[Federal Register: March 29, 2004 (Volume 69, Number 60)]
[Proposed Rules]
[Page 16211-16223]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr04-22]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300 and 635
[Docket No. 040316092-4092-01; 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: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to require dealers who import,
export, or re-export bluefin tuna (BFT), southern bluefin tuna (SBFT),
bigeye tuna (BET) and swordfish (SWO), regardless of ocean area of
origin, to hold a valid highly migratory species (HMS) international
trade permit, to complete and submit required statistical documents and
re-export certificates, and to comply with all applicable recordkeeping
and reporting requirements of the trade monitoring programs. The
regulations would implement the recommendations of the International
Commission for the Conservation of Atlantic Tunas (ICCAT) to establish
statistical document programs to track the international trade of SWO
and BET, would implement the recommendation of the Inter-American
Tropical Tuna Commission (IATTC) to establish a statistical document
program to track the international trade of BET, would require dealers
to comply with the SBFT statistical document program adopted by the
Commission for the Conservation of Southern Bluefin Tuna (CCSBT), and
would expand the current BFT statistical document program to include
the re-export of BFT.
DATES: Comments on the proposed rule and supporting documents must be
received on or before May 10, 2004. Comments sent to the Office of
Management and Budget (OMB) on the information collection requirements
of the proposed rule must be received on or before May 10, 2004.
ADDRESSES: Please submit your comments on the proposed rule and
supporting documents by mail to Dianne Stephan, Highly Migratory
Species Management Division, NMFS, 1 Blackburn Drive, Gloucester, MA
01930. Comments may be submitted by e-mail. The mailbox address for
providing e-mail comments is NeroHMSTrade@noaa.gov. Include in the
subject line of the e-mail comment the following document identifier:
Nero HMS Trade Rule.
Comments on the burden-hour estimates or on other aspects of the
collection of information relevant to this proposed rulemaking may be
submitted to NMFS at the above address, or may be submitted to the
Office of Regulatory Affairs, Office of Management and Budget, by email
to David_Rostker@omb.eop.gov or by facsimile (Fax) to (202) 395-7285.
Copies of the supporting documents, including the original ICCAT
and IATTC recommendations, are available by sending your request to
Dianne Stephan at the NMFS address listed above.
BFT, SBFT, BET, and SWO statistical documents, re-export
certificates, and biweekly dealer 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: 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
At its 2001 meeting, ICCAT adopted recommendations for the
establishment of SWO and BET statistical document programs to further
the domestic and international understanding of these fisheries, and to
help address illegal, unreported and unregulated (IUU) fishing for
these species. More recently, IATTC also adopted a recommendation to
establish a BET statistical document program similar to the ICCAT
program. At its 2003 meeting, ICCAT made slight modifications to all of
its statistical document forms to collect more information relevant to
vessel identification and farming operations. Generally, these programs
require that imports of certain fish be accompanied by a species
specific statistical document, or when appropriate, a re-export
certificate. The United States is a member of both ICCAT and IATTC. The
purpose of this proposed rule is to implement these ICCAT and IATTC
recommendations.
The Atlantic Tunas Convention Act (ATCA) of 1975 (16 U.S.C. 971 et
seq.) authorizes the promulgation of regulations as may be necessary
and appropriate to implement ICCAT recommendations. The Tuna
Conventions Act of 1950 (TCA)(16 U.S.C. 951 et seq.) authorizes
rulemaking to carry out IATTC recommendations. NMFS manages the
Atlantic SWO and tuna fisheries under the Fishery Management Plan for
Atlantic Tunas, Swordfish and Sharks (HMS FMP). Regulations
implementing the HMS FMP at 50 CFR part 635 were promulgated under the
authorities of the Magnuson-Stevens Fishery Conservation and Management
Act (M-SA or Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and ATCA.
NMFS manages SWO and tuna in the Pacific Ocean under the Western
Pacific Pelagics Fishery Management Plan (PFMP) that was prepared by
the Western Pacific Fishery Management Council (WPFMC). Regulations
implementing those plans at 50 CFR parts 300 and 660 were promulgated
under the authorities of the ATCA, TCA and the M-SA, respectively. The
Pacific Fishery Management Council also has developed an FMP for U.S.
West Coast Highly Migratory Species, which is under review.
Other authorities relevant to Pacific management include the South
Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.), the High Seas Fishing
Compliance Act (16 U.S.C. 5501 et seq.), and the U.S.-Canada Albacore
Treaty. A new Western and Central Tuna Fisheries Convention is likely
to come into force sometime in 2004. Customs requirements pertaining to
the import and export of product harvested by national and
international SWO and tuna fisheries include those under 19 U.S.C. 1 et
seq. and regulations of the Bureau of Customs and Border Protection
(CBP), formerly the U.S.
[[Page 16212]]
Customs Service (Customs), under title 19 of the CFR.
Statistical Document Programs
International commissions such as ICCAT, IATTC, CCSBT and the
Indian Ocean Tuna Commission (IOTC) have recognized the use of
statistical document programs as an effective tool to combat IUU
fishing by controlling the illegal trade of stocks and to improve the
effectiveness of conservation and management measures and the
scientific evaluation of the stocks. This proposed rule would implement
such programs for BFT, SBFT, BET, and SWO in the United States, which
includes the Commonwealth of Puerto Rico, American Samoa, the Virgin
Islands, Guam, and all other U.S. commonwealths, territories, or
possessions. Specifically, the regulations would require dealers who
import, export, or re-export these species from any ocean area to hold
an HMS international trade permit, complete statistical documents and
re-export certificates, and submit biweekly reports on these trade
activities. Documentation requirements would apply to all imports and
exports of the species regardless of whether an importing or exporting
nation is a member of one of the above-referenced commissions. Often,
non-member countries have difficulty obtaining HMS catch information
from vessels under their own flag. The statistical document programs
are designed to capture these unreported catches.
ICCAT, IATTC, and IOTC individually adopted recommendations for a
BET statistical document program, noting that better quality trade data
would reduce uncertainty in catch information for this species. NMFS is
proposing to implement a BET statistical document program, but is
considering delaying implementation of the documentation requirements
for fresh BET products initially and only implementing them for frozen
BET products. In the past, ICCAT and IATTC have recognized that prior
to implementing this program for fresh products, several practical
problems need to be solved, such as guidelines to ensure procedures for
handling fresh products at customs. NMFS particularly seeks public
comment on this issue.
