Taking of Marine Mammals Incidental to Commercial Fishing Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific Ocean (ETP)

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990324081-9081-01; I.D. 072098G]

RIN 0648-AI85

Taking of Marine Mammals Incidental to Commercial Fishing

Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific

Ocean (ETP)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Proposed rule; request for comments and notice of public

hearings.

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SUMMARY: NMFS proposes regulations to implement provisions of the

International Dolphin Conservation Program Act (IDCPA). These

regulations would allow the entry of yellowfin tuna into the United

States under certain conditions from nations signatory to the

International Dolphin Conservation Program (IDCP) that otherwise would

be under embargo. It would also allow U.S. fishing vessels to

participate in the fishery in the ETP on equivalent terms with the flag

vessels of other IDCP signatory nations. A U.S. citizen employed on a

purse seine vessel of another IDCP signatory nation with an affirmative

finding would not be in violation of U.S. prohibitions on the taking of

marine mammals if that vessel takes marine mammals incidentally during

fishing operations outside the U.S. exclusive economic zone (EEZ) in

compliance with the requirements of the IDCP. The standard for use of

``dolphin-safe'' labels for tuna products would also change. General

requirements also are proposed to ensure adequate tracking and

verification of tuna imports from the ETP.

DATES: Comments on the proposed regulations must be received on or

before July 14, 1999. Public hearings on this proposed rule will be

held on Thursday, July 8, 1999, in Long Beach, CA, at 10:00 a.m.- 1:00

p.m. and on Wednesday, July 14, 1999, in Silver Spring, MD, at 1:00

p.m.- 4:00 p.m.

equirements also are proposed to ensure adequate tracking and

verification of tuna imports from the ETP.

DATES: Comments on the proposed regulations must be received on or

before July 14, 1999. Public hearings on this proposed rule will be

held on Thursday, July 8, 1999, in Long Beach, CA, at 10:00 a.m.- 1:00

p.m. and on Wednesday, July 14, 1999, in Silver Spring, MD, at 1:00

p.m.- 4:00 p.m.

ADDRESSES: Send comments to J. Allison Routt, NMFS, Southwest Region,

Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long

Beach, CA 90802-4213. The locations of the public hearings on this

proposed rule are: (1) Room 3400, 501 W. Ocean Blvd., Long Beach, CA

90802-4213; and (2) NOAA Building, SSMC IV, Room 1W611, 1305 East-West

Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest

Region, Protected Resources Division, (562) 980-4020. For additional

information about the public hearing in Long Beach, CA, contact J.

Allison Routt. For additional information about the public hearing in

Silver Spring, MD, contact Cathy Eisele, NMFS, Headquarters, Marine

Mammal Division,(301) 713-2322.

SUPPLEMENTARY INFORMATION:

Background

In 1992, nations fishing for tuna in the ETP, including the United

States, reached a non-binding international agreement (referred to as

the La Jolla Agreement) that included, among other measures, a dolphin

mortality reduction schedule providing for significant reductions in

dolphin mortalities. By 1995, nations fishing in the ETP under the La

Jolla Agreement had reduced dolphin mortality to less than 5,000

dolphins annually, two years ahead of the schedule established in that

Agreement. In October 1995, the success of the La Jolla Agreement led

the United States, Belize, Colombia, Costa Rica, Ecuador, France,

Honduras, Mexico, Panama, Spain, Vanuatu, and Venezuela to sign the

Panama Declaration to strengthen and enhance the IDCP.

The program outlined in the Panama Declaration will provide greater

lphins annually, two years ahead of the schedule established in that

Agreement. In October 1995, the success of the La Jolla Agreement led

the United States, Belize, Colombia, Costa Rica, Ecuador, France,

Honduras, Mexico, Panama, Spain, Vanuatu, and Venezuela to sign the

Panama Declaration to strengthen and enhance the IDCP.

The program outlined in the Panama Declaration will provide greater

protection for dolphins, and enhance the conservation of yellowfin tuna

and other living marine resources in the ETP ecosystem. The Panama

Declaration anticipated that the United States would change the

provisions of the Marine Mammal Protection Act (MMPA) to allow import

of yellowfin tuna into the United States from nations that are

participating in, and are in compliance with, the IDCP. Implementation

of the Panama Declaration by the United States was also anticipated in

order to allow U.S. vessels to participate in the ETP fishery on an

equal basis with the vessels of other nations. Under the Declaration,

signatory nations agreed to develop a legally binding, international

agreement. In May 1998, eight nations, including the United States,

signed such a binding, international agreement to implement the IDCP.

This Agreement will go into force after either ratification,

acceptance, or approval by four nations.

The IDCPA was signed into law on August 15, 1997, to recognize and

implement the IDCP and to address related issues. The IDCPA was the

domestic endorsement of an international management regime adopted

during the last 20 years under the auspices of the Inter-American

Tropical Tuna Commission (IATTC). The IDCPA primarily amends provisions

in the MMPA governing marine mammal mortality in the U.S. ETP tuna

purse seine fishery and the importation of yellowfin tuna and yellowfin

tuna products from other nations with vessels engaged in the ETP tuna

purse seine fishery. Key provisions of the IDCPA will become effective

when two certifications are made

-American

Tropical Tuna Commission (IATTC). The IDCPA primarily amends provisions

in the MMPA governing marine mammal mortality in the U.S. ETP tuna

purse seine fishery and the importation of yellowfin tuna and yellowfin

tuna products from other nations with vessels engaged in the ETP tuna

purse seine fishery. Key provisions of the IDCPA will become effective

when two certifications are made. The Secretary of State must certify

to Congress that a binding legal instrument establishing the IDCP has

been adopted and is in force (i.e., Agreement on the IDCP). In

addition, the Secretary of Commerce must certify that a study has

commenced on the effects of intentional encirclement (including chase)

on dolphins and dolphin stocks incidentally taken in the course of

purse seine fishing for yellowfin tuna in the ETP, and that funds are

available to complete the first year of this study. On July 27, 1998,

the Secretary of Commerce provided the required certification to

Congress on the research study.

The Agreement on the IDCP becomes effective when four countries

have deposited their instruments of either ratification, acceptance, or

adherence with the United States. The United States, Panama, Ecuador,

and Mexico have deposited their instruments of either ratification,

acceptance, or adherence with the Depositary. The Agreement on the IDCP

became effective on February 15, 1999. On March 3, 1999, the Secretary

of State provided the required certification to Congress that the

Agreement on the IDCP has been adopted and is in force. The IDCPA

became effective on this date. Provisions to implement the IDCPA and

the new international agreement for dolphin conservation in the ETP are

the subject of these proposed regulations.

Section 7 of the IDCPA amends the Tuna Conventions Act regarding a

General Advisory Committee and a Scientific Advisory Committee, and

provisions are proposed to address these changes

and is in force. The IDCPA

became effective on this date. Provisions to implement the IDCPA and

the new international agreement for dolphin conservation in the ETP are

the subject of these proposed regulations.

Section 7 of the IDCPA amends the Tuna Conventions Act regarding a

General Advisory Committee and a Scientific Advisory Committee, and

provisions are proposed to address these changes. Section 6(c) of the

IDCPA amends the permit sanction provisions in the MMPA applicable to

permits issued to U.S. purse seine vessels in the ETP and their

operators, and these changes will be addressed in a separate

rulemaking.

Definitions

Definitions are added for ``Administrator, Southwest Region,''

``Agreement on the International Dolphin Conservation Program,''

``Declaration of Panama,'' ``Force majeure,'' ``International Dolphin

Conservation Program,'' ``International Dolphin Conservation Program

Act,'' ``International Review Panel,'' and ``Per-stock per-year dolphin

mortality limit.'' In addition, the definitions of ``ABI,'' ``Director,

Southwest Region,'' ``ETP Fishing Area 1,'' `` ETP Fishing Area 2,''

``ETP Fishing Area 3,'' ``Fishing season,'' ``Kill-per-set,'' ``Kill-

per-ton,'' and ``Purse seine set on common dolphins'' are removed

because they are no longer necessary.

Although the Agreement on the IDCP applies in the Pacific Ocean

west only to 150 deg. W. meridian, the current definition of ETP is out

to 160 deg. W. meridian. This definition is not proposed to be changed

because the existing definition is set by the Dolphin Protection

Consumer Information Act (DPCIA) (16 U.S.C. 1305). This difference is

expected to only affect a relatively small number of trips by U.S.

purse seine vessels, when they extend their fishing activities under

the Treaty that governs their fishing in the South Pacific into waters

that overlap with the waters covered by the Agreement on the IDCP

existing definition is set by the Dolphin Protection

Consumer Information Act (DPCIA) (16 U.S.C. 1305). This difference is

expected to only affect a relatively small number of trips by U.S.

purse seine vessels, when they extend their fishing activities under

the Treaty that governs their fishing in the South Pacific into waters

that overlap with the waters covered by the Agreement on the IDCP. This

overlap will require these vessels to comply with the dolphin-safe

requirements of the MMPA applicable to the ETP for fishing in the

overlap area west of 150 deg. W. meridian even though the Agreement on

the IDCP has determined that fishing on dolphins does not occur in this

area.

Requirements for U.S. Vessels

The certificate of inclusion process for U.S. vessel owners and

operators under a general permit issued to the American Tunaboat

Association would be replaced with a system of issuing permits directly

to vessel owners and operators. Two permit categories would be retained

for tuna purse seine vessels of greater than 400 short tons (362.8

metric tons (mt)) carrying capacity. One category would apply to purse

seining involving the intentional taking of marine mammals, and the

other category would apply to purse seining not involving the

intentional taking of marine mammals. As mandated by the IDCPA, the

latter category of permits would not require that the vessel be

equipped with special equipment or gear. The terms and conditions for

both categories of permits would be modified to require that observers

be carried on every trip. Existing dolphin stock and species

prohibitions would be replaced with a provision prohibiting sets on a

stock when the mortality limit for that stock has been reached or

exceeded. The authorization to take marine mammals during a set to

protect catch or gear would be eliminated, retaining only the

authorization to take marine mammals if necessary during a set to

prevent personal injury

rip. Existing dolphin stock and species

prohibitions would be replaced with a provision prohibiting sets on a

stock when the mortality limit for that stock has been reached or

exceeded. The authorization to take marine mammals during a set to

protect catch or gear would be eliminated, retaining only the

authorization to take marine mammals if necessary during a set to

prevent personal injury. The authorizations proposed for elimination

are no longer justified based upon the experience of the U.S. fleet and

the low levels of dolphin mortality allowed under the IDCP.

The operator performance requirements are proposed to be removed

and a subsection reserved for this subject. Because U.S. vessels have

not been making intentional sets on dolphins in recent years, the

existing performance requirements based upon older data do not reflect

improvements in performance that should be expected from the U.S.

operators based upon the performance of the international fleet in

recent years. A subsection for operator performance requirements would

be reserved to implement operator performance requirements when they

are developed under the IDCP. Even without the performance requirements

in effect now, the dolphin mortality limit (DML) system provides an

effective incentive to both vessel owners and operators to achieve low

dolphin mortalities, as demonstrated by the results since 1992. The

implementation of operator performance standards under the IDCP is the

best way to prevent substandard operators from moving among the vessels

of various nations.

performance requirements

in effect now, the dolphin mortality limit (DML) system provides an

effective incentive to both vessel owners and operators to achieve low

dolphin mortalities, as demonstrated by the results since 1992. The

implementation of operator performance standards under the IDCP is the

best way to prevent substandard operators from moving among the vessels

of various nations.

Implementing a provision in the Agreement on the IDCP, purse seine

vessels of 400 st (362.8 mt) or less carrying capacity would be

prohibited from intentionally deploying a net on or encircling

dolphins. The U.S. vessels that are in this size range have not been

obtaining certificates of inclusion to intentionally set on dolphins,

so this new provision is not anticipated to affect the operations of

any U.S. vessels.

The DML provisions are proposed to be revised to incorporate

changes arising from the Agreement on the IDCP. These revisions include

the following: adding a procedure for vessels that normally do not fish

in the ETP to apply for a DML; removing the 15-percent limitation on

adjusting DMLs as allocated by the IDCP; incorporating the DML re-

allocation criteria in Annex IV of the Agreement on the IDCP; and

reducing the allocation for a DML for the second half of a year to one-

third of a full-year DML instead of the one-half of a full-year

allocation previously provided.

The regulations would preclude a vessel that fails in two

consecutive years to make at least one intentional set on dolphins by

April 1 from obtaining a DML in the subsequent year. Similarly, a

vessel with a second-semester DML that fails to make at least one

intentional set on dolphins by December 31 of that year, or a vessel

with a per-trip DML that fails to make at least one intentional set on

dolphins during that trip, would lose its DML. After two consecutive

losses of its DML, a vessel would not be eligible to receive a DML for

the following year

subsequent year. Similarly, a

vessel with a second-semester DML that fails to make at least one

intentional set on dolphins by December 31 of that year, or a vessel

with a per-trip DML that fails to make at least one intentional set on

dolphins during that trip, would lose its DML. After two consecutive

losses of its DML, a vessel would not be eligible to receive a DML for

the following year. Exceptions might be granted for force majeure or

extraordinary circumstances.

The observers' access to certain vessel equipment and the working

needs of observers on U.S. vessels would be elaborated upon in

conformity with the Agreement on the IDCP.

The sections on permits for ``Stationary gear,'' ``Other gear,''

and ``Commercial passenger fishing vessels'' would be removed because

the take of marine mammals incidental to these fisheries is now

regulated by 50 CFR part 229.

Imports of Yellowfin Tuna and Yellowfin Tuna Products

The existing Sec. 216.24(e) on imports would be revised for

clarity, and would be redesignated as Sec. 216.24(f). The observer

provisions would be redesignated from Sec. 216.24(f) to Sec. 216.24(e)

so that they would immediately follow the other sections applicable to

U.S. vessels.

Harmonized Tariff Schedule (HTS) Numbers

Reflecting changes in the U.S. HTS, the list of HTS numbers in

newly designated Sec. 216.24(f)(2) would be updated.

