63122 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

Protected Resources and Alaska 

Regional Office, National Marine 

Fisheries Service, 180 days prior to the 

expiration of these regulations with full 

documentation of the methods, results, 

and interpretation of all monitoring 

tasks for launches during all expired 

Letters of Authorization, plus 

preliminary information for launches 

during the first 6 months of the final 

Letter of Authorization.

(5) A revised final technical report, 

including all monitoring results during 

the entire period of the Letter of 

Authorization will be due 90 days after 

the end of the period of effectiveness of 

these regulations.

(6) Both the interim and draft 

comprehensive reports will be subject to 

review and comment by the National 

Marine Fisheries Service. Any 

recommendations made by the National 

Marine Fisheries Service must be 

addressed in the final comprehensive 

report prior to acceptance by the 

National Marine Fisheries Service.

§ 216.235 Letter of Authorization.

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time specified in the Letter 

of Authorization, but a Letter of 

Authorization may not be valid beyond 

the effective period of the regulations.

(b) A Letter of Authorization with a 

period of validity less than the effective 

period of the regulations in this subpart 

may be renewed subject to renewal 

conditions in § 216.236.

(c) A Letter of Authorization will set 

forth:

(1) Species of marine mammals 

authorized to be taken;

(2) Permissible methods of incidental 

taking;

(3) Specified geographical region;

(4) Means of effecting the least 

practicable adverse impact on the 

species of marine mammals authorized 

for taking and its habitat; and

(5) Requirements for monitoring and 

reporting incidental takes.

(d) Issuance of a Letter of 

Authorization will be based on a 

determination that the number of 

marine mammals taken by the activity 

will be small, and that the total taking 

by the activity as a whole will have no 

more than a negligible impact on the 

affected species or stocks of marine 

mammal(s).

(e) Notice of issuance or denial of a 

Letter of Authorization will be 

published in the Federal Register

within 30 days of a determination.

§ 216.236 Renewal of a Letter of 

Authorization.

(a) A Letter of Authorization for the 

activity identified in § 216.230(a) will be 

renewed upon:

(1) Notification to the National Marine 

Fisheries Service that the activity 

described in the application for a Letter 

of Authorization submitted under 

§ 216.235 will be undertaken and that 

there will not be a substantial 

modification to the described activity, 

mitigation or monitoring undertaken 

during the upcoming season;

(2) Timely receipt of and acceptance 

by the National Marine Fisheries 

Service of the monitoring reports 

required under § 216.234;

(3) A determination by the National 

Marine Fisheries Service that the 

mitigation, monitoring and reporting 

measures required under §§ 216.232 and 

216.234 and the Letter of Authorization 

were undertaken and will be undertaken 

during the upcoming period of validity 

of a renewed Letter of Authorization; 

and

(4) A determination that the number 

of marine mammals taken by the 

activity will be small and that the total 

taking by the activity will have no more 

than a negligible impact on the affected 

species or stocks of marine mammal(s), 

and that the level of taking will be 

consistent with the findings made for 

the total taking allowable under these 

regulations.

(b) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register within 30 days of a 

determination.

§ 216.237 Modifications to a Letter of 

Authorization.

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to a Letter of Authorization 

issued pursuant to the provisions of this 

subpart shall be made by the National 

Marine Fisheries Service until after 

notification and an opportunity for 

public comment has been provided. A 

renewal of a Letter of Authorization 

under § 216.236 without modification is 

not considered a substantive 

modification.

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the 

well-being of the species or stocks of 

marine mammals specified in 

§ 216.230(b), a Letter of Authorization 

may be substantively modified without 

prior notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register

within 30 days subsequent to the action.

[FR Doc. 04–24234 Filed 10–28–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Parts 216 and 300

[Docket No. 040920271–4271–01; I.D. 

102004A]

RIN 0648–AS05

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Tuna Purse Seine Vessels in the 

Eastern Tropical Pacific Ocean (ETP)

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; collection-ofinformation requirements; request for 

comments.

SUMMARY: NMFS proposes regulations to 

implement resolutions adopted by the 

Inter-American Tropical Tuna 

Commission (IATTC) and by the Parties 

to the Agreement on the International 

Dolphin Conservation Program (IDCP). 

These regulations would prohibit 

activities that undermine the effective 

implementation and enforcement of the 

Marine Mammal Protection Act 

(MMPA), Dolphin Protection Consumer 

Information Act (DPCIA), and 

International Dolphin Conservation 

Program Act (IDCPA). This proposed 

rule would enlarge the class of vessels 

required to pay observer fees. The 

procedure to categorize tuna purse seine 

vessels as ‘‘active’’ in the Eastern 

Tropical Pacific Ocean (ETP) and the 

deadline for submitting vessel permit 

applications would change. Procedures 

are proposed for managing the capacity 

of the U.S. tuna purse seine fleet 

operating in the ETP through 

maintenance of a Vessel Register, the 

definitive list of vessels authorized to 

purse seine for tuna in the ETP. This 

proposed rule is intended to contribute 

to the long-term conservation of dolphin 

and tuna stocks and to ensure that the 

domestic tuna tracking and verification 

program remains consistent with 

international standards.

DATES: Comments on the proposed 

regulations must be received by 

November 29, 2004.

ADDRESSES: Send comments on the rule 

and the Initial Regulatory Flexibility 

Analysis to Jeremy Rusin, NMFS,

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63123

Southwest Region, Protected Resources 

Division, 501 W. Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. This 

address may also be used to submit 

observer fee payments, permit 

applications and other documentation 

to the Administrator, Southwest Region, 

with the exception of Fisheries 

Certificates of Origin (see below). 

Comments may be sent via facsimile 

(fax) to (562) 980–4027 or via E-mail. 

Include in the subject line of the E-mail 

the following document identifier: RIN 

0648–AS05. The mailbox address for 

providing E-mail comments is 0648–

AS05@noaa.gov. Comments may also be 

submitted electronically through the 

Federal e-Rulemaking portal: http//

www.regulations.gov.

Fisheries Certificates of Origin 

submitted via mail should be sent to 

Tuna Tracking and Verification 

Program, Southwest Region, P.O. Box 

32469, Long Beach, CA 90832–2469.

FOR FURTHER INFORMATION CONTACT:

Jeremy Rusin, NMFS, Southwest 

Region, Protected Resources Division, at 

(562) 980–4020.

SUPPLEMENTARY INFORMATION:

Background

The United States is a member of the 

IATTC, which was established in 1949 

under the Convention for the 

Establishment of an Inter-American 

Tropical Tuna Commission 

(Convention). The IATTC provides an 

international forum to ensure the 

effective international conservation and 

management of highly migratory species 

of fish in the Convention Area. The 

Convention Area is defined to include 

waters of the ETP bounded by the coast 

of the Americas, the 40° N. and 40° S. 

parallels, and the 150° W. meridian. The 

IATTC has maintained a scientific 

research and fishery monitoring 

program for many years and annually 

assesses the fisheries and the status of 

tuna stocks to determine appropriate 

harvest limits or other measures to 

prevent overexploitation of the stocks 

and promote viable fisheries. More 

recently, the IATTC has moved into 

other fishery management issues, such 

as managing the cumulative capacity of 

vessels fishing in the Convention Area, 

bycatch of non-target and protected 

species, and imposing time-area 

closures to conserve tuna stocks.

In support of fleet capacity control, 

the United States agreed to an IATTC 

resolution that limited total ETP purse 

seine fleet capacity. Currently, the 

United States is committed to limiting 

the capacity of its domestic tuna purse 

seine fleet operating in the ETP to 8,969 

metric tons (mt) carrying capacity. The 

U.S. limit was originally based on the 

cumulative capacity of U.S. vessels 

actively fishing in the ETP in the years 

leading up to 1999. In addition, U.S. 

purse seine vessels based in the western 

Pacific Ocean (WPO) were allowed to 

make 32 trips into the ETP without 

counting against the 8,969 mt limit. 