Similar to the BET program, ICCAT's SWO statistical document
program is intended to track the trade of SWO and reduce IUU fishing.
The United States currently requires a SWO certificate of eligibility
(COE) for imports of SWO (50 CFR 635.46) to ensure that Atlantic SWO
imported into the United States meet ICCAT and NMFS minimum size
requirements. The ICCAT SWO statistical document program would
incorporate all the requirements of the COE, thus replacing the COE
requirement.
To be effective, the SWO and BET statistical document programs
track the international trade of SWO and BET whose origin is from any
ocean. Although ICCAT's area of concern is the Atlantic Ocean and
IATTC's area of concern is the eastern Pacific Ocean, these programs
would easily be circumvented if they did not also track catches from
other oceans. The ocean of origin for these species, once on the
international market, cannot be ascertained without documentation of
the flag state of harvesting vessels and ocean areas of catch.
Moreover, without validation, an importing country has no effective
means to tell whether a shipment is composed of Indian Ocean product
rather than Atlantic or Pacific. The trade tracking programs adopted by
these international commissions assist in providing a comprehensive,
global monitoring program for these species.
The BFT statistical document program, which was previously
implemented in the United States pursuant to an ICCAT recommendation
(60 FR 14381; March 17, 1995), set a precedent for tracking trade from
all ocean areas. When it was adopted, the ICCAT recommendation for the
BFT program only included a statistical document requirement for
imports and exports. A 1997 ICCAT recommendation added a re-export
certificate to the program; this requirement is included in this
proposed rule. More recently, the CCSBT has developed a SBFT
statistical document program and requested non-members such as the
United States to support this program. While the United States is not a
member of CCSBT and ICCAT has not issued a recommendation pertaining to
SBFT, the United States proposes to implement the CCSBT SBFT program
under its ATCA authority in order to ensure that there are no loopholes
in the existing BFT program. The BFT reporting requirements could be
circumvented if BFT is mislabeled as SBFT and not properly identified.
Thus, this proposed rule would therefore require U.S. dealers
importing, exporting, or re-exporting SBFT to comply with the SBFT
statistical document program in order to ensure the effectiveness of
the BFT program.
Form Design and Implementation Process
Prior to passing their statistical document recommendations, ICCAT,
IATTC, and technical experts extensively discussed the scope of areal
coverage and jurisdiction of international fishery organizations. As
described below, they also discussed the specific structure and format
of the statistical documents and suitability and applicability of
certain exemptions.
ICCAT convened an international meeting of technical experts in
July 2001 to consider and resolve technical issues related to the
implementation of the recommended SWO and BET statistical document
programs. Prior to this meeting, members of the U.S. fishing industry
were consulted to review initial BET and SWO statistical document
prototypes. Harmonization of all statistical document programs under
ICCAT purview (SWO, BET, and BFT) was also considered. At the July 2001
meeting, the U.S. proposed a single, harmonized document to track BFT,
SWO, and BET imports. 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. Some
experts expressed concern that the trade patterns and practices of the
three species were so different that one document was not practical. In
addition, some stated that there could be a risk to the current
functioning and effectiveness of the current BSD program if it was
altered to include additional species. As a result, ICCAT has developed
separate species-specific forms for BET and SWO. This proposed rule
allows the use of statistical documents from ICCAT, IATTC, or IOTC for
BET relative to area of harvest. The existing statistical document for
BFT will remain unchanged, and the statistical document approved by the
CCSBT for SBFT will be implemented.
Harmonizing these individual forms is a long-term goal of NMFS.
NMFS has begun and will continue to have discussions on how to
significantly streamline the existing reporting processes, reduce
paperwork, ease reporting requirements on dealers and minimize
government administrative oversight. However, in the interest of
implementing and complying with the ICCAT and IATTC recommendations as
soon as possible, NMFS proposes to implement these separate trade
tracking programs and associated paperwork through the existing
internal infrastructure. Several different NMFS offices on the east and
west coasts and western and central Pacific Islands already manage the
operations and tracking of HMS trade and dealer activity. This proposed
rule intends to implement the SWO and tuna trade tracking programs by
building on the existing body of expertise and
[[Page 16213]]
capability, thereby minimizing disruption and confusion between dealers
and associated NMFS offices. Extensive coordination and consultation
has taken place between the relevant NMFS offices to assist as much as
possible with smooth implementation of the program, if adopted, and to
assist with constituent concerns.
Dealer Permitting Requirements
NMFS proposes to require a Federal HMS international trade permit
for each dealer in the United States, including those in U.S.
commonwealths, territories, and possessions, who import, export, or re-
export BFT, SBFT, BET or SWO from any ocean area. These dealers would
have to prepare and submit appropriate statistical documents and re-
export certificates, complete biweekly reports and validate exports of
all BFT, BET, SBFT or SWO as described below. NMFS specifically
solicits public comment on implementation aspects of the proposed rule
as well as ideas for future improvements.
Dealer Statistical Documents and Re-export Certificate Reporting
Requirements
The proposed rule would require a completed statistical document as
a condition for the import or export of SBFT, BET or SWO, and a re-
export certificate for re-export of all BFT, SBFT, BET or SWO shipments
into or from the customs territory of the United States, which includes
the States, District of Columbia, and Commonwealth of Puerto Rico, 19
CFR 101.1, and into or from the customs territories of insular
possessions of the United States, which include the U.S. Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and other U.S. commonwealths, territories, and possessions
that are outside the customs territory of the United States, 19 CFR
7.2.The statistical document and, where appropriate, re-export
certificate would be required to accompany each fresh or frozen
shipment of BFT, SBFT, BET or SWO along with other shipping
documentation ordinarily required for international trade.
In order to be considered complete, the species-specific
statistical document or statistical document and re-export certificate
accompanying each shipment would have to include the information
required under proposed Subpart L to title 50 of the CFR, be certified
by the exporter, importer, and re-exporter, and be validated by a
government official or other non-government institution upon export or
re-export, as applicable. Copies of statistical documents or re-export
certificates may be obtained from NMFS (see ADDRESSES).
