[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Rules and Regulations]
[Pages 88975-88998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29324]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 300 and 600
[Docket No. 150507434-6638-02]
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: Final rule.
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SUMMARY: Pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), this final rule establishes permitting, reporting
and recordkeeping procedures relating to the importation of certain
fish and fish products, identified as being at particular risk of
illegal, unreported, and unregulated (IUU) fishing or seafood fraud, 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 or in
contravention of a treaty or a binding conservation measure of a
regional fishery organization to which the United States is a party.
Collection of catch and landing documentation for certain fish and fish
products will be accomplished through the government-wide International
Trade Data System (ITDS) by electronic submission of data through the
Automated Commercial Environment (ACE) maintained by the Department of
Homeland Security, Customs and Border Protection (CBP). The information
will be collected through the ITDS electronic single window consistent
with the Safety and Accountability for Every (SAFE) Port Act of 2006
and other applicable statutes. Specifically, this rule revises an
existing NMFS requirement for the importer of record to file
electronically through ACE data prescribed under certain existing NMFS
programs (and to retain records supporting such filings) to also cover
the data required to be reported under this rule. This rule requires
data to be reported on the harvest of fish and fish products. In
addition, this rule requires retention of additional supply chain data
by the importer of record and extends an existing NMFS requirement to
obtain an annually renewable International Fisheries Trade Permit
(IFTP) to the fish and fish products regulated under this rule. The
information to be reported and retained, as applicable, under this rule
will help authorities verify that the fish or fish products were
lawfully acquired by providing information to trace each import
shipment back to the initial harvest event(s). The rule will also
decrease the incidence of seafood fraud by requiring the reporting of
this information to the U.S. Government at import and requiring
retention of documentation so that the information reported (e.g.,
regarding species and harvest location) can be verified.
DATES: Effective date: This final rule is effective January 9, 2017.
Title 50 CFR 300.324(a)(3) is stayed indefinitely. NMFS will publish a
document in the Federal Register lifting the stay and announcing the
effective date of 50 CFR 300.324(a)(3).
Compliance date: The compliance date for this rule for the species
included at 50 CFR 300.324(a)(2) is January 1, 2018.
ADDRESSES: Applications for the International Fisheries Trade Permit
may be completed and submitted at: https://fisheriespermits.noaa.gov/.
Copies of the Final Regulatory Impact Review, Final Regulatory
Flexibility Analysis and the information collection
[[Page 88976]]
request submitted to OMB may be obtained at: http://www.iuufishing.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Christopher Rogers, 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 Task Force provided recommendations 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).
Of the recommendations advanced to the President, Recommendations
14 and 15 called for 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. The multiple steps toward implementation of
Recommendations 14 and 15, as set out in the Task Force Action Plan,
were described in the preamble to the proposed rule (81 FR 6210,
February 5, 2016) and are not repeated here (see also https://www.regulations.gov/docket?D=NOAA-NMFS-2014-0090).
The proposed rule set forth a program of permitting, reporting and
recordkeeping applicable to importers of record for imported fish and
fish products within the scope of the initial phase of the seafood
traceability program. A number of public webinars and meetings were
held to explain the proposed rule and to take comments about the
potential impacts of the trade reporting and recordkeeping requirements
on entities engaged in seafood trade. Written comments that were
received through the Federal e-rulemaking portal are available for
viewing in the docket for this rulemaking (see https://www.regulations.gov/docket?D=NOAA-NMFS-2015-0122).
Comments and Responses
NMFS received comments on the proposed rule from fishing industry
groups, including fish importers, processors, trade organizations, non-
governmental organizations (NGOs), private citizens, other government
agencies, and foreign governments. Comments are summarized by category
and NMFS responses are presented. NMFS received more than 67,933
signatures on group comment letters from private citizens through
environmental NGOs supporting implementation of the Seafood Import
Monitoring Program (Program). Comments are summarized by category and
NMFS responses are presented.
Several comments received were not germane to this rulemaking and
are not addressed in this section. These comments addressed actions
outside the scope of the statutory mandate (e.g., sharing information
with consumers) or actions covered under other rulemakings (e.g., the
International Trade Data System integration or the Marine Mammal
Protection Act fish import requirements.) In the following section,
NMFS responds to the specific comments applicable to this rulemaking.
General Comments
Comment 1: Many commenters asked the agency to implement a Seafood
Inspection Monitoring Program that includes all seafood and
traceability from the point of harvest to the point of final sale, and
to incorporate consumer labeling.
Response: 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. The
NOC Committee will issue a report that includes an evaluation of the
program as set out in a final rule, as well as recommendations of how
and under what timeframe it would be expanded and measures that could
be taken to provide traceability information to the consumer.
In recognition of the fact that expansion of the seafood
traceability program to include all species will result in the
inclusion of species having a lower perceived risk of IUU fishing and
seafood fraud, NMFS will refer to the species that have been identified
as ``at-risk'' of IUU fishing and seafood fraud as ``priority'' species
in this rulemaking and associated guidance and outreach materials. See
response to Comment 14 below for additional discussion on the
transition from use of the term ``at risk'' in the final rule.
Comment 2: NMFS received numerous comments questioning the extent
to which the rule, as proposed, meets U.S. obligations to comply with
international trade agreements, and in particular with respect to
national treatment.
Response: As described in the preamble to the proposed rule, this
regulation addresses only the collection of information on imported
fish and fish products at the point of entry into U.S. commerce. 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. For U.S. aquaculture products, entry
into U.S. commerce is the first sale to a processor or directly to a
consumer market.
For the priority species to which this rule applies, 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 regulation does not duplicate data reporting
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 or production to entry into U.S.
commerce for imported fish and fish products.
However, current data collection for U.S. aquacultured shrimp and
abalone is not equivalent to the data that would be reported for
imports. Consequently, the effective date of this rule for imported
shrimp and abalone products is stayed indefinitely.
Comment 3: A number of comments were driven by assumptions that,
through this rulemaking, NMFS intended to require that fish and fish
products from individual harvest events be segregated throughout the
supply chain and identifiable by harvest event at the point of entry
into U.S. commerce.
Response: NMFS clarifies that segregation of harvest events through
the supply chain was not an intended requirement in the proposed rule
and is not a requirement in the final rule.
[[Page 88977]]
Instead, a product offered for entry may be comprised of products from
more than one harvest event. In such instances, an importer of record
must provide information on each harvest event relevant to the contents
of the shipment offered for entry but does not need to provide specific
links between portions of the shipment and particular harvest events.
See response to Comment 27 for further discussion. A mass balance
calculation will not be applied at the time of entry to determine
admissibility of the shipment because all of the product from any
single harvest event may not be exported to the U.S. market.
Scope of the Program
Comment 4: Several commenters from the seafood industry expressed
their opinion that the Program will not combat illegal fishing and
seafood fraud, arguing that limited resources to combat these issues
would be most effectively spent on international capacity building.
Response: NMFS and the other agencies contributing to this effort
agree that the Program will in fact serve to reduce IUU fishing. 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'' which
established and directed the President's Task Force on Combating
Illegal, Unreported and Unregulated Fishing and Seafood Fraud to
develop a comprehensive framework of integrated programs to combat IUU
fishing and seafood fraud that emphasizes areas of greatest need. Per
the Task Force's recommendations, it is in the national interest to
prevent the entry of illegal seafood into U.S. commerce. Creating the
Program, an information system that better facilitates data collection,
sharing, and analysis among relevant regulators and enforcement
authorities is a significant step forward in addressing IUU fishing and
seafood fraud. The National Ocean Council Committee on IUU Fishing and
Seafood Fraud continues to move forward on all of the 15
recommendations of the Task Force, including development of a program
for capacity building and assistance as called for in Recommendation 6
of the Task Force action plan. The approach to capacity building will
include technical assistance with fisheries governance, monitoring,
recordkeeping and enforcement. For more information please visit
www.iuufishing.noaa.gov.
Comment 5: NOAA received several comments regarding the inclusion
of aquaculture products in the Program, noting that the application of
measures to combat IUU fishing to aquaculture products is
inappropriate.
Response: NOAA agrees that IUU fishing is not a concern directly
related to the aquaculture industry. That said, the recommendations of
the Presidential Task Force were intended to combat both IUU fishing
and seafood fraud, and the scope of its recommendation to establish a
seafood traceability program includes both wild-capture and aquaculture
fish and fish products. Specifically, the Program is intended and
designed to trace seafood from its entry into commerce back to the
point of harvest or production. Inclusion of aquaculture products in
the Program addresses several concerns. First, some imported fish
products are sourced from both wild capture fisheries and aquaculture
operations, yet are indistinguishable in product form. Excluding
aquaculture products from the import reporting requirement of the
Program presents enforcement issues if shipments are declared to be of
aquaculture origin with no information to support such declaration.
Additionally, similar to wild capture fisheries, aquaculture operations
are likely to be subject to foreign laws or regulations pertaining to
licensing and reporting on production and distribution; importation of
aquaculture products harvested in violation of those laws would make
them subject to the MSA provision under which this rule is promulgated.
Finally, evidence exists that aquaculture products have been subject to
various types of product misrepresentation, some of which can cause
risk to human health. As is the case for wild capture fisheries,
collecting information on the origin of aquaculture products supports
the determination of conformance with foreign law or regulation,
including the determination that the fish products are not fraudulently
misrepresented.
Comment 6: NMFS received comment that, with respect to
misrepresented products, the Program is redundant to existing Food and
Drug Administration (FDA) programs and authorities. A commenter also
questioned whether MSA section 307(1)(Q) provided authority to
determine if seafood imports were the product of unregulated or
unreported fishing.
Response: NMFS disagrees that the Program is redundant with
existing programs and authorities. When developing its recommendations
to the President, the Task Force on Combating IUU Fishing and Seafood
Fraud considered existing rules and authorities and determined that
measures to ensure that misrepresented products do not enter the U.S.
market should be expanded. The Task Force's evaluation indicated the
need to develop and implement a seafood traceability program that
placed greater scrutiny of the source of seafood products and on the
entire supply chain from point of harvest to entry into U.S. commerce.
While existing authorities empower the FDA to enforce the accuracy of
seafood labeling and trace food products through the supply chain, it
does not currently administer any laws or programs which enable the
U.S. government to ensure that seafood products imported into the
United States were not taken, possessed, transported, or sold in
violation of any foreign law or regulation. For example, the co-
mingling of legally harvested and IUU seafood products between the
point of harvest and entry into U.S. commerce would not be identified
by existing FDA inspections.
MSA section 307(1)(Q) prohibits, among other things, imports of
fish ``taken, possessed, transported, or sold in violation of any
foreign law or regulation or any treaty or in contravention of any
binding conservation measures adopted by an international agreement or
organization to which the United States is a party.'' 16 U.S.C.
1857(1)(Q) (emphasis added). To effectively enforce this section, NMFS
is adopting the reporting and recordkeeping requirements set forth in
this rule. NMFS has broad discretion under the MSA to promulgate
regulations as necessary to carry out provisions of the MSA. Id.
1855(d).
Comment 7: A number of comments were received urging NMFS to
establish data collection programs for domestic shrimp and abalone
aquaculture production to ensure that shrimp and abalone can be
included in the Program when it begins.
Response: As described in the preamble to the proposed rule, gaps
exist in the collection of traceability information for domestic
aquaculture-raised shrimp and abalone, which is currently largely
regulated at the state level. (81 FR 6212, February 5, 2016). Since
publication of the proposed rule, NMFS has explored the opportunity to
work with its state partners to establish reporting and recordkeeping
requirements for aquaculture traceability information that could be
shared with NMFS. However, this did not prove to be a viable approach
at the present time. NMFS is thus staying the effective date of the
rule as it pertains to shrimp and abalone until appropriate reporting
and/or recordkeeping requirements for domestic aquaculture production
can be established. To that
[[Page 88978]]
end, NMFS is continuing to work with its Presidential Task Force
partner agencies with respect to measures that could be adopted to
close the gaps and to ensure comparability between traceability
requirements and NMFS' access to traceability information for imported
and domestic shrimp and abalone.
For example, FDA, whose parent agency Health & Human Services is
also a member of the Presidential Task Force, is currently exploring
which of its authorities could fill the gap, including regulations that
would require designating high risk foods for certain additional
recordkeeping by food processors under the authority of section 204 of
the Food Safety Modernization Act (21 U.S.C. 2223), which addresses
enhanced tracking and tracing of food through recordkeeping and was
passed by Congress in 2011. See, e.g., Designation of High-Risk Foods
for Tracing; Request for Comments and Scientific Data and Information
(79 FR 6596, February 4, 2014). Such additional recordkeeping
requirements to enhance food safety are expected to facilitate FDA's
ability to track the origin of and prevent the spread of foodborne
illness. FDA is also planning to make revisions to its Seafood Hazard
Analysis and Critical Control Points (Seafood HACCP) provisions.
As FDA conducts this work, NMFS, together with the other
Presidential Task Force agencies, would assess the extent to which
FDA's program, or other changes in state or federal law or regulation,
have resulted in closing gaps in traceability requirements between
domestic and imported shrimp and abalone. At such time that the
domestic reporting and recordkeeping gaps have been closed, NMFS will
then publish an action in the Federal Register to lift the stay of the
effective date for Sec. 300.324(a)(3) of the rule pertaining to shrimp
and abalone. Adequate advance notice to the trade community would be
provided in setting the effective date so that producers, processors,
exporters and importers will have the opportunity to establish
recordkeeping and reporting systems necessary to comply with the
program.
