Enhanced Document Requirements and Captain Training Requirements To Support Use of the Dolphin Safe Label on Tuna Products, 15444-15449 [2016-06450]

Download as PDF jstallworth on DSK7TPTVN1PROD with RULES 15444 Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Under RCRA section 3006(b), EPA grants a state’s application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the ‘‘Attorney VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 General’s Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings’’ issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). ‘‘Burden’’ is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing state rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by state law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898. The Congressional Review Act, 5 U.S.C. 801–808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). However, this action will be effective June 6, 2016 because it is a direct final rule. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b). PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 Dated: March 9, 2016. Jared Blumenfeld, Regional Administrator, Region 9. [FR Doc. 2016–06434 Filed 3–22–16; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No.: 160204080–6080–01] RIN 0648–BF73 Enhanced Document Requirements and Captain Training Requirements To Support Use of the Dolphin Safe Label on Tuna Products National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Interim final rule; request for comments. AGENCY: NMFS issues this interim final rule to revise regulations implementing the Dolphin Protection Consumer Information Act (DPCIA) to enhance the requirements for documentation that demonstrates the accuracy of dolphin-safe labels on tuna products. This interim final rule: Modifies the regulations (referred to hereafter as the ‘‘determination provisions’’) under which the NMFS Assistant Administrator (Assistant Administrator) may require proof of an observer certification if the Assistant Administrator determines that a fishery has a regular and significant association between dolphins and tuna and/or has a regular and significant mortality or serious injury of dolphins, to apply equally to purse seine and other geartype tuna fisheries; provides that a government certificate validating the catch documentation, segregation, and chain of custody may be required for tuna produced from a fishery about which the Assistant Administrator has made a determination under the determination provisions; restructures NOAA regulations such that they now provide for one straightforward certification regarding intentional deployment and mortality/serious injury for all fisheries that produce tuna that is potentially eligible for the dolphin-safe label; modifies the Fisheries Certificate of Origin (FCO) to require captains to complete a training for certifications that must accompany the FCO; enhances chain of custody tracking requirements for tuna and tuna SUMMARY: E:\FR\FM\23MRR1.SGM 23MRR1 Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations product; and makes several nonsubstantive modifications to the regulations. This interim final rule brings the United States into compliance with its obligations as a Member of the World Trade Organization (WTO). DATES: This interim final rule is effective March 22, 2016, except for amendatory instruction 2, which is effective May 21, 2016. Comments must be submitted in writing by April 22, 2016. You may submit comments on this document, identified by NOAA– NMFS–2016–0012, by either of the following methods: • Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. 1. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20160012, 2. Click the ‘‘Comment Now!’’ icon, complete the required fields, and 3. Enter or attach your comments. — OR — • Mail: Submit written comments to William W. Stelle, Jr., NMFS West Coast Region (WCR), 7600 Sand Point Way NE., Bldg 1, Seattle, WA 98115–0070. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, might not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name and address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: William Jacobson, NMFS WCR, 562– 980–4035. SUPPLEMENTARY INFORMATION: ADDRESSES: jstallworth on DSK7TPTVN1PROD with RULES Background The DPCIA (16 U.S.C. 1385), enacted in 1990, established a dolphin-safe labeling standard for tuna products. The law addressed a Congressional finding that ‘‘consumers would like to know if the tuna they purchase is falsely labeled as to the effect of the harvesting of the tuna on dolphins.’’ Specifically, the DPCIA makes it a violation of U.S. law regarding deceptive practices to use any label with the term dolphin-safe or any other term or symbol that falsely claims or suggests that the tuna contained in VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 the product were harvested using a method of fishing that is not harmful to dolphins, except under the conditions laid out in the DPCIA and associated regulations. The authority of the Secretary of Commerce under the DPCIA has been delegated to the Assistant Administrator. In 2008, Mexico initiated WTO dispute settlement proceedings to challenge the U.S. dolphin-safe labeling scheme as being inconsistent with certain provisions of the WTO’s General Agreement on Tariffs and Trade 1994 (GATT 1994) and Agreement on Technical Barriers to Trade (TBT Agreement). Mexico challenged three components of the U.S. measure: The DPCIA, Department of Commerce DPCIA regulations (50 CFR 216.91 and 216.92), and a Federal court decision (Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007)). These components of the measure establish conditions under which tuna products may voluntarily be labeled dolphin-safe. Among other requirements, these conditions do not allow tuna products to be labeled dolphin-safe if they contain tuna that was caught by intentionally encircling and deploying purse seine nets on dolphins. On June 13, 2012, the WTO Dispute Settlement Body adopted WTO Panel and Appellate Body reports ruling that the U.S. measure accords less favorable treatment to Mexican tuna products and therefore is inconsistent with Article 2.1 of the TBT Agreement. In response to this finding, on July 9, 2013, NMFS published a final rule under the DPCIA titled ‘‘Enhanced Document Requirements to Support Use of the Dolphin Safe Label on Tuna Products’’ (78 FR 40997) that amended regulations at 50 CFR part 216, subpart H. The 2013 final rule modified the labeling conditions to more fully address the risks to dolphins posed by tuna fishing outside the eastern tropical Pacific Ocean (ETP) large purse seine fishery (i.e., where the vessel has a carrying capacity of more than 400 short tons (362.8 mt)).1 Specifically, the 2013 final rule amended the eligibility condition that tuna product may not be labeled dolphin-safe if a dolphin was killed or seriously injured in the set or other gear deployment in which the tuna was caught so that the condition now applied to all tuna caught in any fishery in the world. The 2013 final rule further required that a captain’s certificate stating that this condition 1 The ETP is defined as the waters of the Pacific Ocean bounded by 40° N. latitude, 40° S. latitude, 160° W. longitude and the coastlines of North, Central and South America (50 CFR 216.3). PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 15445 was met was required for tuna caught by any eligible method in any fishery to be labeled dolphin-safe. Additionally, all dolphin-safe tuna must be kept physically separate, from the time of catch through the time of unloading, from non-dolphin-safe tuna. The WTO established a compliance panel on January 27, 2014, to determine whether the 2013 final rule brought the dolphin-safe labeling requirements into compliance with the United States’ WTO obligations. The compliance panel circulated its final report on April 14, 2015. In that report, the compliance panel found that the amended dolphinsafe labeling measure discriminates against Mexican tuna product in breach of Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the GATT 1994. The compliance panel considered three regulatory distinctions of the amended measure: (1) The ineligibility for the dolphin-safe label of tuna caught by setting on dolphins; (2) the certification requirements; and, (3) the tracking and verification requirements. First, the compliance panel found that the provisions in U.S. law making any dolphin-safe label ineligible to be used for tuna product containing tuna caught by setting on dolphins and the potential eligibility of tuna caught by other methods was consistent with Article 2.1 of the TBT Agreement and, while inconsistent with Articles I:1 and III:4 of the GATT 1994, was justified under Article XX of the GATT 1994. Second, the compliance panel found that the certification requirements discriminated against Mexican tuna product because it is more burdensome for Mexican producers to comply with the certification requirements of the Agreement on the International Dolphin Conservation Program (AIDCP) than the certification requirements applicable outside the ETP large purse seine fishery. In the compliance panel’s view, this difference in burden was not justified given the lack of training for captains making such certifications outside the ETP large purse seine fishery as well as the perceived ‘‘gaps’’ in coverage of the determination provisions. Third, the compliance panel found that the tracking and verification requirements discriminated against Mexican tuna produced from large purse seine vessels in the ETP because it was more burdensome for Mexican producers to comply with the AIDCP tracking and verification requirements than the tracking and verification requirements applicable for fisheries other than the ETP large purse seine fishery and that this burden could not be justified. E:\FR\FM\23MRR1.SGM 23MRR1 15446 Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations jstallworth on DSK7TPTVN1PROD with RULES The United States and Mexico both appealed aspects of the compliance panel’s report, and the WTO Appellate Body issued its report on November 20, 2015. The Appellate Body found that the United States had not brought its measure into compliance with its WTO obligations. Specifically, the Appellate Body found the amended dolphin-safe labeling measure to be inconsistent with the non-discrimination obligations contained in the TBT Agreement and the GATT 1994 because the measure had a detrimental impact on the conditions of competition for Mexican tuna product in the U.S. market and that this detrimental impact reflected prohibited discrimination in light of the perceived ‘‘gaps’’ in the design of the determination provisions. In particular, the Appellate Body criticized the determination provisions because, as designed, the determination provisions allowed for the possibility that no observer requirement would be imposed where a ‘‘regular and significant’’ dolphin mortality or serious injury is occurring in a purse seine fishery without a regular and significant tunadolphin association, or where a ‘‘regular and significant’’ tuna-dolphin association is occurring in a non-purse seine fishery without ‘‘regular and significant’’ dolphin mortality or serious injury. On February 5, 2016, NMFS published a proposed rule (81 FR 6210) entitled ‘‘Magnuson-Stevens Fishery Conservation and Management Act; Seafood Import Monitoring Program,’’ also known as the Traceability Proposed Rule. The Traceability Proposed Rule proposes establishing filing and recordkeeping procedures for