[Federal Register Volume 69, Number 221 (Wednesday, November 17, 2004)]
[Rules and Regulations]
[Pages 67268-67284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25523]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300 and 635
[Docket No. 040316092-4312-02; I.D.103003A]
RIN 0648-AQ37
International Fisheries; Atlantic Highly Migratory Species
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements international trade tracking
recommendations of the International Commission for the Conservation of
Atlantic Tunas (ICCAT) and the Inter-American Tropical Tuna Commission
(IATTC) for bluefin tuna, swordfish, and frozen bigeye tuna, regardless
of ocean area of origin. Trade monitoring requirements for species
covered under the recommendations and for southern bluefin tuna are
established by this rule, including: a highly migratory species (HMS)
international trade permit; statistical documents and re-export
certificates; and recordkeeping, reporting, and inspection
requirements.
DATES: Effective July 1, 2005.
ADDRESSES: Copies of the supporting documents, including the regulatory
impact review/final Regulatory Flexibility Act analysis (RIR/FRFA) and
the original ICCAT and IATTC recommendations, are available by sending
your request to Dianne Stephan, Highly Migratory Species Management
Division, NMFS, 1 Blackburn Drive, Gloucester, MA 01930.
Bluefin tuna, southern bluefin tuna, bigeye tuna, and swordfish
statistical documents, re-export certificates, and biweekly trade
reports may be obtained from:
Atlantic coast: NMFS, HMS, ATTN: Kathy Goldsmith, 1 Blackburn
Drive, Gloucester, MA 01930-2298;
Gulf coast: NMFS, National Seafood Inspection Laboratory, ATTN:
Lori Robinson, 705 Convent St, Pascagoula, MS 39568-1207;
West coast: NMFS, Southwest Region, Sustainable Fisheries Division,
ATTN:
[[Page 67269]]
Pat Donley, 501 West Ocean Blvd. Suite 4200, Long Beach, CA 90802-4213;
and,
Western Pacific: NMFS, Pacific Islands Regional Office, ATTN:
Raymond Clarke, 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-
4700.
FOR FURTHER INFORMATION CONTACT: Dianne Stephan (Atlantic coast), 978-
281-9397; Raymond Clarke (Western Pacific), 808-973-2935; Lori Robinson
(Gulf coast), 228-769-8964; or Patricia J. Donley (West coast), 562-
980-4033.
SUPPLEMENTARY INFORMATION:
Background
The proposed rule for this action (69 FR 16211, March 29, 2004)
provided substantial background information which has been summarized
as follows.
The United States is authorized under the Atlantic Tunas Convention
Act (ATCA; 16 U.S.C. 971(d)(3)) to promulgate regulations as necessary
and appropriate to implement conservation and management
recommendations that have been adopted by the International Commission
for the Conservation of Atlantic Tuna (ICCAT). Likewise, the Tuna
Conventions Act (TCA; 16 U.S.C. 955) authorizes rulemaking to carry out
recommendations of the Inter-American Tropical Tuna Commission (IATTC).
ICCAT has determined that Atlantic stocks of bigeye tuna (Thunnus
obesus), bluefin tuna (Thunnus thynnus), and swordfish (Xiphias
gladius) are overfished in the Atlantic Ocean. Large scale longline
vessels from ICCAT member and non-member nations alike have been
reported to operate in a manner that diminishes the effectiveness of
previously-implemented ICCAT measures designed, in part, to prevent
overfishing and rebuild stocks of these species. At its 2000 meeting,
ICCAT recommended the implementation of trade monitoring programs which
would address illegal, unreported and unregulated (IUU) catches in the
Convention Area. During 2001, programs for bigeye tuna (frozen) and
swordfish statistical documents and re-export certificates were
officially adopted. In addition, a recommendation to add a re-export
certificate to the bluefin tuna program was adopted by ICCAT in 1997.
ICCAT member nations are now required to implement these
recommendations. As with ICCAT's previously-required bluefin tuna
statistical document program, Pacific stocks are also included in order
to establish an enforceable program. In addition, IATTC member nations
are implementing a Pacific area program based on a 2003 IATTC
resolution for a frozen Pacific bigeye tuna statistical document
program. The Commission for the Conservation and Management of HMS
stocks in the Western and Central Pacific Ocean (WCPFC) may consider a
similar measure for frozen bigeye tuna.
NMFS is creating an international trade monitoring program for
bigeye tuna (frozen) and swordfish to comply with recommendations from
ICCAT and IATTC. A statistical document program for southern bluefin
tuna is also being established to improve compliance with the
previously implemented ICCAT bluefin tuna statistical document program.
Southern bluefin tuna (Thunnus maccoyii) are virtually
indistinguishable from bluefin tuna and Pacific bluefin tuna (Thunnus
orientalis). Currently, it is possible for bluefin tuna or Pacific
bluefin tuna to be mislabeled as southern bluefin to circumvent
statistical document reporting requirements. This confounds the
established trade tracking program. Moreover, the Commission for the
Conservation of Southern Bluefin Tuna (CCSBT) has requested that the
United States take part in its statistical document program to further
conservation efforts for this species.
Provisions of the Final Rule
This rule requires that importers and exporters of bluefin tuna,
southern bluefin tuna, swordfish and frozen bigeye tuna obtain a HMS
International Trade Permit (ITP) on an annual basis. Only those
importers who are entering product for consumption need to have an ITP.
Permit holders are required to comply with documentation,
reporting, recordkeeping, and inspection requirements including the
preparation of a species-specific statistical document or re-export
certificate to accompany export or re-export shipments of southern
bluefin tuna, frozen bigeye tuna, and swordfish. Re-export certificates
are also required for re-exports of bluefin tuna. Statistical documents
for exports and re-export certificates must be validated by NMFS or a
NMFS-authorized official, and a copy of each document must be provided
to NMFS. Likewise, all imports of swordfish, southern bluefin tuna, and
frozen bigeye tuna must be accompanied by a validated statistical
document or re-export certificate. For those imports entered for
consumption, the original statistical document for each shipment must
be submitted to NMFS once the shipment reaches its final destination.
Each permit holder must prepare and submit a biweekly activity report
to NMFS.
The final rule provides for certain exemptions to its requirements.
First, trade documentation in this rule does not apply to frozen bigeye
tuna caught by purse seiners or baitboats and destined principally for
canneries of the United States or a U.S. insular possession. Second,
re-export certificates are not required for re-export shipments that
have not been consolidated or subdivided, and for which the shipment
contents remain true to the information on the original statistical
document. In addition, validation is not required for re-exports that
do not require a re-export certificate. Third, importers of entries
other than entries for consumption (e.g., shipments on a through bill
of lading, destined from one foreign country to another) are not
required to obtain the HMS ITP and are not subject to the reporting
requirements. However, these shipments are subject to the documentation
requirements, and must be accompanied by a correctly completed,
validated statistical document. Fourth, trade-tracking documentation is
not required for shipments between the United States and U.S. insular
possessions.
Documentation, reporting, recordkeeping, and inspection
requirements that were previously in effect for import and export of
bluefin tuna remain in effect; however, NMFS has moved the relevant
regulatory text from 50 CFR. 635.41 through 635.43 to 50 CFR 300.183
through 300.189 and consolidated it with regulatory text implementing
trade tracking requirements for the other species covered by this rule.
In addition, the statistical document for swordfish implemented by this
rule will replace the swordfish certificate of eligibility. Upon
implementation of this rule, the certificate of eligibility will no
longer be required. This final rule also corrects several cross-
references in 50 CFR parts 300 and 635.
Implementation Date
NMFS recognizes that the implementation of a new permit program
must be accompanied by a period of outreach to affected constituents.
In addition, NMFS is initiating an electronic permitting and reporting
system for the HMS ITP. Therefore, to provide for sufficient time for
implementation and outreach, this final rule will go into effect on
July 1, 2005.
Changes from the Proposed Rule
As reflected in the Comments and Responses below, several
commenters raised concerns regarding the burden and costs of this trade
tracking program. In response to public comments, NMFS
[[Page 67270]]
has made clarifications to the final rule to minimize its potential
impact to the extent practicable, consistent with regional fishery
management organization (RFMO) recommendations. With regard to imports,
the final rule provides that not all imports are subject to reporting
requirements, and limits reporting requirements to those shipments that
are entered for consumption. To make this narrower requirement clear,
the final rule adds definitions for ``entry for consumption,''
``entered for consumption,'' ``entry number,'' and ``exportation,'' and
refines the definitions of ``import'' and ``export'' to be more
consistent with U.S. Customs and Border Protection (CBP; 19 CFR parts
101, 141, 144, and 146) and U.S. Census Bureau (15 CFR part 30)
regulations. As in the proposed rule, the final rule continues to
require documentation for all imports of products identified in Sec.
300.184 into the Customs territory of the United States. Such imports
must be accompanied by validated statistical documents and are subject
to inspection by authorized NMFS personnel. The final rule excludes
this requirement for insular possessions with customs territories
separate from the Customs territory of the United States. Such entities
may make individual determinations regarding the need for documentation
of entries other than entries for consumption. A definition for
``separate customs territory of a U.S. insular possession'' was added
to improve the clarity of these provisions.
The final rule clarifies the definitions of ``importer'' and
``exporter'' to specify that the party responsible for obtaining the
HMS ITP and fulfilling the reporting requirements is the consignee for
imports and the U.S. principal party in interest (USPPI) for exports.
Currently, for importers in the United States, the consignee is
identified on CBP Forms 7512, 3461, and 7501 or on the electronic
Automated Commercial System (ACS). Exporters are identified as the
USPPI on the Shippers Export Declaration (SED) and in the Automated
Export System (AES), and as the ``exporter'' on the Canada Customs
Invoice. Documentation and reporting requirements of this rule apply to
all exports described in Sec. 300.185(b), regardless of whether those
shipments are exempt from SED and AES documentation and reporting
requirements. Additionally, customs brokers or freight forwarders may
obtain a HMS ITP or submit documentation for the consignee or USPPI;
however, the individual identified as the importer or exporter, as
defined in the rule, are the parties legally responsible for the
permitting, documentation, reporting, and recordkeeping requirements of
this rule.
While the proposed rule required the HMS ITP for all importers, the
final rule clarifies that the permit is only required for importers who
enter for consumption products regulated by this rule. Although not all
importers are required to have a HMS ITP, section 300.185(e) clarifies
that anyone responsible for importing, exporting, storing, packing, or
selling fish or fish products regulated under this subpart, in addition
to HMS ITP holders, is subject to the inspection provisions at '
300.183(d).
The final rule clarifies the documentation requirements for re-
exports (i.e., product that is entered for consumption then
subsequently exported). If a shipment entered for consumption remains
true to the contents listed on the original statistical document, then,
upon re-export, the importers certification on the statistical document
is completed in lieu of a re-export certificate. If the shipment is
subdivided or consolidated, then a re-export certificate identifying
the complete contents of the shipment must be completed and validated
for each re-export shipment. The original or a copy of the original
statistical document must be attached to each re-export certificate.
The final rule adds a new paragraph under ' 300.185(b) which
clarifies that the export documentation and reporting requirements of
that paragraph apply to exports of fish or fish products that were
harvested by U.S. vessels and first landed in the United States, or
harvested by vessels of a U.S. insular possession. Thus, these export
provisions would not be required for tuna transshipments in the customs
territory of Guam.