Dealers re-exporting BFT, SBFT, BET or SWO that were previously
imported into the customs territory of the United States or of a U.S.
insular possession, must complete the intermediate importer
certification section on the original statistical document that
accompanied the import shipment, and complete a re-export certificate
to accompany each fresh or frozen shipment of BET, BFT, SBFT, or SWO
for re-export. The original statistical document that accompanied the
import shipment must be included together with the original re-export
certificate for re-export. If the original shipment is subdivided into
sub-shipments and exported to more than one location, the original
statistical document or a copy must accompany each sub-shipment along
with an original re-export certificate.
The completed statistical document accompanying any import of BET,
SBFT, or SWO into the customs territory of the United States or any
U.S. insular possession must be validated by a responsible government
official of the country whose flag vessel harvested the fish regardless
of where it is first landed, unless NMFS waives this requirement for
that country pursuant to a recommendation by the appropriate
international commission. For BET, SBFT, or SWO exports from the United
States, the accompanying statistical document must be validated by a
U.S. Government official, unless an authorized waiver provides for
validation by NMFS-authorized non-government officials. BFT, SBFT, BET,
and SWO re-exports would also need to be validated by a U.S. Government
official, unless there is an applicable waiver. In the case of a U.S.
insular possession, a statistical document or re-export certificate may
be validated by a U.S. Government official, authorized government
official from that possession, or NMFS-authorized non-government
official. For any situations where validation by someone other than a
Federal NMFS official is authorized, NMFS may, in the future, consider
developing a verification system that assesses whether procedures set
up by third parties are working as intended. Such a verification system
may include auditing, random inspections, and compliance checks
The BSD program developed by ICCAT allowed for the use of BFT
dealer (BSD) tags to fulfill the validation requirement for statistical
documents. However, the statistical document programs for BET, SBFT,
and SWO do not include this provision and NMFS does not currently have
a system for issuing dealer tags for these species. If U.S. dealers
indicate an interest in having a tagging option for BET, SBFT, and SWO
as an alternative method for validating statistical documents, NMFS may
consider pursuing such an option at the appropriate international
commission. If the use of tags is recommended, then a system for
distributing, affixing, and recording tags on BET, SBFT and SWO could
be developed.
Responsible Parties for Certification
For purposes of exporter certification, the exporter would be
considered the person(s) or company that first exported the shipment
from the country where the fish is first landed.
For purposes of the importer certification, the intermediate
country importer would be considered the person(s) or company who
shipped the product through an intermediate country, entering that
country's customs territory as an import. An intermediate country for
the purposes of these proposed regulations under 50 CFR part 300, is
distinct from an intermediary nation as defined in section 3(5) of the
MMPA, 16 U.S.C. 1362(5). Shipments of BET, BFT, SBFT or SWO made on a
through bill of lading, or made in any other manner that does not enter
the products into that country's customs territory as an import, would
not make that country an intermediate country under the MMPA.
For purposes of the importer certification, the final destination
importer would be considered the persons or company that is the
recipient of the product at its final destination (i.e., country of
consumption).
Dealer Biweekly Reporting Requirements
All dealers who obtain an HMS international trade permit would be
required to submit biweekly reports on imports, exports, and re-exports
of BFT, SBFT, BET and/or SWO. The report would have to be postmarked
and mailed within 10 days after the end of each reporting period in
which BFT, SBFT, BET and/or SWO were imported, exported, or re-
exported. The biweekly reporting periods would be defined as the first
day to the fifteenth day of each month and the sixteenth day to the
last day of each month. Each report would have to specify accurately
and completely for each fish or shipment of bulk frozen fish exported:
date of landing or import; any tag number (if so tagged); and weight in
pounds (specify
[[Page 16214]]
if round or dressed). Negative reports would not be required.
Dealer Maintenance of Forms and Enforcement
Dealers would be required to maintain a copy of statistical
documents, re-export certificates, and biweekly reports (forms) and
records supporting the information provided in the forms for a period
of 2 years from the date on which each form was submitted to NMFS.
Also, dealers would be required to make forms and records available for
inspection and duplication by any person authorized to carry out
enforcement activities under these regulations, or any employee of NMFS
designated by the Regional Administrator or Assistant Administrator
(AA).
Applicable Products
The Harmonized Tariff Schedule (HTS) subheading numbers for each
product to which this proposed rule would apply are given below.
BFT: The re-export certificate proposed under this rule would be
required for all fresh or frozen BFT products exported from or imported
into the customs territory of the United States or of a U.S. insular
possession and identified by HTS subheading numbers for the following:
(1) Fresh or chilled BFT, excluding fillets and other fish meat,
No. 0302.39.00;
(2) Frozen BFT, excluding fillets, No. 0303.49.00.00.
SBFT: The statistical document and re-export certificate proposed
under this rule would be required for all fresh or frozen SBFT products
that are exported from or imported into the customs territory of the
United States or of a U.S. insular possession and identified by HTS
subheading numbers for the following:
(1) Fresh or chilled SBFT, excluding fish fillets and other fish
meat, No. 0302.36.00.00;
(2) Frozen SBFT, No. 0303.46.00.00.
BET: The statistical document and re-export certificate proposed
under this rule would be required for all fresh or frozen BET products
that are exported from or imported into the customs territory of the
United States or of a U.S. insular possession and identified by HTS
subheading numbers for the following:
(1) Fresh or chilled BET tuna, excluding fillets and other fish
meat, No. 0302.34.00.00;
(2) Frozen BET tuna, excluding fillets, No. 0303.44.00.00.
NMFS is considering whether implementation should be delayed for
fresh BET, and specifically seeks comment on this issue.
SWO: The statistical document and re-export certificate proposed
under this rule would be required for all SWO in any form that are
exported from or imported into the customs territory of the United
States or of a U.S. insular possession and identified by any HTS
subheading numbers including the following:
(1) Fresh or chilled SWO, steaks, No. 0302.69.20.41,
(2) Fresh or chilled SWO, excluding fish fillets, steaks, and other
fish meat, No. 0302.69.20.49,
(3) Frozen SWO, steaks, No. 0303.79.20.41,
(4) Frozen SWO, excluding fillets, steaks and other fish meat, No.
0303.79.20.49,
(5) Fresh, chilled or frozen SWO, fillets and other fish meat No.
0304.20.60.92.