Recent resolutions adopted under the 

IATTC have addressed limits on fleet 

capacity. The United States and other 

Parties to the IATTC Convention and 

Agreement on the IDCP are responsible 

for domestically implementing 

resolutions adopted each year. Under 

the U.S. Tuna Conventions Act (16 

U.S.C. 951 et seq.), the Secretary of 

Commerce is authorized to promulgate 

regulations implementing the 

recommendations of the IATTC. 

Implementation of recent capacity 

resolutions is one objective of this 

proposed rule.

The IDCPA was signed into law 

August 15, 1997, and became effective 

March 3, 1999. The IDCPA amends the 

MMPA, DPCIA (16 U.S.C. 1385), and 

Tuna Conventions Act. The IDCPA, 

together with previous declarations, 

became the blueprint for the Agreement 

on the IDCP. In May 1998, eight nations, 

including the United States, signed a 

binding, international agreement to 

implement the IDCP. The Agreement on 

the IDCP became effective on February 

15, 1999, after four nations (United 

States, Panama, Ecuador, and Mexico) 

deposited their instruments of 

ratification, acceptance, or adherence 

with the depository for the Agreement. 

The IDCPA (16 U.S.C. 1413) mandates 

the Secretary of Commerce to issue and 

revise regulations, as appropriate, to 

implement the IDCP.

This proposed rule is intended to 

revise current regulations to ensure 

consistency between operation of the 

U.S. tuna purse seine fleet in the ETP 

and resolutions adopted by the IATTC 

and by the Parties to the Agreement on 

the IDCP. This proposed rule also 

introduces procedural modifications 

needed in the domestic tuna tracking 

and verification program, especially 

regarding the maintenance and 

submission of tracking and verification 

records. In addition, these regulations 

would prohibit labeling tuna with a 

mark that refers to dolphins or other 

marine mammals if the label does not 

comply with the requirements of 16 

U.S.C. 1385(d) and prohibit interference 

with enforcement and inspection 

activities that undermine the 

effectiveness of the MMPA.

Definitions

The definition for ‘‘Fisheries 

Certificate of Origin’’ would be revised 

in § 216.3 to include the acronym 

‘‘FCO’’, as well as NOAA Form 370. In 

§ 216.3, a definition for ‘‘South Pacific 

Tuna Treaty’’ would be added to specify 

that the term refers to the Treaty on 

Fisheries Between the Governments of 

Certain Pacific Island States and the 

Government of the United States of 

America (South Pacific Tuna Treaty).

In § 300.21, a definition would be 

added for ‘‘Vessel Register’’ in order to 

formally name the list of vessels 

authorized to purse seine for tuna in the 

ETP, which is comprised of both U.S. 

and international vessels. A second 

definition would be added in Section 

300.21 for ‘‘South Pacific Tuna Treaty’’

to specify that the term refers to the 

Treaty on Fisheries Between the 

Governments of Certain Pacific Island 

States and the Government of the 

United States of America.

Interference with Investigations and 

Authorized Activities

These regulations propose to add a 

new § 216.17 to prohibit activities that 

undermine the effective implementation 

and enforcement of the MMPA, DPCIA, 

and IDCPA. Currently, individuals who 

refuse to permit boardings by 

enforcement agents, interfere with 

inspections or stranding response, or 

intentionally submit false information 

may not be subject to prosecution under 

the MMPA, as such activities are not 

specifically prohibited. Such activities 

constrain law enforcement actions 

needed to ensure compliance with the 

statute. Lastly, this action would ensure 

that there are regulations protecting law 

enforcement officials while conducting 

investigations in the field.

Vessel Register

The IATTC established a international 

Vessel Register on June 28, 2002. In 

§ 300.22(b), NMFS proposes to maintain 

a domestic Vessel Register in 

accordance with recommendations of 

the IATTC. In addition, procedures 

would be established for vessels to be 

categorized as active or inactive on the 

Vessel Register for a given calendar 

year. Vessels would be eligible for 

inclusion on the Vessel Register if they 

were determined to have a history of 

fishing in the ETP prior to the 

establishment of the IATTC Vessel 

Register on June 28, 2002. Vessels that 

were not originally eligible for inclusion 

on the Vessel Register could be added 

only to replace another vessel of equal 

or greater capacity that has been 

removed from the Vessel Register.

As of September 2004, the following 

U.S. purse seine vessels, with carrying 

capacities in parentheses, are eligible for 

inclusion on the Vessel Register

63124 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

maintained by the IATTC: Andrea C

(1,089 mt); Anna Maria II (82 mt); Annie 

D (100 mt); Anthony G (35 mt); 

Antoinette W (25 mt); Atlantis (1,089 

mt); Barbara H. (91 mt); Bold 

Adventuress (1,361 mt); Calogera A (62 

mt); Cape Elizabeth (1,542 mt); Cape 

Finisterre (1,361 mt); Carol Linda (1,587 

mt); Cassie (62 mt); Connie Jean (517 

mt); Daniela (1,217 mt); Diana (1,089 

mt); Donna B (145 mt); Eileen (42 mt); 

Ferrigno Boy (70 mt); Fiore D’Mare (85 

mt); G Nazzareno (75 mt); Gallant (91 

mt); Gloria Marie (23 mt); Jeanette 

(1,542 mt); Jeannine (1,089 mt); Jenny 

Lynne (59 mt); Kathy Jeanne (73 mt); 

King Philip (91 mt); Koorale (998 mt); 

Lady Elizabeth (288 mt); Lady Renee (36 

mt); Linda C. (11 mt); Margaret F (54 

mt); Maria (89 mt); Maria T (45 mt); 

Mary Louise (54 mt); Mauritania (340 

mt); Midnight Hour (45 mt); Nancy B II

(68 mt); New Horizon (33 mt); Odette 

Therese II (1,089 mt); Pacific Princess

(1,089 mt); Pioneer (64 mt); Proud 

Heritage (998 mt); Retriever (45 mt); 

Romani Sons (91 mt); Saint Joseph (79 

mt); San Antonio (86 mt); San Pedro 

Pride (104 mt); Santa Maria (77 mt); Sea 

Encounter (1,814 mt); Sea Queen (91 

mt); Sheelagh B (82 mt); St George II (91 

mt); Tradition (1,089 mt); Trionfo (68 

mt); and Western Pacific (1,678 mt).

In order for vessels in excess of 400 

short tons (st), (362.8 mt) carrying 

capacity to purse seine for tuna in the 

ETP, they would be required to be 

categorized as active on the Vessel 

Register, have obtained a vessel permit, 

and have paid the permit application fee 

and the observer placement fee 

associated with the active status.

Owners who request to have purse 

seine vessels in excess of 400 st (362.8 

mt) listed as inactive on the Vessel 

Register would be required to pay the 

observer placement fee associated with 

inactive status. However, only purse 

seine vessels in excess of 400 st (362.8 

mt) listed as active on the Vessel 

Register would be allowed to fish in the 

ETP; large purse seine vessels listed as 

inactive would be prohibited from 

fishing.

Purse seine vessels licensed under the 

South Pacific Tuna Treaty would be 

allowed to make a single trip in the ETP 

per year, not to exceed 90 days in 

duration. They would not be required to 

be listed on the Vessel Register; 

however, they would be required to 

obtain a vessel permit, pay the permit 

application fee and the observer 

placement fee associated with active 

status, and carry an approved IDCP or 

ETP-trained Forum Fisheries Agency 

observer prior to entering the ETP to 

fish. No more than 32 such trips would 

be allowed per year.

