International Fisheries; Atlantic Highly Migratory Species, 18473-18483 [E8-7068]
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Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Proposed Rules
necessary for informed public comment
on the proposed approval.
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VI. Proposed Action
EPA is proposing to conditionally
approve revisions to the Florida SIP
(F.A.C. Chapters 62–204, 62–210 and
62–212) submitted by FDEP on February
3, 2006. As part of the conditional
approval, Florida must (1) revise the
definition of ‘‘new emissions unit’’ to be
consistent with the federal definition or
revise the definition to define what is
meant by ‘‘beginning normal operation’’
and provide an equivalency
demonstration supporting the revised
definition; (2) revise the definition of
‘‘significant emissions rate’’ to include
ozone depleting substances; (3)
withdraw the request that EPA include
a significant emissions rate for mercury
in the Florida SIP, specifically section
200.243(a) 2 of F.A.C. Chapter 62–210;
and (4) revise the recordkeeping
requirements at 62–212.300 to be
consistent with federal requirements.
In addition to and in conjunction with
the proposed conditional approval of
Florida’s PSD SIP revisions, EPA is
proposing to approve Florida’s
concurrent February 3, 2006, request to
make the State’s PSD permitting
program applicable to electric power
plants subject to the Florida PPSA. Any
final approval of this request would
mean that Florida’s SIP-approved PSD
permitting program, including any final
conditional approval of the State’s PSD
revisions noted above, would apply to
electric power plants in Florida in lieu
of the current federally delegated PSD
program.
VII. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), these proposed
actions are not ‘‘significant regulatory
actions’’ and therefore are not subject to
review by the Office of Management and
Budget. For this reason, these actions
are also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). These proposed actions
merely propose to approve State law as
meeting Federal requirements and
impose no additional requirements
beyond those imposed by State law.
Accordingly, the Administrator certifies
that the proposed approvals in this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rule proposes to
approve pre-existing requirements
under State law and does not impose
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any additional enforceable duty beyond
that required by State law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
This proposed rule also does not have
tribal implications because it will not
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified by Executive Order 13175
(59 FR 22951, November 9, 2000). These
proposed actions also do not have
Federalism implications because they
do not have substantial direct effects on
the States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). These proposed
actions merely propose to approve State
rules implementing a Federal standard,
and do not alter the relationship or the
distribution of power and
responsibilities established in the CAA.
This proposed rule also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it approves
State rules implementing a Federal
standard.
In reviewing SIP submissions, EPA’s
role is to approve State choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. This proposed rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
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18473
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 27, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E8–7073 Filed 4–3–08; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 300 and 635
[Docket No. 080221247–8166–01]
RIN 0648–AU88
International Fisheries; Atlantic Highly
Migratory Species
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments; notice of public hearings.
AGENCY:
SUMMARY: NMFS proposes to modify
permitting and reporting requirements
for the Highly Migratory Species (HMS)
International Trade Permit (ITP) to
improve program efficacy and
enforceability, and implement the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
bluefin tuna catch documentation (BCD)
program. The modified regulations
would also require that shark fin
importers, exporters, and re-exporters
obtain the HMS ITP to assist NMFS in
monitoring trade of shark fins, and
would implement the new definition of
‘‘import’’ contained in the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act).
DATES: Written comments on the
proposed rule and supporting
documents must be received on or
before May 5, 2008. Comments sent to
the Office of Management and Budget
(OMB) on the information collection
requirements of the proposed rule must
also be received on or before May 5,
2008.
The public hearings will be held in
April (see the SUPPLEMENTARY
INFORMATION section for further details).
ADDRESSES: You may submit comments,
identified by ‘‘A0648–AU88’’, by any
one of the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal: https://
www.regulations.gov
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Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Proposed Rules
• Fax: 978–281–9340, Attn: Dianne
Stephan
• Mail: Dianne Stephan, Highly
Migratory Species Management
Division, Office of Sustainable Fisheries
(F/SF1), NMFS, One Blackburn Dr.,
Gloucester, MA 01930
Copies of the supporting documents
including the Initial Regulatory
Flexibility Analysis and Regulatory
Impact Review are available by sending
your request to Dianne Stephan at the
mailing address specified above. This
document is also available via the
internet at: https://www.nmfs.noaa.gov/
sfa/hms/breakinglnews.htm.
Instructions: All comments received
are a part of the public record and will
generally be posted to Portal https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information. NMFS will
accept anonymous comments.
Attachments to electronic comments
will be accepted in Microsoft Word,
Excel, WordPerfect, or Adobe PDF file
formats only.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
rule may be submitted to NMFS at the
above address, or may be submitted to
the Office of Regulatory Affairs, Office
of Management and Budget, by email to
DavidlRostker@omb.eop.gov or by fax
to (202) 395–7285.
See the SUPPLEMENTARY INFORMATION
section for hearing locations.
FOR FURTHER INFORMATION CONTACT:
Dianne Stephan, 978–281–9260.
SUPPLEMENTARY INFORMATION:
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Background
The United States, which includes the
Commonwealth of Puerto Rico,
American Samoa, the U.S. Virgin
Islands, Guam, and all other U.S.
commonwealths, territories, or
possessions, is a member of the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
and the Inter-American Tropical Tuna
Commission (IATTC). The United States
has implemented statistical document
programs under the HMS ITP program
regulations per recommendations of
regional fishery management
organizations (RFMOs), and U.S.
authorizing legislation as outlined
below. This rule replaces the ICCAT
bluefin tuna statistical document
program with the initial implementation
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of the ICCAT BCD program
recommended at the 2007 ICCAT
annual meeting. Other objectives of the
rule are to adjust the HMS ITP
regulatory program, as informed by
NMFS and industry experiences since
the program was implemented, and to
adopt the new definition of import
contained in the Magnuson-Stevens Act.
Lastly, the rule proposes to require
permitting of shark fin traders under the
HMS international trade regulations to
help NMFS monitor trade of shark fins.
Consignment Document Programs
Several RFMOs have implemented
consignment tracking such as statistical
document trade tracking programs to
combat illegal, unregulated, and
unreported (IUU) fishing of
internationally managed species, as well
as to further understand trade and
markets effects on commerce of these
species. Statistical documents are
required when a product is exported
and include information on the shipped
product such as product type, species,
amount, and flag nation of the
harvesting vessel. The documents must
accompany the product until the
product is sold to a consumer, and
participating nations must collect the
final statistical documents and submit
summarized data to the relevant RFMO
for use in fishery management.
A statistical document program for
Atlantic bluefin tuna was implemented
in the United States (60 FR 14381;
March 17, 1995) pursuant to ICCAT
Recommendation 92–01 and set a
precedent for tracking trade from all
ocean areas for recommendations
pertaining to a single geographic region.
The 1992 ICCAT recommendation for
tracking Atlantic bluefin tuna commerce
only included statistical document
requirements for imports and exports of
frozen product. In 1993, the program
was expanded to cover fresh products
(ICCAT Recommendation 93–03), and in
1997, ICCAT recommended the addition
of a re-export certificate to the program
(97–04). The Commission for the
Conservation of Southern Bluefin Tuna
(CCSBT) implemented a statistical
document program for SBT and
requested non-members such as the
United States to support this program.
The United States implemented this
program in 2005 (69 FR 67268,
November 17, 2004).
Based on the experience gained with
the Bluefin tuna statistical document
program, ICCAT recommended
statistical document programs for frozen
bigeye tuna and swordfish in 2000 (00–
22) and established these programs in
2001 (ICCAT Recommendations 01–21
and 22, respectively). The swordfish
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statistical document program replaced
the previously required swordfish
certificate of eligibility, which had been
established to enforce a minimum size
on imported product and monitor trade
of Atlantic swordfish (64 FR 12903,
March 16, 1999). The Indian Ocean
Tuna Commission (Recommendation
01/06) and IATTC (Recommendation C–
03–01) both adopted a statistical
document program for frozen bigeye
tuna similar to the ICCAT program. The
United States implemented these
statistical document programs for
swordfish and frozen bigeye tuna in
2005 (69 FR 67268, November 17, 2004).
ICCAT adopted Recommendation 07–
10 at its 2007 annual meeting. The
recommendation implements the BCD
program. The BCD program expands the
ICCAT bluefin tuna statistical document
program to further track bluefin tuna
consignments, beginning at the point of
catch and including transit through
Mediterranean farming operations,
unlike the previous statistical document
program, which only tracked
consignments through trade to the final
importer. As implemented in the
previous statistical document program,
the BCD program would continue to
track bluefin tuna consignments through
trade to the final importer. The intent of
this program expansion is to further
reduce IUU fishing, obtain better catch
and farming data, and more effectively
implement the Atlantic bluefin tuna
recovery program.
The United States implemented
several statistical document programs in
2005 (69 FR 67268, November 17, 2004).
The same rulemaking served to
consolidate the new and previously
existing statistical document programs
into one place in the regulations (50
CFR part 300 subpart M), and unify
parts of their administrative
implementation. Under the 2005
rulemaking, individuals who imported,
exported, or re-exported any of the
covered species (bluefin tuna,
swordfish, SBT, frozen bigeye tuna)
were required to obtain the HMS ITP.
Associated reporting requirements
included completion and filing of
statistical documents, re-export
certificates, and biweekly reports. Since
implementation of the unified program,
NMFS has identified a number of
adjustments that are necessary to
improve the program’s effectiveness and
enforceability. These adjustments, along
with the initial implementation of the
BCD program and several other
proposed actions in this rule, are
classified into three areas: permitting,
reporting, and regulatory structure and
clarifications.
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Permitting
Several possible adjustments in
permitting requirements under the HMS
ITP program were considered for the
proposed rule. First, the proposed rule
considers whether or not to maintain
the current requirement that the entity
responsible for obtaining the HMS ITP
is the ‘‘consignee’’ as indicated on U.S.
Customs and Border Protection (CBP)
entry documentation. Several
alternative entities were considered for
this responsibility, in order to clearly
and appropriately identify the entity
that would have the most consistent
access to the records necessary for
reporting. Ultimately, the ‘‘consignee’’
was identified as the individual who
has the best access to necessary records;
maintaining this requirement would
also provide continuity with existing
regulations.
Second, the proposed rule would
adjust the regulations to clarify that if a
foreign entity is importing to, or
exporting from, the United States, their
U.S. resident agent or U.S. resident
corporate surety provider would be
required to obtain the HMS ITP.
Further, a resident agent or corporate
surety provider would be required to
have a U.S. tax identification number to
obtain an HMS ITP. These clarifications
are necessary to provide consistency
with CBP regulations, support
regulatory enforcement, and clarify
operational procedures for foreign
companies wishing to trade product
covered by the HMS ITP program in the
United States.
Third, the proposed rule would
synchronize ITP regulations with the
NMFS Southeast Region regulations by
requiring permit holders to submit their
application at least 30 days before the
date upon which the applicant wants
the permit to be in effect. It would also
remove the regulatory language that
requires NMFS to issue an ITP no later
than 30 days after a complete
application is received. The proposal
would provide consistency within
NMFS regulations, and give the
applicant more input over when the
permit is issued.
The fourth permitting issue addressed
in the proposed rule would require that
shark fin importers, exporters, and reexporters (traders) obtain an HMS ITP
for entry for consumption. Export of
shark fins drives much of the Atlantic
shark fishery and has contributed to the
overfishing of several species and
landing of prohibited species in the
Atlantic and Gulf of Mexico. Draft
Amendment 2 to the Consolidated HMS
Fishery Management Plan (FMP) (72 FR
41392, July 27, 2007) states that dealers
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may receive up to $50 per pound for
shark fins (dry weight). Several shark
stock assessments were completed in
2005 and 2006 that determined that
dusky sharks (landing of which is
currently prohibited) and sandbar
sharks are overfished with overfishing
occurring, and that porbeagle sharks are
overfished (71 FR 65086, November 7,
2006). Dusky sharks (before their
landing was prohibited in 2000) and
sandbar sharks have been heavily
commercially exploited because of the
high value of their fins. Draft
Amendment 2 to the Consolidated HMS
FMP proposes management measures to
rebuild these overfished stocks and
prevent overfishing (72 FR 41392, July
27, 2007), and NMFS has previously
implemented regulations to control the
shark fishery by limiting the amount of
shark fins that can be landed relative to
the total weight of sharks landed (67 FR
6194, February 11, 2002). Once shark
fins pass beyond the first-receiver of the
shark products, it is difficult to track
compliance with the shark fishery
regulations or trace shark fins to their
eventual export. Through this proposed
rule, NMFS is proposing to identify the
individuals involved in the shark fin
trade to gain a better understanding of
shark fin commerce, as well as assist
with domestic enforcement of shark
fishery regulations. Although the shark
fin trade appears to primarily drive the
shark fisheries in the Atlantic and Gulf
of Mexico, limiting the permitting
requirement to traders of shark fins from
these areas could make it easier to
circumvent the regulations. Therefore,
NMFS is proposing to require an ITP for
traders in shark fins from all ocean
areas.