Ports of Entry
To facilitate enforcement, the AA may, in the future, designate
ports of entry. If ports of entry are designated through a rulemaking,
all BFT, SBFT, BET and/or SWO entering the United States would be
restricted to those ports of entry. Currently, no ports of entry have
been proposed.
Enforcement
Under this proposed rule, any BET, SBFT, and/or SWO product
identified by the HTS subheading numbers referred to previously that is
unaccompanied by a completed statistical document would be considered
unlawful for importation into the United States. If the AA has
designated ports of entry for shipments of BET, SBFT, and/or SWO
products, any shipment arriving at non-designated ports of entry would
be considered unlawful and the importer would be subject to penalties
under ATCA. Actions that would be considered unlawful and subject to
penalties under NMFS and customs regulations include: importing,
exporting, or re-exporting BFT, BET, SBFT, and/or SWO without an
appropriate dealer permit, falsifying records, or failing to submit
reports and other required documentation.
Dealers would also be expected to allow inspections by government
officials or risk penalties. Similarly, non-government institutions
given authorization to validate statistical documents accompanying BET,
SBFT and SWO would also be subject to inspections by government
officials or risk penalties. Scienter requirements (i.e., knowledge and
intent level) and sanctions for TCA and ATCA violations are set forth
in 16 U.S.C. Sec. Sec. 957 and 971e.
This proposed rule also corrects an existing cross-reference in
Part 300 in the prohibitions set forth at Sec. 300.28(l).
Exemptions
The ICCAT and IATTC BET statistical document program
recommendations state that BET destined principally for canneries are
not subject to the statistical document requirement. Thus, BET caught
by purse seiners and pole and line (bait) vessels and destined
principally for the canneries in the United States, including Puerto
Rico and the United States Pacific coast and the western and central
Pacific Islands (e.g., American Samoa, Northern Marianas, and Guam),
would be exempt from the statistical document and re-export certificate
requirements under this proposed rule. This exemption would cover all
potential U.S. ports of entry, as well as ports within commonwealths,
territories, and possessions of the United States on the Pacific coast
and in the western and central Pacific Islands.
Dolphin Safe Tuna Requirements
This proposed rule would not change any requirements under the
Marine Mammal Protection Act (MMPA), as amended by the International
Dolphin Conservation Program Act (IDCPA), 16 U.S.C. 1361 et seq., and
their implementing regulations (50 CFR Part 216).
The MMPA established a moratorium with certain exceptions on the
taking or importation of marine mammals. Because of dolphin
interactions with purse seine vessels fishing for yellowfin tuna in the
eastern tropical Pacific Ocean (ETP), imports of yellowfin tuna from
the ETP are subject to various documentation and other requirements.
For an overview of the requirements, see http://www.nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/tunadolphin.html
.
Scenarios
The following are examples of use of the BET, SBFT, or SWO
statistical document programs under the proposed rule in which
shipments of BET, SBFT, and SWO are imported into or exported or re-
exported from the United States, which includes all U.S. commonwealths,
territories, and possessions:
1. Imports of fresh or frozen SWO, regardless of ocean of origin,
into the United States:
An ICCAT SWO statistical document would have to be validated by a
responsible government official by the exporting country and accompany
the
[[Page 16215]]
product. The exporter would complete the export, export certification,
and description of the shipment sections of the statistical document.
The exporter would also complete the SWO minimum size certification of
the statistical document. The original statistical document would
accompany the shipment to the United States and a copy would be
submitted to the domestic fisheries agency of the exporter.
If a U.S. importer plans to sell the fish for consumption in the
domestic market, the import section (naming a U.S. state and city as
final point of import) and the importer's certification section of the
statistical document would be completed by the importer. The original
statistical document with the importer's entries and certification
would be submitted to NMFS within 24 hours of time of import.
If a U.S. dealer re-exports the product, the U.S. dealer would
complete the importer's certification section of the statistical
document (naming the United States as the intermediate country) and a
re-export certificate. The dealer would also be required to obtain
validation of the re-export certificate. The original statistical
document, with the intermediate country importer's entries and
certification, and the re-export certificate would accompany the
shipment to the final destination. If the shipment was subdivided and
re-exported to more than one location, the original statistical
document or a copy and an original re-export certificate would be
required for each sub-shipment. Completed copies would be submitted to
NMFS within 24 hours of the time of re-export.
2. Exports of U.S.-caught fresh SWO, regardless of ocean of origin,
from the United States:
Exports of SWO or SWO products, whether fresh or frozen, would be
accompanied by an ICCAT SWO statistical document. The exporter would
complete the export, exporter certification, and description of
shipment sections of the statistical document and have the document
validated by either a U.S. Government official or an authorized non-
Government institution or association. In the case of a U.S. insular
possession, validation can be made by a U.S. Government official,
authorized government official from that possession, or NMFS-authorized
non-government official. The original statistical document with the
exporter's entries and certification would accompany the shipment to
the final destination, and a completed copy would be submitted to NMFS
within 24 hours of the time of export.
3. Exports of U.S.-caught fresh or frozen BET, regardless of ocean
of origin, from the United States:
Exports of BET, whether fresh or frozen, would be accompanied by a
species specific statistical document. When exporting Atlantic BET, the
ICCAT statistical document would be used. When exporting Pacific BET,
the IATTC statistical document would be used. The exporter would
complete the export, exporter certification, and description of
shipment sections on the appropriate statistical document and have the
document validated by either a U.S. Government official or an
authorized non-Government institution or association. In the case of a
U.S. insular possession, validation can be made by a U.S. Government
official, authorized government official from that possession, or NMFS-
authorized non-government official. The original statistical document
with the exporter's entries and certification would accompany the
shipment to the final destination, and a completed copy of the
statistical document would be submitted to NMFS by the exporter within
24 hours of the time of export.
4. Re-Exports of fresh or frozen BET or SWO, regardless of ocean of
origin, through the United States:
If a U.S. dealer imports and then re-exports a product, the dealer
would complete the importer's certification section of the statistical
document (naming the United States as the intermediate country) and re-
exporter section of the re-export certificate. The dealer would also
need validation of the re-export certificate. When re-exporting
Atlantic BET (e.g. an ICCAT statistical document accompanies the
shipment), the ICCAT Re-export certificate would be used. When re-
exporting Pacific BET (e.g. an IATTC statistical document accompanies
the shipment), the IATTC re-export certificate would be used. The
original statistical document, with the intermediate country importer's
entries and certification, and the re-export certificate would
accompany the shipment to the final destination, and a completed copy
would be submitted to NMFS within 24 hours of the time of re-export. If
the shipment was subdivided and re-exported to more than one location,
the original statistical document or a copy of the original statistical
document would accompany each sub-shipment along with an original re-
export certificate.
