[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Rules and Regulations]
[Pages 1607-1620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-499]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 070717339-81648-02]
RIN 0648-AV37


International Fisheries; Pacific Tuna Fisheries; Revisions to 
Regulations for Vessels Authorized to Fish for Tuna and Tuna-like 
Species in the Eastern Tropical Pacific Ocean and to Requirements for 
the Submission of Fisheries Certificates of Origin

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to revise regulations governing 
vessels authorized by the United States to fish for tuna and tuna-like 
species in the eastern tropical Pacific Ocean (ETP). This final rule 
updates and clarifies regulations promulgated by NMFS to implement the 
Marine Mammal Protection Act, the Tuna Conventions Act, the Dolphin 
Protection Consumer Information Act, and resolutions adopted by the 
Inter-American Tropical Tuna Commission (IATTC) and by the Parties to 
the Agreement on the International Dolphin Conservation Program 
(AIDCP). This rule modifies the procedures and requirements for the 
Vessel Register, the list of vessels authorized to fish for tuna and 
tuna-like species in the ETP. Requirements for the submission of 
certifications by importers are also revised. This rule is intended to 
clarify the regulations, facilitate management of U.S. vessels,

[[Page 1608]]

and update the regulations to be consistent with resolutions adopted by 
the members of the IATTC and the Parties to the AIDCP.

DATES: This final rule is effective February 12, 2009.

ADDRESSES: Supporting documents (including the Categorical Exclusion 
memo, Regulatory Flexibility Act certification memo, and Regulatory 
Impact Review) regarding this final rule can be found at the Federal 
eRulemaking Portal Web site at http://www.regulations.gov. Written 
comments regarding the burden-hour estimates or other aspects of the 
collection-of-information requirements contained in this final rule may 
be submitted to NMFS, Southwest Regional Office, 501 West Ocean Blvd, 
Suite 4200, Long Beach, CA 90802, and by e-mail to <a href="/cdn-cgi/l/email-protection#7d391c0b1419222f120e0916180f3d12101f5318120d531a120b"><span class="__cf_email__" data-cfemail="82c6e3f4ebe6ddd0edf1f6e9e7f0c2edefe0ace7edf2ace5edf4">[email protected]</span></a>, or by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Susan Wang, NMFS, Southwest Region, 
Protected Resources Division, at (562) 980-4199.

SUPPLEMENTARY INFORMATION:

Background

    The United States is a member of the IATTC, 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 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[deg] N. latitude and 40[deg] S. latitude, 
and the 150[deg] W. longitude (50 CFR 300.21). Resolutions under the 
IATTC are adopted by consensus and are binding on the members of the 
IATTC. The Tuna Conventions Act (16 U.S.C. 951 et seq.) authorizes the 
Secretary of Commerce to promulgate regulations implementing IATTC 
resolutions. The Secretary's authority has been delegated to the 
Assistant Administrator for Fisheries, NMFS.
    The United States is also a Party to the AIDCP. The AIDCP was 
established in May 1998 when eight nations, including the United 
States, signed a binding, international agreement to implement the 
International Dolphin Conservation Program (IDCP). The agreement became 
effective on February 15, 1999, and provides greater protection to 
dolphin stocks and enhanced conservation of yellowfin tuna and other 
living marine resources in the ETP. The IDCP and resolutions adopted by 
the Parties to the AIDCP are implemented domestically under the Marine 
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.).
    Regulations implementing the International Dolphin Conservation 
Program, Tuna Conventions Act, DPCIA, and resolutions adopted by the 
IATTC and AIDCP concerning tuna fisheries in the ETP are codified at 50 
CFR parts 216 and 300. On July 11, 2008, NMFS published a proposed rule 
in the Federal Register (73 FR 39915), to revise these regulations in 
order to facilitate management of U.S. vessels authorized to fish for 
tuna and tuna-like species in the Convention Area and to ensure 
consistency between the operation of these vessels and resolutions 
adopted by the IATTC and the IDCP. In that proposed rule, NMFS 
solicited public comment on revisions to the regulations to require: 
(1) the collection of a vessel photograph and vessel information from 
all commercial fishing vessels and commercial passenger fishing vessels 
(CPFVs) authorized to fish for tuna and tuna-like species in the 
Convention Area; (2) annual written notification to list a small purse 
seine vessel as active or inactive; (3) written notification of the 
intent to transfer a purse seine vessel appearing on the IATTC's Vessel 
Register to foreign registry and flag; (4) payment of an ETP purse 
seine vessel operator permit application fee; (5) for vessels 
authorized to set on dolphins, vessel inspections twice per year and 
the use of high-intensity floodlights; (6) requests for active status 
on the IATTC Vessel Register to be treated as frivolous if a purse 
seine vessel was listed as active but did not fish for tuna at all in 
the Convention Area; (7) removal of vessels from the Vessel Register if 
the owner lacks valid vessel documentation, or, for tuna purse seine 
vessels, if the owner has made a frivolous request or has notified NMFS 
of the intent to transfer the vessel to foreign registry and flag; (8) 
submission of certifications by importers to be within 10 days of 
importing a shipment into the United States, rather than within 30 
days; and (9) electronic submissions of certifications to be in 
Portable Document Format (PDF). Public comment was also solicited on 
numerous non-substantive modifications and clarifications to the 
regulations.
    In this final rule, NMFS adopts most of the revisions in the 
proposed rule, as described above. In this final rule, NMFS responds to 
public comments and makes technical modifications, described in more 
detail under the section titled ``Changes from the Proposed Rule.''

Responses to Comments

    NMFS solicited public comments on the proposed rule. A public 
hearing was held on July 28, 2008, and the public comment period closed 
on August 11, 2008. One comment was received at the public hearing and 
4 comments by fax, standard mail, or electronically from 
representatives of the tuna import and tuna fishing industry, the 
Marine Mammal Commission (an independent agency of the U.S. 
government), and non-profit organizations. The key issues and concerns 
are summarized below and responded to as follows:

General Comments on the Purpose of the Proposed Revisions

    Comment 1: One commenter asked for additional explanation regarding 
the need for and appropriateness of the proposed changes, especially 
those governing the tuna purse seine portion of the Vessel Register, 
given the low level of participation in the U.S. ETP tuna purse seine 
fishery. In particular, the commenter noted that: (1) the U.S. ETP 
purse seine fleet has not come near to approaching its 8,969-metric ton 
(mt) capacity limit; (2) currently, there are only two purse seine 
vessels categorized as active on the Vessel Register; and (3) the 
majority of U.S. Vessels on the IATTC Vessel Register are non-purse 
seine vessels, but the proposed regulations would have limited effects 
on the operations of these vessels.
    Response: Even if our vessel numbers are relatively few, the United 
States is still obligated by the AIDCP and the Convention to ensure 
that U.S. vessels and persons operate in compliance with our treaty 
obligations. Participation of U.S. vessels in the ETP tuna purse seine 
fishery has fluctuated over the years. Although current participation 
is low, NMFS recognizes that conditions could change and participation 
increase again. It is also important to prevent the transfer of 
capacity to other nations to fulfill our commitment to limiting the 
total purse seine fleet capacity in the ETP (IATTC Resolution on the 
capacity of the tuna fleet operating in the eastern Pacific Ocean; C-
02-03, June 2002). Finally, the IATTC requires that all vessels (purse 
seine and non-purse seine) authorized to fish for tuna and tuna-like 
species in the ETP be listed on the Vessel Register (IATTC Resolution 
on a Regional Vessel Register; C-00-06, June 2000). The IATTC imposes 
additional requirements for purse seine vessels listed on the Vessel 
Register, but not for non-purse seine vessels. Thus, the regulations 
being revised by this rule focus primarily on the ETP tuna purse seine 
fleet. The regulations

[[Page 1609]]

governing non-purse seine vessels are not being changed at this time 
and are located at other sections of the CFR.

Definition of Tuna Product

    Comment 2: One commenter opposed the revision to the definition of 
the term ``tuna product'' that would limit the definition to products 
intended for human consumption, stating that such a definition would be 
inconsistent with the intent of Congress in the DPCIA. The commenter 
recommended that NMFS not adopt the revised definition.
    Response: Upon consideration of the comment, the definition for the 
term ``tuna product'' will not be revised and will remain as it is 
currently defined at 50 CFR 216.3.