Reporting
Three reporting issues are addressed
in the proposed rule. The first proposed
regulatory adjustment would clarify that
reports must be received by NMFS by
the 10th or 25th of each month
(depending upon the reporting period),
rather than postmarked by those dates,
and would provide for the use of FAX
for submitting HMS ITP reports. This
adjustment was proposed to clarify the
HMS ITP regulations regarding use of
faxes, and to establish consistency
within HMS regulations regarding the
use of the date NMFS receives a
document (received-by date) rather than
postmark date, since it has also been
proposed in Draft Amendment 2 to the
Consolidated HMS FMP (72 FR 41392,
July 27, 2007). The use of a received-by
date is preferred because postmark dates
are not provided on a consistent basis.
This adjustment is also proposed in this
rule for biweekly reporting by Atlantic
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18475
Tunas Dealer Permit holders. NMFS
also considered removing the
requirement for copies or originals of
import statistical documents to be
provided within 24 hours of
consignment entry; however, the
proposed rule would maintain the
requirement to better support regulatory
enforcement and provide continuity in
the regulations.
The second issue considered for the
proposed rule includes the initial
implementation of the Atlantic BCD
program under ICCAT Recommendation
07–10. The BCD program would expand
the ICCAT bluefin tuna statistical
document program to incorporate
consignment tracking beginning with
documentation of vessel catch/harvest.
The proposed rule would initially
implement the BCD program for U.S.
Atlantic bluefin tuna commercial
fisheries, and all bluefin tuna imports,
exports and re-exports. The United
States has a sophisticated reporting
program already in place that requires
provision of commercial Atlantic
bluefin tuna landings data to NMFS
within 24 hours of landing, and
identifies each landed fish with a
unique, non-transferable tag assigned to
the permitted dealer who receives the
fish. The operational adjustments for
implementing the BCD program for U.S.
commercial fisheries and trade are
expected to be relatively small and
attainable by the international
implementation date of July 1, 2008,
which reflects the commitment under
the International Convention for the
Conservation of Atlantic Tunas.
Third, the rule would provide HMS
ITP holders that export domestically
landed bluefin tuna with the option of
reducing their reporting burden by
coordinating with the Atlantic Tunas
Dealer Permit (ATDP) holder who first
purchased the bluefin tuna (frequently
these are the same individuals). The
rule proposes to allow the HMS ITP
holder to forgo biweekly reporting of
domestically landed bluefin tuna
exports as long as all information
required for bluefin tuna exports on the
International Trade biweekly is
submitted on the biweekly report from
the ATDP holder. The purpose of this
regulatory adjustment is to clarify
reporting responsibilities and reduce
reporting burden.
Regulatory Structure and Clarifications
The first regulatory change under this
heading in the proposed rule would
adopt the new definition of ‘‘import’’
included in the Magnuson-Stevens Act
as amended by the Magnuson-Stevens
Fishery Conservation and Management
Reauthorization Act of 2006 (Magnuson-
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Stevens Reauthorization Act), Pub. L.
109–479 (2007). This new definition
could be interpreted more broadly than
the current definition included in the
HMS ITP regulations at 50 CFR part 300
subpart M, and could result in an
unintended interpretation of the HMS
ITP regulations to require statistical
documentation for products moving
between the United States and its
insular possessions with separate
customs territories. Therefore, the
proposed rule clarifies the new
definition to ensure that the intent of
the HMS ITP program to exclude
products imported between the U.S. and
insular possessions from this proposed
rule’s permitting and reporting
requirements. The other alternatives
would not adopt the definition included
in the statute, or would adopt the
definition without the additional
clarification.
Second under this category, the
proposed rule addresses verification of
the identity of foreign officials who
validated statistical documents. ICCAT
has established a password-protected
website that identifies officials
authorized to validate statistical
documents. NMFS considered using this
website to ensure that imports under the
HMS ITP program were properly
validated, including requiring importers
to verify the applicable information
included on the website. However, that
alternative would compromise the
privacy of the website by requiring
release of the password to HMS ITP
holders, and would increase the
reporting burden on U.S. importers.
Therefore, for this issue the proposed
rule would not require any regulatory
adjustments at this time, and
multilateral discussions at ICCAT
would be pursued to establish a
consistent international approach for
determining the validity of statistical
document validation, including the
possibility of allowing importer access
to the ICCAT password-protected
website.
Third, the rule proposes that NMFS
codify the new Harmonized Tariff
Schedule (HTS) codes implemented by
the U.S. International Trade
Commission (ITC) in Publication 3898,
published in December 2006 and made
effective by Presidential Proclamation
80–97 (72 FR 453, January 4, 2007) in
February 2007. Since all products
entering or exiting the United States
must be identified by an HTS code,
NMFS uses these codes to clearly
identify the product to which trade
related regulatory text applies. The rule
proposes to update NMFS regulatory
text at 50 CFR 300.184 with the new
HTS codes for swordfish products
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adopted by the ITC. NMFS also
considered adopting a higher
hierarchical level of HTS coding to
minimize the potential for future
regulatory adjustments, but selected the
more consistent and clear method for
product identification for inclusion in
the proposed rule.
Fourth, the proposed rule would
clarify that all individuals who
participate in activities that require an
HMS ITP must abide by the reporting
requirements, regardless of whether or
not the individuals in fact obtain the
HMS ITP, as required.
Authorities
The Atlantic Tunas Convention Act
(ATCA) of 1975 (16 U.S.C. 971 et seq.)
authorizes the promulgation of
regulations as may be necessary and
appropriate to implement ICCAT
recommendations. The Tuna
Conventions Act of 1950 (TCA) (16
U.S.C. 951 et seq.) authorizes
rulemaking to carry out IATTC
recommendations. NMFS manages the
Atlantic swordfish and tuna fisheries in
accordance with the Consolidated HMS
FMP (71 FR 58058, October 2, 2006).
Regulations implementing the
Consolidated HMS FMP at 50 CFR part
635 were promulgated under the
authorities of the Magnuson-Stevens Act
(16 U.S.C. 1801 et seq.) and ATCA.
Regulations implementing international
trade provisions for HMS at 50 CFR part
300 subpart M were promulgated under
the authorities of the Magnuson-Stevens
Act, ATCA, and the TCA.
NMFS manages swordfish and tuna in
the Pacific Ocean under the Western
Pacific Pelagics Fishery Management
Plan that was prepared by the Western
Pacific Fishery Management Council.
Regulations implementing that plan, at
50 CFR parts 300 and 660, were
promulgated under the authorities of the
ATCA, TCA and the Magnuson-Stevens
Act, respectively. An FMP for U.S. West
Coast HMS was developed by the
Pacific Fishery Management Council (69
FR 18444, April 7, 2004). Other
authorities relevant to Pacific
management include the South Pacific
Tuna Act of 1988 (16 U.S.C. 973 et seq.),
the High Seas Fishing Compliance Act
(16 U.S.C. 5501 et seq.), the U.S.-Canada
Albacore Treaty, and the Western and
Central Pacific Fisheries Convention
Implementation Act (Public Law 109–
479).
Customs requirements pertaining to
the import and export of product
harvested by national and international
swordfish and tuna fisheries include
those under 19 U.S.C. 1 et seq. and CBP
regulations, under title 19 of the CFR.
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Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator (AA) has
determined that this proposed rule is
consistent with the Consolidated HMS
FMP, other provisions of the MagnusonStevens Act, the ATCA, the TCA, and
other applicable law, subject to further
consideration after public comment.
The AA has preliminarily determined
that this proposed rule is necessary to
implement the recommendations of
ICCAT and IATTC, and is necessary for
the management of bluefin tuna, bigeye
tuna, swordfish, and sharks.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility
analysis (IRFA) was prepared, as
required by section 603 of the
Regulatory Flexibility Act (RFA). The
IRFA describes the economic impacts
this proposed rule would have, if
adopted, on small entities. A
description of the action, why it is being
considered, and the legal basis for this
action are contained at the beginning of
the preamble and the SUMMARY
section of the preamble. A summary of
the economic analysis follows. A copy
of this analysis is available from NMFS
(see ADDRESSES).
The proposed programs could affect
approximately 406 ATDP holders, 230
HMS ITP holders, and approximately
100 individuals who participate in
international trade of shark fins, all of
which are considered small entities.
According to the RFA, a wholesale fish
business is defined as a small entity if
it employs 100 or fewer. Impacts to
these entities could occur in two areas
- permitting and reporting. NMFS
expects only minor negative economic
impacts from the proposed rule because
the proposed measures only involve
adjusting the permitting and reporting
requirements. A description of the
alternatives, associated requirements,
and estimated costs follows.
The issues addressed by the proposed
rule are subdivided into three
categories: ‘‘permitting,’’ ‘‘reporting’’
and ‘‘regulatory structure and
clarification.’’ Only two of the issues
under the category of ‘‘permitting’’
include alternatives that could have
economic impacts. For the issue of
identification of the entity responsible
for obtaining the HMS ITP in importing
situations, and thus for fulfilling
subsequent reporting requirements, the
‘‘No Action’’ alternative is included in
the proposed rule. This would continue
to require the consignee as indicated in
CBP import documentation to be the
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responsible party. The annual costs
associated with this alternative are the
costs associated with permitting
(including the cost of the permit,
mailing costs and time for filling out the
application — estimated at $26.75 per
applicant) and the cost of reporting
(including filling out and submitting the
report forms — estimated at $102 per
dealer for biweekly reports and $94 per
dealer for trade tracking documentation,
for a total of $196 per dealer).
Alternative Two would require that the
consignee on the bill of lading obtain an
HMS ITP in addition to the consignee
on CBP entry documentation. The
overall negative economic impact for
this alternative would increase based on
the number of consignees identified on
import bills of lading that differ from
consignees on CBP documentation.
NMFS estimates the cost of this
alternative to be twice that of the ‘‘No
Action’’ Alternative included in the
proposed rule, assuming that there is
one additional permit holder for each
current permit holder. Costs per dealer
would be the same as for the ‘‘No
Action’’ Alternative included in the
proposed rule. For Alternative Three,
which would require the importer of
record to obtain the HMS ITP, economic
impacts are estimated to be
approximately the same as the ‘‘No
Action’’ Alternative included in the
proposed rule, using the assumption
that there would be approximately the
same number of importers of record
identified on CBP entry documentation
as consignees for consignments of
products addressed under HMS ITP
regulations.
The second permitting issue with
alternatives that could have economic
impacts is shark fin trader permitting.
The proposed rule would require that
shark fin traders obtain an HMS ITP.
NMFS anticipates that approximately
100 entities are expected to require the
HMS ITP for shark fin trading. Since
there would be no reporting
requirements associated with this
permit, the only costs are for obtaining
the permit ($26.75 per dealer). The other
alternative considered for this issue was
the ‘‘No Action’’ Alternative. The
permitting ($26.75) and reporting ($196)
related costs of this alternative would
apply for each current ITP holder.
The second category of issues
addressed in the proposed rule is under
the heading of ‘‘Reporting.’’ None of the
alternatives for these issues would
change the number of entities required
to obtain an HMS ITP, so there would
be no permitting related costs for any of
these issues.
The first issue under the category of
‘‘Reporting’’ that has reporting-
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associated economic impacts includes
alternatives that would adjust reporting
requirements for when and how report
submission would be required.
Alternative One is the ‘‘No Action’’
alternative, and would not change any
reporting regulations or associated
annual costs, which are estimated at
$196 per dealer. Alternative Two would
rescind the requirement for copies of
import statistical documents to be faxed
to NMFS within 24 hours of receipt by
an importer. This alternative would
provide a slightly positive economic
benefit in the form of a slightly reduced
time burden for import reporting.
Dealers would still be required to fill
out and mail import statistical
documents twice per month. The
Preferred (third) Alternative would
adjust HMS ITP and ATDP reporting
regulations to use a ‘‘received-by’’ date
rather than a postmark date for
determining dealer compliance with
required report submittal schedules.
The ITP regulations would also be
clarified to indicate when use of a fax
machine would be an acceptable
method for submitting a report. This
alternative is expected to have no
economic consequences, since it would
not impact reporting frequency.
