[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21615-21618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10820]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 090223227-9691-01]
RIN 0648-AX63


Electronic Filing of Trade Documents for Fishery Products

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: NMFS issues this advance notice of proposed rulemaking to 
announce that it is revising procedures to file import and export 
documentation for certain fishery products to meet requirements of the 
SAFE Port Act of 2006, the Magnuson-Stevens Fishery Conservation and 
Management Act, other applicable statutes, and obligations that arise 
from U.S. participation in regional fishery management organizations. 
Specifically, NMFS intends to integrate the collection of trade 
documentation within the government-wide International Trade Data 
System and require electronic information collection through the 
automated internet portal maintained by the United States Customs and 
Border Protection. NMFS is seeking advance public comment on the 
feasibility of electronic reporting by parties involved in an import or 
export transaction for applicable seafood products.

DATES: Written comments must be received by August 6, 2009.

ADDRESSES: Written comments on this action and requests for background 
information should be addressed to Christopher Rogers, Trade and Marine 
Stewardship Division, Office of International Affairs, NMFS. Comments 
and requests, identified by 0648-AX63, may be submitted by any of the 
following methods:
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Christopher Rogers, Trade and Marine Stewardship 
Division, Office of International Affairs, NMFS, 1315 East-West 
Highway, Room 12657, Silver Spring, MD 20910.
     Fax: 301-713-9106, Attn: Christopher Rogers.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change.

[[Page 21616]]

All personal identifying information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Christopher Rogers (phone:301-713-
9090, fax:301-713-9106, e-mail: [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    The Security and Accountability For Every Port Act of 2006 (SAFE 
Port Act, Public Law 109-347) requires all Federal agencies with a role 
in admissibility decisions for imports to collect information 
electronically through the international trade data system (ITDS). The 
Department of the Treasury has the lead on ITDS development and Federal 
agency integration. The U.S. Customs and Border Protection (CBP) of the 
Department of Homeland Security has developed the Automated Commercial 
Environment (ACE) as the internet-based portal for the collection and 
dissemination of information for ITDS. The Office of Management and 
Budget, through its e-government initiative, has oversight regarding 
Federal agency participation in ITDS, with a focus on reducing 
duplicate reporting across agencies and migrating paper based reporting 
systems to electronic information collection.
    Numerous Federal agencies are involved in the regulation of 
international trade and many of these agencies participate in the 
import, export and transportation related decision-making process. 
Agencies also use trade data to monitor and report on trade activity. 
ITDS is an integrated, government-wide system for the electronic 
collection, use, and dissemination of the international trade and 
transportation data Federal agencies need to perform their missions. 
ITDS is a ``single window'' concept: a single internet portal (ACE) for 
the trade community to submit all the required standardized commodity 
and transportation data pertaining to an import or export transaction. 
Data from ITDS is transmitted to all government agencies legally 
authorized to receive such information. Detailed information on ITDS 
and the ACE portal is available at: http://www.itds.gov.
    NMFS has become a participating government agency in the ITDS 
project because of its role in monitoring the imports of certain 
fishery products. NMFS is working with CBP to determine the extent to 
which current seafood import documentation programs can be adapted to 
collect required data through the ACE portal. Electronic collection of 
seafood trade data through the ACE portal will reduce the public 
reporting burden, reduce the agency's data collection costs, improve 
the timeliness and accuracy of admissibility decisions, and increase 
the effectiveness of applicable trade restrictive measures.

Authorities for Trade Measures

    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (Public Law 109-479), amended the High Seas 
Driftnet Moratorium Protection Act (Public Law 104-43) to require U.S. 
actions to address illegal, unregulated and unreported (IUU) fishing 
activity and bycatch of protected living marine resources (PLMR). 
Specifically, the amendments require the Secretary of Commerce 
(Secretary) to identify in a biennial report to Congress those foreign 
nations whose vessels are engaged in IUU fishing or fishing that 
results in bycatch of PLMR. The Secretary is also required to establish 
procedures to certify whether nations identified in the biennial report 
are taking appropriate corrective actions to address IUU fishing or 
bycatch of PLMR by its fishing vessels (74 FR 2019, January 14, 2009). 
Based upon the outcome of the certification procedure, these nations 
could be subject to import prohibitions under the authority provided in 
the High Seas Driftnet Fisheries Enforcement Act (codified at 16 U.S.C. 
1826a).
    Additionally, there are identification and/or certification 
procedures in other statutes, including the Pelly Amendment to the 
Fishermen's Protective Act (codified at 22 U.S.C. 1978) and the 
Atlantic Tunas Convention Act (codified at 16 U.S.C. 971). These 
procedures may result in trade restrictive measures for a certified 
country for those fishery products associated with the activity that 
resulted in the certification. Further, import prohibitions for certain 
fishery products could also be applied under provisions of the Tariff 
Act (codified at 19 U.S.C. 1323), Marine Mammal Protection Act 
(codified at 16 U.S.C. 1371), Lacey Act (codified at 16 U.S.C. 3371) 
and other statutes, depending on the circumstances of the fish harvest 
and the conservation concerns of the United States. Trade monitoring 
authority is also provided by the Dolphin Protection Consumer 
Information Act (codified at 16 U.S.C. 1385) which specifies the 
conditions under which tuna products may be imported into the United 
States with a dolphin-safe label.
    Multilateral efforts to combat IUU fishing may also result in trade 
action. The United States is a contracting party to several regional 
fishery management organizations (RFMOs). Many of these RFMOs have 
established procedures to identify nations and/or vessels whose fishing 
activities undermine the effectiveness of the conservation and 
management measures adopted by the organization. Fishery products 
exported by such nations or harvested by such vessels may be subject to 
import prohibitions specified by the RFMO as a means to address the 
activity of concern. In these cases, the United States is obligated to 
deny entry of the designated products into its markets.

