NMFS proposes regulations to implement resolutions adopted by the Inter-American Tropical Tuna Commission (IATTC) and by the Parties to the Agreement on the International Dolphin Conservation Program (IDCP). These regulations would prohibit activities that undermine the effective implementation and enforcement of the Marine Mammal Protection Act (MMPA), Dolphin Protection Consumer Information Act (DPCIA), and International Dolphin Conservation Program Act (IDCPA). This proposed rule would enlarge the class of vessels required to pay observer fees. The procedure to categorize tuna purse seine vessels as ``active'' in the Eastern Tropical Pacific Ocean (ETP) and the deadline for submitting vessel permit applications would change. Procedures are proposed for managing the capacity of the U.S. tuna purse seine fleet operating in the ETP through maintenance of a Vessel Register, the definitive list of vessels authorized to purse seine for tuna in the ETP. This proposed rule is intended to contribute to the long-term conservation of dolphin and tuna stocks and to ensure that the domestic tuna tracking and verification program remains consistent with international standards.

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 040920271-4271-01; I.D. 102004A]

RIN 0648-AS05

Taking of Marine Mammals Incidental to Commercial Fishing Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific Ocean (ETP)

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

ACTION:  Proposed rule; collection-of-information requirements; request

for comments.

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SUMMARY:  NMFS proposes regulations to implement resolutions adopted by

the Inter-American Tropical Tuna Commission (IATTC) and by the Parties

to the Agreement on the International Dolphin Conservation Program

(IDCP). These regulations would prohibit activities that undermine the

effective implementation and enforcement of the Marine Mammal

Protection Act (MMPA), Dolphin Protection Consumer Information Act

(DPCIA), and International Dolphin Conservation Program Act (IDCPA).

This proposed rule would enlarge the class of vessels required to pay

observer fees. The procedure to categorize tuna purse seine vessels as

``active'' in the Eastern Tropical Pacific Ocean (ETP) and the deadline

for submitting vessel permit applications would change. Procedures are

proposed for managing the capacity of the U.S. tuna purse seine fleet

operating in the ETP through maintenance of a Vessel Register, the

definitive list of vessels authorized to purse seine for tuna in the

ETP. This proposed rule is intended to contribute to the long-term

conservation of dolphin and tuna stocks and to ensure that the domestic

tuna tracking and verification program remains consistent with

international standards.

DATES: Comments on the proposed regulations must be received by

November 29, 2004.

ADDRESSES: Send comments on the rule and the Initial Regulatory

Flexibility Analysis to Jeremy Rusin, NMFS,

[[Page 63123]]

Southwest Region, Protected Resources Division, 501 W. Ocean Blvd.,

Suite 4200, Long Beach, CA 90802-4213. This address may also be used to

submit observer fee payments, permit applications and other

documentation to the Administrator, Southwest Region, with the

exception of Fisheries Certificates of Origin (see below). Comments may

be sent via facsimile (fax) to (562) 980-4027 or via E-mail. Include in

the subject line of the E-mail the following document identifier: RIN

0648-AS05. The mailbox address for providing E-mail comments is

0648-AS05@noaa.gov. Comments may also be submitted electronically through

the Federal e-Rulemaking portal: http//http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

    Fisheries Certificates of Origin submitted via mail should be sent

to Tuna Tracking and Verification Program, Southwest Region, P.O. Box

32469, Long Beach, CA 90832-2469.

FOR FURTHER INFORMATION CONTACT:  Jeremy Rusin, NMFS, Southwest Region,

Protected Resources Division, at (562) 980-4020.

SUPPLEMENTARY INFORMATION:

Background

    The United States is a member of the IATTC, which was established

in 1949 under the Convention for the Establishment of an Inter-American

Tropical Tuna Commission (Convention). The IATTC provides an

international forum to ensure the effective international conservation

and management of highly migratory species of fish in the Convention

Area. The Convention Area is defined to include waters of the ETP

bounded by the coast of the Americas, the 40[deg] N. and 40[deg] S.

parallels, and the 150[deg] W. meridian. The IATTC has maintained a

scientific research and fishery monitoring program for many years and

annually assesses the fisheries and the status of tuna stocks to

determine appropriate harvest limits or other measures to prevent

overexploitation of the stocks and promote viable fisheries. More

recently, the IATTC has moved into other fishery management issues,

such as managing the cumulative capacity of vessels fishing in the

Convention Area, bycatch of non-target and protected species, and

imposing time-area closures to conserve tuna stocks.

    In support of fleet capacity control, the United States agreed to

an IATTC resolution that limited total ETP purse seine fleet capacity.

Currently, the United States is committed to limiting the capacity of

its domestic tuna purse seine fleet operating in the ETP to 8,969

metric tons (mt) carrying capacity. The U.S. limit was originally based

on the cumulative capacity of U.S. vessels actively fishing in the ETP

in the years leading up to 1999. In addition, U.S. purse seine vessels

based in the western Pacific Ocean (WPO) were allowed to make 32 trips

into the ETP without counting against the 8,969 mt limit. Recent

resolutions adopted under the IATTC have addressed limits on fleet

capacity. The United States and other Parties to the IATTC Convention

and Agreement on the IDCP are responsible for domestically implementing

resolutions adopted each year. Under the U.S. Tuna Conventions Act (16

U.S.C. 951 et seq.), the Secretary of Commerce is authorized to

promulgate regulations implementing the recommendations of the IATTC.

Implementation of recent capacity resolutions is one objective of this

proposed rule.

     The IDCPA was signed into law August 15, 1997, and became

effective March 3, 1999. The IDCPA amends the MMPA, DPCIA (16 U.S.C.

1385), and Tuna Conventions Act. The IDCPA, together with previous

declarations, became the blueprint for the Agreement on the IDCP. In

May 1998, eight nations, including the United States, signed a binding,

international agreement to implement the IDCP. The Agreement on the

IDCP became effective on February 15, 1999, after four nations (United

States, Panama, Ecuador, and Mexico) deposited their instruments of

ratification, acceptance, or adherence with the depository for the

Agreement. The IDCPA (16 U.S.C. 1413) mandates the Secretary of

Commerce to issue and revise regulations, as appropriate, to implement

the IDCP.

    This proposed rule is intended to revise current regulations to

ensure consistency between operation of the U.S. tuna purse seine fleet

in the ETP and resolutions adopted by the IATTC and by the Parties to

the Agreement on the IDCP. This proposed rule also introduces

procedural modifications needed in the domestic tuna tracking and

verification program, especially regarding the maintenance and

submission of tracking and verification records. In addition, these

regulations would prohibit labeling tuna with a mark that refers to

dolphins or other marine mammals if the label does not comply with the

requirements of 16 U.S.C. 1385(d) and prohibit interference with

enforcement and inspection activities that undermine the effectiveness

of the MMPA.