All shipments, regardless of port of entry, identified by an HTS

number in Sec. 216.24, must be accompanied by a Fisheries Certificate

of Origin (FCO). Unfortunately, the existing regulations are incorrect

and appear to apply the MMPA Sec. 101(a)(2) tuna embargo to encompass

all shipments covered by these HTS numbers. Actually, the MMPA tuna

embargos (for primary nations) cover only yellowfin tuna harvested by

purse seines in the ETP. For instance, a shipment of skipjack harvested

by longline may require an FCO because the importer has identified it

with one of the HTS numbers listed under Sec. 216.24(e)

to apply the MMPA Sec. 101(a)(2) tuna embargo to encompass

all shipments covered by these HTS numbers. Actually, the MMPA tuna

embargos (for primary nations) cover only yellowfin tuna harvested by

purse seines in the ETP. For instance, a shipment of skipjack harvested

by longline may require an FCO because the importer has identified it

with one of the HTS numbers listed under Sec. 216.24(e). Such a

shipment would not be subject to the MMPA embargo.

A provision would be added stating that no tuna or tuna products

may be imported into the United States, even if there is an affirmative

finding in place, if these tuna or tuna products were banned from

importation under the MMPA before the effective date of section 4 of

the IDCPA. The scope of the intermediary nation embargo on ETP

yellowfin tuna and tuna products would be made the same as the scope of

the embargo that applies to harvesting nations, conforming the

regulations to changes made in the MMPA since the existing regulations

were last changed. Dates related to tuna caught in large-scale driftnet

fisheries, which are no longer relevant, would be removed.

Affirmative Findings

Yellowfin tuna or yellowfin tuna products imported from the ETP

tuna purse seine fishery must meet the new standards established by the

IDCPA. The finding section of the regulations, which would be

redesignated as Sec. 216.24(f)(9), would be revised to conform to the

new standards and requirements of the IDCPA. No harvesting nation could

export yellowfin tuna harvested by purse seine in the ETP into the

United States unless the nation provided NMFS documentary evidence that

it (1) participates in the IDCP; (2) is a member or applicant member

of, and meeting the financial obligations of membership in, the IATTC;

4(f)(9), would be revised to conform to the

new standards and requirements of the IDCPA. No harvesting nation could

export yellowfin tuna harvested by purse seine in the ETP into the

United States unless the nation provided NMFS documentary evidence that

it (1) participates in the IDCP; (2) is a member or applicant member

of, and meeting the financial obligations of membership in, the IATTC;

(3) keeps its fleet's stock-specific dolphin mortality within the

IDCP's prescribed limits; and (4) keeps its fleet's annual dolphin

mortality within the aggregate DMLs assigned to the fleet. The former

two items are explicit in the IDCPA. The third item does not have much

relevance until the IDCP nations allocate per-stock mortality limits

between nations. The fourth item is NMFS' proposed interpretation of

ambiguous statutory language in Sec. 101(a)(2)(B)(iii) of the MMPA as

revised by the IDCPA:

...the total dolphin mortality limits * * * permitted for that

nation's vessels under the [IDCP] do not exceed the limits

determined for 1997, or for any year thereafter ...

NMFS considered, but rejected, three alternative interpretations of

Sec. 101(a)(2)(B)(iii) of the MMPA: (1) the aggregate of the DMLs

assigned to each of the harvesting nation's vessels (``fleet DML'') for

the upcoming year could not exceed the nation's fleet DML in 1997 or

subsequent years; (2) the overall, international dolphin mortality cap

set by the IDCP for the upcoming year could not exceed the cap in 1997

[i.e., 7,500 dolphins] or subsequent years [e.g., 6,500 dolphins in

1998]; and (3) the DML assigned to each vessel in the international

fishery could never exceed the limit assigned in 1997 [i.e., 94

dolphins/vessel] or subsequent years [e.g., 66 dolphins/vessel in 1998,

and 39.68 dolphins/vessel in 1999].

The first rejected alternative conforms best with the wording of

Sec

the cap in 1997

[i.e., 7,500 dolphins] or subsequent years [e.g., 6,500 dolphins in

1998]; and (3) the DML assigned to each vessel in the international

fishery could never exceed the limit assigned in 1997 [i.e., 94

dolphins/vessel] or subsequent years [e.g., 66 dolphins/vessel in 1998,

and 39.68 dolphins/vessel in 1999].

The first rejected alternative conforms best with the wording of

Sec. 101(a)(2)(B)(iii): ``the total dolphin mortality limits ...for

that nation's vessels...do not exceed the limits determined for 1997,

or for any year thereafter * * *.'' However, comparing a nation's

aggregate (fleet) mortality limits to the nation's earlier limits would

prejudge decisions under the IDCP. In the Panama Declaration, the

United States pledged to lift embargoes against nations participating

in accordance with the international program. While the international

program intended to reduce overall dolphin mortality, the parties to

the Panama Declaration and the IDCP did not contemplate limiting the

size of any nation's fleet (at least not for the purpose of dolphin

protection) or the size of any nation's aggregate DML. The IDCP has

always allocated the annual international cap on a per-vessel basis,

not on a per-nation basis. Under this rejected alternative, a nation

could fish in strict compliance with the program but be embargoed by

the United States if its fleet happened to be relatively large in the

upcoming year and therefore receive a relatively large aggregate

(fleet) DML. Penalizing a nation whose fleet has grown could discourage

efficient utilization of resources (fishing vessels transferring

between nations) without affecting overall international dolphin

mortality. Harvesting nations that adopted good

argoed by

the United States if its fleet happened to be relatively large in the

upcoming year and therefore receive a relatively large aggregate

(fleet) DML. Penalizing a nation whose fleet has grown could discourage

efficient utilization of resources (fishing vessels transferring

between nations) without affecting overall international dolphin

mortality. Harvesting nations that adopted good

dolphin conservation programs because of the IDCP might quit the IDCP

if subjected to this type of embargo.

The second alternative interpretation was rejected because the

statutory placement of an item relating to international management

would not be logical or appropriate among a list of standards

applicable to individual harvesting nations. While each IATTC

participant could block a larger international cap (because the IATTC

operates by consensus), imposing trade restrictions to penalize fellow

harvesting nations would not be logical for the following reasons.

First, the United States also participates in the IDCP, which operates

by consensus. Therefore, this standard would only have significance

(and result in an embargo) if the United States itself approved raising

the international cap. In the statutory context, Congress certainly

intended these importation standards to induce compliance with the IDCP

by harvesting nations. Second, this is not the type of documentary

evidence that the United States would require an individual harvesting

nation to provide since the United States knows the international cap

by virtue of our participation in the IDCP.

The third rejected alternative is not logical for the same reasons

as the second alternative; vessel DMLs are set by consensus, so the

United States could unilaterally prevent this standard from being

violated; and since we participate in the IDCP also, the United States

need not rely upon documentary evidence from harvesting nations.

The proposed interpretation makes the most sense in the context of

Sec

ected alternative is not logical for the same reasons

as the second alternative; vessel DMLs are set by consensus, so the

United States could unilaterally prevent this standard from being

violated; and since we participate in the IDCP also, the United States

need not rely upon documentary evidence from harvesting nations.

The proposed interpretation makes the most sense in the context of

Sec. 101(a)(2)(B) of the MMPA because it focuses on a nation's

compliance with the international regime. Only a nation that failed to

keep its own fleet's annual dolphin mortality within the aggregate DMLs

assigned to the fleet would be embargoed. That is the type of

documentary evidence that the United States would not necessarily have

without a submission from the harvesting nation. In the embargo

context, this interpretation focuses NMFS' attention on a fleet's

results in protecting dolphin, which should reflect on the success of

the harvesting nation's management and enforcement program, rather than

decisions by other parties to the IDCP. This encourages other

harvesting nations to comply with the IDCP and threatens economic

sanctions only against nations that do not control or manage their own

fleets.

Although currently the IDCP does not assign per-stock dolphin

mortality limits to individual nations, fleets, or vessels, if the IDCP

assigns per-stock limits in the future, we would compare the total per-

stock dolphin mortality of a harvesting nation's fleet in a calendar

year to the combined allocated annual per-stock mortality limits

assigned to the fleet for that year. If the mortality exceeded the

assigned limits, the United States would impose an ETP embargo against

that nation for the subsequent April through March period

ns per-stock limits in the future, we would compare the total per-

stock dolphin mortality of a harvesting nation's fleet in a calendar

year to the combined allocated annual per-stock mortality limits

assigned to the fleet for that year. If the mortality exceeded the

assigned limits, the United States would impose an ETP embargo against

that nation for the subsequent April through March period.

While the existing concept of nations applying for and renewing

annual affirmative findings is retained, the proposed regulations

reflect the reality that the documentary evidence used to make findings

may be provided by a combination of the exporting nation, the

harvesting nation (if different from the exporting nation), and the

IDCP and IATTC. In addition, to reflect the fact that the IDCP

principally uses the calendar year as the basis for management,

including the calculation and monitoring of annual DMLs, the period of

validity of a finding in the regulations is proposed to be from April 1

through March 31 of the following year, relying upon data from the

previous calendar year. To work effectively within this schedule, NMFS

will reduce the processing time for complete applications from 120 days

to 60 days. NMFS is considering a multi-year affirmative finding

process and is seeking comments on this concept.

Dolphin-safe Requirements

As mandated by section 6(d) of the IDCPA, the proposed regulations

would exclude yellowfin tuna and yellowfin tuna products harvested by

vessels of a nation which is in compliance with the IDCP, and which

also has met the IATTC application and membership requirements

specified in the IDCPA, from the prohibition on the sale, purchase,

offer for sale, transport or shipment of tuna products in the United

States which is not dolphin-safe.

Observers

regulations

would exclude yellowfin tuna and yellowfin tuna products harvested by

vessels of a nation which is in compliance with the IDCP, and which

also has met the IATTC application and membership requirements

specified in the IDCPA, from the prohibition on the sale, purchase,

offer for sale, transport or shipment of tuna products in the United

States which is not dolphin-safe.

Observers

The language in redesignated Sec. 216.24(e)(1) would be revised to

clarify that all permitted vessels are required to carry observers on

every trip. In addition, the section providing for an application and

waiver process regarding women observers is removed because the time

period has expired for its use.

U.S. Citizens on Foreign Flag Vessels in the ETP

A U.S. citizen employed on a foreign tuna purse seine vessel of a

nation with an affirmative finding would not be subject to the MMPA's

prohibitions on taking marine mammals while the vessel is engaged in

fishing operations outside the U.S. EEZ. Use of an affirmative finding

determination for this purpose is the most effective way for a U.S.

citizen to determine that a nation is qualified under the IDCPA's

criteria.

Dolphin-safe Labeling Requirements

The labeling standard for use of the term ``dolphin-safe'' on the

labels of tuna products would change under the proposed regulation.

Currently, tuna products may be labeled ``dolphin-safe'' only if no

intentional setting on dolphins occurred during the fishing trip. Under

the IDCPA, the Secretary of Commerce (Secretary) would revise the

labeling standard based upon the initial and final findings of a study

mandated by the IDCPA on whether the intentional deployment on, or

encirclement of, dolphins with purse seine nets is having a

``significant adverse impact'' on any depleted dolphin stock in the

ETP. Dolphin stocks in the ETP now designated as depleted under the

MMPA are the eastern spinner dolphin, northeastern offshore spotted

dolphin, and the coastal spotted dolphin

al findings of a study

mandated by the IDCPA on whether the intentional deployment on, or

encirclement of, dolphins with purse seine nets is having a

``significant adverse impact'' on any depleted dolphin stock in the

ETP. Dolphin stocks in the ETP now designated as depleted under the

MMPA are the eastern spinner dolphin, northeastern offshore spotted

dolphin, and the coastal spotted dolphin. The initial finding is due

between March 1, 1999, and March 31, 1999, and the final finding is due

between July 1, 2001, and December 31, 2002. Under the proposed

regulations, a ``default standard'' will be established before the

Secretary makes an initial finding. Under the default standard, tuna

products can only be labeled ``dolphin-safe'' if no dolphins are

intentionally encircled during the entire fishing trip and no dolphin

is killed or seriously injured during the set. After the initial

finding, unless the Secretary initially finds a ``significant adverse

impact,'' the Assistant Administrator will apply the definition of

``dolphin-safe'' specified in paragraph (h)(1) of the Dolphin Consumer

Protection Information Act (DCPIA)(16 U.S.C. 1385(h)(1)), i.e., that no

dolphins were killed or seriously injured during the sets in which the

tuna were caught. Similarly, if the Secretary's final finding by

December 31, 2002, concludes that a significant adverse impact is

either not occurring or has not been detected, the definition of

``dolphin-safe'' under paragraph (h)(1) of the DCPIA will apply.

Alternatively, if the Secretary finds a ``significant adverse impact,''

the definition would revert to the default standard. The proposed

regulations provide that, by notification in the Federal Register, the

Assistant Administrator will implement any required change in the

labeling standard without additional rulemaking.

Sundown Sets

in-safe'' under paragraph (h)(1) of the DCPIA will apply.

Alternatively, if the Secretary finds a ``significant adverse impact,''

the definition would revert to the default standard. The proposed

regulations provide that, by notification in the Federal Register, the

Assistant Administrator will implement any required change in the

labeling standard without additional rulemaking.

Sundown Sets

Under a 1988 amendment to the MMPA (Pub. L. 100-711), the backdown

procedure must be completed no later than one-half hour after sundown.

Moreover, the La Jolla Agreement and the IDCP both specified that this

procedure must be completed no later than one-half hour after sundown.

In contrast, apparently due to a typographical error, section

303(a)(2)(B)(5) of the IDCPA states that backdown procedures must be

completed no later than one-half hour before sundown. No Congressional

reports or colloquy indicate that this ``revision'' was adopted

purposefully. Furthermore, under the May 1998 Agreement on the IDCP,

signatory nations agreed that the backdown procedure must be completed

no later than one-half hour after sundown. Since the purpose of the May

1998 Agreement on the IDCP is to implement the IDCP, NMFS proposes that

requiring the backdown procedure to be completed no later than one-half

hour after sundown, best represents the language of the May 1998

Agreement on the IDCP and the spirit of the IDCP. Therefore, the

proposed rule requires the backdown procedure be completed no later

than one-half hour after sundown for every set encircling dolphin.

Official Mark

s to implement the IDCP, NMFS proposes that

requiring the backdown procedure to be completed no later than one-half

hour after sundown, best represents the language of the May 1998

Agreement on the IDCP and the spirit of the IDCP. Therefore, the

proposed rule requires the backdown procedure be completed no later

than one-half hour after sundown for every set encircling dolphin.