Purse seine vessels of less than 400 st 

(362.8 mt) carrying capacity that do not 

target tuna on a full-time basis (in other 

words, 50 percent or less of annual 

landings by the vessel are tuna caught 

in the ETP) would not be required to be 

categorized as active, or even be listed 

on the Vessel Register, in order to purse 

seine for tuna in the ETP when tuna are 

seasonally available.

Purse seine vessels of less than 400 st 

(362.8 mt) carrying capacity that target 

tuna on a full-time basis (in other 

words, more than 50 percent of annual 

landings by the vessel are tuna caught 

in the ETP) would be required to be 

categorized as active on the Vessel 

Register. In order to be categorized as 

active on the Vessel Register, these 

small purse seine vessels would be 

required to submit payment of observer 

placement fees associated with active 

status to the Administrator, Southwest 

Region. Owners may request to have 

purse seine vessels of less than 400 st 

(362.8 mt) carrying capacity listed as 

inactive on the Vessel Register by 

submitting payment of the observer 

placement fee associated with inactive 

status.

New § 300.22(b)(4)(i) would provide 

that when the owner of a vessel in 

excess of 400 st (362.8 mt) carrying 

capacity submits a vessel permit 

application, permit application fee, and 

observer placement fee, the 

Administrator, Southwest Region, 

would interpret the submissions as the 

owner’s request for the subject vessel to 

be categorized as active under the 

Vessel Register in a given calendar year. 

The owner of a vessel of 400 st (362.8 

mt) carrying capacity or less would be 

required to submit only payment of the 

observer placement fee associated with 

active status in order to request the 

vessel be listed on the Vessel Register as 

active.

For 2005 only, requests to be 

categorized as active that are received 

by the Administrator, Southwest 

Region, would be prioritized on a firstcome, first-served basis. Requests to be 

active for 2006 and subsequent years 

that are received by the Administrator, 

Southwest Region, between August 1 

and September 15 of the previous year, 

for vessels requesting DMLs, or between 

August 1 and November 30 of the 

previous year, for vessels not requesting 

a DMLs, would be prioritized according 

to the following hierarchy: (1) requests 

for vessels that were categorized as 

active in the previous year except for 

vessels that were determined by the 

Administrator, Southwest Region, to 

have made frivolous requests for the 

previous year; (2) requests for vessels 

that were categorized as inactive in the 

previous year; (3) requests for vessels 

not described in (1) or (2) will be 

prioritized on a first-come, first-served 

basis; and (4) requests for vessels that 

were determined to have made a 

frivolous request for active status for the 

previous year. Vessels in excess of 400 

st (362.8 mt) carrying capacity would 

not be categorized as active on the 

Vessel Register unless the captain of the 

vessel possessed a valid operator 

permit.

Under new § 300.22(b)(5), vessels 

could be removed from the Vessel 

Register by the Administrator, 

Southwest Region: (1) if they have sunk, 

(2) at the written request of the owner 

or managing owner, (3) if they have not 

paid the required observer placement 

fee, (4) if the vessel owner or managing 

owner does not submit, within the 

allotted time, a vessel permit 

application and associated processing 

fee, (5) if the United States Coast Guard 

notifies NMFS that the U.S. 

documentation for the vessel has been 

deleted, or (6) for serious violations, for 

failure to pay a penalty, or for default 

on a penalty payment agreement.

In new § 300.22(b)(6), vessels 

removed from the Vessel Register for a 

given year or years could be added back 

to the Vessel Register and categorized as 

inactive at any time, provided they pay 

the vessel assessment associated with 

inactive status. Vessels removed from 

active status on the Vessel Register for 

one of the reasons described in the 

previous paragraph may be replaced 

with another vessel by the 

Administrator, Southwest Region, at any 

point during the year. Owners or 

managing owners of vessels eligible for 

inclusion on the Vessel Register would 

be notified by the Administrator, 

Southwest Region, when an opportunity 

to replace a removed vessel arises.

Vessels categorized as inactive at the 

time that a vessel is removed from 

active status, and active capacity 

becomes available, would be given first 

priority to become active for the 

remainder of the year. Second priority 

would be given to vessels not included 

on, but eligible for inclusion, on the 

Vessel Register. In order to replace a 

vessel removed from active status on the 

Vessel Register, the owner of a purse 

seine vessel in excess of 400 st (362.8 

mt) carrying capacity would be required 

to submit to the Administrator, 

Southwest Region, a vessel permit 

application, as well as payment of the 

permit application processing fee and 

observer placement fee consistent with 

active status and verification that the 

captain of the vessel possessed a valid 

operator permit.

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63125

In order to replace a vessel removed 

from active status on the Vessel 

Register, the owner of a purse seine 

vessel of 400 st (362.8 mt) carrying 

capacity or less would be required to 

submit to the Administrator, Southwest 

Region, only payment of the observer 

placement fee consistent with active 

status.

The regulations would require that 

the owner of a purse seine vessel listed 

as inactive on the Vessel Register, who 

requests to have the vessel’s status 

changed to active, pay an observer 

placement fee equal to the difference 

between the fee for active status and the 

fee for inactive status that was already 

paid. The observer placement fee for an 

owner of a replacement vessel not 

already listed as inactive on the Vessel 

Register would be the full observer 

placement fee associated with active 

status.

Vessel Permit Application and Payment 

of Observer Placement Fee

Section 216.24(b)(4) would require 

vessel permit applications to be faxed 

and establish deadlines for submission 

of vessel permit applications and 

application processing fees. No vessel 

permit application or application 

processing fee may be submitted prior to 

August 1 of the year prior to year for 

which permit would be valid. Vessel 

owners or managing owners requesting 

a dolphin mortality limit (DML) and 

that a vessel be categorized as active on 

the Vessel Register for the following 

year, would be required to submit the 

vessel permit application, observer 

placement fee, and application 

processing fee no later than September 

15 of the year prior to year for which the 

DML is requested.

Vessel owners or managing owners 

not requesting a DML for a vessel, but 

requesting a vessel greater than 400 st 

(362.8 mt) be categorized as active on 

the Vessel Register for the following 

year, would be required to submit the 

vessel permit application, observer 

placement fee, and application 

processing fee no later than November 

30 of the year prior to the year for which 

inclusion on the Vessel Register is 

requested.

Owners or managing owners of 

vessels not on the Vessel Register and 

licensed under the South Pacific Tuna 

Treaty would be required to submit 

vessel permit applications, observer 

placement fees, and application 

processing fees before the vessel is 

assigned an observer and enters the ETP 

to fish, allowing 15 days for NMFS to 

process the application.

Owners or managing owners of 

vessels equal to or less than 400 st 

(362.8 mt) would not be required to 

submit a vessel permit application or 

application processing fee; vessel 

permits are not required for vessels of 

this size regardless of whether or not 

they are listed on the Vessel Register.

Any owner that requests to have a 

purse seine vessel of less than 400 st 

(362.8 mt) carrying capacity listed as 

active on the Vessel Register would be 

required to submit payment of the 

observer placement fee associated with 

active status no later than November 30 

of the year prior to the year for which 

inclusion on the Vessel Register is 

requested. Owners of small purse seine 

vessels for which at least 50 percent of 

annual catch is comprised of tuna 

caught in the ETP would be required to 

request these vessels be listed as active 

on the Vessel Register by submitting 

payment of observer placement fees 

associated with active status no later 

than November 30 of the year prior to 

the year for which inclusion on the 

Vessel Register is requested. Owners 

that request to have these small vessels 

listed as inactive on the Vessel Register 

would be required to submit payment of 

observer placement fees associated with 

inactive status no later than November 

30 of the year prior to the year for which 

inclusion on the Vessel Register is 

requested.

