[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Rules and Regulations]
[Pages 40997-41004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16508]



[[Page 40997]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 130221153-3572-02]
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: Final rule.

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SUMMARY: NMFS issues this final rule 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 rule modifies the 
requirements for the certifications that must accompany the Fisheries 
Certificate of Origin (FCO); changes storage requirements related to 
dolphin-safe and non-dolphin-safe tuna on board fishing vessels; 
modifies the reporting requirements associated with tracking domestic 
tuna canning and processing operations; and creates other new 
requirements for processors, other than tuna canners, of tuna product 
labeled dolphin-safe. This 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: This rule becomes effective on July 13, 2013.

ADDRESSES: Copies of the proposed and final rules for this action are 
available via the Federal e-Rulemaking portal, at http://www.regulations.gov, and are also available from the Acting Director, 
NMFS Office of International Affairs, Rodney R. McInnis, 501 W. Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802. Written comments regarding 
the burden-hour estimates or other aspects of the collection-of-
information requirements contained in this final rule may be submitted 
to the NMFS Southwest Region (SWR) and by email to [email protected], or fax to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION: On April 5, 2013, NMFS published a proposed 
rule in the Federal Register (78 FR 20604) to revise regulations at 50 
CFR part 216, subpart H, in order to enhance the requirements for 
documentation to support labels on tuna products that represent the 
product as dolphin-safe. The proposed rule was open to public comment 
through May 6, 2013.

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[deg] N. latitude, 40[deg] S. latitude, 160[deg] W. 
longitude and the coastlines of North, Central and South America (50 
CFR 216.3).
    In addition, if the Secretary of Commerce (Secretary) 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 
identifies any other fishery that has a regular and significant 
mortality or serious injury of dolphins, then tuna products containing 
tuna harvested in that 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 to 
develop an ``official mark'' that may be used by tuna processors 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 an alternative 
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 to 
track 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 the rules being revised here, tuna importers had to include, 
an FCO with every imported tuna product, and submit that FCO to NOAA 
Fisheries. The exporter declared the dolphin-safe status of an import 
on the FCO, which was endorsed by the importer. As a condition of 
labeling dolphin-safe tuna caught by ETP large purse seine vessels, the 
importer had to 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, to label tuna dolphin-safe the importer had 
to 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, domestic tuna canners 
were required to submit to NOAA Fisheries monthly reports containing 
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

[[Page 40998]]

and Agreement on Technical Barriers to Trade (TBT Agreement). Mexico 
specifically challenged three U.S. measures: The DPCIA, Department of 
Commerce DPCIA regulations (50 CFR 216.91 and 216.92), and a Federal 
Court decision (Earth Island Institute v. Hogarth, 494 F.3d 757 (9th 
Cir. 2007)). The challenged measures established conditions (described 
above) under which tuna products may voluntarily be labeled dolphin-
safe. On June 13, 2012, the WTO Dispute Settlement Body (DSB) adopted 
the WTO Appellate Body report, and the WTO panel report as modified by 
the Appellate Body report, finding that the U.S. dolphin-safe labeling 
scheme (including the regulations amended by this final rule) accords 
less favorable treatment to Mexican tuna products and therefore is 
inconsistent with Article 2.1 of the TBT Agreement. The Appellate Body 
based this conclusion on a finding that the U.S. measures did not set 
conditions for using the label in a way that reflects the risks faced 
by dolphins in different oceans. The DSB adopted the Appellate Body's 
recommendation that the United States bring its measures into 
conformity with the TBT Agreement.
    In response to this finding, NMFS proposed (78 FR 20604; April 5, 
2013) to modify the requirements for the certifications that must 
accompany the FCO; change storage requirements related to dolphin-safe 
and non-dolphin-safe tuna on board fishing vessels; modify the 
reporting requirements associated with tracking domestic tuna canning 
and processing operations; and create new requirements for processors, 
other than tuna canners, of tuna product labeled dolphin-safe. This 
final rule is largely unchanged from the proposed rule. It is intended 
to better ensure that dolphin-safe labels comply with the requirements 
of the DPCIA, and that the United States satisfies its obligations as a 
member of the WTO. For more information on this subject, please see the 
preamble to the proposed rule. In this final rule, NMFS identifies a 
period of education and outreach, responds to public and government 
comments, and makes technical modifications.

