Atlantic Tuna Fisheries

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.

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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

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Certain other

Product form Bluefin tuna Other tunas fish

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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''.

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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