[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Proposed Rules]
[Pages 54661-54665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27305]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 630
[Docket No. 970829218-8244-02; I.D. 080597E]
RIN 0648-AK39
Atlantic Swordfish Fisheries; Dealer Permitting and Import
Documentation Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to amend the regulations governing the Atlantic
swordfish fishery to prohibit the import into the United States of
Atlantic swordfish or Atlantic swordfish pieces, weighing less than 33
pounds dressed weight (lb dw) (15 kg) unless documented as coming from
an Atlantic swordfish weighing 33 lb dw or greater; to require dealer
permitting and reporting for importation of swordfish from any source;
and to implement a certificate of eligibility (COE) program for all
swordfish imports.
These measures are necessary to implement a 1995 recommendation of
the International Commission for the Conservation of Atlantic Tunas
(ICCAT) with respect to controlling the harvest of undersized Atlantic
swordfish and to facilitate the collection of information relating to
the trade in Atlantic swordfish which may hinder conservation efforts
by the United States and ICCAT.
DATES: Comments must be submitted on or before December 7, 1998. See
SUPPLEMENTARY INFORMATION for times and locations of public hearings.
ADDRESSES: Comments on the proposed rule and on the proposed
information collections should be submitted to Rebecca Lent, Highly
Migratory Species Management Division, Office of Sustainable Fisheries,
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Copies of the
Environmental Assessment / Regulatory Impact Review (EA/RIR) supporting
this action are available from Steve Meyers or Jill Stevenson at
(301)713-2347 or by writing to the preceding address. See SUPPLEMENTARY
INFORMATION for the schedule and location of public hearings. Comments
regarding the burden-hour estimates or other aspects of the collection-
of-information requirements contained in this proposed rule should be
sent to Rebecca Lent and to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, DC 20503
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Steve Meyers or Jill Stevenson, 301-
713-2347; fax: 301-713-1917.
SUPPLEMENTARY INFORMATION: The U.S. Atlantic swordfish fishery is
managed under the Fishery Management Plan for Atlantic Swordfish and
regulations at 50 CFR part 630 issued under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq, and the Atlantic Tunas Convention
Act (ATCA), 16 U.S.C. 971 et seq. Regulations issued under the
authority the of ATCA carry out the recommendations of the
International Commission for the Conservation of Atlantic Tunas
(ICCAT).
The fishable biomass of the North Atlantic swordfish stock is
estimated to have declined 68 percent between 1963 and 1996. The South
Atlantic swordfish stock has been under increased fishing
[[Page 54662]]
pressure and the biomass of that stock may be declining as well. ICCAT
has adopted measures, including catch quotas and minimum size limits,
to reduce fishing mortality for both the North and South Atlantic
swordfish stocks.
A 1991 ICCAT recommendation established a minimum size for Atlantic
swordfish of 79 cm measured from the cleithrum to the keel (125 cm
lower jaw fork length (LJFL)) with a discretionary 15-percent per-trip
(by number) tolerance for undersized fish. However, even with the 15-
percent tolerance, U.S. fishermen continued to catch and discard many
undersized fish.
ICCAT recognized that the 15-percent tolerance made it difficult
for some Contracting Parties to ensure the effectiveness of the minimum
size as a conservation measure to decrease the fishing mortality of
swordfish. Because of this ICCAT provided Contracting Parties with the
authority to take other appropriate steps within their national
jurisdictions to protect small swordfish.
Given these concerns and observations, ICCAT, consistent with
advice from the Standing Committee on Research and Statistics that, for
decreasing fishing mortality, a lower minimum size prohibition with no
tolerance for smaller swordfish would be the functional equivalent of
the current minimum size prohibition with a tolerance.
In 1996, under the authority of the ATCA, the United States
implemented the lower minimum size limit alternative in order to
facilitate domestic enforcement and reduce discards of small swordfish.
Section 971e(a) of the ATCA prohibits the purchase or possession of any
regulated species taken contrary to recommendations of ICCAT that have
been adopted as U.S. regulations, regardless of the citizenship of the
person or vessel which took the fish. Given the current regulations
applicable to U.S. vessels operating in the Atlantic, no Atlantic
swordfish below the minimum size should ever come into possession of a
U.S. dealer by way of a U.S. vessel fishing in the Atlantic Ocean.
