[Federal Register Volume 69, Number 221 (Wednesday, November 17, 2004)]
[Rules and Regulations]
[Pages 67268-67284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25523]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 635

[Docket No. 040316092-4312-02; I.D.103003A]
RIN 0648-AQ37


International Fisheries; Atlantic Highly Migratory Species

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

ACTION: Final rule.

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SUMMARY: This final rule implements international trade tracking 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) and the Inter-American Tropical Tuna Commission 
(IATTC) for bluefin tuna, swordfish, and frozen bigeye tuna, regardless 
of ocean area of origin. Trade monitoring requirements for species 
covered under the recommendations and for southern bluefin tuna are 
established by this rule, including: a highly migratory species (HMS) 
international trade permit; statistical documents and re-export 
certificates; and recordkeeping, reporting, and inspection 
requirements.

DATES: Effective July 1, 2005.

ADDRESSES: Copies of the supporting documents, including the regulatory 
impact review/final Regulatory Flexibility Act analysis (RIR/FRFA) and 
the original ICCAT and IATTC recommendations, are available by sending 
your request to Dianne Stephan, Highly Migratory Species Management 
Division, NMFS, 1 Blackburn Drive, Gloucester, MA 01930.
    Bluefin tuna, southern bluefin tuna, bigeye tuna, and swordfish 
statistical documents, re-export certificates, and biweekly trade 
reports may be obtained from:
    Atlantic coast: NMFS, HMS, ATTN: Kathy Goldsmith, 1 Blackburn 
Drive, Gloucester, MA 01930-2298;
    Gulf coast: NMFS, National Seafood Inspection Laboratory, ATTN: 
Lori Robinson, 705 Convent St, Pascagoula, MS 39568-1207;
    West coast: NMFS, Southwest Region, Sustainable Fisheries Division, 
ATTN:

[[Page 67269]]

Pat Donley, 501 West Ocean Blvd. Suite 4200, Long Beach, CA 90802-4213; 
and,
    Western Pacific: NMFS, Pacific Islands Regional Office, ATTN: 
Raymond Clarke, 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-
4700.

FOR FURTHER INFORMATION CONTACT: Dianne Stephan (Atlantic coast), 978-
281-9397; Raymond Clarke (Western Pacific), 808-973-2935; Lori Robinson 
(Gulf coast), 228-769-8964; or Patricia J. Donley (West coast), 562-
980-4033.

SUPPLEMENTARY INFORMATION:

Background

    The proposed rule for this action (69 FR 16211, March 29, 2004) 
provided substantial background information which has been summarized 
as follows.
    The United States is authorized under the Atlantic Tunas Convention 
Act (ATCA; 16 U.S.C. 971(d)(3)) to promulgate regulations as necessary 
and appropriate to implement conservation and management 
recommendations that have been adopted by the International Commission 
for the Conservation of Atlantic Tuna (ICCAT). Likewise, the Tuna 
Conventions Act (TCA; 16 U.S.C. 955) authorizes rulemaking to carry out 
recommendations of the Inter-American Tropical Tuna Commission (IATTC).
    ICCAT has determined that Atlantic stocks of bigeye tuna (Thunnus 
obesus), bluefin tuna (Thunnus thynnus), and swordfish (Xiphias 
gladius) are overfished in the Atlantic Ocean. Large scale longline 
vessels from ICCAT member and non-member nations alike have been 
reported to operate in a manner that diminishes the effectiveness of 
previously-implemented ICCAT measures designed, in part, to prevent 
overfishing and rebuild stocks of these species. At its 2000 meeting, 
ICCAT recommended the implementation of trade monitoring programs which 
would address illegal, unreported and unregulated (IUU) catches in the 
Convention Area. During 2001, programs for bigeye tuna (frozen) and 
swordfish statistical documents and re-export certificates were 
officially adopted. In addition, a recommendation to add a re-export 
certificate to the bluefin tuna program was adopted by ICCAT in 1997.
    ICCAT member nations are now required to implement these 
recommendations. As with ICCAT's previously-required bluefin tuna 
statistical document program, Pacific stocks are also included in order 
to establish an enforceable program. In addition, IATTC member nations 
are implementing a Pacific area program based on a 2003 IATTC 
resolution for a frozen Pacific bigeye tuna statistical document 
program. The Commission for the Conservation and Management of HMS 
stocks in the Western and Central Pacific Ocean (WCPFC) may consider a 
similar measure for frozen bigeye tuna.
    NMFS is creating an international trade monitoring program for 
bigeye tuna (frozen) and swordfish to comply with recommendations from 
ICCAT and IATTC. A statistical document program for southern bluefin 
tuna is also being established to improve compliance with the 
previously implemented ICCAT bluefin tuna statistical document program. 
Southern bluefin tuna (Thunnus maccoyii) are virtually 
indistinguishable from bluefin tuna and Pacific bluefin tuna (Thunnus 
orientalis). Currently, it is possible for bluefin tuna or Pacific 
bluefin tuna to be mislabeled as southern bluefin to circumvent 
statistical document reporting requirements. This confounds the 
established trade tracking program. Moreover, the Commission for the 
Conservation of Southern Bluefin Tuna (CCSBT) has requested that the 
United States take part in its statistical document program to further 
conservation efforts for this species.

Provisions of the Final Rule

    This rule requires that importers and exporters of bluefin tuna, 
southern bluefin tuna, swordfish and frozen bigeye tuna obtain a HMS 
International Trade Permit (ITP) on an annual basis. Only those 
importers who are entering product for consumption need to have an ITP.
    Permit holders are required to comply with documentation, 
reporting, recordkeeping, and inspection requirements including the 
preparation of a species-specific statistical document or re-export 
certificate to accompany export or re-export shipments of southern 
bluefin tuna, frozen bigeye tuna, and swordfish. Re-export certificates 
are also required for re-exports of bluefin tuna. Statistical documents 
for exports and re-export certificates must be validated by NMFS or a 
NMFS-authorized official, and a copy of each document must be provided 
to NMFS. Likewise, all imports of swordfish, southern bluefin tuna, and 
frozen bigeye tuna must be accompanied by a validated statistical 
document or re-export certificate. For those imports entered for 
consumption, the original statistical document for each shipment must 
be submitted to NMFS once the shipment reaches its final destination. 
Each permit holder must prepare and submit a biweekly activity report 
to NMFS.
    The final rule provides for certain exemptions to its requirements. 
First, trade documentation in this rule does not apply to frozen bigeye 
tuna caught by purse seiners or baitboats and destined principally for 
canneries of the United States or a U.S. insular possession. Second, 
re-export certificates are not required for re-export shipments that 
have not been consolidated or subdivided, and for which the shipment 
contents remain true to the information on the original statistical 
document. In addition, validation is not required for re-exports that 
do not require a re-export certificate. Third, importers of entries 
other than entries for consumption (e.g., shipments on a through bill 
of lading, destined from one foreign country to another) are not 
required to obtain the HMS ITP and are not subject to the reporting 
requirements. However, these shipments are subject to the documentation 
requirements, and must be accompanied by a correctly completed, 
validated statistical document. Fourth, trade-tracking documentation is 
not required for shipments between the United States and U.S. insular 
possessions.
    Documentation, reporting, recordkeeping, and inspection 
requirements that were previously in effect for import and export of 
bluefin tuna remain in effect; however, NMFS has moved the relevant 
regulatory text from 50 CFR. 635.41 through 635.43 to 50 CFR 300.183 
through 300.189 and consolidated it with regulatory text implementing 
trade tracking requirements for the other species covered by this rule. 
In addition, the statistical document for swordfish implemented by this 
rule will replace the swordfish certificate of eligibility. Upon 
implementation of this rule, the certificate of eligibility will no 
longer be required. This final rule also corrects several cross-
references in 50 CFR parts 300 and 635.

Implementation Date

    NMFS recognizes that the implementation of a new permit program 
must be accompanied by a period of outreach to affected constituents. 
In addition, NMFS is initiating an electronic permitting and reporting 
system for the HMS ITP. Therefore, to provide for sufficient time for 
implementation and outreach, this final rule will go into effect on 
July 1, 2005.

Changes from the Proposed Rule

    As reflected in the Comments and Responses below, several 
commenters raised concerns regarding the burden and costs of this trade 
tracking program. In response to public comments, NMFS

[[Page 67270]]

has made clarifications to the final rule to minimize its potential 
impact to the extent practicable, consistent with regional fishery 
management organization (RFMO) recommendations. With regard to imports, 
the final rule provides that not all imports are subject to reporting 
requirements, and limits reporting requirements to those shipments that 
are entered for consumption. To make this narrower requirement clear, 
the final rule adds definitions for ``entry for consumption,'' 
``entered for consumption,'' ``entry number,'' and ``exportation,'' and 
refines the definitions of ``import'' and ``export'' to be more 
consistent with U.S. Customs and Border Protection (CBP; 19 CFR parts 
101, 141, 144, and 146) and U.S. Census Bureau (15 CFR part 30) 
regulations. As in the proposed rule, the final rule continues to 
require documentation for all imports of products identified in Sec.  
300.184 into the Customs territory of the United States. Such imports 
must be accompanied by validated statistical documents and are subject 
to inspection by authorized NMFS personnel. The final rule excludes 
this requirement for insular possessions with customs territories 
separate from the Customs territory of the United States. Such entities 
may make individual determinations regarding the need for documentation 
of entries other than entries for consumption. A definition for 
``separate customs territory of a U.S. insular possession'' was added 
to improve the clarity of these provisions.
    The final rule clarifies the definitions of ``importer'' and 
``exporter'' to specify that the party responsible for obtaining the 
HMS ITP and fulfilling the reporting requirements is the consignee for 
imports and the U.S. principal party in interest (USPPI) for exports. 
Currently, for importers in the United States, the consignee is 
identified on CBP Forms 7512, 3461, and 7501 or on the electronic 
Automated Commercial System (ACS). Exporters are identified as the 
USPPI on the Shippers Export Declaration (SED) and in the Automated 
Export System (AES), and as the ``exporter'' on the Canada Customs 
Invoice. Documentation and reporting requirements of this rule apply to 
all exports described in Sec.  300.185(b), regardless of whether those 
shipments are exempt from SED and AES documentation and reporting 
requirements. Additionally, customs brokers or freight forwarders may 
obtain a HMS ITP or submit documentation for the consignee or USPPI; 
however, the individual identified as the importer or exporter, as 
defined in the rule, are the parties legally responsible for the 
permitting, documentation, reporting, and recordkeeping requirements of 
this rule.
    While the proposed rule required the HMS ITP for all importers, the 
final rule clarifies that the permit is only required for importers who 
enter for consumption products regulated by this rule. Although not all 
importers are required to have a HMS ITP, section 300.185(e) clarifies 
that anyone responsible for importing, exporting, storing, packing, or 
selling fish or fish products regulated under this subpart, in addition 
to HMS ITP holders, is subject to the inspection provisions at ' 
300.183(d).
    The final rule clarifies the documentation requirements for re-
exports (i.e., product that is entered for consumption then 
subsequently exported). If a shipment entered for consumption remains 
true to the contents listed on the original statistical document, then, 
upon re-export, the importers certification on the statistical document 
is completed in lieu of a re-export certificate. If the shipment is 
subdivided or consolidated, then a re-export certificate identifying 
the complete contents of the shipment must be completed and validated 
for each re-export shipment. The original or a copy of the original 
statistical document must be attached to each re-export certificate.
    The final rule adds a new paragraph under ' 300.185(b) which 
clarifies that the export documentation and reporting requirements of 
that paragraph apply to exports of fish or fish products that were 
harvested by U.S. vessels and first landed in the United States, or 
harvested by vessels of a U.S. insular possession. Thus, these export 
provisions would not be required for tuna transshipments in the customs 
territory of Guam.
    The final rule clarifies the applicability of the trade monitoring 
program to products of an American fishery landed overseas. When such 
products are shipped from a foreign port and entered into the United 
States under heading 9815 of the Harmonized Tariff Schedule of the 
United States (HTS), the trade monitoring requirements in this rule for 
imports into the United States do not apply. However, if such products 
are so entered into the United States and then exported, trade 
monitoring requirements would apply for the export of the product from 
the United States. Likewise, if products from an American fishery 
landed overseas were exported directly from a foreign nation to another 
foreign nation, the trade monitoring program requirements would apply. 
For such transactions, NMFS should be contacted for assistance with 
documentation and validation requirements.
    To improve clarity, the final rule removes the definition of 
``foreign trade dealer'' and adds additional clarification regarding 
the use of statistical documents and re-export certificates by foreign 
businesses at Sec.  300.186(h). Further, minor revisions to improve 
clarity and consistency in the regulatory text include replacing the 
term ``dealer'' with ``permit holder,'' ``dealer permit'' with ``trade 
permit,'' and ``international commission'' with ``regional fishery 
management organization (RFMO).'' The final rule clarifies that other 
government agencies may be authorized to provide validation services. 
The final rule also corrects cross-references in Sec. Sec.  635.20 and 
635.31; adjusts the definitions of ``import,'' ``export,'' 
``importer,'' and ``exporter'' in Sec.  635.2 to be consistent with 
Sec.  300.182 and CBP and Census Bureau regulations, adds a definition 
for ``exportation,'' and removes the definition of ``Swordfish 
Certificate of Eligibility (COE)'' from Sec.  635.2.

