[Federal Register Volume 87, Number 141 (Monday, July 25, 2022)]
[Proposed Rules]
[Pages 44078-44080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15865]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 220720-0158]
RIN 0648-BK86


Seafood Import Procedures and Certification of Admissibility

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

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

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SUMMARY: NMFS intends to revise regulations concerning the 
Certification of Admissibility (COA) program used to allow entry of 
certain fish or fish products otherwise subject to trade restrictions. 
Specifically, NMFS is considering automating the submission of COA 
information through use of the Automated Commercial Environment (ACE) 
managed by U.S. Customs and Border Protection (CBP). Such automated 
processing may require the submission of additional data elements. 
Prior to drafting a proposed rule, NMFS is issuing this advance notice 
of proposed rulemaking requesting input from stakeholders and 
interested parties on the reporting and recordkeeping burden of the 
certification of admissibility, on the procedures for using 
certification in the entry filing process, and on ways to reduce the 
reporting burden and expedite release of admissible shipments through 
use of the ACE single window portal. Based on comments received and 
NMFS' overall assessment of concerns raised, NMFS will consider these 
concerns in developing the proposed rule to revise and automate the 
submission of COA information.

DATES: Written comments must be received on or before August 24, 2022.

ADDRESSES: Written comments on this action, identified by NOAA-NMFS-

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2022-0057, may be submitted by either of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2022-0057 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    Mail: Submit written comments to Christopher Rogers, Office of 
International Affairs, Trade, and Commerce, National Marine Fisheries 
Service, 1315 East-West Highway (F/IS5), Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements expected to be 
addressed in the proposed rule may be submitted to the Office of 
International Affairs, Trade, and Commerce.

FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office of 
International Affairs, Trade, and Commerce, National Marine Fisheries 
Service (phone: 301-427-8350; or email: [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    NMFS is developing a proposed rule to revise regulations concerning 
the Certification of Admissibility (COA) used to allow entry of fish or 
fish products that are otherwise subject to trade restrictions. These 
program revisions will include automated entry filing of information 
required to establish admissibility of the shipment. As noted in the 
``specific questions'' below, currently, NMFS uses paper format COAs 
that require signatures.
    Several statutes, including the Marine Mammal Protection Act (MMPA) 
and the High Seas Driftnet Fishing Moratorium Protection Act 
(Moratorium Protection Act), contain provisions that authorize 
imposition of trade restrictions on certain fish products depending on 
the conditions of harvest or production. While NMFS has authority under 
MMPA and Moratorium Protection Act implementing regulations to impose 
trade restrictions to target problematic activity, the regulations also 
allow for entry of some fish and fish products harvested from fishing 
activity that is not a source of concern.
    For example, under the MMPA, fisheries that export to the United 
States must have marine mammal bycatch mitigation measures comparable 
in effectiveness to those required in U.S. fisheries (see 16 U.S.C. 
1371(a)(2) and 50 CFR 216.24(h)). NMFS makes comparability findings on 
the basis of individual commercial fishing technologies/methods. In 
this manner, a nation harvesting tuna in a hook-and-line fishery with 
minimal interactions with marine mammals may receive a comparability 
finding for that fishery, but might not receive such a finding for a 
gillnet fishery that causes serious injury and/or mortality to marine 
mammals in excess of U.S. standards.
    In such a case, tuna from the hook-and-line fishery of that nation 
would be admissible but tuna from the gillnet fishery would be 
prohibited. NMFS would specify to CBP that tuna from the nation is 
prohibited by listing the harmonized tariff schedule (HTS) codes 
applicable to the restricted fish product and the country of origin 
applicable to the restriction. Entries filed with the specified 
combination (HTS x country) would be rejected in the CBP Automated 
Commercial Environment (ACE). However, if the exporter provides to the 
U.S. importer a COA validated by officials of the harvesting nation to 
document that the tuna was harvested in the hook fishery, the importer 
can file that information in ACE to gain entry (see: 50 CFR 
216.24(h)(9)(iii)).
    Similarly, the Moratorium Protection Act contains provisions to 
negatively certify nations for problematic activity in their fisheries 
(e.g., illegal, unreported or unregulated fishing; excessive bycatch of 
protected species; unsustainable fishing for sharks) (see: 16 U.S.C. 
1826j, 1826k and 50 CFR 300.202, 203, 204). Negatively certified 
nations are subject to trade restrictions for products harvested in the 
fisheries of concern. However, the statute authorizes alternative 
procedures to exclude fish and fish products by allowing entry on a 
shipment by shipment or vessel specific basis (see: 16 U.S.C. 
1826j(d)(2), 16 U.S.C. 1826k(c)(4) and 50 CFR 300.207, 208, 209). In 
the case of trade restrictions, NMFS would notify CBP of the applicable 
HTS codes and country of origin, but note that the importer could 
submit a COA validated by the exporting nation to document that the 
fish was not harvested in the fishery or by the vessel subject to trade 
restrictions (see 50 CFR 300.207, 208, 209).
    To date, NMFS has applied a COA requirement in one situation. Under 
MMPA authority, certain fishery products from Mexico that were 
harvested by specified fishing gear in the Upper Gulf of California are 
subject to trade restrictions (see 85 FR 13626, March 9, 2020). 
However, those fish products are admissible, when documented by Mexico 
via the COA as having been harvested in other fishing areas outside the 
Upper Gulf of California or with other fishing gear not subject to the 
import restriction. See this NMFS website for detailed information on 
the current trade restrictions and provisions for use of the COA to 
file entries: https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions.
    NMFS intends to revise the MMPA and Moratorium Protection Act 
regulations to automate the submission of COAs. This would continue to 
facilitate enforcement of trade restrictions while also reducing the 
reporting and record keeping burden on the trade community. To this 
end, NMFS is working with CBP to automate the process in ACE for 
applying fish product trade restrictions including situations when 
entry is allowed through use of the COA. CBP will develop functionality 
within the ACE portal to allow NMFS to specify trade restrictions for 
particular fish products harvested by and/or exported from specific 
nations. NMFS would also specify when those products may be entered 
with a COA documenting that the fish products were harvested by a 
method or in a location not subject to the specified trade restriction. 
In some instances, this will require additional information from the 
foreign exporter that would be filed in ACE by the U.S. importer (e.g., 
fishing area and fishing gear).
    NMFS seeks comment on the COA provisions from the trade community 
affected by the current MMPA trade restrictions on certain fish 
products from Mexico. NMFS also seeks comment from exporters, 
importers, and customs brokers of fish or fish products who are subject 
to reporting requirements at entry through the ACE portal. In addition, 
NMFS seeks comments from software developers who develop programs for 
trade community computer systems to interface with ACE.

