 
secure file transfer protocol (FTP). Importers of record interested in 
submitting FCOs and associated certifications via FTP may contact a 
representative of the Tuna Tracking and Verification Program. 
Certifications submitted by mail either on compact disc or as hard 
copies to the Tuna Tracking and Verification Program (see ADDRESSES) 
would also be acceptable. All importers of record submitting electronic 
certifications, whether via FTP or on compact disc, would be required 
to make submissions in either Adobe Portable Document Format (PDF) or 
as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or 
Corel WordPerfect file. Paragraphs previously designated (f)(2)(ii) and 
(iii) would be redesignated as (f((2)(iii) and (iv), respectively.
    In Sec.  216.24(f)(4) two modifications would be made. In paragraph 
(f)(4)(xi), the name of the vessel would be required on the FCO 
regardless of the gear type used. In paragraph (f) (4)(xiv), NMFS would 
require importers, exporters, or processors who take custody of tuna 
shipments to sign and date FCOs. Current regulations limit this 
requirement to tuna shipments harvested by purse seine vessels in 
excess of 400 st. This modification is necessary because processors who 
import tuna must be able to verify dolphin-safe status through use of 
the FCO for all tuna imports regardless of gear or vessel size.

Market Prohibitions

    NMFS would add a market prohibition to Sec.  216.24(f)(12)(ii) to 
complement the dolphin-safe labeling requirements under the DPCIA, as 
codified in regulations at 50 CFR 216.91 et seq. This new prohibition 
would make commerce in tuna or tuna products bearing a label or mark 
that refers to dolphins, porpoises, or marine mammals illegal if the 
label or mark does not comply with the labeling and marking 
requirements of 16 U.S.C. 1385(d). The Dolphin Protection Consumer 
Information Act authorizes the Secretary to regulate entities in the 
stream of commerce that are responsible for trafficking in tuna product 
that bears labels suggesting the tuna was harvested in a ``dolphin-
safe'' manner. As a result and based on NMFS' experience, NMFS has 
determined that giving NMFS the ability to enforce the labeling 
standards at the wholesale, distribution, and retail levels will 
further compliance with the DPCIA. During the course of recent 
investigations into illegally imported tuna products, NMFS determined 
that there is both a ready supply of a certain brand of tuna products 
from Mexico entering the U.S. market that carries a label/mark that 
implies the tuna is dolphin-safe and a demand among consumers for this 
product. While there is no indication that the labeled product is not 
dolphin-safe, it appears that the product entered the U.S. market 
without being accompanied by the required paperwork. Further, at the 
time such

[[Page 63126]]

products were discovered by law enforcement officials, the party 
possessing the product (usually a retailer) was not the party that 
placed the dolphin-related label on the product.
    This proposed new prohibition would improve the ability of NMFS 
Enforcement to pursue enforcement actions against all parties in the 
stream of commerce that handle or sell labeled tuna product. Putting 
such enforcement pressure on all businesses that distribute or sell 
labeled products is likely to raise their awareness of the dolphin-safe 
labeling standards. NMFS anticipates that this will, in turn, reduce 
the illegal trafficking of such products.

