[Federal Register Volume 70, Number 69 (Tuesday, April 12, 2005)]
[Rules and Regulations]
[Pages 19004-19011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7312]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 040920271-5083-02, 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:  Final rule.

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SUMMARY:  NMFS issues a final rule 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). The final rule prohibits 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).

DATES:  Effective May 12, 2005.

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 may also be sent via facsimile (fax) to 
(562) 980-4027 or via E-mail. The mailbox address for providing E-mail 
comments is [email protected]. Include in the subject line of the E-
mail the following document identifier: RIN 0648-AS05. The 
Environmental Assessment (EA) prepared for this rule is available on 
the Internet at the following address: http://swr.nmfs.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Jeremy Rusin, NMFS, Southwest Region, 
Protected Resources Division, (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, addressing 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 active 
aggregate capacity of its domestic tuna purse seine fleet 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 by the IATTC member nations have addressed 
limits on fleet capacity. The United States and other IATTC member 
nations and Parties to the Agreement on the IDCP (Agreement) are 
responsible for domestic implementation of 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. This final rule 
implements the recent capacity resolutions adopted by the IATTC member 
nations.
     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 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.
    On October 29, 2004, NMFS published a proposed rule in the Federal 
Register (69 FR 63122), which would have: (1) established a register of 
U.S. vessels with a history of fishing in the ETP prior to June 28, 
2002 (Vessel Register), and authorized only those vessels to purse 
seine for tuna in the ETP; (2) limited the aggregate active capacity of 
U.S. purse seine vessels in the ETP to 8,969 mt per year; (3) revised 
the requirements for maintaining and submitting tuna tracking and 
verification records; (4) ensured owners of U.S. vessels on the Vessel 
Register pay annual assessments; (5) prohibited commerce in tuna or 
tuna products bearing a label or mark referring 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) 
prohibited interference with enforcement and inspection activities, 
submission of false information, and other activities that would 
undermine the effectiveness of the MMPA, IDCPA, and DPCIA.
    This final rule is largely unchanged from the proposed rule. In 
this final rule, NMFS responds to public and government comments, and 
makes technical modifications.

Responses to Comments

    NMFS solicited comments on the proposed rule. NMFS received seven 
comments letters during the 30-day comment period from U.S. Customs and 
Border Protection and the general public. Key issues and concerns are

[[Page 19005]]

summarized below and responded to as follows:

Importation, Purchase, Shipment, Sale, and Transport

    Comment 1: The new paragraph proposed in 50 CFR 216.24(f)(3)(ii) 
will help NMFS monitor tuna shipments and may act as a deterrent to 
importers who may consider undermining current law.
    Response: NMFS proposed this new paragraph to achieve the purposes 
described in the comment.
    Comment 2: The proposed changes to require the name of the vessel 
on the Fisheries Certificate of Origin (FCO) regardless of the gear 
type used and to require importers, exporters, or processors who take 
custody of tuna shipments to sign and date FCOs in Sec.  
216.24(f)(4)(xi) and (f)(4)(xiv), respectively, should assist 
enforcement efforts.
    Response: NMFS proposed these changes to achieve the purposes 
described in the comment.
    Comment 3: The proposed rule will allow NMFS to enforce the 
dolphin-safe labeling standard at the wholesale, distribution and 
retail levels and not just against the party responsible for placing a 
dolphin related label on the product. This authority should increase 
pressure on businesses that distribute or sell labeled products to 
ensure that the product complies with the dolphin-safe labeling 
standard.
    Response: The regulations at Sec.  216.93(f) extend the 
recordkeeping and document submission requirements to wholesalers/
distributors, but not to retailers. NMFS determined that extending 
these requirements to wholesalers/distributors is necessary to enforce 
the dolphin-safe labeling standard. However, extending this requirement 
to the retailers is overly burdensome due to the number of entities 
that would be affected by these recordkeeping and submission 
requirements. NMFS agrees with the commenter that the regulations 
should improve compliance with the dolphin-safe labeling standard 
through increased enforcement pressure at the wholesaler/distributor 
level of commerce.
    Comment 4: Current regulations requiring importers to submit paper 
copies of import documents, specifically NOAA Form 370, to U.S. Customs 
and Border Protection (USCBP), Department of Homeland Security, are 
burdensome to that agency because the documentation then had to be 
transferred to NMFS. The proposed change to Sec.  216.24(f)(3)(ii) 
requiring that documentation be submitted directly to NMFS, will reduce 
this burden and allow for USCBP resources to be directed to other 
objectives.
    Response: NMFS proposed this change to achieve the purposes 
described in the comment.