The second reporting-related issue
considers alternatives to initially
implement ICCAT Recommendation 07–
10 and the new BCD program. The
proposed rule (Preferred Alternative)
would implement preliminarily the
program for commercial U.S. Atlantic
bluefin tuna fisheries and bluefin tuna
imports, exports and re-exports as part
of a program that will apply to all
ICCAT member nations. The BCD
program would require the use of new
forms with fields similar to the ICCAT
bluefin tuna statistical document that
was in place before the BCD program
was implemented. The change in
reporting burden would only affect
HMS ITP holders that re-export
untagged bluefin tuna. When reexporting an untagged bluefin tuna, the
HMS ITP holder would be required to
send a copy of the re-export certificate
to the ICCAT Secretariat and importing
nation within five working days via
addresses and information provided by
NMFS. The costs per transaction could
range from zero for electronic
transmission of the documents, to
approximately $100 for mailing, for an
average of $50 per transaction. In 2006,
17 consignments would have been
subject to this additional cost. In
addition, a time burden of .25 hours per
consignment would have resulted in an
additional 4.25 aggregate hours for a
total annual cost of $64, or $3.75 per
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18477
transaction. There would be no
additional costs for the No Action
alternative, with current annual average
costs for statistical document program
reporting at $196 per dealer.
The last issue under this category
addresses reporting of Atlantic bluefin
tuna exports. The Preferred Alternative
would provide a positive economic
impact, reducing the current reporting
burden for individuals who hold both
an ATDP and HMS ITP by clarifying
that bluefin tuna exports would only
need to be reported on one biweekly
report. This action could positively
affect the 64 individuals who
concurrently hold an ATDP and HMS
ITP and could save an estimated $51 per
dealer per year. In addition, this
alternative could reduce the reporting
burden for HMS ITP holders who
purchase bluefin tuna from an ATDP
holder, with an estimated savings
similar to those for individuals holding
both permits. Alternative One, the ‘‘No
Action’’ alternative, would continue to
require reporting for both permits, and
is estimated to cost each impacted
dealer approximately $102 per year.
Alternative Two would require that
operational procedures were adjusted to
mirror the current regulations. The
economic impact of Alternative Two
would be the same as that estimated for
the ‘‘No Action’’ alternative.
The last category of issues addressed
in the proposed rule is ‘‘Regulatory
Structure and Clarification,’’ and
includes two issues that could have
economic consequences. The first issue
is the implementation of the new
definition of ‘‘import’’ included in the
Magnuson-Stevens Act as amended by
the Magnuson-Stevens Reauthorization
Act. Both the ‘‘No Action’’ Alternative
and the Preferred Alternative would
have the same economic consequences,
which would be the permitting and
reporting costs associated with the
current HMS ITP program, averaged at
$222.75 per dealer per year. The second
alternative would adopt the MagnusonStevens Act definition of ‘‘import,’’
without distinguishing that
consignments between the United States
and its insular possessions with
separate customs territories would be
considered domestic interactions, as
intended by RFMO consignment
programs. If such consignments did
require permitting and reporting under
the HMS ITP program, negative
economic consequences would occur
which are currently unknown but, based
in part on the amount of product and
number of participating dealers, are
expected to be minor in nature. For
example, an average of four
consignments from Guam to ports under
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U.S. Customs authority have occurred
each year from 2002 through 2007. The
estimated annual impact per dealer
(approximately four dealers) would be
$223.
The last issue considered in this
proposed rule that could have economic
impacts addresses the verification of
foreign validating officials for imports.
The proposed rule includes no
regulatory changes for this issue. Under
the Preferred Alternative, NMFS would
pursue further international
coordination on this issue, and there
would be no economic related
consequences. Likewise, the ‘‘No
Action’’ Alternative would not have
economic consequences since it does
not require any current or additional
action. Alternative Two could have
considerable negative economic
consequences since it would require
that importers check the passwordprotected ICCAT website to determine
whether validating officials are
authorized government representatives.
This alternative would require computer
hardware and software with Internet
access.
Fishermen, fish dealer permit holders,
and fishery managers involved in these
fisheries must comply with a number of
international agreements, domestic
laws, regulations and FMPs. These
include, but are not limited to, the
International Convention for the
Conservation of Atlantic Tunas, the
Magnuson-Stevens Act, the Atlantic
Tunas Convention Act, the High Seas
Fishing Compliance Act, the Marine
Mammal Protection Act, the Endangered
Species Act, the National
Environmental Policy Act, the
Paperwork Reduction Act, and the
Coastal Zone Management Act. NMFS
strives to ensure consistency among the
regulations with Fishery Management
Councils and other relevant agencies.
NMFS does not believe that the
proposed alternatives would conflict
with any relevant regulations, federal or
other.
One of the requirements of an IRFA is
to describe any alternatives to the
proposed rule which accomplish the
stated objectives and which minimize
any significant economic impacts.
Economic impacts are discussed above
and below. Additionally, the RFA
Section 603(c)(1)-(4)) lists four
categories of options which should be
discussed. These categories are: (1)
establishment of differing compliance or
reporting requirements or timetables
that take into account the resources
available to small entities; (2)
clarification, consolidation, or
simplification of compliance and
reporting requirements under the rule
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for such small entities; (3) use of
performance rather than design
standards; and (4) exemptions from
coverage of the rule for small entities.
Under the first and fourth categories
listed above, NMFS considers all dealers
to be ‘‘small entities.’’ Thus, in order to
meet the objectives of this proposed rule
and address management concerns,
NMFS cannot exempt small entities or
change the reporting requirements for
small entities.
Category Two includes options for
clarifying, simplifying, and
consolidating compliance and reporting
requirements for small entities. Many of
the measures proposed in this rule
satisfy the goal of Category Two by
simplifying or clarifying the existing
dealer permitting or reporting structure
in several instances, and by seeking
further international clarity for several
issues that cannot be implemented
under the current program. Specifically,
the proposed rule would clarify who is
the entity responsible for obtaining the
HMS ITP in cases involving foreign
importers and would synchronize
requirements between HMS ITPs and
NMFS regional permits. Although
alternatives are considered for
modifying the entity responsible for
obtaining a permit based on CBP entry
documentation, the proposed rule does
not modify the current regulations,
which is in effect the simplest of the
alternatives considered.
The proposed rule would reduce and
simplify reporting requirements so that
reporting may be combined in certain
instances when an individual holds
both the HMS ITP and the ATDP, which
have similar reporting requirements. A
dealer holding one of these permits can
also coordinate with a dealer who
handles the same individual bluefin
tuna but holds the other corresponding
permit. The proposed rule would also
clarify the use of faxes for report
submission and would further
consistency with other HMS regulations
by establishing the ‘‘received by’’ date
as the date used for compliance
determinations. There would be some
increase in reporting burden and cost
because of the requirement for
international communication of
consignment documents directly to the
ICCAT secretariat and importing
nation’s government agency, however
costs should be minimized since
affected businesses are encouraged to
submit the required documentation
electronically.
The proposed rule also directly
addresses issues of regulatory structure
and clarification. The proposed rule
would update certain HTS codes which
would serve in part to clarify reporting.
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The proposed rule would also adopt the
Magnuson-Stevens Act definition of
import, with a clarifying caveat that
consignments of affected product
between insular possessions and the
United States are not considered
imports. Finally, the proposed rule
would clarify that the regulatory
requirements in 50 CFR part 300 subpart
M would apply to all entities engaging
in covered activities, rather than just
those who obtain the required permit.
Alternatives for verification of
validating authorities are also
considered, but because of technical
difficulties, no action requiring
verification of validation is included in
the proposed rule.
The third category identified in the
RFA, ‘‘use of performance rather than
design standards,’’ is not applicable,
since ICCAT has very specific
requirements for implementation of the
trade tracking programs addressed in
this action. Although the shark fin trade
is not currently covered by an ICCAT
recommendation, in order to address
category two and maintain a simple
structure for HMS trade permits, shark
fin traders would be required to obtain
an HMS ITP under the proposed rule.
This proposed rule contains revisions
to collection-of-information
requirements previously approved by
OMB under the HMS Permitting Family
of Forms (0648–0327) and the HMS
Dealer Reporting Family of Forms
(0648–0040). The revisions are subject
to review and approval by OMB under
the Paperwork Reduction Act, and have
been submitted to OMB for approval. In
the HMS Permitting Family of Forms,
the instrument being revised is the
application for the HMS ITP for Atlantic
coast dealers that import, export, or reexport bluefin tuna, southern bluefin
tuna, frozen bigeye tuna, and swordfish,
the public reporting burden for which is
estimated at 0.08 hours (5 minutes) per
response. In the HMS Dealer Reporting
Family of Forms, the instruments being
revised are the bluefin tuna statistical
document and re-export certificate, the
public reporting burden for which is
estimated at .08 hours (5 minutes) per
form. The statistical document will be
replaced by a catch document with an
equivalent reporting burden. The
reporting burden for re-exports of
untagged bluefin tuna is estimated to be
an additional .25 hours (15 minutes) per
form. These estimates include the time
for reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Public comment is sought regarding:
whether each of these proposed
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information collections is necessary for
the proper performance of the functions
of the agency, including whether the
information shall have practical utility;
the accuracy of the burden estimate;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information,
including through the use of automated
collection techniques or other forms of
information technology. Send comments
on these or any other aspects of the
collection of information to NMFS at the
ADDRESSES above, and e-mail to
DavidlRostker@omb.eop.gov, or fax to
(202) 395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
Public Hearings
Public hearings will be held as
follows:
1. April 23, 2008, 10 a.m. to 12 p.m.,
NMFS Southwest Regional Office, Santa
Rosa Field Office, 777 Sonoma Avenue,
Santa Rosa, CA 95404.
2. April 24, 2008, 10 a.m. to 12 p.m.,
NMFS Southwest Regional Office, 501
West Ocean Blvd., Suite 4200, Long
Beach, CA 90802.
3. April 25, 2008, 2 p.m. to 4 p.m.,
NMFS Northeast Regional Office, One
Blackburn Drive, Gloucester, MA 01930.
4. April 28, 2008, 2 p.m. to 4 p.m.,
Embassy Suites Hotel, 3974 Northwest
South River Drive, Miami, FL 33142.
5. April 29, 2008, 2 p.m. to 4 p.m.,
NMFS, Southeast Fisheries Science
Center, 3500 Delwood Beach Road,
Panama City, FL 32408.
The hearing locations are physically
accessible to people with disabilities.
Requests for sign language
interpretation or other auxiliary aids
should be directed to Dianne Stephan at
(978) 281–9260, at least 7 business days
prior to the meeting.
List of Subjects
ebenthall on PRODPC61 with PROPOSALS
50 CFR Part 300
Administrative practice and
procedure, Exports, Fish, Fisheries,
Fishing, Imports, Reporting and
recordkeeping requirements, Treaties.
50 CFR Part 635
Fisheries, Fishing, Fishing vessels,
Imports, Reporting and recordkeeping
requirements, Treaties.
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Dated: March 31, 2008.
James W. Balsiger
Acting Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For reasons set out in the preamble,
50 CFR part 300 subpart M and part 635
are proposed to be amended as follows:
CHAPTER III
PART 300—INTERNATIONAL
FISHERIES REGULATIONS
Subpart M—International Trade
Documentation and Tracking
Programs for Highly Migratory Species
1. The authority citation for subpart M
of part 300 continues to read as follows:
Authority: 16 U.S.C. 951–961 and 971 et
seq.; 16 U.S.C. 1801 et seq.
2. In § 300.181, the definitions for
‘‘Fish or fish products regulated under
this subpart’’, ‘‘Import’’, and ‘‘Tag’’ are
revised, and the definitions of ‘‘BCD’’,
‘‘BCD tag’’, ‘‘Consignment document’’,
‘‘Consignment documentation
programs’’, and ‘‘Shark fin’’ are added
in alphabetical order to read as follows:
§ 300.181
Definitions.
*
*
*
*
*
BCD 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 (BCD).
*
*
*
*
*
Bluefin Tuna Catch Document (BCD)
means an ICCAT bluefin tuna catch
document.
*
*
*
*
*
Consignment document means either
an ICCAT Atlantic BCD or a catch
document issued by a nation to comply
with the ICCAT BCD program; or an
ICCAT, IATTC, IOTC, or CCSBT
statistical document or a statistical
document issued by a nation to comply
with such statistical document
programs.
Consignment documentation
programs means the ICCAT, IOTC,
IATTC or CCSBT catch document or
statistical document programs.
*
*
*
*
*
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),
and shark fins.
*
*
*
*
*
Import means to land on, bring into,
or introduce into, or attempt to land on,
bring into, or introduce into, any place
subject to the jurisdiction of the United
States, whether or not such landing,
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18479
bringing or introduction constitutes an
importation within the meaning of the
customs laws of the United States.
Import, for purposes of this subpart,
does not include any activity described
in the previous sentence with respect to
fish caught in the exclusive economic
zone or by a vessel of the United States.
For purposes of this subpart, goods
brought into the United States from a
U.S. insular possession, or vice–versa,
are not considered imports.
*
*
*
*
*
Shark fin, for purposes of this
subpart, means any fin removed from a
shark, which is an animal of the
Linnaean taxonomic superorder
Selachimorpha, subclass
Elasmobranchii, class Chondrichthyes.
