[Federal Register Volume 64, Number 113 (Monday, June 14, 1999)]
[Proposed Rules]
[Pages 31806-31822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15004]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 990324081-9081-01; I.D. 072098G]
RIN 0648-AI85
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific
Ocean (ETP)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Proposed rule; request for comments and notice of public
hearings.
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SUMMARY: NMFS proposes regulations to implement provisions of the
International Dolphin Conservation Program Act (IDCPA). These
regulations would allow the entry of yellowfin tuna into the United
States under certain conditions from nations signatory to the
International Dolphin Conservation Program (IDCP) that otherwise would
be under embargo. It would also allow U.S. fishing vessels to
participate in the fishery in the ETP on equivalent terms with the flag
vessels of other IDCP signatory nations. A U.S. citizen employed on a
purse seine vessel of another IDCP signatory nation with an affirmative
finding would not be in violation of U.S. prohibitions on the taking of
marine mammals if that vessel takes marine mammals incidentally during
fishing operations outside the U.S. exclusive economic zone (EEZ) in
compliance with the requirements of the IDCP. The standard for use of
``dolphin-safe'' labels for tuna products would also change. General
requirements also are proposed to ensure adequate tracking and
verification of tuna imports from the ETP.
DATES: Comments on the proposed regulations must be received on or
before July 14, 1999. Public hearings on this proposed rule will be
held on Thursday, July 8, 1999, in Long Beach, CA, at 10:00 a.m.- 1:00
p.m. and on Wednesday, July 14, 1999, in Silver Spring, MD, at 1:00
p.m.- 4:00 p.m.
ADDRESSES: Send comments to J. Allison Routt, NMFS, Southwest Region,
Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long
Beach, CA 90802-4213. The locations of the public hearings on this
proposed rule are: (1) Room 3400, 501 W. Ocean Blvd., Long Beach, CA
90802-4213; and (2) NOAA Building, SSMC IV, Room 1W611, 1305 East-West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest
Region, Protected Resources Division, (562) 980-4020. For additional
information about the public hearing in Long Beach, CA, contact J.
Allison Routt. For additional information about the public hearing in
Silver Spring, MD, contact Cathy Eisele, NMFS, Headquarters, Marine
Mammal Division,(301) 713-2322.
SUPPLEMENTARY INFORMATION:
Background
In 1992, nations fishing for tuna in the ETP, including the United
States, reached a non-binding international agreement (referred to as
the La Jolla Agreement) that included, among other measures, a dolphin
mortality reduction schedule providing for significant reductions in
dolphin mortalities. By 1995, nations fishing in the ETP under the La
Jolla Agreement had reduced dolphin mortality to less than 5,000
dolphins annually, two years ahead of the schedule established in that
Agreement. In October 1995, the success of the La Jolla Agreement led
the United States, Belize, Colombia, Costa Rica, Ecuador, France,
Honduras, Mexico, Panama, Spain, Vanuatu, and Venezuela to sign the
Panama Declaration to strengthen and enhance the IDCP.
The program outlined in the Panama Declaration will provide greater
[[Page 31807]]
protection for dolphins, and enhance the conservation of yellowfin tuna
and other living marine resources in the ETP ecosystem. The Panama
Declaration anticipated that the United States would change the
provisions of the Marine Mammal Protection Act (MMPA) to allow import
of yellowfin tuna into the United States from nations that are
participating in, and are in compliance with, the IDCP. Implementation
of the Panama Declaration by the United States was also anticipated in
order to allow U.S. vessels to participate in the ETP fishery on an
equal basis with the vessels of other nations. Under the Declaration,
signatory nations agreed to develop a legally binding, international
agreement. In May 1998, eight nations, including the United States,
signed such a binding, international agreement to implement the IDCP.
This Agreement will go into force after either ratification,
acceptance, or approval by four nations.
The IDCPA was signed into law on August 15, 1997, to recognize and
implement the IDCP and to address related issues. The IDCPA was the
domestic endorsement of an international management regime adopted
during the last 20 years under the auspices of the Inter-American
Tropical Tuna Commission (IATTC). The IDCPA primarily amends provisions
in the MMPA governing marine mammal mortality in the U.S. ETP tuna
purse seine fishery and the importation of yellowfin tuna and yellowfin
tuna products from other nations with vessels engaged in the ETP tuna
purse seine fishery. Key provisions of the IDCPA will become effective
when two certifications are made. The Secretary of State must certify
to Congress that a binding legal instrument establishing the IDCP has
been adopted and is in force (i.e., Agreement on the IDCP). In
addition, the Secretary of Commerce must certify that a study has
commenced on the effects of intentional encirclement (including chase)
on dolphins and dolphin stocks incidentally taken in the course of
purse seine fishing for yellowfin tuna in the ETP, and that funds are
available to complete the first year of this study. On July 27, 1998,
the Secretary of Commerce provided the required certification to
Congress on the research study.
The Agreement on the IDCP becomes effective when four countries
have deposited their instruments of either ratification, acceptance, or
adherence with the United States. The United States, Panama, Ecuador,
and Mexico have deposited their instruments of either ratification,
acceptance, or adherence with the Depositary. The Agreement on the IDCP
became effective on February 15, 1999. On March 3, 1999, the Secretary
of State provided the required certification to Congress that the
Agreement on the IDCP has been adopted and is in force. The IDCPA
became effective on this date. Provisions to implement the IDCPA and
the new international agreement for dolphin conservation in the ETP are
the subject of these proposed regulations.
Section 7 of the IDCPA amends the Tuna Conventions Act regarding a
General Advisory Committee and a Scientific Advisory Committee, and
provisions are proposed to address these changes. Section 6(c) of the
IDCPA amends the permit sanction provisions in the MMPA applicable to
permits issued to U.S. purse seine vessels in the ETP and their
operators, and these changes will be addressed in a separate
rulemaking.
Definitions
Definitions are added for ``Administrator, Southwest Region,''
``Agreement on the International Dolphin Conservation Program,''
``Declaration of Panama,'' ``Force majeure,'' ``International Dolphin
Conservation Program,'' ``International Dolphin Conservation Program
Act,'' ``International Review Panel,'' and ``Per-stock per-year dolphin
mortality limit.'' In addition, the definitions of ``ABI,'' ``Director,
Southwest Region,'' ``ETP Fishing Area 1,'' `` ETP Fishing Area 2,''
``ETP Fishing Area 3,'' ``Fishing season,'' ``Kill-per-set,'' ``Kill-
per-ton,'' and ``Purse seine set on common dolphins'' are removed
because they are no longer necessary.
Although the Agreement on the IDCP applies in the Pacific Ocean
west only to 150 deg. W. meridian, the current definition of ETP is out
to 160 deg. W. meridian. This definition is not proposed to be changed
because the existing definition is set by the Dolphin Protection
Consumer Information Act (DPCIA) (16 U.S.C. 1305). This difference is
expected to only affect a relatively small number of trips by U.S.
purse seine vessels, when they extend their fishing activities under
the Treaty that governs their fishing in the South Pacific into waters
that overlap with the waters covered by the Agreement on the IDCP. This
overlap will require these vessels to comply with the dolphin-safe
requirements of the MMPA applicable to the ETP for fishing in the
overlap area west of 150 deg. W. meridian even though the Agreement on
the IDCP has determined that fishing on dolphins does not occur in this
area.
Requirements for U.S. Vessels
The certificate of inclusion process for U.S. vessel owners and
operators under a general permit issued to the American Tunaboat
Association would be replaced with a system of issuing permits directly
to vessel owners and operators. Two permit categories would be retained
for tuna purse seine vessels of greater than 400 short tons (362.8
metric tons (mt)) carrying capacity. One category would apply to purse
seining involving the intentional taking of marine mammals, and the
other category would apply to purse seining not involving the
intentional taking of marine mammals. As mandated by the IDCPA, the
latter category of permits would not require that the vessel be
equipped with special equipment or gear. The terms and conditions for
both categories of permits would be modified to require that observers
be carried on every trip. Existing dolphin stock and species
prohibitions would be replaced with a provision prohibiting sets on a
stock when the mortality limit for that stock has been reached or
exceeded. The authorization to take marine mammals during a set to
protect catch or gear would be eliminated, retaining only the
authorization to take marine mammals if necessary during a set to
prevent personal injury. The authorizations proposed for elimination
are no longer justified based upon the experience of the U.S. fleet and
the low levels of dolphin mortality allowed under the IDCP.
The operator performance requirements are proposed to be removed
and a subsection reserved for this subject. Because U.S. vessels have
not been making intentional sets on dolphins in recent years, the
existing performance requirements based upon older data do not reflect
improvements in performance that should be expected from the U.S.
operators based upon the performance of the international fleet in
recent years. A subsection for operator performance requirements would
be reserved to implement operator performance requirements when they
are developed under the IDCP. Even without the performance requirements
in effect now, the dolphin mortality limit (DML) system provides an
effective incentive to both vessel owners and operators to achieve low
dolphin mortalities, as demonstrated by the results since 1992. The
implementation of operator performance standards under the IDCP is the
best way to prevent substandard operators from moving among the vessels
of various nations.
[[Page 31808]]
Implementing a provision in the Agreement on the IDCP, purse seine
vessels of 400 st (362.8 mt) or less carrying capacity would be
prohibited from intentionally deploying a net on or encircling
dolphins. The U.S. vessels that are in this size range have not been
obtaining certificates of inclusion to intentionally set on dolphins,
so this new provision is not anticipated to affect the operations of
any U.S. vessels.
The DML provisions are proposed to be revised to incorporate
changes arising from the Agreement on the IDCP. These revisions include
the following: adding a procedure for vessels that normally do not fish
in the ETP to apply for a DML; removing the 15-percent limitation on
adjusting DMLs as allocated by the IDCP; incorporating the DML re-
allocation criteria in Annex IV of the Agreement on the IDCP; and
reducing the allocation for a DML for the second half of a year to one-
third of a full-year DML instead of the one-half of a full-year
allocation previously provided.
The regulations would preclude a vessel that fails in two
consecutive years to make at least one intentional set on dolphins by
April 1 from obtaining a DML in the subsequent year. Similarly, a
vessel with a second-semester DML that fails to make at least one
intentional set on dolphins by December 31 of that year, or a vessel
with a per-trip DML that fails to make at least one intentional set on
dolphins during that trip, would lose its DML. After two consecutive
losses of its DML, a vessel would not be eligible to receive a DML for
the following year. Exceptions might be granted for force majeure or
extraordinary circumstances.
The observers' access to certain vessel equipment and the working
needs of observers on U.S. vessels would be elaborated upon in
conformity with the Agreement on the IDCP.
The sections on permits for ``Stationary gear,'' ``Other gear,''
and ``Commercial passenger fishing vessels'' would be removed because
the take of marine mammals incidental to these fisheries is now
regulated by 50 CFR part 229.
Imports of Yellowfin Tuna and Yellowfin Tuna Products
The existing Sec. 216.24(e) on imports would be revised for
clarity, and would be redesignated as Sec. 216.24(f). The observer
provisions would be redesignated from Sec. 216.24(f) to Sec. 216.24(e)
so that they would immediately follow the other sections applicable to
U.S. vessels.
Harmonized Tariff Schedule (HTS) Numbers
Reflecting changes in the U.S. HTS, the list of HTS numbers in
newly designated Sec. 216.24(f)(2) would be updated.