Definitions

    The definition for ``Fisheries Certificate of Origin'' would be

revised in Sec.  216.3 to include the acronym ``FCO'', as well as NOAA

Form 370. In Sec.  216.3, a definition for ``South Pacific Tuna

Treaty'' would be added to specify that the term refers to the Treaty

on Fisheries Between the Governments of Certain Pacific Island States

and the Government of the United States of America (South Pacific Tuna

Treaty).

    In Sec.  300.21, a definition would be added for ``Vessel

Register'' in order to formally name the list of vessels authorized to

purse seine for tuna in the ETP, which is comprised of both U.S. and

international vessels. A second definition would be added in Section

300.21 for ``South Pacific Tuna Treaty'' to specify that the term

refers to the Treaty on Fisheries Between the Governments of Certain

Pacific Island States and the Government of the United States of

America.

Interference with Investigations and Authorized Activities

    These regulations propose to add a new Sec.  216.17 to prohibit

activities that undermine the effective implementation and enforcement

of the MMPA, DPCIA, and IDCPA. Currently, individuals who refuse to

permit boardings by enforcement agents, interfere with inspections or

stranding response, or intentionally submit false information may not

be subject to prosecution under the MMPA, as such activities are not

specifically prohibited. Such activities constrain law enforcement

actions needed to ensure compliance with the statute. Lastly, this

action would ensure that there are regulations protecting law

enforcement officials while conducting investigations in the field.

Vessel Register

    The IATTC established a international Vessel Register on June 28,

2002. In Sec.  300.22(b), NMFS proposes to maintain a domestic Vessel

Register in accordance with recommendations of the IATTC. In addition,

procedures would be established for vessels to be categorized as active

or inactive on the Vessel Register for a given calendar year. Vessels

would be eligible for inclusion on the Vessel Register if they were

determined to have a history of fishing in the ETP prior to the

establishment of the IATTC Vessel Register on June 28, 2002. Vessels

that were not originally eligible for inclusion on the Vessel Register

could be added only to replace another vessel of equal or greater

capacity that has been removed from the Vessel Register.

    As of September 2004, the following U.S. purse seine vessels, with

carrying capacities in parentheses, are eligible for inclusion on the

Vessel Register

[[Page 63124]]

maintained by the IATTC: Andrea C (1,089 mt); Anna Maria II (82 mt);

Annie D (100 mt); Anthony G (35 mt); Antoinette W (25 mt); Atlantis

(1,089 mt); Barbara H. (91 mt); Bold Adventuress (1,361 mt); Calogera A

(62 mt); Cape Elizabeth (1,542 mt); Cape Finisterre (1,361 mt); Carol

Linda (1,587 mt); Cassie (62 mt); Connie Jean (517 mt); Daniela (1,217

mt); Diana (1,089 mt); Donna B (145 mt); Eileen (42 mt); Ferrigno Boy

(70 mt); Fiore D'Mare (85 mt); G Nazzareno (75 mt); Gallant (91 mt);

Gloria Marie (23 mt); Jeanette (1,542 mt); Jeannine (1,089 mt); Jenny

Lynne (59 mt); Kathy Jeanne (73 mt); King Philip (91 mt); Koorale (998

mt); Lady Elizabeth (288 mt); Lady Renee (36 mt); Linda C. (11 mt);

Margaret F (54 mt); Maria (89 mt); Maria T (45 mt); Mary Louise (54

mt); Mauritania (340 mt); Midnight Hour (45 mt); Nancy B II (68 mt);

New Horizon (33 mt); Odette Therese II (1,089 mt); Pacific Princess

(1,089 mt); Pioneer (64 mt); Proud Heritage (998 mt); Retriever (45

mt); Romani Sons (91 mt); Saint Joseph (79 mt); San Antonio (86 mt);

San Pedro Pride (104 mt); Santa Maria (77 mt); Sea Encounter (1,814

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

Tradition (1,089 mt); Trionfo (68 mt); and Western Pacific (1,678 mt).

    In order for vessels in excess of 400 short tons (st), (362.8 mt)

carrying capacity to purse seine for tuna in the ETP, they would be

required to be categorized as active on the Vessel Register, have

obtained a vessel permit, and have paid the permit application fee and

the observer placement fee associated with the active status.

    Owners who request to have purse seine vessels in excess of 400 st

(362.8 mt) listed as inactive on the Vessel Register would be required

to pay the observer placement fee associated with inactive status.

However, only purse seine vessels in excess of 400 st (362.8 mt) listed

as active on the Vessel Register would be allowed to fish in the ETP;

large purse seine vessels listed as inactive would be prohibited from

fishing.

    Purse seine vessels licensed under the South Pacific Tuna Treaty

would be allowed to make a single trip in the ETP per year, not to

exceed 90 days in duration. They would not be required to be listed on

the Vessel Register; however, they would be required to obtain a vessel

permit, pay the permit application fee and the observer placement fee

associated with active status, and carry an approved IDCP or ETP-

trained Forum Fisheries Agency observer prior to entering the ETP to

fish. No more than 32 such trips would be allowed per year.

    Purse seine vessels of less than 400 st (362.8 mt) carrying

capacity that do not target tuna on a full-time basis (in other words,

50 percent or less of annual landings by the vessel are tuna caught in

the ETP) would not be required to be categorized as active, or even be

listed on the Vessel Register, in order to purse seine for tuna in the

ETP when tuna are seasonally available.

    Purse seine vessels of less than 400 st (362.8 mt) carrying

capacity that target tuna on a full-time basis (in other words, more

than 50 percent of annual landings by the vessel are tuna caught in the

ETP) would be required to be categorized as active on the Vessel

Register. In order to be categorized as active on the Vessel Register,

these small purse seine vessels would be required to submit payment of

observer placement fees associated with active status to the

Administrator, Southwest Region. Owners may request to have purse seine

vessels of less than 400 st (362.8 mt) carrying capacity listed as

inactive on the Vessel Register by submitting payment of the observer

placement fee associated with inactive status.

    New Sec.  300.22(b)(4)(i) would provide that when the owner of a

vessel in excess of 400 st (362.8 mt) carrying capacity submits a

vessel permit application, permit application fee, and observer

placement fee, the Administrator, Southwest Region, would interpret the

submissions as the owner's request for the subject vessel to be

categorized as active under the Vessel Register in a given calendar

year. The owner of a vessel of 400 st (362.8 mt) carrying capacity or

less would be required to submit only payment of the observer placement

fee associated with active status in order to request the vessel be

listed on the Vessel Register as active.