Owners requesting to replace a vessel 

removed from active status on the 

Vessel Register would be required to 

submit to the Administrator, Southwest 

Region, a vessel permit application, 

payment of the permit application 

processing fee, and payment of the 

observer placement fee consistent with 

active status before the vessel would be 

listed as active. In addition, these 

owners would be required to verify that 

the captain of the vessel possessed a 

valid operator permit.

Importation, Purchase, Shipment, Sale, 

and Transport

In § 216.24, a new paragraph (f)(3)(ii) 

would be added requiring that Fisheries 

Certificates of Origin (FCOs) and 

associated certifications be submitted by 

the importer of record within 30 days of 

the shipment’s entry into the commerce 

of the United States. The proposed 

regulations would allow certifications to 

be submitted electronically to the Tuna 

Tracking and Verification Program using 

a secure file transfer protocol (FTP). 

Importers of record interested in 

submitting FCOs and associated 

certifications via FTP may contact a 

representative of the Tuna Tracking and 

Verification Program. Certifications 

submitted by mail either on compact 

disc or as hard copies to the Tuna 

Tracking and Verification Program (see 

ADDRESSES) would also be acceptable. 

All importers of record submitting 

electronic certifications, whether via 

FTP or on compact disc, would be 

required to make submissions in either 

Adobe Portable Document Format (PDF) 

or as an image file embedded in a 

Microsoft Word, Microsoft PowerPoint, 

or Corel WordPerfect file. Paragraphs 

previously designated (f)(2)(ii) and (iii) 

would be redesignated as (f((2)(iii) and 

(iv), respectively.

In § 216.24(f)(4) two modifications 

would be made. In paragraph (f)(4)(xi), 

the name of the vessel would be 

required on the FCO regardless of the 

gear type used. In paragraph (f) (4)(xiv), 

NMFS would require importers, 

exporters, or processors who take 

custody of tuna shipments to sign and 

date FCOs. Current regulations limit this 

requirement to tuna shipments 

harvested by purse seine vessels in 

excess of 400 st. This modification is 

necessary because processors who 

import tuna must be able to verify 

dolphin-safe status through use of the 

FCO for all tuna imports regardless of 

gear or vessel size.

Market Prohibitions

NMFS would add a market 

prohibition to § 216.24(f)(12)(ii) to 

complement the dolphin-safe labeling 

requirements under the DPCIA, as 

codified in regulations at 50 CFR 216.91 

et seq. This new prohibition would 

make commerce in tuna or tuna 

products bearing a label or mark that 

refers to dolphins, porpoises, or marine 

mammals illegal if the label or mark 

does not comply with the labeling and 

marking requirements of 16 U.S.C. 

1385(d). The Dolphin Protection 

Consumer Information Act authorizes 

the Secretary to regulate entities in the 

stream of commerce that are responsible 

for trafficking in tuna product that bears 

labels suggesting the tuna was harvested 

in a ‘‘dolphin-safe’’ manner. As a result 

and based on NMFS’ experience, NMFS 

has determined that giving NMFS the 

ability to enforce the labeling standards 

at the wholesale, distribution, and retail 

levels will further compliance with the 

DPCIA. During the course of recent 

investigations into illegally imported 

tuna products, NMFS determined that 

there is both a ready supply of a certain 

brand of tuna products from Mexico 

entering the U.S. market that carries a 

label/mark that implies the tuna is 

dolphin-safe and a demand among 

consumers for this product. While there 

is no indication that the labeled product 

is not dolphin-safe, it appears that the 

product entered the U.S. market without 

being accompanied by the required 

paperwork. Further, at the time such

63126 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

products were discovered by law 

enforcement officials, the party 

possessing the product (usually a 

retailer) was not the party that placed 

the dolphin-related label on the 

product.

This proposed new prohibition would 

improve the ability of NMFS 

Enforcement to pursue enforcement 

actions against all parties in the stream 

of commerce that handle or sell labeled 

tuna product. Putting such enforcement 

pressure on all businesses that 

distribute or sell labeled products is 

likely to raise their awareness of the 

dolphin-safe labeling standards. NMFS 

anticipates that this will, in turn, reduce 

the illegal trafficking of such products.

Changes to Verification Requirements

Section 216.93(c)(v) would be revised 

to prohibit distribution of confidential 

Tuna Tracking Forms (TTFs) by 

replacing the phrase ‘‘shall not’’ with 

‘‘may not’’. Current regulations were 

intended to prohibit distribution of 

these confidential documents; however, 

this intention was not apparent in the 

way current regulations were 

constructed.

Section 216.93(e) would be revised in 

this proposed rule to specify that copies 

of FCOs and required certifications must 

be submitted by the importer of record 

to the Administrator, Southwest Region, 

within 30 days of the shipment’s entry 

into the commerce of the United States, 

consistent with the addition of a the 

proposed new paragraph (f) (3) (ii) in 

§ 216.24(f)(3).

NMFS would revise § 216.93(f) to 

require maintenance of records on all 

tuna imported into the United States, 

not just tuna harvested in the ETP that 

is imported. This change would be 

made because of the need to track all the 

tuna coming into the United States in 

order to track and verify tuna harvested 

in the ETP.

Under these proposed regulations, 

certain entities (any exporter, 

transshipper, importer, processor or 

wholesaler/distributor of tuna or tuna 

products) would be required to submit 

FCOs within 30 days of every shipment, 

as opposed to within 30 days of a 

request by the Southwest Regional 

Administrator. These revisions would 

be made in § 216.93(f)(2).

NMFS would add a requirement that 

wholesalers and distributors maintain 

records related to the shipment of tuna, 

including the FCO, required 

certifications, invoices, and other 

import documents under the authority 

of paragraph (f) of the DPCIA (16 U.S.C. 

1385(f)). The revised § 216.93(f) would 

require any ‘‘wholesaler/distributor’’ to 

comply with the record maintenance, 

submission, and audit/spot-check 

obligations of the Tuna Tracking and 

Verification Program. In addition to 

maintaining records, wholesalers/

distributors would be required to submit 

or provide access to all pertinent 

records and facilities related to caught, 

landed, stored and processed tuna.

For purposes of this regulation, 

wholesalers/distributors would be 

identified as entities that sell from 

offices or warehouses, advertise to 

businesses rather than to the general 

public, and generally have no walk-in 

traffic or public displays. This addition 

is proposed because current regulations 

require importers to adhere to the 

tracking requirements, but do not 

extend the requirements to parties any 

farther in the stream of commerce. 

Investigations into the alleged illegal 

importation of tuna products have been 

thwarted because NMFS discovered the 

products only after they had been 

delivered to the retailers. For example, 

wholesalers/distributors did not 

maintain any paperwork regarding the 

delivery or purchase of the tuna that 

would have allowed NMFS to 

investigate who had been involved in 

the illegal importation. Without 

extending the tracking requirements to 

wholesalers/distributors, this 

complication with investigations would 

likely continue, as there is the potential 

that illegal importations of tuna are 

ongoing. NMFS does not propose 

extending recordkeeping requirements 

to retailers, but in order to aid 

enforcement of these regulations, NMFS 

would apply the verification 

requirements of this section to 

wholesalers/distributors.

Public Comments Solicited

NMFS is soliciting public comments 

on this proposed rule. Written 

comments may be submitted to Jeremy 

Rusin (see ADDRESSES and DATES).

Classification

Executive Order 12866

This proposed rule has been 

determined to be not ‘‘significant’’

under Executive Order 12866. NMFS 

prepared a Regulatory Impact Review 

(RIR)/Initial Regulatory Flexibility 

Analysis (IRFA), included as Appendix 

A to the Environmental Assessment 

(EA) prepared on the proposed 

regulations. The EA, including the RIR/

IRFA, is available at the following 

website: http://swr.nmfs.noaa.gov.

