[Federal Register Volume 81, Number 149 (Wednesday, August 3, 2016)]
[Rules and Regulations]
[Pages 51126-51138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18401]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216, 300, 600, and 660
[Docket No. 090223227-6560-03]
RIN 0648-AX63
Trade Monitoring Procedures for Fishery Products; International
Trade in Seafood; Permit Requirements for Importers and Exporters
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule sets forth regulations to revise procedures
and requirements for filing import, export, and re-export documentation
for certain fishery products to meet requirements for the SAFE Port Act
of 2006, the Magnuson-Stevens Fishery Conservation and Management Act
(MSA), other applicable statutes, and obligations that arise from U.S.
participation in regional fishery management organizations (RFMOs) and
other arrangements to which the United States is a member or
contracting party. Specifically, NMFS sets forth regulations to
integrate the collection of trade documentation within the government-
wide International Trade Data System (ITDS) and require electronic
information collection through the automated portal maintained by the
Department of Homeland Security, Customs and Border Protection (CBP).
Under this
[[Page 51127]]
integration, NMFS will require annually renewable International
Fisheries Trade Permits (IFTP) for the import, export, and re-export of
certain regulated seafood commodities that are subject to trade
monitoring programs of RFMOs and/or subject to trade documentation
requirements under domestic law. These trade monitoring programs enable
the United States to exclude products that do not meet the criteria for
admissibility to U.S. markets, including products resulting from
illegal, unregulated, and unreported (IUU) fishing activities. This
final rule consolidates existing international trade permits for
regulated seafood products under the Antarctic Marine Living Resources
(AMLR) and Highly Migratory Species International Trade Permit (HMS
ITP) programs and expands the scope of the permit requirement to
include regulated seafood products under the Tuna Tracking and
Verification Program (TTVP). This final rule also stipulates data and
trade documentation for the above programs which must be provided
electronically to CBP and addresses recordkeeping requirements for
these programs in light of these changes. Trade documentation excludes
any programmatic documents that are not required at the time of entry/
export (e.g., biweekly dealer reports).
DATES: This final rule is effective September 20, 2016, except for the
revision to Sec. 300.184, which is effective August 3, 2016.
FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office for
International Affairs and Seafood Inspection, NOAA Fisheries (phone
301-427-8350, or email [email protected]).
SUPPLEMENTARY INFORMATION:
Background
The Security and Accountability for Every Port Act of 2006 (SAFE
Port Act, Pub. L. 109-347) requires all Federal agencies with a role in
import admissibility decisions to collect information electronically
through the ITDS. The Department of the Treasury has the U.S.
Government lead on ITDS development and Federal agency integration. CBP
developed Automated Commercial Environment (ACE) as an internet-based
system for the collection information for ITDS. The Office of
Management and Budget (OMB), through its e-government initiative,
oversees Federal agency participation in ITDS, with a focus on reducing
duplicate reporting across agencies and migrating paper-based reporting
systems to electronic information collection.
The term ITDS refers to the integrated, government-wide project for
the electronic collection, use, and dissemination of the international
trade and transportation data Federal agencies need to perform their
missions, while the term ACE refers to the ``single window'' system
through which the trade community will submit data related to imports
and exports. Detailed information on ITDS is available at: http://www.itds.gov.
Numerous Federal agencies are involved in the regulation of
international trade and many of these agencies participate in the
import, export and transportation-related decision-making process.
Agencies also use trade data to monitor and report on trade activity.
NMFS is a partner government agency in the ITDS project because of its
role in monitoring the trade of certain fishery products. Electronic
collection of seafood trade data through a single portal will result in
an overall reduction of the public reporting burden and the agency's
data collection costs, will improve the timeliness and accuracy of
admissibility decisions, and increase the effectiveness of applicable
trade restrictive measures.
On December 29, 2015, NMFS published a notice of proposed
rulemaking for this action (80 FR 81251) to codify NMFS procedures for
collecting information electronically through the ITDS. NMFS prepared a
regulatory impact review of this action, which is available from NMFS
(see FOR FURTHER INFORMATION CONTACT). This analysis describes the
economic impact this action will have on the United States. Responses
to public comments received on the proposed rule are set forth below.
Changes From the Proposed Rule
A number of changes from the proposed rule were made to clarify the
regulatory text and to take account of other final rules affecting 50
CFR part 300 that became effective after the proposed rule for ITDS
integration was published.
Export Requirements
Although the ITDS single window concept is built on the ACE
platform as the reporting mechanism for the trade sector and the source
for accessing trade data by the partner agencies, there is a
distinction between reporting procedures for imports and exports. The
system used to electronically transmit export filings is called the
Automated Export System (AES). The primary document for instructing the
trade sector on the data requirements for export filing is the
Automated Export System Trade Interface Requirements (AESTIR). The
primary instructional document for Partner Government Agency (PGA)
export requirements is the ``Appendix Q'' to AESTIR. This document is
comparable to the Customs and Trade Automated Interface Requirements
(CATAIR) ``Appendix PGA'' for import transactions. While each PGA has
issued a separate Implementation Guide for import requirements as a
supplement to CATAIR, all guidance to the trade sector for PGA export
requirements is detailed within the AESTIR Appendix Q documents.
The CBP Web page that contains the primary information on export
requirements is: https://www.cbp.gov/trade/aes. Details on how to
submit export data via AES are available at: https://www.cbp.gov/trade/aes/aestir/introduction-and-guidelines. PGA record formats are listed
at: https://www.cbp.gov/document/guidance/aestir-draft-appendix-q-pga-record-formats. The Appendix Q Record Lay Out Key details how each
record required should be structured: https://www.cbp.gov/document/guidance/appendix-q-record-layout-key. NMFS has included references to
the CBP import and export documentation in Sec. 300.323 of the
regulatory text.