    For 2005 only, requests to be categorized as active that are

received by the Administrator, Southwest Region, would be prioritized

on a first-come, first-served basis. Requests to be active for 2006 and

subsequent years that are received by the Administrator, Southwest

Region, between August 1 and September 15 of the previous year, for

vessels requesting DMLs, or between August 1 and November 30 of the

previous year, for vessels not requesting a DMLs, would be prioritized

according to the following hierarchy: (1) requests for vessels that

were categorized as active in the previous year except for vessels that

were determined by the Administrator, Southwest Region, to have made

frivolous requests for the previous year; (2) requests for vessels that

were categorized as inactive in the previous year; (3) requests for

vessels not described in (1) or (2) will be prioritized on a first-

come, first-served basis; and (4) requests for vessels that were

determined to have made a frivolous request for active status for the

previous year. Vessels in excess of 400 st (362.8 mt) carrying capacity

would not be categorized as active on the Vessel Register unless the

captain of the vessel possessed a valid operator permit.

    Under new Sec.  300.22(b)(5), vessels could be removed from the

Vessel Register by the Administrator, Southwest Region: (1) if they

have sunk, (2) at the written request of the owner or managing owner,

(3) if they have not paid the required observer placement fee, (4) if

the vessel owner or managing owner does not submit, within the allotted

time, a vessel permit application and associated processing fee, (5) if

the United States Coast Guard notifies NMFS that the U.S. documentation

for the vessel has been deleted, or (6) for serious violations, for

failure to pay a penalty, or for default on a penalty payment

agreement.

    In new Sec.  300.22(b)(6), vessels removed from the Vessel Register

for a given year or years could be added back to the Vessel Register

and categorized as inactive at any time, provided they pay the vessel

assessment associated with inactive status. Vessels removed from active

status on the Vessel Register for one of the reasons described in the

previous paragraph may be replaced with another vessel by the

Administrator, Southwest Region, at any point during the year. Owners

or managing owners of vessels eligible for inclusion on the Vessel

Register would be notified by the Administrator, Southwest Region, when

an opportunity to replace a removed vessel arises.

    Vessels categorized as inactive at the time that a vessel is

removed from active status, and active capacity becomes available,

would be given first priority to become active for the remainder of the

year. Second priority would be given to vessels not included on, but

eligible for inclusion, on the Vessel Register. In order to replace a

vessel removed from active status on the Vessel Register, the owner of

a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity

would be required to submit to the Administrator, Southwest Region, a

vessel permit application, as well as payment of the permit application

processing fee and observer placement fee consistent with active status

and verification that the captain of the vessel possessed a valid

operator permit.

[[Page 63125]]

    In order to replace a vessel removed from active status on the

Vessel Register, the owner of a purse seine vessel of 400 st (362.8 mt)

carrying capacity or less would be required to submit to the

Administrator, Southwest Region, only payment of the observer placement

fee consistent with active status.

    The regulations would require that the owner of a purse seine

vessel listed as inactive on the Vessel Register, who requests to have

the vessel's status changed to active, pay an observer placement fee

equal to the difference between the fee for active status and the fee

for inactive status that was already paid. The observer placement fee

for an owner of a replacement vessel not already listed as inactive on

the Vessel Register would be the full observer placement fee associated

with active status.

Vessel Permit Application and Payment of Observer Placement Fee

    Section 216.24(b)(4) would require vessel permit applications to be

faxed and establish deadlines for submission of vessel permit

applications and application processing fees. No vessel permit

application or application processing fee may be submitted prior to

August 1 of the year prior to year for which permit would be valid.

Vessel owners or managing owners requesting a dolphin mortality limit

(DML) and that a vessel be categorized as active on the Vessel Register

for the following year, would be required to submit the vessel permit

application, observer placement fee, and application processing fee no

later than September 15 of the year prior to year for which the DML is

requested.

    Vessel owners or managing owners not requesting a DML for a vessel,

but requesting a vessel greater than 400 st (362.8 mt) be categorized

as active on the Vessel Register for the following year, would be

required to submit the vessel permit application, observer placement

fee, and application processing fee no later than November 30 of the

year prior to the year for which inclusion on the Vessel Register is

requested.

    Owners or managing owners of vessels not on the Vessel Register and

licensed under the South Pacific Tuna Treaty would be required to

submit vessel permit applications, observer placement fees, and

application processing fees before the vessel is assigned an observer

and enters the ETP to fish, allowing 15 days for NMFS to process the

application.

    Owners or managing owners of vessels equal to or less than 400 st

(362.8 mt) would not be required to submit a vessel permit application

or application processing fee; vessel permits are not required for

vessels of this size regardless of whether or not they are listed on

the Vessel Register.

    Any owner that requests to have a purse seine vessel of less than

400 st (362.8 mt) carrying capacity listed as active on the Vessel

Register would be required to submit payment of the observer placement

fee associated with active status no later than November 30 of the year

prior to the year for which inclusion on the Vessel Register is

requested. Owners of small purse seine vessels for which at least 50

percent of annual catch is comprised of tuna caught in the ETP would be

required to request these vessels be listed as active on the Vessel

Register by submitting payment of observer placement fees associated

with active status no later than November 30 of the year prior to the

year for which inclusion on the Vessel Register is requested. Owners

that request to have these small vessels listed as inactive on the

Vessel Register would be required to submit payment of observer

placement fees associated with inactive status no later than November

30 of the year prior to the year for which inclusion on the Vessel

Register is requested.

    Owners requesting to replace a vessel removed from active status on

the Vessel Register would be required to submit to the Administrator,

Southwest Region, a vessel permit application, payment of the permit

application processing fee, and payment of the observer placement fee

consistent with active status before the vessel would be listed as

active. In addition, these owners would be required to verify that the

captain of the vessel possessed a valid operator permit.

Importation, Purchase, Shipment, Sale, and Transport

    In Sec.  216.24, a new paragraph (f)(3)(ii) would be added

requiring that Fisheries Certificates of Origin (FCOs) and associated

certifications be submitted by the importer of record within 30 days of

the shipment's entry into the commerce of the United States. The

proposed regulations would allow certifications to be submitted

electronically to the Tuna Tracking and Verification Program using a

secure file transfer protocol (FTP). Importers of record interested in

submitting FCOs and associated certifications via FTP may contact a

representative of the Tuna Tracking and Verification Program.

Certifications submitted by mail either on compact disc or as hard

copies to the Tuna Tracking and Verification Program (see ADDRESSES)

would also be acceptable. All importers of record submitting electronic

certifications, whether via FTP or on compact disc, would be required

to make submissions in either Adobe Portable Document Format (PDF) or

as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or

Corel WordPerfect file. Paragraphs previously designated (f)(2)(ii) and

(iii) would be redesignated as (f((2)(iii) and (iv), respectively.