Comment 8: One commenter asserted that NMFS only has the authority
to trace aquaculture conducted in federal waters.
Response: Under the Magnuson-Stevens Act, NMFS cannot establish
reporting requirements for domestic aquaculture that occurs within
state waters or in terrestrially located facilities, which is where
most domestic aquaculture occurs.
Comment 9: A number of commenters proposed that NMFS include
reporting on production method for aquaculture imports of priority
species, as a way to ascertain whether the feed used to raise imported
farmed fish may have been illegally harvested.
Response: The Task Force clearly defined traceability for the
purpose of the Program as beginning at the point of harvest for wild-
capture fisheries, and at the point of production for aquaculture
products. Therefore, it is outside the scope of Program to trace feed
sources for imported aquaculture seafood, even if those feeds contain
priority species.
Comment 10: NMFS received comments questioning the appropriateness
of addressing both IUU fishing and seafood fraud through one data
collection program.
Response: While IUU fishing and seafood fraud are indeed different
issues, both can be effectively addressed through traceability within
the scope of the Program (from the point of harvest or production to
entry into U.S. commerce) because both are enabled by lack of
transparency within the seafood supply chain. Many commenters referred
to seafood fraud further down in the supply chain--at the dealer and
wholesale level--and NMFS acknowledges these concerns but notes that
they are beyond the scope of the Program.
Comment 11: Several groups suggested various reasons and methods
for which the Program can and should be used to combat forced labor in
the seafood industry.
Response: While NMFS agrees that forced labor and unfair labor
practices are important issues in several fisheries and in the fish
processing sector, the stated objective of the Program is to trace
seafood products from the point of entry into U.S. commerce back to the
point of harvest or production for the purpose of ensuring that
illegally harvested or falsely represented seafood does not enter U.S.
commerce. The data elements captured by the reporting and recordkeeping
requirements were chosen to serve this specific objective. Data
collected under the authority of the Magnuson-Stevens Act is considered
to be confidential and may not be shared publicly. However, subject to
the data confidentiality provisions of the Magnuson-Stevens Act (16
U.S.C. 1881a (b)), and other federal law, NMFS will provide information
regarding entries of seafood product to aid in the investigation or
prosecution of labor crimes by one of the U.S. government agencies that
has the mandate and authority to do so. NMFS will determine the legal
basis to share such information with those government agencies for such
enforcement purposes.
Species and Harmonized Tariff Schedule Codes
Comment 12: Several commenters questioned the description of
species included in this rulemaking as ``at-risk'' and suggested that
NMFS had failed to provide adequate rationale for inclusion of certain
species in the Program. Commenters also recommended that species be
added or removed from the initial phase of Program. Species suggested
for addition included orange roughy, skates and rays. Species suggested
for removal include Atlantic and Pacific cod, shrimp, and blue crab, in
some cases on the basis that keeping individual harvest events
separated throughout the supply chain would place an unnecessary burden
on industry relative to the risk of IUU fishing for these species.
Response: NMFS led a rigorous, interactive public process to
identify the priority species for the Program and did not find
sufficient new information from commenters to warrant changes to the
``at-risk'' (now referred to as, ``priority'') species list as was
included in the proposed rule. The Presidential Task Force on Combating
Illegal, Unreported and Unregulated Fishing and Seafood Fraud directed
development of an initial traceability program for seafood products of
particular concern because the species at issue are subject to
significant seafood fraud or because they are at significant risk of
being caught through IUU fishing.
In developing the seafood traceability program, NMFS requested and
received extensive public comment regarding principles for identifying
species at particular risk of IUU fishing or seafood fraud and on the
application of those principles to a list of candidate species. An
interagency expert working group reviewed public comments and
confidential enforcement information and developed a draft list of
``at-risk'' species and once again sought public comment prior to
publication of the final list of species to which this rule applies in
October 2015 (80 FR 66867, October 30, 2015). In publishing the final
list of species, NMFS provided the rationale for inclusion of each
species on the list. NMFS considers the list of species to which this
rule applies to be accurately and appropriately identified as those
species most ``at-risk'' of IUU fishing or seafood fraud. The issue of
reporting burden with respect to the risks applicable to particular
species will become less relevant as traceability systems expand in
global commerce and industry improves its ability to comply
[[Page 88979]]
with them in a cost-effective manner. However, the response to Comment
42 below addresses reporting burden issues for this initial phase of
the Program.
Comment 13: Several commenters requested that species managed under
Regional Fisheries Management Organization (RFMO) catch documentation
schemes (CDS) be excluded from the scope of this rule.
Response: Bluefin tuna is the only priority species currently
managed under an RFMO CDS, and NMFS, in the preamble to the proposed
rule, discussed its reasons for inclusion in the Program. 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 RFMOs implemented a CDS 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, 2015, NMFS proposed to cover bluefin
tuna in this rule (and has therefore included the HTS codes for bluefin
tuna in the list of HTS codes to which this rule applies) in order to
establish consistent treatment of tuna species, and avoid possible
concerns that one species of tuna may be treated differently than
others and therefore affect certain producers less favorably.
Comment 14: NMFS received comments from members of the domestic
seafood sector as well as from several national governments expressing
the opinion that the determination of ``at-risk'' was an implicit
indictment of the management and biological status of fisheries for
those species both in the United States and abroad and expressing
concern that the inference will have a negative impact on the
consumer's willingness to purchase products from those fisheries.
Response: NMFS has been clear about the fact that identification of
priority species has been necessarily broad with respect to both area
(it is applied at the species level without distinction of specific
fisheries across the geographic range of the species) and principles
(species were identified as priority on the basis of IUU-related
principles, seafood fraud related principles, or any combination
thereof). Records and data from both domestic and international sources
were considered by the priority species working group. The process for
making these determinations is described at: http://www.iuufishing.NMFS.gov/RecommendationsandActions/RECOMMENDATION1415.aspx.
NMFS has been clear throughout the process that inclusion of any
species in the risk-based first phase of implementation of this seafood
traceability program should not be considered in any way an indictment,
either explicit or implicit, of the management system or biological
status of a fishery in the United States or any foreign nation. NMFS
believes that the seafood traceability program will ultimately serve to
reassure the U.S. seafood consumer that seafood products harvested in,
or imported to, the United States are harvested legally and conveyed
through a transparent supply chain.
Comment 15: NMFS received a number of comments noting that priority
species could be imported under HTS codes not listed in the proposed
rule, and that some HTS codes not listed clearly contain priority
species (e.g. Shrimp frozen in ATC, canned light meat tuna) while other
HTS codes for highly processed products could contain priority species
(e.g. Fish NSPF Dried, Marine Fish NSPF Frozen).
Response: NMFS notes that importers are legally obligated under CBP
regulations to use the most detailed and descriptive HTS code
applicable to the product being entered (see 19 CFR 141.90), and NMFS
will monitor shifts in HTS code usage to ensure that importers are not
illegally avoiding obligations to provide information pursuant to this
rule through the use of less specific codes. While it remains
operationally infeasible to apply this rule to all highly-processed
products, NMFS will include in the set of HTS codes to which the
Program applies all seafood products, including highly processed
products, for which the priority species can be accurately determined
and tracked from its point of harvest. NMFS will not apply this rule to
HTS codes representing products such as fish oil, slurry, sauces,
sticks, balls, cakes, puddings, meal 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 product
being entered, cannot be feasibly identified, either through
inspection, labeling, or HTS code. NMFS disagrees that the failure to
apply the rule to those products would provide sufficient economic
incentive for businesses to increase production of highly processed
products over traditional product forms in order to circumvent the
requirements of the rule.
Comment 16: One commenter noted that a number of duplicate HTS
codes were listed in the proposed rule.
Response: NMFS has removed duplicate HTS codes in the associated
compliance guide, where HTS codes applicable to this rule will be
updated as needed. This approach, which NMFS has used in other recent
rulemakings, allows the agency to update the list of applicable HTS
codes for priority species as described in the rule in the compliance
guide as codes are revised by the U.S. International Trade Commission
and published in the Federal Register (see 19 U.S.C. 1202). NMFS,
however, wants to be clear that the expansion of the Program through
its application to additional species will require new rulemaking with
opportunity for public comment.
Comment 17: NMFS received comments expressing concern that
importers may resort to the use of generic HTS codes in order to
circumvent reporting and recordkeeping requirements associated with the
Program and suggesting that those HTS codes should be included in the
rule. One commenter identified several HTS codes for priority species
products that were not included in the publication of the proposed
rule.
Response: NMFS acknowledges the potential risk that an importer
seeking to circumvent the requirements of this rule might attempt to
utilize a more general HTS code to which the rule is not being applied.
As NMFS noted in the response to Comment 15, importers are legally
obligated to use the most detailed and descriptive HTS code applicable
to the product being entered. Therefore, if a more specific HTS code
(to which this rule is applied) is not used for the entry filing, such
misspecification would be a violation of customs regulations. NMFS
considered applying this rule to generic (non-species specific) HTS
codes and requiring a disclaimer from the importer of record that the
shipment does not include any of the species to which the Program
applies, but decided against doing so as it would expand considerably
the universe of importers required to obtain an International Fisheries
Trade Permit for the sole purpose of making that disclaimer. NMFS does
not consider such an approach to be a reasonable burden on the trade
community for the initial phase of the Program. NMFS will monitor for
significant increases in the
[[Page 88980]]
use of generic HTS codes or decreases in the use of HTS codes to which
this Program applies.
NMFS has made corrections to the list of HTS codes to which the
rule is applied. This list is not included in the regulatory language
but will instead be described in the compliance guidance. This will
allow for technical corrections and adjustments in the list of HTS
codes applicable to the priority species without requiring additional
rulemaking.
Comment 18: NMFS received numerous comments regarding the use of
various combinations of names and codes for providing species
information under this rulemaking.
Response: Per the recommendation of the interagency working group
for the Presidential Task Force's Recommendation 10, the proposed rule
required that for each entry, the scientific name, the accepted common
name, and the United Nations Food and Agriculture Organization's (FAO)
Aquatic Sciences and Fisheries Information System (ASFIS) 10-digit
number and 3-alpha code must be reported. The recommendation and its
inclusion in the proposed rule intentionally created redundancies
within that data reporting element that would serve as a ``cross-
check'' to reduce unintentional reporting errors.
NOAA agrees that reporting all three (scientific name, common name,
and ASFIS code) may represent an unnecessary burden on industry and
has, therefore, modified the rule to require only the ASFIS 3-alpha
code. NOAA is confident that elimination of the requirement to report
the scientific and common name of the fish or fish products while
requiring the use of the ASFIS 3-alpha code will not diminish the
effectiveness of the Program. If needed, a cross-check can be made
between the product description reported to CBP, the HTS code, the
product code reported to FDA, and the ASFIS 3-alpha code.
Data Requirements/Elements
Comment 19: A number of comments were received requesting clarity
on expectations for the fishing area data element, whether it be FAO
area, exclusive economic zone (EEZ), GPS coordinates (as the European
Union (EU) requires) or otherwise.
Response: In consideration of comments received regarding area of
wild capture, NMFS has described the format and coding for this data
element in greater detail in the NMFS Implementation Guide posted by
CBP at http://www.cbp.gov/trade/ace/catair. Several format options are
recognized given the many differences in data collection and reporting
conventions world-wide. For fisheries conducted in a nation's exclusive
economic zone (EEZ) or territorial waters, the area of wild capture is
the area that the competent authority exercising jurisdiction over the
wild capture operation requires to be reported (e.g., sub-area of the
harvesting nation's EEZ). If no such reporting requirement exists, then
for fishing within the EEZ, the area of wild capture is specified using
the relevant International Organization for Standardization (ISO) 2-
alpha code. See http://www.fao.org/3/a-az126e.pdf and ftp://ftp.fao.org/FI/STAT/by_FishArea/Fishing_Areas_list.pdf. For fishing
beyond national jurisdiction, the United Nations Food and Agriculture
Organization (FAO) Major Fishing Area codes (http://www.fao.org/fishery/cwp/handbook/H/en) should be used. Specific instructions for
reporting fishing area are provided in the NMFS Implementation Guide.
Comment 20: A number of commenters suggested that NMFS include
transshipment information as a reporting data element.
Response: NMFS acknowledges the value and importance of tracking
transshipment information as a tool for combating IUU fishing. As
drafted, the rule establishes access to this data by NMFS through
audits of chain of custody information for selected entries. During the
first year of implementation of the Program, NMFS will consider key
chain of custody data elements that could be established as mandatory
reporting requirements; as part of that process, the merits of
requiring the reporting of transshipment data will be assessed. Any new
mandatory reporting requirements for chain of custody data would be
promulgated through a rulemaking.
Comment 21: NMFS received several comments regarding the value of
using established naming and code conventions for fishing gear.
Response: As with fishing area, in response to comments, NMFS is
providing further detail on the format and coding for the fishing gear
data element in the NMFS Implementation Guide posted by CBP at http://www.cbp.gov/trade/ace/catair. The type of fishing gear should be
specified per the reporting convention and codes used by the competent
authority exercising jurisdiction over the wild capture operation. If
no such reporting requirements exist, the FAO fishing gear code should
be used. See http://www.fao.org/fishery/cwp/handbook/M/en (providing
International Standard Statistical Classification of Fishing Gear).
Comment 22: Several groups commented on the requirement of
Automatic Identification Systems and International Maritime
Organization numbers for all fishing vessels whose seafood is imported
into the United States.
