[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14664]
[[Page Unknown]]
[Federal Register: June 16, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 285
[Docket No. 940538-4138; I.D. 100893B]
RIN 0648-AF74
Atlantic Tuna Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes modifications to NOAA Form 370, Fisheries
Certificate of Origin (FCO), to allow that form to also serve as a
Bluefin Tuna Statistical Document (BSD), and proposes amendments to the
regulations governing the Atlantic and Pacific bluefin tuna fisheries
to require: An appropriately completed, approved BSD as a condition for
import, export, or re-export of fresh or frozen bluefin tuna into or
from the United States; a Federal permit for all dealers that export
Pacific bluefin tuna; preparation and submission of a biweekly report
on exports of Pacific bluefin tuna by permitted dealers; and affixation
of an identification tag to fresh or individually frozen Pacific
bluefin tuna sold for export.
The amendments would enable the United States to assist the
International Commission for the Conservation of Atlantic Tunas (ICCAT)
in accounting for all bluefin tuna entering into commerce or
international trade and would bring the United States into compliance
with the 1992 recommendation of ICCAT and the Atlantic Tunas Convention
Act (ATCA).
DATES: Comments are invited and must be received by July 18, 1994.
ADDRESSES: Comments on the proposed revisions to NOAA Form 370 and on
the proposed rule should be sent to, and copies of supporting
documents, including an Environmental Assessment and Regulatory Impact
Review, are available from, Richard H. Schaefer, Director, Office of
Fisheries Conservation and Management (F/CM), NMFS, 1315 East-West
Highway, Silver Spring, MD 20910. NOAA Form 370, as proposed to be
revised, bluefin tuna dealer permit application, biweekly bluefin tuna
dealer report, and tuna identification tags may be obtained from NMFS,
Northeast Region, Fisheries Management Division, 1 Blackburn Drive,
Gloucester, MA 01930-2298, or NMFS, Southwest Region, Fisheries
Management Division, 501 W. Ocean Blvd. Suite 4200, Long Beach, CA
90802-4213.
FOR FURTHER INFORMATION CONTACT: Richard B. Stone, 301-713-2347; Kevin
B. Foster, 508-281-9260; or Patricia J. Donley, 310-980-4033.
SUPPLEMENTARY INFORMATION: The Atlantic tuna fisheries are managed
under regulations at 50 CFR part 285 issued under the authority of
ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to
implement regulations as may be necessary to carry out the
recommendations of ICCAT. The authority to implement ICCAT
recommendations has been delegated from the Secretary to the Assistant
Administrator for Fisheries, NOAA (AA).
Purpose
Parties to the Eighth Special Meeting of ICCAT held in Madrid,
Spain, on November 8-12, 1992, adopted a recommendation to implement a
statistical documentation program to collect more complete information
on the catch of, and trade in, Atlantic bluefin tuna. That
recommendation, which this proposed rule would implement, requires
Contracting Parties to implement a statistical documentation program
whereby any bluefin tuna imported into the territory of a Contracting
Party or at the first entry into a regional economic organization must
be accompanied by an appropriately completed BSD. The ICCAT
recommendation is based on the need to improve the reliability of
statistical information on worldwide harvests of bluefin tuna,
particularly western Atlantic bluefin tuna, which is an overexploited
stock.
Without statistical documentation and differentiation with respect
to ocean area of catch, ICCAT cannot determine the total harvest of
Atlantic bluefin tuna. While the primary market for bluefin tuna is
Japan, which is a member country of ICCAT, the origin of all bluefin
tuna on the international market cannot be ascertained without
documentation of the flag state of harvesting vessels and ocean areas
of catch. Some vessels that harvest bluefin tuna are registered to
nations not affiliated with ICCAT and are not subject to ICCAT quota
constraints; some of these nations have difficulty in obtaining
information on the catches of vessels under their flag and therefore do
not report catches to ICCAT.
The documentation requirement would facilitate accounting for all
fresh or frozen shipments of bluefin tuna into Japan and other ICCAT
countries, by both member and non-member ICCAT countries. This
information would be used by ICCAT for Atlantic bluefin tuna stock
assessments, to develop management policies, and to help determine
compliance with its conservation program for Atlantic bluefin tuna.
In addition to the proposed BSD requirement, NMFS proposes to
require a Federal permit for each dealer who exports Pacific bluefin
tuna. NMFS also proposes to require these dealers to complete a
biweekly report on bluefin tuna exports and to affix a tag on all fresh
or individually frozen Pacific bluefin tuna sold for export. When
combined with the existing permitting and reporting requirements for
Atlantic bluefin tuna dealers, this would give NMFS the ability to
track all bluefin tuna shipments imported into, exported, or re-
exported from the United States.
NMFS has determined that these additional requirements would bring
the United States into compliance with the 1992 ICCAT recommendation
that all bluefin tuna (Atlantic and Pacific) imported into ICCAT
countries be required to be accompanied by a BSD. ICCAT has determined
that inclusion of Pacific bluefin is necessary due to the similarity of
appearance of the two subspecies. Without Pacific bluefin tuna dealer
permits, bi-weekly reports and tags for exports, the United States
could not assure compliance with the documentation requirement for
Pacific bluefin.
Bluefin Tuna Statistical Document
The proposed rule would require a completed, approved BSD as a
condition for the import, export, or re-export of all bluefin tuna
shipments into or from the United States. The BSD would be required to
accompany each fresh or frozen shipment along with other shipping
documentation ordinarily required for international trade. Consistent
with the ICCAT recommendation and subsequent agreements with Japan and
Canada, the BSD would be required for all bluefin tuna beginning June
1, 1994.