Electronic System for Atlantic Bluefin Tuna
NMFS amended the regulatory text for the HMS ITP at 50 CFR 300.181
through 300.189 to reflect the implementation of the electronic bluefin
tuna catch document program (81 FR 18796, April 1, 2016).
Biweekly Reporting and Import Documentation for Bigeye Tuna
NMFS amended 50 CFR 300.184 to address the exemption for bigeye
tuna described in the Response to Comments section below under the
heading ``Bi-weekly Reporting.''
Issuance of Permits Restricted to Residents
NMFS amended 50 CFR part 300.322(a) to clarify that only resident
agents in the United States are eligible to be issued the International
Fisheries Trade Permit (IFTP). Entities that are not resident in the
United States may obtain the IFTP only via a resident agent
application.
Entry Types Subject to Rule
NMFS amended 50 CFR 300.322(a) and 300.323 to clarify the various
transactions which pertain to seafood previously imported for purposes
other than immediate consumption and for
[[Page 51128]]
which the permitting, reporting and recordkeeping requirements apply.
Exception to Low Value Exemptions
NMFS revised 50 CFR 300.323 to clarify that all imports and exports
of covered commodities, including shipments otherwise eligible for the
de minimis value exemption, must be filed in ACE or AES, as applicable,
in order to collect the NMFS-required information. NMFS also revised 50
CFR 300.324(b) to clarify that de minimis value imports (valued at $800
or less; see 19 U.S.C. 1321(a)(2)(C)) and exports (valued at $2500 or
less; see 15 CFR 30.37(a) and 15 CFR 30.2(a)(iv)(F)) are subject to the
prohibition on importing/exporting fish or fish products regulated
under 50 CFR 300 subpart Q without a valid IFTP or without submitting
complete and accurate information through ACE or AES, as applicable.
Low value shipments are not exempt from statutory and regulatory
requirements to collect information to support admissibility
determinations and to report to the respective regional fishery
management organizations on U.S. trade in fish products within the
scope of each program. Under the SAFE Port Act, NMFS is required to
collect information electronically and through the single window.
Therefore, NMFS requires the use of ACE or AES, as applicable, to
submit required information. However, CBP may provide other reporting
mechanisms for different entry types and/or de minimis value shipments.
If these alternative CBP mechanisms can collect all of the NMFS-
required information and transmit that information to NMFS, importers
and exporters may use these mechanisms to fulfill NMFS reporting
requirements.
Redesignation of 50 CFR part 300 Subpart Q
In publishing the proposed rule for ITDS integration of current
trade monitoring programs, NMFS incorrectly numbered the sections of
the proposed new subpart R to 50 CFR part 300. A final rule amending
regulations implementing the High Seas Fishing Compliance Act (HSFCA)
was published on October 16, 2015 (80 FR 62488). That final rule added
a new subpart Q to 50 CFR part 300, with sections numbered Sec. Sec.
300.330 through 300.341. In subsequently proposing a new Subpart R for
the ITDS integration regulations, NMFS numbered sections from 300.320
through 300.324.
In order to maintain the correct sequence of section numbers, NMFS
is now redesignating existing subpart Q as new subpart R. This final
rule then inserts a new subpart Q for the ITDS regulations with
sections numbered in the correct order. Given the placement of HSFCA
regulations in the new subpart R, conforming amendments are needed for
cross-references to HSFCA requirements which exist in 50 CFR 600.705
and 50 CFR 660.2.
Responses to Public Comments
NMFS received 12 public comments on the proposed rule. Comments
were received from the National Customs Brokers and Forwarders
Association of America (NCBFAA), Traffic/World Wildlife Fund/Oceana,
Bumble Bee Seafoods, Tri Marine Management Company LLC, and two
individuals potentially affected by new requirements in this rule.
Data Elements
Comment 1: NCBFAA noted that although the data submission
requirements under the proposed rule are not new, this data has not
previously been required to be submitted at the time of entry/release.
They noted that submitting data at the time of entry/release not only
increases processing costs for the importer, but also raises the
potential for disruptions as the data moves through the ACE pipeline to
CBP and NMFS. NCBFAA questioned the need for NMFS to collect all data
elements at the time of entry/release and asked whether NMFS'
requirements could be met if the information was provided via the entry
summary which may be filed electronically within 10 days after entry/
release. NCBFAA noted that moving these data submission requirements to
entry summary would provide much needed flexibility for importers and
customs brokers to handle complex entries without slowing down trade
and would suit NMFS needs because NMFS would not be able to review data
until after entry/release.
Response: NMFS believes that submission of data at the time of
entry/release is necessary to ensure only admissible products are
permitted entry into the U.S. market. Allowing data entry for these
three programs after product has been admitted into the United States
would make efforts to interdict problematic entries extremely
difficult. NMFS also emphasizes that it is only requiring the minimum
amount of data necessary to determine whether a product is admissible
at the time of entry be provided as a data set at the time of entry.
This approach should expedite the release of product associated with
the three NMFS trade monitoring programs.
Permits and the Importer of Record
Comment 2: NCBFAA noted it does not object to consolidating the
existing trade permits as proposed in the rule; however they noted that
in some instances, particularly along land borders, customs brokers
serve as the importer of record. NCBFAA stated its view that the IFTP
should not be required for an importer of record who is not a
beneficial party in interest, such as a customs broker. NCBFAA
therefore suggested the rule be modified to clarify that the permit
obligation, and associated recordkeeping and reporting requirements,
belong to the ``beneficial party in interest'' which should be defined
as a party with a financial interest in the imported goods such as the
owner, purchaser, or distributor of the merchandise.