certain fish and fish products to combat illegal, unreported, and unregulated fishing and seafood fraud in the U.S. market. NMFS has incorporated into this interim final rule the approach taken in the Traceability Proposed Rule with regard to chain of custody documentation requirements. The Action This interim final rule makes six amendments to the regulations, as explained below, none of which affect the labeling of tuna originating from the ETP large purse seine fishery. First, effective upon publication in the Federal Register, this interim final rule revises the determination provisions that previously had been codified at 50 CFR 216.91(a)(2)(i) and (a)(4)(iii), and which are now codified at 50 CFR 216.91(a)(3)(v). Under the amended determination provisions, the Assistant Administrator now has the authority to require, as a condition for VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 labeling tuna product dolphin-safe, that an on-board observer (in addition to the captain) certify the tuna was caught in a manner that meets the dolphin-safe labeling requirements where the Assistant Administrator has determined that a fishery has a regular and significant association between tuna and dolphins (similar to the association between dolphins and tuna in the ETP) and/or has a regular and significant mortality or serious injury of dolphins. This expanded authority applies equally to purse seine and other gear-type tuna fisheries other than the ETP large purse seine fishery (where an observer certificate is already required) and largescale driftnet fisheries (which produce tuna that is ineligible for the label). See 50 CFR 216.91(a)(1) and (a)(2). In the case of either ‘‘regular and significant’’ determination, only observers participating in a national or international observer program acceptable to the Assistant Administrator would be able to provide the necessary observer certifications. NMFS notes that while the revised regulations provide for one standard for making determinations, NMFS will interpret in 50 CFR 216.91(a)(3)(v) consistent with both the DPCIA and U.S. WTO obligations on a fishery-byfishery basis. In particular, NMFS will take into account that the DPCIA instructs NMFS to impose an observer requirement where 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)’’ for purse seine fisheries outside the ETP, while the DPCIA affords NMFS more discretion to impose an observer requirement either when evaluating other types of fisheries or when evaluating all 50 CFR 216.91(a)(3) fisheries under the mortality or serious injury prong of 50 CFR 216.91(a)(3)(v). See 16 U.S.C. 1385(d)(1)(B)(i) and (D). At the same time, NMFS will also take U.S. WTO obligations into account in any exercise of such discretion. Second, effective upon publication in the Federal Register, this interim final rule revises the determination provisions under which the Assistant Administrator is authorized to impose an observer certification requirement if a tuna fishery is determined to have either a ‘‘regular and significant’’ association of dolphins or a ‘‘regular and significant’’ mortality or serious injury of dolphins. If the Assistant Administrator makes such a determination, NMFS will now also require a government certificate validating: (1) The catch documentation; PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 (2) whether the tuna or tuna products meet the dolphin-safe labeling standards under 50 CFR 216.91; and (3) the chain of custody information reported to the U.S. Government or maintained by the importer of record or the U.S. processor, as applicable. Third, this interim final rule combines the previously separate categories of ‘‘non-ETP purse seine vessel’’ (50 CFR 216.91(a)(2)) and ‘‘Other fisheries’’ (50 CFR 216.91(a)(4)) into one category under the title ‘‘Other fisheries’’ (revised 50 CFR 216.91(a)(3)). Under the revised 50 CFR 216.91(a)(3)(iii), captains of all vessels in fisheries not covered in paragraphs (a)(1) (i.e., the ETP large purse seine fishery) and (a)(2) (i.e., a large-scale driftnet fishery) must certify that, no purse seine net or other fishing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. This revision makes clear that tuna does not meet the dolphin-safe standard if it is harvested by vessels that intentionally deploy fishing gear (regardless of the type) on dolphins. Moreover, this revision also makes clear that captains of all vessels not covered by 50 CFR 216.91(a)(1) (where the same certification is already required) and (a)(2) (which produces tuna that is ineligible for the label) must make such a certification. To be clear, a non-purse seine vessel intentionally deploys its fishing gear on a dolphin(s) where a vessel intentionally targets a dolphin(s) with the fishing gear. However, as is the case with intentional encirclement, the deployment must be intentional, and where a dolphin(s) is seen only after the fishing gear was deployed, then the vessel did not intentionally deploy the fishing gear on a dolphin(s). This revised certification will apply to tuna caught by a vessel on a fishing trip that begins on or after May 21, 2016. Until that date, the certifications provided by paragraphs (a)(3)(i) or (ii), as applicable, will continue to apply. Fourth, this interim final rule modifies the FCO and the requirements for the associated captain’s statement by requiring captains of vessels operating in ‘‘other fisheries’’ to certify completion of a NMFS Tuna Tracking and Verification Program (TTVP) dolphin-safe training course (training course). The training course will include information on: (1) Identifying dolphins of the taxonomic family Delphinidae; (2) identifying intentional gear deployment on or encirclement of dolphins; (3) identifying dolphin E:\FR\FM\23MRR1.SGM 23MRR1 jstallworth on DSK7TPTVN1PROD with RULES Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations mortality and serious injury; and (4) physically separating dolphin-safe tuna from non-dolphin-safe tuna from the time of capture through unloading. The training course is available on the NMFS TTVP Internet home page at https://www.nmfs.noaa.gov/pr/ dolphinsafe. Captain certification of completion of the training course applies to all tuna product labeled dolphin-safe if the product contains tuna harvested on a fishing trip that begins on or after May 21, 2016. Existing captain’s statement templates found at the NMFS TTVP Internet home page have been modified and may be used to certify completion of the NMFS TTVP training course. The 2013 final rule required all completed FCOs to have associated captain’s statement certifications for all tuna harvested other than the ETP large purse seine fishery. As a starting point, NMFS will translate the TTVP training course into a sufficient number of languages to ensure that the vast majority of languages spoken by captains producing tuna for the U.S. tuna product market are covered by the translation. Internet links to the translated courses will be posted on the TTVP Internet home page at https://www.nmfs.noaa.gov/pr/ dolphinsafe as they become available. In addition to posting on the Internet translated versions of the training course, the United States Government ´ will send a demarche to embassies of all countries that supply tuna product to the United States, explaining the new requirements and enclosing a copy of ´ the training course. The demarche will also include the TTVP Internet home page address, as well as a copy of this interim final rule. Providing this information to embassies is intended to aid in disseminating the training course to tuna captains as well as in the dissemination of the new U.S. dolphinsafe tuna labeling requirements to processors. Fifth, this interim final rule requires U.S. processors and importers of record to collect and retain for 2 years, information on each point in the chain of custody regarding the shipment of the tuna or tuna product to the point of entry into U.S. commerce as a recordkeeping requirement on the part of that U.S. processor or importer of record. The information must be maintained at the place of business, or be accessible from that place of business through, for example, an Internet connection to an off site server where the information is held. This is to ensure that information is readily available to NMFS to allow it to trace the tuna or tuna product back to the VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 point of harvest. As is the case for the Traceability Proposed Rule (discussed above), such information would include records regarding each custodian of the tuna or tuna product, including, as applicable, transshippers, processors, storage facilities, and wholesalers/ distributors. The retained information must be provided to NMFS upon request and must be sufficient for NMFS to conduct a trace back to verify that the tuna product certified as dolphin-safe to NMFS, in fact, meets the dolphin-safe labeling requirements for such certification. NMFS expects that typical supply chain records that are kept in the normal course of business, including declarations by harvesting and carrier vessels, bills of lading and forms voluntarily used or required under foreign government or international monitoring programs, which include such information as the identity of the custodian, the type of processing, and the weight of the product, would provide sufficient information for NMFS to conduct a trace back. In addition, the information maintained must be sufficient in order to trace any nondolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip to prove that such nondolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading. These chain of custody requirements augment existing requirements that dolphin-safe tuna shall, from the time of capture, during unloading, storage, transfer, and processing, be kept separate from non-dolphin safe tuna set out in 50 CFR 216.91(a)(4) and 50 CFR 216.93(c)(2) and (3). These chain of custody requirements apply to all tuna product labeled dolphin-safe if the product contains tuna harvested on a fishing trip that begins on or after May 21, 2016. Sixth, this interim final rule makes several non-substantive modifications to 50 CFR 216.91 including redesignating regulatory text paragraphs; updating Internet Web addresses to the NMFS TTVP Internet home page located at https://www.nmfs.noaa.gov/pr/ dolphinsafe; and changing the word ‘‘distributor’’ to ‘‘wholesaler/ distributor’’ for consistency in the regulatory text. NMFS is publishing 50 CFR 216.91 in its entirety (including provisions that were not changed) for the convenience of readers and to improve clarity. NMFS has broad authority to issue regulations to implement the DPCIA, including specifically the authority to establish a domestic tracking and verification program to track tuna PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 15447 labeled dolphin-safe, and to adjust such regulations as appropriate to implement an international tracking and verification program (16 U.S.C. 1385(f)). Among other things, this rule is expected to better ensure that consumers are more easily able to determine the veracity of dolphin-safe labels on tuna products they purchase, in accordance with the findings of the DPCIA (16 U.S.C. 1385(b)). Classification The NMFS Assistant Administrator has determined that this interim final rule is consistent with the DPCIA and other applicable laws. Administrative Procedure Act NOAA finds good cause to issue this interim final rule without advance notice in a proposed rule or the opportunity for public