*
*
*
*
*
Statistical document means an
ICCAT, IATTC, IOTC, or CCSBT
statistical document, or a statistical
document issued by a nation to comply
with such statistical document
programs.
Statistical document program means
either the ICCAT, IOTC, IATTC or
CCSBT statistical document program.
*
*
*
*
*
Tag means either a dealer tag or a
BCD tag.
*
*
*
*
*
3. In § 300.182, paragraphs (a), (b) and
(c) are revised to read as follows:
§ 300.182
HMS international trade permit.
(a) General. An importer, entering for
consumption fish or fish products
regulated under this subpart from any
ocean area into the United States, or an
exporter exporting or re–exporting such
product, 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. A resident agent or resident
corporate surety provider, as specified
under 19 CFR 141.18, must possess a
valid trade permit when acting on
behalf of a nonresident corporation
when entering for consumption,
exporting, or re–exporting fish or fish
products regulated under this subpart
from any ocean area.
(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 on which the
applicant wants to have the permit
made effective. Application forms and
instructions for their completion are
available from NMFS.
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(c) Issuance. 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.
*
*
*
*
*
4. Section 300.183 is revised to read
as follows:
ebenthall on PRODPC61 with PROPOSALS
§ 300.183 Permit holder reporting and
recordkeeping requirements.
(a) Biweekly reports. Any person
required to obtain a trade permit under
§ 300.182 must submit to NMFS, on
forms supplied by NMFS, a biweekly
report of entries for consumption,
exports and re-exports of fish and fish
products regulated under this subpart
except shark fins.
(1) The report required to be
submitted under this paragraph (a) must
be received within 10 days after the end
of each biweekly reporting period in
which fish or fish products regulated
under this subpart except shark fins
were entered for consumption,
exported, or re-exported. The bi-weekly
reporting periods are 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 consignment of
fish or fish products regulated under
this subpart, except shark fins, that is
entered for consumption, exported, or
re-exported.
(3) A biweekly report is not required
for export consignments of bluefin tuna
when the information required on the
biweekly report has been previously
supplied on a biweekly report submitted
under § 635.5(b)(2)(i)(B) of this title,
provided the person required to obtain
a trade permit under § 300.182 retains,
at his/her principal place of business for
a period of 2 years from the date on
which each report was submitted to
NMFS, a copy of the biweekly report
which includes the required
information and is submitted under
§ 635.5(b)(2)(i)(B) of this title.
(b) Recordkeeping. Any person
required to obtain a trade permit under
§ 300.182 must retain, at his/her
principal place of business, a copy of
each biweekly report and all supporting
records for a period of 2 years from the
date on which each report was
submitted to NMFS.
(c) Other requirements and
recordkeeping requirements. Any
person required to obtain a trade permit
under § 300.182 is also subject to the
reporting and recordkeeping
requirements identified in § 300.185.
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(d) Inspection. Any person authorized
to carry out the enforcement activities
under the regulations in this subpart
(authorized person) 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, catch documents, re-export
certificates, relevant sales receipts,
import and export documentation, or
other records or reports made, retained,
or submitted pursuant to this subpart. 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.
(e) Applicability of reporting and
recordkeeping requirements. Reporting
and recordkeeping requirements in this
subpart apply to any person engaging in
activities that require a trade permit, as
set forth in § 300.182(a), regardless of
whether a trade permit has been issued
to that person.
5. In § 300.184, the section heading,
introductory text, and paragraphs (a)(1)
introductory text, (b)(1) introductory
text, (c)(1) introductory text, and (d)(1)
are revised and paragraph (e) is added
to read as follows:
§ 300.184 Species subject to permitting,
documentation, reporting, and
recordkeeping requirements.
The following fish or fish products are
subject to the requirements of this
subpart, regardless of ocean area of
catch.
(a) * * *
(1) The requirements of this subpart
apply to bluefin tuna products
including those identified by the
following subheading numbers from the
Harmonized Tariff Schedule of the
United States (HTS):
*
*
*
*
*
(b) * * *
(1) The requirements of this subpart
apply to southern bluefin tuna products
including those identified by the
following subheading numbers from the
HTS:
*
*
*
*
*
(c) * * *
(1) The requirements of this subpart
apply to frozen bigeye tuna products
including those identified by the
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following subheading numbers from the
HTS:
*
*
*
*
*
(d) * * *
(1) The requirements of this subpart
apply to swordfish products including
those identified by the following
subheading numbers from the HTS:
(i) Fresh or chilled swordfish, steaks
(No. 0302.67.00.10).
(ii) Fresh or chilled swordfish (No.
0302.67.00.90), excluding fish fillets,
steaks, and other fish meat of HTS
heading 0304.
(iii) Frozen swordfish, steaks (No.
0303.61.00.10).
(iv) Frozen swordfish (No.
0303.61.00.90), excluding fillets, steaks
and other fish meat of HTS heading
0304.
(v) Fresh, or chilled swordfish, fillets
and other fish meat (No. 0304.11.00.00).
(vi) Frozen swordfish, fillets (No.
0304.21.00.00).
(vii) Swordfish in bulk or in
immediate containers weighing with
their contents over 6.8 kg each (No.
0304.91.10.00).
(viii) Swordfish, other (No.
0304.91.90.00).
*
*
*
*
*
(e) Shark fin. The permitting
requirements of this subpart apply to
shark fin products including those
identified by the following subheading
number from HTS: No. 0305.59.20.00.
6. In § 300.185:
A. The section heading and
paragraphs (a)(1), (a)(2(i) through (iv),
(a)(3), (b)(1), (b)(2), (b)(3), (c)(1), (c)(2)(i),
(c)(2)(ii), (c)(3) and (d) are revised.
B. Paragraph (e) is redesignated as
paragraph (f).
C. New paragraphs (a)(2)(v) through
(a)(2)(ix) and (e) are added.
The revisions and additions read as
follows:
§ 300.185 Documentation, reporting and
recordkeeping requirements for
consignment documents and re-export
certificates.
(a) * * *
(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 shark fins, or 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
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(a)(3) of this section do not apply to fish
products destined from one foreign
country to another which transit the
United States or a U.S. insular
possession and are designated as an
entry type other than entry for
consumption as defined in § 300.181.
(2) * * *
(i) All fish or fish products except for
shark fins, 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 consignment
document.
(ii) Imports of bluefin tuna which
were re-exported from another nation,
must also be accompanied by an
original, completed, approved,
validated, species-specific re-export
certificate.
(iii) Imports of fish or fish products
regulated under this subpart, other than
shark fins, that were previously reexported and were subdivided or
consolidated with another consignment
before re-export, must also be
accompanied by an original, completed,
approved, validated, species-specific reexport certificate.
(iv) All other imports of fish or fish
products regulated under this subpart,
except shark fins, that have been
previously re-exported from another
nation, should have the intermediate
importers certification of the original
statistical document completed.
(v) Consignment documents must be
validated as specified in § 300.187 by a
responsible government official of the
flag country whose vessel caught the
fish (regardless of where the fish are
first landed). Re-export certificates must
be validated by a responsible
government official of the re-exporting
country.
(vi) A permit holder may not accept
an import without the completed
consignment document or re-export
certificate as described in paragraphs
(a)(2)(i) through (a)(2)(v) of this section.
(vii) For fish or fish products except
shark fins regulated under this subpart
that are entered for consumption, the
permit holder must provide on the
original consignment document that
accompanied the consignment the
correct information and importer’s
certification specified in § 300.186, and
must note on the top of the consignment
document the entry number assigned at
the time of filing an entry summary
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14:11 Apr 03, 2008
Jkt 214001
(e.g., CBP Form 7501 or electronic
equivalent) with customs authorities.
(viii) 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 BCD tag on all such bluefin
tuna available for sale, must be
accompanied by the appropriate BCD
tag issued by that country, and said BCD
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 BCD 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 BCD tag number and the issuing
country must be written legibly and
indelibly on the outside of the package.
(ix) 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.
(3) Reporting requirements. For fish or
fish products regulated under this
subpart, except shark fins, that are
entered for consumption and whose
final destination is within the United
States, which includes U.S. insular
possessions, a permit holder must
submit to NMFS the original
consignment document that
accompanied the fish product as
completed under paragraph (a)(2) of this
section, to be received by NMFS along
with the biweekly report as required
under § 300.183(a). A copy of the
original completed consignment
document must be submitted by said
permit holder, to be received by 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) * * *
(1) Applicability of requirements. The
documentation and reporting
requirements of this paragraph (b) apply
to exports of fish or fish products
regulated under this subpart, except
shark fins, 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 (b) also
applies to products of American
fisheries landed overseas.
(2) Documentation requirements. A
permit holder must complete an
original, approved, numbered, speciesspecific consignment document issued
PO 00000
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Sfmt 4702
18481
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 consignment.
A permit holder must provide on the
consignment document the correct
information and exporter certification.
The consignment document must be
validated, as specified in § 300.187, by
NMFS, or another official authorized by
NMFS. A list of such officials may be
obtained by contacting NMFS. A permit
holder requesting U.S. validation for
exports should notify NMFS as soon as
possible after arrival of the vessel to
avoid delays in inspection and
validation of the export consignment.
(3) Reporting requirements. A permit
holder must ensure that the original,
approved, consignment document as
completed under paragraph (b)(2) of this
section accompanies the export of such
products to their export destination. A
copy of the consignment document
must be received by 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) * * *
(1) Applicability of requirements. The
documentation and reporting
requirements of this paragraph (c) apply
to exports of fish or fish products
regulated under this subpart, except
shark fins, 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 (c) do not apply to fish
or fish products destined from one
foreign country to another which transit
the United States or a U.S. insular
possession and which are designated as
an entry type other than entry for
consumption as defined in § 300.181.
(2) * * *
(i) If a permit holder re-exports a
consignment of bluefin tuna, or
subdivides or consolidates a
consignment of fish or fish products
regulated under this subpart, other than
shark fins, that was previously entered
for consumption as described in
paragraph (c)(1) of this section, the
permit holder must complete an
original, approved, individually
numbered, species-specific re-export
certificate issued to that permit holder
by NMFS for each such re-export
consignment. Such an individually
numbered document is not transferable
and may be used only once by the
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permit holder to which it was issued to
report on a specific re-export
consignment. A permit holder must
provide on the re-export certificate the
correct information and re-exporter
certification. The permit holder must
also attach the original consignment
document that accompanied the import
consignment or a copy of that
document, and must note on the top of
both the consignment documents and
the re-export certificates the entry
number assigned by CBP authorities at
the time of filing the entry summary.
(ii) If a consignment of fish or fish
products regulated under this subpart,
except bluefin tuna or shark fins, that
was previously entered for consumption
as described in paragraph (c)(1) of this
section is not subdivided into subconsignments or consolidated, for each
re-export consignment, 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.
*
*
*
*
*
(3) Reporting requirements. For each
re-export, a permit holder must submit
the original of the completed re-export
certificate (if applicable) and the
original or a copy of the original
consignment document completed as
specified under paragraph (c)(2) of this
section, to accompany the consignment
of such products to their re-export
destination. A copy of the completed
consignment document and re-export
certificate (if applicable) must be
submitted to NMFS, at an address
designated by NMFS, and received by
NMFS within 24 hours of the time the
consignment was re-exported from the
United States. Within five days of reexport of untagged Atlantic bluefin
tuna, the permit holder must email, fax,
or mail a copy of the completed
consignment document and re-export
certificate to the ICCAT Secretariat and
the importing nation, at addresses
designated by NMFS.
(d) Document completion. To be
deemed complete, a consignment
document or re-export certificate must
be filled out according to the
corresponding instructions for each
document with all requested
information provided.
(e) Recordkeeping. A permit holder
must retain at his or her principal place
of business, a copy of each consignment
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
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14:11 Apr 03, 2008
Jkt 214001
date on which it was submitted to
NMFS.
*
*
*
*
*
7. In § 300.186 the section heading
and paragraphs (a) and (b) are revised
and paragraphs (c) through (h) are
removed to read as follows:
§ 300.186 Completed and approved
documents.
(a) NMFS-approved consignment
documents and re-export certificates. A
NMFS-approved consignment 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.
(b) Nationally approved forms from
other countries. 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 consignment document or reexport certificate for use in countries
without a nationally approved form to
accompany consignments to the United
States may be obtained from the
following websites, as appropriate:
www.iccat.org, www.iattc.org,
www.ccsbt.org, or www.iotc.org.
*
*
*
*
*
8. In § 300.187, paragraphs (a), (b),
and (d) through (f) are revised to read as
follows:
§ 300.187
Validation requirements.
(a) Imports. The approved
consignment 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
consignment 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.
*
*
*
*
*
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
(d) Validation waiver. Any waiver of
government validation will be
consistent with applicable RFMO
recommendations concerning validation
of consignment documents and reexport certificates. If authorized, such
waiver of government validation may
include exemptions from government
validation for Pacific bluefin tuna with
individual BCD tags affixed pursuant to
paragraph (f) of this section or for
Atlantic bluefin tuna with tags affixed
pursuant to § 635.5(b) of this title.