Effective Date and Period of Education and Outreach

    The effective date of this regulation is July 13, 2013, and the 
rule is mandatory as of that date. The requirements of this rule do not 
apply to tuna harvested on fishing trips that began before July 13, 
2013. However, NMFS understands that it may not be feasible for all of 
the affected entities to achieve 100% compliance immediately, and that 
some entities will need time to make the necessary changes to achieve 
full compliance with the new provisions for all tuna product labeled 
dolphin-safe. Therefore, through January 1, 2014, NMFS will conduct an 
industry education and outreach program on the provisions and 
requirements of this rule. NMFS has determined that this allocation of 
resources will ensure that the industry effectively and rationally 
implements this final rule.

Response to Public Comments

    NMFS received seventy-one comments during the 30-day comment 
period, of which 64 supported the action, four opposed the action, two 
supported the action in a limited fashion, and one did not indicate a 
position to the action. Comments came from tuna industry organizations, 
environmental organizations, members of the public, and the Government 
of Mexico.
    Many comments were broad statements or outside the scope of the 
rule, and do not require a response, such as: (1) Strong support for 
the proposed rule to include observer statements, where applicable; (2) 
the proposed rule will improve verification efforts; (3) the proposed 
rule is likely to cause confusion among consumers; (4) the proposed 
rule does not go far enough to protect dolphins; (5) the purpose and 
objective of U.S. dolphin-safe rules are not a guarantee of zero 
dolphin mortality, but as a measure to eliminate the intentional chase 
and encirclement of dolphin and discourage forms of fishing that have 
an adverse effect on dolphin populations; (6) the proposed rule is a 
good example of governmental overreach and overregulation; (7) the 
DPCIA gives the Secretary of Commerce broad authority to implement the 
proposed actions; (8) the dolphin-safe labeling scheme can be brought 
in line with consumer expectations only through legislation; (9) the 
proposed rule should impose new requirements only if commensurate with 
the incidence of interactions with dolphins; (10) the proposed rule 
puts the cost of keeping dolphin-safe tuna separate from non-dolphin-
safe tuna on distributors and merchants rather on fishermen; (11) fines 
imposed under Section 5 of the Federal Trade Commission Act may not be 
enough to deter fraud; (12) Congress and not NOAA must address 
discrimination against tuna labeled dolphin-safe pursuant to the 
Agreement on the International Dolphin Conservation Program; (13) the 
proposed rule will not create a sustainable, ecosystem-safe approach to 
fishing for tuna; (14) additional regulations will help provide greater 
protections for dolphins in all fisheries during the catching of tuna 
and safeguard the integrity of the dolphin-safe label for the benefit 
of consumers; and (15) the United States Government might be tempted, 
especially when subjected to lobbying, to pressure foreign observer 
programs to seek NOAA's determination that the program is ``qualified 
and authorized.'' Specific pertinent comments are summarized and 
responded to below.