Vessel Register Requirements

    Comment 3: NMFS received one comment that the preamble to the 
proposed rule incorrectly stated that the capacity limit of the U.S. 
tuna purse seine fleet under the IATTC capacity resolution is 8,969 mt. 
The commenter recommended filing an amended Federal Register notice 
with a new public comment period to correct this error. The commenter 
emphasized that the United States agreed to limit the U.S. tuna purse 
seine fleet to a capacity of 8,969 mt so long as the June 2002 
Resolution on the capacity of the tuna fleet operating in the ETP 
(Revised; C-02-03) remained in force and was respected by all Parties 
(referencing a letter written in 2002 by Mary Beth West, U.S. 
Department of State, to Robin Allen, Director of the IATTC). The 
commenter contended that the resolution to limit the capacity of the 
tuna purse seine fleet in the ETP has not been respected by all 
Parties, and thus the U.S. tuna purse seine fleet should not be bound 
to the capacity limit of 8,969 mt.
    Response: We agree with the commenter and clarify here that the 
U.S. ETP tuna purse seine fleet's capacity limit of 8,969 mt is a self-
imposed capacity limit agreed to by the United States, and is not the 
capacity limit established for the United States in the IATTC's 2002 
resolution on capacity (C-02-03). We do not believe it is necessary or 
required, however, to file an amended Federal Register notice with a 
new public comment period. The regulatory provisions regarding the 
capacity limit of 8,969 mt were already established in regulation and 
were not proposed to be revised. The current regulations at 50 CFR 
300.22(b)(4)(i)(A) state that ``[t]he cumulative carrying capacity of 
all vessels categorized as active on the Vessel Register may not exceed 
8,969 mt in a given year.'' The current regulations also allow 
additional U.S. purse seine vessels to be added to the Vessel Register 
and categorized as active to replace a vessel removed from the active 
list, ``provided the total carrying capacity of active vessels does not 
exceed 8,969 mt'' (50 CFR 300.22(b)(7)(ii)). These provisions were 
adopted in 2005 by notice-and-comment rulemaking (70 FR 19004, April 
12, 2005).
    Comment 4: One commenter stated that the current size categories 
distinguishing purse seine vessels capable of setting on or encircling 
dolphins (``large'' vessels exceeding 400 short tons (st) (362.8 mt) 
carrying capacity) from those that are not capable (``small'' vessels 
of 400 st (362.8 mt) carrying capacity or less) are no longer valid. 
The commenter noted that the proposed rule maintains this distinction 
and does not address the directive in the 2005 Consolidated 
Appropriations Act (Pub. L. No. 108-447) instructing NMFS to dedicate 
funding toward revising the definition for a vessel that is not capable 
of setting on or encircling dolphins. The commenter recommended that 
NMFS propose a new definition or at least explain what has been done 
and what NMFS is doing to address the directive from the 2005 
Consolidated Appropriations Act.
    Response: Revising the definition for a purse seine vessel that is 
not capable of setting on or encircling dolphins is not within the 
scope of this rulemaking. Researchers at the Southwest Fisheries 
Science Center (SWFSC), however, have been working on studies to 
address this issue in response to the directive given in the 2005 
Consolidated Appropriations Act. Since 2006, the SWFSC has been 
contracting with the IATTC staff to sample the landed catch of Class 4 
- 5 (``small'') purse seine vessels in international ports. The SWFSC 
has also been collecting data on various characteristics of the sampled 
Class 4 5 purse seine vessels (e.g., number of speed boats, presence of 
a dolphin safety panel) to collect more refined information on what 
characteristics, beyond size class and horsepower, make a vessel 
capable of setting on dolphins. The SWFSC examined the catch 
composition data to try to predict whether tuna sets were made on 
dolphins or not, based on the idea that yellowfin tuna caught in 
association with dolphins are larger and generally comprise a much 
larger percentage of the catch compared to other set types. From the 
data, the SWFSC can identify tuna sets that do not fit the usual 
profile of a sample not caught in association with dolphins. The 
analyses are not final, however, nor do the data provide definitive 
proof of whether a vessel is setting on dolphins or not. In addition, 
although funding was set aside to provide for observers on Class 4 - 5 
purse seine vessels, no vessels have agreed to participate in the 
voluntary observer program. Without observer data for these vessels, 
there is insufficient data to support a finding that vessels of 400 st 
(362.8 mt) carrying capacity or less have a regular and significant 
association with dolphins in the fishery.
    NMFS will continue to work on addressing this issue. It is 
important to note, however, that developing a revised definition is but 
one step in the process. Several aspects of the approval and 
implementation of a revised definition are beyond the authority of 
NMFS. For international purposes, revised definitions for purse seine 
vessels capable of setting on or encircling dolphins (i.e., ``large'' 
vessels) and for those not capable of setting on or encircling dolphins 
(i.e., ``small'' vessels) would have to be approved by the Parties to 
the AIDCP. An example of this would be requiring observer coverage on 
what are now considered ``small vessels.''
    Comment 5: One commenter stated that reporting a vessel's fish hold 
capacity in cubic meters is not currently a requirement under the 
Pacific Fishery Management Council's (PFMC) Highly Migratory Species 
(HMS) Fishery Management Plan (FMP), the Western PFMC's Pelagic 
Fisheries FMP, or the High Seas Fisheries Compliance Act (HSFCA), and 
that requiring the reporting of this information is unnecessary and 
burdensome given that there is no IATTC resolution on capacity for 
these vessels.
    Response: The IATTC Vessel Register, established in June 2000 by 
the IATTC Resolution on a Regional Vessel Register (C-00-06), is the 
list of all vessels authorized by the member nations to fish for tuna 
and tuna-like species in the Convention Area. As a member of the IATTC, 
the United States is required to submit specific information on such 
vessels, in order to update and maintain the Vessel Register. To meet 
this requirement, the revised regulations would require collection of 
vessel information from all commercial fishing vessels and CPFVs 
authorized by the United States to fish for tuna and tuna-like species 
in the Convention Area. One piece of information required for the 
Vessel Register is the vessel's fish hold capacity in cubic meters. For 
vessels authorized to fish for tuna and tuna-like species in the 
Convention Area under the HMS FMP, the fish hold capacity in cubic 
meters is already

[[Page 1610]]

collected on the Pacific HMS permit application. For all other non-
purse seine vessels, NMFS is planning a separate rulemaking action to 
collect this and other required Vessel Register information through the 
HSFCA permit application. The commenter is correct that fish hold 
capacity in cubic meters is not currently collected on the HSFCA permit 
application. However, as stated above, this information is required to 
be collected for the purposes of the IATTC Vessel Register.
    Comment 6: One commenter questioned why the 10-percent surcharge 
for late payment of the vessel assessment fee would apply to ETP tuna 
purse seine vessels for which active or inactive status is requested 
during the calendar year and requested clarification on when the 10-
percent surcharge applies.
    Response: According to the minutes for the 16th Meeting of the 
Parties to the AIDCP (October 26, 2006), the 10-percent late fee 
applies to vessels entering the fishery during the course of the year 
only if the vessel fished in the Convention Area in the previous 
calendar year. Thus, payment of the vessel assessment fee is considered 
late and subject to the 10-percent late fee for vessels for which 
active status is requested: (1) during the calendar year, only if the 
vessel was listed as active in the previous calendar year and was not 
listed as inactive at the beginning of the calendar year; or (2) for 
the following calendar year, only if payment of the fee is received 
after the applicable dates (September 15 if a dolphin mortality limit 
(DML) is requested and November 30 if a DML is not requested) and the 
vessel was listed as active in the year the request was made. The 10-
percent late fee would not apply to purse seine vessels for which 
inactive status is requested or to purse seine vessels licensed under 
the South Pacific Tuna Treaty (SPTT) that are exercising their option 
to make a single trip into the ETP per year. The regulatory text has 
been corrected and revised to clarify when the 10-percent late fee 
would apply (see the section titled ``Changes from the Proposed Rule'' 
for more details).
    Comment 7: One commenter stated that it is unfair to impose a 
penalty for frivolous requests because there are economic (e.g., fuel 
prices, fish prices) or other reasons (e.g., ocean conditions) for why 
a vessel may not land any tuna or why tuna would make up less than 20 
percent of its total catch by weight in a given year. The commenter 
noted that this would be particularly unfair if it applied to small 
purse seine vessels, longline vessels, and troll vessels.
    Response: The frivolous request criteria apply only to owners of 
tuna purse seine vessels who have requested that a vessel be 
categorized as active on the Vessel Register, but did not fish for tuna 
at all in the Convention Area in that same year, or when less than 20 
percent of the vessel's total landings was comprised of tuna harvested 
by purse seine in the Convention Area in that same year. The main 
purpose of the frivolous request determinations is to deter vessel 
owners who are not planning to actively fish for tuna from requesting 
active status and occupying a portion of the U.S. fleet's limited 
capacity. Factors such as those mentioned by the commenter should be 
taken into account before applying for active status. In addition, the 
regulations allow for the consideration of extraordinary circumstances, 
or circumstances beyond the control of the vessel owner, in determining 
whether a request is frivolous. We also note that, although frivolous 
requests apply to small purse seine vessels, there would be little to 
no effects on small purse seine vessels, because they are not required 
to be categorized as active on the Vessel Register as long as tuna 
caught in the Convention Area comprise 50 percent or less of the 
vessel's total landings in a given year.

Revised Floodlight Requirements for Tuna Purse Seine Vessels with 
Dolphin Mortality Limits (DMLs)

    Comment 8: Two comments were received regarding the revised 
floodlight requirements for tuna purse seine vessels with DMLs. One 
commenter requested clarification that these requirements apply only to 
Class 6 purse seine vessels and not to troll or long line vessels. 
Another commenter requested that more explanation be added to reiterate 
that the prohibitions on making sundown sets and on initiating sets at 
night still apply.
    Response: The revised floodlight requirements apply only to tuna 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity to 
which a DML has been assigned. The floodlight requirements do not alter 
the prohibition on making sundown sets, codified at 50 CFR 
216.24(c)(6)(iii). Instead, the floodlights are required to ensure that 
dolphins are released successfully from any sets that have not been 
completed by sundown.