The final rule clarifies the applicability of the trade monitoring
program to products of an American fishery landed overseas. When such
products are shipped from a foreign port and entered into the United
States under heading 9815 of the Harmonized Tariff Schedule of the
United States (HTS), the trade monitoring requirements in this rule for
imports into the United States do not apply. However, if such products
are so entered into the United States and then exported, trade
monitoring requirements would apply for the export of the product from
the United States. Likewise, if products from an American fishery
landed overseas were exported directly from a foreign nation to another
foreign nation, the trade monitoring program requirements would apply.
For such transactions, NMFS should be contacted for assistance with
documentation and validation requirements.
To improve clarity, the final rule removes the definition of
``foreign trade dealer'' and adds additional clarification regarding
the use of statistical documents and re-export certificates by foreign
businesses at Sec. 300.186(h). Further, minor revisions to improve
clarity and consistency in the regulatory text include replacing the
term ``dealer'' with ``permit holder,'' ``dealer permit'' with ``trade
permit,'' and ``international commission'' with ``regional fishery
management organization (RFMO).'' The final rule clarifies that other
government agencies may be authorized to provide validation services.
The final rule also corrects cross-references in Sec. Sec. 635.20 and
635.31; adjusts the definitions of ``import,'' ``export,''
``importer,'' and ``exporter'' in Sec. 635.2 to be consistent with
Sec. 300.182 and CBP and Census Bureau regulations, adds a definition
for ``exportation,'' and removes the definition of ``Swordfish
Certificate of Eligibility (COE)'' from Sec. 635.2.
Comments and Responses
Scope
Comment 1: Supporting and opposing comments were received for the
proposal to include fresh bigeye tuna in the statistical document
program. Commenters that opposed including fresh bigeye tuna in the
program stated the following: that they primarily deal in fresh bigeye
tuna; that a fresh bigeye tuna program should be delayed until the
statistical document program for frozen bigeye tuna has been
implemented and evaluated to determine whether including fresh bigeye
tuna is necessary; and that including fresh bigeye tuna would be more
expensive than a program solely for frozen bigeye tuna. Commenters that
supported including fresh bigeye tuna in the program stated that it
would be less confusing to implement a comprehensive bigeye tuna trade
program from the onset. Another commenter suggested including fresh
bigeye tuna after a defined time period. One commenter requested that
all fresh products be exempted, and another commenter noted that the
rationale for including bigeye tuna in the proposed rule was unclear.
Response: The trade monitoring program in the final rule does not
include fresh bigeye tuna. Current ICCAT and IATTC recommendations
apply only to frozen bigeye tuna, because both organizations recognize
that numerous implementation issues
[[Page 67271]]
require resolution prior to the establishment of a statistical document
program for fresh bigeye tuna. For the sake of comprehensiveness, NMFS
requested comment on the inclusion of fresh bigeye tuna to inform the
public of potential future actions by ICCAT, IATTC, or other RFMO, and
to identify public concerns. A similar approach was taken in the 1993
ICCAT recommendation for a bluefin tuna statistical document program.
After implementation issues regarding the trade of fresh bluefin tuna
had been further discussed and resolved, ICCAT adopted a recommendation
extending the program to include fresh product the following year.
Since NMFS implemented a certificate of eligibility (COE) for fresh and
frozen swordfish imports in 1999, and U.S. export of swordfish and
trade of southern bluefin tuna is limited, NMFS does not anticipate
implementation issues for fresh products other than bigeye tuna. The
new statistical document program applies to fresh and frozen swordfish
and southern bluefin tuna and frozen bigeye tuna, and will replace the
swordfish COE.
Comment 2: Several commenters supported implementing statistical
document programs for all the species identified in the proposed rule,
and one noted that the proposed approach of including similar species
from all ocean areas is a critical factor in providing complete and
comprehensive data for this program.
Response: The final rule establishes a trade monitoring program for
fresh and frozen swordfish, southern bluefin tuna, and frozen bigeye
tuna from all ocean areas. Swordfish and frozen bigeye tuna are
included in the program in direct response to ICCAT and IATTC
recommendations. Southern bluefin tuna is included to ensure the
effectiveness of the program by eliminating potential mislabeling and
to support the Commission for the Conservation of Southern Bluefin
Tuna's (CCSBT) statistical document program. These fish from all ocean
areas are included to ensure effective implementation of the RFMO
recommendations since each species is geographically indistinguishable
and similar species can be difficult to discern based on external
examination.
Comment 3: One commenter congratulated NMFS for developing a
comprehensive approach to enhance the tracking of HMS from all ocean
areas and to promote the international objective of eliminating
illegal, unregulated, and unreported (IUU) fishing.
Response: International statistical document programs have been
effectively employed to reduce IUU fishing, which is an important goal
of RFMOs such as ICCAT and IATTC. Although these programs place an
administrative burden on U.S. businesses, the success of these programs
will benefit the future of the impacted stocks as well as the
businesses that rely on those resources. NMFS appreciates the
cooperation of all U.S. businesses affected by this final rule, and
will continue to work to minimize the impact of reporting requirements
while implementing an effective trade monitoring program.
Comment 4: A commenter expressed concern that some of these
requirements might be passed on to vessel owners, and asked how this
rule might impact vessel owners. The commenter also asked whether the
statistical document program could negatively affect future quota
allocations.
Response: The permitting and reporting requirements apply in
general to businesses involved in international trade of HMS species.
Vessel owners who also export or import HMS species would need to
comply with requirements specified in the rule. Quota allocations are
determined after extensive deliberations using numerous sources of data
and public input. It is premature to speculate what impact, if any, a
statistical document program could have on future quota allocations.
None the less, experience has shown that more data and information
proves to be of greater benefit in determining the equitable size and
allocation of quotas as opposed to less or limited data.
Economic Impacts and Reporting Burden
Comment 5: Several commenters expressed concern over the potential
impact of validation on product quality and export opportunities.
Commenters noted that travelling to reach a government office for
validation could be time consuming, and that export and re-export
shipments could be delayed since government validation has not been
available on a 24 hour/7 days per week basis for similar programs. In
particular, numerous commenters expressed concern about the effect of
the validation requirement on airfreight exports, which is of special
concern for island businesses that rely upon limited air transportation
schedules. Commenters stated that validation should be expedient and
efficient so as not to interfere with meeting limited and inflexible
airfreight schedules, and that it should be inexpensive or free.
Several commenters suggested options for meeting the proposed
validation requirements, including: validation of exports after they
are shipped; on-line validation; use of a HACCP (hazard analysis and
critical control point) type of program where exporters validate their
own shipments; annual issuance of dealer validation authority similar
to the process for shellfish validation with monthly renewal unless the
validating official failed a spot-check inspection; use of a domestic
smart tag program that could include barcodes and computer radio tags
with processing and temperature data; and having a government officer
stationed at each U.S. Customs and Border Patrol (CBP) port 7 days per
week to provide validation services. A commenter stated that there is a
need to balance the need for third-party validation and the credibility
of the program data carefully, and that a continuous review of
compliance and data accuracy would strengthen program credibility.
Response: Government or government-authorized validation is
required to ensure that the trade of covered species includes explicit
government involvement, so that nations are able to accurately report
trade activity to RFMOs. In order to address validation time and dollar
cost concerns, statistical documents and re-export certificates may be
validated by either NMFS or another entity authorized by NMFS. A non-
government organization (e.g., industry group) or other government
agency may obtain authorization to validate documents, at no cost, from
NMFS by submitting a written description of the procedures to be used
for verification of information to be validated, a list of names
addresses, and telephone/fax numbers of individuals to perform
validation, and an example of the stamp or seal to be used. NMFS must
respond within 30 days, and if approved by NMFS, the authorization
would take effect after the relevant RFMOs are notified. NMFS
appreciates and fully considered the comments that were provided in
efforts to produce a validation system that is both cost-efficient and
effective. In this rule, NMFS has attempted to minimize costs to the
industry and government associated with validation while fulfilling the
requirements of the RFMOs' recommendations. Implementation of the
regulatory requirements in this final rule will provide further
opportunities for collaboration with interested parties to develop a
program that is both efficient for all parties involved and provides
the required trade data.
Comment 6: A number of commenters stated that the proposed
reporting
[[Page 67272]]
requirements would negatively impact their businesses. One commenter
stated that he had discontinued shipments of frozen bigeye tuna to
Japan because of the reporting burden that had recently been required
by Japan and is being proposed in this rule. Another commenter stated
that it will be infeasible for his business to export swordfish for the
same reason. A commenter stated that additional staff would be required
for his business to fulfill the proposed reporting requirements. A
commenter noted that the current fiscal climate within the industry
made this a particularly bad time to impose costly reporting
requirements. A commenter stated that any financial burden associated
with this rule should be on the Federal government. Several commenters
stated that the proposed reporting requirements were inevitable and not
of concern.
Response: NMFS' intent with this final rule is to meet the mandated
requirements while providing continued opportunities for trade of the
covered species with the minimum required reporting burden. The use of
statistical documents and re-export certificates (including document
validation) for international trade of bluefin tuna, bigeye tuna, and
swordfish are explicitly required by RFMOs such as ICCAT and IATTC.
This final rule is intended to facilitate trade of the covered species,
particularly to other RFMO member nations. Without this program, U.S.
trade could be severely limited, which would negatively impact U.S.
businesses.
NMFS made a number of clarifications to the final rule with the
intent, in part, to reduce reporting burden in response to public
comments. Permitting, documentation, reporting and recordkeeping
requirements for bigeye tuna are limited to frozen products in the
final rule rather than fresh and frozen products as indicated in the
proposed rule. Permitting, reporting, and recordkeeping requirements
for imports are reduced to apply only to entries for consumption rather
than all imports. In addition, re-export certificates and subsequent
validation in the final rule are only required for re-exports of
products that have either been split or consolidated for re-export.
NMFS also recognizes that during the initial start-up period, dollar
and time costs for industry implementation of the rule will be slightly
higher, and NMFS included a protracted implementation date for
effectiveness of the final rule in part to help address this issue. The
extended implementation date will provide time for authorization of
entities to provide validation and for all affected businesses to
adjust their business processes and incorporate the documentation,
reporting, and recordkeeping requirements in the most efficient manner.
NMFS also intends to design the implementation program to minimize
associated reporting costs.
Comment 7: A commenter stated that the IRFA understates time and
cost burdens associated with the action, and that the impact of the
reporting requirements on some participants has not been analyzed. The
commenter stated that the supporting documentation fails to assess the
cost of private vendors for validation, or the impact of a lack of
timely validations on Pacific exporters, and that the use of biweekly
reports is contrary to the Paperwork Reduction Act.
Response: NMFS estimated the time and cost burden associated with
the rule based on costs associated with similar programs including the
bluefin tuna statistical document program and the swordfish import
monitoring program. Both of these programs require dealer permits and
reporting similar to those included in this program. For example, the
cost of the options available for validation are assessed relative to
the programs that are currently in place, which do not include a fee
for use of an authorized validation service. Exact estimates of numbers
of transactions (particularly exports) are difficult to ascertain prior
to implementation of this rule, although existing Census Bureau export
data and U.S. Customs and Border Protection import data help provide
estimates of magnitude for and number of shipments over recent years.
Overall burden estimates associated with these regulations are expected
to be an overestimate, given that the calculations included fresh
bigeye tuna which has been excluded in the final rule. In addition, the
reduction of reporting requirements to apply only to consumption
entries, and limiting of re-export documentation requirements as
indicated in the previous response, are also expected to reduce
reporting burden. Each reporting requirement implemented by this rule
was assessed by the U.S. Office of Management and Budget (OMB) for
compliance with the Paperwork Reduction Act. A 60-day public comment
period was provided (February 12, 2003, 68 FR 7107; March 12, 2003, 68
FR 11809) and the impact of the reporting burden was analyzed and
provided in the supporting documents for the proposed rule (March 29,
2004, 69 FR 16211). OMB approved implementation of the permitting and
reporting requirements on July 1, 2004, and June 25, 2004,
respectively. In addition, as discussed under a previous response, this
final rule allows for the authorization of non-government or other
government entities to provide validation services in order to provide
flexibility for industry operations. These potential impacts are
expected to be minimal once businesses have incorporated the
requirements into their business processes, and slightly higher during
the start-up phase of implementation.