Comments on Captain and Observer Certifications

    Comment 1: The facts do not warrant requiring captains of vessels 
outside the ETP to certify the absence of mortality or serious injury 
because dolphin interactions in fisheries outside the ETP are 
negligible and incidental.
    Response: NMFS disagrees. Regulations at 50 CFR 216.91(a)(2)(ii) 
already require a written statement executed by the captain of a purse 
seine vessel fishing outside the ETP to certify that no purse seine was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna was harvested. This rule also 
requires a captain's statement certifying that no dolphins were killed 
or seriously injured in the sets or other gear deployments in which the 
tuna were caught using any fishing gear type in all fishing locations 
(a broader application than the current regulations that apply this 
standard only to large purse seine vessels fishing in the ETP). The 
broader application is authorized under DPCIA sections 1385(d)(3)(C)(i) 
and 1385(f). Section 1385(d)(3)(C)(i) prohibits labeling a tuna product 
with any label or mark that refers to dolphins, porpoises, or marine 
mammals (other than the official mark) unless no dolphins were killed 
or seriously injured in the sets or other gear deployments in which the 
tuna were caught. Notably, almost all tuna in the United States is 
labeled using alternative marks. Exercising its broad regulatory 
authority under Section 1385 paragraph (f) of the DPCIA, NMFS has long 
applied the standard applicable to any alternative mark to the use of 
the official mark. Therefore, these regulations require that all 
captains certify that no dolphins were killed or seriously injured in 
the sets or other gear deployments in which the tuna were caught, 
regardless of the gear type or fishing location, regardless of the mark 
used.
    Comment 2: Several commenters asserted that a captain's self-
certification is unreliable and unverifiable.

[[Page 40999]]

    Response: The DPCIA itself expressly mandates the use of written 
statements by captains to attest that either no purse seine net was 
intentionally deployed on or used to encircle dolphins during the trip 
in which the tuna were caught, and (in some cases) to also attest that 
no dolphins were killed or seriously injured in the sets or other gear 
deployments in which the tuna were caught. The tracking and 
verification system does not rely solely on certifications by fishing 
captains. As described elsewhere in this rule, certifications by an 
onboard observer or by an authorized representative of the nation 
participating in a qualified and authorized observer program are also 
used to help verify the dolphin-safe status of the harvested tuna for 
some fishing trips. The tracking and verification system also includes 
recordkeeping and inspections at processing facilities and 
certifications by importers and exporters.
    Comment 3: The rule should be clarified so that the regulated 
public understands that if an observer is not qualified and authorized 
in a fishery, no observer certification would be required to use a 
dolphin-safe label.
    Response: The rule is already clear that observer certifications 
are required only in some fisheries, and not all, as described in the 
preamble of the proposed rule.
    Comment 4: Several commenters asserted that fishery observers other 
than those working on large purse seine vessels in the ETP are not 
trained to identify dolphins and are not trained to determine whether a 
set was intentionally set on dolphins or not. Therefore, they are not 
qualified to make the required certifications. NMFS needs to make 
certain that any international observer program meets the same 
standards as U.S. observer programs by providing clear guidance during 
pertinent training.
    Response: This rule expands the observer requirements, to certain 
fisheries outside the ETP, but only if NOAA determines that the 
participating observers are qualified, and are authorized by the 
applicable observer authority to make the certifications. NMFS 
anticipates that qualified observers will undergo training programs 
that include such topics as recognizing an intentional set, dolphin 
species identification, and criteria for determining a serious injury. 
NMFS acknowledges that these skills are complex, and that many existing 
