67268 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

Areas 7 and 7A Purse Seine: Open to 

fishing from 5 a.m. until 9 p.m., both 

July 28 and July 29, 2004.

Areas 7 and 7A Reef Net: Open to 

fishing from 5 a.m. until 9 p.m., both 

July 28 and July 29, 2004.

Order No. 2004–04: Issued 5 p.m., July 

27, 2004.

Treaty Indian Fisheries

Areas 4B, 5, and 6C: Open for drift 

gillnets from 12 p.m. (noon) 

Wednesday, July 28, 2004, to 12 p.m. 

(noon), Saturday, July 31, 2004.

Areas 6, 7, and 7A: Open to net 

fishing from 4 a.m., Thursday, July 29, 

2004, to 8 a.m., Saturday, July 31, 2004.

All Citizen Fisheries

Areas 7 and 7A Gillnet: Open to 

fishing from 8 a.m. until 11:59 p.m. 

(midnight), July 30, 2004.

Areas 7 and 7A Purse Seine: Open to 

fishing from 5 a.m. until 9 p.m., July 30, 

2004.

Areas 7 and 7A Reef Net: Open to 

fishing from 5 a.m. until 9 p.m., both 

July 30 and August 1, 2004.

Order No. 2004–05: Issued 5 p.m., July 

30, 2004.

Treaty Indian Fisheries

Areas 4B, 5, and 6C: Open for drift 

gillnets from 12 p.m. (noon) Saturday, 

July 31, 2004, to 12 p.m. (noon), 

Saturday, August 7, 2004.

Areas 6, 7, and 7A: Open to net 

fishing from 4 a.m., Sunday, August 1, 

2004, to 11:59 p.m., Friday, August 6, 

2004.

All Citizen Fisheries

Areas 7 and 7A Gillnet: Open to 

fishing from 8 a.m. until 11:59 p.m. on 

the following dates: August 3 through 

August 6, 2004.

Areas 7 and 7A Purse Seine: Open to 

fishing from 5 a.m. until 9 p.m. on the 

following dates: August 3 through 

August 6, 2004.

Areas 7 and 7A Reef Net: Open to 

fishing from 5 a.m. until 9 p.m. on the 

following dates: July 31, and August 3 

through August 6, 2004.

Order No. 2004–06: Issued 3 p.m., 

August 6, 2004.

Treaty Indian Fisheries

Areas 4B, 5, and 6C: Open for drift 

gillnets from 12 p.m. (noon) Saturday, 

August 7, 2004, to 12 p.m. (noon), 

Saturday, August 14, 2004.

Areas 6, 7, and 7A: Open to net 

fishing from 12:01 a.m., Saturday, 

August 7, 2004 to 11:59 p.m., Friday, 

August 13, 2004.

All Citizen Fisheries

Areas 7 and 7A Gillnet: Open to 

fishing from 8 a.m. until 11:59 p.m. on 

the following dates: August 10 through 

August 13, 2004.

Areas 7 and 7A Purse Seine: Open to 

fishing from 5 a.m. until 9 p.m. on the 

following dates: August 10 through 

August 13, 2004.

Areas 7 and 7A Reef Net: Open to 

fishing from 5 a.m. until 9 p.m. on the 

following dates: August 10 through 

August 13, 2004.

Order No. 2004–07: Issued 2 p.m., 

August 13, 2004.

Treaty Indian Fisheries

Areas 4B, 5, and 6C: Open for drift 

gillnets from 12 p.m. (noon) Saturday, 

August 14, 2004, to 11:59 p.m., 

Saturday, August 14, 2004.

Areas 6, 7, and 7A: Open to net 

fishing from 12:01 a.m., Saturday, 

August 14, 2004, to 11:59 p.m., 

Saturday, August 14, 2004.

The Assistant Administrator for 

Fisheries NOAA (AA), finds that good 

cause exists for the inseason orders to be 

issued without affording the public 

prior notice and opportunity for 

comment under 5 U.S.C. 553(b)(B) as 

such prior notice and opportunity for 

comments is impracticable and contrary 

to the public interest. Prior notice and 

opportunity for public comment is 

impracticable because NMFS has 

insufficient time to allow for prior 

notice and opportunity for public 

comment between the time the stock 

abundance information is available to 

determine how much fishing can be 

allowed and the time the fishery must 

open and close in order to harvest the 

appropriate amount of fish while they 

are available.

Moreover, such prior notice and 

opportunity for public comment is 

impracticable because not closing the 

fishery upon attainment of the quota 

would allow the quota to be exceeded 

and thus compromise the conservation 

objectives established preseason, and it 

does not allow fishers appropriately 

controlled access to the available fish at 

the time they are available.