All shipments, regardless of port of entry, identified by an HTS
number in Sec. 216.24, must be accompanied by a Fisheries Certificate
of Origin (FCO). Unfortunately, the existing regulations are incorrect
and appear to apply the MMPA Sec. 101(a)(2) tuna embargo to encompass
all shipments covered by these HTS numbers. Actually, the MMPA tuna
embargos (for primary nations) cover only yellowfin tuna harvested by
purse seines in the ETP. For instance, a shipment of skipjack harvested
by longline may require an FCO because the importer has identified it
with one of the HTS numbers listed under Sec. 216.24(e). Such a
shipment would not be subject to the MMPA embargo.
A provision would be added stating that no tuna or tuna products
may be imported into the United States, even if there is an affirmative
finding in place, if these tuna or tuna products were banned from
importation under the MMPA before the effective date of section 4 of
the IDCPA. The scope of the intermediary nation embargo on ETP
yellowfin tuna and tuna products would be made the same as the scope of
the embargo that applies to harvesting nations, conforming the
regulations to changes made in the MMPA since the existing regulations
were last changed. Dates related to tuna caught in large-scale driftnet
fisheries, which are no longer relevant, would be removed.
Affirmative Findings
Yellowfin tuna or yellowfin tuna products imported from the ETP
tuna purse seine fishery must meet the new standards established by the
IDCPA. The finding section of the regulations, which would be
redesignated as Sec. 216.24(f)(9), would be revised to conform to the
new standards and requirements of the IDCPA. No harvesting nation could
export yellowfin tuna harvested by purse seine in the ETP into the
United States unless the nation provided NMFS documentary evidence that
it (1) participates in the IDCP; (2) is a member or applicant member
of, and meeting the financial obligations of membership in, the IATTC;
(3) keeps its fleet's stock-specific dolphin mortality within the
IDCP's prescribed limits; and (4) keeps its fleet's annual dolphin
mortality within the aggregate DMLs assigned to the fleet. The former
two items are explicit in the IDCPA. The third item does not have much
relevance until the IDCP nations allocate per-stock mortality limits
between nations. The fourth item is NMFS' proposed interpretation of
ambiguous statutory language in Sec. 101(a)(2)(B)(iii) of the MMPA as
revised by the IDCPA:
...the total dolphin mortality limits * * * permitted for that
nation's vessels under the [IDCP] do not exceed the limits
determined for 1997, or for any year thereafter ...
NMFS considered, but rejected, three alternative interpretations of
Sec. 101(a)(2)(B)(iii) of the MMPA: (1) the aggregate of the DMLs
assigned to each of the harvesting nation's vessels (``fleet DML'') for
the upcoming year could not exceed the nation's fleet DML in 1997 or
subsequent years; (2) the overall, international dolphin mortality cap
set by the IDCP for the upcoming year could not exceed the cap in 1997
[i.e., 7,500 dolphins] or subsequent years [e.g., 6,500 dolphins in
1998]; and (3) the DML assigned to each vessel in the international
fishery could never exceed the limit assigned in 1997 [i.e., 94
dolphins/vessel] or subsequent years [e.g., 66 dolphins/vessel in 1998,
and 39.68 dolphins/vessel in 1999].
The first rejected alternative conforms best with the wording of
Sec. 101(a)(2)(B)(iii): ``the total dolphin mortality limits ...for
that nation's vessels...do not exceed the limits determined for 1997,
or for any year thereafter * * *.'' However, comparing a nation's
aggregate (fleet) mortality limits to the nation's earlier limits would
prejudge decisions under the IDCP. In the Panama Declaration, the
United States pledged to lift embargoes against nations participating
in accordance with the international program. While the international
program intended to reduce overall dolphin mortality, the parties to
the Panama Declaration and the IDCP did not contemplate limiting the
size of any nation's fleet (at least not for the purpose of dolphin
protection) or the size of any nation's aggregate DML. The IDCP has
always allocated the annual international cap on a per-vessel basis,
not on a per-nation basis. Under this rejected alternative, a nation
could fish in strict compliance with the program but be embargoed by
the United States if its fleet happened to be relatively large in the
upcoming year and therefore receive a relatively large aggregate
(fleet) DML. Penalizing a nation whose fleet has grown could discourage
efficient utilization of resources (fishing vessels transferring
between nations) without affecting overall international dolphin
mortality. Harvesting nations that adopted good
[[Page 31809]]
dolphin conservation programs because of the IDCP might quit the IDCP
if subjected to this type of embargo.
The second alternative interpretation was rejected because the
statutory placement of an item relating to international management
would not be logical or appropriate among a list of standards
applicable to individual harvesting nations. While each IATTC
participant could block a larger international cap (because the IATTC
operates by consensus), imposing trade restrictions to penalize fellow
harvesting nations would not be logical for the following reasons.
First, the United States also participates in the IDCP, which operates
by consensus. Therefore, this standard would only have significance
(and result in an embargo) if the United States itself approved raising
the international cap. In the statutory context, Congress certainly
intended these importation standards to induce compliance with the IDCP
by harvesting nations. Second, this is not the type of documentary
evidence that the United States would require an individual harvesting
nation to provide since the United States knows the international cap
by virtue of our participation in the IDCP.
The third rejected alternative is not logical for the same reasons
as the second alternative; vessel DMLs are set by consensus, so the
United States could unilaterally prevent this standard from being
violated; and since we participate in the IDCP also, the United States
need not rely upon documentary evidence from harvesting nations.
The proposed interpretation makes the most sense in the context of
Sec. 101(a)(2)(B) of the MMPA because it focuses on a nation's
compliance with the international regime. Only a nation that failed to
keep its own fleet's annual dolphin mortality within the aggregate DMLs
assigned to the fleet would be embargoed. That is the type of
documentary evidence that the United States would not necessarily have
without a submission from the harvesting nation. In the embargo
context, this interpretation focuses NMFS' attention on a fleet's
results in protecting dolphin, which should reflect on the success of
the harvesting nation's management and enforcement program, rather than
decisions by other parties to the IDCP. This encourages other
harvesting nations to comply with the IDCP and threatens economic
sanctions only against nations that do not control or manage their own
fleets.
Although currently the IDCP does not assign per-stock dolphin
mortality limits to individual nations, fleets, or vessels, if the IDCP
assigns per-stock limits in the future, we would compare the total per-
stock dolphin mortality of a harvesting nation's fleet in a calendar
year to the combined allocated annual per-stock mortality limits
assigned to the fleet for that year. If the mortality exceeded the
assigned limits, the United States would impose an ETP embargo against
that nation for the subsequent April through March period.
While the existing concept of nations applying for and renewing
annual affirmative findings is retained, the proposed regulations
reflect the reality that the documentary evidence used to make findings
may be provided by a combination of the exporting nation, the
harvesting nation (if different from the exporting nation), and the
IDCP and IATTC. In addition, to reflect the fact that the IDCP
principally uses the calendar year as the basis for management,
including the calculation and monitoring of annual DMLs, the period of
validity of a finding in the regulations is proposed to be from April 1
through March 31 of the following year, relying upon data from the
previous calendar year. To work effectively within this schedule, NMFS
will reduce the processing time for complete applications from 120 days
to 60 days. NMFS is considering a multi-year affirmative finding
process and is seeking comments on this concept.
Dolphin-safe Requirements
As mandated by section 6(d) of the IDCPA, the proposed regulations
would exclude yellowfin tuna and yellowfin tuna products harvested by
vessels of a nation which is in compliance with the IDCP, and which
also has met the IATTC application and membership requirements
specified in the IDCPA, from the prohibition on the sale, purchase,
offer for sale, transport or shipment of tuna products in the United
States which is not dolphin-safe.
Observers
The language in redesignated Sec. 216.24(e)(1) would be revised to
clarify that all permitted vessels are required to carry observers on
every trip. In addition, the section providing for an application and
waiver process regarding women observers is removed because the time
period has expired for its use.
U.S. Citizens on Foreign Flag Vessels in the ETP
A U.S. citizen employed on a foreign tuna purse seine vessel of a
nation with an affirmative finding would not be subject to the MMPA's
prohibitions on taking marine mammals while the vessel is engaged in
fishing operations outside the U.S. EEZ. Use of an affirmative finding
determination for this purpose is the most effective way for a U.S.
citizen to determine that a nation is qualified under the IDCPA's
criteria.
Dolphin-safe Labeling Requirements
The labeling standard for use of the term ``dolphin-safe'' on the
labels of tuna products would change under the proposed regulation.
Currently, tuna products may be labeled ``dolphin-safe'' only if no
intentional setting on dolphins occurred during the fishing trip. Under
the IDCPA, the Secretary of Commerce (Secretary) would revise the
labeling standard based upon the initial and final findings of a study
mandated by the IDCPA on whether the intentional deployment on, or
encirclement of, dolphins with purse seine nets is having a
``significant adverse impact'' on any depleted dolphin stock in the
ETP. Dolphin stocks in the ETP now designated as depleted under the
MMPA are the eastern spinner dolphin, northeastern offshore spotted
dolphin, and the coastal spotted dolphin. The initial finding is due
between March 1, 1999, and March 31, 1999, and the final finding is due
between July 1, 2001, and December 31, 2002. Under the proposed
regulations, a ``default standard'' will be established before the
Secretary makes an initial finding. Under the default standard, tuna
products can only be labeled ``dolphin-safe'' if no dolphins are
intentionally encircled during the entire fishing trip and no dolphin
is killed or seriously injured during the set. After the initial
finding, unless the Secretary initially finds a ``significant adverse
impact,'' the Assistant Administrator will apply the definition of
``dolphin-safe'' specified in paragraph (h)(1) of the Dolphin Consumer
Protection Information Act (DCPIA)(16 U.S.C. 1385(h)(1)), i.e., that no
dolphins were killed or seriously injured during the sets in which the
tuna were caught. Similarly, if the Secretary's final finding by
December 31, 2002, concludes that a significant adverse impact is
either not occurring or has not been detected, the definition of
``dolphin-safe'' under paragraph (h)(1) of the DCPIA will apply.
Alternatively, if the Secretary finds a ``significant adverse impact,''
the definition would revert to the default standard. The proposed
regulations provide that, by notification in the Federal Register, the
Assistant Administrator will implement any required change in the
labeling standard without additional rulemaking.
[[Page 31810]]
Sundown Sets
Under a 1988 amendment to the MMPA (Pub. L. 100-711), the backdown
procedure must be completed no later than one-half hour after sundown.
Moreover, the La Jolla Agreement and the IDCP both specified that this
procedure must be completed no later than one-half hour after sundown.
In contrast, apparently due to a typographical error, section
303(a)(2)(B)(5) of the IDCPA states that backdown procedures must be
completed no later than one-half hour before sundown. No Congressional
reports or colloquy indicate that this ``revision'' was adopted
purposefully. Furthermore, under the May 1998 Agreement on the IDCP,
signatory nations agreed that the backdown procedure must be completed
no later than one-half hour after sundown. Since the purpose of the May
1998 Agreement on the IDCP is to implement the IDCP, NMFS proposes that
requiring the backdown procedure to be completed no later than one-half
hour after sundown, best represents the language of the May 1998
Agreement on the IDCP and the spirit of the IDCP. Therefore, the
proposed rule requires the backdown procedure be completed no later
than one-half hour after sundown for every set encircling dolphin.
Official Mark
The DPCIA, as revised by the IDCPA, requires the Secretary to
develop an official mark that can be used to indicate a tuna product is
``dolphin-safe.'' The Secretary is considering designating a commonly
used ``dolphin-safe'' logo as the official mark and will make this
designation in a later rulemaking. In the meantime, this rule would
only ``reserve'' 50 CFR 216.96 as the section of the regulations that
NMFS will use in the future to describe the official mark.
The DPCIA does not mandate the use of the official mark, or
prohibit the use of a mark or label other than the official mark that
suggests processed tuna is ``dolphin-safe'' (``alternative mark'').