The BSD would be required for all fresh or frozen bluefin tuna
products that are exported from or imported into the United States and
identified by Harmonized Tariff Schedule (HTS) numbers for fresh or
chilled bluefin tuna, excluding fillets and other fish meat--
0302.39.00.20; and frozen bluefin tuna, excluding fillets--
0303.49.00.20.
Contents of Document
NMFS proposes to modify the FCO (NOAA Form 370) so that it can also
serve as the BSD. Interested persons may obtain copies of the proposed
combined form from NMFS (see ADDRESSES).
In order to be considered appropriately completed, the approved BSD
accompanying each shipment would have to provide all of the required
information indicated in the proposed regulatory text for Sec. 285.202
and be certified by the exporter, importer, and government official, as
applicable.
Validation
The completed, approved BSD would have to be validated by a
responsible government official of the country whose flag vessel
harvested the tuna regardless of where the bluefin tuna is first
landed, unless the AA waives the validation requirement for that
country because the AA finds, based on information from ICCAT, that:
(1) All fresh or individually frozen bluefin tuna available for sale
from that country are tagged, or included in an ICCAT-accepted logbook
or ICCAT-accepted information retrieval system; (2) all information
relating to the tag, the ICCAT-accepted logbook, or the ICCAT-accepted
information retrieval system is compiled by the government of that
country and includes the name of the country issuing the document, the
name of the exporter and the importer, the name of the harvesting
vessel and the area of harvest, the gear utilized, the type of product
and total weight, and the point of export; and (3) the compiled
information is provided in a timely fashion to ICCAT. Validation
requirements would be waived for all but bulk-frozen shipments upon
publication in the Federal Register of a finding and waiver by the AA.
Dolphin-Safe Tuna Designation
Under the Marine Mammal Protection and International Dolphin
Conservation Acts and their implementing regulations, only dolphin-safe
tuna may be purchased, sold, transported, or shipped in the United
States after June 1, 1994 (16 U.S.C. 1417). All shipments of tuna and
tuna products, except fresh tuna, from all countries must be
accompanied by an appropriately completed FCO (NOAA Form 370). As
proposed to be revised, NOAA Form 370 would serve as an FCO/BSD and
appropriately completing the form would satisfy both FCO requirements
and, if bluefin tuna, BSD requirements.
All fresh tuna and other fresh fish products are presumed to be
captured by dolphin-safe methods and do not require an appropriately
completed FCO (NOAA Form 370) for lawful importation to the United
States. In addition, imports of certain fish and fish products other
than tuna, except fresh fish, as specified at 50 CFR 216.24(e), from
countries having registered vessels that use large-scale driftnets (no
countries so designated at this time) must be accompanied by an
appropriately completed FCO (NOAA Form 370). Although an FCO is not
required for fresh tuna or any other fresh fish products, under the
proposed rule an appropriately completed BSD (NOAA Form 370 as proposed
to be revised) would be required for all bluefin tuna, fresh or frozen,
that enters or exits the United States. Exhibit 1 below summarizes when
a completed FCO or BSD, that is, an appropriately completed NOAA Form
370, as proposed to be revised, is required.
Exhibit 1.--Requirements for the Proposed Revised NOAA Form 370
------------------------------------------------------------------------
Certain other
Product form Bluefin tuna Other tunas fish
------------------------------------------------------------------------
Fresh............ Imports--BSD; Not applicable.. Not applicable.
Exports--BSD.
Frozen........... Imports--BSD/FCO; Imports--FCO.... Imports from
Exports--BSD. countries using
large-scale
driftnets--FCO.
Canned........... No HTS code for Imports--FCO.... Imports from
canned bluefin; countries using
requirements for large-scale
other tunas driftnets--FCO.
apply.
Any non-fresh Exports--FCO..... Exports--FCO.... Not applicable.
form labeled
``Dolphin-Safe''.
------------------------------------------------------------------------
Responsible Parties
For the purposes of the exporter's certification, the exporter
would be considered the person or company that first exported the
shipment from the country where the fish is first landed.
For the purposes of the importer's certification, intermediate
country importer(s) would be the person(s) or company(ies) that
transship(s) the product through an intermediate country(ies). An
intermediate country would be a country from which bluefin tuna or
bluefin tuna products that were previously imported (i.e., not
harvested or landed) by that country are exported to the United States.
An intermediate country for the purposes of these proposed 50 CFR part
285 regulations is distinct from an intermediary nation as defined in
section 3 of the Marine Mammal Protection Act and its implementing
regulations at 50 CFR part 216. Shipments of bluefin tuna or bluefin
tuna products through a nation on a through bill of lading, or in any
other manner that does not enter the products into that country's
customs territory as an import, would not make that country an
intermediate country under this definition.
For the purposes of the importer's certification, the final
destination importer would be the person or company that is the
recipient of the product at its final destination (i.e., country of
consumption).
Pacific Bluefin Tuna Dealer Requirements
Permit Requirements
Dealers purchasing or receiving Pacific bluefin tuna for export
would be required to possess a valid bluefin tuna dealer permit and
comply with all applicable reporting requirements.
Tagging Requirements
The proposed rule would require that identification tags be placed
on all bluefin tuna, except bulk-frozen bluefin, landed by U.S. vessels
and exported from the United States, regardless of ocean area of catch.