Official Mark

The DPCIA, as revised by the IDCPA, requires the Secretary to

develop an official mark that can be used to indicate a tuna product is

``dolphin-safe.'' The Secretary is considering designating a commonly

used ``dolphin-safe'' logo as the official mark and will make this

designation in a later rulemaking. In the meantime, this rule would

only ``reserve'' 50 CFR 216.96 as the section of the regulations that

NMFS will use in the future to describe the official mark.

The DPCIA does not mandate the use of the official mark, or

prohibit the use of a mark or label other than the official mark that

suggests processed tuna is ``dolphin-safe'' (``alternative mark'').

Although the DPCIA does not prohibit the use of alternative marks,

paragraphs (d)(3)(C)(i)-(iii) of the DPCIA appear to establish

standards applicable only to processed tuna labeled with alternative

marks or labels that refer to marine mammals. Those apparently separate

standards are (1) no dolphins were killed or seriously injured in the

sets or other gear deployments in which the tuna were caught; (2) the

mark is supported by a tracking and verification program comparable in

effectiveness to the program established by NMFS regulations; and (3)

the mark comports with applicable laws and regulations of the Federal

Trade Commission.

Upon analysis, DPCIA paragraph (d)(3)(C) does not require a

separate set of standards in these regulations. First, the labeling

standards in paragraphs (d)(1) and (2) of the DPCIA apply to all

processed tuna whether labeled with the official mark or with an

alternative mark

d by NMFS regulations; and (3)

the mark comports with applicable laws and regulations of the Federal

Trade Commission.

Upon analysis, DPCIA paragraph (d)(3)(C) does not require a

separate set of standards in these regulations. First, the labeling

standards in paragraphs (d)(1) and (2) of the DPCIA apply to all

processed tuna whether labeled with the official mark or with an

alternative mark. Second, the DPCIA paragraphs (d)(3)(C)(i) and (iii)

standards applicable to processed tuna labeled with alternative marks

are either less stringent or identical to the standards that apply to

processed tuna labeled with the official mark. Third, the standard

described in DPCIA paragraph (d)(3)(C)(ii) would only be applicable if

an alternative mark were supported by an alternative tracking and

verification program. Instead of determining whether alternative

tracking and verification programs meet the NMFS standards, NMFS

proposes to require that anyone who imports, exports, or sells tuna in

the United States that was harvested in the ETP comply with the

tracking and verification program described in this rule. In other

words, an alternative mark would be required to be supported by the

official tracking and verification program. Therefore, NMFS need not

determine that an alternative program is ``comparable in

effectiveness'' to the official program. While nothing in these

regulations is intended to inhibit a company or group from establishing

an alternative tracking and verification program, such a program would

not be a substitute for the program described here.

Therefore, NMFS proposes to establish a single standard for the use

of labels on tuna product that refers to a marine mammal or suggests

that the processed tuna was harvested by a method not injurious to

dolphin. That standard would be the same, regardless of whether the

label was the official mark that will be promulgated by the Secretary

or an alternative mark.

Tracking and Verification

.

Therefore, NMFS proposes to establish a single standard for the use

of labels on tuna product that refers to a marine mammal or suggests

that the processed tuna was harvested by a method not injurious to

dolphin. That standard would be the same, regardless of whether the

label was the official mark that will be promulgated by the Secretary

or an alternative mark.

Tracking and Verification

Paragraph (f) of the DPCIA (16 U.S.C. 1385(f)), as revised by the

IDCPA, requires the Secretary to issue regulations for a domestic

program to track and verify tuna labeled ``dolphin-safe.'' At the same

time as NMFS is developing a U.S. domestic program, parties to the May

1998 Agreement on the IDCP are working together to develop an

international tracking and verification system for tuna landed by purse

seine vessels fishing in the ETP. Section 216.94 of the proposed

regulations is intended to implement paragraph (f) of the DPCIA, while,

to the greatest extent practicable, keeping the domestic program in

line with the still-developing international program.

The proposed domestic tracking and verification program provides

for effective tracking of tuna harvested from the ETP by U.S. and

foreign vessels. The proposed program would track tuna caught by U.S.

purse seine vessels in the ETP from capture, to well, to processing, to

final sale, while noting which tuna was ``dolphin-safe'' and which tuna

was ``non-dolphin-safe.''

The fishing vessel observer will designate each well into which

tuna is loaded as either ``dolphin-safe,'' ``non-dolphin-safe,'' or

``mixed.'' The vast majority of wells are expected to be either

``dolphin-safe'' or ``non-dolphin-safe.'' ``Mixed'' wells should be a

rare occurrence. Under the interim labeling standard, the fishing

vessel observer will designate a well ``non-dolphin-safe'' if any tuna

loaded into the well was harvested (1) on a trip in which purse seines

were intentionally set on dolphin, or (2) in a set in which any dolphin

died or was seriously injured

d to be either

``dolphin-safe'' or ``non-dolphin-safe.'' ``Mixed'' wells should be a

rare occurrence. Under the interim labeling standard, the fishing

vessel observer will designate a well ``non-dolphin-safe'' if any tuna

loaded into the well was harvested (1) on a trip in which purse seines

were intentionally set on dolphin, or (2) in a set in which any dolphin

died or was seriously injured. The observer will designate a well as

``dolphin-safe'' if all the tuna loaded into the well was harvested

during a trip without intentional sets on dolphins and during sets in

which dolphins were intentionally encircled but no mortality or serious

injury of dolphin was observed. If the labeling standard changes after

March 1999, the observer would designate a well ``non-dolphin-safe'' if

tuna is loaded into the well that was harvested during a set in which a

dolphin died or was seriously injured. Conversely, the observer would

designate a well ``dolphin-safe'' if all tuna loaded into that well was

harvested during sets in which no dolphin died or was seriously

injured.

Regardless of which labeling standard is in effect, if a ``dolphin-

safe'' well, containing some amount of ``dolphin-safe'' tuna, is later

loaded with tuna caught in a set in which a dead or seriously injured

dolphin was discovered late in the loading process, that well would

then be designated ``mixed.'' The observer will record the estimated

weight of the ``dolphin-safe'' tuna already in the well. The tuna

already in the well will retain its status as ``dolphin-safe'' tuna

even though ``non-dolphin-safe'' tuna is stored in the same well.

Subsequently, only ``non-dolphin-safe'' tuna could be loaded into that

well.

At least 48 hours before a scheduled arrival in port, including

ports outside the United States, U.S. purse seine vessels would be

required to report to NMFS the scheduled place and time of arrival. The

purpose of this report

as ``dolphin-safe'' tuna

even though ``non-dolphin-safe'' tuna is stored in the same well.

Subsequently, only ``non-dolphin-safe'' tuna could be loaded into that

well.

At least 48 hours before a scheduled arrival in port, including

ports outside the United States, U.S. purse seine vessels would be

required to report to NMFS the scheduled place and time of arrival. The

purpose of this report

would be to give NMFS an opportunity to send a representative to meet

the vessel and verify the contents of the wells and the ``dolphin-

safe'' status of the tuna. The Captain would be required to submit a

written report of each set made during the fishing trip to NMFS

detailing the weights by species composition, estimated tons loaded,

the dates of loading into the well, the ``dolphin-safe'' ``non-dolphin-

safe'' or ``mixed'' designation of each well, set number, the trip

number, the observer name, the captain name, the vessel name, and the

trip dates.

Likewise, when tuna harvested in the ETP is scheduled to be

delivered to a tuna canning company, the company would be required to

provide 48-hour advance notice to NMFS of the location and arrival time

of such shipment.

After unloading from the fishing vessel and throughout processing,

``dolphin-safe'' and ``non-dolphin-safe'' tuna would be strictly

segregated. Can codes (that is, the unique number pressed onto each can

of processed tuna) could be used to trace the tuna to a particular

fishing trip by a particular vessel and, indirectly, to a particular

well on the vessel. Fishing companies, importers, and canners would all

be required to maintain relevant FCO and other records of the tuna for

three years. NMFS would have the authority to request copies of

relevant documents for inspection and could conduct audits and spot-

checks of facilities

race the tuna to a particular

fishing trip by a particular vessel and, indirectly, to a particular

well on the vessel. Fishing companies, importers, and canners would all

be required to maintain relevant FCO and other records of the tuna for

three years. NMFS would have the authority to request copies of

relevant documents for inspection and could conduct audits and spot-

checks of facilities.

In these tracking and verification regulations and the

Environmental Assessment analyzing this program, NMFS has addressed

each subsection of section (f) of the DPCIA, as follows: (1) Weight

calculations of the amount of ``dolphin-safe'' and ``non-dolphin-safe''

tuna loaded into segregated wells after each set will be a required

part of observers' reporting on forms to be revised by the IATTC in

accordance with the international tracking and verification program.

Tuna processors will use weight calculations to report ``dolphin-safe''

and ``non-dolphin-safe'' tuna received for immediate processing or cold

storage and also for tuna being removed from cold storage for sale or

processing; (2) the U.S. observer program has not been used in this

fishery for years so these regulations do not propose changes to our

domestic program, but the parties to the IDCP are working to improve

the training, monitoring, and reporting components of the existing

IATTC and other national observer programs; (3) the observer reports

would indicate the ``dolphin-safe'' or ``non-dolphin-safe'' status of

each well aboard the fishing vessel; however, NMFS is not proposing to

require wells be ``sealed'' because sealing wells effectively is not

practicable and furtively moving significant quantities of frozen

blocks of large tuna from well to well during a trip is very unlikely;

nal observer programs; (3) the observer reports

would indicate the ``dolphin-safe'' or ``non-dolphin-safe'' status of

each well aboard the fishing vessel; however, NMFS is not proposing to

require wells be ``sealed'' because sealing wells effectively is not

practicable and furtively moving significant quantities of frozen

blocks of large tuna from well to well during a trip is very unlikely;

(4) tracking and storage of radio and facsimile communications from

vessels would not be useful to track or verify tuna products, but NMFS

proposes to mandate the creation or maintenance of such records if the

industry keeps the records anyway (for its own purposes); (5) shore-

based verification coupled with IATTC records and other reports

required by these regulations form the backbone of the proposed

tracking and verification program; (6) as indicated in proposed

Sec. 216.94, NMFS would conduct periodic spot-checks and audits of tuna

facilities; (7) negotiations with other ETP harvesting nations are

expected to result in a cooperative, international tracking program

under which participating nations will share data and inspect fish

processing facilities under mutually agreeable protocols.

Public Comments Solicited; Public Hearings

NMFS is soliciting comments on this proposed rule. Oral comments,

as well as written comments, may be presented at public hearings on the

proposed rule (see ADDRESSES and DATES). Written comments on the

proposed rule may also be submitted to J. Allison Routt (see ADDRESSES

and DATES).

Special Accommodations

These hearings will be physically accessible to people with

disabilities. Requests for sign language interpretation or other aids

should be directed to J. Allison Routt at least 10 days prior to the

hearing date (see ADDRESSES).

Classification

Executive Order 12866

Pursuant to the procedures established to implement section 6 of

E.O. 12866, the Office of Management and Budget (OMB) has determined

that this rule is significant.

Regulatory Flexibility Act

lities. Requests for sign language interpretation or other aids

should be directed to J. Allison Routt at least 10 days prior to the

hearing date (see ADDRESSES).

Classification

Executive Order 12866

Pursuant to the procedures established to implement section 6 of

E.O. 12866, the Office of Management and Budget (OMB) has determined

that this rule is significant.

Regulatory Flexibility Act

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. There are 15 to 17 small vessels in the U.S. purse

seine fleet that fish most years; these have 363 mt or less carrying

capacity. These vessels are small business entities generating less

than $3 million in gross revenues each year from all landings. The only

action in the proposed rule specifically intended to restrict small

vessels is the formal prohibition of setting on dolphin. However, these

vessels have not set on dolphin in the past. There would be no

substantial compliance costs or paperwork burdens imposed on small

vessels. Finally, while the proposed actions may result in increased

supply of raw tuna to U.S. and foreign processors, it is not expected

to result in lower prices being paid to fishing vessels, regardless of

their size. With respect to the U.S. processing sector, there are no

small processing firms. With respect to the wholesale and broker

sectors, there are no known small U.S. firms involved in these sectors

handling ETP-origin tuna or tuna products. Even if there were small

entities involved in the business of brokering or wholesaling, they

would be affected only minimally by recordkeeping requirements

associated with tracking ``dolphin-safe'' tuna product. None of the

other actions in this proposed rule would impose any costs nor affect

revenues of such businesses.

ms involved in these sectors

handling ETP-origin tuna or tuna products. Even if there were small

entities involved in the business of brokering or wholesaling, they

would be affected only minimally by recordkeeping requirements

associated with tracking ``dolphin-safe'' tuna product. None of the

other actions in this proposed rule would impose any costs nor affect

revenues of such businesses.

Paperwork Reduction Act

Notwithstanding any other provision of the law, no person is

required to respond to, nor will any person be subject to a penalty for

failure to comply with, a collection of information subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

This proposed rule contains collection-of-information requirements

subject to the Paperwork Reduction Act (PRA). One existing requirement

is repeated: exporters from all countries importing tuna and tuna

products, except some fresh products, into the United States must

provide information about the shipment to U.S. Customs using the

Fisheries Certificates of Origin (NOAA Form 370). Approved by the OMB

under control number 0648-0335, the public reporting burden for this

collection is estimated to average 20 minutes per submission.

This proposed rule also contains new collection-of-information

requirements which have been submitted to OMB for review and approval.

The estimated burden for these requirements are as follows: 30 minutes

for an application for a vessel permit; 10 minutes for an application

for an operator permit; 30 minutes for a request for a waiver to

transit the ETP without a permit; 10 minutes for a notification by a

vessel

so contains new collection-of-information

requirements which have been submitted to OMB for review and approval.