Regulatory Flexibility Act

Pursuant to procedures established to 

implement the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), NMFS 

prepared an RIR/IRFA, included as 

Appendix A to the EA prepared on the 

proposed regulations. The IRFA 

indicates that the proposed regulations 

would have a minimal impact on the 

U.S. purse seine fishing fleets and 

associated businesses.

NMFS analyzed three alternatives in 

the IRFA for this proposed rule. The 

first alternative that NMFS analyzed 

was the ‘‘no action’’ alternative and this 

alternative would not implement 

recommendations of the IATTC member 

nations or resolutions adopted by the 

Parties to the Agreement on the IDCP. 

The second alternative NMFS analyzed 

was the ‘‘preferred alternative,’’ which 

would: (1) establish a register of U.S. 

vessels with a history of fishing in the 

ETP prior to June 28, 2002, and require 

that only vessels on that list would be 

authorized to purse seine for tuna in the 

ETP; (2) limit the aggregate capacity of 

U.S. purse seine vessels that may fish 

full time for tuna in the ETP to 8,969 mt 

carrying capacity per year; (3) revise the 

requirements for maintaining and 

submitting tuna tracking and 

verification records; (4) ensure that 

owners of U.S. vessels on the register 

pay annual assessments; (5) prohibit 

commerce in tuna or tuna products 

bearing a label or mark that refers to 

dolphins, porpoises, or marine 

mammals if the label or mark does not 

comply with the labeling and marking 

requirements of 16 U.S.C. 1385(d); and 

(6) prohibit interference with 

enforcement and inspection activities, 

submission of false information, and 

other activities that would undermine 

the effectiveness of the MMPA, IDCPA, 

and DPCIA. The third alternative NMFS 

analyzed was the ‘‘variations of the 

preferred alternative’’ alternative and 

this alternative would retain the clearly 

required elements of the preferred 

alternative, but it would also include 

other measures not specifically required 

by internationally adopted resolutions. 

Generally, the objectives of resolutions 

adopted by the IATTC member nations 

and the Parties to the Agreement on the 

IDCP are clear; however, some 

provisions allow for agency discretion, 

either in implementing or interpreting 

the intent of the resolution. These 

discretionary areas provided the basis 

for this third alternative.

NMFS rejected the ‘‘no action’’

alternative because it would not restrict 

annual participation by U.S. flag purse 

seine vessels in the fishery and would 

not implement needed prohibitions or 

refine tuna tracking procedures. Under 

the ‘‘no action’’ alternative, the United 

States would not be fulfilling its 

obligations under the IATTC and 

Agreement on the IDCP; adopting this 

alternative would provide a precedent

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63127

for other nations to ignore future 

international recommendations.

NMFS chose the ‘‘preferred 

alternative,’’ which includes a 

combination of procedures to restrict 

domestic fleet capacity, updates to the 

domestic tuna tracking and verification 

program, prohibitions against interfering 

with enforcement activities, and 

prohibitions against using a label on 

tuna products that refers to dolphins or 

other marine mammals when the label 

does not comply with the requirements 

of the DPCIA. The ‘‘preferred 

alternative’’ is expected to have minimal 

impacts on the U.S. purse seine fishing 

fleet and associated businesses.

NMFS also considered but rejected 

the third alternative which included 

taking independent action to address 

tuna conservation (e.g., quota, area 

closures, or other variations of the 

preferred alternative) because these 

approaches fail to address the potential 

for fleet capacity growth. Further, the 

United States does not have 

independent sources of information that 

would provide a sufficiently sound 

approach to support a departure from 

recommendations of the IATTC member 

nations and Parties to the Agreement on 

the IDCP.

The IRFA indicates, with only 1–2 

exceptions, that tuna landings of small 

purse seine vessels (i.e., vessels less 

than 400 st carrying capacity and 

classified as small business entities) do 

not comprise a significant percentage of 

the total landings of small purse seine 

vessels. Therefore, these vessels would 

be exempt from being categorized as 

active on the Vessel Register or paying 

associated annual vessel assessments in 

order to purse seine for tuna when they 

are seasonally available. The 1–2 small 

vessels that have historically targeted 

tuna on a full-time basis, as well as large 

tuna purse seine vessels (in excess of 

400 st carrying capacity), would be 

required to be listed as active on the 

Vessel Register and pay associated 

annual vessel assessments in order to 

fish for tuna in future years.

The annual capacity limit of 8,969 mt 

that would be imposed on the U.S. tuna 

purse seine fleet as a result of this action 

is expected to accommodate the 

majority of interested vessels based on 

vessel participation in the fishery in 

recent years, including the 1–2 small 

purse seine vessels that target tuna on 

a full-time basis. In 2004, owners 

expressed an interest to have an 

additional 2 vessels in excess of 400 st 

carrying capacity categorized as active, 

which would have totaled 

approximately 11,500 mt in fleet 

capacity. Therefore, implementing the 

fleet capacity limit through this rule 

would result in 1 or 2 eligible U.S. purse 

seine vessels being excluded from 

participating in the ETP tuna fishery if 

the current level of interest in the 

fishery is maintained.

Updates to the tuna tracking and 

verification program; prohibitions 

against commerce in tuna or tuna 

products bearing a label or mark that 

refers to dolphins, porpoises, or marine 

mammals if the label or mark does not 

comply with the labeling and marking 

requirements of 16 U.S.C. 1385(d); and 

prohibitions against activities that 

undermine the implementation and 

enforcement of the MMPA, IDCPA and 

DPCIA are not expected to significantly 

impact small business entities. While 

the proposed changes are expected to 

result in some new or increased burdens 

to small businesses, the experience of 

the Tuna Tracking and Verification 

Program indicates that the proposed 

change would ensure NMFS’ continued 

ability to verify the dolphin-safe status 

of tuna.

The preferred alternative is not 

expected to have a significant economic 

impact on the U.S. tuna purse seine fleet 

operating in the ETP. The only small 

business entities which would 

potentially be affected by this proposed 

rule would be 1–2 small purse seine 

vessels which target tuna in the ETP on 

a full-time basis. These actions are not 

expected to compromise the ability of 

these small vessels to target tuna or 

reduce their retained catch or sales 

revenue. Similarly, there would be no 

impacts on processors, nor would total 

employment be affected by this action.

While this alternative would 

implement capacity controls for the 

fleet, the proposed limit, 8,969 mt, is 

consistent with the recent level of 

interest and participation in the fishery 

by U.S. vessels. This alternative would 

also exempt smaller fishing entities that 

do not target tuna on a full-time basis 

from paying annual vessel assessments. 

Considering their access to fishing 

grounds in the western Pacific Ocean, 

vessels in excess of 400 st carrying 

capacity in the U.S. tuna purse seine 

fleet are expected to have sufficient 

flexibility to target tuna where and 

when they are seasonably available. 

Foreign purse seine fleets, as well as 

domestic and international tuna 

processors, are not expected to be 

significantly adversely affected by 

implementation of this alternative, due 

to the global nature of tuna supply and 

pricing.

NMFS is requesting comments on the 

IRFA. The EA, including the RIR/IRFA, 

is available at the following website: 

http://swr.nmfs.noaa.gov. Send 

comments to Jeremy Rusin, NMFS (see 

ADDRESSES).

Paperwork Reduction Act

This proposed rule contains new 

collection-of-information requirements 

subject to the Paperwork Reduction Act 

(PRA), which appears in § 216.93(f) of 

this proposed rule. Wholesalers/

distributors are included in the list of 

entities required to produce records 

relative to tracking and verification of 

tuna to the Administrator, Southwest 

Region. This added collection-ofinformation requirement was approved 

by the Office of Management and 

Budget (OMB) on February 6, 2003, 

under control number 0648–0387. The 

public reporting burden for this 

collection is estimated to average 30 

minutes for a wholesaler/distributor to 

produce records.

