[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Rules and Regulations]
[Pages 30-59]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33632]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 216
[Docket 990324081-9336-02, ID072098G]
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), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: NMFS issues an interim final rule to implement provisions of
the International Dolphin Conservation Program Act (IDCPA). This
interim final rule allows the entry of yellowfin tuna into the United
States under certain conditions from nations fully complying with the
International Dolphin Conservation Program (IDCP). It also allows U.S.
vessels to set their purse seines on dolphins in the ETP. The standard
for the use of ``dolphin-safe'' labels for tuna products also is
changed. This interim final rule also establishes a tuna-tracking
program to ensure adequate tracking and verification of tuna harvested
in the ETP.
DATES: Effective February 2, 2000. Comments must be received no later
than 5 p.m., Pacific standard time, on April 3, 2000.
ADDRESSES: Written comments should be sent to J. Allison Routt, NMFS,
Southwest Region, Protected Resources Division, 501 W. Ocean Blvd.,
Suite 4200, Long Beach, CA 90802-4213. Comments also may be sent via
facsimile (fax) to 562-980-4027. Comments will not be accepted if
submitted via e-mail or Internet. Copies of the Environmental
Assessment (EA) accompanying this interim final rule may be obtained by
writing to the same address. Send comments regarding reporting burden
estimates or any other aspect of the collection-of-information
requirements in this interim rule, including suggestions for reducing
the burdens to J. Allison Routt and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503 (ATTN: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest
Region, Protected Resources Division, (562) 980-4020, fax 562-980-4027.
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 1993, nations fishing in the ETP under the La
Jolla Agreement had reduced dolphin mortality to less than 5,000
dolphins annually, 6 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,
[[Page 31]]
Spain, Vanuatu, and Venezuela to sign the Panama Declaration to
strengthen and enhance the IDCP.
The program outlined in the Panama Declaration provides greater
protection for dolphins and enhances the conservation of yellowfin tuna
and other living marine resources in the ETP ecosystem. The Panama
Declaration anticipated that the United States would amend 16 U.S.C.
1361 et seq., 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 Panama
Declaration, signatory nations agreed to develop a legally binding
international agreement.
Congress considered several bills to implement the Panama
Declaration, ultimately passing the IDCPA. The IDCPA was signed into
law on August 15, 1997. The IDCPA was the domestic endorsement of the
La Jolla Agreement, incorporating elements of the Panama Declaration,
under the auspices of the Inter-American Tropical Tuna Commission
(IATTC). The IDCPA primarily amends provisions in the MMPA and the
Dolphin Protection Consumer Information Act (DPCIA), 16 U.S.C. 1385,
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.
The IDCPA, together with the Panama Declaration, became the
blueprint for the Agreement on the IDCP. In May 1998, eight nations,
including the United States, signed a binding, international agreement
to implement the IDCP. The Agreement on the IDCP became effective on
February 15, 1999, after four nations (United States, Panama, Equador,
and Mexico) deposited their instruments of ratification, acceptance, or
adherence with the depository for the agreement. On March 3, 1999, the
Secretary of State provided the required certification to Congress that
the Agreement on the IDCP had been adopted and was in force.
Consequently, the IDCPA became effective on that date. Provisions to
implement the IDCPA and the new international agreement for dolphin
conservation in the ETP are the subject of this interim final rule.
Proposed Rule
On June 14, 1999, NMFS published proposed regulations to implement
the IDCPA (64 FR 31806). These regulations proposed to (1) allow the
entry of yellowfin tuna into the United States under certain conditions
from nations fully complying with the IDCP; (2) allow U.S. vessels to
set their purse seines on dolphins in the ETP; (3) change the standard
for use of dolphin-safe labels for tuna products and; (4) establish a
system to ensure adequate tracking and verification of tuna harvested
in the ETP.
Public comments on the proposed rule were accepted through July 14,
1999. NMFS held two public hearings on the proposed rule: one in Long
Beach, CA, on July 8, 1999, and one in Silver Spring, MD, on July 14,
1999. In addition to publishing the proposed rule in the Federal
Register, NMFS sent it to industry representatives, environmental
groups, vessel and operator certificate of inclusion holders,
importers, IDCP member nations, Department of State, IATTC, U.S.
Commissioners to the IATTC, Department of the Treasury, U.S. Customs
Service, Marine Mammal Commission, Department of Justice, and the
Federal Trade Commission. NMFS also issued a press release announcing
the public hearings and summarizing the major issues contained in the
proposed rule. Information in the press release was published in
several national newspapers, NMFS websites, and broadcast on several
radio stations.
Responses to Comments
NMFS received over two thousand comments during the comment period
for the proposed rule. Comments were received from industry,
environmental organizations, members of the public, the Marine Mammal
Commission, the IATTC, the Department of State, the U.S. Customs
Service, and foreign nations. Key issues and concerns are summarized
below and responded to as follows:
Comments on Definitions
Comment 1: One commenter indicated that the ETP boundary in the
regulations should reflect the boundary used by the IDCP. Another
commenter indicated that the language in the Agreement on the IDCP does
not state whether fishing on dolphin occurs west of 150o
West. Another commenter requested that the language be clarified by
inserting ``in the Dolphin Protection Consumer Information Act
(DPCIA)'' in the preamble sentence of the proposed rule: ``Although the
Agreement on the IDCP applies in the Pacific Ocean west only to
150o W. meridian, the current definition of ETP is out to
160o W.'' as well as by deleting ``that overlap with the
waters covered by the Agreement'' from the preamble sentence ``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.'' Another commenter
suggested clarifying the sentence by inserting ``between
160o W and 150o W'' for the overlap area.
Response: Although the Agreement on the IDCP defines ``ETP'' as the
area of the Pacific Ocean west to the 150o W, the DPCIA
defines the ``ETP'' as the area of the Pacific Ocean out to the
160o West meridian. The recommended changes were not
incorporated into the interim final rule since the background
information on the ``ETP'' is not included in this preamble.
Comment 2: Many commenters recommended defining the term ``serious
injury'' in the final rule.
Response: NMFS agrees and has defined a ``serious injury'' as an
injury that will likely result in mortality. Individual reported
injuries will be evaluated by the IATTC and NMFS using criteria
developed by the International Program.
Comment 3: One commenter suggested modifying the definition of
``IDCPA'' in Sec. 216.3 by adding the phrase ``and any subsequent
amendments thereto'' to the end of the sentence.
Response: NMFS disagrees. The proposed definition for IDCPA is
accurate.
Comment 4: Two commenters indicated that the term ``significant
adverse impact'' must be defined since the definition of ``dolphin-
safe'' is linked to the phrase.
Response: NMFS disagrees that this term needs to be defined in
these regulations. In making the ``findings'' required by paragraph (g)
of the DPCIA, NMFS considered, and will consider, a number of factors
for determining whether the tuna purse seine fishery ``is having a
significant adverse impact'' on the depleted dolphin stocks in the ETP.
NMFS' focus is on the recovery and growth of depleted dolphin stocks in
the ETP, as well as assessing changes in their population sizes over
time.
Comment 5: One commenter suggested including a definition for
``fishing operations'' to avoid any misunderstandings as to when a
permit is required.
Response: NMFS disagrees. The rule is clear when permits are
required and exceptions are available for transiting the ETP.
[[Page 32]]
Comment on Harmonized Tariff Schedule (HTS) Item Numbers
Comment 6: One commenter suggested removing the period from all the
cited HTS numbers appearing before the HTS statistical suffixes for
these numbers (e.g., 0303.42.00.20 should be 0303.42.0020) and under
Sec. 216.24(f)(2)(i)(D) change 0304.20.60.99 to 0304.20.6096 and change
0304.90.90.92 to 0304.90.9091; under Sec. 216.24(f)(iii)(A) change
0303.79.40.96 to 0303.70.4097 and change 0304.20.60.99 to 0304.20.6096;
and under Sec. 216.24(f)(iii)(C) change 0304.20.60.98 to 0304.20.6096.
Response: NMFS agrees that the suggested numbers are correct and
has made the changes.
Comments on Affirmative Findings and Embargoes
Comment 7: Several commenters indicated that the proposed rule does
not contain a provision that would prevent a nation from being
embargoed because of a disaster set or actions of a rogue vessel which
might cause a nation to exceed its fleet Dolphin Mortality Limit (DML)
even though the IDCP contains a provision to handle this type of
situation. The commenters felt yellowfin tuna should not be embargoed
if a nation is in compliance with the IDCP.
Response: NMFS agrees that if a nation's fleet's annual dolphin
mortality or per-stock dolphin mortality exceeds its aggregate DMLs
because of extraordinary circumstances beyond the control of the nation
or of the vessel's captain, but otherwise is in conformance to the
Agreement on the IDCP, that nation should not be embargoed. NMFS has
made the change at Sec. 216.24(f)(9)(i)(C). However, the nation must
have immediately required all its vessels to cease fishing for tuna in
association with dolphins for the remainder of the calendar year. This
flexibility should encourage harvesting nations to comply with the
Agreement on the IDCP, yet threaten economic sanctions against nations
that do not control or manage their fleets.
Comment 8: One commenter questioned the accuracy of the title,
``Affirmative finding procedure for yellowfin tuna harvested using a
purse seine in the ETP'' of Sec. 216.24(f)(9) since under the IDCPA, an
affirmative finding is made for a harvesting nation rather than for the
yellowfin tuna that is harvested.
Response: NMFS agrees and has changed the title of
Sec. 216.24(f)(9) to read, ``Affirmative finding procedure for nations
harvesting yellowfin tuna using a purse seine in the ETP.''
Comment 9: One commenter pointed out that Sec. 216.24(f)(9)(i)(C)
establishes different standards for United States and foreign fleets
regarding the consequences of exceeding a nation's aggregate DMLs. A
foreign nation would not receive an affirmative finding if it exceeded
its aggregate DML the previous year. In contrast, as reflected by
Sec. 214.24(c)(8)(x)(B), the U.S. fleet would have to cease setting on
dolphins if it reached or exceeded its aggregate DML, but yellowfin
tuna caught by U.S. vessels could still be sold in the United States in
subsequent years.
Response: NMFS agrees. Except in the case of a foreign nation that
acts quickly to close its fishery after exceeding its national DML, as
described in the response to Comment 7 above, the commenter's
description is generally correct. The IDCPA does not require the United
States to obtain an affirmative finding since U.S. vessels do not
``import'' tuna into the United States. Because of this, U.S. vessels
still would be allowed to sell yellowfin tuna and yellowfin tuna
products in the United States even if the United States had reached or
exceeded its aggregate DML. However, appropriate sanctions would be
taken against individual U.S. vessels that exceed their DML.
Comment 10: In Secs. 216.24(f)(9)(iv) and 216.24(f)(9)(vi), the
word ``met'' should probably be ``meets'' to reflect that the finding
is to be based on current information.
Response: NMFS agrees in part and has changed the language to ``has
met'' in Sec. 216.24(f)(9)(iv). The phrase ``has met'' has been kept in
Sec. 216.24(f)(9)(vi) to be consistent with the verb tense of the
sentence.
Comment 11: One commenter indicated the first sentence of
Sec. 216.24(f)(9)(viii) should be revised to indicate that yellowfin
tuna is harvested ``using'' purse seine nets, rather than ``by'' purse
seine nets.
Response: NMFS agrees that the participle ``using'' and has made
the change.
Comment 12: One commenter indicated the second sentence of
Sec. 216.24(f)(9)(viii) would be clearer if the word ``only'' were
inserted after the phrase ``may be imported into the United States
...''
Response: NMFS agrees and has inserted the word ``only'' in the
sentence.
Comment 13: One commenter indicated that the proposed regulations
at Sec. 216.24(f)(12) do not seem to allow the purchase or sale of non-
dolphin-safe tuna caught by U.S. vessels fishing in the ETP pursuant to
a DML since the vessels will not be covered by an affirmative finding
unless the United States issues an affirmative finding covering their
own vessels.
Response: NMFS agrees that the IDCPA does not prohibit the purchase
or sale of non-dolphin-safe tuna harvested by U.S. vessels fishing in
compliance with the IDCP. The IDCPA prohibits the sale, purchase, offer
for sale, transport or shipment of non-dolphin-safe tuna products in
the United States unless the tuna is harvested in compliance with the
IDCP and the harvesting nation is a member of the IATTC (MMPA section
307(a)(1)). For administrative convenience, NMFS proposed allowing only
non-dolphin-safe tuna harvested by a nation with an affirmative finding
to be sold, offered for sale, transported, purchased, or shipped in the
United States. Upon further evaluation, NMFS has discovered that this
requirement could inadvertently impact U.S. vessels because the U.S.
does not give an affirmative finding to itself. The problem has been
corrected by changing the title at Sec. 216.24(f)(12) from ``Dolphin-
Safe Requirements'' to ``Market Prohibitions'' and clarifying that the
prohibition does not apply to tuna harvested by U.S. vessels in
compliance with the IDCP.
Comment 14: Several commenters disagreed with NMFS' interpretation
of the language in MMPA section 101(a)(2)(B)(iii) and believed that
Congress intended to cap the total DMLs assigned to each harvesting
nation's vessels at the total DMLs assigned to its vessels during 1997,
or subsequent calendar years, even if the number of vessels has
increased since then.
Response: NMFS disagrees that the IDCPA (or its legislative
history) indicates Congress intended NMFS to compare a nation's
aggregate (fleet) mortality limits to the nation's earlier limits. 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. Under the La Jolla Agreement, the annual international
cap was allocated on a per-vessel basis. However, under the Agreement
on the IDCP, while the annual international cap on dolphin mortality is
allocated on a per-nation basis, each nation's allocation is based on
the number of its eligible purse seine vessels that are expected to set
on dolphin in the upcoming year. As a
[[Page 33]]
result, 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
vessel transfers between nations) without affecting overall
international dolphin mortality. Harvesting nations that adopted good
dolphin conservation programs because of the IDCP might quit the IDCP
if subjected to this type of embargo. NMFS' interpretation is
consistent with the Agreement on the IDCP and the intent of Congress to
discourage mortalities.
Comment 15: One commenter suggested that, in addition to NMFS'
proposal, an affirmative finding should also require that the DML
assigned to each vessel in the international fishery never exceed the
DML assigned in 1997. The commenter recommended inserting the language,
``keeps its fleet's annual dolphin mortality within the aggregate DML
assigned to the fleet, and that it did not assign an individual vessel
a total annual DML in excess of the DML established in 1997.''
Response: NMFS disagrees. NMFS proposes to focus on a nation's
compliance with the international regime. Only a nation that fails to
keep its own fleet's annual dolphin mortality within the aggregate DMLs
assigned to the fleet would be embargoed, except in the case of
extraordinary circumstances as described in the response to Comment 7.
This 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 on decisions by other
Parties to the IDCP. This encourages other harvesting nations to comply
with the IDCP and threatens economic sanctions against only those
nations that do not control or manage their own fleets.
Comment 16: Commenters indicated that the intent of Congress in
MMPA section 101(a)(2)(B)(iii) is to reduce dolphin mortality to a
level approaching zero through the setting of annual limits and the
goal of eliminating dolphin mortality. The commenters refer to the
proposed rule at Sec. 216.24(f)(9)(C) which would not condition
affirmative findings on reducing international mortality limits to a
``level approaching zero.'' Commenters indicated that the proposed rule
does not ratchet down the dolphin mortality as intended by Congress but
rather establishes an international DML cap of 5,000 annually as stated
in the IDCP agreement.
Response: NMFS believes the language in the rule is consistent with
the IDCPA and the Agreement on the IDCP. The IDCPA and the Agreement on
the IDCP do not establish processes to reduce dolphin mortality in the
ETP tuna purse seine fishery to zero. The proposed rule's
interpretation makes the most sense in the context of MMPA section
101(a)(2)(B) because it focuses on a nation's compliance within the
international regime. Under this interpretation, 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, except for
extraordinary circumstances as described in the response to Comment 7.
