New permitting, reporting, and recordkeeping requirements are being imposed for imports of certain fish and fish products identified as being at particular risk of illegal, unreported, and unregulated fishing or seafood fraud under a new final rule from the National Marine Fisheries Service. This rule represents the first phase of a risk-based traceability program that tracks these products and will 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. NMFS estimates that the rule will affect 2,000 importers and 600 customs brokers making 215,000 entries of the affected products per year.
This rule is effective as of Jan. 9, 2017, but the permitting, reporting, and recordkeeping requirements will not become mandatory until Jan. 1, 2018. U.S. importers should therefore work with their exporters to obtain harvest and supply chain records for products that are harvested earlier than Jan. 1, 2018, but will be entered into the U.S. on or after that date. In addition, the effective date of this rule as it pertains to shrimp and abalone is being stayed until appropriate reporting and/or recordkeeping requirements for domestic aquaculture production can be established.
Covered Species. This rule will apply to fish or fish products of the following priority 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. The rule sets forth specific HTSUS numbers for these goods that will be covered but notes that these numbers may be revised occasionally by the International Trade Commission.
Highly processed fish products (e.g., fish oil, slurry, sauces, sticks, balls, cakes, puddings, and meal) will 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 product being entered cannot be feasibly identified through inspection, labeling, or HTSUS number.
NMFS states that its goal is to eventually expand this program to all seafood at first point of sale or import.
Information Reporting. The following information must be filed via the Automated Commercial Environment (through the ACE partner government agency message set and/or the Document Image System) for covered species at the time of entry.
- 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 (as indicated by the Aquatic Sciences and Fisheries Information System three-alpha code), product form at point of first landing, and quantity and/or weight as landed or 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, 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 is established as a recordkeeping requirement on the part of the importer of record. This information must be provided to NMFS upon request and be sufficient for NMFS to conduct a trace back to verify the veracity of the information. 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, will provide sufficient information.
NMFS notes that data sets to be submitted electronically to determine product admissibility are already, to some extent, collected by the trade in the course of supply chain management, required to be collected and submitted under existing trade monitoring programs, or collected in support of third-party certification schemes voluntarily adopted by the trade.
Importers will be exempt from providing vessel- or aquaculture facility-specific information if they provide other required data elements based on an aggregated harvest report.
Permits. Importers of record identified in CBP entry filings for shipments containing covered species will have to obtain an international fisheries trade permit.
Enforcement. Business rules are programmed into ACE to automatically validate that the reporting requirements have been met. In addition, entries may be subject to verification by NMFS that the supplied information is true and can be corroborated via auditing procedures. Entries for which records are not timely provided or that cannot verified will be subject to enforcement or other action, which may include redelivery orders, exclusion from entry into commerce, forfeiture, and enforcement action against the entry filer or importer of record.
NMFS states that it 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 is provided at the time of entry.