Program Implementation
Comment 8: Commenters asked several questions relative to the
proposed HMS ITP, including when the permit would go into effect, how
much it would cost, whether the permit would need to be purchased
annually, and under which circumstances it would be required. Several
commenters noted that it is unclear who the responsible party would be
for preparing and submitting the proposed reporting documentation. A
commenter asked whether customs brokers could sign statistical
documents. Several commenters requested that electronic reporting be
available, and that documents and instructions be provided on an
internet website. A commenter requested that an appropriate level of
outreach to Caribbean fish dealers be implemented regarding the
proposed permitting and reporting requirements, and that a calendar
renewal date for the proposed permit be implemented in order to help
facilitate reminder notices from the agency and trade associations.
Response: The final rule provides for an extended implementation
period for the permitting, documentation, reporting, and recordkeeping
requirements which will go into effect on July 1, 2005. The preferred
approach, currently in the design phase, is to use electronic
permitting and reporting processes on the internet, as much as
possible, to minimize the reporting burden. Some specific details,
including how much a permit will cost, how a permit can be obtained,
and where reports will be submitted will be determined during
development of the implementation plan (note that the estimate of a
permit cost used in calculations of public reporting burden under the
Paperwork Reduction Act was $100 based on similar NMFS programs). The
HMS ITP must be obtained by individuals or businesses that are
classified as the consignee as identified on documentation required by
CBP for entries for consumption, or the U.S. principal party in
interest for shipment export. An agent such as a customs broker or
freight forwarder may obtain
[[Page 67273]]
an HMS ITP and submit required documentation. Alternatively, an agent
may act on behalf of a permit holder; however, the importer or
exporter, as defined in the rule, is the party legally responsible for
the documentation, reporting, and recordkeeping requirements of this
rule.
NMFS will provide educational information to dealers currently
permitted by NMFS for purchase or trade of tunas and swordfish, and
will work with states, commonwealths, and governments of insular
possessions to provide information to other interested parties
regarding implementation requirements and procedures. It is intended
that the HMS ITP be obtained annually on a calendar year basis, and
expire each year on December 31.
Comment 9: Several commenters noted that some of the information
proposed to be collected under this rule is already collected by other
agencies including NMFS, FDA, CBP, U.S. Census Bureau, and the
government of Guam. Commenters requested that NMFS coordinate both
interagency and intra-agency and that the reporting burden on impacted
businesses be reduced.
Response: NMFS continues to coordinate both internally and with
other government agencies to eliminate unnecessary duplication of
reporting by individuals affected by this final rule. The use of
statistical documents and re-export certificates (including document
validation) for international trade of bluefin tuna, bigeye tuna, and
swordfish is explicitly required by ICCAT and IATTC. Without the
requirements implemented under this final rule, international trade of
these species, particularly exports to other RFMO member nations, could
be negatively impacted. NMFS' intent with this final rule is to provide
continuing opportunities for trade of the covered species with the
minimum required reporting burden. As noted in the response to Comment
7, NMFS modified the final rule to reduce the reporting burden as much
as possible.
Comment 10: Several commenters requested that biweekly reports only
be required during reporting periods with activity while one commenter
requested that negative reporting be implemented. A commenter suggested
that the average weight of individual fish be used for reporting bulk
shipments of bigeye tuna on the biweekly reporting form, and another
commenter requested that individual weights be used for swordfish.
Response: NMFS will not require negative biweekly reporting. In
several NMFS programs, negative reporting is used to verify whether the
absence of information for a reporting period is the result of a
missing report or inactivity. However, in this program, NMFS has
several options for verifying reporting data, including comparison of
CBP's entry data and comparison of statistical document data from other
member nations. Based on responses from dealers that have participated
in the swordfish import program and in an effort to minimize reporting
burden, NMFS determined that negative reporting was not necessary for
satisfactory implementation of this program. Some specific details,
including how to record the weight of fish on individual forms, will be
determined during the development of the implementation plan.
Comment 11: A commenter noted that each member country of IATTC and
ICCAT is implementing a statistical document program, and asked whether
the United States might be able to learn from the way other countries
were implementing their programs.
Response: Sharing of ideas and approaches to fishery management
challenges among member nations is an essential underpinning of the
RFMO process. The United States has met with other nations to discuss
implementation issues such as harmonizing different reporting forms and
providing data in consistent electronic formats, and continues to
welcome the opportunity to discuss program objectives and
implementation strategies at annual RFMO meetings as well as interim
meetings with delegates of other nations.
Comment 12: Several commenters suggested that the statistical
documents be modified so that one form addressed all species.
Response: ICCAT convened an international meeting of technical
experts in 2001 to consider and resolve technical issues related to the
implementation of the recommended swordfish and bigeye tuna statistical
document programs. At that meeting, the United States proposed a
single, harmonized document to track bluefin tuna, bigeye tuna, and
swordfish trade. Although this proposal was consistent with ICCAT's
directive to endeavor to harmonize all statistical documents under its
purview, it was rejected by the technical experts due to differences in
trade patterns and practices relative to the three species, and
potential impacts to the effectiveness of the current bluefin tuna
statistical document program if it was altered to include additional
species. As a result, ICCAT developed separate species-specific forms
for bigeye tuna and swordfish. Harmonizing these individual forms is a
long-term goal of NMFS.
Comment 13: A commenter asked how shipments of more than one
species would be addressed. Another commenter asked whether statistical
documents would be required at entry into the customs territory of the
United States.
Response: The final rule requires that species-specific statistical
documents accompany imports into the United States of fresh or frozen
swordfish, frozen bigeye tuna, and fresh or frozen Southern bluefin
tuna shipments and that documentation be available at the time of
entry. If a shipment contains more than one species, then a species
specific statistical document would be required for each covered
species in the shipment.
Comment 14: A commenter stated that dealers should be required to
keep records for seven years rather than two years.
Response: Dealers are required to keep submitted and supporting
records for a period of two years. This information must be made
available to authorized personnel upon request. The two year timeframe
establishes a balance between the burden on dealers and the
recordkeeping, reporting, and the data collection needs of the agency.
Comment 15: A commenter noted that non-participating nations could
have trouble exporting covered species into the United States. For
example, shipments from nations with unstable or disorganized
governments could be delayed because of the government validation
clause in the proposed rule. A commenter requested that statistical
documents and instructions be easily accessible for exporters from
other nations.
Response: Nations that are members of ICCAT, IATTC, IOTC, and/or
the CCSBT will be familiar with statistical document programs, and are
expected to have the infrastructure to support the necessary reporting
requirements. Nations or businesses of nations that are not members of
an RFMO can contact the appropriate RFMO for approved statistical
documents and validation requirements. The required statistical
documents are currently accessible on the websites of the RFMOs
(iccat.es; iattc.org; ccsbt.org; iotc.org).
Guam Transshipments
Comment 16: Numerous commenters questioned the applicability of the
proposed statistical document programs to Guam's transshipment industry
in which foreign flag longline vessels land fresh product on Guam that
is graded, packaged and shipped by air to that
[[Page 67274]]
vessels' country of origin or a foreign nation. A commenter stated that
Guam has few opportunities for economic development and that the
transshipment industry has helped the local economy. A commenter noted
that it is important to be certain that Guam shipments are ultimately
accepted in Japan, and another commenter stated that Guam agents should
not be responsible for submitting the proposed documentation.
Response: The trade monitoring program established by the final
rule will not apply to HMS transshipped through Guam from one foreign
nation to another, including transshipments landed on Guam by foreign
vessels. However, any covered HMS landed in Guam by foreign vessels and
entered into the customs territory of Guam for consumption (e.g., sold
in Guam's domestic market) would be subject to these regulations. As
defined in the final rule, a transshipment is not considered an entry
for consumption into the customs territory of Guam and does not require
a U.S. statistical document or re-export certificate. However, any
importing nation, such as Japan, may require that transshipments be
accompanied by statistical documents from the appropriate nation. As
indicated in the RFMO recommendations, statistical documents must be
validated by the country of the vessel that landed the fish, therefore,
the statistical document would originate and be validated by the flag
nation of the vessel landing the fish in Guam. Guam is a separate
customs territory from the customs territory of the United States with
its own customs regulations. NMFS will continue to work with the
Government of Guam to determine appropriate implementation of the
requirements of this rule.
Regulatory Process
Comment 17: Several commenters expressed concern about the
completeness of the regulatory measures in the proposed rule, noting a
need for clarification in the process to be used for validation and the
definition of a dealer. A commenter stated that the public should be
able to comment again once these measures were further clarified.
Response: In response to public comments, NMFS made several
clarifications to the final rule, including a number of changes which
reduced the reporting burden (see previous responses regarding
reporting burden). Since many of the changes provide clarification of
terms and concepts used in the original rulemaking rather than new rule
provisions, it is not necessary to again solicit public comment.
Specific details of program implementation, for example, the addresses
to which reports must be submitted and the cost of the permit (which
will be based on the overall cost of the program) will be determined
during the implementation period and are not required to be codified in
regulatory text. The extended period of implementation will allow
adjustments as specific details and processes of the program are
developed.
Comment 18: A commenter stated that the IRFA should have included
the following: management objective and underlying rationale;
alternatives such as using the council process, exempting fresh fish,
reducing redundant requirements, or including catches from purse seine
vessels. A commenter requested that the supporting documentation be
expanded to address the offloading of IUU frozen fish in Japan. Another
commenter asked whether an analysis of alternatives to this rule was
prepared.
Response: A combined RIR/ IRFA was prepared for this rulemaking,
which analyzed a number of alternatives to the proposed rule and
supported these analyses with a description of the management
objective, statement of the problem, and description of the fisheries
in addition to other information. One of the requirements of an IRFA is
to describe any alternatives to the final rule which accomplish the
stated objectives and which minimize any significant economic impacts.
The alternatives suggested by the commenter either did not meet the
objectives of the rulemaking or did not minimize impacts on affected
constituents. Since the purpose of the rulemaking is to establish
programs under international agreement, NMFS coordinated with regional
fishery management councils and provided opportunities for public
comment. NMFS carefully analyzed the alternatives and the potential
impact of each alternative when selecting the preferred alternative and
final action. The selected alternative is the alternative that reduced
the complexity of the reporting requirements without compromising the
effectiveness of the trade monitoring program. The final action does
not include permitting or reporting requirements for fresh bigeye tuna.
Ports of Entry
Comment 19: Many commenters stated that limiting trade to certain
ports of entry could have a tremendous economic impact on local
industries. A number of commenters requested that all Hawaii ports
remain open. A commenter stated that ports of entry should be chosen
through a proposed rule process rather than being designated by the
Assistant Administrator for Fisheries. Another commenter suggested that
ports of entry be considered separately through the fishery management
council process.
Response: This rule does not limit trade to any ports. Should
designation of entry ports be necessary to further facilitate
enforcement or administrative procedures, NMFS intends to use a
rulemaking process in order to facilitate public participation
consistent with the Administrative Procedures Act.
Enforcement
Comment 20: A number of commenters raised enforcement issues, and
noted that a fee structure and an appeal process for violations were
not included in the proposed rule. One commenter stated that NMFS
enforcement has been inconsistent in what it chooses to enforce.