The estimated burden for these requirements are as follows: 30 minutes

for an application for a vessel permit; 10 minutes for an application

for an operator permit; 30 minutes for a request for a waiver to

transit the ETP without a permit; 10 minutes for a notification by a

vessel

permit holder 5 days prior to departure on a fishing trip; 10 minutes

for the requirement that vessel permit holders who intend to make

intentional sets on marine mammals must notify NMFS at least 48 hours

in advance if there is a vessel operator change or within 72 hours if

the change was made due to an emergency; 10 minutes for a notification

by a vessel permit holder of any net modification at least 5 days prior

to departure of the vessel; 15 minutes for a request for a DML; 20

hours for an experimental fishing operation waiver; 10 minutes for a

notification by a captain; managing owner; or vessel agent 48 hours

prior to arrival to unload; 1 hour for a captain to complete the tuna

tracking form; 5 minutes for a captain to complete the dolphin-safe

certification; 10 minutes for a notification by a cannery 24 hours

prior to receiving a shipment of domestic or imported ETP caught tuna;

10 minutes for a cannery to provide the processor's receiving report;

10 minutes for a cannery to provide the processor's storage removal

report; 1 hour for a cannery to provide the monthly cannery receipt

report; 30 minutes for an exporter; transshipper; importer; or

processor to produce records if requested by the Administrator,

Southwest Region.

The preceding public reporting burden estimates for collections of

information include time for reviewing instructions, searching existing

data sources, gathering and maintaining the data needed, and completing

and reviewing the collection of information

t; 30 minutes for an exporter; transshipper; importer; or

processor to produce records if requested by the Administrator,

Southwest Region.

The preceding public reporting burden estimates for collections of

information include time for reviewing instructions, searching existing

data sources, gathering and maintaining the data needed, and completing

and reviewing the collection of information.

Public comment is sought regarding whether this proposed collection

of information is necessary for the proper performance of the functions

of the agency, including whether the information will have practical

utility; the accuracy of the burden estimate; ways to enhance the

quality, utility; and clarity of the information to be collected; and

ways to minimize the burden of the collection of information, including

through the use of automated collection techniques or other forms of

information technology. Send comments on these or any other aspects of

the collection of information to the Administrator, Southwest Region at

the address above, and to OMB at the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, D.C.

20503 (Attention: NOAA Desk Officer).

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Marine mammals, Penalties, Reporting and

recordkeeping requirements, Transportation.

Dated: June 8, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Services.

For the reasons set out in the preamble, 50 CFR part 216 is

proposed to be amended as follows:

PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

enelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Services.

For the reasons set out in the preamble, 50 CFR part 216 is

proposed to be amended as follows:

PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. In Sec. 216.3, definitions of ``ABI'', ``Director, Southwest

Region'', ``ETP Fishing Area 1'', ``ETP Fishing Area 2'', ``ETP Fishing

Area 3'', ``Fishing season'', ``Kill-per-set'', ``Kill-per-ton'', and

``Purse seine set on common dolphins'' are removed, and definitions for

``Administrator, Southwest Region'', ``Agreement on the International

Dolphin Conservation Program'', ``Declaration of Panama'', ``Force

majeure'', ``International Dolphin Conservation Program'',

``International Dolphin Conservation Program Act'', ``International

Review Panel'', and ``Per-stock per-year dolphin mortality limit'' are

added in alphabetical order to read as follows:

Sec. 216.3 Definitions.

* * * * *

Administrator, Southwest Region means the Regional Administrator,

Southwest Region, National Marine Fisheries Service, 501 W. Ocean

Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee.

Agreement on the International Dolphin Conservation Program

(Agreement on the IDCP) means the Agreement establishing the formal

binding IDCP that was signed in Washington, DC on May 21, 1998.

* * * * *

Declaration of Panama means the declaration signed in Panama City,

Republic of Panama, on October 4, 1995.

* * * * *

Force majeure means forces outside the vessel operator's or vessel

owner's control that could not be avoided by the exercise of due care

(Agreement on the IDCP) means the Agreement establishing the formal

binding IDCP that was signed in Washington, DC on May 21, 1998.

* * * * *

Declaration of Panama means the declaration signed in Panama City,

Republic of Panama, on October 4, 1995.

* * * * *

Force majeure means forces outside the vessel operator's or vessel

owner's control that could not be avoided by the exercise of due care.

* * * * *

International Dolphin Conservation Program (IDCP) means the

international program established by the agreement signed in La Jolla,

California, in June 1992, as formalized, modified, and enhanced in

accordance with the Declaration of Panama and the Agreement on the

IDCP.

International Dolphin Conservation Program Act (IDCPA) means Public

Law 105-42, enacted into law on August 15, 1997.

International Review Panel (IRP) means the International Review

Panel established by the Agreement on the IDCP.

* * * * *

Per-stock per-year dolphin mortality limit means the maximum

allowable number of incidental dolphin mortalities and serious injuries

from a specified stock per calendar year, as established under the

IDCP.

* * * * *

3. In Sec. 216.24, the introductory Note to Sec. 216.24 and

paragraphs (e)(9), (f)(4), and (f)(7) are removed; paragraphs (e) and

(f) are redesignated as paragraphs (f) and (e) respectively; newly

designated paragraphs (e)(5) and (e)(6) are redesignated as paragraphs

(e)(4) and (e)(5) respectively; newly designated paragraphs (f)(6) and

(f)(8) are redesignated as paragraphs (f)(10) and (f)(11) respectively;

and the section heading, paragraphs (a)(1), (a)(2)(i), (a)(2)(ii),

(a)(3), (b) through (d), newly designated paragraphs (e)(1) through

(e)(3), (f)(2), (f)(3) through (f)(5), and paragraph (g) are revised;

and paragraphs (f)(6) through (f)(9), and (f)(12) are added to read as

follows:

Sec. 216.24 Taking and related acts incidental to commercial fishing

operations by tuna purse seine vessels in the eastern tropical Pacific

Ocean.

)(1), (a)(2)(i), (a)(2)(ii),

(a)(3), (b) through (d), newly designated paragraphs (e)(1) through

(e)(3), (f)(2), (f)(3) through (f)(5), and paragraph (g) are revised;

and paragraphs (f)(6) through (f)(9), and (f)(12) are added to read as

follows:

Sec. 216.24 Taking and related acts incidental to commercial fishing

operations by tuna purse seine vessels in the eastern tropical Pacific

Ocean.

(a)(1) No marine mammal may be taken in the course of a commercial

fishing operation by a United States purse seine fishing vessel in the

ETP unless the taking constitutes an incidental catch as defined in

Sec. 216.3, and vessel and operator permits have been obtained in

accordance with these regulations, and such taking is not in violation

of such permits or regulations.

(2)(i) It is unlawful for any person using a United States purse

seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt))

carrying capacity or less intentionally to deploy a net on or to

encircle dolphins, or to carry more than two speedboats, if any part of

its fishing trip is in the ETP.

(ii) It is unlawful for any person using a United States purse

seine fishing vessel of greater than 400 short tons (362.8 mt) carrying

capacity that does not have a valid permit obtained under these

regulations to catch, possess, or land tuna if any part of the vessel's

fishing trip is in the ETP.

* * * * *

(3) Upon written request made in advance of entering the ETP, the

limitations in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may

be waived by the Administrator, Southwest

Region, for the purpose of allowing transit through the ETP. The waiver

will provide, in writing, the terms and conditions under which the

vessel must operate, including a requirement to report by radio to the

Administrator, Southwest Region, the vessel's date of exit from or

subsequent entry into the permit area, in order to transit the area

with more than two speedboats.

strator, 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, in order to transit the area

with more than two speedboats.

(b) Permits--(1) Vessel permit. The owner or managing owner of a

United States purse seine fishing vessel of greater than 400 st (362.8

mt) carrying capacity that participates in commercial fishing

operations in the ETP must possess a valid vessel permit issued under

this paragraph (b) of this section. This permit is not transferable and

must be renewed annually. If a vessel permit holder surrenders his/her

permit to the Administrator, Southwest Region, the permit will not be

returned and a new permit will not be issued before the end of the

calendar year, except that a permit may be transferred to the new owner

when the vessel ownership changes. Vessel permits will be valid through

December 31 of each year.

(2) Operator permit. The person in charge of and actually

controlling fishing operations (hereinafter referred to as the

operator) on a United States purse seine fishing vessel engaged in

commercial fishing operations under a vessel permit must possess a

valid operator permit issued under this paragraph (b) of this section.

Such permits are not transferable and must be renewed annually. To

receive a permit, the operator must have satisfactorily completed all

required training under (c)(4) of this section. The operator's permit

is valid only when the permit holder is on a vessel with a valid vessel

permit. Operator permits will be valid through December 31 of each

year.

under this paragraph (b) of this section.

Such permits are not transferable and must be renewed annually. To

receive a permit, the operator must have satisfactorily completed all

required training under (c)(4) of this section. The operator's permit

is valid only when the permit holder is on a vessel with a valid vessel

permit. Operator permits will be valid through December 31 of each

year.

(3) Possession and display. A valid vessel permit issued pursuant

to paragraph (b)(1) of this section must be on board the vessel while

engaged in fishing operations, and a valid operator permit issued

pursuant to paragraph (b)(2) of this section must be in the possession

of the operator to whom it was issued. Permits must be shown upon

request to NMFS enforcement agents, or to U.S. Coast Guard officers,

and to designated agents of NMFS and IATTC (including observers). A

vessel owner or operator who is at sea on a fishing trip when his or

her permit expires and to whom a permit for the next year has been

issued may take marine mammals under the terms of the new permit

without having to display it on board the vessel until the vessel

returns to port.

(4) Application for vessel permit. The owner or managing owner of a

purse seine vessel may apply for a permit from the Administrator,

Southwest Region, allowing at least 45 days for processing. An

application must contain:

(i) The name, official number, tonnage, carrying capacity in short

or metric tons, maximum speed in knots, processing equipment, and type

and quantity of gear, including an inventory of equipment required

under paragraph (c)(2) of this section if the application is for purse

seining involving the intentional taking of marine mammals, of the

vessel that is to be covered under the permit;

(ii) A statement of whether or not the vessel will make sets

involving the intentional taking of marine mammals;

rocessing equipment, and type

and quantity of gear, including an inventory of equipment required

under paragraph (c)(2) of this section if the application is for purse

seining involving the intentional taking of marine mammals, of the

vessel that is to be covered under the permit;

(ii) A statement of whether or not the vessel will make sets

involving the intentional taking of marine mammals;

(iii) The type and identification number(s) of Federal, State, and

local commercial fishing licenses under which vessel operations are

conducted, and the dates of expiration;

(iv) The name(s) of the operator(s) anticipated to be used; and

(v) The name and signature of the applicant, whether he/she is the

owner or the managing owner, his/her address, telephone and fax

numbers, and, if applicable, the name, address, telephone and fax

numbers of the agent or organization acting on behalf of the vessel.

(5) Application for operator permit. An applicant for an operator

permit must provide the following information to the Administrator,

Southwest Region, allowing at least 45 days for processing:

(i) The name, address, telephone and fax numbers of the applicant;

(ii) The type and identification number(s) of any Federal, state,

and local fishing licenses held by the applicant;

(iii) The name of the vessel(s) on which the applicant anticipates

serving as an operator;

(iv) The date, location, and provider of any training for the

operator permit; and

ing at least 45 days for processing:

(i) The name, address, telephone and fax numbers of the applicant;

(ii) The type and identification number(s) of any Federal, state,

and local fishing licenses held by the applicant;

(iii) The name of the vessel(s) on which the applicant anticipates

serving as an operator;

(iv) The date, location, and provider of any training for the

operator permit; and

(v) The applicant's signature or the signature of the applicants

representative, if any.

(6) Fees. An application for a permit under paragraph (b)(1) of

this section must include a fee of $200.00 for each vessel. There is no

fee for the operator certificate. The Assistant Administrator may

change the amount of these fees required at any time if a different fee

is determined in accordance with the NOAA Finance Handbook and

specified by the Administrator, Southwest Region, on the application

form. Notification of such change will be published in the Federal

Register. The vessel permit holder will submit the fee for the

placement of observers, as established by the IATTC or other approved

observer program, to the Administrator, Southwest Region, by September

1 of the year prior to the year in which the vessel will be operated in

the ETP, for transmittal by the date the application for a vessel

permit is due.

(7) The Administrator, Southwest Region, will determine the

adequacy and completeness of an application and, upon determining that

an application is adequate and complete, will approve that application

and issue the appropriate permit, except for applicants having unpaid

or overdue civil penalties, criminal fines, or other liabilities

incurred in a legal proceeding.

a vessel

permit is due.

(7) The Administrator, Southwest Region, will determine the

adequacy and completeness of an application and, upon determining that

an application is adequate and complete, will approve that application

and issue the appropriate permit, except for applicants having unpaid

or overdue civil penalties, criminal fines, or other liabilities

incurred in a legal proceeding.

(8) Conditions applicable to all permits-- (i) General conditions.

Failure to comply with the provisions of a permit or with these

regulations may lead to suspension, revocation, modification, or denial

of a permit. The permit holder, vessel, vessel owner, operator, or

master may be subject, jointly and severally, to the penalties provided

for under the MMPA. Procedures governing permit sanctions and denials

are found at subpart D of 15 CFR part 904.

(ii) Observer placement. By obtaining a permit, the permit holder

consents to the placement of an observer on the vessel during every

trip involving operations in the ETP and agrees to payment of the fees

for observer placement to the IATTC or other designated international

organization. The observers may be placed under an observer program of

NMFS or of the IATTC, or under another international observer program

approved by the IDCP and the Administrator, Southwest Region.

(iii) Explosives. The use of explosive devices is prohibited in all

tuna purse seine operations that involve marine mammals.

er data

to be provided to NMFS. Data obtained under such releases will be used

for the same purposes as would data collected directly by observers

placed by NMFS and will be subject to the same standards of

confidentiality.

(vi) Protection from personal injury. A permit holder must take all

necessary steps to protect a person from personal injury without

killing or injuring a marine mammal.

(vii) Protection from personal injury. Only if there are no

alternative means to deter a marine mammal from causing personal

injury, may a permit holder injure or kill the animal causing or about

to cause immediate personal injury.

(viii) Retention ermit. Marine mammals taken in the course of

commercial fishing operations will be subject to the provisions of

Sec. 216.3 with respect to ``incidental catch,'' and must not be

retained except where a specific permit has been obtained authorizing

the retention.

(9) Mortality and serious injury reports. The Administrator,

Southwest Region, will provide to the public periodic status reports

summarizing the estimated incidental dolphin mortality and serious

injury by U.S. vessels of individual species and stocks.

