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, 39915-39930 [E8-15803]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 134 (Friday, July 11, 2008)]
[Proposed Rules]
[Pages 39915-39930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15803]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 070717339-8765-02]
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: Proposed rule; collection-of-information requirements; request 
for comments.

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SUMMARY: NMFS proposes 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 proposed rule would 
update and clarify 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 proposed rule would modify 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 would also be revised. This 
proposed rule is intended to clarify the regulations, facilitate 
management of U.S. vessels, and update the regulations to be consistent 
with resolutions adopted by the members of the IATTC and the Parties to 
the AIDCP.

DATES: Comments on the proposed regulations and collection-of-
information requirements must be received by 5 p.m. Pacific Standard 
Time, on August 11, 2008. A public

[[Page 39916]]

hearing will be held on July 28, 2008, at 9 a.m.

ADDRESSES: You may submit comments on the proposed rule and on the 
collection of information requirements, identified by RIN 0648-AV37, by 
any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: https://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax: (562) 980-4027, Attention: Susan Wang.
     Mail: Submit written comments to Susan Wang, National 
Marine Fisheries Service, Southwest Region, Protected Resources 
Division, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Southwest Region and by e-mail to 
David_Rostker@omb.eop.gov, or by fax to (202) 395-7285.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (please enter N/A in the required fields, if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    A public hearing will be held at NMFS, Southwest Regional Office, 
501 West Ocean Boulevard, Suite 3400, Long Beach, CA 90802-4213. Photo 
identification is required to enter the building.

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

SUPPLEMENTARY INFORMATION: 

Background

    The United States is a member of the IATTC, established in 1949 
under the Convention for the Establishment of an Inter-American 
Tropical Tuna Commission (Convention). The IATTC provides an 
international forum to ensure the effective conservation and management 
of highly migratory species of fish in the Convention Area. The 
Convention Area is defined to include waters of the ETP bounded by the 
coast of the Americas, the 40[deg] N. latitude and 40[deg] S. latitude, 
and the 150[deg] W. longitude (50 Code of Federal Regulations (CFR) 
section 300.21). The IATTC oversees fishery management issues, such as 
assessing the status of tuna stocks, managing the cumulative capacity 
of vessels fishing in the Convention Area, addressing bycatch of non-
target and protected species, and imposing time-area closures to 
conserve tuna stocks. Resolutions under the IATTC are adopted by 
consensus and are binding on the members of the IATTC. Members of the 
IATTC and cooperating non-members are responsible for implementation of 
IATTC resolutions. In the United States, 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.).
    This proposed rule would revise regulations at 50 CFR parts 216 and 
300 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 operation of these vessels and resolutions adopted 
by the IATTC and the IDCP. First, collection of a vessel photograph and 
vessel information would be required for commercial fishing vessels and 
commercial passenger fishing vessels (CPFVs) authorized to fish for 
tuna and tuna-like species in the Convention Area. Second, regulations 
for tuna purse seine vessels would be revised to require: (1) Annual 
written notification to list a small vessel as active or inactive; (2) 
written notification of the intent to transfer a vessel to foreign 
registry and flag; (3) payment of an ETP operator permit application 
fee; and (4) for vessels authorized to set on dolphins, vessel 
inspections twice per year and the use of high-intensity floodlights. 
Additional criteria would be added: (1) to consider a request for 
active status as frivolous if a purse seine vessel was listed as active 
but did not fish for tuna at all in the Convention Area; and (2) to 
remove 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. This rule would require importers 
to submit certifications within 10 days of importing a shipment into 
the United States, rather than 30 days. Finally, this rule would 
require electronic submissions of certifications by importers to be in 
Portable Document Format (PDF). In addition, this rule would make 
numerous non-substantive modifications and clarifications to the 
regulations.

Definitions

    The definition for ``Tuna product'' would be revised in 50 CFR 
216.3 to clarify that tuna products include only products intended for 
human consumption. A definition for ``Tuna'' would be added to specify 
that the term refers to fish of the genus Thunnus (i.e., albacore tuna, 
bigeye tuna, bluefin tuna, longtail tuna, southern bluefin tuna, and 
yellowfin tuna) and the species Euthynnus (Katsuwonus) pelamis (i.e., 
skipjack tuna). Definitions for ``Albacore tuna,'' ``Bigeye tuna,'' 
``Bluefin tuna,'' ``Longtail tuna,'' ``Skipjack tuna,'' ``Southern 
bluefin tuna,'' and ``Yellowfin tuna'' would also be added to 50 CFR 
216.3 to identify the genus and species referred to by these common 
names.
    In 50 CFR 300.21, the definition for ``Vessel Register'' would be 
removed and replaced with a definition for ``Regional Vessel Register'' 
to include all commercial fishing vessels and CPFVs authorized to fish 
for tuna and tuna-like species in the Convention Area, consistent with 
the definition used by the IATTC. A definition for ``Commercial 
passenger fishing vessel'' would be added to clarify that CPFVs are 
vessels licensed for commercial passenger fishing purposes from which 
passengers are permitted to conduct sportfishing activities. A 
definition for ``Tuna'' would also be added to specify that the term 
refers to fish of the genus Thunnus and the species Euthynnus 
(Katsuwonus) pelamis (i.e., skipjack tuna).