Changes to Verification Requirements

    Section 216.93(c)(v) would be revised to prohibit distribution of 
confidential Tuna Tracking Forms (TTFs) by replacing the phrase ``shall 
not'' with ``may not''. Current regulations were intended to prohibit 
distribution of these confidential documents; however, this intention 
was not apparent in the way current regulations were constructed.
    Section 216.93(e) would be revised in this proposed rule to specify 
that copies of FCOs and required certifications must be submitted by 
the importer of record to the Administrator, Southwest Region, within 
30 days of the shipment's entry into the commerce of the United States, 
consistent with the addition of a the proposed new paragraph (f) (3) 
(ii) in Sec.  216.24(f)(3).
    NMFS would revise Sec.  216.93(f) to require maintenance of records 
on all tuna imported into the United States, not just tuna harvested in 
the ETP that is imported. This change would be made because of the need 
to track all the tuna coming into the United States in order to track 
and verify tuna harvested in the ETP.
    Under these proposed regulations, certain entities (any exporter, 
transshipper, importer, processor or wholesaler/distributor of tuna or 
tuna products) would be required to submit FCOs within 30 days of every 
shipment, as opposed to within 30 days of a request by the Southwest 
Regional Administrator. These revisions would be made in Sec.  
216.93(f)(2).
    NMFS would add a requirement that wholesalers and distributors 
maintain records related to the shipment of tuna, including the FCO, 
required certifications, invoices, and other import documents under the 
authority of paragraph (f) of the DPCIA (16 U.S.C. 1385(f)). The 
revised Sec.  216.93(f) would require any ``wholesaler/distributor'' to 
comply with the record maintenance, submission, and audit/spot-check 
obligations of the Tuna Tracking and Verification Program. In addition 
to maintaining records, wholesalers/distributors would be required to 
submit or provide access to all pertinent records and facilities 
related to caught, landed, stored and processed tuna.
    For purposes of this regulation, wholesalers/distributors would be 
identified as entities that sell from offices or warehouses, advertise 
to businesses rather than to the general public, and generally have no 
walk-in traffic or public displays. This addition is proposed because 
current regulations require importers to adhere to the tracking 
requirements, but do not extend the requirements to parties any farther 
in the stream of commerce. Investigations into the alleged illegal 
importation of tuna products have been thwarted because NMFS discovered 
the products only after they had been delivered to the retailers. For 
example, wholesalers/distributors did not maintain any paperwork 
regarding the delivery or purchase of the tuna that would have allowed 
NMFS to investigate who had been involved in the illegal importation. 
Without extending the tracking requirements to wholesalers/
distributors, this complication with investigations would likely 
continue, as there is the potential that illegal importations of tuna 
are ongoing. NMFS does not propose extending recordkeeping requirements 
to retailers, but in order to aid enforcement of these regulations, 
NMFS would apply the verification requirements of this section to 
wholesalers/distributors.

Public Comments Solicited

    NMFS is soliciting public comments on this proposed rule. Written 
comments may be submitted to Jeremy Rusin (see ADDRESSES and DATES).

Classification

Executive Order 12866

    This proposed rule has been determined to be not ``significant'' 
under Executive Order 12866. NMFS prepared a Regulatory Impact Review 
(RIR)/Initial Regulatory Flexibility Analysis (IRFA), included as 
Appendix A to the Environmental Assessment (EA) prepared on the 
proposed regulations. The EA, including the RIR/IRFA, is available at 
the following website: http://swr.nmfs.noaa.gov.

Regulatory Flexibility Act

    Pursuant to procedures established to implement the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), NMFS prepared an RIR/IRFA, 
included as Appendix A to the EA prepared on the proposed regulations. 
The IRFA indicates that the proposed regulations would have a minimal 
impact on the U.S. purse seine fishing fleets and associated 
businesses.
    NMFS analyzed three alternatives in the IRFA for this proposed 
rule. The first alternative that NMFS analyzed was the ``no action'' 
alternative and this alternative would not implement recommendations of 
the IATTC member nations or resolutions adopted by the Parties to the 
Agreement on the IDCP. The second alternative NMFS analyzed was the 
``preferred alternative,'' which would: (1) establish a register of 
U.S. vessels with a history of fishing in the ETP prior to June 28, 
2002, and require that only vessels on that list would be authorized to 
purse seine for tuna in the ETP; (2) limit the aggregate capacity of 
U.S. purse seine vessels that may fish full time for tuna in the ETP to 
8,969 mt carrying capacity per year; (3) revise the requirements for 
maintaining and submitting tuna tracking and verification records; (4) 
ensure that owners of U.S. vessels on the register pay annual 
assessments; (5) prohibit commerce in tuna or tuna products bearing a 
label or mark that refers to dolphins, porpoises, or marine mammals if 
the label or mark does not comply with the labeling and marking 
requirements of 16 U.S.C. 1385(d); and (6) prohibit interference with 
enforcement and inspection activities, submission of false information, 
and other activities that would undermine the effectiveness of the 
MMPA, IDCPA, and DPCIA. The third alternative NMFS analyzed was the 
``variations of the preferred alternative'' alternative and this 
alternative would retain the clearly required elements of the preferred 
alternative, but it would also include other measures not specifically 
required by internationally adopted resolutions. Generally, the 
objectives of resolutions adopted by the IATTC member nations and the 
Parties to the Agreement on the IDCP are clear; however, some 
provisions allow for agency discretion, either in implementing or 
interpreting the intent of the resolution. These discretionary areas 
provided the basis for this third alternative.
    NMFS rejected the ``no action'' alternative because it would not 
restrict annual participation by U.S. flag purse seine vessels in the 
fishery and would not implement needed prohibitions or refine tuna 
tracking procedures. Under the ``no action'' alternative, the United 
States would not be fulfilling its obligations under the IATTC and 
Agreement on the IDCP; adopting this alternative would provide a 
precedent