Response: NMFS believes it is important for enforcement purposes
that the importer of record, regardless of whether said importer has a
direct financial interest in the imported goods, be the responsible
party accountable in the event of a shipment entry problem. Thus, the
IFTP obligation and associated recordkeeping and reporting requirements
in this rule will reside with the importer of record. Related to this,
NMFS clarifies that entities not resident in the United States are
ineligible to apply for the IFTP. Nonresident importers must have a
U.S. resident agent apply for the IFTP and have the customs broker
provide the resident agent's permit number in the entry data. NMFS has
clarified the regulatory text at 50 CFR 300.322(a) accordingly.
``De Minimis'' Levels and Informal Entries
Comment 3: NCBFAA noted that the rule does not address NMFS
requirements with regard to Informal Entries (valued at $2,500) or
Section 321 entries (shipments of ``de minimis value'', increased from
$200 to $800 by Section 601 of the Trade Facilitation and Trade
Enforcement Act, Pub. L. 114-376). NCBFAA noted that with the de
minimis threshold raised to $800, the practice of breaking commercial
shipments into lower-value increments will likewise increase, in effect
allowing these imports to bypass the more formalized requirements of
entry processing. NCBFAA stated its view that NMFS needs to address how
it will meet this contingency.
Response: NMFS' requirement with regard to Informal Entries will be
the same as those for all other entries, namely all entries associated
with the HTS codes corresponding to the three
[[Page 51129]]
seafood import monitoring programs will need to supply message sets and
documentation into ACE via the Document Imaging System (DIS).
Similarly, de minimis shipments corresponding to the relevant HTS codes
which are valued at less than $800 will also need to supply message
sets and documentation into ACE via the DIS to ensure that no
inadmissible products are granted entry into the U.S. market. NMFS
therefore revised 50 CFR 300.323 to clarify that all imports and
exports of covered commodities, including shipments otherwise eligible
for the de minimis value exemption, must be filed in ACE or AES, as
applicable, in order to collect the NMFS-required information. NMFS
also revised 50 CFR 300.324(b) to clarify that de minimis value imports
are also subject to the prohibition on importing fish or fish products
regulated under 50 CFR part 300 subpart Q without a valid IFTP or
without submitting complete and accurate information. Likewise, low
value exports are subject to AES filing to meet the NMFS requirements
for permitting and reporting (see 15 CFR 30.2(a)(iv)(F)). However, NMFS
has made provisions for cases where CBP reporting alternatives can
capture and transmit the NMFS-required information without a formal
entry or export filing in ACE or AES, as applicable.
Technical Language
Comment 4: NCBFAA noted that the proposed regulatory text at
Sec. Sec. 300.322(a) and 300.323 refers to persons who import ``for
consumption or non-consumption.'' NCBFAA noted that the term ``import
for consumption'' has a very specific legal meaning under customs law,
whereas, the term ``import for non-consumption'' has no particular
meaning under customs law. NCBFAA therefore suggested that commonly
used customs terms be used to clarify the application of the proposed
rule.
Response: NMFS agrees that the term ``import for non-consumption''
should be clarified and has therefore amended the regulatory text at
Sec. Sec. 300.322(a) and 300.323 to specify the various transactions
which pertain to seafood previously imported for purposes other than
immediate consumption, e.g. withdrawal from a foreign trade zone or
bonded warehouse for entry into U.S. commerce.
Elimination of Paper-Based Documentation
Comment 5: Traffic et al. conveyed its understanding that in the
initial phases of ITDS implementation, document image scans will be
used to transmit the catch documentation forms. Traffic et al. stated
its view that the key goal must be to eventually move away from paper-
based documentation, including imaged documents, to truly electronic
data. Traffic et al. stated its hope that NMFS, in conjunction with
CBP, will put in place systems to receive all information in a truly
electronic format, at least before the implementation date of the
proposed seafood import monitoring program or at some set time
thereafter, noting that the value of this system, in terms of real-time
verification and compliance risk assessment, cannot be achieved without
that change.
Response: Many of the paper-based catch documentation forms
referenced in this comment are created by regional fishery management
organizations (RFMOs) or arrangements that are comprised of different
member countries including the United States. ITDS therefore cannot be
made fully electronic until action in this direction is taken by the
relevant RFMOs or arrangements. For example, the TTVP requires
certification from tuna captains from all over the world, including
many that fish in remote artisanal fisheries where Internet
connectivity is not commonplace, even today. Having said that, however,
NMFS agrees it is important to move to a fully electronic system as
soon as the relevant international catch documentation schemes go
electronic. NMFS notes that the Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR) and the International
Convention for the Conservation of Atlantic Tunas (ICCAT) have moved in
the direction of electronic catch documentation systems which have
simplified import/export processes for the trade and NMFS expects this
trend in other organizations in the future.
Need for Capacity Development
Comment 6: Traffic et al. noted its view that capacity building to
assist some countries with implementing the new rules will be
necessary. Traffic et al. noted its hope that NMFS, USAID, the State
Department and other agencies will be able to work with countries to
help develop electronic reporting systems that can produce the
information needed at the point of catch and feed into traceability
systems that will follow the product throughout the supply chain.
Response: NMFS agrees and is taking steps to do this. For example,
NMFS is working with the Department of State and USAID on a Regional
Development Mission Asia project in Southeast Asia to enhance seafood
traceability infrastructure among the developing countries of this
region.
Need To Apply Traceability to All Species
Comment 7: Traffic et al. noted its view that similar requirements
for electronic submission of catch documentation eventually be applied
to all species to effectively combat fraud and the flow of IUU
products.