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.

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.

Comments regarding the burden-hour 

estimates or other aspects of the 

collection-of-information requirements 

contained in this proposed rule may be 

submitted in writing to Jeremy Rusin, 

NMFS (See ADDRESSES), or to David 

Rostker, OMB, by e-mail at DavidRostker@omb.eop.gov or by fax to 202–

395–7285.

Endangered Species Act

NMFS prepared a Biological Opinion 

for the interim final rule to implement 

the IDCPA in December 1999, 

concluding that fishing activities 

conducted under the interim final rule 

are not likely to jeopardize the 

continued existence of any endangered 

or threatened species under the 

jurisdiction of NMFS or result in the 

destruction or adverse modification of 

critical habitat. NMFS is unaware of any 

new information that would indicate 

this proposed action may affect listed 

species in a manner or to an extent not 

previously considered, nor do the 

proposed regulations modify the fishery 

in a manner that causes an effect to 

listed species not previously considered 

in the Biological Opinion. Therefore, 

NMFS has determined that the 

conclusions and incidental take

63128 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

statement of the Biological Opinion 

remain valid and reinitiation of 

consultation is not required. NMFS 

continues to monitor annual sea turtle 

takes and mortalities in the U.S. tuna 

purse seine fishery operating in the ETP 

to ensure that levels are within those 

analyzed in the Biological Opinion and 

authorized in the amended Incidental 

Take Statement.

National Environmental Policy Act

NMFS prepared a draft Environmental 

Assessment (EA) on these proposed 

regulations. A copy of the draft EA is 

available at: http://swr.nmfs.noaa.gov.

Dated: October 20, 2004.

John Oliver,

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service.

List of Subjects 

50 CFR Part 216

Fish, Marine mammals, Reporting and 

recordkeeping requirements.

50 CFR Part 300

International fisheries regulations; 

Pacific tuna fisheries.

For the reasons set out in the 

preamble, NMFS proposes to amend 50 

CFR parts 216 and 300 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 § 216.3 the definition for 

‘‘Fisheries Certificate of Origin’’ is 

revised and a definition for ‘‘South 

Pacific Tuna Treaty’’ is added to read as 

follows:

§ 216.3 Definitions.

* * * * *

Fisheries Certificate of Origin or FCO, 

means NOAA Form 370, as described in 

§ 216.24(f)(4).

* * * * *

South Pacific Tuna Treaty means the 

Treaty on Fisheries Between the 

Governments of Certain Pacific Island 

States and the Government of the 

United States of America (50 CFR part 

300, subpart D).

* * * * *

3. A new § 216.17 is added to subpart 

B to read as follows:

§ 216.17 General prohibitions.

It is unlawful for any person to:

(a) Assault, resist, oppose, impede, 

intimidate, threaten, or interfere with 

any authorized officer in the conduct of 

any search, inspection, investigation or 

seizure in connection with enforcement 

of the MMPA, DPCIA, or IDCPA.

(b) Interfere with, delay, or prevent by 

any means the apprehension of another 

person, knowing that such person has 

committed any act prohibited by the 

MMPA.

(c) Resist a lawful arrest for any act 

prohibited under the MMPA.

(d) Make any false statement, oral or 

written, to an authorized officer 

concerning any act under the 

jurisdiction of the MMPA, DPCIA, 

IDCPA, or attempt to do any of the 

above.

(e) Interfere with, obstruct, delay, or 

prevent by any means an investigation, 

search, seizure, or disposition of seized 

property in connection with 

enforcement of the MMPA, DPCIA, or 

IDCPA.

4. Section 216.24 is amended by 

revising paragraphs (b)(4), (b)(6)(i), 

(b)(6)(iii), (f)(3), (f)(3)(ii)–(f)(3)(iv), 

(f)(4)(xi), (f)(4)(xiv) and (f)(12) to read as 

follows:

§ 216.24 Taking and related acts incidental 

to commercial fishing operations by tuna 

purse seine vessels in the eastern tropical 

Pacific Ocean.

* * * * *

(b) * * *

(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 15 days for processing. 

All vessel permit applications must be 

faxed to (562) 980–4027. An owner or 

managing owner requesting to have a 

vessel in excess of 400 st (362.8 mt) 

carrying capacity for which a DML was 

requested categorized as active on the 

Vessel Register under § 300.22(b)(4)(i) of 

this title must submit to the 

Administrator, Southwest Region, the 

vessel permit application, payment of 

the observer placement fee under 

paragraph (b)(6)(iii) of this section and 

payment of the vessel permit 

application processing fee no later than 

September 15 of the year prior to the 

year for which the DML was requested. 

The owner or managing owner of a 

vessel in excess of 400 st (362.8 mt) 

carrying capacity not requesting a DML 

must submit the vessel permit 

application, payment of the observer 

placement fee, and payment of the 

vessel permit application processing fee 

no later than November 30 of the year 

prior to the year for which the vessel 

permit was requested. An application 

must contain:

* * * * *

(6) * * *

(i) Vessel permit application fees.

Payment of the permit application fee is 

required before NMFS will issue a 

permit. The Assistant Administrator 

may change the amount of this fee 

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.

* * * * *

(iii) Observer placement fee. (A) The 

owner or managing owner of a vessel for 

which a DML has been requested must 

submit the observer placement fee, as 

established by the IATTC or other 

approved observer program, to the 

Administrator, Southwest Region, no 

later than September 15 of the year prior 

to the calendar year for which the DML 

was requested. Payment of the observer 

placement fee must be consistent with 

the fee for active status on the Vessel 

Register under § 300.22(b)(4) of this 

title.

(B) The owner or managing owner of 

a vessel for which a DML has not been 

requested, but that is listed on the 

Vessel Register, as defined in § 300.21 of 

this title, must submit payment of the 

observer placement fee, as established 

by the IATTC or other approved 

observer program, to the Administrator, 

Southwest Region, no later than 

November 30 of the year prior to the 

calendar year in which the vessel will 

be listed on the Vessel Register. 

Payment of the observer placement fee 

must be consistent with the vessel=s 

status, either active or inactive, on the 

Vessel Register in § 300.22(b)(4) of this 

title.

(C) The owner or managing owner of 

a purse seine vessel that is licensed 

under the South Pacific Tuna Treaty 

must submit the observer placement fee, 

as established by the IATTC or other 

approved observer program, to the 

Administrator, Southwest Region, prior 

to obtaining an observer and entering 

the ETP to fish. Consistent with 

§ 300.22(b)(1)(i) of this title, this class of 

purse seine vessels is not required to be 

listed on the Vessel Register under 

§ 300.22(b)(4) of this title in order to 

purse seine for tuna in the ETP during 

a single fishing trip per calendar year of 

90 days or less. Payment of the observer 

placement fee must be consistent with 

the fee for active status on the Vessel 

Register under § 300.22(b)(4) of this 

title.

(D) The owner or managing owner of 

a purse seine vessel listed as inactive on 

the Vessel Register at the beginning of 

the calendar year and who requests to 

replace a vessel removed from active 

status on the Vessel Register under 

§ 300.22(b)(4) of this title during the 

year, must pay the observer placement

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63129

fee associated with active status less the 

observer placement fee associated with 

inactive status that was already paid 

before NMFS will request the IATTC 

Secretariat change the status of the 

vessel from inactive to active.