[[Page 63127]]

for other nations to ignore future international recommendations.
    NMFS chose the ``preferred alternative,'' which includes a 
combination of procedures to restrict domestic fleet capacity, updates 
to the domestic tuna tracking and verification program, prohibitions 
against interfering with enforcement activities, and prohibitions 
against using a label on tuna products that refers to dolphins or other 
marine mammals when the label does not comply with the requirements of 
the DPCIA. The ``preferred alternative'' is expected to have minimal 
impacts on the U.S. purse seine fishing fleet and associated 
businesses.
    NMFS also considered but rejected the third alternative which 
included taking independent action to address tuna conservation (e.g., 
quota, area closures, or other variations of the preferred alternative) 
because these approaches fail to address the potential for fleet 
capacity growth. Further, the United States does not have independent 
sources of information that would provide a sufficiently sound approach 
to support a departure from recommendations of the IATTC member nations 
and Parties to the Agreement on the IDCP.
    The IRFA indicates, with only 1-2 exceptions, that tuna landings of 
small purse seine vessels (i.e., vessels less than 400 st carrying 
capacity and classified as small business entities) do not comprise a 
significant percentage of the total landings of small purse seine 
vessels. Therefore, these vessels would be exempt from being 
categorized as active on the Vessel Register or paying associated 
annual vessel assessments in order to purse seine for tuna when they 
are seasonally available. The 1-2 small vessels that have historically 
targeted tuna on a full-time basis, as well as large tuna purse seine 
vessels (in excess of 400 st carrying capacity), would be required to 
be listed as active on the Vessel Register and pay associated annual 
vessel assessments in order to fish for tuna in future years.
    The annual capacity limit of 8,969 mt that would be imposed on the 
U.S. tuna purse seine fleet as a result of this action is expected to 
accommodate the majority of interested vessels based on vessel 
participation in the fishery in recent years, including the 1-2 small 
purse seine vessels that target tuna on a full-time basis. In 2004, 
owners expressed an interest to have an additional 2 vessels in excess 
of 400 st carrying capacity categorized as active, which would have 
totaled approximately 11,500 mt in fleet capacity. Therefore, 
implementing the fleet capacity limit through this rule would result in 
1 or 2 eligible U.S. purse seine vessels being excluded from 
participating in the ETP tuna fishery if the current level of interest 
in the fishery is maintained.
    Updates to the tuna tracking and verification program; prohibitions 
against commerce in tuna or tuna products bearing a label or mark that 
refers to dolphins, porpoises, or marine mammals if the label or mark 
does not comply with the labeling and marking requirements of 16 U.S.C. 
1385(d); and prohibitions against activities that undermine the 
implementation and enforcement of the MMPA, IDCPA and DPCIA are not 
expected to significantly impact small business entities. While the 
proposed changes are expected to result in some new or increased 
burdens to small businesses, the experience of the Tuna Tracking and 
Verification Program indicates that the proposed change would ensure 
NMFS' continued ability to verify the dolphin-safe status of tuna.
    The preferred alternative is not expected to have a significant 
economic impact on the U.S. tuna purse seine fleet operating in the 
ETP. The only small business entities which would potentially be 
affected by this proposed rule would be 1-2 small purse seine vessels 
which target tuna in the ETP on a full-time basis. These actions are 
not expected to compromise the ability of these small vessels to target 
tuna or reduce their retained catch or sales revenue. Similarly, there 
would be no impacts on processors, nor would total employment be 
affected by this action.
    While this alternative would implement capacity controls for the 
fleet, the proposed limit, 8,969 mt, is consistent with the recent 
level of interest and participation in the fishery by U.S. vessels. 
This alternative would also exempt smaller fishing entities that do not 
target tuna on a full-time basis from paying annual vessel assessments. 
Considering their access to fishing grounds in the western Pacific 
Ocean, vessels in excess of 400 st carrying capacity in the U.S. tuna 
purse seine fleet are expected to have sufficient flexibility to target 
tuna where and when they are seasonably available. Foreign purse seine 
fleets, as well as domestic and international tuna processors, are not 
expected to be significantly adversely affected by implementation of 
this alternative, due to the global nature of tuna supply and pricing.
    NMFS is requesting comments on the IRFA. The EA, including the RIR/
IRFA, is available at the following website: http://swr.nmfs.noaa.gov. 
Send comments to Jeremy Rusin, NMFS (see ADDRESSES).