Vessel Register

    In June 2000, the IATTC adopted a ``Resolution on a Regional Vessel 
Register'' (C-00-06) to establish a register of all vessels authorized 
to fish

[[Page 39917]]

for tuna and tuna-like species in the Convention Area. To maintain the 
Regional Vessel Register (Vessel Register), the IATTC requires each 
member nation to submit specific information for all vessels authorized 
to fish for tuna and tuna-like species in the Convention Area. The 
information required for the IATTC Vessel Register includes: The vessel 
name and registration number; a photograph of the vessel with the 
registration number legible; previous vessel name(s) and flag; port of 
registry; the name and address of the owner(s) and managing owner(s); 
International Radio Call Sign; where and when built; length, beam, and 
moulded depth; gross tonnage, fish hold capacity in cubic meters, and 
carrying capacity in metric tons; engine horsepower; and type of 
fishing method(s).
    Under current regulations at 50 CFR 300.22(b), submission of vessel 
information to NMFS is mandatory for large tuna purse seine vessels but 
voluntary for all other vessels. NMFS proposes to revise 50 CFR 
300.22(b) to require the collection of vessel photographs and vessel 
information for all U.S. commercial fishing vessels and CPFVs 
authorized to fish for tuna and tuna-like species in the Convention 
Area, so that all of these vessels would be included on the Vessel 
Register. Currently, about 2,100 U.S. commercial fishing vessels and 
CPFVs are authorized under several different permit systems to fish for 
tuna and tuna-like species in the Convention Area, including: (1) ETP 
tuna purse seine vessel permits (50 CFR 216.24); (2) Pacific Highly 
Migratory Species (HMS) vessel permits (50 CFR part 660); and (3) for 
vessels based in Hawaii and the U.S. Pacific Islands, High Seas Fishing 
Compliance Act (HSFCA) permits (50 CFR part 300). Owners of large tuna 
purse seine vessels must obtain both an ETP tuna purse seine vessel 
permit and an HSFCA permit in order to have a vessel be categorized as 
active on the Vessel Register. Together, the applications for the ETP 
tuna purse seine vessel permit and HSFCA permit cover all of the 
required Vessel Register information except for the vessel photograph. 
This proposed rule would revise the ETP tuna purse seine vessel permit 
application to require submission of a vessel photograph with the 
registration number legible. This revision is subject to review and 
approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The Pacific HMS 
permit application covers all of the required Vessel Register 
information except for the vessel photograph, and the HSFCA permit 
application covers all of the required information except for the 
vessel photograph, carrying capacity, and type of fishing method(s). 
Revisions to the Pacific HMS permit application and the HSFCA permit 
application to collect the required additional information are planned 
as actions separate from this proposed rule.
    50 CFR 300.22(a) requires the master or person in charge of a 
commercial fishing vessel or CPFV listed on the Vessel Register to keep 
an accurate log of operations of the vessel. This rule would update 
this provision to reflect differences in these reporting requirements 
for tuna purse seine vessels greater than 400 st (362.8 mt) carrying 
capacity compared to reporting requirements for tuna purse seine 
vessels of 400 st (362.8 mt) carrying capacity or less and for non-
purse seine vessels. The rule would revise 50 CFR 300.22(a) to clarify 
that for tuna purse seine vessels greater than 400 st (362.8 mt) 
carrying capacity, the master or person in charge of the vessel must 
maintain and submit to the IATTC the record and bridge log issued by 
the IATTC, or a general logbook that includes for each day the date, 
noon position, and the tonnage of fish on board by species. For tuna 
purse seine vessels of 400 st (362.8 mt) carrying capacity or less and 
for non-purse seine vessels on the Vessel Register, maintaining and 
submitting reporting forms (logbooks) under existing state or Federal 
regulations (e.g., longline logbooks for Pacific pelagic longline 
vessels, described in 50 CFR 660.14(a)) would be sufficient to comply 
with this requirement.
    On June 28, 2002, the IATTC adopted a ``Resolution on the capacity 
of the tuna fleet operating in the ETP (revised)'' (Resolution C-02-03) 
to limit the total capacity of the ETP tuna purse seine fleet and to 
establish a subset list of active and inactive tuna purse seine vessels 
as part of the Vessel Register. The U.S. tuna purse seine fleet 
operating in the ETP is limited to 8,969 metric tons (mt) carrying 
capacity, thus limiting the number of vessels allowed to actively 
participate in the fishery each year. On April 12, 2005, NMFS issued a 
final rule (69 FR 19004) establishing procedures at 50 CFR 300.22(b) 
for U.S. tuna purse seine vessels to be listed on the Vessel Register 
and be categorized as active or inactive, and establishing criteria for 
the removal of vessels from the Vessel Register. The active and 
inactive list is valid through December 31 of each year. The paragraphs 
below describe proposed revisions to the procedures at 50 CFR 300.22(b) 
for tuna purse seine vessels to be listed on the Vessel Register and to 
requirements for tuna purse seine vessels listed on the Vessel 
Register, including one requirement that is also applicable to non-
purse seine commercial fishing vessels and CPFVs authorized to fish for 
tuna and tuna-like species in the ETP.
    Under 50 CFR 300.22(b), tuna purse seine vessels of 400 short tons 
(st) (362.8 mt) carrying capacity or less must be categorized as active 
on the Vessel Register if landings of tuna caught in the Convention 
Area comprise more than 50 percent of the vessel's total landings, by 
weight, for a given calendar year. To request active or inactive status 
for a vessel, the vessel owner must submit payment of the vessel 
assessment fee (also called the observer placement fee) associated with 
active or inactive status. Beginning in 2006, the Parties to the AIDCP 
have required payment of the vessel assessment fee only if a vessel: 
(1) Is listed as active and is required by the AIDCP to carry an 
observer; or (2) is listed as inactive and exceeds 400 st (362.8 mt) 
carrying capacity (Resolution A-06-01, Vessel Assessments and 
Financing). Tuna purse seine vessels of 400 st (362.8 mt) carrying 
capacity or less are required to carry an observer only if the vessel 
is suspected of intentionally setting on dolphins (AIDCP, Resolution on 
vessels of less than 363 mt capacity, October 10, 2002). None of the 
U.S. tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or 
less are required to carry an observer and therefore have not been 
required to pay the vessel assessment fee since 2006. Under the current 
regulations, payment of the fee is the only mechanism for vessel owners 
to request active or inactive status for vessels of that size. To 
address this issue, the proposed rule would revise 50 CFR 300.22(b) to 
require owners of purse seine vessels of 400 st (362.8 mt) carrying 
capacity or less to submit annual written notification to request a 
vessel be categorized as active or inactive on the Vessel Register. To 
request active status, vessel owners or managing owners would be 
required to submit written notification by fax to the Administrator, 
Southwest Region, including, but not limited to, all of the required 
Vessel Register information as described above and the vessel owner or 
managing owner's signature and business telephone and fax numbers. A 
faxed copy would provide a date and time stamp to prioritize 
applications on a first-come, first-served basis. Prioritization is 
necessary when the