Response: While noting that some entities utilize Automatic
Identification System (AIS) for vessel monitoring, the purpose of AIS
is to ensure vessel safety at sea and AIS is not an appropriate
substitute for a Vessel Monitoring System (VMS) as a primary means of
vessel monitoring for fisheries. The fifteen Task Force recommendations
for combating IUU fishing and seafood fraud represent a broad set of
tools and strategies for combating IUU fishing including international
engagement, enforcement authorities, partnerships, and supply-chain
transparency. Specifically, Recommendation 3 speaks to the enhancement
of maritime domain awareness, a goal for which AIS may be, in certain
circumstances, an effective tool.
Recommendation 2 of the Task Force Action Plan focuses on efforts
to advance the elimination of IUU fishing through Regional Fishery
Management Organizations. Within those fora and others, the U.S.
government has consistently advocated for use of unique, permanent
identifiers in support of a global record. Included in the set of data
elements to be reported at the time of entry for wild-capture fish and
fish products is the ``unique vessel identifier(s)'' (if available).
For larger scale vessels, this may be a number assigned by the
International Maritime Organization, or an identifier assigned by a
Regional Fishery Management Organization. Smaller scale vessels may be
assigned registration numbers by national or regional governments.
Reporting and Recordkeeping
Comment 23: Numerous commenters provided detailed feedback
regarding the significant burden that the Program's data collection
requirements would pose to small-scale fisheries. In addition to the
substantial number of individual catches that could be contained in a
single shipment of seafood, and the burden to industry that reporting
each of those harvest events would represent, it was noted that small
commercial fishing vessels in some developing countries are not
required to have unique vessel identifiers, and in some cases unique
identifiers for small vessels are required but not enforced. NMFS was
also asked to consider the EU's approach to an aggregated
[[Page 88981]]
reporting for small-scale fisheries in an effort to reduce the burden
to industry.
Response: NMFS agrees that small-scale fisheries should be
addressed. To this end, the final rule would exempt an importer from
providing vessel- or aquaculture facility-specific information, if the
importer provides other required data elements based on an aggregated
harvest report. The rule defines aggregated harvest report as a record
that covers: (1) Harvests at a single collection point in a single
calendar day from small-scale vessels (i.e., twelve meters in length or
less or 20 gross tons or less); (2) landing by a vessel to which
catches of small-scale vessels were made at sea; or (3) deliveries made
to a single collection point (processing facility, broker, or
transport) on a single calendar day by aquaculture facilities that each
deliver 1,000 kg or less in that day. Even if there is an Aggregated
Harvest Report, the importer must still provide all of the information
required under Sec. 300.324(b)(2)-(3), (e.g., total quantity and/or
weight of the product(s) as landed/delivered, harvest or landing date,
fishing area, species).
This provision will substantially reduce the amount of data that is
required to be provided by importers of record of seafood originating
from small-boat fisheries. NMFS does not consider this provision to
negatively impact the effectiveness of the Program. As explained above,
in order to invoke the exemption, an importer must provide data based
on an aggregated harvest report. That report will record information on
aggregated harvests or landings and establish the point to which a
trace back would occur. This will enable NMFS to ascertain the
jurisdiction/authority whose laws and regulations are relevant to the
harvests or landings. NMFS notes that, in its catch certification
program design, the European Union established similar provisions to
address concerns related to small vessels.
Comment 24: Two commenters noted that the 5-year recordkeeping
requirement could be burdensome to industry.
Response: In many federally-managed fisheries, recordkeeping is
required for 2 years, and that time frame has proven to be effective
for enforcement purposes. In the final rule, NMFS has reduced the
record retention period from 5 to 2 years and has accounted for the
costs associated with data storage in the final regulatory flexibility
analysis. However, importers must take note that CBP recordkeeping
requirements may differ from NMFS requirements, depending on the
commodity and the circumstances of entry filing.
Comment 25: A number of comments from foreign industry sectors and
governments requested decreased reporting or recordkeeping requirements
at the national level, similar to the individual national reporting
forms for some countries under the EU catch documentation scheme.
Response: NMFS will not offer nation-level treatment differences
because, unlike the EU system which requires nation-level
certification, the Program does not lend itself to nation-level
treatment or considerations. Under the Program, accuracy in
recordkeeping and reporting is the responsibility of the IFTP holder
for seafood imports from any nation. The basic data about the harvest
event are necessary to enable NMFS to ascertain the jurisdiction/
authority whose laws and regulations are relevant to harvests or
landings.
Comment 26: One commenter suggested that some or all of the harvest
and landing data to be reported at the time of entry should be moved to
the category of ``summary data'' that can be provided up to 10 days
following the date of entry.
Response: NMFS believes that delayed reporting of key harvest and
landing data could undermine its ability to apply risk-based
enforcement strategies to identify IUU-sourced and misrepresented
seafood and prevent the entry of such seafood into U.S. commerce. While
NMFS does not intend to ask that CBP hold all shipments until reported
data are verified, it will make that request when intelligence or risk
analysis indicates that the source of the entry should be scrutinized.
The final rule therefore requires that all data be reported at the time
of entry. NMFS will reconsider this comment in the context of the
elements and design of a Commerce Trusted Trader Program. See response
to Comment 34 for further information.
Comment 27: NMFS received several comments regarding the logistical
feasibility of tracking seafood from entry into U.S. commerce back to
point of harvest or production, particularly in situations involving
complex chains of custody and co-mingling of products from numerous
harvest events, fishing areas, and processing facilities.
Response: NMFS points out that complexity of the supply chain was
one of the principles established to determine the list of priority
species to which this rule will initially apply, and the reporting and
recordkeeping requirements of the rule will enhance NMFS' ability to
track product from point of harvest to entry into U.S. commerce.
NMFS acknowledges that co-mingling of product is an established and
essential practice within the seafood supply chain and does not
consider the tracing of like products from each individual harvest
event through one or more co-mingling processes to be logistically
feasible or necessary for the success of the Program. Under this rule,
in cases where product offered for entry is comprised of one or more
events of co-mingling of fish (e.g., at the landing point, processor,
re-processor, etc.), the importer of record would be required to
provide data on all harvest events contributing to the product(s)
offered for entry that are made from priority species subject to this
rule. The rule does not require, however, that the importer provide
data linking each unit (e.g., each fish, fillet, block, etc.) of the
product(s) offered for entry to a specific harvest event. This will in
some cases result in reported harvest records totaling more than the
product weight of the shipment in question, but mass balance is not a
criterion for admissibility. Reporting requirements under the Program
will enable NMFS to ascertain, among other things, the jurisdiction/
authority whose laws and regulations are relevant to harvests or
landings.
Comment 28: NMFS received comment that the proposed requirement
that importers of record retain chain of custody records for five years
creates a significant burden that could be mitigated by allowing
suppliers to retain records and provide them to importers as needed.
Response: One of the Program's basic design objectives is that
importers devote adequate attention to their supply chain so as to
confirm that the fish and fish products that they are importing were
legally harvested and are accurately represented. NMFS has therefore
maintained a recordkeeping requirement in the final rule, and as noted
in response to Comment 24, has reduced the requirement from 5 to 2
years. For purposes of this record keeping, digital records are
entirely acceptable.
Comment 29: NMFS received comment stressing that the timeline for
expanding the reporting requirements for inclusion of chain of custody
information in the ITDS message set should be specified in the final
rule.
Response: The preamble to the proposed rule for the Program
describes NMFS' intent to consider, during the first year of
implementation of the Program, key chain of custody data elements to be
reported rather than kept
[[Page 88982]]
as records as currently proposed. Modifying that requirement of the
Program will require additional rulemaking.
NMFS chose to not require the reporting of chain of custody
information at this time for three primary reasons: (1) Introduction of
data elements that are less similar to those message sets already
developed for ITDS implementation of NMFS-administered catch
documentation programs would very likely expand and prolong the ITDS
programming requirements, resulting in implementation uncertainty; (2)
were NMFS to require document images as a means to collect chain of
custody data at the time of entry, it would have no way of manipulating
and analyzing the data through automated processes as it can with data
provided through the ITDS message sets; and (3) chain of custody events
represent a broad and diverse universe of potential movements and
transactions and cannot, without some analysis of baseline reports,
establish standardized chain of custody data elements that will be
useful for screening entries and informing risk-based enforcement.
Following implementation of the Program, NMFS intends to evaluate
chain of custody information as part of the post-entry auditing
process. These evaluations will, over time, inform the Agency as to the
types of chain of custody data that can feasibly be collected through
the ITDS reporting process and the costs and benefits associated with
requiring reporting of the additional data.
Harmonization/Intersection With Other Relevant Programs/Requirements
Comment 30: NMFS received several comments asking that it consider
potential interfaces of the Program and third-party traceability and
certification entities. One commenter advised that NMFS take care in
not expressing an implicit endorsement or requirement for use of, or
participation in, any such third-party programs as a condition for
compliance with the rule.
Response: The Program neither prevents nor requires the use of
third-party certification or traceability systems in support of
compliance with its reporting and recordkeeping requirements. NMFS
acknowledges that some third-party programs use data similar to that
required by the Program. To the extent that third-party traceability
systems or certification programs serve as conduits for data elements
described in this rule, there is nothing prohibiting the importer of
record or their authorized agent from utilizing those data, either
manually or electronically, to meet the Program reporting requirements
or from using those systems to meet Program recordkeeping requirements.
The Program thus affords flexibility in terms of meeting reporting and
recordkeeping requirements, but does not endorse, explicitly or
implicitly any third party traceability systems. NMFS requested, and
will consider, comments regarding the use of third-party certification
and traceability systems in the context of the Commerce Trusted Trader
Program. See response to Comment 34 for further information.
Comment 31: NMFS received several comments that it should consider,
recognize, or adopt the EU's Catch Documentation Program in the design
of the U.S. Program.
Response: The Task Force considered the European Union's Catch
Documentation Program in developing its recommendation to establish a
risk-based traceability program to allow fish and fish product to be
tracked from point of harvest or production to entry into U.S.
commerce. The United States recognizes and appreciates the European
Union's leadership and innovation in establishing its program and fully
supports its continued application. While fundamental structural
differences exist between the European Union's program and both the
domestic and import components of the United States' seafood
traceability program, the types of information and actual data elements
with respect to harvest and landing information are highly comparable.
Furthermore, NMFS looked to the European Union's example in addressing
operational challenges for small-boat fleets and structured the small
boat provision in the Program to closely resemble that approach.
Further consideration will be given to the European Union's Catch
Documentation Program in the development of the Commerce Trusted Trader
Program. See response to Comment 34 for further information.
Comment 32: NMFS received numerous comments describing the
importance of data standardization across other national and RFMO catch
documentation and traceability programs and data interoperability in
the design of the Program. Commenters also noted the importance of
careful integration of the Program and the Tuna Tracking and
Verification Program.
Response: NMFS acknowledges the benefit of standardization and
interoperability of data and has, in its design of the Program,
attempted to balance those values against the specific strategic and
operational objectives of the Program. For example, while the EU catch
documentation program is essentially a ``government-to-government''
framework, the Program is designed to shift the responsibility for
preventing the import of IUU-sourced and misrepresented seafood to the
supply chain itself and stands as a ``government-to-business'' program.
That said, the harvest and landing data elements captured by the two
programs are quite similar. In order to minimize the burden of similar,
but not identical data and reporting requirements, NMFS designed the
Program for maximum flexibility in both the source and format of
supporting documentation. Recognizing that harvest and landing data are
reported and collected differently in various fisheries and regions of
the United States, the Program is intended to accommodate the same
diversity of approaches with respect to imported seafood.
With respect to the Tuna Tracking and Verification Program (TTVP),
NMFS agrees that the data elements and compliance requirements of the
two programs should be as closely aligned as possible given their
differences in underlying authorities and regulatory objectives. To
that end, NMFS published an interim final rule intended to improve the
regulatory framework within which the Dolphin Protection Consumer
Information Act is implemented (81 FR 15444, March 23, 2016). Among
other things, this rule would bring the chain of custody recordkeeping
requirements for the TTVP in closer alignment with the requirements of
the Program, as proposed. For HTS codes to which both the Program and
the TTVP apply, ITDS programming will ensure that common data elements
are reported no more than once.
Timeframe for Implementation
Comment 33: Many commenters offered feedback on the implementation
time frame for this rule. Some recommended a phased-in approach where
mandatory reporting would be required earlier for some species than
others. Suggested implementation periods ranged from six months to one
year, with one commenter suggesting a 3-6 month period when industry
could practice submission to the ACE portal. Some countries commented
that additional capacity building and clear explanation of compliance
guidelines will be necessary to meet a one year implementation time
frame.
Response: NMFS agrees with commenters' interests in allowing time
for the Program to be implemented smoothly and without disruption to
[[Page 88983]]
trade. To allow for development of both the ACE software maintained by
the Department of Homeland Security, CBP and the industry data
submission software, testing data input into ACE, and international
capacity building, the Program will be implemented (i.e., required
permitting, reporting and recordkeeping will be mandatory)
approximately twelve months following the publication of this rule,
except for shrimp and abalone. NMFS believes that this implementation
schedule will provide adequate time for foreign exporters to establish
systems for conveying harvest, landing, and chain of custody
information to the U.S. importers of record. The requirements for the
U.S. importer to obtain the IFTP, to report harvest event data at entry
filing, and to maintain supply chain records for auditing purposes,
will be enforced beginning January 1, 2018 (except for shrimp and
abalone). However, this means that U.S. importers must work with
exporters to obtain harvest and supply chain records for products
harvested earlier than January 1, 2018 if these products will be
entered into the United States on or after that date. NMFS evaluated
the time interval from harvest date to entry date for several fish
products currently subject to import monitoring programs (e.g., bluefin
tuna, swordfish, toothfish) and determined that in most cases U.S.
imports occur within a few months of the harvest event. Some products
may be in the supply chain for longer periods due to processing, cold
storage and shipping time. U.S. importers should work with their
suppliers in advance of the compliance date of January 1, 2018 to
ensure that the required information is available. NMFS will publish a
document in the Federal Register to establish the effective date of the
rule for shrimp and abalone products and, in establishing that date,
due consideration will be given to the need for adequate advance
notice. See response to Comment 7.