comment, and to make the rule effective immediately without providing a 30-day delay, because the limited time available to the United States to come into compliance with its WTO obligations makes advance notice and comment or delaying the effectiveness contrary to the public interest. Specifically, any delay in the effective date of the rule would delay the federal government’s ability to have the United States come into compliance with its WTO obligations. Furthermore, any delay may adversely affect U.S. trade as well as the federal government’s ability to respond to Mexico’s request for authorization to suspend the application to the United States of WTO concessions or other obligations, which could result in Mexico taking action that adversely affects U.S. interests (e.g., increasing tariffs on U.S. goods). However, NMFS will consider public comments on this interim final rule and issue a final rule. Executive Order 12866 This interim final rule has been determined to be not significant for purposes of Executive Order 12866. Paperwork Reduction Act (PRA) This interim final rule contains two new collection-of-information requirements subject to PRA under control numbers 0648–0335 and 0648– 0387. These requirements have been approved by the Office of Management and Budget (OMB). There is no additional public reporting burden for OMB control number 0648–0335, titled ‘‘Fisheries Certificate of Origin,’’ as collection of an FCO and/or a captain’s certification are already required to be submitted to NMFS. The additional public reporting burden under OMB control number 0648–0387, titled E:\FR\FM\23MRR1.SGM 23MRR1 15448 Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations ‘‘International Dolphin Conservation Program,’’ is estimated to average 30 minutes per response for chain of custody recordkeeping, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. NMFS will ensure compliance with PRA requirements before requiring new observer certifications that might be triggered by a determination of the Assistant Administrator under sections 216.91(a)(3)(v) and (a)(5)(ii) of this interim final rule. 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. List of Subjects in 50 CFR Part 216 Commercial fisheries, Food labeling, Imports, Marine mammals, Reporting and recordkeeping requirements, Seafood. Dated: March 17, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 216 is amended as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS Subpart H—Dolphin Safe Tuna Labeling 1. The authority citation for 50 CFR part 216, subpart H, continues to read as follows: ■ Authority: 16 U.S.C. 1385. 2. Section 216.91 is revised to read as follows: ■ jstallworth on DSK7TPTVN1PROD with RULES § 216.91 Dolphin-safe labeling standards. (a) It is a violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, wholesaler/distributor, or seller of any tuna products that are exported from or offered for sale in the United States to include on the label of those products the term ‘‘dolphin-safe’’ or any other term or symbol that claims or suggests that the tuna contained in the products were harvested using a method of fishing that is not harmful to dolphins if the products contain tuna harvested: VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 (1) ETP large purse seine vessel. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity unless: (i) The documentation requirements for dolphin-safe tuna under §§ 216.92 and 216.93 are met; (ii) No dolphins were killed or seriously injured during the sets in which the tuna were caught; and (iii) None of the tuna were caught on a trip using a purse seine net intentionally deployed on or to encircle dolphins, provided that this paragraph (a)(1)(iii) will not apply if the Assistant Administrator publishes a notification in the Federal Register announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse seine nets on or encirclement of dolphins is not having a significant adverse impact on any depleted stock. (2) Driftnet. By a vessel engaged in large-scale driftnet fishing; or (3) Other fisheries. By a vessel in a fishery other than one described in paragraph (a)(1) or (2) of this section unless such product is accompanied as described in § 216.93(d), (e), or (f), as appropriate, by: (i) For tuna caught in a purse seine fishery outside the ETP by a vessel on a fishing trip that began before July 13, 2013, 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. (ii) For tuna caught by a vessel on a fishing trip that began on or after July 13, 2013, a written statement executed by the Captain of the vessel certifying: (A) For a purse seine vessel outside the ETP, that no purse seine net was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets in which the tuna were caught; (B) For a vessel other than one described in paragraph (a)(3)(ii)(A) of this section, that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. (iii) [Reserved] (iv) For tuna caught in a fishery where the Assistant Administrator has determined that observers participating in a national or international observer program are qualified and authorized to issue observer statements for purposes of the dolphin-safe labeling program, and where such an observer is on board the vessel, a written statement executed by the observer, or by an authorized representative of a nation participating PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 in the observer program based on information from the observer. Any determination by the Assistant Administrator shall be announced in a notice published in the Federal Register. Determinations under this paragraph (a)(3)(iv) will also be publicized on the Web site of the NMFS Tuna Tracking and Verification Program (https://www.nnmfs.noaa.gov/pr/ dolphinsafe). The written statement shall certify: (A) That no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and, (B) In purse seine fisheries, that no purse seine net was intentionally deployed on or used to encircle dolphins during the trip on which the tuna were caught. (v) For tuna caught in a fishery in which the Assistant Administrator has determined that either a regular and significant association between dolphins and tuna (similar to the association between dolphins and tuna in the ETP) or a regular and significant mortality or serious injury of dolphins is occurring, 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, unless the Assistant Administrator determines an observer statement is unnecessary. Determinations under this paragraph (a)(3)(v) will also be publicized on the Web site of the NMFS Tuna Tracking and Verification Program (https:// www.nmfs.noaa.gov/pr/dolphinsafe). The written statement shall certify that: (A) No fishing gear was intentionally deployed on or used to encircle dolphins during the trip on which the tuna were caught; (B) No dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and (C) Any relevant requirements of paragraph (a)(4) of this section were complied with during the trip on which the tuna were caught. (4) Other fisheries—segregation. In a fishery other than one described in paragraph (a)(1) or (2) of this section on a fishing trip that began on or after July 13, 2013 unless the tuna caught in sets or gear deployments designated as dolphin-safe was stored physically separate from tuna caught in a nondolphin-safe set or other gear deployment by the use of netting, other material, or separate storage areas from the time of capture through unloading. If tuna caught in a set or other gear deployment where a dolphin was killed E:\FR\FM\23MRR1.SGM 23MRR1 Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Rules and Regulations or seriously injured is not stored physically separate from dolphin-safe tuna as stated in § 216.93(c)(2)(i) or (c)(3)(i), as applicable, all tuna inside the storage well or other storage location shall be considered non-dolphin-safe. (5) [Reserved] (b) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in this section in a campaign or effort to mislead or deceive consumers about the level of protection afforded dolphins under the IDCP. (c) A tuna product that is labeled with the official mark, described in § 216.95, may not be labeled with any other label or mark that refers to dolphins, porpoises, or marine mammals. ■ 2. Effective May 21, 2016, § 216.91 is further amended by: ■ a. Revising the introductory text of paragraph (a)(3)(ii); and ■ b. Adding paragraphs (a)(3)(iii) and (a)(5). The additions read as follows: § 216.91 Dolphin-safe labeling standards. jstallworth on DSK7TPTVN1PROD with RULES (a) * * * (3) * * * (ii) For tuna caught by a vessel on a fishing trip that began on or after July 13, 2013, and before May 21, 2016, a written statement executed by the Captain of the vessel certifying: * * * * * (iii) For tuna caught by a vessel on a fishing trip that began on or after May 21, 2016, a written statement executed by the Captain of the vessel certifying that: VerDate Sep<11>2014 15:23 Mar 22, 2016 Jkt 238001 (A) No purse seine net or other fishing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and (B) The Captain of the vessel has completed the NMFS Tuna Tracking and Verification Program dolphin-safe captain’s training course. The NMFS Tuna Tracking and Verification Program dolphin-safe captain’s training course is available on the Web site of the NMFS Tuna Tracking and Verification Program at https://www.nmfs.noaa.gov/pr/ dolphinsafe. * * * * * (5) Other fisheries—chain of custody recordkeeping. By a vessel in a fishery other than one described in paragraph (a)(1) or (2) of this section unless: (i) For tuna designated dolphin-safe that was harvested on a fishing trip that began on or after May 21, 2016, in addition to any other applicable requirements: (A) The importer of record or U.S. processor of tuna or tuna products, as applicable, maintains information on the complete chain of custody, including storage facilities, transshippers, processors, re-processors, and wholesalers/distributors to enable dolphin-safe tuna to be distinguished from non-dolphin-safe tuna from the time it is caught to the time it is ready for retail sale; (B) The importer of record or the U.S. processor, as appropriate, ensures that information is readily available to PO 00000 Frm 00025 Fmt 4700 Sfmt 9990 15449 NMFS upon request to allow it to trace any non-dolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip and to show that such non-dolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading. (ii) For tuna designated dolphin-safe that was harvested in a fishery about which the Assistant Administrator made a determination under paragraph (a)(3)(v) of this section, and harvested on a fishing trip that begins on or after 60 days after the date of the Federal Register notice of that determination, the tuna or tuna products are accompanied by valid documentation signed by a representative of the vessel flag nation or the processing nation (if processed in another nation) certifying that: (A) The catch documentation is correct; (B) The tuna or tuna products meet the dolphin-safe labeling standards under this section; and (C) The chain of custody information is correct. (iii) The information referred to in paragraphs (a)(5)(i) and (ii) of this section is maintained at the place of business of the importer of record or the U.S. processor, as applicable, for a period of 2 years from the date of the import or receipt, and be made available to NMFS for inspection upon request. * * * * * [FR Doc. 2016–06450 Filed 3–22–16; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\23MRR1.SGM 23MRR1