    In Sec.  216.24(f)(4) two modifications would be made. In paragraph

(f)(4)(xi), the name of the vessel would be required on the FCO

regardless of the gear type used. In paragraph (f) (4)(xiv), NMFS would

require importers, exporters, or processors who take custody of tuna

shipments to sign and date FCOs. Current regulations limit this

requirement to tuna shipments harvested by purse seine vessels in

excess of 400 st. This modification is necessary because processors who

import tuna must be able to verify dolphin-safe status through use of

the FCO for all tuna imports regardless of gear or vessel size.

Market Prohibitions

    NMFS would add a market prohibition to Sec.  216.24(f)(12)(ii) to

complement the dolphin-safe labeling requirements under the DPCIA, as

codified in regulations at 50 CFR 216.91 et seq. This new prohibition

would make commerce in tuna or tuna products bearing a label or mark

that refers to dolphins, porpoises, or marine mammals illegal if the

label or mark does not comply with the labeling and marking

requirements of 16 U.S.C. 1385(d). The Dolphin Protection Consumer

Information Act authorizes the Secretary to regulate entities in the

stream of commerce that are responsible for trafficking in tuna product

that bears labels suggesting the tuna was harvested in a ``dolphin-

safe'' manner. As a result and based on NMFS' experience, NMFS has

determined that giving NMFS the ability to enforce the labeling

standards at the wholesale, distribution, and retail levels will

further compliance with the DPCIA. During the course of recent

investigations into illegally imported tuna products, NMFS determined

that there is both a ready supply of a certain brand of tuna products

from Mexico entering the U.S. market that carries a label/mark that

implies the tuna is dolphin-safe and a demand among consumers for this

product. While there is no indication that the labeled product is not

dolphin-safe, it appears that the product entered the U.S. market

without being accompanied by the required paperwork. Further, at the

time such

[[Page 63126]]

products were discovered by law enforcement officials, the party

possessing the product (usually a retailer) was not the party that

placed the dolphin-related label on the product.

    This proposed new prohibition would improve the ability of NMFS

Enforcement to pursue enforcement actions against all parties in the

stream of commerce that handle or sell labeled tuna product. Putting

such enforcement pressure on all businesses that distribute or sell

labeled products is likely to raise their awareness of the dolphin-safe

labeling standards. NMFS anticipates that this will, in turn, reduce

the illegal trafficking of such products.

Changes to Verification Requirements

    Section 216.93(c)(v) would be revised to prohibit distribution of

confidential Tuna Tracking Forms (TTFs) by replacing the phrase ``shall

not'' with ``may not''. Current regulations were intended to prohibit

distribution of these confidential documents; however, this intention

was not apparent in the way current regulations were constructed.

    Section 216.93(e) would be revised in this proposed rule to specify

that copies of FCOs and required certifications must be submitted by

the importer of record to the Administrator, Southwest Region, within

30 days of the shipment's entry into the commerce of the United States,

consistent with the addition of a the proposed new paragraph (f) (3)

(ii) in Sec.  216.24(f)(3).

    NMFS would revise Sec.  216.93(f) to require maintenance of records

on all tuna imported into the United States, not just tuna harvested in

the ETP that is imported. This change would be made because of the need

to track all the tuna coming into the United States in order to track

and verify tuna harvested in the ETP.

    Under these proposed regulations, certain entities (any exporter,

transshipper, importer, processor or wholesaler/distributor of tuna or

tuna products) would be required to submit FCOs within 30 days of every

shipment, as opposed to within 30 days of a request by the Southwest

Regional Administrator. These revisions would be made in Sec. 

216.93(f)(2).

    NMFS would add a requirement that wholesalers and distributors

maintain records related to the shipment of tuna, including the FCO,

required certifications, invoices, and other import documents under the

authority of paragraph (f) of the DPCIA (16 U.S.C. 1385(f)). The

revised Sec.  216.93(f) would require any ``wholesaler/distributor'' to

comply with the record maintenance, submission, and audit/spot-check

obligations of the Tuna Tracking and Verification Program. In addition

to maintaining records, wholesalers/distributors would be required to

submit or provide access to all pertinent records and facilities

related to caught, landed, stored and processed tuna.

    For purposes of this regulation, wholesalers/distributors would be

identified as entities that sell from offices or warehouses, advertise

to businesses rather than to the general public, and generally have no

walk-in traffic or public displays. This addition is proposed because

current regulations require importers to adhere to the tracking

requirements, but do not extend the requirements to parties any farther

in the stream of commerce. Investigations into the alleged illegal

importation of tuna products have been thwarted because NMFS discovered

the products only after they had been delivered to the retailers. For

example, wholesalers/distributors did not maintain any paperwork

regarding the delivery or purchase of the tuna that would have allowed

NMFS to investigate who had been involved in the illegal importation.

Without extending the tracking requirements to wholesalers/

distributors, this complication with investigations would likely

continue, as there is the potential that illegal importations of tuna

are ongoing. NMFS does not propose extending recordkeeping requirements

to retailers, but in order to aid enforcement of these regulations,

NMFS would apply the verification requirements of this section to

wholesalers/distributors.

Public Comments Solicited

    NMFS is soliciting public comments on this proposed rule. Written

comments may be submitted to Jeremy Rusin (see ADDRESSES and DATES).

Classification

Executive Order 12866

    This proposed rule has been determined to be not ``significant''

under Executive Order 12866. NMFS prepared a Regulatory Impact Review

(RIR)/Initial Regulatory Flexibility Analysis (IRFA), included as

Appendix A to the Environmental Assessment (EA) prepared on the

proposed regulations. The EA, including the RIR/IRFA, is available at

the following website: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://swr.nmfs.noaa.gov.

Regulatory Flexibility Act

    Pursuant to procedures established to implement the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), NMFS prepared an RIR/IRFA,

included as Appendix A to the EA prepared on the proposed regulations.

The IRFA indicates that the proposed regulations would have a minimal

impact on the U.S. purse seine fishing fleets and associated

businesses.

    NMFS analyzed three alternatives in the IRFA for this proposed

rule. The first alternative that NMFS analyzed was the ``no action''

alternative and this alternative would not implement recommendations of

the IATTC member nations or resolutions adopted by the Parties to the

Agreement on the IDCP. The second alternative NMFS analyzed was the

``preferred alternative,'' which would: (1) establish a register of

U.S. vessels with a history of fishing in the ETP prior to June 28,

2002, and require that only vessels on that list would be authorized to

purse seine for tuna in the ETP; (2) limit the aggregate capacity of

U.S. purse seine vessels that may fish full time for tuna in the ETP to

8,969 mt carrying capacity per year; (3) revise the requirements for

maintaining and submitting tuna tracking and verification records; (4)

ensure that owners of U.S. vessels on the register pay annual

assessments; (5) prohibit commerce in tuna or tuna products bearing a

label or mark that refers to dolphins, porpoises, or marine mammals if

the label or mark does not comply with the labeling and marking

requirements of 16 U.S.C. 1385(d); and (6) prohibit interference with

enforcement and inspection activities, submission of false information,

and other activities that would undermine the effectiveness of the

MMPA, IDCPA, and DPCIA. The third alternative NMFS analyzed was the

``variations of the preferred alternative'' alternative and this

alternative would retain the clearly required elements of the preferred

alternative, but it would also include other measures not specifically

required by internationally adopted resolutions. Generally, the

objectives of resolutions adopted by the IATTC member nations and the

Parties to the Agreement on the IDCP are clear; however, some

provisions allow for agency discretion, either in implementing or

interpreting the intent of the resolution. These discretionary areas

provided the basis for this third alternative.