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 programs, rather than on
decisions by other Parties to the IDCP.
Comment 17: Commenters indicated that to get an affirmative
finding, nations should not have to apply on an annual basis,
especially with regard to information such as whether the nation is a
member of the IATTC or of the IDCP since the information is available
from other sources (e.g., the IATTC and Department of State). A nation
seeking to maintain an affirmative finding should only have to
authorize the release of the information instead of having to submit
the information on an annual basis. NMFS also received comments that it
should be the responsibility of the harvesting nation to obtain and
provide supporting documentation to the Assistant Administrator, and
not the Assistant Administrator's responsibility to obtain the
documentation from the IATTC. In addition, several commenters opposed
the concept of a multi-year affirmative finding process and supported
the existing annual application process for an affirmative finding.
Response: NMFS will gather the necessary documentary information
through other channels (e.g., the Department of State and/or the
IATTC), provided nations authorize the release of the information,
instead of having each nation submit the information to NMFS on an
annual basis. NMFS will evaluate this evidence and continue to make
affirmative findings on an annual basis. Beginning with the first year
the regulations are effective and every 5 years thereafter, or if
requested, nations will need to submit sufficient documentary evidence
to NMFS for an affirmative finding. After considering alternatives,
NMFS determined this is an appropriate balance of burdens between NMFS
and applicant nations.
Comment 18: One commenter recommended that NMFS require more
detailed information than required by the IDCPA to be submitted by
harvesting nations to obtain an affirmative finding. The commenter
suggested keeping the previous implementing regulations at
Sec. 216.24(e)(5)(i) through (v) and updating the information as
necessary to reflect the requirements in the IDCP.
Response: Many of the regulations listed under the previous
implementing regulations at Sec. 216.24(e)(5)(i) through (v) are not
consistent with the IDCPA or are no longer applicable (e.g.,
comparability standards) and would be unnecessary and burdensome to the
harvesting nation requesting an affirmative finding. Most of the
information required to make an affirmative finding is available
through the IATTC. The IDCPA sets new standards for affirmative
findings and no longer requires much of the information in the previous
implementing regulations.
Comment 19: One commenter suggested that, under the background
information on affirmative findings in the proposed rule, language from
Annex III to the Agreement on the IDCP that requires a system for
allocating stock-specific quotas be established within 6 months of the
entry of force of the Agreement on the IDCP (e.g., by August 15, 1999)
should be included.
Response: NMFS recognizes that Annex III, Per-Stock, Per-Year
Dolphin Mortality Caps, to the Agreement on the IDCP indicates that,
within 6 months of the entry into force, the Parties agreed to
establish a system for the allocation of the per-stock, per-year
dolphin mortality cap for each stock for the ensuing year and years
thereafter by August 15, 1999. The Parties have agreed on a global
allocation system that will establish per-stock, per-year mortality
limits that will be in effect during calendar year 2000, at a level of
0.2 percent of the minimum population estimate. In addition, the IATTC
will monitor the per-stock, per-year mortality limits and notify
nations when limits are being approached so that fishing will cease on
the stock(s) whose limits have been reached.
Comment 20: In the Preamble, the final rule should clearly indicate
what Secretarial findings have been made, what findings remain to be
made, and how the regulations relate to those findings.
Response: The initial finding was published in the Federal Register
on May 7, 1999 (64 FR 24590). NMFS found that there is insufficient
evidence
[[Page 34]]
to determine that chase and encirclement by the tuna purse seine
fishery ``[are] having a significant adverse impact'' on depleted
dolphin stocks in the ETP. Based on this finding, the Assistant
Administrator will apply the ``dolphin-safe'' definition specified in
paragraph (h)(1) of the DPCIA (16 U.S.C. 1385(h)(1)) to tuna harvested
in the ETP by purse seine vessels with carrying capacity greater than
400 short tons (362.8 mt), e.g., that no dolphins were killed or
seriously injured during the sets in which the tuna were caught. The
final finding is due between July 1, 2001, and December 31, 2002.
Comment 21: One commenter urged NMFS to develop and define a better
process under Sec. 216.24(f)(5)(x), other than a statement from a
responsible government official, to verify that shipments exported from
designated ``high seas driftnet nations'' were not harvested by using
large-scale driftnets.
Response: NMFS disagrees. This system has been in place since 1992
and was not proposed to be changed by this rule. In addition to
statements from responsible government officials, the U.S. Coast Guard
and NMFS will continue to monitor the world's oceans for the use of
high seas driftnets as required by the High Seas Driftnet Fisheries
Enforcement Act of 1992 (Pub. L. No. 102-582).
Comment 22: One commenter asked whether the ``certification and
reasonable proof'' required in Sec. 216.24(f)(9)(viii) of the proposed
rule for intermediary nations to export tuna to the United States is
applicable to all yellowfin tuna or specifically to tuna harvested by
purse seine in the ETP.
Response: The certification and reasonable proof required by
Sec. 216.24(f)(9)(viii) applies to intermediary nations exporting
yellowfin tuna and yellowfin tuna products harvested with purse seine
nets in the ETP. For the purposes of Sec. 216.24(f)(9)(viii), the term
``certification and reasonable proof'' entails the nation's customs
records for the preceding 6 months, together with a certification
attesting that the documents are accurate.
Comment 23: One commenter indicated that the proposed
Sec. 216.24(f)(9)(vi) was unclear whether determinations made by the
Assistant Administrator and published in the Federal Register for
intermediary nations are made only once or are made on an ongoing
basis. The commenter suggested that NMFS conduct a periodic review of
determinations rather than requiring the review only when requested by
the intermediary nation.
Response: The Assistant Administrator will publish the
determination for intermediary nations only once in the Federal
Register. However, the Assistant Administrator will review decisions
upon the request of an intermediary nation and will review documentary
evidence that indicates a nation has 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.
Comment 24: One commenter felt that the United States should not
require intermediary nations to prove that they did not import tuna
that was caught by nations not subject to an embargo. The regulations
should be clear that a nation will be considered to be an intermediary
nation only when the Assistant Administrator becomes aware of credible
evidence that the nation in question is importing yellowfin tuna from
the ETP that are subject to a ban on direct importation into the United
States. In addition, such nations should be provided an opportunity to
refute any such allegations.
Response: NMFS agrees. The regulations at Sec. 216.24(f)(9)(vi)
have been revised to clarify that the Assistant Administrator will
determine which nations are intermediary nations and publish such
determinations in the Federal Register. After a nation is determined to
be an ``intermediary nation,'' it will be the responsibility of the
nation to provide the documentary evidence for a new determination by
proving 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.
Comment 25: One commenter stated that yellowfin tuna or yellowfin
tuna products subject to direct ban on importation to the United States
may pass through a nation on a through bill of lading without causing
the nation to be an intermediary nation.
Response: NMFS agrees since, under section 3 of the MMPA, an
``intermediary nation'' is defined as a nation that exports yellowfin
tuna or yellowfin tuna products to the United States and that imports
yellowfin tuna or yellowfin tuna products that are subject to a direct
ban on importation into the United States pursuant to MMPA section
101(a)(2)(B). Since shipments on a through bill of lading are not
actually imported or exported from a nation under U.S. regulations at
Sec. 216.24(f)(9)(viii), the nation would not be considered an
``intermediary nation'' under the MMPA.
Comment 26: One commenter expressed concern that no nation whose
vessels currently fish in the ETP are meeting their ``financial
obligations to the IATTC'' as part of the requirement to receive an
affirmative finding under Sec. 216.24(f)(9)(i)(B). In addition, several
commenters requested a list of the criteria used by the United States
to determine whether the nations whose vessels are fishing in the ETP
are meeting their financial obligations.
Response: The IDCPA does not specify what is meant by ``financial
obligations.'' Under the Tuna Conventions Act (the Convention), the
expenses of the IATTC are to be shared by the Contracting Parties in
relation to the proportion of the total catch from the fisheries
covered by the Convention utilized by each Party. ``Utilized'' is
defined under the Tuna Conventions Act as tuna eaten fresh or processed
for internal consumption or export. Thus, tuna landed by a Party and
subsequently exported in the round are not included in computing that
Party's contribution, but those which are exported in canned form are
included. NMFS will request the IATTC Director to verify that a nation
is fulfilling its financial obligations. The IATTC intends to develop a
new framework for determining contributions that will allow the IATTC
to continue functioning at its current level under the new
international agreement. The U.S. delegation will assist with the
development of this new framework.
Comment 27: One commenter requested that NMFS include a table in
the regulations indicating the ``level of utilization'' (e.g., amount
of tuna eaten fresh or processed for internal consumption or export) in
1998 by each nation, the approximate amount of financial contribution
required, and the type of documentation that will be required to prove
the financial obligations have been met.
Response: NMFS will summarize the information used to make an
affirmative finding for each nation at the time an affirmative finding
notice is published in the Federal Register. Publishing information
tables in regulations is not practical since information becomes
obsolete too quickly. NMFS will rely on the IATTC staff to provide
documentary information to determine whether Parties are meeting their
financial obligations.
Comment 28: One commenter indicated that ``financial obligations''
should mean ``equitable'' funding as defined in the Convention for the
establishment of an IATTC (``shall be related to the proportion of the
total catch'') to obtain an affirmative finding.
[[Page 35]]
The commenter also suggested the United States should pay no more than
its share of the cost to operate the IATTC.
Response: This rule does not govern dues paid to the IATTC. By
meeting the membership obligations of the IATTC, including all
financial obligations, nations are complying with the Convention for
the establishment of an IATTC. The financial obligations are determined
by the proportion of the total catch from the fisheries covered by the
Convention utilized by each Party. ``Utilized'' is defined as tuna
eaten fresh or processed for internal consumption or export.
Comment 29: One commenter noted that, unless a harvesting nation is
contributing an equitable amount to support the IATTC, the nation
should be embargoed as required by the IDCPA.
Response: NMFS disagrees since the IDCPA does not require a nation
to provide ``equitable contributions'' to support the IATTC in order to
obtain an affirmative finding, but rather to meet its ``financial
obligations'' of membership to the IATTC. However, under section
108(a)(2)(C) of the MMPA, the Secretary of Commerce through the
Secretary of State may initiate negotiations to revise the Conventions
for the Establishment of an Inter-American Tropical Tuna Commission
which will incorporate a revised schedule of annual contributions to
cover the expenses of the IATTC that is ``equitable'' to participating
nations. As explained in the response to Comment 26, the State
Department is proactively engaged in discussions on this topic with
other IATTC member nations.
Comment 30: Three commenters indicated there needs to be a
mechanism for verifying that harvesting nations have become members of,
or have ``initiated'' the process of becoming a member in, the IATTC
and are meeting the financial obligations of such membership.
Response: NMFS will be able to obtain the necessary information
from the IATTC staff to verify whether harvesting nations have become
members of, or have ``initiated'' the process of becoming members of,
the IATTC and are meeting the financial obligations of such membership.
Comment 31: One commenter indicated that, if the United States is
going to continue to fund the IATTC in excess of 90 percent, then the
observer data collected by the IATTC staff should be available to U.S.
citizens under the Freedom of Information Act (FOIA).
Response: NMFS disagrees since the FOIA does not apply to
international organizations. U.S. money does not transform the IATTC
into a U.S. government agency. Therefore, observer data collected by
the IATTC are not available under the FOIA.
Comments on ``Dolphin-Safe'' Requirements
Comment 32: One commenter wanted to confirm that U.S. customs would
not be enforcing the labeling requirement.
Response: The Federal Trade Commission is responsible for enforcing
the labeling requirement of the DPCIA because of its role in enforcing
consumer protection laws. NMFS also enforces violations related to
knowingly and willfully false statements by captains, observers/
observer programs, importers, exporters, or processors, if used to
support a dolphin-safe label under paragraph (d)(2)(B) of the DPCIA.
The U.S. Customs Service and NMFS enforce tuna importation requirements
and monitor compliance with the dolphin-safe labeling requirements.
Comment 33: One commenter does not understand why Sec. 216.92(a)
begins with the sentence ``For purposes of Sec. 216.91(a)(3) ...''
rather than with the word ``Tuna.''
Response: NMFS agrees and has modified the sentence.
Comment 34: One commenter wanted clarification that non-dolphin-
safe tuna, or tuna not accompanied by supporting documentation, could
be imported and sold lawfully in the United States under the IDCPA,
just not labeled as ``dolphin-safe.''
Response: Non-dolphin-safe tuna may be imported or sold in the
United States under the IDCPA provided the tuna products were harvested
in compliance with the IDCP by a vessel flagged with an IATTC member
nation. All tuna imports must be accompanied by a completed Fisheries
Certificate of Origin, NOAA Form 370. However, tuna products must have
the documentation described in Sec. 216.92 to be labeled ``dolphin-
safe.''
Comment 35: One commenter indicated that the word ``or'' should be
deleted between proposed Secs. 216.92(b)(1)(i) and 216.92(b)(1)(ii) and
the word ``and'' should be inserted. Another commenter suggested that
the word ``or'' should be deleted to clarify the certifications
required for tuna products harvested in the ETP by purse seine vessels
greater than 400 st (362.8 mt) carrying capacity.
Response: NMFS has rewritten and restructured the certification
provision to make it clearer.
Comment 36: One commenter indicated that Sec. 216.92(b)(2) does not
indicate that the initial finding effective date is the same as the
effective date of the interim final rule. The final rule should
indicate the actual date after which a certification under proposed
Sec. 216.92(b)(1)(i) is no longer required.
Response: NMFS agrees. The initial finding required by paragraph
(g)(1) of the DPCIA becomes effective when this interim final rule
becomes effective. The interim final rule now states that, for tuna
harvested by large purse seine vessels in the ETP, a dolphin-safe label
need not be supported by statements certifying ``no intentional
encirclement during the trip'' as of the effective date of this rule.
Of course, the standard could revert back, depending on the final
finding that is required to be made by the year 2002.
Comment 37: Two commenters indicated that the proposed rule
requires tuna canneries to establish separate production facilities,
one for dolphin-safe tuna and one for non-dolphin-safe tuna, a practice
which would impose prohibitive capital and operational costs. The
commenters recommend separate production times to facilitate monitoring
and verification.
Response: The proposed rule did not suggest that tuna canneries
would be required to establish separate production facilities for
dolphin-safe and non-dolphin-safe tuna. However, the rule does require
separate production times for processing the different types of tuna.
Comment 38: Commenters expressed concern that changing the
definition of dolphin-safe tuna from the old definition of ``no
dolphins were intentionally set on to capture tuna'' to the new
definition ``no dolphins were killed or seriously injured in the sets
or other gear deployments in which the tuna were caught'' will be
confusing to the general public. Moreover, commenters expressed the
need to reserve the term ``dolphin-safe'' for tuna caught without any
intentional encircling of dolphin.
Response: IDCPA mandates the change (for tuna harvested by large
purse seine vessels in the ETP) unless the initial and/or final
finding, based on NMFS' research, shows that 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.
NMFS agrees that the public may be confused, and NMFS will make efforts
to educate the public about the changes.
Comment 39: Commenters expressed a need for a certification system
that will distinguish between tuna caught without intentionally
encircling dolphins and tuna caught by intentionally encircling
dolphins.
[[Page 36]]
Response: NMFS disagrees. The IDCPA requires a domestic tuna
tracking and verification system that provides for the effective
tracking of tuna harvested in the ETP by U.S. and by foreign vessels
that may be labeled as ``dolphin-safe,'' which, for tuna harvested by
large purse seine vessels in the ETP currently, means ``no serious
injury or mortality during sets.'' The IDCPA does not require the tuna
tracking and verification program to distinguish between tuna caught by
intentional encirclement of dolphin and tuna caught without the
intentional encirclement of dolphin.