Verification Requirements

    Comment 5: The proposed prohibition against distribution of Tuna 
Tracking Forms (TTFs) to private organizations in Sec.  216.93(c)(5)(v) 
is not consistent with calls for transparency in the International 
Dolphin Conservation Program Act (IDCPA). This proposed prohibition 
undercuts the tracking and enforcement efforts NMFS is attempting to 
strengthen through this proposed rule. As an alternative, NMFS could 
eliminate the name of the vessel owner or captain on TTFs to protect 
the privacy of these individuals while providing the public with basic 
but important information.
    Response: The Parties to the Agreement established, and are bound 
by, Rules of Confidentiality and a System for Tracking and Verifying 
Tuna. Section 3, paragraph 7 of the Agreement's System for Tracking and 
Verifying Tuna (available at http://www.iattc.org/IDCPDocumentsENG.htm) 
states: ``TTFs shall be treated by the competent national authority as 
confidential official documents of the IDCP, consistent with Article 
XVIII of the [Agreement], and the [Agreement's] Rules of 
Confidentiality.'' Under paragraph (1)(b) of the Agreement's Rules of 
Confidentiality (available at http://www.iattc.org/IDCPDocumentsENG.htm), ``information relating to unloadings or trade 
which is associated with individual vessels and/or companies, including 
Tuna Tracking Forms (TTFs) for those vessels'' is treated as 
confidential.
    Because TTFs are documents of the Secretariat to the Agreement and 
not NMFS, NMFS cannot distribute these documents even if certain 
sensitive information is eliminated. Further, TTFs are confidential 
documents with no provision for part, let alone all, of these documents 
to be released. Section 216.93(c)(5)(v) of the regulations, which is 
now finalized, is consistent with policies adopted by the Parties to 
the Agreement and remains unchanged in these final regulations.
    Comment 6: The proposed changes to Sec.  216.93(e) requiring the 
submittal and maintenance of records on all tuna imports (not just 
those from the ETP) should enhance NMFS' ability to track and verify 
shipments of tuna products.
    Response: NMFS proposed these changes to achieve the purposes 
described in the comment.
    Comment 7: The proposed changes to Sec.  216.93(f) to include 
wholesalers and distributors of tuna products in the list of entities 
that must maintain records should complement enforcement efforts and in 
particular allow for more frequent audits and spot checks.
    Response: NMFS proposed these changes to achieve the purposes 
described in the comment.

Changes From the Proposed Rule

Changes to Vessel Permit Application Fees

    NMFS clarified in Sec.  216.24(b)(6)(i) of this final rule that: 
(1) the amount of the vessel permit application fee may change and (2) 
the amount of the fee is determined by the Assistant Administrator, 
NMFS, in accordance with the NOAA Finance Handbook and printed on the 
vessel permit application form provided by the Administrator, Southwest 
Region. This was always NMFS' intent in Sec.  216.24(b)(6)(i), but the 
intent may have not been clear in the way the proposed regulations were 
drafted.

Changes to Observer Placement Fee

    NMFS clarified in Sec.  216.24(b)(6)(iii) of this final rule that 
the observer placement fee supports both the placement of observers on 
individual vessels and the maintenance of the IATTC observer program or 
other approved observer program.

Changes to Disposition of Fisheries Certificates of Origin

    NMFS added a mailing address for the Tuna Tracking and Verification 
Program, Southwest Region, in Sec.  216.24(f)(3).

