[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Proposed Rules]
[Pages 20604-20611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07990]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 130221153-3153-01]
RIN 0648-BC78


Enhanced Document Requirements To Support Use of the Dolphin Safe 
Label on Tuna Products

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to revise regulations under the Dolphin 
Protection Consumer Information Act (DPCIA) to enhance the requirements 
for documentation to support labels on tuna products that represent the 
product as dolphin-safe. This proposed rule would modify the 
requirements for the certifications that must accompany the Fisheries 
Certificate of Origin (FCO); change storage requirements related to 
dolphin-safe and non-dolphin-safe tuna

[[Page 20605]]

on board fishing vessels; create new requirements for processors, other 
than tuna canners, of tuna product labeled dolphin-safe; and modify the 
reporting requirements associated with tracking domestic tuna canning 
and processing operations. This proposed rule is intended to better 
ensure dolphin-safe labels comply with the requirements of the DPCIA 
and to ensure that the United States satisfies its obligations as a 
member of the World Trade Organization (WTO).

DATES: Comments must be submitted in writing by May 6, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2013-0016, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0016, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Rodney R. McInnis, 
Regional Administrator, NMFS Southwest Regional Office, 501 W. Ocean 
Blvd., Suite 4200, Long Beach, CA 90802.
     Fax: 562-980-4047, Attn: Rodney R. McInnis.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the NMFS Southwest Region (SWR) and 
by email to [email protected], or faxed to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: William Jacobson, NMFS SWR, 562-980-
4035.

SUPPLEMENTARY INFORMATION:

Background

    Enacted in 1990, the DPCIA (16 U.S.C. 1385) established a dolphin-
safe labeling standard for tuna products. The law addressed a 
Congressional finding that ``consumers would like to know if the tuna 
they purchase is falsely labeled as to the effect of the harvesting of 
the tuna on dolphins.'' The DPCIA sets out minimum criteria for when 
tuna product producers, importers, exporters, distributors, or sellers 
may label their product dolphin-safe or with any other similar term or 
symbol suggesting that the tuna contained in the product were harvested 
using a method of fishing that is not harmful to dolphins. 
Specifically, the DPCIA prohibits producers, importers, exporters, 
distributers, or sellers from labeling as dolphin-safe any tuna product 
that was harvested: (i) ``on the high seas by a vessel engaged in 
driftnet fishing,'' (ii) in the eastern tropical Pacific Ocean (ETP) by 
purse seine vessels with a carrying capacity of 400 short tons or 
greater unless accompanied by a captain's statement and observer's 
statement that no dolphins were intentionally encircled during the trip 
and no dolphins were killed or seriously injured during the set, or 
(iii) outside the ETP by purse seine vessels unless the captain 
certifies that no dolphins were intentionally encircled during the trip 
(16 U.S.C. 1385(d)(1)). The ETP is defined as the waters of the Pacific 
Ocean bounded by 40[Egr] N. latitude, 40[Egr] S. latitude, 160[Egr] W. 
longitude and the coastlines of North, Central and South America (50 
CFR 216.3).
    In addition to the above, if the Secretary of Commerce identifies a 
purse seine fishery that has a regular and significant association 
between dolphins and tuna similar to the ETP, then tuna products 
containing tuna harvested in such a fishery may not be labeled dolphin-
safe, unless a captain and observer certify that no dolphins were 
killed or seriously injured in the sets in which the tuna were 
harvested (16 U.S.C. 1385(d)(1)(B)(i)). Furthermore, if the Secretary 
of Commerce identifies any other fishery that has a regular and 
significant association between dolphins and tuna, then tuna products 
containing tuna harvested in such a fishery may not be labeled dolphin-
safe, unless a captain and observer (if NOAA Fisheries determines that 
an observer statement would be ``necessary'') certify that no dolphins 
were killed or seriously injured in the sets or other gear deployments 
in which the tuna were harvested (16 U.S.C. 1385(d)(1)(D)).
    The minimum standards described above apply to any tuna product 
labeled dolphin-safe. The DPCIA further directs the Secretary of 
Commerce to develop an ``official mark'' that may be used to label tuna 
products as dolphin safe under 16 U.S.C. 1385(d)(3)(A), and requires 
that tuna product labeled dolphin-safe using other than the official 
mark may be used only if the tuna were harvested during a set or other 
gear deployment in which no dolphin was killed or seriously injured, 
regardless of the area of harvest or the type of gear used (16 U.S.C. 
1385(d)(3)(C)(i)). Finally, NOAA Fisheries has broad authority to issue 
regulations to implement the DPCIA, including specifically the 
authority to establish a domestic tracking and verification program 
that provides for the tracking of tuna labeled dolphin-safe (whether 
using the official mark or any other mark) and to adjust such 
regulations as appropriate to implement an international tracking and 
verification program (16 U.S.C. 1385(f)).
    Under current regulations, an FCO is required to accompany each 
importation of tuna product and is required to be submitted to NOAA 
Fisheries. The dolphin-safe status of the importation is declared on 
the FCO by the exporter and is endorsed by the importer. For tuna 
caught by ETP large purse seine vessels, current regulations require, 
as a condition of labeling tuna dolphin-safe, that the importer attach 
a certification from the captain and an observer on board the vessel 
that no dolphins were killed or seriously injured in the sets in which 
the tuna were caught, and that no purse seine net was intentionally 
deployed on or used to encircle dolphins during the fishing trip in 
which the tuna were caught. For vessels using purse seine gear outside 
the ETP, current regulations require, as a condition of labeling tuna 
dolphin-safe, that the importer attach a certification from the captain 
that no purse seine net was intentionally deployed on or used to 
encircle dolphins during the fishing trip in which the tuna were 
caught. Also under current regulations, domestic tuna canners are 
required to submit to NOAA Fisheries monthly reports, which include the 
pertinent information found on an FCO, as well as additional vessel and 
transshipment information not found on an FCO, for all tuna received at 
the plant.
    In 2008, Mexico initiated WTO dispute settlement proceedings 
challenging the U.S. dolphin-safe labeling scheme as a violation of 
provisions of the WTO's General Agreement on Tariffs and Trade 1994 and 
Agreement on Technical Barriers to