Similar to the NMFS Northeast Region program for dealers purchasing
Atlantic bluefin tuna, the Director, Southwest Region, NMFS (Regional
Director) would issue numbered tags to each person receiving a dealer's
permit for exporting Pacific bluefin tuna. Such tags would not be
transferable. A dealer or agent would be required to affix a tag to
each fresh or individually frozen Pacific bluefin tuna purchased, or
received, for export, except bulk-frozen Pacific bluefin tuna,
immediately upon its offloading from a vessel. The tag would be
required to be affixed between the fifth dorsal finlet and the keel.
Individual Pacific bluefin tuna carcasses that are landed in bulk-
frozen form would not be required to be tagged for export. A tagging
requirement for individual fish frozen in bulk would be difficult to
implement and enforce, and would require a drastic change in current
handling practice. However, exported bulk-frozen shipments would be
accompanied by a completed BSD.
A tag affixed to any Pacific bluefin tuna would have to remain on
the tuna until the tuna is cut into portions, which NMFS understands
may occur on occasion. If the tuna or tuna parts subsequently are
packaged for transport for domestic commercial use or for export, the
tag number would be required to be written legibly and indelibly on the
outside of any package or container. Tag numbers would be required to
be recorded on any document accompanying shipment of bluefin tuna for
U.S. commercial use or export.
Reporting Requirements
Pacific bluefin tuna dealers would be exempted from the requirement
at 50 CFR 285.29(a) to record and report bluefin tuna landings via the
Daily Dealer Report Card. However, they would be required to submit
biweekly reports on exports of bluefin tuna to the Regional Director.
The report would have to be postmarked and mailed within 10 days after
the end of each 2-week reporting period in which Pacific bluefin tuna
were exported. The biweekly reporting periods would be defined as the
first day to the fourteenth day of each month and the fifteenth day to
the last day of the month. Each report would have to specify accurately
and completely for each tuna or each shipment of bulk-frozen tuna
exported: Date of landing or import; any tag number (if so tagged); and
weight in pounds (specify if round or dressed).
Dealers would be required to allow an authorized officer, or any
employee of NMFS designated by the Regional Director for this purpose,
to inspect and copy any records of transfers, purchases, or receipts of
Pacific bluefin tuna. Finally, the dealer would be required to maintain
a copy of each biweekly report for a period of 6 months from the date
on which it was submitted to the Regional Director.
Ports of Entry
To facilitate enforcement, the AA may, in the future, designate
ports of entry. If ports of entry are designated, all bluefin tuna
shipments entering the United States would be restricted to the
designated ports of entry, which would be published in the Federal
Register.
Enforcement
Any fresh or frozen bluefin tuna product identified by the HTS item
numbers referred to previously that is unaccompanied by a completed,
approved BSD would be considered unlawful for importation into the
United States. If the AA has designated ports of entry for shipments of
bluefin tuna or bluefin tuna products, any shipment arriving at non-
designated ports of entry would be considered unlawful and the importer
would be subject to penalties under ATCA.
When a bluefin tuna is presented for entry into the customs
territory of the United States and is found to be without a completed,
approved BSD, U.S. Customs would suspend entry authorization, notify
the importer of record of the documentation deficiency, notify NMFS
enforcement agents of the deficiency, and offer the importer of record
the opportunity to cure the defect. If the importer of record cannot
cure the defect within 8 hours (justified by perishable nature of
product), the importer could withdraw the product from U.S. Customs
territory (i.e., re-export within 24 hours under Customs supervision);
place the product into a bonded warehouse; post a bond to release the
product; or abandon the product (Customs takes custody), whereupon the
product would be disposed of under Customs laws and regulations, as
long as that disposition does not result in its introduction into the
United States.
In the event the importer can cure the defect within 8 hours, the
fish would be released for importation and no penalties would be
incurred under ATCA. If, within 10 days of fish being placed into a
bonded warehouse, the Regional Director notifies the District Director
of Customs that complete, approved documentation for that fish has been
received, the fish would be allowed to be entered into the United
States; otherwise, it would be disposed of as allowed under Customs
laws and regulations. If, within 10 days of fish being released under
bond, the Regional Director does not receive complete, approved
documentation for that fish, the importer or consignee would be
notified to redeliver or cause to be redelivered to the District
Director of Customs those fish that were released under bond. In the
event that any such fish is not redelivered within 3 days following the
notification, without impairment in value, liquidated damages would be
assessed in the full amount of the bond given. The importer would
remain liable for any expenses incurred in the storage and/or disposal
of bluefin tuna refused admission under these regulations. In addition,
if the fish is refused entry into the United States or if the importer
abandons the product, the importer would be subject to the civil and
criminal penalties and the forfeiture provisions provided for under
ATCA.
Scenarios
The following are five examples of use of the BSD under the
proposed rule in which shipments of bluefin tuna are imported into and/
or exported from the United States:
1. Exports from a country for which the AA has not waived validation
requirements:
A BSD from a country for which the AA has not waived validation
requirements would have to be validated by a responsible government
official for that country. The export, exporter certification, and
description of shipment (excluding the country-issued tag number)
sections on the BSD would be completed by the exporter. The exporter
then would submit the original of the BSD for validation by the
designated government official. A copy would be submitted to the
domestic fisheries agency and the original BSD would accompany the
shipment into the United States.
If the U.S. importer re-exports the fish, the import section
(naming the United States as the intermediate country) and the
importer's certification section of the BSD would be completed by the
importer. The original BSD, with the importer's entries and
certification, would accompany the shipment to the final destination,
and a completed copy would be submitted to NMFS within 24 hours of the
time of re-export.