Fisheries Certificates of Origin and Verification of Dolphin-Safe 
Labeling Standards

    Comment 9: One commenter questioned why NMFS proposed to shorten 
the maximum time (the deadline) for submitting Fisheries Certificates 
of Origin (FCOs) from within 30 days to within 10 days of the 
shipment's entry into U.S. commerce. The commenter asked if there have 
been enforcement issues that led to this proposed revision and 
expressed concern that 10 days may not provide sufficient time to 
submit the certifications.
    Response: NMFS proposed to reduce the time required for submitting 
FCOs and associated certifications from within 30 days to within 10 
days to aid in enforcement of the regulations. NMFS routinely 
identifies importers of record that fail to comply with the regulations 
to submit the FCO form, or that submit incomplete forms. As stated in 
the preamble of the proposed rule, by 30 days the tuna or products may 
already be offered for sale, purchased, or consumed before violations 
of the requirements governing certification are determined. Requiring 
the submission of FCOs and associated certifications within 10 days of 
the shipment's import into U.S. commerce would allow NMFS to determine 
violations of the certification requirements early enough to more 
effectively respond with any necessary enforcement actions and options 
(e.g., holding the tuna or tuna products if a violation of dolphin-safe 
standards has been determined). Regarding whether 10 calendar days is 
sufficient time for importers to submit the forms to NMFS, we note that 
importers are already required to submit completed FCOs to U.S. Customs 
and Border Protection (CBP) upon import of a shipment into the United 
States. The only additional piece of information required prior to 
submitting the form to NMFS is the Customs Entry Number and date of 
entry (required to link the forms to the electronic import data 
received from CBP). Most importers already submit their forms within 10 
days of the shipment's entry into U.S. commerce. The remaining 
importers currently submit their forms monthly, but should have 
sufficient time to submit their forms within the 10 day time period.
    Comment 10: One commenter identified two problems with the 
regulations at 50 CFR 216.91(a)(2)(i) requiring written certification 
of the dolphin-safe status of tuna caught by purse seine: (1) the 
falsification of dolphin-safe verification forms by observers; and (2) 
the requirement that observers issue or endorse only documents approved 
by the Parties to the AIDCP (this was identified as a problem, because 
the Parties to the AIDCP do not recognize United States standards for 
dolphin-safe tuna). The

[[Page 1611]]

commenter recommended holding a workshop to discuss these problems.
    Response: NMFS recognizes the issues raised by the commenter; 
however, these issues are beyond the scope of this rule, as well as 
beyond the authority of NMFS. These issues would be more appropriately 
addressed by the International Review Panel established by the AIDCP. 
The AIDCP routinely assesses and evaluates these issues to determine 
whether any amendments to resolutions should be considered. In 
addition, the paragraph of the regulations referred to by the commenter 
at 50 CFR 216.91(a)(2)(i) deals with tuna purse seine vessels operating 
outside of the ETP. These regulations are not yet applicable because 
the Assistant Administrator has not determined that a regular and 
significant association occurs between dolphins and tuna outside of the 
ETP. However, these regulations provide provisions for dolphin-safe 
labeling standards should such a determination be made in the future.

Direct Notification Regarding IATTC Management Recommendations and 
Resolutions

    Comment 11: Two commenters questioned the removal of the 
requirement at 50 CFR 300.25(a) that the Regional Administrator, 
Southwest Region, must directly notify owners or agents of U.S. tuna 
vessels regarding IATTC recommendations. The commenters stated that 
direct notification is a more effective method of providing notice than 
publishing the information in the Federal Register.
    Response: The main purpose of the revisions to 50 CFR 300.25(a) is 
to clarify that the IATTC recommendations and resolutions are 
implemented through appropriate notice-and-comment rulemaking in the 
Federal Register and that the Federal Register document would serve as 
the public notification. NMFS plans to continue providing direct 
notification to affected entities regarding IATTC management 
recommendations and resolutions as a courtesy to these entities, but 
not as a requirement under the regulations.

Live Fish Transfers

    Comment 12: Two comments were received stating that this rule does 
not address the issue of the transshipment of tuna caught by purse 
seine from one vessel to another vessel at sea in the Convention Area. 
One commenter recommended that this rule should address the prohibition 
on the transshipment of live tuna.
    Response: The issue of the transshipment of live tuna at sea in the 
Convention Area is outside of the scope of this rule. This rule was not 
intended as the vehicle to deal with this issue. NMFS plans to address 
this issue in a future rulemaking.

Additional Updates to the Regulations

    Comment 13: One commenter suggested updating the regulations at 50 
CFR 300.22(b)(4)(i) by removing the provisions referencing the years 
2005 and 2006, because these provisions are no longer applicable.
    Response: NMFS agrees with the suggested revisions to remove the 
outdated provisions in 50 CFR 300.22(b)(4)(i). The revisions are 
included in this final rule and described in more detail in the 
``Changes from the Proposed Rule'' section below.

Changes from the Proposed Rule

Definitions for Tuna Product and Tuna Species

    In response to the public comments, the definition of the term 
``tuna product'' will not be revised as described in the proposed rule. 
The definition for ``tuna product'' will remain as defined at 50 CFR 
216.3 to mean ``any food product processed for retail sale and intended 
for human or animal consumption that contains an item listed in Sec.  
216.24(f)(2)(i) or (ii), but does not include perishable items with a 
shelf life of less than 3 days.''
    In addition, the proposed rule would have added to 50 CFR 216.3 a 
definition for ``Bluefin tuna'' to mean the species Thunnus thynnus, in 
order to define the term as used in the Harmonized Tariff Schedule of 
the United States (HTS). This definition was meant to include both 
Atlantic and Pacific bluefin tuna, because the HTS uses the general 
term ``Bluefin tuna'' to refer to both. It was brought to our 
attention, however, that Atlantic bluefin tuna are referred to as 
Thunnus thynnus, whereas Pacific bluefin tuna are referred to as 
Thunnus orientalis. In order to include both the Atlantic and Pacific 
bluefin tuna, this final rule revises the definition of ``Bluefin 
tuna'' to mean the species Thunnus thynnus or Thunnus orientalis.

Clarification on Late Fees for Vessel Assessment Fees

    In 50 CFR 216.24(b)(6)(iii)(F), we clarified under what 
circumstances payment of the vessel assessment fee would be considered 
late and would be subject to a 10-percent surcharge. However, the 
proposed rule contained some errors that are clarified and corrected in 
this final rule.
    In this final rule, we clarify that payment of the vessel 
assessment fee is considered late and subject to a 10-percent surcharge 
for purse seine vessels: (1) for which active status is requested to 
replace a vessel removed from active status on the Vessel Register 
during the year, if the vessel was listed as active in the previous 
calendar year and was not listed as inactive at the beginning of the 
calendar year; or (2) for which active status is requested for the 
following calendar year, if payment is made after the applicable 
deadline (September 15 if a DML is requested and November 30 if a DML 
is not requested) and the vessel was listed as active in the same year 
the request was made. Payment of the vessel assessment fee is not 
considered late and not subject to the 10-percent surcharge for purse 
seine vessels: (1) for which inactive status is requested; (2) for 
which active status is requested to replace a vessel removed from 
active status on the Vessel Register during the year, if the vessel was 
not listed as active in the previous calendar year or the vessel was 
listed as inactive at the beginning of the calendar year; or (3) for 
which active status is requested for the following calendar year, if 
the vessel was not listed as active in that same year the request was 
made. Payment of the vessel assessment fee is also not considered late 
and not subject to the 10-percent surcharge for purse seine vessels 
licensed under the South Pacific Tuna Treaty (SPTT) that exercise their 
option to make a single trip into the ETP per calendar year. This final 
rule revises 50 CFR 216.24(b)(6)(iii)(F), 300.22(b)(4)(iii), and 
300.22(b)(7) accordingly.

Additional Non-Substantive Revisions and Updates

    In response to the public comments, this final rule revises 50 CFR 
300.22(b)(4)(i) to remove outdated provisions that were established to 
specify how requests for active status would be handled in 2005 and 
2006, because these provisions are no longer applicable. Revisions are 
made to 50 CFR 300.22(b)(4)(i) to: (1) remove paragraph Sec.  
300.22(b)(4)(i)(C), which states that for 2005 only, requests for 
active status on the purse seine list will be prioritized on a first-
come, first-served basis; (2) remove the references to the years 2005 
and 2006 in the introductory paragraph of Sec.  300.22(b)(4)(i)(D) and 
paragraphs Sec.  300.22(b)(4)(i)(D)(1) and (2); and (3) redesignate 
paragraph Sec.  300.22(b)(4)(i)(D) as paragraph Sec.  
300.22(b)(4)(i)(C). This final rule also revises the introductory 
paragraph to 50 CFR 300.22(b)(4)(ii) to remove the phrase ``Beginning 
with requests made

[[Page 1612]]

for 2005'', because this is an outdated provision.
    This final rule also adds to 50 CFR 216.24(f)(2)(i)(D) and 
216.24(f)(2)(ii)(D) the HTS number 1604.20.1000 for fish pastes, to 
clarify that products imported into the United States under this HTS 
number that contain yellowfin tuna or other tuna must be accompanied by 
a properly completed FCO. This addition is within the scope of the 
proposed rule, which clarified at 50 CFR 216.24(f)(2)(i) and 
216.24(f)(2)(ii) that all shipments containing tuna or tuna products 
(except fresh tuna) imported into the United States must be accompanied 
by an FCO.
    This final rule revises 50 CFR 300.22(b)(7)(iv) and 300.22(b)(7)(v) 
to clarify that a replacement vessel can be categorized as active on 
the Vessel Register to replace one or more vessels removed from the 
Vessel Register, rather than just one vessel. The regulatory language 
at 50 CFR 300.22(b)(7)(iv) and 300.22(b)(7)(v) will be revised to read: 
``The replacement vessel will be eligible to be categorized as active 
on the Vessel Register if it has a carrying capacity equal to or less 
than the vessel or vessels being replaced.'' Also, the final rule adds 
to 50 CFR 300.21 a definition for ``Regional Administrator'' to clarify 
that the term refers to the Regional Administrator, Southwest Region.

