[Federal Register Volume 81, Number 24 (Friday, February 5, 2016)]
[Proposed Rules]
[Pages 6210-6222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02216]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300 and 600
[Docket No. 150507434-5999-01]
RIN 0648-BF09
Magnuson-Stevens Fishery Conservation and Management Act; Seafood
Import Monitoring Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: Pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), this proposed rule would establish filing and
recordkeeping procedures relating to the importation of certain fish
and fish products, in order to implement the MSA's prohibition on the
import and trade, in interstate or foreign commerce, of fish taken,
possessed, transported or sold in violation of any foreign law or
regulation. The information to be filed is proposed to be collected at
the time of entry, and makes use of an electronic single window
consistent with the Safety and Accountability for Every (SAFE) Port Act
of 2006 and other applicable statutes. Specifically, NMFS proposes to
integrate collection of catch and landing documentation for certain
fish and fish products within the government-wide International Trade
Data System (ITDS) and require electronic information collection
through the Automated Commercial Environment (ACE) maintained by the
Department of Homeland Security, Customs and Border Protection (CBP).
Under these procedures, NMFS would require an annually renewable
International Fisheries Trade Permit (IFTP) and specific data for
certain fish and fish products to be filed and retained as a condition
of import to enable the United States to exclude the entry into
commerce of products of illegal fishing activities. The information to
be collected and retained will help authorities verify that the fish or
fish products were lawfully acquired by providing information that
traces
[[Page 6211]]
each import shipment from point of harvest to entry-into commerce. The
rule will also decrease the incidence of seafood fraud by collecting
information at import and requiring retention of documentation so that
the information reported (e.g., regarding species and harvest location)
can be verified. This proposed rule stipulates the catch and landing
data for imports of certain fish and fish products which would be
required to be submitted electronically to NMFS through ACE and the
requirements for recordkeeping concerning such imports.
DATES: Written comments must be received by April 5, 2016. Public
webinars will take place from 3:00 to 5:00 p.m. eastern standard time
on February 18 and 24, 2016. An in-person public listening session will
be held in Boston, Massachusetts from 11:00 a.m. to 1:00 p.m. eastern
standard time on March 7, 2016.
ADDRESSES: Written comments on this action, identified by NOAA-NMFS-
2015-0122, may be submitted by either of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0122, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Mark Wildman, International Fisheries Division,
Office for International Affairs and Seafood Inspection, NOAA
Fisheries, 1315 East-West Highway, Silver Spring, MD 20910.
All comments received are a part of the public record and will
generally be posted to http://www.regulations.gov without change. All
personal identifying information (for example, name and address)
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. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (PDF) formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to the NOAA Fisheries Office for
International Affairs and Seafood Inspection and by email to OIRA
[email protected] or fax to (202) 395-7285.
Information on how to participate in the February 18 and 24, 2016
public webinars will be posted online at www.iuufishing.noaa.gov. The
March 7, 2016 public listening session will take place at the Seafood
Expo North America, Boston Convention and Exhibition Center, Room 104A,
415 Summer Street, Boston, MA 02210. All information about these public
information sessions will be posted online at www.iuufishing.noaa.gov.
Special Accommodations
The March 7, 2016 public listening session is physically accessible
to people with disabilities. Requests for sign language interpretation
or other auxiliary aids should be directed to Mark Wildman, at (301)
427-8350, at least 5 days prior to the meeting date.
FOR FURTHER INFORMATION CONTACT: Mark Wildman, Office for International
Affairs and Seafood Inspection, NOAA Fisheries (phone (301) 427-8350,
or email [email protected]).
SUPPLEMENTARY INFORMATION:
Background
On June 17, 2014, the White House released a Presidential
Memorandum entitled ``Establishing a Comprehensive Framework to Combat
Illegal, Unreported, and Unregulated Fishing and Seafood Fraud.'' Among
other actions, the Memorandum established a Presidential Task Force on
Combating Illegal, Unreported, and Unregulated (IUU) Fishing and
Seafood Fraud (Task Force), co-chaired by the Departments of State and
Commerce, with membership including a number of other Federal agency
and White House offices: The Departments of Agriculture, Defense,
Health and Human Services, Homeland Security, Interior, and Justice;
the Federal Trade Commission; the U.S. Agency for International
Development; the Council on Environmental Quality; the Office of
Management and Budget; the Office of Science and Technology Policy; the
National Security Council; and the Office of the U.S. Trade
Representative.
The Task Force was directed to report to the President
``recommendations for the implementation of a comprehensive framework
of integrated programs to combat IUU fishing and seafood fraud that
emphasizes areas of greatest need.'' Those recommendations were
provided to the President through the National Ocean Council, and NMFS
requested comments from the public on how to effectively implement the
recommendations of the Task Force (79 FR 75536, December 18, 2014).
Oversight for implementing the recommendations of the Task Force has
been charged to the National Ocean Council Standing Committee on IUU
Fishing and Seafood Fraud (NOC Committee).
Recommendation 14 concerns the development of a risk-based
traceability program (including defining operational standards and the
types of information to be collected) as a means to combat IUU fishing
and seafood fraud. Recommendation 15 calls for the implementation of
the first phase of that risk-based traceability program that tracks
fish and fish products identified as being at risk of IUU fishing or
seafood fraud from point of harvest to point of entry into U.S.
commerce. The first step taken to address Recommendations 14 and 15 was
the identification of those species likely to be at risk of IUU fishing
or seafood fraud. See At-Risk Species section below for further detail.
The second step taken is this proposed rulemaking, which would
establish data reporting and related operational requirements at the
point of entry into U.S. commerce for imported fish and fish products
of at-risk species. The data reporting requirements would apply to
importers of record. The importers of record are the importers as
identified in CBP entry filings for shipments containing the designated
at-risk species. Customs brokers may fulfill these requirements on
behalf of the importer of record at the importer of record's request.
This rule implements MSA section 307(1)(Q), which makes it unlawful to
import, export, transport, sell, receive, acquire, or purchase in
interstate or foreign commerce any fish taken, possessed, transported,
or sold in violation of any foreign law or regulation or any treaty or
binding conservation measure to which the United States is a party. See
16 U.S.C. 1857(1)(Q).
As indicated in the Task Force's recommendations to the President,
it is the goal of the U.S. government ``to eventually expand the
program to all seafood at first point of sale or import.'' The process
for expansion will account for, among other factors, consideration of
authorities needed for more robust implementation, stakeholder input,
and the cost-effectiveness of program expansion. By December 2016, the
NOC Committee will issue a report that includes an evaluation of the
program as set out in a final rule and implemented to date, as well as
recommendations of how and under what timeframe it would be expanded.
International Trade Data System (ITDS)
The SAFE Port Act (Pub. L. 109-347) requires all Federal agencies
with a role
[[Page 6212]]
in import admissibility decisions to participate in a single window
system that allows information to be collected electronically through
ITDS. Department of the Treasury has the U.S. Government lead on ITDS
development and partner government agency integration. CBP developed
the Automated Commercial Environment (ACE) as single window for the
collection and dissemination of information to support ITDS. To comply
with SAFE Port Act, NMFS is in the process of establishing ITDS as the
electronic means of collecting NMFS-required catch and trade data at
the point of entry for imports subject to existing trade monitoring
programs. (80 FR 81251, December 29, 2015.) NMFS anticipates completing
the final ITDS rule prior to finalizing this rule that would require
entry filers, when importing at-risk species, to submit data elements
at the point of entry into U.S. commerce and use the CBP ACE portal for
submission of import data and/or document images (as applicable for HTS
codes covered under multiple programs).
This proposed rule would also require the importer of record to
obtain a permit to import a designated at-risk species (see
International Fisheries Trade Permit section below for more detail).
At-risk species, and some products derived from such species, would be
identified by Harmonized Tariff Schedule (HTS) codes (in combination
with other codes where applicable), and entries filed under these codes
would be subject to the additional data requirements set forth in this
proposed rule. While some HTS codes will have a direct correspondence
to the at-risk species, other applicable HTS codes, particularly for
processed products, may be broader (i.e., potentially including species
other than those designated at-risk.) In such cases, supplementary
product identifiers supplied at entry filing (e.g., acceptable market
name, scientific name) would be used to determine if the shipment
includes at-risk species and is subject to additional data collection.
NMFS is proposing to exclude highly processed fish products (fish oil,
slurry, sauces, sticks, balls, cakes, puddings, and other similar
highly processed fish products) from the additional data requirements
in cases for which the species of fish comprising the product or the
harvesting event(s) or aquaculture operation(s) of the shipment of the
product cannot be feasibly identified.