Agencies

[Federal Register Volume 81, Number 56 (Wednesday, March 23, 2016)]
[Rules and Regulations]
[Pages 15444-15449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06450]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No.: 160204080-6080-01]
RIN 0648-BF73


Enhanced Document Requirements and Captain Training Requirements 
To Support Use of the Dolphin Safe Label on Tuna Products

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues this interim final rule to revise regulations 
implementing the Dolphin Protection Consumer Information Act (DPCIA) to 
enhance the requirements for documentation that demonstrates the 
accuracy of dolphin-safe labels on tuna products. This interim final 
rule: Modifies the regulations (referred to hereafter as the 
``determination provisions'') under which the NMFS Assistant 
Administrator (Assistant Administrator) may require proof of an 
observer certification if the Assistant Administrator determines that a 
fishery has a regular and significant association between dolphins and 
tuna and/or has a regular and significant mortality or serious injury 
of dolphins, to apply equally to purse seine and other gear-type tuna 
fisheries; provides that a government certificate validating the catch 
documentation, segregation, and chain of custody may be required for 
tuna produced from a fishery about which the Assistant Administrator 
has made a determination under the determination provisions; 
restructures NOAA regulations such that they now provide for one 
straightforward certification regarding intentional deployment and 
mortality/serious injury for all fisheries that produce tuna that is 
potentially eligible for the dolphin-safe label; modifies the Fisheries 
Certificate of Origin (FCO) to require captains to complete a training 
for certifications that must accompany the FCO; enhances chain of 
custody tracking requirements for tuna and tuna

[[Page 15445]]

product; and makes several non-substantive modifications to the 
regulations. This interim final rule brings the United States into 
compliance with its obligations as a Member of the World Trade 
Organization (WTO).