The AA also finds good cause to 

waive the 30–day delay in the effective 

date, required under 5 U.S.C. 553(d)(3), 

of the inseason orders. A delay in the 

effective date of the inseason orders 

would not allow fishers appropriately 

controlled access to the available fish at 

that time they are available.

This action is authorized by 50 CFR 

300.97, and is exempt from review 

under Executive Order 12866.

Authority: 16 U.S.C. 3636(b).

Dated: November 10, 2004.

Alan D. Risenhoover,

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service.

[FR Doc. 04–25524 Filed 11–16–04; 8:45 am]

BILLING CODE 3510–22–S

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.

SUMMARY: This final rule implements 

international trade tracking 

recommendations of the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT) and the InterAmerican 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:

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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. Reexport 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

67270 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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 § 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 § 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 reexports (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 reexport certificate. If the shipment is 

subdivided or consolidated, then a reexport certificate identifying the 

complete contents of the shipment must 

be completed and validated for each reexport 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 § 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 §§ 635.20 

and 635.31; adjusts the definitions of 

‘‘import,’’ ‘‘export,’’ ‘‘importer,’’ and 

‘‘exporter’’ in § 635.2 to be consistent 

with § 300.182 and CBP and Census 

Bureau regulations, adds a definition for 

‘‘exportation,’’ and removes the 

definition of ‘‘Swordfish Certificate of 

Eligibility (COE)’’ from § 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

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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 reexport certificates may be validated by 

either NMFS or another entity 

authorized by NMFS. A nongovernment 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 costefficient 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

67272 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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, reexport 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 reexport 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

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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 reexport 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

67274 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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 reexport 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

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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 reexported 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

67276 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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 nongovernment 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 reexported 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 reexports. 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.

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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.

■ 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

■ 1. The authority citation for subpart C 

is revised to read as follows:

Authority: 16 U.S.C. 951–961 et seq.

■ 2. Revise § 300.20 to read as follows:

§ 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 § 300.21, remove the definitions 

for ‘‘Bluefin tuna,’’ ‘‘Pacific bluefin 

tuna,’’ and ‘‘Tag,’’ and revise the 

introductory paragraph to read as 

follows:

§ 300.21 Definitions.

In addition to the terms defined in 

§ 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 § 300.2, in the Act, or in 

the Convention, the definition in this 

section shall apply.

* * * * *

§§ 300.24 and 300.25 [Removed]

■ 4. Remove §§ 300.24 and 300.25.

§§ 300.28 and 300.29 [Redesignated as 

§§ 300.24 and 300.25]

■ 5. Redesignate §§ 300.28 and 300.29 as 

§§ 300.24 and 300.25, respectively.

■ 6. In newly redesignated § 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:

§ 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 § 300.25;

* * * * *

(h) Fail to use the sea turtle handling, 

release, and resuscitation procedures in 

§ 300.25(e); or

(i) Fail to report information when 

requested by the Regional Administrator 

under § 300.22.

§§ 300.26 and 300.27 [Removed]

■ 7. Remove §§ 300.26 and 300.27.

■ 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.

§ 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.

§ 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 § 635.4 of this title as required 

under § 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

67278 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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 § 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 

§ 300.182.

§ 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

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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 31st 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 §§ 300.183, 300.185, 

300.186, and 300.187 and § 635.5 of this 

title; and the applicant is not subject to 

a permit sanction or denial under 

paragraph (i) of this section.

§ 300.183 Permit holder reporting and 

recordkeeping requirements.

(a) Biweekly reports. Any person 

issued a trade permit under § 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 § 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 § 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.

§ 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

67280 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

fish parts other than meat (e.g., heads, 

eyes, roe, guts, tails) may be allowed 

entry without said statistical 

documentation.

§ 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 § 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 § 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 § 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 

§ 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 § 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 

§ 300.186. The statistical document 

must be validated, as specified in 

§ 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 

§ 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 reexport certificate the correct information 

and re-exporter certification specified in 

§ 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 § 300.186, and 

must note on the top of both the

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 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 § 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 reexports 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 

§ 300.183(d).

§ 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 § 300.187(d) or § 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 

§ 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 § 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 reexported.

(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 reexported.

(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

67282 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

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 reexport 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 reexport 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.

§ 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 reexport 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 reexport certificate accompanying any reexport of fish or fish products regulated 

under this subpart, as required under 

§ 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 

§ 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 reexports 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 reexport 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 reexports 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. Nongovernment 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 § 300.183, on 

any documents accompanying the 

shipment of Pacific bluefin tuna for 

domestic commercial use or export as 

indicated in §§ 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.

§ 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

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 67283

ports at which fish or fish products 

regulated under this subpart from any 

ocean area may be imported into the 

United States.

§ 300.189 Prohibitions.

In addition to the prohibitions 

specified in § 300.4, and §§ 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 § 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 § 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 

§ 300.182.