(E) The owner or managing owner of 

a purse seine vessel not listed on the 

Vessel Register at the beginning of the 

calendar year and who requests to 

replace a vessel removed from active 

status on the Vessel Register under 

§ 300.22(b)(4) of this title during the 

year, must pay the observer placement 

fee associated with active status before 

NMFS will request the IATTC 

Secretariat change the status of the 

vessel to active.

(F) Payments received after the dates 

specified in paragraphs (b) (6) (iii)(A) or 

(B) of this section will be subject to a 10 

percent surcharge. The Administrator, 

Southwest Region, will forward all 

observer placement fees described in 

this section to the IATTC or to the 

applicable organization approved by the 

Administrator, Southwest Region.

* * * * *

(f) * * *

* * * * *

(3) Disposition of Fisheries 

Certificates of Origin. The FCO 

described in paragraph (f)(4) of this 

section may be obtained from the 

Administrator, Southwest Region, or 

downloaded from the Internet at http:/

/swr.nmfs.noaa.gov/noaa370.htm.

(i) * * *

(ii) FCOs and associated certifications, 

if any, that accompany imported 

shipments of tuna must be submitted by 

the importer of record to the Tuna 

Tracking and Verification Program, 

Southwest Region, within 30 days of the 

shipment’s entry into the commerce of 

the United States. Copies of the 

documents may be submitted 

electronically using a secure file transfer 

protocol (FTP) site. Importers of record 

interested in submitting FCOs and 

associated certifications via FTP may 

contact a representative of the Tuna 

Tracking and Verification Program at 

the following email address: 

SWRTuna.Track@noaa.gov. The Tuna 

Tracking and Verification Program will 

facilitate secure transfer and protection 

of certifications by assigning a separate 

electronic folder for each importer. 

Access to the electronic folder will 

require a user identification and 

password. The Tuna Tracking and 

Verification Program will assign each 

importer a unique user identification 

and password. Safeguarding the 

confidentiality of the user identification 

and password is the responsibility of the 

importer to whom they are assigned. 

Copies of the documents may also be 

submitted via mail either on compact 

disc or as hard copies. All electronic 

submissions, whether via FTP or on 

compact disc, must be in either Adobe 

Portable Document Format (PDF) or as 

an image file embedded in a Microsoft 

Word, Microsoft PowerPoint, or Corel 

WordPerfect file.

(iii) FCOs that accompany imported 

shipments of tuna destined for further 

processing in the United States must be 

endorsed at each change in ownership 

and submitted to the Administrator, 

Southwest Region, by the last endorser 

when all required endorsements are 

completed.

(iv) Importers and exporters are 

required to retain their records, 

including FCOs, import or export 

documents, invoices, and bills of lading 

for 2 years, and such records must be 

made available within 30 days of a 

request by the Secretary or the 

Administrator, Southwest Region.

(4) * * *

(xi) the name of the harvesting vessel;

* * * * *

(xiv) Each additional importer, 

exporter, or processor who takes 

custody of the shipment must sign and 

date the form to certify that the form 

and attached documentation accurately 

describes the shipment of fish that they 

accompany.

* * * * *

(12) Market rohibitions. (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:

(A) Dolphin-safe under subpart H of 

this part; or

(B) Harvested in compliance with the 

IDCP by vessels under the jurisdiction 

of a nation that is a member of the 

IATTC or has initiated, and within 6 

months thereafter completes, all steps 

required by an applicant nation to 

become a member of the IATTC.

(ii) It is unlawful for any exporter, 

transshipper, importer, processor, or 

wholesaler/distributor to possess, sell, 

purchase, offer for sale, transport, or 

ship in the United States, any tuna or 

tuna products bearing a label or mark 

that refers to dolphins, porpoises, or 

marine mammals unless the label or 

mark complies with the requirements of 

16 U.S.C. 1385(d).

* * * * *

5. In § 216.93, the section heading and 

paragraphs are amended by revising 

paragraphs (c)(5)(v), (e) and (f) to read 

as follows:

§ 216.93 Tracking and verification 

program.

* * * * *

(c) * * *

(5) * * *

(v) TTFs are confidential documents 

of the IDCP. Vessel captains and 

managing offices may not provide 

copies of TTFs to any representatives of 

private organizations or non-member 

states.

* * * * *

(e) 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 § 216.24(f)(2). For 

tuna tracking purposes, copies of FCOs 

and associated certifications must be 

submitted by the importer of record to 

the Administrator, Southwest Region, 

within 30 days of the shipment’s entry 

into the commerce of the United States 

as required by § 216.24(f)(3)(ii).

(f) Verification requirements—(1) 

Record maintenance. Any exporter, 

transshipper, importer, processor, or 

wholesaler/distributor of any tuna or 

tuna products must maintain records 

related to that tuna for at least 2 years. 

These records include, but are not 

limited to: FCO and required 

certifications, any report required in 

paragraphs (a), (b) and (d) of this 

section, invoices, other import 

documents, and trip reports.

(2) Record submission. Within 30 

days of receiving a shipment of tuna or 

tuna products, any exporter, 

transshipper, importer, processor, 

wholesaler/distributor of tuna or tuna 

products must submit to the 

Administrator, Southwest Region, all 

corresponding FCOs and required 

certifications for those tuna or tuna 

products.

(3) Audits and spot-checks. Upon 

request of the Administrator, Southwest 

Region, any exporter, transshipper, 

importer, processor, or wholesaler/

distributor of tuna or tuna products 

must provide the Administrator, 

Southwest Region, timely access to all 

pertinent records and facilities to allow 

for audits and spot-checks on caught, 

landed, stored, and processed tuna.

* * * * *

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS

1. The authority citation for part 300 

continues to read as follows:

Authority: 16 U.S.C. 951–961 and 971 et 

seq., unless otherwise noted.

2. In § 300.21 definitions for ‘‘South 

Pacific Tuna Treaty’’ and ‘‘Vessel 

Register’’ are added to read as follows:

63130 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

§ 300.21 Definitions.

* * * * *

South Pacific Tuna Treaty means the 

Treaty on Fisheries Between the 

Governments of Certain Pacific Island 

States and the Government of the 

United States of America (50 CFR part 

300, Subpart D).

* * * * *

Vessel Register means the regional 

register of vessels authorized to purse 

seine for tuna in the Convention Area, 

as established by the Inter-American 

Tropical Tuna Commission on June 28, 

2002.

3. Section 300.22 is amended by 

revising paragraph (b) to read as follows:

§ 300.22 Yellowfin tuna—Recordkeeping 

and written reports.

* * * * *

(b) Vessel register. Except as provided 

under paragraph (b)(1) of this section, 

vessels must be listed on the Vessel 

Register and categorized as active under 

paragraph (b)(4)(i) of this section in 

order to purse seine for tuna in the 

Convention Area.

(1) Exceptions. The following classes 

of vessels are exempted from being 

listed on the Vessel Register to purse 

seine for tuna in the Convention Area:

(i) Vessels licensed under the South 

Pacific Tuna Treaty that exercise an 

option to fish in the Convention Area 

for a single trip each year, provided that 

the total number of optional trips does 

not exceed 32 in a given calendar year. 

Each optional trip in the Convention 

Area may not exceed 90 days in 

duration.

(ii) Vessels of less than 400 st (362.8 

mt) carrying capacity for which landings 

of tuna caught in the Convention Area 

comprise 50 percent or less of the 

vessel’s total landings, by weight, for a 

given calendar year.

(2) Requirements for inclusion on the 

vessel register. The Vessel Register shall 

include, consistent with IATTC actions, 

only vessels that fished in the 

Convention Area prior to the creation of 

the Vessel Register on June 28, 2002. 

New vessels may be added to the Vessel 

Register at any time to replace those 

previously removed by the Regional 

Administrator, provided that the total 

capacity of the replacement vessel or 

vessels does not exceed that of the 

vessel or vessels being replaced.