Waivers will be specified on
consignment 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
consignment documents or re-export
certificates accompanying exports or reexports from the United States, which
includes U.S. commonwealths,
territories, and possessions, must apply
in writing, to NMFS, at an address
designated by NMFS for such
authorization. The application must
indicate the procedures to be used for
verification of information to be
validated; list the names, addresses, and
telephone/fax numbers of individuals to
perform validation; procedures to be
used to notify NMFS of validations; and
an example of the stamp or seal to be
applied to the consignment document or
re-export certificate. NMFS, upon
finding the applicant capable of
verifying the information required on
the consignment document or re-export
certificate, will issue, within 30 days, a
letter specifying the duration of
effectiveness and conditions of
authority to validate consignment
documents or re-export certificates
accompanying exports or re-exports
from the United States. The effective
date of such authorization will be
delayed as necessary for NMFS to notify
the appropriate RFMO of other officials
authorized to validate consignment
document or re-export certificates. Nongovernment organizations given
authorization to validate consignment
documents or re-export certificates must
renew such authorization on a yearly
basis.
(f) BCD tags–(1) Issuance. NMFS will
issue numbered BCD tags for use on
Pacific bluefin tuna upon request to
each permit holder.
(2) Transfer. BCD tags issued under
this section are not transferable and are
usable only by the permit holder to
whom they are issued.
(3) Affixing BCD tags. At the
discretion of permit holders, a tag
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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 BCD
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 consignment of
bluefin tuna or bluefin tuna parts for
commercial use or export.
(5) Labeling. The tag number of a BCD
tag affixed to each Pacific bluefin tuna
under this section must be recorded on
NMFS reports required by § 300.183, on
any documents accompanying the
consignment of Pacific bluefin tuna for
domestic commercial use or export as
indicated in § 300.185, and on any
additional documents that accompany
the consignment (e.g., bill of lading,
customs manifest, etc.) of the tuna for
commercial use or for export.
(6) Reuse. BCD tags issued under this
section are separately numbered and
may be used only once, one 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 BCD
tag and associated number may not be
reused.
9. Section 300.188 is revised to read
as follows:
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§ 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 consignment
document requirement, NMFS may
undertake a rulemaking to designate,
after consultation with the CBP, those
ports at which fish or fish products
regulated under this subpart from any
ocean area may be imported into the
United States.
10. In § 300.189, paragraphs (h)
through (j), and (m) are revised and
paragraph (n) is added to read as
follows:
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14:11 Apr 03, 2008
Jkt 214001
§ 300.189
Prohibitions.
*
*
*
*
*
(h) Validate consignment documents
or re-export certificates without
authorization as specified in § 300.187.
(i) Validate consignment documents
or re-export certificates as provided for
in § 300.187 with false information.
(j) Remove any NMFS-issued
numbered tag affixed to any Pacific
bluefin tuna or any tag affixed to a
bluefin tuna imported from a country
with a BCD tag program before removal
is allowed under § 300.187; fail to write
the tag number on the shipping package
or container as specified in § 300.187; or
reuse any NMFS-issued numbered tag
affixed to any Pacific bluefin tuna, or
any tag affixed to a bluefin tuna
imported from a country with a BCD tag
program, or any tag number previously
written on a shipping package or
container as prescribed by § 300.187.
(m) Fail to provide a validated
consignment document for imports at
time of entry into the Customs territory
of the United States of fish or fish
products regulated under this subpart
except shark fins, regardless of whether
the importer, exporter, or re-exporter
holds a valid trade permit issued
pursuant to § 300.182 or whether the
fish products are imported as an entry
for consumption.
(n) Import or accept an imported
consignment of fish or fish products
regulated under this subpart, except
shark fins, without an original,
completed, approved, validated,
species-specific consignment document
and re-export certificate (if applicable)
with the required information and
exporter’s certification completed.
CHAPTER VI
PART 635—ATLANTIC HIGHLY
MIGRATORY SPECIES
11. 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.
§ 635.2
[Amended]
12. In § 635.2, the definition of
‘‘Import’’ is removed.
13. In § 635.5, paragraph (b)(2)(i)(B) is
revised to read as follows:
§ 635.5
Recordkeeping and reporting.
*
*
*
*
*
(b) * * *
(2) * * *
(i) * * *
(B) Bi-weekly reports. Each dealer
with a valid Atlantic tunas permit under
§ 635.4 must submit a complete biweekly report on forms available from
NMFS for BFT received from U.S.
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Fmt 4702
Sfmt 4702
18483
vessels. For BFT received from U.S.
vessels on the 1st through the 15th of
each month, the dealer must submit the
bi-weekly report form to NMFS, to be
received by NMFS, not later than the
25th of that month. Reports of BFT
received on the 16th through the last day
of each month must be received by
NMFS not later than the 10th of the
following month.
*
*
*
*
*
[FR Doc. E8–7068 Filed 4–3–08; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 071219865–7563–01]
RIN 0648–AP60
Fisheries of the Northeastern United
States; Atlantic Mackerel, Squid, and
Butterfish Fisheries; Amendment 9
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: NMFS proposes regulations to
implement measures in Amendment 9
to the Atlantic Mackerel, Squid, and
Butterfish (MSB) Fishery Management
Plan (FMP). Amendment 9 was
developed by the Mid-Atlantic Fishery
Management Council (Council) to
remedy deficiencies in the FMP and to
address other issues that have arisen
since Amendment 8 to the FMP became
effective in 1999. Amendment 9 would
establish multi-year specifications for
all four species managed under the FMP
(mackerel, butterfish, Illex squid (Illex),
and Loligo squid (Loligo)) for up to 3
years; extend the moratorium on entry
into the Illex fishery, without a sunset
provision; adopt biological reference
points recommended by the Stock
Assessment Review Committee (SARC)
for Loligo; designate essential fish
habitat (EFH) for Loligo eggs based on
best available scientific information;
and prohibit bottom trawling by MSBpermitted vessels in Lydonia and
Oceanographer Canyons.
DATES: Public comments must be
received no later than 5 p.m., eastern
standard time, on May 19, 2008.
ADDRESSES: A final supplemental
environmental impact statement (FSEIS)
was prepared for Amendment 9 that
describes the proposed action and other
E:\FR\FM\04APP1.SGM
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Agencies
[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Proposed Rules]
[Pages 18473-18483]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7068]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300 and 635
[Docket No. 080221247-8166-01]
RIN 0648-AU88
International Fisheries; Atlantic Highly Migratory Species
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments; notice of public hearings.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes to modify permitting and reporting requirements
for the Highly Migratory Species (HMS) International Trade Permit (ITP)
to improve program efficacy and enforceability, and implement the
International Commission for the Conservation of Atlantic Tunas (ICCAT)
bluefin tuna catch documentation (BCD) program. The modified
regulations would also require that shark fin importers, exporters, and
re-exporters obtain the HMS ITP to assist NMFS in monitoring trade of
shark fins, and would implement the new definition of ``import''
contained in the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act).
DATES: Written comments on the proposed rule and supporting documents
must be received on or before May 5, 2008. Comments sent to the Office
of Management and Budget (OMB) on the information collection
requirements of the proposed rule must also be received on or before
May 5, 2008.
The public hearings will be held in April (see the SUPPLEMENTARY
INFORMATION section for further details).
ADDRESSES: You may submit comments, identified by ``A0648-AU88'', by
any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal: https://
www.regulations.gov
[[Page 18474]]
Fax: 978-281-9340, Attn: Dianne Stephan
Mail: Dianne Stephan, Highly Migratory Species Management
Division, Office of Sustainable Fisheries (F/SF1), NMFS, One Blackburn
Dr., Gloucester, MA 01930
Copies of the supporting documents including the Initial Regulatory
Flexibility Analysis and Regulatory Impact Review are available by
sending your request to Dianne Stephan at the mailing address specified
above. This document is also available via the internet at: https://
www.nmfs.noaa.gov/sfa/hms/breaking_news.htm.
Instructions: All comments received are a part of the public record
and will generally be posted to Portal https://www.regulations.gov
without change. All Personal Identifying Information (for example,
name, address, etc.) voluntarily submitted by the commenter may be
publicly accessible. Do not submit confidential business information or
otherwise sensitive or protected information. NMFS will accept
anonymous comments. Attachments to electronic comments will be accepted
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS at the above address, or may be
submitted to the Office of Regulatory Affairs, Office of Management and
Budget, by email to David_Rostker@omb.eop.gov or by fax to (202) 395-
7285.
See the SUPPLEMENTARY INFORMATION section for hearing locations.
FOR FURTHER INFORMATION CONTACT: Dianne Stephan, 978-281-9260.
SUPPLEMENTARY INFORMATION:
Background
The United States, which includes the Commonwealth of Puerto Rico,
American Samoa, the U.S. Virgin Islands, Guam, and all other U.S.
commonwealths, territories, or possessions, is a member of the
International Commission for the Conservation of Atlantic Tunas (ICCAT)
and the Inter-American Tropical Tuna Commission (IATTC). The United
States has implemented statistical document programs under the HMS ITP
program regulations per recommendations of regional fishery management
organizations (RFMOs), and U.S. authorizing legislation as outlined
below. This rule replaces the ICCAT bluefin tuna statistical document
program with the initial implementation of the ICCAT BCD program
recommended at the 2007 ICCAT annual meeting. Other objectives of the
rule are to adjust the HMS ITP regulatory program, as informed by NMFS
and industry experiences since the program was implemented, and to
adopt the new definition of import contained in the Magnuson-Stevens
Act. Lastly, the rule proposes to require permitting of shark fin
traders under the HMS international trade regulations to help NMFS
monitor trade of shark fins.
Consignment Document Programs
Several RFMOs have implemented consignment tracking such as
statistical document trade tracking programs to combat illegal,
unregulated, and unreported (IUU) fishing of internationally managed
species, as well as to further understand trade and markets effects on
commerce of these species. Statistical documents are required when a
product is exported and include information on the shipped product such
as product type, species, amount, and flag nation of the harvesting
vessel. The documents must accompany the product until the product is
sold to a consumer, and participating nations must collect the final
statistical documents and submit summarized data to the relevant RFMO
for use in fishery management.
A statistical document program for Atlantic bluefin tuna was
implemented in the United States (60 FR 14381; March 17, 1995) pursuant
to ICCAT Recommendation 92-01 and set a precedent for tracking trade
from all ocean areas for recommendations pertaining to a single
geographic region. The 1992 ICCAT recommendation for tracking Atlantic
bluefin tuna commerce only included statistical document requirements
for imports and exports of frozen product. In 1993, the program was
expanded to cover fresh products (ICCAT Recommendation 93-03), and in
1997, ICCAT recommended the addition of a re-export certificate to the
program (97-04). The Commission for the Conservation of Southern
Bluefin Tuna (CCSBT) implemented a statistical document program for SBT
and requested non-members such as the United States to support this
program. The United States implemented this program in 2005 (69 FR
67268, November 17, 2004).
Based on the experience gained with the Bluefin tuna statistical
document program, ICCAT recommended statistical document programs for
frozen bigeye tuna and swordfish in 2000 (00-22) and established these
programs in 2001 (ICCAT Recommendations 01-21 and 22, respectively).
The swordfish statistical document program replaced the previously
required swordfish certificate of eligibility, which had been
established to enforce a minimum size on imported product and monitor
trade of Atlantic swordfish (64 FR 12903, March 16, 1999). The Indian
Ocean Tuna Commission (Recommendation 01/06) and IATTC (Recommendation
C-03-01) both adopted a statistical document program for frozen bigeye
tuna similar to the ICCAT program. The United States implemented these
statistical document programs for swordfish and frozen bigeye tuna in
2005 (69 FR 67268, November 17, 2004).
ICCAT adopted Recommendation 07-10 at its 2007 annual meeting. The
recommendation implements the BCD program. The BCD program expands the
ICCAT bluefin tuna statistical document program to further track
bluefin tuna consignments, beginning at the point of catch and
including transit through Mediterranean farming operations, unlike the
previous statistical document program, which only tracked consignments
through trade to the final importer. As implemented in the previous
statistical document program, the BCD program would continue to track
bluefin tuna consignments through trade to the final importer. The
intent of this program expansion is to further reduce IUU fishing,
obtain better catch and farming data, and more effectively implement
the Atlantic bluefin tuna recovery program.