Comments and Responses

Scope

    Comment 1: Supporting and opposing comments were received for the 
proposal to include fresh bigeye tuna in the statistical document 
program. Commenters that opposed including fresh bigeye tuna in the 
program stated the following: that they primarily deal in fresh bigeye 
tuna; that a fresh bigeye tuna program should be delayed until the 
statistical document program for frozen bigeye tuna has been 
implemented and evaluated to determine whether including fresh bigeye 
tuna is necessary; and that including fresh bigeye tuna would be more 
expensive than a program solely for frozen bigeye tuna. Commenters that 
supported including fresh bigeye tuna in the program stated that it 
would be less confusing to implement a comprehensive bigeye tuna trade 
program from the onset. Another commenter suggested including fresh 
bigeye tuna after a defined time period. One commenter requested that 
all fresh products be exempted, and another commenter noted that the 
rationale for including bigeye tuna in the proposed rule was unclear.
    Response: The trade monitoring program in the final rule does not 
include fresh bigeye tuna. Current ICCAT and IATTC recommendations 
apply only to frozen bigeye tuna, because both organizations recognize 
that numerous implementation issues

[[Page 67271]]

require resolution prior to the establishment of a statistical document 
program for fresh bigeye tuna. For the sake of comprehensiveness, NMFS 
requested comment on the inclusion of fresh bigeye tuna to inform the 
public of potential future actions by ICCAT, IATTC, or other RFMO, and 
to identify public concerns. A similar approach was taken in the 1993 
ICCAT recommendation for a bluefin tuna statistical document program. 
After implementation issues regarding the trade of fresh bluefin tuna 
had been further discussed and resolved, ICCAT adopted a recommendation 
extending the program to include fresh product the following year. 
Since NMFS implemented a certificate of eligibility (COE) for fresh and 
frozen swordfish imports in 1999, and U.S. export of swordfish and 
trade of southern bluefin tuna is limited, NMFS does not anticipate 
implementation issues for fresh products other than bigeye tuna. The 
new statistical document program applies to fresh and frozen swordfish 
and southern bluefin tuna and frozen bigeye tuna, and will replace the 
swordfish COE.
    Comment 2: Several commenters supported implementing statistical 
document programs for all the species identified in the proposed rule, 
and one noted that the proposed approach of including similar species 
from all ocean areas is a critical factor in providing complete and 
comprehensive data for this program.
    Response: The final rule establishes a trade monitoring program for 
fresh and frozen swordfish, southern bluefin tuna, and frozen bigeye 
tuna from all ocean areas. Swordfish and frozen bigeye tuna are 
included in the program in direct response to ICCAT and IATTC 
recommendations. Southern bluefin tuna is included to ensure the 
effectiveness of the program by eliminating potential mislabeling and 
to support the Commission for the Conservation of Southern Bluefin 
Tuna's (CCSBT) statistical document program. These fish from all ocean 
areas are included to ensure effective implementation of the RFMO 
recommendations since each species is geographically indistinguishable 
and similar species can be difficult to discern based on external 
examination.
    Comment 3: One commenter congratulated NMFS for developing a 
comprehensive approach to enhance the tracking of HMS from all ocean 
areas and to promote the international objective of eliminating 
illegal, unregulated, and unreported (IUU) fishing.
    Response: International statistical document programs have been 
effectively employed to reduce IUU fishing, which is an important goal 
of RFMOs such as ICCAT and IATTC. Although these programs place an 
administrative burden on U.S. businesses, the success of these programs 
will benefit the future of the impacted stocks as well as the 
businesses that rely on those resources. NMFS appreciates the 
cooperation of all U.S. businesses affected by this final rule, and 
will continue to work to minimize the impact of reporting requirements 
while implementing an effective trade monitoring program.
    Comment 4: A commenter expressed concern that some of these 
requirements might be passed on to vessel owners, and asked how this 
rule might impact vessel owners. The commenter also asked whether the 
statistical document program could negatively affect future quota 
allocations.
    Response: The permitting and reporting requirements apply in 
general to businesses involved in international trade of HMS species. 
Vessel owners who also export or import HMS species would need to 
comply with requirements specified in the rule. Quota allocations are 
determined after extensive deliberations using numerous sources of data 
and public input. It is premature to speculate what impact, if any, a 
statistical document program could have on future quota allocations. 
None the less, experience has shown that more data and information 
proves to be of greater benefit in determining the equitable size and 
allocation of quotas as opposed to less or limited data.

Economic Impacts and Reporting Burden

    Comment 5: Several commenters expressed concern over the potential 
impact of validation on product quality and export opportunities. 
Commenters noted that travelling to reach a government office for 
validation could be time consuming, and that export and re-export 
shipments could be delayed since government validation has not been 
available on a 24 hour/7 days per week basis for similar programs. In 
particular, numerous commenters expressed concern about the effect of 
the validation requirement on airfreight exports, which is of special 
concern for island businesses that rely upon limited air transportation 
schedules. Commenters stated that validation should be expedient and 
efficient so as not to interfere with meeting limited and inflexible 
airfreight schedules, and that it should be inexpensive or free. 
Several commenters suggested options for meeting the proposed 
validation requirements, including: validation of exports after they 
are shipped; on-line validation; use of a HACCP (hazard analysis and 
critical control point) type of program where exporters validate their 
own shipments; annual issuance of dealer validation authority similar 
to the process for shellfish validation with monthly renewal unless the 
validating official failed a spot-check inspection; use of a domestic 
smart tag program that could include barcodes and computer radio tags 
with processing and temperature data; and having a government officer 
stationed at each U.S. Customs and Border Patrol (CBP) port 7 days per 
week to provide validation services. A commenter stated that there is a 
need to balance the need for third-party validation and the credibility 
of the program data carefully, and that a continuous review of 
compliance and data accuracy would strengthen program credibility.
    Response: Government or government-authorized validation is 
required to ensure that the trade of covered species includes explicit 
government involvement, so that nations are able to accurately report 
trade activity to RFMOs. In order to address validation time and dollar 
cost concerns, statistical documents and re-export certificates may be 
validated by either NMFS or another entity authorized by NMFS. A non-
government organization (e.g., industry group) or other government 
agency may obtain authorization to validate documents, at no cost, from 
NMFS by submitting a written description of the procedures to be used 
for verification of information to be validated, a list of names 
addresses, and telephone/fax numbers of individuals to perform 
validation, and an example of the stamp or seal to be used. NMFS must 
respond within 30 days, and if approved by NMFS, the authorization 
would take effect after the relevant RFMOs are notified. NMFS 
appreciates and fully considered the comments that were provided in 
efforts to produce a validation system that is both cost-efficient and 
effective. In this rule, NMFS has attempted to minimize costs to the 
industry and government associated with validation while fulfilling the 
requirements of the RFMOs' recommendations. Implementation of the 
regulatory requirements in this final rule will provide further 
opportunities for collaboration with interested parties to develop a 
program that is both efficient for all parties involved and provides 
the required trade data.
    Comment 6: A number of commenters stated that the proposed 
reporting

[[Page 67272]]

requirements would negatively impact their businesses. One commenter 
stated that he had discontinued shipments of frozen bigeye tuna to 
Japan because of the reporting burden that had recently been required 
by Japan and is being proposed in this rule. Another commenter stated 
that it will be infeasible for his business to export swordfish for the 
same reason. A commenter stated that additional staff would be required 
for his business to fulfill the proposed reporting requirements. A 
commenter noted that the current fiscal climate within the industry 
made this a particularly bad time to impose costly reporting 
requirements. A commenter stated that any financial burden associated 
with this rule should be on the Federal government. Several commenters 
stated that the proposed reporting requirements were inevitable and not 
of concern.
    Response: NMFS' intent with this final rule is to meet the mandated 
requirements while providing continued opportunities for trade of the 
covered species with the minimum required reporting burden. The use of 
statistical documents and re-export certificates (including document 
validation) for international trade of bluefin tuna, bigeye tuna, and 
swordfish are explicitly required by RFMOs such as ICCAT and IATTC. 
This final rule is intended to facilitate trade of the covered species, 
particularly to other RFMO member nations. Without this program, U.S. 
trade could be severely limited, which would negatively impact U.S. 
businesses.
    NMFS made a number of clarifications to the final rule with the 
intent, in part, to reduce reporting burden in response to public 
comments. Permitting, documentation, reporting and recordkeeping 
requirements for bigeye tuna are limited to frozen products in the 
final rule rather than fresh and frozen products as indicated in the 
proposed rule. Permitting, reporting, and recordkeeping requirements 
for imports are reduced to apply only to entries for consumption rather 
than all imports. In addition, re-export certificates and subsequent 
validation in the final rule are only required for re-exports of 
products that have either been split or consolidated for re-export. 
NMFS also recognizes that during the initial start-up period, dollar 
and time costs for industry implementation of the rule will be slightly 
higher, and NMFS included a protracted implementation date for 
effectiveness of the final rule in part to help address this issue. The 
extended implementation date will provide time for authorization of 
entities to provide validation and for all affected businesses to 
adjust their business processes and incorporate the documentation, 
reporting, and recordkeeping requirements in the most efficient manner. 
NMFS also intends to design the implementation program to minimize 
associated reporting costs.
    Comment 7: A commenter stated that the IRFA understates time and 
cost burdens associated with the action, and that the impact of the 
reporting requirements on some participants has not been analyzed. The 
commenter stated that the supporting documentation fails to assess the 
cost of private vendors for validation, or the impact of a lack of 
timely validations on Pacific exporters, and that the use of biweekly 
reports is contrary to the Paperwork Reduction Act.
    Response: NMFS estimated the time and cost burden associated with 
the rule based on costs associated with similar programs including the 
bluefin tuna statistical document program and the swordfish import 
monitoring program. Both of these programs require dealer permits and 
reporting similar to those included in this program. For example, the 
cost of the options available for validation are assessed relative to 
the programs that are currently in place, which do not include a fee 
for use of an authorized validation service. Exact estimates of numbers 
of transactions (particularly exports) are difficult to ascertain prior 
to implementation of this rule, although existing Census Bureau export 
data and U.S. Customs and Border Protection import data help provide 
estimates of magnitude for and number of shipments over recent years. 
Overall burden estimates associated with these regulations are expected 
to be an overestimate, given that the calculations included fresh 
bigeye tuna which has been excluded in the final rule. In addition, the 
reduction of reporting requirements to apply only to consumption 
entries, and limiting of re-export documentation requirements as 
indicated in the previous response, are also expected to reduce 
reporting burden. Each reporting requirement implemented by this rule 
was assessed by the U.S. Office of Management and Budget (OMB) for 
compliance with the Paperwork Reduction Act. A 60-day public comment 
period was provided (February 12, 2003, 68 FR 7107; March 12, 2003, 68 
FR 11809) and the impact of the reporting burden was analyzed and 
provided in the supporting documents for the proposed rule (March 29, 
2004, 69 FR 16211). OMB approved implementation of the permitting and 
reporting requirements on July 1, 2004, and June 25, 2004, 
respectively. In addition, as discussed under a previous response, this 
final rule allows for the authorization of non-government or other 
government entities to provide validation services in order to provide 
flexibility for industry operations. These potential impacts are 
expected to be minimal once businesses have incorporated the 
requirements into their business processes, and slightly higher during 
the start-up phase of implementation.