Comment 40: Some commenters indicated that the use of the term
``dolphin-safe'' is deceptive to the consumer since the term does not
suggest that tuna can be labeled ``dolphin-safe'' even though dolphins
may have been killed in the process of capturing the tuna.
Response: As required by the DPCIA, tuna product containing tuna
harvested by large purse seine vessels in the ETP may only be labeled
dolphin-safe if no dolphins were killed or seriously injured during the
sets in which the tuna were caught.
Comment 41: One commenter indicated that as long as tuna is
harvested in accordance with the IDCP, it should be labeled ``dolphin-
safe.''
Response: NMFS lacks statutory authority to change the labeling
standard to allow all tuna harvested in accordance with the IDCP to be
labeled as ``dolphin-safe.''
Comment 42: One commenter opposes the importation of tuna into the
United States that was caught by chasing or encircling dolphins.
Response: The IDCPA does not restrict ETP purse seine harvested
tuna imported into the United States if the tuna is caught by a nation
with an affirmative finding under MMPA Sec. 101(a)(2)(B). Generally, a
nation will qualify for an affirmative finding if tuna is caught in
compliance with the Agreement on the IDCP, the harvesting nation is a
member of the IATTC and meeting its financial obligations, and the
nation does not exceed the total DMLs and per-stock per-year DMLs
permitted for that nation's vessels under the IDCP. Furthermore,
permitted U.S. vessels with DMLs are allowed to chase and encircle
dolphins in the ETP under the IDCP.
Comment 43: One commenter believed that the term ``default
standard'' (e.g., no intentional encirclement during a trip and no
mortality and serious injury during sets) in the SUPPLEMENTARY
INFORMATION section of the proposed rule should not be used since it
implies that there is a baseline against which other standards will be
compared.
Response: The ``default standard'' was a term used by NMFS in the
proposed rule to differentiate between two possible dolphin-safe
definitions under the DPCIA. The term was just an informal shorthand
definition and was not intended to have any legal or policy
significance. The term was not meant to imply that it was a comparison
for other standards.
Comment 44: One commenter indicated that the preamble to the
proposed rule should have used more precise language to describe that
the ``no mortality or serious injury during the set'' standard of
``dolphin-safe'' would remain in effect unless the Secretary makes a
finding that there is a significant adverse impact caused by the
current fishing practices in the tuna purse seine fishery.
Response: NMFS agrees that, in trying to describe the process in
plain English, the preamble description could have been more precise.
The commenter's description is correct.
Comment 45: One commenter indicated that there should be an
opportunity for public comment at the time the Secretary makes the
final finding. Another commenter indicated that any required change in
the labeling standard should be made without additional rulemaking.
Response: The Secretary will publish the final finding in the
Federal Register. However, the process of publishing a finding does not
constitute a formal rulemaking and, therefore, there will be no formal
comment period. Depending on the final finding, the dolphin-safe
labeling standard could change.
Comment 46: One commenter indicated that the intent of the Congress
was to base the initial finding on a reasonable conclusion rather than
on definitive proof.
Response: NMFS does not necessarily require definitive proof, but
the Secretary would be able to make a finding that 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 only if sufficient evidence were available to conclude that the
significant impact is due to the fishery.
Comments on Dolphin Mortality Limits
Comment 47: Two commenters indicated that it would be a violation
of the IDCPA to lift tuna embargoes until the per-stock per-year limits
have been adopted.
Response: Per-stock per-year limits have been adopted. The Meeting
of the Parties agreed to a global allocation system that will establish
a per-stock per-year DML in calendar year 2000, at a level of 0.2
percent of the minimum population estimate. If the IDCP allocates per-
stock per-year DMLs to the national level, then an affirmative finding
will require a nation's per-stock mortality to stay within its per-
stock limits, as described in the response to Comment 7.
Comment 48: One commenter indicated that the Secretary should make
a finding not only on whether there is a significant adverse impact on
any depleted dolphin stock in the ETP, but also on whether there is a
significant adverse impact on any marine mammal stock.
Response: Under paragraph (g) of the DPCIA (16 U.S.C. 1385(g)), the
Secretary is required to make a finding only 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.
Comment 49: One commenter expressed concern that it is not
practical for vessel permit holders to request second semester DMLs by
September 1, of the year before, more than 6 months in advance. The
commenter recommended changing the application deadline to April 1, 3
months before the second semester begins.
Response: NMFS recognizes the difficulty and inconvenience caused
by requesting vessel permit holders to request a half-year DML by
September 1, approximately 10 months in advance. Nevertheless, under
the Agreement on the IDCP (Annex IV, section 1, paragraph 1), nations
are required to submit second semester DML requests to the Meeting of
the Parties prior to October 1. However, per-trip DMLs are available
for vessels which do not normally fish for tuna in the ETP, but which
may occasionally desire to participate in the fishery on a limited
basis, provided that such vessels and operators meet the permit
requirements under Sec. 216.24(b).
Comment 50: Commenters indicated that the IDCPA encourages vessel
captains to make at least one intentional set on dolphins every year
before April 1, which creates a ``use or lose'' mentality. This
language contradicts the intent of the IDCPA and penalizes captains who
try to reduce dolphin mortality instead of providing rewards and
incentives. The commenter stated that the language at
Sec. 216.24(c)(8)(iv) needs to be deleted.
[[Page 37]]
Response: Under the Agreement on the IDCP (Annex IV, section II,
paragraph 1), any vessel which is assigned a full-year DML must make at
least one set on dolphins prior to April 1 to keep from losing its DML
allocation. An intentional set on dolphins does not necessarily lead to
dolphin mortality. In addition, this requirement is part of the process
established by the international program for deterring frivolous
requests.
Comment 51: One commenter suggested revising Sec. 216.24(c)(8)(ii)
to read, ``Each vessel permit holder that desires a DML only for the
period July 1 to December 31, must provide to the Administrator,
Southwest Region, by September 1, the name* * *. 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 6 month period ...''
Response: NMFS agrees and has made the changes to accurately
reflect the requirement under the Agreement on the IDCP to forward a
list of purse seine vessels to the Director of the IATTC on or before
October 1, rather than April 1, as proposed.
Comment 52: One commenter recommended rewarding skippers who do not
use all of their DMLs by reallocating additional DMLs, taken from those
vessels with the worst performance. Operator performance could be
measured by kill rate per set or kill rate per ton.
Response: The Meeting of the Parties to the Agreement on the IDCP
resolved to establish a working group to develop captain incentives.
However, NMFS has not developed incentives to include in the interim
final rule.
Comment 53: One commenter recommended that NMFS propose a system of
incentives to vessel captains in this rule as required by the IDCPA
that could be used as a model by the international community. The
commenter stated that DMLs are not an effective incentive to achieve
low dolphin mortality since DMLs are not performance-based and do not
provide incentives for good performance to reach the zero dolphin
mortality rate goal.
Response: Recently, the Meeting of the Parties established a
working group of which the United States is a member to develop
incentives and rewards to encourage vessel operators to lower dolphin
mortality and serious injury.
Comment 54: One commenter recommended that NMFS should wait to
incorporate the DML utilization standard that will be developed by
IATTC staff and the International Review Panel (IRP) under the
Agreement on the IDCP, rather than establish a utilization standard of
its own (e.g., lose its DML and may not set on dolphins for the
remainder of the year if no dolphin sets are made prior to April 1 of
that year) and potentially undermine the IDCP.
Response: The language in the interim final rule reflects the
current language in the Agreement on the IDCP and is consistent with
the IDCPA.
Comment 55: One commenter indicated that the ``trading in'' of
unused DMLs to vessels requesting a second semester DML is counter to
the IDCPA intent to reduce dolphin mortality and serious injury to
levels approaching zero.
Response: The procedure for issuing a second semester DML for the
6-month period July 1 to December 31, is in accordance with the
procedure described in Annex IV of the Agreement on the IDCP and
consistent with the goals of the IDCPA. In addition, second semester
DMLs are only 2/3 of an annual DML.
Comment 56: One commenter strongly supported the provision that
states, ``Any vessel that exceeds its assigned DML after any applicable
adjustment under paragraph (c)(8)(v) of this section will have its DML
for the subsequent year reduced by 150 percent of the overage.''
Response: NMFS agrees. This requirement is consistent with the
Agreement on the IDCP, Annex IV, Section III, paragraph 6.
Comment 57: One commenter suggested the language, ``By March 15,
the Administrator, Southwest Region shall notify the Director of the
IATTC of any unused DML, that will be returned to the IDCP, to be added
to the pool of unutilized DML'' at the end of Sec. 216.24(c)(8)(iv).
Response: NMFS disagrees since under the Agreement on the IDCP, the
Director of the IATTC will use data collected from the international
observer program to determine whether any DMLs will not be used or
whether any DMLs have been forfeited. In this case, the Administrator,
Southwest Region will not need to notify the Director of the IATTC.
Comment 58: One commenter urged NMFS to delete the phrase ``or
exceeded'' from paragraph 216.24(c)(8)(x)(A) (``when the vessel's DML,
as adjusted, is reached or exceeded;'') to make it clear that once a
vessel has reached its DML, the vessel and operator permit holders must
not intentionally deploy a purse seine net on or encircle dolphins.
Response: NMFS disagrees. Although a vessel operator must not
intentionally deploy a purse seine net on or encircle dolphins
intentionally when the vessel's DML is reached, sometimes in a single
set a vessel unintentionally exceeds its DML. If so, the vessel must
stop fishing after the DML is ``exceeded.'' While this situation is
discouraged and should be avoided, it is not in itself a violation of
the IDCPA or the Agreement on the IDCP. In addition, as a penalty, the
next year's DML for that vessel will be reduced by one and a half times
the amount the previous year's DML was exceeded.
Comment 59: One commenter indicated that in paragraph
216.24(c)(8)(x)(B), the phrase ``in the absence of the notification to
cease intentional sets on dolphins'' is confusing because it seems
misplaced and suggested editing the paragraph.
Response: NMFS agrees and has deleted the phrase ``in the absence
of the notification to cease intentional sets on dolphins'' since it
does not provide any additional value to the paragraph.
Comments on Observers
Comment 60: Will observers provided by the Forum Fisheries Agency
pursuant to the South Pacific Tuna Treaty be acceptable to the IATTC
and NMFS for vessels fishing in the ETP whether or not the vessel
intends to make intentional sets on dolphins?
Response: There is a provision in the Agreement on the IDCP that
allows the Director of the IATTC to use a trained observer from another
international program if the placement of an observer from the On-Board
Observer Program is not practical and the vessel will not set on
dolphins. However, Forum Fisheries Agency observers are not currently
recognized by the Meeting of the Parties.
Comment 61: One commenter suggested modifying the language in the
proposed rule to specify that the payment of observer placement fees
are submitted to the Administrator, Southwest Region, and that the
Administrator, Southwest Region will then forward the fees to the
applicable international organization (e.g., the IATTC).
Response: The rule has been modified to indicate the fees for
observer placement will be forwarded to the applicable international
organization by the Administrator, Southwest Region.
Comment 62: One commenter indicated that the methods for
communicating marine mammal mortality data by observers, as well as
details as to whether the data will be coded or made secure in some
other way, have yet to be finalized. Therefore,
[[Page 38]]
the text under Sec. 216.24(e)(2) ``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'' should be more general.
Response: NMFS agrees and has changed the language at
Sec. 216(e)(2) to read ``Masters must allow observers to use vessel
communication equipment to report information concerning the take of
marine mammals and other observer collected data upon request of the
observer.''
Comment 63: One commenter felt that having observers collect
information that may be used in civil or criminal penalty proceedings
would jeopardize the safety of an observer and lead to data
falsification.
Response: NMFS disagrees. NMFS has the authority to use observer
data as evidence in civil or criminal cases and based on NMFS'
experience observing U.S. tuna purse seine vessels from 1976 through
1995, using observer data during legal proceedings has not jeopardized
the safety of an observer or led to data falsification.
Comment 64: One commenter objected to any type of national observer
program being used other than the IATTC program as stated in
Sec. 216.24(b)(8)(ii).
Response: NMFS disagrees. The Agreement on the IDCP allows for each
Party to maintain its own national observer program in accordance with
the provisions of Annex II. However, at least 50 percent of the
observers on the vessels of each Party shall be IATTC observers.
Comment 65: One commenter indicated that the observer reports are
routinely falsified and that is the only reason the annual fishery-wide
dolphin mortality statistics have appeared to drop below 5,000 animals.
Response: NMFS recognizes the possibility that the observer reports
may be falsified, or incorrect for other reasons, and therefore
continues to support and participate in the IRP's efforts to ensure
observer objectivity and the collection of accurate and reliable
scientific data.
Comments on Vessel and Operator Permits
Comment 66: One commenter suggested that a 45-day processing time
for vessel permits and operator permits is excessive. In addition, the
commenter expressed confusion why operators must attend a skipper
education workshop if the vessel does not have a DML.
Response: NMFS would only require up to 45 days to process an
application in the case where a captain must schedule a skipper
education workshop to qualify for an operator permit or a vessel owner
must schedule a vessel inspection of the required vessel gear and
equipment to obtain a vessel permit. Although the focus of the skipper
education workshop will be on dolphin safety requirements and the IDCP,
the operator may accidentally encircle a marine mammal and needs to
know the requirements for releasing the animal under the MMPA and the
IDCP.
Comment 67: One commenter believes that NMFS should require the
release of marine mammals incidentally caught in a purse seine net by a
vessel that does not have a DML. The following language was suggested
to bring the proposed regulations into conformance with the Agreement
on the IDCP's requirement under Annex VIII, paragraph 4: ``Any vessel
that captures marine mammals taken incidental to commercial fishing
operations shall attempt to release the marine mammals using every
means at its disposal, including aborting the set. Marine mammals shall
be immediately returned to the environment where captured without
further injury. The use of sharp or pointed instruments to remove any
marine mammal from the net is prohibited.''
Response: Comparable language already exists in Sec. 216.24(d)
which requires incidentally taken marine mammals to be released using
procedures such as hand rescue and aborting the set without further
injury at the earliest effective opportunity.
Comment 68: One commenter indicated the proposed regulatory text
pertaining to the observer fee is confusing and should be clarified in
the final rule. In addition, the commenter indicated that it is not
clear whether the vessel permit application would be considered
adequate and complete if the observer fee had not been paid. Moreover,
proposed Sec. 216.24(b)(8)(ii) included confusing language about the
time of the submission of the observer fee since the language did not
appear to require the observer fee to actually be paid, but rather to
the consent to payment of the fee. These issues need to be clarified in
the final rule.
Response: NMFS has rewritten this section to clarify that the
payment of observer fees is not required as part of the application
process, but is required for the permit to be considered valid. Under
the IDCPA, issuing a vessel permit and collecting observers fees are
not dependent upon each other.
Comment 69: Some commenters took issue with the provision that
enforcement action will not be taken if a prohibited marine mammal
species is taken using a purse seine provided that the animals are not
``reasonably observable'' at the time the skiff attached to the net is
released from the vessel at the start of a set and all the procedures
required by the applicable regulations have been followed and
recommended deleting the ``reasonably observable'' language from
proposed Sec. 216.24(c)(8)(ix).
Response: NMFS recognizes that occasionally a prohibited species is
not detected prior to the time the skiff attached to the net is
released from the vessel at the start of a set. To accommodate this
unlikely event, NMFS is keeping the ``reasonably observable'' language
in the regulatory text.
Comment 70: One commenter questioned whether it is the intent of
NMFS to require a tuna purse seine vessel transiting the ETP to obtain
a vessel permit if there is tuna aboard that was caught elsewhere
(e.g., western Pacific) as indicated by Sec. 216.24(a)(2)(ii) which
states ``(ii) It is unlawful for any person using a United States purse
seine fishing vessel * * * 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.''