Additional species and products may be subsequently identified for
inclusion in the Seafood Traceability Program as part of the continuing
process to implement Recommendations 14 and 15. Use of ITDS and the ACE
portal is envisioned as the mechanism for implementing additional data
collection requirements for imports of all fish species, if a decision
is made to expand the Seafood Traceability Program, through future
rulemaking, to include all fish species.
Entry Into U.S. Commerce
This proposed rule addresses only the collection of information on
imported fish and fish products at the point of entry into U.S.
commerce. For imported fish and fish products, entry into commerce is
the landing on, bringing into, or introduction into, or attempted
landing on, bringing into, or introduction into, any place subject to
the jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning
of the customs laws of the United States. See 16 U.S.C. 1802(22) (A)
and (B). ``Imported fish and fish products'' do not include transit
shipments that are not being imported into the United States and
therefore do not enter U.S. commerce. However, the permitting,
reporting and recordkeeping requirements of this proposed rule would
apply only in cases of entries for consumption, withdrawals from a
bonded warehouse for consumption or withdrawals from a foreign trade
zone for consumption.
For U.S. domestic wild capture fisheries, entry into U.S. commerce
occurs at the first point of landing or sale or transfer to a dealer or
processor in the United States. In the case of harvesting vessels that
process at-sea, transfer their catch to a processor at-sea, transfer
their catch to a carrier or tender vessel at-sea, or transship their
catch in port, entry into commerce is the offloading of the transferred
and/or processed product for transshipment in an established U.S. port
or roadstead. For U.S. domestic aquaculture products, entry into U.S.
commerce is the first sale to a processing facility or directly to a
consumer market.
For the designated at-risk species, equivalent information is
already being collected at the point of entry into commerce for the
products of U.S. domestic fisheries pursuant to various Federal and/or
State fishery management and reporting programs. For this reason, this
proposed rule does not duplicate data reporting and record retention
requirements already in place for products of U.S. domestic fisheries,
and instead focuses on accessing the data necessary to establish
traceability from point of harvest to entry into U.S. commerce for
imported fish and fish products. Together, the requirements already in
place for products of U.S. domestic fisheries and the requirements
proposed in this rule for imported fish and fish products provide a
framework for the designated at-risk species to trace seafood, whether
domestic or imported, back to the point of harvest or capture to verify
that seafood entering U.S. commerce is both legally caught and not
fraudulently represented.
With respect to aquaculture, U.S. domestic aquaculture is largely
regulated at the state level. NOAA understands that U.S. states
generally do not collect with respect to products of U.S. aquaculture
operations the data this rule proposes to collect on imports. This is a
concern as the IUU Task Force Action Plan calls for a traceability
program that applies without regard to whether seafood is domestic or
imported to ensure that seafood entering U.S. commerce is not the
product of IUU fishing or fraud. NMFS is aware of gaps in the
collection of traceability information for domestic aquaculture-raised
shrimp and abalone, and is working with its federal and state partners
to identify and implement measures to address those gaps. While it
remains NMFS' full intention to include shrimp and abalone in the final
rule, implementation of measures to address those gaps may affect the
timing of implementation of the reporting and recordkeeping
requirements for imports of shrimp and abalone. In particular, if gaps
remain unaddressed by the time of publication of a final rule, NMFS
intends to delay implementation of the rule for shrimp and abalone
until such time as, working with its state and federal partners, it is
able to determine that the gaps have been addressed and publishes a
notice in the Federal Register specifying implementation of this rule
for those species.
At-Risk Species
A working group including representatives from NMFS and other
Federal agency partners solicited comment on principles to be applied
in the identification of fish species likely to be most at risk of IUU
fishing or seafood fraud (80 FR 24246, April 30, 2015). Taking into
consideration public comment received, the working group evaluated the
strength and utility of various indicators of IUU fishing or seafood
fraud as well as their measurability and the robustness of data
available to assess them. The working group endeavored to minimize
overlap of principles to ensure that alignment with multiple principles
did not overstate associated risk, and also to
[[Page 6213]]
distinguish between risk of IUU fishing and risk of seafood fraud.
The working group identified the following draft principles:
Enforcement capability, existence of a catch documentation scheme,
complexity of the supply chain, known species substitution, history of
mislabeling (other than misidentification of species), and history of
fisheries violations. Applying those principles to a base list of
species, thirteen fish species/species groups were identified as likely
to be most at risk of IUU fishing or seafood fraud. NMFS solicited
public comment on the draft principles and draft list of at-risk
species (80 FR 45955, August 3, 2015). After taking into consideration
public comment, NMFS issued final principles and applied those
principles to determine a list of at-risk species (80 FR 66867, October
30, 2015). Public comments received in response to each of the above
notices can be viewed through the docket created on the Federal e-
Rulemaking Portal: http://www.regulations.gov/#!docketDetail;D=NOAA-
NMFS-2014-0090.
Pursuant to the process described above, NMFS issued a list of at-
risk species and species groups that includes: Abalone; Atlantic Cod;
Pacific Cod; Blue Crab; Red King Crab; Dolphinfish (Mahi Mahi);
Grouper; Red Snapper; Sea Cucumber; Shrimp; Sharks; Swordfish; and
Albacore, Bigeye, Skipjack, and Yellowfin Tuna. Although bluefin tuna
species were determined to be at a lower risk of IUU fishing and
seafood fraud than other tuna species and were not included on the list
of at-risk species, the reporting and recordkeeping requirements
proposed in this rule apply to HTS codes for fish and fish products of
all tuna species including bluefin tuna. NMFS notes that bluefin tuna
was historically a target of IUU fishing, and in response, two regional
fisheries organizations implemented a catch documentation scheme which
together include two of the three species world-wide. While NMFS
continues to view the bluefin tuna to be at considerably lower risk of
IUU fishing and seafood fraud than other tuna species and has made no
modification to the list of at-risk species published on October 30, it
proposes to cover bluefin tuna in this proposed rule (and has therefore
included the HTS codes for bluefin tuna in the above list) in order to
establish consistent treatment of tuna species, and avoid possible
concerns that one species of tuna may be treated less favorably than
others.
Although NOAA has, as discussed, previously sought comment on the
list of species to which this rule will apply (80 FR 45955, August 3,
2015), NOAA recognizes that the public may further comment on the list
of species and species groups, including whether any species should be
added or deleted. It would be helpful if such comments include
information on the factors established in Recommendations 14 and 15 of
the IUU Task Force Action Plan. Because NOAA responded on October 30,
2015 (80 FR 66867) to comments received on the proposed list that was
published on August 3, 2015 (80 FR 45955), NOAA requests that comments
not be submitted on this proposal that are duplicative of those
submitted on the list of species and contain no new information.
Under this proposed rule, importers would therefore be subject to
the permitting, reporting and recording keeping requirements, which are
described below, with respect to imports of the species and species
groups as proposed, subject to revision at the time of issuance of the
final rule. Entries of the fish and fish product of species covered by
this rule filed under the following HTS codes would be designated in
ACE as requiring the additional data in order to obtain release of the
inbound shipment:
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HTS code Commodity description
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0301940100............................... TUNA BLUEFIN ATLANTIC, PACIFIC LIVE.
0301950000............................... TUNA BLUEFIN SOUTHERN LIVE.
0302310000............................... TUNA ALBACORE FRESH.
0302320000............................... TUNA YELLOWFIN FRESH.
0302330000............................... TUNA SKIPJACK FRESH.
0302340000............................... TUNA BIGEYE FRESH.
0302350100............................... TUNA BLUEFIN ATLANTIC, PACIFIC FRESH.
0302360000............................... TUNA BLUEFIN SOUTHERN FRESH.
0302470010............................... SWORDFISH STEAKS FRESH.
0302470090............................... SWORDFISH FRESH.
0302510010............................... GROUNDFISH COD ATLANTIC FRESH.
0302510090............................... GROUNDFISH COD NSPF FRESH.
0302810010............................... SHARK DOGFISH FRESH.
0302810090............................... SHARK NSPF FRESH.
0302895058............................... SNAPPER (LUTJANIDAE SPP.) FRESH.
0302895061............................... GROUPER FRESH.
0302895072............................... DOLPHINFISH FRESH.
0303410000............................... TUNA ALBACORE FROZEN.
0303420020............................... TUNA YELLOWFIN WHOLE FROZEN.