The United States implemented several statistical document programs
in 2005 (69 FR 67268, November 17, 2004). The same rulemaking served to
consolidate the new and previously existing statistical document
programs into one place in the regulations (50 CFR part 300 subpart M),
and unify parts of their administrative implementation. Under the 2005
rulemaking, individuals who imported, exported, or re-exported any of
the covered species (bluefin tuna, swordfish, SBT, frozen bigeye tuna)
were required to obtain the HMS ITP. Associated reporting requirements
included completion and filing of statistical documents, re-export
certificates, and biweekly reports. Since implementation of the unified
program, NMFS has identified a number of adjustments that are necessary
to improve the program's effectiveness and enforceability. These
adjustments, along with the initial implementation of the BCD program
and several other proposed actions in this rule, are classified into
three areas: permitting, reporting, and regulatory structure and
clarifications.
[[Page 18475]]
Permitting
Several possible adjustments in permitting requirements under the
HMS ITP program were considered for the proposed rule. First, the
proposed rule considers whether or not to maintain the current
requirement that the entity responsible for obtaining the HMS ITP is
the ``consignee'' as indicated on U.S. Customs and Border Protection
(CBP) entry documentation. Several alternative entities were considered
for this responsibility, in order to clearly and appropriately identify
the entity that would have the most consistent access to the records
necessary for reporting. Ultimately, the ``consignee'' was identified
as the individual who has the best access to necessary records;
maintaining this requirement would also provide continuity with
existing regulations.
Second, the proposed rule would adjust the regulations to clarify
that if a foreign entity is importing to, or exporting from, the United
States, their U.S. resident agent or U.S. resident corporate surety
provider would be required to obtain the HMS ITP. Further, a resident
agent or corporate surety provider would be required to have a U.S. tax
identification number to obtain an HMS ITP. These clarifications are
necessary to provide consistency with CBP regulations, support
regulatory enforcement, and clarify operational procedures for foreign
companies wishing to trade product covered by the HMS ITP program in
the United States.
Third, the proposed rule would synchronize ITP regulations with the
NMFS Southeast Region regulations by requiring permit holders to submit
their application at least 30 days before the date upon which the
applicant wants the permit to be in effect. It would also remove the
regulatory language that requires NMFS to issue an ITP no later than 30
days after a complete application is received. The proposal would
provide consistency within NMFS regulations, and give the applicant
more input over when the permit is issued.
The fourth permitting issue addressed in the proposed rule would
require that shark fin importers, exporters, and re-exporters (traders)
obtain an HMS ITP for entry for consumption. Export of shark fins
drives much of the Atlantic shark fishery and has contributed to the
overfishing of several species and landing of prohibited species in the
Atlantic and Gulf of Mexico. Draft Amendment 2 to the Consolidated HMS
Fishery Management Plan (FMP) (72 FR 41392, July 27, 2007) states that
dealers may receive up to $50 per pound for shark fins (dry weight).
Several shark stock assessments were completed in 2005 and 2006 that
determined that dusky sharks (landing of which is currently prohibited)
and sandbar sharks are overfished with overfishing occurring, and that
porbeagle sharks are overfished (71 FR 65086, November 7, 2006). Dusky
sharks (before their landing was prohibited in 2000) and sandbar sharks
have been heavily commercially exploited because of the high value of
their fins. Draft Amendment 2 to the Consolidated HMS FMP proposes
management measures to rebuild these overfished stocks and prevent
overfishing (72 FR 41392, July 27, 2007), and NMFS has previously
implemented regulations to control the shark fishery by limiting the
amount of shark fins that can be landed relative to the total weight of
sharks landed (67 FR 6194, February 11, 2002). Once shark fins pass
beyond the first-receiver of the shark products, it is difficult to
track compliance with the shark fishery regulations or trace shark fins
to their eventual export. Through this proposed rule, NMFS is proposing
to identify the individuals involved in the shark fin trade to gain a
better understanding of shark fin commerce, as well as assist with
domestic enforcement of shark fishery regulations. Although the shark
fin trade appears to primarily drive the shark fisheries in the
Atlantic and Gulf of Mexico, limiting the permitting requirement to
traders of shark fins from these areas could make it easier to
circumvent the regulations. Therefore, NMFS is proposing to require an
ITP for traders in shark fins from all ocean areas.
Reporting
Three reporting issues are addressed in the proposed rule. The
first proposed regulatory adjustment would clarify that reports must be
received by NMFS by the 10th or 25th of each month (depending upon the
reporting period), rather than postmarked by those dates, and would
provide for the use of FAX for submitting HMS ITP reports. This
adjustment was proposed to clarify the HMS ITP regulations regarding
use of faxes, and to establish consistency within HMS regulations
regarding the use of the date NMFS receives a document (received-by
date) rather than postmark date, since it has also been proposed in
Draft Amendment 2 to the Consolidated HMS FMP (72 FR 41392, July 27,
2007). The use of a received-by date is preferred because postmark
dates are not provided on a consistent basis. This adjustment is also
proposed in this rule for biweekly reporting by Atlantic Tunas Dealer
Permit holders. NMFS also considered removing the requirement for
copies or originals of import statistical documents to be provided
within 24 hours of consignment entry; however, the proposed rule would
maintain the requirement to better support regulatory enforcement and
provide continuity in the regulations.
The second issue considered for the proposed rule includes the
initial implementation of the Atlantic BCD program under ICCAT
Recommendation 07-10. The BCD program would expand the ICCAT bluefin
tuna statistical document program to incorporate consignment tracking
beginning with documentation of vessel catch/harvest. The proposed rule
would initially implement the BCD program for U.S. Atlantic bluefin
tuna commercial fisheries, and all bluefin tuna imports, exports and
re-exports. The United States has a sophisticated reporting program
already in place that requires provision of commercial Atlantic bluefin
tuna landings data to NMFS within 24 hours of landing, and identifies
each landed fish with a unique, non-transferable tag assigned to the
permitted dealer who receives the fish. The operational adjustments for
implementing the BCD program for U.S. commercial fisheries and trade
are expected to be relatively small and attainable by the international
implementation date of July 1, 2008, which reflects the commitment
under the International Convention for the Conservation of Atlantic
Tunas.
Third, the rule would provide HMS ITP holders that export
domestically landed bluefin tuna with the option of reducing their
reporting burden by coordinating with the Atlantic Tunas Dealer Permit
(ATDP) holder who first purchased the bluefin tuna (frequently these
are the same individuals). The rule proposes to allow the HMS ITP
holder to forgo biweekly reporting of domestically landed bluefin tuna
exports as long as all information required for bluefin tuna exports on
the International Trade biweekly is submitted on the biweekly report
from the ATDP holder. The purpose of this regulatory adjustment is to
clarify reporting responsibilities and reduce reporting burden.
Regulatory Structure and Clarifications
The first regulatory change under this heading in the proposed rule
would adopt the new definition of ``import'' included in the Magnuson-
Stevens Act as amended by the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006 (Magnuson-
[[Page 18476]]
Stevens Reauthorization Act), Pub. L. 109-479 (2007). This new
definition could be interpreted more broadly than the current
definition included in the HMS ITP regulations at 50 CFR part 300
subpart M, and could result in an unintended interpretation of the HMS
ITP regulations to require statistical documentation for products
moving between the United States and its insular possessions with
separate customs territories. Therefore, the proposed rule clarifies
the new definition to ensure that the intent of the HMS ITP program to
exclude products imported between the U.S. and insular possessions from
this proposed rule's permitting and reporting requirements. The other
alternatives would not adopt the definition included in the statute, or
would adopt the definition without the additional clarification.
Second under this category, the proposed rule addresses
verification of the identity of foreign officials who validated
statistical documents. ICCAT has established a password-protected
website that identifies officials authorized to validate statistical
documents. NMFS considered using this website to ensure that imports
under the HMS ITP program were properly validated, including requiring
importers to verify the applicable information included on the website.
However, that alternative would compromise the privacy of the website
by requiring release of the password to HMS ITP holders, and would
increase the reporting burden on U.S. importers. Therefore, for this
issue the proposed rule would not require any regulatory adjustments at
this time, and multilateral discussions at ICCAT would be pursued to
establish a consistent international approach for determining the
validity of statistical document validation, including the possibility
of allowing importer access to the ICCAT password-protected website.
Third, the rule proposes that NMFS codify the new Harmonized Tariff
Schedule (HTS) codes implemented by the U.S. International Trade
Commission (ITC) in Publication 3898, published in December 2006 and
made effective by Presidential Proclamation 80-97 (72 FR 453, January
4, 2007) in February 2007. Since all products entering or exiting the
United States must be identified by an HTS code, NMFS uses these codes
to clearly identify the product to which trade related regulatory text
applies. The rule proposes to update NMFS regulatory text at 50 CFR
300.184 with the new HTS codes for swordfish products adopted by the
ITC. NMFS also considered adopting a higher hierarchical level of HTS
coding to minimize the potential for future regulatory adjustments, but
selected the more consistent and clear method for product
identification for inclusion in the proposed rule.
Fourth, the proposed rule would clarify that all individuals who
participate in activities that require an HMS ITP must abide by the
reporting requirements, regardless of whether or not the individuals in
fact obtain the HMS ITP, as required.
Authorities
The Atlantic Tunas Convention Act (ATCA) of 1975 (16 U.S.C. 971 et
seq.) authorizes the promulgation of regulations as may be necessary
and appropriate to implement ICCAT recommendations. The Tuna
Conventions Act of 1950 (TCA) (16 U.S.C. 951 et seq.) authorizes
rulemaking to carry out IATTC recommendations. NMFS manages the
Atlantic swordfish and tuna fisheries in accordance with the
Consolidated HMS FMP (71 FR 58058, October 2, 2006). Regulations
implementing the Consolidated HMS FMP at 50 CFR part 635 were
promulgated under the authorities of the Magnuson-Stevens Act (16
U.S.C. 1801 et seq.) and ATCA. Regulations implementing international
trade provisions for HMS at 50 CFR part 300 subpart M were promulgated
under the authorities of the Magnuson-Stevens Act, ATCA, and the TCA.
NMFS manages swordfish and tuna in the Pacific Ocean under the
Western Pacific Pelagics Fishery Management Plan that was prepared by
the Western Pacific Fishery Management Council. Regulations
implementing that plan, at 50 CFR parts 300 and 660, were promulgated
under the authorities of the ATCA, TCA and the Magnuson-Stevens Act,
respectively. An FMP for U.S. West Coast HMS was developed by the
Pacific Fishery Management Council (69 FR 18444, April 7, 2004). Other
authorities relevant to Pacific management include the South Pacific
Tuna Act of 1988 (16 U.S.C. 973 et seq.), the High Seas Fishing
Compliance Act (16 U.S.C. 5501 et seq.), the U.S.-Canada Albacore
Treaty, and the Western and Central Pacific Fisheries Convention
Implementation Act (Public Law 109-479).
Customs requirements pertaining to the import and export of product
harvested by national and international swordfish and tuna fisheries
include those under 19 U.S.C. 1 et seq. and CBP regulations, under
title 19 of the CFR.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator (AA) has determined that this proposed
rule is consistent with the Consolidated HMS FMP, other provisions of
the Magnuson-Stevens Act, the ATCA, the TCA, and other applicable law,
subject to further consideration after public comment. The AA has
preliminarily determined that this proposed rule is necessary to
implement the recommendations of ICCAT and IATTC, and is necessary for
the management of bluefin tuna, bigeye tuna, swordfish, and sharks.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impacts this proposed rule would have, if
adopted, on small entities. A description of the action, why it is
being considered, and the legal basis for this action are contained at
the beginning of the preamble and the SUMMARY section of the preamble.
A summary of the economic analysis follows. A copy of this analysis is
available from NMFS (see ADDRESSES).
The proposed programs could affect approximately 406 ATDP holders,
230 HMS ITP holders, and approximately 100 individuals who participate
in international trade of shark fins, all of which are considered small
entities. According to the RFA, a wholesale fish business is defined as
a small entity if it employs 100 or fewer. Impacts to these entities
could occur in two areas - permitting and reporting. NMFS expects only
minor negative economic impacts from the proposed rule because the
proposed measures only involve adjusting the permitting and reporting
requirements. A description of the alternatives, associated
requirements, and estimated costs follows.
The issues addressed by the proposed rule are subdivided into three
categories: ``permitting,'' ``reporting'' and ``regulatory structure
and clarification.'' Only two of the issues under the category of
``permitting'' include alternatives that could have economic impacts.