Response: Although not germane to this rule, NMFS agrees (as noted
in the Seafood Import Monitoring Program proposed rule published in the
Federal Register on February 5, 2016) that seafood traceability
requirements should eventually be applied to all species in an effort
to combat seafood fraud and IUU fishing. As noted in the March 2015
Presidential Task Force report, the National Oceans Committee will
issue a report by December 2016 that includes an evaluation of the
program as implemented to date as well as recommendations of how and
under what timeframe it would be expanded.
TTVP ``Reduced Data Set'' Reporting
Comment 8: Bumble Bee noted that the proposed rule includes
provisions for the submission of a ``reduced data set'' for domestic
canners who import frozen tuna loins with the stated objective of
preventing duplicative report for companies that submit monthly reports
associated with the TTVP. Bumble Bee further noted that the recently
released Seafood Import Monitoring Program proposed rule also
references collection of data via a ``NMFS message set'' but the
content, specific format, and timing to begin reporting of both the
``reduced data set'' and the ``NMFS message set'' appear to not yet be
defined. Bumble Bee urged that the rollout of the ``reduced data set''
reporting proposed in the ITDS implementation rule not be implemented
prior to the rollout of the ``NMFS Message Set'' reporting requirement
in the Seafood Import Monitoring Program proposed rule and that NMFS
ensures that content and data serve both purposes. Bumble Bee stated
its view that implementing a ``reduced data set'' reporting requirement
under the ITDS implementation rule to meet the needs of the TTVP and
then implementing another data requirement shortly thereafter to meet
traceability reporting requirements seems wasteful and will create
additional burden on the trade.
Response: As noted in the NMFS ITDS implementation guidelines (see
http://www.cbp.gov/sites/default/files/documents/
ACE%20NMFS%20PGA%20MS%20Guidelines%20-%20July
[[Page 51130]]
%2022%202015.pdf), for cannery processed products that are imported
into the U.S. Customs District from American Samoa and for imports of
frozen cooked tuna loins, not in airtight containers, not in oil and
with contents over 6.8 kilograms from any country of origin, certain
data usually or otherwise required at the time of filing need not be
submitted if provided to NMFS under the regulations found at 50 CFR
216.93(d)(2). Under these specific conditions, NMFS will only require a
``reduced data set'' consisting of an acknowledgement that an
electronic image is associated with the shipment and also that the
document images of the NOAA Form 370(s) associated with the shipment
have been uploaded into the CBP DIS. Given the different timelines for
implementation of these two regulations, it will not be possible to
implement requirements simultaneously; however, NMFS will make every
effort to avoid creating additional burdens on the trade in the course
of implementing these programs.
Bi-Weekly Reporting Requirements
Comment 9: Bumble Bee stated its understanding that under the
proposed rule, companies who are part of the TTVP would now need to
obtain an IFTP. Bumble Bee does not object to this requirement, but
noted that in the reporting and recordkeeping requirements in section
300.183 of the proposed rule that biweekly reporting is required for
holders of the IFTP. Bumble Bee requested confirmation that the
existing bi-weekly reporting requirements associated with the IFTP will
remain limited to species currently part of the HMS ITP with the
existing reporting exemption for bigeye tuna destined for canneries.
Response: NMFS confirms that the import documentation requirements,
as well as the bi-weekly reporting requirements, associated with the
HMS ITP will remain limited to species currently part of that program.
The reporting exemption for bigeye tuna destined for canneries
harvested by either purse seiners or pole and line (bait) vessels will
continue. The regulations pertaining to this exemption were
inadvertently removed during a previous rulemaking (77 FR 52259, August
29, 2012) and have been restored in the regulatory text at 50 CFR
300.184. NMFS would also like to clarify that under this rule,
documentation such as the HMS ITP biweekly dealer reports, which are
not required at the time of entry/export, will continue to be provided
to the HMS ITP office and are not submitted to CBP via the ACE portal.
Administrative/Financial Burdens Imposed by Rule
Comment 10: Tri Marine voiced its concern about the administrative
and financial burden the proposed rule may pose and that this aspect
was not adequately addressed in the Regulatory Flexibility Act section
of the proposed rule. Tri Marine noted that direct and indirect costs
associated with new requirements under the rule are difficult to
determine at this time and that the primary beneficiary of the
efficiencies gained would be U.S. government agencies and companies
that also trade in non-TTVP species/products. Tri Marine encouraged
NMFS to reconsider options that best mitigate potential economic
impacts to industries that trade exclusively in TTVP species while
still achieving desired outcomes. Tri Marine agrees TTVP companies
should be required to obtain the IFTP, but without a fee and with
minimal filing burden. Tri Marine suggested updated templates for the
NOAA 370 form and Captain's Statements should be designed that readily
integrate into ACE. Tri Marine noted information required should always
include the market name and scientific names of all species used in the
product, not only simplified names such as light meat tuna that can
mask the actual inputs used. Tri Marine encouraged NMFS to engage with
the FDA to change the standard of identity for canned tuna to require
the species name of all inputs be provided on canned tuna labels.
Response: In determining its preferred alternative for this
rulemaking, NMFS made best efforts to balance potential economic
impacts on the trade with the rulemaking's desired outcomes. NMFS
believes extending the IFTP requirement to TTVP-related companies to be
both the most equitable and effective alternative among those presented
in the proposed rule. The cost of the IFTP is only $30 and is
calculated solely based upon the administrative cost to NMFS of issuing
the permit. Requiring the permit for all three programs also allows
NMFS to easily notify permit holders of any changes to the relevant
regulations or import monitoring program procedures. NMFS appreciates
the suggestion to update templates for the TTVP 370 form and Captain's
Statements for improved integration with ACE and will work with CBP to
consider this suggestion further. Although the comment regarding market
and scientific names is outside the scope of this rulemaking, this
issue has been discussed by NMFS, the FDA, and other agencies in
response to Recommendation 10 of the Presidential Task Force to Combat
IUU Fishing and Seafood Fraud. (See www.iuufishing.noaa.gov).