However, because other ICCAT contracting parties have maintained the
higher minimum size for Atlantic swordfish with a 15-percent tolerance
limit by trip, swordfish smaller than the U.S. minimum size could be
taken by vessels of these countries, in accordance with the ICCAT
recommendation, and lawfully imported by U.S. dealers, an occurrence
which complicates enforcement of the alternative minimum size for U.S.
harvested Atlantic swordfish.
NMFS has been concerned that sales of small swordfish in the United
States diminish the effectiveness of domestic conservation efforts due
to the inability to differentiate in the marketplace between small
imported swordfish (currently legal) and small domestic Atlantic
swordfish (illegal). Therefore, consistent with the ICCAT
recommendation, NMFS has determined it is necessary to prevent the sale
in the United States of undersized Atlantic swordfish harvested by non-
U.S. vessels and imported to the United States. Import restrictions,
coupled with reporting requirements for swordfish importers, would
facilitate enforcement of the domestic minimum size for Atlantic
swordfish and provide NMFS with additional information on swordfish
harvests from all ocean areas. Such information would improve stock
assessments and estimates of fishing mortality.
NMFS published an Advanced Notice of Proposed Rulemaking (ANPR) (62
FR 47412, September 9, 1997) to request comments on the issue of
monitoring and possibly regulating swordfish imports. The intent of the
ICCAT recommendation was to reduce fishing mortality for Atlantic
swordfish. However, given the considerable volume of swordfish of
Pacific Ocean origin harvested by U.S. vessels and imported swordfish
from all ocean areas that is entered into commerce, NMFS considered
whether it was necessary to prohibit the sale in the United States of
all swordfish less than the ICCAT alternative minimum size, regardless
of origin, in order to enhance enforcement of the U.S. regulations
implementing the ICCAT alternative minimum size recommendation for
Atlantic swordfish.
Complicating factors surrounding this issue were identified in the
ANPR and include: (1) the high volume of swordfish imported into the
United States from numerous sources; (2) domestic landings and imports
of Pacific swordfish; (3) the uncertain impact on foreign exporters and
processors of regulations that prohibit the possession of small
swordfish or swordfish parts in the United States, and (4) the
difficulty of distinguishing between Pacific and Atlantic swordfish.
Currently, Atlantic swordfish or swordfish pieces less than the
alternative minimum size can be legally imported to the United States;
however, it is not known what proportion of international landings
comprises swordfish less than the minimum size. Further, swordfish
steaks and fillets are frequently imported, and the size of the
original swordfish and the ocean area of catch cannot always be readily
determined from the processed product (e.g., steaks, fillets).
Information is available from trade organizations concerning the
businesses that may be impacted by regulating the swordfish in the
United States; however, these businesses evolve rapidly, making it
difficult to track their involvement in the swordfish industry.
Comments received in response to the ANPR generally supported
establishment of a permitting and reporting system for importers to
track swordfish shipments more effectively and to collect information
concerning the weight, value, quality, or product form of the
swordfish. Some commenters opposed permitting because of the reporting
burden to importers. However, NMFS believes that the information that
would be collected is necessary for determining the universe of
importers and their relative importance in the domestic swordfish
market.
Many commenters suggested implementing a COE program for swordfish.
A COE program would facilitate the tracking of international swordfish
shipments and the enforcement of ICCAT minimum size requirements and
would provide information on international swordfish harvesting and
trade activities. The ICCAT Advisory Committee Swordfish Species
Working Group recommended at its Spring 1998 meeting that NMFS
establish a documentation system to track swordfish shipments by flag
of harvesting vessel and by exporting nation. This group indicated,
however, that the monitoring and administrative burden should be on
exporting nations, especially non-Contracting Parties.
Several commenters suggested that other conservation measures are
necessary to conserve the overfished swordfish stock. These comments
are beyond the scope of the issues raised in the ANPR. NMFS is
considering, with the advice of the Highly Migratory Species Advisory
Panel, a variety of swordfish rebuilding options, including time/area
closures and gear modifications, to reduce bycatch and bycatch
mortality of small Atlantic swordfish in the U.S. fishery.