If the U.S. importer sells the fish for consumption in the domestic
market, the import section (naming a United States state and city as
the final point of import) and the importer's certification section of
the BSD would be completed by the importer. The original BSD with the
importer's entries and certification would be submitted to NMFS within
24 hours of the time of import.
2. Exports from a country for which the AA has waived validation
requirements:
If the AA has waived validation requirements for a country, a BSD,
except for bulk-frozen shipments, would not have to be validated by a
government official of that country. The export, exporter's
certification, and description of shipment (excluding the country-
issued tag number) sections on the BSD would be completed by the
exporter. A copy would be submitted to the domestic fisheries agency
and the original BSD would accompany the shipment into the United
States.
If the U.S. importer re-exports the fish, the import section
(naming the United States as the intermediate country) and the
importer's certification section of the BSD would be completed by the
importer. The original BSD with the importer's entries and
certification would accompany the shipment to the final destination,
and a completed copy would be submitted to NMFS within 24 hours of the
time of re-export.
If the U.S. importer sells the fish for consumption in the domestic
market, the import section (naming a United States state and city as
the final point of import) and the importer's certification section of
the BSD would be completed by the importer. The original BSD with the
importer's entries and certification would be submitted to NMFS within
24 hours of the time of import.
3. Export of U.S.-caught bluefin tuna:
Since the United States has a tagging requirement for individually
exported Atlantic bluefin tuna, and this proposed rule would implement
such a tagging requirement for Pacific bluefin tuna exported from the
United States, the BSD would not have to be validated by a government
official (except for bulk-frozen shipments, which would not be tagged
and would be accompanied by a validated BSD). The export, exporter
certification, and description of shipment (including the country-coded
tag number) sections on the BSD would be completed by the exporter. The
original BSD with the exporter's entries and certification would
accompany the shipment to the final destination, and a completed copy
would be submitted to NMFS within 24 hours of the time of export.
4. Import of bulk-frozen shipments to the United States:
For a bulk-frozen import, the export, exporter's certification, and
description of shipment (excluding the country-issued tag number)
sections on the BSD would be completed by the foreign exporter. The
exporter would then submit the BSD to a responsible government official
of the country of the flag vessel harvesting the tuna for validation,
even if validation requirements have been otherwise waived for that
country. The exporter would then submit and/or retain copies of the
document as required by the regulations of the country, and the
original document would accompany the shipment into the United States.
If the U.S. importer re-exports the fish, the import section
(naming the United States as the intermediate country) and the
importer's certification section of the BSD would be completed by the
importer. The original BSD with the importer's entries and
certification would accompany the shipment to the final destination,
and a completed copy would be submitted to NMFS within 24 hours of the
time of re-export.
If the U.S. importer sells the fish for consumption in the domestic
market, the import section (naming a U.S. state and city as the final
point of import) and the importer's certification section of the BSD
would be completed by the importer. The original BSD with the
importer's entries and certification would be submitted to NMFS within
24 hours of the time of import.
5. Export of bulk-frozen shipments from the United States:
For a bulk-frozen export, the export, exporter's certification, and
description of shipment (excluding the country-issued tag number)
sections on the BSD would be completed by the U.S. exporter. The
exporter would submit the original to the designated NMFS official for
validation, then submit a copy of the completed document to NMFS (see
ADDRESSES) within 24 hours of the time of export. The original
completed document would accompany the shipment to any intermediate
countries, if applicable, and to the country of final destination.
Classification
This proposed rule is published under the authority of the ATCA, 16
U.S.C. 971 et seq. The AA has preliminarily determined that this
proposed rule is necessary to implement the recommendation of ICCAT and
is necessary for management of the bluefin tuna fisheries.
The General Counsel of the Department of Commerce has certified to
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities because the estimated annual cost to all respondents in
the aggregate would be less than $56,000. Approximately 230 bluefin
dealers would be affected. This proposed rule has been determined to be
not significant for purposes of E.O. 12866.
This proposed rule contains new and revised collection-of-
information requirements subject to review under the Paperwork
Reduction Act. It modifies and renews requirements that were approved
by the Office of Management and Budget (OMB) under OMB control numbers
0648-0040, 0648-0204 and 0648-0239. The public reporting burden for
completing an application for a Federal permit for dealers that export
or re-export Pacific bluefin tuna is estimated at 0.08 hours (5
minutes) per response. The public reporting burden for these dealers
for collection-of-information on dealer reports is estimated at 0.20
hours (12 minutes) per response for the biweekly dealer reports and
affixing tags, and 0.33 hours (20 minutes) per response for all bluefin
tuna dealers for completing a BSD. 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. Send comments regarding these burden
estimates or any other aspects of these collections of information,
including suggestions for reducing the burden, to NMFS (see ADDRESSES)
and the Office of Management and Budget, Paperwork Reduction Project
(0648-0040), Washington, D.C. 20503.
List of Subjects in 50 CFR Part 285
Fisheries, Penalties, Reporting and recordkeeping requirements,
Treaties.
Dated: June 10, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set forth in the preamble, 50 CFR part 285 is
proposed to be amended as follows:
PART 285--ATLANTIC TUNA FISHERIES
1. The authority citation for part 285 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.
2. In Sec. 285.2, definitions of ``bluefin tuna'', ``intermediate
country'', and ``Pacific bluefin tuna'' are added in alphabetical
order; the definition of ``Atlantic bluefin tuna'' is revised; in the
definition of ``owner'', paragraphs (a) through (c) are redesignated
paragraphs (1) through (3), respectively; and in the definition of
``Regional Director'', paragraphs (a) and (b) are redesignated
paragraphs (1) and (2), respectively, and redesignated paragraph (1) is
revised to read as follows:
Sec. 285.2 Definitions.