Response: Under Sec. 216.24(a)(3), vessels may obtain a waiver from
the prohibition to possess or land tuna within the ETP without a vessel
permit by submitting a written request in advance of entering the ETP
to the Assistant Administrator, Southwest Region.
Comment 71: One commenter believed that the language at
Sec. 216.24(b)(8)(v) regarding the data release form should be modified
to clarify that by using a permit, the permit holder authorizes the
release of all data collected by observers aboard tuna purse seine
vessels to NMFS and the IATTC.
Response: NMFS agrees and has modified the language.
Comment 72: One commenter indicated Sec. 216.24(b)(8)(vi) is
unclear as written and needs to be rewritten.
Response: NMFS agrees and has rewritten the provision.
Comment 73: One commenter does not understand why the provision for
the Administrator, Southwest Region to produce periodic status reports
summarizing stock specific dolphin mortalities and serious injuries is
included in the regulations under the permit section. In addition, the
commenter indicated it would be helpful to ``explain'' in the preamble
to
[[Page 39]]
the final rule how frequently these reports are expected to be issued.
Response: The provision for the Administrator, Southwest Region to
produce periodic status reports summarizing stock specific dolphin
mortalities and serious injuries is included under the permit section
of the regulations since the permits are what allow U.S. tuna purse
seine fishing vessels in the ETP to incidentally take marine mammals
during the course of commercial fishing operations. The reports are
intended to provide a mechanism to disseminate information on the
number and species of marine mammals killed or seriously injured under
the issued permits. The Administrator, Southwest Region intends to
issue these reports quarterly.
Comment 74: One commenter recommended inserting a cross reference
in Sec. 216.24(c)(3)(i) to indicate what the specific requirements and
conditions are for purse seine nets, gear and equipment under the
vessel inspection provision for vessel permit holders.
Response: NMFS agrees and has added the cross reference.
Comment 75: One commenter recommended rewriting the introductory
sentence of Sec. 216.24(c)(8)(viii) to read, ``It is unlawful for the
holder of a vessel or operator permit to deploy ...''
Response: NMFS disagrees since similar language is included in
Sec. 216.24(a).
Comment 76: One commenter requested that Sec. 216.24(d) explain how
any accidental mortalities or serious injuries would be treated.
Response: NMFS disagrees that Sec. 216.24(d) is the appropriate
place to make that explanation. Under Annex IV, section I, paragraph 6
of the Agreement on the IDCP, incidental mortalities caused by tuna
purse seine vessel permit holders operating in the ETP without an
assigned DML shall be deducted from the Reserve DML Allocation set
aside. Tuna harvested in a purse seine set in the ETP with an
accidental dolphin mortality would be considered ``non-dolphin-safe.''
Comment 77: One commenter indicated that the language in
216.24(b)(1) seems to allow a vessel permit holder to transfer the
vessel permit to a new owner when the vessel ownership changes, yet
there is no language that requires the new owner to notify NMFS.
Response: Vessel permits are not transferable. The language in
Sec. 216.24(b)(1) has been modified by deleting ``except that a permit
may be transferred to the new owner when the vessel ownership
changes.''
Comment 78: One commenter indicated that the regulations do not
require the vessel and operator permit applicant to use a standardized
form, nor does there seem to be a requirement for the applicant to
certify the accuracy of the information contained in the application.
The commenter also believed that the application form or regulations
should include language that states that, if the applicant knowingly or
materially falsified the information contained in the application, the
permit will be denied or revoked.
Response: Applicants are required to use standardized vessel and
operator permit application forms approved by the Office of Management
and Budget. The forms require the applicants to certify, under penalty
of perjury, that the information is true and complete.
Comment 79: One commenter believes vessels that do not
intentionally take marine mammals should be required to carry all the
special dolphin safety equipment and gear (e.g., rafts and face masks)
so that accidentally caught dolphins may be released using every means
at its disposal. The commenter would like the regulations modified to
require vessels that do not practice purse seining fish on dolphins to
carry a raft and face masks.
Response: Although the use of a raft and face mask could facilitate
the release of an accidentally caught dolphin, the IDCPA does not
require vessels not fishing on dolphin and not assigned a DML to carry
the equipment. Furthermore, since accidental sets are rare events and
the vessel operator is required to use procedures such as hand release
and aborting the set at the earliest effective opportunity to prevent
injury, NMFS decided the vessel operator and owner should determine
whether having a raft and face mask aboard the vessel might eliminate
the need to abort a set under some circumstances. However, NMFS
recommends the use of one or more rafts and face masks or view boxes to
aid in the rescue of dolphins.
Comment 80: One commenter suggested that Sec. 216.24(b)(4) should
cross reference the vessel inspection provisions that will be used to
verify whether the vessel possesses the required dolphin safety gear.
Response: NMFS does not think the cross reference is necessary
since the vessel inspection provision at Sec. 216.24(c)(3) contains a
cross reference to the required gear and equipment necessary for a
valid vessel permit.
Comments on Sundown Sets
Comment 81: Commenters felt NMFS' interpretation of section
303(a)(2)(B)(V) of the MMPA is contrary to the intent and meaning of
the law. The law clearly states that backdown procedures must be
completed 30 minutes before sundown, whereas the proposed rule would
have required backdown to be completed 30 minutes after sundown. If
NMFS believes that Congress erred, NMFS should seek an amendment to the
statute, rather than promulgating regulations weaker than required by
the law to fix a potential typographical error. NMFS also received
comments in support of the proposed rule on sunset sets because the
language of the rule is consistent with the Agreement on the IDCP.
Response: NMFS disagrees since the previous regulations, previous
amendments to the MMPA, the La Jolla Agreement and the IDCP all specify
that backdown procedures must be completed no later than one-half hour
after sundown. Furthermore, under the Agreement on the IDCP, signatory
nations agreed that the backdown procedure must be completed no later
than one-half hour after sundown. Since no congressional reports or
colloquy indicated that this ``revision'' was adopted purposefully,
NMFS concludes the language in the IDCPA stating that backdown
procedures must be completed no later than one-half hour before sundown
must have been a drafting error.
Comment 82: One commenter felt that ``sufficiently in advance of
sundown'' should be clearly defined as a period of time such as 2
hours.
Response: NMFS agrees and has determined that ``sufficiently in
advance of sundown'' is if the seine skiff is let go 90 or more minutes
before sunset. This is based on earlier analysis of the length of
daytime sets in the U.S. fleet in the late 1980s. The analysis showed
that 96 percent of the daytime sets took no more than 120 minutes from
the time the seine skiff was let go until the completion of backdown.
Comments on Official and Alternative Marks
Comment 83: The regulations should allow for alternative marks in
addition to the official mark. The regulations should allow alternative
marks to use a tracking and verification system other than the official
tracking system and a method for obtaining a determination from the
agency that the proposed alternative tracking and verification program
is comparable to the official program. Other commenters indicated
[[Page 40]]
that a single tuna tracking and verification mechanism should be used.
Response: The proposed rule does not prevent the use of alternative
marks or an alternative tracking system. However, all tuna imported,
exported, or sold in the United States that was harvested by purse
seine vessels greater than 400 st (362.8 mt) carrying capacity in the
ETP must comply with the tracking and verification program described in
this rule. Any dolphin-safe label, whether the official label or an
alternative label, must comply with the labeling standards in
paragraphs (d)(1) and (2) of the DPCIA. Under paragraph (f) of the
DPCIA, NMFS is required to establish a tracking and verification system
to support any dolphin-safe label under paragraph (d). In other words,
an alternative mark would be required to be supported by the official
tracking and verification program. Nothing in these regulations is
intended to inhibit a company or group from establishing an alternative
tracking and verification program, however, such a program would not be
a substitute for the program described here.
Comment 84: One commenter suggested that NMFS include a provision
in the regulations as follows: ``The Assistant Administrator may
determine that an international tracking and verification program for
certain tuna and tuna products meets or exceeds the minimum
requirements for documentation set forth in Sec. 216.94(b) upon a
review of the program and written determination of approval and notice
of that determination in the Federal Register. Upon publication of this
notice, the Assistant Administrator will accept a determination by the
approved program as satisfying the documentary evidence requirements of
Sec. 216.94(d). An approval of a program will remain in effect for the
period of acceptance established by the Assistant Administrator, or
until the Assistant Administrator determines that the program no longer
qualifies for approval based upon new information or a lack of updated
information. The Assistant Administrator will publish a notice in the
Federal Register announcing any change in status of an approved
program.''
Response: NMFS disagrees since these regulations do not include
foreign tuna tracking and verification programs. However, certain
commitments were made in the Tracking and Verification Working Group
and by the Meeting of the Parties to comply with the Agreement on the
IDCP system for tracking and verifying dolphin-safe tuna from non-
dolphin-safe tuna from the time it is caught to the time it is ready
for retail sale.
Comment 85: One commenter indicated that there should only be a
single labeling standard and that no alternative labels should be
permitted.
Response: There is only one currently applicable standard for
dolphin-safe tuna (for ETP purse seine vessels: no dolphins were killed
or seriously injured during the sets in which the tuna were caught).
However, the IDCPA does allow for the use of alternative marks, and
NMFS sees no basis for prohibiting the use of alternative marks.
Comment 86: One commenter felt that there is a distinction between
``alternate'' and ``alternative'' marks. An alternate mark could be
used in conjunction with the official mark and an alternative mark
could be used in lieu of the official mark.
Response: The IDCPA states that a tuna product that bears the
official dolphin-safe mark shall not bear any other label or mark that
refers to dolphins, porpoises, or marine mammals.
Comment 87: One commenter felt that the alternative mark must
achieve a standard that, at a minimum, is equivalent to the official
mark.
Response: NMFS agrees. Upon analysis of DPCIA paragraph (d)(3)(C),
NMFS has concluded that the standards for using an alternative mark
must meet, or exceed, the standards established for the official mark.
Comments on Tuna Tracking and Verification Program
Comment 88: One commenter expressed concern about the practicality
of having the signed Tuna Tracking Form (TTF) delivered within 5 days
of the end of the trip to the Regional Administrator, Southwest Region
for remote or foreign ports. The commenter indicated that it may be
unrealistic to have the form postmarked within 5 days of the end of the
trip.
Response: In most cases, a representative of NMFS will meet the
fishing vessel and receive the TTFs. In cases where the NMFS
representative does not meet the vessel, the IATTC observer can deliver
the TTFs to the IATTC office, and the forms can be forwarded to NMFS
from that location within 5 working days of the end of the trip.
Comment 89: One commenter suggested including an explanation of
``fish condition'' similar to the explanation provided in
216.94(b)(5)(i) ``round, loin, dressed, gilled and gutted, other'' for
Sec. 216.94(b)(2) ``designation of each container, species, fish
condition, and weight of tuna in each container'' and that the term
``fish condition'' be used consistently throughout the final rule.
Another commenter suggested using the term ``fish status'' instead of
the term ``fish condition.''
Response: NMFS agrees that the meaning of the term ``fish
condition'' as it appears in Sec. 216.94(b)(2) is not consistent with
the meaning of the term as it appears in Sec. 216.94(b)(5)(i). The term
``fish condition'' in Sec. 216.94(b)(2) has been changed to ``product
description.''
Comment 90: One commenter felt that it was premature to
specifically define the details of the observer duties pertaining to
the tracking and verification of tuna since the tracking program has
not been finalized by the Parties to the Agreement on the IDCP.
Response: An international tracking and verification program using
TTFs has been adopted by the Parties to the Agreement on the IDCP. At
the second Meeting of the Parties, in June 1999, a tuna tracking and
verification working group was created to develop the elements of the
international tracking and verification program. Nevertheless, NMFS
must develop a tuna tracking and verification program in order to
implement the IDCPA. This interim final rule establishes a tuna
tracking and verification program that is consistent, to the maximum
extent practicable, with both the IDCPA and the international program.
Comment 91: One commenter suggested it might be appropriate for
vessel owners to share the burden of maintaining trip report records in
addition to exporters, transhippers, importers, and processors as
described in Sec. 216.94(d).
Response: Section 216.94 of the regulations does not impose
reporting requirements, beyond the certification of TTFs, compelling
vessel captains to maintain records. The on-board observer is
responsible for maintaining the TTFs, which vessel captains are
required to sign, until the end of the trip.
Comment 92: Two commenters believed that the regulations will lift
the embargo on non-dolphin-safe tuna before an international tracking
system is in place. Furthermore, it would be contrary to the
requirements of the IDCPA to institute final implementing regulations
allowing tuna imports before the international tracking and
verification programs have been agreed to and are in place.
Response: An international tracking and verification program using
TTFs has been adopted by the Parties to the IDCP. At the second Meeting
of the Parties, a tuna tracking and verification working group was
created to develop the
[[Page 41]]
elements of the international tracking and verification program. In
addition, nations must apply for and receive an affirmative finding
under the IDCPA before tuna may be imported into the United States. To
receive an affirmative finding, nations must submit documentary
evidence that will allow the Secretary to make a determination of
compliance with the IDCP.
Comment 93: One commenter recommended that a harvesting nation must
have a tracking and verification system for all tuna it harvests, not
just the tuna it imports.
Response: NMFS has no authority to require a nation to implement a
tuna tracking and verification program. However, each party to the IDCP
agreement is required to implement a tuna tracking and verification
program in its respective territory, on vessels subject to its
jurisdiction and in marine areas with respect to which it exercises
sovereignty with respect to ETP harvested tuna. The U.S. tracking and
verification plan includes all U.S. caught tuna and all tuna imported
into the United States from the ETP.
Comment 94: One commenter indicated that there needs to be two
certification processes to allow tuna to be imported into the United
States. One certification would be for tuna caught by purse seine
vessels fishing within the ETP and the other certification would be for
tuna caught by purse seine vessels, or by other fisheries, outside the
ETP.
Response: NMFS agrees. The NOAA Form 370, Certificate of Origin,
allows for the appropriate certification of tuna, except fresh tuna,
imported into the United States. The DPCIA and these regulations
require different certifications for tuna harvested in different ocean
areas and by different gear types.
Comment 95: One commenter indicated that Sec. 216.93(b) would be
clearer and conform better to other provisions of the proposed rule if
it were revised to read: ``the documents are endorsed as required by
Sec. 216.92(a)(4) and the final processor delivers the endorsed
documents to the Administrator, Southwest Region, or to the U.S.
Customs Service.''
Response: NMFS agrees and has made the suggested change.
Comment 96: One commenter believed that it would be impractical for
U.S. Customs to receive the Fisheries Certificate of Origin at the time
of import because of existing duties and responsibilities of the U.S.
Custom Service and limited available personnel. The commenter suggested
that the importer retain the required documentation for later
verification by either NMFS or U.S. Customs.
Response: NMFS has depended on U.S. Customs offices around the
United States and in Puerto Rico for a number of years. Only the U.S.
Customs Service can assure that the NOAA Form 370 accompanies imported
shipments of tuna. Under the interim final rule, importers are required
to include the NOAA Form 370, Certificate of Origin, with all other
required import documents when the documents are filed with U.S.
Customs. In addition, importers are required by Secs. 216.94(d)(1) and
216.94(d)(2) to: (1) maintain their tuna import records for a period of
3 years, and (2) to provide copies of such records requested by the
Administrator, Southwest Region within 30 days of receiving a written
request.
Comment 97: One commenter asked whether the sentence in
Sec. 216.94, ``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 into the U.S. and abroad ...'' was
intended to include fishing by U.S. vessels in waters not subject to
U.S. jurisdiction. If so, the commenter suggested it would be more
accurate to revise this provision to read: ``during purse seine fishing
operations by U.S. vessels ...''
Response: NMFS agrees that one could misunderstand ``domestic purse
seine fishing'' to mean that vessels are fishing within the U.S.
Exclusive Economic Zone; therefore, the requested change has been made.