Changes to Vessel Register

    NMFS clarified in Sec.  300.22(b)(1)(ii) that purse seine vessels 
of 400 short tons (st) (362.8 mt) or less carrying capacity for which 
landings of tuna caught in the ETP comprise 50 percent or less of the 
vessel's total landings for a given calendar year are exempted from 
being listed on the Vessel Register. In the proposed rule, only purse 
seine vessels less than 400 st were included in this exception. This 
clarification is consistent with the description of vessels required to 
be listed on the Vessel Register provided in the preamble of the 
proposed rule.
    NMFS clarified in Sec.  300.22(b)(4) that each of the payments and 
permit applications listed in Sec.  216.24(b) must be submitted in 
order for a vessel to be listed on the Vessel Register in the following 
calendar year. If the required payments and permit applications are not 
submitted to the Regional

[[Page 19006]]

Administrator, the vessel will not be listed on the Vessel Register in 
the following year. This was NMFS' original intention, but this was not 
clear in the proposed rule.
    NMFS clarified in Sec.  300.22(b)(4)(iii) that a vessel owner or 
managing owner may, at any time during the year, request that a vessel 
qualified to be listed on the Vessel Register be categorized as 
inactive for the remainder of the calendar year by submitting to the 
Administrator, Southwest Region, payment of the associated observer 
placement fee plus a 10 percent surcharge of the fee. In Sec.  
300.22(b)(6)(i), it was already clear that a vessel qualified to be 
listed on the Vessel Register may be added back to the Vessel Register 
as inactive at any time during the year.
    In Sec.  300.22(b)(5), NMFS removed paragraphs (iii) and (iv) 
because vessel owners are required to take specific actions (i.e., pay 
fees and submit permit applications) for vessels to be listed on the 
Vessel Register each year. The proposed rule incorrectly indicated that 
the default condition was for vessels to remain on the Vessel Register 
from year to year unless an owner did not meet these requirements in 
which case the vessel would be removed from the Vessel Register. In 
this final rule, NMFS also divided Sec.  300.22(b)(5)(vi) of the 
proposed rule into two paragraphs. They appear in Sec.  
300.22(b)(5)(iii) and (iv) of this final rule.
    NMFS changed Sec.  300.22(b)(5)(v) to allow the Regional 
Administrator to remove a vessel from the Vessel Register if notified 
by either the United States Maritime Administration (MARAD) or the 
United States Coast Guard (USCG) that either the owner has submitted an 
application for transfer of the vessel to foreign registry and flag or 
that the documentation of the vessel will be or has been deleted for 
any reason. The failure to include MARAD in this provision in the 
proposed regulations was an oversight. NMFS made the change in the 
final rule because deletion of a vessel from U.S. documentation by the 
USCG can be immediate after MARAD provides its approval of the action.
    NMFS' policy and intention is to remove each vessel from the Vessel 
Register upon notification by MARAD or USCG that either agency has 
determined that all requirements for flag transfer have been met and 
the only step remaining is for USCG to complete final paperwork to 
delete U.S. documentation for that vessel. NMFS maintains this policy 
in order to prevent U.S. capacity from transferring with the vessel on 
the Vessel Register and increasing the capacity of the tuna purse seine 
fleet fishing in the ETP.
    In this final rule, NMFS added a new Sec.  300.22(b)(6) to clarify 
the process for removing vessels from the Vessel Register. According to 
the process, the Regional Administrator will promptly notify the vessel 
owner in writing of the removal of the vessel and the reasons for its 
removal. For vessel removals under Sec.  300.22(b)(5)(iii), the 
Regional Administrator will not accept a request to reinstate the 
vessel to the Vessel Register for the term of the permit sanction. For 
vessel removals under Sec.  300.22(b)(5)(iv), the Regional 
Administrator will not accept a request to reinstate the vessel to the 
Vessel Register until such time as payment is made on the penalty or 
penalty agreement, or other duration agreed upon between NOAA and the 
vessel owner. Section 300.22(b)(6) of the proposed rule is renumbered 
as Sec.  300.22(b)(7) in this final rule.
    NMFS clarified in Sec.  300.22(b)(7)(v) (formerly 300.22(b)(6)(v)) 
that an owner or managing owner may request that a vessel replace a 
vessel of equal or greater carrying capacity previously removed from 
active status on the Vessel Register by submitting the observer 
placement fee, vessel permit application, and permit application 
processing fee in accordance with Sec.  216.24(b). In addition, in 
order for the replacement vessel to be listed as active on the Vessel 
Register, the captain of the vessel must possess an operator permit 
issued under Sec.  216.24(b).