Although the DPCIA does not prohibit the use of alternative marks,
paragraphs (d)(3)(C)(i)-(iii) of the DPCIA appear to establish
standards applicable only to processed tuna labeled with alternative
marks or labels that refer to marine mammals. Those apparently separate
standards are (1) no dolphins were killed or seriously injured in the
sets or other gear deployments in which the tuna were caught; (2) the
mark is supported by a tracking and verification program comparable in
effectiveness to the program established by NMFS regulations; and (3)
the mark comports with applicable laws and regulations of the Federal
Trade Commission.
Upon analysis, DPCIA paragraph (d)(3)(C) does not require a
separate set of standards in these regulations. First, the labeling
standards in paragraphs (d)(1) and (2) of the DPCIA apply to all
processed tuna whether labeled with the official mark or with an
alternative mark. Second, the DPCIA paragraphs (d)(3)(C)(i) and (iii)
standards applicable to processed tuna labeled with alternative marks
are either less stringent or identical to the standards that apply to
processed tuna labeled with the official mark. Third, the standard
described in DPCIA paragraph (d)(3)(C)(ii) would only be applicable if
an alternative mark were supported by an alternative tracking and
verification program. Instead of determining whether alternative
tracking and verification programs meet the NMFS standards, NMFS
proposes to require that anyone who imports, exports, or sells tuna in
the United States that was harvested in the ETP comply with the
tracking and verification program described in this rule. In other
words, an alternative mark would be required to be supported by the
official tracking and verification program. Therefore, NMFS need not
determine that an alternative program is ``comparable in
effectiveness'' to the official program. While nothing in these
regulations is intended to inhibit a company or group from establishing
an alternative tracking and verification program, such a program would
not be a substitute for the program described here.
Therefore, NMFS proposes to establish a single standard for the use
of labels on tuna product that refers to a marine mammal or suggests
that the processed tuna was harvested by a method not injurious to
dolphin. That standard would be the same, regardless of whether the
label was the official mark that will be promulgated by the Secretary
or an alternative mark.
Tracking and Verification
Paragraph (f) of the DPCIA (16 U.S.C. 1385(f)), as revised by the
IDCPA, requires the Secretary to issue regulations for a domestic
program to track and verify tuna labeled ``dolphin-safe.'' At the same
time as NMFS is developing a U.S. domestic program, parties to the May
1998 Agreement on the IDCP are working together to develop an
international tracking and verification system for tuna landed by purse
seine vessels fishing in the ETP. Section 216.94 of the proposed
regulations is intended to implement paragraph (f) of the DPCIA, while,
to the greatest extent practicable, keeping the domestic program in
line with the still-developing international program.
The proposed domestic tracking and verification program provides
for effective tracking of tuna harvested from the ETP by U.S. and
foreign vessels. The proposed program would track tuna caught by U.S.
purse seine vessels in the ETP from capture, to well, to processing, to
final sale, while noting which tuna was ``dolphin-safe'' and which tuna
was ``non-dolphin-safe.''
The fishing vessel observer will designate each well into which
tuna is loaded as either ``dolphin-safe,'' ``non-dolphin-safe,'' or
``mixed.'' The vast majority of wells are expected to be either
``dolphin-safe'' or ``non-dolphin-safe.'' ``Mixed'' wells should be a
rare occurrence. Under the interim labeling standard, the fishing
vessel observer will designate a well ``non-dolphin-safe'' if any tuna
loaded into the well was harvested (1) on a trip in which purse seines
were intentionally set on dolphin, or (2) in a set in which any dolphin
died or was seriously injured. The observer will designate a well as
``dolphin-safe'' if all the tuna loaded into the well was harvested
during a trip without intentional sets on dolphins and during sets in
which dolphins were intentionally encircled but no mortality or serious
injury of dolphin was observed. If the labeling standard changes after
March 1999, the observer would designate a well ``non-dolphin-safe'' if
tuna is loaded into the well that was harvested during a set in which a
dolphin died or was seriously injured. Conversely, the observer would
designate a well ``dolphin-safe'' if all tuna loaded into that well was
harvested during sets in which no dolphin died or was seriously
injured.
Regardless of which labeling standard is in effect, if a ``dolphin-
safe'' well, containing some amount of ``dolphin-safe'' tuna, is later
loaded with tuna caught in a set in which a dead or seriously injured
dolphin was discovered late in the loading process, that well would
then be designated ``mixed.'' The observer will record the estimated
weight of the ``dolphin-safe'' tuna already in the well. The tuna
already in the well will retain its status as ``dolphin-safe'' tuna
even though ``non-dolphin-safe'' tuna is stored in the same well.
Subsequently, only ``non-dolphin-safe'' tuna could be loaded into that
well.
At least 48 hours before a scheduled arrival in port, including
ports outside the United States, U.S. purse seine vessels would be
required to report to NMFS the scheduled place and time of arrival. The
purpose of this report
[[Page 31811]]
would be to give NMFS an opportunity to send a representative to meet
the vessel and verify the contents of the wells and the ``dolphin-
safe'' status of the tuna. The Captain would be required to submit a
written report of each set made during the fishing trip to NMFS
detailing the weights by species composition, estimated tons loaded,
the dates of loading into the well, the ``dolphin-safe'' ``non-dolphin-
safe'' or ``mixed'' designation of each well, set number, the trip
number, the observer name, the captain name, the vessel name, and the
trip dates.
Likewise, when tuna harvested in the ETP is scheduled to be
delivered to a tuna canning company, the company would be required to
provide 48-hour advance notice to NMFS of the location and arrival time
of such shipment.
After unloading from the fishing vessel and throughout processing,
``dolphin-safe'' and ``non-dolphin-safe'' tuna would be strictly
segregated. Can codes (that is, the unique number pressed onto each can
of processed tuna) could be used to trace the tuna to a particular
fishing trip by a particular vessel and, indirectly, to a particular
well on the vessel. Fishing companies, importers, and canners would all
be required to maintain relevant FCO and other records of the tuna for
three years. NMFS would have the authority to request copies of
relevant documents for inspection and could conduct audits and spot-
checks of facilities.
In these tracking and verification regulations and the
Environmental Assessment analyzing this program, NMFS has addressed
each subsection of section (f) of the DPCIA, as follows: (1) Weight
calculations of the amount of ``dolphin-safe'' and ``non-dolphin-safe''
tuna loaded into segregated wells after each set will be a required
part of observers' reporting on forms to be revised by the IATTC in
accordance with the international tracking and verification program.
Tuna processors will use weight calculations to report ``dolphin-safe''
and ``non-dolphin-safe'' tuna received for immediate processing or cold
storage and also for tuna being removed from cold storage for sale or
processing; (2) the U.S. observer program has not been used in this
fishery for years so these regulations do not propose changes to our
domestic program, but the parties to the IDCP are working to improve
the training, monitoring, and reporting components of the existing
IATTC and other national observer programs; (3) the observer reports
would indicate the ``dolphin-safe'' or ``non-dolphin-safe'' status of
each well aboard the fishing vessel; however, NMFS is not proposing to
require wells be ``sealed'' because sealing wells effectively is not
practicable and furtively moving significant quantities of frozen
blocks of large tuna from well to well during a trip is very unlikely;
(4) tracking and storage of radio and facsimile communications from
vessels would not be useful to track or verify tuna products, but NMFS
proposes to mandate the creation or maintenance of such records if the
industry keeps the records anyway (for its own purposes); (5) shore-
based verification coupled with IATTC records and other reports
required by these regulations form the backbone of the proposed
tracking and verification program; (6) as indicated in proposed
Sec. 216.94, NMFS would conduct periodic spot-checks and audits of tuna
facilities; (7) negotiations with other ETP harvesting nations are
expected to result in a cooperative, international tracking program
under which participating nations will share data and inspect fish
processing facilities under mutually agreeable protocols.
Public Comments Solicited; Public Hearings
NMFS is soliciting comments on this proposed rule. Oral comments,
as well as written comments, may be presented at public hearings on the
proposed rule (see ADDRESSES and DATES). Written comments on the
proposed rule may also be submitted to J. Allison Routt (see ADDRESSES
and DATES).
Special Accommodations
These hearings will be physically accessible to people with
disabilities. Requests for sign language interpretation or other aids
should be directed to J. Allison Routt at least 10 days prior to the
hearing date (see ADDRESSES).
Classification
Executive Order 12866
Pursuant to the procedures established to implement section 6 of
E.O. 12866, the Office of Management and Budget (OMB) has determined
that this rule is significant.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. There are 15 to 17 small vessels in the U.S. purse
seine fleet that fish most years; these have 363 mt or less carrying
capacity. These vessels are small business entities generating less
than $3 million in gross revenues each year from all landings. The only
action in the proposed rule specifically intended to restrict small
vessels is the formal prohibition of setting on dolphin. However, these
vessels have not set on dolphin in the past. There would be no
substantial compliance costs or paperwork burdens imposed on small
vessels. Finally, while the proposed actions may result in increased
supply of raw tuna to U.S. and foreign processors, it is not expected
to result in lower prices being paid to fishing vessels, regardless of
their size. With respect to the U.S. processing sector, there are no
small processing firms. With respect to the wholesale and broker
sectors, there are no known small U.S. firms involved in these sectors
handling ETP-origin tuna or tuna products. Even if there were small
entities involved in the business of brokering or wholesaling, they
would be affected only minimally by recordkeeping requirements
associated with tracking ``dolphin-safe'' tuna product. None of the
other actions in this proposed rule would impose any costs nor affect
revenues of such businesses.
Paperwork Reduction Act
Notwithstanding any other provision of the law, no person is
required to respond to, nor will any person be subject to a penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
This proposed rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA). One existing requirement
is repeated: exporters from all countries importing tuna and tuna
products, except some fresh products, into the United States must
provide information about the shipment to U.S. Customs using the
Fisheries Certificates of Origin (NOAA Form 370). Approved by the OMB
under control number 0648-0335, the public reporting burden for this
collection is estimated to average 20 minutes per submission.
This proposed rule also contains new collection-of-information
requirements which have been submitted to OMB for review and approval.
The estimated burden for these requirements are as follows: 30 minutes
for an application for a vessel permit; 10 minutes for an application
for an operator permit; 30 minutes for a request for a waiver to
transit the ETP without a permit; 10 minutes for a notification by a
vessel
[[Page 31812]]
permit holder 5 days prior to departure on a fishing trip; 10 minutes
for the requirement that vessel permit holders who intend to make
intentional sets on marine mammals must notify NMFS at least 48 hours
in advance if there is a vessel operator change or within 72 hours if
the change was made due to an emergency; 10 minutes for a notification
by a vessel permit holder of any net modification at least 5 days prior
to departure of the vessel; 15 minutes for a request for a DML; 20
hours for an experimental fishing operation waiver; 10 minutes for a
notification by a captain; managing owner; or vessel agent 48 hours
prior to arrival to unload; 1 hour for a captain to complete the tuna
tracking form; 5 minutes for a captain to complete the dolphin-safe
certification; 10 minutes for a notification by a cannery 24 hours
prior to receiving a shipment of domestic or imported ETP caught tuna;
10 minutes for a cannery to provide the processor's receiving report;
10 minutes for a cannery to provide the processor's storage removal
report; 1 hour for a cannery to provide the monthly cannery receipt
report; 30 minutes for an exporter; transshipper; importer; or
processor to produce records if requested by the Administrator,
Southwest Region.
The preceding public reporting burden estimates for collections of
information include time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
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 will 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 the Administrator, Southwest Region at
the address above, and to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, D.C.