Comment 98: Commenters indicated that the IDCPA does not sanction
the collection of information about gear type and method of capture on
the Fisheries Certificate of Origin. In addition, the collection of
such information is contrary to the intent of the Panama Declaration
and inconsistent with the IDCPA. Collecting such information on the
Fisheries Certificate of Origin will undermine the IDCP. Finally, the
regulations should not require observer data forms to accompany
imported tuna.
Response: NMFS disagrees in part. Information collected on the
Fisheries Certificate of Origin includes gear type because the use of
some gear types indicates the tuna was not caught in association with
dolphin, while the use of other gear types indicate interactions with
dolphins (and require captain statements, etc.). Moreover, NMFS is not
requiring observer data forms or TTFs to accompany imported tuna.
Comment 99: One commenter expressed concern that the proposed IATTC
tracking system has no provisions for international inspections or
enforcement.
Response: The international tracking and verification system
approved by the Parties to the Agreement of the IDCP contains
provisions for development of an international program to facilitate
general reviews and spot checks of national tracking and verification
programs. In addition, the Parties have agreed to make TTFs and
documentation on national tracking and verification programs available
to the IATTC's IRP. The IRP can then recommend a nation take
enforcement action on a violation.
Comment 100: One commenter indicated that it is not clear what
effort NMFS intends to undertake to observe and monitor offloading,
deliveries, and processing of yellowfin tuna. It would be useful if
NMFS were to provide an estimate of the effort (annual budget, total
hours per year, percentage of off loadings and deliveries) expected to
be made to track tuna under the tracking and verification program. If
only a few off loadings are expected to be observed each year, then
maybe the reporting burden to provide advance notice of the scheduled
arrival in port may not be necessary.
Response: NMFS plans to monitor all off loadings by U.S. purse
seine vessels fishing in the ETP and does not consider the time for a
radio message and/or a phone call to be overly burdensome. NMFS
requested and has received funding to operate the tuna tracking and
verification program and hire two inspectors to monitor the unloading
of tuna from U.S. tuna purse seine vessels.
Comment 101: One commenter indicated that the practicality of
tracking tuna throughout a trip is not realistic for one observer. The
commenter suggested mandatory use of wide-angle time-lapse cameras
encoded with position data in addition to observers.
Response: NMFS disagrees since there is no data that supports the
conclusion that any type of camera would be more efficient than a
trained observer assigned to a vessel.
Comment 102: One commenter indicated NMFS should clarify that the
requirement to notify NMFS at least 48 hours prior to unloading fish
only pertains to U.S. vessels. In addition, the commenter indicated
that NMFS does not have the authority to inspect and monitor U.S.
vessels unloading in foreign nations because the Declaration of Panama
and the Agreement on the IDCP (Article XVI paragraph 1) reserves the
right to the sovereign territory to exercise enforcement authority.
[[Page 42]]
Response: The 48 hour notification requirement pertains only to
U.S. vessels subject to U.S. law. NMFS would not expect to be notified
of vessel landings on foreign shores other than landings of U.S. flag
vessels. However, through their adoption of an international tuna
tracking and verification plan, the Parties to the IDCPA have indicated
their willingness to cooperate with each other, including allowing a
representative of the national authority under whose jurisdiction a
fishing vessel operates to meet its flag vessels wherever they land to
receive TTFs and observe the vessel unloading.
Comment 103: The reporting requirements of U.S. canneries should be
clarified to indicate that the reporting requirement does not apply to
non-U.S. canneries operating within the sovereign territory of another
nation.
Response: The regulation, by virtue of the fact that it is a U.S.
regulation, applies only to U.S. canneries.
Comment 104: One commenter indicated that the regulations should
specify whether prohibited importations would be seized or exported
back to the nation of origin.
Response: NMFS agrees. Under existing regulations (recodified here
at Sec. 216.24(f)(11)), fish that is denied entry and has not been
exported under U.S. Customs supervision within 90 days from the date of
notice of refusal of admission or date of redelivery shall be disposed
of under Customs laws and regulations.
Comment 105: One commenter questioned whether the sentence in
Sec. 216.24(f)(2)(i), ``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 ...'' accurately reflects the
requirements under the IDCPA and suggested that the provision should
prohibit all tuna harvested by that nation, whether exported from that
nation or an intermediary nation, or imported directly from the
harvesting vessel to a U.S. processor.
Response: Section 101(a)(2)(B) of the MMPA clearly states that the
import restrictions apply to ``yellowfin tuna harvested with purse
seine nets in the eastern tropical Pacific Ocean.'' The purpose of
Sec. 216.24(f)(2)(i) is to present a list of Harmonized Tariff Schedule
numbers for yellowfin tuna or tuna products that must be accompanied by
a NOAA Form 370, Certificate of Origin. More detailed requirements for
harvesting nations and intermediary nations importing yellowfin tuna
harvested by purse seiners fishing in the ETP are codified at
Sec. 216.24(f)(9).
Comment 106: One commenter suggested referencing the effective date
of the Agreement on the IDCP in Secs. 216.24(f)(7)(i)(A) and
216.24(f)(7)(i)(C) to facilitate the application of the provision.
Response: NMFS agrees and has added the date that section 4 of the
IDCPA became effective (March 3, 1999) to those paragraphs of the
regulations. March 3 was the date that the Secretary of State certified
that the Agreement on the IDCP was effective and in force.
Comments on Mixed Wells
Comment 107: Several commenters questioned NMFS' proposal to (1)
allow mixed wells, containing both dolphin-safe and non-dolphin-safe
tuna; (2) not require sealed wells or some other equally effective
method for tracking and verifying the tuna caught in the ETP; and (3)
not require monitoring and certifying of the caught tuna brought aboard
the vessel and the loading of the wells below deck.
Response: NMFS disagrees. Under the DPCIA, the Secretary may make
adjustments as appropriate to the regulations to implement an
international tracking and verification program that meets or exceeds
the minimum requirements established under the DPCIA. NMFS has
determined that the U.S. tracking and verification program meets the
minimum requirements. Sealing and unsealing wells during a trip does
not provide additional confidence of the well contents than having an
observer record the contents of the well during the loading process and
during periodic inspections. The observer will record the information
on the TTF. The likelihood of fish being transferred between wells is
rare and does not support the need for placing one observer above deck
and another observer below deck. Having two observers aboard a vessel
would be cost prohibitive and redundant. The two mixed well exceptions
were added by the Parties to the Agreement on the IDCP to accommodate
rare occurrences in a reasonable manner. The IATTC is monitoring the
occurrence of mixed wells and will report at its June 2000 meeting on
the frequency of a mixed well event. If this monitoring shows that the
frequency of mixed wells is not a rare event, NMFS will reconsider
whether it will allow the use of mixed wells. Also, paragraph (f) of
DPCIA requires regulations to address all those points, but not
necessarily that NMFS implement each of them.
Comment 108: Commenters expressed concern that dolphin-safe tuna in
mixed wells would be based on observers' estimates of weight and that
no provision is made for how an observer will make a weight estimate of
tuna and the accuracy of such an estimate. This procedure is not
``equally effective'' to having separate, sealed wells as envisioned by
Congress. NMFS should amend the proposed rule to prohibit the mixing of
tuna and to require sealed wells. Any non-dolphin-safe tuna dumped into
a previously dolphin-safe well should be treated as ``non-dolphin-
safe'' since the cannery will not be able to distinguish dolphin-safe
tuna from non-dolphin-safe tuna during the canning of the tuna. The
consumer cannot be guaranteed that a particular fish is ``dolphin-
safe.''
Response: NMFS disagrees and has decided to allow the use of mixed
wells under two very specific and limited circumstances. Occasionally,
a well already designated as ``dolphin-safe'' and containing some
amount of dolphin-safe tuna may be loaded with tuna caught in a set in
which a dead or seriously injured dolphin is discovered during the
loading process. Once such non-dolphin-safe tuna is loaded into the
well, it is re-designated as a ``mixed'' well, and all tuna loaded into
that well for the remainder of the trip is ``non-dolphin-safe.'' When
the contents of such ``mixed well'' are unloaded, the tuna is 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. In addition, 15 percent of the dolphin-safe tuna will be
designated as ``non-dolphin-safe'' at the time of unloading to provide
a buffer between the dolphin-safe tuna and the non-dolphin-safe tuna.
NMFS is allowing this exception, but will monitor the frequency of
occurrence to determine whether this exception needs to be
reconsidered. Moreover, as part of training, observers are taught to
estimate the weight of fish loaded inside a brailer and the IATTC can
provide the observer with information about the carrying capacity of
the vessel and its wells. The second mixed well case would occur at the
end of a trip if all available wells were used and an opportunity for
one last set occurs. In this case dolphin-safe tuna could be loaded on
top of non-dolphin-safe tuna provided a physical barrier such as
netting is used to prevent the mixing of the non-dolphin-safe and
dolphin-safe tuna. The use of mixed wells is consistent with the
international tracking and verification program. Although there is no
physical
[[Page 43]]
barrier or other way of identifying a particular fish unloaded from a
mixed well described in the first scenario as ``dolphin-safe,'' the 15
percent weight buffer establishes a safety margin to ensure non-
dolphin-safe tuna is not labeled ``dolphin-safe,'' and it could
compromise the quality of the fish.
Comment 109: One commenter indicated that the regulations should
allow the observer to estimate the weight of loaded tuna and allow the
operator to place a net or similar marker in the well to separate the
dolphin-safe from the non-dolphin-safe tuna. Response: Although the
observer estimates the weight, species, and the status of fish loaded
into each well, there are only two allowed circumstances for mixed
wells. A net or similar marker may only be used to separate dolphin-
safe tuna from non-dolphin-safe tuna during the last set of a trip when
all the available wells are full, and there is an opportunity to load
dolphin-safe tuna in a non-dolphin-safe designated well. Otherwise,
indiscriminate use of nets or other materials throughout the wells
could lead to confusion over what is ``dolphin-safe.''
Comments on Additional Topics
Comment 110: One commenter indicated that it would have been more
accurate to state in the ``supplementary information'' section of the
proposed rule that the annual dolphin mortality in the eastern Pacific
Ocean had been reduced to below 5,000 animals by 1993, 6 years ahead of
the schedule established under the La Jolla Agreement.
Response: NMFS agrees. The annual dolphin mortality in the ETP had
been reduced to below 5,000 animals since 1993, 6 years ahead of the
schedule established under the La Jolla Agreement.
Comment 111: One commenter indicated that the preamble of the
proposed rule should have clearly indicated that the IDCP is in force
by not using certain future tense verbs in the codified text of the
rule.
Response: NMFS agrees.
Comment 112: One commenter asked why the difference in the
definition of ``ETP'' between the DPCIA (east to 160o W) and
the Agreement on the IDCP (east to 150o W) would not affect
foreign vessels.
Response: Foreign vessels will not be affected by these regulations
except when keeping records for dolphin-safe labels destined for the
U.S. market and the harvests occur between 160o W and
150o W. However, tuna imports into the United States will be
subject to the DPCIA's ETP definition. The DPCIA defines the ETP as the
area of the Pacific Ocean bounded by the 160o West meridian,
whereas the Agreement on the IDCP defines the ETP as the area of the
Pacific Ocean west to the 150o. According to the IATTC
observer data, no intentional sets have been made on dolphin west of
150o W.
Comment 113: One commenter suggested deleting the phrase, ``that
would otherwise be under embargo'' from the sentence ``These
regulations would allow the entry of yellowfin tuna into the United
States under certain conditions from nations signatory to the IDCP that
otherwise would be under embargo'' in the summary section of the
proposed rule since it doesn't add any meaning to the sentence.
Response: NMFS agrees. The summary section for this interim final
rule reads ``This interim final rule will allow the entry of yellowfin
tuna into the United States under certain conditions from nations fully
complying with the International Dolphin Conservation Program (IDCP).''
Comment 114: One commenter recommended expanding the penalties
language codified at Sec. 216.24(g) to include tuna imports and
labeling violations.
Response: NMFS disagrees. 50 CFR 216.95, which is applicable to
purse seine vessels greater than 400 st (362.8 mt) carrying capacity,
specifically prohibits any person from making a knowing and willful
false statement or false endorsement related to dolphin-safe tuna
requirements, or the importation of dolphin-safe tuna, and specifies
that a violator is liable for a civil penalty not to exceed $100,000.
Labeling violations would be prosecuted by the Federal Trade Commission
which is responsible for enforcing the Federal Trade Commission Act
(FTCA) and the DPCIA which states that violations of the labeling
standard are violations of the FTCA.
Comment 115: Several commenters indicated that the regulations must
be made fully consistent with the Declaration of Panama and the IDCP
Agreement.
Response: NMFS agrees and will follow the Agreement on the IDCP to
the extent allowable under the IDCPA. NMFS presumes Congress intended
the IDCPA to be consistent with the IDCP and Declaration of Panama.
Comment 116: One commenter suggested replacing the word
``skipjack'' with the words ``yellowfin tuna'' in the ``supplementary
information'' of the proposed rule under the rubric for Harmonized
Tariff Schedule Numbers ``For instance, a shipment of skipjack
harvested by longline may require an FCO because the importer ...''
since skipjack tuna are not harvested by longline.
Response: NMFS disagrees because skipjack are occasionally caught
using longline gear. The example is not used in the interim final rule.
Comment 117: One commenter indicated that the regulations should
not be a forum to cover up the failure of the Clinton Administration to
negotiate an agreement consistent with U.S. law.
Response: The Agreement on the IDCP is consistent with U.S. law.
Comment 118: One commenter suggested adding the phrases to the
preamble discussion, ``Congress considered several bills to implement
the Panama Declaration, ultimately passing the IDCPA. The IDCPA was
signed into law on August 15, 1997. The IDCPA together with the Panama
Declaration became the blueprint for the IDCP.'' to clarify the linkage
between the IDCP and the IDCPA.
Response: NMFS has included this language in the background
information for the interim final rule.
Comment 119: One commenter disagrees that the IDCPA was the
domestic endorsement of an international management regime adopted
during the last 20 years under the auspices of the IATTC. Instead, the
IDCPA codified the La Jolla Agreement, incorporated provisions of the
Panama Declaration, and set the stage for the new binding international
agreement embodied in the IDCP.
Response: NMFS concurs although the La Jolla Agreement embodied a
number of measures developed over many years of regulating the ETP
fishery to reduce dolphin mortality.
Comment 120: One commenter indicated that the U.S. tuna purse seine
fleet should be treated fairly and equitably in the U.S. regulations
implementing the IDCPA.
Response: NMFS agrees.
Comment 121: One commenter indicated that the proposed rule fails
to provide substantial background information about DOC's and NMFS'
failure to abide by the clear intent of marine mammal protection law,
multiple court rulings against NMFS' administration of the MMPA's tuna-
dolphin provisions, public opposition to the DOC interpretation of the
MMPA, and multiple amendments to the MMPA by Congress in order to force
compliance by the DOC and NMFS.
Response: The historical information provided in the background
section of the proposed rule focuses mainly on the
[[Page 44]]
key events leading to the passage of the IDCPA.
Comment 122: One commenter indicated that it is wrong that Vice
President Al Gore, Secretary of Commerce William Daley, and Secretary
of the Interior Bruce Babbit actively campaigned for the passage of the
IDCPA in Congress and now the DOC claims that the legislation mandates
that the United States allow non-dolphin-safe tuna to be imported.
Response: This comment is not relevant to this rulemaking. The
IDCPA does not completely prohibit the importation of non-dolphin-safe
tuna into the United States but allows non-dolphin-safe tuna to be
imported provided it was harvested in compliance with the IDCP by a
vessel operating under the jurisdiction of a nation that is a member of
the IATTC or has initiated an application to join the IATTC (and
completes the process within 6 months).
Comment 123: One commenter indicated that the language in the
proposed rule needs to be updated to reflect the current status with
respect to the initial finding by the Secretary of Commerce and the
international agreement signatory status.
Response: NMFS has updated all the sections in the interim final
rule to reflect the current status of the initial finding (DPCIA
paragraph (g)(1)) and the international agreement signatory status.