[[Page 20606]]

Trade (TBT Agreement). Mexico challenged three U.S. measures: the 
DPCIA, Department of Commerce DPCIA regulations (50 CFR 216.91 through 
216.92), and a federal court decision (Earth Island Institute v. 
Hogarth, 494 F.3d 757 (9th Cir. 2007)). The challenged measures 
establish conditions under which tuna products may voluntarily be 
labeled dolphin-safe. On June 13, 2012, the WTO Dispute Settlement Body 
(DSB) adopted the WTO panel and Appellate Body reports finding that the 
U.S. dolphin-safe labeling scheme (including the regulations that would 
be amended in this proposed rule) accords less favorable treatment to 
Mexican tuna products and therefore is inconsistent with Article 2.1 of 
the TBT Agreement. This conclusion was based on a finding that the U.S. 
measures did not set conditions for use of the label in a way that 
reflects the risks faced by dolphins in different oceans.

Proposed Action

    This proposed rule would revise regulations at 50 CFR 216.91, to 
impose additional requirements regarding certifications to support the 
labeling of tuna products as dolphin-safe. This proposed rule would 
better ensure dolphin-safe labels comply with the requirements of the 
DPCIA, and would ensure conformity with U.S. WTO obligations by 
addressing the WTO Dispute Settlement Body's ruling. If adopted, this 
rule would require, as a condition of labeling tuna dolphin-safe, that 
the captain of the vessel and, where applicable, either a qualified and 
authorized observer or an authorized representative of a nation 
participating in the observer program on board the vessel, certify that 
no dolphins were killed or seriously injured in the sets or other gear 
deployments in which the tuna were caught. In addition, for vessels 
using purse seine gear outside the ETP, the rule would require, if 
applicable, the observer or an authorized representative of a nation 
participating in the observer program to certify that no purse seine 
net was intentionally deployed on or used to encircle dolphins during 
the fishing trip in which the tuna were caught as a condition of 
labeling the tuna dolphin-safe.
    This proposed rule would also revise regulations at 50 CFR 216.93 
to change storage requirements related to dolphin-safe and non-dolphin-
safe tuna on board fishing vessels; to create requirements for 
processors, other than tuna canners, of tuna product labeled dolphin-
safe; and to include modifications to a monthly receipts report that 
domestic tuna canners currently submit to NMFS.

