(D) Swordfish:

0303.79.20.40.8 Swordfish, frozen.

(E) Species not specifically identified:

0303.79.40.90.3 Marine fish, non-specific, fro

zen.

0304.20.20.66.6 Marine fish, non-specific, fillet blocks frozen over 4.5kg.

0304.20.60.85.4 Marine fish, non-specific, fillet, frozen.

0305.30.60.80.6 Fish, non-specific, fillet dried/ salted/brine over 6.8kg.

0305.49.40.40.9 Fish, non-specific, smoked. 0305.59.40.00.4 Fish, non-specific, dried. 0305.69.50.00.9 Fish, non-specific, salted, not over 6.8kg.

0305.69.60.00.7 Fish, non-specific, salted, over 6.8kg.

1604.19.20.00.3 Fish, non-specific, in airtight

containers, not in oil.

1604.19.30.00.1 Fish, non-specific, in airtight containers, in oil.

(3)(i) Tuna—(A) All nations. No shipment containing an item listed in paragraph (e)(2)(i) or (e)(2)(ii) of this section, from any nation, may be imported into the United States unless:

(1) Accompanied by a completed Fisheries Certificate of Origin described in paragraph (e)(3)(iii) of this section, or, for points of entry where the ABI system is available, the information required for the Certificate may be filed electronically by the ABI system in lieu of the paper form, provided that the electronic filing is made no later than at the time of entry and all documentation in support of the ABI entry is maintained by the importer or broker for not less than 5 years and is kept available for inspection by NMFS personnel upon request;

(2) The tuna or tuna product was not harvested with a large-scale driftnet after July 1, 1991; and

(3) An original invoice accompanies the shipment at the time of importation, or is made available within 30 days of a request by the Secretary to produce the invoice.

(B) Harvesting nations. No shipment containing an item listed in paragraph (e)(2)(i) of this section may be imported into the United States from a harvesting nation subject to paragraph (e)(5)(i) of this section unless a finding required for importation has been made.

(C) Intermediary nations. No shipment containing an item listed in paragraph

(e)(2)(i) of this section may be imported into the United States from an intermediary nation subject to paragraph (e)(5)(xiv) of this section if a ban is currently in force prohibiting the importation.

(D) Harvesting and intermediary nations. No shipment containing an item in paragraph (e)(2)(i) of this section may be imported into the United States from a nation that is both a harvesting nation subject to paragraph (e)(5)(i) of this section and an intermediary nation subject to paragraph (e)(5)(xiv) of this section unless the necessary findings have been made under both provisions and a ban is not currently in force.

(ii) Other fish. After July 1, 1991, no shipment containing an item listed in paragraphs (e)(2)(iii)(B) through (E) of this section, and, after July 1, 1992, no shipment containing an item in the whole of paragraph (e)(2)(iii) of this section, that was harvested by any nation determined by the Assistant Administrator to be engaged in largescale driftnet fishing, or exported from any such nation, either directly or through an intermediary nation, may be imported into the United States unless:

(A) Accompanied by a complete Fisheries Certificate of Origin, as described in paragraph (e)(3)(iii) of this section;

(B) The fish or fish product was not harvested with a large-scale driftnet, if the area of harvest, as described on the Fisheries Certificate of Origin was:

(1) The South Pacific Ocean, for harvests after July 1, 1991; or

(2) Anywhere on the high seas, for harvests after July 1, 1992; and

(C) An original invoice accompanies the shipment at the time of importation, or is made available within 30 days of a request by the Secretary to produce the invoice.

(iii) Certificates of Origin. A Fisheries Certificate of Origin (NOAA Form 370), certified to be accurate by the first exporter of the accompanying shipment, must include the following information:

1 Copies of the form are available from Southwest Region, National Marine Fisheries Service, 300 South Ferry Street, Terminal Island, CA 90731.