Comment 124: One commenter urged NMFS and the Department of State
to renegotiate the Panama Declaration that has led to the redefinition
of dolphin-safe tuna under the IDCP. The Panama Declaration undermines
the MMPA and results in the injury and deaths of thousands of animals
each year.
Response: NMFS does not agree. The IDCP provides a mechanism to
reduce the level of incidental take of marine mammals associated with
the yellowfin tuna purse seine fishery in the ETP to biologically
sustainable levels. The comment is not focused on this rule per se, but
it involves larger policy issues of international agreements and
legislation.
Comment 125: One commenter requested clarification regarding when
the coastal spotted dolphin was designated as depleted under the MMPA
and the procedure by which such designation was made since the 1982
court ruling overturned the depleted status for this stock. If the
coastal spotted dolphin is not officially depleted, the reference to
the stock being depleted should be removed.
Response: NMFS designated the coastal spotted dolphin as depleted
under the MMPA in Federal Register (45 FR 72178, Oct. 31, 1980). The
court ruling did not overturn the depleted status but rather required
NMFS to recalculate the population estimates. The depleted status was
not changed after recalculating the coastal spotted dolphin stock
population estimates.
Comment 126: One commenter indicated that the proposed regulation
reflects a strong influence of foreign interests and illegal drug
trafficking activity in the foreign tuna fishery and the governments
involved.
Response: The regulations implement the IDCPA. NMFS does not know
if any commenters are involved in illegal drug trafficking, but
comments from foreign organizations and persons were received and
considered. The rulemaking process itself was conducted in an open
manner in accordance with the Administrative Procedure Act.
Comment 127: One commenter felt that the regulations significantly
impact small businesses by placing the burden of supporting and
promoting an alternative mark standard on the small canneries and
wholesalers while the official mark standard is subsidized by tax
dollars.
Response: Alternative marks will have to be supported by comparable
tracking and verification programs, but NMFS disagrees with the
characterization that the official mark is subsidized by tax dollars.
The IDCPA requires NMFS to establish a mark for dolphin safe tuna. The
program for tracking the mark consists primarily of information
collected by the IATTC and IATTC approved national observer programs
and cooperation of the canning and processing industry in maintaining
appropriate documentation. For U.S. vessels and processors, these
programs are entirely industry funded. There are no tax dollars being
expended for these activities. NMFS is neither is funding nor
supporting any promotion of the official dolphin safe mark. NMFS funds
are being expended on staff to review and monitor documentation from
these industry funded programs whether the information is submitted
from the IDCP or alternate programs.
Comment 128: Some commenters requested that NMFS completely rewrite
the proposed rule and submit the rule again for public comment, whereas
other commenters praised NMFS for doing a good job drafting the rule.
Response: By publishing an interim final rule, NMFS will continue
to accept additional public comments during a 90-day comment period
while meeting programmatic and mission goals in a timely manner.
Comment 129: Commenters indicated that the proposed regulations try
to implement international programs that have not yet been finalized by
tuna treaty Parties.
Response: The regulations implement, in part, the Agreement on the
IDCP, which has been ratified by fishing nations in the ETP such as
Ecuador, El Salvador, Mexico, Nicaragua, Panama, Venezuela, and the
United States.
Comment 130: Many commenters requested an extension for public
comments of at least 30 days due to the technical and complex issues
that require research and analysis.
Response: NMFS disagrees that this is necessary. By publishing an
interim final rule, NMFS will continue to accept additional public
comments for 90 days while meeting programmatic and mission goals in a
timely manner. Furthermore, commenters who did request an extension
submitted extensive and comprehensive comments.
Comment 131: One commenter disagreed with the proposed rule which
allows a permit holder to injure or kill a marine mammal if the animal
is causing or is about to cause immediate personal injury.
Response: This provision of the regulations is only a restatement
of the statute. According to section 101(c) of the MMPA, if there is
imminent danger to a person, a dolphin may be injured or killed to
prevent injury or death of that person.
Comment 132: Commenters suggested that the term ``incidental take''
not be used in the ETP tuna fishery since the MMPA refers to takes as
incidental or accidental to distinguish them from intentional takes.
The commenter believes that if dolphin are deliberately set on by purse
seiners then any take should be considered intentional.
Response: NMFS disagrees since Congress used this term to describe
the ETP purse seine fishery in section 104(h) of the MMPA.
Comment 133: One commenter suggested inserting the word
``incidental'' into the phrase in the U.S. Citizens on Foreign Flag
Vessels in the supplementary information of the proposed rule, ``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 prohibition
on incidental taking marine mammals while the vessel is engaged in
fishing operations outside the U.S. EEZ ...'' to be consistent with the
IDCPA.
Response: NMFS agrees that it is only ``incidental taking'' that is
authorized.
Comment 134: NMFS received numerous editorial comments on
[[Page 45]]
typographical errors and suggestions on sentence wording.
Response: NMFS incorporated many of the suggestions.
Comment 135: In a March 24, 1999 letter to Senator Barbara Boxer,
the DOC stated that the final finding in 2001 would include a public
comment period for substantive comments. In addition, the Secretary
promised Members of Congress that future dolphin-safe label standards
would be a formal rulemaking action. However, in the ``supplementary
information'' section of the proposed rule (at page 31809 of the
Federal Register document) the sentence ``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 ...,'' NMFS indicates that the
Assistant Administrator will implement any required change in the
labeling standard without additional rulemaking.
Response: NMFS will publish the final finding on whether the
intentional deployment on, or encirclement of, dolphins with purse
seine nets ``is having a significant adverse impact'' on any depleted
dolphin stocks in the ETP between July 1, 2001, and December 31, 2002.
There is no provision in the finding process to include public comment,
and commenters apparently had a different understanding of the March 24
letter to Senator Boxer. In the response to Senator Barbara Boxer, NMFS
indicated that supporting documentation for the initial finding and the
research results as they become available would be posted on the
Internet as at http://swfsc.ucsd.edu/IDCPA/IDCPAfront.html. In
addition, NMFS indicated that, as usual, substantive comments on the
initial finding will be considered throughout the remainder of the 3
year process toward the final determination. NMFS will accept public
comment on changes to the dolphin-safe labeling standards under this
interim final rule and any subsequent rulemakings.
Comment 136: One commenter felt that it was never the intent of
Congress to require a high standard of proof that the tuna fishery is
causing adverse impacts on the dolphin populations when making the
initial and final finding, but rather to use the best available
scientific information that clearly supports the conclusion that the
two depleted stocks of dolphins are not recovering at the rate
expected.
Response: Under the IDCPA, the Secretary is required to make
findings regarding 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. The finding
shall be based on studies assessing the effect 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, population abundance surveys, information obtained
under the IDCP, and any other relevant information. NMFS has an
obligation to conduct the research mandated by section 304(a) of the
MMPA, and has an obligation to make the DPCIA findings using the best
scientific information available at the time of the finding.
Changes From the Proposed Rule
Instead of publishing only the revised or new provisions of
Sec. 216.24, in the interim final rule, NMFS is publishing the revised
Sec. 216.24 in its entirety, for the convenience of readers, to correct
cross-reference errors and to improve clarity. The interim final rule
includes revised definitions for ``Fisheries Certificate of Origin,''
``Import,'' and ``Tuna product.'' In addition, a definition for
``Serious injury'' was added in response to comments. The language
pertaining to taking a marine mammal to protect crew members from
personal injury that appeared in Sec. 216.24(b)(vi) and
Sec. 216.24(b)(vii) has been removed since, under section 101(c) of the
MMPA, all persons are allowed to take a marine mammal in self-defense
or to save the life of a person in immediate danger. Under
Sec. 216.91(c) (labeling requirements) a paragraph was added to include
the requirement in the DPCIA that any tuna product that is labeled with
the official mark cannot be labeled with any other label or mark that
refers to dolphins, porpoises, or marine mammals.
Changes to Affirmative Findings
Every 5 years, the government of a harvesting nation must request
an affirmative finding and submit documentary evidence to the Assistant
Administrator. In addition, the Assistant Administrator will continue
to determine on an annual basis whether to make an affirmative finding
to allow a nation to import ETP yellowfin tuna into the United States.
The annual finding will be based mostly upon documentary evidence
provided by the IATTC and the Department of State, although documentary
evidence may also be requested from the government of the exporting
nation or the government of the harvesting nation. Documentary evidence
will need to be submitted by the harvesting nation for the first
affirmative finding after the effective date of this interim final
rule. Furthermore, NMFS has revised the affirmative finding criteria
that require the annual total dolphin mortality of the nation's purse
seine fleet not to exceed the aggregated total of the mortality limits
assigned by the IDCP for the nations's purse seine vessels for the year
preceding the year in which the finding would start. Under the revised
language, nations could receive an affirmative finding if the total
dolphin mortality of the nation's purse seine fleet exceeded the
aggregated total of the mortality limits because of extraordinary
circumstances beyond the control of the nation or vessel captains.
However, the nation must immediately require all its vessels to cease
fishing for tuna in association with dolphins for the remainder of the
calendar year. In addition, nations may exceed the annual per-stock
per-year limits assigned by the IDCP for that nation's purse seine
vessels for the year preceding the year in which the finding would
start provided there were extraordinary circumstances beyond the
control of the nation or vessel captains that caused the per-stock per-
year dolphin mortality to exceed the aggregated total of the per-stock
per-year limits. Under this circumstance, the nation must immediately
require all its vessels to cease fishing for tuna in association with
dolphins for the remainder of the calendar year. Under these criteria,
a nation will not be embargoed for exceeding its DML (e.g., by just one
dolphin) if the nation is operating under the Agreement of the IDCP,
and making good faith efforts to ensure compliance by all vessels
operating under their flag. This flexibility will allow nations that
are fully implementing the Agreement on the IDCP not to be embargoed if
their DMLS are exceeded. This flexibility will encourage harvesting
nations to comply with the Agreement on the IDCP, but it will threaten
economic sanctions against nations that do not control or manage their
own fleets.
Changes to Tuna Tracking and Verification
Instead of one rare event that would allow a mixed well to occur as
described in the proposed rule, there are now two rare events in which
mixed wells are allowed. In the first type of rare event described in
the proposed rule where an observer has designated the set ``dolphin-
safe,'' but during the loading process dolphin mortality or serious
injury is identified, the dolphin-safe status of the set changes to
non-dolphin-safe, and the well changes to a mixed well designation.
Fifteen percent of the dolphin-safe tuna unloaded (by
[[Page 46]]
weight) from this type of mixed well will be designated as ``non-
dolphin-safe'' to provide a buffer between the dolphin-safe and non-
dolphin-safe tuna loaded into the well.
The second rare event would occur near the end of an ETP fishing
trip if the only well space available is in a non-dolphin-safe well,
and there is an opportunity to make one last set. Dolphin-safe tuna
caught in that set may be loaded into the non-dolphin-safe well
provided the dolphin-safe tuna is kept physically separate from the
non-dolphin-safe tuna using netting or similar material. This will
allow vessels to return to port completely full without compromising
the status of the dolphin-safe tuna aboard the vessel. Although there
is no physical barrier or other way of identifying a particular fish
unloaded from a ``mixed'' well described in the first scenario as
``dolphin-safe,'' the 15 percent weight buffer establishes a safety
margin to ensure non-dolphin-safe tuna is not labeled ``dolphin-safe.''
In the second scenario, the use of a physical barrier such as netting
is considered sufficient to ensure non-dolphin-safe tuna is not labeled
``dolphin-safe.'' The IATTC is monitoring the occurrence of mixed wells
and will report at its June 2000 meeting on the frequency of a mixed
well event. If this monitoring shows that the frequency of mixed wells
is not a rare event, NMFS will reconsider whether it will allow the use
of mixed wells.
Changes to the Tracking and Verification Program
The TTF developed by the IATTC will be used to track and verify
tuna loaded as ``dolphin-safe'' and ``non-dolphin-safe'' aboard a
vessel and will double as the captain and observer certifications that
no dolphin were seriously injured or killed during the sets loaded in
the dolphin-safe wells. Also, the TTF will confirm there was an
observer approved by the IDCP aboard the vessel the entire trip. Two
TTFs will be used for each trip: one for dolphin-safe sets and one for
non-dolphin-safe sets. The two TTFs used on each trip will have a
unique number assigned by the IATTC which will represent the cruise
number assigned to the trip. The observer and vessel engineer will
initial the entry after each set and the captain and observer will
review and sign each TTF at the end of the fishing trip. The TTF will
not include the set number as discussed in the proposed rule. The
harvesting nation will retain the original TTF and the IATTC will
receive a copy.
Another difference in the tuna tracking and verification program is
that each national authority is responsible for the tracking and
verification of dolphin-safe tuna when it enters a processing plant
located within that nation, regardless of the flag of the harvesting
vessel. In other words, if a U.S. vessel unloads tuna in Ecuador,
Ecuador is responsible for the tracking and verification of dolphin-
safe tuna throughout its processing facilities. A representative of the
national authority will receive the original TTFs from the observer,
and copies of the TTFs will be forwarded to the Administrator,
Southwest Region. When ETP caught tuna is offloaded from an U.S. purse
seiner in any port and subsequently loaded aboard a carrier vessel for
transport to a cannery outside the jurisdiction of the United States, a
NMFS representative may meet the vessel to receive the TTFs from the
observer and monitor the offloading. The U.S. caught tuna becomes the
tracking and verification responsibility of the foreign buyer when it
is offloaded from the U.S. vessel. Imports of tuna harvested by large
purse seine vessels greater than 400 st (362.8 mt) carrying capacity in
the ETP and labeled ``dolphin-safe'' must be accompanied by Fisheries
Certificate of Origin endorsements by importers, exporters, and
processors attesting to the accuracy of the captain's and observer's
statements.
Changes to Captain Certification and Observer Certification
The DPCIA paragraph (d)(2)(B)(i) requires that tuna or tuna
products imported into the United States and labeled ``dolphin-safe''
must be accompanied by a written statement executed by the vessel
captain providing a certification that no dolphins were killed or
seriously injured during the sets in which the tuna were caught by
purse seine vessel greater than 400 st (362.8 mt) carrying capacity in
the ETP. NMFS has determined that there is a practical limitation on
this certification that limits its utility as a mechanism to track
dolphin-safe tuna. Therefore, NMFS has developed an alternative
mechanism to achieve the intended purpose of this certification.
Prior to amendment by the IDCPA, the DPCIA, required the captain
and observer certify that ``no tuna were caught on the trip in which
such tuna were harvested using a purse seine net intentionally deployed
on or to encircle dolphin.'' This certification followed the tuna
through processing and import into the United States. At the time of
importation, NMFS could determine that the product was ``dolphin-safe''
because the Fisheries Certificate of Origin contained information that
allowed NMFS to determine which fishing vessels had contributed to the
shipment and the captain and observer certifications applied to all the
tuna on board each vessel for its referenced trip.
Under the amended DPCIA, the captain and observer are required to
certify that no dolphin were killed or seriously injured in the sets in
which the tuna were caught. The captain and observer are potentially
verifying only a portion of the tuna on board the vessel is ``dolphin-
safe.'' In the event that a dolphin is killed or seriously in a set,
tuna from that set will be loaded into a non-dolphin-safe well for
which there would be no certification. After the tuna is off loaded at
a processing plant, the responsibility for ensuring dolphin-safe tuna
are separated from non-dolphin-safe tuna transfers from the vessel
captain and observer to the processor. Presenting captain and observer
certification at the time of import does not provide sufficient
information to allow NMFS to determine that the tuna in the shipment is
dolphin-safe, because the captain's and observer's statements do not
necessarily apply to all of the tuna in the shipment and there is no
certification by the processor or government body of the exporting
nation that ensures that non-dolphin-safe tuna were not mixed with
dolphin-safe tuna during processing.