Paperwork Reduction Act

    This proposed rule contains new collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA), which 
appears in Sec.  216.93(f) of this proposed rule. Wholesalers/
distributors are included in the list of entities required to produce 
records relative to tracking and verification of tuna to the 
Administrator, Southwest Region. This added collection-of-information 
requirement was approved by the Office of Management and Budget (OMB) 
on February 6, 2003, under control number 0648-0387. The public 
reporting burden for this collection is estimated to average 30 minutes 
for a wholesaler/distributor to produce records.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor will any person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    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.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this proposed 
rule may be submitted in writing to Jeremy Rusin, NMFS (See ADDRESSES), 
or to David Rostker, OMB, by e-mail at [email protected] or by 
fax to 202-395-7285.

Endangered Species Act

    NMFS prepared a Biological Opinion for the interim final rule to 
implement the IDCPA in December 1999, 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 this proposed action may affect listed 
species in a manner or to an extent not previously considered, nor do 
the proposed regulations modify the fishery in a manner that causes an 
effect to listed species not previously considered in the Biological 
Opinion. Therefore, NMFS has determined that the conclusions and 
incidental take

[[Page 63128]]

statement of the Biological Opinion remain valid and reinitiation of 
consultation is not required. NMFS continues to monitor annual sea 
turtle takes and mortalities in the U.S. tuna purse seine fishery 
operating in the ETP to ensure that levels are within those analyzed in 
the Biological Opinion and authorized in the amended Incidental Take 
Statement.

National Environmental Policy Act

    NMFS prepared a draft Environmental Assessment (EA) on these 
proposed regulations. A copy of the draft EA is available at: http://swr.nmfs.noaa.gov.

    Dated: October 20, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

List of Subjects

50 CFR Part 216

    Fish, Marine mammals, Reporting and recordkeeping requirements.

50 CFR Part 300

    International fisheries regulations; Pacific tuna fisheries.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR parts 216 and 300 as follows:

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

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

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
    2. In Sec.  216.3 the definition for ``Fisheries Certificate of 
Origin'' is revised and a definition for ``South Pacific Tuna Treaty'' 
is added to read as follows:


Sec.  216.3  Definitions.

* * * * *
    Fisheries Certificate of Origin or FCO, means NOAA Form 370, as 
described in Sec.  216.24(f)(4).
* * * * *
    South Pacific Tuna Treaty means the Treaty on Fisheries Between the 
Governments of Certain Pacific Island States and the Government of the 
United States of America (50 CFR part 300, subpart D).
* * * * *
    3. A new Sec.  216.17 is added to subpart B to read as follows:


Sec.  216.17  General prohibitions.

    It is unlawful for any person to:
    (a) Assault, resist, oppose, impede, intimidate, threaten, or 
interfere with any authorized officer in the conduct of any search, 
inspection, investigation or seizure in connection with enforcement of 
the MMPA, DPCIA, or IDCPA.
    (b) Interfere with, delay, or prevent by any means the apprehension 
of another person, knowing that such person has committed any act 
prohibited by the MMPA.
    (c) Resist a lawful arrest for any act prohibited under the MMPA.
    (d) Make any false statement, oral or written, to an authorized 
officer concerning any act under the jurisdiction of the MMPA, DPCIA, 
IDCPA, or attempt to do any of the above.
    (e) Interfere with, obstruct, delay, or prevent by any means an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the MMPA, DPCIA, or IDCPA.
    4. Section 216.24 is amended by revising paragraphs (b)(4), 
(b)(6)(i), (b)(6)(iii), (f)(3), (f)(3)(ii)-(f)(3)(iv), (f)(4)(xi), 
(f)(4)(xiv) and (f)(12) 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.