observer programs give little attention to marine mammal interactions. 
NMFS will determine an observer program is qualified and authorized 
only after rigorous scrutiny of the program's training programs, and a 
finding that the observers are able to make the requisite 
determinations. When such a determination is made, the rationale for 
the determination will be explained in a public notice published in the 
Federal Register.
    Comment 5: The rule would extend the requirement for an observer 
certification (if determined to be qualified and authorized), even 
though NMFS has never determined that scientific evidence exists of a 
regular and significant association between dolphins and tuna in the 
western Pacific Ocean purse seine fishery. The DPCIA requires this 
determination as the basis for expanding the observer requirement. 
Without such a determination, the DPCIA requires that the captain 
certify only that no purse seine net was intentionally deployed on or 
used to encircle dolphins (16 U.S.C. 1385 (d)(1)(B)(ii)). NMFS' 
regulatory authority in the DPCIA at 16 U.S.C. 1385(f) is not broad 
authority, but is limited to regulations ``for tracking purposes.'' 
Claiming the need to ensure ``consistency'' or to seek conformity with 
WTO obligations does not provide additional regulatory authority.
    Response: NMFS agrees with the commenter that, to date, there has 
not been adequate information to make a determination of such a 
``regular and significant'' association in the Western Pacific purse 
seine fishery. However, NMFS disagrees with the commenter that NMFS' 
authority in the DPCIA is limited to ``tracking purposes.'' Under 16 
U.S.C. 1385(f), NOAA has broad authority to establish an effective 
tracking and verification program, as well as authority to make 
adjustments, as may be appropriate, that meets or exceeds the minimum 
requirements referenced in the statute. NMFS believes requiring a 
certification from a captain and a qualified and authorized observer on 
board the vessel (if any), or from an authorized representative of the 
nation participating in a qualified and authorized observer program (if 
any), that no purse seine net was intentionally deployed on or to 
encircle dolphins during the fishing trip and that no dolphins were 
killed or seriously injured in the sets in which the tuna were caught, 
is within the authority of the Secretary to meet or exceed the minimum 
requirements for the effective tracking of tuna labeled under 16 U.S.C. 
1385(d). This potential expansion of the requirements of certifications 
from an observer, or from an authorized government representative 
associated with an observer, which will be implemented only if the 
``qualified and authorized'' criteria are met, is intended to help 
verify the required captain's certificates. In addition, 16 U.S.C. 
1385(f) gives NMFS broad authority to issue regulations to implement 
the DPCIA generally: ``The Secretary, in consultation with the 
Secretary of the Treasury, shall issue regulations to implement the 
Act, including regulations to establish a domestic tracking and 
verification program . . . .'' (emphasis added). The agency's 
regulatory authority under the DCPIA is not limited to matters of 
domestic tracking and verification, but ``includes'' those matters as a 
subset of broader authority. The final paragraph of 16 U.S.C. 1385(f) 
specifically authorizes NMFS to adjust the regulations to implement an 
international tracking and verification program. The new observer 
requirements, if imposed after the requisite determinations of 
``qualified and authorized,'' would be part of the U.S. domestic 
tracking program and could be part of an international program. 
Regulations governing both are authorized under section 1385(f). This 
regulatory authority exists, regardless of whether the motivation for 
asserting this authority was the need to harmonize the tracking and 
verification program with United States obligations to the WTO. 
Finally, aside from meeting international WTO obligations, this rule 
also ensures that consumers are better informed about whether the 
``tuna they purchase is falsely labeled as to the effect of the 
harvesting on dolphins,'' one of the primary objectives of the DPCIA 
(Congressional Finding for the DPCIA, 16 U.S.C. 1385(b)(3)).