NMFS has developed the following strategy to ensure its capability
to track dolphin-safe tuna and comply with the intent of the DPCIA.
Each shipment of tuna imported to the United States will be required to
be accompanied by documentation signed by a representative of the
appropriate IDCP member nation certifying that there was an IDCP
approved observer on board the vessel(s) during the trip(s) and that
the tuna contained in the shipment were caught according to the
dolphin-safe labeling standard. This documentation will also be
required to include a list of TTFs for all trips from which tuna in the
shipment were taken. This mechanism links the requirements of the DPCIA
paragraph (d)(2)(B)(i) to the international tracking program agreed to
by the Parties to the Agreement on the IDCP.
The international tracking and verification program to which the
United States has agreed, as a Party of the IDCP, lays out a system to
enable dolphin-safe tuna to be distinguished from non-dolphin-safe tuna
from the time it is caught to the time it is ready for retail sale. The
international system is based on TTFs. TTFs used during a fishing trip
are identified by a unique
[[Page 47]]
number. Dolphin-safe and non-dolphin-safe tuna caught in sets in the
course of a trip are recorded on separate TTFs. At the end of each set
the observer records and the chief engineer initials the date of the
set, estimated weight of tuna loaded by species, and well location on
the appropriate TTF. At the end of each fishing trip, when no more sets
are to be made, the observer and the captain review the TTF(s), and
both sign the forms. The signing of the dolphin-safe only form by the
captain and observer certifies that no dolphins were killed or
seriously injured in the sets in which the tuna were caught. NMFS has
determined that these signatures constitute a certification that no
dolphins were killed or seriously injured in the sets in which the tuna
were caught and therefore meets the requirements of the DPCIA.
A copy of the TTF is sent to the IATTC by the national authority of
each member nation that is a Party to the IDCP agreement. NMFS will
rely on the documentation provided by the representative of the IDCP
member nation and the cooperation of the IATTC to verify that dolphin-
safe tuna imported from member nations is supported by TTFs containing
the required certification that the tuna is from sets in which no
dolphins were killed or seriously injured.
Public Comments Solicited
NMFS is soliciting comments on this interim final rule. Written
comments on the interim final rule may be submitted to J. Allison Routt
(see ADDRESSES and DATES).
Classification
Executive Order 12866
Pursuant to the procedures established to implement section 6 of
E.O. 12866, this rule has been determined to be significant.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration when this rule was proposed that it would not have a
significant economic impact on a substantial number of small entities.
No comments were received regarding this certification. As a result, no
regulatory flexibility analysis was prepared.
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 Paperwork Reduction Act (PRA), unless that
collection of information displays a currently valid Office of
Management and Budget (OMB) control number.
This interim final rule contains collection-of-information
requirements subject to the 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 Certificate of
Origin (NOAA Form 370). Approved under OMB control number 0648-0335,
the public reporting burden for this collection is estimated to average
20 minutes per submission.
This interim final rule also contains new collection-of-information
requirements. Approved under OMB control number 0648-0387, the public
reporting burden for this collection is estimated to average 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 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
review and sign the TTF; 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. Send comments regarding
reporting burden estimates or any other aspect of the collection-of-
information requirements in this interim rule, including suggestions
for reducing the burdens to J. Allison Routt and to the Office of
Information and Regulatory Affairs, OMB, (see ADDRESSES).
National Environmental Policy Act
NMFS prepared an EA for this interim final rule and the Assistant
Administrator concluded that there will be no significant impact on the
human environment as a result of this rule. A copy of the EA is
available from NMFS (see ADDRESSES).
Endangered Species Act
NMFS prepared a biological opinion for this rule. NMFS concluded
that fishing activities conducted under this interim final rule are not
likely to jeopardize the continued existence of any endangered or
threatened species under the jurisdiction of NMFS or result in the
destruction or adverse modification of critical habitat. A copy of the
biological opinion is available from NMFS (see ADDRESSES).
List of Subjects
15 CFR Part 902
Reporting and record keeping requirements.
50 CFR Part 216
Exports, Fish, Imports, Labeling, Marine mammals, Penalties,
Reporting and record keeping requirements, Transportation.
Dated: December 21, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR
part 216 are amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, in paragraph (b) the table under 50 CFR, in the
left column, remove the entry ``216.24(c)'' and, in the right column in
the corresponding position, the control number ``-0083''; and add, in
numeric order, the following entry to read as follows:
[[Page 48]]
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (All numbers begin with
collection requirement is located 064809)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
216.24 -0387
* * * * *
------------------------------------------------------------------------
* * * * * * *
50 CFR Chapter II
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
3. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
4. In Sec. 216.3:
a. Remove the definitions--``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'';
b. Revise the definitions-- ``Fisheries Certificate of Origin'',
``Import'', and ``Tuna product''; and
c. Add the definitions-- ``Administrator, Southwest Region'',
``Agreement on the International Dolphin Conservation Program
(Agreement on the IDCP)'', ``Declaration of Panama'', ``Force
majeure'', ``International Dolphin Conservation Program (IDCP)'',
``International Dolphin Conservation Program Act (IDCPA)'',
``International Review Panel (IRP)'', ``Per-stock per-year dolphin
mortality limit'' and ``Serious injury'' 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.
* * * * *
Fisheries Certificate of Origin means NOAA Form 370, as described
in Sec. 216.24(f)(5).
* * * * *
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.
* * * * *
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into, any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the Customs
laws of the United States; except that, for the purpose of any ban
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish
products, the definition of ``import'' in Sec. 216.24(f)(1)(ii) shall
apply.
* * * * *
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.
* * * * *
Serious injury means any injury that will likely result in
mortality.
* * * * *
Tuna product means any food product processed for retail sale and
intended for human or animal consumption that contains an item listed
in Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items
with a shelf life of less than 3 days.
* * * * *
5. Revise Sec. 216.24 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 to intentionally 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.
(iii) It is unlawful for any person subject to the jurisdiction of
the United States to receive, purchase, or possess tuna caught,
possessed, or landed in violation of paragraph (a)(2)(ii) of this
section.
(iv) It is unlawful for a person subject to the jurisdiction of the
United States to intentionally deploy a purse seine net on, or to
encircle, dolphins from a vessel operating in the ETP when the DML
assigned to that vessel has been reached, or when there is not a DML
assigned to that vessel.
(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 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.
(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
[[Page 49]]
Administrator, Southwest Region, the permit will not be returned and a
new permit will not be issued before the end of the calendar year.
Vessel permits are 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 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 paragraph (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, or
to designated agents of NMFS or the 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 vessel permit from the
Administrator, Southwest Region, allowing at least 45 days for
processing. The application must be signed by the applicant and
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 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 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. A person wishing to operate a
purse seine vessel may apply for an operator permit from the
Administrator, Southwest Region, allowing at least 45 days for
processing. The application must be signed by the applicant or the
applicant's representative, if applicable, and contain:
(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; and
(iv) The date, location, and provider of any training for the
operator permit.
(6) Fees. (i) Vessel permit application fees. An application for a
permit under paragraph (b)(1) of this section must include a fee for
each vessel as specified on the application form. The Assistant
Administrator may change the amount of this fee at any time if a
different fee is determined in accordance with the NOAA Finance
Handbook and specified by the Administrator, Southwest Region, on the
application form.
(ii) Operator permit fee. There is no fee for a operator permit
under paragraph (b)(2) of this section. The Assistant Administrator may
impose a fee or change the amount of this fee at any time if a
different fee is determined in accordance with the NOAA Finance
Handbook and specified by the Administrator, Southwest Region, on the
application form.
(iii) Observer placement fee. The vessel permit holder must 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. The Administrator, Southwest
Region, will forward all observer placement fees to the IATTC or to the
applicable international organization approved by the Administrator,
Southwest Region.
(7) Application approval. 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 or 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. No observer will be assigned to a vessel unless
that vessel owner has submitted payment of observer fees to the
Administrator, Southwest Region. The observers may be placed under an
observer program of NMFS, IATTC, or another international observer
program approved by the IDCP and the Administrator, Southwest Region.
(iii) Explosives. The use of explosive devices is prohibited during
all tuna purse seine operations that involve marine mammals.
(iv) Reporting requirements. (A) The vessel permit holder of each
permitted vessel must 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.
(B) The vessel permit holder must 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.
(v) Data release. By using a permit, the permit holder authorizes
the release to NMFS and the IATTC 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
[[Page 50]]
program with all release forms required to authorize the observer data
to be provided to NMFS and the IATTC. 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.
(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) A vessel may be used to chase and encircle schools of dolphins
in the ETP only under the immediate direction of the holder of a valid
operator's permit.
(2) No retention of Marine Mammals. Except as otherwise authorized
by a specific permit, marine mammals incidentally taken must be
immediately returned to the ocean 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.
(3) Gear and equipment 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 must 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 may 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) Face mask and snorkel, or view box. At least two face masks
and snorkels or view boxes 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.
(4) Vessel inspection--(i) Annual. At least once during each
calendar year, purse seine nets and other gear and equipment required
under Sec. 216.24(c)(2) 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.
(5) Operator permit holder training requirements. An operator must
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
instructed on 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.
(6) 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
[[Page 51]]
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 90 or more minutes before sundown, 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 States 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.
(7) 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 to the Administrator,
Southwest Region, for an experimental fishing operation waiver allowing
for processing no less than 90 days before the date the proposed
operation is intended to begin. An application must be signed by the
permitted operator and contain:
(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 in the application and the comments received on it, 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.
(8) Operator permit holder performance requirements. [Reserved]
(9) 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) 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 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 year under the provisions of Annex IV of the Agreement on the
IDCP.
(ii) Each vessel permit holder that desires a DML only for the
period between July 1 to December 31 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 October 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
[[Page 52]]
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 (or 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 by
letter, facsimile, radio, or electronic mail, 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.
(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 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 must 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 face masks or
view boxes 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 sanctions. A vessel that fails to carry
an observer in
[[Page 53]]
accordance with these requirements may not engage in fishing
operations.
(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 use vessel communication equipment to report
information 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.
(4) It is unlawful for any person to forcibly assault, impede,
intimidate, interfere with, or to influence or attempt to influence an
observer, or to harass (including sexual harassment) an observer by
conduct which has the purpose or effect of unreasonably interfering
with the observer's work performance, or which creates an intimidating,
hostile, or offensive environment. In determining whether conduct
constitutes harassment, the totality of the circumstances, including
the nature of the conduct and the context in which it occurred, will be
considered. The determination of the legality of a particular action
will be made from the facts on a case-by-case basis.
(5)(i) All observers must be provided sleeping, toilet and eating
accommodations at least equal to that provided to a full crew member. A
mattress or futon on the floor or a cot is not acceptable in place of a
regular bunk. Meal and other galley privileges must be the same for the
observer as for other crew members.
(ii) Female observers on a vessel with an all-male crew must be
accommodated either in a single-person cabin or, if reasonable privacy
can be ensured by installing a curtain or other temporary divider, in a
two-person cabin shared with a licensed officer of the vessel. If the
cabin assigned to a female observer does not have its own toilet and
shower facilities that can be provided for the exclusive use of the
observer, then a schedule for time-sharing common facilities must be
established before the placement meeting and approved by NMFS or other
approved observer program and must be followed during the entire trip.
(iii) In the event there are one or more female crew members, the
female observer must be provided a bunk in a cabin shared solely with
female crew members, and provided toilet and shower facilities shared
solely with these female crew members.
(f) Importation, purchase, shipment, sale and transport. (1)(i) It
is illegal to import into the United States any fish, whether fresh,
frozen, or otherwise prepared, if the fish have been caught with
commercial fishing technology that results in the incidental kill or
incidental serious injury of marine mammals in excess of that allowed
under this part for U.S. fishermen, or as specified at paragraphs
(f)(7) through (f)(9) of this section.
(ii) For purposes of this paragraph(f), and in applying the
definition of an ``intermediary nation,'' an import occurs when the
fish or fish product is released from a nation's Customs' custody and
enters into the territory of the nation. For other purposes, ``import''
is defined in Sec. 216.3.
(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 identified by any of the following HTS numbers that was
harvested using a purse seine in the ETP may not be imported into the
United States unless both the nation with jurisdiction over the
harvesting vessel and the exporting nation (if different) have an
affirmative finding under paragraph (f)(9) of this section.
------------------------------------------------------------------------
------------------------------------------------------------------------
(A) Frozen:
0303.42.0020 Yellowfin tuna, whole,
frozen.
0303.42.0040 Yellowfin tuna, eviscerated,
head on, frozen.
0303.42.0060 Yellowfin tuna, other,
frozen.
(B) Canned:
1604.14.1000 Tuna, non-specific, in
airtight containers, in
oil.
1604.14.2040 Tuna, other than albacore,
not over 7kg, in airtight
containers.
1604.14.3040 Tuna, other than albacore,
in airtight containers, not
in oil, over quota.
(C) Loins:
1604.14.4000 Tuna, not in airtight
containers, not in oil,
over 6.8kg.
1604.14.5000 Tuna, other, not in airtight
containers.
(D) Other (only if the product contains
tuna):
0304.10.4099 Other fish, fillets and
other fish meat, fresh or
chilled.
0304.20.2066 Other fish, fillets,
skinned, in blocks weighing
over 4.5kg, frozen.
0304.20.6096 Other fish, fillets, frozen.
0304.90.1089 Other fish meat, in bulk or
immediate containers, fresh
or chilled.
0304.90.9091 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 FCO. 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:
0303.41.0000 Albacore or longfinned
tunas, frozen.
0303.43.0000 Skipjack, frozen.
0303.49.0020 Bluefin, frozen.
0303.49.0040 Other tuna, frozen.
(B) Canned:
[[Page 54]]
1604.14.2020 Albacore tuna, in airtight
containers, not in oil, not
over 7kg, in quota.
1604.14.3020 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:
0303.10.0012 Salmon, chinook, frozen.
0303.10.0022 Salmon, chum, frozen.
0303.10.0032 Salmon, pink, frozen.
0303.10.0042 Salmon, sockeye, frozen.
0303.10.0052 Salmon, coho, frozen.
0303.10.0062 Salmon, Pacific, non-
specific, frozen.
0303.21.0000 Trout, frozen.
0303.22.0000 Salmon, Atlantic and Danube,
frozen.
0303.29.0000 Salmonidae, other, frozen.
0303.70.4097 Fish, other, frozen.
0303.75.0010 Dogfish, frozen.
0303.75.0090 Other sharks, frozen.
0303.79.2041 Swordfish steaks, frozen
0303.79.2049 Swordfish, other, frozen.
0304.20.2066 Fish, fillet, skinned, in
blocks frozen over 4.5kg.
0304.20.6008 Salmonidae, salmon fillet,
frozen.
0304.20.6096 Fish, fillet, frozen.
0307.49.0010 Squid, other, fillet,
frozen.
(B) Canned:
1604.11.2020 Salmon, pink, canned in oil,
in airtight containers.
1604.11.2030 Salmon, sockeye, canned in
oil, in airtight
containers.
1604.11.2090 Salmon, other, canned in
oil, in airtight
containers.
1604.11.4010 Salmon, chum, canned, not in
oil.
1604.11.4020 Salmon, pink, canned, not in
oil.
1604.11.4030 Salmon, sockeye, canned, not
in oil.
1604.11.4040 Salmon, other, canned, not
in oil.
1604.11.4050 Salmon, other, canned, not
in oil.
1604.19.2000 Fish, other, in airtight
containers, not in oil.
1604.19.3000 Fish, other, in airtight
containers, in oil.
1605.90.6055 Squid, loligo, prepared/
preserved.
(C) Other:
0304.10.4099 Other fish, fillets and
other fish meat, fresh or
chilled.
0304.20.2066 Other fish, fillets,
skinned, in blocks weighing
over 4.5kg, frozen.