* * * * *
    (b) * * *
    (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 15 days for processing. All vessel 
permit applications must be faxed to (562) 980-4027. An owner or 
managing owner requesting to have a vessel in excess of 400 st (362.8 
mt) carrying capacity for which a DML was requested categorized as 
active on the Vessel Register under Sec.  300.22(b)(4)(i) of this title 
must submit to the Administrator, Southwest Region, the vessel permit 
application, payment of the observer placement fee under paragraph 
(b)(6)(iii) of this section and payment of the vessel permit 
application processing fee no later than September 15 of the year prior 
to the year for which the DML was requested. The owner or managing 
owner of a vessel in excess of 400 st (362.8 mt) carrying capacity not 
requesting a DML must submit the vessel permit application, payment of 
the observer placement fee, and payment of the vessel permit 
application processing fee no later than November 30 of the year prior 
to the year for which the vessel permit was requested. An application 
must contain:
* * * * *
    (6) * * *
    (i) Vessel permit application fees. Payment of the permit 
application fee is required before NMFS will issue a permit. 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.
* * * * *
    (iii) Observer placement fee. (A) The owner or managing owner of a 
vessel for which a DML has been requested must submit the observer 
placement fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, no later than 
September 15 of the year prior to the calendar year for which the DML 
was requested. Payment of the observer placement fee must be consistent 
with the fee for active status on the Vessel Register under Sec.  
300.22(b)(4) of this title.
    (B) The owner or managing owner of a vessel for which a DML has not 
been requested, but that is listed on the Vessel Register, as defined 
in Sec.  300.21 of this title, must submit payment of the observer 
placement fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, no later than November 
30 of the year prior to the calendar year in which the vessel will be 
listed on the Vessel Register. Payment of the observer placement fee 
must be consistent with the vessel=s status, either active or inactive, 
on the Vessel Register in Sec.  300.22(b)(4) of this title.
    (C) The owner or managing owner of a purse seine vessel that is 
licensed under the South Pacific Tuna Treaty must submit the observer 
placement fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, prior to obtaining an 
observer and entering the ETP to fish. Consistent with Sec.  
300.22(b)(1)(i) of this title, this class of purse seine vessels is not 
required to be listed on the Vessel Register under Sec.  300.22(b)(4) 
of this title in order to purse seine for tuna in the ETP during a 
single fishing trip per calendar year of 90 days or less. Payment of 
the observer placement fee must be consistent with the fee for active 
status on the Vessel Register under Sec.  300.22(b)(4) of this title.
    (D) The owner or managing owner of a purse seine vessel listed as 
inactive on the Vessel Register at the beginning of the calendar year 
and who requests to replace a vessel removed from active status on the 
Vessel Register under Sec.  300.22(b)(4) of this title during the year, 
must pay the observer placement

[[Page 63129]]