Classification

Executive Order 12866
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. NMFS prepared a Regulatory Impact 
Review for the proposed rule, available at the Federal E-Rulemaking 
Portal Web site at http://www.regulations.gov. No comments were 
received regarding the Regulatory Impact Review, and no further 
analyses were conducted for this final rule.
Regulatory Flexibility Act
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) during the proposed rule stage that this action 
would not have a significant economic impact on a substantial number of 
small entities. The factual basis for the certification was published 
in the proposed rule and is not repeated here. No comments were 
received regarding this certification. As a result, a regulatory 
flexibility analysis was not required and none was prepared.
Paperwork Reduction Act
    This final rule contains new and revised collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA) and which 
have been approved by the Office of Management and Budget (OMB) under 
control number 0648-0387. The following collection-of-information 
requirements have been approved by OMB: (1) collection of a vessel 
photograph as part of the ETP tuna purse seine vessel permit 
application; (2) annual written notification to request a tuna purse 
seine vessel of 400 st (362.8 mt) carrying capacity or less be 
categorized as active on the Vessel Register, including the owner or 
managing owner's signature and business telephone and fax numbers and 
the required Vessel Register information (i.e., the vessel name, 
registration number, and previous name(s) and flag(s); a vessel 
photograph with the vessel registration number legible; the name and 
business address of the owner(s) and managing owner(s); port of 
registry; International Radio Call Sign; where and when built; length, 
beam, and moulded depth; gross tonnage, fish hold capacity, and 
carrying capacity; engine horsepower; and type of fishing method(s)); 
(3) annual written notification to request that a tuna purse seine 
vessel of 400 st (362.8 mt) carrying capacity or less be categorized as 
inactive on the Vessel Register, including the vessel name, 
registration number, and vessel owner or managing owner's name, 
signature, business address, and business telephone and fax numbers; 
and (4) written notification prior to submitting an application to 
transfer a purse seine vessel listed on the Vessel Register to foreign 
registry and flag, including the vessel name and registration number, 
the estimated submission date of the application, and the vessel owner 
or managing owner's name and signature. Public reporting burdens per 
individual response for the new and revised collection-of-information 
requirements are estimated to average 35 minutes for the ETP tuna purse 
seine vessel permit application; 35 minutes for the written 
notification to request active status; 5 minutes for the written 
notification to request inactive status; and 5 minutes for the written 
notification of the intent to transfer a vessel to foreign registry and 
flag. These reporting burden estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    This final rule also contains a non-substantive change subject to 
the PRA and which has been approved by OMB under control number 0648-
0335. The non-substantive change request submitted to and approved by 
OMB requires that the CBP importer of record submit a copy of the FCO 
and associated certifications to NMFS within 10 days of a shipment's 
entry into U.S. commerce, rather than within 30 days (except when the 
tuna will be processed in the United States, in which case the forms 
must be submitted to NMFS after endorsement by the final processor or 
exporter). The public reporting burden for the revised collection of 
information requirement would remain the same (estimated to average 20 
minutes per individual response), including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Send comments regarding these burden estimates or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS (see ADDRESSES) and by e-mail to <a href="/cdn-cgi/l/email-protection#f3b792859a97aca19c8087989681b39c9e91dd969c83dd949c85"><span class="__cf_email__" data-cfemail="7a3e1b0c131e252815090e111f083a151718541f150a541d150c">[email protected]</span></a>, or 
by fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
Endangered Species Act
    NMFS prepared a Biological Opinion for an interim final rule (65 FR 
30, January 3, 2000) to implement the IDCP in December 1999, and in 
July 2004 issued an amended Incidental Take Statement after taking into 
account the revisions made in the 2004 final rule (69 FR 55288, 
September 13, 2004). In the 1999 Biological Opinion, NMFS concluded 
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. This rule 
would not result in any effects beyond those considered in the 1999 
Biological Opinion and 2004 Incidental Take Statement.
National Environmental Policy Act
    NMFS prepared an Environmental Assessment (EA) for a final rule (70 
FR 19004, April 12, 2005) to implement resolutions adopted by the IATTC 
and the IDCP. The Assistant Administrator for Fisheries concluded that 
fishing activities conducted under the 2004 final rule would not be 
expected to

[[Page 1613]]

result in significant effects on the human environment. This rule would 
not be expected to result in modifications to fisheries operations or 
effects on the human environment beyond those considered under the 
alternatives in the EA. This action has been categorically excluded 
from the requirement to prepare an environmental assessment or 
environmental impact statement. A memo to the record was prepared for 
the proposed rule memorializing this decision and is available at the 
Federal E-rulemaking Portal Web site: http://www.regulations.gov. No 
comments were received regarding the categorical exclusion memo, and no 
further analyses were conducted under NEPA for this rule.
Marine Mammal Protection Act
    Incidental take of dolphins and other marine mammals may occur 
during fishing operations by U.S. tuna purse seine vessels in the ETP. 
The take of dolphins incidental to the operation of the U.S. ETP tuna 
purse seine fishery is authorized and managed under the IDCP. This rule 
would not affect the administration of that program, which is 
implemented under the MMPA.

List of Subjects

50 CFR Part 216

    Fish, Marine mammals, Reporting and recordkeeping requirements.

50 CFR Part 300

    International fisheries regulations, Pacific tuna fisheries.

    Dated: January 7, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR parts 216 
and 300 as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. In Sec.  216.3, add definitions for ``Albacore tuna'', ``Bigeye 
tuna'', ``Bluefin tuna'', ``Longtail tuna'', ``Skipjack tuna'', 
``Southern bluefin tuna'', ``Tuna'', and ``Yellowfin tuna'' in 
alphabetical order to read as follows:


Sec.  216.3  Definitions.

* * * * *
    Albacore tuna means the species Thunnus alalunga.
* * * * *
    Bigeye tuna means the species Thunnus obesus.
    Bluefin tuna means the species Thunnus thynnus or Thunnus 
orientalis.
* * * * *
    Longtail tuna means the species Thunnus tonngol.
* * * * *
    Skipjack tuna means the species Euthynnus (Katsuwonus) pelamis.
* * * * *
    Southern bluefin tuna means the species Thunnus maccoyii.
* * * * *
    Tuna means any fish of the genus Thunnus and the species Euthynnus 
(Katsuwonus) pelamis.
* * * * *
    Yellowfin tuna means the species Thunnus albacares (synonomy: 
Neothunnus macropterus).

0
3. In Sec.  216.24, redesignate paragraph (f)(8)(i)(D)(3)(iii) as 
paragraph (f)(8)(ii) and redesignate paragraphs (f)(8)(iv), (f)(8)(v), 
and (f)(8)(vi) as paragraphs (f)(8)(iii), (f)(8)(iv), and (f)(8)(v); 
and revise paragraphs (a)(3), (b)(4), (b)(5), (b)(6)(ii), (b)(6)(iii), 
(c)(3)(viii), (c)(4)(i), (f)(2), (f)(3), (f)(4), (f)(10), and (f)(11), 
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) * * *
    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(ii) and (e)(1) 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 to the Administrator, Southwest Region, the 
vessel's date of exit from or subsequent entry into the permit area.
    (b) * * *
    (4) Application for vessel permit. ETP tuna purse seine vessel 
permit application forms and instructions for their completion are 
available from NMFS. To apply for an ETP vessel permit, a vessel owner 
or managing owner must complete, sign, and submit the appropriate form 
via fax to (562) 980-4047, for prioritization purposes as described 
under Sec.  300.22(b)(4)(i)(D)(3) of this title, allowing at least 15 
days for processing. To request that a vessel in excess of 400 st 
(362.8 mt) carrying capacity be categorized as active on the Vessel 
Register under Sec.  300.22(b)(4)(i) of this title in the following 
calendar year, the owner or managing owner must submit the vessel 
permit application via fax, payment of the vessel permit application 
fee, and payment of the vessel assessment fee no later than September 
15 for vessels for which a DML is requested for the following year, and 
no later than November 30 for vessels for which a DML is not requested 
for the following year.
    (5) Application for operator permit. An applicant for an operator 
permit must complete, sign, and submit the appropriate form obtained 
from NMFS and submit payment of the permit application fee to the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. Application forms and instructions for their completion are 
available from NMFS.
    (6) * * *
    (ii) Operator permit fee. The Assistant Administrator may require a 
fee to be submitted with an application for an operator permit. The 
level of such a fee shall be determined in accordance with the NOAA 
Finance Handbook and specified by the Administrator, Southwest Region, 
on the application form.
    (iii) Vessel assessment fee. The vessel assessment fee supports the 
placement of observers on individual tuna purse seine vessels, and 
maintenance of the observer program, as established by the IATTC or 
other approved observer program.
    (A) The owner or managing owner of a purse seine vessel for which a 
DML has been requested must submit the vessel assessment 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 is requested. Payment of 
the vessel assessment fee must be consistent with the fee for active 
status on the Vessel Register under Sec.  300.22(b)(4) of this title.
    (B) The owner or managing owner of a purse seine vessel for which 
active or inactive status on the Vessel Register, as defined in Sec.  
300.21 of this title, has been requested, but for which a DML has not 
been requested, must submit payment of the vessel assessment 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 vessel assessment fee is required only 
if the vessel is listed as active and is required to carry an