Comment 34: One commenter noted that the timeline for
implementation of the Program should not be established until the
Commerce Trusted Trader Program is closer to implementation.
Response: NMFS disagrees. The NOC Committee considers the
development of a Commerce Trusted Trader Program to be a critical
element in the long-term implementation and success of the Program. The
Trusted Trader Program would allow NMFS and the trade to segment risk
in supply chain management and allow for streamlined entry processing
and reduced inspections for entities granted program status. NMFS
announced a 60-day public comment period on the elements and design of
a Commerce Trusted Trader Program on April 29, 2016 (81 FR 25646). That
announcement identifies a variety of issues that will be considered in
the development and implementation of a Commerce Trusted Trader
Program. It also acknowledges that while NMFS will make every effort to
implement the Commerce Trusted Trader Program simultaneously with the
Program, rulemaking and implementation requirements remain uncertain,
and those factors could preclude simultaneous implementation. NMFS
sought comment on the potential impacts and benefits of having the
Commerce Trusted Trader Program implemented some weeks or months
following implementation of the Program and recommendations for design
and implementation of the Commerce Trusted Trader Program as well as
measures that can be taken to minimize the cost and burden of those
impacts and maximize available benefits. As NMFS considers comments and
initiates design of the Trusted Trader Program, the requirements for
additional rulemaking will be determined and the time frame for
implementation will be clarified.
Comment 35: NMFS received comment that the timing of expansion of
the seafood traceability program to all species should be prescribed in
the final rule.
Response: NMFS disagrees. The Administration has indicated and
described in the Action Plan its goal to expand the Program to all
seafood, after consideration of factors including authorities needed,
stakeholder input, and cost-effectiveness, which includes a risk-based
implementation. The need to evaluate operational successes and
challenges before expanding the Program to more, or all, species was
clearly recognized by the Task Force as evidenced by its recommendation
that the National Ocean Council Committee on IUU fishing and Seafood
Fraud publish a report in December of 2016 evaluating the Program as
set out in this final rule, identifying hurdles and potential
approaches for addressing those hurdles, costs and benefits of
expanding the Program, and issues associated with sharing traceability
information at the consumer level.
Due to existing operational uncertainties regarding the
implementation of this first phase of the Program such as the
scheduling of, and time required for, the programming of the ITDS for
data reporting by the importer of record, NMFS has established an
implementation date for the Program of approximately 12 months
following the publication of the final rule. For similar reasons, it
would be inadvisable to project a schedule for expansion of the Program
at this time. Furthermore, specifying the expansion of the Program to
all species in this rulemaking would require that the supporting
analyses (Regulatory Impact Review and Final Regulatory Flexibility
Analysis) include in their scope reporting and recordkeeping for all
seafood. NMFS does not consider those analyses to be feasible at this
time and therefore cannot define a schedule for expansion for inclusion
in this rule.
Outreach and Assistance to Industry
Comment 36: Several national governments commented on the
importance of outreach and capacity building to support implementation
of, and compliance with, the Program implementing regulations.
Response: NMFS recognizes the need for outreach and education in
support of implementation of the Program and compliance with its
requirements. NMFS noted in the proposed rule the intention to provide
assistance to exporting nations to support compliance with the
requirements of the program, including by providing assistance to
strengthen fisheries governance structures and enforcement bodies to
combat IUU fishing and seafood fraud and to establish systems to enable
export shipments of fish and fish products to be traced back to the
point of harvest. However, outreach will not be limited to
international engagement. NMFS will work closely with the U.S. seafood
trade sector as well to ensure awareness and understanding of the
program requirements in support of importers' compliance with the rule.
Additionally, NMFS intends to publish compliance guidance as well as a
``plain language'' description of the final regulation.
Burden to Industry/Regulatory Impact/Alternatives
Comment 37: A number of commenters requested additional detail on
how the reported data will be used. Some comments called for the data
to be used to support enforcement of other statutes (e.g., Lacey Act),
others requested a more robust description of enforcement and auditing
procedures.
Response: Historically, much of the enforcement effort to address
imports of illegally-harvested or misrepresented seafood has been
reactive, working at the border posts and following suspected
shipments. The intent of this rulemaking is to enhance the ability of
NOAA and its law enforcement partners to detect misrepresented or
illegally
[[Page 88984]]
harvested fish and fish product before it enters U.S. Commerce. The
data and records required by this regulation will be used to screen
products in an effort to detect and prevent illegally-harvested and
misrepresented seafood from entering U.S. commerce.
The National Marine Fisheries Service Seafood Inspection Program
(SIP) inspects over two billion pounds of seafood per year for export
and domestic consumption. About 20 percent of domestic consumption is
examined by SIP. These examinations include checks for proper labeling,
proper net weight and proper nomenclature. The NOAA Office of Law
Enforcement also conducts inspections of imported fish and fish
products. These inspections are conducted in collaboration with our
federal and state law enforcement partners to ensure compliance with
statutes administered by NOAA, such as the requirements of the
Magnuson-Stevens Fishery Conservation and Management Act and the Lacey
Act. The new data and reporting requirements will further enhance the
effectiveness of these inspections and provide information that will
allow limited enforcement resources to be better targeted at fish and
fish products suspected of being misrepresented or illegally harvested.
NOAA has also actively increased collaboration on analysis of U.S.
fisheries imports with other law enforcement agencies in an effort to
detect and prevent illegally-harvested and misrepresented fish and fish
products from entering the U.S. market. To this end, NOAA has entered
into information sharing agreements with other law enforcement agencies
and is also a partner government agency with CBP in the transition to
electronic reporting of trade data through the ITDS, an initiative
highlighted in the President's recent Executive Order on streamlining
export/import processes.
NOAA has also recently signed a memorandum of understanding with
Customs and Border Protection to participate as a member agency of its
Commercial Targeting and Analysis Center (CTAC). At the multiagency
CTAC facility, members have direct access to a wide array of import
processing and law enforcement systems, as well as other member
agencies' data systems, to enable collaborative analysis, development
and coordination of operational targeting of import shipments for a
wide variety of regulatory and enforcement concerns. CTAC member
agencies such as NOAA, FDA and CBP are increasing collaboration to
target potential seafood fraud in an effort to develop intelligence
driven targeting of high risk seafood product imports.
These partnerships, combined with the additional information and
records required by this rulemaking will significantly increase the
likelihood of detecting illegal seafood products before admission into
U.S. commerce, allow more effective use of limited law enforcement
resources available to enforce the various federal statutes designed to
prevent illegal importation of products into the United States, and
reduce the need for random inspections which can slow the entry of
legal products into the United States.
Comment 38: NMFS received a number of comments requesting that it
remove certain species, in particular Atlantic and Pacific cod, from
the initial phase of the Seafood Import Monitoring Program based on a
lack of documented foreign illegal fishing activity for the species in
question.
Response: Many factors were considered in determining the potential
for a species to be susceptible to IUU fishing or seafood fraud,
including known foreign or domestic unlawful harvest of the species,
susceptibility to mislabeling or species substitution, and presence of
international catch documentation schemes among others. While not
widespread, there have been reports to NOAA of illegal fishing of both
Atlantic and Pacific cod species. Additionally, there are reports of,
and significant risk of, species substitution.
We note that a preliminary review of 2015 data, for example,
demonstrates that at least 94% of the cod imported by the United States
is filleted and/or dried or otherwise processed. The majority of such
processed product is imported under tariff codes which are not specific
with regard to ocean area of origin (Atlantic, Pacific). Given the use
of non-specific tariff codes, there is considerable potential for such
generic and ready-to-use cod products to be described, for instance,
``Atlantic cod fillets'', even if not of Atlantic origin--the sort of
misrepresentation that would be precluded by requiring a report on the
harvest event. It is also important to consider that processing into
fillets is regarded under international customs convention and
implementing national regulations as a ``substantial transformation''
of the underlying product, and therefore the product acquires a new
country of origin with the result that the harvesting nation may no
longer be apparent without specific data on the harvest event.
Comment 39: A number of commenters provided input on liability for
data accuracy. One commenter saw a lack of clarity in NMFS' definition
of the `importer of record' and expressed that this person may not
always be the best person to hold responsible for accuracy of the
information submitted to ACE. One nation's comments indicated that it
would be helpful for NMFS to clarify if there is any liability for
nations/flag states under this rule.
Response: Nations or flag states are not expected to certify the
accuracy of data. Under the Program, responsibility for accurate
reporting is borne by the IFTP holder, which NMFS has referred to as
the importer of record as required to be designated on each entry filed
with CBP. See response to Comment 49 for further information.
Comment 40: The U.S. Small Business Administration Office of
Advocacy (Advocacy) commented that NMFS did not adequately comply with
requirements under the Regulatory Flexibility Act, and expressed
concerns that NMFS did not adequately assess the burden on small
businesses.
Response: NMFS has made adjustments to the final rule that reduce
the burden on industry without compromising the integrity of the
Program. As discussed in the Initial Regulatory Flexibility Analysis
(IRFA), all businesses directly affected by this rulemaking are
considered small businesses. The Regulatory Flexibility Act (RFA) has
two main requirements for an initial regulatory flexibility analysis
(IRFA): (1) ``describe the impact'' the rule would have on small
entities, and (2) discuss alternatives that ``minimize any significant
economic impact . . . on small entities.'' NMFS did both with the
information available at the time the proposed rule was published. To
assess the impact on small entities, in the Regulatory Impact Review
(RIR) and IRFA together, NMFS analyzed the costs associated with the
proposed rule which included the precise amount of permit fees and an
acknowledgement of incremental costs of reporting and recordkeeping. As
much of the reporting is either already required or already otherwise
undertaken by the impacted entities, NMFS could not definitively
provide precise incremental costs and, instead, described the types of
incremental costs that regulated entities would face. The RFA
specifically acknowledges that costs often cannot be precisely
quantified and, thus, allows that ``an agency may provide . . . more
general descriptive statements if quantification is not practicable or
reliable.'' 5 U.S.C. 607. NMFS sought comment on these incremental
costs to allow small entities the chance to provide relevant
quantifiable information. Granting small businesses a voice in the
rulemaking
[[Page 88985]]
process is one of the main purposes of the RFA. See Regulatory
Flexibility Act of 1980, Public Law 96-354 (2)(a)(8).
The commenter incorrectly states that ``NMFS asserts that the only
new cost will be the industry wide cost of $60,000 due to permitting
fees.'' The proposed rule did not state that this would be the only
cost--it simply stated that ``there will be approximately 2,000 new
applications for the IFTP, with an estimated industry-wide increase in
annual costs to importers of $60,000 in permit fees.'' NMFS then later
states that ``[i]ncremental costs are likely to consist of developing
interoperable systems . . .''. NMFS also discusses the issue of
incremental costs in the IRFA summary in the proposed rule and section
1.3.2 of the RIR.
The commenter asserted that ``the IRFA does not have information
about the costs of the reporting requirements''. However, NMFS states
that there will not likely be significant additional costs because the
industry is otherwise in compliance with the rule. The IRFA stated that
``[d]ata sets to be submitted electronically . . . are, to some extent,
either already collected by the trade in the course of supply chain
management, already required to be collected and submitted . . ., or
collected in support of third-party certification schemes voluntarily
adopted by the trade.'' NMFS acknowledges that there will be
incremental costs; it just could not quantify them.
The commenter also stated that the number of required data points
increases the economic burden on small entities and encouraged NMFS to
reconsider whether all of the data points were necessary to collect
from small entities. NMFS notes that the proposed rule explains why
each data point is necessary to establish the chain of custody and an
effective traceability scheme (81 FR 6210, February 5, 2016). In
addition, the third alternative that was analyzed in the IRFA discussed
a ``reduced data set'' and was not selected as the preferred
alternative because it would not achieve the objectives of the rule.
Comment 41: Advocacy also requested that NMFS consider ``less
burdensome alternatives'' including the voluntary third party
certification, Trusted Trader, and European Union catch certification
programs and, if these three programs are not viable alternatives,
explain why. Advocacy requested that NMFS analyze and take advantage of
opportunities to harmonize the Program requirements with the existing
EU catch certification scheme and third party certification to minimize
the burden on industry.
Response: The proposed rule noted that NMFS did not have sufficient
information to analyze the extent to which voluntary third party
certification, Trusted Trader, and European Union Catch Certification
programs could minimize burden to industry and whether any of them
could achieve the rule's statutory objectives, and specifically sought
and received public comment on these programs. NMFS received and took
into consideration public comment on these programs. Throughout the
Response to Comments section of this final rule, NMFS has noted where
changes have been made that minimize the burden on industry without
compromising the integrity of the Program and those changes are also
reflected in the regulatory text and in the Final Regulatory
Flexibility Analysis accompanying this rule.
Comment 42: NMFS received comments that the Program will impose
substantial costs on the international seafood supply chain. Commenters
challenged the cost estimated in the Draft Regulatory Impact Review and
Initial Regulatory Flexibility Analysis, suggesting that the compliance
burden for this rulemaking will often be incrementally higher due to
multiple harvest events associated with an entry. Commenters also
suggested that the total hourly cost to an importer for the labor
required to enter traceability data through ITDS is $31.25 per hour.