(c) Purse seining by vessels with DMLs. In addition to the terms

and conditions set forth in paragraph (b) of this section, any permit

for a vessel to which a DML has been assigned under paragraph (c)(8) of

this section and any operator permit when used on such a vessel are

subject to the following terms and conditions:

ity and serious

injury by U.S. vessels of individual species and stocks.

(c) Purse seining by vessels with DMLs. In addition to the terms

and conditions set forth in paragraph (b) of this section, any permit

for a vessel to which a DML has been assigned under paragraph (c)(8) of

this section and any operator permit when used on such a vessel are

subject to the following terms and conditions:

(1) General conditions. (i) A vessel may be used to take marine

mammals only if the taking is an incidental occurrence in the course of

normal commercial tuna purse seine fishing operations and the fishing

operations are under the immediate direction of the holder of a valid

operator's permit.

(ii) Except as otherwise authorized by a specific permit, marine

mammals incidentally taken must be immediately returned to the

environment where captured without further injury. The operator of a

purse seine vessel must take every precaution to refrain from causing

or permitting incidental mortality or serious injury of marine mammals.

Live marine mammals must not be brailed, sacked up, or hoisted onto the

deck during ortza retrieval.

(iii) The vessel permit holder will notify the Administrator,

Southwest Region, or the IATTC contact designated by the Administrator,

Southwest Region, of any change of vessel operator at least 48 hours

prior to departing on a trip. In the case of a change in operator due

to an emergency, notification must be made within 72 hours of the

change.

(2) Gear, equipment, and release procedures required for valid

permit. A vessel possessing a vessel permit for purse seining involving

the intentional taking of marine mammals may not engage in fishing

operations involving the intentional deployment of the net on or

encirclement of dolphins unless it is equipped with a dolphin safety

panel in its purse seine, has the other required gear and equipment,

and uses the required procedures.

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.

h end of the dolphin safety

panel and dolphin apron must be identified with an easily

distinguishable marker.

(iii) Dolphin safety panel hand holds. Throughout the length of the

corkline under which the dolphin safety panel and dolphin apron are

located, hand hold openings must be secured so that they will not allow

the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped

object.

(iv) Dolphin safety panel corkline hangings. Throughout the length

of the corkline under which the dolphin safety panel and dolphin apron

are located, corkline hangings will be inspected by the vessel operator

following each trip. Hangings found to have loosened to the extent that

a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be

inserted between the cork and corkline hangings, must be tightened so

as not to allow the insertion of a cylindrical object with a 1 3/8 inch

(3.50 cm) diameter.

(v) Speedboats. A minimum of three speedboats in operating

condition must be carried. All speedboats carried aboard purse seine

vessels and in operating condition must be rigged with tow lines and

towing bridles or towing posts. Speedboat hoisting bridles must not be

substituted for towing bridles.

(vi) Raft. A raft suitable to be used as a dolphin observation-and-

rescue platform must be carried.

(vii) Facemask and snorkel, or viewbox. At least two facemasks and

snorkels or viewboxes must be carried.

(viii) Lights. The vessel must be equipped with lights capable of

producing a minimum of 140,000 lumens of output for use in darkness to

ensure sufficient light to observe that procedures for dolphin release

are carried out and to monitor incidental dolphin mortality.

rm must be carried.

(vii) Facemask and snorkel, or viewbox. At least two facemasks and

snorkels or viewboxes must be carried.

(viii) Lights. The vessel must be equipped with lights capable of

producing a minimum of 140,000 lumens of output for use in darkness to

ensure sufficient light to observe that procedures for dolphin release

are carried out and to monitor incidental dolphin mortality.

(3) Vessel inspection--(i) Annual. At least once during each

calendar year, purse seine nets and other gear and equipment required

by these regulations must be made available for inspection and for a

trial set/net alignment by an authorized NMFS inspector or IATTC staff

as specified by the Administrator, Southwest Region, in order to obtain

a vessel permit.

(ii) Reinspection. Purse seine nets and other gear and equipment

required by these regulations must be made available for reinspection

by an authorized NMFS inspector or IATTC staff as specified by the

Administrator, Southwest Region. The vessel permit holder must notify

the Administrator, Southwest Region, of any net modification at least 5

days prior to departure of the vessel in order to determine whether a

reinspection or trial set/net alignment is required.

(iii) Upon failure to pass an inspection or reinspection, a vessel

may not engage in purse seining involving the intentional taking of

marine mammals until the deficiencies in gear or equipment are

corrected as required by NMFS.

Region, of any net modification at least 5

days prior to departure of the vessel in order to determine whether a

reinspection or trial set/net alignment is required.

(iii) Upon failure to pass an inspection or reinspection, a vessel

may not engage in purse seining involving the intentional taking of

marine mammals until the deficiencies in gear or equipment are

corrected as required by NMFS.

(4) Operator permit holder training requirements. An operator will

maintain proficiency sufficient to perform the procedures required

herein, and must attend and satisfactorily complete a formal training

session approved by the Administrator, Southwest Region, in order to

obtain his or her permit. At the training session an attendee will be

instructed concerning the relevant provisions and regulatory

requirements of the MMPA and the IDCP, and the fishing gear and

techniques that are required for, or will contribute to, reducing

serious injury and mortality of dolphin incidental to purse seining for

tuna. Operators who have received a written certificate of satisfactory

completion of training and who possess a current or previous calendar

year permit will not be required to attend additional formal training

sessions unless there are substantial changes in the relevant

provisions or implementing regulations of the MMPA or the IDCP, or in

fishing gear and techniques. Additional training may be required for

any operator who is found by the Administrator, Southwest Region, to

lack proficiency in the required fishing procedures or familiarity with

the relevant provisions or regulations of the MMPA or the IDCP.

(5) Marine mammal release requirements. All operators must use the

following procedures during all sets involving the incidental taking of

marine mammals in association with the capture and landing of tuna.

is found by the Administrator, Southwest Region, to

lack proficiency in the required fishing procedures or familiarity with

the relevant provisions or regulations of the MMPA or the IDCP.

(5) Marine mammal release requirements. All operators must use the

following procedures during all sets involving the incidental taking of

marine mammals in association with the capture and landing of tuna.

(i) Backdown procedure. Backdown must be performed following a

purse seine set in which dolphins are captured in the course of

catching tuna, and must be continued until it is no longer possible to

remove live dolphins from the net by this procedure. At least one

crewman must be deployed during backdown to aid in the release of

dolphins. Thereafter, other release procedures required will be

continued so that all live dolphins are released prior to the

initiation of the sack-up procedure.

(ii) Prohibited use of sharp or pointed instrument. The use of a

sharp or pointed instrument to remove any marine mammal from the net is

prohibited.

(iii) Sundown sets prohibited. On every set encircling dolphin, the

backdown procedure must be completed no later than one-half hour after

sundown, except as provided here. For the purpose of this section,

sundown is defined as the time at which the upper edge of the sun

disappears below the horizon or, if the view of the sun is obscured,

the local time of sunset calculated from tables developed by the U.S.

Naval Observatory or other authoritative source approved by the

Administrator, Southwest Region. A sundown set is a set in which the

backdown procedure has not been completed and rolling the net to sack-

up has not begun within one-half hour after sundown. Should a set

extend beyond one-half hour after sundown, the operator must use the

required marine mammal release procedures including the use of the high

intensity lighting system

source approved by the

Administrator, Southwest Region. A sundown set is a set in which the

backdown procedure has not been completed and rolling the net to sack-

up has not begun within one-half hour after sundown. Should a set

extend beyond one-half hour after sundown, the operator must use the

required marine mammal release procedures including the use of the high

intensity lighting system. In the event a sundown set occurs where the

seine skiff was let go sufficiently in advance of sundown that the

vessel should have been able to comply with the sundown set

prohibition, and an earnest effort to rescue dolphins is made, the

International Review Panel of the IDCP may recommend to the United

States that in the view of the International Review Panel, prosecution

by the United Sates is not recommended. Any such recommendation will be

considered by the United States in evaluating the appropriateness of

prosecution in a particular circumstance.

(iv) Dolphin safety panel. During backdown, the dolphin safety

panel must be positioned so that it protects the perimeter of the

backdown area. The perimeter of the backdown area is the length of

corkline that begins at the outboard end of the last bow bunch pulled

and continues to at least two-thirds the distance from the backdown

channel apex to the stern tiedown point.

(6) Experimental fishing operations. The Administrator, Southwest

Region, may authorize experimental fishing operations, consistent with

the provisions of the IDCP, for the purpose of testing proposed

improvements in fishing techniques and equipment that may reduce or

eliminate dolphin mortality or serious injury, or do not require the

encirclement of dolphins in the course of fishing operations. The

Administrator, Southwest Region, may waive, as appropriate, any

requirements of this section except DMLs and the obligation to carry an

observer.

the IDCP, for the purpose of testing proposed

improvements in fishing techniques and equipment that may reduce or

eliminate dolphin mortality or serious injury, or do not require the

encirclement of dolphins in the course of fishing operations. The

Administrator, Southwest Region, may waive, as appropriate, any

requirements of this section except DMLs and the obligation to carry an

observer.

(i) A vessel permit holder may apply for an experimental fishing

operation waiver by submitting the following information to the

Administrator, Southwest Region, no less than 90 days before the date

the proposed operation is intended to begin:

(A) The name(s) of the vessel(s) and the vessel permit holder(s) to

participate;

(B) A statement of the specific vessel gear and equipment or

procedural requirement to be exempted and why such an exemption is

necessary to conduct the experiment;

(C) A description of how the proposed modification to the gear and

equipment or procedures is expected to reduce incidental mortality or

serious injury of marine mammals;

(D) A description of the applicability of this modification to

other purse seine vessels;

(E) The planned design, time, duration, and general area of the

experimental operation;

(F) The name(s) of the permitted operator(s) of the vessel(s)

during the experiment; and

(G) A statement of the qualifications of the individual or company

doing the analysis of the research.

(ii) The Administrator, Southwest Region, will acknowledge receipt

of the application and, upon determining that it is complete, will

publish a notice in the Federal Register summarizing the application,

making the full application available for inspection and inviting

comments for a minimum period of 30 days from the date of publication.

vidual or company

doing the analysis of the research.

(ii) The Administrator, Southwest Region, will acknowledge receipt

of the application and, upon determining that it is complete, will

publish a notice in the Federal Register summarizing the application,

making the full application available for inspection and inviting

comments for a minimum period of 30 days from the date of publication.

(iii) The Administrator, Southwest Region, after considering the

information identified in paragraph (c)(6)(i) of this section and the

comments received, will either issue a waiver to conduct the experiment

which includes restrictions or conditions deemed appropriate, or deny

the application, giving the reasons for denial.

(iv) A waiver for an experimental fishing operation will be valid

only for the vessels and operators named in the permit, for the time

period and areas specified, for trips carrying an observer designated

by the Administrator, Southwest Region, when all the terms and

conditions of the permit are met.

(v) The Administrator, Southwest Region, may suspend or revoke an

experimental fishing waiver in accordance with 15 CFR part 904 if the

terms and conditions of the waiver or the provisions of the regulations

are not followed.

(7) Operator permit holder performance requirements. [Reserved]

(8) Vessel permit holder dolphin mortality limits. For purposes of

this paragraph, the term ``vessel permit holder'' includes both the

holder of a current vessel permit and also the holder of a vessel

permit for the following year.

if the

terms and conditions of the waiver or the provisions of the regulations

are not followed.

(7) Operator permit holder performance requirements. [Reserved]

(8) Vessel permit holder dolphin mortality limits. For purposes of

this paragraph, the term ``vessel permit holder'' includes both the

holder of a current vessel permit and also the holder of a vessel

permit for the following year.

(i) By September 1 each year, a vessel permit holder desiring a DML

for the following year must provide to the Administrator, Southwest

Region, the name of the United States purse seine fishing vessel(s) of

carrying capacity greater than 400 st (362.8 mt) that the owner intends

to use to intentionally deploy purse seine fishing nets in the ETP to

encircle dolphins in an effort to capture tuna during the following

year. NMFS will forward the list of purse seine vessels to the Director

of the IATTC on or before October 1, or as otherwise required by the

IDCP, for assignment of a DML for the following

year under the provisions of Annex IV of the Agreement on the IDCP.

(ii) Each vessel permit holder who desires a DML for the period

July 1 to December 31 for a vessel that has not previously had a DML

assigned for the year must provide the Administrator, Southwest Region,

by September 1 of the prior year, the name of the United States purse

seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying

capacity that the owner intends to use to intentionally deploy purse

seine fishing nets in the ETP to encircle dolphins in an effort to

capture tuna during the period. NMFS will forward the list of purse

seine vessels to the Director of the IATTC on or before April 1, or as

otherwise required under the IDCP, for possible assignment of a DML for

the 6-month period July 1 to December 31

rrying

capacity that the owner intends to use to intentionally deploy purse

seine fishing nets in the ETP to encircle dolphins in an effort to

capture tuna during the period. NMFS will forward the list of purse

seine vessels to the Director of the IATTC on or before April 1, or as

otherwise required under the IDCP, for possible assignment of a DML for

the 6-month period July 1 to December 31. Under the IDCP, the DML will

be calculated by the IDCP from any unutilized pool of DMLs in

accordance with the procedure described in Annex IV of the Agreement on

the IDCP and will not exceed one-third of an unadjusted full-year DML

as calculated by the IDCP.

(iii)(A) The Administrator, Southwest Region, will notify vessel

owners of the DML assigned for each vessel for the following year, or

the second half of the year, as applicable.

(B) The Administrator, Southwest Region, may adjust the DMLs in

accordance with Annex IV of the Agreement on the IDCP. All adjustments

of full-year DMLs will be made before January 1, and the Administrator,

Southwest Region, will notify the Director of the IATTC of any

adjustments prior to a vessel departing on a trip using its adjusted

DML. The notification will be no later than February 1 in the case of

adjustments to full-year DMLs, and no later than May 1 in the case of

adjustments to DMLs for the second half of the year.