    NMFS rejected the ``no action'' alternative because it would not

restrict annual participation by U.S. flag purse seine vessels in the

fishery and would not implement needed prohibitions or refine tuna

tracking procedures. Under the ``no action'' alternative, the United

States would not be fulfilling its obligations under the IATTC and

Agreement on the IDCP; adopting this alternative would provide a

precedent

[[Page 63127]]

for other nations to ignore future international recommendations.

    NMFS chose the ``preferred alternative,'' which includes a

combination of procedures to restrict domestic fleet capacity, updates

to the domestic tuna tracking and verification program, prohibitions

against interfering with enforcement activities, and prohibitions

against using a label on tuna products that refers to dolphins or other

marine mammals when the label does not comply with the requirements of

the DPCIA. The ``preferred alternative'' is expected to have minimal

impacts on the U.S. purse seine fishing fleet and associated

businesses.

    NMFS also considered but rejected the third alternative which

included taking independent action to address tuna conservation (e.g.,

quota, area closures, or other variations of the preferred alternative)

because these approaches fail to address the potential for fleet

capacity growth. Further, the United States does not have independent

sources of information that would provide a sufficiently sound approach

to support a departure from recommendations of the IATTC member nations

and Parties to the Agreement on the IDCP.

    The IRFA indicates, with only 1-2 exceptions, that tuna landings of

small purse seine vessels (i.e., vessels less than 400 st carrying

capacity and classified as small business entities) do not comprise a

significant percentage of the total landings of small purse seine

vessels. Therefore, these vessels would be exempt from being

categorized as active on the Vessel Register or paying associated

annual vessel assessments in order to purse seine for tuna when they

are seasonally available. The 1-2 small vessels that have historically

targeted tuna on a full-time basis, as well as large tuna purse seine

vessels (in excess of 400 st carrying capacity), would be required to

be listed as active on the Vessel Register and pay associated annual

vessel assessments in order to fish for tuna in future years.

    The annual capacity limit of 8,969 mt that would be imposed on the

U.S. tuna purse seine fleet as a result of this action is expected to

accommodate the majority of interested vessels based on vessel

participation in the fishery in recent years, including the 1-2 small

purse seine vessels that target tuna on a full-time basis. In 2004,

owners expressed an interest to have an additional 2 vessels in excess

of 400 st carrying capacity categorized as active, which would have

totaled approximately 11,500 mt in fleet capacity. Therefore,

implementing the fleet capacity limit through this rule would result in

1 or 2 eligible U.S. purse seine vessels being excluded from

participating in the ETP tuna fishery if the current level of interest

in the fishery is maintained.

    Updates to the tuna tracking and verification program; prohibitions

against commerce in tuna or tuna products bearing a label or mark that

refers to dolphins, porpoises, or marine mammals if the label or mark

does not comply with the labeling and marking requirements of 16 U.S.C.

1385(d); and prohibitions against activities that undermine the

implementation and enforcement of the MMPA, IDCPA and DPCIA are not

expected to significantly impact small business entities. While the

proposed changes are expected to result in some new or increased

burdens to small businesses, the experience of the Tuna Tracking and

Verification Program indicates that the proposed change would ensure

NMFS' continued ability to verify the dolphin-safe status of tuna.

    The preferred alternative is not expected to have a significant

economic impact on the U.S. tuna purse seine fleet operating in the

ETP. The only small business entities which would potentially be

affected by this proposed rule would be 1-2 small purse seine vessels

which target tuna in the ETP on a full-time basis. These actions are

not expected to compromise the ability of these small vessels to target

tuna or reduce their retained catch or sales revenue. Similarly, there

would be no impacts on processors, nor would total employment be

affected by this action.

    While this alternative would implement capacity controls for the

fleet, the proposed limit, 8,969 mt, is consistent with the recent

level of interest and participation in the fishery by U.S. vessels.

This alternative would also exempt smaller fishing entities that do not

target tuna on a full-time basis from paying annual vessel assessments.

Considering their access to fishing grounds in the western Pacific

Ocean, vessels in excess of 400 st carrying capacity in the U.S. tuna

purse seine fleet are expected to have sufficient flexibility to target

tuna where and when they are seasonably available. Foreign purse seine

fleets, as well as domestic and international tuna processors, are not

expected to be significantly adversely affected by implementation of

this alternative, due to the global nature of tuna supply and pricing.

    NMFS is requesting comments on the IRFA. The EA, including the RIR/

IRFA, is available at the following website: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://swr.nmfs.noaa.gov.

Send comments to Jeremy Rusin, NMFS (see ADDRESSES).

Paperwork Reduction Act

    This proposed rule contains new collection-of-information

requirements subject to the Paperwork Reduction Act (PRA), which

appears in Sec.  216.93(f) of this proposed rule. Wholesalers/

distributors are included in the list of entities required to produce

records relative to tracking and verification of tuna to the

Administrator, Southwest Region. This added collection-of-information

requirement was approved by the Office of Management and Budget (OMB)

on February 6, 2003, under control number 0648-0387. The public

reporting burden for this collection is estimated to average 30 minutes

for a wholesaler/distributor to produce records.

    Notwithstanding any other provision of the law, no person is

required to respond to, nor will any person be subject to a penalty for

failure to comply with, a collection of information subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

    The preceding public reporting burden estimates for collections of

information include time for reviewing instructions, searching existing

data sources, gathering and maintaining the data needed, and completing

and reviewing the collection of information.

    Comments regarding the burden-hour estimates or other aspects of

the collection-of-information requirements contained in this proposed

rule may be submitted in writing to Jeremy Rusin, NMFS (See ADDRESSES),

or to David Rostker, OMB, by e-mail at David-Rostker@omb.eop.gov or by

fax to 202-395-7285.

Endangered Species Act

    NMFS prepared a Biological Opinion for the interim final rule to

implement the IDCPA in December 1999, concluding that fishing

activities conducted under the interim final rule are not likely to

jeopardize the continued existence of any endangered or threatened

species under the jurisdiction of NMFS or result in the destruction or

adverse modification of critical habitat. NMFS is unaware of any new

information that would indicate this proposed action may affect listed

species in a manner or to an extent not previously considered, nor do

the proposed regulations modify the fishery in a manner that causes an

effect to listed species not previously considered in the Biological

Opinion. Therefore, NMFS has determined that the conclusions and

incidental take

[[Page 63128]]

statement of the Biological Opinion remain valid and reinitiation of

consultation is not required. NMFS continues to monitor annual sea

turtle takes and mortalities in the U.S. tuna purse seine fishery

operating in the ETP to ensure that levels are within those analyzed in

the Biological Opinion and authorized in the amended Incidental Take

Statement.

