[Federal Register Volume 64, Number 50 (Tuesday, March 16, 1999)]
[Rules and Regulations]
[Pages 12903-12907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6376]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 630
[Docket No. 970829218-9064-03; I.D. 080597E]
RIN 0648-AK39
Atlantic Swordfish Fishery; Dealer Permitting and Import
Documentation Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to prohibit the import into the
United States of Atlantic swordfish or Atlantic swordfish pieces,
weighing less than 33 lb (15 kg) dressed weight (dw) unless documented
as coming from an Atlantic swordfish weighing 33 lb (15 kg) dw or more;
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 facilitating the collection of information relating to
the trade in Atlantic swordfish which may hinder conservation efforts
by the United States and ICCAT.
DATES: This final rule is effective June 14, 1999 with the exception of
Sec. 630.5(b)(1)(ii) which will be made effective when approval of the
information collection requirement contained therein is obtained from
the Office of Management and Budget. When approved, NMFS will publish a
separate document in the Federal Register giving notice of the
effective date for that section.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review (EA/RIR) supporting this action may be obtained from Rebecca
Lent, Chief, Highly Migratory Species Management Division, NMFS, 1315
East-West Highway, Silver Spring, MD 20910. Comments regarding the
collection-of-information requirement contained in this extended
interim rule, as amended, should be sent to the previous address and to
the Office of Management and Budget (OMB), Washington, DC 20503
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Jill Stevenson or Steve Meyers, 301-
713-2347 or FAX 301-713-1917.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed
under the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention
Act (ATCA).
Introduction
You may obtain background information about the need for revisions
to Atlantic swordfish fishery regulations from the preamble to the
proposed rule (63 FR 54661, October 13, 1998). That information is not
repeated here.
NMFS has been concerned that sales of swordfish less than 33 lb (15
kg) dw in the United States diminish the
[[Page 12904]]
effectiveness of domestic conservation efforts due to the inability to
differentiate in the marketplace between imported swordfish weighing
less than 33 lb (15 kg) dw (legal prior to June 14, 1999 and domestic
Atlantic swordfish weighing less than 33 lb dw (illegal). Therefore, as
required by an ICCAT recommendation, NMFS has concluded it is necessary
to prevent the sale in the United States of Atlantic swordfish weighing
less than 33 lb (15 kg) dw harvested either by non-U.S. vessels or by
fishermen from other countries and imported to the United States.
Import restrictions, coupled with reporting requirements for swordfish
importers, will 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 will
contribute to stock assessments and estimates of fishing mortality.
ICCAT has requested that all countries that import frozen swordfish
collect and examine as much import or landing data and associated
information as possible and report that information to ICCAT.
Under the authority of ATCA (971 d (c)(3)), the United States may
impose requirements or other measures necessary to implement ICCAT
recommendations or to obtain scientific data necessary to accomplish
the purpose of the Convention.
This final rule (1) prohibits any Atlantic swordfish weighing less
than 33 lbs (15 kg) dw from entering the United States, (2) prohibits
any shipment of swordfish from entering the United States unless
accompanied by a Certificate of Eligibility, and (3) establishes
permitting and reporting requirements for swordfish importers to
facilitate tracking of swordfish imports.
You may not import swordfish unless you possess a valid swordfish
dealer permit and submit bi-weekly reports on a NMFS-dealer report form
and relevant COEs to NMFS. You may obtain a permit application from the
NMFS Southeast Permit Office, St. Petersburg, FL by calling (727) 570-
5326. Once your permit is issued, you will receive, under separate
cover, bi-weekly dealer report forms (including import report forms).
Electronic Access
You may obtain a blank example of a COE from the NMFS Highly
Migratory Species Management Division by mail (see ADDRESSES) or the
Internet (www.usatuna.com).
If you export swordfish to the United States, you may use an
existing form to serve the purpose of the COE or you may obtain a copy
of a COE from NMFS. The COE accompanying the swordfish shipment does
not need to be on an official form but must contain, in English, at
least the following: (1) flag of harvesting vessel, (2) ocean of
origin, (3) weight of the shipment, (4) date, name, signature, title,
authorizing government agency, and address of validating official or
authorized agent and government seal, (5) certification that the
shipment does not contain swordfish weighing less than 33 lb (15 kg) dw
or, if it does, that it is not Atlantic swordfish, or, if it is
Atlantic swordfish, that it was taken from a fish weighing greater than
33 lb (15 kg) dw, and (6) Customs Form 7501 entry number (to be
completed by importer before submission to NMFS).