20503 (Attention: NOAA Desk Officer).
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Marine mammals, Penalties, Reporting and
recordkeeping requirements, Transportation.
Dated: June 8, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
For the reasons set out in the preamble, 50 CFR part 216 is
proposed to be amended as follows:
PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
2. In Sec. 216.3, definitions of ``ABI'', ``Director, Southwest
Region'', ``ETP Fishing Area 1'', ``ETP Fishing Area 2'', ``ETP Fishing
Area 3'', ``Fishing season'', ``Kill-per-set'', ``Kill-per-ton'', and
``Purse seine set on common dolphins'' are removed, and definitions for
``Administrator, Southwest Region'', ``Agreement on the International
Dolphin Conservation Program'', ``Declaration of Panama'', ``Force
majeure'', ``International Dolphin Conservation Program'',
``International Dolphin Conservation Program Act'', ``International
Review Panel'', and ``Per-stock per-year dolphin mortality limit'' are
added in alphabetical order to read as follows:
Sec. 216.3 Definitions.
* * * * *
Administrator, Southwest Region means the Regional Administrator,
Southwest Region, National Marine Fisheries Service, 501 W. Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
Agreement on the International Dolphin Conservation Program
(Agreement on the IDCP) means the Agreement establishing the formal
binding IDCP that was signed in Washington, DC on May 21, 1998.
* * * * *
Declaration of Panama means the declaration signed in Panama City,
Republic of Panama, on October 4, 1995.
* * * * *
Force majeure means forces outside the vessel operator's or vessel
owner's control that could not be avoided by the exercise of due care.
* * * * *
International Dolphin Conservation Program (IDCP) means the
international program established by the agreement signed in La Jolla,
California, in June 1992, as formalized, modified, and enhanced in
accordance with the Declaration of Panama and the Agreement on the
IDCP.
International Dolphin Conservation Program Act (IDCPA) means Public
Law 105-42, enacted into law on August 15, 1997.
International Review Panel (IRP) means the International Review
Panel established by the Agreement on the IDCP.
* * * * *
Per-stock per-year dolphin mortality limit means the maximum
allowable number of incidental dolphin mortalities and serious injuries
from a specified stock per calendar year, as established under the
IDCP.
* * * * *
3. In Sec. 216.24, the introductory Note to Sec. 216.24 and
paragraphs (e)(9), (f)(4), and (f)(7) are removed; paragraphs (e) and
(f) are redesignated as paragraphs (f) and (e) respectively; newly
designated paragraphs (e)(5) and (e)(6) are redesignated as paragraphs
(e)(4) and (e)(5) respectively; newly designated paragraphs (f)(6) and
(f)(8) are redesignated as paragraphs (f)(10) and (f)(11) respectively;
and the section heading, paragraphs (a)(1), (a)(2)(i), (a)(2)(ii),
(a)(3), (b) through (d), newly designated paragraphs (e)(1) through
(e)(3), (f)(2), (f)(3) through (f)(5), and paragraph (g) are revised;
and paragraphs (f)(6) through (f)(9), and (f)(12) are added to read as
follows:
Sec. 216.24 Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical Pacific
Ocean.
(a)(1) No marine mammal may be taken in the course of a commercial
fishing operation by a United States purse seine fishing vessel in the
ETP unless the taking constitutes an incidental catch as defined in
Sec. 216.3, and vessel and operator permits have been obtained in
accordance with these regulations, and such taking is not in violation
of such permits or regulations.
(2)(i) It is unlawful for any person using a United States purse
seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt))
carrying capacity or less intentionally to deploy a net on or to
encircle dolphins, or to carry more than two speedboats, if any part of
its fishing trip is in the ETP.
(ii) It is unlawful for any person using a United States purse
seine fishing vessel of greater than 400 short tons (362.8 mt) carrying
capacity that does not have a valid permit obtained under these
regulations to catch, possess, or land tuna if any part of the vessel's
fishing trip is in the ETP.
* * * * *
(3) Upon written request made in advance of entering the ETP, the
limitations in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may
be waived by the Administrator, Southwest
[[Page 31813]]
Region, for the purpose of allowing transit through the ETP. The waiver
will provide, in writing, the terms and conditions under which the
vessel must operate, including a requirement to report by radio to the
Administrator, Southwest Region, the vessel's date of exit from or
subsequent entry into the permit area, in order to transit the area
with more than two speedboats.
(b) Permits--(1) Vessel permit. The owner or managing owner of a
United States purse seine fishing vessel of greater than 400 st (362.8
mt) carrying capacity that participates in commercial fishing
operations in the ETP must possess a valid vessel permit issued under
this paragraph (b) of this section. This permit is not transferable and
must be renewed annually. If a vessel permit holder surrenders his/her
permit to the Administrator, Southwest Region, the permit will not be
returned and a new permit will not be issued before the end of the
calendar year, except that a permit may be transferred to the new owner
when the vessel ownership changes. Vessel permits will be valid through
December 31 of each year.
(2) Operator permit. The person in charge of and actually
controlling fishing operations (hereinafter referred to as the
operator) on a United States purse seine fishing vessel engaged in
commercial fishing operations under a vessel permit must possess a
valid operator permit issued under this paragraph (b) of this section.
Such permits are not transferable and must be renewed annually. To
receive a permit, the operator must have satisfactorily completed all
required training under (c)(4) of this section. The operator's permit
is valid only when the permit holder is on a vessel with a valid vessel
permit. Operator permits will be valid through December 31 of each
year.
(3) Possession and display. A valid vessel permit issued pursuant
to paragraph (b)(1) of this section must be on board the vessel while
engaged in fishing operations, and a valid operator permit issued
pursuant to paragraph (b)(2) of this section must be in the possession
of the operator to whom it was issued. Permits must be shown upon
request to NMFS enforcement agents, or to U.S. Coast Guard officers,
and to designated agents of NMFS and IATTC (including observers). A
vessel owner or operator who is at sea on a fishing trip when his or
her permit expires and to whom a permit for the next year has been
issued may take marine mammals under the terms of the new permit
without having to display it on board the vessel until the vessel
returns to port.
(4) Application for vessel permit. The owner or managing owner of a
purse seine vessel may apply for a permit from the Administrator,
Southwest Region, allowing at least 45 days for processing. An
application must contain:
(i) The name, official number, tonnage, carrying capacity in short
or metric tons, maximum speed in knots, processing equipment, and type
and quantity of gear, including an inventory of equipment required
under paragraph (c)(2) of this section if the application is for purse
seining involving the intentional taking of marine mammals, of the
vessel that is to be covered under the permit;
(ii) A statement of whether or not the vessel will make sets
involving the intentional taking of marine mammals;
(iii) The type and identification number(s) of Federal, State, and
local commercial fishing licenses under which vessel operations are
conducted, and the dates of expiration;
(iv) The name(s) of the operator(s) anticipated to be used; and
(v) The name and signature of the applicant, whether he/she is the
owner or the managing owner, his/her address, telephone and fax
numbers, and, if applicable, the name, address, telephone and fax
numbers of the agent or organization acting on behalf of the vessel.
(5) Application for operator permit. An applicant for an operator
permit must provide the following information to the Administrator,
Southwest Region, allowing at least 45 days for processing:
(i) The name, address, telephone and fax numbers of the applicant;
(ii) The type and identification number(s) of any Federal, state,
and local fishing licenses held by the applicant;
(iii) The name of the vessel(s) on which the applicant anticipates
serving as an operator;
(iv) The date, location, and provider of any training for the
operator permit; and
(v) The applicant's signature or the signature of the applicants
representative, if any.
(6) Fees. An application for a permit under paragraph (b)(1) of
this section must include a fee of $200.00 for each vessel. There is no
fee for the operator certificate. The Assistant Administrator may
change the amount of these fees required at any time if a different fee
is determined in accordance with the NOAA Finance Handbook and
specified by the Administrator, Southwest Region, on the application
form. Notification of such change will be published in the Federal
Register. The vessel permit holder will submit the fee for the
placement of observers, as established by the IATTC or other approved
observer program, to the Administrator, Southwest Region, by September
1 of the year prior to the year in which the vessel will be operated in
the ETP, for transmittal by the date the application for a vessel
permit is due.
(7) The Administrator, Southwest Region, will determine the
adequacy and completeness of an application and, upon determining that
an application is adequate and complete, will approve that application
and issue the appropriate permit, except for applicants having unpaid
or overdue civil penalties, criminal fines, or other liabilities
incurred in a legal proceeding.
(8) Conditions applicable to all permits-- (i) General conditions.
Failure to comply with the provisions of a permit or with these
regulations may lead to suspension, revocation, modification, or denial
of a permit. The permit holder, vessel, vessel owner, operator, or
master may be subject, jointly and severally, to the penalties provided
for under the MMPA. Procedures governing permit sanctions and denials
are found at subpart D of 15 CFR part 904.
(ii) Observer placement. By obtaining a permit, the permit holder
consents to the placement of an observer on the vessel during every
trip involving operations in the ETP and agrees to payment of the fees
for observer placement to the IATTC or other designated international
organization. The observers may be placed under an observer program of
NMFS or of the IATTC, or under another international observer program
approved by the IDCP and the Administrator, Southwest Region.
(iii) Explosives. The use of explosive devices is prohibited in all
tuna purse seine operations that involve marine mammals.
(iv) Reporting requirements. In accordance with paragraph (e) of
this section, the vessel permit holder of each permitted vessel will
notify the Administrator, Southwest Region or the IATTC contact
designated by the Administrator, Southwest Region, at least 5 days in
advance of the vessel's departure on a fishing voyage to allow for
observer placement on every voyage. After a fishing voyage is
initiated, the vessel is obligated to carry an observer until the
vessel completes its voyage. A vessel that fails to carry an observer
in accordance with these observer placement requirements must not
engage in fishing operations for which a vessel permit is required.
(v) Data release. By using a permit, the permit holder authorizes
the release
[[Page 31814]]
to NMFS of all data collected by observers aboard purse seine vessels
during fishing trips under the IATTC observer program or another
international observer program approved by the Administrator, Southwest
Region. The permit holder must furnish the international observer
program with all release forms required to authorize the observer data
to be provided to NMFS. Data obtained under such releases will be used
for the same purposes as would data collected directly by observers
placed by NMFS and will be subject to the same standards of
confidentiality.
(vi) Protection from personal injury. A permit holder must take all
necessary steps to protect a person from personal injury without
killing or injuring a marine mammal.
(vii) Protection from personal injury. Only if there are no
alternative means to deter a marine mammal from causing personal
injury, may a permit holder injure or kill the animal causing or about
to cause immediate personal injury.
(viii) Retention ermit. Marine mammals taken in the course of
commercial fishing operations will be subject to the provisions of
Sec. 216.3 with respect to ``incidental catch,'' and must not be
retained except where a specific permit has been obtained authorizing
the retention.
(9) Mortality and serious injury reports. The Administrator,
Southwest Region, will provide to the public periodic status reports
summarizing the estimated incidental dolphin mortality and serious
injury by U.S. vessels of individual species and stocks.
(c) Purse seining by vessels with DMLs. In addition to the terms
and conditions set forth in paragraph (b) of this section, any permit
for a vessel to which a DML has been assigned under paragraph (c)(8) of
this section and any operator permit when used on such a vessel are
subject to the following terms and conditions:
(1) General conditions. (i) A vessel may be used to take marine
mammals only if the taking is an incidental occurrence in the course of
normal commercial tuna purse seine fishing operations and the fishing
operations are under the immediate direction of the holder of a valid
operator's permit.