fee associated with active status less the observer placement fee 
associated with inactive status that was already paid before NMFS will 
request the IATTC Secretariat change the status of the vessel from 
inactive to active.
    (E) The owner or managing owner of a purse seine vessel not listed 
on the Vessel Register at the beginning of the calendar year and who 
requests to replace a vessel removed from active status on the Vessel 
Register under Sec.  300.22(b)(4) of this title during the year, must 
pay the observer placement fee associated with active status before 
NMFS will request the IATTC Secretariat change the status of the vessel 
to active.
    (F) Payments received after the dates specified in paragraphs (b) 
(6) (iii)(A) or (B) of this section will be subject to a 10 percent 
surcharge. The Administrator, Southwest Region, will forward all 
observer placement fees described in this section to the IATTC or to 
the applicable organization approved by the Administrator, Southwest 
Region.
* * * * *
    (f) * * *
* * * * *
    (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) * * *
    (ii) FCOs and associated certifications, if any, that accompany 
imported shipments of tuna must be submitted by the importer of record 
to the Tuna Tracking and Verification Program, Southwest Region, within 
30 days of the shipment's entry into the commerce of the United States. 
Copies of the documents may be submitted electronically using a secure 
file transfer protocol (FTP) site. Importers of record interested in 
submitting FCOs and associated certifications via FTP may contact a 
representative of the Tuna Tracking and Verification Program at the 
following email address: [email protected]. The Tuna Tracking and 
Verification Program will facilitate secure transfer and protection of 
certifications by assigning a separate electronic folder for each 
importer. Access to the electronic folder will require a user 
identification and password. The Tuna Tracking and Verification Program 
will assign each importer a unique user identification and password. 
Safeguarding the confidentiality of the user identification and 
password is the responsibility of the importer to whom they are 
assigned. Copies of the documents may also be submitted via mail either 
on compact disc or as hard copies. All electronic submissions, whether 
via FTP or on compact disc, must be in either Adobe Portable Document 
Format (PDF) or as an image file embedded in a Microsoft Word, 
Microsoft PowerPoint, or Corel WordPerfect file.
    (iii) 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.
    (iv) 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) * * *
    (xi) the name of the harvesting vessel;
* * * * *
    (xiv) Each additional importer, exporter, or processor who takes 
custody of the shipment must sign and date the form to certify that the 
form and attached documentation accurately describes the shipment of 
fish that they accompany.
* * * * *
    (12) Market rohibitions. (i) It is unlawful for any person to sell, 
purchase, offer for sale, transport, or ship in the United States, any 
tuna or tuna products unless the tuna products are either:
    (A) Dolphin-safe under subpart H of this part; or
    (B) 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.
    (ii) It is unlawful for any exporter, transshipper, importer, 
processor, or wholesaler/distributor to possess, sell, purchase, offer 
for sale, transport, or ship in the United States, any tuna or tuna 
products bearing a label or mark that refers to dolphins, porpoises, or 
marine mammals unless the label or mark complies with the requirements 
of 16 U.S.C. 1385(d).
* * * * *
    5. In Sec.  216.93, the section heading and paragraphs are amended 
by revising paragraphs (c)(5)(v), (e) and (f) to read as follows:


Sec.  216.93  Tracking and verification program.

* * * * *
    (c) * * *
    (5) * * *
    (v) TTFs are confidential documents of the IDCP. Vessel captains 
and managing offices may not provide copies of TTFs to any 
representatives of private organizations or non-member states.
* * * * *
    (e) Tracking imports. All tuna products, except fresh tuna, that 
are imported into the United States must be accompanied by a properly 
certified FCO as required by Sec.  216.24(f)(2). For tuna tracking 
purposes, copies of FCOs and associated certifications must be 
submitted by the importer of record to the Administrator, Southwest 
Region, within 30 days of the shipment's entry into the commerce of the 
United States as required by Sec.  216.24(f)(3)(ii).
    (f) Verification requirements--(1) Record maintenance. Any 
exporter, transshipper, importer, processor, or wholesaler/distributor 
of any tuna or tuna products 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 shipment of 
tuna or tuna products, any exporter, transshipper, importer, processor, 
wholesaler/distributor of tuna or tuna products must submit to the 
Administrator, Southwest Region, all corresponding FCOs and required 
certifications for those tuna or tuna products.
    (3) Audits and spot-checks. Upon request of the Administrator, 
Southwest Region, any exporter, transshipper, importer, processor, or 
wholesaler/distributor of tuna or tuna products 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.
* * * * *

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 16 U.S.C. 951-961 and 971 et seq., unless otherwise 
noted.
    2. In Sec.  300.21 definitions for ``South Pacific Tuna Treaty'' 
and ``Vessel Register'' are added to read as follows:

[[Page 63130]]

Sec.  300.21  Definitions.

* * * * *
    South Pacific Tuna Treaty means the Treaty on Fisheries Between the 
Governments of Certain Pacific Island States and the Government of the 
United States of America (50 CFR part 300, Subpart D).
* * * * *
    Vessel Register means the regional register of vessels authorized 
to purse seine for tuna in the Convention Area, as established by the 
Inter-American Tropical Tuna Commission on June 28, 2002.
    3. Section 300.22 is amended by revising paragraph (b) to read as 
follows:


Sec.  300.22  Yellowfin tuna--Recordkeeping and written reports.