Another commenter requested that more funding be provided for
enforcement. A commenter requested that a 90-day trial period be
instituted before regulations are enforced.
Response: NOAA's Civil Procedure regulations, which can be found at
15 CFR part 904, include the procedures for contesting Notices of
Violation and Assessment (NOVAs). Maximum civil penalty amounts are
established by statute; the penalty in any particular case is assessed
at the discretion of the prosecuting attorney from the Office of
General Counsel for Enforcement and Litigation, after consulting NOAA's
civil administrative penalty schedule. Consideration is given to many
factors including, but not limited to, respondent's ability to pay, the
severity of the violation based on its impact on the resource, and
whether or not the respondent has prior violations. While enforcement
priorities exist, and may vary by region, National Marine Fisheries
Service Office for Law Enforcement is committed to a comprehensive
program of enforcing all of the statutes administered by NOAA. Funding
for enforcement of these, and any regulations, is by statutory
appropriation. All regulations are enforceable as of their effective
date.
Other Comments
Comment 21: Several commenters stated that purse seiners should not
be exempt from the proposed rule, noting that the rationale for
exemption in the proposed rule was unclear and that the United States
should oppose the exemptions identified in the ICCAT recommendation,
unless mandatory
[[Page 67275]]
observer coverage is implemented to determine the amount of tuna
harvested by these fisheries.
Response: Both the ICCAT and IATTC recommendations provide
exemptions for purse seine and baitboat catches bound for canneries.
The RFMOs have determined that the tuna landings and catch data
collected by canneries is adequate for the purposes of these
recommendations.
Comment 22: Several commenters perceived that U.S. fishermen were
subject to greater restrictions and reporting requirements than
fishermen from other nations.
Response: NMFS recognizes that reporting of HMS by fishing nations
has been variable throughout the world's oceans and that the standards
applied to U.S. fishermen are often considered to be a benchmark for
responsible fishing. The United States continues to work actively with
respective RFMOs to provide leadership and support to conserve and
manage HMS in the Atlantic, Pacific, and Indian Oceans.
Comment 23: A commenter asked whether bluefin tuna that are caught
off the United States and sent to Mexico for cage culture were affected
by this proposed rule. Another commenter asked whether the proposed
rule applies to farmed bluefin tuna.
Response: This final rule includes a provision for a bluefin tuna
re-export certificate which must accompany re-exported shipments of
bluefin tuna regardless of whether they have been farmed or raised in
cage culture. In addition, the previously implemented ICCAT bluefin
tuna statistical document program would also apply to farmed bluefin
tuna.
Comment 24: One commenter requested that commercial fishing vessels
of fishermen that violate quotas be seized.
Response: This rule regulates the trade of swordfish, bigeye tuna,
southern bluefin tuna and bluefin tuna and addresses HMS dealers, not
vessels.
Comment 25: A commenter requested that the final regulations stress
application to all products ``in any form'' rather than relying on
harmonized tariff schedule (HTS) codes.
Response: The final rule applies to all products of the covered
species (including chunks, fillets, and airtight containers) except
fish parts other than meat (e.g., heads, eyes, roe, guts, and tails).
The rule also identifies products by description in conjunction with
currently available HTS codes.
Classification
This final rule is published under the authority of the ATCA, 16
U.S.C. 971 et seq., the Magnuson-Stevens Fishery Management and
Conservation Act (16 U.S.C. 1801 et seq.) and the TCA (16 U.S.C. 955 et
seq.). The AA has determined that this final rule is necessary to
implement the recommendations of ICCAT and IATTC and is necessary for
the management of bluefin tuna, bigeye tuna and swordfish.
NMFS has prepared a RIR/FRFA that examines the impacts of the
alternatives for implementing the ICCAT and IATTC recommendations for
international trade monitoring programs. The objectives of the final
rule, its legal basis, and reasons for its implementation are
summarized in this preamble and are also set forth in the Summary and
Supplementary Information sections of the preamble to the proposed
rule. The final rule would affect approximately 1,890 (930 foreign and
960 domestic) seafood businesses that participate in international
trade of swordfish, bluefin tuna, southern bluefin tuna and bigeye
tuna, all of which are considered small entities. Impacts to businesses
would occur in two areas - permitting and reporting (reporting includes
documentation and recordkeeping). NMFS expects only minor negative
economic impacts from the final rule because the regulatory measures
only involve adjusting permitting and reporting requirements. The
following paragraphs describe the alternatives considered, compare the
potential permitting and reporting impacts of each alternative, and
explain why NMFS selected the final action and rejected the other
alternatives.
The no action/status quo alternative (alternative 2) would make no
changes to current programs. The remaining three alternatives would
implement the recommended trade programs for swordfish, bigeye tuna,
and bluefin tuna. The final action (alternative 1) and alternative 4
would implement the recordkeeping requirements by linking them to the
HMS international dealer trade permit. The final action differs from
alternative 4 by requiring trade monitoring for southern bluefin tuna
in addition to the other species, in order to facilitate program
effectiveness, whereas alternative 4 would not require the use of
southern bluefin tuna statistical documents or require a trade permit
for trading in southern bluefin tuna. Alternative 3 would implement the
trade program by building onto existing dealer permits (e.g., expanding
the Atlantic tunas dealer permit to include trade of frozen bigeye
tuna) and associated recordkeeping requirements rather than
implementing a new, separate permit for international trade. Overall,
the immediate costs associated with the final action and alternatives 3
and 4 are expected to be greater than for alternative 2 (no action);
however, access to international markets could be reduced under the
status quo, which is expected to have much greater negative economic
impacts in the long term.
The initial cost of obtaining the permit for each U.S. business
under the final action and alternative 4 is expected to be $100 plus
the time to fill out the form and the cost of postage, which would be
approximately $2. NMFS expects this amount to be a minor negative
impact for the affected businesses. The permit-associated cost for the
final action and alternative 4 differs from building onto existing
systems (alternative 3) in an amount between $0 to $100 per business,
depending upon the other permits held by the business. Under
alternative 3, if the business were required to have an Atlantic or
Pacific tuna permit to trade in bigeye tuna or southern bluefin tuna,
there would be no associated cost since these permits are issued free
of charge. However, if the business were required to have a swordfish
permit for importing or exporting swordfish, the cost could be either
$25 or $100, depending upon whether the business has another permit
issued by the Southeast Region of NMFS. NMFS estimates that
approximately 960 businesses would be impacted by the final action and
alternative 3. Alternative 4 would entail similar costs per business as
alternative 1; however, slightly fewer businesses would be impacted
since businesses trading in southern bluefin tuna without trade in any
of the other covered species would not be required to purchase a
permit.
Impacts of reporting for the final action and alternatives 3 and 4
are expected to be approximately the same since all businesses must
submit the required reports, regardless of whether the permitting is
accomplished through the HMS ITP or by adding on to other permitting
programs. The professional skills necessary to complete the reporting
requirements are equivalent to an educational level of high school
completion. The annual economic impacts of the reporting requirements,
in addition to the potential costs of the HMS ITP discussed in the
previous paragraph, would be approximately $386 per permit holder,
including statistical document and re-export certificate opportunity
costs ($285) and mailing ($2), biweekly opportunity cost ($90) and
mailing ($9). This amount will vary depending on the volume of HMS
imported or exported or the number of forms submitted. Alternative 4
would eliminate the need for reporting southern bluefin tuna trade, so
costs
[[Page 67276]]
would be slightly reduced. Finally, permit holders could be negatively
impacted if the time burden interferes with how they conduct their
business; however, NMFS does not expect the direct or indirect costs or
associated time burden of additional reporting to be more than a minor
negative impact for the affected constituents.
NMFS chose alternative one as the final action for implementation
because it was the most effective alternative for satisfying the RFMO
recommendations while minimizing the reporting burden on the public and
providing NMFS with a manageable permitting and reporting
infrastructure. Alternative two was rejected because it would not have
implemented the RFMO recommendations. Alternative three was not chosen
because it would have increased the complexity associated with
monitoring imports and exports for both NMFS and businesses involved in
trade, and would have increased the number of permits required for many
businesses. Alternative four was rejected because it would have
compromised the effectiveness of the United States' implementation of
the statistical document program for bluefin tuna.
NMFS received one comment specifically addressing the IRFA and
several comments addressing economic concerns. The primary economic
concern identified by the public was the potential impact of the
validation requirement, including the potential dollar cost of
validation and the time cost of validation procedures. Of particular
concern to island businesses on Guam and Hawaii was the potential that
validation procedures could delay shipments significantly enough to
impact shipment schedules. Other economic concerns expressed by the
public included general concern about the costs of the reporting
requirements.
NMFS has determined that the provisions for validation by non-
government organizations (including industry organizations) or other
government agencies in the final rule will provide the industry with
sufficient flexibility to establish validation programs which will both
satisfy documentation requirements and minimize industry costs. This
conclusion is based in part on NMFS' experience with other trade
monitoring programs. In addition, the final rule reduces the validation
burden associated with re-exports so that re-exported shipments which
are not subdivided or consolidated with other shipments require neither
re-export certificates nor validation. The final rule also clarifies
that re-export certificates would only be required for re-exports that
first entered the United States (or insular possession) as an entry for
consumption, which may reduce the reporting burden associated with re-
exports. NMFS recognizes that there will be an initial start-up period
during which dollar and time costs will be slightly higher, and has
included a protracted implementation date for the final rule in part to
help address this issue. The extended implementation date will provide
time for authorization of entities to provide validation and for all
affected businesses to adjust their business processes and incorporate
the documentation, reporting, and recordkeeping requirements in the
most efficient manner. The final rule has also eliminated the
permitting, documentation, reporting, and recordkeeping requirements
associated with fresh bigeye tuna. Overall cost estimates will be lower
than estimated for the proposed rule since fresh bigeye tuna is
excluded from these requirements. Please see comments 5 through 7 and
comment 18 for specific public comments on the IRFA and economic
concerns.
NMFS does not believe that this action will conflict with any
relevant regulations, Federal or otherwise. To avoid duplication with
the requirements of this trade monitoring program, the rule removes the
international components of the existing swordfish and Atlantic tuna
dealer permits, and eliminates the swordfish certificate of
eligibility.
This rule has been determined to be not significant for the
purposes of Executive Order 12866.
NMFS has determined that the final rule would be implemented in a
manner consistent to the maximum extent practicable with the
enforceable provisions of the coastal zone management programs of those
Atlantic, Gulf of Mexico, Pacific and Caribbean coastal states that
have approved coastal zone management programs. The proposed rule was
submitted in April 2004 to the responsible state agencies for their
review under Section 307 of the CZMA. As of October 17, 2004, NMFS has
received 5 responses, all concurring with NMFS' consistency
determination. Because no responses were received from other states,
their concurrence is presumed.
This rule contains new and revised collection-of-information
requirements subject to review and approval by OMB under the Paperwork
Reduction Act. The permitting requirements were available for an
initial 60 day public comment period beginning February 12, 2003 (68 FR
7107) and were approved by the U.S. Office of Management and Budget
(OMB) on July 1, 2004 under collection 0648-0327. The reporting
requirements were available for an initial 60 day public comment period
on March 12, 2003 (68 FR 11809) and were approved by OMB on June 25,
2004, under collection 0648-0040. During the public comment period for
the proposed rule, one specific comment was received regarding the
reporting burden (see comment 7). The commenter stated that the time
and cost burdens were underestimated, and that the cost of private
vendors for validation was not included. NMFS estimated the time and
cost burden associated with the rule based on costs associated with
similar programs including the bluefin tuna statistical document
program and the swordfish import monitoring program. Both of these
programs require dealer permits and reporting similar to those included
in this program. For example, the cost of the options available for
validation are assessed relative to the programs that are currently in
place, which do not include a fee for use of an authorized validation
service. Overall burden estimates associated with these regulations are
expected to be an overestimate since the calculations included fresh
bigeye tuna which has been excluded in the final rule. Each reporting
requirement implemented by this rule was assessed by OMB for compliance
with the Paperwork Reduction Act.