(C) Within the requirements of Annex IV of the Agreement on the

IDCP, the Administrator, Southwest Region, may adjust a vessel's DML if

it will further scientific or technological advancement in the

protection of marine mammals in the fishery or if the past performance

of the vessel indicates that the protection or use of the yellowfin

tuna stocks or marine mammals is best served by the adjustment, within

the mandates of the MMPA. Experimental fishing operation waivers or

scientific research permits will be considered a basis for adjustments.

cientific 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.

nable 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.

extraordinary circumstances as determined by the

International Review Panel. After two consecutive losses of a DML, a

vessel will not be eligible to receive a DML for the next fishing year.

(vii) Observers will make their records available to the vessel

operator at any reasonable time, including after each set, in order for

the operator to monitor the balance of the DML(s) remaining for use.

(viii) Vessel and operator permit holders must not deploy a purse

seine net on or encircle any school of dolphins containing individuals

of a particular stock of dolphins:

(A) when the applicable per-stock per-year dolphin mortality limit

for that stock of dolphins for that vessel, if so assigned, has been

reached or exceeded; or

(B) after the time and date provided in actual notification or

notification in the Federal Register by the Administrator, Southwest

Region, based upon the best available evidence, stating when any

applicable per-stock per-year dolphin mortality limit has been reached

or exceeded, or is expected to be reached in the near future.

(ix) If individual dolphins belonging to a stock that is prohibited

from being taken are not reasonably observable at the time the net

skiff attached to the net is released from the vessel at the start of a

set, the fact that individuals of that stock are subsequently taken

will not be cause for enforcement action provided that all procedures

required by the applicable regulations have been followed.

individual dolphins belonging to a stock that is prohibited

from being taken are not reasonably observable at the time the net

skiff attached to the net is released from the vessel at the start of a

set, the fact that individuals of that stock are subsequently taken

will not be cause for enforcement action provided that all procedures

required by the applicable regulations have been followed.

(x) Vessel and operator permit holders must not intentionally

deploy a purse seine net on or encircle dolphins intentionally:

(A) when the vessel's DML, as adjusted, is reached or exceeded; or

(B) after the date and time provided in actual notification or

notice in the Federal Register by the Administrator, Southwest Region,

based upon the best available evidence, that intentional sets on

dolphins must cease because the total of the DMLs assigned to the U.S.

fleet has been reached or exceeded, or is expected to be exceeded in

the near future in the absence of the notification to cease intentional

sets on dolphins.

(xi) Sanctions recommended by the International Review Panel for

any violation of these rules will be considered by NMFS and NOAA in

enforcement actions brought under these regulations.

(xii) Intentionally deploying a purse seine net on, or to encircle,

dolphins after a vessel's DML, as adjusted, has been reached will

disqualify the vessel from consideration for a DML for the

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.

hins 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 will be immediately returned to the

environment where captured without further injury, using release

procedures such as hand rescue, and aborting the set at the earliest

effective opportunity; the use of one or more rafts and facemasks or

viewboxes to aid in the rescue of dolphins is recommended.

(e) Observers--(1) The holder of a vessel permit must allow an

observer duly authorized by the Administrator, Southwest Region, to

accompany the vessel on all fishing trips in the ETP for the purpose of

conducting research and observing operations, including collecting

information that may be used in civil or criminal penalty proceedings,

forfeiture actions, or permit or certificate sanctions.

e) Observers--(1) The holder of a vessel permit must allow an

observer duly authorized by the Administrator, Southwest Region, to

accompany the vessel on all fishing trips in the ETP for the purpose of

conducting research and observing operations, including collecting

information that may be used in civil or criminal penalty proceedings,

forfeiture actions, or permit or certificate sanctions.

(2) Research and observation duties will be carried out in such a

manner as to minimize interference with commercial fishing operations.

Observers must be provided access to vessel personnel and to dolphin

safety gear and equipment, electronic navigation equipment, radar

displays, high powered binoculars, and electronic communication

equipment. The navigator must provide true vessel locations by latitude

and longitude, accurate to the nearest minute, upon request by the

observer. Observers must be provided with adequate space on the bridge

or pilothouse for clerical work, as well as space on deck adequate for

carrying out observer duties. No vessel owner, master, operator, or

crew member of a permitted vessel may impair, or in any way interfere

with, the research or observations being carried out. Masters must

allow observers to report, in coded form, information by radio

concerning the take of marine mammals and other observer collected data

upon request of the observer.

(3) Any marine mammals killed during fishing operations that are

accessible to crewmen and requested from the permit holder or master by

the observer must be brought aboard the vessel and retained for

biological processing, until released by the observer for return to the

ocean. Whole marine mammals or marine mammal parts designated as

biological specimens by the observer must be retained in cold storage

aboard the vessel until retrieved by authorized personnel of NMFS or

the IATTC when the vessel returns to port for unloading.

* * * * *

r must be brought aboard the vessel and retained for

biological processing, until released by the observer for return to the

ocean. Whole marine mammals or marine mammal parts designated as

biological specimens by the observer must be retained in cold storage

aboard the vessel until retrieved by authorized personnel of NMFS or

the IATTC when the vessel returns to port for unloading.

* * * * *

(f) * * *

(2)(i) HTS numbers requiring a fisheries certificate of origin,

subject to yellowfin tuna embargo. The following U.S. Harmonized Tariff

Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna

products that are harvested in the ETP purse seine fishery and imported

into the United States. All shipments containing tuna or tuna products

imported into the United States under these HTS numbers must be

accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370.

Yellowfin tuna harvested using a purse seine in the ETP, if exported

from a nation with purse seine vessels that fish for tuna in the ETP,

may not be imported into the United States unless the nation has an

affirmative finding under paragraph (f)(9) of this section.

(A) Frozen:

0303.42.00.20 Yellowfin tuna, whole, frozen.

0303.42.00.40 Yellowfin tuna, eviscerated, head on, frozen.

0303.42.00.60 Yellowfin tuna, other, frozen.

(B) Canned:

1604.14.10.00 Tuna, non-specific, in airtight containers, in oil.

1604.14.20.40 Tuna, other than albacore, not over 7kg, in airtight

containers.

1604.14.30.40 Tuna, other than albacore, in airtight containers,

not in oil, over quota.

(C) Loins:

1604.14.40.00 Tuna, not in airtight containers, not in oil, over

6.8 kg.

1604.14.50.00 Tuna, other, not in airtight containers.

(D) Other (only if the product contains tuna):

0304.10.40.99 Other fish, fillets and other fish meat, fresh or

chilled.

0304.20.20.66 Other fish, fillets, skinned, in blocks weighing over

4.5kg, frozen.

0304.20.60.99 Other fish, fillets, frozen

quota.

(C) Loins:

1604.14.40.00 Tuna, not in airtight containers, not in oil, over

6.8 kg.

1604.14.50.00 Tuna, other, not in airtight containers.

(D) Other (only if the product contains tuna):

0304.10.40.99 Other fish, fillets and other fish meat, fresh or

chilled.

0304.20.20.66 Other fish, fillets, skinned, in blocks weighing over

4.5kg, frozen.

0304.20.60.99 Other fish, fillets, frozen.

0304.90.10.89 Other fish meat, in bulk or immediate containers,

fresh or chilled.

0304.90.90.92 Other fish meat, fresh or chilled.

(ii) HTS numbers requiring a fisheries certificate of origin, not

subject to yellowfin tuna embargo. The following HTS numbers identify

tuna or tuna products, other than fresh tuna or tuna identified in

paragraph (f)(2)(i) of this section, known to be imported into the

United States. All shipments imported into the United States under

these HTS numbers must be accompanied by a Fisheries Certificate of

Origin (FCO), NOAA Form 370. The shipment may not be imported into the

United States if harvested by a large-scale driftnet nation, unless

accompanied by the official statement described in paragraph (f)(5)(x)

of this section.

(A) Frozen:

0303.41.00.00 Albacore or longfinned tunas, frozen.

0303.43.00.00 Skipjack, frozen.

0303.49.00.20 Bluefin, frozen.

0303.49.00.40 Other tuna, frozen.

(B) Canned:

1604.14.20.20 Albacore tuna, in airtight containers, not in oil,

not over 7kg, in quota.

1604.14.30.20 Albacore tuna, in airtight containers, not in oil,

not in quota.

escribed in paragraph (f)(5)(x)

of this section.

(A) Frozen:

0303.41.00.00 Albacore or longfinned tunas, frozen.

0303.43.00.00 Skipjack, frozen.

0303.49.00.20 Bluefin, frozen.

0303.49.00.40 Other tuna, frozen.

(B) Canned:

1604.14.20.20 Albacore tuna, in airtight containers, not in oil,

not over 7kg, in quota.

1604.14.30.20 Albacore tuna, in airtight containers, not in oil,

not in quota.

(iii) Exports from driftnet nations only: HTS numbers requiring a

fisheries certificate of origin and official certification. The

following HTS numbers identify categories of fish and shellfish, other

than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this

section, known to have been harvested using a large-scale driftnet and

imported into the United States. Shipments exported from a large-scale

driftnet nation and imported into the United States under any of the

HTS numbers listed in paragraph (f)(2) of this section must be

accompanied by an FCO and the official statement described in paragraph

(f)(5)(x) of this section.

(A) Frozen:

0303.10.00.12 Salmon, chinook, frozen.

0303.10.00.22 Salmon, chum, frozen.

0303.10.00.32 Salmon, pink, frozen.

0303.10.00.42 Salmon, sockeye, frozen.

0303.10.00.52 Salmon, coho, frozen.

0303.10.00.62 Salmon, Pacific, non-specific, frozen.

0303.21.00.00 Trout, frozen.

0303.22.00.00 Salmon, Atlantic and Danube, frozen.

0303.29.00.00 Salmonidae, other, frozen.

0303.75.00.10 Dogfish, frozen.

0303.75.00.90 Other sharks, frozen.

0303.79.20.41 Swordfish steaks, frozen

0303.79.20.49 Swordfish, other, frozen.

0303.79.40.96 Fish, other, frozen.

0304.20.20.66 Fish, fillet, skinned, in blocks frozen over 4.5

kg.

0304.20.60.08 Salmonidae, salmon fillet, frozen.

0304.20.60.99 Fish, fillet, frozen.

0307.49.00.10 Squid, other, fillet, frozen.

(B) Canned:

0303.75.00.10 Dogfish, frozen.

0303.75.00.90 Other sharks, frozen.

0303.79.20.41 Swordfish steaks, frozen

0303.79.20.49 Swordfish, other, frozen.

0303.79.40.96 Fish, other, frozen.

0304.20.20.66 Fish, fillet, skinned, in blocks frozen over 4.5

kg.

0304.20.60.08 Salmonidae, salmon fillet, frozen.

0304.20.60.99 Fish, fillet, frozen.

0307.49.00.10 Squid, other, fillet, frozen.

(B) Canned:

1604.11.20.20 Salmon, pink, canned in oil, in airtight

containers.

1604.11.20.30 Salmon, sockeye, canned in oil, in airtight

containers.

1604.11.20.90 Salmon, other, canned in oil, in airtight

containers.

1604.11.40.10 Salmon, chum, canned, not in oil.

1604.11.40.20 Salmon, pink, canned, not in oil.

1604.11.40.30 Salmon, sockeye, canned, not in oil.

1604.11.40.40 Salmon, other, canned, not in oil.

1604.11.40.50 Salmon, other, canned, not in oil.

1604.19.20.00 Fish, other, in airtight containers, not in oil.

1604.19.30.00 Fish, other, in airtight containers, in oil.

1605.90.60.55 Squid, loligo, prepared/preserved.

(C) Other:

0304.10.40.99 Other fish, fillets and other fish meat, fresh or

chilled.

0304.20.20.66 Other fish, fillets, skinned, in blocks weighing

over 4.5kg, frozen.

0304.20.60.98 Other fish, fillets, frozen.

0304.90.10.89 Other fish, fillets and fish meat, in bulk or in

immediate containers, fresh or chilled.

0304.90.90.92 Other fish meat, fresh or chilled.

0305.30.60.80 Fish, non-specific, fillet. dried/salted/brine.

0305.49.40.40 Fish, non-specific, smoked.

0305.59.20.00 Shark fins.

0305.59.40.00 Fish, non-specific, dried.

0305.69.40.00 Salmon, non-specific, salted.

0305.69.50.00 Fish, non-specific, in immediate containers,

salted, not over 6.8kg.

0305.69.60.00 Fish, non-specific, salted, other.

0307.49.00.50 Squid, non-specific, frozen/dried/salted/brine.

0307.49.00.60 Squid, non-specific, & cuttle fish frozen/dried/

salted/brine.

c, smoked.

0305.59.20.00 Shark fins.

0305.59.40.00 Fish, non-specific, dried.

0305.69.40.00 Salmon, non-specific, salted.

0305.69.50.00 Fish, non-specific, in immediate containers,

salted, not over 6.8kg.

0305.69.60.00 Fish, non-specific, salted, other.

0307.49.00.50 Squid, non-specific, frozen/dried/salted/brine.

0307.49.00.60 Squid, non-specific, & cuttle fish frozen/dried/

salted/brine.

(3) Imports requiring a fisheries certificate of origin.

Shipments containing the following may not be imported into the

United States unless a completed FCO is filed with the Customs Service

at the time of importation:

(i) Tuna classified under an HTS number listed in paragraphs

(f)(2)(i) or (f)(2)(ii) of this section, or

(ii) Fish classified under an HTS number listed in paragraph (f)(2)

of this section that was harvested by a vessel of a large-scale

driftnet nation, as identified under paragraph (f)(8) of this section.

(4) Disposition of fisheries certificates of origin. The FCO form

described in paragraph (f)(5) of this section may be obtained from the

Administrator, Southwest Region, or downloaded from the Internet at

http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph

(f)(3) of this section must accompany the tuna or tuna products from

entry into the United States, through final processing for wholesale or

retail sale, and it must be endorsed at each change in ownership. FCOs

that require multiple endorsements must be submitted to the

Administrator, Southwest Region, by the last endorser when all required

endorsements are completed. An invoice must accompany the shipment at

the time of importation or, in the alternative, must be made available

within 30 days of a request by the Secretary or the Administrator,

Southwest Region, to produce the invoice.

(5) Contents of fisheries certificate of origin. An FCO, certified

to be accurate by the first exporter of the accompanying shipment, must

include the following information:

n invoice must accompany the shipment at

the time of importation or, in the alternative, must be made available

within 30 days of a request by the Secretary or the Administrator,

Southwest Region, to produce the invoice.

