NMFS Proposes New ACE Filing, Recordkeeping Requirements for High-Risk Seafood Imports

NMFS expects any final rule on the new filing, recordkeeping and permit requirements would take effect by September 2016, it said. Compliance with the final rule would be required between 90 days and 12 months following publication of the final rule.

NMFS is planning to hold public webinars on the proposed rule from 3 p.m. to 5 p.m. EST on Feb. 18 and Feb. 24. In addition, it will hold an in-person “public listening session” in Boston on March 7. Information on all three events will be available (here).

High-Risk Species Include Shrimp, Tuna, Cod; Excludes ‘Highly Processed’ Products

The proposed rule would initially apply largely to imports of certain high-risk species identified in a notice issued by NMFS in October (here). Species and species-groups covered by the proposed rule are as follows:

Abalone; Atlantic Cod; Pacific Cod; Blue Crab; Red King Crab; Dolphinfish (Mahi Mahi); Grouper; Red Snapper; Sea Cucumber; Shrimp; Sharks; Swordfish; and Albacore, Bigeye, Bluefin, Skipjack, and Yellowfin Tuna.

Shrimp and abalone possibly delayed. NMFS says there are currently “gaps” in the collection in traceability information for domestic aquaculture-raised shrimp and abalone. If those gaps remain by the time this rule is finalized, NMFS may “delay implementation” of requirements for imported shrimp and abalone until those gaps have been addressed.

Highly processed seafood exempt. The proposed rule would not cover highly processed fish products – fish oil, slurry, sauces, sticks, balls, cakes, puddings and other similar products – for which the species of the fish, harvesting events or aquaculture operations of the shipment cannot easily be identified. However, filing requirements of other programs, such as the Tuna Tracking and Verification Program, may still apply, said NMFS.

Additional species may be added. NMFS said its proposed rule is only in its “initial phase, and is designed in such a way that it can be expanded to eventually include all species, as warranted by risk analysis.”

Requirements Apply to ‘Importer of Record’ of Consumption Entries; Broker May File in ACE

For any imports of such products, the importer of record, as identified on entry filings for shipments containing the designated at-risk species, would be responsible with complying with the proposed requirements. A customs broker may fulfill entry filing requirements on behalf of the importer of record at the importer of record’s request, said NMFS.

The proposal would apply only to “imported fish and fish products” entered for consumption, withdrawn from warehouse for consumption, or withdrawn from a foreign-trade zone for consumption, said NMFS. It would not cover transit shipments that do not enter U.S. commerce.

Importer of Record Must Obtain Permit for Covered Imports

The importer of record of any shipments covered by this proposal would be required to obtain an International Fisheries Trade Permit (IFTP). To obtain the IFTP, the importer of record of a high-risk seafood covered by the rule would electronically submit their application and fee via NMFS’ National Permitting System and pay an annually-calculated fee. Any importer of record that is required to have an IFTP would only needs one IFTP, said the agency; separate permits would not be required if the imported species are covered under more than one program or if the importer trades in more than one covered species. If the importer of record uses a customs broker to file its entries, the customs broker does not have to obtain an IFTP, said NMFS. NMFS proposed the new IFTP in December (see 1512300015), and the agency said it will not finalize this rule until after it issues a final rule to create the IFTP.

New Data Required for List of HTS Codes Designated in ACE; Entries Rejected if Not Filed

At entry of any shipments covered by this proposal, the filer would have to supply through ACE new information that is not currently required by CBP or the NMFS. A list of HTS numbers that require the additional data would be designated in ACE, covering certain subheadings within headings 0302, 0303, 0304, 0305, 0306, 0308, 1604 and 1605 (see the NMFS notice for the current list). For covered shipments, the following data would have to be filed at time of entry:

• Information on harvester or producer: Name and flag state of harvesting vessel(s) and evidence of authorization; Unique vessel identifier(s) (if available); Type(s) of fishing gear; Name(s) of farm or aquaculture facility
• Information on the fish that was harvested and processed: Species of fish (scientific name, acceptable market name, and ASFIS number); Product description(s); Name of product(s); Quantity and/or weight of the product(s).
• Information on where and when the fish were harvested and landed: Area(s) of wildcapture or aquaculture location; Date(s) of harvest or trip(s); Location of aquaculture facility; Point(s) of first landing; Date(s) of first landing; Name of entity(ies) (processor, dealer, vessel) to which fish was landed.. Some entries may comprise products from more than one harvest event and each event relevant to the shipment must be documented.
• The NMFS-issued IFTP number for the importer of record.