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    Specific questions for which NMFS seeks include:
    What are the relative differences in time and cost burden of 
reporting an entry that requires a COA in paper format (document image 
submission) relative to electronic filing of a message set that 
includes COA data elements? What is the impact on entry filing if the 
COA process is automated in ACE?
    What supporting documents are available to importers and could be 
submitted through ACE at entry filing to validate information from the 
COA (e.g., shipping manifest, commercial invoice)?
    Currently, the COA regulations require a signature of the importer 
of record attesting to the contents of the shipment relative to the 
description of fish provided by the foreign nation exporter. This 
attestation can only be made post-release so a corrected entry summary 
is required to resubmit the COA image file with the importer signature 
via the ACE Document Image System (DIS). What are the cost and time 
burdens associated with the corrected entry summary? Are there other 
more efficient means by which NMFS can collect the importer 
attestation?
    What is the time frame needed for software development and testing 
prior to implementing automated entry processes for products that could 
be admitted when filed with a COA message set or COA image files? What 
is the scope of programming requirements for customs brokers so that 
new COA entry filing software is not needed for each specific trade 
restriction that might be imposed (i.e., adjustment for a new 
restriction defined by HTS code + exporting nation)?
    Should NMFS seek to develop an electronic version of the COA so 
that a foreign exporter could enter the required information online in 
a NMFS system and the U.S. importer could gain secure access to the 
individual shipment information for the purposes of transferring that 
information to ACE via the entry filing process?
    NMFS is also interested in any additional comments or suggestions 
for improving the implementation of the Certification of Admissibility 
provisions pursuant to regulations issued under 50 CFR parts 216 and 
300.

Classification

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

    Authority: 16 U.S.C. 1372(a)(2); 16 U.S.C. 1826j(d)(2); 16 
U.S.C. 1826k(c)(4).

    Dated: July 20, 2022.
Kimberly Damon-Randall,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2022-15865 Filed 7-22-22; 8:45 am]
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