DATES: This interim final rule is effective March 22, 2016, except for 
amendatory instruction 2, which is effective May 21, 2016. Comments 
must be submitted in writing by April 22, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0012, by either of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0012,
    2. Click the ``Comment Now!'' icon, complete the required fields, 
and
    3. Enter or attach your comments.

-- OR --

     Mail: Submit written comments to William W. Stelle, Jr., 
NMFS West Coast Region (WCR), 7600 Sand Point Way NE., Bldg 1, Seattle, 
WA 98115-0070.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
might not be considered by NMFS. All comments received are a part of 
the public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name and address), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: William Jacobson, NMFS WCR, 562-980-
4035.

SUPPLEMENTARY INFORMATION:

Background

    The DPCIA (16 U.S.C. 1385), enacted in 1990, established a dolphin-
safe labeling standard for tuna products. The law addressed a 
Congressional finding that ``consumers would like to know if the tuna 
they purchase is falsely labeled as to the effect of the harvesting of 
the tuna on dolphins.'' Specifically, the DPCIA makes it a violation of 
U.S. law regarding deceptive practices to use any label with the term 
dolphin-safe or any other term or symbol that falsely claims or 
suggests that the tuna contained in the product were harvested using a 
method of fishing that is not harmful to dolphins, except under the 
conditions laid out in the DPCIA and associated regulations. The 
authority of the Secretary of Commerce under the DPCIA has been 
delegated to the Assistant Administrator.
    In 2008, Mexico initiated WTO dispute settlement proceedings to 
challenge the U.S. dolphin-safe labeling scheme as being inconsistent 
with certain provisions of the WTO's General Agreement on Tariffs and 
Trade 1994 (GATT 1994) and Agreement on Technical Barriers to Trade 
(TBT Agreement). Mexico challenged three components of the U.S. 
measure: The DPCIA, Department of Commerce DPCIA regulations (50 CFR 
216.91 and 216.92), and a Federal court decision (Earth Island 
Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007)). These components 
of the measure establish conditions under which tuna products may 
voluntarily be labeled dolphin-safe. Among other requirements, these 
conditions do not allow tuna products to be labeled dolphin-safe if 
they contain tuna that was caught by intentionally encircling and 
deploying purse seine nets on dolphins. On June 13, 2012, the WTO 
Dispute Settlement Body adopted WTO Panel and Appellate Body reports 
ruling that the U.S. measure accords less favorable treatment to 
Mexican tuna products and therefore is inconsistent with Article 2.1 of 
the TBT Agreement.
    In response to this finding, on July 9, 2013, NMFS published a 
final rule under the DPCIA titled ``Enhanced Document Requirements to 
Support Use of the Dolphin Safe Label on Tuna Products'' (78 FR 40997) 
that amended regulations at 50 CFR part 216, subpart H. The 2013 final 
rule modified the labeling conditions to more fully address the risks 
to dolphins posed by tuna fishing outside the eastern tropical Pacific 
Ocean (ETP) large purse seine fishery (i.e., where the vessel has a 
carrying capacity of more than 400 short tons (362.8 mt)).\1\ 
Specifically, the 2013 final rule amended the eligibility condition 
that tuna product may not be labeled dolphin-safe if a dolphin was 
killed or seriously injured in the set or other gear deployment in 
which the tuna was caught so that the condition now applied to all tuna 
caught in any fishery in the world. The 2013 final rule further 
required that a captain's certificate stating that this condition was 
met was required for tuna caught by any eligible method in any fishery 
to be labeled dolphin-safe. Additionally, all dolphin-safe tuna must be 
kept physically separate, from the time of catch through the time of 
unloading, from non-dolphin-safe tuna.
---------------------------------------------------------------------------

    \1\ The ETP is defined as the waters of the Pacific Ocean 
bounded by 40[deg] N. latitude, 40[deg] S. latitude, 160[deg] W. 
longitude and the coastlines of North, Central and South America (50 
CFR 216.3).
---------------------------------------------------------------------------

    The WTO established a compliance panel on January 27, 2014, to 
determine whether the 2013 final rule brought the dolphin-safe labeling 
requirements into compliance with the United States' WTO obligations. 
The compliance panel circulated its final report on April 14, 2015. In 
that report, the compliance panel found that the amended dolphin-safe 
labeling measure discriminates against Mexican tuna product in breach 
of Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the 
GATT 1994. The compliance panel considered three regulatory 
distinctions of the amended measure: (1) The ineligibility for the 
dolphin-safe label of tuna caught by setting on dolphins; (2) the 
certification requirements; and, (3) the tracking and verification 
requirements.
    First, the compliance panel found that the provisions in U.S. law 
making any dolphin-safe label ineligible to be used for tuna product 
containing tuna caught by setting on dolphins and the potential 
eligibility of tuna caught by other methods was consistent with Article 
2.1 of the TBT Agreement and, while inconsistent with Articles I:1 and 
III:4 of the GATT 1994, was justified under Article XX of the GATT 
1994. Second, the compliance panel found that the certification 
requirements discriminated against Mexican tuna product because it is 
more burdensome for Mexican producers to comply with the certification 
requirements of the Agreement on the International Dolphin Conservation 
Program (AIDCP) than the certification requirements applicable outside 
the ETP large purse seine fishery. In the compliance panel's view, this 
difference in burden was not justified given the lack of training for 
captains making such certifications outside the ETP large purse seine 
fishery as well as the perceived ``gaps'' in coverage of the 
determination provisions. Third, the compliance panel found that the 
tracking and verification requirements discriminated against Mexican 
tuna produced from large purse seine vessels in the ETP because it was 
more burdensome for Mexican producers to comply with the AIDCP tracking 
and verification requirements than the tracking and verification 
requirements applicable for fisheries other than the ETP large purse 
seine fishery and that this burden could not be justified.