Classification
This proposed rule is published under the authority of the ATCA, 16
U.S.C. 971 et seq., the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.)
and the TCA (16 U.S.C. 955 et seq.). The AA has preliminarily
determined that this proposed rule is necessary to implement the
recommendations of ICCAT and IATTC and is necessary for the management
of BFT, BET and SWO.
NMFS has prepared a Regulatory Impact Review and an Initial
Regulatory Flexibility Analysis (IRFA) that examine the impacts of the
alternatives for implementing the ICCAT and IATTC recommendations for
international trade monitoring programs. The objectives of the proposed
rule, its legal basis, and reasons for its consideration are set forth
in the Summary and Supplementary Information sections of this Preamble.
The proposed programs would affect approximately 1,890 seafood dealers
that participate in international trade of swordfish, bluefin tuna,
southern bluefin tuna and bigeye tuna, all of which are considered
small entities. Impacts to dealers would occur in two areas -
permitting and reporting. NMFS expects only minor negative economic
impacts from the preferred alternative because the proposed measures
only involve adjusting the permitting and reporting requirements. A
description of the alternatives, associated requirements, and estimated
costs follows.
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 preferred alternative (alternative 1) and
alternative 4 would implement the recordkeeping requirements by linking
them to the proposed HMS international dealer trade permit for dealers
of these species. The preferred alternative 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 SBFT statistical
documents or require a dealer permit for trading in SBFT. Alternative 3
would implement the trade program by building onto existing dealer
permits and associated recordkeeping requirements. Overall, the
immediate costs associated with the preferred alternative 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. dealer under
the
[[Page 16216]]
preferred alternative and alternative 4 is expected to be $100 plus the
time of filling 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 dealers. The permit-associated cost for the
preferred alternative and alternative 4 differs from building onto
existing systems (alternative 3) in an amount between $0 to $100 per
dealer, depending upon the other permits held by the dealer. Under
alternative 3, if the dealer 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 dealer were required to have a swordfish
permit for importing or exporting swordfish, the cost could be either
$25 or $100, depending upon whether the dealer has another permit
issued by the Southeast Region of NMFS. NMFS estimates that
approximately 960 dealers would be impacted by the preferred
alternative and alternative 3. Alternative 4 would entail similar costs
per dealer as alternative 1; however, slightly fewer dealers would be
impacted since dealers trading in southern bluefin tuna without trade
in any of the other covered species would not be required to purchase a
permit.
NMFS estimates that approximately 1,890 dealers (930 foreign and
960 domestic) could be impacted by the reporting requirements under the
preferred alternative and alternatives 3 and 4. Impacts for each of
these alternatives is expected to be approximately the same since all
dealers must submit the required reports, regardless of the type of
permit. 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 dealer, 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 four would
eliminate the need for reporting southern bluefin tuna trade, so costs
would be slightly reduced. Finally, dealers could be negatively
impacted if the time burden interferes with how dealers 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 does not believe that the proposed alternatives would conflict
with any relevant regulations, federal or otherwise. To avoid
duplication with the requirements of the HMS ITP, this rule would
remove the international components of the existing swordfish and
Atlantic tuna dealer permits.
This proposed rule has been determined to be not significant for
the purposes of E.O. 12866.
This proposed rule contains new and revised collection-of-
information requirements subject to review and approval by OMB under
the Paperwork Reduction Act. These requirements have been submitted to
OMB for approval. The public reporting burden for completing an
application for a Federal permit for Atlantic coast dealers that
import, export, or re-export BET, BFT, SBFT, or SWO is estimated at
0.08 hours (5 minutes) per response. The public reporting burden for
dealers for collection-of-information on dealer 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; 0.25 hours (15 minutes) for Southeast Region HMS
dealer report; 0.05 hours (3 minutes) for Southeast Region HMS dealer
negative reporting; 0.25 hours (15 minutes) for Atlantic BFT biweekly
dealer report; 0.02 hours (1 minute) for tagging; and 0.03 hours (2
minutes) for landing cards. The proposed 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.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS at
the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax
to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
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: March 22, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR parts 300 and 635 to read as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
1. The authority citation for subpart C is revised to read as
follows:
Authority: 16 U.S.C. 951-961 et seq.
2. In subpart C, 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.
3. In Sec. 300.21, remove the definitions for ``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, the Act, and the
Convention for the Establishment of an Inter-American Tropical Tuna
Commission, the terms used in this subpart have the following meanings.
If a term is defined differently in Sec. 300.2, the Act, or the
[[Page 16217]]
Convention, the definition in this section shall apply.
* * * * *
Subpart C [Amended]
4. Remove Sec. Sec. 300.24 through 300.25 and redesignate
Sec. Sec. 300.28 and 300.29 as Sec. Sec. 300.24 and 300.25,
respectively, and remove and reserve Sec. Sec. 300.26 through 300.27.
5. In newly redesignated Sec. 300.24, remove (e) through (g),
redesignate paragraphs (h) through (l) as paragraphs (e) through (i),
respectively, and revise newly redesignated paragraphs (h) and (i) to
read as follows:
Sec. 300.24 Prohibitions.
* * * * *
(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.
6. Subpart L is added to read as follows:
Subpart L--International Trade Documentation and Tracking Programs
Sec.
300.180 Purpose and scope.
300.181 Definitions.
300.182 Highly migratory species (HMS) international trade permit.
300.183 Dealer recordkeeping and reporting.
300.184 Species subject to documentation requirements.
300.185 Documentation and reporting requirements.
300.186 Contents of documentation.
300.187 Validation requirements.
300.188 Ports of entry.
300.189 Prohibitions.
Subpart L--International Trade Documentation and Tracking Programs
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.
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
Sec. 101.1 of title 19 of the CFR and includes only the States, the
District of Columbia, and Puerto Rico.