Commenters also identified additional costs not incorporated in the
Draft Regulatory Impact Review and Initial Regulatory Flexibility
Analysis, including the cost of paying harvesters and farmers for
traceability data, the cost of auditing suppliers to insure that
reported information is accurate and complete, and the cost of insuring
themselves against the risk that imported information is erroneous, and
the related risk of delayed entry of imported products. Comments
suggest that enforcement of the regulations implementing the Program
will cause exporters to choose alternative markets to the United
States.
Response: NMFS noted in the Draft Regulatory Impact Review and
Initial Regulatory Flexibility Analysis the difficulty of estimating
certain costs associated with compliance with the rule for a new
program, and identified specific issues about which the public was
encouraged to comment. NMFS is greatly appreciative of the thoughtful
and detailed comments offered in this regard. Commenters affirmed that
the operational attributes of some, if not all of the fisheries for
species subject to the Program are such that entries of fish or fish
products from those fisheries will represent, and require the reporting
of data for, more than one harvest event. This was anticipated by NMFS
and described in the proposed rule. In response to public comment, NMFS
has made some revisions in the final rule. See response to Comment 43
for information on the revisions.
With regard to cost of labor to enter data, NMFS estimated that the
average hourly total cost was $15.00 per hour in the Draft Regulatory
Impact Review. In light of public comment, NMFS updated the hourly rate
to $25.00 per hour in the Final Regulatory Impact Review and Final
Regulatory Flexibility Analysis, based on the Bureau of Labor
Statistics' estimate of total cost to the employer for office and
administrative support services in the fourth quarter of 2015.
Commenters apparently assume a linear relationship between the
number of harvest events related to an import entry and the amount of
time required to provide the traceability data. This would be the case
if all data were manually entered. NMFS has consulted with software
developers who are in the business of automating the ITDS data-input
process for importers and customs brokers. As they point out, many of
the data elements will be identical across numerous harvest events, and
developers will likely identify ``loop-backs'' that preclude the need
to repeatedly enter the same species, harvest area, address, etc. for a
series of harvest events in the same fishery. As well, importers are
likely to build databases from which previously reported information
can be pulled and entered as appropriate. These efficiencies will
create economies of scale such that the actual (average) time needed to
complete the harvest information associated with an entry will decrease
as the number of harvest events increases.
NMFS does not agree that harvesters and farmers will be in a
position to demand payment for traceability data, and commenters did
not provide quantitative or qualitative information regarding the
likelihood of such risks. There is no indication that the imposition of
existing catch documentation systems (e.g., the EU system) resulted in
measurable increases in the cost of seafood. The harvest event data
required to be provided under the U.S. program aligns very closely with
those data on the harvest event required in the European Union catch
certification program. Providing this information to U.S. importers
subject to the Program should be no more costly or burdensome.
[[Page 88986]]
However, we recognize that some businesses and some countries do
not currently export to the EU and, for these entities, providing
harvest, landing, and chain of custody information to U.S. importers
subject to this rule could result in new burdens for these exporters to
supply priority species to the U.S. market. There are few affected
countries not currently exporting the designated priority species to
the E.U. market, suggesting compliance with the U.S. requirements would
not pose an inordinate burden on U.S. importers or consumers given the
relatively small volume of trade involved. We note, however, that
individual businesses located within each country may have different
levels of experience with exporting to the EU market. While this
analysis assumes minimal incremental regulatory burden for businesses
located in countries that ship to the EU, it is possible that some
businesses within these countries will incur costs as a consequence of
this rule, in particular the chain-of-custody recordkeeping in cases of
complex supply chains, that may be either passed through to U.S.
consumers or result in a decline in exports to the U.S. market. Both of
these responses to the Program could affect prices in the U.S. market.
However, evidence indicates that there were not significant effects on
supply to the EU seafood market in response to the EU's IUU regulation.
The rule does not require any formal audits by suppliers. Adoption
of that practice by an importer would likely be informed by the
importer's business model, relationship with suppliers, and perceived
risk that the supplier might, whether intentional or not, provide
incorrect traceability information to the importer.
Commenters pointed to the cost of insurance indemnifying importers
against the cost of civil penalties for failure to comply with the
rule. NMFS is not familiar with such insurance but assumes that need
for indemnification would also pertain to risks associated with
existing other agency regulations on seafood safety and trade
documentation.
NMFS disagrees that implementation of the Program will result in
exporters choosing alternative markets to the United States. Similar
information requirements relative to harvesting authorizations and
documentation of processing and transshipment were placed on fisheries
exporting to the European Union through the implementation of its catch
documentation program. No significant disruptions in European seafood
markets were observed. The United States represents an equally
attractive international market, access to which is well worth the
effort of providing traceability data to exporters.
Comment 43: One commenter developed three scenarios (mahi mahi,
blue swimming crab, and Atlantic cod) for the purpose of demonstrating
the number of harvest events that may be associated with an import
entry of those species. The commenter stated that there is no evidence
showing that the Program's data reporting requirements will lead to
reduction of either IUU fishing or seafood mislabeling.
Response: NMFS greatly appreciates the detailed information
provided. On the basis of those comments as well as similar information
from other commenters, NMFS revised the final rule to exempt an
importer from having to provide vessel- or aquaculture facility-
specific information where certain criteria are met for small-scale
vessels and aquaculture facilities, if the importer provides other
information required under this rule from an aggregated harvest report.
See response to Comment 23 for detailed explanation of the exemption.
A detailed response to each scenario follows. While NMFS does not
agree with a number of assumptions and methodologies applied in the
comment, the commenter's overall approach to estimating potential
harvest events is sound. Below, NMFS applies the commenter's overall
estimation approach to the three scenarios adjusting the estimates to
reflect the aforementioned provision for aggregating data from small-
scale fisheries. These alternative estimates are also provided in the
Final Regulatory Impact Review and Final regulatory Flexibility
Analysis.
Mahi-Mahi From Ecuador
NMFS finds the general description of the fishery operations in the
comment to be consistent with information provided in publicly
available peer-reviewed literature. Based on fleet composition data
with respect to small ``day-boats'' and mothership operations described
in the same journal publication, NMFS believes that the new aggregated
harvest report exemption will significantly reduce the number of
harvest events potentially associated with any given entry of product
from this fishery. Assuming that the average aggregated harvest amount
was only 20,000 pounds (considering both shore-based aggregations not
to exceed one day and trip-based aggregations by motherships), a
thirty-five percent yield of processed product as described in the
comments would result in one ``harvest event'' accounting for 7,350
pounds of mahi-mahi portions. Following the commenter's methodology,
which estimated that a full container of mahi-mahi is 44,000 pounds,
there would only be six harvest events that must be reported on entry
of that container into the United States.
NMFS agrees that the relationship between yield of specific
portions and products included in an entry may impact the actual number
of harvest events associated with a shipment. That said, there are many
additional variables that could incrementally increase or decrease that
number of harvest events.
Blue Crab From Mexico
As noted by the commenter, blue swimming crab is not included in
the list of priority species and is therefore outside the scope of this
rulemaking. NMFS appreciates these comments, and notes that the new
aggregated harvest report exemption will significantly reduce the
number of landing events that would need to be reported by the importer
of record for species covered under the Program.
Atlantic Cod
Of the major exporters of Atlantic cod products to the United
States, Iceland is particularly transparent with respect to trade and
fisheries statistics and will be referenced throughout this response
due to the public availability of data from that nation. NMFS takes
issue with several elements of the commenter's description of the
Atlantic Cod fishery. Comments focused solely on minced block and
treated that product as an exclusively secondary product, noting a 2.5
percent recovery rate. While minced product may, as stated in the
comments, represent 2.5 percent of the catch, that does not equate to
using 2.5 percent of each fish out of each harvest event. To the extent
that minced product is made from mis-cut fillets or as a primary form
of production, recovery per fish could approach 30 percent (FAO lists
the yield of skinless cod fillets as 36 percent).
The exclusive focus on minced block product mischaracterizes the
nature of U.S. imports of Atlantic cod. From 2013 through 2015, imports
of product reported under the tariff schedule code for ``GROUNDFISH COD
NSPF MINCED FROZEN >6.8KG'' made up, on average, 0.6 percent of total
cod imports according to NMFS's seafood trade database. During the
years 2010 through 2014, Iceland's export of minced cod block ranged
from 147 metric tons to 214 metric tons, while its export of fresh and
frozen fillet products to the U.S. ranged from 1,799 to 4,779 metric
tons. While the use of secondary-product
[[Page 88987]]
minced cod block as described in the comments may be useful in making
an extreme example, it would be inappropriate to extrapolate the
results to the entirety of U.S. Atlantic cod imports.
Comments characterize the average catch of small ``in shore'' boats
to be about 400 pounds, or 180 kilograms per day. A review of cod
landings by a variety of Icelandic harvesting vessels ranging from
small inshore boats (<12 meters) to large trawlers in Iceland's web-
based catch reporting system (http://www.fiskistofa.is) indicates that
180 kilogram landings are much more the exception than the rule. While
examples of landings less than 1,000 kilograms can be identified, there
are many more that can be found in the tens of thousands of kilograms.
To the extent that small cod landings occur, small vessels are
likely to be the source of those landings and the final rule exempts
importers from providing vessel-specific information from small-scale
vessels (i.e., twelve meters in length or less or 20 gross tons or
less), if the importer provides other information required under the
rule based on an aggregated harvest report. See response to Comment 23
for further detail on the exemption. Under this exemption, the importer
of record would be responsible for reporting fewer harvest events at
the time of entry into U.S. commerce.
When considering the more common-sized cod landings in Iceland
using a conservative example of 25,000 kilograms per landing, a much
more probable scenario for reporting requirements emerges. Assuming a
35% yield of processed product for cod fillets, a 50,000 pound
container requires 142,900 pounds of round cod, (68,836 kilograms),
which results in an estimated minimum of three harvest events that an
importer would be required to report upon entry of the container into
U.S. commerce.
NMFS points to the recommendations of the Task Force to address the
concern that NMFS has not demonstrated that the Program will lead to a
decrease in IUU fishing and seafood fraud. Supply chain traceability is
one of four thematic approaches identified by the Task Force. Others
include international engagement, enforcement capabilities, and
partnerships. NMFS considers the sum of the entire suite of
recommendations to be an integrated and effective framework for
combating IUU fishing and seafood fraud. Additionally, the Program's
recordkeeping and reporting requirements are very closely aligned with
those used in other catch documentation schemes which share the
objective of preventing the entry of illegally harvested and
misrepresented fish and fish products into commerce and reflect many of
the best practices associated with seafood traceability.
Comment 44: Commenters asserted that NMFS failed to consider costs
of audits of the information received from overseas suppliers, training
costs, the longer lead time, or additional insurance for inaccurate
uploads in development of the IRFA.
Response: NMFS appreciates comments on the cost evaluation
presented in the Initial Regulatory Flexibility Analysis (IRFA)
accompanying this rule. While NMFS disagrees with the comments on the
actual cost of these variables, NMFS has taken all comments into
consideration and included new cost estimates in the Final Regulatory
Flexibility Analysis.
Comment 45: Two commenters expressed concern that reported
information could contain trade secrets that would pose significant
business impacts if disclosed to competitors.
Response: NMFS believes industry has or can employ measures to
support this transfer of information securely to the IFTP holder. As
explained in the proposed rule, 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). Further, information required to be
submitted under the MSA is subject to confidentiality of information
requirements at 16 U.S.C. 1881a(b).
Comment 46: A commenter requested clarification on what constitutes
a ``harvest event'' in the case of multi-day trips on large catcher
vessels or catcher processors. The commenter pointed out that a
``harvest event'' could be applied to each set or tow, each day, or to
the entire fishing trip in the aggregate.
Response: In response to that comment, NMFS has added a definition
of ``harvest event'' in Sec. 300.321. For trips occurring in more than
one harvest area, catch from each harvest area during the trip will be
considered a separate harvest event. As discussed in response to
Comment 23 and other comments, the final rule includes an exemption
related to an aggregated harvest report.
Comment 47: NMFS received comments expressing concern regarding the
likely frequency of product inspection and post-entry audits and
verification of traceability information provided in accordance with
this rule. One commenter noted that inspections and real-time
verification of data provided at the time of entry may slow the flow of
seafood imports into the United States, having an especially
detrimental effect on shippers of fresh (unfrozen) product.
Response: NMFS agrees that frequent or lengthy delays of imported
seafood import entries at the U.S. border may be costly to industry.
NMFS intends to focus the use of its authority to request holds on
incoming shipments primarily when risk indicators or specific
intelligence indicate reason to do so. Post-entry audit and
verification will be more frequent, but those activities will not
impact the flow of trade or speed of entry, provided that all necessary
data are provided at the time of entry.
Comment 48: Several commenters expressed concern over NMFS's
definition of ``importer of record'' in the proposed rule, stating that
import entry functions and product ownership is handled in a variety of
ways across importing companies and in some cases, the proposed
definition may not fit the business model.
Response: NMFS believes the Program has been designed to
accommodate all of the scenarios described in the comment provided the
entity in question is located in the U.S. The determination of who
should act as the importer of record is a private, business decision
between the parties involved in the importation process. The importer
of record is the entity required to be designated on the entry filing
and this rule requires that the entity so designated is issued an IFTP.