(5) Contents of fisheries certificate of origin. An FCO, certified

to be accurate by the first exporter of the accompanying shipment, must

include the following information:

(i) Exporter's full name and complete address;

(ii) Consignee's full name and complete address;

(iii) Species description (common and scientific names), product

form, and HTS number;

(iv) Quantity in kilograms of the fish or fish products;

(v) Ocean area where the fish were harvested (ETP, Western Pacific

Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian

Ocean, or other);

(vi) Type of fishing gear used to harvest the fish (purse seine,

longline, baitboat, large-scale driftnet, gillnet, trawl, pole and

line, or other);

(vii) Country under whose laws the harvesting vessel operated based

upon the flag of the vessel or, if a certified charter vessel, the

country that accepted responsibility for the vessel's fishing

operations;

(viii) Dates on which the fishing trip began and ended;

(ix) If the shipment includes tuna or products from tuna harvested

with a purse seine net in the eastern tropical Pacific, the name of the

harvesting vessel; and

(x) For shipments harvested by vessels of a nation known to use

large-scale driftnets, as determined by the Secretary pursuant to

paragraph (f)(8) of this section, a statement must be included on the

Fisheries Certificate of Origin, or by separate attachment, that is

dated and signed by a responsible government official of the harvesting

nation, certifying that the fish or fish products were harvested by a

method other than large-scale driftnet.

n to use

large-scale driftnets, as determined by the Secretary pursuant to

paragraph (f)(8) of this section, a statement must be included on the

Fisheries Certificate of Origin, or by separate attachment, that is

dated and signed by a responsible government official of the harvesting

nation, certifying that the fish or fish products were harvested by a

method other than large-scale driftnet.

(6) Dolphin-safe label. Tuna or tuna products sold in or exported

from the United States that include on the label the term ``dolphin-

safe'' or any other term or symbol that claims or suggests the tuna

were harvested in a manner not injurious to dolphins are subject to the

requirements of subpart H of this part.

(7) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin

tuna or yellowfin tuna products harvested using a purse seine in the

ETP identified by an HTS number listed in paragraph (f)(2)(i) of this

section may not be imported into the United States if such tuna or tuna

products were:

(A) Harvested on or after the effective date of section 4 of the

IDCPA by, or exported from, a nation that the Assistant Administrator

has determined has purse seine vessels of greater than 400 st (362.8

mt) carrying capacity harvesting tuna in the ETP, unless the Assistant

Administrator has made an affirmative finding required for importation

for that nation under paragraph (f)(9) of this section;

(B) Exported from an intermediary nation, as defined in section 3

of the MMPA, and a ban is currently in force prohibiting the

importation from that nation under paragraph (f)(9)(viii) of this

section; or

(C) Harvested before the effective date of section 4 of the IDCPA

and would have been banned from importation under the section 101

for that nation under paragraph (f)(9) of this section;

(B) Exported from an intermediary nation, as defined in section 3

of the MMPA, and a ban is currently in force prohibiting the

importation from that nation under paragraph (f)(9)(viii) of this

section; or

(C) Harvested before the effective date of section 4 of the IDCPA

and would have been banned from importation under the section 101

(a)(2) of the MMPA at the time of harvest.

(ii) Driftnet embargo. A shipment containing an item listed in

paragraph (f)(2) of this section may not be imported into the United

States that:

(A) Was exported from or harvested on the high seas by any nation

determined by the Assistant Administrator to be engaged in large-scale

driftnet fishing, unless the FCO is accompanied by an original

statement by a responsible government official of the harvesting

nation, signed and dated by that official, certifying that the fish or

fish products were harvested by a method other than large-scale

driftnet; or

(B) Is identified on the FCO as harvested by a large-scale

driftnet.

(8) Large-scale driftnet nation: determination. Based upon the best

information available, the Assistant Administrator will determine which

nations have registered vessels that engage in fishing using large-

scale driftnets. Such determinations will be published in the Federal

Register. A responsible government official of any such nation may

certify to the Assistant Administrator that none of the nation's

vessels use large-scale driftnets. Upon receipt of the certification,

the Assistant

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.

blished 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 yellowfin tuna harvested

using a purse seine in the ETP. (i) The Assistant Administrator will

determine whether to make an affirmative finding based upon documentary

evidence provided by the government of the exporting nation, by the

government of the harvesting nation, if different, and by the IDCP and

the IATTC, and will publish the finding in the Federal Register. An

affirmative finding applies to tuna and tuna products that were

harvested by vessels of the nation after the effective date of section

4 of the IDCPA. To make an affirmative finding, the Assistant

Administrator must find that:

(A) The harvesting nation participates in the IDCP and is either a

member of the IATTC or has initiated (and within 6 months thereafter

completed) all steps required of applicant nations, in accordance with

article V, paragraph 3, of the Convention establishing the IATTC, to

become a member of that organization;

(B) The nation is meeting its obligations under the IDCP and its

obligations of membership in the IATTC, including all financial

obligations; and

(C) The annual total dolphin mortality and the annual per-stock

per-year dolphin mortality of the nation's purse seine fleet (including

certified charter vessels operating under its jurisdiction) did not

exceed the aggregated total of the mortality limits assigned by the

IDCP for that nation's purse seine vessels for the year preceding the

year in which the finding would start.

igations; and

(C) The annual total dolphin mortality and the annual per-stock

per-year dolphin mortality of the nation's purse seine fleet (including

certified charter vessels operating under its jurisdiction) did not

exceed the aggregated total of the mortality limits assigned by the

IDCP for that nation's purse seine vessels for the year preceding the

year in which the finding would start.

(ii) Documentary evidence and compliance with the IDCP.--(A)

Documentary evidence. The Assistant Administrator will make an

affirmative finding under paragraph (f)(9)(i) of this section only if

the government of the harvesting nation provides directly to the

Assistant Administrator, or authorizes the IATTC to release to the

Assistant Administrator, complete, accurate, and timely information

that enables the Assistant Administrator to determine whether the

harvesting nation is meeting the obligations of the IDCP, and whether

ETP-harvested tuna imported from such nation comports with the tracking

and verification regulations of subpart H of this part.

(B) Revocation. After considering the information provided under

paragraph (f)(9)(ii)(A) of this section, each party's funding of the

IATTC, and any other relevant information, including information that a

nation is consistently failing to take enforcement actions on

violations which diminish the effectiveness of the IDCP, the Assistant

Administrator, in consultation with the Secretary of State, will revoke

an affirmative finding issued to a nation that is not meeting the

obligations of the IDCP.

(iii) A harvesting nation may apply for an affirmative finding at

any time by providing to the Assistant Administrator the information

and authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of

this section, allowing at least 60 days from the submission of complete

information to NMFS for processing.

ative finding issued to a nation that is not meeting the

obligations of the IDCP.

(iii) A harvesting nation may apply for an affirmative finding at

any time by providing to the Assistant Administrator the information

and authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of

this section, allowing at least 60 days from the submission of complete

information to NMFS for processing.

(iv) The Assistant Administrator will make or renew an affirmative

finding for the period from April 1 through March 31, or portion

thereof, if the harvesting nation has provided all the information and

authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this

section, and met the requirements of paragraphs (f)(9)(i) and

(f)(9)(ii) of this section.

(v) Period of validity. A finding will remain valid for 1 year or

for such other period as the Assistant Administrator may determine. An

affirmative finding will be terminated if the Assistant Administrator

determines that the requirements of this paragraph are no longer being

met.

(vi) Reconsideration of finding. The Assistant Administrator may

reconsider a finding upon a request from, and the submission of

additional information by, the harvesting nation, if the information

indicates that the nation has met the requirements under paragraphs

(f)(9)(i) and (f)(9)(ii) of this section.

(vii) Verification. The Assistant Administrator may require the

submission of supporting documentation or other verification of

statements made in connection with requests to allow importations.

nd the submission of

additional information by, the harvesting nation, if the information

indicates that the nation has met the requirements under paragraphs

(f)(9)(i) and (f)(9)(ii) of this section.

(vii) Verification. The Assistant Administrator may require the

submission of supporting documentation or other verification of

statements made in connection with requests to allow importations.

(viii) Intermediary nation. Except as authorized under this

paragraph (f)(9)(viii), any tuna or tuna products in the

classifications listed in paragraph (f)(2)(i) of this section from any

intermediary nation, as that term is defined in section 3 of the MMPA,

may not be imported into the United States, unless shown not to be

yellowfin tuna or yellowfin tuna products harvested by purse seine in

the ETP. Imports from an intermediary nation of tuna and tuna products

in these classifications may be imported into the United States if the

Assistant Administrator determines and publishes in the Federal

Register that the intermediary nation has provided certification and

reasonable proof that it has not imported in the preceding 6 months

yellowfin tuna or yellowfin tuna products that are subject to a ban on

direct importation into the United States under section 101(a)(2)(B) of

the MMPA. Shipments of yellowfin tuna or yellowfin tuna products

through a nation on a through bill of lading or in another manner that

does not enter the shipments into that nation as an importation do not

make that nation an intermediary nation. The Assistant Administrator

will review decisions under this paragraph (f)(9)(viii) upon the

request of an intermediary nation. Such requests must be accompanied by

specific and detailed supporting information or documentation

indicating that a review or reconsideration is warranted

does not enter the shipments into that nation as an importation do not

make that nation an intermediary nation. The Assistant Administrator

will review decisions under this paragraph (f)(9)(viii) upon the

request of an intermediary nation. Such requests must be accompanied by

specific and detailed supporting information or documentation

indicating that a review or reconsideration is warranted. For purposes

of this paragraph (f)(9)(viii), the term ``certification and reasonable

proof'' means the submission to the Assistant Administrator by a

responsible government official from the nation of a document

reflecting the nation's customs records for the preceding 6 months,

together with a certification attesting that the document is accurate.

(ix) Pelly certification. After 6 months of an embargo being in

place against a nation under this section, that fact will be certified

to the President for purposes of certification under section 8(a) of

the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long

as the embargo remains in effect.

(x) Coordination. The Assistant Administrator will promptly advise

the Department of State and the Department of the Treasury of embargo

decisions, actions and finding determinations.

* * * * *

(12) Dolphin-safe requirements.--(i) It is unlawful for any person

to sell, purchase, offer for sale, transport, or ship in the United

States, any tuna or tuna products unless the tuna products are either

dolphin-safe or otherwise are covered by an affirmative finding made

under paragraphs (f)(9)(i) through (f)(9)(v) of this section.

(ii) For purposes of this section, tuna or tuna products are

dolphin-safe if they are dolphin-safe under subpart H of this part.

sell, purchase, offer for sale, transport, or ship in the United

States, any tuna or tuna products unless the tuna products are either

dolphin-safe or otherwise are covered by an affirmative finding made

under paragraphs (f)(9)(i) through (f)(9)(v) of this section.

(ii) For purposes of this section, tuna or tuna products are

dolphin-safe if they are dolphin-safe under subpart H of this part.

(g) Penalties. Any person or vessel subject to the jurisdiction of

the United States will be subject to the penalties provided for under

the MMPA for the conduct of fishing operations in violation of these

regulations.

4. In Subpart D, a new Sec. 216.46, is added to read as follows:

Sec. 216.46 U.S. citizens on foreign flag vessels operating under the

International Dolphin Conservation Program.

The MMPA's provisions will not apply to a citizen of the United

States who incidentally takes any marine mammal during fishing

operations in the ETP which are outside the U.S. exclusive economic

zone (as defined in section 3 of the Magnuson-Stevens Fishery

Conservation and Management Act (16 U.S.C. Sec. 1802)), while employed

on a fishing vessel of a harvesting nation that has an affirmative

finding under Sec. 216.24(f) based upon the harvesting nation's

participation in, and compliance with, the IDCP.

5. Sections 216.90 through 216.94 are revised to read as follows:

Sec. 216.90 Purposes.

This subpart governs the requirements for labeling tuna or tuna

products offered for sale in or exported from the United States that

uses the term ``dolphin-safe'' or that suggests the tuna were harvested

in a manner not injurious to dolphins, or that uses any label or mark

that refers to dolphins, porpoises, or marine mammals other than the

official mark described in Sec. 216.96.

Sec. 216.91 Labeling requirements.

requirements for labeling tuna or tuna

products offered for sale in or exported from the United States that

uses the term ``dolphin-safe'' or that suggests the tuna were harvested

in a manner not injurious to dolphins, or that uses any label or mark

that refers to dolphins, porpoises, or marine mammals other than the

official mark described in Sec. 216.96.

Sec. 216.91 Labeling requirements.

(a) It is a violation of section 5 of the Federal Trade Commission

Act (15 U.S.C. 45) for any producer, importer, exporter, distributor,

or seller of any tuna products that are exported from or offered for

sale in the United States to include on the label of those products the

term ``dolphin-safe'' or any other term or symbol that claims or

suggests that the tuna contained in the products were harvested using a

method of fishing that is not harmful to dolphins if the products

contain tuna harvested:

(1) By a vessel engaged in large-scale driftnet fishing;

(2) Outside the ETP by a vessel using a purse seine net:

(i) In a fishery in which the Assistant Administrator has

determined that a regular and significant association occurs between

dolphins and tuna (similar to the association between dolphins and tuna

in the ETP), unless such products are accompanied by a written

statement, executed by the captain of the vessel and an observer

participating in a national or international program acceptable to the

Assistant Administrator, certifying that no purse seine net was

intentionally deployed on or used to encircle dolphins during the

particular voyage on which the tuna were caught and no dolphins were

killed or seriously injured in the sets in which the tuna were caught;

or

(ii) In any other fishery unless the products are accompanied by a

written statement executed by the captain of the vessel certifying that

no purse seine net was intentionally deployed on or used to encircle

dolphins during the particular voyage on which the tuna was harvested;

the tuna were caught and no dolphins were

killed or seriously injured in the sets in which the tuna were caught;

or

(ii) In any other fishery unless the products are accompanied by a

written statement executed by the captain of the vessel certifying that

no purse seine net was intentionally deployed on or used to encircle

dolphins during the particular voyage on which the tuna was harvested;

(3) In the ETP by a purse seine vessel of greater than 400 st

(362.8 mt) carrying capacity unless the tuna meets the requirements for

being considered dolphin-safe under Secs. 216.92 and 216.94; or

(4) By a vessel in a fishery other than one described in paragraphs

(a)(1), (a)(2), or (a)(3) of this section that is identified by the

Assistant Administrator as having a regular and significant mortality

or serious injury of dolphins, unless such product is accompanied by a

written statement, executed by the captain of the vessel and an

observer participating in a national or international program

acceptable to the Assistant Administrator, that no dolphins were killed

or seriously injured in the sets or other gear deployments in which the

tuna were caught, provided that the Assistant Administrator determines

that such an observer statement is necessary.