(ii) Except as otherwise authorized by a specific permit, marine
mammals incidentally taken must be immediately returned to the
environment where captured without further injury. The operator of a
purse seine vessel must take every precaution to refrain from causing
or permitting incidental mortality or serious injury of marine mammals.
Live marine mammals must not be brailed, sacked up, or hoisted onto the
deck during ortza retrieval.
(iii) The vessel permit holder will notify the Administrator,
Southwest Region, or the IATTC contact designated by the Administrator,
Southwest Region, of any change of vessel operator at least 48 hours
prior to departing on a trip. In the case of a change in operator due
to an emergency, notification must be made within 72 hours of the
change.
(2) Gear, equipment, and release procedures required for valid
permit. A vessel possessing a vessel permit for purse seining involving
the intentional taking of marine mammals may not engage in fishing
operations involving the intentional deployment of the net on or
encirclement of dolphins unless it is equipped with a dolphin safety
panel in its purse seine, has the other required gear and equipment,
and uses the required procedures.
(i) Dolphin safety panel. The dolphin safety panel must be a
minimum of 180 fathoms in length (as measured before installation),
except that the minimum length of the panel in nets deeper than 18
strips must be determined in a ratio of 10 fathoms in length for each
strip of net depth. It must be installed so as to protect the perimeter
of the backdown area. The perimeter of the backdown area is the length
of corkline that begins at the outboard end of the last bowbunch pulled
and continues to at least two-thirds the distance from the backdown
channel apex to the stern tiedown point. The dolphin safety panel must
consist of small mesh webbing not to exceed 1 1/4 inches (3.18
centimeter (cm)) stretch mesh extending downward from the corkline and,
if present, the base of the dolphin apron to a minimum depth equivalent
to two strips of 100 meshes of 4 1/4 inches (10.80 cm) stretch mesh
webbing. In addition, at least a 20-fathom length of corkline must be
free from bunchlines at the apex of the backdown channel.
(ii) Dolphin safety panel markers. Each end of the dolphin safety
panel and dolphin apron must be identified with an easily
distinguishable marker.
(iii) Dolphin safety panel hand holds. Throughout the length of the
corkline under which the dolphin safety panel and dolphin apron are
located, hand hold openings must be secured so that they will not allow
the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped
object.
(iv) Dolphin safety panel corkline hangings. Throughout the length
of the corkline under which the dolphin safety panel and dolphin apron
are located, corkline hangings will be inspected by the vessel operator
following each trip. Hangings found to have loosened to the extent that
a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be
inserted between the cork and corkline hangings, must be tightened so
as not to allow the insertion of a cylindrical object with a 1 3/8 inch
(3.50 cm) diameter.
(v) Speedboats. A minimum of three speedboats in operating
condition must be carried. All speedboats carried aboard purse seine
vessels and in operating condition must be rigged with tow lines and
towing bridles or towing posts. Speedboat hoisting bridles must not be
substituted for towing bridles.
(vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
(vii) Facemask and snorkel, or viewbox. At least two facemasks and
snorkels or viewboxes must be carried.
(viii) Lights. The vessel must be equipped with lights capable of
producing a minimum of 140,000 lumens of output for use in darkness to
ensure sufficient light to observe that procedures for dolphin release
are carried out and to monitor incidental dolphin mortality.
(3) Vessel inspection--(i) Annual. At least once during each
calendar year, purse seine nets and other gear and equipment required
by these regulations must be made available for inspection and for a
trial set/net alignment by an authorized NMFS inspector or IATTC staff
as specified by the Administrator, Southwest Region, in order to obtain
a vessel permit.
(ii) Reinspection. Purse seine nets and other gear and equipment
required by these regulations must be made available for reinspection
by an authorized NMFS inspector or IATTC staff as specified by the
Administrator, Southwest Region. The vessel permit holder must notify
the Administrator, Southwest Region, of any net modification at least 5
days prior to departure of the vessel in order to determine whether a
reinspection or trial set/net alignment is required.
(iii) Upon failure to pass an inspection or reinspection, a vessel
may not engage in purse seining involving the intentional taking of
marine mammals until the deficiencies in gear or equipment are
corrected as required by NMFS.
(4) Operator permit holder training requirements. An operator will
maintain proficiency sufficient to perform the procedures required
herein, and must attend and satisfactorily complete a formal training
session approved by the Administrator, Southwest Region, in order to
obtain his or her permit. At the training session an attendee will be
[[Page 31815]]
instructed concerning the relevant provisions and regulatory
requirements of the MMPA and the IDCP, and the fishing gear and
techniques that are required for, or will contribute to, reducing
serious injury and mortality of dolphin incidental to purse seining for
tuna. Operators who have received a written certificate of satisfactory
completion of training and who possess a current or previous calendar
year permit will not be required to attend additional formal training
sessions unless there are substantial changes in the relevant
provisions or implementing regulations of the MMPA or the IDCP, or in
fishing gear and techniques. Additional training may be required for
any operator who is found by the Administrator, Southwest Region, to
lack proficiency in the required fishing procedures or familiarity with
the relevant provisions or regulations of the MMPA or the IDCP.
(5) Marine mammal release requirements. All operators must use the
following procedures during all sets involving the incidental taking of
marine mammals in association with the capture and landing of tuna.
(i) Backdown procedure. Backdown must be performed following a
purse seine set in which dolphins are captured in the course of
catching tuna, and must be continued until it is no longer possible to
remove live dolphins from the net by this procedure. At least one
crewman must be deployed during backdown to aid in the release of
dolphins. Thereafter, other release procedures required will be
continued so that all live dolphins are released prior to the
initiation of the sack-up procedure.
(ii) Prohibited use of sharp or pointed instrument. The use of a
sharp or pointed instrument to remove any marine mammal from the net is
prohibited.
(iii) Sundown sets prohibited. On every set encircling dolphin, the
backdown procedure must be completed no later than one-half hour after
sundown, except as provided here. For the purpose of this section,
sundown is defined as the time at which the upper edge of the sun
disappears below the horizon or, if the view of the sun is obscured,
the local time of sunset calculated from tables developed by the U.S.
Naval Observatory or other authoritative source approved by the
Administrator, Southwest Region. A sundown set is a set in which the
backdown procedure has not been completed and rolling the net to sack-
up has not begun within one-half hour after sundown. Should a set
extend beyond one-half hour after sundown, the operator must use the
required marine mammal release procedures including the use of the high
intensity lighting system. In the event a sundown set occurs where the
seine skiff was let go sufficiently in advance of sundown that the
vessel should have been able to comply with the sundown set
prohibition, and an earnest effort to rescue dolphins is made, the
International Review Panel of the IDCP may recommend to the United
States that in the view of the International Review Panel, prosecution
by the United Sates is not recommended. Any such recommendation will be
considered by the United States in evaluating the appropriateness of
prosecution in a particular circumstance.
(iv) Dolphin safety panel. During backdown, the dolphin safety
panel must be positioned so that it protects the perimeter of the
backdown area. The perimeter of the backdown area is the length of
corkline that begins at the outboard end of the last bow bunch pulled
and continues to at least two-thirds the distance from the backdown
channel apex to the stern tiedown point.
(6) Experimental fishing operations. The Administrator, Southwest
Region, may authorize experimental fishing operations, consistent with
the provisions of the IDCP, for the purpose of testing proposed
improvements in fishing techniques and equipment that may reduce or
eliminate dolphin mortality or serious injury, or do not require the
encirclement of dolphins in the course of fishing operations. The
Administrator, Southwest Region, may waive, as appropriate, any
requirements of this section except DMLs and the obligation to carry an
observer.
(i) A vessel permit holder may apply for an experimental fishing
operation waiver by submitting the following information to the
Administrator, Southwest Region, no less than 90 days before the date
the proposed operation is intended to begin:
(A) The name(s) of the vessel(s) and the vessel permit holder(s) to
participate;
(B) A statement of the specific vessel gear and equipment or
procedural requirement to be exempted and why such an exemption is
necessary to conduct the experiment;
(C) A description of how the proposed modification to the gear and
equipment or procedures is expected to reduce incidental mortality or
serious injury of marine mammals;
(D) A description of the applicability of this modification to
other purse seine vessels;
(E) The planned design, time, duration, and general area of the
experimental operation;
(F) The name(s) of the permitted operator(s) of the vessel(s)
during the experiment; and
(G) A statement of the qualifications of the individual or company
doing the analysis of the research.
(ii) The Administrator, Southwest Region, will acknowledge receipt
of the application and, upon determining that it is complete, will
publish a notice in the Federal Register summarizing the application,
making the full application available for inspection and inviting
comments for a minimum period of 30 days from the date of publication.
(iii) The Administrator, Southwest Region, after considering the
information identified in paragraph (c)(6)(i) of this section and the
comments received, will either issue a waiver to conduct the experiment
which includes restrictions or conditions deemed appropriate, or deny
the application, giving the reasons for denial.
(iv) A waiver for an experimental fishing operation will be valid
only for the vessels and operators named in the permit, for the time
period and areas specified, for trips carrying an observer designated
by the Administrator, Southwest Region, when all the terms and
conditions of the permit are met.
(v) The Administrator, Southwest Region, may suspend or revoke an
experimental fishing waiver in accordance with 15 CFR part 904 if the
terms and conditions of the waiver or the provisions of the regulations
are not followed.
(7) Operator permit holder performance requirements. [Reserved]
(8) Vessel permit holder dolphin mortality limits. For purposes of
this paragraph, the term ``vessel permit holder'' includes both the
holder of a current vessel permit and also the holder of a vessel
permit for the following year.
(i) By September 1 each year, a vessel permit holder desiring a DML
for the following year must provide to the Administrator, Southwest
Region, the name of the United States purse seine fishing vessel(s) of
carrying capacity greater than 400 st (362.8 mt) that the owner intends
to use to intentionally deploy purse seine fishing nets in the ETP to
encircle dolphins in an effort to capture tuna during the following
year. NMFS will forward the list of purse seine vessels to the Director
of the IATTC on or before October 1, or as otherwise required by the
IDCP, for assignment of a DML for the following
[[Page 31816]]
year under the provisions of Annex IV of the Agreement on the IDCP.
(ii) Each vessel permit holder who desires a DML for the period
July 1 to December 31 for a vessel that has not previously had a DML
assigned for the year must provide the Administrator, Southwest Region,
by September 1 of the prior year, the name of the United States purse
seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying
capacity that the owner intends to use to intentionally deploy purse
seine fishing nets in the ETP to encircle dolphins in an effort to
capture tuna during the period. NMFS will forward the list of purse
seine vessels to the Director of the IATTC on or before April 1, or as
otherwise required under the IDCP, for possible assignment of a DML for
the 6-month period July 1 to December 31. Under the IDCP, the DML will
be calculated by the IDCP from any unutilized pool of DMLs in
accordance with the procedure described in Annex IV of the Agreement on
the IDCP and will not exceed one-third of an unadjusted full-year DML
as calculated by the IDCP.
(iii)(A) The Administrator, Southwest Region, will notify vessel
owners of the DML assigned for each vessel for the following year, or
the second half of the year, as applicable.
(B) The Administrator, Southwest Region, may adjust the DMLs in
accordance with Annex IV of the Agreement on the IDCP. All adjustments
of full-year DMLs will be made before January 1, and the Administrator,
Southwest Region, will notify the Director of the IATTC of any
adjustments prior to a vessel departing on a trip using its adjusted
DML. The notification will be no later than February 1 in the case of
adjustments to full-year DMLs, and no later than May 1 in the case of
adjustments to DMLs for the second half of the year.