Program Implementation

    Comment 8: Commenters asked several questions relative to the 
proposed HMS ITP, including when the permit would go into effect, how 
much it would cost, whether the permit would need to be purchased 
annually, and under which circumstances it would be required. Several 
commenters noted that it is unclear who the responsible party would be 
for preparing and submitting the proposed reporting documentation. A 
commenter asked whether customs brokers could sign statistical 
documents. Several commenters requested that electronic reporting be 
available, and that documents and instructions be provided on an 
internet website. A commenter requested that an appropriate level of 
outreach to Caribbean fish dealers be implemented regarding the 
proposed permitting and reporting requirements, and that a calendar 
renewal date for the proposed permit be implemented in order to help 
facilitate reminder notices from the agency and trade associations.
    Response: The final rule provides for an extended implementation 
period for the permitting, documentation, reporting, and recordkeeping 
requirements which will go into effect on July 1, 2005. The preferred 
approach, currently in the design phase, is to use electronic 
permitting and reporting processes on the internet, as much as 
possible, to minimize the reporting burden. Some specific details, 
including how much a permit will cost, how a permit can be obtained, 
and where reports will be submitted will be determined during 
development of the implementation plan (note that the estimate of a 
permit cost used in calculations of public reporting burden under the 
Paperwork Reduction Act was $100 based on similar NMFS programs). The 
HMS ITP must be obtained by individuals or businesses that are 
classified as the consignee as identified on documentation required by 
CBP for entries for consumption, or the U.S. principal party in 
interest for shipment export. An agent such as a customs broker or 
freight forwarder may obtain

[[Page 67273]]

an HMS ITP and submit required documentation. Alternatively, an agent 
may act on behalf of a permit holder; however, the importer or 
exporter, as defined in the rule, is the party legally responsible for 
the documentation, reporting, and recordkeeping requirements of this 
rule.
    NMFS will provide educational information to dealers currently 
permitted by NMFS for purchase or trade of tunas and swordfish, and 
will work with states, commonwealths, and governments of insular 
possessions to provide information to other interested parties 
regarding implementation requirements and procedures. It is intended 
that the HMS ITP be obtained annually on a calendar year basis, and 
expire each year on December 31.
    Comment 9: Several commenters noted that some of the information 
proposed to be collected under this rule is already collected by other 
agencies including NMFS, FDA, CBP, U.S. Census Bureau, and the 
government of Guam. Commenters requested that NMFS coordinate both 
interagency and intra-agency and that the reporting burden on impacted 
businesses be reduced.
    Response: NMFS continues to coordinate both internally and with 
other government agencies to eliminate unnecessary duplication of 
reporting by individuals affected by this final rule. The use of 
statistical documents and re-export certificates (including document 
validation) for international trade of bluefin tuna, bigeye tuna, and 
swordfish is explicitly required by ICCAT and IATTC. Without the 
requirements implemented under this final rule, international trade of 
these species, particularly exports to other RFMO member nations, could 
be negatively impacted. NMFS' intent with this final rule is to provide 
continuing opportunities for trade of the covered species with the 
minimum required reporting burden. As noted in the response to Comment 
7, NMFS modified the final rule to reduce the reporting burden as much 
as possible.
    Comment 10: Several commenters requested that biweekly reports only 
be required during reporting periods with activity while one commenter 
requested that negative reporting be implemented. A commenter suggested 
that the average weight of individual fish be used for reporting bulk 
shipments of bigeye tuna on the biweekly reporting form, and another 
commenter requested that individual weights be used for swordfish.
    Response: NMFS will not require negative biweekly reporting. In 
several NMFS programs, negative reporting is used to verify whether the 
absence of information for a reporting period is the result of a 
missing report or inactivity. However, in this program, NMFS has 
several options for verifying reporting data, including comparison of 
CBP's entry data and comparison of statistical document data from other 
member nations. Based on responses from dealers that have participated 
in the swordfish import program and in an effort to minimize reporting 
burden, NMFS determined that negative reporting was not necessary for 
satisfactory implementation of this program. Some specific details, 
including how to record the weight of fish on individual forms, will be 
determined during the development of the implementation plan.
    Comment 11: A commenter noted that each member country of IATTC and 
ICCAT is implementing a statistical document program, and asked whether 
the United States might be able to learn from the way other countries 
were implementing their programs.
    Response: Sharing of ideas and approaches to fishery management 
challenges among member nations is an essential underpinning of the 
RFMO process. The United States has met with other nations to discuss 
implementation issues such as harmonizing different reporting forms and 
providing data in consistent electronic formats, and continues to 
welcome the opportunity to discuss program objectives and 
implementation strategies at annual RFMO meetings as well as interim 
meetings with delegates of other nations.
    Comment 12: Several commenters suggested that the statistical 
documents be modified so that one form addressed all species.
    Response: ICCAT convened an international meeting of technical 
experts in 2001 to consider and resolve technical issues related to the 
implementation of the recommended swordfish and bigeye tuna statistical 
document programs. At that meeting, the United States proposed a 
single, harmonized document to track bluefin tuna, bigeye tuna, and 
swordfish trade. Although this proposal was consistent with ICCAT's 
directive to endeavor to harmonize all statistical documents under its 
purview, it was rejected by the technical experts due to differences in 
trade patterns and practices relative to the three species, and 
potential impacts to the effectiveness of the current bluefin tuna 
statistical document program if it was altered to include additional 
species. As a result, ICCAT developed separate species-specific forms 
for bigeye tuna and swordfish. Harmonizing these individual forms is a 
long-term goal of NMFS.
    Comment 13: A commenter asked how shipments of more than one 
species would be addressed. Another commenter asked whether statistical 
documents would be required at entry into the customs territory of the 
United States.
    Response: The final rule requires that species-specific statistical 
documents accompany imports into the United States of fresh or frozen 
swordfish, frozen bigeye tuna, and fresh or frozen Southern bluefin 
tuna shipments and that documentation be available at the time of 
entry. If a shipment contains more than one species, then a species 
specific statistical document would be required for each covered 
species in the shipment.
    Comment 14: A commenter stated that dealers should be required to 
keep records for seven years rather than two years.
    Response: Dealers are required to keep submitted and supporting 
records for a period of two years. This information must be made 
available to authorized personnel upon request. The two year timeframe 
establishes a balance between the burden on dealers and the 
recordkeeping, reporting, and the data collection needs of the agency.
    Comment 15: A commenter noted that non-participating nations could 
have trouble exporting covered species into the United States. For 
example, shipments from nations with unstable or disorganized 
governments could be delayed because of the government validation 
clause in the proposed rule. A commenter requested that statistical 
documents and instructions be easily accessible for exporters from 
other nations.
    Response: Nations that are members of ICCAT, IATTC, IOTC, and/or 
the CCSBT will be familiar with statistical document programs, and are 
expected to have the infrastructure to support the necessary reporting 
requirements. Nations or businesses of nations that are not members of 
an RFMO can contact the appropriate RFMO for approved statistical 
documents and validation requirements. The required statistical 
documents are currently accessible on the websites of the RFMOs 
(iccat.es; iattc.org; ccsbt.org; iotc.org).

Guam Transshipments

    Comment 16: Numerous commenters questioned the applicability of the 
proposed statistical document programs to Guam's transshipment industry 
in which foreign flag longline vessels land fresh product on Guam that 
is graded, packaged and shipped by air to that

[[Page 67274]]

vessels' country of origin or a foreign nation. A commenter stated that 
Guam has few opportunities for economic development and that the 
transshipment industry has helped the local economy. A commenter noted 
that it is important to be certain that Guam shipments are ultimately 
accepted in Japan, and another commenter stated that Guam agents should 
not be responsible for submitting the proposed documentation.
    Response: The trade monitoring program established by the final 
rule will not apply to HMS transshipped through Guam from one foreign 
nation to another, including transshipments landed on Guam by foreign 
vessels. However, any covered HMS landed in Guam by foreign vessels and 
entered into the customs territory of Guam for consumption (e.g., sold 
in Guam's domestic market) would be subject to these regulations. As 
defined in the final rule, a transshipment is not considered an entry 
for consumption into the customs territory of Guam and does not require 
a U.S. statistical document or re-export certificate. However, any 
importing nation, such as Japan, may require that transshipments be 
accompanied by statistical documents from the appropriate nation. As 
indicated in the RFMO recommendations, statistical documents must be 
validated by the country of the vessel that landed the fish, therefore, 
the statistical document would originate and be validated by the flag 
nation of the vessel landing the fish in Guam. Guam is a separate 
customs territory from the customs territory of the United States with 
its own customs regulations. NMFS will continue to work with the 
Government of Guam to determine appropriate implementation of the 
requirements of this rule.

Regulatory Process

    Comment 17: Several commenters expressed concern about the 
completeness of the regulatory measures in the proposed rule, noting a 
need for clarification in the process to be used for validation and the 
definition of a dealer. A commenter stated that the public should be 
able to comment again once these measures were further clarified.
    Response: In response to public comments, NMFS made several 
clarifications to the final rule, including a number of changes which 
reduced the reporting burden (see previous responses regarding 
reporting burden). Since many of the changes provide clarification of 
terms and concepts used in the original rulemaking rather than new rule 
provisions, it is not necessary to again solicit public comment. 
Specific details of program implementation, for example, the addresses 
to which reports must be submitted and the cost of the permit (which 
will be based on the overall cost of the program) will be determined 
during the implementation period and are not required to be codified in 
regulatory text. The extended period of implementation will allow 
adjustments as specific details and processes of the program are 
developed.
    Comment 18: A commenter stated that the IRFA should have included 
the following: management objective and underlying rationale; 
alternatives such as using the council process, exempting fresh fish, 
reducing redundant requirements, or including catches from purse seine 
vessels. A commenter requested that the supporting documentation be 
expanded to address the offloading of IUU frozen fish in Japan. Another 
commenter asked whether an analysis of alternatives to this rule was 
prepared.
    Response: A combined RIR/ IRFA was prepared for this rulemaking, 
which analyzed a number of alternatives to the proposed rule and 
supported these analyses with a description of the management 
objective, statement of the problem, and description of the fisheries 
in addition to other information. One of the requirements of an IRFA is 
to describe any alternatives to the final rule which accomplish the 
stated objectives and which minimize any significant economic impacts. 
The alternatives suggested by the commenter either did not meet the 
objectives of the rulemaking or did not minimize impacts on affected 
constituents. Since the purpose of the rulemaking is to establish 
programs under international agreement, NMFS coordinated with regional 
fishery management councils and provided opportunities for public 
comment. NMFS carefully analyzed the alternatives and the potential 
impact of each alternative when selecting the preferred alternative and 
final action. The selected alternative is the alternative that reduced 
the complexity of the reporting requirements without compromising the 
effectiveness of the trade monitoring program. The final action does 
not include permitting or reporting requirements for fresh bigeye tuna.

Ports of Entry

    Comment 19: Many commenters stated that limiting trade to certain 
ports of entry could have a tremendous economic impact on local 
industries. A number of commenters requested that all Hawaii ports 
remain open. A commenter stated that ports of entry should be chosen 
through a proposed rule process rather than being designated by the 
Assistant Administrator for Fisheries. Another commenter suggested that 
ports of entry be considered separately through the fishery management 
council process.
    Response: This rule does not limit trade to any ports. Should 
designation of entry ports be necessary to further facilitate 
enforcement or administrative procedures, NMFS intends to use a 
rulemaking process in order to facilitate public participation 
consistent with the Administrative Procedures Act.