The public reporting burden for completing an application for the
HMS ITP is estimated at 0.08 hours (5 minutes) per response. The public
reporting burden for permit holders for collection-of-information on
required reports is estimated at 0.08 hours (5 minutes) each for
statistical documents and re-export certificates; 2 hours for
validation; 2 hours for authorization for non-governmental validation;
0.25 hours (15 minutes) for international trade biweekly report; 0.02
hours (1 minute) for tagging. The rule also addresses previously
approved requirements for domestic dealer permits as follows: a
swordfish dealer permit and shark dealer permit have been approved
under collection 0648-0205 and an Atlantic tuna dealer permit has been
approved under collection 0648-0202. The response time for each of
these domestic permits is 5 minutes. These estimates include the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information.
[[Page 67277]]
List of Subjects
50 CFR Part 300
Fisheries, Reporting and recordkeeping requirements, Treaties.
50 CFR Part 635
Fisheries, Penalties, Reporting and recordkeeping requirements,
Treaties.
Dated: November 10, 2004.
Rebecca J. Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR parts 300 and 635 are
amended to read as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Pacific Tuna Fisheries
0
1. The authority citation for subpart C is revised to read as follows:
Authority: 16 U.S.C. 951-961 et seq.
0
2. Revise Sec. 300.20 to read as follows:
Sec. 300.20 Purpose and scope.
The regulations in this subpart are issued under the authority of
the Tuna Conventions Act of 1950 (Act). The regulations implement
recommendations of the Inter-American Tropical Tuna Commission (IATTC)
for the conservation and management of highly migratory fish resources
in the Eastern Tropical Pacific Ocean so far as they affect vessels and
persons subject to the jurisdiction of the United States.
0
3. In Sec. 300.21, remove the definitions for ``Bluefin tuna,''
``Pacific bluefin tuna,'' and ``Tag,'' and revise the introductory
paragraph to read as follows:
Sec. 300.21 Definitions.
In addition to the terms defined in Sec. 300.2, in the Act, and in
the Convention for the Establishment of an Inter-American Tropical Tuna
Commission (Convention), the terms used in this subpart have the
following meanings. If a term is defined differently in Sec. 300.2, in
the Act, or in the Convention, the definition in this section shall
apply.
* * * * *
Sec. Sec. 300.24 and 300.25 [Removed]
0
4. Remove Sec. Sec. 300.24 and 300.25.
Sec. Sec. 300.28 and 300.29 [Redesignated as Sec. Sec. 300.24 and
300.25]
0
5. Redesignate Sec. Sec. 300.28 and 300.29 as Sec. Sec. 300.24 and
300.25, respectively.
0
6. In newly redesignated Sec. 300.24, remove paragraphs (e) through
(g); redesignate paragraphs (h) through (l) as paragraphs (e) through
(i), respectively; and revise paragraph (b) and newly redesignated
paragraphs (h) and (i) to read as follows:
Sec. 300.24 Prohibitions.
* * * * *
(b) Fish on floating objects in the Convention Area using any gear
type specified by the Regional Administrator's notification of closure
issued under Sec. 300.25;
* * * * *
(h) Fail to use the sea turtle handling, release, and resuscitation
procedures in Sec. 300.25(e); or
(i) Fail to report information when requested by the Regional
Administrator under Sec. 300.22.
Sec. Sec. 300.26 and 300.27 [Removed]
0
7. Remove Sec. Sec. 300.26 and 300.27.
0
8. Subpart M is added to read as follows:
Subpart M--International Trade Documentation and Tracking Programs
for Highly Migratory Species
Sec.
300.180 Purpose and scope.
300.181 Definitions.
300.182 HMS international trade permit.
300.183 Permit holder reporting and recordkeeping requirements.
300.184 Species subject to documentation requirements.
300.185 Documentation, reporting and recordkeeping requirements for
statistical documents and re-export certificates.
300.186 Contents of documentation.
300.187 Validation requirements.
300.188 Ports of entry.
300.189 Prohibitions.
Subpart M--International Trade Documentation and Tracking Programs
for Highly Migratory Species
Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 U.S.C. 1801 et
seq.
Sec. 300.180 Purpose and scope.
The regulations in this subpart are issued under the authority of
the Atlantic Tunas Convention Act of 1975 (ATCA), Tuna Conventions Act
of 1950, and Magnuson-Stevens Act. The regulations implement the
recommendations of the International Commission for the Conservation of
Atlantic Tunas (ICCAT) for the conservation and management of tuna and
tuna-like species in the Atlantic Ocean and of the Inter-American
Tropical Tuna Commission (IATTC) for the conservation and management of
highly migratory fish resources in the Eastern Tropical Pacific Ocean,
so far as they affect vessels and persons subject to the jurisdiction
of the United States.
Sec. 300.181 Definitions.
Atlantic bluefin tuna means the species Thunnus thynnus found in
the Atlantic Ocean.
Bigeye tuna means the species Thunnus obesus found in any ocean
area.
Bluefin tuna, for purposes of this subpart, means Atlantic and
Pacific bluefin tuna, as defined in this section.
BSD tag means a numbered tag affixed to a bluefin tuna issued by
any country in conjunction with a catch statistics information program
and recorded on a bluefin tuna statistical document (BSD).
CBP means the U.S. Customs and Border Protection.
CCSBT means the Commission for the Conservation of Southern Bluefin
Tuna established pursuant to the Convention for the Conservation of
Southern Bluefin Tuna.
Customs territory of the United States has the same meaning as in
19 CFR 101.1 and includes only the States, the District of Columbia,
and Puerto Rico.
Dealer tag means the numbered, flexible, self-locking ribbon issued
by NMFS for the identification of Atlantic bluefin tuna sold to a
dealer permitted under Sec. 635.4 of this title as required under
Sec. 635.5(b) of this title.
Entered for consumption has the same meaning as in 19 CFR 141.0a(f)
and generally refers to the filing of an entry summary for consumption
with customs authorities, in proper form, with estimated duties
attached.
Entry for consumption, for purposes of this subpart, has the same
meaning as entry for consumption, withdrawal from warehouse for
consumption, or entry for consumption of merchandise from a foreign
trade zone, as provided under 19 CFR parts 101.1, 141, 144, and 146.
For purposes of this subpart, ``entry for consumption'' generally means
an import into the Customs territory of the United States or the
separate customs territory of a U.S. insular possession, for domestic
use, that is classified for customs purposes in the ``consumption''
category (entry type codes 00-08) or withdrawal from warehouse or
foreign trade zone for consumption category (entry type codes 30-34 and
38). For purposes of this subpart, HMS destined from one foreign
country to another, which transits the Customs territory of the United
States or the separate customs territory of a U.S. insular possession,
and is not classified as an entry for consumption upon release from CBP
or other customs custody, is not an entry for consumption under this
definition.
Entry number, for purposes of this subpart, means the unique
number/identifier assigned by customs
[[Page 67278]]
authorities for each entry into a customs territory. For CBP, the entry
number is assigned at the time of filing an entry summary (CBP Form
7501 or equivalent electronic filing) for entries into the Customs
territory of the United States.
Export, for purposes of this subpart, means to effect exportation.
Exportation has the same general meaning as 19 CFR 101.1 and
generally refers to a severance of goods from the mass of things
belonging to one country with the intention of uniting them to the mass
of things belonging to some foreign country. For purposes of this
subpart, a shipment between the United States and its insular
possessions is not an export.
Exporter, for purposes of this subpart, is the principal party in
interest, meaning the party that receives the primary benefit, monetary
or otherwise, of the export transaction. For exports from the United
States, the exporter is the U.S. principal party in interest, as
identified in Part 30 of title 15 of the CFR. An exporter is subject to
the requirements of this subpart, even if exports are exempt from
statistical reporting requirements under Part 30 of title 15 of the
CFR.
Finlet means one of the small individual fins on a tuna located
behind the second dorsal and anal fins and forward of the tail fin.
Fish or fish products regulated under this subpart means bluefin
tuna, frozen bigeye tuna, southern bluefin tuna and swordfish and all
such products of these species except parts other than meat (e.g.,
heads, eyes, roe, guts, and tails).
IATTC means the Inter-American Tropical Tuna Commission,
established pursuant to the Convention for the Establishment of an
Inter-American Tropical Tuna Commission.
ICCAT means the International Commission for the Conservation of
Atlantic Tunas established pursuant to the International Convention for
the Conservation of Atlantic Tunas.
Import, for purposes of this subpart, generally means the act of
bringing or causing any goods to be brought into the customs territory
of a country with the intent to unlade them. For purposes of this
subpart, goods brought into the United States from a U.S. insular
possession, or vice-versa, are not considered imports.
Importer, for purposes of this subpart, means the principal party
responsible for the import of product into a country. For imports into
the United States, and for purposes of this subpart, ``importer'' means
the consignee as identified on entry documentation or any authorized,
equivalent electronic medium required for release of shipments from the
customs authority of the United States or the separate customs
territory of a U.S. insular possession. If a consignee is not declared,
then the importer of record is considered to be the consignee.
Insular possession of the United States or U.S. insular possession,
for purposes of this subpart, means the Commonwealth of the Northern
Mariana Islands, Guam, American Samoa, and other possessions listed
under 19 CFR 7.2, that are outside the customs territory of the United
States.
Intermediate country means a country that exports to another
country HMS previously imported as an entry for consumption by that
nation. A shipment of HMS through a country on a through bill of
lading, or in another manner that does not enter the shipment into that
country as an entry for consumption, does not make that country an
intermediate country under this definition.
IOTC means the Indian Ocean Tuna Commission established pursuant to
the Agreement for the Establishment of the Indian Ocean Tuna Commission
approved by the Food and Agriculture Organization (FAO) Council of the
United Nations.
Pacific bluefin tuna means the species Thunnus orientalis found in
the Pacific Ocean.
Permit holder, for purposes of this subpart, means, unless
otherwise specified, a person who obtains a trade permit under Sec.
300.182.
Re-export, for purposes of this subpart, means the export of goods
that were previously entered for consumption into the customs territory
of a country.
RFMO, as defined under this subpart, means regional fishery
management organization, including CCSBT, IATTC, ICCAT, or IOTC.
Separate customs territory of a U.S. insular possession means the
customs territory of a U.S. insular possession when that possession's
customs territory is not a part of the Customs territory of the United
States.
Southern bluefin tuna means the species Thunnus maccoyii found in
any ocean area.
Swordfish means the species Xiphias gladius that is found in any
ocean area.
Tag means either a dealer tag or a BSD tag.
Trade permit means the HMS international trade permit under Sec.
300.182.
Sec. 300.182 HMS international trade permit.
(a) General. A person entering for consumption, exporting, or re-
exporting fish or fish products regulated under this subpart from any
ocean area must possess a valid trade permit issued under this section.
Importation of fish or fish products regulated under this subpart by
nonresident corporations is restricted to those entities authorized
under 19 CFR 141.18.
(b) Application. A person must apply for a permit in writing on an
appropriate form obtained from NMFS. The application must be completed,
signed by the applicant, and submitted with required supporting
documents, at least 30 days before the date upon which the permit is
made effective. Application forms and instructions for their completion
are available from NMFS.