Import Data for Frozen Cooked Tuna Loins and Tuna in Airtight
Containers
Comment 11: Tri Marine recognized the proposed rule allows for a
reduced data set for imports of 1) frozen cooked tuna loins used in
cannery operations and 2) tuna products in airtight containers
manufactured in American Samoa. Although Tri Marine agreed with the
intent to prevent duplicative reporting and apply this to imports from
American Samoa, it opposed reduced data collection from frozen loin
importers. Tri Marine noted that tuna cans from American Samoa are
typically produced from fish delivered directly to canneries from the
fishing vessel allowing direct traceability from the vessel to
processing line to finished product. Tuna loins imported into the
United States, however, are typically caught in distant waters,
transshipped onto carrier vessels, offloaded into foreign ports,
trucked to large cold stores, transferred to foreign processing
facilities and then shipped by container vessel to the United States
where they are stored and undergo final secondary processing, all of
which makes traceability more challenging. Tri Marine therefore
recommends more rigorous data sets be required for imported tuna loins.
Response: These comments are germane to the chain of custody
requirements proposed under the Seafood Import Monitoring Program (81
FR 6210) rather than under this ITDS implementation rule. However, NMFS
notes that the reduced data set applies to all U.S. tuna canning
facilities in order to reduce duplication of data elements required
under 50 CFR 219.93(d)(2). NMFS will take these comments into
consideration when formulating its final rule for the Seafood Import
Monitoring Program.
Overlap With Proposed Seafood Import Monitoring Program
Comment 12: Tri Marine stated its view that there is significant
overlap between the ITDS implementation proposed rule and the proposed
rule for the Seafood Import Monitoring Program. Tri Marine's view is
that since it is highly likely that comments on the Seafood Import
Monitoring Program will be useful in guiding the development of a final
rule for ITDS implementation, it would be prudent to integrate the
final rule for these two initiatives, taking into account comments on
both proposed rules.
[[Page 51131]]
Response: Although NMFS recognizes there is overlap between the two
rules, it will not be possible to integrate the two rules primarily
because they have different timelines for implementation with NMFS
implementation of ITDS required by July 23, 2016, in order to meet the
requirements specified for all Federal agencies in Executive Order
13659 (Streamlining the Export/Import Process) whereas implementation
of the Seafood Import Monitoring Program is not expected to occur until
the fall of 2016 at the earliest.
Classification
This rule is published under the authority of AMLRCA of 1984, 16
U.S.C. 2431 et seq.; ATCA of 1975, 16 U.S.C. 971 et seq.; TCA of 1950,
16 U.S.C. 951-961; MSA, 16 U.S.C. 1801 et seq.; MMPA of 1972, 16 U.S.C.
1361-1407; DPCIA, 16 U.S.C. 1385; HSDFMPA, 16 U.S.C. 1826d-k; and
HSDFEA, 16 U.S.C. 1826a-c. Other relevant authorities include the Pelly
Amendment to the Fishermen's Protective Act, 22 U.S.C. 1978, and the
Lacey Act, 16 U.S.C. 3371.
The NMFS Assistant Administrator has determined that this final
rule is consistent with the provisions of these and other applicable
laws.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Administrative Procedure Act
As explained above, this final rule revises text at 50 CFR 300.184
that provides an exemption from documentation requirements for bigeye
tuna destined for canneries. Pursuant to 5 U.S.C. 553(b)(B), there is
good cause to waive prior notice and an opportunity for public comment
on this specific provision of the final rule, because notice and
comment would be unnecessary and contrary to the public interest. This
text was inadvertently removed in an August 29, 2012 final rule (77 FR
52259), and NMFS only became aware of that fact as it was reviewing and
responding to public comments on this current rulemaking. Providing for
public comment at this time is unnecessary and contrary to the public
interest, as NMFS and industry have been operating as if the exemption
remained in place. Further, NMFS never intended to change the exemption
and thus never analyzed its removal. Because this aspect of the rule
relieves a restriction by reinserting an exemption to documentation
requirements, it is not subject to the 30-day delayed effectiveness
provision of the APA pursuant to 5 U.S.C. 553(d)(1).
Regulatory Flexibility Act
The Chief Counsel for Regulations certified that this rule is not
expected to have a significant economic impact on a substantial number
of U.S. small entities (80 FR 81255, December 29, 2015).
Although a new IFTP will be established for the import, export or
re-export of regulated products under the AMLR, HMS ITP and TTVP
programs, this new permit generally represents a consolidation of
information contained in existing permits and should actually result in
fewer reporting or recordkeeping requirements. Data sets to be entered
electronically to determine product admissibility are already required
to be submitted in paper form under the respective trade programs.
Thus, NMFS anticipates that U.S. entities will not be significantly
affected by this action because it generally does not pose new or
additional burdens with regard to the collection and submission of
information necessary to determine product admissibility.
With regard to the possible economic effects of this action, per
the response to Question 13 of the supporting statement prepared for
the Paperwork Reduction Act analysis (available from www.reginfo.gov/public/do/PRAMain), NMFS estimates there will be 751 applicants for the
new IFTP with an estimated net increase in annual costs of $16,255 for
obtaining those permits, based on the combined number of permit holders
and respondents under NMFS' existing trade monitoring programs.