0303420040............................... TUNA YELLOWFIN EVISCERATED HEAD-ON FROZEN.
0303420060............................... TUNA YELLOWFIN EVISCERATED HEAD-OFF FROZEN.
0303430000............................... TUNA SKIPJACK FROZEN.
0303440000............................... TUNA BIGEYE FROZEN.
0303450110............................... TUNA BLUEFIN ATLANTIC FROZEN.
0303450150............................... TUNA BLUEFIN PACIFIC FROZEN.
0303460000............................... TUNA BLUEFIN SOUTHERN FROZEN.
0303490200............................... TUNA NSPF FROZEN.
0303570010............................... SWORDFISH STEAKS FROZEN.
0303570090............................... SWORDFISH FROZEN.
0303630010............................... GROUNDFISH COD ATLANTIC FROZEN.
0303630090............................... GROUNDFISH COD NSPF FROZEN.
0303810010............................... SHARK DOGFISH FROZEN.
0303810090............................... SHARK NSPF FROZEN.
0303890067............................... SNAPPER (LUTJANIDAE SPP.) FROZEN.
0303890070............................... GROUPER FROZEN.
0304440010............................... GROUNDFISH COD ATLANTIC FILLET FRESH.
[[Page 6214]]
0304440015............................... GROUNDFISH COD NSPF FILLET FRESH.
0304450000............................... SWORDFISH FILLET FRESH.
0304530010............................... GROUNDFISH COD ATLANTIC MEAT FRESH.
0304530010............................... GROUNDFISH COD ATLANTIC MEAT FRESH.
0304530015............................... GROUNDFISH COD NSPF MEAT FRESH.
0304530015............................... GROUNDFISH COD NSPF MEAT FRESH.
0304540000............................... SWORDFISH MEAT FRESH.
0304711000............................... GROUNDFISH COD NSPF FILLET BLOCKS FROZEN >4.5KG.
0304711000............................... GROUNDFISH COD NSPF FILLET BLOCKS FROZEN >4.5KG.
0304715000............................... GROUNDFISH COD NSPF FILLET FROZEN.
0304715000............................... GROUNDFISH COD NSPF FILLET FROZEN.
0304870000............................... TUNA NSPF FILLET FROZEN.
0304895055............................... DOLPHINFISH FILLET FROZEN.
0304895055............................... DOLPHINFISH FILLET FROZEN.
0304911000............................... SWORDFISH MEAT FROZEN >6.8KG.
0304919000............................... SWORDFISH MEAT FROZEN NOT >6.8KG.
0304951010............................... GROUNDFISH COD NSPF MINCED FROZEN >6.8KG.
0304951010............................... GROUNDFISH COD NSPF MINCED FROZEN >6.8KG.
0304991190............................... TUNA NSPF MEAT FROZEN >6.8KG.
0305320010............................... GROUNDFISH COD NSPF FILLET DRIED/SALTED/BRINE.
0305494020............................... GROUNDFISH COD, CUSK, HADDOCK, HAKE, POLLOCK SMOKED.
0305510000............................... GROUNDFISH COD NSPF DRIED.
0305620010............................... GROUNDFISH COD NSPF SALTED MOISTURE CONTENT >50%.
0305620025............................... GROUNDFISH COD NSPF SALTED MOISTURE CONTENT BET 45-50%.
0305620030............................... GROUNDFISH COD NSPF SALTED MOISTURE CONTENT BET 43-45%.
0305620045............................... GROUNDFISH COD NSPF SALTED MOISTURE CONTENT NOT >43%.
0305620050............................... GROUNDFISH COD NSPF FILLET SALTED MOISTURE >50%.
0305620060............................... GROUNDFISH COD NSPF FILLET SALTED MOISTURE CONTENT 45-50%.
0305620070............................... GROUNDFISH COD NSPF FILLET SALTED MOISTURE CONTENT 43-45%.
0305620080............................... GROUNDFISH COD NSPF FILLET SALTED MOISTURE NOT >43%.
0305710000............................... SHARK FINS.
0306142000............................... CRABMEAT NSPF FROZEN.
0306144010............................... CRAB KING FROZEN.
0306144090............................... CRAB NSPF FROZEN.
0306160003............................... SHRIMP COLD-WATER SHELL-ON FROZEN <15.
0306160006............................... SHRIMP COLD-WATER SHELL-ON FROZEN 15/20.
0306160009............................... SHRIMP COLD-WATER SHELL-ON FROZEN 21/25.
0306160012............................... SHRIMP COLD-WATER SHELL-ON FROZEN 26/30.
0306160015............................... SHRIMP COLD-WATER SHELL-ON FROZEN 31/40.
0306160018............................... SHRIMP COLD-WATER SHELL-ON FROZEN 41/50.
0306160021............................... SHRIMP COLD-WATER SHELL-ON FROZEN 51/60.
0306160024............................... SHRIMP COLD-WATER SHELL-ON FROZEN 61/70.
0306160027............................... SHRIMP COLD-WATER SHELL-ON FROZEN >70.
0306160040............................... SHRIMP COLD-WATER PEELED FROZEN.
0306170003............................... SHRIMP WARM-WATER SHELL-ON FROZEN <15.
0306170006............................... SHRIMP WARM-WATER SHELL-ON FROZEN 15/20.
0306170009............................... SHRIMP WARM-WATER SHELL-ON FROZEN 21/25.
0306170012............................... SHRIMP WARM-WATER SHELL-ON FROZEN 26/30.
0306170015............................... SHRIMP WARM-WATER SHELL-ON FROZEN 31/40.
0306170018............................... SHRIMP WARM-WATER SHELL-ON FROZEN 41/50.
0306170021............................... SHRIMP WARM-WATER SHELL-ON FROZEN 51/60.
0306170024............................... SHRIMP WARM-WATER SHELL-ON FROZEN 61/70.
0306170027............................... SHRIMP WARM-WATER SHELL-ON FROZEN >70.
0306170040............................... SHRIMP WARM-WATER PEELED FROZEN.
0306260020............................... SHRIMP COLD-WATER SHELL-ON FRESH/DRIED/SALTED/BRINE.
0306260040............................... SHRIMP COLD-WATER PEELED FRESH/DRIED/SALTED/BRINE.
0306270020............................... SHRIMP WARM-WATER SHELL-ON FRESH/DRIED/SALTED/BRINE.
0306270040............................... SHRIMP WARM-WATER PEELED FRESH/DRIED/SALTED/BRINE.
0308110000............................... SEA CUCUMBERS LIVE/FRESH.
0308190000............................... SEA CUCUMBERS FROZEN/DRIED/SALTED/BRINE.
1604141010............................... TUNA NSPF IN ATC (FOIL OR FLEXIBLE) IN OIL.
1604141091............................... TUNA ALBACORE IN ATC (OTHER) IN OIL.
1604141099............................... TUNA NSPF IN ATC (OTHER) IN OIL.
1604142251............................... TUNA ALBACORE IN ATC (FOIL OR FLEXIBLE) NOT IN OIL IN QUOTA.
1604142259............................... TUNA ALBACORE IN ATC (OTHER) NOT IN OIL IN QUOTA.
1604142291............................... TUNA NSPF IN ATC (FOIL OR FLEXIBLE) NOT IN OIL IN QUOTA.
1604142299............................... TUNA NSPF IN ATC (OTHER) NOT IN OIL IN QUOTA.
1604143051............................... TUNA ALBACORE IN ATC (FOIL/FLEXIBLE) NOT IN OIL OVER QUOTA.
1604143059............................... TUNA ALBACORE IN ATC (OTHER) NOT IN OIL OVER QUOTA.
1604143091............................... TUNA NSPF IN ATC (FOIL OR FLEXIBLE) NOT IN OIL OVER QUOTA.
1604143099............................... TUNA NSPF IN ATC (OTHER) NOT IN OIL OVER QUOTA.
1604144000............................... TUNA NSPF NOT IN ATC NOT IN OIL >6.8KG.
1604145000............................... TUNA NSPF NOT IN ATC NOT IN OIL NOT >6.8KG.
1605100510............................... CRAB PRODUCTS PREPARED DINNERS IN ATC.
[[Page 6215]]
1605100590............................... CRAB PRODUCTS PREPARED DINNERS NOT IN ATC.
1605102010............................... CRABMEAT KING IN ATC.
1605102051............................... CRABMEAT SWIMMING (CALLINECTES) IN ATC.
1605104002............................... CRABMEAT KING FROZEN.