(c) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, NMFS will issue a permit within 30 days of receipt of a completed
application.
(2) NMFS will notify the applicant of any deficiency in the
application, including failure to provide information or reports
required under this subpart. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(d) Duration. Any permit issued under this section is valid until
December 31 of the year for which it is issued, unless suspended or
revoked.
(e) Alteration. Any permit that is substantially altered, erased,
or mutilated is invalid.
(f) Replacement. NMFS may issue replacement permits. An application
for a replacement permit is not considered a new application. An
appropriate fee, consistent with paragraph (j) of this section, may be
charged for issuance of a replacement permit.
(g) Transfer. A permit issued under this section is not
transferable or assignable; it is valid only for the permit holder to
whom it is issued.
(h) Inspection. The permit holder must keep the permit issued under
this section at his/her principal place of business. The permit must be
displayed for inspection upon request of any authorized officer, or any
employee of NMFS designated by NMFS for such purpose.
(i) Sanctions. The Assistant Administrator may suspend, revoke,
modify, or deny a permit issued or sought under this section.
Procedures governing permit sanctions and denials are found at subpart
D of 15 CFR part 904.
(j) Fees. NMFS may charge a fee to recover the administrative
expenses of permit issuance. The amount of the fee is calculated, at
least annually, in accordance with the procedures of the NOAA Finance
Handbook, available from NMFS, for determining administrative costs of
each special product or service. The fee may not
[[Page 67279]]
exceed such costs and is specified on each application form. The
appropriate fee must accompany each application. Failure to pay the fee
will preclude issuance of the permit. Payment by a commercial
instrument later determined to be insufficiently funded shall
invalidate any permit.
(k) Change in application information. Within 30 days after any
change in the information contained in an application submitted under
this section, the permit holder must report the change to NMFS in
writing. If a change in permit information is not reported within 30
days, the permit is void as of the 31\st\ day after such change.
(l) Renewal. Persons must apply annually for a trade permit issued
under this section. A renewal application must be submitted to NMFS, at
an address designated by NMFS, at least 30 days before the permit
expiration date to avoid a lapse of permitted status. NMFS will renew a
permit provided that: the application for the requested permit is
complete; all reports required under the Magnuson-Stevens Act, ATCA,
and the Tuna Conventions Act of 1950 have been submitted, including
those required under Sec. Sec. 300.183, 300.185, 300.186, and 300.187
and Sec. 635.5 of this title; and the applicant is not subject to a
permit sanction or denial under paragraph (i) of this section.
Sec. 300.183 Permit holder reporting and recordkeeping requirements.
(a) Biweekly reports. Any person issued a trade permit under Sec.
300.182 must submit to NMFS, on forms supplied by NMFS, a biweekly
report of imports entered for consumption, exports, and re-exports of
fish or fish products regulated under this subpart.
(1) The report required to be submitted under paragraph (a) of this
section must be postmarked within 10 days after the end of each
biweekly reporting period in which fish or fish products regulated
under this subpart were entered for consumption, exported, or re-
exported. The bi-weekly reporting periods are defined as the first day
to the 15th day of each month and the 16th day to the last day of each
month.
(2) Each report must specify accurately and completely the
requested information for each shipment of fish or fish products
regulated under this subpart that is entered for consumption, exported,
or re-exported.
(b) Recordkeeping. Any person issued a trade permit under Sec.
300.182 must retain at his/her principal place of business a copy of
each biweekly report and supporting records for a period of 2 years
from the date on which each report was submitted to NMFS.
(c) Other reporting and recordkeeping requirements. Any person
issued a trade permit is also subject to the reporting and
recordkeeping requirements identified in Sec. 300.185.
(d) Inspection. Any person authorized to carry out the enforcement
activities under the regulations in this subpart has the authority,
without warrant or other process, to inspect, at any reasonable time:
fish or fish products regulated under this subpart, biweekly reports,
statistical documents, re-export certificates, relevant sales receipts,
import and export documentation, or other records and reports required
by this subpart to be made, retained, or submitted. A permit holder
must allow NMFS or an authorized person to inspect and copy, for any
fish or fish products regulated under this subpart, any import and
export documentation and any reports required under this subpart, and
the records, in any form, on which the completed reports are based,
wherever they exist. Any agent of a person issued a trade permit under
this part, or anyone responsible for importing, exporting, storing,
packing, or selling fish or fish products regulated under this subpart,
shall be subject to the inspection provisions of this section.
Sec. 300.184 Species subject to documentation requirements.
The following fish or fish products are subject to the
documentation requirements of this subpart regardless of ocean area of
catch.
(a) Bluefin tuna. (1) Documentation is required for bluefin tuna
products including those identified by the following subheading numbers
from the Harmonized Tariff Schedule of the United States (HTS):
(i) Fresh or chilled bluefin tuna (No. 0302.35.00.00) excluding
fillets and other fish meat of HTS heading 0304.
(ii) Frozen bluefin tuna (No. 0303.45.00.00), excluding fillets and
other fish meat of HTS heading 0304.
(2) In addition, bluefin tuna products in other forms (e.g.,
chunks, fillets, and products in airtight containers) that may be
classified under any other HTS heading/subheading numbers are subject
to the documentation requirements of this subpart, except that fish
parts other than meat (e.g., heads, eyes, roe, guts, and tails) may be
imported without said documentation.
(b) Southern bluefin tuna. (1) Documentation is required for
southern bluefin tuna products including those identified by the
following subheading numbers from the HTS:
(i) Fresh or chilled southern bluefin tuna (No. 0302.36.00.00),
excluding fillets and other fish meat of HTS heading 0304.
(ii) Frozen southern bluefin tuna (No. 0303.46.00.00), excluding
fillets and other fish meat of HTS heading 0304.
(2) In addition, southern bluefin tuna products in other forms
(e.g., chunks, fillets, products in airtight containers) that may be
classified under any other HTS heading/subheading numbers are subject
to the documentation requirements of this subpart, except that fish
parts other than meat (e.g., heads, eyes, roe, guts, and tails) may be
imported without said documentation.
(c) Bigeye tuna. (1) Documentation is required for frozen bigeye
tuna products including those identified by the following subheading
numbers from the HTS:
(i) Frozen bigeye tuna (No. 0303.44.00.00), excluding fillets and
other fish meat of HTS heading 0304.
(ii) [Reserved]
(2) In addition, frozen bigeye tuna products in other forms (e.g.,
chunks and fillets) that may be classified under any other HTS heading/
subheading numbers are subject to the documentation requirements of
this subpart, except that frozen fish parts other than meat (e.g.,
heads, eyes, roe, guts, and tails), may be imported without said
documentation.
(3) Bigeye tuna caught by purse seiners and pole and line (bait)
vessels and destined for canneries within the United States, including
all U.S. commonwealths, territories, and possessions, may be imported
without the documentation required under this subpart.
(d) Swordfish. (1) Documentation is required for swordfish products
including those identified by the following subheading numbers from the
HTS:
(i) Fresh or chilled swordfish, steaks (No. 0302.69.20.41).
(ii) Fresh or chilled swordfish, excluding fish fillets, steaks,
and other fish meat (No. 0302.69.20.49).
(iii) Frozen swordfish, steaks (No. 0303.79.20.41).
(iv) Frozen swordfish, excluding fillets, steaks and other fish
meat (No. 0303.79.20.49).
(v) Fresh, chilled or frozen swordfish, fillets and other fish meat
(No. 0304.20.60.92).
(2) In addition, swordfish products in other forms (e.g., chunks,
fillets, and products in airtight containers) that may be classified
under any other HTS heading/subheading numbers, are subject to the
documentation requirements of this subpart, except that
[[Page 67280]]
fish parts other than meat (e.g., heads, eyes, roe, guts, tails) may be
allowed entry without said statistical documentation.
Sec. 300.185 Documentation, reporting and recordkeeping requirements
for statistical documents and re-export certificates.
(a) Imports--(1) Applicability of requirements. The documentation
requirements in paragraph (a)(2) of this section apply to all imports
of fish or fish products regulated under this subpart into the Customs
territory of the United States, except when entered as a product of an
American fishery landed overseas (HTS heading 9815). For insular
possessions with customs territories separate from the Customs
territory of the United States, documentation requirements in paragraph
(a)(2) of this section apply only to entries for consumption. The
reporting requirements of paragraph (a)(3) of this section do not apply
to fish products destined from one foreign country to another which
transit the United States or a U.S. insular possession and are
designated as an entry type other than entry for consumption as defined
in Sec. 300.181.
(2) Documentation requirements. (i) All fish or fish products
regulated under this subpart, imported into the customs territory of
the United States or entered for consumption into a separate customs
territory of a U.S. insular possession, must, at the time of presenting
entry documentation for clearance by customs authorities (e.g., CBP
Forms 7533 or 3461 or other documentation required by the port
director) be accompanied by an original, completed, approved,
validated, species-specific statistical document with the required
information and exporter's certification completed as specified in
Sec. 300.186. Customs forms can be obtained by contacting the local
CBP port office; contact information is available at www.cbp.gov. For a
U.S. insular possession, contact the local customs office for any forms
required for entry.
(ii) The statistical document must be validated as specified in
Sec. 300.187 by a responsible government official of the country whose
flag vessel caught the fish (regardless of where the fish are first
landed).
(iii) For fish products entered for consumption, the permit holder
must provide on the original statistical document that accompanied the
import shipment the correct information and importer's certification
specified in Sec. 300.186, and must note on the top of the statistical
document the entry number assigned at the time of filing an entry
summary (e.g., CBP Form 7501 or electronic equivalent) with customs
authorities.
(iv) Bluefin tuna, imported into the Customs territory of the
United States or entered for consumption into the separate customs
territory of a U.S. insular possession, from a country requiring a BSD
tag on all such bluefin tuna available for sale, must be accompanied by
the appropriate BSD tag issued by that country, and said BSD tag must
remain on any bluefin tuna until it reaches its final destination. If
the final import destination is the United States, which includes U.S.
insular possessions, the BSD tag must remain on the bluefin tuna until
it is cut into portions. If the bluefin tuna portions are subsequently
packaged for domestic commercial use or re-export, the BSD tag number
and the issuing country must be written legibly and indelibly on the
outside of the package.
(3) Reporting requirements. For fish or fish products regulated
under this subpart that are entered for consumption and whose final
destination is within the United States, which includes a U.S. insular
possessions, a permit holder must submit to NMFS the original
statistical document that accompanied the fish product as completed
under Sec. 300.186 and paragraph (a)(2) of this section. A copy of the
original completed statistical document must be postmarked and mailed,
or faxed, by said permit holder to NMFS at an address designated by
NMFS within 24 hours of the time the fish product was entered for
consumption into the Customs territory of the United States or the
separate customs territory of a U.S. insular possession.
(b) Exports--(1) Applicability of requirements. The documentation
and reporting requirements of this paragraph apply to exports of fish
or fish products regulated under this subpart that were harvested by
U.S. vessels and first landed in the United States, or harvested by
vessels of a U.S. insular possession and first landed in that
possession. This paragraph also applies to products of American
fisheries landed overseas.
(2) Documentation requirements. A permit holder must complete an
original, numbered, species-specific statistical document issued to
that permit holder by NMFS for each export referenced under paragraph
(b)(1) of this section. Such an individually numbered document is not
transferable and may be used only once by the permit holder to which it
was issued to report on a specific export shipment. A permit holder
must provide on the statistical document the correct information and
exporter certification specified in Sec. 300.186. The statistical
document must be validated, as specified in Sec. 300.187, by NMFS, or
another official authorized by NMFS. A list of such officials may be
obtained by contacting NMFS. A permit holder requesting U.S. validation
for exports should notify NMFS as soon as possible after arrival of the
vessel to avoid delays in inspection and validation of the export
shipment.
