NMFS Sets New ACE Filing, Recordkeeping and Permit Requirements for High-Risk Seafood Imports

The final rule sets a compliance date of Jan. 1, 2018, except for shrimp and abalone, for which requirements are delayed until further notice. "This means that U.S. importers must work with exporters to obtain harvest and supply chain records for products harvested earlier than January 1, 2018 if these products will be entered into the United States on or after that date," NMFS said. NMFS noted that most fish products currently subject to import monitoring programs are imported within a few months of harvest, though "some products may be in the supply chain for longer periods due to processing, cold storage and shipping time."

The final rule largely adopts a proposal issued in February (see 1602040020), with some modifications. Changes to the proposed rule include simplified filing for Atlantic bluefin tuna and certain importers of fish harvested by small vessels; allowing the filing of only an ASFIS number to indicate the species of fish, instead of also having to provide the scientific name and acceptable market name; and a reduction of the record retention period from five to two years. NMFS also clarified that importers need not segregate import shipments by harvesting event (i.e., the shipment may comprise fish harvested at different times).

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

The final rule initially applies largely to imports of certain high-risk species identified in a notice issued by NMFS in October 2015 (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 delayed. NMFS says there are currently “gaps” in the collection of traceability information for domestic aquaculture-raised shrimp and abalone. As discussed in its proposed rule, NMFS is staying implementation of requirements for imported shrimp and abalone, both wild-caught and farmed, until those gaps have been addressed. NMFS will announce the effective date for shrimp and abalone "once commensurate reporting and/or recordkeeping requirements have been established for domestic aquaculture-raised shrimp and abalone," it said. The announcement will be published in the Federal Register, it said.

Highly processed seafood exempt. The final rule does 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, NMFS has said.

Reduced filing for Atlantic bluefin tuna. Imports of Atlantic bluefin tuna have simplified filing requirements, with filers only having to reference data already filed in the International Commission for the Conservation of Atlantic Tunas' electronic bluefin tuna catch documentation (eBCD) system. NMFS adopted the eBCD system in May, replacing paper filing for Atlantic bluefin tuna importers and exporters (see 1603310030). Filing requirements in ACE for imports filed in eBCD were adopted in the recent NMFS final rule that created the consolidated International Fisheries Trade Permit (see 1608020016). Information on bluefin tuna not harvested in the Atlantic Ocean is not collected in the eBCD system, so such tuna does not benefit from reduced filing.

Requirements May Be Expanded to New Species

NMFS said it may expand the program to additional species. However, the agency would provide "adequate lead time for program expansion and would implement changes to reporting and recordkeeping requirements for species and data elements through notice and comment rulemaking," it said. "Future proposed rules would specify the fish and fish products to be covered by the expanded program and any changes to reporting and recordkeeping requirements," NMFS said. Though NMFS has indicated its goal to eventually expand the program to all species in its action plan, it is declining to provide a timetable for the program's expansion until it can assess implementation for high-risk species, it said.

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, is responsible with complying with the final rule's requirements. A customs broker may fulfill entry filing requirements on behalf of the importer of record at the importer of record’s request, NMFS has said.

The requirements 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, NMFS has said. It does not cover transit shipments that do not enter U.S. commerce.

Importer of Record Must Obtain Permit for Covered Imports

Once the final rule takes effect, the importer of record of any shipments covered by these requirements must obtain an International Fisheries Trade Permit (IFTP). To obtain the IFTP, the importer of record of a high-risk seafood covered by the rule will 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 only needs one IFTP; separate permits are not 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, NMFS has said.

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 must transmit via ACE new information that is not currently required by CBP or NMFS. A list of HTS numbers that require the additional data will 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 must 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 (satisfied by filing an ASFIS number); product form at time of first landing (i.e., whole, headed/gutted); 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 must be filed ”electronically through the ACE Partner Government Agency Message Set for NMFS and/or the DIS,” NMFS said. The agency has, together with CBP, developed CATAIR requirements and implementation guides setting required filing formats, it said.

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

Disclaimer 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 disclaimer will be required to discern whether the entry is subject to the additional reporting requirements.

Exemption for some shipments from small vessels. In a change from the proposed rule, NMFS will allow simplified filing for importers of seafood harvested by small vessels. Such importers would be allowed to file data from an "Aggregated Harvest Report," containing non-vessel-specific harvest information for all fish received by an entity (such as a fish receiver) operating at a collection point on a single calendar day. If they do, they would not have to file information on the harvester or producer. The importer would still be subject to data requirements for information on the fish and where it was harvested or landed, though it could also provide aggregated weight and quantity information.

Additional data to be added. NMFS will consider over the next year whether to add certain chain of custody data that are currently set to become recordkeeping requirements to the list of data elements required for filing at time of entry, it said. Adding these new data elements would require additional rulemaking, NMFS said.

Importer Chain of Custody, Other Recordkeeping Requirements

In addition to the information required at time of entry, the importer of record must also 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., NMFS said. The records must allow NMFS to conduct a trace back to verify the information reported on an entry, it said. That includes 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. NMFS expects that 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, will provide sufficient information for NMFS to conduct a trace back,” the agency said. NMFS has also developed model forms to track chain of custody, it said.

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

Records required for two years. The importer of record must retain both chain of custody and supporting documentation for a period of two 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. For shipments selected for verification, if verification of the data cannot be completed by NMFS pre-release, NMFS may request that CBP place a hold on a shipment pending verification by NMFS or allow conditional release, contingent upon timely provision of records by the importer of record to allow data verification, it said. 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.

In the final rule, NMFS clarified that importers need not segregate inbound shipments by each harvesting event. "A product offered for entry may be comprised of products from more than one harvest event and each harvest event must be documented," it said. "However, specific links between portions of the shipment and particular harvest events are not required."

NMFS Still Considering Third-Party Certification, Trusted Trader Programs

NMFS is still considering how voluntary third-party seafood certification programs could be used to simplify entry filing or meet reporting requirements, having recently requested comments on a possible trusted trader program (see 1604280024), it said. "NMFS is considering the comments received and has determined that separate rulemaking will be required to establish the Commerce Trusted Trader Program and how it would be integrated with the Seafood Traceability Program," it said.