* * * * *
Atlantic bluefin tuna means the subspecies of bluefin tuna Thunnus
thynnus thynnus that is found in the Atlantic Ocean. Size classes for
Atlantic bluefin tuna are defined in Sec. 285.26.
* * * * *
Bluefin tuna means the fish species Thunnus thynnus that is found
in any ocean area.
* * * * *
Intermediate country means a country from which bluefin tuna or
bluefin tuna products that were previously imported by that nation are
exported to the United States. Shipments of bluefin tuna or bluefin
tuna products through a country on a through bill of lading or in
another manner that does not enter the shipments into that country as
an importation do not make that country an intermediate country under
this definition.
* * * * *
Pacific bluefin tuna means the subspecies of bluefin tuna Thunnus
thynnus orientalis that is found in the Pacific Ocean.
* * * * *
Regional Director means
(1) For the purposes of Atlantic bluefin dealers, the Director,
Northeast Region, National Marine Fisheries Service, One Blackburn
Drive, Gloucester, MA 01930-3799; and for the purposes of Pacific
bluefin dealers, the Director, Southwest Region, National Marine
Fisheries Service, 501 W. Ocean Blvd. Suite 4200, Long Beach, CA 90802-
4213.
* * * * *
3. In Sec. 285.30, the section heading and paragraph (d) are
revised to read as follows:
Sec. 285.30 Tags.
* * * * *
(d) Removal of tags. A tag affixed to any Atlantic bluefin tuna
under paragraph (c)(1) of this section or under Sec. 285.202(a)(5)(ii)
must remain on the tuna until the tuna is cut into portions. If the
tuna or tuna parts subsequently are packaged for transport for domestic
commercial use or for export, the tag number must be written legibly
and indelibly on the outside of any package or container. Tag numbers
must be recorded on any document accompanying shipment of bluefin tuna
for commercial use or export.
4. In Sec. 285.31, paragraph (a)(19) is revised to read as follows:
Sec. 285.31 Prohibitions.
(a) * * *
(19) Remove any tag affixed to an Atlantic bluefin tuna under
Sec. 285.30(c)(1) or under Sec. 285.202(a)(5)(ii), before removal is
allowed under Sec. 285.30(d), or fail to write the tag number on the
shipping package or container as prescribed by that section;
* * * * *
5. New subparts F and G are added to part 285 to read as follows:
Subpart F--Pacific Bluefin Tuna
Sec.
285.150 Dealer permits.
285.151 Dealer recordkeeping and reporting.
285.152 Tags.
285.153 Prohibitions.
Subpart G--Bluefin Tuna Statistical Documentation
285.200 Species subject to statistical documentation requirements.
285.201 Documentation requirements.
285.202 Contents of documentation.
285.203 Waiver of validation requirements.
285.204 Enforcement.
285.205 Ports of entry.
285.206 Prohibitions.
Subpart F--Pacific Bluefin Tuna
Sec. 285.150 Dealer permits.
(a) General. A dealer purchasing, or receiving, Pacific bluefin
tuna for export must have a valid permit issued under this section.
(b) Application. A dealer must apply for a permit in writing on an
appropriate form obtained from the Regional Director. The application
must be signed by the dealer and be submitted to the Regional Director
at least 30 days before the date upon which the dealer desires to have
the permit made effective. The application must contain the following
information: Company name, principal place of business, owner or
owners' names, applicant's name (if different from owner or owners) and
mailing address and telephone number, and any other information
required by the Regional Director.
(c) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the Regional Director will issue a permit within 30 days of
receipt of a completed application.
(2) The Regional Director will notify the applicant of any
deficiency in the application. If the applicant fails to correct the
deficiency within 15 days following the date of notification, the
application will be considered abandoned.
(d) Duration. Any permit issued under this section is valid until
December 31 of the year for which it is issued, unless suspended or
revoked.
(e) Alteration. Any permit that is substantially altered, erased,
or mutilated is invalid.
(f) Replacement. The Regional Director may issue replacement
permits. An application for a replacement permit is not considered a
new application.
(g) Transfer. A permit issued under this section is not
transferable or assignable; it is valid only for the dealer to whom it
is issued.
(h) Inspection. The dealer must keep the permit issued under this
section at his/her principal place of business. The permit must be
displayed for inspection upon request of any authorized officer, or any
employee of NMFS designated by the Regional Director for such purpose.
(i) Sanctions. The Assistant Administrator may suspend, revoke,
modify, or deny a permit issued or sought under this section.
Procedures governing permit sanctions and denials are found at subpart
D of 15 CFR part 904.
(j) Fees. The Regional Director may charge a fee to recover the
administrative expenses of permit issuance. The amount of the fee is
calculated, at least annually, in accordance with the procedures of the
NOAA Finance Handbook for determining administrative costs of each
special product or service. The fee may not exceed such costs and is
specified on each application form. The appropriate fee must accompany
each application. Failure to pay the fee will preclude issuance of the
permit. Payment by a commercial instrument later determined to be
insufficiently funded shall invalidate any permit.
(k) Change in application information. Within 15 days after any
change in the information contained in an application submitted under
this section, the dealer issued a permit must report the change to the
Regional Director in writing. The permit is void if any change in
information is not reported within 15 days.
Sec. 285.151 Dealer recordkeeping and reporting.
Any person issued a dealer permit under Sec. 285.150:
(a) Must submit to the Regional Director a biweekly report on
bluefin exports on forms supplied by NMFS.