Some commenters suggested that restricting ports of entry for
imported swordfish should be a low priority due to food safety concerns
and increased burden on dealers. At this time, NMFS cannot quantify the
magnitude of secondary impacts (e.g., increased transportation costs
and, therefore, increased retail prices) that might result from
restricting points of entry. Further evaluation, based on comments
received on these proposed measures, may
[[Page 54663]]
identify whether there is justification for restricted points of entry.
Another commenter suggested implementation of a voluntary program in
which swordfish dealers pledge not to import swordfish weighing less
than the minimum size. A voluntary program, however, would not meet the
requirements of ATCA for NMFS to implement and enforce the ICCAT
recommendation.
After considering the issues raised, NMFS proposes to prohibit the
import of Atlantic swordfish or Atlantic swordfish pieces weighing less
than 33 lb dw (15 kg) into the United States, unless documented as
being derived from an Atlantic swordfish weighing at least 33 lb dw (15
kg). Enforcement of this measure would occur up to and including the
point of first transaction in the United States, which the rule would
define as
the time and place at which the swordfish is filleted, cut into
steaks, or processed in any way that physically alters it after being
landed in or imported into the United States. All imported shipments
containing swordfish would be required to be accompanied by a COE
validated by a government official of the exporting nation attesting to
the recorded information regarding the flag state of the harvesting
vessel and the ocean area of catch. If the shipment contains Atlantic
swordfish pieces weighing less than 33 lb (15 kg), a COE indicating
that the fish pieces were derived from an Atlantic swordfish weighing
greater than 33 lb dw (15 kg) would be required. Swordfish import
shipments would have to be accompanied by a COE up to the point of
first transaction.
This COE program would enhance collection and verification of data
on the volume of swordfish landings from the Atlantic ocean, including
country of origin, and to some extent, would improve knowledge of
individual fish sizes of imports. As with the ICCAT bluefin tuna
Statistical Document Program, such tracking and monitoring programs
could enhance the scientific process of ICCAT by improving data on
total fishing mortality, as required under the ATCA. As a major
importer and consumer of Atlantic swordfish, the United States could
play a significant role in monitoring total mortality by fully
documenting the ocean area of origin and the size of the swordfish
imported into this country.
This regulation is designed to elicit information basically
comparable to that currently obtained from domestic fishermen and
processors with respect to U.S. vessel landings of swordfish. Current
vessel and dealer permitting and reporting requirements are sufficient
to document the source and size of swordfish caught by U.S.-flagged
vessels. These reporting systems are enhanced by at-sea observer
programs, port inspections, and enforcement. Therefore, this rule would
not require that domestic swordfish shipments be accompanied by a COE.
NMFS also proposes to extend dealer permitting and reporting
requirements to apply to importers of all swordfish, regardless of
ocean area of catch. The dealer report on imported swordfish would be
required to contain the following information for each shipment
received during the reporting period: dealer number and company name,
weight of total swordfish shipment, weight by product form, and price
per pound by product form. The report would also be required to
indicate, for each shipment of swordfish, the entry number from Customs
form 7501 to enable NMFS to cross-check the COE, dealer reports, and
Customs data. Dealers would be responsible for maintaining copies of
dealer reports and records of swordfish shipments for 2 years from the
date of submission to NMFS.
Request for Comments
NMFS is seeking comment on these proposed measures, particularly on
the impacts of these proposed measures on small businesses and on the
structure and practices of the domestic swordfish market. Public
hearings will be scheduled during the comment period. The dates, times
and locations of these hearings will be published in the Federal
Register at a later date.
Classification
This proposed rule is published under the authority of the ATCA.
The Assistant Administrator for Fisheries, NOAA, has preliminarily
determined that the regulations contained in this rule are necessary to
implement the recommendations of ICCAT, to gather important trade data
and for the domestic management of the Atlantic swordfish fishery.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that the proposed rule would not
have a significant economic impact on a substantial number of small
entities as follows:
The proposed rule would prohibit the import into the United States
of Atlantic swordfish or Atlantic swordfish pieces, weighing less than
33 lb dressed weight (dw) (15 kg) unless documented as coming from an
Atlantic swordfish weighing 33 lb dw (15 kg) or greater, would require
swordfish importers to obtain a dealer permit (annual fee of $40) and
to submit importation reports, and would require that all imports of
swordfish be accompanied by a certificate of eligibility. The principal
burden would be the time required to keep records, obtain
certifications and submit reports. Approximately 1,200 importers and
exporters would be affected. The required information is readily
available to exporters and importers. Therefore no incremental
investments in information processing technologies would be needed.