For the issue of identification of the entity responsible for obtaining
the HMS ITP in importing situations, and thus for fulfilling subsequent
reporting requirements, the ``No Action'' alternative is included in
the proposed rule. This would continue to require the consignee as
indicated in CBP import documentation to be the
[[Page 18477]]
responsible party. The annual costs associated with this alternative
are the costs associated with permitting (including the cost of the
permit, mailing costs and time for filling out the application --
estimated at $26.75 per applicant) and the cost of reporting (including
filling out and submitting the report forms -- estimated at $102 per
dealer for biweekly reports and $94 per dealer for trade tracking
documentation, for a total of $196 per dealer). Alternative Two would
require that the consignee on the bill of lading obtain an HMS ITP in
addition to the consignee on CBP entry documentation. The overall
negative economic impact for this alternative would increase based on
the number of consignees identified on import bills of lading that
differ from consignees on CBP documentation. NMFS estimates the cost of
this alternative to be twice that of the ``No Action'' Alternative
included in the proposed rule, assuming that there is one additional
permit holder for each current permit holder. Costs per dealer would be
the same as for the ``No Action'' Alternative included in the proposed
rule. For Alternative Three, which would require the importer of record
to obtain the HMS ITP, economic impacts are estimated to be
approximately the same as the ``No Action'' Alternative included in the
proposed rule, using the assumption that there would be approximately
the same number of importers of record identified on CBP entry
documentation as consignees for consignments of products addressed
under HMS ITP regulations.
The second permitting issue with alternatives that could have
economic impacts is shark fin trader permitting. The proposed rule
would require that shark fin traders obtain an HMS ITP. NMFS
anticipates that approximately 100 entities are expected to require the
HMS ITP for shark fin trading. Since there would be no reporting
requirements associated with this permit, the only costs are for
obtaining the permit ($26.75 per dealer). The other alternative
considered for this issue was the ``No Action'' Alternative. The
permitting ($26.75) and reporting ($196) related costs of this
alternative would apply for each current ITP holder.
The second category of issues addressed in the proposed rule is
under the heading of ``Reporting.'' None of the alternatives for these
issues would change the number of entities required to obtain an HMS
ITP, so there would be no permitting related costs for any of these
issues.
The first issue under the category of ``Reporting'' that has
reporting-associated economic impacts includes alternatives that would
adjust reporting requirements for when and how report submission would
be required. Alternative One is the ``No Action'' alternative, and
would not change any reporting regulations or associated annual costs,
which are estimated at $196 per dealer. Alternative Two would rescind
the requirement for copies of import statistical documents to be faxed
to NMFS within 24 hours of receipt by an importer. This alternative
would provide a slightly positive economic benefit in the form of a
slightly reduced time burden for import reporting. Dealers would still
be required to fill out and mail import statistical documents twice per
month. The Preferred (third) Alternative would adjust HMS ITP and ATDP
reporting regulations to use a ``received-by'' date rather than a
postmark date for determining dealer compliance with required report
submittal schedules. The ITP regulations would also be clarified to
indicate when use of a fax machine would be an acceptable method for
submitting a report. This alternative is expected to have no economic
consequences, since it would not impact reporting frequency.
The second reporting-related issue considers alternatives to
initially implement ICCAT Recommendation 07-10 and the new BCD program.
The proposed rule (Preferred Alternative) would implement preliminarily
the program for commercial U.S. Atlantic bluefin tuna fisheries and
bluefin tuna imports, exports and re-exports as part of a program that
will apply to all ICCAT member nations. The BCD program would require
the use of new forms with fields similar to the ICCAT bluefin tuna
statistical document that was in place before the BCD program was
implemented. The change in reporting burden would only affect HMS ITP
holders that re-export untagged bluefin tuna. When re-exporting an
untagged bluefin tuna, the HMS ITP holder would be required to send a
copy of the re-export certificate to the ICCAT Secretariat and
importing nation within five working days via addresses and information
provided by NMFS. The costs per transaction could range from zero for
electronic transmission of the documents, to approximately $100 for
mailing, for an average of $50 per transaction. In 2006, 17
consignments would have been subject to this additional cost. In
addition, a time burden of .25 hours per consignment would have
resulted in an additional 4.25 aggregate hours for a total annual cost
of $64, or $3.75 per transaction. There would be no additional costs
for the No Action alternative, with current annual average costs for
statistical document program reporting at $196 per dealer.
The last issue under this category addresses reporting of Atlantic
bluefin tuna exports. The Preferred Alternative would provide a
positive economic impact, reducing the current reporting burden for
individuals who hold both an ATDP and HMS ITP by clarifying that
bluefin tuna exports would only need to be reported on one biweekly
report. This action could positively affect the 64 individuals who
concurrently hold an ATDP and HMS ITP and could save an estimated $51
per dealer per year. In addition, this alternative could reduce the
reporting burden for HMS ITP holders who purchase bluefin tuna from an
ATDP holder, with an estimated savings similar to those for individuals
holding both permits. Alternative One, the ``No Action'' alternative,
would continue to require reporting for both permits, and is estimated
to cost each impacted dealer approximately $102 per year. Alternative
Two would require that operational procedures were adjusted to mirror
the current regulations. The economic impact of Alternative Two would
be the same as that estimated for the ``No Action'' alternative.
The last category of issues addressed in the proposed rule is
``Regulatory Structure and Clarification,'' and includes two issues
that could have economic consequences. The first issue is the
implementation of the new definition of ``import'' included in the
Magnuson-Stevens Act as amended by the Magnuson-Stevens Reauthorization
Act. Both the ``No Action'' Alternative and the Preferred Alternative
would have the same economic consequences, which would be the
permitting and reporting costs associated with the current HMS ITP
program, averaged at $222.75 per dealer per year. The second
alternative would adopt the Magnuson-Stevens Act definition of
``import,'' without distinguishing that consignments between the United
States and its insular possessions with separate customs territories
would be considered domestic interactions, as intended by RFMO
consignment programs. If such consignments did require permitting and
reporting under the HMS ITP program, negative economic consequences
would occur which are currently unknown but, based in part on the
amount of product and number of participating dealers, are expected to
be minor in nature. For example, an average of four consignments from
Guam to ports under
[[Page 18478]]
U.S. Customs authority have occurred each year from 2002 through 2007.
The estimated annual impact per dealer (approximately four dealers)
would be $223.
The last issue considered in this proposed rule that could have
economic impacts addresses the verification of foreign validating
officials for imports. The proposed rule includes no regulatory changes
for this issue. Under the Preferred Alternative, NMFS would pursue
further international coordination on this issue, and there would be no
economic related consequences. Likewise, the ``No Action'' Alternative
would not have economic consequences since it does not require any
current or additional action. Alternative Two could have considerable
negative economic consequences since it would require that importers
check the password-protected ICCAT website to determine whether
validating officials are authorized government representatives. This
alternative would require computer hardware and software with Internet
access.
Fishermen, fish dealer permit holders, and fishery managers
involved in these fisheries must comply with a number of international
agreements, domestic laws, regulations and FMPs. These include, but are
not limited to, the International Convention for the Conservation of
Atlantic Tunas, the Magnuson-Stevens Act, the Atlantic Tunas Convention
Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection
Act, the Endangered Species Act, the National Environmental Policy Act,
the Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS
strives to ensure consistency among the regulations with Fishery
Management Councils and other relevant agencies. NMFS does not believe
that the proposed alternatives would conflict with any relevant
regulations, federal or other.
One of the requirements of an IRFA is to describe any alternatives
to the proposed rule which accomplish the stated objectives and which
minimize any significant economic impacts. Economic impacts are
discussed above and below. Additionally, the RFA Section 603(c)(1)-(4))
lists four categories of options which should be discussed. These
categories are: (1) establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities; (2) clarification, consolidation, or
simplification of compliance and reporting requirements under the rule
for such small entities; (3) use of performance rather than design
standards; and (4) exemptions from coverage of the rule for small
entities.
Under the first and fourth categories listed above, NMFS considers
all dealers to be ``small entities.'' Thus, in order to meet the
objectives of this proposed rule and address management concerns, NMFS
cannot exempt small entities or change the reporting requirements for
small entities.
Category Two includes options for clarifying, simplifying, and
consolidating compliance and reporting requirements for small entities.
Many of the measures proposed in this rule satisfy the goal of Category
Two by simplifying or clarifying the existing dealer permitting or
reporting structure in several instances, and by seeking further
international clarity for several issues that cannot be implemented
under the current program. Specifically, the proposed rule would
clarify who is the entity responsible for obtaining the HMS ITP in
cases involving foreign importers and would synchronize requirements
between HMS ITPs and NMFS regional permits. Although alternatives are
considered for modifying the entity responsible for obtaining a permit
based on CBP entry documentation, the proposed rule does not modify the
current regulations, which is in effect the simplest of the
alternatives considered.
The proposed rule would reduce and simplify reporting requirements
so that reporting may be combined in certain instances when an
individual holds both the HMS ITP and the ATDP, which have similar
reporting requirements. A dealer holding one of these permits can also
coordinate with a dealer who handles the same individual bluefin tuna
but holds the other corresponding permit. The proposed rule would also
clarify the use of faxes for report submission and would further
consistency with other HMS regulations by establishing the ``received
by'' date as the date used for compliance determinations. There would
be some increase in reporting burden and cost because of the
requirement for international communication of consignment documents
directly to the ICCAT secretariat and importing nation's government
agency, however costs should be minimized since affected businesses are
encouraged to submit the required documentation electronically.
The proposed rule also directly addresses issues of regulatory
structure and clarification. The proposed rule would update certain HTS
codes which would serve in part to clarify reporting. The proposed rule
would also adopt the Magnuson-Stevens Act definition of import, with a
clarifying caveat that consignments of affected product between insular
possessions and the United States are not considered imports. Finally,
the proposed rule would clarify that the regulatory requirements in 50
CFR part 300 subpart M would apply to all entities engaging in covered
activities, rather than just those who obtain the required permit.
Alternatives for verification of validating authorities are also
considered, but because of technical difficulties, no action requiring
verification of validation is included in the proposed rule.
The third category identified in the RFA, ``use of performance
rather than design standards,'' is not applicable, since ICCAT has very
specific requirements for implementation of the trade tracking programs
addressed in this action. Although the shark fin trade is not currently
covered by an ICCAT recommendation, in order to address category two
and maintain a simple structure for HMS trade permits, shark fin
traders would be required to obtain an HMS ITP under the proposed rule.
This proposed rule contains revisions to collection-of-information
requirements previously approved by OMB under the HMS Permitting Family
of Forms (0648-0327) and the HMS Dealer Reporting Family of Forms
(0648-0040). The revisions are subject to review and approval by OMB
under the Paperwork Reduction Act, and have been submitted to OMB for
approval. In the HMS Permitting Family of Forms, the instrument being
revised is the application for the HMS ITP for Atlantic coast dealers
that import, export, or re-export bluefin tuna, southern bluefin tuna,
frozen bigeye tuna, and swordfish, the public reporting burden for
which is estimated at 0.08 hours (5 minutes) per response. In the HMS
Dealer Reporting Family of Forms, the instruments being revised are the
bluefin tuna statistical document and re-export certificate, the public
reporting burden for which is estimated at .08 hours (5 minutes) per
form. The statistical document will be replaced by a catch document
with an equivalent reporting burden. The reporting burden for re-
exports of untagged bluefin tuna is estimated to be an additional .25
hours (15 minutes) per form. These estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: whether each of these proposed
[[Page 18479]]
information collections is necessary for the proper performance of the
functions of the agency, including whether the information shall have
practical utility; the accuracy of the burden estimate; ways to enhance
the quality, utility, and clarity of the information to be collected;
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology. Send comments on these or any other
aspects of the collection of information to NMFS at the ADDRESSES
above, and e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-
7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Public Hearings
Public hearings will be held as follows:
1. April 23, 2008, 10 a.m. to 12 p.m., NMFS Southwest Regional
Office, Santa Rosa Field Office, 777 Sonoma Avenue, Santa Rosa, CA
95404.
2. April 24, 2008, 10 a.m. to 12 p.m., NMFS Southwest Regional
Office, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
3. April 25, 2008, 2 p.m. to 4 p.m., NMFS Northeast Regional
Office, One Blackburn Drive, Gloucester, MA 01930.
4. April 28, 2008, 2 p.m. to 4 p.m., Embassy Suites Hotel, 3974
Northwest South River Drive, Miami, FL 33142.
5. April 29, 2008, 2 p.m. to 4 p.m., NMFS, Southeast Fisheries
Science Center, 3500 Delwood Beach Road, Panama City, FL 32408.
The hearing locations are physically accessible to people with
disabilities. Requests for sign language interpretation or other
auxiliary aids should be directed to Dianne Stephan at (978) 281-9260,
at least 7 business days prior to the meeting.
List of Subjects
50 CFR Part 300
Administrative practice and procedure, Exports, Fish, Fisheries,
Fishing, Imports, Reporting and recordkeeping requirements, Treaties.
50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Imports, Reporting and
recordkeeping requirements, Treaties.
Dated: March 31, 2008.
James W. Balsiger
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set out in the preamble, 50 CFR part 300 subpart M and
part 635 are proposed to be amended as follows:
CHAPTER III
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart M--International Trade Documentation and Tracking Programs
for Highly Migratory Species
1. The authority citation for subpart M of part 300 continues to
read as follows:
Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 U.S.C. 1801 et
seq.
