Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 1607 

Safety of Railroad Bridges, which FRA 

is completing expeditiously as a nonregulatory proceeding, will benefit 

railroad bridge owners by giving them 

prompt advice regarding the 

development of their bridge safety 

programs, and that the early work to be 

done railroad bridge owners in 

conformance with this recommendation 

will benefit the owners and the public 

when FRA issues regulations 

conforming to the legislative mandate. 

Effect of the Amendment to This 

Statement of Policy 

This amendment to Policy contains 

guidelines for the development of 

effective programs for the management 

and safety of railroad bridges. It is 

meant to be advisory in nature. It does 

not have the force of regulations under 

which FRA ordinarily issues violations 

and assesses civil penalties. The 

guidelines contained herein represent 

the general criteria against which FRA 

will evaluate each railroad’s bridge 

inspection and management program. 

Even without specific bridge safety 

regulations, FRA maintains authority to 

perform safety inspections of any 

railroad facility and to issue emergency 

orders under 49 U.S.C. 20104, 49 U.S.C. 

20107, and 49 CFR part 209. This 

amendment to the Policy does not 

change FRA’s statutory emergency order 

authority with respect to railroad bridge 

safety. This emergency order authority 

permits FRA, if necessary, to remove 

from service, or otherwise impose 

conditions on any railroad operation 

which, in the judgment of the agency, 

poses an emergency situation involving 

a hazard of death or personal injury. 

FRA will not hesitate to use this 

authority if circumstances warrant. 

List of Subjects in 49 CFR Part 213 

Penalties, Railroad safety, Railroads. 

PART 213—[AMENDED] 

■ 1. The authority citation for part 213 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20114 and 

20142; 28 U.S.C. 2461, note; and 49 CFR 

1.49(m). 

■ 2. Section 14 is added to Appendix C, 

Part 213 to read as follows: 

Appendix C to Part 213—Statement of 

Agency Policy on the Safety of Railroad 

Bridges 

* * * * * 

14. Railroad Implementation of Bridge Safety 

Programs 

FRA recommends that each track owner or 

other entity which is responsible for the 

integrity of bridges which support its track 

adopt and implement an effective and 

comprehensive program to ensure the safety 

of its bridges. The bridge safety program 

should incorporate the following essential 

elements, applied according to the 

configuration of the railroad and its bridges. 

The basis of the program should be in one 

comprehensive and coherent document 

which is available to all railroad personnel 

and other persons who are responsible for the 

application of any portion of the program. 

The program should include: 

(a) Clearly defined roles and 

responsibilities of all persons who are 

designated or authorized to make 

designations regarding the integrity of the 

track owner’s bridges. The definitions may be 

made by position or by individual; 

(b) Provisions for a complete inventory of 

bridges that carry the owner’s track, to 

include the following information on each 

bridge: 

(1) A unique identifier, such as milepost 

location and a subdivision code; 

(2) The location of the bridge by nearest 

town or station, and geographic coordinates; 

(3) The name of the geographic features 

crossed by the bridge; 

(4) The number of tracks on the bridge; 

(5) The number of spans in the bridge; 

(6) The lengths of the spans; and 

(7) Types of construction of: 

(i) Substructure; 

(ii) Superstructure; and 

(iii) Deck; 

(8) Overall length of the bridge. 

(9) Dates of: 

(i) Construction; 

(ii) Major renovation; and 

(iii) Strengthening; 

(10) Identification of entities responsible 

for maintenance of the bridge or its different 

components; 

(c) Known capacity of its bridges as 

determined by rating by competent engineer 

or by design documents; 

(d) Procedures for the control of movement 

of high, wide or heavy loads exceeding the 

nominal capacity of bridges; 

(e) Instructions for the maintenance of 

permanent records of design, construction, 

modification, and repair; 

(f) Railroad-specific procedures and 

standards for design and rating of bridges; 

(g) Detailed bridge inspection policy, 

including: 

(1) Inspector Qualifications. 

(i) Bridge experience or appropriate 

educational training. 

(ii) Training on bridge inspection 

procedures. 

(iii) Training on Railroad Workplace 

Safety. 

(2) Type and frequency of inspection. 

(i) Periodic (at least annually). 

(ii) Underwater. 

(iii) Special. 

(iv) Seismic. 

(v) Cursory inspections of overhead bridges 

that are not the responsibility of the railroad. 

(3) Inspection schedule for each bridge. 

(4) Documentation of inspections. 

(i) Date. 

(ii) Name of inspector. 

(iii) Reporting Format. 

(iv) Coherence of information. 

(5) Inspection Report Review Process. 

(6) Record retention. 