1605104025............................... CRABMEAT SWIMMING (CALLINECTES) FROZEN.
1605104025............................... CRABMEAT SWIMMING (CALLINECTES) FROZEN.
1605211000............................... SHRIMPS AND PRAWNS, NOT IN AIRTIGHT CONTAINERS.
1605291000............................... SHRIMPS AND PRAWNS, OTHER.
1605570500............................... ABALONE PRODUCTS PREPARED DINNERS.
1605576000............................... ABALONE PREPARED/PRESERVED.
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For the above listed HTS codes that may be used to make entry for
designated at-risk species and for species which are not so designated,
the scientific name of the species in the shipment, or a disclaimer,
will be required to discern whether the shipment offered for entry is
subject to additional data collection under the proposed traceability
program. This proposed rule does not cover highly processed fish
products (fish oil, slurry, sauces, sticks, balls, cakes, puddings, and
other similar highly processed fish products) for which the species of
fish comprising the product or the harvesting event(s) or aquaculture
operation(s) of the shipment of the product cannot be feasibly
identified and therefore HTS codes for such fish and fish products have
not been included in the list above. However other program requirements
(e.g., TTVP) may have data reporting requirements applicable to these
codes.
Regulatory requirements for reporting and recordkeeping already
exist for certain products subject to this rule. In particular, tuna
products would be subject to this proposed rule and are now subject to
the Tuna Tracking and Verification Program (TTVP) (See http://www.nmfs.noaa.gov/pr/dolphinsafe/tunaHTScodes.htm), which monitors
compliance under the Dolphin Protection Consumer Information Act
(DPCIA) (16 U.S.C. 1385). NMFS seeks to avoid any duplication of
reporting and recordkeeping by ensuring that those entities currently
subject to the TTVP requirements will only have to report the required
information to the ACE portal once (and, similarly, those entities
subject to both sets of requirements will only keep one set of records
for purposes of tracking and verification). Furthermore, in light of
the similarity in underlying reporting and recordkeeping requirements
of the IUU fishing seafood fraud traceability program and the TTVP
program, which verifies whether tuna product marketed as ``dolphin
safe'' meets the eligibility conditions for the dolphin safe label,
NMFS intends to ensure that any future changes to the IUU fishing and
risk of seafood fraud requirements such as converting certain
recordkeeping requirements to a reporting requirement, as discussed
below, will be replicated in the TTVP program (through the inclusion of
appropriate HTS codes) so that entities serving the U.S. tuna product
market will not be subject to conflicting reporting and recordkeeping
requirements. Comments regarding HTS codes should address the extent to
which the listed codes accurately reflect the potential universe of
products associated with the list of at-risk species and the cost
effectiveness of including more or fewer codes.
Data for Reporting and Recordkeeping
The working group considered the minimum types of information that
should be reported in order to determine that imports of at-risk
species are not products of illegal fishing or are fraudulently
represented. The area of harvest or the location of the aquaculture
facility, and the time at which the harvest took place, represents the
initial ``link'' in the supply chain. At-risk species entering U.S.
commerce will be traced to their harvest and its authorization.
Information on each point of transshipment and processing throughout
the fish or fish product's chain of custody culminating at the point of
entry into U.S. commerce can also be used to trace product back to
point of harvest.
The data to be reported for at-risk species would be in addition to
the information required by CBP as part of normal entry processing via
the ACE portal. To avoid duplication, the interagency working group
considered data that are already collected by CBP on the entry/entry
summary, and data that are, or will be, collected via ACE by NMFS and
other ITDS partner government agencies (e.g., Food and Drug
Administration, Fish and Wildlife Service, Department of State).
NMFS issued a notice (80 FR 37601, July 1, 2015) to request public
input on the minimum types of information necessary for an effective
seafood traceability program to combat IUU fishing and seafood fraud,
as well as the operational standards related to collecting, verifying
and securing that data. A number of respondents from the trade
community expressed concern that any additional documentation and the
electronic collection of data would create a burden to the industry,
and could compromise the confidential relationships between buyers and
suppliers. While changes will need to be made that may pose a challenge
in the near term for some industry members, it is anticipated that the
long-term benefits of electronic data collection will outweigh these
challenges. To address concerns about data confidentiality, data
security will be given the highest priority. Information collected via
ACE and maintained in CBP systems is highly sensitive commercial,
financial and proprietary information, generally exempt from disclosure
pursuant to the Freedom of Information Act (5 U.S.C. 552(b)(4)) and
prohibited from disclosure by the Trade Secrets Act (18 U.S.C. 1905).
NMFS further notes that information required to be submitted to the
agency under the MSA is subject to MSA confidentiality of information
requirements at 16 U.S.C. 1881a(b).
Several comments expressed the desire for all fish species to be
included in the initial phase of the traceability program, not just the
subset of identified at-risk species. Others commented that monitoring
and control should not stop at the point of entry into U.S. commerce,
but carry all the way through to the final retail consumer, where many
feel that most fraud occurs, especially in terms of mislabeling.
Although this proposed rule is the initial phase, and is designed in
such a way that it can be expanded to eventually include all species,
as warranted by risk analysis, it is not designed to expand
traceability from the point of entry into commerce to the final
consumer. As noted earlier, the MSA makes it unlawful to import,
export, transport, sell, receive, acquire, or purchase in interstate or
foreign commerce any fish taken, possessed,
[[Page 6216]]
transported or sold in violation of any foreign law or regulation.
Other state and Federal agencies have broader authority regarding
mislabeling and other misrepresentation of food products and consumer
protection that may be applied at other points in the supply chain up
to the final sale.
The comments reflected almost universal support for the use of
scientific names for accurate species identification, with the addition
of FDA-approved market names on consumer labeling for user-
friendliness. Many of the comments suggested that the United Nations
Food and Agriculture Organization (FAO) Fishing Area alone is not
sufficient to identify a precise location of harvest, and that fishing
location should be more closely defined by including the country of
origin (for product harvested within another country's waters),
regional designation, or even GPS coordinates.
The domestic fishing community also expressed the desire for
importers to be held to the same documentation standards that apply to
U.S. fisheries because they feel that they ``already provide a
staggering amount of information and demonstrate a high degree of
traceability.'' The NOC Committee agrees that data regarding fish and
fish products from both domestic and foreign sources must be required
to enable officials to determine lawful harvest and, also, reduce the
incidence of fraud. Much of the data needed to combat IUU fishing is
already being collected in many foreign fisheries, and using the
single-window ITDS system at the point of entry would help streamline
and unify the data reporting and verification process, and provide the
needed inter-operability of information exchange across the supply
chain.
After consideration of comments as outlined above, NMFS proposes
that, at the point of entry for species covered by this rule, importers
of record would be required to report the following information for
each entry in addition to other information that CBP and other
agencies, including NMFS, currently require:
Information on the entity(ies) harvesting or producing the
fish (as applicable): Name and flag state of harvesting vessel(s) and
evidence of authorization; Unique vessel identifier(s) (if available);
Type(s) of fishing gear; Name(s) of farm or aquaculture facility.
Information on the fish that was harvested and processed,
including: Species of fish (scientific name, acceptable market name,
and ASFIS number); Product description(s); Name(s) of product; Quantity
and/or weight of the product(s).
Information on where and when the fish were harvested and
landed: Area(s) of wild-capture or aquaculture harvest; Harvest
date(s); Location(s) of aquaculture facility; Point of first landing;
Date of first landing; Name of entity(ies) (processor, dealer, vessel)
to which fish was landed. Such information may be contained, for
example, in catch certificates, landing reports, and port inspection
reports. Entries may comprise products from more than one harvest event
and each event relevant to entry must be reported.
The NMFS IFTP number issued to the importer of record for
the entry.
Additional information on each point in the chain of custody
regarding the shipment of the fish or fish product to point of entry
into U.S. commerce would be established as a recordkeeping requirement
on the part of the importer of record to ensure that information is
readily available to NMFS to allow it to trace the fish or fish product
from the point of entry into U.S. commerce back to the point of harvest
to verify the information that is reported upon entry. Such information
would include records regarding each custodian of the fish and fish
product, including, as applicable, transshippers, processors, storage
facilities, and distributors. The information contained in the records
must be provided to NMFS upon request and be sufficient for NMFS to
conduct a trace back to verify the veracity of the information that is
reported on entry. NMFS expects that typical supply chain records that
are kept in the normal course of businesses, including declarations by
harvesting/carrier vessels, bills of lading and forms voluntarily used
or required under foreign government or international monitoring
programs which include such information as the identity of the
custodian, the type of processing, and the weight of the product, would
provide sufficient information for NMFS to conduct a trace back. In
addition to relying on such records, the trade may choose to use model
forms that NMFS has developed to track and document chain of custody
information through the supply chain. NMFS seeks comments on proposed
model forms it has developed for this purpose which are available in
the docket for this rulemaking at www.regulations.gov.