That permit number must be reported to make the entry. In some
instances, there may be more than one entity involved in a transaction
that holds an IFTP. In that instance, it is again up to the parties
involved in the transaction to determine whose permit will be used for
the entry and who will therefore be designated as the importer of
record on the filing with CBP.
Comment 49: One commenter noted that seafood importers do not have
the ability to ground-truth claims by exporters that the product is
from legitimate fishing operations.
Response: NMFS disagrees. Per the Magnuson-Stevens Act authority by
which this rule is promulgated, it is illegal to import any fish taken,
possessed, transported, or sold in violation of any foreign law or
regulation. Therefore, NMFS considers it to be the responsibility of
seafood importers to determine the source of the product entering the
U.S. market, and it
[[Page 88988]]
is one of the reasons that the National Ocean Council Committee
determined that a ``government-to-business'' model would be most
effective in ensuring that the U.S. seafood supply chain is closed to
IUU and misrepresented fish and fish products.
Changes From the Proposed Rule
In response to comments received on the proposed rule, NMFS has
made a number of changes in the final rule. In addition, certain other
changes in the regulatory text are necessary because final rules,
promulgated after the proposed rule for the Seafood Traceability
Program was published, amended regulatory text that is also amended by
this rule.
Redesignation of 50 CFR Part 300 Subpart Q
In publishing the proposed rule for integration of NMFS current
trade monitoring programs within the ITDS (see 80 FR 81251, December
29, 2015), NMFS incorrectly numbered the sections of the proposed new
subpart R to 50 CFR part 300 such that the section numbers were out of
sequence with existing subpart Q. Consequently, the final rule for ITDS
integration (81 FR 51126, August 3, 2016) redesignated existing subpart
Q as new subpart R and inserted a new subpart Q for the ITDS
regulations with sections numbered in the correct order. Because the
proposed rule for the Seafood Traceability Program (81 FR 6210,
February 5, 2016) would have further revised regulatory text in the
proposed subpart R to 50 CFR part 300, this final rule amends
regulations that now exist in subpart Q.
Electronic System for Atlantic Bluefin Tuna
In a final rule published April 1, 2016 (81 FR 18796), NMFS amended
the regulatory text at 50 CFR 300.181 through 300.189 to reflect the
implementation of the electronic bluefin tuna catch document program of
the International Commission for the Conservation of Atlantic Tunas
(ICCAT). As a contracting party to ICCAT, the United States has
implemented the electronic bluefin tuna catch document program and has
established simplified entry and export reporting requirements for
bluefin tuna accordingly. The simplified ACE reporting requirements for
bluefin tuna catches recorded in the ICCAT system are sufficient to
meet the requirements of the Program established under this rule.
Therefore, this rule does not amend those reporting requirements.
Aggregated Harvest Report Exemption
This final rule has been revised to exempt an importer of record
from providing vessel-, farm-, or aquaculture facility-specific
information under Sec. 300.324(b)(1), if the importer provides other
required information from an Aggregated Harvest Report. Even if there
is an Aggregated Harvest Report, the importer is still required to
provide harvest information under Sec. 300.324(b)(2)-(3).
Following an approach similar to that of the EU's CDS regarding
small-scale vessels, the final rule at Sec. 300.321 defines Aggregated
Harvest Report to mean a record made at a single collection point on a
single calendar day for aggregated catches by multiple small-scale
fishing vessels (20 measured gross tons or less or 12 meters length
overall or less) offloaded at that collection point on that day, or for
a landing by a vessel to which the catches of one or more small-scale
vessels were transferred at sea. A report would include non-vessel
specific harvest event information in aggregate for all fish from
small-scale vessels received by an entity (e.g., fish receiver)
operating at a collection point on a single calendar day. As there may
be multiple receivers at a landing point, each fish receiver would
generate one or more harvest event reports for their respective
aggregate receipts on each day.
Aggregated Harvest Report is also defined at Sec. 300.321 to mean
a record made at a single collection point or processing facility on a
single calendar day for aggregated deliveries from multiple small-scale
aquaculture facilities, where each aquaculture facility delivers 1,000
kg or less to that collection point or processing facility on that day.
The entity operating at the collection point or processing facility may
record the harvest event information in aggregate for all receipts by
that entity or processing facility on that day. As there may be
multiple receivers at an intermediate collection point prior to
delivery to a processor, each receiver would generate a daily harvest
event report for its respective aggregate receipts.
Implementation of Mandatory Reporting and Recordkeeping
This rule establishes a compliance date of January 1, 2018, except
for shrimp and abalone for which the effective date is stayed pending
further action by NMFS. The requirements for permitting, ACE reporting
and recordkeeping will be enforced beginning on that date, though
permits would be available for issuance and ACE reporting would be
available for testing prior to that date. NMFS will publish a notice in
the Federal Register when ACE programming has been completed to allow
testing of the entry reporting. For products harvested prior to the
compliance date, U.S. importers should work with their foreign
suppliers to ensure that the harvest event and supply chain records are
available for any entries made on or after January 1, 2018.
Electronic Filing Instructions
The proposed rule explained that the format for data elements
required under this rule would be specified in the following documents:
Customs and Trade Automated Interface Requirements--Appendix PGA,
Customs and Trade Automated Interface Requirements--PGA Message Set,
and Automated Broker Interface (ABI) Requirements--Implementation Guide
for NMFS. For ease of reference, NMFS has added at Sec. 300.323
references to where import and export electronic filing instructions
can be found on the internet.
Information on Fish Species, Product Description and Quantity and/or
Weight
Proposed Sec. 300.324(b)(2) required that importers provide
information on fish species using the scientific name, acceptable
market name, and Aquatic Sciences Fishery Information System (ASFIS)
number. In response to comment, the final rule requires reporting of
only the ASFIS 3-alpha code and provides a reference to where the codes
may be found on the internet. A list of ASFIS 3-Alpha codes as
associated with HTS codes is provided in the NMFS Implementation Guide
posted by CBP at http://www.cbp.gov/trade/ace/catair.
Proposed Sec. 300.324(b)(2) required a ``product description''
data element referring to the product form as it exists at the time it
is offered for entry. After reconsidering other data reported at entry
and public comments, NMFS has deleted ``product description'' from the
final rule, as this information is reported on transportation manifests
and to FDA in prior notice reports as well as part of the entry summary
reported to CBP. As in the proposed rule, NMFS will still require
information on product form as landed (e.g., whole, headed/gutted).
Such information is necessary to interpret the landed weight and ensure
that IUU product is not associated with that harvest event if inserted
later in the supply chain. If there is an Aggregated Harvest Report,
NMFS has added in Sec. 300.324(b)(2) that the importer may provide the
total quantity and/or weight
[[Page 88989]]
of the product(s) as landed/delivered on the date of the report.
Format for Data Elements: Area of Wild Capture and Fishing Gear
Proposed Sec. 300.324(b)(1) and (3) required information on area
of wild capture and type of fishing gear used to harvest fish. NMFS has
not changed this text in the final rule, but as explained in response
to Comments 19 and 21, will provide further information on the format
for these data elements in the NMFS Implementation Guide.
Segregation of Individual Harvest Events
The final rule defines a harvest event for the purposes of
reporting landings or deliveries, and allows for reporting in the
aggregate for small-scale vessels and aquaculture facilities. As
explained above, the rule does not require that inbound shipments
segregate imported product by each harvesting event. NMFS has clarified
in Sec. 300.324(b)(3) that a product offered for entry may be
comprised of products from more than one harvest event and each harvest
event must be documented. However, specific links between portions of
the shipment and particular harvest events are not required.
Record Retention Period
The record retention period for supply chain information required
by NMFS is reduced from the proposed five years to two years from the
date of import for entries subject to the recordkeeping requirements of
this rule.
Requirements for Shrimp and Abalone
As described in the preamble to the proposed rule, gaps exist in
the collection of traceability information for domestic aquaculture-
raised shrimp and abalone, which is currently largely regulated at the
state level. (See 81 FR 6212, February 5, 2016). Since publication of
the proposed rule, NMFS has explored the opportunity to work with its
state partners to establish reporting and recordkeeping requirements
for aquaculture traceability information that could be shared with
NMFS. However, this did not prove to be a viable approach at the
present time. NMFS is thus staying the effective date of the rule for
shrimp and abalone until appropriate reporting and/or recordkeeping
requirements for domestic aquaculture production can be established. To
that end, NMFS is continuing to work with its Presidential Task Force
partner agencies with respect to measures that could be adopted to
close the gaps and to ensure comparability between traceability
requirements and NMFS' access to traceability information for imported
and domestic shrimp and abalone.
For example, FDA, whose parent agency Health & Human Services is
also a member of the Presidential Task Force, is currently exploring
which of its authorities could fill the gap, including regulations that
would require designating high risk foods for certain additional
recordkeeping by food processors under the authority of section 204 of
the Food Safety Modernization Act, which addresses enhanced tracking
and tracing of food through recordkeeping and was passed by Congress in
2011. See, e.g., Designation of High-Risk Foods for Tracing; Request
for Comments and Scientific Data and Information (79 FR 6596, Feb. 4,
2014). Such additional recordkeeping requirements to enhance food
safety are expected to facilitate FDA's ability to track the origin of
and prevent the spread of foodborne illness. FDA is also planning to
make revisions to its Seafood Hazard Analysis and Critical Control
Points (Seafood HACCP) provisions.
This final rule changes the proposed rule by staying the effective
date of the program requirements to imported shrimp and abalone,
originating from both wild capture fisheries and aquaculture
operations. In addition, the final rule clarifies that for shrimp and
abalone, the program consists of two components, reporting of harvest
events at the time of entry and permitting and recordkeeping
requirements with respect to both harvest events and chain of custody
information. (For covered species or species groups other than shrimp
and abalone, the program similarly consists of two components,
reporting of harvest events and permitting and recordkeeping
requirements with respect to both harvest events and chain of custody
information.)
NMFS will lift the stay of the effective date as to the reporting
and/or recordkeeping components of the program once commensurate
reporting and/or recordkeeping requirements have been established for
domestic aquaculture-raised shrimp and abalone and will determine and
announce an effective date for the rule as to these species.
Application of the program's reporting and/or recordkeeping
requirements to shrimp and abalone will enable audits of imports to be
conducted to determine the origin of the products and confirm that they
were lawfully acquired.
Summary of Requirements
Under this rule, importers are subject to permitting, reporting and
recording keeping requirements applicable to imports of the designated
priority species and species groups. The HTS codes applicable to the
products subject to the requirements of this rule may be revised from
time to time by the International Trade Commission. Any such changes
will be reflected in the NMFS Implementation Guides for ACE that are
posted to the internet by CBP. At the time of issuing this final rule,
entries of the fish and fish products filed under the following HTS
codes are subject to the permitting and recordkeeping requirements of
this rule and are designated in ACE as requiring the additional NMFS
data set in order to obtain release of the inbound shipment:
------------------------------------------------------------------------
HTS code Commodity description
------------------------------------------------------------------------
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.
[[Page 88990]]
0302895058........................ SNAPPER (LUTJANIDAE SPP.) FRESH.
0302895061........................ GROUPER FRESH.
0302895072........................ DOLPHIN FISH 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.
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.
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.
1605100590........................ CRAB PRODUCTS PREPARED DINNERS NOT
IN ATC.
1605102010........................ CRABMEAT KING IN ATC.
[[Page 88991]]
1605102051........................ CRABMEAT SWIMMING (CALLINECTES) IN
ATC.
1605104002........................ CRABMEAT KING FROZEN.
1605104025........................ CRABMEAT SWIMMING (CALLINECTES)
FROZEN.
1605104025........................ CRABMEAT SWIMMING (CALLINECTES)
FROZEN.
------------------------------------------------------------------------
Application of this rule to entries of fish and fish products filed
under the following HTS codes is stayed pending publication of an
action in the Federal Register lifting the stay and announcing an
effective date for shrimp and abalone. After the effective date, these
HTS codes will be designated in ACE as requiring a NMFS data set in
order to obtain release of the inbound shipment:
------------------------------------------------------------------------
HTS code Commodity description
------------------------------------------------------------------------
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.
1605211000........................ SHRIMPS AND PRAWNS, NOT IN AIRTIGHT
CONTAINERS.
1605291000........................ SHRIMPS AND PRAWNS, OTHER.
1605570500........................ ABALONE PRODUCTS PREPARED DINNERS.
1605576000........................ ABALONE PREPARED/PRESERVED.
------------------------------------------------------------------------
When the above listed HTS codes are listed in entry filings, the
ASFIS 3-alpha code indicating the scientific name will be required to
discern whether the shipment offered for entry is subject to additional
data collection under the Program. 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 product cannot be feasibly identified are not
subject to the requirements of this rule. Therefore, HTS codes for such
fish and fish products have not been included in the lists above.
However, importers are advised to determine if other NMFS program
requirements (e.g., TTVP) or other agency requirements (e.g., Fish and
Wildlife Service, State Department, Food and Drug Administration) have
ACE data reporting requirements applicable to HTS codes used for entry
filing, whether or not those codes have been identified for the Seafood
Traceability Program.
Data for Reporting and Recordkeeping
The NMFS data to be reported at entry would be in addition to the
information required by CBP as part of normal entry processing via the
ACE portal. After consideration of comments as outlined above, this
rule requires that, at the time of entry for species covered by this
rule, importers of record would be required to report the following
information for each entry (unless the Aggregated Harvest Report
exemption under Sec. 300.324(b)(1) is applicable) in addition to any
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 (ASFIS code); Product form (whole, gilled
and gutted, etc.) at point of first landing; Quantity and/or weight of
the product(s) as landed/delivered.