Enforcement

    Comment 20: A number of commenters raised enforcement issues, and 
noted that a fee structure and an appeal process for violations were 
not included in the proposed rule. One commenter stated that NMFS 
enforcement has been inconsistent in what it chooses to enforce. 
Another commenter requested that more funding be provided for 
enforcement. A commenter requested that a 90-day trial period be 
instituted before regulations are enforced.
    Response: NOAA's Civil Procedure regulations, which can be found at 
15 CFR part 904, include the procedures for contesting Notices of 
Violation and Assessment (NOVAs). Maximum civil penalty amounts are 
established by statute; the penalty in any particular case is assessed 
at the discretion of the prosecuting attorney from the Office of 
General Counsel for Enforcement and Litigation, after consulting NOAA's 
civil administrative penalty schedule. Consideration is given to many 
factors including, but not limited to, respondent's ability to pay, the 
severity of the violation based on its impact on the resource, and 
whether or not the respondent has prior violations. While enforcement 
priorities exist, and may vary by region, National Marine Fisheries 
Service Office for Law Enforcement is committed to a comprehensive 
program of enforcing all of the statutes administered by NOAA. Funding 
for enforcement of these, and any regulations, is by statutory 
appropriation. All regulations are enforceable as of their effective 
date.

Other Comments

    Comment 21: Several commenters stated that purse seiners should not 
be exempt from the proposed rule, noting that the rationale for 
exemption in the proposed rule was unclear and that the United States 
should oppose the exemptions identified in the ICCAT recommendation, 
unless mandatory

[[Page 67275]]

observer coverage is implemented to determine the amount of tuna 
harvested by these fisheries.
    Response: Both the ICCAT and IATTC recommendations provide 
exemptions for purse seine and baitboat catches bound for canneries. 
The RFMOs have determined that the tuna landings and catch data 
collected by canneries is adequate for the purposes of these 
recommendations.
    Comment 22: Several commenters perceived that U.S. fishermen were 
subject to greater restrictions and reporting requirements than 
fishermen from other nations.
    Response: NMFS recognizes that reporting of HMS by fishing nations 
has been variable throughout the world's oceans and that the standards 
applied to U.S. fishermen are often considered to be a benchmark for 
responsible fishing. The United States continues to work actively with 
respective RFMOs to provide leadership and support to conserve and 
manage HMS in the Atlantic, Pacific, and Indian Oceans.
    Comment 23: A commenter asked whether bluefin tuna that are caught 
off the United States and sent to Mexico for cage culture were affected 
by this proposed rule. Another commenter asked whether the proposed 
rule applies to farmed bluefin tuna.
    Response: This final rule includes a provision for a bluefin tuna 
re-export certificate which must accompany re-exported shipments of 
bluefin tuna regardless of whether they have been farmed or raised in 
cage culture. In addition, the previously implemented ICCAT bluefin 
tuna statistical document program would also apply to farmed bluefin 
tuna.
    Comment 24: One commenter requested that commercial fishing vessels 
of fishermen that violate quotas be seized.
    Response: This rule regulates the trade of swordfish, bigeye tuna, 
southern bluefin tuna and bluefin tuna and addresses HMS dealers, not 
vessels.
    Comment 25: A commenter requested that the final regulations stress 
application to all products ``in any form'' rather than relying on 
harmonized tariff schedule (HTS) codes.
    Response: The final rule applies to all products of the covered 
species (including chunks, fillets, and airtight containers) except 
fish parts other than meat (e.g., heads, eyes, roe, guts, and tails). 
The rule also identifies products by description in conjunction with 
currently available HTS codes.

Classification

    This final rule is published under the authority of the ATCA, 16 
U.S.C. 971 et seq., the Magnuson-Stevens Fishery Management and 
Conservation Act (16 U.S.C. 1801 et seq.) and the TCA (16 U.S.C. 955 et 
seq.). The AA has determined that this final rule is necessary to 
implement the recommendations of ICCAT and IATTC and is necessary for 
the management of bluefin tuna, bigeye tuna and swordfish.
    NMFS has prepared a RIR/FRFA that examines the impacts of the 
alternatives for implementing the ICCAT and IATTC recommendations for 
international trade monitoring programs. The objectives of the final 
rule, its legal basis, and reasons for its implementation are 
summarized in this preamble and are also set forth in the Summary and 
Supplementary Information sections of the preamble to the proposed 
rule. The final rule would affect approximately 1,890 (930 foreign and 
960 domestic) seafood businesses that participate in international 
trade of swordfish, bluefin tuna, southern bluefin tuna and bigeye 
tuna, all of which are considered small entities. Impacts to businesses 
would occur in two areas - permitting and reporting (reporting includes 
documentation and recordkeeping). NMFS expects only minor negative 
economic impacts from the final rule because the regulatory measures 
only involve adjusting permitting and reporting requirements. The 
following paragraphs describe the alternatives considered, compare the 
potential permitting and reporting impacts of each alternative, and 
explain why NMFS selected the final action and rejected the other 
alternatives.
    The no action/status quo alternative (alternative 2) would make no 
changes to current programs. The remaining three alternatives would 
implement the recommended trade programs for swordfish, bigeye tuna, 
and bluefin tuna. The final action (alternative 1) and alternative 4 
would implement the recordkeeping requirements by linking them to the 
HMS international dealer trade permit. The final action differs from 
alternative 4 by requiring trade monitoring for southern bluefin tuna 
in addition to the other species, in order to facilitate program 
effectiveness, whereas alternative 4 would not require the use of 
southern bluefin tuna statistical documents or require a trade permit 
for trading in southern bluefin tuna. Alternative 3 would implement the 
trade program by building onto existing dealer permits (e.g., expanding 
the Atlantic tunas dealer permit to include trade of frozen bigeye 
tuna) and associated recordkeeping requirements rather than 
implementing a new, separate permit for international trade. Overall, 
the immediate costs associated with the final action and alternatives 3 
and 4 are expected to be greater than for alternative 2 (no action); 
however, access to international markets could be reduced under the 
status quo, which is expected to have much greater negative economic 
impacts in the long term.
    The initial cost of obtaining the permit for each U.S. business 
under the final action and alternative 4 is expected to be $100 plus 
the time to fill out the form and the cost of postage, which would be 
approximately $2. NMFS expects this amount to be a minor negative 
impact for the affected businesses. The permit-associated cost for the 
final action and alternative 4 differs from building onto existing 
systems (alternative 3) in an amount between $0 to $100 per business, 
depending upon the other permits held by the business. Under 
alternative 3, if the business were required to have an Atlantic or 
Pacific tuna permit to trade in bigeye tuna or southern bluefin tuna, 
there would be no associated cost since these permits are issued free 
of charge. However, if the business were required to have a swordfish 
permit for importing or exporting swordfish, the cost could be either 
$25 or $100, depending upon whether the business has another permit 
issued by the Southeast Region of NMFS. NMFS estimates that 
approximately 960 businesses would be impacted by the final action and 
alternative 3. Alternative 4 would entail similar costs per business as 
alternative 1; however, slightly fewer businesses would be impacted 
since businesses trading in southern bluefin tuna without trade in any 
of the other covered species would not be required to purchase a 
permit.
    Impacts of reporting for the final action and alternatives 3 and 4 
are expected to be approximately the same since all businesses must 
submit the required reports, regardless of whether the permitting is 
accomplished through the HMS ITP or by adding on to other permitting 
programs. The professional skills necessary to complete the reporting 
requirements are equivalent to an educational level of high school 
completion. The annual economic impacts of the reporting requirements, 
in addition to the potential costs of the HMS ITP discussed in the 
previous paragraph, would be approximately $386 per permit holder, 
including statistical document and re-export certificate opportunity 
costs ($285) and mailing ($2), biweekly opportunity cost ($90) and 
mailing ($9). This amount will vary depending on the volume of HMS 
imported or exported or the number of forms submitted. Alternative 4 
would eliminate the need for reporting southern bluefin tuna trade, so 
costs

[[Page 67276]]

would be slightly reduced. Finally, permit holders could be negatively 
impacted if the time burden interferes with how they conduct their 
business; however, NMFS does not expect the direct or indirect costs or 
associated time burden of additional reporting to be more than a minor 
negative impact for the affected constituents.
    NMFS chose alternative one as the final action for implementation 
because it was the most effective alternative for satisfying the RFMO 
recommendations while minimizing the reporting burden on the public and 
providing NMFS with a manageable permitting and reporting 
infrastructure. Alternative two was rejected because it would not have 
implemented the RFMO recommendations. Alternative three was not chosen 
because it would have increased the complexity associated with 
monitoring imports and exports for both NMFS and businesses involved in 
trade, and would have increased the number of permits required for many 
businesses. Alternative four was rejected because it would have 
compromised the effectiveness of the United States' implementation of 
the statistical document program for bluefin tuna.
    NMFS received one comment specifically addressing the IRFA and 
several comments addressing economic concerns. The primary economic 
concern identified by the public was the potential impact of the 
validation requirement, including the potential dollar cost of 
validation and the time cost of validation procedures. Of particular 
concern to island businesses on Guam and Hawaii was the potential that 
validation procedures could delay shipments significantly enough to 
impact shipment schedules. Other economic concerns expressed by the 
public included general concern about the costs of the reporting 
requirements.
    NMFS has determined that the provisions for validation by non-
government organizations (including industry organizations) or other 
government agencies in the final rule will provide the industry with 
sufficient flexibility to establish validation programs which will both 
satisfy documentation requirements and minimize industry costs. This 
conclusion is based in part on NMFS' experience with other trade 
monitoring programs. In addition, the final rule reduces the validation 
burden associated with re-exports so that re-exported shipments which 
are not subdivided or consolidated with other shipments require neither 
re-export certificates nor validation. The final rule also clarifies 
that re-export certificates would only be required for re-exports that 
first entered the United States (or insular possession) as an entry for 
consumption, which may reduce the reporting burden associated with re-
exports. NMFS recognizes that there will be an initial start-up period 
during which dollar and time costs will be slightly higher, and has 
included a protracted implementation date for the final rule in part to 
help address this issue. The extended implementation date will provide 
time for authorization of entities to provide validation and for all 
affected businesses to adjust their business processes and incorporate 
the documentation, reporting, and recordkeeping requirements in the 
most efficient manner. The final rule has also eliminated the 
permitting, documentation, reporting, and recordkeeping requirements 
associated with fresh bigeye tuna. Overall cost estimates will be lower 
than estimated for the proposed rule since fresh bigeye tuna is 
excluded from these requirements. Please see comments 5 through 7 and 
comment 18 for specific public comments on the IRFA and economic 
concerns.
    NMFS does not believe that this action will conflict with any 
relevant regulations, Federal or otherwise. To avoid duplication with 
the requirements of this trade monitoring program, the rule removes the 
international components of the existing swordfish and Atlantic tuna 
dealer permits, and eliminates the swordfish certificate of 
eligibility.
    This rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    NMFS has determined that the final rule would be implemented in a 
manner consistent to the maximum extent practicable with the 
enforceable provisions of the coastal zone management programs of those 
Atlantic, Gulf of Mexico, Pacific and Caribbean coastal states that 
have approved coastal zone management programs. The proposed rule was 
submitted in April 2004 to the responsible state agencies for their 
review under Section 307 of the CZMA. As of October 17, 2004, NMFS has 
received 5 responses, all concurring with NMFS' consistency 
determination. Because no responses were received from other states, 
their concurrence is presumed.
    This rule contains new and revised collection-of-information 
requirements subject to review and approval by OMB under the Paperwork 
Reduction Act. The permitting requirements were available for an 
initial 60 day public comment period beginning February 12, 2003 (68 FR 
7107) and were approved by the U.S. Office of Management and Budget 
(OMB) on July 1, 2004 under collection 0648-0327. The reporting 
requirements were available for an initial 60 day public comment period 
on March 12, 2003 (68 FR 11809) and were approved by OMB on June 25, 
2004, under collection 0648-0040. During the public comment period for 
the proposed rule, one specific comment was received regarding the 
reporting burden (see comment 7). The commenter stated that the time 
and cost burdens were underestimated, and that the cost of private 
vendors for validation was not included. NMFS estimated the time and 
cost burden associated with the rule based on costs associated with 
similar programs including the bluefin tuna statistical document 
program and the swordfish import monitoring program. Both of these 
programs require dealer permits and reporting similar to those included 
in this program. For example, the cost of the options available for 
validation are assessed relative to the programs that are currently in 
place, which do not include a fee for use of an authorized validation 
service. Overall burden estimates associated with these regulations are 
expected to be an overestimate since the calculations included fresh 
bigeye tuna which has been excluded in the final rule. Each reporting 
requirement implemented by this rule was assessed by OMB for compliance 
with the Paperwork Reduction Act.
    The public reporting burden for completing an application for the 
HMS ITP is estimated at 0.08 hours (5 minutes) per response. The public 
reporting burden for permit holders for collection-of-information on 
required reports is estimated at 0.08 hours (5 minutes) each for 
statistical documents and re-export certificates; 2 hours for 
validation; 2 hours for authorization for non-governmental validation; 
0.25 hours (15 minutes) for international trade biweekly report; 0.02 
hours (1 minute) for tagging. The rule also addresses previously 
approved requirements for domestic dealer permits as follows: a 
swordfish dealer permit and shark dealer permit have been approved 
under collection 0648-0205 and an Atlantic tuna dealer permit has been 
approved under collection 0648-0202. The response time for each of 
these domestic permits is 5 minutes. These estimates include the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.

