USDA Issues Interim Final Rule on Mandatory Country of Origin Labeling for Fish and Shellfish

(AMS explains that the Farm Security and Rural Investment Act of 2002 (Public Law (P.L.) 107-171) and the 2002 Supplemental Appropriations Act amended the Agricultural Marketing Act of 1946 (Act) to require retailers to notify their customers of the country of origin of covered commodities, which include muscle cuts of beef (including veal), lamb, and pork; ground beef, ground lamb, and ground pork; farm-raised fish and shellfish; wild fish and shellfish; perishable agricultural commodities; and peanuts.

However, the FY 2004 Consolidated Appropriations Act (P.L. 108-199) delayed the implementation of mandatory COOL for all covered commodities except the fish and shellfish covered commodities. See ITT's Online Archives or 01/26/04 news, 04012605, for BP summary.)

This is Part I of a multipart series of summaries on this interim final rule, and includes information on the effective date, covered and excluded items, recordkeeping requirements, and the attached appendices. See future issues of ITT for additional summaries, including the country of origin labeling notification requirements.

Interim Final Rule Effective April 4, 2005; AMS to Focus on Education for Six Months After Effective Date

This interim rule is effective April 4, 2005; however, AMS states that it does not apply to frozen fish or shellfish caught or harvested before December 6, 2004.

AMS explains that it has delayed the effective date of this interim final rule for six months from its Federal Register publication date in order to allow existing inventories to clear through the channels of commerce and to allow affected industry members to conform their operations to the requirements of this interim final rule.

AMS also states that during this time period, it will conduct an industry education and outreach program concerning the provisions and requirements of this rule. In addition, AMS will focus its resources on industry education and outreach for the six months immediately following April 4, 2005.

Highlights of Definitions and Recordkeeping Requirements

The following are highlights of AMS' interim final rule implementing the COOL requirements for fish and shellfish covered commodities (partial list):

Covered commodity. 7 CFR 60.105 states that, for both farm-raised and wild fish and shellfish, "covered commodities" include fillets, steaks, nuggets, and any other flesh. Fish and shellfish covered commodities are excluded from the COOL program if they are an ingredient in a processed food item, as defined in 7 CFR 60.119 (see below).

Processed food items are excluded from term "covered commodity." 7 CFR 60.119 defines "processed food item," which is excluded from the term "covered commodity," to mean:

A retail item derived from fish or shellfish that has undergone specific processing resulting in a change in the character of the covered commodity, or that has been combined with at least one other covered commodity or other substantive food component (e.g. breading, tomato sauce), except that the addition of a component (such as water, salt, or sugar) that enhances or represents a further step in the preparation of the product for consumption, would not in itself result in a processed food item.

Specific processing that results in a change in the character of the covered commodity includes cooking (e.g. frying, broiling, grilling, boiling, steaming, baking, roasting), curing (e.g. salt curing, sugar curing, drying), smoking (hot or cold), and restructuring (e.g. emulsifying and extruding, compressing into blocks or cutting into portions.) Examples of items excluded include fish sticks, soups, salmon that has been smoked, marinated fish fillets, canned tuna, shrimp cocktail, sushi, breaded shrimp, etc.

General recordkeeping requirements. Among other things, 7 CFR 60.400(a) indicates that suppliers and retailers subject to this subpart must make the relevant records (maintained in either electronic or hard copy formats) available to the USDA representative upon request in a timely manner.

Recordkeeping requirements for suppliers (including importers of record that are suppliers). 7 CFR 60.400(b)(1) states that any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must make available information to the buyer about the country(ies) of origin and method(s) of production (wild and/or farm-raised), of the covered commodity. This information may be provided either on the product itself, on the master shipping container, or in a document that accompanies the product through retail sale, provided that it identifies the product and its country(ies) of origin and method(s) of production, unique to that transaction by means of a lot number or other unique identifier. In addition, the supplier of a covered commodity that is responsible for initiating a country(ies) of origin and method(s) of production (wild and/or farm-raised) claim must possess records that are necessary to substantiate that claim.

According to 7 CFR 60.400(b)(2), any intermediary supplier (i.e., not the supplier responsible for initiating a country of origin declaration and designation of wild and/or farm-raised) handling a covered commodity that is found to be designated incorrectly for country of origin and/or method of production (wild and/or farm-raised), shall not be held liable for a violation of the Act by reason of the conduct of another if the intermediary supplier could not have been reasonably expected to have had knowledge of the violation.

In addition, 7 CFR 60.400(b)(3) states that any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly (i.e., including but not limited to harvesters, producers, distributors, handlers, and processors), must maintain records to establish and identify the immediate previous source (if applicable) and immediate subsequent recipient of a covered commodity, in such a way that identifies the product unique to that transaction by means of a lot number or other unique identifier, for a period of 1 year from the date of the transaction.

Additional recordkeeping requirements for importers of record as suppliers. 7 CFR 60.400(b)(4) states that for an imported covered commodity (as defined in 7 CFR 60.200(f)), the importer of record as determined by U.S. Customs and Border Protection (CBP), must ensure that records: provide clear product tracking from the port of entry into the U.S., to the immediate subsequent recipient and accurately reflect the country of origin and method of production (wild and/or farm-raised) of the item as identified in relevant CBP entry documents and information systems; and must maintain such records for a period of 1 year from the date of the transaction.

Appendix lists exclusive economic zones and maritime boundaries of U.S. This interim final rule also adds Appendix A to 7 CFR Part 60 Subpart A in order to set forth the exclusive economic zones and maritime boundaries of the U.S.

(See ITT's Online Archives or 10/31/03, 11/03/03, and 11/04/03 news, 0310312003110310 and 03110410, for Parts I - III of BP summary on AMS' proposed rule on COOL.)

-written comments are due on or before January 3, 2005

AMS Contact - William Sessions (202) 720-5705

AMS COOL program Web page http://www.ams.usda.gov/cool/index.htm

AMS interim final rule (No. LS-03-04, FR Pub 10/05/04) available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-22309.pdf