[[Page 39918]]

total capacity of vessels applying for active status exceeds the U.S. 
tuna purse seine fleet's capacity (8,969 mt). To request inactive 
status, vessel owners or managing owners would be required to submit 
written notification by mail to the Administrator, Southwest Region, 
including, but not limited to, the vessel name, registration number, 
and vessel owner or managing owner's name, signature, business address, 
and business telephone and fax numbers. 50 CFR 300.22(b) would also be 
revised to require payment of the vessel assessment fee for tuna purse 
seine vessels of 400 st (362.8 mt) carrying capacity or less only if 
the vessel is categorized as active on the Vessel Register and is 
required to carry an observer.
    50 CFR 300.22(b)(4)(ii) states that a request for active status on 
the Vessel Register is considered to be frivolous if a tuna purse seine 
vessel is categorized as active for a given calendar year, but 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. The current regulation does not address cases in which a vessel 
did not fish for tuna in the Convention Area at all (i.e., zero 
landings). This rule would add to 50 CFR 300.22(b)(4)(ii) to allow a 
request for active status to be considered frivolous if a purse seine 
vessel was categorized as active but did not fish for tuna in the 
Convention Area at all in that same year, to ensure all cases 
constituting a frivolous request are covered.
    50 CFR 300.22(b)(5) would be revised to add to criteria under which 
the Administrator, Southwest Region, may remove vessels from the Vessel 
Register. First, criteria would be added to allow removal of a vessel 
if the vessel's state registration or documentation with the U.S. Coast 
Guard (USCG) is not valid. Vessels must have valid state registration 
or USCG documentation in order to fish in navigable waters of the U.S. 
or in the U.S. exclusive economic zone. Vessels without valid state 
registration or vessel documentation are no longer authorized by the 
United States to fish for tuna or tuna-like species in the Convention 
Area and must be removed from the Vessel Register. Second, criteria 
would be added to allow removal of a tuna purse seine vessel from the 
Vessel Register if the owner's request for active status has been 
determined to be frivolous. Removal of these vessels may be necessary 
to make room for other U.S. purse seine vessels desiring to actively 
fish for tuna in the Convention Area. Finally, criteria would be added 
to allow removal of a tuna purse seine vessel from the Vessel Register 
if the owner or managing owner submits written notification of the 
intent to transfer the vessel to foreign registry and flag. Removal of 
a tuna purse seine vessel from the Vessel Register prior to transfer is 
necessary to protect the U.S. tuna purse seine fleet's capacity limit. 
Each U.S. vessel on the active tuna purse seine list holds a certain 
portion (equal to the vessel's carrying capacity) of the U.S. fleet's 
capacity. If a vessel listed as active is transferred, the capacity 
held by that vessel could be transferred with it to the foreign nation, 
resulting in a loss of operating capacity for the U.S. and an increase 
in operating capacity for the foreign nation. Removal of the vessel 
from the Vessel Register prior to transfer would prevent this transfer 
of capacity. Under current regulations, NMFS may remove a tuna purse 
seine vessel from the Vessel Register prior to transfer, but only if 
the USCG or the U.S. Maritime Administration (MARAD) notifies NMFS that 
the vessel owner has submitted an application for transfer. Under an 
existing Memorandum of Understanding (MOU), MARAD already provides 
notification to NMFS for all large purse seine vessels requiring MARAD 
approval prior to transfer. However, NMFS does not have a similar 
agreement with the USCG regarding notification at this time. To ensure 
NMFS is notified prior to transfers, this rule would add new paragraph 
50 CFR 300.22(b)(8) requiring owners of tuna purse seine vessels listed 
on the Vessel Register to submit written notification to the 
Administrator, Southwest Region, prior to submitting an application to 
transfer a vessel to foreign registry and flag. Written notification 
would include the vessel name and registration number; the estimated 
submission date of the application to transfer the vessel to foreign 
registry and flag; and the vessel owner or managing owner's name and 
signature. Receipt of the written notification would be required at 
least 10 business days prior to submitting the application for 
transfer, to ensure NMFS has sufficient time to remove the vessel from 
the Vessel Register prior to the transfer. This rule would also add a 
prohibition at 50 CFR 300.24(j) making it illegal for vessel owners to 
fail to provide this written notification to the Administrator, 
Southwest Region, at least 10 business days prior to submitting the 
application for transfer. The written notification requirement would 
not apply to owners of vessels that must obtain approval by MARAD prior 
to transfer because MARAD already provides notification to NMFS. In 
accordance with available vessel capacity, vessels removed from the 
Vessel Register could be placed on the Vessel Register again by the 
United States or any government with jurisdiction over the vessel that 
also participates in the IATTC.
    50 CFR 300.25(a) states that the Administrator, Southwest Region, 
will directly notify owners and agents of U.S. tuna vessels about 
fishery management recommendations made by the IATTC and approved by 
the Department of State, and that approved IATTC recommendations will 
be announced in the Federal Register. This proposed rule would revise 
50 CFR 300.25(a) to remove the requirement of direct notification. 
Instead, NMFS would notify the public of IATTC recommendations and 
resolutions through appropriate rulemaking in the Federal Register. 
Publications in the Federal Register would summarize the new fishery 
management recommendations and resolutions and respond to public 
comments received.