[[Page 67277]]

List of Subjects

50 CFR Part 300
    Fisheries, Reporting and recordkeeping requirements, Treaties.
50 CFR Part 635
    Fisheries, Penalties, Reporting and recordkeeping requirements, 
Treaties.

    Dated: November 10, 2004.
Rebecca J. Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 300 and 635 are 
amended to read as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart C--Pacific Tuna Fisheries

0
1. The authority citation for subpart C is revised to read as follows:

    Authority: 16 U.S.C. 951-961 et seq.

0
2. Revise Sec.  300.20 to read as follows:


Sec.  300.20  Purpose and scope.

    The regulations in this subpart are issued under the authority of 
the Tuna Conventions Act of 1950 (Act). The regulations implement 
recommendations of the Inter-American Tropical Tuna Commission (IATTC) 
for the conservation and management of highly migratory fish resources 
in the Eastern Tropical Pacific Ocean so far as they affect vessels and 
persons subject to the jurisdiction of the United States.

0
3. In Sec.  300.21, remove the definitions for ``Bluefin tuna,'' 
``Pacific bluefin tuna,'' and ``Tag,'' and revise the introductory 
paragraph to read as follows:


Sec.  300.21  Definitions.

    In addition to the terms defined in Sec.  300.2, in the Act, and in 
the Convention for the Establishment of an Inter-American Tropical Tuna 
Commission (Convention), the terms used in this subpart have the 
following meanings. If a term is defined differently in Sec.  300.2, in 
the Act, or in the Convention, the definition in this section shall 
apply.
* * * * *


Sec. Sec.  300.24 and 300.25  [Removed]

0
4. Remove Sec. Sec.  300.24 and 300.25.


Sec. Sec.  300.28 and 300.29  [Redesignated as Sec. Sec.  300.24 and 
300.25]

0
5. Redesignate Sec. Sec.  300.28 and 300.29 as Sec. Sec.  300.24 and 
300.25, respectively.

0
6. In newly redesignated Sec.  300.24, remove paragraphs (e) through 
(g); redesignate paragraphs (h) through (l) as paragraphs (e) through 
(i), respectively; and revise paragraph (b) and newly redesignated 
paragraphs (h) and (i) to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (b) Fish on floating objects in the Convention Area using any gear 
type specified by the Regional Administrator's notification of closure 
issued under Sec.  300.25;
* * * * *
    (h) Fail to use the sea turtle handling, release, and resuscitation 
procedures in Sec.  300.25(e); or
    (i) Fail to report information when requested by the Regional 
Administrator under Sec.  300.22.


Sec. Sec.  300.26 and 300.27  [Removed]

0
7. Remove Sec. Sec.  300.26 and 300.27.

0
8. Subpart M is added to read as follows:

Subpart M--International Trade Documentation and Tracking Programs 
for Highly Migratory Species

Sec.
300.180 Purpose and scope.
300.181 Definitions.
300.182 HMS international trade permit.
300.183 Permit holder reporting and recordkeeping requirements.
300.184 Species subject to documentation requirements.
300.185 Documentation, reporting and recordkeeping requirements for 
statistical documents and re-export certificates.
300.186 Contents of documentation.
300.187 Validation requirements.
300.188 Ports of entry.
300.189 Prohibitions.

Subpart M--International Trade Documentation and Tracking Programs 
for Highly Migratory Species

    Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 U.S.C. 1801 et 
seq.


Sec.  300.180  Purpose and scope.

    The regulations in this subpart are issued under the authority of 
the Atlantic Tunas Convention Act of 1975 (ATCA), Tuna Conventions Act 
of 1950, and Magnuson-Stevens Act. The regulations implement the 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) for the conservation and management of tuna and 
tuna-like species in the Atlantic Ocean and of the Inter-American 
Tropical Tuna Commission (IATTC) for the conservation and management of 
highly migratory fish resources in the Eastern Tropical Pacific Ocean, 
so far as they affect vessels and persons subject to the jurisdiction 
of the United States.


Sec.  300.181  Definitions.

    Atlantic bluefin tuna means the species Thunnus thynnus found in 
the Atlantic Ocean.
    Bigeye tuna means the species Thunnus obesus found in any ocean 
area.
    Bluefin tuna, for purposes of this subpart, means Atlantic and 
Pacific bluefin tuna, as defined in this section.
    BSD tag means a numbered tag affixed to a bluefin tuna issued by 
any country in conjunction with a catch statistics information program 
and recorded on a bluefin tuna statistical document (BSD).
    CBP means the U.S. Customs and Border Protection.
    CCSBT means the Commission for the Conservation of Southern Bluefin 
Tuna established pursuant to the Convention for the Conservation of 
Southern Bluefin Tuna.
    Customs territory of the United States has the same meaning as in 
19 CFR 101.1 and includes only the States, the District of Columbia, 
and Puerto Rico.
    Dealer tag means the numbered, flexible, self-locking ribbon issued 
by NMFS for the identification of Atlantic bluefin tuna sold to a 
dealer permitted under Sec.  635.4 of this title as required under 
Sec.  635.5(b) of this title.
    Entered for consumption has the same meaning as in 19 CFR 141.0a(f) 
and generally refers to the filing of an entry summary for consumption 
with customs authorities, in proper form, with estimated duties 
attached.
    Entry for consumption, for purposes of this subpart, has the same 
meaning as entry for consumption, withdrawal from warehouse for 
consumption, or entry for consumption of merchandise from a foreign 
trade zone, as provided under 19 CFR parts 101.1, 141, 144, and 146. 
For purposes of this subpart, ``entry for consumption'' generally means 
an import into the Customs territory of the United States or the 
separate customs territory of a U.S. insular possession, for domestic 
use, that is classified for customs purposes in the ``consumption'' 
category (entry type codes 00-08) or withdrawal from warehouse or 
foreign trade zone for consumption category (entry type codes 30-34 and 
38). For purposes of this subpart, HMS destined from one foreign 
country to another, which transits the Customs territory of the United 
States or the separate customs territory of a U.S. insular possession, 
and is not classified as an entry for consumption upon release from CBP 
or other customs custody, is not an entry for consumption under this 
definition.
    Entry number, for purposes of this subpart, means the unique 
number/identifier assigned by customs

[[Page 67278]]

authorities for each entry into a customs territory. For CBP, the entry 
number is assigned at the time of filing an entry summary (CBP Form 
7501 or equivalent electronic filing) for entries into the Customs 
territory of the United States.
    Export, for purposes of this subpart, means to effect exportation.
    Exportation has the same general meaning as 19 CFR 101.1 and 
generally refers to a severance of goods from the mass of things 
belonging to one country with the intention of uniting them to the mass 
of things belonging to some foreign country. For purposes of this 
subpart, a shipment between the United States and its insular 
possessions is not an export.
    Exporter, for purposes of this subpart, is the principal party in 
interest, meaning the party that receives the primary benefit, monetary 
or otherwise, of the export transaction. For exports from the United 
States, the exporter is the U.S. principal party in interest, as 
identified in Part 30 of title 15 of the CFR. An exporter is subject to 
the requirements of this subpart, even if exports are exempt from 
statistical reporting requirements under Part 30 of title 15 of the 
CFR.
    Finlet means one of the small individual fins on a tuna located 
behind the second dorsal and anal fins and forward of the tail fin.
    Fish or fish products regulated under this subpart means bluefin 
tuna, frozen bigeye tuna, southern bluefin tuna and swordfish and all 
such products of these species except parts other than meat (e.g., 
heads, eyes, roe, guts, and tails).
    IATTC means the Inter-American Tropical Tuna Commission, 
established pursuant to the Convention for the Establishment of an 
Inter-American Tropical Tuna Commission.
    ICCAT means the International Commission for the Conservation of 
Atlantic Tunas established pursuant to the International Convention for 
the Conservation of Atlantic Tunas.
    Import, for purposes of this subpart, generally means the act of 
bringing or causing any goods to be brought into the customs territory 
of a country with the intent to unlade them. For purposes of this 
subpart, goods brought into the United States from a U.S. insular 
possession, or vice-versa, are not considered imports.
    Importer, for purposes of this subpart, means the principal party 
responsible for the import of product into a country. For imports into 
the United States, and for purposes of this subpart, ``importer'' means 
the consignee as identified on entry documentation or any authorized, 
equivalent electronic medium required for release of shipments from the 
customs authority of the United States or the separate customs 
territory of a U.S. insular possession. If a consignee is not declared, 
then the importer of record is considered to be the consignee.
    Insular possession of the United States or U.S. insular possession, 
for purposes of this subpart, means the Commonwealth of the Northern 
Mariana Islands, Guam, American Samoa, and other possessions listed 
under 19 CFR 7.2, that are outside the customs territory of the United 
States.
    Intermediate country means a country that exports to another 
country HMS previously imported as an entry for consumption by that 
nation. A shipment of HMS through a country on a through bill of 
lading, or in another manner that does not enter the shipment into that 
country as an entry for consumption, does not make that country an 
intermediate country under this definition.
    IOTC means the Indian Ocean Tuna Commission established pursuant to 
the Agreement for the Establishment of the Indian Ocean Tuna Commission 
approved by the Food and Agriculture Organization (FAO) Council of the 
United Nations.
    Pacific bluefin tuna means the species Thunnus orientalis found in 
the Pacific Ocean.
    Permit holder, for purposes of this subpart, means, unless 
otherwise specified, a person who obtains a trade permit under Sec.  
300.182.
    Re-export, for purposes of this subpart, means the export of goods 
that were previously entered for consumption into the customs territory 
of a country.
    RFMO, as defined under this subpart, means regional fishery 
management organization, including CCSBT, IATTC, ICCAT, or IOTC.
    Separate customs territory of a U.S. insular possession means the 
customs territory of a U.S. insular possession when that possession's 
customs territory is not a part of the Customs territory of the United 
States.
    Southern bluefin tuna means the species Thunnus maccoyii found in 
any ocean area.
    Swordfish means the species Xiphias gladius that is found in any 
ocean area.
    Tag means either a dealer tag or a BSD tag.
    Trade permit means the HMS international trade permit under Sec.  
300.182.


Sec.  300.182  HMS international trade permit.