[[Page 15446]]

    The United States and Mexico both appealed aspects of the 
compliance panel's report, and the WTO Appellate Body issued its report 
on November 20, 2015. The Appellate Body found that the United States 
had not brought its measure into compliance with its WTO obligations. 
Specifically, the Appellate Body found the amended dolphin-safe 
labeling measure to be inconsistent with the non-discrimination 
obligations contained in the TBT Agreement and the GATT 1994 because 
the measure had a detrimental impact on the conditions of competition 
for Mexican tuna product in the U.S. market and that this detrimental 
impact reflected prohibited discrimination in light of the perceived 
``gaps'' in the design of the determination provisions. In particular, 
the Appellate Body criticized the determination provisions because, as 
designed, the determination provisions allowed for the possibility that 
no observer requirement would be imposed where a ``regular and 
significant'' dolphin mortality or serious injury is occurring in a 
purse seine fishery without a regular and significant tuna-dolphin 
association, or where a ``regular and significant'' tuna-dolphin 
association is occurring in a non-purse seine fishery without ``regular 
and significant'' dolphin mortality or serious injury.
    On February 5, 2016, NMFS published a proposed rule (81 FR 6210) 
entitled ``Magnuson-Stevens Fishery Conservation and Management Act; 
Seafood Import Monitoring Program,'' also known as the Traceability 
Proposed Rule. The Traceability Proposed Rule proposes establishing 
filing and recordkeeping procedures for certain fish and fish products 
to combat illegal, unreported, and unregulated fishing and seafood 
fraud in the U.S. market. NMFS has incorporated into this interim final 
rule the approach taken in the Traceability Proposed Rule with regard 
to chain of custody documentation requirements.

The Action

    This interim final rule makes six amendments to the regulations, as 
explained below, none of which affect the labeling of tuna originating 
from the ETP large purse seine fishery.
    First, effective upon publication in the Federal Register, this 
interim final rule revises the determination provisions that previously 
had been codified at 50 CFR 216.91(a)(2)(i) and (a)(4)(iii), and which 
are now codified at 50 CFR 216.91(a)(3)(v). Under the amended 
determination provisions, the Assistant Administrator now has the 
authority to require, as a condition for labeling tuna product dolphin-
safe, that an on-board observer (in addition to the captain) certify 
the tuna was caught in a manner that meets the dolphin-safe labeling 
requirements where the Assistant Administrator has determined that a 
fishery has a regular and significant association between tuna and 
dolphins (similar to the association between dolphins and tuna in the 
ETP) and/or has a regular and significant mortality or serious injury 
of dolphins. This expanded authority applies equally to purse seine and 
other gear-type tuna fisheries other than the ETP large purse seine 
fishery (where an observer certificate is already required) and large-
scale driftnet fisheries (which produce tuna that is ineligible for the 
label). See 50 CFR 216.91(a)(1) and (a)(2). In the case of either 
``regular and significant'' determination, only observers participating 
in a national or international observer program acceptable to the 
Assistant Administrator would be able to provide the necessary observer 
certifications.
    NMFS notes that while the revised regulations provide for one 
standard for making determinations, NMFS will interpret in 50 CFR 
216.91(a)(3)(v) consistent with both the DPCIA and U.S. WTO obligations 
on a fishery-by-fishery basis. In particular, NMFS will take into 
account that the DPCIA instructs NMFS to impose an observer requirement 
where 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)'' for purse seine 
fisheries outside the ETP, while the DPCIA affords NMFS more discretion 
to impose an observer requirement either when evaluating other types of 
fisheries or when evaluating all 50 CFR 216.91(a)(3) fisheries under 
the mortality or serious injury prong of 50 CFR 216.91(a)(3)(v). See 16 
U.S.C. 1385(d)(1)(B)(i) and (D). At the same time, NMFS will also take 
U.S. WTO obligations into account in any exercise of such discretion.
    Second, effective upon publication in the Federal Register, this 
interim final rule revises the determination provisions under which the 
Assistant Administrator is authorized to impose an observer 
certification requirement if a tuna fishery is determined to have 
either a ``regular and significant'' association of dolphins or a 
``regular and significant'' mortality or serious injury of dolphins. If 
the Assistant Administrator makes such a determination, NMFS will now 
also require a government certificate validating: (1) The catch 
documentation; (2) whether the tuna or tuna products meet the dolphin-
safe labeling standards under 50 CFR 216.91; and (3) the chain of 
custody information reported to the U.S. Government or maintained by 
the importer of record or the U.S. processor, as applicable.
    Third, this interim final rule combines the previously separate 
categories of ``non-ETP purse seine vessel'' (50 CFR 216.91(a)(2)) and 
``Other fisheries'' (50 CFR 216.91(a)(4)) into one category under the 
title ``Other fisheries'' (revised 50 CFR 216.91(a)(3)). Under the 
revised 50 CFR 216.91(a)(3)(iii), captains of all vessels in fisheries 
not covered in paragraphs (a)(1) (i.e., the ETP large purse seine 
fishery) and (a)(2) (i.e., a large-scale driftnet fishery) must certify 
that, no purse seine net or other fishing gear was intentionally 
deployed on or used to encircle dolphins during the fishing trip in 
which the tuna were caught, and that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught. This revision makes clear that tuna does not meet the 
dolphin-safe standard if it is harvested by vessels that intentionally 
deploy fishing gear (regardless of the type) on dolphins. Moreover, 
this revision also makes clear that captains of all vessels not covered 
by 50 CFR 216.91(a)(1) (where the same certification is already 
required) and (a)(2) (which produces tuna that is ineligible for the 
label) must make such a certification. To be clear, a non-purse seine 
vessel intentionally deploys its fishing gear on a dolphin(s) where a 
vessel intentionally targets a dolphin(s) with the fishing gear. 
However, as is the case with intentional encirclement, the deployment 
must be intentional, and where a dolphin(s) is seen only after the 
fishing gear was deployed, then the vessel did not intentionally deploy 
the fishing gear on a dolphin(s). This revised certification will apply 
to tuna caught by a vessel on a fishing trip that begins on or after 
May 21, 2016. Until that date, the certifications provided by 
paragraphs (a)(3)(i) or (ii), as applicable, will continue to apply.
    Fourth, this interim final rule modifies the FCO and the 
requirements for the associated captain's statement by requiring 
captains of vessels operating in ``other fisheries'' to certify 
completion of a NMFS Tuna Tracking and Verification Program (TTVP) 
dolphin-safe training course (training course). The training course 
will include information on: (1) Identifying dolphins of the taxonomic 
family Delphinidae; (2) identifying intentional gear deployment on or 
encirclement of dolphins; (3) identifying dolphin