ETP Tuna Purse Seine Vessel and Operator Permit Applications and Fees

    50 CFR 216.24(b)(4)(i) to (b)(4)(v) and 50 CFR 216.24(b)(5)(i) to 
(b)(5)(v) list all of the information collected on the ETP vessel and 
operator permit applications. This proposed rule would remove these 
paragraphs and add a general statement that an ETP vessel or operator 
permit application obtained from NMFS must be completed and submitted 
to request an ETP vessel or operator permit. Changes to information 
collected from the public in permit applications would still require 
appropriate rulemaking in the Federal Register and approval by the OMB 
under the PRA. 50 CFR 216.24(b)(6)(ii) would also be revised to allow 
NMFS to collect an operator permit application fee to cover the 
administrative costs associated with processing and issuing operator 
permits.
    Under 50 CFR 216.24(b)(6)(iii), payment of the vessel assessment 
fee is required for tuna purse seine vessels: (1) Listed as active on 
the Vessel Register and that are required to carry an observer; (2) 
listed as inactive on the Vessel Register and that exceed 400 st (362.8 
mt) carrying capacity; (3) licensed under the South Pacific Tuna Treaty 
(SPTT) that exercise their option to make a single trip into the ETP 
per calendar year; (4) not listed on the Vessel Register at the 
beginning of the calendar year and for which active status is requested 
to replace a vessel removed from active status during the year; and (5) 
listed as inactive at the beginning of the calendar year and for

[[Page 39919]]

which active status is requested to replace a vessel removed from 
active status during the year. The regulations establish deadlines for 
payment of the fee, except in the case of SPTT vessels and replacement 
vessels not listed at the beginning of the calendar year or in the 
previous year. 50 CFR 216.24(b)(6)(iii)(F) states that all payments 
made after the specified dates are subject to a 10-percent surcharge; 
however, only those payments subject to and made after the deadline are 
subject to a 10-percent surcharge. 50 CFR 216.24(b)(6)(iii)(F) would be 
revised to state that the following classes of vessels for which 
payments were made after the specified dates would not be subject to a 
10-percent surcharge: (1) vessels licensed under the SPTT making a 
single trip into the ETP; and (2) vessels not listed at the beginning 
of the calendar year or in the previous year, and for which active 
status was requested to replace a vessel removed from active status 
during the year. A 10-percent surcharge would apply to the following 
classes of vessels for which payments were made late: (1) vessels 
listed as active or inactive at the beginning of the calendar year; and 
(2) vessels not listed at the beginning of the calendar year, but 
listed in the previous year, and for which active status was requested 
to replace a vessel removed from active status during the year.

Tuna Purse Seine Vessels With Dolphin Mortality Limits

    Dolphin Mortality Limits (DMLs) are defined as ``the maximum 
allowable number of incidental dolphin mortalities per calendar year 
assigned to a vessel'' (50 CFR 216.3). Tuna purse seine vessels with 
DMLs are subject to additional requirements, including gear 
specifications and annual inspections. In 2004, the IDCP adopted 
resolutions to amend gear and inspection requirements for vessels with 
DMLs. To implement these requirements, this proposed rule would revise 
the regulations to comply with the resolutions adopted by the IDCP in 
2004. Floodlight specifications at 50 CFR 216.24(c)(3)(viii) would be 
revised to require vessels with DMLs to be equipped with long-range, 
high-intensity floodlights with a sodium or multivapour lamp, to 
provide sufficient light to observe dolphin release procedures and to 
monitor incidental dolphin mortality. 50 CFR 216.24(c)(4)(i) would also 
be revised to increase the frequency of vessel inspections from once to 
twice per year, to monitor compliance with gear and equipment 
requirements associated with DMLs. Vessel inspections would be 
conducted by IATTC representatives or NMFS staff.

Fisheries Certificates of Origin and Associated Certifications

    To import tuna, tuna products, and certain other fish products into 
the United States, Fisheries Certificates of Origin (FCOs) and 
associated certifications must be filed with both U.S. Customs and 
Border Protection (CBP; Department of Homeland Security) and NMFS 
Southwest Region. Current regulations at 50 CFR 216.24(f)(3)(ii) 
require FCOs and associated certifications to be submitted to NMFS 
within 30 days of the shipment's entry into the commerce of the United 
States. However, allowing 30 days to submit the required certifications 
may hinder enforcement, because the products will likely be offered for 
sale or purchased or consumed before violations of the regulations 
governing certification are determined. This rule would revise 50 CFR 
216.24(f)(3)(ii) to require that FCOs and associated certifications be 
submitted to NMFS within 10 calendar days of the shipment's entry into 
the commerce of the United States, to aid in enforcement of the 
regulations. Section 50 CFR 216.24(f)(3) continues to require that FCOs 
covering tuna processed in the United States be submitted only after 
endorsement by the final processor or exporter.
    FCOs and associated certifications may be submitted to NMFS using a 
secure file transfer protocol (FTP) site or via mail either on compact 
disc or as hard copies. The current regulations allow electronic 
submissions to be in PDF or as an image file embedded in a Microsoft 
Word, Microsoft PowerPoint, or Corel WordPerfect file. However, because 
NMFS may not be able to view image files embedded in certain versions 
of Word, PowerPoint, or WordPerfect, and because PDF is universal and 
readily available, 50 CFR 216.24(f)(3) would be revised to require all 
electronic submissions to NMFS of FCOs and associated certifications to 
be in PDF.
    In 50 CFR 216.24(f)(2), the list of Harmonized Tariff Schedule of 
the United States (HTS) numbers and descriptions of products would be 
updated based on the most recent HTS.
    50 CFR 216.24(f)(4)(xiii) and 50 CFR 216.24(f)(6)(ii) both describe 
the circumstances under which the High Seas Driftnet Certification 
contained on the FCO must be completed and by whom. 50 CFR 
216.24(f)(4)(xiii) requires a responsible government official of the 
harvesting nation to sign and date the High Seas Driftnet Certification 
for any shipments containing fish or fish products ``harvested by'' 
vessels of a nation known to use large-scale driftnets (a ``large-scale 
driftnet nation''), to certify the fish or fish products were not 
harvested using large-scale driftnets. In contrast, 50 CFR 
216.24(f)(6)(ii) requires a responsible government official of the 
large-scale driftnet nation to sign and date the High Seas Driftnet 
Certification for any shipments containing fish or fish products 
``exported from or harvested on the high seas by'' the large-scale 
driftnet nation. To address these differences, 50 CFR 
216.24(f)(4)(xiii) would be revised to be consistent with the language 
in 50 CFR 216.24(f)(6)(ii). In addition, the instructions on the FCO 
require a responsible government official of the harvesting nation to 
sign and date the High Seas Driftnet Certification for any shipments 
containing fish or fish products ``exported from or harvested by'' a 
large-scale driftnet nation. In an action outside of this rulemaking 
under the PRA, the FCO instructions would be revised to require a 
responsible government official of the large-scale driftnet nation to 
sign and date the High Seas Driftnet Certification consistent with 50 
CFR 216.24(f)(6)(ii).