(1) The report required by this paragraph (a) must be postmarked
and mailed within 10 days after the end of each 2-week reporting period
in which Pacific bluefin tuna were exported. The biweekly reporting
periods are defined as the first day to the fourteenth day of each
month and the fifteenth day to the last day of the month.
(2) Each report must specify accurately and completely for each
tuna or each shipment of bulk-frozen tuna exported: Date of landing or
import; any tag number (if so tagged); weight in pounds (specify if
round or dressed); and any other information required by the Regional
Director. At the top of each form, the company's name, license number,
and the name of the person filling out the report must be specified. In
addition, the beginning and ending dates of the 2-week reporting period
must be specified by the dealer and noted at the top of the form.
(b) Must allow an authorized officer, or any employee of NMFS
designated by the Regional Director for this purpose, to inspect and
copy any records of transfers, purchases, or receipts of Pacific
bluefin tuna.
(c) Must retain at his/her place of business a copy of each
biweekly report for a period of 6 months from the date on which it was
submitted to the Regional Director.
Sec. 285.152 Tags.
(a) Issuance of tags. The Regional Director will issue numbered
tags to each person receiving a dealer's permit under Sec. 285.150.
(b) Transfer of tags. Tags issued under this section are not
transferable.
(c) Affixing tags. A dealer or agent must affix a tag to each fresh
or individually frozen Pacific bluefin tuna purchased or received for
export, except bulk-frozen Pacific bluefin tuna purchased or received
for export, prior to its packaging for export. The tag must be affixed
between the fifth dorsal finlet and the keel.
(d) Removal of tags. A tag affixed to any Pacific bluefin tuna
under Sec. 285.152(c) or under Sec. 285.201(a)(5)(ii) must remain on
the tuna until the tuna is cut into portions. If the tuna or tuna parts
subsequently are packaged for transport for domestic commercial use or
for export, the tag number must be written legibly and indelibly on the
outside of any package or container. Tag numbers must be recorded on
any document accompanying shipment of bluefin tuna for commercial use
or export.
Sec. 285.153 Prohibitions.
It is unlawful for any person or vessel subject to the jurisdiction
of the United States to:
(a) Purchase or receive Pacific bluefin tuna for export without a
valid dealer permit issued under Sec. 285.100.
(b) Fail to affix an individually numbered bluefin tuna
identification tag as specified in Sec. 285.152.
(c) Remove any tag affixed to a Pacific bluefin tuna under
Sec. 285.152(c) or under Sec. 285.201(a)(5)(ii), before removal is
allowed under Sec. 285.152(d), or fail to write the tag number on the
shipping package or container as specified in Sec. 285.152(d).
(d) Falsify or fail to make, keep, maintain, or submit any reports
or other record required by this subpart.
(e) Refuse to allow an authorized officer or employee of NMFS
designated by the Regional Director to make inspections for the purpose
of checking any records relating to the catching, harvesting, landing,
purchase, or sale of any Pacific bluefin tuna required of this subpart.
(f) Make any false statement, oral or written, to an authorized
officer or employee of NMFS designated by the Regional Director to make
inspections concerning the catching, harvesting, landing, purchase,
sale, or transfer of any Pacific bluefin tuna.
Subpart G--Bluefin Tuna Statistical Documentation
Sec. 285.200 Species subject to statistical documentation
requirements.
Imports into the United States and exports or re-exports from the
United States of bluefin tuna or bluefin tuna products identified by
the following item numbers from the Harmonized Tariff Schedule are
subject to the documentation requirements of Sec. 285.201:
(a) Fresh or chilled bluefin tuna, excluding fillets and other fish
meat, No. 0302.39.00.20.
(b) Frozen bluefin tuna, excluding fillets, No. 0303.49.00.20.
Sec. 285.201 Documentation requirements.
(a) Bluefin imports. (1) Dealers importing bluefin tuna into the
United States beginning June 1, 1994, must obtain from the shipment of
tuna upon its receipt a completed approved Bluefin Tuna Statistical
Document with the information and exporter's certification specified in
Sec. 285.202(a)(1) through (7). Such information must be validated as
specified in Sec. 285.202(a)(8) by a responsible government official of
the country whose flag vessel caught the tuna (regardless of where the
fish are first landed), unless the Assistant Administrator has waived
validation requirements for the country pursuant to Sec. 285.203 and
such shipment is not frozen in bulk but is comprised of fresh or
individually frozen bluefin tuna.
(2) Bluefin tuna imported into the United States from a country
requiring a tag on all such tuna available for sale must be accompanied
by the appropriate tag issued by that country, and said tag must remain
on any tuna until it reaches its final point of import. If the point of
final import is the United States, the tag must remain on the tuna
until it is cut into portions. If the tuna portions are subsequently
packaged for domestic commercial use or export, the tag number and the
issuing country must be written legibly and indelibly on the outside of
the package.
(3) Dealers selling bluefin tuna that was previously imported into
the United States for domestic commercial use in the United States must
provide on the Bluefin Tuna Statistical Document the correct
information and importer's certification specified in
Sec. 285.202(a)(4) and (9). The original of the completed Bluefin Tuna
Statistical Document must be submitted to the Regional Director within
24 hours of the time the tuna was imported into the United States.