[[Page 1614]]

observer, or if the vessel is listed as inactive and exceeds 400 st 
(362.8 mt) in carrying capacity. Payment of the vessel assessment fee 
must be consistent with the vessel's status, either active or inactive, 
on the Vessel Register in Sec.  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 vessel 
assessment 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 Sec.  
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 Sec.  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 vessel assessment fee must be consistent with the fee for active 
status on the Vessel Register under Sec.  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 Sec.  300.22(b)(4) of this title during the year, 
must pay the vessel assessment fee associated with active status, less 
the vessel assessment fee associated with inactive status that was 
already paid, before NMFS will request the IATTC Director change the 
status of the vessel from inactive to active. Payment of the vessel 
assessment fee is required only if the vessel is required to carry an 
observer.
    (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 Sec.  300.22(b)(4) of this title during the year, must 
pay the vessel assessment fee associated with active status only if the 
vessel is required to carry an observer, before NMFS will request the 
IATTC Director change the status of the vessel to active.
    (F) Payments will be subject to a 10 percent surcharge if received 
under paragraph (b)(6)(iii)(E) of this section for vessels that were 
listed as active on the Vessel Register in the calendar year prior to 
the year for which active status was requested; or if received after 
the dates specified in paragraphs (b)(6)(iii)(A) or (b)(6)(iii)(B) of 
this section for vessels for which active status is requested if the 
vessel was listed as active during the year the request was made. 
Payments will not be subject to a 10 percent surcharge if received 
under paragraph (b)(6)(iii)(C) or (b)(6)(iii)(D) of this section, or if 
received under paragraph (b)(6)(iii)(E) of this section for vessels 
that were not listed as active on the Vessel Register in the calendar 
year prior to the year for which active status was requested. Payments 
will also not be subject to a 10 percent surcharge if received after 
the date specified in paragraph (b)(6)(iii)(B) of this section for 
vessels for which inactive status is requested, or for vessels for 
which active status is requested if the vessel was not listed as active 
during the year the request was made. The Administrator, Southwest 
Region, will forward all vessel assessment fees described in this 
section to the IATTC or to the applicable organization approved by the 
Administrator, Southwest Region.
* * * * *
    (c) * * *
    (3) * * *
    (viii) Lights. The vessel must be equipped with long-range, high-
intensity floodlights with a sodium lamp of at least 1000 watts, or a 
multivapour lamp of at least 1500 watts, for use in darkness to ensure 
sufficient light to observe that procedures for dolphin release are 
carried out and to monitor incidental dolphin mortality.
    (4) Vessel inspection--(i) Twice per year. At least twice during 
each calendar year, purse seine nets and other gear and equipment 
required under Sec.  216.24(c)(3) 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. The first such inspection shall be 
carried out before the vessel's request for a DML is submitted to the 
IATTC. The second such inspection shall be carried out before 
notification of any reallocation of DMLs for vessels with full-year 
DMLs or during the last quarter of the year for vessels with second-
semester DMLs.
* * * * *
    (f) * * *
    (2) Imports requiring a Fisheries Certificate of Origin. Shipments 
of tuna, tuna products, and certain other fish products identified in 
paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this section may 
not be imported into the United States unless a properly completed 
Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with 
U.S. Customs and Border Protection (CBP) at the time of importation.
    (i) Imports requiring a Fisheries Certificate of Origin, subject to 
yellowfin tuna embargo. All shipments containing yellowfin tuna or 
yellowfin tuna products (other than fresh tuna) imported into the 
United States must be accompanied by an FCO, including, but not limited 
to, those imported under the following Harmonized Tariff Schedule of 
the United States (HTS) numbers. Updated HTS numbers can be identified 
by referencing the most current HTS in effect at the time of 
importation, available at www.usitc.gov. The scope of yellowfin tuna 
embargoes and procedures for attaining an affirmative finding are 
described under paragraphs (f)(6) and (f)(8) of this section, 
respectively.

  (A) Frozen: (products containing Yellowfin)...........................
  0303.42.0020..........................  Yellowfin tunas, whole, frozen
  0303.42.0040..........................  Yellowfin tunas, head-on,
                                           frozen, except whole
  0303.42.0060..........................  Yellowfin tunas frozen, except
                                           whole, head-on, fillets,
                                           livers and roes
  0304.29.6097..........................  Tuna fish fillets, frozen, Not
                                           elsewhere specified or
                                           indicated (NESOI)
  0304.99.1090..........................  Tuna, frozen, in bulk or in
                                           immediate containers weighing
                                           with their contents over 6.8
                                           kg each, NESOI
  (B) Airtight Containers: (products containing Yellowfin)..............
  1604.14.1010..........................  Tunas and skipjack, in oil, in
                                           airtight containers, in foil
                                           or other flexible containers
                                           weighing with their contents
                                           not more than 6.8 kg each
  1604.14.1099..........................  Tunas and skipjack, in oil, in
                                           airtight containers, NESOI
  1604.14.2291..........................  Other tunas and skipjack, no
                                           oil, in foil/flexible
                                           airtight containers, not over
                                           6.8 kg, 4.8% of U.S.
                                           consumption of canned tuna
                                           during preceding year

[[Page 1615]]

 
  1604.14.2299..........................  Tunas, NESOI and skipjack, not
                                           in oil, in other airtight
                                           containers not over 7 kg,
                                           4.8% of U.S. consumption of
                                           canned tuna during preceding
                                           year
  1604.14.3091..........................  Tunas and skipjack, NESOI, not
                                           in oil, in foil or other
                                           flexible airtight containers,
                                           weighing with their contents
                                           not more than 6.8 kg each
  1604.14.3099..........................  Other tunas and skipjack, not
                                           in oil, in airtight
                                           containers, NESOI
  (C) Loins: (products containing Yellowfin)............................
  1604.14.4000..........................  Tunas and skipjacks, prepared
                                           or preserved, not in airtight
                                           containers, not in oil, in
                                           bulk or immediate containers
                                           with their contents over 6.8
                                           kg each
  1604.14.5000..........................  Tunas and skipjack, prepared
                                           or preserved, not in airtight
                                           containers, NESOI
  (D) Other: (products containing Yellowfin)............................
  1604.20.1000..........................  Fish pastes
  1604.20.2500..........................  Fish balls, cakes and
                                           puddings, not in oil, not in
                                           airtight containers, in
                                           immediate containers weighing
                                           with their contents not over
                                           6.8 kg each
  1604.20.3000..........................  Fish balls, cakes and
                                           puddings, NESOI
 

    (ii) Imports requiring a Fisheries Certificate of Origin, not 
subject to yellowfin tuna embargo. All shipments containing tuna or 
tuna products (other than fresh tuna or yellowfin tuna identified in 
paragraph (f)(2)(i) of this section) imported into the United States 
must be accompanied by an FCO, including, but not limited to, those 
imported under the following HTS numbers. Updated HTS numbers can be 
identified by referencing the most current HTS in effect at the time of 
importation, available at www.usitc.gov.