(7) Tracking of critical deficiencies to 

resolution; 

(h) Provide for the protection of train 

operations following an inspection, noting a 

critical deficiency, repair, modification or 

adverse event and should 

(1) Include a listing of qualifications of 

personnel permitted to authorize train 

operations following an adverse event; and 

(i) Detailed internal program audit 

procedures to ensure compliance with the 

provisions of the program. 

Issued in Washington, DC, on January 7, 

2009. 

Clifford C. Eby, 

Acting Administrator. 

[FR Doc. E9–436 Filed 1–12–09; 8:45 am] 

BILLING CODE 4910–06–P 

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. 

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, 

1608 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

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-ofinformation 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 

DavidlRostker@omb.eop.gov, 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° N. latitude and 

40° S. latitude, and the 150° 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 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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 tunalike 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 

1610 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

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 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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-andcomment 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 § 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 § 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, firstserved basis; (2) remove the references 

to the years 2005 and 2006 in the 

introductory paragraph of 

§ 300.22(b)(4)(i)(D) and paragraphs 

§ 300.22(b)(4)(i)(D)(1) and (2); and (3) 

redesignate paragraph 

§ 300.22(b)(4)(i)(D) as paragraph 

§ 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 

1612 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

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 nonsubstantive 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 

DavidlRostker@omb.eop.gov, 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 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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. 

■ 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 

■ 1. The authority citation for part 216 

continues to read as follows: 

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

otherwise noted. 

■ 2. In § 216.3, 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: 

§ 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). 

■ 3. In § 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: 

§ 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 § 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 § 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 § 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 § 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 

1614 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

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 

§ 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 

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

purse seine vessels is not required to be 

listed on the Vessel Register under 

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

purse seine for tuna in the ETP during 

a single fishing trip per calendar year of 

90 days or less. Payment of the vessel 

assessment fee must be consistent with 

the fee for active status on the Vessel 

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

title. 

(D) The owner or managing owner of 

a purse seine vessel listed as inactive on 

the Vessel Register at the beginning of 

the calendar year and who requests to 

replace a vessel removed from active 

status on the Vessel Register under 

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

year, must pay the 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 

§ 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, highintensity 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 § 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.

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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.

1616 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

(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.

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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 

§ 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 § 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: 

SWRTuna.Track@noaa.gov. The Tuna 

Tracking and Verification Program will 

facilitate secure transfer and protection 

of certifications by assigning a separate 

electronic folder for each importer. 

Access to the electronic folder will 

require a user identification and 

password. The Tuna Tracking and 

Verification Program will assign each 

importer a unique user identification 

and password. Safeguarding the 

confidentiality of the user identification 

and password is the responsibility of the 

importer to whom they are assigned. 

Copies of the documents may also be 

submitted via mail either on compact 

disc or as hard copies. All electronic 

submissions, whether via FTP or on 

compact disc, must be in 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 § 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. 

* * * * * 

■ 4. In § 216.91, revise paragraphs 

(a)(2)(i), (a)(2)(ii), and (a)(4) to read as 

follows: 

§ 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 § 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 § 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 

§ 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. 

* * * * * 

■ 5. In § 216.92, revise paragraph 

(b)(2)(ii) and the introductory text of 

paragraph (b)(2)(iii) to read as follows: 

1618 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

§ 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 

§ 216.24(f)(3) by a properly completed 

FCO; and 

(iii) The tuna or tuna products are 

accompanied as described in 

§ 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: 

* * * * * 

■ 6. In § 216.93, revise paragraphs (c)(5), 

(e), and (f)(2) to read as follows: 

§ 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 

§ 216.24(f)(3) by a properly certified 

FCO as required by § 216.24(f)(2). For 

tuna tracking purposes, copies of FCOs 

and associated certifications must be 

submitted by the importer of record to 

the Administrator, Southwest Region, 

within 10 calendar days of the 

shipment’s entry into the commerce of 

the United States as required by 

§ 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 

■ 7. The authority citation for part 300, 

subpart C, continues to read as follows: 

Authority: 16 U.S.C. 951–961 et seq. 

■ 8. In § 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: 

§ 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. 

■ 9. In § 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: 

§ 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 nonpurse 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 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 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 § 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 § 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 firstcome, 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 § 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 

1620 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules and Regulations 

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 

§ 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 

§ 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. 

■ 10. In § 300.23, revise the section 

heading to read as follows: 

§ 300.23 Eastern Pacific fisheries – 

Persons and vessels exempted. 

* * * * * 

■ 11. In § 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: 

§ 300.24 Prohibitions. 

* * * * * 

(j) Fail to provide written notification 

as described under § 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. 

■ 12. In § 300.25, revise paragraph (a), 

the heading for paragraph (e) and revise 

paragraph (e)(1) to read as follows: 

§ 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