Information on where and when the fish were harvested and
landed: Area(s) of wild-capture or aquaculture harvest; Location(s) of
aquaculture facility; Point of first landing; Date of first landing or
removal from aquaculture facility; Name of entity(ies) (processor,
dealer, vessel) to which fish was landed.
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 is established as a recordkeeping requirement on the
part of the importer of record to ensure that information is
[[Page 88992]]
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
or production to verify the information that is reported upon entry.
Such information could 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.
Reporting Mechanism
As explained above, this rule requires that the importer of record,
or entry filer acting on their behalf, report the data required via the
ACE portal as part of the CBP entry/entry summary process. To this end,
importers of record who make entries under the designated HTS codes are
required to report the data electronically through the ACE Partner
Government Agency Message Set for NMFS (NMFS Message Set) and/or the
Digital Image System (DIS). The format for the NMFS Message Set is
designated for each of the affected commodities (by HTS code) and
specified in the following documents 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
To obtain the IFTP, U.S. importers of record for designated
priority species covered by this rule and seafood products derived from
such species must electronically submit their application and fee for
the IFTP via the National Permitting System Web site designated by NMFS
(see ADDRESSES). The fee charged for the IFTP will 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 will 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 NMFS import monitoring
program or the importer trades in more than one covered species. Note,
however, that for some commodities, other agency permits may also be
required (e.g., U.S. Fish and Wildlife Service permits for products of
species listed under the Convention for International Trade in
Endangered Species).
Verification of Entries
To implement this regulation, business rules are 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 this rule and other applicable
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, but are not limited to, a re-
delivery order for the shipment, exclusion from admission into commerce
of the shipment, forfeiture of the fish or fish product, and
enforcement action against the entry filer or importer of record.
To select entries for verification, NMFS will work with CBP to
develop a specific program within ITDS to 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 will
implement a verification scheme, including levels of inspection
sufficient to assure that imports of the priority 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 such deterrent effect, there may be price effects in that illegal or
would-be fraudulent seafood would be diverted from the U.S. market to
lower value markets. Taken together, deterrent and price effects would
reduce the incentives for IUU 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.
Trusted Trader Program
NMFS received comments on the applicability of trusted trader
programs in response to the proposed rule. Additionally, NMFS issued a
separate notice (81 FR 25646, April 29, 2016) to specifically request
comments on the potential scope of a Commerce Trusted Trader Program
and how it could be applied to streamline entry processing for
shipments subject to this rule. NMFS
[[Page 88993]]
is considering the comments received and has determined that separate
rulemaking will be required to establish the Commerce Trusted Trader
Program and how it would be integrated with the Seafood Traceability
Program.
Program Expansion
NMFS received comments on the lead time needed for seafood trade
participants to implement potential expansion of this rule, by
inclusion of additional species and/or additional data elements. NMFS
acknowledges the need for adequate lead time for program expansion and
would implement changes to reporting and recordkeeping requirements for
species and data elements through notice and comment rulemaking. Future
proposed rules would specify the fish and fish products to be covered
by the expanded program and any changes to reporting and recordkeeping
requirements. The notice of proposed rulemaking would direct
potentially affected parties to the pertinent CBP documents (Appendix
PGA, PGA Message Set, Implementation Guide for NMFS) 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
During the period prior to the effective date of this rule, NMFS
will undertake a program of communication and outreach to U.S.
importers and foreign exporters to ensure understanding of the
requirements of this rule. Subject to the availability of resources,
NMFS intends to provide technical 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 requirements for additional data collection at the time of
entry into the United States for imported fish and fish products of, or
derived from, the priority species within the scope of this final rule
could intersect with data collection requirements applicable to imports
of those same species under other authorities, including programs
implemented by NMFS and other agencies. Some of these authorities are
related to combating IUU fishing, while other authorities are aimed at
other concerns such as managing bycatch in commercial fisheries.
Through use of the ITDS single window, importers are generally able to
meet all applicable requirements through a consolidated entry filing.
Importers should consult the compliance guides issued by CBP for NMFS
and other agency import monitoring programs (https://www.cbp.gov/trade/ace/catair) to determine all requirements that apply to a specific
import based on the HTS codes within the scope of the respective
monitoring programs.
Classification
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
in contravention of any binding conservation measure adopted by an
international agreement or organization to which the United States is a
party. See 16 U.S.C. 1857(1)(Q). The NMFS Assistant Administrator has
determined that this final action is consistent with the provisions of
this and other applicable laws.
Executive Order 12866
This 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 final
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.
The regulatory action, and its legal basis, was described in the
preamble of the proposed rule. This rule requires a permit (IFTP) for
importers of species within the scope of the program. Additionally,
information pertaining to the harvest and landing of the product prior
to U.S. import is required at the time of entry into U.S. commerce, and
certain records must be retained. NMFS prepared a draft Regulatory
Impact Review (RIR) and released it for comment in conjunction with the
proposed rule. NMFS received numerous comments, particularly focused on
the costs of compliance with the proposed requirements. In
consideration of comments received, NMFS revised the RIR. With regard
to the possible economic effects of this action, NMFS concludes that
U.S. entities would not be significantly affected by this action
because it does not directly restrict trade in the designated 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 priority
species to the U.S. market also export a number of these same fish and
fish products to the European Union (EU) market. Consequently, many
harvesting states, port states, and intermediary/exporting states that
are affected by this rule may already have comparable information
collection systems in place to satisfy the requirements of EU
regulation on IUU fishing.
NMFS has estimated that this rule would affect 2,000 importers and
600 customs brokers making 215,000 entries per year for the priority
species subject to the initial phase of the traceability program. Total
costs for permits, software, data entry, recordkeeping and data storage
are estimated by NMFS to amount to $7,875,000 in the first year
(including one-time broker software acquisition), and $6,075,000
annually thereafter.
However, to obtain an upper-bound on estimated compliance costs,
NMFS calculated an alternative estimate using information provided by
NFI through the E.O. 12866 regulatory review (http://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=true&rin=0648-BF09&meetingId=2004&acronym=0648-DOC/NOAA) as well as NFI's written
comments on the proposed rule (https://www.regulations.gov/document?D=NOAA-NMFS-2015-0122-0098). Specifically, NMFS used NFI's
estimate of cost per year for complex supply chains. In certain
instances, NMFS revised the NFI assumptions and resulting estimates
where the assumptions were based on an inaccurate understanding of the
rule or to account for changes from the proposed rule (e.g., the
provision for aggregated harvest reports of landings by small vessels
and small-scale aquaculture).
[[Page 88994]]
Based on NFI's assumptions as modified by NMFS and the methodology
applied to generate a cost estimate suggested by NFI, NMFS estimates an
upper-bound estimate of compliance cost for reporting, recordkeeping
and supply chain auditing of $17,815,225 per year. A species-by-species
breakdown of that cost estimate is provided in Table 11. A total
compliance cost for the program must also include an additional
$2,500,000 in permit fees, ACE reporting software and data storage
costs. Thus, the upper bound estimate for compliance with all program
requirements is $20,315,225 for the first year (including software
acquisition) and $18,515,225 thereafter. Given the approximate $9
billion annual value of seafood imports into the United States for the
priority species subject to the initial phase of the seafood
traceability program, the estimated annual compliance costs of about
$5.5 to $18.5 million amount to less than one half of one percent of
product value. Copies of the final RIR/FRFA are available from NMFS
(see ADDRESSES).
Regulatory Flexibility Act
An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA described 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. NMFS received a
number of comments on the burden likely to be placed on small
businesses should the rule be implemented. The purpose of the RFA is to
ameliorate, to the extent possible, 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 where possible 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. In response to
comments on the IRFA, NMFS prepared a Final Regulatory Flexibility
Analysis (FRFA). Below is a summary of the FRFA for this final rule
which was prepared in conjunction with the RIR. Copies of the final
RIR/FRFA are available from NMFS (see ADDRESSES).
The primary objective of the rule is to collect or have access to
additional data on imported fish and fish products to determine that
they have been lawfully harvested and are not misrepresented as well as
to deter illegally caught or misrepresented seafood from entering into
U.S. commerce. These data reporting and recordkeeping requirements
affect mainly 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.
In implementing the final rule, NMFS estimates there will be
approximately 2,000 new applicants for the IFTP, with an estimated
industry-wide increase to importers of $60,000 in annual costs for
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, separate from the permit fees, 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. NMFS has estimated that the software,
data entry and recordkeeping costs would amount to $7,875,000 in the
first year (including one-time broker software acquisition), and
$6,075,000 annually thereafter for importers to submit data and retain
records of imports of the priority species subject to the Program. An
alternative approach to estimating compliance costs yields an upper
bound estimate of $20,315,225 in the first year and $18,515,225
annually thereafter.
The rule applies to entities authorized to import fish and fish
products derived from the designated species within the scope of the
Program. This rule has been developed to avoid duplication or conflict
with any other Federal rules. To the extent that the requirements of
the rule overlap with other reporting requirements applicable to the
designated species, this has been taken into account to avoid
collecting data more than once or by means other than the single window
(ACE portal). 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 will 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 priority species. NMFS
believes that the final rule effectively implements 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 Seafood Traceability Program takes
into account the burden of data collection from the trade and the
government requirements for admissibility determinations and has
mitigated that burden to the extent possible by, among other things,
implementing the Aggregated Harvest Report exemption as a change to the
final rule from the proposed rule.
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. This final regulation to implement a seafood traceability
program is procedural and administrative in nature in that they would
impose reporting and recordkeeping requirements for ongoing authorized
catch and trade activities. There are no further restrictions on
fishing activity or trade in seafood products relative to any existing
laws or regulations, either foreign or domestic. Given the procedural
and administrative
[[Page 88995]]
nature of this rulemaking, an Environmental Assessment was not
prepared.
Paperwork Reduction Act
This final rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been approved by OMB and has been assigned
Control Number 0648-0739. The information collection burden for the
requirements under this rule (IFTP, harvest and landing data submitted
at entry, image files submitted at entry, recordkeeping and data
storage, and provision of records of supply chain information when
selected for audit) as applicable to imports of the designated species
is estimated to be 367,115 hours. Compliance costs are estimated to
total $60,000 for the permit application fees, $1,800,000 for data
entry software, and $431,630 for data storage. An upper bound estimate
of compliance costs for harvest event data reporting in ACE,
recordkeeping and auditing is $11,742,311 annually.
IFTP Requirement: With the requirement to obtain an IFTP under this
program, there would be approximately 2,000 respondents who would need
approximately 5 minutes to fill out the online IFTP form (estimate
consistent with that used for ITDS proposed rule 0648-AX63) resulting
in a total annual burden of 167 hours and a cost of $4,175. This
estimate of the number of entities that would be required to obtain the
permit under the seafood traceability program is in addition to those
entities that would be required to obtain the permit under the ITDS
rule. However, there may be some overlap in that importers of multiple
seafood products that are covered under more than one trade monitoring
program would not be required to obtain a separate permit for each
program. A single, consolidated permit would suffice for all
commodities covered under all programs.
Data Set Submission Requirement: 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. Initial feedback from one seafood
importer indicates, however, that importers may already have
arrangements with software developers to update entry filing programs
as needed to address required changes so no extra incremental costs may
be involved to accommodate this new requirement.
Taking into account differences in fisheries (small and large catch
volume), but also the allowance for aggregated harvest reports by small
scale vessels, NMFS estimates that the data entry costs for vessel
information would average about $10.00 or 24 minutes for each import.
In addition to the vessel information to be reported in each entry
filing, the NMFS Message Set requires some header records and
structural records so that the data are correctly interpreted when
loaded into ACE, as well as permit data for the importer. NMFS
estimates that the data entry costs for this type of information to be
about 12 minutes or $5.00 per import.
Based on 2014 CBP import records of seafood products derived from
the priority species subject to the traceability program, it can be
expected that approximately 215,000 entries per year would require a
NMFS message set reported via ACE. However, in the final rule, NMFS has
delayed shrimp and abalone imports from harvest event data reporting
due to present concerns about parity with harvest data reporting in the
U.S. domestic aquaculture sector. Approximately 70,000 entries of
shrimp and abalone products would not immediately require permitting,
harvest event data reporting in ACE, or chain-of-custody recordkeeping
on the part of the U.S. importer. NMFS will request approval of these
information collection requirements at the time that shrimp and abalone
imports will be included in the Seafood Traceability Program. This will
be dependent on the establishment of reporting and recordkeeping
requirements for the domestic aquaculture industry through separate
actions by other agencies.
Therefore, excluding these shrimp and abalone entries would incur
reporting and recordkeeping costs for approximately 145,000 entries
annually. These 145,000 entries would be subject to submission of
harvest event data that would require 36 minutes of data entry each.
The total increase in hours for the 145,000 responses for the data set
submission requirement would therefore total 87,000 hours and labor
costs of $2,175,000@$25/hour.
Recordkeeping Requirement: The rule also requires that the harvest
event records and the chain-of-custody records be retained by the
importer for two years from cargo release. NMFS estimates that
organizing and filing the records would require 24 minutes or $10.00
for each entry subject to import reporting. The burden for the NMFS-
specific recordkeeping requirements under this rule would amount to
58,000 hours or $1,450,000 in labor costs, excluding shrimp and abalone
imports. The burden for the NMFS-specific recordkeeping requirements
under this rule would amount to 86,000 hours or $2,150,000 in labor
costs, when fully implemented after the compliance date for shrimp and
abalone is established.