Although NMFS does not have access to data about the business sizes of
importers and receivers that would be impacted by this rule, it is
likely that the majority may be classified as small entities. However,
when overall total new burdens for the three requirements under this
rule (IFTP, data set submission, and admissibility document(s)
submission) are compared to current burdens, the new consolidated
burdens are estimated to result in an overall net burden decrease of
4,225 hours and $63,650. A no-action alternative, where NMFS would not
promulgate the rule, was not considered as all applicable U.S.
government agencies are required to implement ITDS under the authority
of section 405 of the SAFE Port Act and Executive Order 13659 on
Streamlining the Export/Import Process, dated February 19, 2014.
This action will not affect the volume of seafood trade or alter
trade flows in the U.S. market. Although the rule will require traders
under the TTVP to obtain an IFTP, which they are not currently required
to do, NMFS expects that the consolidated IFTP will have no impact on,
or will actually reduce, the overall administrative burden on the
public; those parties currently required to obtain two separate permits
under the AMLR and HMS ITP programs will be required to obtain only one
consolidated permit under this rule.
The consolidated permitting and electronic reporting program
established under this rulemaking will not have significant adverse or
long-term economic impacts on small U.S. entities. This rule has also
been determined not to duplicate, overlap, or conflict with any other
Federal rules. Thus, the requirements and prohibitions in the rule will
not have a significant economic impact on a substantial number of small
entities. Consequently, a regulatory flexibility analysis is not
required and none has been prepared.
Paperwork Reduction Act
This rule contains a collection-of-information requirement subject
to review and approval by OMB under the Paperwork Reduction Act (PRA).
This requirement has been approved by OMB under control number 0648-
0732. When new reporting burdens for the three electronic reporting
requirements under this rule (IFTP, data set submission, and
admissibility document submission) are compared to current reporting
burdens approved for the separate paper-based programs, it is estimated
to result in an overall net burden decrease of 4,225 hours and $63,650.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects
50 CFR Part 216
Administrative practice and procedure, Exports, Fish, Imports,
Indians, Labeling, Marine mammals.
50 CFR Part 300
Administrative practice and procedure, Antarctica, Canada, Exports,
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources,
Reporting and recordkeeping requirements, Russian Federation,
Transportation, Treaties, Wildlife.
50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing regulations, Fishing vessels,
Foreign
[[Page 51132]]
relations, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Statistics.
50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian natives, Indians, Northern Mariana Islands,
Reporting and recordkeeping requirements.
Dated: July 27, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 216, 300,
600, and 660 are amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et. seq., unless otherwise noted.
0
2. In Sec. 216.24, revise paragraphs (f)(2) introductory text,
(f)(2)(i)(A) and (D), (f)(2)(ii)(A) and (D), (f)(2)(iii)(A) through
(C), (f)(3) introductory text, and (f)(3)(i) through (iii) to read as
follows:
Sec. 216.24 Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical Pacific
Ocean.
* * * * *
(f) * * *
(2) Imports requiring a Fisheries Certificate of Origin and an
International Fisheries Trade Permit. Shipments of tuna, tuna products,
and certain other fish products identified in paragraphs (f)(2)(i)
through (iii) of this section may not be imported into the United
States unless: a scanned copy of a properly completed Fisheries
Certificate of Origin (FCO), NOAA Form 370, associated certifications
and statements described in Sec. 216.91(a), and required data set are
filed electronically with U.S. Customs and Border Protection (CBP) at
the time of, or in advance of, importation as required under Sec.
300.323; and the importer of record designated on the entry summary
(Customs Form 7501) holds a valid International Fisheries Trade Permit
as specified at Sec. 300.322 of this title. ``Required data set'' has
the same meaning as Sec. 300.321 of this title (see definition of
``Documentation and data sets required'').
(i) * * *
(A) Frozen: (products containing Yellowfin).
0303.42.0020 Yellowfin tunas, whole, frozen
0303.42.0040 Yellowfin tunas, head-on, frozen, except whole
0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on,
fillets, livers and roes
0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or
indicated (NESOI)
0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing
with their contents over 6.8 kg each
* * * * *
(D) Other: (products containing Yellowfin).
0511.91.0090 Fish, shellfish products unfit for human consumption
1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8
kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in
airtight containers, in immediate containers weighing with their
contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(ii) * * *
(A) Frozen: (other than Yellowfin).
0303.41.0000 Albacore or longfinned tunas, frozen, except fillets,
livers and roes
0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except
fillets, livers and roes
0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes
0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes
0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes
0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and
roes
0303.49.0200 Tunas, frozen, except fillets, livers and roes, NESOI
0304.87.0000 Tuna fish fillets, frozen, NESOI
0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing
with their contents over 6.8 kg each, NESOI
* * * * *
(D) Other: (only if the product contains tuna).