Dealer, for purposes of this subpart, means, unless otherwise
specified, a person who obtains a dealer permit under Sec. 300.182 of
this subpart.
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.
Export means, for purposes of this subpart, a shipment to a
destination outside the customs territory of the United States for
which a Shipper's Export Declaration Commerce Form (7525-V) is
required. For a U.S. insular possession, an export means a shipment to
a destination outside the customs territory of that possession for
which authorized export documentation from that possession's customs
authority is required. HMS destined from one foreign country to
another, which transit the customs territory of the United States or a
U.S. insular possession and for which a Shipper's Export Declaration or
authorized, equivalent documentation is not required to be filed, is
not an export under this definition.
Exporter means the principal party responsible for effecting export
from the United States as listed on the Shipper's Export Declaration
Commerce Form (7525-V) or any authorized, equivalent electronic medium,
or any authorized export documentation from the customs authority of a
U.S. insular possession.
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, bigeye tuna, southern bluefin tuna and swordfish and products of
these species.
Foreign dealer, for purposes of this subpart, means a person who
imports fish products regulated under this subpart from the United
States or exports fish or fish products regulated under this subpart to
the United States.
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.
International Commission, as defined under this subpart, means
CCSBT, IATTC, ICCAT, or IOTC.
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.
Import means, for the purposes of this subpart, the release of HMS
from a nation's customs' custody and entry into the customs territory
of that nation. HMS are imported into the customs territory of the
United States pursuant to filing an entry summary document (Customs
Form 7501) or any authorized, equivalent electronic medium. HMS are
imported into the customs territory of a U.S. insular possession
pursuant to filing any authorized entry documentation from that
possession's customs authority. HMS destined from one foreign country
to another that transit the customs territory of the United States or a
U.S. insular possession and for which an entry summary or equivalent
documentation is not required to be filed, is not an import under this
definition.
Importer, for the purposes of this subpart, means the importer of
record as declared on U.S. Customs Form 7501 or any authorized,
equivalent electronic medium, or any authorized entry documentation
from the customs authority of a U.S. insular possession.
Insular possession of the United States or U.S. insular possession,
for purposes of this section, 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 by that nation. Shipments of HMS
through a country on a through bill of lading or in another
[[Page 16218]]
manner that does not enter the shipments into that country as an
importation do not make that country an intermediate country under this
definition.
Pacific Bluefin Tuna means the species Thunnus orientalis found in
the Pacific Ocean.
Re-export, for purposes of this subpart, means the export of HMS
that were previously imported into the customs territory of the United
States or a U.S. insular possession.
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.
Sec. 300.182 HMS international trade permit.
(a) General. A person importing, exporting, or re-exporting fish or
fish products regulated under this subpart from any ocean area must
possess a valid dealer 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 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. If the applicant fails to correct the deficiency within 15
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 dealer to whom it
is issued.
(h) Inspection. The dealer 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 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 15 days after any
change in the information contained in an application submitted under
this section, the dealer issued a permit must report the change to NMFS
in writing. The permit is void if any change in information is not
reported within 15 days.
(l) Renewal. Persons must apply annually for a dealer 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 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 50 CFR Part 635.5; and the applicant is not subject to a permit
sanction or denial under paragraph (i) of this section.
Sec. 300.183 Dealer recordkeeping and reporting.
(a) Any person issued a dealer permit under Sec. 300.182 must
submit to NMFS a biweekly report of imports, exports, and re-exports of
fish or fish products regulated under this subpart on forms supplied by
NMFS.
(1) The report required to be submitted under paragraph (a) must be
postmarked within 10 days after the end of each biweekly reporting
period in which bluefin tuna, southern bluefin tuna, bigeye tuna, or
swordfish were imported, 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 the month.
(2) Each report must specify accurately and completely the
requested information for fresh shipments of fish or fish products
regulated under this subpart, and for each shipment of bulk-frozen fish
or fish products regulated under this subpart that are imported,
exported or re-exported.
(b) Any person issued a dealer 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 it was submitted to NMFS.
(c) Any person authorized to carry out the enforcement activities
under the regulations in this part 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 or re-export certificates, sales receipts, or other records
and reports required by this part to be made, kept, or furnished. A
dealer that has been issued a permit under Sec. 300.182 must allow
NMFS or an authorized person to inspect and copy any required reports
and the records, in any form, on which the completed reports are based,
wherever they exist. An agent of a person issued a dealer 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
identified by the following subheading numbers from the Harmonized
Tariff Schedule:
(i) Fresh or chilled bluefin tuna, excluding fillets and other fish
meat, No. 0302.35.00.00.
(ii) Frozen bluefin tuna, excluding fillets, No. 0303.45.00.00.
(2) In addition, bluefin tuna products in other forms (e.g.,
chunks, fillets, canned) listed under any other
[[Page 16219]]
subheading numbers from the Harmonized Tariff Schedule are subject to
the documentation requirements of this subpart, except that fish parts
other than meat (e.g., heads, eyes, roe, guts, tails) may be allowed
entry without said statistical documentation.
(b) Southern bluefin tuna. (1) Documentation is required for
southern bluefin tuna identified by the following subheading numbers
from the Harmonized Tariff Schedule:
(i) Fresh or chilled southern bluefin tuna, excluding fillets and
other fish meat, No. 0302.36.00.00
(ii) Frozen southern bluefin tuna, excluding fillets, No.
0303.46.00.00.
(2) [Reserved]
(c) Bigeye tuna. (1) Documentation is required for bigeye tuna
identified by the following subheading numbers from the Harmonized
Tariff Schedule:
(i) Fresh or chilled bigeye tuna, excluding fillets and other fish
meat, No. 0302.34.00.00.
(ii) Frozen bigeye tuna, excluding fillets, No. 0303.44.00.00.
(2) 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 allowed
entry without the statistical documentation required under this
section.
(d) Swordfish. (1) Documentation is required for swordfish
identified by the following subheading numbers from the Harmonized
Tariff Schedule:
(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) [Reserved]
Sec. 300.185 Documentation and reporting requirements.
Imports into and exports or re-exports from the customs territory
of the United States or a U.S. insular possession of fish or fish
products specified under Sec. 300.184 are subject to the documentation
and reporting requirements of this subpart.