Trade Monitoring and Documentation Programs

    As a result of unilateral authorities and/or multilateral 
agreements, NMFS has implemented a number of monitoring programs to 
collect information from the trade regarding the origin of certain 
fishery products. The purpose of these programs is to determine the 
admissibility of the products in accordance with the specific criteria 
of the trade measure or documentation requirement in effect. NMFS trade 
monitoring programs cover tunas, swordfish, billfish, shark fins, 
toothfish, krill and certain other fishery products under the authority 
of the High Seas Driftnet Fisheries Enforcement Act (refer to http://swr.nmfs.noaa.gov/fmd/italy.htm for an exhaustive list.) Generally, 
these trade monitoring programs require importers to obtain a blanket 
permit, to obtain from exporters documentation on the authorization for 
the harvest by the flag nation, and to submit this information to NMFS 
for review and approval. Depending on the commodity, specific 
information may be required on the flag state of the harvesting vessel, 
the ocean area of catch, the fishing gear used, and details of landing, 
transshipment and export.
    In most cases, these monitoring programs require the importer to 
provide paper documents to NMFS, while other relevant information on 
the inbound shipments is provided by the shipper, carrier, or customs 
broker to CBP by electronic means. NMFS reconciles the information 
reported by importers with the information obtained from CBP to 
determine if the

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admissibility requirements have been satisfied. If documentation is 
incomplete, fraudulent or missing, or if the shipment is not admissible 
given its ocean area of origin, flag nation, harvesting vessel or the 
circumstances under which it was harvested, entry into U.S. commerce is 
prohibited for that shipment.
    As a participating government agency, access to the ACE portal has 
improved NMFS' ability to evaluate trends and potential problems with 
seafood imports including real time information on ports of entry, 
potential cases of tariff code misspecification, or indications of lack 
of proper documentation. It has helped NMFS communicate with the trade 
community to educate importers and brokers on the documentation 
requirements. It has also helped NMFS target enforcement resources by 
taking a risk management approach. NMFS anticipates that ITDS 
integration will result in reduced reporting burden for the trade 
community, reduced data processing time for government, increased 
compliance with product admissibility requirements, and quicker 
response time on admissibility decisions.