Dolphin-safe Labeling Standards

    Under current regulations at 50 CFR 216.91(a), statements and/or 
certifications must accompany any tuna product labeled dolphin-safe 
that includes tuna harvested: by a large purse seine vessel (greater 
than 400 short tons (362.8 metric tons (mt)) carrying capacity) in the 
ETP; by a purse seine vessel of any size outside of the ETP; or in any 
other fishery, identified by the Secretary of Commerce, where there is 
regular and significant mortality or serious injury of dolphins.
    The Secretary of Commerce has not determined, to date, that any 
other fishery has a regular and significant association between 
dolphins and tunas similar to the association between dolphins and tuna 
in the ETP, or regular and significant mortality or serious injury of 
dolphins, and therefore NOAA Fisheries has not imposed the additional 
requirements for captain's and (where applicable) observer's statements 
described in paragraphs (d)(1)(B)(i) and (d)(1)(D) of the DPCIA. 
Furthermore, while paragraph (d)(3)(C)(i) of the DCPIA forbids the use 
of alternative dolphin-safe marks on any tuna product harvested during 
a gear deployment in which dolphins were killed or seriously injured, 
current regulations do not require a captain's or observer's statement 
to document that no such mortality or injury has occurred. The proposed 
changes are intended to better ensure consistency with the requirements 
of the DPCIA, and to ensure conformity with U.S. WTO obligations. This 
rule is issued under the Secretary's broad regulatory authority to 
implement the DPCIA and particularly to implement a domestic tuna 
tracking and verification program (see paragraph (f) of the DPCIA, 16 
U.S.C. Sec.  1385(f)) to ensure that tuna is not falsely labeled as to 
the effect of harvesting of the tuna on dolphins. It would expand the 
current requirement that captains, and in some cases observers, provide 
a statement that ``no dolphins were killed or seriously injured'' for 
all tuna product labeled dolphin-safe, not just tuna harvested by large 
purse seine in the ETP. NMFS proposes to revise 50 CFR 216.91(a) to 
require that for all tuna product labeled dolphin-safe (other than that 
harvested by large ETP purse seine vessels or vessels engaged in large-
scale driftnet fishing, which would remain subject to current 
requirements): (1) The captain of the vessel harvesting tuna provide a 
statement that no dolphins were killed or seriously injured in the sets 
or other gear deployments in which the tuna were caught; (2) an 
authorized and qualified observer on board the vessel (if any) or an 
authorized representative of the nation participating in an authorized 
and qualified observer program (if any) provide a statement that no 
dolphins were killed or seriously injured in the sets or other gear 
deployments in which the tuna were caught and, if applicable, no purse 
seine net was intentionally deployed on or used to encircle dolphins 
during the fishing trip in which the tuna were caught; and (3) tuna 
caught in sets or other gear deployments designated as dolphin-safe be 
stored separately from tuna caught in non-dolphin-safe sets or other 
gear deployments from the time of capture through unloading.
    NMFS will identify fisheries that are monitored by on-board 
observers participating in a national or international observer program 
that the Assistant Administrator, NOAA, has determined are qualified 
and authorized by the program authority to certify that no dolphins 
were killed or seriously injured in the sets or other gear deployments 
in which the tuna were caught. The Assistant Administrator's 
determination will be announced publicly through a notice published in 
the Federal Register and also on the NMFS Southwest Region Web site at 
http://swr.nmfs.noaa.gov. Only tuna harvested on fishing trips 
beginning after the effective date of the final rule will be subject to 
the new requirements for captain and, where applicable, observer 
statements. These new information collections (i.e., all the new 
statements and certifications), will become effective only after review 
and approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
    Any producer, importer, exporter, distributor, or seller of tuna 
product labeled under these proposed regulations would be subject to 
enforcement under section 5 of the Federal Trade Commission Act for 
including a dolphin-safe label on tuna product in the United States 
that fails to meet the standards for use of a dolphin-safe label as set 
forth in paragraph (d) of the DPCIA, 16 USC Sec.  1385(d). Furthermore, 
the violations of the requirements under this proposed rule are 
enforceable under 18 U.S.C. 1001(a), which authorizes the imposition of 
penalties including fines or imprisonment for anyone who knowingly and 
willfully (1) falsifies, conceals, or covers up by any trick, scheme, 
or device a material fact; (2) makes any materially false, fictitious, 
or

[[Page 20607]]

fraudulent statement or representation; or (3) makes or uses any false 
writing or document knowing the same to contain any materially false, 
fictitious, or fraudulent statement or entry.