(d) Falsify or fail to record, report, or 

maintain information required to be 

recorded, reported, or maintained, as 

specified in § 300.183 or § 300.185.

(e) Fail to allow an authorized agent 

of NMFS to inspect and copy reports 

and records, as specified in § 300.183 or 

§ 300.185.

(f) Fail to comply with the 

documentation requirements as 

specified in § 300.185, § 300.186 or 

§ 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 § 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 § 300.187.

(i) Validate statistical documents or 

re-export certificates as provided for in 

§ 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 § 300.187; fail to write 

the tag number on the shipping package 

or container as specified in § 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 § 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 § 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 reexporter holds a valid trade permit 

issued pursuant to § 300.182 or whether 

the fish products are imported as an 

entry for consumption.

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES

■ 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.

■ 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:

§ 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.

* * * * *

■ 11. In § 635.4 revise paragraph (g) to 

read as follows:

§ 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 § 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 

§ 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 

§ 600.10 of this chapter, must possess a 

valid dealer permit.

* * * * *

■ 12. In § 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:

§ 635.5 Recordkeeping and reporting.

* * * * *

(b) * * *

(1) * * *

(ii) Reports of Atlantic tunas, Atlantic 

swordfish, and/or Atlantic sharks

67284 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Rules and Regulations 

received by dealers from U.S. vessels, as 

defined under § 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 § 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 

§ 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 15th of each month, the 

dealer must submit the bi-weekly report 

form to NMFS postmarked not later than 

the 25th of that month. Reports of BFT 

received on the 16th through the last day 

of each month must be postmarked not 

later than the 10th of the following 

month.

* * * * *

■ 13. In § 635.20, paragraph (f)(2) is 

revised to read as follows:

§ 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 § 300.186 of this title for the 

requirements related to the swordfish 

statistical document.

* * * * *

■ 14. In § 635.31 paragraphs (a)(3) and 

(a)(4)(ii) are revised to read as follows:

§ 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 § 300.185(a) of this title.

(4) * * *

(ii) It is accompanied by a bluefin 

tuna statistical document, as specified 

in § 300.185(a) of this title.

* * * * *

§ 635.41 [Removed]

■ 15. Section 635.41 is removed.

§ 635.45 [Redesignated as § 635.41]

■ 16. Section 635.45 is redesignated as 

§ 635.41.

§§ 635.42, 635.43, 635.44, 635.46, and 635.47

[Removed]

■ 17. Sections 635.42, 635.43, 635.44, 

635.46, and 635.47 are removed.

■ 18. In § 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:

§ 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 § 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 § 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 § 635.4(g).

* * * * *

[FR Doc. 04–25523 Filed 11–16–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 648

[Docket No. 021101264–3016–02; I.D. 

111004D]

Fisheries of the Northeastern United 

States; Atlantic Herring Fishery; Total 

Allowable Catch Harvested for Period 

2 Management Area 1A

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Closure of directed fishery for 

Management Area 1A.

SUMMARY: NMFS announces that 95 

percent of the Atlantic herring total 

allowable catch (TAC) allocated to 

Management Area 1A (Area 1A) for 

2004 is projected to be harvested by 

November 19, 2004. Therefore, effective 

0001 hours, November 19, 2004, 

federally permitted vessels may not fish 

for, catch, possess, transfer or land more 

than 2,000 lb (907.2 kg) of Atlantic 

herring in or from Area 1A per trip or 

calendar day until January1, 2005, when 

the 2005 period TAC becomes available, 

except for transiting purposes as 

described in this notice. Regulations 

governing the Atlantic herring fishery 

require publication of this notification 

to advise vessel and dealer permit 

holders that no TAC is available for the 

directed fishery for Atlantic herring 

harvested from Area 1A.

DATES: Effective 0001 hrs local time, 

November 19, 2004, through 2400 hrs 

local time, December 31, 2004.

FOR FURTHER INFORMATION CONTACT: Don 

Frei, Fisheries Management Specialist, 

at (978) 281–9221.

SUPPLEMENTARY INFORMATION:

Regulations governing the Atlantic 

herring fishery are found at 50 CFR part 

648. The regulations require annual 

specification of optimum yield, 

domestic and foreign fishing, domestic 

and joint venture processing, and 

management area TACs. The 2004 TAC 

allocated to Area 1A (69 FR 17980, 

April 6, 2004) is 60,000 mt (132,277,621 

lb).

The regulations at 50 CFR 648.202 

require the Administrator, Northeast 

Region, NMFS (Regional Administrator) 

to monitor the Atlantic herring fishery 

in each of the four management areas 

designated in the Fishery Management 

Plan for the Atlantic Herring Fishery 

and, based upon dealer reports, state 

data, and other available information, to