NMFS Final Rule Makes Certain Changes and Clarifications to Yellowfin Tuna Importation Standards

According to NMFS sources, this final rule is largely a reorganization of the January 2000 interim final rule; however some substantive changes are made, in addition to a number of technical (non-substantive) changes.

(The January 2000 interim final rule established a standard for the use of "dolphin-safe" labels for tuna products and also established a tuna-tracking and verification program to ensure that the dolphin-safe status of tuna domestically produced and imported into the U.S. is documented. See ITT's Online Archives or 01/06/00, 01/07/00, and 01/11/00 news, 00010520, 00010620, and 00011020, for Parts I-III of BP's summary of the January 2000 interim final rule, respectively.)

Highlights of Changes Made by Final Rule

Among other things, this final rule makes the following changes to 50 CFR Part 216 (Regulations governing the taking and importing of marine mammals) (partial list):

Invoice no longer required to accompany shipment/FCO. The final rule removes the requirement that shipments of tuna and the Fisheries Certificate of Origin (FCO) be accompanied by an invoice at the time of importation. NMFS sources explain that this invoice requirement was found to be burdensome to U.S. Customs and Border Protection (CBP). (The amended regulations are now located at 50 CFR 216.24(f)(3), rather than 216.24(f)(4).)

"Mixed wells" no longer permitted. Under the final rule, "mixed wells" are no longer permitted. NMFS sources explain that "mixed wells" are wells that contain both dolphin-safe tuna and non-dolphin-safe tuna. According to these sources, tuna in "mixed wells" is now considered non-dolphin-safe. (The interim final rule specified two conditions in 50 CFR 216.94(b)(2) under which "mixed wells" would have been acceptable; however, these provisions have been deleted.)

Certain records must be maintained for 2 years (rather than 3 years). 50 CFR 216.93(f)(1) (previously 50 CFR 216.94(e)) has been revised to state that any exporter, trans-shipper, importer, or processor of any tuna or tuna products containing tuna harvested in the Eastern Tropical Pacific must maintain records related to that tuna for at least 2 years. These records include, but are not limited to: FCO and required certifications, any report required in 50 CFR 216.93(a), (b), and (d), invoices, other import documents, and trip reports. (Prior to this amendment, these records were required to be maintained for a period of 3 years.)

Updated lists of HTS numbers requiring an FCO. In 50 CFR 216.24(f)(2), the final rule has updated each of the three lists of HTS numbers for which imports require an FCO. These lists are as follows: (1) HTS numbers requiring a FCO that are subject to yellowfin tuna embargo; (2) HTS numbers requiring a FCO not subject to yellowfin tuna embargo; and (3) exports from driftnet nations only: HTS numbers requiring a FCO and official certification.

Shipments passing through intermediary countries on a through Bill of Lading. The final rule amends 50 CFR 216.24(f)(9)(ii) to state that shipments of yellowfin tuna that pass through any nation (e.g. on a "through Bill of Lading") and are not entered for consumption in that nation are not considered to be imports to that nation and thus would not cause that nation to be considered an intermediary nation under the Marine Mammal Protection Act (MMPA).

Customs actions for fish refused entry. 50 CFR 216.24(f)(10) now provides that if fish is denied entry under 50 CFR 216.24(f)(2), the Port Director of Customs shall refuse to release the fish for entry into the U.S. (Previously, the interim final rule had stated that the District Director of Customs would make such refusal and would also issue a notice of such refusal to the importer or consignee.)

Fish refused entry to be disposed of at importer's expense. The final rule has revised the instructions for the disposition of fish refused entry into the U.S. 50 CFR 216.214(f)(11) now states, among other things, that fish denied entry under 50 CFR 216.24(f)(2) that is not exported under Customs supervision within 90 days shall be disposed of under Customs laws and regulations at the importer's expense. (The interim final rule had not specified at whose expense such disposition would be done.)

FCO endorsements. The final rule has removed the provision from 50 CFR 216.92(b)(5) that the FCO be properly endorsed by each exporter, importer, and processor certifying that, to the best of his or her knowledge and belief, the FCO and attached documentation are complete and accurate.

In place of this provision, 50 CFR 216.24(f)(3)(ii) provides that FCOs that accompany imported shipments of tuna destined for further processing in the U.S. must be endorsed at each change in ownership and submitted to the NMFS Administrator of the Southwest Region, by the last endorser when all required endorsements are completed.

-see final rule for instructions for submitting comments on this final rule's information collection requirements

NMFS Contact - Jeremy Rusin (562) 980-3248

NMFS Final Rule (D/N 040806232-4232-01, I.D. 041404C; FR Pub 09/13/04) available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-20468.pdf

BP Note

NMFS sources state that although the regulations in this final rule currently apply only to yellowfin tuna, NMFS expects to soon propose expanding their scope to include all tuna.