Due to technological limitations of automated data processing for
imaged documents and requirements associated with the phase-in of ITDS,
this proposed rule requires that chain of custody information be
retained by the importer of record and made available to NMFS upon
request. However, NMFS recognizes the conservation value of requiring
reporting of key chain of custody data elements for the purpose of
real-time verification and compliance risk assessment if those data can
be accessed and analyzed using automated processes. While constraints
on the expansion of information collected through message sets prior to
full operationalization of ITDS by December 31, 2016 preclude the
inclusion in this proposed rule of a reporting requirement for chain of
custody information in that manner, NMFS will identify (including based
on its experience with audits conducted pursuant to this rule) key
chain of custody data elements that pose conservation benefits for
real-time reporting by one year from full implementation of the final
rule, and implement through subsequent rulemaking the reporting of key
chain of custody data via message set into the ITDS system.
As explained above, NMFS proposes that the importer of record, or
entry filer acting on their behalf, report the data required under the
proposed program via the ACE portal as part of the CBP entry/entry
summary process. To this end, importers of record who enter the
designated at-risk species would be required to supply the data
required to be reported under this proposed rule electronically through
the ACE Partner Government Agency Message Set for NMFS (NMFS Message
Set) and/or the DIS. The format for the NMFS Message Set would be
designated for each of the affected commodities (by HTS code) and
specified in the following documents that would be jointly developed by
NMFS and CBP and made available to importers and other entry filers by
CBP (http://www.cbp.gov/trade/ace/catair):
CBP and Trade Automated Interface Requirements--Appendix PGA
CBP and Trade Automated Interface Requirements--PGA Message
Set
Automated Broker Interface (ABI) Requirements--Implementation
Guide for NMFS
In developing software for assembling and transferring the
additional data to ACE, importers may wish to consider interoperability
with existing traceability systems that are prevalent in the private
sector supply chain or which may exist for certain commodities subject
to catch/trade documentation schemes under the auspices of a regional
fishery management organization (RFMO). While NMFS does not endorse any
particular private sector traceability system, use of such systems may
facilitate the collection of the
[[Page 6217]]
required information along the supply chain in order to report this
information through ACE. However, importers of record are still
responsible for the accuracy of the information in their import
transactions, irrespective of whether integration software or other
automated supply chain solutions are utilized.
Where RFMO catch/documentation schemes apply to the affected at-
risk species, including those that have been implemented by NMFS
through regulation (e.g., the swordfish statistical document of the
International Commission for the Conservation of Atlantic Tunas), it is
anticipated that compliance with the entry data collection requirements
of these schemes would for the most part meet the data reporting and
recordkeeping requirements of the traceability program proposed here.
However, ITDS provides sufficient flexibility to collect additional
data in cases where the data requirements of the seafood traceability
program proposed by this rule would exceed those of an RFMO scheme
applicable to the same species. NMFS will work with CBP to avoid
duplication of reporting requirement in cases where more than one
reporting program applies to a particular fish or fish product, and to
ensure that all the data are reported to meet the requirements of each
applicable reporting program.
International Fisheries Trade Permit (IFTP)
The ITDS proposed rule would establish the IFTP to consolidate
existing permits under the highly migratory species international trade
program (HMS ITP) and Antarctic marine living resources (AMLR) program,
and would require a permit for the TTVP. (80 FR 81251, December 29,
2015). (See Intersection with Other Applicable Requirements section
below for further detail on the existing trade monitoring programs.)
This proposed rule would extend the IFTP requirement in the ITDS
proposed rule to include importers of record identified in CBP entry
filings for shipments containing the designated at-risk species covered
by this rule. Requiring the IFTP would allow NMFS to identify, and have
current contact information for, importers of the at-risk species
covered by this rule. This will enable NMFS to provide information
about data reporting and recordkeeping requirements applicable to at-
risk species; alert permit holders in advance of any pending changes to
data reporting and recordkeeping requirements, including additional
data elements or at-risk species; and minimize the potential for
disruptions in trade and costly delays in release of shipments.
To obtain the IFTP, U.S. importers of record for designated at-risk
species covered by this rule and seafood products derived from such
species would electronically submit their application and fee for the
IFTP via the National Permitting System Web site designated by NMFS.
The fee charged for the IFTP would be calculated, at least annually, in
accordance with procedures set forth in Chapter 9 of the NOAA Finance
Handbook for determining the administrative costs for special products
and services (http://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html); the permit fee would not exceed such costs.
An importer of record who is required to have an IFTP only needs one
IFTP. Separate permits are not required, for example, if the imported
species are covered under more than one program or the importer trades
in more than one covered species.
Reporting and Recordkeeping
This proposed rule would require that an IFTP holder (i.e.,
importer of record as identified on CBP entry/entry summary) report
certain data for entries of at-risk species covered by this rule. NMFS
would provide detailed information to permit holders regarding
submission of such data, as well as on recordkeeping, in a compliance
guide for industry that will be prepared in advance of NMFS'
implementation of a final rule. (The guide may include information on
electronic filing through ITDS.) The IFTP holder/importer of record
would be required to maintain or have access to, and make available for
inspection, electronic or paper versions of records associated with an
entry for at-risk species at their place of business for a period of
five years after the date of entry.
NMFS believes the costs of this rule will be relatively minor.
Nonetheless, NMFS recognizes that the public may comment on this aspect
of the proposed rule and possibly suggest alternative approaches.
Section 2.6 of the Draft Regulatory Impact Review and Initial
Regulatory Flexibility Analysis discusses several alternatives that
were considered and ultimately rejected by NMFS. Any comments on these
alternatives or any other modifications to the proposed reporting and
recordkeeping requirements should explain how they maintain the rule's
effectiveness at combating IUU fishing and seafood fraud.
This proposed rule recognizes that the importer of record may be
different from the entity that actually completes CBP entry filings
(i.e., customs broker). An importer of record must obtain an IFTP and
is responsible for complying with all of the requirements of this rule.
The importer could arrange for a customs broker to submit required data
elements for at-risk species through ACE. The customs broker would have
to report the IFTP number of the importer of record along with the
other required data elements for the specific entry but would not need
to obtain an IFTP. However, the importer of record must still comply
with the record keeping and inspection requirements of this rule.
Verification of Entries
To implement this proposed regulation, business rules would be
programmed into ACE to automatically validate that the importer of
record has satisfied all of the NMFS Message Set and document image
requirements as applicable to HTS codes subject to multiple programs
(e.g., all data fields are populated and conform to format and coding
specifications, required image files are attached). Absent validation
of the NMFS requirements in ACE, the entry filed would be rejected and
the entry filer would be notified of the deficiencies that must be
addressed in order for the entry to be certified by ACE prior to
release by NMFS and CBP. In addition to automated validation of the
data submitted, entries may be subject to verification by NMFS that the
supplied data elements are true and can be corroborated via auditing
procedures (e.g., vessel was authorized by the flag state, legal catch
was landed to an authorized entity, processor receipts correspond to
outputs). For shipments selected for verification, if verification of
the data cannot be completed by NMFS pre-release, NMFS may request that
CBP place a hold on a shipment pending verification by NMFS or allow
conditional release, contingent upon timely provision of records by the
importer of record to allow data verification. Entries for which timely
provision of records is not provided to NMFS or that cannot be verified
as lawfully acquired and non-fraudulent by NMFS, will be subject to
enforcement or other appropriate action by NMFS in coordination with
CBP. Such responses could include a re-delivery order for the shipment,
exclusion from entry into commerce of the shipment, or enforcement
action against the entry filer or importer of record.
To select entries for verification, NMFS would work with CBP to
develop a specific program within ITDS to
[[Page 6218]]
screen information for the covered commodities based on risk criteria.
For example, risk-based screening and targeting procedures can be
programmed to categorize entries by volume and certain attributes
(e.g., ocean area of catch, vessel type or gear), and then randomly
select entries for verification on a percentage basis within groups of
entries defined by the associated attributes. In applying these
procedures, NMFS would implement a verification scheme, including
levels of inspection sufficient to assure that imports of the at-risk
species are not products of illegal fisheries and are not fraudulently
represented. Given the volume of imports, and the perishable nature of
seafood, it would not likely be cost-effective for most verifications
to be conducted on a pre-release basis. However, the verification
scheme may involve targeted operations on a pre-release basis that are
focused on particular products or ports of concern.