Accordingly, these proposed actions, considered separately or in
aggregate, are not expected to have a significant economic impact.
Thus, a regulatory flexibility analysis is not required for these
actions.
Accordingly, an initial regulatory flexibility analysis was not
prepared. The Regulatory Impact Review further discusses the economic
effects of the proposed rule.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number.
This proposed rule would implement a new collection and restates or
revises existing collection-of-information requirements subject to the
PRA. Atlantic swordfish dealer permits, required under 50 CFR 630.4(a),
are approved under OMB Control Number 0648-0205 and are estimated at 5
minutes per permit action. Dealer reporting and recordkeeping
requirements for Atlantic swordfish dealers under Sec. 630.5(b) are
currently approved under OMB Control Number 0648-0013 and are estimated
at 15 minutes per dealer report and 3 minutes for a negative report. It
is proposed that these dealer permitting and reporting requirements be
extended to include importers of swordfish. NMFS estimates that
approximately 225 importers would be affected.
Additionally, NMFS proposes a new information collection concerning
the COE program for swordfish imports. NMFS estimates 6,500 government-
validated COEs would enter the United States in a given year based on
1997 and 1998 imports to date. The burden is estimated at one hour per
COE.
[[Page 54664]]
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimates, 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.
List of Subjects in 50 CFR Part 630
Fisheries, Fishing, Management Unit Areas, Reporting and
recordkeeping requirements, Treaties.
Dated: October 6, 1998.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 630 is
proposed to be amended as follows:
PART 630--ATLANTIC SWORDFISH FISHERY
1. The authority citation for part 630 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 971 et seq.
2. In Sec. 630.2, definitions for ``First transaction in the United
States'' and ``Import'' are added in alphabetical order and the
definition of ``Swordfish'' is revised to read as follows:
Sec. 630.2 Definitions.
* * * * *
First transaction in the United States means the time and place at
which the swordfish, is filleted, cut into steaks, or processed in any
way that physically alters it after being landed in or imported into
the United States.
* * * * *
Import, for the purpose of the regulation in this part, means the
release of swordfish from a nation's Customs' custody and entry into
the territory of that nation. Swordfish are imported into the United
States upon release from U.S. Customs' custody pursuant to filing an
entry summary document (Customs Form 7501) or any authorized electronic
medium. Swordfish destined from one foreign country to another, which
transits the United States and for which an entry summary is not
required to be filed, are not considered an import under this
definition, so long at they remain in customs bond.
* * * * *
Swordfish means a fish of the species Xiphias gladius, occurring
in, or harvested from, any ocean area, or any part or product thereof.
* * * * *
3. In Sec. 630.4, paragraph (a)(2) is revised to read as follows:
Sec. 630.4 Permits and Fees.
(a) * * *
(2) Annual dealer permit. A dealer in the United States who first
receives swordfish harvested from the north or south Atlantic swordfish
stocks, or who imports swordfish harvested from any ocean area, must
have been issued a valid dealer permit under paragraph (e) of this
section.
* * * * *
4. In Sec. 630.5, paragraphs (b)(1)(ii) and (iii) are revised to
read as follows:
Sec. 630.5 Recordkeeping and reporting.
* * * * *
(b) * * *
(1) * * *
(ii) For imported swordfish, the dates of import, total weight of
the shipments, entry numbers from Customs Form 7501, weight and price
per pound or kilogram by product form (round, dressed, steaks, fillets
or loins), condition (fresh or frozen), and the information contained
on the certificate of eligibility that accompanied the shipment(s) as
specified at Sec. 630.42;
(iii) For swordfish landed by vessels of the United States, the
dates of receipt and the names and official numbers of fishing vessels
from which swordfish were received; and
* * * * *
5. In Sec. 630.7, paragraphs (d) and (g) are revised to read as
follows:
Sec. 630.7 Prohibitions.
* * * * *
(d) As a dealer, purchase, barter, or trade or attempt to purchase,
barter, or trade a swordfish from the north or south Atlantic stock, or
to import swordfish harvested from any ocean area into the United
States without a valid dealer permit, as specified in Secs. 630.4(a)(2)
and 630.21(c).