(b) It is a violation of section 5 of the Federal Trade Commission

Act (15 U.S.C. 45) to willingly and knowingly use a label referred to

in this section in a campaign or effort to mislead or deceive consumers

about the level of protection afforded dolphins under the IDCP.

Sec. 216.92 Tuna products harvested in the ETP by purse seine vessels

greater than 400 st (362.8 mt) carrying capacity.

.

(b) It is a violation of section 5 of the Federal Trade Commission

Act (15 U.S.C. 45) to willingly and knowingly use a label referred to

in this section in a campaign or effort to mislead or deceive consumers

about the level of protection afforded dolphins under the IDCP.

Sec. 216.92 Tuna products harvested in the ETP by purse seine vessels

greater than 400 st (362.8 mt) carrying capacity.

(a) For purposes of Sec. 216.91(a)(3), tuna products that contain

tuna harvested in the ETP by a purse seine vessel greater than 400 st

(362.8 mt) carrying capacity are dolphin-safe if accompanied by:

(1) A completed FCO;

(2) A written statement executed by the captain providing the

certification required under paragraph (b) of this section;

(3) A written statement certifying that an observer approved by the

IDCP was on board the vessel during the entire trip and that such

observer provided the certification required under paragraph (b) of

this section. The statement must be signed by:

(i) The Assistant Administrator or his/her designee; or

(ii) A representative of the IATTC; or

(iii) An authorized representative of a nation participating in the

IDCP whose national observer program meets the requirements of the

IDCP; or

(iv) An authorized representative of an international

organization's observer program approved by the IDCP; and

(4) An endorsement on the FCO by each exporter, importer, and

processor certifying that, to the best of his or her knowledge and

belief, the FCO and attached documentation are complete and accurate.

(b) Certifications. (1) Both the written certifications of the

captain and the observer must state that:

presentative of an international

organization's observer program approved by the IDCP; and

(4) An endorsement on the FCO by each exporter, importer, and

processor certifying that, to the best of his or her knowledge and

belief, the FCO and attached documentation are complete and accurate.

(b) Certifications. (1) Both the written certifications of the

captain and the observer must state that:

(i) No tuna were caught on the trip in which such tuna were

harvested using a purse seine net intentionally deployed on or to

encircle dolphins; or

(ii) No dolphins were killed or seriously injured during the sets

in which the tuna were caught.

(2) After the date set by the Assistant Administrator in a notice

in the Federal Register announcing an initial finding that does not

conclude that the intentional deployment of purse seine nets on or

encirclement of dolphins is having a significant adverse impact on any

depleted dolphin stock, the written certifications of the captain and

the observer need only provide the statement required in paragraph

(b)(1)(ii) of this section.

(3) If, after publishing notification under paragraph (b)(2) of

this section, the Assistant Administrator publishes notification in the

Federal Register announcing a subsequent finding that the intentional

deployment of purse seine nets on or encirclement of dolphins is having

a significant adverse impact on any depleted stock, the written

certifications of the captain and the observer must provide all of the

statements set forth in paragraph (b)(1) of this section commencing

with the effective date provided in the notice.

Sec. 216.93 Submission of documentation.

The documents required by Sec. 216.91 and Sec. 216.92 must

accompany the tuna product whenever it is offered for sale or export,

except that these documents need not accompany the product when offered

for sale if:

st provide all of the

statements set forth in paragraph (b)(1) of this section commencing

with the effective date provided in the notice.

Sec. 216.93 Submission of documentation.

The documents required by Sec. 216.91 and Sec. 216.92 must

accompany the tuna product whenever it is offered for sale or export,

except that these documents need not accompany the product when offered

for sale if:

(a) The documents do not require further endorsement by any

importer or processor, and are submitted to officials of the U.S.

Customs Service at the time of import; or

(b) the documents are endorsed as required by Sec. 216.92 (a)(4)

and the final processor must deliver the endorsed documents to the

Administrator, Southwest Region, or to U.S. Customs as required.

Sec. 216.94 Tracking and verification program.

The Administrator, Southwest Region, has established a tracking and

verification program to accurately document the ``dolphin-safe''

condition of tuna as it is fished, processed, and sold to wholesale and

retail markets in the United States and throughout the world. The

tracking program includes procedures and reports for use when importing

tuna into the U.S. and during domestic purse seine fishing, processing,

and marketing in the U.S. and abroad. Verification of tracking system

operations is attained through the establishment of audit and document

review requirements.

(a) Tracking fishing operations. (1) During ETP fishing trips by

purse seine vessels, tuna caught in sets designated as ``dolphin-safe''

by the vessel observer must be stored separately from tuna caught in

``non-dolphin-safe'' sets from the time of capture through unloading,

except as provided in paragraph (a)(2) of this section. Vessel

personnel will decide into which wells tuna will be loaded. The

observer will initially designate whether each set is ``dolphin-safe''

or not, based on his/her observation of the set

in-safe''

by the vessel observer must be stored separately from tuna caught in

``non-dolphin-safe'' sets from the time of capture through unloading,

except as provided in paragraph (a)(2) of this section. Vessel

personnel will decide into which wells tuna will be loaded. The

observer will initially designate whether each set is ``dolphin-safe''

or not, based on his/her observation of the set. The observer will

initially identify a vessel fish well as ``dolphin-safe'' if the first

tuna loaded into the well during a trip was captured in a set in which

no dolphin died or was seriously injured. The observer will initially

identify a vessel fish well as ``non-dolphin-safe'' if the first tuna

loaded into the well during a trip was captured in a set in which a

dolphin died or was seriously injured. Any tuna loaded into a well

previously designated ``non-dolphin-safe'' or ``mixed well'' is

considered ``non-dolphin-safe'' tuna. Except as provided for in

paragraph (a)(2) of this section, the observer will change the

designation of a ``dolphin-safe'' well to ``non-dolphin-safe'' if any

tuna are loaded into the well that were captured in a set in which a

dolphin died or was seriously injured. The well designation ``dolphin-

safe'' may change during a trip; however, a well designation of ``non-

dolphin-safe'' cannot be changed for the duration of the trip.

(2) In the event that a set has been designated ``dolphin-safe'' by

the observer, but late in the loading process dolphin mortality or

serious injury is identified, the ``dolphin-safe'' designation of the

set will change to ``non-dolphin-safe.'' If one or more of the wells

into which the newly designated ``non-dolphin-safe'' tuna are loaded

already contains ``dolphin-safe'' tuna loaded during a previous set,

the observer will note in his or her trip records the well numbers and

the estimated weight of such ``dolphin-safe'' tuna and designate such

well(s) as ``mixed well(s).'' Once a well has been identified as ``non-

dolphin-safe'' or ``mixed'' al

of the wells

into which the newly designated ``non-dolphin-safe'' tuna are loaded

already contains ``dolphin-safe'' tuna loaded during a previous set,

the observer will note in his or her trip records the well numbers and

the estimated weight of such ``dolphin-safe'' tuna and designate such

well(s) as ``mixed well(s).'' Once a well has been identified as ``non-

dolphin-safe'' or ``mixed'' all tuna subsequently loaded into that well

will be designated as ``non-dolphin-safe.'' When the contents of such a

``mixed well'' are received by a processor, the tuna will be weighed

and separated according to the observer's report of the estimated

weight of ``dolphin-safe'' and ``non-dolphin-safe'' tuna contained in

that well.

(3) Tuna tracking form. The observer will keep an IATTC tuna

tracking form upon which an entry will be made for each set that

includes identification by well number of ``dolphin-safe,'' ``non-

dolphin-safe,'' and ``mixed'' wells; weights by species composition,

estimated tons loaded, set number, date of loading, trip number and

dates, observer name, captain name, vessel name.

(i) The Captain, managing owner, or vessel agent of a purse seine

vessel returning to port from a trip, any part of which included

fishing in the ETP, must provide at least 48 hours notice of the

vessel's intended place of landing, arrival time, and schedule of

unloading to the Administrator, Southwest Region.

(ii) A NMFS representative may meet the vessel to receive the IATTC

tuna tracking form(s) from the vessel captain and to monitor the

handling of ``dolphin-safe'' and ``non-dolphin-safe'' tuna.

(iii) The Captain must submit the completed, signed IATTC tuna

tracking form that covers all tuna on board to the NMFS representative

in person, or by mail to the Administrator, Southwest Region, within 5

working days of the end of the trip.

vessel to receive the IATTC

tuna tracking form(s) from the vessel captain and to monitor the

handling of ``dolphin-safe'' and ``non-dolphin-safe'' tuna.

(iii) The Captain must submit the completed, signed IATTC tuna

tracking form that covers all tuna on board to the NMFS representative

in person, or by mail to the Administrator, Southwest Region, within 5

working days of the end of the trip.

(4) Tuna off-loaded to trucks, storage facilities or carrier

vessels must be loaded or stowed in such a way as to maintain and

safeguard the identification of the ``dolphin-safe'' or ``non-dolphin-

safe'' designation of the tuna as it left the fishing vessel.

(b) Tracking cannery operations. (1) Whenever a tuna canning

company is scheduled to receive a domestic or imported shipment of ETP-

caught tuna for processing, the company must provide at least 48 hours

notice of the location and arrival date and time of such a shipment, to

the Administrator, Southwest Region, so that a NMFS representative can

be present to monitor delivery and verify that ``dolphin-safe'' and

``non-dolphin-safe'' tuna are clearly identified and remain segregated.

(2) At the close of delivery activities, which may include

weighing, boxing or containerizing, and transfer to cold storage or

processing, the company must provide a copy of the processor's

receiving report to the NMFS representative, if present. If a NMFS

representative is not present, the company must submit a copy of the

processor's receiving report to the Administrator, Southwest Region, by

mail or fax within 5 working days. The processor's receiving report

must contain, at a minimum: date of delivery, catcher vessel name and

flag, trip number and dates, storage container number(s), ``dolphin-

safe'' or ``non-dolphin-safe'' designation of each container, species,

fish condition, and weight of tuna in each container.

or's receiving report to the Administrator, Southwest Region, by

mail or fax within 5 working days. The processor's receiving report

must contain, at a minimum: date of delivery, catcher vessel name and

flag, trip number and dates, storage container number(s), ``dolphin-

safe'' or ``non-dolphin-safe'' designation of each container, species,

fish condition, and weight of tuna in each container.

(3) Tuna canning companies will report on a monthly basis the

amounts of ETP-caught tuna that are removed from cold storage. This

report may be submitted in conjunction with the monthly report required

in paragraph (b)(5) of this section. This report must contain:

(i) The date of removal;

(ii) Storage container number(s) and ``dolphin-safe'' or ``non-

dolphin-safe'' designation of each container; and

(iii) Details of the disposition of fish (for example, canning,

sale, rejection, etc.).

(4) During canning activities, ``non-dolphin-safe'' tuna may not be

mixed in any manner or at any time in its processing with any

``dolphin-safe'' tuna or tuna products and may not share the same

storage containers, cookers, conveyers, tables, or other canning and

labeling machinery.

(5) Canned tuna processors must submit a report to the

Administrator, Southwest Region, of all tuna received at their

processing facilities in each calendar month whether or not the tuna is

actually canned or stored during that month. Monthly cannery receipt

reports must be submitted electronically or by mail before the last day

of the month following the month being reported. Monthly reports must

contain the following information:

report to the

Administrator, Southwest Region, of all tuna received at their

processing facilities in each calendar month whether or not the tuna is

actually canned or stored during that month. Monthly cannery receipt

reports must be submitted electronically or by mail before the last day

of the month following the month being reported. Monthly reports must

contain the following information:

(i) Domestic receipts: species, condition (round, loin, dressed,

gilled and gutted, other), weight in short tons to the fourth decimal,

ocean area of capture (eastern tropical Pacific, western Pacific,

Indian, eastern and western Atlantic, other), catcher vessel, trip

dates, carrier name, unloading dates, and location of unloading.

(ii) Import receipts: In addition to the information required in

paragraph (b)(5)(i) of this section, a copy of the FCO for each

imported receipt must be provided.

(c) Tracking imports. All tuna products, except fresh tuna, that

are imported into the United States must be accompanied by a properly

certified FCO as required by Sec. 216.24(f).

(d) Verification requirements.--(1) Record maintenance. Any

exporter,

transshipper, importer, or processor of any tuna or tuna products

containing tuna harvested in the ETP must maintain records related to

that tuna for at least 3 years. These records include, but are not

limited to: FCO and required certifications, any report required in

paragraphs (a) and (b) of this section, invoices, other import

documents, and trip reports.

(2) Record submission. Within 30 days of receiving a written

request from the Administrator, Southwest Region, any exporter,

transshipper, importer, or processor of any tuna or tuna products

containing tuna harvesting in the ETP must submit to the Administrator

any record required to be maintained under paragraph (d)(1) of this

section.

n, invoices, other import

documents, and trip reports.

(2) Record submission. Within 30 days of receiving a written

request from the Administrator, Southwest Region, any exporter,

transshipper, importer, or processor of any tuna or tuna products

containing tuna harvesting in the ETP must submit to the Administrator

any record required to be maintained under paragraph (d)(1) of this

section.

(3) Audits and spot-checks. Upon request of the Administrator,

Southwest Region, any such exporter, transshipper, importer, or

processor must provide the Administrator, Southwest Region, timely

access to all pertinent records and facilities to allow for audits and

spot-checks on caught, landed, and processed tuna.

(e) Confidentiality of proprietary information. Information

submitted to the Assistant Administrator under this section will be

treated as confidential in accordance with NOAA Administrative Order

216-100 ``Protection of Confidential Fisheries Statistics.''

6. In subpart H, Sec. 216.96 is added and reserved as follows:

Sec. 216.96 Official mark. [Reserved]

[FR Doc. 99-15004 Filed 6-9-99; 5:05 pm]

BILLING CODE 3510-22-F