Classification

Executive Order 12866

    This final rule has been determined to be not ``significant'' under 
Executive Order 12866. NMFS prepared a Regulatory Impact Review (RIR)/
Final Regulatory Flexibility Analysis (FRFA) for this action, included 
as Appendix A to the Environmental Assessment (EA) prepared on the 
proposed regulations. The EA, including the FRFA, is available on the 
Internet at the following address: 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 a RIR/FRFA for 
this action, included as Appendix A to the EA. The purposes of this 
action were described earlier in the preamble to the proposed rule, 
published on October 29, 2004 (69 FR 63122).
    NMFS prepared an RIR/Initial Regulatory Flexibility Analysis (IRFA) 
for the proposed rule, which was described in the classification 
section of the preamble to the proposed rule. The public comment period 
ended on November 29, 2004. Comments received and NMFS responses 
thereto are contained in the preamble. No comments were received on the 
economic impacts of the rule.
    NMFS considered but rejected two alternatives to the preferred 
alternative which, (1) establishes a register of U.S. vessels with a 
history of fishing in the ETP prior to June 28, 2002, and requires only 
those vessels be authorized to purse seine for tuna in the ETP; (2) 
enables the National Marine Fisheries Service (NMFS) to maintain the 
Vessel Register annually, including to establish procedures for 
removing vessels for serious violations and to prevent U.S. capacity 
from increasing the regional capacity of the tuna purse seine fleet in 
the ETP; (3) limits the aggregate active capacity of U.S. purse seine 
vessels in the ETP to 8,969 mt per year; (4) revises the requirements 
for maintaining and submitting tuna tracking and verification records; 
(5) ensures owners of U.S. vessels on the Vessel Register pay annual 
assessments; (6) prohibits commerce in tuna or tuna products bearing a 
label or mark referring 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 (7) prohibits 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 first alternative NMFS analyzed and rejected was the ``no 
action'' alternative. This alternative would not have implemented 
recommendations of the IATTC member nations or resolutions adopted by 
the Parties to the Agreement on the IDCP. The second alternative NMFS 
considered and rejected was the ``variations of the preferred 
alternative'' alternative. 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. For example, under this alternative NMFS considered 
discretionary areas with respect to management of fleet capacity, such 
as:

[[Page 19007]]