(C) Within the requirements of Annex IV of the Agreement on the
IDCP, the Administrator, Southwest Region, may adjust a vessel's DML if
it will further scientific or technological advancement in the
protection of marine mammals in the fishery or if the past performance
of the vessel indicates that the protection or use of the yellowfin
tuna stocks or marine mammals is best served by the adjustment, within
the mandates of the MMPA. Experimental fishing operation waivers or
scientific research permits will be considered a basis for adjustments.
(iv)(A) A vessel assigned a full-year DML that does not make a set
on dolphins by April 1 or that leaves the fishery will lose its DML for
the remainder of the year, unless the failure to set on dolphins is due
to force majeure or other extraordinary circumstances as determined by
the International Review Panel.
(B) A vessel assigned a DML for the second half of the year will be
considered to have lost its DML if the vessel has not made a set on
dolphins before December 31, unless the failure to set on dolphins is
due to force majeure or extraordinary circumstances as determined by
the International Review Panel.
(C) Any vessel that loses its DML for 2 consecutive years will not
be eligible to receive a DML for the following year.
(D) NMFS will determine, based on available information, whether a
vessel has left the fishery.
(1) A vessel lost at sea, undergoing extensive repairs, operating
in an ocean area other than the ETP, or for which other information
indicates will no longer be conducting purse seine operations in the
ETP for the remainder of the period covered by the DML will be
determined to have left the fishery.
(2) NMFS will make all reasonable efforts to determine the
intentions of the vessel owner, and the owner of any vessel that has
been preliminarily determined to have left the fishery will be provided
notice of such preliminary determination and given the opportunity to
provide information on whether the vessel has left the fishery prior to
NMFS making a final determination under 15 CFR part 904 and notifying
the IATTC.
(v) Any vessel that exceeds its assigned DML after any applicable
adjustment under paragraph (c)(8)(iii) of this section will have its
DML for the subsequent year reduced by 150 percent of the overage,
unless another adjustment is determined by the International Review
Panel.
(vi) A vessel that is covered by a valid vessel permit and that
does not normally fish for tuna in the ETP but desires to participate
in the fishery on a limited basis may apply for a per-trip DML from the
Administrator, Southwest Region, at any time, allowing at least 60 days
for processing. The request must state the expected number of trips
involving sets on dolphins and the anticipated dates of the trip or
trips. The request will be forwarded to the Director of the IATTC for
processing in accordance with Annex IV of the Agreement on the IDCP. A
per-trip DML will be assigned if one is made available in accordance
with the terms of Annex IV of the IDCP. If a vessel assigned a per-trip
DML does not set on dolphins during that trip, the vessel will be
considered to have lost its DML unless this was a result of force
majeure or other extraordinary circumstances as determined by the
International Review Panel. After two consecutive losses of a DML, a
vessel will not be eligible to receive a DML for the next fishing year.
(vii) Observers will make their records available to the vessel
operator at any reasonable time, including after each set, in order for
the operator to monitor the balance of the DML(s) remaining for use.
(viii) Vessel and operator permit holders must not deploy a purse
seine net on or encircle any school of dolphins containing individuals
of a particular stock of dolphins:
(A) when the applicable per-stock per-year dolphin mortality limit
for that stock of dolphins for that vessel, if so assigned, has been
reached or exceeded; or
(B) after the time and date provided in actual notification or
notification in the Federal Register by the Administrator, Southwest
Region, based upon the best available evidence, stating when any
applicable per-stock per-year dolphin mortality limit has been reached
or exceeded, or is expected to be reached in the near future.
(ix) If individual dolphins belonging to a stock that is prohibited
from being taken are not reasonably observable at the time the net
skiff attached to the net is released from the vessel at the start of a
set, the fact that individuals of that stock are subsequently taken
will not be cause for enforcement action provided that all procedures
required by the applicable regulations have been followed.
(x) Vessel and operator permit holders must not intentionally
deploy a purse seine net on or encircle dolphins intentionally:
(A) when the vessel's DML, as adjusted, is reached or exceeded; or
(B) after the date and time provided in actual notification or
notice in the Federal Register by the Administrator, Southwest Region,
based upon the best available evidence, that intentional sets on
dolphins must cease because the total of the DMLs assigned to the U.S.
fleet has been reached or exceeded, or is expected to be exceeded in
the near future in the absence of the notification to cease intentional
sets on dolphins.
(xi) Sanctions recommended by the International Review Panel for
any violation of these rules will be considered by NMFS and NOAA in
enforcement actions brought under these regulations.
(xii) Intentionally deploying a purse seine net on, or to encircle,
dolphins after a vessel's DML, as adjusted, has been reached will
disqualify the vessel from consideration for a DML for the
[[Page 31817]]
following year. If already assigned, the DML for the following year
will be withdrawn, and the Director of the IATTC will be notified by
NMFS that the DML assigned to that vessel will be unutilized.
Procedures found at 15 CFR part 904 apply to the withdrawal of the
permit.
(d) Purse seining by vessels without assigned DMLs. In addition to
the requirements of paragraph (b) of this section, a vessel permit used
for a trip not involving an assigned DML and the operator's permit when
used on such a vessel are subject to the following terms and
conditions: a permit holder may take marine mammals provided that such
taking is an accidental occurrence in the course of normal commercial
fishing operations and the vessel does not intentionally deploy its net
on, or to encircle, dolphins; marine mammals taken incidental to such
commercial fishing operations will be immediately returned to the
environment where captured without further injury, using release
procedures such as hand rescue, and aborting the set at the earliest
effective opportunity; the use of one or more rafts and facemasks or
viewboxes to aid in the rescue of dolphins is recommended.
(e) Observers--(1) The holder of a vessel permit must allow an
observer duly authorized by the Administrator, Southwest Region, to
accompany the vessel on all fishing trips in the ETP for the purpose of
conducting research and observing operations, including collecting
information that may be used in civil or criminal penalty proceedings,
forfeiture actions, or permit or certificate sanctions.
(2) Research and observation duties will be carried out in such a
manner as to minimize interference with commercial fishing operations.
Observers must be provided access to vessel personnel and to dolphin
safety gear and equipment, electronic navigation equipment, radar
displays, high powered binoculars, and electronic communication
equipment. The navigator must provide true vessel locations by latitude
and longitude, accurate to the nearest minute, upon request by the
observer. Observers must be provided with adequate space on the bridge
or pilothouse for clerical work, as well as space on deck adequate for
carrying out observer duties. No vessel owner, master, operator, or
crew member of a permitted vessel may impair, or in any way interfere
with, the research or observations being carried out. Masters must
allow observers to report, in coded form, information by radio
concerning the take of marine mammals and other observer collected data
upon request of the observer.
(3) Any marine mammals killed during fishing operations that are
accessible to crewmen and requested from the permit holder or master by
the observer must be brought aboard the vessel and retained for
biological processing, until released by the observer for return to the
ocean. Whole marine mammals or marine mammal parts designated as
biological specimens by the observer must be retained in cold storage
aboard the vessel until retrieved by authorized personnel of NMFS or
the IATTC when the vessel returns to port for unloading.
* * * * *
(f) * * *
(2)(i) HTS numbers requiring a fisheries certificate of origin,
subject to yellowfin tuna embargo. The following U.S. Harmonized Tariff
Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna
products that are harvested in the ETP purse seine fishery and imported
into the United States. All shipments containing tuna or tuna products
imported into the United States under these HTS numbers must be
accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370.
Yellowfin tuna harvested using a purse seine in the ETP, if exported
from a nation with purse seine vessels that fish for tuna in the ETP,
may not be imported into the United States unless the nation has an
affirmative finding under paragraph (f)(9) of this section.
(A) Frozen:
0303.42.00.20 Yellowfin tuna, whole, frozen.
0303.42.00.40 Yellowfin tuna, eviscerated, head on, frozen.
0303.42.00.60 Yellowfin tuna, other, frozen.
(B) Canned:
1604.14.10.00 Tuna, non-specific, in airtight containers, in oil.
1604.14.20.40 Tuna, other than albacore, not over 7kg, in airtight
containers.
1604.14.30.40 Tuna, other than albacore, in airtight containers,
not in oil, over quota.
(C) Loins:
1604.14.40.00 Tuna, not in airtight containers, not in oil, over
6.8 kg.
1604.14.50.00 Tuna, other, not in airtight containers.
(D) Other (only if the product contains tuna):
0304.10.40.99 Other fish, fillets and other fish meat, fresh or
chilled.
0304.20.20.66 Other fish, fillets, skinned, in blocks weighing over
4.5kg, frozen.
0304.20.60.99 Other fish, fillets, frozen.
0304.90.10.89 Other fish meat, in bulk or immediate containers,
fresh or chilled.
0304.90.90.92 Other fish meat, fresh or chilled.
(ii) HTS numbers requiring a fisheries certificate of origin, not
subject to yellowfin tuna embargo. The following HTS numbers identify
tuna or tuna products, other than fresh tuna or tuna identified in
paragraph (f)(2)(i) of this section, known to be imported into the
United States. All shipments imported into the United States under
these HTS numbers must be accompanied by a Fisheries Certificate of
Origin (FCO), NOAA Form 370. The shipment may not be imported into the
United States if harvested by a large-scale driftnet nation, unless
accompanied by the official statement described in paragraph (f)(5)(x)
of this section.
(A) Frozen:
0303.41.00.00 Albacore or longfinned tunas, frozen.
0303.43.00.00 Skipjack, frozen.
0303.49.00.20 Bluefin, frozen.
0303.49.00.40 Other tuna, frozen.
(B) Canned:
1604.14.20.20 Albacore tuna, in airtight containers, not in oil,
not over 7kg, in quota.
1604.14.30.20 Albacore tuna, in airtight containers, not in oil,
not in quota.
(iii) Exports from driftnet nations only: HTS numbers requiring a
fisheries certificate of origin and official certification. The
following HTS numbers identify categories of fish and shellfish, other
than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this
section, known to have been harvested using a large-scale driftnet and
imported into the United States. Shipments exported from a large-scale
driftnet nation and imported into the United States under any of the
HTS numbers listed in paragraph (f)(2) of this section must be
accompanied by an FCO and the official statement described in paragraph
(f)(5)(x) of this section.
(A) Frozen:
0303.10.00.12 Salmon, chinook, frozen.
0303.10.00.22 Salmon, chum, frozen.
0303.10.00.32 Salmon, pink, frozen.
0303.10.00.42 Salmon, sockeye, frozen.
0303.10.00.52 Salmon, coho, frozen.
0303.10.00.62 Salmon, Pacific, non-specific, frozen.
0303.21.00.00 Trout, frozen.
0303.22.00.00 Salmon, Atlantic and Danube, frozen.
0303.29.00.00 Salmonidae, other, frozen.
0303.75.00.10 Dogfish, frozen.
0303.75.00.90 Other sharks, frozen.
0303.79.20.41 Swordfish steaks, frozen
0303.79.20.49 Swordfish, other, frozen.
0303.79.40.96 Fish, other, frozen.
0304.20.20.66 Fish, fillet, skinned, in blocks frozen over 4.5
kg.
[[Page 31818]]
0304.20.60.08 Salmonidae, salmon fillet, frozen.
0304.20.60.99 Fish, fillet, frozen.
0307.49.00.10 Squid, other, fillet, frozen.
(B) Canned:
1604.11.20.20 Salmon, pink, canned in oil, in airtight
containers.
1604.11.20.30 Salmon, sockeye, canned in oil, in airtight
containers.
1604.11.20.90 Salmon, other, canned in oil, in airtight
containers.