(a) Imports. (1) Imports of all fish or fish products specified
under Sec. 300.184 into the customs territory of the United States or
a U.S. insular possession must, at the time of completing an entry
summary, be accompanied by an original completed approved species
specific statistical document with the information and exporter's
certification specified in Sec. 300.186. An entry summary consists of
a Customs Form 7501 or authorized, electronic equivalent, or other
authorized, equivalent document from the customs authority of a U.S.
insular possession. Customs Form 7501 can be obtained by contacting the
local Customs and Border Protection port office; contact information is
available at http://www.cbp.gov. For a U.S. insular possession, contact the
local customs office for any forms required for entry. 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). The U.S.
dealer who receives the imported fish products either for domestic
commercial use or for re-export 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 the entry summary.
(2) Bluefin tuna imported into the customs territory of the United
States or 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 all
U.S. commonwealths, territories, and 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. For imports of fish or fish products regulated under
this subpart whose final destination is within the United States, which
includes all U.S. commonwealths, territories, and possessions, a dealer
must submit to NMFS the original statistical document that accompanied
the fish product as completed under paragraph (a)(1) of this section. A
copy of the original completed statistical document must be postmarked
and mailed, or faxed, by said dealer to NMFS at an address designated
by NMFS within 24 hours of the time the fish product was imported into
the customs territory of the United States or a U.S. insular
possession. For imports of fish products specified in Sec. 300.184
which are re-exported, a dealer must submit to NMFS a copy of the
statistical document that accompanied the product as completed under
paragraph (a)(1) of this section and a copy of the re-export
certificate as completed under paragraph (c)(1) of this section.
(b) Exports. (1) A dealer who exports 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 U.S. insular possession,
must complete an original numbered species specific statistical
document issued to that dealer by NMFS. Such an individually numbered
document is not transferable and may be used only once by the dealer to
which it was issued to report on a specific export shipment. A dealer
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 a U.S.
Government official, authorized government official for a U.S. insular
possession, or authorized non-government official. A list of such
officials may be obtained by contacting NMFS. A dealer 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.
(2) For exports of fish or fish products regulated under this
subpart, a dealer must submit an original statistical document as
completed under paragraph (b)(1) of this section to accompany the
shipment of such products to their export destination. A copy of the
statistical document must be postmarked and mailed by said dealer to
NMFS, at an address designated by NMFS, within 24 hours of the time the
fish product was exported from the United States.
(c) Re-exports. (1) A dealer who re-exports fish or fish products
regulated under this subpart that were previously imported into the
customs territory of the United States or a U.S. insular possession
through filing the documentation specified under paragraph (a)(1) of
this section must complete an original individually numbered species
specific re-export certificate issued to that dealer by NMFS. Such an
individually numbered document is not transferable and may be used only
once by the dealer to which it was issued to report on a specific re-
export shipment. A dealer must provide on the re-export certificate the
correct
[[Page 16220]]
information and re-exporter certification specified in Sec. 300.186.
The dealer must also attach the original statistical document that
accompanied the import shipment and provide the correct information and
intermediate importer's certification specified in Sec. 300.186 and
must note on the top of both the statistical document and the re-export
certificate the entry number assigned at the time of filing the entry
summary. If the original shipment is subdivided into sub-shipments for
re-export to more than one location, the original statistical document
or a copy must be attached to each re-export shipment.
(2) The re-export certificate must be validated, as specified in
Sec. 300.187, by a U.S. Government official, authorized government
official for a U.S. insular possession, or authorized non-government
official. A list of such officials may be obtained by contacting NMFS.
A dealer requesting U.S. validation for re-exports should notify NMFS
as soon as possible to avoid delays in inspection and validation of the
re-export shipment. 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 for which an
entry summary, as specified under paragraph (a)(1) of this section, is
not filed and for which a Shipper's Export Declaration for in-transit
merchandise must be filed. A Shipper's Export Declaration consists of
an ENG Form 7513 or electronic equivalent, or other authorized,
equivalent document from the customs authority of a U.S. insular
possession. ENG Form 7513 can be obtained by contacting the U.S. Army
Corps of Engineers at http://www. iwr.usace.army.mil/ndc/usforeign/.
For a U.S. insular possession, contact the local customs office for any
forms required for in-transit merchandise.
(3) For re-exports of fish products specified in Sec. 300.184, a
dealer must submit the original of the completed statistical document
and re-export certificate completed as specified under paragraphs
(c)(1) and (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 must be postmarked and
mailed by said dealer to NMFS, at an address designated by NMFS, within
24 hours of the time the fish product was re-exported from the United
States.
(d) Recordkeeping. A dealer 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. A dealer must comply with the inspection
requirements provided at Sec. 300.183(c).
Sec. 300.186 Contents of documentation.
(a) Statistical Documents. All statistical documents, to be deemed
complete, 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 Sec.
300.186(a), 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. 635.5(b) of this
or pursuant to Sec. 300.187(d).
(c) Southern Bluefin Tuna Statistical Documents. Southern bluefin
tuna statistical documents, to be deemed complete, in addition to the
elements in Sec. 300.186(a), must also state:
(1) The name and address of the processing establishment, if
applicable.
(2) [Reserved]
(d) Bigeye Tuna Statistical Documents. Bigeye tuna statistical
documents, to be deemed complete, in addition to the elements in Sec.
300.186(a), must 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. Swordfish statistical
documents, to be deemed complete, in addition to the elements in Sec.
300.186(a), must state:
(1) Certification by the exporter that the individual Atlantic
swordfish included in the shipment are greater than 15 kilograms (33
lb) or if pieces, that the pieces were derived from a swordfish
weighing more than 15 kilograms (33 lb).
(2) [Reserved]
(f) Re-Export Certificates. All re-export certificates, to be
deemed complete 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
[[Page 16221]]
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 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. Bluefin tuna re-export
certificates, to be deemed complete, in addition to the elements in
Sec. 300.186(f), must 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) 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 a U.S. insular possession. Foreign dealers in a country that
does not provide an approved statistical document or re-export
certificate to exporters may obtain an approved statistical document or
re-export certificate from the appropriate website as follows:
http://www.iccat.org, www.iattc.org, www.ccsbt.org, or www.iotc.org to
accompany exports to the United States.