[[Page 15447]]

mortality and serious injury; and (4) physically separating dolphin-
safe tuna from non-dolphin-safe tuna from the time of capture through 
unloading. The training course is available on the NMFS TTVP Internet 
home page at https://www.nmfs.noaa.gov/pr/dolphinsafe. Captain 
certification of completion of the training course applies to all tuna 
product labeled dolphin-safe if the product contains tuna harvested on 
a fishing trip that begins on or after May 21, 2016. Existing captain's 
statement templates found at the NMFS TTVP Internet home page have been 
modified and may be used to certify completion of the NMFS TTVP 
training course. The 2013 final rule required all completed FCOs to 
have associated captain's statement certifications for all tuna 
harvested other than the ETP large purse seine fishery.
    As a starting point, NMFS will translate the TTVP training course 
into a sufficient number of languages to ensure that the vast majority 
of languages spoken by captains producing tuna for the U.S. tuna 
product market are covered by the translation. Internet links to the 
translated courses will be posted on the TTVP Internet home page at 
https://www.nmfs.noaa.gov/pr/dolphinsafe as they become available. In 
addition to posting on the Internet translated versions of the training 
course, the United States Government will send a d[eacute]marche to 
embassies of all countries that supply tuna product to the United 
States, explaining the new requirements and enclosing a copy of the 
training course. The d[eacute]marche will also include the TTVP 
Internet home page address, as well as a copy of this interim final 
rule. Providing this information to embassies is intended to aid in 
disseminating the training course to tuna captains as well as in the 
dissemination of the new U.S. dolphin-safe tuna labeling requirements 
to processors.
    Fifth, this interim final rule requires U.S. processors and 
importers of record to collect and retain for 2 years, information on 
each point in the chain of custody regarding the shipment of the tuna 
or tuna product to the point of entry into U.S. commerce as a 
recordkeeping requirement on the part of that U.S. processor or 
importer of record. The information must be maintained at the place of 
business, or be accessible from that place of business through, for 
example, an Internet connection to an off site server where the 
information is held. This is to ensure that information is readily 
available to NMFS to allow it to trace the tuna or tuna product back to 
the point of harvest. As is the case for the Traceability Proposed Rule 
(discussed above), such information would include records regarding 
each custodian of the tuna or tuna product, including, as applicable, 
transshippers, processors, storage facilities, and wholesalers/
distributors. The retained information must be provided to NMFS upon 
request and must be sufficient for NMFS to conduct a trace back to 
verify that the tuna product certified as dolphin-safe to NMFS, in 
fact, meets the dolphin-safe labeling requirements for such 
certification. NMFS expects that typical supply chain records that are 
kept in the normal course of business, including declarations by 
harvesting and carrier vessels, bills of lading and forms voluntarily 
used or required under foreign government or international monitoring 
programs, which include such information as the identity of the 
custodian, the type of processing, and the weight of the product, would 
provide sufficient information for NMFS to conduct a trace back. In 
addition, the information maintained must be sufficient in order to 
trace any non-dolphin-safe tuna loaded onto the vessel back to one or 
more storage wells or other storage locations for a particular fishing 
trip to prove that such non-dolphin-safe tuna was kept physically 
separate from dolphin-safe tuna through unloading.
    These chain of custody requirements augment existing requirements 
that dolphin-safe tuna shall, from the time of capture, during 
unloading, storage, transfer, and processing, be kept separate from 
non-dolphin safe tuna set out in 50 CFR 216.91(a)(4) and 50 CFR 
216.93(c)(2) and (3). These chain of custody requirements apply to all 
tuna product labeled dolphin-safe if the product contains tuna 
harvested on a fishing trip that begins on or after May 21, 2016.
    Sixth, this interim final rule makes several non-substantive 
modifications to 50 CFR 216.91 including redesignating regulatory text 
paragraphs; updating Internet Web addresses to the NMFS TTVP Internet 
home page located at https://www.nmfs.noaa.gov/pr/dolphinsafe; and 
changing the word ``distributor'' to ``wholesaler/distributor'' for 
consistency in the regulatory text. NMFS is publishing 50 CFR 216.91 in 
its entirety (including provisions that were not changed) for the 
convenience of readers and to improve clarity.
    NMFS has broad authority to issue regulations to implement the 
DPCIA, including specifically the authority to establish a domestic 
tracking and verification program to track tuna labeled dolphin-safe, 
and to adjust such regulations as appropriate to implement an 
international tracking and verification program (16 U.S.C. 1385(f)). 
Among other things, this rule is expected to better ensure that 
consumers are more easily able to determine the veracity of dolphin-
safe labels on tuna products they purchase, in accordance with the 
findings of the DPCIA (16 U.S.C. 1385(b)).

Classification

    The NMFS Assistant Administrator has determined that this interim 
final rule is consistent with the DPCIA and other applicable laws.

Administrative Procedure Act

    NOAA finds good cause to issue this interim final rule without 
advance notice in a proposed rule or the opportunity for public 
comment, and to make the rule effective immediately without providing a 
30-day delay, because the limited time available to the United States 
to come into compliance with its WTO obligations makes advance notice 
and comment or delaying the effectiveness contrary to the public 
interest. Specifically, any delay in the effective date of the rule 
would delay the federal government's ability to have the United States 
come into compliance with its WTO obligations. Furthermore, any delay 
may adversely affect U.S. trade as well as the federal government's 
ability to respond to Mexico's request for authorization to suspend the 
application to the United States of WTO concessions or other 
obligations, which could result in Mexico taking action that adversely 
affects U.S. interests (e.g., increasing tariffs on U.S. goods). 
However, NMFS will consider public comments on this interim final rule 
and issue a final rule.

Executive Order 12866

    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.

Paperwork Reduction Act (PRA)

    This interim final rule contains two new collection-of-information 
requirements subject to PRA under control numbers 0648-0335 and 0648-
0387. These requirements have been approved by the Office of Management 
and Budget (OMB). There is no additional public reporting burden for 
OMB control number 0648-0335, titled ``Fisheries Certificate of 
Origin,'' as collection of an FCO and/or a captain's certification are 
already required to be submitted to NMFS. The additional public 
reporting burden under OMB control number 0648-0387, titled

[[Page 15448]]

``International Dolphin Conservation Program,'' is estimated to average 
30 minutes per response for chain of custody recordkeeping, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection-of-information. NMFS will ensure compliance with PRA 
requirements before requiring new observer certifications that might be 
triggered by a determination of the Assistant Administrator under 
sections 216.91(a)(3)(v) and (a)(5)(ii) of this interim final rule.
    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.

List of Subjects in 50 CFR Part 216

    Commercial fisheries, Food labeling, Imports, Marine mammals, 
Reporting and recordkeeping requirements, Seafood.

    Dated: March 17, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:

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

Subpart H--Dolphin Safe Tuna Labeling

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1. The authority citation for 50 CFR part 216, subpart H, continues to 
read as follows:

    Authority:  16 U.S.C. 1385.


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2. Section 216.91 is revised to read as follows:


Sec.  216.91  Dolphin-safe labeling standards.