Dolphin-Safe Certifications and Tuna Tracking Forms

    50 CFR 216.24(f)(3) states that documents (e.g., FCOs, 
certifications, written statements, etc.) covering tuna or tuna 
products to be imported into the United States or labeled as ``dolphin-
safe'' are to be filed with CBP at the time of import and then 
``accompany'' the tuna or tuna products by being submitted to the Tuna 
Tracking and Verification Program, Southwest Region. This proposed rule 
would add a reference to 50 CFR 216.24(f)(3) wherever the term 
``accompany'' is used in 50 CFR sections 216.91, 216.92, and 216.93, to 
clarify what is meant by the term ``accompany.'' In addition, as is 
currently required, the documents must be endorsed at each change in 
ownership, submitted by the last endorser to the Administrator, 
Southwest Region, retained in records by importers and exporters for 2 
years, and made available within 30 days of a request by the Secretary 
of Commerce or the Administrator, Southwest Region.
    Tuna tracking forms (TTFs) are completed by observers on ETP tuna 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 
to record every set made during a trip. The handling of TTFs and the 
tracking and verification of dolphin-safe and non-dolphin-safe tuna 
caught in the Convention Area are regulated by the

[[Page 39920]]

international tuna tracking and verification program adopted by the 
Parties to the AIDCP. This proposed rule would revise 50 CFR 
216.93(c)(5), which describes certain parts of the IDCP tuna tracking 
and verification program, by removing paragraphs (c)(5)(i) through 
(c)(5)(v) and adding a general statement that the handling of TTFs and 
the tracking and verification of tuna caught by a U.S. tuna purse seine 
vessel in the Convention Area will be conducted consistent with the 
international tuna tracking and verification program adopted by the 
Parties to the AIDCP. This revision would help avoid confusion and 
clarify that the procedures for handling TTFs and for tracking and 
verifying tuna caught in the Convention Area are not regulated by NMFS.

Public Comments Solicited

    NMFS is soliciting public comments on this proposed rule. Written 
comments may be submitted to Susan Wang (see ADDRESSES and DATES).

Classification

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. NMFS prepared a Regulatory Impact 
Review on the proposed regulations, available at: https://
www.regulations.gov.

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) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The basis for this certification is presented in the 
following paragraphs.

Description of Affected Entities and Small Entities

    The proposed regulations would apply to four classes of entities: 
(1) Owners of U.S. tuna purse seine vessels fishing in the Convention 
Area; (2) owners of U.S. commercial fishing vessels and CPFVs 
authorized to fish for tuna and tuna-like species in the Convention 
Area; (3) vessel operators applying for ETP tuna purse seine operator 
permits; and (4) importers of tuna, tuna products, and certain other 
fish products. We used the SBA's size standards established at 13 CFR 
121.201 to define small entities. Fishing vessels with less than $4 
million in average annual receipts, vessel operators with an average 
annual income of less than $4 million, and importers with less than 100 
employees would be considered small entities.
    U.S. tuna purse seine vessels fishing in the Convention Area are 
divided into two size groups: (1) Vessels greater than 400 st (362.8 
mt) carrying capacity (``large'' vessels); and (2) vessels of 400 st 
(362.8 mt) carrying capacity or less (``small'' vessels). Large vessels 
typically exceed $4 million in annual receipts, whereas small vessels 
have less than $4 million in annual receipts and would be considered 
small entities. Large vessels must be categorized as active on the 
Vessel Register in order to fish for tuna in the Convention Area. Small 
vessels are not required to be listed on the Vessel Register unless 
landings of tuna caught in the Convention Area comprise more than 50 
percent of the vessel's total landings, by weight, for a given calendar 
year. From 2004 to 2006, the active U.S. tuna purse seine fleet 
operating in the ETP averaged less than 5 large vessels and from 1-2 
small vessels per year. In 2007, the active U.S. fleet consisted of 
three large vessels and one small vessel, and the inactive list 
consisted of one small vessel. Ten or fewer small purse seine vessels 
fish most of the year for coastal pelagic species, but 
opportunistically fish for tuna in the ETP when tuna are seasonably 
available.
    About 2,100 U.S. commercial fishing vessels and CPFVs are 
authorized to fish for tuna and tuna-like species in the Convention 
Area per year, including: (1) vessels under Pacific HMS vessel permits 
(about 1,988 vessels); and (2) vessels based in Hawaii and the U.S. 
Pacific Islands, under HSFCA permits (about 164 vessels). All of these 
vessels would be considered small entities with less than $4 million in 
annual receipts.
    Vessel operators are in charge of and control fishing operations on 
U.S. purse seine vessels fishing for tuna and tuna-like species in the 
Convention Area and must possess a valid ETP operator permit. About 25 
vessel operators apply for the ETP operator permit each year and all 
would be considered small entities with an annual income of less than 
$4 million.
    There are an estimated 475 distinct U.S. importers of tuna, tuna 
products, and certain other fish products per year. Of these, about 350 
importers would be considered small businesses with less than 100 
employees.