* * * * *
    (b) Vessel register. Except as provided under paragraph (b)(1) of 
this section, vessels must be listed on the Vessel Register and 
categorized as active under paragraph (b)(4)(i) of this section in 
order to purse seine for tuna in the Convention Area.
    (1) Exceptions. The following classes of vessels are exempted from 
being listed on the Vessel Register to purse seine for tuna in the 
Convention Area:
    (i) Vessels licensed under the South Pacific Tuna Treaty that 
exercise an option to fish in the Convention Area for a single trip 
each year, provided that the total number of optional trips does not 
exceed 32 in a given calendar year. Each optional trip in the 
Convention Area may not exceed 90 days in duration.
    (ii) Vessels of less than 400 st (362.8 mt) carrying capacity for 
which landings of tuna caught in the Convention Area comprise 50 
percent or less of the vessel's total landings, by weight, for a given 
calendar year.
    (2) Requirements for inclusion on the vessel register. The Vessel 
Register shall include, consistent with IATTC actions, only vessels 
that fished in the Convention Area prior to the creation of the Vessel 
Register on June 28, 2002. New vessels may be added to the Vessel 
Register at any time to replace those previously removed by the 
Regional Administrator, provided that the total capacity of the 
replacement vessel or vessels does not exceed that of the vessel or 
vessels being replaced.
    (3) Vessel information. The owner of any fishing vessel that uses 
purse seine, longline, drift gillnet, harpoon, or troll fishing gear to 
harvest tuna in the Convention Area for sale or a person authorized in 
writing to serve as agent for the owner must provide such information 
about the vessel and its characteristics as requested by the Regional 
Administrator to conform to IATTC actions relative to the Vessel 
Register. This information initially includes, but is not limited to, 
vessel name and registration number; a photograph of the vessel with 
the registration number showing and legible; vessel length, beam and 
moulded depth; gross tonnage and hold capacity in cubic meters and 
tonnage; engine horsepower; date and place where built; and type of 
fishing method or methods used.
    (4) Vessel Register status. In each calendar year, for a vessel to 
be categorized as either ``active'' or ``inactive'' on the Vessel 
Register, the vessel owner or managing owner must pay the associated 
observer placement fee pursuant to Sec.  216.24(b)(6)(iii) of this 
title, or the vessel will be removed from the Vessel Register by the 
Regional Administrator for that year.
    (i) Active status. As early as August 1 of each year, vessel owners 
or managing owners may submit to the Regional Administrator a vessel 
permit application and payment of the permit application fee and 
observer placement fee for each vessel in excess of 400 st (362.8 mt) 
carrying capacity qualified to be listed on the Vessel Register under 
paragraph (b)(2) of this section to have a vessel categorized as active 
for the following calendar year. Vessel permit applications may not be 
submitted via regular mail; they must be faxed to (562) 980-4027. 
Owners or managing owners of vessels of 400 st (362.8 mt) carrying 
capacity or less must only submit payment of the observer placement fee 
associated with active status in order to request a small purse seine 
vessel be categorized as active for the following calendar year. The 
Regional Administrator must receive the faxed vessel permit application 
and payment of the observer placement fee and permit application 
processing fee no later than September 15 for vessels for which a DML 
was requested for the following year and no later than November 30 for 
vessels for which a DML was not requested for the following year. 
Submission of the vessel permit application and payment of the observer 
placement fee and permit application processing fee will be interpreted 
by the Regional Administrator as a request for a vessel to be 
categorized as active. The following restrictions apply to active 
status:
    (A) The cumulative carrying capacity of all vessels categorized as 
active on the Vessel Register may not exceed 8,969 mt in a given year;
    (B) A vessel may not be added to active status on the Vessel 
Register unless the captain of the vessel has obtained a valid operator 
permit under Sec.  216.24(b)(2) of this title;
    (C) For 2005 only, requests for vessels will be prioritized on a 
first-come, first-served basis according to the date and time the fax 
is received in the office of the Regional Administrator;
    (D) Requests for active status for 2006 and subsequent years will 
be prioritized according to the following hierarchy:
    (1) Requests received for vessels that were categorized as active 
in the previous year, beginning with the vessel's status in 2005, 
unless the request for active status was determined to be frivolous by 
the Regional Administrator under paragraph (b)(4)(ii) of this section;
    (2) Requests received for vessels that were categorized as inactive 
under paragraph (b)(4)(iii) of this section in the previous year, 
beginning with the vessel's status in 2005;
    (3) Requests for vessels not described in paragraphs (b)(4)(D)(1) 
or (2) of this section will be prioritized on a first-come, first-
served basis according to the date and time stamp printed by the 
incoming fax machine upon receipt, provided that the associated 
observer placement fee is paid by the applicable deadline described in 
Sec.  216.24(b)(6)(iii) of this title; and
    (4) Requests received from owners or managing owners of vessels 
that were determined, by the Regional Administrator, to have made a 
frivolous request for active status, under paragraph (b)(4)(ii) of this 
section.
    (ii) Frivolous requests for active status. Beginning with requests 
made for 2005, a request for active status under paragraph (b)(4)(i) of 
this section will be considered frivolous, unless as a result of force 
majeure or other extraordinary circumstances as determined by the 
Regional Administrator, if, for a vessel categorized as active in a 
given calendar year, less than 20 percent of the vessel's total 
landings, by weight, in that same year is comprised of tuna harvested 
by purse seine in the Convention Area.
    (iii) Inactive status. From August 1 through November 30 of each 
year, vessel owners or managing owners may request that vessels 
qualified to be listed on the Vessel Register under paragraph (b)(2) of 
this section be categorized as inactive for the following calendar year 
by submitting to the Regional Administrator payment of the associated 
observer placement fees. Payment of the observer placement fee 
consistent with inactive status will be interpreted by the Regional 
Administrator as a request for the vessel to be categorized as 
inactive.
    (5) Removal from the Vessel Register. A vessel may be removed from 
the