Tracking and Verification Program

    NMFS proposes to revise the regulations at 50 CFR 216.93 governing 
the tuna tracking and verification as it relates to U.S. citizens and 
U.S. vessels. First, this rule would remove the words ``purse seine'' 
from the introductory paragraph of 50 CFR 216.93, because all tuna 
included, or intended to be included, in tuna product labeled dolphin-
safe are subject to the requirements, not only tuna harvested using the 
purse seine fishing method.
    NMFS also proposes adding a paragraph heading to 50 CFR 
216.93(c)(1) to clarify that proposed subparagraphs under 50 CFR 
216.93(c)(1) pertain to ETP large purse seine vessels. NMFS proposes to 
redesignate 50 CFR 216.93(c)(1) as paragraph 216.93(c)(1)(i), and to 
revise the paragraph by removing the words ``ETP fishing trips'' and 
inserting instead the phrase ``fishing trips, any part of which 
included fishing in the ETP,'' to clarify the meaning of ``ETP fishing 
trip.'' This rule would require that tuna product labeled dolphin-safe 
in the United States that was harvested by purse seine gear anywhere 
(other than large purse seine vessels in the ETP, which would remain 
subject to the current regulations), be stored separately from tuna 
caught in non-dolphin-safe sets from the time of capture through 
unloading. Under this rule, tuna caught in sets where a dolphin died or 
was seriously injured must be stored in a well designated for that trip 
as non-dolphin-safe by the captain or, where applicable, by a qualified 
and authorized observer under Sec.  216.91. Any tuna loaded into a well 
previously designated on the trip as non-dolphin-safe would be 
considered non-dolphin-safe tuna. The captain or a qualified and 
authorized observer under Sec.  216.91 would change the designation of 
a dolphin-safe well to non-dolphin-safe if any tuna loaded into the 
well were captured in a set in which a dolphin died or was seriously 
injured. If a purse seine vessel has only one storage well, then the 
rule would require the use of netting or other material to keep 
dolphin-safe tuna and non-dolphin-safe tuna physically separate. NMFS 
is seeking comments from the industry on this concept of physically 
separating dolphin-safe tuna and non-dolphin-safe tuna through the use 
of netting or other material on purse seine vessels with only one 
storage well.
    The proposed rule would require tuna offloaded to trucks, storage 
facilities, or carrier vessels to be loaded or stored in such a way as 
to maintain and safeguard the identification of the dolphin-safe or 
non-dolphin-safe designation of the tuna as it left the fishing vessel. 
NMFS does not expect a significant cost burden increase to operators of 
trucks, storage facilities, or carrier vessels in order to keep 
dolphin-safe tuna and non-dolphin-safe tuna separate, as the industry 
already uses methods (e.g., the use of netting, tarps, or separate 
totes or storage containers) to keep offloaded tuna sourced from 
different suppliers separate. Revisions to 50 CFR 216.93(c) are 
intended to better ensure that dolphin-safe related requirements are 
met.
    NMFS proposes to revise the regulations that pertain to tuna 
harvested by vessels other than purse seine vessels, at 50 CFR 
216.93(c)(3). This rule would require that tuna caught in sets or other 
gear deployments designated as dolphin-safe to be stored separately 
from tuna caught in non-dolphin-safe sets or other gear deployments 
from the time of capture through unloading. Tuna caught in sets or 
other gear deployments where a dolphin died or was seriously injured 
would be considered non-dolphin-safe tuna, and would be required to be 
kept physically separate from the dolphin-safe tuna by using netting, 
other material, or separate storage areas. The rule would require tuna 
offloaded to trucks, storage facilities, or carrier vessels to be 
loaded or stored in such a way as to maintain and safeguard the 
identification of the dolphin-safe or non-dolphin-safe designation of 
the tuna as it left the fishing vessel. The new requirements in 50 CFR 
216.93(c)(3) are intended to better ensure that dolphin-safe related 
requirements are met.
    NMFS proposes to remove the words ``ETP caught'' from 50 CFR 
216.93(d)(1), so as not to limit tracking of domestic cannery 
operations to only ETP harvested tuna and tuna products.
    Other proposed revisions include modifications to the monthly 
receipts report domestic canners submit under 50 CFR 216.93(d)(2)(i). 
This proposed rule would require the report to: (1) declare whether the 
tuna is eligible to be labeled dolphin-safe; (2) include the gear type 
of the harvesting method; and (3) enclose certifications required by 50 
CFR 216.91 when the processor indicates the tuna is eligible to be 
labeled dolphin-safe under 50 CFR 216.91. These revisions are subject 
to review and approval by OMB under the PRA, 44 U.S.C. 3501 et seq.
    NMFS also proposes to add requirements at 50 CFR 216.93(e) for tuna 
processors, other than tuna canners, to submit to NOAA monthly receipt 
reports: (1) Declaring whether the tuna is eligible to be labeled 
dolphin-safe; (2) identifying the gear type of the harvesting method; 
and (3) enclosing certifications required by 50 CFR 216.91 when the 
processor indicates the tuna is eligible to be labeled dolphin-safe 
under 50 CFR 216.91. These provisions would impose similar requirements 
on both tuna canners and other tuna processors. As with the new 
reporting requirements for tuna canners, these revisions are subject to 
review and approval by OMB under the PRA, 44 U.S.C. 3501 et seq. As a 
result of the insertion of this new paragraph, existing paragraphs at 
50 CFR 216.93(e), (f), and (g) are proposed to be redesignated to 
paragraphs 50 CFR 216.93(f), (g), and (h).