A verification program as described above will facilitate a
determination of whether imported seafood has been lawfully acquired
and not misrepresented and deter the infiltration of illegally
harvested and misrepresented seafood into the supply chain. In addition
to market access deterrence, there may be price effects in that illegal
or would be fraudulent seafood must be diverted to lower value markets.
Taken together, market access and price effects would reduce the
incentives for illegal fishing operations and for seafood fraud.
Conversely, authorized fisheries stand to benefit from import
monitoring programs that aim to identify and exclude products of IUU
fishing and seafood fraud, both through enhanced market share and
potentially higher prices.
Voluntary Third Party Certifications and Trusted Trader Program
NMFS is considering how voluntary third party seafood certification
programs could simplify entry filing for designated at-risk species or
could be used to meet reporting requirements under this proposed rule.
NMFS requests comment on how interoperability of third party data
systems could be applied to meet the data reporting requirements on a
pre-arrival basis or at the point of entry. Such interoperable systems
would have to provide the information necessary for NMFS to trace
product to the harvest event and therefore be sufficient to identify
product that is the result of IUU fishing or is misrepresented.
Additionally, NMFS is considering how a Trusted Trader program
might be used to streamline entry processing for designated at-risk
species. The Trusted Trader Program is intended to streamline entry
processing consistent with ensuring that all traders in the supply
chain comply with applicable U.S. regulations. Participants in the
Trusted Trader Program would collect or have access to the same data as
non-participants, but may not need to provide it prior to entry. NMFS
requests comment regarding the potential design and use of a Trusted
Trader Program in connection with the requirements proposed in this
rule, in particular how it could be used to streamline entry while
allowing the United States to determine that imported seafood has been
lawfully acquired and not misrepresented and to deter the infiltration
of illegally harvested and misrepresented seafood into the supply
chain.
Consideration of the European Union Catch Certification Scheme
The European Union (EU) adopted the IUU Regulation on September 29,
2008, which included a catch certification scheme for importation and
exportation of fishery products. The EU's IUU regulations do not
include a traceability scheme equivalent to that as contemplated by the
IUU Task Force and as proposed in this rule. However, NMFS is
interested in comments on how some of the elements inherent in the EU's
IUU regulations may be adapted to this rule as a means of facilitating
compliance and reducing burden for exporters, either through the design
of the traceability process itself or as part of a trusted trader
program.
Implementation Timeframe
NMFS requests specific comment on the implementation date for the
data reporting and recordkeeping requirements for at-risk species under
this proposed rule. While some firms may have adequate information
systems already in place, other firms may need lead time to develop and
implement mechanisms for transmitting the required information along
the supply chain so that the data are available for entry filers to
submit via ACE. NMFS anticipates that this proposed rule would become
effective in September 2016, consistent with timeframes described in
the IUU and Seafood Fraud Task Force Action Plan, but that the date by
which importers are required to comply with the requirements in the
rule will be sometime after that. NMFS seeks comment on an appropriate
implementation date or dates, taking into account any time firms may
require to adapt to their practices to comply with the requirements of
this rule as well as logistical considerations such as compliance with
anticipated revisions to ITDS that will allow chain of custody
information to be submitted electronically. As an initial estimate,
NMFS anticipates that firms may need between 90 days and 12 months to
adapt their practices to comply with the requirements of this rule and
proposes an implementation date of somewhere between 90 days and 12
months following publication of the final rule.
In addition to seeking comments on the implementation timeframe for
this first phase of the traceability program, feedback is also sought
on the lead time needed for seafood trade participants to implement
potential expansion of this rule, either by inclusion of additional
species and/or additional data elements. NMFS proposes to implement
changes to reporting or recordkeeping requirements for species and data
elements through notice and comment rulemaking procedures. Future
proposed rules would specify the changes to reporting or recordkeeping
requirements and would direct potentially affected parties to the
pertinent CBP documents (Appendix PGA, PGA Message Set, Implementation
Guide for NMFS) as described in the Customs and Trade Automated
Interface Requirements (CATAIR) available at: http://www.cbp.gov/sites/default/files/documents/ACE%20NMFS%20PGA%20MS%20Guidelines%20-%20July%2022%202015.pdf) that would be developed jointly by NMFS and
CBP to provide the implementation details (e.g., species by HTS code,
data elements, message set format, DIS requirements).
International Cooperation and Assistance
Subject to the availability of resources, NMFS intends to provide
assistance to exporting nations to support compliance with the
requirements of this proposed rule, including by providing assistance
to build capacity to: (1) Undertake effective fisheries management; (2)
strengthen fisheries governance structures and enforcement bodies to
combat IUU fishing and seafood fraud; and (3) establish, maintain, or
support systems to enable export shipments of fish and fish products to
be traced back to point of harvest.
Intersection With Other Applicable Requirements
The proposed requirements for additional data collection at entry
into U.S. commerce for imported at-risk species could intersect with
data collection requirements applicable to imports of those same
species under
[[Page 6219]]
several other authorities. Some of these authorities are related to
combating IUU fishing, while other authorities are aimed at other
concerns such as managing bycatch.
NMFS has previously issued regulations to implement programs for
fishery products subject to RFMO documentation requirements and/or
catch documentation under domestic laws. These regulations pertain to
trade monitoring under three main programs: The HMS ITP, which
regulates trade in specified commodities of tuna, swordfish, billfish,
and shark fins under the MSA and requirements adopted by several tuna
RFMOs to which the United States is a contracting party; the AMLR
program, which regulates trade in Antarctic and Patagonian toothfish
and other fishery products managed under the Convention on the
Conservation of Antarctic Marine Living Resources (CCAMLR); and TTVP,
which regulates trade of purse seine harvested in frozen and/or
processed tuna products under the Marine Mammal Protection Act.
Monitoring authority, conducted under the TTVP, is also provided for
tuna products by the DPCIA, which specifies the conditions under which
tuna products are eligible to be labeled as dolphin-safe.
Many of these monitoring programs require parties who import into
or export, and/or re-export from the U.S. regulated species to: Obtain
a permit from NMFS, obtain documentation on the flag-nation
authorization for the harvest from the foreign exporter, and submit
this information to NMFS. Depending on the commodity, specific
information may also be required, for example: The flag nation of the
harvesting vessel, the ocean area of catch, the fishing gear used, the
name of the harvesting vessel and details and authorizations related to
harvest, landing, transshipment and export/re-export.
In addition to these three programs, NMFS may implement or
recommend trade measures for certain commodities under several other
authorities. The High Seas Driftnet Fishing Moratorium Protection Act
(HSDFMPA) (16 U.S.C. 1826d-k) sets forth a process for identification
and certification of nations for IUU fishing, bycatch of protected
living marine resources, and unsustainable shark fishing. Certain fish
and fish products from identified nations that do not receive positive
certifications could be subject to denial of port privileges and/or
import prohibitions under the authority provided in the High Seas
Driftnet Fisheries Enforcement Act (HSDFEA) (16 U.S.C. 1826a-c). There
are also identification and/or certification procedures in other
statutes, including the Pelly Amendment to the Fishermen's Protective
Act (22 U.S.C. 1978) and the Atlantic Tunas Convention Act (ATCA) (16
U.S.C. 971 et seq.). These procedures may result in trade restrictions
or other measures for fishery products from a certified country that
are associated with the activity that resulted in the certification.
Further, import prohibitions for certain fishery products could also be
applied under provisions of the Marine Mammal Protection Act (MMPA) (16
U.S.C. 1361 et seq.) and other statutes, depending on the circumstances
of the fish harvest and the conservation concerns of the United States.
Multilateral efforts to combat IUU fishing may also result in
requirements to take trade action. The United States is a member or
contracting party to several RFMOs that 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.
Relevant RFMO statutes include the Atlantic Tunas Convention Act (16
U.S.C. 971 et seq.), the Antarctic Marine Living Resources Convention
Act (AMLRCA) (16 U.S.C. 2431 et seq.), the Western and Central Pacific
Fisheries Convention Implementation Act (WCPFCIA) (16 U.S.C. 6901 et
seq.), and the Tuna Conventions Act (TCA) (16 U.S.C. 951 et seq.).