(b) Bluefin exports. (1) Dealers exporting bluefin tuna that was
harvested by U.S. vessels and first landed in the United States must
provide on the Bluefin Tuna Statistical Document the correct
information and exporter certification specified in Sec. 285.202(a)(1)
through (7). If such tuna is frozen in bulk (not individually tagged
pursuant to Sec. 285.152), such information must be validated as
specified in Sec. 285.202(a)(8) by an official of the U.S. Government
authorized to validate Bluefin Tuna Statistical Documents. A list of
such officials may be obtained by contacting the Office of Fisheries
Conservation and Management, NMFS, Silver Spring, MD (301-713-2347), or
the nearest NMFS Enforcement Office. NMFS Enforcement Offices are
located at: Portland, ME (207-780-3241); Otis Air Force Base, MA (508-
563-5721); Brielle, NJ (908-528-3315); Atlantic Beach, NC (919-247-
4549); Brunswick, GA (912-265-0108); Miami, FL (305-361-4224); St.
Thomas, U.S. Virgin Islands (809-774-5226); San Juan, Puerto Rico (809-
782-8686); St. Petersburg, FL (813-893-3145); St. Joseph, FL (904-227-
1879); Corpus Christi, TX (512-888-3362); Juneau, AK (907-586-7225);
Anchorage, AK (907-271-5006); Dutch Harbor, AK (907-581-2061); Seattle,
WA (206-526-6133); and Los Angeles, CA (310-980-4050). The original of
the completed Bluefin Tuna Statistical Document must accompany the
shipment of tuna to its export destination. A copy of the completed
Bluefin Tuna Statistical Document must be submitted to the Regional
Director within 24 hours of the time of export.
(2) U.S. dealers re-exporting bluefin tuna that was previously
imported into the United States must provide on the Bluefin Tuna
Statistical Document the correct information and intermediate
importer's certification specified in Sec. 285.202(a)(9). The original
of the completed Bluefin Tuna Statistical Document must accompany the
shipment of bluefin tuna to its re-export destination. A copy of the
completed Bluefin Tuna Statistical Document must be submitted to the
Regional Director within 24 hours of the time the tuna was re-exported
from the United States.
(c) Dealers must retain at their place of business a copy of each
Bluefin Tuna Statistical Document required to be submitted to the
Regional Director pursuant to this section for a period of 6 months
from the date on which it was submitted to the Regional Director.
Sec. 285.202 Contents of documentation.
(a) A Bluefin Tuna Statistical Document, to be deemed complete,
must:
(1) Have a document number assigned by the country issuing the
document;
(2) State the name of the country issuing the document, which is
the country whose flag vessel harvested the bluefin tuna, regardless of
where the tuna is first landed;
(3) State the exporter and point of export, which is the city,
state or province, and country from which the bluefin tuna is first
exported;
(4) State the importer and point of import, which is the city,
state or province, and country into which the bluefin tuna is first
imported;
(5) State the following specified information about the shipment:
(i) U.S. Tariff Schedule Number and species description;
(ii) The identifying tag number, if landed by vessels from
countries with tagging programs;
(iii) The product type (fresh or frozen) and product form (round,
dressed, fillet);
(iv) The weight of each fish (in kilograms for same product form
previously specified);
(v) The ocean area where caught (by region, e.g., Western
Atlantic);
(vi) The method of fishing (purse seine, trap, rod & reel, etc.);
(vii) The flag state of the vessel that harvested the bluefin;
(viii) The fishing trip dates; and
(ix) The name of the vessel that caught the fish;
(6) If frozen, have the appropriate box checked to indicate that
the bluefin tuna was captured in a manner that is dolphin-safe as
defined under 50 CFR part 247;
(7) State the name and license number of, and be signed and dated
in the exporter's certification block by, the exporter;
(8) If applicable, state the name and title of, and be signed and
dated in the government's validation block by, the responsible
government official of the country whose flag vessel caught the tuna
(regardless of where the tuna are first landed), with official
government seal affixed, thus validating the information on the Bluefin
Tuna Statistical Document; and
(9) As applicable, state the name(s) and address(es), including the
name of the city and state or province of import, and the name(s) of
the intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by, each intermediate and the final
importer.
(b) An approved Bluefin Tuna Statistical Document (NOAA Form 370)
may be obtained from the Regional Director to accompany exports of
bluefin tuna from the United States. Bluefin tuna dealers in countries
that do not provide an approved Bluefin Tuna Statistical Document to
exporters may obtain an approved Bluefin Tuna Statistical Document
(NOAA Form 370) from the Regional Director to accompany exports to the
United States.
(c) A country exporting bluefin tuna to the United States may use
the approved Bluefin Tuna Statistical Document (NOAA Form 370)
obtainable from the Regional Director or its own document, if that
country submits a copy to the Assistant Administrator and the Assistant
Administrator determines that the document meets the information
requirements of this section. In such case, the Assistant Administrator
will publish a finding to that effect and an approval of the document
in the Federal Register. Effective upon the date of publication of such
finding in the Federal Register, shipments of bluefin tuna or bluefin
tuna products offered for importation from said country may be
accompanied by either that country's approved Bluefin Tuna Statistical
Document or by the Bluefin Tuna Statistical Document provided to the
exporter by the Regional Director.
Sec. 285.203 Waiver of validation requirements.
(a) The approved Bluefin Tuna Statistical Document accompanying any
import of bluefin tuna that is not frozen in bulk from any country,
whether or not that country is a member of ICCAT, is not required to be
validated by a government official from that country if the Assistant
Administrator waives the validation requirement for that country. Such
a waiver does not apply to shipments of tuna frozen in bulk.