National Environmental Policy Act

    NMFS prepared a draft Environmental Assessment (EA) on these

proposed regulations. A copy of the draft EA is available at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://swr.nmfs.noaa.gov

.

    Dated: October 20, 2004.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine

Fisheries Service.

List of Subjects

50 CFR Part 216

    Fish, Marine mammals, Reporting and recordkeeping requirements.

50 CFR Part 300

    International fisheries regulations; Pacific tuna fisheries.

    For the reasons set out in the preamble, NMFS proposes to amend 50

CFR parts 216 and 300 as follows:

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

MAMMALS

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

follows:

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

    2. In Sec.  216.3 the definition for ``Fisheries Certificate of

Origin'' is revised and a definition for ``South Pacific Tuna Treaty''

is added to read as follows:

Sec.  216.3  Definitions.

* * * * *

    Fisheries Certificate of Origin or FCO, means NOAA Form 370, as

described in Sec.  216.24(f)(4).

* * * * *

    South Pacific Tuna Treaty means the Treaty on Fisheries Between the

Governments of Certain Pacific Island States and the Government of the

United States of America (50 CFR part 300, subpart D).

* * * * *

    3. A new Sec.  216.17 is added to subpart B to read as follows:

Sec.  216.17  General prohibitions.

    It is unlawful for any person to:

    (a) Assault, resist, oppose, impede, intimidate, threaten, or

interfere with any authorized officer in the conduct of any search,

inspection, investigation or seizure in connection with enforcement of

the MMPA, DPCIA, or IDCPA.

    (b) Interfere with, delay, or prevent by any means the apprehension

of another person, knowing that such person has committed any act

prohibited by the MMPA.

    (c) Resist a lawful arrest for any act prohibited under the MMPA.

    (d) Make any false statement, oral or written, to an authorized

officer concerning any act under the jurisdiction of the MMPA, DPCIA,

IDCPA, or attempt to do any of the above.

    (e) Interfere with, obstruct, delay, or prevent by any means an

investigation, search, seizure, or disposition of seized property in

connection with enforcement of the MMPA, DPCIA, or IDCPA.

    4. Section 216.24 is amended by revising paragraphs (b)(4),

(b)(6)(i), (b)(6)(iii), (f)(3), (f)(3)(ii)-(f)(3)(iv), (f)(4)(xi),

(f)(4)(xiv) and (f)(12) to read as follows:

Sec.  216.24  Taking and related acts incidental to commercial fishing

operations by tuna purse seine vessels in the eastern tropical Pacific

Ocean.

* * * * *

    (b) * * *

    (4) Application for vessel permit. The owner or managing owner of a

purse seine vessel may apply for a permit from the Administrator,

Southwest Region, allowing at least 15 days for processing. All vessel

permit applications must be faxed to (562) 980-4027. An owner or

managing owner requesting to have a vessel in excess of 400 st (362.8

mt) carrying capacity for which a DML was requested categorized as

active on the Vessel Register under Sec.  300.22(b)(4)(i) of this title

must submit to the Administrator, Southwest Region, the vessel permit

application, payment of the observer placement fee under paragraph

(b)(6)(iii) of this section and payment of the vessel permit

application processing fee no later than September 15 of the year prior

to the year for which the DML was requested. The owner or managing

owner of a vessel in excess of 400 st (362.8 mt) carrying capacity not

requesting a DML must submit the vessel permit application, payment of

the observer placement fee, and payment of the vessel permit

application processing fee no later than November 30 of the year prior

to the year for which the vessel permit was requested. An application

must contain:

* * * * *

    (6) * * *

    (i) Vessel permit application fees. Payment of the permit

application fee is required before NMFS will issue a permit. The

Assistant Administrator may change the amount of this fee required at

any time if a different fee is determined in accordance with the NOAA

Finance Handbook and specified by the Administrator, Southwest Region,

on the application form.

* * * * *

    (iii) Observer placement fee. (A) The owner or managing owner of a

vessel for which a DML has been requested must submit the observer

placement fee, as established by the IATTC or other approved observer

program, to the Administrator, Southwest Region, no later than

September 15 of the year prior to the calendar year for which the DML

was requested. Payment of the observer placement fee must be consistent

with the fee for active status on the Vessel Register under Sec. 

300.22(b)(4) of this title.

    (B) The owner or managing owner of a vessel for which a DML has not

been requested, but that is listed on the Vessel Register, as defined

in Sec.  300.21 of this title, must submit payment of the observer

placement fee, as established by the IATTC or other approved observer

program, to the Administrator, Southwest Region, no later than November

30 of the year prior to the calendar year in which the vessel will be

listed on the Vessel Register. Payment of the observer placement fee

must be consistent with the vessel=s status, either active or inactive,

on the Vessel Register in 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 observer

placement fee, as established by the IATTC or other approved observer

program, to the Administrator, Southwest Region, prior to obtaining an

observer and entering the ETP to fish. Consistent with 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 observer placement fee must be consistent with the fee for active

status on the Vessel Register under Sec.  300.22(b)(4) of this title.

    (D) The owner or managing owner of a purse seine vessel listed as

inactive on the Vessel Register at the beginning of the calendar year

and who requests to replace a vessel removed from active status on the

Vessel Register under Sec.  300.22(b)(4) of this title during the year,

must pay the observer placement

[[Page 63129]]

fee associated with active status less the observer placement fee

associated with inactive status that was already paid before NMFS will

request the IATTC Secretariat change the status of the vessel from

inactive to active.

    (E) The owner or managing owner of a purse seine vessel not listed

on the Vessel Register at the beginning of the calendar year and who

requests to replace a vessel removed from active status on the Vessel

Register under Sec.  300.22(b)(4) of this title during the year, must

pay the observer placement fee associated with active status before

NMFS will request the IATTC Secretariat change the status of the vessel

to active.

    (F) Payments received after the dates specified in paragraphs (b)

(6) (iii)(A) or (B) of this section will be subject to a 10 percent

surcharge. The Administrator, Southwest Region, will forward all

observer placement fees described in this section to the IATTC or to

the applicable organization approved by the Administrator, Southwest

Region.

* * * * *

    (f) * * *

* * * * *

    (3) Disposition of Fisheries Certificates of Origin. The FCO

described in paragraph (f)(4) of this section may be obtained from the

Administrator, Southwest Region, or downloaded from the Internet at

http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://swr.nmfs.noaa.gov/noaa370.htm.