Comments and Responses
NMFS received written comments and held five public hearings during
the 45-day comment period on the proposed rule. When drafting the final
EA/RIR and the final regulations, NMFS considered all comments
received.
Comment 1: All but two commenters supported the proposed measures.
One dissenting commenter felt that these measures would do little to
aid the recovery of the swordfish stock, considering swordfish are not
mature when they reach the U.S. minimum size. Another commenter,
representing the Federal fisheries agency in Canada, opposed the COE
requirement for Canadian exports given that Canada has also adopted the
33-lb (15 kg) dw minimum size for Atlantic swordfish and has
documentation and enforcement restrictions in place to implement that
minimum size.
Response: NMFS agrees that the minimum size ``allows'' fishermen to
harvest immature swordfish. However, the Standing Committee for
Research and Statistics of ICCAT has determined that swordfish yields
may increase substantially with the current minimum size if fishing
mortality on undersized swordfish can be further reduced. NMFS believes
these final actions will facilitate enforcement of the U.S. minimum
size (recommended by ICCAT) and may encourage other countries to target
swordfish larger than 33 lb (15 kg) dw in order to sell to the U.S.
market. Because Canada has not implemented the ban on sale of
undersized swordfish, NMFS cannot make an exemption for Canada
regarding the documentation requirements, or all countries that adopt
the 33- lb (15 kg) dw minimum size would also have to be exempted. This
would create an enforcement loophole which might allow transhipments of
undersized swordfish through exempted countries and into the United
States without a COE.
Comment 2: One commenter expressed support for including very
specific information on the COE, including the name of the harvesting
vessel. The commenter felt that this information is collected by other
ICCAT countries and would help in enforcing ICCAT conservation and
management measures.
Response: NMFS believes this information is useful; however, it
would increase the burden on exporting firms. At this time, NMFS does
not consider that further information is necessary to implement the
ICCAT minimum size recommendation. If an ICCAT recommendation adopts a
multi-lateral information collection, NMFS would implement the ICCAT
recommendation.
Comment 3: Several commenters, including importers and wholesalers,
did not think the dealer reporting and COE paperwork burden would be
onerous.
Response: NMFS agrees. Although this final rule requires new and
revised paperwork collections, exporters and importers have the
information readily available and are likely to transcribe this
information from an existing invoice (with the exception of the flag of
the harvesting vessel).
Comment 4: Two commenters stressed the need for a governmental
official to validate the COE form certifying that the data are
accurate. They believe it will increase the accountability for
disregarding ICCAT recommendations.
Response: NMFS agrees that governmental oversight might increase
the accountability for an exporting firm's activities. However,
allowing an authorized agent to validate the shipment minimizes the
burden on governmental officials and decreases interference with trade
in fresh swordfish (possible delay over a weekend, for example). NMFS,
therefore, will allow the exporting nation's governmental official to
authorize another person or entity to validate COEs.
Comment 5: Two commenters believe NMFS should monitor the trade of
all ICCAT species with a COE.
Response: NMFS acknowledges the benefits of monitoring trade in
highly migratory species, especially with regard to monitoring
compliance with ICCAT measures. However, a certification program may be
costly to implement and there are no current ICCAT recommendations
which would justify the increased reporting burden on exporting
countries.
[[Page 12905]]
Comment 6: One commenter indicated the need to monitor total
species imports by country to ensure compliance with ICCAT's
established quotas.
Response: NMFS currently monitors total species imports by
exporting country. These data are available to the public on the NMFS
statistics website http://www.st.nmfs.gov/st1/trade/index.html).
Because U.S. Customs does not require information about flag of
harvesting vessel, these data cannot infer the total harvest by country
but can illustrate a broad picture of HMS trade activities. Data
contained on the COEs, the bi-weekly dealer reports, and bluefin tuna
statistical documents allow NMFS to monitor bluefin tuna and swordfish
imports by harvesting nation.
Comment 7: Commenters were concerned about the enforcement of these
regulations if the importer of record is a foreign firm.
Response: Under U.S. Customs regulations, an importer of record
must have a registered agent in the United States. NMFS can then serve
the charging documents to the registered agent of the corporation.
Comment 8: General comments were received on the formatting of the
COE and the dealer report form.
Response: NMFS has altered those forms to reflect the submitted
comments. Specifically, the entry number from the Customs Form 7501
will be required on the COE and the dealer report form so that NMFS can
cross-check the entry form, dealer report, and COE for accuracy. In
addition, individual weights of headed and gutted swordfish will be
required on the dealer report form. However, NMFS is not requiring a
specific form, but rather any form that contains the required
information may be used as a COE.