(A) Country under whose laws the harvesting vessel operated;

(B) Exporter (name and address); (C) Consignee (name and address); (D) Type and quantity of the fish or fish products to be imported, listed by U.S. Harmonized Tariff Schedule Number;

(E) Ocean area where the fish was harvested (ETP, Western Pacific Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean, or other);

(F) Type of fishing gear used to harvest the fish (purse seine, longline, bait boat, large-scale driftnet, other type of gillnet, trawl, pole and line, other);

(G) Dates on which the fishing trip began and ended;

(H) If shipment is tuna or products from tuna that were harvested in the ETP with a purse seine net, the name of the harvesting vessel; and

(I) For shipments harvested by vessels of a nation known to use largescale driftnets, as determined by the Secretary pursuant to paragraph (e)(4) of this section, a statement must be included on the Fisheries Certificate of Origin, or by separate attachment, that is dated and signed by a responsible government official of the harvesting nation, certifying that the fish or fish product was harvested by a method other than large-scale driftnet, if the shipment includes:

(1) Tuna or tuna products described in paragraph (e)(2) (i) or (ii) of this section that were harvested on the high seas after July 1, 1991; or

(2) Fish or fish products other than tuna described in paragraph (e)(2)(iii) of this section that were harvested in the South Pacific Ocean after July 1, 1991, or that were harvested anywhere on the high seas after July 1, 1992.

(4) Large-scale driftnet nations. Based upon the best information available, the Assistant Administrator will determine which nations have registered vessels that engage in fishing with large-scale driftnets. Such determinations shall be published in the FEDERAL REGISTER. A responsible government official of any such nation may certify to the Assistant Administrator that none of the nation's vessels use largescale driftnets. Upon receipt of the certification, the Assistant Administrator

may find, and publish such finding in the FEDERAL REGISTER, that none of the nation's vessels engage in fishing with large-scale driftnets.

(5) Yellowfin tuna.

(i) Any tuna or tuna products in the classifications listed in paragraph (e)(2)(i) of this section, from harvesting nations whose vessels of greater than 400 short tons (362.8 mt) carrying capacity operate in the ETP tuna purse seine fishery as determined by the Assistant Administrator, may not be imported into the United States unless the Assistant Administrator makes an affirmative finding under either paragraph (e)(5)(v), (e)(5)(viii) or (e)(5)(x) of this section and publishes the finding in the FEDERAL REGISTER that:

(A) The government of the harvesting nation has adopted a regulatory program governing the incidental taking of marine mammals in the course of such harvesting that is comparable to the regulatory program of the United States; and

(B) The average rate of incidental mortality by the vessels of the harvesting nation is comparable to the average rate of incidental mortality of marine mammals by U.S. vessels in the course of such harvesting as specified in paragraphs (e)(5)(v)(E) and (e)(5)(v)(F) of this section.

(ii) A harvesting nation which desires an initial finding under these regulations that will allow it to import into the United States those products listed in paragraph (e)(2)(i) of this section must provide the Assistant Administrator with the following information:

(A) A detailed description of the nation's regulatory and enforcement program governing incidental taking of marine mammals in the purse seine fishery for yellowfin tuna, including:

(1) A description, with copies of relevant laws, implementing regulations and guidelines, of the gear and procedures required in the fishery to protect marine mammals, including but not limited to the following:

(i) A description of the methods used to identify problems and to take corrective actions to improve the performance of individual fishermen in reducing incidental mortality and serious injury. By 1990 the methods must identify individual operators with marine

mammal mortality rates which are consistently and substantially higher than the majority of the nation's fleet, and provide for corrective training and, ultimately, suspension and removal from the fishery if the operator's performance does not improve to at least the performance of the majority of the fleet in a reasonable time period;

(ii) By 1990, a description of a regulatory system in operation which ensures that all marine mammal sets are completed through backdown to rolling the net to sack-up no later than onehalf hour after sundown, except that individual operators may be exempted, if they have maintained consistently a rate of kill during their observed sundown sets which is not higher than that of the nation's fleet average during daylight sets made during the time period used for their comparability finding; and

(iii) By 1990, a description of its restrictions on the use of explosive devices in the purse seine fishery which are comparable to those of the United States.

international

(2) A detailed description of the method (e.g., Inter-American Tropical Tuna Commission (IATTC) or other program observer records) and level of observer coverage by which the incidental mortality and serious injury of marine mammals will be monitored.