    (a) General. A person entering for consumption, exporting, or re-
exporting fish or fish products regulated under this subpart from any 
ocean area must possess a valid trade permit issued under this section. 
Importation of fish or fish products regulated under this subpart by 
nonresident corporations is restricted to those entities authorized 
under 19 CFR 141.18.
    (b) Application. A person must apply for a permit in writing on an 
appropriate form obtained from NMFS. The application must be completed, 
signed by the applicant, and submitted with required supporting 
documents, at least 30 days before the date upon which the permit is 
made effective. Application forms and instructions for their completion 
are available from NMFS.
    (c) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, NMFS will issue a permit within 30 days of receipt of a completed 
application.
    (2) NMFS will notify the applicant of any deficiency in the 
application, including failure to provide information or reports 
required under this subpart. If the applicant fails to correct the 
deficiency within 30 days following the date of notification, the 
application will be considered abandoned.
    (d) Duration. Any permit issued under this section is valid until 
December 31 of the year for which it is issued, unless suspended or 
revoked.
    (e) Alteration. Any permit that is substantially altered, erased, 
or mutilated is invalid.
    (f) Replacement. NMFS may issue replacement permits. An application 
for a replacement permit is not considered a new application. An 
appropriate fee, consistent with paragraph (j) of this section, may be 
charged for issuance of a replacement permit.
    (g) Transfer. A permit issued under this section is not 
transferable or assignable; it is valid only for the permit holder to 
whom it is issued.
    (h) Inspection. The permit holder must keep the permit issued under 
this section at his/her principal place of business. The permit must be 
displayed for inspection upon request of any authorized officer, or any 
employee of NMFS designated by NMFS for such purpose.
    (i) Sanctions. The Assistant Administrator may suspend, revoke, 
modify, or deny a permit issued or sought under this section. 
Procedures governing permit sanctions and denials are found at subpart 
D of 15 CFR part 904.
    (j) Fees. NMFS may charge a fee to recover the administrative 
expenses of permit issuance. The amount of the fee is calculated, at 
least annually, in accordance with the procedures of the NOAA Finance 
Handbook, available from NMFS, for determining administrative costs of 
each special product or service. The fee may not

[[Page 67279]]

exceed such costs and is specified on each application form. The 
appropriate fee must accompany each application. Failure to pay the fee 
will preclude issuance of the permit. Payment by a commercial 
instrument later determined to be insufficiently funded shall 
invalidate any permit.
    (k) Change in application information. Within 30 days after any 
change in the information contained in an application submitted under 
this section, the permit holder must report the change to NMFS in 
writing. If a change in permit information is not reported within 30 
days, the permit is void as of the 31\st\ day after such change.
    (l) Renewal. Persons must apply annually for a trade permit issued 
under this section. A renewal application must be submitted to NMFS, at 
an address designated by NMFS, at least 30 days before the permit 
expiration date to avoid a lapse of permitted status. NMFS will renew a 
permit provided that: the application for the requested permit is 
complete; all reports required under the Magnuson-Stevens Act, ATCA, 
and the Tuna Conventions Act of 1950 have been submitted, including 
those required under Sec. Sec.  300.183, 300.185, 300.186, and 300.187 
and Sec.  635.5 of this title; and the applicant is not subject to a 
permit sanction or denial under paragraph (i) of this section.


Sec.  300.183  Permit holder reporting and recordkeeping requirements.

    (a) Biweekly reports. Any person issued a trade permit under Sec.  
300.182 must submit to NMFS, on forms supplied by NMFS, a biweekly 
report of imports entered for consumption, exports, and re-exports of 
fish or fish products regulated under this subpart.
    (1) The report required to be submitted under paragraph (a) of this 
section must be postmarked within 10 days after the end of each 
biweekly reporting period in which fish or fish products regulated 
under this subpart were entered for consumption, exported, or re-
exported. The bi-weekly reporting periods are defined as the first day 
to the 15th day of each month and the 16th day to the last day of each 
month.
    (2) Each report must specify accurately and completely the 
requested information for each shipment of fish or fish products 
regulated under this subpart that is entered for consumption, exported, 
or re-exported.
    (b) Recordkeeping. Any person issued a trade permit under Sec.  
300.182 must retain at his/her principal place of business a copy of 
each biweekly report and supporting records for a period of 2 years 
from the date on which each report was submitted to NMFS.
    (c) Other reporting and recordkeeping requirements. Any person 
issued a trade permit is also subject to the reporting and 
recordkeeping requirements identified in Sec.  300.185.
    (d) Inspection. Any person authorized to carry out the enforcement 
activities under the regulations in this subpart has the authority, 
without warrant or other process, to inspect, at any reasonable time: 
fish or fish products regulated under this subpart, biweekly reports, 
statistical documents, re-export certificates, relevant sales receipts, 
import and export documentation, or other records and reports required 
by this subpart to be made, retained, or submitted. A permit holder 
must allow NMFS or an authorized person to inspect and copy, for any 
fish or fish products regulated under this subpart, any import and 
export documentation and any reports required under this subpart, and 
the records, in any form, on which the completed reports are based, 
wherever they exist. Any agent of a person issued a trade permit under 
this part, or anyone responsible for importing, exporting, storing, 
packing, or selling fish or fish products regulated under this subpart, 
shall be subject to the inspection provisions of this section.


Sec.  300.184  Species subject to documentation requirements.

    The following fish or fish products are subject to the 
documentation requirements of this subpart regardless of ocean area of 
catch.
    (a) Bluefin tuna. (1) Documentation is required for bluefin tuna 
products including those identified by the following subheading numbers 
from the Harmonized Tariff Schedule of the United States (HTS):
    (i) Fresh or chilled bluefin tuna (No. 0302.35.00.00) excluding 
fillets and other fish meat of HTS heading 0304.
    (ii) Frozen bluefin tuna (No. 0303.45.00.00), excluding fillets and 
other fish meat of HTS heading 0304.
    (2) In addition, bluefin tuna products in other forms (e.g., 
chunks, fillets, and products in airtight containers) that may be 
classified under any other HTS heading/subheading numbers are subject 
to the documentation requirements of this subpart, except that fish 
parts other than meat (e.g., heads, eyes, roe, guts, and tails) may be 
imported without said documentation.
    (b) Southern bluefin tuna. (1) Documentation is required for 
southern bluefin tuna products including those identified by the 
following subheading numbers from the HTS:
    (i) Fresh or chilled southern bluefin tuna (No. 0302.36.00.00), 
excluding fillets and other fish meat of HTS heading 0304.
    (ii) Frozen southern bluefin tuna (No. 0303.46.00.00), excluding 
fillets and other fish meat of HTS heading 0304.
    (2) In addition, southern bluefin tuna products in other forms 
(e.g., chunks, fillets, products in airtight containers) that may be 
classified under any other HTS heading/subheading numbers are subject 
to the documentation requirements of this subpart, except that fish 
parts other than meat (e.g., heads, eyes, roe, guts, and tails) may be 
imported without said documentation.
    (c) Bigeye tuna. (1) Documentation is required for frozen bigeye 
tuna products including those identified by the following subheading 
numbers from the HTS:
    (i) Frozen bigeye tuna (No. 0303.44.00.00), excluding fillets and 
other fish meat of HTS heading 0304.
    (ii) [Reserved]
    (2) In addition, frozen bigeye tuna products in other forms (e.g., 
chunks and fillets) that may be classified under any other HTS heading/
subheading numbers are subject to the documentation requirements of 
this subpart, except that frozen fish parts other than meat (e.g., 
heads, eyes, roe, guts, and tails), may be imported without said 
documentation.
    (3) Bigeye tuna caught by purse seiners and pole and line (bait) 
vessels and destined for canneries within the United States, including 
all U.S. commonwealths, territories, and possessions, may be imported 
without the documentation required under this subpart.
    (d) Swordfish. (1) Documentation is required for swordfish products 
including those identified by the following subheading numbers from the 
HTS:
    (i) Fresh or chilled swordfish, steaks (No. 0302.69.20.41).
    (ii) Fresh or chilled swordfish, excluding fish fillets, steaks, 
and other fish meat (No. 0302.69.20.49).
    (iii) Frozen swordfish, steaks (No. 0303.79.20.41).
    (iv) Frozen swordfish, excluding fillets, steaks and other fish 
meat (No. 0303.79.20.49).
    (v) Fresh, chilled or frozen swordfish, fillets and other fish meat 
(No. 0304.20.60.92).
    (2) In addition, swordfish products in other forms (e.g., chunks, 
fillets, and products in airtight containers) that may be classified 
under any other HTS heading/subheading numbers, are subject to the 
documentation requirements of this subpart, except that

[[Page 67280]]

fish parts other than meat (e.g., heads, eyes, roe, guts, tails) may be 
allowed entry without said statistical documentation.


Sec.  300.185  Documentation, reporting and recordkeeping requirements 
for statistical documents and re-export certificates.

    (a) Imports--(1) Applicability of requirements. The documentation 
requirements in paragraph (a)(2) of this section apply to all imports 
of fish or fish products regulated under this subpart into the Customs 
territory of the United States, except when entered as a product of an 
American fishery landed overseas (HTS heading 9815). For insular 
possessions with customs territories separate from the Customs 
territory of the United States, documentation requirements in paragraph 
(a)(2) of this section apply only to entries for consumption. The 
reporting requirements of paragraph (a)(3) of this section do not apply 
to fish products destined from one foreign country to another which 
transit the United States or a U.S. insular possession and are 
designated as an entry type other than entry for consumption as defined 
in Sec.  300.181.
    (2) Documentation requirements. (i) All fish or fish products 
regulated under this subpart, imported into the customs territory of 
the United States or entered for consumption into a separate customs 
territory of a U.S. insular possession, must, at the time of presenting 
entry documentation for clearance by customs authorities (e.g., CBP 
Forms 7533 or 3461 or other documentation required by the port 
director) be accompanied by an original, completed, approved, 
validated, species-specific statistical document with the required 
information and exporter's certification completed as specified in 
Sec.  300.186. Customs forms can be obtained by contacting the local 
CBP port office; contact information is available at www.cbp.gov. For a 
U.S. insular possession, contact the local customs office for any forms 
required for entry.
    (ii) The statistical document must be validated as specified in 
Sec.  300.187 by a responsible government official of the country whose 
flag vessel caught the fish (regardless of where the fish are first 
landed).
    (iii) For fish products entered for consumption, the permit holder 
must provide on the original statistical document that accompanied the 
import shipment the correct information and importer's certification 
specified in Sec.  300.186, and must note on the top of the statistical 
document the entry number assigned at the time of filing an entry 
summary (e.g., CBP Form 7501 or electronic equivalent) with customs 
authorities.
    (iv) Bluefin tuna, imported into the Customs territory of the 
United States or entered for consumption into the separate customs 
territory of a U.S. insular possession, from a country requiring a BSD 
tag on all such bluefin tuna available for sale, must be accompanied by 
the appropriate BSD tag issued by that country, and said BSD tag must 
remain on any bluefin tuna until it reaches its final destination. If 
the final import destination is the United States, which includes U.S. 
insular possessions, the BSD tag must remain on the bluefin tuna until 
it is cut into portions. If the bluefin tuna portions are subsequently 
packaged for domestic commercial use or re-export, the BSD tag number 
and the issuing country must be written legibly and indelibly on the 
outside of the package.
    (3) Reporting requirements. For fish or fish products regulated 
under this subpart that are entered for consumption and whose final 
destination is within the United States, which includes a U.S. insular 
possessions, a permit holder must submit to NMFS the original 
statistical document that accompanied the fish product as completed 
under Sec.  300.186 and paragraph (a)(2) of this section. A copy of the 
original completed statistical document must be postmarked and mailed, 
or faxed, by said permit holder to NMFS at an address designated by 
NMFS within 24 hours of the time the fish product was entered for 
consumption into the Customs territory of the United States or the 
separate customs territory of a U.S. insular possession.
    (b) Exports--(1) Applicability of requirements. The documentation 
and reporting requirements of this paragraph apply to exports of fish 
or fish products regulated under this subpart that were harvested by 
U.S. vessels and first landed in the United States, or harvested by 
vessels of a U.S. insular possession and first landed in that 
possession. This paragraph also applies to products of American 
fisheries landed overseas.
    (2) Documentation requirements. A permit holder must complete an 
original, numbered, species-specific statistical document issued to 
that permit holder by NMFS for each export referenced under paragraph 
(b)(1) of this section. Such an individually numbered document is not 
transferable and may be used only once by the permit holder to which it 
was issued to report on a specific export shipment. A permit holder 
must provide on the statistical document the correct information and 
exporter certification specified in Sec.  300.186. The statistical 
document must be validated, as specified in Sec.  300.187, by NMFS, or 
another official authorized by NMFS. A list of such officials may be 
obtained by contacting NMFS. A permit holder requesting U.S. validation 
for exports should notify NMFS as soon as possible after arrival of the 
vessel to avoid delays in inspection and validation of the export 
shipment.
    (3) Reporting requirements. A permit holder must ensure that the 
original statistical document as completed under paragraph (b)(2) of 
this section accompanies the export of such products to their export 
destination. A copy of the statistical document must be postmarked and 
mailed by said permit holder to NMFS, at an address designated by NMFS, 
within 24 hours of the time the fish product was exported from the 
United States or a U.S. insular possession.
    (c) Re-exports--(1) Applicability of requirements. The 
documentation and reporting requirements of this paragraph apply to 
exports of fish or fish products regulated under this subpart that were 
previously entered for consumption into the customs territory of the 
United States or the separate customs territory of a U.S. insular 
possession through filing the documentation specified in paragraph (a) 
of this section. The requirements of this paragraph do not apply to 
fish products destined from one foreign country to another which 
transit the United States or a U.S. insular possession and which are 
designated as an entry type other than entry for consumption as defined 
in Sec.  300.181.
    (2) Documentation requirements. (i) If a permit holder subdivides 
or consolidates a shipment that was previously entered for consumption 
as described in paragraph (c)(1) of this section, the permit holder 
must complete an original, individually numbered, species-specific re-
export certificate issued to that permit holder by NMFS for each such 
re-export shipment. Such an individually numbered document is not 
transferable and may be used only once by the permit holder to which it 
was issued to report on a specific re-export shipment. A permit holder 
must provide on the re-export certificate the correct information and 
re-exporter certification specified in Sec.  300.186. The permit holder 
must also attach the original statistical document that accompanied the 
import shipment or a copy, and provide the correct information and 
intermediate importer's certification specified in Sec.  300.186, and 
must note on the top of both the