Fisheries Certificates of Origin and Associated Certifications

    To import tuna, tuna products, and certain other fish products into 
the United States, current regulations at 50 CFR 216.24(f)(3)(i) and 
(ii) require FCOs and associated certifications to be submitted to both 
U.S. Customs and Border Protection (CBP; Department of Homeland 
Security) and NMFS Southwest Region. The proposed changes in the 
dolphin-safe documentation requirements described above would also 
require NOAA to revise the FCOs. Specifically, the FCOs would direct 
importers to attach a captain's statement and, where applicable, a 
statement either by the observer or an authorized representative of a 
nation participating in the observer program, using information from 
the observer, certifying that no dolphins were killed or seriously 
injured in the sets or other gear deployments in which the tuna were 
caught, for: (1) Tuna not harvested with a purse seine net; (2) tuna 
harvested with a purse seine net outside the ETP; and (3) tuna 
harvested in the ETP by a purse seine vessel having a carrying capacity 
of 400 short tons (362.8 mt) or less. The revisions to the FCOs are 
subject to review and approval by OMB under the PRA, 44 U.S.C. 3501 et 
seq.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the DPCIA and other applicable laws, subject to 
further consideration after public comment.
    This rule has been determined to be not significant for the 
purposes of E.O.

[[Page 20608]]

12866 by the OMB Office of Information and Regulatory Affairs.
    Pursuant to 5 U.S.C. 605, part of the Regulatory Flexibility Act 
(RFA; 5 U.S.C. chapter 5), the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA) that this proposed rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The basis for this certification is presented 
in the following paragraphs.

Description of Affected Entities and Small Entities

    For purposes of the RFA, we assess the effects of the proposed 
regulations to three classes of entities: (1) Owners of U.S. tuna 
fishing vessels where the harvested tuna is labeled dolphin-safe and is 
sold in the United States; (2) U.S. tuna processors; and (3) importers 
of tuna and tuna products labeled dolphin-safe. We used the SBA's size 
standards established at 13 CFR part 121 to define the affected small 
entities: fishing vessels, tuna processors, and tuna importers. Using 
those standards, fishing vessels with less than $4 million in average 
annual receipts, tuna processors with fewer than 500 employees, and 
importers with fewer than 100 employees are considered small entities.
    U.S. purse seine vessels that fish for tuna destined to become tuna 
product are divided into two size groups: (1) Vessels greater than 400 
st (362.8 mt) carrying capacity (``large'' vessels); and (2) vessels of 
400 st (362.8 mt) carrying capacity or less (``small'' vessels). Large 
vessels typically exceed $4 million in annual receipts, whereas small 
vessels have less than $4 million in annual receipts and would be 
considered small entities. From 2011--2012, the U.S. purse seine fleet, 
all of which fished in the Pacific Ocean, averaged 39 large vessels and 
7 small vessels. About 1,930 U.S. non-purse seine commercial fishing 
vessels are authorized to fish for tuna in the Pacific Ocean per year, 
including: (1) vessels under Pacific Highly Migratory Species vessel 
permits (about 1,766 vessels); and (2) vessels based in Hawaii and the 
U.S. Pacific Islands, under High Seas Fishing Compliance Act permits 
(about 175 vessels). All of these are considered small entities in this 
analysis, and have less than $4 million in annual receipts.
    There are 19 tuna canning manufacturers in the United States. Of 
these, 16 are considered small businesses, because they have fewer than 
500 employees.
    NMFS is unaware of any domestic tuna processor, other than canning 
operations, that labels tuna product as dolphin-safe.
    There are an estimated 430 U.S. importers of tuna and tuna products 
per year. Of these, about 380 importers are considered small 
businesses, because they have fewer than 100 employees.

Impacts on Affected Entities

    The proposed rule, if implemented, would apply additional 
documentation requirements to all three classes of affected entities; 
none of these reporting requirements would result in a significant 
economic effect. The time needed to gather and submit a written 
statement by the captain of the harvesting vessel and by the observer 
on board the vessel or by an authorized representative, if applicable, 
would be minimal (about 5 minutes each). An additional cost to provide 
the written statements would be about $0.10 for each one page written 
statement. Moreover, any additional costs to any entity resulting from 
this rule will be small (e.g. the cost associated with two pieces of 
netting or tarps, etc. for use in storage separation). Accordingly, as 
it pertains to the RFA, this rule will not have a significant economic 
impact on a substantial number of small entities. As a result, an 
initial regulatory flexibility analysis is not required and none has 
been prepared.
    This proposed rule contains two collection-of-information 
requirements subject to review and approval by OMB under the PRA under 
control numbers 0648-0335 and 0648-0387. Revision of OMB control number 
0648-0335, titled ``Fisheries Certificate of Origin,'' if approved, 
modifies the dolphin-safe status section of the FCO. The labor and cost 
burden due to this proposed rule on control number 0648-0335 is 
estimated to affect approximately 13,000 responses annually from 430 
respondents. The cost and labor burdens are estimated to increase by 
$0.30 and 5 minutes respectively, per response. Revision of OMB control 
number 0648-0387, titled ``International Dolphin Conservation 
Program,'' if approved, requires information from tuna canners and tuna 
processors, other than canners, about the eligibility of tuna to be 
labeled dolphin-safe; the gear type used to harvest the tuna; and will 
contain certifications required by 50 CFR 216.91. The labor and cost 
burden due to this proposed rule on control number 0648-0387 is 
estimated to affect approximately 72 responses annually from 19 
respondents. The cost and labor burdens are estimated to increase by 
$0.50 and 5 minutes respectively, per response. These collections have 
been submitted to OMB for approval. Public reporting burden estimates 
include the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection information.
    Public comment is sought regarding: whether this proposed 
collection-of-information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection-of-
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection-of-information to NMFS 
Southwest Region at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall 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.