(B) A list of its vessels and any certified charter vessels of greater than 400 short tons carrying capacity which purse seined for yellowfin tuna at any time during the preceding year in the ETP, indicating the status of each such vessel during that period (i.e., actively fishing in ETP, fishing in other waters; in port for repairs; inactive) and the status of each vessel expected to operate in the ETP in the year in which the submission is made.

(C) A compilation of the best available data for each calendar year on the performance of any of its purse seine vessels (including certified charter vessels) fishing at any time for tuna associated with marine mammals within the ETP including the following:

(1) Total number of tons of yellowfin tuna observed caught in each fishing area by purse seine sets on: (i) Common dolphin and

(ii) All other marine mammal species;

(2) Total number of marine mammals observed killed and the total number of marine mammals observed seriously injured in each fishing area by species/ stock by purse seine sets on:

(i) Common dolphin and

(ii) All other marine mammal species;

(3) Total number of observed trips and total number of observed purse seine sets on marine mammals in each fishing area by the nation's purse seine fleet during the year;

(4) Total number of vessel trips and total number of purse seine sets on marine mammals in each fishing area by the nation's purse seine fleet during the year; and

(5) The total number of observed purse seine sets in each fishing area in which more than 15 marine mammals were killed.

(D) Data required by paragraph (e)(5)(ii)(C)(2) presented individually for the following marine mammal species/stocks: offshore spotted dolphin, coastal spotted dolphin, eastern spinner dolphin, white belly spinner dolphin, common dolphin, striped dolphin, and "other marine mammals".

(E) A description of the source of the data provided in accordance with paragraph (e)(5)(ii)(C) of this section. The observer program from which these data are provided must be operated by the IATTC or another international program in which the United States participates and must sample at least the same percentage of the fishing trips as the United States achieves over the same time period, unless the Assistant Administrator determines that an alternative observer program, including a lesser level of observer coverage, will provide a sufficiently reliable average rate of incidental taking of marine mammals for the nation.

(iii) A nation applying for its initial finding of comparability should apply at least 120 days before the desired effective date. The Assistant Administrator's determination on a nation's application for its initial finding will be announced and published in the FEDERAL REGISTER within 120 days of receipt of the information required in paragraph (e)(5)(ii) of this section.

(iv) A harvesting nation that has in effect a positive finding under this section may request renewal of its finding for the following calendar year by providing the Assistant Administrator, by December 1 of the current calendar year, an update of the information listed in §216.24(e)(5)(ii) summarizing all fishing trips completed during the 12month period from October 1 of the previous calendar year through September 30 of the current year.

(v) The Assistant Administrator's determination of a nation's timely submitted request for renewal of an affirmative finding will be announced by December 31. A finding will be valid for the calendar year following the fishing season for which observer data was submitted for obtaining a finding. The Assistant Administrator will make an affirmative finding or renew an affirmative finding if:

(A) The harvesting nation has provided all information required by paragraphs (e)(5)(ii) and (e)(5)(iv) of this section;

(B) The nation's regulatory program is comparable to the regulatory program of the United States as described in paragraphs (a), (b), (c), (d)(2), and (f) of this section and the nation has incorporated into its regulatory program such additional prohibitions as the United States may apply to its own vessels within 180 days after the prohibition applies to U.S. vessels, except that provisions for identifying and removing problem operators, prohibiting sundown sets, and restricting the use of explosives described in paragraph (e)(5)(ii)(A)(1) of this section must be applied by a nation to its vessels by January 1, 1990;