[[Page 67281]]

statistical documents and the re-export certificates the entry number 
assigned by customs authorities at the time of filing the entry 
summary.
    (ii) If a shipment that was previously entered for consumption as 
described in paragraph (c)(1) of this section is not subdivided into 
sub-shipments or consolidated, for each re-export shipment, a permit 
holder must complete the intermediate importer's certification on the 
original statistical document and note the entry number on the top of 
the statistical document. Such re-exports do not need a re-export 
certificate and the re-export does not require validation.
    (iii) Re-export certificates must be validated, as specified in 
Sec.  300.187, by NMFS or another official authorized by NMFS. A list 
of such officials may be obtained by contacting NMFS. A permit holder 
requesting validation for re-exports should notify NMFS as soon as 
possible to avoid delays in inspection and validation of the re-export 
shipment.
    (3) Reporting requirements. For each re-export, a permit holder 
must submit the original of the completed re-export certificate (when 
required) and the original or a copy of the original statistical 
document completed as specified under paragraph (c)(2) of this section, 
to accompany the shipment of such products to their re-export 
destination. A copy of the completed statistical document and re-export 
certificate (when required) must be postmarked and mailed by said 
permit holder to NMFS, at an address designated by NMFS, within 24 
hours of the time the shipment was re-exported from the United States.
    (d) Recordkeeping. A permit holder must retain at his or her 
principal place of business, a copy of each statistical document and 
re-export certificate required to be submitted to NMFS pursuant to this 
section, and supporting records for a period of 2 years from the date 
on which it was submitted to NMFS.
    (e) Inspection. Any person responsible for importing, exporting, 
storing, packing, or selling fish or fish products regulated under this 
subpart, including permit holders, consignees, customs brokers, freight 
forwarders, and importers of record, shall be subject to the inspection 
provisions at Sec.  300.183(d).


Sec.  300.186  Contents of documentation.

    (a) Statistical documents. To be deemed complete, all statistical 
documents must state:
    (1) The document number assigned by the country issuing the 
document.
    (2) The name of the country issuing the document, which must be the 
country whose flag vessel harvested the fish, regardless of where it is 
first landed.
    (3) The name of the vessel that caught the fish, the vessel's 
length (in meters), the vessel's registration number, and the ICCAT 
record number, if applicable.
    (4) The point of export, which is the city, state or province, and 
country from which the fish is first exported.
    (5) The product type (fresh or frozen), time of harvest (month/
year), and product form (round, gilled and gutted, dressed, fillet, or 
other).
    (6) The method of fishing used to harvest the fish (e.g., purse 
seine, trap, rod and reel).
    (7) The ocean area from which the fish was harvested.
    (8) The weight of each fish (in kilograms for the same product form 
previously specified) or the net weight of each product type, as 
applicable.
    (9) The name and license number of, and be signed and dated in the 
exporter's certification block by, the exporter.
    (10) If applicable, the name and title of, and be signed and dated 
in the validation block by, a responsible government official of the 
country whose flag vessel caught the fish (regardless of where the fish 
are first landed) or by an official of an institution accredited by 
said government, with official government or accredited institution 
seal affixed, thus validating the information on the statistical 
document.
    (11) If applicable, the name(s) and address(es), including the name 
of the city and state or province of import, and the name(s) of the 
intermediate country(ies) or the name of the country of final 
destination, and license number(s) of, and be signed and dated in the 
importer's certification block by, each intermediate and the final 
importer.
    (b) Bluefin tuna statistical documents. Bluefin tuna statistical 
documents, to be deemed complete, in addition to the elements in 
paragraph (a) of this section, must also state:
    (1) Whether the fish was farmed or captured.
    (2) The name and address of the owner of the trap that caught the 
fish, or the farm from which the fish was taken, if applicable.
    (3) The identifying tag number, if landed by vessels from countries 
with BSD tagging programs, or tagged pursuant to Sec.  300.187(d) or 
Sec.  635.5(b) of this title.
    (c) Southern bluefin tuna statistical documents. To be complete, 
southern bluefin tuna statistical documents must, in addition to the 
elements in Sec.  300.186(a), also state:
    (1) The name and address of the processing establishment, if 
applicable.
    (2) [Reserved]
    (d) Bigeye tuna statistical documents. To be deemed complete, 
bigeye tuna statistical documents must, in addition to the elements in 
paragraph (a) of this section, also state:
    (1) The name of the owner of the trap that caught the fish, if 
applicable.
    (2) The net weight of product for each product type (in kilograms 
for the same product form previously specified).
    (e) Swordfish statistical documents. To be deemed complete, 
swordfish statistical documents must, in addition to the elements in 
paragraph (a) of this section, also state:
    (1) Certification by the exporter that, for swordfish harvested 
from the Atlantic Ocean, each individual Atlantic swordfish included in 
the shipment weighs at least 15 kilograms (33 lb) dressed weight, or if 
pieces, that the pieces were derived from a swordfish that weighed at 
least 15 kilograms (33 lb) dressed weight. Import provisions pertaining 
to swordfish minimum size are provided at Sec.  635.20(f) of this 
title.
    (2) [Reserved]
    (f) Re-export certificates. To be deemed complete, all re-export 
certificates, must state:
    (1) The document number assigned by the country issuing the 
document.
    (2) The name of the country issuing the document, which must be the 
country through which the product is being re-exported.
    (3) The point of re-export, which is the city, state, or province, 
and country from which the product was re-exported.
    (4) The description of the fish product as imported, including the 
product type (fresh or frozen), product form (round, gilled and gutted, 
dressed, fillet, or other), the net weight, flag country of the vessel 
that harvested the fish in the shipment, and the date of import to the 
country from which it is being re-exported.
    (5) The description of the fish product as re-exported, including 
the product type (fresh or frozen), product form (round, gilled and 
gutted, dressed, fillet, or other) and the net weight.
    (6) The name and license number (if applicable) of, and be signed 
and dated in the re-exporter's certification block by, the re-exporter.
    (7) If applicable, the name and title of, and be signed and dated 
in the validation block by, a responsible government official of the 
re-exporting country appearing on the certificate, or

[[Page 67282]]

by an official of an institution accredited by said government, with 
official government or accredited institution seal affixed, thus 
validating the information on the re-export certificate.
    (8) If applicable, the name(s) and address(es), including the name 
of the city and state or province of import, and the name(s) of the 
intermediate country(ies) or the name of the country of final 
destination, and license number(s) of, and be signed and dated in the 
importer's certification block by each intermediate and the final 
importer.
    (g) Bluefin tuna re-export certificates. To be deemed complete, 
Bluefin tuna re-export certificates must, in addition to the elements 
in paragraph (f) of this section, also state:
    (1) Whether the fish for re-export was farmed.
    (2) The name and address of the farm from which the fish was taken.
    (h) Approved statistical documents and re-export certificates. (1) 
An approved statistical document or re-export certificate may be 
obtained from NMFS to accompany exports of fish or fish products 
regulated under this subpart from the customs territory of the United 
States or the separate customs territory of a U.S. insular possession.
    (2) A nationally approved form from another country may be used for 
exports to the United States if that document strictly conforms to the 
information requirements and format of the applicable RFMO documents. 
An approved statistical document or re-export certificate for use in 
countries without a nationally approved form may be obtained from the 
following websites, as appropriate: www.iccat.org, www.iattc.org, 
www.ccsbt.org, or www.iotc.org to accompany exports to the United 
States.


Sec.  300.187  Validation requirements.

    (a) Imports. The approved statistical document accompanying any 
import of any fish or fish product regulated under this subpart must be 
validated by a government official from the issuing country, unless 
NMFS waives this requirement pursuant to an applicable RFMO 
recommendation. NMFS will furnish a list of countries for which 
government validation requirements are waived to the appropriate 
customs officials. Such list will indicate the circumstances of 
exemption for each issuing country and the non-government institutions, 
if any, accredited to validate statistical documents and re-export 
certificates for that country.
    (b) Exports. The approved statistical document accompanying any 
export of fish or fish products regulated under this subpart must be 
validated, except pursuant to a waiver described in paragraph (d) of 
this section. Validation must be made by NMFS or another official 
authorized by NMFS.
    (c) Re-exports. The approved re-export certificate accompanying any 
re-export of fish or fish products regulated under this subpart, as 
required under Sec.  300.185(c), must be validated, except pursuant to 
a waiver described in paragraph (d) of this section. Validation must be 
made by NMFS or another official authorized by NMFS.
    (d) Validation waiver. Any waiver of government validation will be 
consistent with applicable RFMO recommendations concerning validation 
of statistical documents and re-export certificates. If authorized, 
such waiver of government validation may include exemptions from 
government validation for Pacific bluefin tuna with individual BSD tags 
affixed pursuant to paragraph (f) of this section or for Atlantic 
bluefin tuna with tags affixed pursuant to Sec.  635.5(b) of this 
title. Waivers will be specified on statistical documents and re-export 
certificates or accompanying instructions, or in a letter to permit 
holders from NMFS.
    (e) Authorization for non-NMFS validation. An official from an 
organization or government agency seeking authorization to validate 
statistical documents or re-export certificates accompanying exports or 
re-exports from the United States, which includes U.S. commonwealths, 
territories, and possessions, must apply in writing, to NMFS, at an 
address designated by NMFS for such authorization. The application must 
indicate the procedures to be used for verification of information to 
be validated; list the names, addresses, and telephone/fax numbers of 
individuals to perform validation; procedures to be used to notify NMFS 
of validations; and an example of the stamp or seal to be applied to 
the statistical document or re-export certificate. NMFS, upon finding 
the applicant capable of verifying the information required on the 
statistical document or re-export certificate, will issue, within 30 
days, a letter specifying the duration of effectiveness and conditions 
of authority to validate statistical documents or re-export 
certificates accompanying exports or re-exports from the United States. 
The effectiveness of such authorization will be delayed as necessary 
for NMFS to notify the appropriate RFMO of other officials authorized 
to validate statistical document or re-export certificates. Non-
government organizations given authorization to validate statistical 
documents or re-export certificates must renew such authorization on a 
yearly basis.
    (f) BSD tags--(1) Issuance. NMFS will issue numbered BSD tags for 
use on Pacific bluefin tuna upon request to each permit holder.
    (2) Transfer. BSD tags issued under this section are not 
transferable and are usable only by the permit holder to whom they are 
issued.
    (3) Affixing BSD tags. At the discretion of permit holders, a tag 
issued under this section may be affixed to each Pacific bluefin tuna 
purchased or received by the permit holder. If so tagged, the tag must 
be affixed to the tuna between the fifth dorsal finlet and the keel.
    (4) Removal of tags. A tag, as defined in this subpart and affixed 
to any bluefin tuna, must remain on the tuna until it is cut into 
portions. If the bluefin tuna or bluefin tuna parts are subsequently 
packaged for transport for domestic commercial use or for export, the 
number of each dealer tag or BSD tag must be written legibly and 
indelibly on the outside of any package containing the bluefin tuna or 
bluefin tuna parts. Such tag number also must be recorded on any 
document accompanying the shipment of bluefin tuna or bluefin tuna 
parts for commercial use or export.
    (5) Labeling. The tag number of a BSD tag affixed to each Pacific 
bluefin tuna under this section must be recorded on NMFS reports 
required by Sec.  300.183, on any documents accompanying the shipment 
of Pacific bluefin tuna for domestic commercial use or export as 
indicated in Sec. Sec.  300.185 and 300.186, and on any additional 
documents that accompany the shipment (e.g., bill of lading, customs 
manifest, etc.) of the tuna for commercial use or for export.
    (6) Reuse. BSD tags issued under this section are separately 
numbered and may be used only once, one tail tag per Pacific bluefin 
tuna, to distinguish the purchase of one Pacific bluefin tuna. Once 
affixed to a tuna or recorded on any package, container or report, a 
BSD tag and associated number may not be reused.