List of Subjects in 50 CFR Part 216

    Commercial fisheries, Food labeling, Imports, Marine mammals, 
Reporting and recordkeeping requirements, Seafood.

    Dated: April 2, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 216, subpart H 
is proposed to be amended as follows:

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

0
1. The authority citation for 50 CFR part 216, subpart H, continues to 
read as follows:

    Authority: 16 U.S.C. 1385

0
2. In Sec.  216.91, revise paragraphs (a)(2)(ii) and (a)(4), and add a 
new paragraph (a)(5) to read as follows:


Sec.  216.91  Dolphin-safe labeling standards.

    (a) * * *
    (2) * * *

[[Page 20609]]

    (ii) In any other fishery unless the products are accompanied as 
described in Sec.  216.93(d), (e), or (f), as appropriate, by:
    (A) A written statement executed by the Captain of the vessel 
certifying that no purse seine net was intentionally deployed on or 
used to encircle dolphins during the fishing trip in which the tuna 
were caught, and that no dolphins were killed or seriously injured in 
the sets in which the tuna were caught; and
    (B) Where the Assistant Administrator has determined that observers 
participating in a national or international observer program are 
qualified and authorized to certify that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
fishing trip in which the tuna were caught, and that no dolphins were 
killed or seriously injured in the sets in which the tuna were caught, 
and where such an observer is on board the vessel, a written statement 
executed by the observer, or by an authorized representative of a 
nation participating in the observer program based on information from 
the observer, certifying that no purse seine net was intentionally 
deployed on or used to encircle dolphins during the fishing trip in 
which the tuna were caught and that no dolphins were killed or 
seriously injured in the sets in which the tuna were caught. Any 
determination by the Assistant Administrator shall be announced in a 
notice published in the Federal Register. Determinations under this 
paragraph (a)(2)(ii)(B) will also be publicized on the Web site of the 
NMFS Southwest Region (http://swr.nmfs.noaa.gov/).
* * * * *
    (4) Other fisheries. By a vessel in a fishery other than one 
described in paragraphs (a)(1) through (a)(3) of this section unless 
such product is accompanied as described in Sec.  216.93(d), (e), or 
(f), as appropriate, by:
    (i) A written statement executed by the Captain of the vessel 
certifying that no dolphins were killed or seriously injured in the 
sets or other gear deployments in which the tuna were caught;
    (ii) Where the Assistant Administrator has determined that 
observers participating in a national or international observer program 
are qualified and authorized to certify that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught, and where such an observer is on board the vessel, a 
written statement executed by the observer, or by an authorized 
representative of a nation participating in the observer program based 
on information from the observer, certifying that no dolphins were 
killed or seriously injured in the sets or other gear deployments in 
which the tuna were caught. Any determination by the Assistant 
Administrator shall be announced in a notice published in the Federal 
Register. Determinations under this subparagraph will also be 
publicized on the Web site of the NMFS Southwest Region (http://swr.nmfs.noaa.gov/); and
    (iii) In addition to the requirements of paragraphs (a)(4)(i) and 
(ii) of this section, in any other fishery that is identified by the 
Assistant Administrator as having a regular and significant mortality 
or serious injury of dolphins, a written statement executed by an 
observer participating in a national or international program 
acceptable to the Assistant Administrator, that no dolphins were killed 
or seriously injured in the sets or other gear deployments in which the 
tuna were caught, provided that the Assistant Administrator determines 
that such an observer statement is necessary.
    (5) All fisheries. On a fishing trip during which any dolphin was 
killed or seriously injured, unless the tuna labeled dolphin-safe was 
caught in a set or other gear deployment was stored separately from 
tuna caught in non-dolphin-safe sets or other gear deployments by the 
use of netting, other material, or separate storage areas from the time 
of capture through unloading. If a purse seine vessel has more than one 
well used to store tuna, all tuna inside a well shall be considered 
non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into 
the well, regardless of the use of netting or other material inside the 
well.
* * * * *
0
3. Section 216.93 is revised to read as follows:


Sec.  216.93  Tracking and verification program.