  (A) Frozen: (other than Yellowfin)....................................
  0303.41.0000..........................  Albacore or longfinned tunas,
                                           frozen, except fillets,
                                           livers and roes
  0303.43.0000..........................  Skipjack tunas or stripe-
                                           bellied bonito, frozen,
                                           except fillets, livers and
                                           roes
  0303.44.0000..........................  Bigeye tunas, frozen, except
                                           fillets, livers and roes
  0303.45.0000..........................  Bluefin tunas, frozen, except
                                           fillets, livers and roes
  0303.46.0000..........................  Southern bluefin tunas,
                                           frozen, except fillets,
                                           livers and roes
  0303.49.0100..........................  Tunas, frozen, except fillets,
                                           livers and roes, NESOI
  0304.29.6097..........................  Tuna fish fillets, frozen,
                                           NESOI
  0304.99.1090..........................  Tuna, frozen, in bulk or in
                                           immediate containers weighing
                                           with their contents over 6.8
                                           kg each, NESOI
  (B) Airtight Containers: (other than Yellowfin).......................
  1604.14.1010..........................  Tunas and skipjack, in oil, in
                                           airtight containers, in foil
                                           or other flexible containers
                                           weighing with their contents
                                           not more than 6.8 kg each
  1604.14.1091..........................  Tunas, albacore, in oil, in
                                           airtight containers, NESOI
  1604.14.1099..........................  Tunas and skipjack, in oil, in
                                           airtight containers, NESOI
  1604.14.2251..........................  Albacore tuna, not in oil, in
                                           foil/flexible airtight
                                           containers, weighing not over
                                           6.8 kg, 4.8% of U.S.
                                           consumption of canned tuna
                                           during preceding year
  1604.14.2259..........................  Albacore tuna, not in oil, in
                                           airtight containers weighing
                                           not over 7 kg, NESOI, 4.8% of
                                           U.S. consumption of canned
                                           tuna during preceding year
  1604.14.2291..........................  Other tunas and skipjack, no
                                           oil, in foil/flexible
                                           airtight containers, not over
                                           6.8 kg, 4.8% of U.S.
                                           consumption of canned tuna
                                           during preceding year
  1604.14.2299..........................  Tunas, NESOI and skipjack, not
                                           in oil, in other airtight
                                           containers, not over 7 kg,
                                           4.8% of U.S. consumption of
                                           canned tuna during preceding
                                           year
  1604.14.3051..........................  Tuna, albacore not in oil, in
                                           foil or other flexible
                                           airtight containers, weighing
                                           with contents not more than
                                           6.8 kg each, NESOI
  1604.14.3059..........................  Tuna, albacore not in oil, in
                                           airtight containers, NESOI
  1604.14.3091..........................  Tunas and skipjack, NESOI, not
                                           in oil, in foil or other
                                           flexible airtight containers,
                                           weighing with their contents
                                           not more than 6.8 kg each
  1604.14.3099..........................  Other tunas and skipjack, not
                                           in oil, in airtight
                                           containers, NESOI
  (C) Loins: (other than Yellowfin).....................................
  1604.14.4000..........................  Tunas and skipjacks, prepared
                                           or preserved, not in airtight
                                           containers, not in oil, in
                                           bulk or immediate containers
                                           with their contents over 6.8
                                           kg each
  1604.14.5000..........................  Tunas and skipjack, prepared
                                           or preserved, not in airtight
                                           containers, NESOI
  (D) Other: (only if the product contains tuna)........................
  1604.20.1000..........................  Fish pastes
  1604.20.2500..........................  Fish balls, cakes and
                                           puddings, not in oil, not in
                                           airtight containers, in
                                           immediate containers weighing
                                           with their contents not over
                                           6.8 kg each
  1604.20.3000..........................  Fish balls, cakes and
                                           puddings, NESOI
 


[[Page 1616]]

    (iii) Exports from driftnet nations only, requiring a Fisheries 
Certificate of Origin and official certification. The following HTS 
numbers identify categories of fish and shellfish, in addition to 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, as identified under paragraph (f)(7) of this section, and 
imported into the United States, including but not limited to those 
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)(4)(xiii) of this section.

  (A) Frozen:...........................................................
  0303.19.0012..........................  Chinook (King) salmon
                                           (Oncorhynchus tschawytscha),
                                           frozen, except fillets,
                                           livers and roes
  0303.19.0022..........................  Chum (dog) salmon
                                           (Oncorhynchus keta), frozen,
                                           except fillets, livers and
                                           roes
  0303.19.0032..........................  Pink (humpie) salmon
                                           (Oncorhynchus gorbuscha),
                                           frozen, except fillets,
                                           livers and roes
  0303.19.0052..........................  Coho (silver) salmon
                                           (Oncorhynchus kisutch),
                                           frozen, except fillets,
                                           livers and roes
  0303.19.0062..........................  Pacific salmon (Oncorhynchus
                                           masou, Oncorhynchus
                                           rhodurus), frozen, except
                                           fillets, livers and roes,
                                           NESOI
  0303.21.0000..........................  Trout (Salmo trutta;
                                           Oncorhynchus mykiss, clarki,
                                           aguabonita, gilae, apache,
                                           and chrysogaster), frozen,
                                           except fillets, livers and
                                           roes
  0303.22.0000..........................  Atlantic salmon (Salmo salar)
                                           and Danube salmon (Hucho
                                           hucho), frozen, except
                                           fillets, livers and roes
  0303.29.0000..........................  Salmonidae, frozen, except
                                           fillets, livers and roes,
                                           NESOI
  0303.61.0010..........................  Swordfish steaks, frozen,
                                           except fillets
  0303.61.0090..........................  Swordfish, frozen, except
                                           steaks, fillets, livers and
                                           roes
  0303.75.0010..........................  Dogfish (Squalus spp.),
                                           frozen, except fillets,
                                           livers and roes
  0303.75.0090..........................  Sharks, frozen, except
                                           dogfish, fillets, livers and
                                           roes
  0303.79.0079..........................  Fish, frozen, except fillets,
                                           livers and roes, NESOI
  0304.21.0000..........................  Swordfish fillets, frozen,
                                           NESOI
  0304.29.2066..........................  Fish fillets, skinned, frozen
                                           blocks weighing over 4.5 kg
                                           each, to be minced, ground or
                                           cut into pieces of uniform
                                           weights and dimensions, NESOI
  0304.29.6006..........................  Atlantic Salmonidae (Salmo
                                           salar) fillets, frozen, NESOI
  0304.29.6008..........................  Salmonidae fillets, frozen,
                                           except Atlantic salmon, NESOI
  0304.29.6099..........................  Fish fillets, frozen, NESOI
  0307.49.0010..........................  Squid fillets, frozen
  (B) Canned:...........................................................
  1604.11.2020..........................  Pink (humpie) salmon, whole or
                                           in pieces, but not minced, in
                                           oil, in airtight containers
  1604.11.2030..........................  Sockeye (red) salmon, whole or
                                           in pieces, but not minced, in
                                           oil, in airtight containers
  1604.11.2090..........................  Salmon NESOI, whole or in
                                           pieces, but not minced, in
                                           oil, in airtight containers
  1604.11.4010..........................  Chum (dog) salmon, not in oil,
                                           canned
  1604.11.4020..........................  Pink (humpie) salmon, not in
                                           oil, canned
  1604.11.4030..........................  Sockeye (red) salmon, not in
                                           oil, canned
  1604.11.4040..........................  Salmon, NESOI, not in oil,
                                           canned
  1604.11.4050..........................  Salmon, whole or in pieces,
                                           but not minced, NESOI
  1604.19.2000..........................  Fish, NESOI, not in oil, in
                                           airtight containers
  1604.19.3000..........................  Fish, NESOI, in oil, in
                                           airtight containers
  1605.90.6050..........................  Loligo squid, prepared or
                                           preserved
  1605.90.6055..........................  Squid except Loligo, prepared
                                           or preserved
  (C) Other:............................................................
  0305.30.6080..........................  Fish fillets, dried, salted or
                                           in brine, but not smoked,
                                           NESOI
  0305.41.000...........................  Pacific salmon (Oncorhynchus
                                           spp.), Atlantic salmon (Salmo
                                           salar), and Danube salmon
                                           (Hucho hucho), including
                                           fillets, smoked
  0305.49.4040..........................  Fish including fillets,
                                           smoked, NESOI
  0305.59.2000..........................  Shark fins, dried, whether or
                                           not salted but not smoked
  0305.59.4000..........................  Fish, dried, whether or not
                                           salted but not smoked, NESOI
  0305.69.4000..........................  Salmon, salted but not dried
                                           or smoked; in brine
  0305.69.5000..........................  Fish in immediate containers
                                           weighing with their contents
                                           6.8 kg or less each, salted
                                           but not dried or smoked; in
                                           brine, NESOI
  0305.69.6000..........................  Fish, salted but not dried or
                                           smoked; in brine, NESOI
  0307.49.0022..........................  Squid, Loligo opalescens,
                                           frozen (except fillets),
                                           dried, salted or in brine
  0307.49.0024..........................  Squid, Loligo pealei, frozen
                                           (except fillets), dried,
                                           salted or in brine
  0307.49.0029..........................  Loligo squid, frozen (except
                                           fillets), dried, salted or in
                                           brine, NESOI
  0307.49.0050..........................  Squid, frozen (except
                                           fillets), dried, salted or in
                                           brine, except Loligo squid
  0307.49.0060..........................  Cuttle fish (Sepia
                                           officinalis, Rossia
                                           macrosoma, Sepiola spp.),
                                           frozen, dried, salted or in
                                           brine
 


[[Page 1617]]