0304.20.6098 Other fish, fillets, frozen.
0304.90.1089 Other fish, fillets and fish
meat, in bulk or in
immediate containers, fresh
or chilled.
0304.90.9092 Other fish meat, fresh or
chilled.
0305.30.6080 Fish, non-specific, fillet.
dried/salted/brine.
0305.49.4040 Fish, non-specific, smoked.
0305.59.2000 Shark fins.
0305.59.4000 Fish, non-specific, dried.
0305.69.4000 Salmon, non-specific,
salted.
0305.69.5000 Fish, non-specific, in
immediate containers,
salted, not over 6.8kg.
0305.69.6000 Fish, non-specific, salted,
other.
0307.49.0050 Squid, non-specific, frozen/
dried/salted/brine.
0307.49.0060 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, 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) Customs entry identification;
(ii) Date of entry;
(iii) Exporter's full name and complete address;
(iv) Importer's or consignee's full name and complete address;
(v) Species description, product form, and HTS number;
(vi) Total net weight of the shipment in kilograms;
(vii) Ocean area where the fish were harvested (ETP, Western
Pacific Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea,
Indian Ocean, or other);
(viii) Type of fishing gear used to harvest the fish (purse seine,
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and
line, or other);
(ix) 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;
(x) Dates on which the fishing trip began and ended;
(xi) If the shipment includes tuna or products harvested with a
purse seine net, the name of the harvesting vessel;
(xii) Dolphin safe condition of the shipment;
(xiv) 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 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; and
(xii) If the shipment contains tuna harvested in the ETP by a purse
seine vessel of more than 400 st (362.8 mt) carrying capacity, each
importer or processor who takes custody of the shipment must sign and
date the form to certify that the form and attached
[[Page 55]]
documentation accurately describe the shipment of fish that they
accompany.
(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 March 3, 1999, the effective date of
section 4 of the IDCPA, and harvested 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 March 3, 1999, the effective date of section 4
of the IDCPA, and would have been banned from importation under 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 if it:
(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 having been 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 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 nations harvesting yellowfin
tuna using a purse seine in the ETP. (i) The Assistant Administrator
will determine, on an annual basis, 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, or by the IDCP and the IATTC, and will publish the finding
in the Federal Register. 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. Every 5 years, the government of the harvesting nation, must
submit such documentary evidence directly to the Assistant
Administrator and request an affirmative finding. Documentary evidence
needs to be submitted by the harvesting nation for the first
affirmative finding subsequent to the effective date of this rule. The
Assistant Administrator may require the submission of supporting
documentation or other verification of statements made in connection
with requests to allow importations. An affirmative finding applies to
tuna and tuna products that were harvested by vessels of the nation
after February 15, 1999. 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;
(C)(1) The annual total 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; or
(2)(i) Because of extraordinary circumstances beyond the control of
the nation and the vessel captains, the total dolphin mortality of the
nation's purse seine fleet (including certified charter vessels
operating under its jurisdiction) exceeded the aggregated total of the
mortality limits assigned by the IDCP for that nation's purse seine
vessels; and
(ii) Immediately after the national authorities discovered the
aggregate mortality of its fleet had been exceeded, the nation required
all its vessels to cease fishing for tuna in association with dolphins
for the remainder of the calendar year; and
(D)(1) For calendar year 2000 and any subsequent years in which the
parties agree to a global allocation system for per-stock per-year
individual stock quotas, the nation responded to the notification from
the IATTC that an individual stock quota had been reached by
prohibiting any additional sets on the stock for which the quota had
been reached;
(2) If a per-stock per-year quota is allocated to each nation, 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 per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels
(if any) for the year preceding the year in which the finding would
start; or
(3)(i) Because of extraordinary circumstances beyond the control of
the nation and the vessel captains, the per-stock per-year dolphin
mortality of the nation's purse seine fleet (including certified
charter vessels operating under its jurisdiction) exceeded the
aggregated total of the per-stock per-year limits assigned by the IDCP
for that nation's purse seine vessels; and
(ii) Immediately after the national authorities discovered the
aggregate per-stock mortality limits of its fleet had been exceeded,
the nation required all its vessels to cease fishing for tuna in
association with the stocks whose limits had been exceeded, for the
remainder of the calendar year.
(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
[[Page 56]]
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 financial
obligations to 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 has met the requirements of paragraphs (f)(9)(i) and
(f)(9)(ii) of this section.
(v) 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.
(vi) Intermediary nation. Except as authorized under this
paragraph, no tuna or tuna products classified under one of the HTS
numbers listed in paragraph (f)(2)(i) of this section may be imported
into the United States from any intermediary nation. An ``intermediary
nation'' is a nation that exports yellowfin tuna or yellowfin tuna
products to the United States and that imports yellowfin tuna or
yellowfin tuna products that are subject to a direct ban on importation
into the United States pursuant to section 101(a)(2)(B) of the MMPA,
unless shown not to be yellowfin tuna or yellowfin tuna products
harvested using purse seine in the ETP. The Assistant Administrator
will publish in the Federal Register a notice announcing when NMFS has
determined, based on the best information available, that a nation is
an ``intermediary nation.'' After the effective date of that notice,
these import restrictions shall apply. Shipments of yellowfin tuna or
yellowfin tuna products shipped 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.
(A) Intermediary nation determination status. Imports from an
intermediary nation of tuna and tuna products classified under any of
the HTS numbers in paragraph (f)(2)(i) of this section may be imported
into the United States only 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. At that time, the nation shall no
longer be considered an ``intermediary nation'' and these import
restrictions shall no longer apply.
(B) Changing the status of intermediary nation determinations. The
Assistant Administrator will review decisions under this paragraph 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, 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.
(vii) 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.
(viii) Coordination. The Assistant Administrator will promptly
advise the Department of State and the Department of the Treasury of
embargo decisions, actions and finding determinations.
(10) Fish refused entry. If fish is denied entry under paragraph
(f)(3) of this section, the District Director of Customs shall refuse
to release the fish for entry into the United States and shall issue a
notice of such refusal to the importer or consignee.
(11) Disposition of fish refused entry into the United States;
redelivered fish. Fish which is denied entry under paragraph (f)(3) of
this section and which is not exported under Customs supervision within
90 days from the date of notice of refusal of admission or date of
redelivery shall be disposed of under Customs laws and regulations.
Provided however, that any disposition shall not result in an
introduction into the United States of fish caught in violation of the
MMPA.
(12) Market Prohibitions. 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:
(i) Dolphin-safe under subpart H; or
(ii) harvested in compliance with the IDCP by vessels under the
jurisdiction of a nation that is a member of the IATTC or has
initiated, and within 6 months thereafter completes, all steps required
by applicant nations to become members of the IATTC.
(iii) For purposes of this section, tuna or tuna products are
``dolphin-safe'' if they are dolphin-safe under subpart H.
(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.
6. In Subpart D, a new Sec. 216.46 is added to read as follows:
Sec. 216.46 U.S. citizens on foreign flag vessels operating under the
International Dolphin Conservation Program.
The MMPA's provisions do 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. 1802)), while employed on a
fishing vessel of a harvesting nation that is participating in, and in
compliance with, the IDCP.
7. Sections 216.90 through 216.94 are revised to read as follows:
Sec. 216.90 Purposes.
This subpart governs the requirements for using the official mark,
described in Sec. 216.96, or an alternative mark that refers to
dolphins, porpoises, or marine mammals, to label tuna or tuna products
offered for sale in or exported from the United States using the term
``dolphin-safe'' or suggesting the tuna were harvested in a manner not
injurious to dolphins.
[[Page 57]]
Sec. 216.91 Dolphin-safe labeling standards.
(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) ETP large purse seine vessel. In the ETP by a purse seine
vessel of greater than 400 st (362.8 mt) carrying capacity unless:
(i) The documentation requirements for dolphin-safe tuna under
Secs. 216.92 and 216.94 are met;
(ii) No dolphin were killed or seriously injured during the sets in
which the tuna were caught; or
(iii) If the Assistant Administrator publishes notification in the
Federal Register announcing a finding that the intentional deployment
of purse seine nets on or encirclement of dolphins is having a
significant adverse impact on any depleted stock:
(A) No tuna products were caught on a trip using a purse seine net
intentionally deployed on or to encircle dolphins; and
(B) No dolphins were killed or seriously injured during the sets in
which the tuna were caught.
(2) Non-ETP purse seine vessel. 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) Driftnet. By a vessel engaged in large-scale driftnet fishing;
or
(4) Other fisheries. By a vessel in a fishery other than one
described in paragraphs (a)(1) through(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.
(c) A tuna product that is labeled with the official mark,
described in Sec. 216.96, may not be labeled with any other label or
mark that refers to dolphins, porpoises, or marine mammals.
Sec. 216.92 Dolphin-safe requirements for tuna harvested in the ETP by
large purse seine vessels.
(a) U.S. vessels. Tuna products that contain tuna harvested by U.S.
flag purse seine vessels of greater than 400 st (362.8 mt) carrying
capacity in the ETP may be labeled ``dolphin-safe'' if the following
requirements are met:
(1) ``Dolphin-safe'' Tuna Tracking Forms certified by the vessel
captain and the observer are submitted to the Regional Administrator,
Southwest Region, at the end of the fishing trip during which the tuna
was harvested;
(2) The tuna has been processed by a U.S. tuna processor in a plant
located in one of the 50 states, Puerto Rico, or American Samoa that is
in compliance with the tuna tracking and verification requirements of
Sec. 216.94;
(3) The tuna or tuna products are accompanied by a properly
completed FCO;
(4) The tuna or tuna products meet the dolphin-safe labeling
standards under Sec. 216.91; and
(5) The FCO is properly endorsed by each processor certifying that,
to the best of his or her knowledge and belief, the FCO and attached
documentation are complete and accurate.
(b) Imported tuna. Tuna or tuna products harvested in the ETP by
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity
and presented for import into the United States are dolphin safe if:
(1) The tuna was harvested by a U.S. vessel fishing in compliance
with the requirements of the IDCP and applicable U.S. law, or by a
vessel belonging to a nation that has obtained an affirmative finding
of Sec. 216.24(f)(9);
(2) The tuna or tuna products are accompanied by a properly
completed FCO;
(3) The tuna or tuna products are accompanied by valid
documentation signed by a representative of the appropriate IDCP member
nation, certifying that:
(i) There was an IDCP approved observer on board the vessel(s)
during the entire trip(s); and
(ii) The tuna contained in the shipment were caught according to
the dolphin-safe labeling standards of Sec. 216.91;
(4) The documentation provided in paragraph(b)(3) of this section
includes a listing of vessel names and identifying numbers of the
associated Tuna Tracking Forms for each trip of which tuna in the
shipment originates; and
(5) The FCO is properly endorsed 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.
Sec. 216.93 Submission of documentation.
(a) Requirements for the submission of documents concerning the
activities of U.S. flag vessels with greater than 400 st carrying
capacity fishing in the ETP are contained in Sec. 216.94.
(b) The import documents required by Secs. 216.91 and 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:
(1) 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
(2) the documents are endorsed as required by Sec. 216.92(b)(4) and
the final processor delivers 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 national
tracking and verification program to accurately document the ``dolphin-
safe'' condition of tuna, under the standards set forth in
Sec. 216.91(a). The tracking program
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includes procedures and reports for use when importing tuna into the
U.S. and during U.S. 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. The tracking program is consistent with the international
tuna tracking and verification program adopted by the Parties to the
IDCP.
(a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in
the ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing the IATTC
cruise number assigned to that trip, are used by the observer to record
every set made during that trip. One TTF is used to record ``dolphin-
safe'' sets and a second TTF is used to record ``non-dolphin-safe''
sets. The information entered on the TTFs following each set includes
date of trip, set number, date of loading, name of the vessel, vessel
Captain's name, observer's name, well number, weights by species
composition, estimated tons loaded, and date of the set. The observer
and the vessel engineer initial the entry for each set, and the vessel
Captain and observer review and sign both TTFs at the end of the
fishing trip certifying that the information on the form is accurate.
The captain's and observer's certification of the TTF on which dolphin-
safe sets are recorded complies with 16 U.S.C. 1385(h).
(b) 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 (b)(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 (b)(2)(i) 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.
(2) Mixed wells. Only two acceptable conditions exist under which a
``mixed'' well can be created.
(i) In the event that a set has been designated ``dolphin-safe'' by
the observer, but during 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 ``non-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. In addition, 15 percent of the ``dolphin-safe''
tuna unloaded from the ``mixed well'' will be designated as ``non-
dolphin-safe.''
(ii) Near the end of an ETP fishing trip, if the only well space
available is in a ``non-dolphin-safe'' well, and there is an
opportunity to make one last set, ``dolphin-safe'' tuna caught in that
set may be loaded into the ``non-dolphin-safe'' well. The ``dolphin-
safe'' tuna must be kept physically separate from the ``non-dolphin-
safe'' tuna already in the well, using netting or other material.
(3) The captain, managing owner, or vessel agent of a U.S. 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.
(4) If the trip terminates when the vessel enters port to unload
part or all of its catch, new TTFs will be assigned to the new trip,
and any information concerning tuna retained on the vessel will be
recorded as the first entry on the TTFs for the new trip. If the trip
is not terminated following a partial unloading, the vessel will retain
the original TTFs and submit a copy of those TTFs to the Administrator,
Southwest Region, within 5 working days. In either case, the species
and amount unloaded will be noted on the respective originals.
(5) Tuna offloaded to trucks, storage facilities or carrier vessels
must be loaded or stored in such a way as to maintain and safeguard the
identification of the ``dolphin-safe'' or ``non-dolphin-safe''
designation of the tuna as it left the fishing vessel.
(6)(i) When ETP caught tuna is to be offloaded from a U.S. purse
seiner directly to a U.S. canner within the 50 states, Puerto Rico, or
American Samoa, or in any port and subsequently loaded aboard a carrier
vessel for transport to a U.S. processing location, a NMFS
representative may meet the U.S. purse seiner to receive the TTFs from
the vessel observer and to monitor the handling of ``dolphin-safe'' and
``non-dolphin-safe'' tuna.
(ii) When ETP caught tuna is offloaded from an U.S. purse seiner in
any port and subsequently loaded aboard a carrier vessel for transport
to a cannery outside the jurisdiction of the United States, a NMFS
representative may meet the vessel to receive copies of the TTFs from
the observer and monitor the offloading. The U.S. caught tuna becomes
the tracking and verification responsibility of the foreign buyer when
it is offloaded from the U.S. vessel.
(iii) If a NMFS representative does not meet the vessel in port at
the time of arrival, the observer may take the signed TTFs to the IATTC
office and mail copies to the Administrator, Southwest Region, from
that location within 5 working days of the end of the trip.
(iv) When ETP caught tuna is offloaded from a U.S. purse seiner
directly to a processing facility located outside the jurisdiction of
the United States in a country that is a party to the IDCP, the
national authority in whose area of jurisdiction the tuna is to be
processed will assume the responsibility for tracking and verification
of the tuna offloaded. A representative of the national authority will
receive copies of the TTFs from the observer, and copies of the TTFs
will be forwarded to the Administrator, Southwest Region.
(c) Tracking cannery operations. (1) Whenever a tuna canning
company in the 50 states, Puerto Rico, or American Samoa 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.
[[Page 59]]
(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,
electronically, by mail, or by 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, product description, 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 (c)(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 (c)(5)(i) of this section, a copy of the FCO for each
imported receipt must be provided.
(d) 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).
(e) Verification requirements.--(1) Record maintenance. Any
exporter, 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 paragraph (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 harvested in the ETP must submit to the Administrator
any record required to be maintained under paragraph (e)(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.
(f) 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.''
8. In subpart H, Sec. 216.96 is added and reserved to read as
follows:
Sec. 216.96 Official mark [Reserved]
[FR Doc. 99-33632 Filed 12-30-99; 8:45 am]
BILLING CODE 3510-22-F