    (a) It is a violation of Section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) for any producer, importer, exporter, wholesaler/
distributor, or seller of any tuna products that are exported from or 
offered for sale in the United States to include on the label of those 
products the term ``dolphin-safe'' or any other term or symbol that 
claims or suggests that the tuna contained in the products were 
harvested using a method of fishing that is not harmful to dolphins if 
the products contain tuna harvested:
    (1) ETP large purse seine vessel. In the ETP by a purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) The documentation requirements for dolphin-safe tuna under 
Sec. Sec.  216.92 and 216.93 are met;
    (ii) No dolphins were killed or seriously injured during the sets 
in which the tuna were caught; and
    (iii) None of the tuna were caught on a trip using a purse seine 
net intentionally deployed on or to encircle dolphins, provided that 
this paragraph (a)(1)(iii) will not apply if the Assistant 
Administrator publishes a notification in the Federal Register 
announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional 
deployment of purse seine nets on or encirclement of dolphins is not 
having a significant adverse impact on any depleted stock.
    (2) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (3) Other fisheries. By a vessel in a fishery other than one 
described in paragraph (a)(1) or (2) of this section unless such 
product is accompanied as described in Sec.  216.93(d), (e), or (f), as 
appropriate, by:
    (i) For tuna caught in a purse seine fishery outside the ETP by a 
vessel on a fishing trip that began before July 13, 2013, 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.
    (ii) For tuna caught by a vessel on a fishing trip that began on or 
after July 13, 2013, a written statement executed by the Captain of the 
vessel certifying:
    (A) For a purse seine vessel outside the ETP, that no purse seine 
net was intentionally deployed on or used to encircle dolphins during 
the fishing trip in which the tuna were caught, and that no dolphins 
were killed or seriously injured in the sets in which the tuna were 
caught;
    (B) For a vessel other than one described in paragraph 
(a)(3)(ii)(A) of this section, that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught.
    (iii) [Reserved]
    (iv) For tuna caught in a fishery where the Assistant Administrator 
has determined that observers participating in a national or 
international observer program are qualified and authorized to issue 
observer statements for purposes of the dolphin-safe labeling program, 
and where such an observer is on board the vessel, a written statement 
executed by the observer, or by an authorized representative of a 
nation participating in the observer program based on information from 
the observer. Any determination by the Assistant Administrator shall be 
announced in a notice published in the Federal Register. Determinations 
under this paragraph (a)(3)(iv) will also be publicized on the Web site 
of the NMFS Tuna Tracking and Verification Program (https://www.nnmfs.noaa.gov/pr/dolphinsafe). The written statement shall 
certify:
    (A) That no dolphins were killed or seriously injured in the sets 
or other gear deployments in which the tuna were caught; and,
    (B) In purse seine fisheries, that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the trip 
on which the tuna were caught.
    (v) For tuna caught in a fishery in which the Assistant 
Administrator has determined that either a regular and significant 
association between dolphins and tuna (similar to the association 
between dolphins and tuna in the ETP) or a regular and significant 
mortality or serious injury of dolphins is occurring, 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, unless the Assistant Administrator determines 
an observer statement is unnecessary. Determinations under this 
paragraph (a)(3)(v) will also be publicized on the Web site of the NMFS 
Tuna Tracking and Verification Program (https://www.nmfs.noaa.gov/pr/dolphinsafe). The written statement shall certify that:
    (A) No fishing gear was intentionally deployed on or used to 
encircle dolphins during the trip on which the tuna were caught;
    (B) No dolphins were killed or seriously injured in the sets or 
other gear deployments in which the tuna were caught; and
    (C) Any relevant requirements of paragraph (a)(4) of this section 
were complied with during the trip on which the tuna were caught.
    (4) Other fisheries--segregation. In a fishery other than one 
described in paragraph (a)(1) or (2) of this section on a fishing trip 
that began on or after July 13, 2013 unless the tuna caught in sets or 
gear deployments designated as dolphin-safe was stored physically 
separate from tuna caught in a non-dolphin-safe set or other gear 
deployment by the use of netting, other material, or separate storage 
areas from the time of capture through unloading. If tuna caught in a 
set or other gear deployment where a dolphin was killed

[[Page 15449]]

or seriously injured is not stored physically separate from dolphin-
safe tuna as stated in Sec.  216.93(c)(2)(i) or (c)(3)(i), as 
applicable, all tuna inside the storage well or other storage location 
shall be considered non-dolphin-safe.
    (5) [Reserved]
    (b) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to 
in this section in a campaign or effort to mislead or deceive consumers 
about the level of protection afforded dolphins under the IDCP.
    (c) A tuna product that is labeled with the official mark, 
described in Sec.  216.95, may not be labeled with any other label or 
mark that refers to dolphins, porpoises, or marine mammals.

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2. Effective May 21, 2016, Sec.  216.91 is further amended by:
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a. Revising the introductory text of paragraph (a)(3)(ii); and
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b. Adding paragraphs (a)(3)(iii) and (a)(5).
    The additions read as follows:


Sec.  216.91  Dolphin-safe labeling standards.

    (a) * * *
    (3) * * *
    (ii) For tuna caught by a vessel on a fishing trip that began on or 
after July 13, 2013, and before May 21, 2016, a written statement 
executed by the Captain of the vessel certifying:
* * * * *
    (iii) For tuna caught by a vessel on a fishing trip that began on 
or after May 21, 2016, a written statement executed by the Captain of 
the vessel certifying that:
    (A) No purse seine net or other fishing gear was intentionally 
deployed on or used to encircle dolphins during the fishing trip in 
which the tuna were caught, and that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught; and
    (B) The Captain of the vessel has completed the NMFS Tuna Tracking 
and Verification Program dolphin-safe captain's training course. The 
NMFS Tuna Tracking and Verification Program dolphin-safe captain's 
training course is available on the Web site of the NMFS Tuna Tracking 
and Verification Program at https://www.nmfs.noaa.gov/pr/dolphinsafe.
* * * * *
    (5) Other fisheries--chain of custody recordkeeping. By a vessel in 
a fishery other than one described in paragraph (a)(1) or (2) of this 
section unless:
    (i) For tuna designated dolphin-safe that was harvested on a 
fishing trip that began on or after May 21, 2016, in addition to any 
other applicable requirements:
    (A) The importer of record or U.S. processor of tuna or tuna 
products, as applicable, maintains information on the complete chain of 
custody, including storage facilities, transshippers, processors, re-
processors, and wholesalers/distributors to enable dolphin-safe tuna to 
be distinguished from non-dolphin-safe tuna from the time it is caught 
to the time it is ready for retail sale;
    (B) The importer of record or the U.S. processor, as appropriate, 
ensures that information is readily available to NMFS upon request to 
allow it to trace any non-dolphin-safe tuna loaded onto the vessel back 
to one or more storage wells or other storage locations for a 
particular fishing trip and to show that such non-dolphin-safe tuna was 
kept physically separate from dolphin-safe tuna through unloading.
    (ii) For tuna designated dolphin-safe that was harvested in a 
fishery about which the Assistant Administrator made a determination 
under paragraph (a)(3)(v) of this section, and harvested on a fishing 
trip that begins on or after 60 days after the date of the Federal 
Register notice of that determination, the tuna or tuna products are 
accompanied by valid documentation signed by a representative of the 
vessel flag nation or the processing nation (if processed in another 
nation) certifying that:
    (A) The catch documentation is correct;
    (B) The tuna or tuna products meet the dolphin-safe labeling 
standards under this section; and
    (C) The chain of custody information is correct.
    (iii) The information referred to in paragraphs (a)(5)(i) and (ii) 
of this section is maintained at the place of business of the importer 
of record or the U.S. processor, as applicable, for a period of 2 years 
from the date of the import or receipt, and be made available to NMFS 
for inspection upon request.
* * * * *
[FR Doc. 2016-06450 Filed 3-22-16; 8:45 am]
 BILLING CODE 3510-22-P

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