* * * * *
(g) Falsify or fail to maintain or submit information required to
be maintained or submitted, as specified in Sec. 630.5 (a), (b), and
(c).
* * * * *
6. Existing Sec. 630.26 is redesignated as Sec. 630.27 and a new
Sec. 630.26 is added to read as follows:
Sec. 630.26 Compliance monitoring.
Compliance with the minimum size requirements specified at
Sec. 630.23(a) and Sec. 630.41 will be determined from the point at
which the swordfish is either landed in or imported into the United
States up to and including the point of first transaction in the United
States as follows:
(a) A swordfish or part thereof weighing less than 33 lb (15 kg)
dressed weight will be deemed to be harvested by a vessel of the United
States and in violation of the minimum size requirement specified at
Sec. 630.23(a) unless such swordfish or part thereof is accompanied by
a certificate of eligibility attesting that the swordfish was imported.
(b) An imported swordfish or part thereof weighing less than 33 lb
(15 kg) dressed weight that is imported into the United States will be
deemed in violation of the minimum size requirement specified at
Sec. 630.41 unless it is accompanied by a certificate of eligibility
attesting either that the swordfish was harvested from an ocean area
other than the Atlantic or that the fish part was derived from a
swordfish harvested from the Atlantic that weighed at least 33 lb (15
kg) dressed weight at harvest.
7. Section 630.40 is revised to read as follows:
Sec. 630.40 Applicability.
The policies and procedures contained in 50 CFR 285.80 through
285.86, which implement the provisions of section (6)(c) of the
Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., with respect to
import controls and which specify procedures for the establishment of
restrictions on imports of tuna, apply to swordfish taken from the
north and south Atlantic stocks.
8. Sections 630.41 and 630.42 are added to subpart C read as
follows:
Sec. 630.41 Minimum size requirement.
To facilitate enforcement of domestic regulations, a swordfish, or
part thereof, less than the minimum size specified at Sec. 630.23(a)
may not be imported, or attempted to be imported into the United
States, unless it is accompanied by the certificate of eligibility
specified at Sec. 630.42 attesting either that the swordfish was
harvested from an ocean area other than the Atlantic Ocean or that the
fish part was derived from a swordfish harvested from the Atlantic that
weighed at least 33 lb (15 kg) dressed weight at harvest.
Sec. 630.42 Certificate of eligibility.
(a) A shipment of swordfish in any form offered for import into the
United States, directly or indirectly, from any country is admissible
only if accompanied by a certificate of eligibility. Such a certificate
is required for swordfish identified by any item
[[Page 54665]]
number from the Harmonized Tariff Schedule including but not limited to
the following:
(1) Fresh or chilled swordfish, steaks, No. 0302.69.20.41.
(2) Fresh or chilled swordfish, excluding fillets, steaks and other
fish meat, No. 0302.69.20.49.
(3) Frozen swordfish, steaks, No. 0302.79.20.41.
(4) Frozen swordfish, excluding fillets, steaks and other fish
meat, No. 0302.79.20.49.
(5) Frozen swordfish, fillets, No. 0304.20.60.92.
(b) The certificate of eligibility required under this section must
indicate the flag state of the harvesting vessel, the ocean area of
harvest and, if the shipment contains swordfish or parts thereof less
than the minimum size specified at Sec. 630.23(a), the reason such
swordfish is eligible for entry as specified in Sec. 630.41. The
certificate shall be attached to the invoice accompanying the swordfish
shipment from the point of import into the United States up to and
including the point of first transaction in the United States.
(c) The certificate of eligibility required under this section must
include the name and title of a responsible government official of the
country exporting the swordfish to the United States and be signed and
dated by that official with official government seal affixed, thus
validating the information on flag vessel and ocean area of harvest.
(d) A certificate of eligibility may refer to swordfish taken from only
one ocean area of harvest (Atlantic, Pacific, Indian) and by vessels
under the jurisdiction of only one nation. If a shipment contains
swordfish taken from more than one ocean area, or swordfish harvested
by several vessels from different flag states, a separate certificate
must accompany the shipment for each ocean area of harvest and for each
flag nation of the harvesting vessels.
(e) A model certificate of eligibility is available from the
Director. An equivalent form may be used provided it contains all the
information required under this section.
[FR Doc. 98-27305 Filed 10-6-98; 4:45 pm]
BILLING CODE 3510-22-F