(3) Reporting requirements. A permit holder must ensure that the
original statistical document as completed under paragraph (b)(2) of
this section accompanies the export of such products to their export
destination. A copy of the statistical document must be postmarked and
mailed by said permit holder to NMFS, at an address designated by NMFS,
within 24 hours of the time the fish product was exported from the
United States or a U.S. insular possession.
(c) Re-exports--(1) Applicability of requirements. The
documentation and reporting requirements of this paragraph apply to
exports of fish or fish products regulated under this subpart that were
previously entered for consumption into the customs territory of the
United States or the separate customs territory of a U.S. insular
possession through filing the documentation specified in paragraph (a)
of this section. The requirements of this paragraph do not apply to
fish products destined from one foreign country to another which
transit the United States or a U.S. insular possession and which are
designated as an entry type other than entry for consumption as defined
in Sec. 300.181.
(2) Documentation requirements. (i) If a permit holder subdivides
or consolidates a shipment that was previously entered for consumption
as described in paragraph (c)(1) of this section, the permit holder
must complete an original, individually numbered, species-specific re-
export certificate issued to that permit holder by NMFS for each such
re-export shipment. Such an individually numbered document is not
transferable and may be used only once by the permit holder to which it
was issued to report on a specific re-export shipment. A permit holder
must provide on the re-export certificate the correct information and
re-exporter certification specified in Sec. 300.186. The permit holder
must also attach the original statistical document that accompanied the
import shipment or a copy, and provide the correct information and
intermediate importer's certification specified in Sec. 300.186, and
must note on the top of both the
[[Page 67281]]
statistical documents and the re-export certificates the entry number
assigned by customs authorities at the time of filing the entry
summary.
(ii) If a shipment that was previously entered for consumption as
described in paragraph (c)(1) of this section is not subdivided into
sub-shipments or consolidated, for each re-export shipment, a permit
holder must complete the intermediate importer's certification on the
original statistical document and note the entry number on the top of
the statistical document. Such re-exports do not need a re-export
certificate and the re-export does not require validation.
(iii) Re-export certificates must be validated, as specified in
Sec. 300.187, by NMFS or another official authorized by NMFS. A list
of such officials may be obtained by contacting NMFS. A permit holder
requesting validation for re-exports should notify NMFS as soon as
possible to avoid delays in inspection and validation of the re-export
shipment.
(3) Reporting requirements. For each re-export, a permit holder
must submit the original of the completed re-export certificate (when
required) and the original or a copy of the original statistical
document completed as specified under paragraph (c)(2) of this section,
to accompany the shipment of such products to their re-export
destination. A copy of the completed statistical document and re-export
certificate (when required) must be postmarked and mailed by said
permit holder to NMFS, at an address designated by NMFS, within 24
hours of the time the shipment was re-exported from the United States.
(d) Recordkeeping. A permit holder must retain at his or her
principal place of business, a copy of each statistical document and
re-export certificate required to be submitted to NMFS pursuant to this
section, and supporting records for a period of 2 years from the date
on which it was submitted to NMFS.
(e) Inspection. Any person responsible for importing, exporting,
storing, packing, or selling fish or fish products regulated under this
subpart, including permit holders, consignees, customs brokers, freight
forwarders, and importers of record, shall be subject to the inspection
provisions at Sec. 300.183(d).
Sec. 300.186 Contents of documentation.
(a) Statistical documents. To be deemed complete, all statistical
documents must state:
(1) The document number assigned by the country issuing the
document.
(2) The name of the country issuing the document, which must be the
country whose flag vessel harvested the fish, regardless of where it is
first landed.
(3) The name of the vessel that caught the fish, the vessel's
length (in meters), the vessel's registration number, and the ICCAT
record number, if applicable.
(4) The point of export, which is the city, state or province, and
country from which the fish is first exported.
(5) The product type (fresh or frozen), time of harvest (month/
year), and product form (round, gilled and gutted, dressed, fillet, or
other).
(6) The method of fishing used to harvest the fish (e.g., purse
seine, trap, rod and reel).
(7) The ocean area from which the fish was harvested.
(8) The weight of each fish (in kilograms for the same product form
previously specified) or the net weight of each product type, as
applicable.
(9) The name and license number of, and be signed and dated in the
exporter's certification block by, the exporter.
(10) If applicable, the name and title of, and be signed and dated
in the validation block by, a responsible government official of the
country whose flag vessel caught the fish (regardless of where the fish
are first landed) or by an official of an institution accredited by
said government, with official government or accredited institution
seal affixed, thus validating the information on the statistical
document.
(11) If applicable, the name(s) and address(es), including the name
of the city and state or province of import, and the name(s) of the
intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by, each intermediate and the final
importer.
(b) Bluefin tuna statistical documents. Bluefin tuna statistical
documents, to be deemed complete, in addition to the elements in
paragraph (a) of this section, must also state:
(1) Whether the fish was farmed or captured.
(2) The name and address of the owner of the trap that caught the
fish, or the farm from which the fish was taken, if applicable.
(3) The identifying tag number, if landed by vessels from countries
with BSD tagging programs, or tagged pursuant to Sec. 300.187(d) or
Sec. 635.5(b) of this title.
(c) Southern bluefin tuna statistical documents. To be complete,
southern bluefin tuna statistical documents must, in addition to the
elements in Sec. 300.186(a), also state:
(1) The name and address of the processing establishment, if
applicable.
(2) [Reserved]
(d) Bigeye tuna statistical documents. To be deemed complete,
bigeye tuna statistical documents must, in addition to the elements in
paragraph (a) of this section, also state:
(1) The name of the owner of the trap that caught the fish, if
applicable.
(2) The net weight of product for each product type (in kilograms
for the same product form previously specified).
(e) Swordfish statistical documents. To be deemed complete,
swordfish statistical documents must, in addition to the elements in
paragraph (a) of this section, also state:
(1) Certification by the exporter that, for swordfish harvested
from the Atlantic Ocean, each individual Atlantic swordfish included in
the shipment weighs at least 15 kilograms (33 lb) dressed weight, or if
pieces, that the pieces were derived from a swordfish that weighed at
least 15 kilograms (33 lb) dressed weight. Import provisions pertaining
to swordfish minimum size are provided at Sec. 635.20(f) of this
title.
(2) [Reserved]
(f) Re-export certificates. To be deemed complete, all re-export
certificates, must state:
(1) The document number assigned by the country issuing the
document.
(2) The name of the country issuing the document, which must be the
country through which the product is being re-exported.
(3) The point of re-export, which is the city, state, or province,
and country from which the product was re-exported.
(4) The description of the fish product as imported, including the
product type (fresh or frozen), product form (round, gilled and gutted,
dressed, fillet, or other), the net weight, flag country of the vessel
that harvested the fish in the shipment, and the date of import to the
country from which it is being re-exported.
(5) The description of the fish product as re-exported, including
the product type (fresh or frozen), product form (round, gilled and
gutted, dressed, fillet, or other) and the net weight.
(6) The name and license number (if applicable) of, and be signed
and dated in the re-exporter's certification block by, the re-exporter.
(7) If applicable, the name and title of, and be signed and dated
in the validation block by, a responsible government official of the
re-exporting country appearing on the certificate, or
[[Page 67282]]
by an official of an institution accredited by said government, with
official government or accredited institution seal affixed, thus
validating the information on the re-export certificate.
(8) If applicable, the name(s) and address(es), including the name
of the city and state or province of import, and the name(s) of the
intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by each intermediate and the final
importer.
(g) Bluefin tuna re-export certificates. To be deemed complete,
Bluefin tuna re-export certificates must, in addition to the elements
in paragraph (f) of this section, also state:
(1) Whether the fish for re-export was farmed.
(2) The name and address of the farm from which the fish was taken.
(h) Approved statistical documents and re-export certificates. (1)
An approved statistical document or re-export certificate may be
obtained from NMFS to accompany exports of fish or fish products
regulated under this subpart from the customs territory of the United
States or the separate customs territory of a U.S. insular possession.
(2) A nationally approved form from another country may be used for
exports to the United States if that document strictly conforms to the
information requirements and format of the applicable RFMO documents.
An approved statistical document or re-export certificate for use in
countries without a nationally approved form may be obtained from the
following websites, as appropriate: www.iccat.org, www.iattc.org,
www.ccsbt.org, or www.iotc.org to accompany exports to the United
States.
Sec. 300.187 Validation requirements.
(a) Imports. The approved statistical document accompanying any
import of any fish or fish product regulated under this subpart must be
validated by a government official from the issuing country, unless
NMFS waives this requirement pursuant to an applicable RFMO
recommendation. NMFS will furnish a list of countries for which
government validation requirements are waived to the appropriate
customs officials. Such list will indicate the circumstances of
exemption for each issuing country and the non-government institutions,
if any, accredited to validate statistical documents and re-export
certificates for that country.
(b) Exports. The approved statistical document accompanying any
export of fish or fish products regulated under this subpart must be
validated, except pursuant to a waiver described in paragraph (d) of
this section. Validation must be made by NMFS or another official
authorized by NMFS.
(c) Re-exports. The approved re-export certificate accompanying any
re-export of fish or fish products regulated under this subpart, as
required under Sec. 300.185(c), must be validated, except pursuant to
a waiver described in paragraph (d) of this section. Validation must be
made by NMFS or another official authorized by NMFS.
(d) Validation waiver. Any waiver of government validation will be
consistent with applicable RFMO recommendations concerning validation
of statistical documents and re-export certificates. If authorized,
such waiver of government validation may include exemptions from
government validation for Pacific bluefin tuna with individual BSD tags
affixed pursuant to paragraph (f) of this section or for Atlantic
bluefin tuna with tags affixed pursuant to Sec. 635.5(b) of this
title. Waivers will be specified on statistical documents and re-export
certificates or accompanying instructions, or in a letter to permit
holders from NMFS.
(e) Authorization for non-NMFS validation. An official from an
organization or government agency seeking authorization to validate
statistical documents or re-export certificates accompanying exports or
re-exports from the United States, which includes U.S. commonwealths,
territories, and possessions, must apply in writing, to NMFS, at an
address designated by NMFS for such authorization. The application must
indicate the procedures to be used for verification of information to
be validated; list the names, addresses, and telephone/fax numbers of
individuals to perform validation; procedures to be used to notify NMFS
of validations; and an example of the stamp or seal to be applied to
the statistical document or re-export certificate. NMFS, upon finding
the applicant capable of verifying the information required on the
statistical document or re-export certificate, will issue, within 30
days, a letter specifying the duration of effectiveness and conditions
of authority to validate statistical documents or re-export
certificates accompanying exports or re-exports from the United States.
The effectiveness of such authorization will be delayed as necessary
for NMFS to notify the appropriate RFMO of other officials authorized
to validate statistical document or re-export certificates. Non-
government organizations given authorization to validate statistical
documents or re-export certificates must renew such authorization on a
yearly basis.
(f) BSD tags--(1) Issuance. NMFS will issue numbered BSD tags for
use on Pacific bluefin tuna upon request to each permit holder.
(2) Transfer. BSD tags issued under this section are not
transferable and are usable only by the permit holder to whom they are
issued.
(3) Affixing BSD tags. At the discretion of permit holders, a tag
issued under this section may be affixed to each Pacific bluefin tuna
purchased or received by the permit holder. If so tagged, the tag must
be affixed to the tuna between the fifth dorsal finlet and the keel.