    The Administrator, Southwest Region, has established a national 
tracking and verification program to accurately document the dolphin-
safe condition of tuna, under the standards set forth in Sec. Sec.  
216.91 and 216.92. The tracking program includes procedures and reports 
for use when importing tuna into the United States and during U.S. 
fishing, processing, and marketing in the United States and abroad. 
Verification of tracking system operations is attained through the 
establishment of audit and document review requirements. The tracking 
program is consistent with the international tuna tracking and 
verification program adopted by the Parties to the Agreement on the 
IDCP.
    (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in 
the ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing a unique 
number assigned to that trip, are used by the observer to record every 
set made during that trip. One TTF is used to record dolphin-safe sets 
and a second TTF is used to record non-dolphin-safe sets. The 
information entered on the TTFs following each set includes the date, 
well number, weights by species composition, estimated tons loaded, and 
additional notes, if any. The observer and the vessel engineer initial 
the entry as soon as possible following each set, and the vessel 
captain and observer review and sign both TTFs at the end of the 
fishing trip certifying that the information on the forms is accurate. 
TTFs are confidential official documents of the IDCP, consistent with 
Article XVIII of the Agreement on the IDCP, and the Agreement on the 
IDCP Rules of Confidentiality.
    (b) Dolphin-safe certification. Upon request, the Office of the 
Administrator, Southwest Region, will provide written certification 
that tuna harvested by U.S. purse seine vessels greater than 400 st 
(362.8 mt) carrying capacity is dolphin-safe, but only if NMFS' review 
of the TTFs for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of 
the Agreement on the IDCP and U.S. law.
    (c) Tracking fishing operations. (1) ETP large purse seine vessel. 
In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) 
carrying capacity:
    (i) During fishing trips, any part of which included fishing in the 
ETP, by purse seine vessels greater than 400 st (362.8 mt) carrying 
capacity, tuna caught in sets designated as dolphin-safe by the vessel 
observer must be stored separately from tuna caught in non-dolphin-safe 
sets from the time of capture through unloading. Vessel personnel will 
decide into which wells tuna will be loaded. The observer will 
initially designate whether each set is dolphin-safe or not, based on 
his/her observation of the set. The observer will initially identify a 
vessel fish well as dolphin-safe if the first tuna loaded into the well 
during a trip was captured in a set in which no dolphin died or was 
seriously injured. The observer will initially identify a vessel fish 
well as non-dolphin-safe if the first tuna loaded into the well during 
a trip was captured in a set in which a dolphin died or was

[[Page 20610]]