    (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) A properly completed FCO and its attached certificates as 
described in Sec.  216.91(a), if applicable, must accompany the 
required CBP entry documents that are filed at the time of import.
    (ii) FCOs and associated certifications as described in Sec.  
216.91(a), 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 10 calendar days of the 
shipment's entry into the commerce of the United States. FCOs submitted 
via mail should be sent to the Tuna Tracking and Verification Program, 
Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. 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: <a href="/cdn-cgi/l/email-protection#edbebabfb998838cc3b99f8c8e86ad83828c8cc38a829b"><span class="__cf_email__" data-cfemail="4a191d181e3f242b641e382b29210a24252b2b642d253c">[email protected]</span></a>. 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 Portable Document Format (PDF).
    (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) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) of the accompanying shipment, must 
include the following information:
    (i) CBP entry identification;
    (ii) Date of entry;
    (iii) Exporter's full name and complete address;
    (iv) Importer's or consignee's full name and complete address;
    (v) Species description, product form, and HTS number;
    (vi) Total net weight of the shipment in kilograms;
    (vii) Ocean area where the fish were harvested (ETP, western 
Pacific Ocean, south Pacific Ocean, north Pacific Ocean, eastern 
Atlantic Ocean, western Atlantic Ocean, Caribbean Sea, Indian Ocean, or 
other);
    (viii) Type of fishing gear used to harvest the fish (purse seine, 
longline, baitboat, large-scale driftnet, gillnet, pole and line/hook 
and line, or other);
    (ix) Country under whose laws the harvesting vessel operated based 
upon the flag of the vessel or, if a certified charter vessel, the 
country that accepted responsibility for the vessel's fishing 
operations;
    (x) Dates on which the fishing trip began and ended;
    (xi) The name of the harvesting vessel;
    (xii) Dolphin-safe condition of the shipment, described by checking 
the appropriate statement on the form and attaching additional 
certifications as described in Sec.  216.91(a) if required;
    (xiii) For shipments containing fish or fish products exported 
from, or harvested on the high seas by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (f)(7) of this section, the High Seas Driftnet Certification 
contained on the FCO must be dated and signed by a responsible 
government official of the large-scale driftnet nation, certifying that 
the fish or fish products were harvested by a method other than large-
scale driftnet; and
    (xiv) Each 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.
* * * * *
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(2) of this section, the Port Director of CBP shall refuse to 
release the fish for entry into the United States.
    (11) Disposition of fish refused entry into the United States. Fish 
that is denied entry under paragraph (f)(2) of this section and that is 
not exported under CBP supervision within 90 days shall be disposed of 
under CBP laws and regulations at the importer's expense. Provided, 
however, that any disposition shall not result in an introduction into 
the United States of fish caught in violation of the MMPA.
* * * * *

0
4. In Sec.  216.91, revise paragraphs (a)(2)(i), (a)(2)(ii), and (a)(4) 
to read as follows:


Sec.  216.91  Dolphin-safe labeling standards.

    (a) * * *
    (2) * * *
    (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 as described in Sec.  
216.24(f)(3) 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 trip 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 as 
described in Sec.  216.24(f)(3) by a written statement executed by the 
Captain of the vessel certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna was harvested;
* * * * *
    (4) Other fisheries. By a vessel in a fishery other than one 
described in paragraphs (a)(1) through (a)(3) of this section that is 
identified by the Assistant Administrator as having a regular and 
significant mortality or serious injury of dolphins, unless such 
product is accompanied as described in Sec.  216.24(f)(3) 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.
* * * * *

0
5. In Sec.  216.92, revise paragraph (b)(2)(ii) and the introductory 
text of paragraph (b)(2)(iii) to read as follows:

[[Page 1618]]

Sec.  216.92  Dolphin-safe requirements for tuna harvested in the ETP 
by large purse seine vessels.

* * * * *
    (b) * * *
    (2) * * *
    (ii) The tuna or tuna products are accompanied as described in 
Sec.  216.24(f)(3) by a properly completed FCO; and
    (iii) The tuna or tuna products are accompanied as described in 
Sec.  216.24(f)(3) by valid documentation signed by a representative of 
the appropriate IDCP member nation, containing the harvesting vessel 
names and tuna tracking form numbers represented in the shipment, and 
certifying that:
* * * * *

0
6. In Sec.  216.93, revise paragraphs (c)(5), (e), and (f)(2) to read 
as follows:


Sec.  216.93  Tracking and verification program.

* * * * *
    (c) * * *
    (5) The handling of TTFs and the tracking and verification of tuna 
caught in the Convention Area by a U.S. purse seine vessel greater than 
400 st (362.8 mt) carrying capacity shall be conducted consistent with 
the international tuna tracking and verification program adopted by the 
Parties to the Agreement on the IDCP.
* * * * *
    (e) Tracking imports. All tuna products, except fresh tuna, that 
are imported into the United States must be accompanied as described in 
Sec.  216.24(f)(3) by a properly certified FCO as required by Sec.  
216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated 
certifications must be submitted by the importer of record to the 
Administrator, Southwest Region, within 10 calendar days of the 
shipment's entry into the commerce of the United States as required by 
Sec.  216.24 (f)(3)(ii).
    (f) * * *
    (2) Record submission. Within 10 calendar days of receiving a 
shipment of tuna or tuna products, any exporter, transshipper, 
importer, processor, or wholesaler/distributor of tuna or tuna products 
must submit to the Administrator, Southwest Region, all corresponding 
FCOs and required certifications for those tuna or tuna products.
* * * * *

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart C--Pacific Tuna Fisheries

0
7. The authority citation for part 300, subpart C, continues to read as 
follows:

    Authority: 16 U.S.C. 951-961 et seq.

0
8. In Sec.  300.21, remove the definition for ``Vessel Register'' and 
add definitions for ``Commercial passenger fishing vessel'', ``Regional 
Administrator'', ``Regional Vessel Register'', and ``Tuna'' in 
alphabetical order to read as follows:


Sec.  300.21  Definitions.

* * * * *
    Commercial passenger fishing vessel means any vessel licensed for 
commercial passenger fishing purposes within the State out of which it 
is operating and from which, while under charter or hire, persons are 
legally permitted to conduct sportfishing activities.
* * * * *
    Regional Administrator means the Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802-4213, or a designee.
    Regional Vessel Register (hereafter referred to as Vessel Register) 
means the regional register of vessels authorized to fish for tuna and 
tuna-like species in the Convention Area, as established by the Inter-
American Tropical Tuna Commission in June 2000.
* * * * *
    Tuna means any fish of the genus Thunnus and the species Euthynnus 
(Katsuwonus) pelamis.

0
9. In Sec.  300.22, revise the section heading and paragraphs (a), (b) 
introductory text, and (b)(2), (b)(3), (b)(4), (b)(5)(iv), and (b)(7); 
and add new paragraphs (b)(5)(vi), (b)(5)(vii), (b)(5)(viii), and 
(b)(8) to read as follows:


Sec.  300.22  Eastern Pacific fisheries recordkeeping and written 
reports.

    (a) The master or other person in charge of a commercial fishing 
vessel or commercial passenger fishing vessel (CPFV) authorized to fish 
for tuna and tuna-like species in the Convention Area, or a person 
authorized in writing to serve as the agent for either person, must 
keep an accurate log of operations conducted from the fishing vessel. 
For vessels greater than 400 st (362.8 mt) carrying capacity that are 
authorized to purse seine for tuna in the Convention Area, the log must 
include for each day the date, noon position (stated in latitude and 
longitude or in relation to known physical features), and the tonnage 
of fish on board, by species. The record and bridge log maintained and 
submitted at the request of the IATTC shall be sufficient to comply 
with this paragraph, provided the items of information specified by the 
IATTC are accurately entered in the log. For purse seine vessels of 400 
st (362.8 mt) carrying capacity or less and for non-purse seine 
vessels, maintaining and submitting any logbook required by existing 
state or federal regulation shall be sufficient to comply with this 
paragraph.
    (b) Vessel Register. The Vessel Register shall include, consistent 
with resolutions of the IATTC, all commercial fishing vessels and CPFVs 
authorized to fish for tuna and tuna-like species in the Convention 
Area. Except as provided under paragraph (b)(1) of this section, tuna 
purse seine vessels must be listed on the Vessel Register and 
categorized as active under paragraph (b)(4)(i) of this section in 
order to fish for tuna and tuna-like species in the Convention Area.
* * * * *
    (2) Requirements for inclusion of purse seine vessels on the vessel 
register. The tuna purse seine portion of the Vessel Register shall 
include, consistent with resolutions of the IATTC, only vessels that 
fished in the Convention Area prior to June 28, 2002. Inclusion on the 
tuna purse seine portion of the Vessel Register is valid through 
December 31 of each year. New tuna purse seine 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 tuna purse 
seine vessel or vessels being replaced.
    (3) Vessel information. Information on each commercial fishing 
vessel or CPFV authorized to use purse seine, longline, drift gillnet, 
harpoon, troll, rod and reel, or pole and line fishing gear to fish for 
tuna and tuna-like species in the Convention Area for sale shall be 
collected by the Regional Administrator to conform to IATTC resolutions 
governing the Vessel Register. This information initially includes, but 
is not limited to, the vessel name and registration number; the name 
and business address of the owner(s) and managing owner(s); a 
photograph of the vessel with the registration number legible; previous 
vessel name(s) and previous flag (if known and if any); port of 
registry; International Radio Call Sign; vessel length, beam, and 
moulded depth; gross tonnage, fish hold capacity in cubic meters, and 
carrying capacity