2. In Sec. 300.181, the definitions for ``Fish or fish products
regulated under this subpart'', ``Import'', and ``Tag'' are revised,
and the definitions of ``BCD'', ``BCD tag'', ``Consignment document'',
``Consignment documentation programs'', and ``Shark fin'' are added in
alphabetical order to read as follows:
Sec. 300.181 Definitions.
* * * * *
BCD 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 (BCD).
* * * * *
Bluefin Tuna Catch Document (BCD) means an ICCAT bluefin tuna catch
document.
* * * * *
Consignment document means either an ICCAT Atlantic BCD or a catch
document issued by a nation to comply with the ICCAT BCD program; or an
ICCAT, IATTC, IOTC, or CCSBT statistical document or a statistical
document issued by a nation to comply with such statistical document
programs.
Consignment documentation programs means the ICCAT, IOTC, IATTC or
CCSBT catch document or statistical document programs.
* * * * *
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), and shark fins.
* * * * *
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into, any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing or introduction constitutes an importation within the meaning
of the customs laws of the United States. Import, for purposes of this
subpart, does not include any activity described in the previous
sentence with respect to fish caught in the exclusive economic zone or
by a vessel of the United States. For purposes of this subpart, goods
brought into the United States from a U.S. insular possession, or vice-
versa, are not considered imports.
* * * * *
Shark fin, for purposes of this subpart, means any fin removed from
a shark, which is an animal of the Linnaean taxonomic superorder
Selachimorpha, subclass Elasmobranchii, class Chondrichthyes.
* * * * *
Statistical document means an ICCAT, IATTC, IOTC, or CCSBT
statistical document, or a statistical document issued by a nation to
comply with such statistical document programs.
Statistical document program means either the ICCAT, IOTC, IATTC or
CCSBT statistical document program.
* * * * *
Tag means either a dealer tag or a BCD tag.
* * * * *
3. In Sec. 300.182, paragraphs (a), (b) and (c) are revised to
read as follows:
Sec. 300.182 HMS international trade permit.
(a) General. An importer, entering for consumption fish or fish
products regulated under this subpart from any ocean area into the
United States, or an exporter exporting or re-exporting such product,
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. A resident agent or resident corporate surety
provider, as specified under 19 CFR 141.18, must possess a valid trade
permit when acting on behalf of a nonresident corporation when entering
for consumption, exporting, or re-exporting fish or fish products
regulated under this subpart from any ocean area.
(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 on which the applicant
wants to have the permit made effective. Application forms and
instructions for their completion are available from NMFS.
[[Page 18480]]
(c) Issuance. 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.
* * * * *
4. Section 300.183 is revised to read as follows:
Sec. 300.183 Permit holder reporting and recordkeeping requirements.
(a) Biweekly reports. Any person required to obtain a trade permit
under Sec. 300.182 must submit to NMFS, on forms supplied by NMFS, a
biweekly report of entries for consumption, exports and re-exports of
fish and fish products regulated under this subpart except shark fins.
(1) The report required to be submitted under this paragraph (a)
must be received within 10 days after the end of each biweekly
reporting period in which fish or fish products regulated under this
subpart except shark fins were entered for consumption, exported, or
re-exported. The bi-weekly reporting periods are the first day to the
15\th\ day of each month, and the 16\th\ day to the last day of each
month.
(2) Each report must specify accurately and completely the
requested information for each consignment of fish or fish products
regulated under this subpart, except shark fins, that is entered for
consumption, exported, or re-exported.
(3) A biweekly report is not required for export consignments of
bluefin tuna when the information required on the biweekly report has
been previously supplied on a biweekly report submitted under Sec.
635.5(b)(2)(i)(B) of this title, provided the person required to obtain
a trade permit under Sec. 300.182 retains, at his/her principal place
of business for a period of 2 years from the date on which each report
was submitted to NMFS, a copy of the biweekly report which includes the
required information and is submitted under Sec. 635.5(b)(2)(i)(B) of
this title.
(b) Recordkeeping. Any person required to obtain a trade permit
under Sec. 300.182 must retain, at his/her principal place of
business, a copy of each biweekly report and all supporting records for
a period of 2 years from the date on which each report was submitted to
NMFS.
(c) Other requirements and recordkeeping requirements. Any person
required to obtain a trade permit under Sec. 300.182 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 (authorized person)
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, catch documents, re-export
certificates, relevant sales receipts, import and export documentation,
or other records or reports made, retained, or submitted pursuant to
this subpart. 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.
(e) Applicability of reporting and recordkeeping requirements.
Reporting and recordkeeping requirements in this subpart apply to any
person engaging in activities that require a trade permit, as set forth
in Sec. 300.182(a), regardless of whether a trade permit has been
issued to that person.
5. In Sec. 300.184, the section heading, introductory text, and
paragraphs (a)(1) introductory text, (b)(1) introductory text, (c)(1)
introductory text, and (d)(1) are revised and paragraph (e) is added to
read as follows:
Sec. 300.184 Species subject to permitting, documentation, reporting,
and recordkeeping requirements.
The following fish or fish products are subject to the requirements
of this subpart, regardless of ocean area of catch.
(a) * * *
(1) The requirements of this subpart apply to bluefin tuna products
including those identified by the following subheading numbers from the
Harmonized Tariff Schedule of the United States (HTS):
* * * * *
(b) * * *
(1) The requirements of this subpart apply to southern bluefin tuna
products including those identified by the following subheading numbers
from the HTS:
* * * * *
(c) * * *
(1) The requirements of this subpart apply to frozen bigeye tuna
products including those identified by the following subheading numbers
from the HTS:
* * * * *
(d) * * *
(1) The requirements of this subpart apply to swordfish products
including those identified by the following subheading numbers from the
HTS:
(i) Fresh or chilled swordfish, steaks (No. 0302.67.00.10).
(ii) Fresh or chilled swordfish (No. 0302.67.00.90), excluding fish
fillets, steaks, and other fish meat of HTS heading 0304.
(iii) Frozen swordfish, steaks (No. 0303.61.00.10).
(iv) Frozen swordfish (No. 0303.61.00.90), excluding fillets,
steaks and other fish meat of HTS heading 0304.
(v) Fresh, or chilled swordfish, fillets and other fish meat (No.
0304.11.00.00).
(vi) Frozen swordfish, fillets (No. 0304.21.00.00).
(vii) Swordfish in bulk or in immediate containers weighing with
their contents over 6.8 kg each (No. 0304.91.10.00).
(viii) Swordfish, other (No. 0304.91.90.00).
* * * * *
(e) Shark fin. The permitting requirements of this subpart apply to
shark fin products including those identified by the following
subheading number from HTS: No. 0305.59.20.00.
6. In Sec. 300.185:
A. The section heading and paragraphs (a)(1), (a)(2(i) through
(iv), (a)(3), (b)(1), (b)(2), (b)(3), (c)(1), (c)(2)(i), (c)(2)(ii),
(c)(3) and (d) are revised.
B. Paragraph (e) is redesignated as paragraph (f).
C. New paragraphs (a)(2)(v) through (a)(2)(ix) and (e) are added.
The revisions and additions read as follows:
Sec. 300.185 Documentation, reporting and recordkeeping requirements
for consignment documents and re-export certificates.
(a) * * *
(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 shark fins, or 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
[[Page 18481]]
(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) * * *
(i) All fish or fish products except for shark fins, 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 consignment document.
(ii) Imports of bluefin tuna which were re-exported from another
nation, must also be accompanied by an original, completed, approved,
validated, species-specific re-export certificate.
(iii) Imports of fish or fish products regulated under this
subpart, other than shark fins, that were previously re-exported and
were subdivided or consolidated with another consignment before re-
export, must also be accompanied by an original, completed, approved,
validated, species-specific re-export certificate.
(iv) All other imports of fish or fish products regulated under
this subpart, except shark fins, that have been previously re-exported
from another nation, should have the intermediate importers
certification of the original statistical document completed.
(v) Consignment documents must be validated as specified in Sec.
300.187 by a responsible government official of the flag country whose
vessel caught the fish (regardless of where the fish are first landed).
Re-export certificates must be validated by a responsible government
official of the re-exporting country.
(vi) A permit holder may not accept an import without the completed
consignment document or re-export certificate as described in
paragraphs (a)(2)(i) through (a)(2)(v) of this section.
(vii) For fish or fish products except shark fins regulated under
this subpart that are entered for consumption, the permit holder must
provide on the original consignment document that accompanied the
consignment the correct information and importer's certification
specified in Sec. 300.186, and must note on the top of the consignment
document the entry number assigned at the time of filing an entry
summary (e.g., CBP Form 7501 or electronic equivalent) with customs
authorities.
(viii) 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 BCD
tag on all such bluefin tuna available for sale, must be accompanied by
the appropriate BCD tag issued by that country, and said BCD 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 BCD 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 BCD tag number
and the issuing country must be written legibly and indelibly on the
outside of the package.
(ix) 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.
(3) Reporting requirements. For fish or fish products regulated
under this subpart, except shark fins, that are entered for consumption
and whose final destination is within the United States, which includes
U.S. insular possessions, a permit holder must submit to NMFS the
original consignment document that accompanied the fish product as
completed under paragraph (a)(2) of this section, to be received by
NMFS along with the biweekly report as required under Sec. 300.183(a).
A copy of the original completed consignment document must be submitted
by said permit holder, to be received by 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) * * *
(1) Applicability of requirements. The documentation and reporting
requirements of this paragraph (b) apply to exports of fish or fish
products regulated under this subpart, except shark fins, 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 (b) also applies to products of
American fisheries landed overseas.
(2) Documentation requirements. A permit holder must complete an
original, approved, numbered, species-specific consignment 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
consignment. A permit holder must provide on the consignment document
the correct information and exporter certification. The consignment
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
consignment.
(3) Reporting requirements. A permit holder must ensure that the
original, approved, consignment document as completed under paragraph
(b)(2) of this section accompanies the export of such products to their
export destination. A copy of the consignment document must be received
by 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) * * *
(1) Applicability of requirements. The documentation and reporting
requirements of this paragraph (c) apply to exports of fish or fish
products regulated under this subpart, except shark fins, 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 (c) do not apply to
fish or 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) * * *
(i) If a permit holder re-exports a consignment of bluefin tuna, or
subdivides or consolidates a consignment of fish or fish products
regulated under this subpart, other than shark fins, that was
previously entered for consumption as described in paragraph (c)(1) of
this section, the permit holder must complete an original, approved,
individually numbered, species-specific re-export certificate issued to
that permit holder by NMFS for each such re-export consignment. Such an
individually numbered document is not transferable and may be used only
once by the
[[Page 18482]]
permit holder to which it was issued to report on a specific re-export
consignment. A permit holder must provide on the re-export certificate
the correct information and re-exporter certification. The permit
holder must also attach the original consignment document that
accompanied the import consignment or a copy of that document, and must
note on the top of both the consignment documents and the re-export
certificates the entry number assigned by CBP authorities at the time
of filing the entry summary.
(ii) If a consignment of fish or fish products regulated under this
subpart, except bluefin tuna or shark fins, that was previously entered
for consumption as described in paragraph (c)(1) of this section is not
subdivided into sub-consignments or consolidated, for each re-export
consignment, 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.
* * * * *
(3) Reporting requirements. For each re-export, a permit holder
must submit the original of the completed re-export certificate (if
applicable) and the original or a copy of the original consignment
document completed as specified under paragraph (c)(2) of this section,
to accompany the consignment of such products to their re-export
destination. A copy of the completed consignment document and re-export
certificate (if applicable) must be submitted to NMFS, at an address
designated by NMFS, and received by NMFS within 24 hours of the time
the consignment was re-exported from the United States. Within five
days of re-export of untagged Atlantic bluefin tuna, the permit holder
must email, fax, or mail a copy of the completed consignment document
and re-export certificate to the ICCAT Secretariat and the importing
nation, at addresses designated by NMFS.
(d) Document completion. To be deemed complete, a consignment
document or re-export certificate must be filled out according to the
corresponding instructions for each document with all requested
information provided.
(e) Recordkeeping. A permit holder must retain at his or her
principal place of business, a copy of each consignment 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.
* * * * *
7. In Sec. 300.186 the section heading and paragraphs (a) and (b)
are revised and paragraphs (c) through (h) are removed to read as
follows:
Sec. 300.186 Completed and approved documents.
(a) NMFS-approved consignment documents and re-export certificates.
A NMFS-approved consignment 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.
(b) Nationally approved forms from other countries. 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
consignment document or re-export certificate for use in countries
without a nationally approved form to accompany consignments to the
United States may be obtained from the following websites, as
appropriate: www.iccat.org, www.iattc.org, www.ccsbt.org, or
www.iotc.org.
* * * * *
8. In Sec. 300.187, paragraphs (a), (b), and (d) through (f) are
revised to read as follows:
Sec. 300.187 Validation requirements.
(a) Imports. The approved consignment 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 requirement