Comment 9: A request for extension of the comment period was
submitted. The commenter indicated the usefulness of allowing exporting
firms to review these measures at the International Boston Seafood Show
in March 1999.
Response: NMFS believes that a 60-day comment period and five
public hearings were sufficient to notify the public about these
measures. Further, NMFS agrees with the idea of disseminating
information at the International Boston Seafood Show and has reserved
exhibit space. NMFS has also planned a special seminar to explain the
final COE requirements to swordfish importers and exporters.
Comment 10: Enforcement concerns were raised relative to unlawful
entry of swordfish by non-resident corporations.
Response: To facilitate enforcement, NMFS has referenced pertinent
U.S. Customs regulations pertaining to entry of merchandise by non-
resident corporations. The resident agent for a foreign corporation
which serves as a swordfish importer in the United States would receive
any notice regarding the violation for the corporation. NMFS could then
prosecute the case against the foreign corporation.
Changes From the Proposed Rule
NMFS has changed the proposed dealer reporting requirement to
include the individual weights of headed and gutted swordfish and to
require the Customs Form 7501 entry number of each swordfish shipment
on the COE and dealer report form. NMFS has also included a clause
stating that the COE and dealer report form must be submitted in
English. NMFS has also allowed a foreign government to authorize a
person or entity to sign and seal the COE form that will accompany a
shipment of swordfish to the United States. NMFS cross-referenced
existing U.S. Customs regulations applying to entry of a shipment into
the United States by a non-resident corporation. NMFS has also
clarified requirements for non-resident importers. Finally, editorial
changes have been made in this final rule.
Classification
This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce 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. No comments were received regarding this certification, and
the initial certification remains valid. As a result, a Regulatory
Flexibility Analysis was not prepared.
This 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 any 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 rule contains three collection-of-information requirements
subject to the PRA. Two of these collections have been approved by the
Office of Management and Budget under OMB control numbers 0648-0013 and
0648-0363 for dealer permits and the COE, respectively. The estimated
burden for dealer permitting is a 200 response increase at 5 minutes
per response. The estimated burden for the Certificate of Eligibility
is 6500 hours or 1 hour for each response.
The third collection, dealer reporting, has been submitted to OMB
for approval. The public reporting burden for this collection of
information is estimated to average 1440 additional hours or a 16-
minute response each for 5400 responses, including 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 this dealer reporting
collection of information 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 and
to OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 630
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: March 10, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 630 is 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
[[Page 12906]]
processed in any way that physically alters it after being landed in or
imported into the United States.
* * * * *
Import, for the purpose of these regulations, 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 to 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 as
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. Importation of swordfish by nonresident corporations is
restricted to those entities authorized under 19 CFR 141.18.
* * * * *
4. In Sec. 630.5, paragraphs (b)(1)(ii) and (b)(1)(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, individual weights of headed and gutted swordfish,
Customs Form 7501 entry numbers, weight and price per pound or kilogram
by product form (round, dressed, steaks, fillets or loins), condition
(fresh or frozen), as specified at Sec. 630.42; this information must
be submitted in English and a copy of each certificate of eligibility
must be attached;
(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 or attempt 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. Section 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
Secs. 630.23(a) and 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) Except for a swordfish landed in a Pacific state and remaining
in the state of landing, a swordfish, or part thereof, weighing less
than 33 lb (15 kg) dressed weight will be deemed to be harvested by a
vessel of the United States and to be 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 Secs. 285.80 through
285.86 of this title, 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 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 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, in English, 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 original export
up to and including the point of first transaction in the United
States.
(c) The certificate of eligibility required under this section must
include, in English, the date, the name, the title of the governmental
official or other authorized person, and the name of the authorizing
government agency of the country exporting the swordfish to the United
States. The certificate of eligibility must be signed and dated by
[[Page 12907]]
that governmental official or authorized person with an official
government seal affixed, thus validating the information on the
certificate of eligibility.
(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 can be obtained by
contacting NMFS at 1315 East-West Highway, F/SF1, Silver Spring, MD
20910. An equivalent form may be used provided it contains all the
information required under this section.
(f) The importer must write the Customs Form 7501 entry number on
each COE and attach to the dealer report form all COEs from shipments
that are recorded on the bi-weekly dealer report form. The Customs Form
7501 can be obtained by contacting U.S. Customs at http://
www.customs.treas.gov/order.htm.
[FR Doc. 99-6376 Filed 3-15-99; 8:45 am]
BILLING CODE 3510-22-F