Sec.  300.188  Ports of entry.

    NMFS shall monitor the importation of fish or fish products 
regulated under this subpart into the United States. If NMFS determines 
that the diversity of handling practices at certain ports at which fish 
or fish products regulated under this subpart are being imported into 
the United States allows for circumvention of the statistical document 
requirement, NMFS may undertake a rulemaking to designate, after 
consultation with the CBP, those

[[Page 67283]]

ports at which fish or fish products regulated under this subpart from 
any ocean area may be imported into the United States.


Sec.  300.189  Prohibitions.

    In addition to the prohibitions specified in Sec.  300.4, and 
Sec. Sec.  600.725 and 635.71 of this title, it is unlawful for any 
person subject to the jurisdiction of the United States to violate any 
provision of this part, the Atlantic Tunas Convention Act, the 
Magnuson-Stevens Act, the Tuna Conventions Act of 1950, or any other 
rules promulgated under those Acts. It is unlawful for any person or 
vessel subject to the jurisdiction of the United States to:
    (a) Falsify information required on an application for a permit 
submitted under Sec.  300.182.
    (b) Import as an entry for consumption, purchase, receive for 
export, export, or re-export any fish or fish product regulated under 
this subpart without a valid trade permit issued under Sec.  300.182.
    (c) Fail to possess, and make available for inspection, a trade 
permit at the permit holder's place of business, or alter any such 
permit as specified in Sec.  300.182.
    (d) Falsify or fail to record, report, or maintain information 
required to be recorded, reported, or maintained, as specified in Sec.  
300.183 or Sec.  300.185.
    (e) Fail to allow an authorized agent of NMFS to inspect and copy 
reports and records, as specified in Sec.  300.183 or Sec.  300.185.
    (f) Fail to comply with the documentation requirements as specified 
in Sec.  300.185, Sec.  300.186 or Sec.  300.187, for fish or fish 
products regulated under this subpart that are imported, entered for 
consumption, exported, or re-exported.
    (g) Fail to comply with the documentation requirements as specified 
in Sec.  300.186, for the importation, entry for consumption, 
exportation, or re-exportation of an Atlantic swordfish, or part 
thereof, that is less than the minimum size.
    (h) Validate statistical documents or re-export certificates 
without authorization as specified in Sec.  300.187.
    (i) Validate statistical documents or re-export certificates as 
provided for in Sec.  300.187 with false information.
    (j) Remove any NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna or any tag affixed to a bluefin tuna imported from a 
country with a BSD tag program before removal is allowed under Sec.  
300.187; fail to write the tag number on the shipping package or 
container as specified in Sec.  300.187; or reuse any NMFS-issued 
numbered tag affixed to any Pacific bluefin tuna, or any tag affixed to 
a bluefin tuna imported from a country with a BSD tag program, or any 
tag number previously written on a shipping package or container as 
prescribed by Sec.  300.187.
    (k) Import, or attempt to import, any fish or fish product 
regulated under this subpart in a manner inconsistent with any ports of 
entry designated by NMFS as authorized by Sec.  300.188.
    (l) Ship, transport, purchase, sell, offer for sale, import, enter 
for consumption, export, re-export, or have in custody, possession, or 
control any fish or fish product regulated under this subpart that was 
imported, entered for consumption, exported, or re-exported contrary to 
this subpart.
    (m) Fail to provide a validated statistical document for imports at 
time of entry into the customs territory of the United States of fish 
or fish products regulated under this subpart, regardless of whether 
the importer, exporter, or re-exporter holds a valid trade permit 
issued pursuant to Sec.  300.182 or whether the fish products are 
imported as an entry for consumption.

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
9. The authority citation for 50 CFR part 635, continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
10. In 635.2, remove the definition for ``Intermediate country'' and 
``Swordfish Certificate of Eligibility (COE);'' add a definition for 
``Exportation'' in alphabetical order; and revise the definitions for 
``Export,'' ``Exporter,'' ``Import,'' and ``Importer'' as follows:


Sec.  635.2  Definitions.

* * * * *
    Export, for purposes of this subpart, means to effect exportation.
    Exportation has the same general meaning as 19 CFR 101.1 and 
generally refers to a severance of goods from the mass of things 
belonging to one country with the intention of uniting them to the mass 
of things belonging to some foreign country. For purposes of this 
subpart, a shipment between the United States and its insular 
possessions is not an export.
    Exporter, for purposes of this subpart, is the principal party in 
interest, meaning the party that receives the primary benefit, monetary 
or otherwise, of the export transaction. For exports from the United 
States, the exporter is the U.S. principal party in interest, as 
identified in Part 30 of title 15 of the CFR. An exporter is subject to 
the requirements of this subpart, even if exports are exempt from 
statistical reporting requirements under Part 30 of title 15 of the 
CFR.
* * * * *
    Import, for purposes of this subpart, generally means the act of 
bringing or causing any goods to be brought into the customs territory 
of a country with the intent to unlade them. For purposes of this 
subpart, goods brought into the United States from a U.S. insular 
possession, or vice-versa, are not considered imports.
    Importer, for purposes of this subpart, means the principal party 
responsible for the import of product into a country. For imports into 
the United States, and for purposes of this subpart, ``importer'' means 
the consignee as identified on entry documentation or any authorized, 
equivalent electronic medium required for release of shipments, or any 
authorized equivalent entry documentation from the customs authority of 
the United States or the separate customs territory of a U.S. insular 
possession. If a consignee is not declared, then the importer of record 
is considered to be the consignee.
* * * * *

0
11. In Sec.  635.4 revise paragraph (g) to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (g) Dealer permits--(1) Atlantic tunas. A person that receives, 
purchases, trades for, or barters for Atlantic tunas from a fishing 
vessel of the United States, as defined under Sec.  600.10 of this 
chapter, must possess a valid dealer permit.
    (2) Shark. A person that receives, purchases, trades for, or 
barters for Atlantic sharks from a fishing vessel of the United States, 
as defined under Sec.  600.10 of this chapter, must possess a valid 
dealer permit.
    (3) Swordfish. A person that receives, purchases, trades for, or 
barters for Atlantic swordfish from a fishing vessel of the United 
States, as defined under Sec.  600.10 of this chapter, must possess a 
valid dealer permit.
* * * * *

0
12. In Sec.  635.5, remove paragraph (b)(1)(ii); redesignate paragraphs 
(b)(1)(iii) through (b)(1)(v) as (b)(1)(ii) through (b)(1)(iv), 
respectively; and revise newly redesignated paragraph (b)(1)(ii) and 
paragraph (b)(2)(i)(B) to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Reports of Atlantic tunas, Atlantic swordfish, and/or Atlantic 
sharks

[[Page 67284]]

received by dealers from U.S. vessels, as defined under Sec.  600.10 of 
this chapter, on the first through the 15th of each month, must be 
postmarked not later than the 25th of that month. Reports of such fish 
received on the 16th through the last day of each month must be 
postmarked not later than the 10th of the following month. If a dealer 
issued an Atlantic tunas, swordfish or sharks dealer permit under Sec.  
635.4 has not received any Atlantic HMS from U.S. vessels during a 
reporting period as specified in this section, he or she must still 
submit the report required under paragraph (b)(1)(i) of this section 
stating that no Atlantic HMS were received. This negative report must 
be postmarked for the applicable reporting period as specified in this 
section. This negative reporting requirement does not apply for bluefin 
tuna.
* * * * *
    (2) * * *
    (i) * * *
    (B) Bi-weekly reports. Each dealer issued an Atlantic tunas permit 
under Sec.  635.4 must submit a bi-weekly report on forms supplied by 
NMFS for BFT received from U.S. vessels. For BFT received from U.S. 
vessels on the first through the 15\th\ of each month, the dealer must 
submit the bi-weekly report form to NMFS postmarked not later than the 
25\th\ of that month. Reports of BFT received on the 16\th\ through the 
last day of each month must be postmarked not later than the 10\th\ of 
the following month.
* * * * *

0
13. In Sec.  635.20, paragraph (f)(2) is revised to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (f) * * *
    (2) Except for a swordfish landed in a Pacific state and remaining 
in the state of landing, a swordfish, or part thereof, weighing less 
than 33 lb (15 kg) dressed weight will be deemed to be an Atlantic 
swordfish harvested by a vessel of the United States and to be in 
violation of the minimum size requirement of this section unless such 
swordfish, or part thereof, is accompanied by a swordfish statistical 
document attesting that the swordfish was lawfully imported. Refer to 
Sec.  300.186 of this title for the requirements related to the 
swordfish statistical document.
* * * * *

0
14. In Sec.  635.31 paragraphs (a)(3) and (a)(4)(ii) are revised to 
read as follows:


Sec.  635.31  Restrictions on sale and purchase.

* * * * *
    (a) * * *
    (3) Dealers or seafood processors may not purchase or sell a BFT 
smaller than the large medium size class unless it is lawfully imported 
and is accompanied by a bluefin tuna statistical document, as specified 
in Sec.  300.185(a) of this title.
    (4) * * *
    (ii) It is accompanied by a bluefin tuna statistical document, as 
specified in Sec.  300.185(a) of this title.
* * * * *


Sec.  635.41  [Removed]

0
15. Section 635.41 is removed.


Sec.  635.45  [Redesignated as Sec.  635.41]

0
16. Section 635.45 is redesignated as Sec.  635.41.


Sec. Sec.  635.42, 635.43, 635.44, 635.46, and 635.47  [Removed]

0
17. Sections 635.42, 635.43, 635.44, 635.46, and 635.47 are removed.

0
18. In Sec.  635.71, paragraphs (b)(2), (b)(25), (e)(10) and (e)(12) 
are removed and reserved and paragraphs (a)(24), (b)(26) and (e)(1) are 
revised to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (24) Import, or attempt to import, any fish or fish products 
regulated under this part in a manner contrary to any import 
requirements or import restrictions specified at Sec.  635.40 or Sec.  
635.41.
* * * * *
    (b) * * *
    (26) Import a bluefin tuna or bluefin tuna product into the United 
States from Belize, Panama, or Honduras other than as authorized in 
Sec.  635.41.
* * * * *
    (e) * * *
    (1) Purchase, barter for, or trade for a swordfish from the north 
or south Atlantic swordfish stock without a dealer permit as specified 
in Sec.  635.4(g).
* * * * *
[FR Doc. 04-25523 Filed 11-16-04; 8:45 am]
BILLING CODE 3510-22-S