Comments on Tuna Separation

    Comment 6: The new requirements to keep dolphin-safe and non-
dolphin-safe tuna separate would require double the space and double 
the containers.
    Response: NMFS disagrees. The new requirements will only affect 
operations in which dolphin-safe and non-dolphin-safe tuna are 
harvested on the same trip or otherwise stored together, which is 
probably unusual. Furthermore, the rules being revised required 
separation (see 50 CFR 216.93(d)(4)). Where separation is required 
under this rule, fishing vessels or transportation and storage entities 
are allowed to use netting, other material, or separate storage areas 
to achieve separation. This change is not expected to require double 
the space or double the containers.
    Comment 7: The rule falls short of ensuring consumers that non-
dolphin-safe tuna will be verifiably segregated from dolphin-safe tuna 
and not be mixed through storage and processing, and therefore will 
affect the ability of

[[Page 41000]]

the United States Government to audit and verify a captain's statement 
of no dolphin mortality or serious injury.
    Response: NMFS disagrees. Regulations at 50 CFR 216.93(c)(4) and 
(d)(4) already require vessels to segregate non-dolphin-tuna and 
dolphin-safe tuna. Additionally, 50 CFR 216.93(f)(3) gives 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. NMFS believes the current system is already 
working well and the increased authorities and requirements of this 
rule will fortify the verification program. In addition, the new 
observer requirements will afford NMFS an additional tool in verifying 
the dolphin-safe status of the harvested tuna.
    Comment 8: The use of an entire well for separating one set of non-
dolphin-safe tuna on U.S. purse seine vessels is inefficient. Webbing 
or other material should be considered as an acceptable method to 
separate non-dolphin-safe tuna from dolphin-safe tuna because it would 
be an effective, creative compromise without requiring drastic changes 
to a fishing vessel.
    Response: The majority of tuna labeled dolphin-safe that is 
harvested by U.S. purse seine vessels comes from vessels that have more 
than 10 storage wells. NMFS believes using a separate well to store 
non-dolphin-safe tuna would not be inefficient, and would not require 
changes on most fishing vessels. By designating a particular well on a 
fishing trip as containing non-dolphin-safe tuna, a captain would aid 
fishery inspectors in verifying the location of non-dolphin-safe tuna 
on board a vessel, and would also facilitate tuna canneries and the 
NMFS Tuna Tracking and Verification Program to track, verify, and audit 
performance. The monitoring and tracking of tuna that is not dolphin-
safe in separate wells is supported by the language of the DPCIA that 
requires the DPCIA implementing regulations to include, among other 
things, ``[t]he designation of well location, procedures for sealing 
holds, procedures for monitoring and certifying both above and below 
deck . . . .'' (16 U.S.C. 1385(f)(3)).

Comments on Collections of Information Under the Paperwork Reduction 
Act

    Comment 9: The expansion of the certification requirements to non-
purse seine captains and the new requirements for statements by 
observers, will result in a significant increase in paperwork and 
associated tracking, reporting and auditing for the seafood supply 
chain and for the United States Government. Measures to reduce 
paperwork, such as consolidating required NMFS forms and allowing cell 
phone photos of captain and observer statements, should be considered.
    Response: While current regulations require the submission of a 
captain's statement for purse seine vessels outside of the ETP, a 
significant number of FCOs for tuna product importations already 
include statements submitted by captains of non-purse seine vessels on 
a voluntary basis. Thus, while this rule would increase paperwork 
submission requirements for some segments of industry, and increase 
paperwork handling for the U.S. Government, the actual increase in the 
number of documents received by the U.S. Government will be 
significantly less when taking into consideration the number of 
documents currently being voluntarily submitted. Additionally, NMFS is 
a Participating Governmental Agency working with U.S. Customs and 
Border Protection (CBP) in the International Trade Data System (ITDS) 
project. See: http://www.itds.gov/. The Document Imaging System, a part 
of ITDS expected to be tested in the near future through a pilot 
project, would allow customs brokers to send a version of the FCO and 
associated certifications in portable document format (PDF) to CBP. The 
NMFS copy would then be retrieved by or forwarded to NMFS, therefore 
eliminating the need for brokers to submit multiple copies to different 
U.S. agencies. If implemented, NMFS expects that the Document Imaging 
System will result in a significant reduction of paperwork for both the 
seafood supply chain and the U.S. Government, as well as allowing for 
more efficient tracking and auditing.
    Comment 10: The rule will require the industry to make outreach 
efforts to educate thousands of longliners of U.S. dolphin-safe rules 
in multiple languages. Adequate time will need to be allotted to the 
industry to reach back into its supply chain and implement a new system 
to collect captain statements.
    Response: The effective date of this regulation is July 13, 2013, 
and the rule is mandatory as of that date. As explained below, the 
United States has an international obligation to make this rule 
effective by July 13, 2013. The rule will require certification by the 
captain and, if applicable, by a qualified and authorized observer or 
an authorized representative of a nation participating in the observer 
program for all tuna labeled dolphin-safe that is harvested on fishing 
trips that begin on or after July 13, 2013. NMFS has determined that a 
period for education and outreach by NMFS and industry is appropriate. 
NMFS believes that mid-July 2013 through January 1, 2014 is a 
sufficient timeframe for the industry to become familiar with, and 
fully transition to, the new requirements under the rule. During this 
period, NMFS will continue to educate the industry on NMFS' compliance 
and enforcement procedures so that fishermen, processors, importers, 
brokers, and others responsible for the paperwork required by this rule 
have clear expectations as to the requirements of this rule.