0511.91.0090 Fish, shellfish products unfit for human consumption
1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8
kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in
airtight containers, in immediate containers weighing with their
contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(iii) * * *
(A) Frozen:
0303.11.0000 Sockeye (red) salmon (Oncorhynchus nerka), frozen, except
fillets, livers and roes
0303.12.0012 Chinook (King) salmon (Oncorhynchus tschawytscha), frozen,
except fillets, livers and roes
0303.12.0022 Chum (dog) salmon (Oncorhynchus keta), frozen, except
fillets, livers and roes
0303.12.0032 Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen,
except fillets, livers and roes
0303.12.0052 Coho (silver) salmon (Oncorhynchus kisutch), frozen,
except fillets, livers and roes
0303.12.0062 Pacific salmon (Oncorhynchus masou, Oncorhynchus
rhodurus), frozen, except fillets, livers and roes, NESOI
0303.13.0000 Atlantic salmon (Salmo salar) and Danube salmon (Hucho
hucho), frozen, except fillets, livers and roes
0303.14.0000 Trout (Salmo trutta; Oncorhynchus mykiss, clarki,
aguabonita, gilae, apache, and chrysogaster), frozen, except fillets,
livers and roes
0303.19.0100 Salmonidae, frozen, except fillets, livers and roes, NESOI
0303.57.0010 Swordfish steaks, frozen, except fillets
0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes
0303.81.0010 Dogfish (Squalus spp.), frozen, except fillets, livers and
roes
0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes
0303.89.0079 Fish, other, frozen, except fillets, livers and roes,
NESOI
0304.81.5010 Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI
0304.81.5090 Salmonidae fillets, frozen, except Atlantic salmon, NESOI
[[Page 51133]]
0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg
each, to be minced, ground or cut into pieces of uniform weights and
dimensions, NESOI
0304.91.1000 Swordfish, frozen, in bulk or in immediate containers
weighing over 6.8 kg each
0304.91.9000 Swordfish, frozen, NESOI
0304.99.9191 Fish fillets, ocean, frozen, NESOI
0307.49.0010 Squid fillets, frozen
0307.49.0022 Squid, Loligo opalescens, NESOI
0307.49.0024 Squid, Loligo pealei, NESOI
0307.49.0029 Squid, Loligo, other, NESOI
0307.49.0050 Squid, other, NESOI
(B) Canned:
1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced,
in oil, in airtight containers
1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced,
in oil, in airtight containers
1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil,
in airtight containers
1604.11.4010 Chum (dog) salmon, not in oil, canned
1604.11.4020 Pink (humpie) salmon, not in oil, canned
1604.11.4030 Sockeye (red) salmon, not in oil, canned
1604.11.4040 Salmon, NESOI, not in oil, canned
1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI
1604.19.2100 Fish, NESOI, not in oil, in airtight containers
1604.19.3100 Fish, NESOI, in oil, in airtight containers
1605.54.6020 Squid, Loligo, prepared or preserved
1605.54.6030 Squid, except Loligo, prepared or preserved
(C) Other:
0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked,
NESOI
0305.41.0000 Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo
salar), and Danube salmon (Hucho hucho), including fillets, smoked
0305.49.4041 Fish including fillets, smoked, NESOI
0305.59.0000 Fish, dried, whether or not salted but not smoked, NESOI
0305.69.4000 Salmon, salted but not dried or smoked; in brine
0305.69.5001 Fish in immediate containers weighing with their contents
6.8 kg or less each, salted but not dried or smoked; in brine, NESOI
0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI
0305.71.0000 Shark fins, dried, whether or not salted but not smoked
0305.49.0010 Squid, frozen, fillets
0307.49.0022 Squid, Loligo opalescens, frozen (except fillets), dried,
salted or in brine
0307.49.0024 Squid, Loligo pealei, frozen (except fillets), dried,
salted or in brine
0307.49.0029 Squid, Loligo, frozen (except fillets), dried, salted or
in brine, NESOI
0307.49.0050 Squid, other, frozen (except fillets), dried, salted or in
brine, except Loligo squid
0307.49.0060 Cuttle fish (Sepia officinalis, Rossia macrosoma, Sepiola
spp.), frozen, dried, salted or in brine
(3) Disposition of Fisheries Certificates of Origin. The FCO
described in paragraph (f)(4) of this section may be obtained from the
Administrator, West Coast Region, or downloaded from the Internet at
http://www.nmfs.noaa.gov/pr/dolphinsafe/noaa370.htm.
(i) A properly completed FCO, and its attached certifications and
statements as described in Sec. 216.91(a), must accompany the required
CBP entry documents that are filed at the time of, or in advance of,
importation.
(ii) FCOs and associated certifications and statements as described
in Sec. 216.91(a) must be provided electronically to CBP as indicated
in paragraph (f)(2) of this section.
(iii) FCOs that accompany imported shipments of tuna destined for
further processing in the United States must be endorsed at each change
in ownership and submitted to the Administrator, West Coast Region, by
the last endorser when all required endorsements are completed. Such
FCOs must be submitted as specified in Sec. 216.93(d)(2).
* * * * *
0
3. In Sec. 216.93, revise paragraphs (f) and (g)(2) to read as
follows:
Sec. 216.93 Tracking and verification program.
* * * * *
(f) Tracking imports. All tuna products, except fresh tuna, that
are imported into the United States must be accompanied as described in
Sec. 216.24(f)(3) by a properly certified FCO as required by Sec.
216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated
certifications and statements must be submitted by the importer of
record to U.S. Customs and Border Protection as described in and
required by Sec. 216.24(f)(2).
(g) * * *
(2) Record submission. At the time of, or in advance of,
importation of a shipment of tuna or tuna products, any importer of
tuna or tuna products must submit all corresponding FCOs and required
certifications and statements for those tuna or tuna products as
required by Sec. 216.24(f)(2).
* * * * *
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
4. The authority citation for part 300 continues to read as follows:
Authority: 16 U.S.C. 951 et seq.; 16 U.S.C. 1801 et seq.; 16
U.S.C. 5501 et seq.; 16 U.S.C. 2431 et seq.; 31 U.S.C. 9701 et seq.
0
5. In Sec. 300.4:
0
a. Revise paragraph (o);
0
b. Redesignate paragraphs (p) and (q) as (q) and (r); and
0
c. Add a new paragraph (p).
The revision and addition read as follows:
Sec. 300.4 General prohibitions.