Implementation of such RFMO-derived trade measures may require the
collection of information about certain fish products from certain
countries, including the United States, and some of these existing
measures do involve the at-risk species designated in this proposed
rule.
For existing programs involving collection and reporting of trade
information that overlap with the at-risk species proposed for data
collection in this current rulemaking, NMFS has examined the data
required under those existing programs and has adjusted the NMFS
Message Set specified in the ABI Implementation Guide to ensure that
all regulatory requirements are met while avoiding duplication.
Likewise, NMFS has avoided duplication between the at-risk species data
reporting and recordkeeping requirements contained in this proposed
rule and any documentation requirements affecting designated at-risk
species that have been implemented pursuant to other existing programs.
Should future trade monitoring requirements be applied for designated
at-risk species under any statutory authority, NMFS will consider how
to avoid duplication of data collection accordingly. However, entry
filers should carefully examine the data reporting and recordkeeping
requirements contained in this proposed rule and other applicable
rules, as further explained in the ABI Implementation Guide, for the
commodities that comprise the shipment to ensure that all regulatory
requirements are met for all trade-related programs that are
applicable. The ABI Implementation Guide will be updated by NMFS and
CBP to provide the trade with a single comprehensive resource
addressing all applicable program requirements for imports of fish and
fish products subject to data reporting and recordkeeping requirements
under NMFS statutory authority. NMFS would welcome public comment as to
whether there are any additional duplicative data reporting or
recordkeeping requirements which have not been identified.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq. The NMFS Assistant Administrator has determined that this
proposed action is consistent with the provisions of this and other
applicable laws, subject to further consideration after public comment.
Executive Order 12866
This proposed rule has been determined to be significant for the
purposes of Executive Order (E.O.) 12866 because it may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in E.O. 12866. NMFS has
prepared a regulatory impact review of this action, which is available
from NMFS (see ADDRESSES). This analysis describes the economic impact
this proposed action, if adopted, would have on U.S. businesses and
consumers. NMFS invites the public to comment on this proposal and the
supporting analysis.
The regulatory action being considered, and its legal basis, is
described in the preamble of this proposed rule. This proposed rule
would require a permit (IFTP) for importers of at-risk species.
Additionally, information pertaining to the harvest and landing of the
product prior to U.S. import would be required at the point of entry
into U.S. commerce, and certain records must be retained. With regard
to the possible economic effects of this action, NMFS
[[Page 6220]]
anticipates that U.S. entities would not be significantly affected by
this action because it does not directly restrict trade in the
designated at-risk species and does not pose entirely new burdens with
regard to the collection and submission of information necessary to
determine product admissibility. Some of the data proposed to be
collected at entry or to be subject to recordkeeping requirements is
already collected by the seafood industry in order to comply with food
safety and product labeling requirements. In addition, the majority of
the countries exporting fish and fish products derived from the
designated at-risk species to the U.S. market also export a number of
these same fish and fish products to the European Union (E.U.) market.
Consequently, many harvesting states, port states, and intermediary/
exporting states that would be affected by this rule may already have
comparable information collection systems in place to satisfy the
requirements of E.U. regulation on IUU fishing.
Regulatory Flexibility Act
This proposed rule has been determined to be significant for the
purposes of Executive Order (E.O.) 12866 because it may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in E.O. 12866. An Initial
Regulatory Flexibility Analysis (IRFA) was prepared, as required by
section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes
the economic impact this proposed rule will have on small entities and
includes a description of the action, why it is being considered, and
the legal basis for this action. The purpose of the RFA is to relieve
small businesses, small organizations, and small governmental entities
of burdensome regulations and recordkeeping requirements. Major goals
of the RFA are: (1) To increase agency awareness and understanding of
the impact of their regulations on small business, (2) to require
agencies to communicate and explain their findings to the public, and
(3) to encourage agencies to use flexibility and to provide regulatory
relief to small entities. The RFA emphasizes predicting impacts on
small entities as a group distinct from other entities and the
consideration of alternatives that may minimize the impacts while still
achieving the stated objective of the action. Below is a summary of the
IRFA for the proposed rule which was prepared in conjunction with a
Regulatory Impact Review (RIR). The IRFA/RIR is available from NMFS
(see ADDRESSES).
The primary objective of this proposed rule is to collect or have
access to additional data on imported fish and fish products to
determine that it has been lawfully acquired and is not fraudulent and
to deter illegally caught or misrepresented seafood from entering into
U.S. commerce. These data reporting and recordkeeping requirements
affect inter alia importers of seafood products, many of which are
small businesses. Given the level of imports contributing to the annual
supply of seafood, collecting and evaluating information about fish and
fish products sourced overseas are a part of normal business practices
for U.S. seafood dealers. The permitting, electronic reporting and
recordkeeping requirements proposed by this rulemaking would build on
current business practices (e.g., information systems to facilitate
product recalls, to maintain product quality, or to reduce risks of
food borne illnesses) and are not estimated to pose significant adverse
or long-term economic impacts on small entities.
If this rule is finalized, NMFS estimates there will be
approximately 2,000 new applicants for the IFTP, with an estimated
industry-wide increase in annual costs to importers of $60,000 in
permit fees. Data sets to be submitted electronically to determine
product admissibility are, to some extent, either already collected by
the trade in the course of supply chain management, already required to
be collected and submitted under existing trade monitoring programs
(e.g., tuna, swordfish, toothfish), or collected in support of third
party certification schemes voluntarily adopted by the trade.
Incremental costs are likely to consist of developing interoperable
systems to ensure that the data are transmitted along with the product
to ensure the information is available to the entry filer.
The proposed rule would apply to U.S. entities that import fish and
fish products derived from the designated at-risk species. This
proposed rule would be implemented so as to avoid duplication or
conflict with any other Federal rules. To the extent that the proposed
requirements overlap with other reporting requirements applicable to
the designated at-risk species, this will be been taken into account to
avoid collecting data more than once or by means other than the single
window (ACE portal). As stated above, this rule is intended to allow
NMFS to determine that imported seafood has been lawfully acquired and
is not fraudulently represented and to deter illegally caught or
misrepresented seafood from entering into U.S. commerce. Given the
large volume of fish and fish product imports to the U.S. market, the
number of exporting countries, and the fact that traceability systems
are being increasingly used within the seafood industry, it is not
expected that this rule would significantly affect the overall volume
of trade or alter trade flows in the U.S. market for fish and fish
products that are legally harvested and accurately represented.
NMFS considered several alternatives in this rulemaking: The
requirements described in the proposed rule, a no-action alternative
and various combinations of data reporting and recordkeeping for the
supply chain information applicable to the at-risk species. NMFS
prefers the proposed rule approach, because it would implement the
initial phase of a traceability program as envisioned by
Recommendations 14 and 15 of the Task Force. In addition, it is
consistent with the existing requirement that all applicable U.S.
government agencies are required to implement ITDS under the authority
of the SAFE Port Act and Executive Order 13659, Streamlining the
Export/Import Process (79 FR 10657, February 28, 2014). Also, the
proposed traceability program takes into account the burden of data
collection from the trade and the government requirements for
admissibility determinations.
National Environmental Policy Act
Under NOAA Administrative Order (NAO 216-6), the promulgation of
regulations that are procedural and administrative in nature are
categorically excluded from the requirement to prepare an Environmental
Assessment. These proposed regulations to implement a seafood
traceability program are procedural and administrative in nature in
that they would impose reporting and recordkeeping requirements for
ongoing authorized catch and trade activities. Fishing activity and
trade in seafood products are not further restricted relative to any
existing laws or regulations, either foreign or domestic. Given the
procedural and administrative nature of this rulemaking, an
Environmental Assessment was not prepared.
Paperwork Reduction Act
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. The
information collection burden for the requirements proposed under this
rule
[[Page 6221]]
(IFTP, harvest and landing data submitted at entry, image files
submitted at entry, and provision of records of supply chain
information) as applicable to imports of the designated at-risk species
are estimated to be an increase of 18,542 hours and $278,130.
Recordkeeping/reporting costs (permit application fees at $30 each)
will total $60,000. This proposed rule does not anticipate any other
information collection burden than what is identified in this section,
and therefore is not requesting approval from OMB for the burden
associated with any other aspects of the rule.