    (i) * * *

    (ii) FCOs and associated certifications, if any, that accompany

imported shipments of tuna must be submitted by the importer of record

to the Tuna Tracking and Verification Program, Southwest Region, within

30 days of the shipment's entry into the commerce of the United States.

Copies of the documents may be submitted electronically using a secure

file transfer protocol (FTP) site. Importers of record interested in

submitting FCOs and associated certifications via FTP may contact a

representative of the Tuna Tracking and Verification Program at the

following email address: SWRTuna.Track@noaa.gov. The Tuna Tracking and

Verification Program will facilitate secure transfer and protection of

certifications by assigning a separate electronic folder for each

importer. Access to the electronic folder will require a user

identification and password. The Tuna Tracking and Verification Program

will assign each importer a unique user identification and password.

Safeguarding the confidentiality of the user identification and

password is the responsibility of the importer to whom they are

assigned. Copies of the documents may also be submitted via mail either

on compact disc or as hard copies. All electronic submissions, whether

via FTP or on compact disc, must be in either Adobe Portable Document

Format (PDF) or as an image file embedded in a Microsoft Word,

Microsoft PowerPoint, or Corel WordPerfect file.

    (iii) FCOs that accompany imported shipments of tuna destined for

further processing in the United States must be endorsed at each change

in ownership and submitted to the Administrator, Southwest Region, by

the last endorser when all required endorsements are completed.

    (iv) Importers and exporters are required to retain their records,

including FCOs, import or export documents, invoices, and bills of

lading for 2 years, and such records must be made available within 30

days of a request by the Secretary or the Administrator, Southwest

Region.

    (4) * * *

    (xi) the name of the harvesting vessel;

* * * * *

    (xiv) Each additional importer, exporter, or processor who takes

custody of the shipment must sign and date the form to certify that the

form and attached documentation accurately describes the shipment of

fish that they accompany.

* * * * *

    (12) Market rohibitions. (i) It is unlawful for any person to sell,

purchase, offer for sale, transport, or ship in the United States, any

tuna or tuna products unless the tuna products are either:

    (A) Dolphin-safe under subpart H of this part; or

    (B) Harvested in compliance with the IDCP by vessels under the

jurisdiction of a nation that is a member of the IATTC or has

initiated, and within 6 months thereafter completes, all steps required

by an applicant nation to become a member of the IATTC.

    (ii) It is unlawful for any exporter, transshipper, importer,

processor, or wholesaler/distributor to possess, sell, purchase, offer

for sale, transport, or ship in the United States, any tuna or tuna

products bearing a label or mark that refers to dolphins, porpoises, or

marine mammals unless the label or mark complies with the requirements

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

* * * * *

    5. In Sec.  216.93, the section heading and paragraphs are amended

by revising paragraphs (c)(5)(v), (e) and (f) to read as follows:

Sec.  216.93  Tracking and verification program.

* * * * *

    (c) * * *

    (5) * * *

    (v) TTFs are confidential documents of the IDCP. Vessel captains

and managing offices may not provide copies of TTFs to any

representatives of private organizations or non-member states.

* * * * *

    (e) Tracking imports. All tuna products, except fresh tuna, that

are imported into the United States must be accompanied by a properly

certified FCO as required by Sec.  216.24(f)(2). For tuna tracking

purposes, copies of FCOs and associated certifications must be

submitted by the importer of record to the Administrator, Southwest

Region, within 30 days of the shipment's entry into the commerce of the

United States as required by Sec.  216.24(f)(3)(ii).

    (f) Verification requirements--(1) Record maintenance. Any

exporter, transshipper, importer, processor, or wholesaler/distributor

of any tuna or tuna products must maintain records related to that tuna

for at least 2 years. These records include, but are not limited to:

FCO and required certifications, any report required in paragraphs (a),

(b) and (d) of this section, invoices, other import documents, and trip

reports.

    (2) Record submission. Within 30 days of receiving a shipment of

tuna or tuna products, any exporter, transshipper, importer, processor,

wholesaler/distributor of tuna or tuna products must submit to the

Administrator, Southwest Region, all corresponding FCOs and required

certifications for those tuna or tuna products.

    (3) Audits and spot-checks. Upon request of the Administrator,

Southwest Region, any exporter, transshipper, importer, processor, or

wholesaler/distributor of tuna or tuna products must provide the

Administrator, Southwest Region, timely access to all pertinent records

and facilities to allow for audits and spot-checks on caught, landed,

stored, and processed tuna.

* * * * *

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for part 300 continues to read as

follows:

    Authority: 16 U.S.C. 951-961 and 971 et seq., unless otherwise

noted.

    2. In Sec.  300.21 definitions for ``South Pacific Tuna Treaty''

and ``Vessel Register'' are added to read as follows:

[[Page 63130]]

Sec.  300.21  Definitions.

* * * * *

    South Pacific Tuna Treaty means the Treaty on Fisheries Between the

Governments of Certain Pacific Island States and the Government of the

United States of America (50 CFR part 300, Subpart D).

* * * * *

    Vessel Register means the regional register of vessels authorized

to purse seine for tuna in the Convention Area, as established by the

Inter-American Tropical Tuna Commission on June 28, 2002.

    3. Section 300.22 is amended by revising paragraph (b) to read as

follows:

Sec.  300.22  Yellowfin tuna--Recordkeeping and written reports.

* * * * *

    (b) Vessel register. Except as provided under paragraph (b)(1) of

this section, vessels must be listed on the Vessel Register and

categorized as active under paragraph (b)(4)(i) of this section in

order to purse seine for tuna in the Convention Area.

    (1) Exceptions. The following classes of vessels are exempted from

being listed on the Vessel Register to purse seine for tuna in the

Convention Area:

    (i) Vessels licensed under the South Pacific Tuna Treaty that

exercise an option to fish in the Convention Area for a single trip

each year, provided that the total number of optional trips does not

exceed 32 in a given calendar year. Each optional trip in the

Convention Area may not exceed 90 days in duration.

    (ii) Vessels of less than 400 st (362.8 mt) carrying capacity for

which landings of tuna caught in the Convention Area comprise 50

percent or less of the vessel's total landings, by weight, for a given

calendar year.

    (2) Requirements for inclusion on the vessel register. The Vessel

Register shall include, consistent with IATTC actions, only vessels

that fished in the Convention Area prior to the creation of the Vessel

Register on June 28, 2002. New vessels may be added to the Vessel

Register at any time to replace those previously removed by the

Regional Administrator, provided that the total capacity of the

replacement vessel or vessels does not exceed that of the vessel or

vessels being replaced.