 (1) limiting the annual aggregate active capacity of the U.S. purse 
seine vessels participating in the ETP tuna fishery to an amount less 
than 8,969 mt, (2) allowing all vessels owners to have an equal 
opportunity to be categorized as active on the Vessel Register from 
year to year regardless of the vessel's status in the prior year (i.e., 
there would be no incentive for a vessel being active in a prior year); 
and (3) not deterring against frivolous requests for vessels to be 
categorized as active on the Vessel Register.
    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. Adopting this alternative would provide a precedent for 
other nations to ignore future international recommendations. NMFS 
rejected the second alternative which would entail 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 the Parties to the 
Agreement.
    NMFS selected the preferred alternative, which imposes some new 
burdens on small entities. Specifically, the preferred alternative 
regulates several (i.e., one or two) small purse seine vessels (i.e., 
vessels of 400 st carrying capacity or less and classified as small 
business entities). Under the rule, several 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.
    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 will not 
significantly impact small business entities. However, the rule will 
impose some new or increased burdens to small businesses that will 
ensure NMFS' continued ability to verify the dolphin-safe status of 
tuna. These burdens are largely related to new tuna tracking and 
verification procedures and will affect importers, exporters, 
wholesalers/distributors and transshippers.
    NMFS selected the preferred alternative because it achieves NMFS' 
primary objectives to establish domestic measures consistent with 
international resolutions adopted by the IATTC and the Parties to the 
Agreement, as well as other procedural modifications that NMFS 
determined to be necessary after several years experience managing the 
U.S. tuna purse seine fleet in the ETP and implementing a domestic tuna 
tracking and verification program. Specifically, the preferred 
alternative both minimizes the potential for significant economic 
impacts to a variety of entities and implements measures to (1) 
establish a register of U.S. vessels with a history of fishing in the 
ETP prior to June 28, 2002, and require only those vessels be 
authorized to purse seine for tuna in the ETP; (2) enable NMFS to 
maintain the Vessel Register annually, including to establish 
procedures for removing vessels for serious violations and to prevent 
U.S. capacity from increasing the regional capacity of the tuna purse 
seine fleet in the ETP; (3) limit the aggregate active capacity of U.S. 
purse seine vessels in the ETP to 8,969 mt per year; (4) revise the 
requirements for maintaining and submitting tuna tracking and 
verification records; (5) ensure owners of U.S. vessels on the Vessel 
Register pay annual assessments; (6) prohibit commerce in tuna or tuna 
products bearing a label or mark referring 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 (7) 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.
    As discussed in previous paragraphs, the ``no action'' and 
``independent action'' alternatives were rejected because they would 
impose greater burdens than the preferred alternative and/or would not 
implement the seven measures stated above. Four specific examples of 
the burdens NMFS considered in selecting the preferred alternative 
follow. First, in selecting the preferred alternative NMFS provides 
reasons for removing vessels from the Vessel Register (e.g., the owner 
of the vessel is applying to transfer the vessel to a foreign flag, the 
vessel has sunk, etc.) in order to free up opportunities for other 
vessels to participate in the fishery. Second, the preferred 
alternative contains a deterrent for a vessel owner who requests to 
have a vessel listed as active on the Vessel Register but does not 
utilize that active status. Vessels for which these frivolous requests 
for active status were made would receive the lowest priority 
consideration for active status the following year, allowing other 
vessel owners to attain higher priority. Third, NMFS considered but 
rejected taking independent action to increase the length of time that 
records must be maintained by exporters, transshippers, importers, 
processors and wholesalers/distributors from 2 years to 3 years because 
this action would be overly burdensome to these entities. Fourth, NMFS 
considered but rejected taking independent action to decrease the 
length of time within which these entities are required to submit 
tracking and verification documentation to the Regional Administrator 
to less than 30 days. This action was rejected because NMFS found it 
would create an additional burden to these entities without 
substantially strengthening NMFS' ability to track and verify the 
dolphin-safe status of tuna.

Paperwork Reduction Act

    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) that were discussed in the 
proposed rule. In Section 216.93(f) of this final 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 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

[[Page 19008]]

data needed, and completing and reviewing the collection of 
information.
    Send written comments regarding this burden estimate, or any other 
aspect of this data collection, including suggestions for reducing the 
burden to NMFS (see ADDRESSES) and 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 action may affect listed species 
in a manner or to an extent not previously considered, nor do the final 
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 
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) for the 
proposed rule. NMFS did not receive any comments on the draft EA. As a 
result, NMFS prepared an EA for these final regulations and the 
Assistant 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 from NMFS (see ADDRESSES) or at: 
http://swr.nmfs.noaa.gov.

List of Subjects

50 CFR Part 216

    Fish, Marine mammals, Reporting and recordkeeping requirements.

50 CFR Part 300

    International fisheries regulations; Pacific tuna fisheries.

    Dated: April 5, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 216 and 300 are 
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. 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).
* * * * *

0
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.