Alternative Estimate: As an alternative estimate, NMFS considered
the NFI comments and modified certain assumptions of NFI to account for
changes from the proposed rule. This yielded a burden estimate of
289,769 hours for reporting and recordkeeping, excluding the monitoring
of shrimp and abalone. Under this methodology (again excluding shrimp
and abalone), the information collection burden attributed to auditing
of shipments is an additional 77,188 hours to assemble records
requested by NMFS.
Summary of Requirements: Assuming that this rule would affect 2,000
importers and 600 customs brokers making 215,000 entries per year for
the priority species subject to the initial phase of the traceability
program (once shrimp and abalone imports are included), the total
burden estimated by NMFS for permits, data entry, recordkeeping and
audits would amount to 189,317 hours, and labor costs of $4,732,925 at
$25/hour. However, in consideration of public comments received on the
proposed rule, NMFS calculated an alternative estimate for reporting,
recordkeeping. Assuming the NFI estimated cost of $32.00 per hour of
labor for the data reporting, recordkeeping and auditing, the burden
hour estimate derived by applying the NFI methodology as modified by
NMFS amounts to 328,913 hours for reporting and recordkeeping and
227,813 hours for auditing, yielding a total burden of 556,726 hours.
Excluding shrimp and abalone imports lowers the NFI adjusted burden
estimate to 289,760 hours for reporting and recordkeeping and 77,188
hours for auditing, yielding a total burden of 367,115 hours. NMFS has
requested, and OMB has approved, the upper bound (NFI) estimate,
excluding shrimp and abalone imports. A revision to the approved
information collection burden will be requested of OMB when the program
is expanded to include shrimp and abalone.
NMFS received public comment regarding aspects of the information
collection, and has responded to those
[[Page 88996]]
comments (see Comments and Responses). In particular, NMFS revised the
model catch certificate and provided instructions for each data
element. NMFS concludes that data reporting is necessary for the
enforcement of the import restrictions under MSA, that the information
collected is of practical utility; that the burden estimate is as
accurate as possible pending implementation of the rule; that ways to
enhance the quality, utility, and clarity of the information to be
collected were considered and addressed; and that ways to minimize the
burden of the collection of information, including through the use of
automated collection techniques or other forms of information
technology have been applied.
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. The control number assigned to
the information collection contained in this final rule is listed in
the table appearing at 15 CFR part 902. In addition, the table is
updated to reflect several other information collections previously
approved by OMB under separate final rules recently published by NMFS
(RIN 0648-AV12, RIN 0648-AX63) that are affected by the revisions to 50
CFR part 300 subpart Q in this rule.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
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: December 2, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 15 CFR part 902, 50 CFR
part 300, subpart Q, and 50 CFR part 600 are amended as follows:
15 CFR Chapter IX--National Oceanic and Atmospheric Administration,
Department of Commerce
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, the table in paragraph (b) under ``50 CFR'' is
amended by removing the entries for ``300.13,'' ``300.14'' and
``300.17,'' and adding, in numerical order, entries for ``300.322,''
``300.323,'' ``300.324,'' ``300.333,'' ``300.336,'' ``300.337,''
``300.338,'' ``300.339'' and ``300.341'' to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the information Current OMB control No. (all
collection requirement is located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR:
* * * * *
300.322................................... -0732
300.323................................... -0732
300.324................................... -0739
300.333................................... -0304
300.336................................... -0304
300.337................................... -0304
300.338................................... -0304
300.339................................... -0304
300.341................................... -0304
* * * * *
------------------------------------------------------------------------
* * * * *
50 CFR Chapter III--International Fishing and Related Activities
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
3. 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
4. In Sec. 300.321:
0
a. Add, in alphabetical order, a definition for ``Aggregated Harvest
Report'';
0
b. Revise 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'';
and
0
c. Add, in alphabetical order, definitions for ``Harvest Event'' and
``Seafood Traceability Program''.
The additions and revisions read as follows:
Sec. 300.321 Definitions.
* * * * *
Aggregated Harvest Report means a record made at a single
collection point on a single calendar day for aggregated catches by
multiple small-scale fishing vessels (20 measured gross tons or less or
12 meters length overall or less) offloaded at that collection point on
that day, or for a landing by a vessel to which the catches of one or
more small-scale vessels were transferred at sea. An Aggregated Harvest
Report also means a record made at a single collection point or
processing facility on a single calendar day for aggregated deliveries
from multiple small-scale aquaculture facilities, where each
aquaculture facility delivers 1,000 kg or less to that collection point
or processing facility on that day. An Aggregated Harvest Report may
not be used for information for catches from vessels greater than 20
measured gross tons or 12 meters length overall, and deliveries of more
than 1000 kg from aquaculture facilities.
* * * * *
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 trade program, and HMS
ITP trade documentation programs 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, import, export, or
re-export, as applicable for those seafood products regulated under the
TTVP, AMLR trade program, and HMS ITP or the Seafood Traceability
Program as described in this subpart. The required data sets and
document images to be submitted for specific programs and transactions
are posted by CBP as indicated in Sec. 300.323.
Fish or fish products regulated under this subpart means species
and products containing species regulated under this subpart, and the
AMLR trade program, the HMS ITP, the TTVP, or the Seafood Traceability
Program.
Harvest Event means, for wild-capture fisheries, the landing of
fish in port or
[[Page 88997]]
offloading of fish from a fishing vessel that caught the fish to a
carrier vessel at sea or in port, and for aquaculture production, the
delivery of fish from the facility to a consolidator or a processor.
For wild-capture fisheries, the harvest event is considered to occur at
the fishing trip level, such that the harvest event concludes at the
time catch is landed or offloaded from the catching vessel. For fishing
trips occurring in more than one area, each area fished during the trip
must be identified in the report on the harvest event.
* * * * *
Seafood Traceability Program means the data reporting and
recordkeeping requirements established under Sec. 300.324 and includes
the permitting requirements of Sec. 300.322, and the requirements
under Sec. 300.323 as they pertain to species or species group subject
to the Seafood Traceability Program.
* * * * *
0
5. Revise Sec. 300.323 to read as follows:
Sec. 300.323 Reporting and Recordkeeping Requirements.
(a) Reporting. Any person, including a resident agent for a
nonresident entity (see 19 CFR 141.18), who imports as defined in Sec.
300.321, exports, or re-exports fish or fish products regulated under
this subpart must file all data sets, reports, and documentation as
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. For imports, specific instructions for
electronic filing are found in Customs and Trade Automated Interface
Requirements (CATAIR) Appendix PGA (https://www.cbp.gov/document/guidance/appendix-pga). For exports, specific instructions for
electronic filing are found in Automated Export System Trade Interface
Requirements (AESTIR) Appendix Q (https://www.cbp.gov/document/guidance/aestir-draft-appendix-q-pga-record-formats). For fish and fish
products regulated under this subpart, an ACE entry filing or AES
export filing, as applicable, is required, except in cases where CBP
provides alternate means of collecting NMFS-required data and/or
document images.
(b) Recordkeeping. A paper or electronic copy of all documentation
and data sets required under this subpart, and all supporting records
upon which an entry filing or export declaration is made, must be
maintained by the importer of record or the exporting principal party
in interest as applicable, and made available for inspection, at the
importer's/exporter's place of business for a period of two years from
the date of the import, export or re-export.
Sec. 300.324 [Redesignated as Sec. 300.325]
0
6. Redesignate Sec. 300.324 as Sec. 300.325.
0
7. Add new Sec. 300.324 and immediately stay paragraph (a)(3)
indefinitely to read as follows:
Sec. 300.324 Seafood Traceability Program.
This section establishes a Seafood Traceability Program which has
data reporting requirements at the time of entry for imported fish or
fish products and recordkeeping requirements for fish or fish products
entered into U.S. commerce. The data reported and retained will
facilitate enforcement of section 307(1)(Q) of the Magnuson-Stevens Act
and the exclusion of products from entry into U.S. commerce that are
misrepresented or the product of illegal or unreported fishing. The
data reporting and recordkeeping requirements under the program enable
verification of the supply chain of the product offered for entry back
to the harvesting event(s). In addition, the permitting requirements of
Sec. 300.322 pertain to importers of products within the scope of the
program.
(a)(1) For species or species groups subject to this Seafood
Traceability Program, data is required to be reported and retained
under this program for all fish and fish products, whether fresh,
frozen, canned, pouched, or otherwise prepared in a manner that allows,
including through label or declaration, the identification of the
species contained in the product and the harvesting event. Data is not
required to be reported or retained under this program for fish oil,
slurry, sauces, sticks, balls, cakes, pudding and other similar fish
products for which it is not technically or economically feasible to
identify the species of fish comprising the product or the harvesting
event(s) contributing to the product in the shipment.
(2) The following species or species groups are subject to this
Seafood Traceability Program: Atlantic Cod; Pacific Cod; Blue Crab; Red
King Crab; Dolphinfish (Mahi Mahi); Grouper; Red Snapper; Sea Cucumber;
Sharks; Swordfish; Tunas (Albacore, Bigeye, Skipjack, Yellowfin, and
Bluefin). The harmonized tariff schedule (HTS) numbers applicable to
these species or species groups are listed in the documents referenced
in paragraph (c) of this section. Compliance with the requirements of
the Seafood Traceability Program for these species or groups of species
is mandatory beginning January 1, 2018.
(3) The following species or species groups are also subject to
this Seafood Traceability Program: Abalone and Shrimp. The harmonized
tariff schedule (HTS) numbers applicable to these species or species
groups are listed in the documents referenced in paragraph (c) of this
section. The Seafood Traceability Program for these species or species
groups consists of two components:
(i) The data reporting requirements of paragraphs (b)(1) through
(3) and (c) of this section in conjunction with Sec. 300.323(a); and
(ii) The permit requirements of Sec. 300.322, the IFTP number
reporting requirement in paragraph (b)(4) of this section in
conjunction with Sec. 300.323(a), and the recordkeeping requirements
of Sec. 300.323(b) which includes the recordkeeping of all information
specified in paragraphs (b) and (e) of this section.
(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 U.S. Customs and Border
Protection (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
fishing authorization; Unique vessel identifier(s) (if available);
Type(s) of fishing gear used to harvest the fish; Name(s) of farm or
aquaculture facility. Vessel-, farm-, or aquaculture facility-specific
information is not required if the importer of record provides
information from an Aggregated Harvest Report, unless the product
offered for entry is subject to another NMFS program that requires data
reporting or documentation at an individual vessel, farm, or
aquaculture facility level.
(2) Information on the fish that was harvested and processed:
Species of fish (Aquatic Sciences Fishery Information System 3-alpha
code as listed at http://www.fao.org/); Product form(s) at the point of
first landing whether unprocessed or processed prior to landing/
delivery; Quantity and/or weight of the product(s) as landed/delivered.
When an Aggregated Harvest Report is used, the importer must provide
all of the information under this
[[Page 88998]]
paragraph (b)(2), but may provide the total quantity and/or weight of
the product(s) as landed/delivered on the date of the report.
(3) Information on where and when the fish were harvested and
landed: Area(s) of wild-capture or aquaculture location; Location of
aquaculture facility; Point(s) of first landing; Date(s) of first
landing, transshipment or delivery; Name of entity(ies) (processor,
dealer, vessel) to which fish was landed or delivered. When an
Aggregated Harvest Report is used, the importer must provide all of the
information under this paragraph (b)(3). Some product offered for entry
may be comprised of products from more than one harvest event and each
such harvest event relevant to the contents of the shipment must be
documented; however, specific links between portions of the shipment
and a particular harvest event are not required.
(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 the NMFS Implementation
Guide and CBP and made available at: http://www.cbp.gov/trade/ace/catair. All harvest events contributing to the inbound shipment must be
reported, but links between portions of the shipment and particular
harvest events are not required.
(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.
To support such audits, the importer must retain records of the
information reported at entry under paragraph (b) of this section in
electronic or paper format, and make them available for inspection, at
the importer's place of business for a period of two years from the
date of the import.
(e) In addition to the entry recordkeeping requirements specified
at 19 CFR part 163 and Sec. 300.323(b), 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 back to the point
of harvest, including individual or Aggregated Harvest Reports, if any,
and information that identifies each custodian of the fish or fish
product (such as any transshipper, processor, storage facility or
distributor). The latter may include widely used commercial documents
such as declarations by the harvesting/carrier vessels or bills of
lading. The importer must retain such chain-of-custody records in
electronic or paper format, and make them available for inspection, at
the importer's/exporter's place of business for a period of two years
from the date of the import.
0
8. Revise newly redesignated Sec. 300.325 to read as follows:
Sec. 300.325 Prohibitions.
In addition to the prohibitions specified in Sec. Sec. 300.4,
300.117, and 300.189 and 600.725 and 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 the conditions of any
IFTP issued under this subpart;
(b) Import, export or re-export fish or fish products regulated
under this subpart, including imports or exports otherwise eligible for
informal filing procedures or the de minimis value exemption from
filing requirements under CBP procedures, without a valid IFTP as
required under Sec. 300.322 or without submitting complete and
accurate information as required under Sec. 300.323; and
(c) 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) and (c) or without maintaining for inspection
records as required under Sec. 300.324(d) and (e).
50 CFR Chapter VI--Fishery Conservation and Management, National
Oceanic and Atmospheric Administration, Department of Commerce
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
9. 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
10. 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 thereunder, 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 a binding conservation
measure adopted by an international agreement or organization to which
the United States is a party.
* * * * *
[FR Doc. 2016-29324 Filed 12-8-16; 8:45 am]
BILLING CODE 3510-22-P