Impacts on Owners of Small Tuna Purse Seine Vessels, Commercial Fishing 
Vessels, and CPFVs

    The proposed rule would apply additional requirements to tuna purse 
seine vessels in the ETP, none of which would result in a significant 
economic effect. First, payment of the vessel assessment fee is the 
only mechanism under the current regulations for vessel owners to 
request active or inactive status for a small tuna purse seine vessel. 
This rule would: (1) update the regulations to be consistent with 
resolutions under the AIDCP and require owners of small tuna purse 
seine vessels to pay the vessel assessment fee only if active status is 
requested for the vessel and the vessel is required to carry an 
observer; and (2) require an annual written notification to request 
active or inactive status for a small tuna purse seine vessel. 
Submission of written notification would: (1) ensure collection of the 
required information for the Vessel Register; and (2) provide a method 
to request active or inactive status, particularly for vessel owners no 
longer required to pay the vessel assessment fee. Written notification 
to request active status would require submission by fax to NMFS of the 
vessel owner or managing owner's signature and business telephone and 
fax numbers, as well as the required Vessel Register information as 
described in the preamble. Written notification to request inactive 
status would require submission by mail to NMFS of the vessel name and 
registration number and the owner or managing owner's name, signature, 
and business contact information. The time needed to gather and submit 
this information would be minimal (about 35 minutes for a request for 
active status and 5 minutes for a request for inactive status). Vessel 
owners already provide much of this information to NMFS on a voluntary 
basis. Additional costs for a request for active status would consist 
of $0.30 for a photograph and $3.00 for faxing. Additional costs for a 
request for inactive status would consist of $0.10 for a copy of the 
written notification, $0.10 for an envelope, and $0.42 for postage.
    Vessel Register information would also be collected for vessels 
authorized to fish for tuna and tuna-like species in the Convention 
Area under an ETP tuna purse seine vessel permit, a Pacific HMS vessel 
permit, or an HSFCA permit. This proposed rule would revise the ETP 
vessel permit application to collect a vessel photograph. However, 
owners of small purse seine vessels would not be affected, because they 
are not required to obtain an ETP vessel permit. Revisions to the 
Pacific HMS vessel permit application and HSFCA permit application to 
collect the required additional information would affect vessels under 
these permits. However, these revisions are planned as actions

[[Page 39921]]

separate from this proposed rule and are not considered in this 
analysis.
    Current regulations state that a request for active status will be 
considered frivolous if a purse seine vessel was listed as active but 
less than 20 percent of the vessel's total landings, by weight, in that 
same year was comprised of tuna harvested by purse seine in the 
Convention Area. This proposed rule would add additional criteria to 
allow a request for active status to be considered frivolous if a purse 
seine vessel was listed as active but did not fish for tuna at all in 
the Convention Area in that same year. The additional criteria would 
reinforce the current regulations and would not result in additional 
costs.
    The proposed rule would require owners of tuna purse seine vessels 
listed on the Vessel Register to submit written notification to NMFS at 
least 10 business days prior to submitting an application to transfer 
the vessel to foreign registry and flag. Written notification would 
include the vessel name and registration number, the vessel owner or 
managing owner's name and signature, and the expected date of 
submission of the application. Vessels requiring approval by MARAD 
prior to transfer would not be subject to the written notification 
requirement, because MARAD already provides such notification to NMFS 
under an MOU. No such agreement exists with the USCG at this time. This 
written notification would ensure NMFS is notified prior to transfer of 
the vessel to foreign registry and flag. The time needed to prepare and 
submit this written notification would be minimal (about 5 minutes). 
Additional costs would include $0.10 for a copy of the written 
notification, $0.10 for an envelope, and $0.42 for postage.
    Regulations at 50 CFR part 300 provide criteria under which a 
vessel may be removed from the Vessel Register. The proposed 
regulations would add additional criteria to aid in managing and 
updating the U.S. portion of the Vessel Register. First, additional 
criteria would be added to allow removal of a vessel from the Vessel 
Register if the vessel lacks valid state registration or documentation 
with the USCG. Vessels lacking valid state registration or USCG 
documentation are not authorized to fish in navigable waters of the 
United States or in the U.S. exclusive economic zone, and therefore are 
not authorized by the United States to fish for tuna and tuna-like 
species in the Convention Area. Removal of such vessels is necessary to 
update and maintain the Vessel Register and would not result in 
additional costs.
    Second, additional criteria would be added to allow removal of a 
tuna purse seine vessel from the Vessel Register if the owner of the 
vessel has made a frivolous request for active status. Removal of the 
vessel may be necessary to make room on the Vessel Register for other 
U.S. purse seine vessels. Small vessels would experience little to no 
economic impacts. Although the vessel would no longer be listed on the 
Vessel Register, current regulations allow a small vessel to continue 
fishing for tuna as long as landings of tuna caught in the Convention 
Area comprise 50 percent or less of the vessel's total landings in that 
calendar year. All small vessels removed from the Vessel Register due 
to a frivolous request would still be allowed to fish for tuna in the 
Convention Area, given the definition of a frivolous request. Vessels 
removed from the Vessel Register due to a frivolous request may be 
added back to the Vessel Register if the owner submits a request for 
active or inactive status; however, the request would be considered 
last among all requests for that year.
    Third, additional criteria would be added to allow removal of a 
tuna purse seine vessel from the Vessel Register upon receipt of 
written notification from the owner or managing owner of the intent to 
transfer the vessel to foreign registry and flag. The additional 
criteria would reinforce current regulations, which allow NMFS to 
remove a vessel from the Vessel Register prior to transfer, but only if 
MARAD or the USCG notifies NMFS that the owner has submitted an 
application for transfer. Removal of a tuna purse seine vessel from the 
Vessel Register prior to transfer is necessary to protect the U.S. tuna 
purse seine fleet's capacity limit. A U.S. tuna purse seine vessel 
listed as active on the Vessel Register holds a certain portion of the 
U.S. fleet's capacity limit of 8,969 mt. The capacity held by the 
vessel could be transferred with the vessel upon transfer to foreign 
registry and flag. Removing the vessel from the Vessel Register prior 
to transfer would prevent reductions in the U.S. fleet's capacity 
limit, because the vessel would no longer hold a portion of the U.S. 
fleet's capacity. However, the vessel's market value would likely 
decrease. Although this may result in a potentially significant 
economic impact, this impact would be attributed to the current 
regulations that already allow removal of vessels from the Vessel 
Register prior to transfer.
    Owners of small purse seine vessels would not be subject to revised 
floodlight and vessel inspection requirements for purse seine vessels 
possessing DMLs. Owners of small purse seine vessels are not allowed to 
obtain DMLs.