1604.11.40.10 Salmon, chum, canned, not in oil.
1604.11.40.20 Salmon, pink, canned, not in oil.
1604.11.40.30 Salmon, sockeye, canned, not in oil.
1604.11.40.40 Salmon, other, canned, not in oil.
1604.11.40.50 Salmon, other, canned, not in oil.
1604.19.20.00 Fish, other, in airtight containers, not in oil.
1604.19.30.00 Fish, other, in airtight containers, in oil.
1605.90.60.55 Squid, loligo, prepared/preserved.
(C) Other:
0304.10.40.99 Other fish, fillets and other fish meat, fresh or
chilled.
0304.20.20.66 Other fish, fillets, skinned, in blocks weighing
over 4.5kg, frozen.
0304.20.60.98 Other fish, fillets, frozen.
0304.90.10.89 Other fish, fillets and fish meat, in bulk or in
immediate containers, fresh or chilled.
0304.90.90.92 Other fish meat, fresh or chilled.
0305.30.60.80 Fish, non-specific, fillet. dried/salted/brine.
0305.49.40.40 Fish, non-specific, smoked.
0305.59.20.00 Shark fins.
0305.59.40.00 Fish, non-specific, dried.
0305.69.40.00 Salmon, non-specific, salted.
0305.69.50.00 Fish, non-specific, in immediate containers,
salted, not over 6.8kg.
0305.69.60.00 Fish, non-specific, salted, other.
0307.49.00.50 Squid, non-specific, frozen/dried/salted/brine.
0307.49.00.60 Squid, non-specific, & cuttle fish frozen/dried/
salted/brine.
(3) Imports requiring a fisheries certificate of origin.
Shipments containing the following may not be imported into the
United States unless a completed FCO is filed with the Customs Service
at the time of importation:
(i) Tuna classified under an HTS number listed in paragraphs
(f)(2)(i) or (f)(2)(ii) of this section, or
(ii) Fish classified under an HTS number listed in paragraph (f)(2)
of this section that was harvested by a vessel of a large-scale
driftnet nation, as identified under paragraph (f)(8) of this section.
(4) Disposition of fisheries certificates of origin. The FCO form
described in paragraph (f)(5) of this section may be obtained from the
Administrator, Southwest Region, or downloaded from the Internet at
http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph
(f)(3) of this section must accompany the tuna or tuna products from
entry into the United States, through final processing for wholesale or
retail sale, and it must be endorsed at each change in ownership. FCOs
that require multiple endorsements must be submitted to the
Administrator, Southwest Region, by the last endorser when all required
endorsements are completed. An invoice must accompany the shipment at
the time of importation or, in the alternative, must be made available
within 30 days of a request by the Secretary or the Administrator,
Southwest Region, to produce the invoice.
(5) Contents of fisheries certificate of origin. An FCO, certified
to be accurate by the first exporter of the accompanying shipment, must
include the following information:
(i) Exporter's full name and complete address;
(ii) Consignee's full name and complete address;
(iii) Species description (common and scientific names), product
form, and HTS number;
(iv) Quantity in kilograms of the fish or fish products;
(v) Ocean area where the fish were harvested (ETP, Western Pacific
Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian
Ocean, or other);
(vi) Type of fishing gear used to harvest the fish (purse seine,
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and
line, or other);
(vii) Country under whose laws the harvesting vessel operated based
upon the flag of the vessel or, if a certified charter vessel, the
country that accepted responsibility for the vessel's fishing
operations;
(viii) Dates on which the fishing trip began and ended;
(ix) If the shipment includes tuna or products from tuna harvested
with a purse seine net in the eastern tropical Pacific, the name of the
harvesting vessel; and
(x) For shipments harvested by vessels of a nation known to use
large-scale driftnets, as determined by the Secretary pursuant to
paragraph (f)(8) of this section, a statement must be included on the
Fisheries Certificate of Origin, or by separate attachment, that is
dated and signed by a responsible government official of the harvesting
nation, certifying that the fish or fish products were harvested by a
method other than large-scale driftnet.
(6) Dolphin-safe label. Tuna or tuna products sold in or exported
from the United States that include on the label the term ``dolphin-
safe'' or any other term or symbol that claims or suggests the tuna
were harvested in a manner not injurious to dolphins are subject to the
requirements of subpart H of this part.
(7) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin
tuna or yellowfin tuna products harvested using a purse seine in the
ETP identified by an HTS number listed in paragraph (f)(2)(i) of this
section may not be imported into the United States if such tuna or tuna
products were:
(A) Harvested on or after the effective date of section 4 of the
IDCPA by, or exported from, a nation that the Assistant Administrator
has determined has purse seine vessels of greater than 400 st (362.8
mt) carrying capacity harvesting tuna in the ETP, unless the Assistant
Administrator has made an affirmative finding required for importation
for that nation under paragraph (f)(9) of this section;
(B) Exported from an intermediary nation, as defined in section 3
of the MMPA, and a ban is currently in force prohibiting the
importation from that nation under paragraph (f)(9)(viii) of this
section; or
(C) Harvested before the effective date of section 4 of the IDCPA
and would have been banned from importation under the section 101
(a)(2) of the MMPA at the time of harvest.
(ii) Driftnet embargo. A shipment containing an item listed in
paragraph (f)(2) of this section may not be imported into the United
States that:
(A) Was exported from or harvested on the high seas by any nation
determined by the Assistant Administrator to be engaged in large-scale
driftnet fishing, unless the FCO is accompanied by an original
statement by a responsible government official of the harvesting
nation, signed and dated by that official, certifying that the fish or
fish products were harvested by a method other than large-scale
driftnet; or
(B) Is identified on the FCO as harvested by a large-scale
driftnet.
(8) Large-scale driftnet nation: determination. Based upon the best
information available, the Assistant Administrator will determine which
nations have registered vessels that engage in fishing using large-
scale driftnets. Such determinations will be published in the Federal
Register. A responsible government official of any such nation may
certify to the Assistant Administrator that none of the nation's
vessels use large-scale driftnets. Upon receipt of the certification,
the Assistant
[[Page 31819]]
Administrator may find, and publish such finding in the Federal
Register, that none of that nation's vessels engage in fishing with
large-scale driftnets.
(9) Affirmative finding procedure for yellowfin tuna harvested
using a purse seine in the ETP. (i) The Assistant Administrator will
determine whether to make an affirmative finding based upon documentary
evidence provided by the government of the exporting nation, by the
government of the harvesting nation, if different, and by the IDCP and
the IATTC, and will publish the finding in the Federal Register. An
affirmative finding applies to tuna and tuna products that were
harvested by vessels of the nation after the effective date of section
4 of the IDCPA. To make an affirmative finding, the Assistant
Administrator must find that:
(A) The harvesting nation participates in the IDCP and is either a
member of the IATTC or has initiated (and within 6 months thereafter
completed) all steps required of applicant nations, in accordance with
article V, paragraph 3, of the Convention establishing the IATTC, to
become a member of that organization;
(B) The nation is meeting its obligations under the IDCP and its
obligations of membership in the IATTC, including all financial
obligations; and
(C) The annual total dolphin mortality and the annual per-stock
per-year dolphin mortality of the nation's purse seine fleet (including
certified charter vessels operating under its jurisdiction) did not
exceed the aggregated total of the mortality limits assigned by the
IDCP for that nation's purse seine vessels for the year preceding the
year in which the finding would start.
(ii) Documentary evidence and compliance with the IDCP.--(A)
Documentary evidence. The Assistant Administrator will make an
affirmative finding under paragraph (f)(9)(i) of this section only if
the government of the harvesting nation provides directly to the
Assistant Administrator, or authorizes the IATTC to release to the
Assistant Administrator, complete, accurate, and timely information
that enables the Assistant Administrator to determine whether the
harvesting nation is meeting the obligations of the IDCP, and whether
ETP-harvested tuna imported from such nation comports with the tracking
and verification regulations of subpart H of this part.
(B) Revocation. After considering the information provided under
paragraph (f)(9)(ii)(A) of this section, each party's funding of the
IATTC, and any other relevant information, including information that a
nation is consistently failing to take enforcement actions on
violations which diminish the effectiveness of the IDCP, the Assistant
Administrator, in consultation with the Secretary of State, will revoke
an affirmative finding issued to a nation that is not meeting the
obligations of the IDCP.
(iii) A harvesting nation may apply for an affirmative finding at
any time by providing to the Assistant Administrator the information
and authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of
this section, allowing at least 60 days from the submission of complete
information to NMFS for processing.
(iv) The Assistant Administrator will make or renew an affirmative
finding for the period from April 1 through March 31, or portion
thereof, if the harvesting nation has provided all the information and
authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this
section, and met the requirements of paragraphs (f)(9)(i) and
(f)(9)(ii) of this section.
(v) Period of validity. A finding will remain valid for 1 year or
for such other period as the Assistant Administrator may determine. An
affirmative finding will be terminated if the Assistant Administrator
determines that the requirements of this paragraph are no longer being
met.
(vi) Reconsideration of finding. The Assistant Administrator may
reconsider a finding upon a request from, and the submission of
additional information by, the harvesting nation, if the information
indicates that the nation has met the requirements under paragraphs
(f)(9)(i) and (f)(9)(ii) of this section.
(vii) Verification. The Assistant Administrator may require the
submission of supporting documentation or other verification of
statements made in connection with requests to allow importations.
(viii) Intermediary nation. Except as authorized under this
paragraph (f)(9)(viii), any tuna or tuna products in the
classifications listed in paragraph (f)(2)(i) of this section from any
intermediary nation, as that term is defined in section 3 of the MMPA,
may not be imported into the United States, unless shown not to be
yellowfin tuna or yellowfin tuna products harvested by purse seine in
the ETP. Imports from an intermediary nation of tuna and tuna products
in these classifications may be imported into the United States if the
Assistant Administrator determines and publishes in the Federal
Register that the intermediary nation has provided certification and
reasonable proof that it has not imported in the preceding 6 months
yellowfin tuna or yellowfin tuna products that are subject to a ban on
direct importation into the United States under section 101(a)(2)(B) of
the MMPA. Shipments of yellowfin tuna or yellowfin tuna products
through a nation on a through bill of lading or in another manner that
does not enter the shipments into that nation as an importation do not
make that nation an intermediary nation. The Assistant Administrator
will review decisions under this paragraph (f)(9)(viii) upon the
request of an intermediary nation. Such requests must be accompanied by
specific and detailed supporting information or documentation
indicating that a review or reconsideration is warranted. For purposes
of this paragraph (f)(9)(viii), the term ``certification and reasonable
proof'' means the submission to the Assistant Administrator by a
responsible government official from the nation of a document
reflecting the nation's customs records for the preceding 6 months,
together with a certification attesting that the document is accurate.
(ix) Pelly certification. After 6 months of an embargo being in
place against a nation under this section, that fact will be certified
to the President for purposes of certification under section 8(a) of
the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long
as the embargo remains in effect.
(x) Coordination. The Assistant Administrator will promptly advise
the Department of State and the Department of the Treasury of embargo
decisions, actions and finding determinations.
* * * * *
(12) Dolphin-safe requirements.--(i) It is unlawful for any person
to sell, purchase, offer for sale, transport, or ship in the United
States, any tuna or tuna products unless the tuna products are either
dolphin-safe or otherwise are covered by an affirmative finding made
under paragraphs (f)(9)(i) through (f)(9)(v) of this section.
(ii) For purposes of this section, tuna or tuna products are
dolphin-safe if they are dolphin-safe under subpart H of this part.
(g) Penalties. Any person or vessel subject to the jurisdiction of
the United States will be subject to the penalties provided for under
the MMPA for the conduct of fishing operations in violation of these
regulations.