[[Page 63131]]

Vessel Register by the Regional Administrator:
    (i) If the vessel has sunk;
    (ii) Upon written request by the vessel's owner or managing owner;
    (iii) If the vessel owner or managing owner does not pay the 
observer placement fee associated with the vessel's active or inactive 
status on the Vessel Register for a given calendar year;
    (iv) If the vessel owner or managing owner does not submit, within 
the allotted time, a vessel permit application and permit processing 
fee;
    (v) If the United States Coast Guard notifies NMFS that the U.S. 
documentation for the vessel has been deleted; or
    (vi) For serious violations, for failure to pay a penalty, or for 
default on a penalty payment agreement.
    (6) Procedures for replacing vessels removed from the Vessel 
Register. (i) A vessel previously listed on the Vessel Register, but 
removed for a given year or years, may be added back to the Vessel 
Register and categorized as inactive at any time during the year, 
provided the owner of the vessel pays the observer placement fee 
associated with inactive status.
    (ii) A vessel may be added to the Vessel Register and categorized 
as active in order to replace a vessel removed from active status under 
paragraph (b)(5) of this section, provided the total carrying capacity 
of active vessels does not exceed 8,969 mt and the owner submits a 
complete request under paragraph (b)(6)(iv) of this section.
    (iii) After a vessel categorized as active is removed from the 
Vessel Register the Regional Administrator will notify owners or 
managing owners of vessels categorized as inactive that replacement 
capacity is available on the active list of the Vessel Register. In the 
event that owners of inactive vessels do not request to replace a 
removed vessel, the Regional Administrator will notify owners of 
vessels eligible for, but not included on, the Vessel Register that 
replacement capacity is available on the active list of the Vessel 
Register.
    (iv) The owner or managing owner of a purse seine vessel of 400 st 
(362.8 mt) carrying capacity or less may request a vessel be 
categorized as active to replace a vessel removed from the Vessel 
Register by submitting payment of the observer placement fee to the 
Regional Administrator.
    (v) The owner or managing owner of a purse seine vessel in excess 
of 400 st (362.8 mt) carrying capacity may request a vessel be 
categorized as active to replace a vessel removed from the Vessel 
Register by submitting the following items to the Regional 
Administrator:
    (A) Payment of the observer placement fee;
    (B) A vessel permit application faxed to (562) 980-4027;
    (C) Payment of the permit application processing fee; and
    (D) Verification that the captain of the vessel possesses a valid 
operator permit.
    (vi) The Regional Administrator will forward requests to replace 
vessels removed from the Vessel Register within 15 days of receiving 
each request.
[FR Doc. 04-24008 Filed 10-28-04; 8:45 am]
BILLING CODE 3510-22-S