(3) Vessel information. The owner of 

any fishing vessel that uses purse seine, 

longline, drift gillnet, harpoon, or troll 

fishing gear to harvest tuna in the 

Convention Area for sale or a person 

authorized in writing to serve as agent 

for the owner must provide such 

information about the vessel and its 

characteristics as requested by the 

Regional Administrator to conform to 

IATTC actions relative to the Vessel 

Register. This information initially 

includes, but is not limited to, vessel 

name and registration number; a 

photograph of the vessel with the 

registration number showing and 

legible; vessel length, beam and 

moulded depth; gross tonnage and hold 

capacity in cubic meters and tonnage; 

engine horsepower; date and place 

where built; and type of fishing method 

or methods used.

(4) Vessel Register status. In each 

calendar year, for a vessel to be 

categorized as either ‘‘active’’ or 

‘‘inactive’’ on the Vessel Register, the 

vessel owner or managing owner must 

pay the associated observer placement 

fee pursuant to § 216.24(b)(6)(iii) of this 

title, or the vessel will be removed from 

the Vessel Register by the Regional 

Administrator for that year.

(i) Active status. As early as August 1 

of each year, vessel owners or managing 

owners may submit to the Regional 

Administrator a vessel permit 

application and payment of the permit 

application fee and observer placement 

fee for each vessel in excess of 400 st 

(362.8 mt) carrying capacity qualified to 

be listed on the Vessel Register under 

paragraph (b)(2) of this section to have 

a vessel categorized as active for the 

following calendar year. Vessel permit 

applications may not be submitted via 

regular mail; they must be faxed to (562) 

980–4027. Owners or managing owners 

of vessels of 400 st (362.8 mt) carrying 

capacity or less must only submit 

payment of the observer placement fee 

associated with active status in order to 

request a small purse seine vessel be 

categorized as active for the following 

calendar year. The Regional 

Administrator must receive the faxed 

vessel permit application and payment 

of the observer placement fee and 

permit application processing fee no 

later than September 15 for vessels for 

which a DML was requested for the 

following year and no later than 

November 30 for vessels for which a 

DML was not requested for the 

following year. Submission of the vessel 

permit application and payment of the 

observer placement fee and permit 

application processing fee will be 

interpreted by the Regional 

Administrator as a request for a vessel 

to be categorized as active. The 

following restrictions apply to active 

status:

(A) The cumulative carrying capacity 

of all vessels categorized as active on 

the Vessel Register may not exceed 

8,969 mt in a given year;

(B) A vessel may not be added to 

active status on the Vessel Register 

unless the captain of the vessel has 

obtained a valid operator permit under 

§ 216.24(b)(2) of this title;

(C) For 2005 only, requests for vessels 

will be prioritized on a first-come, firstserved basis according to the date and 

time the fax is received in the office of 

the Regional Administrator;

(D) Requests for active status for 2006 

and subsequent years will be prioritized 

according to the following hierarchy:

(1) Requests received for vessels that 

were categorized as active in the 

previous year, beginning with the 

vessel’s status in 2005, unless the 

request for active status was determined 

to be frivolous by the Regional 

Administrator under paragraph (b)(4)(ii) 

of this section;

(2) Requests received for vessels that 

were categorized as inactive under 

paragraph (b)(4)(iii) of this section in the 

previous year, beginning with the 

vessel’s status in 2005;

(3) Requests for vessels not described 

in paragraphs (b)(4)(D)(1) or (2) of this 

section will be prioritized on a firstcome, first-served basis according to the 

date and time stamp printed by the 

incoming fax machine upon receipt, 

provided that the associated observer 

placement fee is paid by the applicable 

deadline described in § 216.24(b)(6)(iii) 

of this title; and

(4) Requests received from owners or 

managing owners of vessels that were 

determined, by the Regional 

Administrator, to have made a frivolous 

request for active status, under 

paragraph (b)(4)(ii) of this section.

(ii) Frivolous requests for active 

status. Beginning with requests made for 

2005, a request for active status under 

paragraph (b)(4)(i) of this section will be 

considered frivolous, unless as a result 

of force majeure or other extraordinary 

circumstances as determined by the 

Regional Administrator, if, for a vessel 

categorized as active in a given calendar 

year, less than 20 percent of the vessel’s 

total landings, by weight, in that same 

year is comprised of tuna harvested by 

purse seine in the Convention Area.

(iii) Inactive status. From August 1 

through November 30 of each year, 

vessel owners or managing owners may 

request that vessels qualified to be listed 

on the Vessel Register under paragraph 

(b)(2) of this section be categorized as 

inactive for the following calendar year 

by submitting to the Regional 

Administrator payment of the associated 

observer placement fees. Payment of the 

observer placement fee consistent with 

inactive status will be interpreted by the 

Regional Administrator as a request for 

the vessel to be categorized as inactive.

(5) Removal from the Vessel Register.

A vessel may be removed from the

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63131

Vessel Register by the Regional 

Administrator:

(i) If the vessel has sunk;

(ii) Upon written request by the 

vessel’s owner or managing owner;

(iii) If the vessel owner or managing 

owner does not pay the observer 

placement fee associated with the 

vessel’s active or inactive status on the 

Vessel Register for a given calendar 

year;

(iv) If the vessel owner or managing 

owner does not submit, within the 

allotted time, a vessel permit 

application and permit processing fee;

(v) If the United States Coast Guard 

notifies NMFS that the U.S. 

documentation for the vessel has been 

deleted; or

(vi) For serious violations, for failure 

to pay a penalty, or for default on a 

penalty payment agreement.

(6) Procedures for replacing vessels 

removed from the Vessel Register. (i) A 

vessel previously listed on the Vessel 

Register, but removed for a given year or 

years, may be added back to the Vessel 

Register and categorized as inactive at 

any time during the year, provided the 

owner of the vessel pays the observer 

placement fee associated with inactive 

status.

(ii) A vessel may be added to the 

Vessel Register and categorized as active 

in order to replace a vessel removed 

from active status under paragraph 

(b)(5) of this section, provided the total 

carrying capacity of active vessels does 

not exceed 8,969 mt and the owner 

submits a complete request under 

paragraph (b)(6)(iv) of this section.

(iii) After a vessel categorized as 

active is removed from the Vessel 

Register the Regional Administrator will 

notify owners or managing owners of 

vessels categorized as inactive that 

replacement capacity is available on the 

active list of the Vessel Register. In the 

event that owners of inactive vessels do 

not request to replace a removed vessel, 

the Regional Administrator will notify 

owners of vessels eligible for, but not 

included on, the Vessel Register that 

replacement capacity is available on the 

active list of the Vessel Register.

(iv) The owner or managing owner of 

a purse seine vessel of 400 st (362.8 mt) 

carrying capacity or less may request a 

vessel be categorized as active to replace 

a vessel removed from the Vessel 

Register by submitting payment of the 

observer placement fee to the Regional 

Administrator.

(v) The owner or managing owner of 

a purse seine vessel in excess of 400 st 

(362.8 mt) carrying capacity may request 

a vessel be categorized as active to 

replace a vessel removed from the 

Vessel Register by submitting the 

following items to the Regional 

Administrator:

(A) Payment of the observer 

placement fee;

(B) A vessel permit application faxed 

to (562) 980–4027;

(C) Payment of the permit application 

processing fee; and

(D) Verification that the captain of the 

vessel possesses a valid operator permit.

(vi) The Regional Administrator will 

forward requests to replace vessels 

removed from the Vessel Register within 

15 days of receiving each request.

[FR Doc. 04–24008 Filed 10–28–04; 8:45 am]

BILLING CODE 3510–22–S