    (3) Vessel information. The owner of any fishing vessel that uses

purse seine, longline, drift gillnet, harpoon, or troll fishing gear to

harvest tuna in the Convention Area for sale or a person authorized in

writing to serve as agent for the owner must provide such information

about the vessel and its characteristics as requested by the Regional

Administrator to conform to IATTC actions relative to the Vessel

Register. This information initially includes, but is not limited to,

vessel name and registration number; a photograph of the vessel with

the registration number showing and legible; vessel length, beam and

moulded depth; gross tonnage and hold capacity in cubic meters and

tonnage; engine horsepower; date and place where built; and type of

fishing method or methods used.

    (4) Vessel Register status. In each calendar year, for a vessel to

be categorized as either ``active'' or ``inactive'' on the Vessel

Register, the vessel owner or managing owner must pay the associated

observer placement fee pursuant to Sec.  216.24(b)(6)(iii) of this

title, or the vessel will be removed from the Vessel Register by the

Regional Administrator for that year.

    (i) Active status. As early as August 1 of each year, vessel owners

or managing owners may submit to the Regional Administrator a vessel

permit application and payment of the permit application fee and

observer placement fee for each vessel in excess of 400 st (362.8 mt)

carrying capacity qualified to be listed on the Vessel Register under

paragraph (b)(2) of this section to have a vessel categorized as active

for the following calendar year. Vessel permit applications may not be

submitted via regular mail; they must be faxed to (562) 980-4027.

Owners or managing owners of vessels of 400 st (362.8 mt) carrying

capacity or less must only submit payment of the observer placement fee

associated with active status in order to request a small purse seine

vessel be categorized as active for the following calendar year. The

Regional Administrator must receive the faxed vessel permit application

and payment of the observer placement fee and permit application

processing fee no later than September 15 for vessels for which a DML

was requested for the following year and no later than November 30 for

vessels for which a DML was not requested for the following year.

Submission of the vessel permit application and payment of the observer

placement fee and permit application processing fee will be interpreted

by the Regional Administrator as a request for a vessel to be

categorized as active. The following restrictions apply to active

status:

    (A) The cumulative carrying capacity of all vessels categorized as

active on the Vessel Register may not exceed 8,969 mt in a given year;

    (B) A vessel may not be added to active status on the Vessel

Register unless the captain of the vessel has obtained a valid operator

permit under Sec.  216.24(b)(2) of this title;

    (C) For 2005 only, requests for vessels will be prioritized on a

first-come, first-served basis according to the date and time the fax

is received in the office of the Regional Administrator;

    (D) Requests for active status for 2006 and subsequent years will

be prioritized according to the following hierarchy:

    (1) Requests received for vessels that were categorized as active

in the previous year, beginning with the vessel's status in 2005,

unless the request for active status was determined to be frivolous by

the Regional Administrator under paragraph (b)(4)(ii) of this section;

    (2) Requests received for vessels that were categorized as inactive

under paragraph (b)(4)(iii) of this section in the previous year,

beginning with the vessel's status in 2005;

    (3) Requests for vessels not described in paragraphs (b)(4)(D)(1)

or (2) of this section will be prioritized on a first-come, first-

served basis according to the date and time stamp printed by the

incoming fax machine upon receipt, provided that the associated

observer placement fee is paid by the applicable deadline described in

Sec.  216.24(b)(6)(iii) of this title; and

    (4) Requests received from owners or managing owners of vessels

that were determined, by the Regional Administrator, to have made a

frivolous request for active status, under paragraph (b)(4)(ii) of this

section.

    (ii) Frivolous requests for active status. Beginning with requests

made for 2005, a request for active status under paragraph (b)(4)(i) of

this section will be considered frivolous, unless as a result of force

majeure or other extraordinary circumstances as determined by the

Regional Administrator, if, for a vessel categorized as active in a

given calendar year, less than 20 percent of the vessel's total

landings, by weight, in that same year is comprised of tuna harvested

by purse seine in the Convention Area.

    (iii) Inactive status. From August 1 through November 30 of each

year, vessel owners or managing owners may request that vessels

qualified to be listed on the Vessel Register under paragraph (b)(2) of

this section be categorized as inactive for the following calendar year

by submitting to the Regional Administrator payment of the associated

observer placement fees. Payment of the observer placement fee

consistent with inactive status will be interpreted by the Regional

Administrator as a request for the vessel to be categorized as

inactive.

    (5) Removal from the Vessel Register. A vessel may be removed from

the

[[Page 63131]]

Vessel Register by the Regional Administrator:

    (i) If the vessel has sunk;

    (ii) Upon written request by the vessel's owner or managing owner;

    (iii) If the vessel owner or managing owner does not pay the

observer placement fee associated with the vessel's active or inactive

status on the Vessel Register for a given calendar year;

    (iv) If the vessel owner or managing owner does not submit, within

the allotted time, a vessel permit application and permit processing

fee;

    (v) If the United States Coast Guard notifies NMFS that the U.S.

documentation for the vessel has been deleted; or

    (vi) For serious violations, for failure to pay a penalty, or for

default on a penalty payment agreement.

    (6) Procedures for replacing vessels removed from the Vessel

Register. (i) A vessel previously listed on the Vessel Register, but

removed for a given year or years, may be added back to the Vessel

Register and categorized as inactive at any time during the year,

provided the owner of the vessel pays the observer placement fee

associated with inactive status.

    (ii) A vessel may be added to the Vessel Register and categorized

as active in order to replace a vessel removed from active status under

paragraph (b)(5) of this section, provided the total carrying capacity

of active vessels does not exceed 8,969 mt and the owner submits a

complete request under paragraph (b)(6)(iv) of this section.

    (iii) After a vessel categorized as active is removed from the

Vessel Register the Regional Administrator will notify owners or

managing owners of vessels categorized as inactive that replacement

capacity is available on the active list of the Vessel Register. In the

event that owners of inactive vessels do not request to replace a

removed vessel, the Regional Administrator will notify owners of

vessels eligible for, but not included on, the Vessel Register that

replacement capacity is available on the active list of the Vessel

Register.

    (iv) The owner or managing owner of a purse seine vessel of 400 st

(362.8 mt) carrying capacity or less may request a vessel be

categorized as active to replace a vessel removed from the Vessel

Register by submitting payment of the observer placement fee to the

Regional Administrator.

    (v) The owner or managing owner of a purse seine vessel in excess

of 400 st (362.8 mt) carrying capacity may request a vessel be

categorized as active to replace a vessel removed from the Vessel

Register by submitting the following items to the Regional

Administrator:

    (A) Payment of the observer placement fee;

    (B) A vessel permit application faxed to (562) 980-4027;

    (C) Payment of the permit application processing fee; and

    (D) Verification that the captain of the vessel possesses a valid

operator permit.

    (vi) The Regional Administrator will forward requests to replace

vessels removed from the Vessel Register within 15 days of receiving

each request.

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

BILLING CODE 3510-22-S