(b) The Assistant Administrator shall publish such finding and
waiver in the Federal Register upon finding that:
(1) All fresh or individually frozen bluefin tuna available for
sale from a country are tagged, or included in an ICCAT-accepted
logbook or ICCAT-accepted information retrieval system;
(2) All information relating to the tag, the ICCAT-accepted
logbook, or the ICCAT-accepted information retrieval system is compiled
by the government of that country and includes the name of the country
issuing the document, the name of the exporter and the importer, the
name of the harvesting vessel and the area of harvest, the gear
utilized, the type of product and total weight, and the point of
export; and
(3) The compiled information is provided in a timely fashion to
ICCAT.
Sec. 285.204 Enforcement.
(a) Bluefin tuna refused entry. If a shipment containing bluefin
tuna or bluefin tuna products is denied entry under the provisions of
Sec. 285.200, the District Director of Customs shall refuse to release
the fish for entry into the United States and shall issue a notice of
such refusal to the importer or consignee, and to NMFS Enforcement.
(b) Disposition of bluefin tuna not accompanied by required
documentation. (1) Bluefin tuna that is offered for importation without
the required Bluefin Tuna Statistical Document must be either:
(i) Exported under Customs supervision within 24 hours;
(ii) Released under bond as provided for in paragraph (c) of this
section;
(iii) Placed in a bonded warehouse; or
(iv) Disposed of under Customs laws and regulations, as long as
that disposition does not result in its introduction into the United
States.
(2) The importer remains liable for any expenses incurred in the
storage and/or disposal of bluefin tuna refused admission under these
regulations. If, within 24 hours of fish being placed in a bonded
warehouse, the Regional Director notifies the District Director of
Customs that approved documentation for that fish has been received,
the fish will be allowed to be entered into the United States;
otherwise it will be disposed of as set out in paragraph (b)(1)(i) or
paragraph (b)(1)(iv) of this section.
(c) Release under bond. (1) Bluefin tuna or bluefin tuna products
not accompanied or covered by the required documentation or
certification when offered for entry may be entered into the United
States if the importer or consignee gives a bond on Customs Form 7551,
7553, or 7595 for the production of the required documentation or
certification. The bond shall be in the amount required under 19 CFR
25.4(a).
(2) Within 24 hours after such Customs entry, or such additional
period as the District Director of Customs may allow for good cause
shown, the importer or consignee shall deliver an original or copy, as
required, of the Bluefin Tuna Statistical Document to the Regional
Director, who will notify the District Director of Customs that the
fish is covered by an approved Bluefin Tuna Statistical Document. If
such notification is not delivered to the District Director of Customs
for the port of entry of such fish within 24 hours of the time of
Customs entry or such additional period as may have been allowed by the
District Director of Customs for good cause shown, the importer or
consignee shall, by a specified date, redeliver or cause to be
redelivered to the District Director of Customs those fish that were
released in accordance with this paragraph (c).
(3) In the event that any such fish is not redelivered without
impairment in value by the date specified in paragraph (c)(2) of this
section, liquidated damages shall be assessed in the full amount of
bond given on Form 7551. When the transaction has been charged against
a bond given on Form 7553 or 7595, liquidated damages shall be assessed
in the amount that would have been demanded under this paragraph (c)(3)
under a bond given on Form 7551.
(4) Fish released for entry into the United States through use of
the bonding procedure provided in this paragraph (c) shall be subject
to the civil and criminal penalties and the forfeiture provisions
provided for under the Act if the required Bluefin Tuna Statistical
Document is not delivered to the Regional Director within 24 hours of
the time of Customs entry, or such additional period as may have been
allowed by the District Director of Customs for good cause shown.
(5) Fish refused entry into the United States shall also be subject
to the civil and criminal penalties and the forfeiture provisions
provided for under the Act.
Sec. 285.205 Ports of entry.
The Assistant Administrator shall monitor the importation of
bluefin tuna into the United States. If the Assistant Administrator
determines that the diversity of handling practices at certain ports at
which bluefin tuna is being imported into the United States allow for
circumvention of the Bluefin Tuna Statistical Document requirement, he/
she may designate, after consultation with the U.S. Customs Service,
those ports at which Pacific or Atlantic bluefin tuna may be imported
into the United States. The Assistant Administrator shall announce in
the Federal Register the names of ports so designated.
Sec. 285.206 Prohibitions.
It is unlawful for any person to do any of the following:
(a) Import or attempt to import any bluefin tuna into the United
States without an accompanying approved Bluefin Tuna Statistical
Document correctly completed with the appropriate certification.
(b) Import any bluefin tuna into the United States from a country
that requires all such tuna to be tagged, without said tag accompanying
the bluefin tuna.
(c) Remove a tag from any bluefin tuna imported into the United
States accompanied by a tag, prior to its being cut into portions for a
destination in the United States or for export.
(d) Fail to write legibly and indelibly, on the outside of any
package containing a part or parts of a bluefin tuna that was imported
into the United States accompanied by a tag, the tag number and the
issuing country.
(e) Export or re-export from the United States any bluefin tuna
without an accompanying approved Bluefin Tuna Statistical Document
correctly completed with the appropriate certification.
(f) Fail to provide in a timely manner any copies of Bluefin Tuna
Statistical Documents required to be submitted to the Regional Director
pursuant to Sec. 285.201.
(g) Falsify or modify any Bluefin Tuna Statistical Document
required by this subpart.
(h) Fail to maintain any copies of a Bluefin Tuna Statistical
Document that is required by Sec. 285.202.
(i) Import any Pacific or Atlantic bluefin tuna at any port other
than a port designated pursuant to Sec. 285.205.
[FR Doc. 94-14664 Filed 6-13-94; 4:43 pm]
BILLING CODE 3510-22-F-P