(C) The data on marine mammal mortality and serious injury submitted by the harvesting nation are determined to be accurate;

(D) The observer coverage of fishing trips was equal to that achieved by the United States during the same time period or, if less, was determined by the Assistant Administrator to provide a sufficiently accurate sample of the nation's fleet mortality rate;

(E) For findings using data collected after 1988, the average kill-per-set rate for the longest period of time for which data are available, up to 5 consecutive

years, or for the most recent year, whichever is lower, is no more than 25 percent greater than the U.S. average for the same time period, after the U.S. mortality rate is weighted to account for dissimilar amounts of fishing effort between the two nations in the three ETP fishing areas and for common dolphin and other marine mammal species, except as provided in paragraph (e)(5)(v)(F) of this section for findings made in 1990;

(F) For determining comparability where there are fewer than five sets (including no effort) on dolphin by the U.S. fleet in a fishing area on a species grouping that has fishing effort by the foreign nation requesting a comparability test, the mortality rates used for comparability will be the overall (i.e., unweighted) kill-per-set rate of the U.S. fleet and of the foreign nation's fleet.

(G) For the 1989 fishing year and subsequent years, the nation's observed kill of eastern spinner dolphin (Stenella longirostris) and coastal spotted dolphin (Stenella attenuata) is no greater than 15 percent and 2 percent, respectively, of the nation's total annual observed dolphin mortality; and

(H) The nation has complied with all reasonable requests by the Assistant Administrator for cooperation in carrying out dolphin population assessments in the ETP.

(vi) Period of validity. A finding is valid only for the period for which it was issued and may be terminated before the end of the year if the Assistant Administrator finds that the nation no longer has a comparable regulatory program or kill rate.

(vii) Reconsideration of finding. The Assistant Administrator may reconsider a finding upon a request from and the submission of additional information by the harvesting nation, if the information indicates that the nation has met the requirements under paragraph (e)(5)(v) of this section. For a harvesting nation whose marine mammal mortality rate was found to exceed the acceptable levels prescribed in paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or (e)(5)(v)(G) of this section, the additional information must include data collected by an acceptable observer program, which must demonstrate that

mammal

the nation's fleet marine mortality rate improved to the acceptable level during the period submitted for comparison, which must include, at a minimum, the most recent:

(A) Twelve months of observer data if the species composition rate prescribed by paragraph (e)(5)(v)(G) of this section was not acceptable; or

(B) Six months of observer data if the average kill-per-set rate prescribed by paragraph (e)(5)(v)(E) of this section was not acceptable.

(viii) Application for finding for nonmarine-mammal intentional sets. The Assistant Administrator's determination on a nation's application for a finding will be announced and published in the FEDERAL REGISTER. A harvesting nation which has implemented a regulatory program that prohibits the intentional setting of any purse seine net to encircle marine mammals and desires an initial finding under these regulations that will allow it to import into the United States those products listed in paragraph (e)(2)(i) of this section must provide the Assistant Administrator with the following:

(A) Documentary evidence establishing that its regulatory program includes:

(1) A law prohibiting the intentional setting of purse seine nets on marine mammals (a copy of the law must be submitted);

(2) A requirement that a certificate from an observer be obtained within 30 days of the completion of each and every trip of the nation's purse seine vessels greater than 400 short tons (362.8 mt) carrying capacity, stating that the observer was aboard the vessel during the entire trip and that there were no intentional purse seine sets on marine mammals; and

(B) A complete list of the nation's vessels and any certified charter vessels of greater than 400 short tons (362.8 mt) carrying capacity which purse seine for yellowfin tuna in the ETP, indicating the status of each vessel (i.e., actively fishing in the ETP, in port for repairs, etc.), and a list of changes to this fleet within 30 days when changes

occur.

(ix) Application for renewal of finding for non-marine-mammal intentional sets. A harvesting nation, which has in ef