0
4. In Sec.  216.24 paragraphs (b)(4) introductory text, (b)(6)(i), 
(b)(6)(iii), the introductory text to (f)(3), (f)(3)(ii) and (iii), 
(f)(4)(xi), (f)(4)(xiv) and (f)(12) are revised and a new (f)(3)(iv) is 
added to read as follows:


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

* * * * *
    (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 at any time 
if a different fee is determined in accordance with the NOAA Finance 
Handbook. The amount of the fee will be printed on the vessel permit 
application form provided by the Administrator, Southwest Region.
* * * * *
    (iii) Observer placement fee. The observer placement fee supports 
the placement of observers on individual vessels, and maintenance of 
the observer program, as established by the IATTC or other approved 
observer program.
    (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

[[Page 19009]]

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 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.* * *
    (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. 
FCOs submitted via mail should be sent to Tuna Tracking and 
Verification Program, Southwest Region, P.O. Box 32469, Long Beach, CA 
90832-2469. 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 Prohibitions. (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).
* * * * *

0
5. In Sec.  216.93, paragraphs (c)(5)(v), (e) and (f) are revised 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

[[Page 19010]]

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: 
FCOs and required certifications, any reports 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

0
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.


0
2. In Sec.  300.21 definitions for ``South Pacific Tuna Treaty'' and 
``Vessel Register'' are added to read as follows:


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.

0
3. In Sec.  300.22 the section heading and paragraph (b) is revised 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 400 st (362.8 mt) or less 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 resolutions of the IATTC, 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. For a vessel to be categorized as 
either ``active'' or ``inactive'' on the Vessel Register in the 
following calendar year, the vessel owner or managing owner must submit 
to the Regional Administrator under Sec.  216.24(b) of this title, the 
observer placement fee, vessel permit application, and permit 
application processing fee for the vessel.
    (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:

[[Page 19011]]

    (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. At any time during the year, a vessel owner or 
managing owner may request that a vessel qualified to be listed on the 
Vessel Register under paragraph (b)(2) of this section be categorized 
as inactive for the remainder of the calendar year by submitting to the 
Regional Administrator payment of the associated observer placement fee 
plus a 10 percent surcharge of the fee. 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 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) Following a final agency action on a permit sanction for a 
violation;
    (iv) For failure to pay a penalty or for default on a penalty 
payment agreement resulting from a final agency action for a violation; 
or
    (v) If the U.S. Maritime Administration or the U.S. Coast Guard 
notifies NMFS that:
    (A) The owner has submitted an application for transfer of the 
vessel to foreign registry and flag; or
    (B) The documentation for the vessel will be or has been deleted 
for any reason.
    (6) Process for Removal from the Vessel Register. When a vessel is 
removed from the Vessel Register under paragraph (b)(5) of this 
section, the Regional Administrator shall promptly notify the vessel 
owner in writing of the removal and the reasons therefor. For a removal 
from the Vessel Register under Sec.  300.22(b)(5)(iii), the Regional 
Administrator will not accept a request to reinstate the vessel to the 
Vessel Register for the term of the permit sanction. For a removal from 
the Vessel Register under Sec.  300.22(b)(5)(iv), the Regional 
Administrator will not accept a request to reinstate the vessel to the 
Vessel Register until such time as payment is made on the penalty or 
penalty agreement, or such other duration as NOAA and the vessel owner 
may agree upon.
    (7) Procedures for replacing vessels removed from the Vessel 
Register. (i) A vessel previously listed on the Vessel Register, but 
not included 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 plus a 10 percent surcharge of the fee.
    (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)(7)(iv) or (v) 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 to the Regional Administrator under Sec.  
216.24(b) of this title, the observer placement fee, vessel permit 
application, and permit application processing fee for the replacement 
vessel. The replacement vessel will be eligible to be categorized as 
active on the Vessel Register if it has a carrying capacity equal to or 
less than the vessel being replaced, and the captain of the replacement 
vessel possesses an operator permit under Sec.  216.24(b) of this 
title.
    (vi) The Regional Administrator will forward requests to replace 
vessels removed from the Vessel Register within 15 days of receiving 
each request.

[FR Doc. 05-7312 Filed 4-11-05; 8:45 am]
BILLING CODE 3510-22-S