Impacts on Vessel Operators

    The proposed rule would add an ETP operator permit application fee 
of $35 to $40 to cover administrative costs for processing and issuing 
ETP operator permits. An application processing fee of $35 to $40 would 
not be a significant proportion of the annual income of an ETP vessel 
operator, who earns approximately $40,000 to more than $100,000 per 
fishing trip.

Impacts on Importers

    The requirement that electronic submissions of FCOs and associated 
certifications be in PDF would affect importers of tuna, tuna products, 
and certain other fish products requiring FCOs. Limiting the acceptable 
file format types to PDF would ensure that files are readable. This 
action would not significantly affect the ability of importers to 
submit FCOs and associated certifications. Importers would continue to 
have the option of submitting FCOs and associated certifications by 
mail. Submission by mail is the method currently used by almost all of 
the 475 importers and this would not be expected to change. Since the 
start of this program, only two out of the 475 importers per year have 
used the electronic option to submit their forms to NMFS, and both 
already submit the forms in PDF. No additional costs would be expected 
to result from this requirement.
    Importers would also be affected by the requirement that FCOs and 
associated certifications be submitted to NMFS within 10 calendar days 
of the shipment's entry into the commerce of the United States, rather 
than within 30 days (except when the tuna will be processed in the 
United States, in which case the form must be submitted after 
endorsement by the final processor or exporter). Reducing the time 
period within which the forms must be submitted to NMFS would aid in 
enforcement. NMFS would be able to detect and respond to problems with 
the FCOs or certifications before the products are placed in stores for 
sale, or purchased and consumed. Most importers would have no 
additional costs, because they already submit their forms within 10 
days of the shipment's entry into U.S. commerce. About 20 of the 350 
importers that would be considered small businesses currently submit 
their forms monthly and would need to submit the FCOs and associated 
certifications more frequently (e.g., 2-3 times per month rather than 
monthly).

[[Page 39922]]

Aside from the extra time required, added out-of-pocket expenses would 
be small (i.e., $0.10 for each additional envelope and $0.42 for 
postage for each additional mailing).

Summary

    The proposed rule would affect small entities, but would not have a 
significant economic effect on any of these small entities. In some 
cases, the new or revised requirements would apply to a substantial 
number of small entities, but would not result in significant economic 
effects. In addition, the proposed rule would not create a 
disproportionate effect on small entities or significantly reduce 
profit for small entities. Therefore, an initial regulatory flexibility 
analysis is not required and none has been prepared.

Paperwork Reduction Act

    This proposed rule contains new and revised collection-of-
information requirements subject to review and approval by OMB under 
the PRA for collections under control number 0648-0387. The following 
collection-of-information requirements have been submitted to OMB for 
approval: (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 proposed rule also contains a non-substantive change subject 
to review and approval by OMB under the PRA for collections under 
control number 0648-0335. A non-substantive change request has been 
submitted to OMB for approval to require 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.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to Susan 
Wang, NMFS, and to David Rostker, OMB (see ADDRESSES above).
    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 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 proposed 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 final rule would not be expected 
to result in significant effects on the human environment. This 
proposed 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 has 
been prepared memorializing this decision that is available at the 
Federal E-rulemaking Web site: https://www.regulations.gov.

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 
proposed 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.

[[Page 39923]]

50 CFR Part 300

    International fisheries regulations, Pacific tuna fisheries.

    Dated: July 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator, for Regulatory Programs, National 
Marine Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR parts 216 and 300 as follows:

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

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

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

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


Sec.  216.3  Definitions.

* * * * *
    Albacore tuna means the species Thunnus alalunga.
* * * * *
    Bigeye tuna means the species Thunnus obesus.
    Bluefin tuna means the species Thunnus thynnus.
* * * * *
    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.
    Tuna product means any food product processed for retail sale and 
intended for human consumption that contains an item listed in Sec.  
216.24(f)(2)(i) or (ii), but does not include perishable items with a 
shelf life of less than 3 days.
* * * * *
    Yellowfin tuna means the species Thunnus albacares (synonomy: 
Neothunnus macropterus).
    3. In Sec.  216.24, redesignate paragraph (f)(8)(i)(D)(3)(iii) as 
paragraph (f)(8)(ii) and redesignate paragraphs (f)(8)(iv), (f)(8)(v), 
and (f)(8)(vi) as paragraphs (f)(8)(iii), (f)(8)(iv), and (f)(8)(v); 
and revise paragraphs (a)(3), (b)(4), (b)(5), (b)(6)(ii), (b)(6)(iii), 
(c)(3)(viii), (c)(4)(i), (f)(2), (f)(3), (f)(4), (f)(10), and (f)(11), 
to read as follows:.


Sec.  216.24  Taking and related acts incidental to commercial fishing 
operations by tuna purse seine vessels in the eastern tropical Pacific 
Ocean.

