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Seafood Imports Subject to Reporting and Recordkeeping Under New Proposal

Friday, February 05, 2016
Sandler, Travis & Rosenberg Trade Report

The National Marine Fisheries Service is proposing to establish reporting and recordkeeping requirements for imports of certain fish and fish products later this year. This proposed rule represents the first phase of a risk-based traceability program that tracks fish and fish products identified as being at risk of illegal, unreported and unregulated fishing and seafood fraud, and it would implement a statutory prohibition against importing, exporting, transporting, selling, receiving, acquiring or purchasing in interstate or foreign commerce any fish taken, possessed, transported or sold in violation of any foreign law or regulation or any treaty or binding conservation measure to which the U.S. is a party.

Comments on this proposal are due by April 5, public webinars to discuss it will be held Feb. 18 and 24, and an in-person listening session will be held March 7 in Boston.

Covered Species. The permitting, reporting and recordkeeping requirements of this proposed rule would apply to entries for consumption and withdrawals from a bonded warehouse or foreign-trade zone for consumption of fish or fish products of the following at-risk species and species groups: abalone, Atlantic cod, Pacific cod, blue crab, red king crab, dolphinfish (mahi mahi), grouper, red snapper, sea cucumber, shrimp, sharks, swordfish, and tuna.

Highly processed fish products (e.g., fish oil, slurry, sauces, sticks, balls, cakes and puddings) would be excluded from the additional data requirements when the species of fish comprising the product or the harvesting event(s) or aquaculture operation(s) of the shipment of the product cannot be feasibly identified.

Information Reporting. Under this rule NMFS would require entry filers, when importing covered species, to submit the following information via the Automated Commercial Environment portal (through the ACE partner government agency message set and/or the Document Image System) as part of the U.S. Customs and Border Protection entry/entry summary process.

- 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, and name(s) of farm or aquaculture facility

- information on the fish that was harvested and processed, including: species (scientific name, acceptable market name and ASFIS number), product description(s), name(s) of product, and quantity and/or weight of the product(s)

- information on where and when the fish were harvested and landed: area(s) of wild capture or aquaculture harvest, harvest date(s), location(s) of aquaculture facility, point of first landing, date of first landing, and name of entity(ies) (processor, dealer, vessel) to which fish was landed

- the NMFS international fisheries trade permit number issued to the importer of record for the entry

Additional information on each point in the chain of custody regarding the shipment to point of entry into U.S. commerce would be established as a recordkeeping requirement. This information would have to be provided to NMFS upon request and be sufficient for NMFS to conduct a trace back to verify the veracity of the information 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 that include such information as the identity of the custodian, the type of processing, and the weight of the product, would provide sufficient information.

Permits. Importers of record identified in CBP entry filings for shipments containing covered species would have to obtain an international fisheries trade permit. NMFS states that requiring the IFTP would allow it to identify, and have current contact information for, importers of the covered species. This would enable NMFS to provide information about data reporting and recordkeeping requirements applicable to at-risk species, alert permit holders in advance of any pending changes to data reporting and recordkeeping requirements (including additional data elements or at-risk species), and minimize the potential for disruptions in trade and costly delays in the release of shipments.

Verification. Procedures would be established to validate that the required information has been submitted and is true and can be corroborated via auditing procedures. Entries failing these procedures would be subject to measures such as redelivery orders, exclusion from entry into commerce, or enforcement action against the entry filer or importer of record.

Third-Party Certification. NMFS is considering how voluntary third-party seafood certification programs could simplify entry filing for covered species or could be used to meet the proposed reporting requirements and is therefore requesting comments on how the interoperability of third-party data systems could be applied to meet the data reporting requirements on a pre-arrival basis or at the point of entry.

Trusted Trader. NMFS is also considering and seeking comments on how the Trusted Trader program might be used to streamline entry processing for covered species while allowing the U.S. to determine that imported seafood has been lawfully acquired and not misrepresented.

Effective Date. NMFS anticipates that this rule would become effective in September but is proposing to require compliance between 90 days and 12 months thereafter. NMFS is also seeking feedback on the lead time needed for seafood trade participants to implement a potential expansion of this rule by including additional species and/or data elements.

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