Public comment is sought regarding: Whether this proposed data
reporting 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. The public may also wish to comment on how
alternative compliance schedules for these reporting and record keeping
requirements may affect burden. Draft model forms are also available on
both www.regulations.gov and www.reginfo.gov for public review and
comment. Send comments on these or any other aspects of the collection
of information to the NOAA Fisheries Office for International Affairs
and Seafood Inspection at the ADDRESSES above, and by email to
[email protected]">OIRA_[email protected] or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects
50 CFR Part 300
Exports, Fisheries, Fishing, Fishing vessels, Illegal, unreported
or unregulated fishing, Foreign relations, Imports, International trade
permits, Treaties.
50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
Dated: February 1, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300, subpart
R, as proposed to be added December 29, 2015, (80 FR 81251), is
proposed to be further amended and 50 CFR part 600 is proposed to be
amended as follows:
50 CFR CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
1. The authority citation for 50 CFR part 300 continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.; 16 U.S.C. 1801 et seq.; 16
U.S.C. 5501 et seq.; 16 U.S.C. 2431 et seq.; 31 U.S.C. 9701 et seq.
0
2. Further amend Sec. 300.321, proposed to be added December 29, 2015,
(80 FR 81251), by adding a definition for ``Seafood Traceability
Program'' in alphabetical order, and revising the definitions of
``Catch and Statistical Document/Documentation'', ``Documentation and
data sets required under this subpart'' and ``Fish or fish products
regulated under this subpart'' to read as follows:
Sec. 300.321 Definitions.
* * * * *
Catch and Statistical Document/Documentation means a document or
documentation, in paper or electronic form, accompanying regulated
seafood imports and exports that is submitted by importers and
exporters to document compliance with TTVP, AMLR, and HMS ITP trade
documentation programs as described in Sec. 216.24(f) of this title,
and subparts G and M of this part, or the Seafood Traceability Program
as described in this subpart.
Documentation and data sets required under this subpart refers to
documentation and data that must be submitted by an importer or
exporter to NMFS at the time of, or in advance of, the import, export,
or re-export, as well as documentation and data that must be retained
by the importer or exporter of record in conjunction with a filing, for
seafood products regulated under the TTVP, AMLR, and HMS ITP programs
as described in Sec. 216.24(f) of this title, and subparts G and M of
this part, or the Seafood Traceability Program as described in this
subpart.
Fish or fish products regulated under this subpart means species
and products containing species regulated under this subpart, the AMLR
program, the HMS ITP, or the TTVP.
* * * * *
Seafood Traceability Program means the data reporting and
recordkeeping requirements established under Sec. 300.324 of this
title.
* * * * *
0
3. Further revise Sec. 300.323, proposed to be added December 29,
2015, (80 FR 81251), to read as follows:
Sec. 300.323 Reporting and Recordkeeping Requirements.
A person entering for consumption or withdrawal from a foreign
trade zone or bonded warehouse for consumption, exporting, or re-
exporting fish or fish products regulated under this subpart from any
ocean area, or any area of jurisdiction for aquaculture facilities,
must file all data sets, reports, and documentation required under the
AMLR program, HMS ITP, TTVP and Seafood Traceability Program and under
other regulations that incorporate by reference the requirements of
this subpart. A paper or electronic copy of all required reports and
documentation, and all supporting records upon which an entry filing or
export declaration is made, must be maintained by the importer of
record, and made available for inspection, at the importer of record's
place of business for a period of five years from the date of the
import, export or re-export.
0
4. Further redesignate Sec. 300.324, proposed to be added December 29,
2015, (80 FR 81251), as Sec. 300.325 and add new Sec. 300.324 to read
as follows:
Sec. 300.324 Seafood Traceability Program.
This section establishes a Seafood Traceability Program which
comprises data reporting requirements at point of entry for imported
fish or fish products and recordkeeping requirements. The data reported
and retained will facilitate: A determination that the fish or fish
products are not misrepresented or the product of IUU fishing,
including that they were not taken in violation of any foreign law or
regulation, and exclusion of products from entry into U.S. commerce
that are misrepresented or the product of IUU fishing. The data
reporting and recordkeeping requirements under the program enable
verification of the product offered for entry back to the harvesting
event(s).
(a) The following species or species groups are subject to this
Seafood Traceability Program: Abalone; Atlantic Cod; Pacific Cod; Blue
Crab; Red King Crab; Dolphinfish (Mahi Mahi); Grouper; Red Snapper; Sea
Cucumber; Shrimp Sharks; Swordfish; Tunas (Albacore, Bigeye, Skipjack,
Yellowfin,
[[Page 6222]]
and Bluefin). The harmonized tariff schedule numbers applicable to
these species or species groups are listed in the documents referenced
in paragraph (c) of this section. Data required to be reported and
retained under this program is not required for HTS codes applicable to
fish oil, slurry, sauces, sticks, balls, cakes, pudding and other
similar highly processed fish products for which the species of fish
comprising the product or the harvesting event(s) or aquaculture
operation(s) of the shipment of the product cannot currently be
feasibly identified.
(b) In addition to data reporting requirements applicable pursuant
to other authorities and requirements set out elsewhere in U.S. law and
regulation (e.g., under other NMFS programs or CBP requirements) to the
particular commodity offered for entry, the importer of record is
required to provide the following data set in ACE at the time of entry
for each entry containing the species or species groups listed under
paragraph (a) of this section:
(1) Information on the entity(ies) harvesting or producing the
fish: Name and flag state of harvesting vessel(s) and evidence of
authorization; Unique vessel identifier(s) (if available); Type(s) of
fishing gear; Name(s) of farm or aquaculture facility.
(2) Information on the fish that was harvested and processed:
Species of fish (scientific name, acceptable market name, and ASFIS
number); Product description(s); Name of product(s); Quantity and/or
weight of the product(s).
(3) Information on where and when the fish were harvested and
landed: Area(s) of wild-capture or aquaculture location; Date(s) of
harvest or trip(s); Location of aquaculture facility; Point(s) of first
landing; Date(s) of first landing; Name of entity(ies) (processor,
dealer, vessel) to which fish was landed. Some entries may comprise
products from more than one harvest event and each event relevant to
the shipment must be documented.
(4) The NMFS-issued IFTP number for the importer of record.
(c) The importer of record, either directly or through an entry
filer, is required to submit the data under paragraph (b) of this
section through ACE as a message set and/or image files in conformance
with the procedures and formats prescribed by NMFS and Customs and
Border Protection and made available at: http://www.cbp.gov/trade/ace/catair.
(d) Import shipments of fish or fish products subject to this
program may be selected for inspection and/or the information or
records supporting entry may be selected for audit, on a pre- or post-
release basis, in order to verify the information submitted at entry.
(e) In addition to the entry recordkeeping requirements specified
at 19 CFR part 16, the importer of record is required to maintain
records containing information on the chain of custody of the fish or
fish products sufficient to trace the fish or fish product from point
of entry into U.S. commerce to the point of harvest, including
information that identifies each custodian of the fish or fish product
(such as any transshipper, processor, storage facility or distributor).
Such records may include widely used commercial documents such as
declarations by the harvesting/carrier vessels or bills of lading.
Regardless of whether data is reported at entry or maintained by the
importer, the importer must retain records in electronic or paper
format under the recordkeeping requirements specified in Sec. 300.323.
0
5. Revise redesignated Sec. 300.325, proposed to be added December 29,
2015, (80 FR 81251), as Sec. 300.324, to read as follows:
Sec. 300.325 Prohibitions.
In addition to the prohibitions specified in Sec. 300.4, Sec.
300.117, Sec. 300.189, Sec. 600.725 and Sec. 635.71 of this title,
it is unlawful for any person subject to the jurisdiction of the United
States to:
(a) violate any provision of this subpart, or any permit issued
under this subpart.
(b) Import species listed in Sec. 300.324(a) without a valid IFTP
or without submitting complete and accurate information as required
under Sec. 300.324(b)-(c).
50 CFR CHAPTER VI--FISHERY CONSERVATION AND MANAGEMENT, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
6. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
7. In Sec. 600.725, revise paragraph (a) to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(a) Possess, have custody or control of, ship, transport, offer for
sale, sell, purchase, land, import, export or re-export, any fish or
parts thereof taken or retained in violation of the Magnuson-Stevens
Act or any other statute administered by NOAA or any regulation or
permit issued there under, or import, export, transport, sell, receive,
acquire, or purchase in interstate or foreign commerce any fish taken,
possessed, transported, or sold in violation of any foreign law or
regulation, or any treaty or in contravention of binding conservation
measure adopted by an international agreement or organization to which
the United States is a party.
* * * * *
[FR Doc. 2016-02216 Filed 2-4-16; 8:45 am]
BILLING CODE 3510-22-P