Comments on Additional Topics

    Comment 11: Is there a defined process for determining ``regular 
and significant,'' and has the Department of Commerce defined it?
    Response: The ``regular and significant'' standard has been part of 
the DPCIA and its implementing regulations for many years. This rule is 
not intended to address or revise that standard. The DPCIA directs the 
Secretary to make a determination or identification of a fishery if 
there is a regular and significant association between dolphins and 
tuna (similar to the association between dolphins and tuna in the ETP), 
or if a fishery has regular and significant mortality or serious injury 
to dolphins. NMFS has no credible reports of any fishery in the world, 
other than the tuna purse seine fishery in the ETP, where dolphins are 
systematically and routinely chased and encircled each year in 
significant numbers by tuna fishing vessels, or any tuna fishery that 
has regular and significant mortality or serious injury of dolphins. 
Therefore, the Secretary has not made a determination that another 
fishery has either a regular and significant association between 
dolphins and tuna or regular and significant mortality or serious 
injury of dolphins.
    Comment 12: The rule does not fully implement the letter and spirit 
of the 1997 International Dolphin Conservation Program Act, which 
requires that tuna bearing the dolphin-safe label must be independently 
certified as being caught without harm to dolphins.
    Response: NMFS disagrees. This final rule fully implements the 
letter and spirit of the DPCIA in several ways. It modifies the 
requirements for the certifications that must accompany the FCO (i.e. 
the certification must include that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught); changes storage requirements related to dolphin-safe

[[Page 41001]]

and non-dolphin-safe tuna on board fishing vessels; modifies the 
reporting requirements associated with tracking domestic tuna canning 
and processing operations; and creates other new requirements for 
processors, other than tuna canners, of tuna product labeled dolphin-
safe. NMFS welcomes specific suggestions about how to better implement 
the letter and spirit of the statute. NMFS is not certain what the 
commenter means by ``independent certification.'' The DPCIA requires a 
rather complex series of measures to certify the dolphin-safe status of 
labeled tuna product, but the statute does not specifically require 
that the certification be made by an independent party.
    Comment 13: The rule would cause economic harm to the U.S. tuna 
purse seine fleet due to reduced value (or zero value) of non-dolphin-
safe tuna.
    Response: Tuna not eligible to be labeled dolphin-safe has value 
and is currently sold in stores throughout the United States. Almost 
all tuna sold in the United States is labeled dolphin-safe, and is 
subject to the standard under 16 U.S.C. 1385(d)(3)(C)(i) (i.e. no 
dolphins were killed or seriously injured in the sets or other gear 
deployments in which the tuna were caught). This rule merely requires 
new paperwork and separation procedures to support the assertion that 
tuna complies with the standard. Furthermore, NMFS received comments 
from representatives of the U.S. tuna purse seine fleet acknowledging 
that dolphin mortalities or serious injuries to dolphins were rare 
events.
    Comment 14: NMFS should ensure observers are able to talk with and 
provide information to outside non-governmental groups.
    Response: The issue is beyond the scope of this rule.
    Comment 15: NOAA should create a separate ``international dolphin-
safe label'' that would allow customers to be aware that the tuna comes 
from international sources that are ideally subjected to the same 
standards as U.S. fishermen, but due to oversight issues these 
standards cannot be guaranteed.
    Response: The issue is beyond the scope of this rule.
    Comment 16: The rule would perpetuate current deceptive practices 
in the U.S. market by allowing tuna products to be labeled as dolphin-
safe even if dolphins and other marine mammals were killed or seriously 
injured while the tuna was being harvested.
    Response: NMFS disagrees. This rule explicitly requires 
documentation that any tuna product labeled dolphin-safe contains no 
tuna harvested during a set or other gear deployment in which dolphins 
were killed or seriously injured.
    Comment 17: The terms ``dolphin,'' ``longline set,'' and ``troll 
(jig) set'' need to be defined.
    Response: While the subject matter is relevant to the general topic 
of the rule, defining ``dolphin,'' ``longline set,'' and ``troll (jig) 
set'' is beyond the scope of this rule. However, NMFS will consider a 
future rulemaking to define these terms.
    Comment 18: Several commenters gave views as to whether the rule 
would satisfy U.S. obligations to the WTO. Some commenters believed the 
rule would satisfy U.S. obligations and others either stated that it 
would not satisfy U.S. obligations or expressed skepticism about 
whether it would.
    Response: NMFS, in consultation with the Office of the United 
States Trade Representative, has determined that this rule will bring 
the dolphin-safe labeling requirements into compliance with the WTO 
DSB's recommendations and rulings.