seriously injured. Any tuna loaded into a well previously designated 
non-dolphin-safe is considered non-dolphin-safe tuna. The observer will 
change the designation of a dolphin-safe well to non-dolphin-safe if 
any tuna are loaded into the well that were captured in a set in which 
a dolphin died or was seriously injured.
    (ii) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel greater than 400 st (362.8 mt) returning to port from a 
trip, any part of which included fishing in the ETP, must provide at 
least 48 hours' notice of the vessel's intended place of landing, 
arrival time, and schedule of unloading to the Administrator, Southwest 
Region.
    (iii) If the trip terminates when the vessel enters port to unload 
part or all of its catch, new TTFs will be assigned to the new trip, 
and any information concerning tuna retained on the vessel will be 
recorded as the first entry on the TTFs for the new trip. If the trip 
is not terminated following a partial unloading, the vessel will retain 
the original TTFs and submit a copy of those TTFs to the Administrator, 
Southwest Region, within 5 working days. In either case, the species 
and amount unloaded will be noted on the respective originals.
    (iv) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (v) The handling of TTFs and the tracking and verification of tuna 
caught in the Convention Area by a U.S. purse seine vessel greater than 
400 st (362.8 mt) carrying capacity shall be conducted consistent with 
the international tuna tracking and verification program adopted by the 
Parties to the Agreement on the IDCP.
    (2) Purse seine vessel other than ETP large purse seine vessel. 
This paragraph (c)(2) applies to tuna product labeled dolphin-safe that 
includes tuna harvested in the ETP by a purse seine vessel of 400 st 
(362.8 mt) or less carrying capacity or by a purse seine vessel outside 
the ETP of any carrying capacity.
    (i) Tuna caught in sets designated as dolphin-safe must be stored 
separately from tuna caught in non-dolphin-safe sets from the time of 
capture through unloading. Tuna caught in sets where a dolphin died or 
was seriously injured must be stored in a well designated as non-
dolphin-safe by the captain or, where applicable, by a qualified and 
authorized observer under Sec.  216.91. Any tuna loaded into a well 
previously designated non-dolphin-safe is considered non-dolphin-safe 
tuna. The captain or, where applicable, a qualified and authorized 
observer under Sec.  216.91, will change the designation of a dolphin-
safe well to non-dolphin-safe if any tuna are loaded into the well that 
were captured in a set in which a dolphin died or was seriously 
injured. If a purse seine vessel has only one well used to store tuna, 
dolphin-safe tuna must be kept physically separate from non-dolphin-
safe tuna by using netting or other material. If a purse seine vessel 
has more than one well used to store tuna, all tuna inside a well shall 
be considered non-dolphin-safe, if at any time non-dolphin-safe tuna is 
loaded into the well, regardless of the use of netting or other 
material inside the well.
    (ii) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (3) Other vessels. This paragraph (c)(3) applies to tuna product 
labeled dolphin-safe that includes tuna harvested by a vessel other 
than ones described in paragraphs (c)(1) or (c)(2) of this section:
    (i) Tuna caught in sets or other gear deployments designated as 
dolphin-safe must be stored separately from tuna caught in non-dolphin-
safe sets or other gear deployments from the time of capture through 
unloading. Dolphin-safe tuna must be kept physically separate from non-
dolphin-safe tuna by using netting, other material, or separate storage 
areas. The captain or, where applicable, a qualified and authorized 
observer under Sec.  216.91, must designate the storage areas for 
dolphin-safe and non-dolphin-safe tuna.
    (ii) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning 
company in the 50 states, Puerto Rico, or American Samoa receives a 
domestic or imported shipment of tuna for processing, a NMFS 
representative may be present to monitor delivery and verify that 
dolphin-safe and non-dolphin-safe tuna are clearly identified and 
remain segregated. Such inspections may be scheduled or unscheduled, 
and canners must allow the NMFS representative access to all areas and 
records.
    (2) Tuna processors must submit a report to the Administrator, 
Southwest Region, of all tuna received at their processing facilities 
in each calendar month whether or not the tuna is actually canned or 
stored during that month. Monthly cannery receipt reports must be 
submitted electronically or by mail before the last day of the month 
following the month being reported. Monthly reports must contain the 
following information:
    (i) Domestic receipts: whether the tuna is eligible to be labeled 
dolphin-safe under Sec.  216.91, species, condition (round, loin, 
dressed, gilled and gutted, other), weight in short tons to the fourth 
decimal, ocean area of capture (ETP, western Pacific, Indian, eastern 
and western Atlantic, other), catcher vessel, gear type, trip dates, 
carrier name, unloading dates, and location of unloading. Where the 
processor indicates the tuna is eligible to be labeled dolphin-safe 
under Sec.  216.91, it must enclose the certifications required by that 
section.
    (ii) Import receipts: In addition to the information required in 
paragraph (d)(2)(i) of this section, a copy of the FCO for each 
imported receipt must be provided.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-caught tuna that were immediately utilized upon receipt or removed 
from cold storage. This report may be submitted in conjunction with the 
monthly report required in paragraph (d)(2) of this section. This 
report must contain:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (4) During canning activities, non-dolphin-safe tuna may not be 
mixed in any manner or at any time during processing with any dolphin-
safe tuna or tuna products and may not share the same storage 
containers, cookers, conveyers, tables, or other canning and labeling 
machinery.
    (e) Tracking processor operations other than cannery operations. 
U.S. tuna processors other than cannery operations engaged in 
processing tuna products, including frozen, dried, or smoked tuna 
products, must submit a report to the Administrator, Southwest Region 
that includes the information set out in paragraphs (d)(2) and (d)(3) 
of this section on a monthly basis for all tuna received at their 
processing

[[Page 20611]]

facilities that will be included in any tuna product labeled dolphin-
safe.
    (f) Tracking imports. All tuna products, except fresh tuna, that 
are imported into the United States must be accompanied as described in 
Sec.  216.24(f)(3) 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 10 calendar days of the 
shipment's entry into the commerce of the United States as required by 
Sec.  216.24(f)(3)(ii).
    (g) 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), (d) and (e) of this section, invoices, other import 
documents, and trip reports.
    (2) Record submission. Within 10 calendar days of receiving a 
shipment of tuna or tuna products, any exporter, transshipper, 
importer, processor, or 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.
    (h) Confidentiality of proprietary information. Information 
submitted to the Assistant Administrator under this section will be 
treated as confidential in accordance with NOAA Administrative Order 
216-100 ``Protection of Confidential Fisheries Statistics.''
[FR Doc. 2013-07990 Filed 4-4-13; 8:45 am]
BILLING CODE 3510-22-P