4. In Subpart D, a new Sec. 216.46, is added to read as follows:
[[Page 31820]]
Sec. 216.46 U.S. citizens on foreign flag vessels operating under the
International Dolphin Conservation Program.
The MMPA's provisions will not apply to a citizen of the United
States who incidentally takes any marine mammal during fishing
operations in the ETP which are outside the U.S. exclusive economic
zone (as defined in section 3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. Sec. 1802)), while employed
on a fishing vessel of a harvesting nation that has an affirmative
finding under Sec. 216.24(f) based upon the harvesting nation's
participation in, and compliance with, the IDCP.
5. Sections 216.90 through 216.94 are revised to read as follows:
Sec. 216.90 Purposes.
This subpart governs the requirements for labeling tuna or tuna
products offered for sale in or exported from the United States that
uses the term ``dolphin-safe'' or that suggests the tuna were harvested
in a manner not injurious to dolphins, or that uses any label or mark
that refers to dolphins, porpoises, or marine mammals other than the
official mark described in Sec. 216.96.
Sec. 216.91 Labeling requirements.
(a) It is a violation of section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor,
or seller of any tuna products that are exported from or offered for
sale in the United States to include on the label of those products the
term ``dolphin-safe'' or any other term or symbol that claims or
suggests that the tuna contained in the products were harvested using a
method of fishing that is not harmful to dolphins if the products
contain tuna harvested:
(1) By a vessel engaged in large-scale driftnet fishing;
(2) Outside the ETP by a vessel using a purse seine net:
(i) In a fishery in which the Assistant Administrator has
determined that a regular and significant association occurs between
dolphins and tuna (similar to the association between dolphins and tuna
in the ETP), unless such products are accompanied by a written
statement, executed by the captain of the vessel and an observer
participating in a national or international program acceptable to the
Assistant Administrator, certifying that no purse seine net was
intentionally deployed on or used to encircle dolphins during the
particular voyage on which the tuna were caught and no dolphins were
killed or seriously injured in the sets in which the tuna were caught;
or
(ii) In any other fishery unless the products are accompanied by a
written statement executed by the captain of the vessel certifying that
no purse seine net was intentionally deployed on or used to encircle
dolphins during the particular voyage on which the tuna was harvested;
(3) In the ETP by a purse seine vessel of greater than 400 st
(362.8 mt) carrying capacity unless the tuna meets the requirements for
being considered dolphin-safe under Secs. 216.92 and 216.94; or
(4) By a vessel in a fishery other than one described in paragraphs
(a)(1), (a)(2), or (a)(3) of this section that is identified by the
Assistant Administrator as having a regular and significant mortality
or serious injury of dolphins, unless such product is accompanied by a
written statement, executed by the captain of the vessel and an
observer participating in a national or international program
acceptable to the Assistant Administrator, that no dolphins were killed
or seriously injured in the sets or other gear deployments in which the
tuna were caught, provided that the Assistant Administrator determines
that such an observer statement is necessary.
(b) It is a violation of section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to
in this section in a campaign or effort to mislead or deceive consumers
about the level of protection afforded dolphins under the IDCP.
Sec. 216.92 Tuna products harvested in the ETP by purse seine vessels
greater than 400 st (362.8 mt) carrying capacity.
(a) For purposes of Sec. 216.91(a)(3), tuna products that contain
tuna harvested in the ETP by a purse seine vessel greater than 400 st
(362.8 mt) carrying capacity are dolphin-safe if accompanied by:
(1) A completed FCO;
(2) A written statement executed by the captain providing the
certification required under paragraph (b) of this section;
(3) A written statement certifying that an observer approved by the
IDCP was on board the vessel during the entire trip and that such
observer provided the certification required under paragraph (b) of
this section. The statement must be signed by:
(i) The Assistant Administrator or his/her designee; or
(ii) A representative of the IATTC; or
(iii) An authorized representative of a nation participating in the
IDCP whose national observer program meets the requirements of the
IDCP; or
(iv) An authorized representative of an international
organization's observer program approved by the IDCP; and
(4) An endorsement on the FCO by each exporter, importer, and
processor certifying that, to the best of his or her knowledge and
belief, the FCO and attached documentation are complete and accurate.
(b) Certifications. (1) Both the written certifications of the
captain and the observer must state that:
(i) No tuna were caught on the trip in which such tuna were
harvested using a purse seine net intentionally deployed on or to
encircle dolphins; or
(ii) No dolphins were killed or seriously injured during the sets
in which the tuna were caught.
(2) After the date set by the Assistant Administrator in a notice
in the Federal Register announcing an initial finding that does not
conclude that the intentional deployment of purse seine nets on or
encirclement of dolphins is having a significant adverse impact on any
depleted dolphin stock, the written certifications of the captain and
the observer need only provide the statement required in paragraph
(b)(1)(ii) of this section.
(3) If, after publishing notification under paragraph (b)(2) of
this section, the Assistant Administrator publishes notification in the
Federal Register announcing a subsequent finding that the intentional
deployment of purse seine nets on or encirclement of dolphins is having
a significant adverse impact on any depleted stock, the written
certifications of the captain and the observer must provide all of the
statements set forth in paragraph (b)(1) of this section commencing
with the effective date provided in the notice.
Sec. 216.93 Submission of documentation.
The documents required by Sec. 216.91 and Sec. 216.92 must
accompany the tuna product whenever it is offered for sale or export,
except that these documents need not accompany the product when offered
for sale if:
(a) The documents do not require further endorsement by any
importer or processor, and are submitted to officials of the U.S.
Customs Service at the time of import; or
(b) the documents are endorsed as required by Sec. 216.92 (a)(4)
and the final processor must deliver the endorsed documents to the
Administrator, Southwest Region, or to U.S. Customs as required.
Sec. 216.94 Tracking and verification program.
The Administrator, Southwest Region, has established a tracking and
[[Page 31821]]
verification program to accurately document the ``dolphin-safe''
condition of tuna as it is fished, processed, and sold to wholesale and
retail markets in the United States and throughout the world. The
tracking program includes procedures and reports for use when importing
tuna into the U.S. and during domestic purse seine fishing, processing,
and marketing in the U.S. and abroad. Verification of tracking system
operations is attained through the establishment of audit and document
review requirements.
(a) Tracking fishing operations. (1) During ETP fishing trips by
purse seine vessels, 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,
except as provided in paragraph (a)(2) of this section. 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'' or ``mixed well'' is
considered ``non-dolphin-safe'' tuna. Except as provided for in
paragraph (a)(2) of this section, 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. The well designation ``dolphin-
safe'' may change during a trip; however, a well designation of ``non-
dolphin-safe'' cannot be changed for the duration of the trip.
(2) In the event that a set has been designated ``dolphin-safe'' by
the observer, but late in the loading process dolphin mortality or
serious injury is identified, the ``dolphin-safe'' designation of the
set will change to ``non-dolphin-safe.'' If one or more of the wells
into which the newly designated ``non-dolphin-safe'' tuna are loaded
already contains ``dolphin-safe'' tuna loaded during a previous set,
the observer will note in his or her trip records the well numbers and
the estimated weight of such ``dolphin-safe'' tuna and designate such
well(s) as ``mixed well(s).'' Once a well has been identified as ``non-
dolphin-safe'' or ``mixed'' all tuna subsequently loaded into that well
will be designated as ``non-dolphin-safe.'' When the contents of such a
``mixed well'' are received by a processor, the tuna will be weighed
and separated according to the observer's report of the estimated
weight of ``dolphin-safe'' and ``non-dolphin-safe'' tuna contained in
that well.
(3) Tuna tracking form. The observer will keep an IATTC tuna
tracking form upon which an entry will be made for each set that
includes identification by well number of ``dolphin-safe,'' ``non-
dolphin-safe,'' and ``mixed'' wells; weights by species composition,
estimated tons loaded, set number, date of loading, trip number and
dates, observer name, captain name, vessel name.
(i) The Captain, managing owner, or vessel agent of a purse seine
vessel 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.
(ii) A NMFS representative may meet the vessel to receive the IATTC
tuna tracking form(s) from the vessel captain and to monitor the
handling of ``dolphin-safe'' and ``non-dolphin-safe'' tuna.
(iii) The Captain must submit the completed, signed IATTC tuna
tracking form that covers all tuna on board to the NMFS representative
in person, or by mail to the Administrator, Southwest Region, within 5
working days of the end of the trip.
(4) Tuna off-loaded to trucks, storage facilities or carrier
vessels must be loaded or stowed 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.
(b) Tracking cannery operations. (1) Whenever a tuna canning
company is scheduled to receive a domestic or imported shipment of ETP-
caught tuna for processing, the company must provide at least 48 hours
notice of the location and arrival date and time of such a shipment, to
the Administrator, Southwest Region, so that a NMFS representative can
be present to monitor delivery and verify that ``dolphin-safe'' and
``non-dolphin-safe'' tuna are clearly identified and remain segregated.
(2) At the close of delivery activities, which may include
weighing, boxing or containerizing, and transfer to cold storage or
processing, the company must provide a copy of the processor's
receiving report to the NMFS representative, if present. If a NMFS
representative is not present, the company must submit a copy of the
processor's receiving report to the Administrator, Southwest Region, by
mail or fax within 5 working days. The processor's receiving report
must contain, at a minimum: date of delivery, catcher vessel name and
flag, trip number and dates, storage container number(s), ``dolphin-
safe'' or ``non-dolphin-safe'' designation of each container, species,
fish condition, and weight of tuna in each container.
(3) Tuna canning companies will report on a monthly basis the
amounts of ETP-caught tuna that are removed from cold storage. This
report may be submitted in conjunction with the monthly report required
in paragraph (b)(5) of this section. This report must contain:
(i) The date of removal;
(ii) Storage container number(s) and ``dolphin-safe'' or ``non-
dolphin-safe'' designation of each container; 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 in its 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.
(5) Canned 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: species, condition (round, loin, dressed,
gilled and gutted, other), weight in short tons to the fourth decimal,
ocean area of capture (eastern tropical Pacific, western Pacific,
Indian, eastern and western Atlantic, other), catcher vessel, trip
dates, carrier name, unloading dates, and location of unloading.
(ii) Import receipts: In addition to the information required in
paragraph (b)(5)(i) of this section, a copy of the FCO for each
imported receipt must be provided.
(c) Tracking imports. All tuna products, except fresh tuna, that
are imported into the United States must be accompanied by a properly
certified FCO as required by Sec. 216.24(f).
(d) Verification requirements.--(1) Record maintenance. Any
exporter,
[[Page 31822]]
transshipper, importer, or processor of any tuna or tuna products
containing tuna harvested in the ETP must maintain records related to
that tuna for at least 3 years. These records include, but are not
limited to: FCO and required certifications, any report required in
paragraphs (a) and (b) of this section, invoices, other import
documents, and trip reports.
(2) Record submission. Within 30 days of receiving a written
request from the Administrator, Southwest Region, any exporter,
transshipper, importer, or processor of any tuna or tuna products
containing tuna harvesting in the ETP must submit to the Administrator
any record required to be maintained under paragraph (d)(1) of this
section.
(3) Audits and spot-checks. Upon request of the Administrator,
Southwest Region, any such exporter, transshipper, importer, or
processor must provide the Administrator, Southwest Region, timely
access to all pertinent records and facilities to allow for audits and
spot-checks on caught, landed, and processed tuna.
(e) 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.''
6. In subpart H, Sec. 216.96 is added and reserved as follows:
Sec. 216.96 Official mark. [Reserved]
[FR Doc. 99-15004 Filed 6-9-99; 5:05 pm]
BILLING CODE 3510-22-F