    (a) * * *
    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(ii) and (e)(1) of this section may be 
waived by the Administrator, Southwest Region, for the purpose of 
allowing transit through the ETP. The waiver will provide, in writing, 
the terms and conditions under which the vessel must operate, including 
a requirement to report to the Administrator, Southwest Region, the 
vessel's date of exit from or subsequent entry into the permit area.
    (b) * * *
    (4) Application for vessel permit. ETP tuna purse seine vessel 
permit application forms and instructions for their completion are 
available from NMFS. To apply for an ETP vessel permit, a vessel owner 
or managing owner must complete, sign, and submit the appropriate form 
via fax to (562) 980-4047, for prioritization purposes as described 
under Sec.  300.22(b)(4)(i)(D)(3) of this title, allowing at least 15 
days for processing. To request that a vessel in excess of 400 st 
(362.8 mt) carrying capacity be categorized as active on the Vessel 
Register under Sec.  300.22(b)(4)(i) of this title in the following 
calendar year, the owner or managing owner must submit the vessel 
permit application via fax, payment of the vessel permit application 
fee, and payment of the vessel assessment fee no later than September 
15 for vessels for which a DML is requested for the following year, and 
no later than November 30 for vessels for which a DML is not requested 
for the following year.
    (5) Application for operator permit. An applicant for an operator 
permit must complete, sign, and submit the appropriate form obtained 
from NMFS and submit payment of the permit application fee to the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. Application forms and instructions for their completion are 
available from NMFS.
    (6) * * *
    (ii) Operator permit fee. The Assistant Administrator may require a 
fee to be submitted with an application for an operator permit. The 
level of such a fee shall be determined in accordance with the NOAA 
Finance Handbook and specified by the Administrator, Southwest Region, 
on the application form.
    (iii) Vessel assessment fee. The vessel assessment fee supports the 
placement of observers on individual tuna purse seine vessels, and 
maintenance of the observer program, as established by the IATTC or 
other approved observer program.
    (A) The owner or managing owner of a purse seine vessel for which a 
DML has been requested must submit the vessel assessment fee, as 
established by the IATTC or other approved observer program, to the 
Administrator, Southwest Region, no later than September 15 of the year 
prior to the calendar year for which the DML is requested. Payment of 
the vessel assessment fee must be consistent with the fee for active 
status on the Vessel Register under Sec.  300.22(b)(4) of this title.
    (B) The owner or managing owner of a purse seine vessel for which 
active or inactive status on the Vessel Register, as defined in Sec.  
300.21 of this title, has been requested, but for which a DML has not 
been requested, must submit payment of the vessel assessment fee, as 
established by the IATTC or other approved observer program, to the 
Administrator, Southwest Region, no later than November 30 of the year 
prior to the calendar year in which the vessel will be listed on the 
Vessel Register. Payment of the vessel assessment fee is required only 
if the vessel is listed as active and is required to carry an observer, 
or if the vessel is listed as inactive and exceeds 400 st (362.8 mt) in 
carrying capacity. Payment of the vessel assessment fee must be 
consistent with the vessel's status, either active or inactive, on the 
Vessel Register in Sec.  300.22(b)(4) of this title.
    (C) The owner or managing owner of a purse seine vessel that is 
licensed under the South Pacific Tuna Treaty must submit the vessel 
assessment fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, prior to obtaining an 
observer and entering the ETP to fish. Consistent with Sec.  
300.22(b)(1)(i) of this title, this class of purse seine vessels is not 
required to be listed on the Vessel Register under Sec.  300.22(b)(4) 
of this title in order to purse seine for tuna in the ETP during a 
single fishing trip per calendar year of 90 days or less. Payment of 
the vessel assessment fee must be consistent with the fee for active 
status on the Vessel Register under Sec.  300.22(b)(4) of this title.
    (D) The owner or managing owner of a purse seine vessel listed as 
inactive on the Vessel Register at the beginning of

[[Page 39924]]

the calendar year and who requests to replace a vessel removed from 
active status on the Vessel Register under Sec.  300.22(b)(4) of this 
title during the year, must pay the vessel assessment fee associated 
with active status, less the vessel assessment fee associated with 
inactive status that was already paid, before NMFS will request the 
IATTC Secretariat change the status of the vessel from inactive to 
active. Payment of the vessel assessment fee is required only if the 
vessel is required to carry an observer.
    (E) The owner or managing owner of a purse seine vessel not listed 
on the Vessel Register at the beginning of the calendar year and who 
requests to replace a vessel removed from active status on the Vessel 
Register under Sec.  300.22(b)(4) of this title during the year, must 
pay the vessel assessment fee associated with active status only if the 
vessel is required to carry an observer, before NMFS will request the 
IATTC Secretariat 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)(D) of this section; under paragraph 
(b)(6)(iii)(E) of this section for vessels that were listed on the 
Vessel Register in the calendar year prior to the year for which active 
status was requested; or after the dates specified in paragraphs 
(b)(6)(iii)(A) or (b)(6)(iii)(B) of this section. Payments will not be 
subject to a 10 percent surcharge if received under paragraph 
(b)(6)(iii)(C) of this section, or if received under paragraph 
(b)(6)(iii)(E) of this section for vessels that were not listed on the 
Vessel Register in the calendar year prior to the year for which active 
status was requested. The Administrator, Southwest Region, will forward 
all vessel assessment fees described in this section to the IATTC or to 
the applicable organization approved by the Administrator, Southwest 
Region.
* * * * *
    (c) * * *
    (3) * * *
    (viii) Lights. The vessel must be equipped with long-range, high-
intensity floodlights with a sodium lamp of at least 1000 watts, or a 
multivapour lamp of at least 1500 watts, for use in darkness to ensure 
sufficient light to observe that procedures for dolphin release are 
carried out and to monitor incidental dolphin mortality.
    (4) Vessel inspection--(i) Twice per year. At least twice during 
each calendar year, purse seine nets and other gear and equipment 
required under Sec.  216.24(c)(3) must be made available for inspection 
and for a trial set/net alignment by an authorized NMFS inspector or 
IATTC staff as specified by the Administrator, Southwest Region, in 
order to obtain a vessel permit. The first such inspection shall be 
carried out before the vessel's request for a DML is submitted to the 
IATTC. The second such inspection shall be carried out before 
notification of any reallocation of DMLs for vessels with full-year 
DMLs o