Information Collection and Respondents

    This advance notice of proposed rulemaking solicits public input on 
the development of electronic information collection procedures for the 
purposes of determining which shipments of seafood products are 
eligible for entry into the United States. Timely information is 
critical to making accurate and effective admissibility decisions. 
However, NMFS is aware that many different parties serve different 
roles in the trade process, and it is important to identify the correct 
party who can supply the required information at any particular point 
in the transaction. Potential sources of information on an inbound 
shipment could be the foreign exporter, freight forwarder/consolidator, 
shipper, carrier, customs broker, importer or ultimate consignee. 
Specific information is available to some or all of these parties and 
could be supplied to NMFS at various points in the trade process. 
Certain information may be available on a pre-arrival basis, while 
other information might not be available until arrival, upon the start 
of the entry process or even post-release.
    In order to establish an electronic reporting system that meets 
NMFS' statutory requirements for admissibility without imposing an 
undue burden on the trade community, NMFS seeks input from the public 
on the following questions:
    As an importer, do you rely on brokers for customs clearance or 
file customs entries on your own?
    What CBP electronic reporting systems does your business use (e.g., 
Automated Commercial System, Automated Broker Interface, Customs 
Automated Manifest Interface Requirements, Customs and Trade Automated 
Interface Requirements)?
    Does your business (importer, customs broker, shipper, carrier) 
currently maintain an ACE portal user account?
    Does another business entity file CBP-required information on your 
behalf? Does that business have cross account access for you within CBP 
reporting systems?
    Does your business (importer, customs broker, shipper, carrier) 
currently have a blanket (annual) permit from NMFS for importing/
exporting tuna, swordfish, shark fins or Antarctic resources (krill, 
toothfish)?
    Does another business entity with a NMFS blanket permit submit 
NMFS-required information on your behalf?
    As an importer, how would your business be affected if you are 
required to obtain a blanket permit (e.g., annual) prior to importing 
your product?
    Is your business (importer, customs broker, shipper, carrier) 
currently registered with the Dun and Bradstreet Universal Numbering 
Service (DUNS Number)? Could this registration number serve as a unique 
identifier for your business with regard to reporting obligations to 
CBP, NOAA and other agencies? Does your business have one or more 
importer of record numbers registered with CBP?
    What are the principal ports of import, the predominant product 
form (fresh, frozen or in airtight containers), and the usual 
transportation mode (ocean, air, truck, rail) for the import 
transactions of your business?
    How would your business practices be affected if NMFS required 
imports only through a limited number of designated ports of entry?
    Which established government or private sector product identifiers 
are generally used in your business transactions (e.g., FDA, USDA, 
HTSUS, UPC, GTIN, GDSN)?
    What paper documents (manifest, invoice, bill of lading, harvesting 
or exporting government authorization, certificate of eligibility, 
catch document) are available to your business and at what point in 
trade transaction (pre-arrival, arrival, post-release)?
    What problems, if any, have you encountered with the existing paper 
document systems for NMFS trade monitoring programs? Could these 
problems be resolved by electronic reporting?
    When you have questions on documentation requirements or encounter 
problems with release of shipments, how do you contact NMFS (telephone, 
email, internet, office visit)? Have you had difficulties in contacting 
NMFS to get answers to your questions?
    What concerns do you have about timely release of perishable 
seafood shipments? In your view, could electronic reporting expedite 
the submission of information to CBP to obtain release? How would your 
business be affected if information collection requirements cause a 
delay in release of shipments?
    How does your business currently meet prior notice requirements of 
the Food and Drug Administration (FDA) for inbound shipments of food 
products? Specifically, what FDA reporting system do you use?
    How would your business be affected if NMFS required pre-approval 
for all inbound seafood shipments that are subject to documentation 
requirements? That is, what costs and risks would you face if all 
documentation must be provided prior to arrival and the shipment cannot 
be released until NMFS verifies the information?
    As an importer, do you serve as a U.S. agent for foreign entities? 
If so, what trade documents are available to you prior to the arrival 
of the shipment?
    As a foreign entity, do you use a U.S. agent to facilitate the 
import process into the U.S. market? If so, what trade documents do you 
supply to your U.S. agent prior to arrival of the shipment?
    As an importer or customs broker, do you have knowledge of the 
ultimate consignee and or final U.S. destination at time of entry 
filing? Do you have this information prior to arrival or release?
    As an importer, do you also re-export seafood to a destination 
outside of the United States?
    As a re-exporter, do you move product after processing or repacking 
in the United States? If so, what types of processing or repacking 
occur and at what locations (airport, seaport, warehouse)?
    What entry types are typical for your business (consumption, 
warehouse, foreign trade zone, informal entries)? As an importer or 
customs broker, do you use bonded warehouses or foreign trade zones to 
hold product prior to filing entry for consumption?
    Do you serve as a U.S. agent to facilitate transportation and 
export entries for foreign firms who use U.S.

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transit links to get seafood products to overseas markets?
    What other Federal or state agencies, if any, require documentation 
or declarations for the seafood products that you import?
    What industry groups or trade associations represent your business 
interests? Does your business maintain a membership in any associations 
(e.g., National Fisheries Institute, Trade Support Network, National 
Customs Brokers and Forwarders Association of America)?

Submitting Public Comment

    You may submit information and comments concerning this advanced 
notice of proposed rulemaking by any one of several methods (see 
ADDRESSES). Information related to current programs to monitor 
international trade in fisheries products can be found on the NMFS Web 
site at http://www.nmfs.noaa.gov/. NMFS will consider all comments and 
information received during the advance notice comment period in 
preparing a proposed rule.

Classification

    This advance notice of proposed rulemaking has been determined to 
be not significant for the purposes of Executive Order 12866.

    Authority: 16 U.S.C. 1826d-1826k; 16 U.S.C. 971 et seq.; 16 
U.S.C. 1801 et seq.; 16 U.S.C. 1371; 16 U.S.C. 1385; 16 U.S.C. 3371.

    Dated: May 4, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-10820 Filed 5-7-09; 8:45 am]
BILLING CODE 3510-22-S