[[Page 1619]]

in metric tons; engine horsepower; date and place where built; and type 
of fishing method or methods used. The required information shall be 
collected as part of existing information collections as described in 
this and other parts of the CFR.
    (4) Purse seine vessel register status. For a purse seine vessel to 
be listed on the Vessel Register and to be categorized as either 
``active'' or ``inactive'' in the following calendar year, the vessel 
owner or managing owner must submit to the Regional Administrator the 
required permit applications, written notifications, and fees as 
described under Sec.  216.24(b) of this title and under paragraphs 
(b)(4)(i) and (b)(4)(iii) of this section.
    (i) Active status. As early as August 1 of each year, vessel owners 
or managing owners may request that a purse seine vessel qualified to 
be listed on the Vessel Register under paragraph (b)(2) of this section 
be categorized as active for the following calendar year. To request a 
purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be 
listed on the Vessel Register and be categorized as active, the vessel 
owner or managing owner must submit to the Regional Administrator the 
vessel permit application and payment of the permit application fee and 
vessel assessment fee. To request a purse seine vessel of 400 st (362.8 
mt) carrying capacity or less be listed on the Vessel Register and be 
categorized as active, the vessel owner or managing owner must submit 
to the Regional Administrator written notification including, but not 
limited to, a vessel photograph, the vessel information as described 
under paragraph (b)(3) of this section, and the owner or managing 
owner's signature and business telephone and fax numbers. If a purse 
seine vessel of 400 st (362.8 mt) carrying capacity or less is required 
by the Agreement on the IDCP to carry an observer, the vessel owner or 
managing owner must also submit payment of the vessel assessment fee to 
the Regional Administrator. Vessel permit applications and written 
notifications must be submitted by fax to (562) 980-4047. The Regional 
Administrator must receive the vessel permit application or written 
notification and payment of the permit application fee and vessel 
assessment 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 or written notification and 
payment of the vessel assessment fee and permit application 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 purse seine vessels 
categorized as active on the Vessel Register may not exceed 8,969 mt in 
a given year;
    (B) A purse seine 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 Sec.  216.24(b)(2) of this title;
    (C) Requests for active status will be prioritized according to the 
following hierarchy:
    (1) Requests received for vessels that were categorized as active 
in the previous year, 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;
    (3) Requests for vessels not described in paragraphs 
(b)(4)(i)(C)(1) or (2) of this section will be prioritized on a first-
come, first-served basis according to the date and time stamp printed 
by the incoming fax machine upon receipt, provided that the associated 
vessel assessment fee is paid by the applicable deadline described in 
Sec.  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. 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,
    (A) 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; or
    (B) The vessel did not fish for tuna at all in the Convention Area 
in that same year.
    (iii) Inactive status. From August 1 through November 30 of each 
year, vessel owners or managing owners may request that purse seine 
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. To request a purse seine vessel in excess of 400 st 
(362.8 mt) carrying capacity be listed on the Vessel Register and 
categorized as inactive for the following calendar year, the vessel 
owner or managing owner must submit to the Regional Administrator 
payment of the associated vessel assessment fee. Payment of the vessel 
assessment fee consistent with inactive status will be interpreted by 
the Regional Administrator as a request for the vessel to be 
categorized as inactive. To request a purse seine vessel of 400 st 
(362.8 mt) carrying capacity or less be listed on the Vessel Register 
and categorized as inactive for the following calendar year, the vessel 
owner or managing owner must submit by mail to the Regional 
Administrator a written notification including, but not limited to, the 
vessel name and registration number and the vessel owner or managing 
owner's name, signature, business address, and business telephone and 
fax numbers. Payment of the vessel assessment fee is not required for 
vessels of 400 st (362.8 mt) carrying capacity or less to be 
categorized as inactive. At any time during the year, a vessel owner or 
managing owner may request that a purse seine vessel qualified to be 
listed on the Vessel Register under paragraph (b)(2) of this section be 
categorized as inactive for the remainder of the calendar year. To 
request a purse seine vessel in excess of 400 st (362.8 mt) carrying 
capacity be listed on the Vessel Register and categorized as inactive 
for the remainder of the calendar year, the vessel owner or managing 
owner must submit to the Regional Administrator payment of the 
associated vessel assessment fee. To request a purse seine vessel of 
400 st (362.8 mt) carrying capacity or less be listed on the Vessel 
Register and categorized as inactive for the remainder of the calendar 
year, the vessel owner or managing owner must submit to the Regional 
Administrator written notification as described in this paragraph 
(payment of the vessel assessment fee is not required).
    (5) * * *
    (iv) For failure to pay a penalty or for default on a penalty 
payment agreement resulting from a final agency action for a violation;
* * * * *
    (vi) If the vessel does not have a valid state registration or U.S. 
Coast Guard certificate of documentation;
    (vii) For tuna purse seine vessels, upon receipt of written 
notification from the owner or managing owner of the intent to transfer 
the vessel to foreign registry and flag, as described in paragraph 
(b)(8) of this section; or
    (viii) For tuna purse seine vessels, if the request for active 
status on the

[[Page 1620]]

Vessel Register has been determined to be a frivolous request.
* * * * *
    (7) Procedures for replacing purse seine vessels removed from the 
Vessel Register.
    (i) A purse seine vessel in excess of 400 st (362.8 mt) carrying 
capacity that was previously listed on the Vessel Register, but not 
included 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 or managing owner of the vessel pays the vessel 
assessment fee associated with inactive status. A purse seine vessel of 
400 st (362.8 mt) carrying capacity or less that was previously listed 
on the Vessel Register, but not included 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 or managing owner of the 
vessel submits written notification as described in paragraph 
(b)(4)(iii) of this section.
    (ii) A purse seine 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 the active vessels does not exceed 8,969 mt and 
the owner submits a complete request under paragraph (b)(7)(iv) or 
(b)(7)(v) of this section.
    (iii) After a purse seine 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) Vessel owners or managing owners may request a purse seine 
vessel of 400 st (362.8 mt) carrying capacity or less be categorized as 
active to replace a vessel or vessels removed from the Vessel Register 
by submitting to the Regional Administrator written notification as 
described in paragraph (b)(4)(i) of this section and, only if the 
vessel is required by the Agreement on the IDCP to carry an observer, 
payment of the vessel assessment fee within 10 business days after 
submission of the faxed written notification. The replacement vessel 
will be eligible to be categorized as active on the Vessel Register if 
it has a carrying capacity equal to or less than the vessel or vessels 
being replaced. Payments received will be subject to a 10 percent 
surcharge for vessels that were listed as active on the Vessel Register 
in the previous calendar year, but not listed as inactive at the 
beginning of the calendar year for which active status was requested.
    (v) Vessel owners or managing owners may request a purse seine 
vessel in excess of 400 st (362.8 mt) carrying capacity be categorized 
as active to replace a vessel or vessels removed from the Vessel 
Register by submitting to the Regional Administrator the vessel permit 
application as described under Sec.  216.24(b) of this title and 
payment of the vessel assessment fee and permit application fee within 
10 business days after submission of the faxed vessel permit 
application for the replacement vessel. The replacement vessel will be 
eligible to be categorized as active on the Vessel Register if it has a 
carrying capacity equal to or less than the vessel or vessels being 
replaced, and the captain of the replacement vessel possesses an 
operator permit under Sec.  216.24(b) of this title. Payments received 
will be subject to a 10 percent surcharge for vessels that were listed 
as active on the Vessel Register in the previous calendar year, but not 
listed as inactive at the beginning of the calendar year for which 
active status was requested.
    (vi) The Regional Administrator will forward requests to replace 
vessels removed from the Vessel Register within 15 days of receiving 
each request.
    (8) The owner or managing owner of a purse seine vessel listed on 
the Vessel Register must provide written notification to the Regional 
Administrator prior to submitting an application for transfer of the 
vessel to foreign registry and flag. Written notification must be 
submitted by mail and received by the Regional Administrator at least 
10 business days prior to submission of the application for transfer. 
The written notification must include the vessel name and registration 
number; the expected date that the application for transfer will be 
submitted; and the vessel owner or managing owner's name and signature. 
Vessels that require approval by the U.S. Maritime Administration prior 
to transfer of the vessel to foreign registry and flag will not be 
subject to the notification requirement described in this paragraph.

0
10. In Sec.  300.23, revise the section heading to read as follows:


Sec.  300.23  Eastern Pacific fisheries - Persons and vessels exempted.

* * * * *

0
11. In Sec.  300.24, remove the semicolons at the end of paragraphs 
(b), (e), (f), and (g) and replace them with periods; remove ``; or'' 
at the end of paragraph (h) and replace it with a period; and add a new 
paragraph (j) to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (j) Fail to provide written notification as described under Sec.  
300.22(b)(8) to the Regional Administrator at least 10 business days 
prior to submission of an application to transfer a purse seine vessel 
listed on the Vessel Register to foreign registry and flag, unless 
transfer of the vessel requires approval by the U.S. Maritime 
Administration.

0
12. In Sec.  300.25, revise paragraph (a), the heading for paragraph 
(e) and revise paragraph (e)(1) to read as follows:


Sec.  300.25  Eastern Pacific fisheries management.

    (a) Notification of IATTC recommendations and resolutions. Fishery 
management resolutions made by the IATTC and approved by the Department 
of State will be promulgated in the Federal Register via appropriate 
rulemaking. The publication in the Federal Register will summarize the 
fishery management resolutions and respond to any public comments 
received by NMFS.
* * * * *
    (e) Bycatch reduction measures--(1) All purse seine vessels must 
retain on board and land all bigeye, skipjack, and yellowfin tuna 
brought on board the vessel after a set, except fish deemed unfit for 
human consumption for other than reason of size. This requirement shall 
not apply to the last set of a trip if the available well capacity is 
insufficient to accommodate the entire fish catch brought on board.
* * * * *
[FR Doc. E9-499 Filed 1-12-09; 8:45 am]
BILLING CODE 3510-22-S


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