(4) Removal of tags. A tag, as defined in this subpart and affixed
to any bluefin tuna, must remain on the tuna until it is cut into
portions. If the bluefin tuna or bluefin tuna parts are subsequently
packaged for transport for domestic commercial use or for export, the
number of each dealer tag or BSD tag must be written legibly and
indelibly on the outside of any package containing the bluefin tuna or
bluefin tuna parts. Such tag number also must be recorded on any
document accompanying the shipment of bluefin tuna or bluefin tuna
parts for commercial use or export.
(5) Labeling. The tag number of a BSD tag affixed to each Pacific
bluefin tuna under this section must be recorded on NMFS reports
required by Sec. 300.183, on any documents accompanying the shipment
of Pacific bluefin tuna for domestic commercial use or export as
indicated in Sec. Sec. 300.185 and 300.186, and on any additional
documents that accompany the shipment (e.g., bill of lading, customs
manifest, etc.) of the tuna for commercial use or for export.
(6) Reuse. BSD tags issued under this section are separately
numbered and may be used only once, one tail tag per Pacific bluefin
tuna, to distinguish the purchase of one Pacific bluefin tuna. Once
affixed to a tuna or recorded on any package, container or report, a
BSD tag and associated number may not be reused.
Sec. 300.188 Ports of entry.
NMFS shall monitor the importation of fish or fish products
regulated under this subpart into the United States. If NMFS determines
that the diversity of handling practices at certain ports at which fish
or fish products regulated under this subpart are being imported into
the United States allows for circumvention of the statistical document
requirement, NMFS may undertake a rulemaking to designate, after
consultation with the CBP, those
[[Page 67283]]
ports at which fish or fish products regulated under this subpart from
any ocean area may be imported into the United States.
Sec. 300.189 Prohibitions.
In addition to the prohibitions specified in Sec. 300.4, and
Sec. Sec. 600.725 and 635.71 of this title, it is unlawful for any
person subject to the jurisdiction of the United States to violate any
provision of this part, the Atlantic Tunas Convention Act, the
Magnuson-Stevens Act, the Tuna Conventions Act of 1950, or any other
rules promulgated under those Acts. It is unlawful for any person or
vessel subject to the jurisdiction of the United States to:
(a) Falsify information required on an application for a permit
submitted under Sec. 300.182.
(b) Import as an entry for consumption, purchase, receive for
export, export, or re-export any fish or fish product regulated under
this subpart without a valid trade permit issued under Sec. 300.182.
(c) Fail to possess, and make available for inspection, a trade
permit at the permit holder's place of business, or alter any such
permit as specified in Sec. 300.182.
(d) Falsify or fail to record, report, or maintain information
required to be recorded, reported, or maintained, as specified in Sec.
300.183 or Sec. 300.185.
(e) Fail to allow an authorized agent of NMFS to inspect and copy
reports and records, as specified in Sec. 300.183 or Sec. 300.185.
(f) Fail to comply with the documentation requirements as specified
in Sec. 300.185, Sec. 300.186 or Sec. 300.187, for fish or fish
products regulated under this subpart that are imported, entered for
consumption, exported, or re-exported.
(g) Fail to comply with the documentation requirements as specified
in Sec. 300.186, for the importation, entry for consumption,
exportation, or re-exportation of an Atlantic swordfish, or part
thereof, that is less than the minimum size.
(h) Validate statistical documents or re-export certificates
without authorization as specified in Sec. 300.187.
(i) Validate statistical documents or re-export certificates as
provided for in Sec. 300.187 with false information.
(j) Remove any NMFS-issued numbered tag affixed to any Pacific
bluefin tuna or any tag affixed to a bluefin tuna imported from a
country with a BSD tag program before removal is allowed under Sec.
300.187; fail to write the tag number on the shipping package or
container as specified in Sec. 300.187; or reuse any NMFS-issued
numbered tag affixed to any Pacific bluefin tuna, or any tag affixed to
a bluefin tuna imported from a country with a BSD tag program, or any
tag number previously written on a shipping package or container as
prescribed by Sec. 300.187.
(k) Import, or attempt to import, any fish or fish product
regulated under this subpart in a manner inconsistent with any ports of
entry designated by NMFS as authorized by Sec. 300.188.
(l) Ship, transport, purchase, sell, offer for sale, import, enter
for consumption, export, re-export, or have in custody, possession, or
control any fish or fish product regulated under this subpart that was
imported, entered for consumption, exported, or re-exported contrary to
this subpart.
(m) Fail to provide a validated statistical document for imports at
time of entry into the customs territory of the United States of fish
or fish products regulated under this subpart, regardless of whether
the importer, exporter, or re-exporter holds a valid trade permit
issued pursuant to Sec. 300.182 or whether the fish products are
imported as an entry for consumption.
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
9. The authority citation for 50 CFR part 635, continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
10. In 635.2, remove the definition for ``Intermediate country'' and
``Swordfish Certificate of Eligibility (COE);'' add a definition for
``Exportation'' in alphabetical order; and revise the definitions for
``Export,'' ``Exporter,'' ``Import,'' and ``Importer'' as follows:
Sec. 635.2 Definitions.
* * * * *
Export, for purposes of this subpart, means to effect exportation.
Exportation has the same general meaning as 19 CFR 101.1 and
generally refers to a severance of goods from the mass of things
belonging to one country with the intention of uniting them to the mass
of things belonging to some foreign country. For purposes of this
subpart, a shipment between the United States and its insular
possessions is not an export.
Exporter, for purposes of this subpart, is the principal party in
interest, meaning the party that receives the primary benefit, monetary
or otherwise, of the export transaction. For exports from the United
States, the exporter is the U.S. principal party in interest, as
identified in Part 30 of title 15 of the CFR. An exporter is subject to
the requirements of this subpart, even if exports are exempt from
statistical reporting requirements under Part 30 of title 15 of the
CFR.
* * * * *
Import, for purposes of this subpart, generally means the act of
bringing or causing any goods to be brought into the customs territory
of a country with the intent to unlade them. For purposes of this
subpart, goods brought into the United States from a U.S. insular
possession, or vice-versa, are not considered imports.
Importer, for purposes of this subpart, means the principal party
responsible for the import of product into a country. For imports into
the United States, and for purposes of this subpart, ``importer'' means
the consignee as identified on entry documentation or any authorized,
equivalent electronic medium required for release of shipments, or any
authorized equivalent entry documentation from the customs authority of
the United States or the separate customs territory of a U.S. insular
possession. If a consignee is not declared, then the importer of record
is considered to be the consignee.
* * * * *
0
11. In Sec. 635.4 revise paragraph (g) to read as follows:
Sec. 635.4 Permits and fees.
* * * * *
(g) Dealer permits--(1) Atlantic tunas. A person that receives,
purchases, trades for, or barters for Atlantic tunas from a fishing
vessel of the United States, as defined under Sec. 600.10 of this
chapter, must possess a valid dealer permit.
(2) Shark. A person that receives, purchases, trades for, or
barters for Atlantic sharks from a fishing vessel of the United States,
as defined under Sec. 600.10 of this chapter, must possess a valid
dealer permit.
(3) Swordfish. A person that receives, purchases, trades for, or
barters for Atlantic swordfish from a fishing vessel of the United
States, as defined under Sec. 600.10 of this chapter, must possess a
valid dealer permit.
* * * * *
0
12. In Sec. 635.5, remove paragraph (b)(1)(ii); redesignate paragraphs
(b)(1)(iii) through (b)(1)(v) as (b)(1)(ii) through (b)(1)(iv),
respectively; and revise newly redesignated paragraph (b)(1)(ii) and
paragraph (b)(2)(i)(B) to read as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(b) * * *
(1) * * *
(ii) Reports of Atlantic tunas, Atlantic swordfish, and/or Atlantic
sharks
[[Page 67284]]
received by dealers from U.S. vessels, as defined under Sec. 600.10 of
this chapter, on the first through the 15th of each month, must be
postmarked not later than the 25th of that month. Reports of such fish
received on the 16th through the last day of each month must be
postmarked not later than the 10th of the following month. If a dealer
issued an Atlantic tunas, swordfish or sharks dealer permit under Sec.
635.4 has not received any Atlantic HMS from U.S. vessels during a
reporting period as specified in this section, he or she must still
submit the report required under paragraph (b)(1)(i) of this section
stating that no Atlantic HMS were received. This negative report must
be postmarked for the applicable reporting period as specified in this
section. This negative reporting requirement does not apply for bluefin
tuna.
* * * * *
(2) * * *
(i) * * *
(B) Bi-weekly reports. Each dealer issued an Atlantic tunas permit
under Sec. 635.4 must submit a bi-weekly report on forms supplied by
NMFS for BFT received from U.S. vessels. For BFT received from U.S.
vessels on the first through the 15\th\ of each month, the dealer must
submit the bi-weekly report form to NMFS postmarked not later than the
25\th\ of that month. Reports of BFT received on the 16\th\ through the
last day of each month must be postmarked not later than the 10\th\ of
the following month.
* * * * *
0
13. In Sec. 635.20, paragraph (f)(2) is revised to read as follows:
Sec. 635.20 Size limits.
* * * * *
(f) * * *
(2) Except for a swordfish landed in a Pacific state and remaining
in the state of landing, a swordfish, or part thereof, weighing less
than 33 lb (15 kg) dressed weight will be deemed to be an Atlantic
swordfish harvested by a vessel of the United States and to be in
violation of the minimum size requirement of this section unless such
swordfish, or part thereof, is accompanied by a swordfish statistical
document attesting that the swordfish was lawfully imported. Refer to
Sec. 300.186 of this title for the requirements related to the
swordfish statistical document.
* * * * *
0
14. In Sec. 635.31 paragraphs (a)(3) and (a)(4)(ii) are revised to
read as follows:
Sec. 635.31 Restrictions on sale and purchase.
* * * * *
(a) * * *
(3) Dealers or seafood processors may not purchase or sell a BFT
smaller than the large medium size class unless it is lawfully imported
and is accompanied by a bluefin tuna statistical document, as specified
in Sec. 300.185(a) of this title.
(4) * * *
(ii) It is accompanied by a bluefin tuna statistical document, as
specified in Sec. 300.185(a) of this title.
* * * * *
Sec. 635.41 [Removed]
0
15. Section 635.41 is removed.
Sec. 635.45 [Redesignated as Sec. 635.41]
0
16. Section 635.45 is redesignated as Sec. 635.41.
Sec. Sec. 635.42, 635.43, 635.44, 635.46, and 635.47 [Removed]
0
17. Sections 635.42, 635.43, 635.44, 635.46, and 635.47 are removed.
0
18. In Sec. 635.71, paragraphs (b)(2), (b)(25), (e)(10) and (e)(12)
are removed and reserved and paragraphs (a)(24), (b)(26) and (e)(1) are
revised to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(a) * * *
(24) Import, or attempt to import, any fish or fish products
regulated under this part in a manner contrary to any import
requirements or import restrictions specified at Sec. 635.40 or Sec.
635.41.
* * * * *
(b) * * *
(26) Import a bluefin tuna or bluefin tuna product into the United
States from Belize, Panama, or Honduras other than as authorized in
Sec. 635.41.
* * * * *
(e) * * *
(1) Purchase, barter for, or trade for a swordfish from the north
or south Atlantic swordfish stock without a dealer permit as specified
in Sec. 635.4(g).
* * * * *
[FR Doc. 04-25523 Filed 11-16-04; 8:45 am]
BILLING CODE 3510-22-S