Changes From the Proposed Rule

    In response to public comments, there will be a period of education 
and outreach, beginning on the effective date through January 1, 2014, 
during which the industry will be educated on how NMFS will enforce the 
rule. The effective date of the rule is July 13, 2013, and the rule 
will apply to fishing trips that begins on or after this date. The 
effective date has been added to Sec.  216.91(a)(2)(ii), (a)(2)(iii), 
(a)(4), (a)(5) and to Sec.  216.93(c)(2) and (3). Regulatory text at 
Sec.  216.91(a)(2)(ii) and (iii) has been added and paragraphs have 
been redesignated in order to keep existing requirements for tuna 
harvested on fishing trips that began before July 13, 2013 (i.e. the 
effective date of this final rule). In this final rule, NMFS is 
publishing 50 CFR 216.93 in its entirety (including provisions that 
were not changed from the proposed rule) for the convenience of readers 
and to improve clarity.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the DPCIA and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This final rule contains two collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by the Office of Management and Budget (OMB) under control 
numbers 0648-0335 and 0648-0387. Public reporting burden for OMB 
control number 0648-0335, titled ``Fisheries Certificate of Origin,'' 
is estimated to average 25 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Public reporting burden for OMB control 
number 0648-0387, titled ``International Dolphin Conservation 
Program,'' is estimated to average 65 minutes per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding these burden 
estimates or any other aspects of these data collections, including 
suggestions for reducing the burden, to NMFS Southwest Region (see 
ADDRESSES) 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, and no person shall be subject to 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 effective date of July 13, 2013, is a product of an agreement 
between the United States and Mexico that the United States will bring 
the U.S. measures into conformity with the WTO DSB's recommendations 
and ruling within 13 months of the DSB's adoption of the WTO Appellate 
Body report, and the WTO panel report as modified by the Appellate Body 
report. Accordingly, this rule is a military or foreign affair function 
of the United States, and the 30-day delay-in-effectiveness date 
requirement of the Administrative Procedure Act is inapplicable under 5 
U.S.C. 553(a)(1).

[[Page 41002]]

List of Subjects in 50 CFR Part 216

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

    Dated: July 3, 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 is 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 
paragraphs (a)(2)(iii) and (a)(5) to read as follows:


Sec.  216.91  Dolphin-safe labeling standards.

    (a) * * *
    (2) * * *
    (ii) In any other fishery on a fishing trip that began before July 
13, 2013 unless the products are accompanied as described in Sec.  
216.93(d), (e), or (f), as appropriate, by a written statement executed 
by the Captain of the vessel certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna was harvested;
    (iii) In any other fishery on a fishing trip that began on or after 
July 13, 2013 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 
subparagraph will also be publicized on the Web site of the NMFS 
Southwest Region (http://swr.nmfs.noaa.gov/).
* * * * *
    (4) Other fisheries. By a vessel on a fishing trip that began on or 
after July 13, 2013 in a fishery other than one described in paragraphs 
(a)(1) through (3) of this section unless such product is accompanied 
as described in section 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 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 that began on or after July 
13, 2013 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

[[Page 41003]]

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 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 on a fishing trip that began on or after July 
13, 2013, 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 on a 
fishing trip that began on or after July 13, 2013 other than ones 
described in paragraphs (c)(1) or (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

[[Page 41004]]

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 Sec.  216.93(d)(2) and (3) on 
a monthly basis for all tuna received at their processing 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. 2013-16508 Filed 7-8-13; 8:45 am]
BILLING CODE 3510-22-P