Filed as data elements or through Document Image System. This data would have to be filed ”electronically through the ACE Partner Government Agency Message Set for NMFS and/or the DIS,” said NMFS. The agency will work with CBP to develop CATAIR requirements and implementation guides setting required filing formats, it said.

Validation at time of entry. Business rules would be programmed into ACE to automatically validate that all message set and DIS requirements have been satisfied for designated HTS subheadings, said NMFS. Any entry filed under a designated subheading that does not contain the required data would be rejected, and its filer notified of any deficiencies that must be corrected prior to release.

Disclaim for some non-covered shipments. For designated subheadings that cover both subject and non-subject species, the scientific name or the species of the shipment or a disclaim would be required to discern whether the entry is subject to the additional reporting requirements.

Additional data to be added. NMFS will in the near future add certain chain of custody data currently proposed as recordkeeping requirements to the list of data elements required for filing at time of entry, it said. Though NMFS currently faces “constraints” on its ability to expand information collected through message sets prior to full implementation of the International Trade Data System (ITDS) at the end of 2016, it will identify additional chain of custody data elements by one year after full implementation this proposal, it said.

Importer Chain of Custody, Other Recordkeeping Requirements

In addition to the information required at time of entry, the importer of record would also have to maintain records, and provide them to NMFS on request, on each point in the chain of custody for covered shipments up to entry into the U.S., said NMFS. The records must allow NMFS to conduct a trace back to verify the information reported on an entry, it said. That would include records on each custodian of the fish and fish product, "including, as applicable, transshippers, processors, storage facilities, and distributors,” it said.

‘Typical supply chain records’ sufficient. Typical supply chain records kept in the normal course of business, such as “declarations by harvesting/carrier vessels, bills of lading and forms voluntarily used or required under foreign government or international monitoring programs which include such information as the identity of the custodian, the type of processing, and the weight of the product, would provide sufficient information for NMFS to conduct a trace back,” said the agency. NMFS is also developing model forms to track chain of custody.

Records also required to support entry data. The importer of record would also have to retain supporting documentation for data reported at time of entry.

Records required for five years. The importer of record would have to retain both chain of custody and supporting documentation for a period of five years.

Risk-Based Verification of Entries, Records; Holds, Redelivery, Exclusion or Enforcement Possible

NMFS may select entries for additional verification, via risk-based screening procedures developed alongside CBP, to ensure supplied data elements are true and can be corroborated via auditing procedures, it said. Though some would be conducted pre-release on a targeted basis and could result in holds until the verification is completed, NMFS anticipates that most verifications would take place after the shipment is released. If records are not timely provided or cannot be verified as lawfully acquired and non-fraudulent, NMFS or CBP could issue a redelivery order, exclude the shipment from entry, or take enforcement action against the entry filer or importer of record, it said.

NMFS Considering Third-Party Certification, Trusted Trader Programs

NMFS is considering how voluntary third-party seafood certification programs could be used to simplify entry filing or meet reporting requirements, and is asking for comments on how the data systems developed under such programs could meet reporting requirements on a pre-arrival basis. The agency is also asking for comments on a potential trusted trader program to streamline entry processing for designated species. Participants would collect the same data as non-participants, but would not be required to provide it at entry, said.

Proposed Rule Equivalent to Domestic Requirements, Says NMFS

According to NMFS, the information that would be required under this proposed rule is already being collected at the point of entry into commerce for products from U.S. domestic fisheries under various federal and state fishery management and reporting programs. Though the new data elements “may pose a challenge in the near term for some industry members,” the long-term benefits will “outweigh those challenges,” said NMFS, noting it will strive to avoid any duplication of reporting requirements required by other NMFS programs.