(i) A foreign dealer who exports or re-exports fish or fish
products regulated under this subpart to the United States may use an
approved statistical document or re-export certificate obtainable from
the websites listed in paragraph (h) of this section or a document
developed by the country of export, if that country submits a copy to
the ICCAT Executive Secretariat and NMFS concurs with the ICCAT
Secretariat's determination that the document meets the information
requirements of the ICCAT recommendation. In such case, NMFS will
provide a list of countries for which statistical documents and re-
export certificates are approved, with examples of approved documents,
to the appropriate official of the Bureau of Customs and Border
Protection or customs authority for a U.S. insular possession.
Effective upon the date indicated in such notice to the customs
officials, shipments of fish or fish products regulated under this
subpart offered for importation from said country(ies) may be
accompanied by either that country's approved statistical document or
re-export certificate or by the statistical document or re-export
certificate obtained by the foreign country exporter from the websites
listed in paragraph (h) of this section.
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 recommendation
of the relevant international commission. NMFS will furnish a list of
countries for which government validation requirements are waived to
the appropriate official of the Bureau of Customs and Border Protection
or customs authority for a U.S. insular possession. 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 and re-exports. The approved statistical document and,
as appropriate, re-export certificate accompanying any export or re-
export of fish or fish products regulated under this subpart from the
United States or a U.S. insular possession must be validated, except
pursuant to a waiver, if any, specified on the form and accompanying
instructions, or in a letter to the permitted dealer from NMFS.
Validation must be made by a U.S. Government official or authorized
government official from a U.S. insular possession. Any waiver of
government validation will be consistent with applicable
recommendations of the respective international commission concerning
validation of statistical documents and re-export certificates. If
authorized, such waiver of government validation may include:
(1) Exemptions from government validation for Pacific bluefin tuna
with individual BSD tags affixed pursuant to paragraph (d) of this
section or for Atlantic bluefin tuna with tags affixed pursuant to
Sec. 635.5(b) of this title; or
(2) Validation by non-government officials authorized to do so by
NMFS under paragraph (c) of this section.
(c) Authorization for non-government validation. An institution or
association 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, and provide an example of the stamp or seal to be
applied to the statistical document or re-export certificate. NMFS,
upon finding the institution or association 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
from the United States. The effectiveness of such authorization will be
delayed as necessary for NMFS to notify the appropriate international
commission of non-government institutions and associations authorized
to validate statistical document or re-export certificates.
Institutions or associations given authorization to validate
statistical documents or re-export certificates must renew such
authorization on a yearly basis.
(d) BSD tags--(1) Issuance. NMFS will issue numbered BSD tags for
use on Pacific bluefin tuna upon request to each person receiving a
dealer's permit under Sec. 300.182.
(2) Transfer. BSD tags issued under this section are not
transferable and are usable only by the permitted dealer to whom they
are issued.
(3) Affixing BSD tags. At the discretion of dealers permitted under
Sec. 300.182, a tag issued under paragraph (1) of this section may be
affixed to Pacific bluefin tuna purchased or received by the dealer. If
so tagged, the tag must be affixed to the tuna between the fifth dorsal
finlet and the keel and tag numbers must be recorded on NMFS reports
required by Sec. 300.183 and any documents accompanying the shipment
of bluefin tuna for domestic commercial use or export as indicated in
Sec. 300.186.
(4) Removal of tags. A tag, as defined in this subpart and affixed
to any bluefin tuna, must remain on the fish until it is cut into
portions. If the bluefin tuna or bluefin tuna parts subsequently are
packaged for transport for domestic commercial use or for export, the
number of the dealer tag or the BSD tag must be written legibly and
indelibly on
[[Page 16222]]
the outside of any package containing the bluefin tuna. Such tag number
also must be recorded on any document accompanying the shipment of
bluefin tuna for commercial use or export.
(5) Labeling. BSD tags affixed to a Pacific bluefin tuna under
paragraph (d)(3) must be recorded on any document accompanying the
shipment of the fish or fish product 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 Bureau of Customs and Border Protection, those
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. Sec. 300.4,
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, receive for export, export, or re-export any fish or
fish product regulated under this subpart or purchase or receive for
export any fish or fish product regulated under this subpart without a
valid dealer permit issued under Sec. 300.182.
(c) Fail to possess and make available for inspection a dealer
permit at the dealer'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 for
imported, exported, or re-exported fish or fish product regulated under
this subpart as specified in Sec. Sec. 300.185 and 300.186.
(g) Fail to comply with the documentation requirements for the
importation, exportation, or re-exportation of a swordfish, or part
thereof, that is less than the minimum size, as specified in Sec.
300.186.
(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,
export, re-export, or have in custody, possession, or control any fish
or fish product regulated under this subpart that was imported,
exported, or re-exported contrary to this subpart.
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
1. 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.
2. 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, 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, 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, must possess a valid dealer
permit.
* * * * *
3. In Sec. 635.5, remove paragraph (b)(1)(ii) and redesignate
paragraphs (b)(1)(iii) through (b)(1)(v) as (b)(1)(ii) through
(b)(1)(iv), respectively, and revise paragraph (b) introductory text,
(b)(1)(i) and newly redesignated paragraph (b)(1)(ii) to read as
follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(b) Dealers. Persons who have been issued a dealer permit under
Sec. 635.4 must submit reports to NMFS, to an address designated by
NMFS, and maintain records as follows:
(1) Atlantic HMS. (i) Dealers that have been issued an Atlantic
tunas, swordfish and/or sharks dealer permit under Sec. 635.4 must
submit to NMFS all reports required under this section.
(ii) Reports of Atlantic tunas, Atlantic swordfish, and/or Atlantic
sharks received by dealers from U.S. vessels, as defined under Sec.
600.10, 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.
* * * * *
Subpart D [Amended]
4. In subpart D, Sec. 635.41 is removed and Sec. 635.45 is
redesignated as Sec. 635.41 and Sec. Sec. 635.42, 635.43, 635.44,
635.46, and 635.47 are removed and reserved.
5. In subpart F, Sec. 635.71 paragraphs (b)(2), (b)(25), (e)(10)
and (e)(12) are
[[Page 16223]]
removed and reserved and paragraphs (a)(24), (b)(26) and (e)(1) are
revised 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. Sec. 635.40 or
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. 04-6857 Filed 3-26-04; 8:45 am]
BILLING CODE 3510-22-S