* * * * *
(o) Ship, transport, offer for sale, sell, purchase, import,
export, or have custody, control, or possession of, any fish imported,
exported or re-exported in violation of this part.
(p) Import, export, or re-export any fish regulated under this part
without a valid International Fisheries Trade Permit as required under
Sec. 300.322 or applicable shipment documentation as required under
Sec. 300.323.
* * * * *
0
6. In Sec. 300.107, revise paragraphs (b) introductory text, (b)(1)
and (3), (c)(6)(i)(A)(5), and (c)(7)(i)(A)(4) to read as follows:
Sec. 300.107 Reporting and recordkeeping requirements.
* * * * *
(b) Dealers. Dealers of AMLR required under Sec. 300.114 to have
an International Fisheries Trade Permit (IFTP) issued under Sec.
300.322 must:
(1) Accurately maintain all reports and records required by their
IFTP and this subpart;
* * * * *
(3) Within the time specified in the IFTP requirements, submit a
copy of such reports and records to NMFS at an address designated by
NMFS.
(c) * * *
(6) * * *
(i) * * *
(A) * * *
(5) The dealer/exporter's name, address, and IFTP number; and
* * * * *
(7) * * *
[[Page 51134]]
(i) * * *
(A) * * *
(4) The dealer/exporter's name, address, and IFTP permit number;
* * * * *
0
7. In Sec. 300.114:
0
a. Revise paragraphs (a)(1), (2), and (4), (b), (d) through (f), (g)(1)
and (2), (h), and (j); and
0
b. Remove paragraph (k).
The revisions read as follows:
Sec. 300.114 Dealer permits and preapproval.
(a) * * *
(1) A dealer importing, or re-exporting AMLR, or a person exporting
AMLR, must possess a valid IFTP issued under Sec. 300.322 and file, as
specified under Sec. 300.323, the required data sets electronically
with CBP at the time of, or in advance of importation or exportation.
Required data set has the same meaning as Sec. 300.321 (see definition
of ``Documentation and data sets required.'') See Sec. 300.322 for
IFTP application procedures and permit regulations. The IFTP holder may
only conduct those specific activities stipulated by the IFTP.
Preapproval from NMFS is required for each shipment of frozen
Dissostichus species.
(2) An AMLR may be imported into the United States if its harvest
has been authorized by a U.S.-issued individual permit or its
importation has been authorized by an IFTP and, in the case of frozen
Dissostichus species, preapproval issued under Sec. 300.114(a)(1).
AMLRs may not be released for entry into the United States unless
accompanied by the harvesting permit, the individual permit, or IFTP
and, in the case of frozen Dissostichus species, the preapproval
certification granted by NMFS to allow import. NMFS will only accept
electronic catch documents for toothfish imports.
* * * * *
(4) An IFTP or preapproval issued under this section does not
authorize the harvest or transshipment of any AMLR by or to a vessel of
the United States.
(b) Application. Application forms for preapproval are available
from NMFS. * * *
* * * * *
(d) Issuance. NMFS may issue a preapproval if it determines that
the activity proposed by the dealer meets the requirements of the Act
and that the resources were not or will not be harvested in violation
of any CCAMLR conservation measure in force with respect to the United
States or in violation of any regulation in this subpart. * * *
(e) Duration. A preapproval is valid until the product is imported.
Each export or re-export document created by NMFS in the CDS is valid
only for that particular shipment.
(f) Transfer. A preapproval issued under this section is not
transferable or assignable.
(g) * * *
(1) Pending applications. Applicants for preapproval under this
section must report in writing to NMFS any change in the information
submitted in preapproval applications. * * *
(2) Issued preapprovals. Any entity issued a preapproval under this
section must report in writing to NMFS any changes in previously
submitted information. * * *
(h) Revision, suspension, or revocation. A preapproval issued under
this section may be revised, suspended, or revoked, based upon a
violation of the IFTP, the Act, or this subpart. Failure to report a
change in the information contained in a preapproval application voids
the application or preapproval. Title 15 CFR part 904 governs sanctions
under this subpart.
* * * * *
(j) SVDCD. Preapprovals will not be issued for Dissostichus spp.
offered for sale or other disposition under a Specially Validated DCD.
* * * * *
0
8. In Sec. 300.117, revise paragraphs (b) and (r) and add paragraph
(ii) to read as follows:
Sec. 300.117 Prohibitions.
* * * * *
(b) Import into, or export or re-export from, the United States any
AMLRs without applicable catch documentation as required by Sec.
300.107(c), without an IFTP as required by Sec. 300.114(a)(1), or in
violation of the terms and conditions for such import, export or re-
export as specified on the IFTP.
* * * * *
(r) Without a valid first receiver permit issued under this
subpart, receive AMLRs from a vessel or receive AMLRs from a vessel
without a valid harvesting permit issued under this subpart.
* * * * *
(ii) Import into, or export or re-export from, the United States
any AMLRs harvest by a vessel of the United States without a valid
harvesting permit issued under this subpart.
0
9. In Sec. 300.181:
0
a. Add in alphabetical order definitions for ``Automated Commercial
Environment (ACE)'' and ``Automated Export System (AES)'';
0
b. Revise the definition for ``CBP'';
0
c. Add in alphabetical order definitions for ``Document Imaging System
(DIS)'' and ``International Fisheries Trade Permit (IFTP) or trade
permit'';
0
d. Revise the definition for ``Permit holder'';
0
e. Add in alphabetical order a definition for ``Required data set'';
and
0
f. Remove the definition for ``Trade Permit''.
The additions and revisions read as follows:
Sec. 300.181 Definitions.
* * * * *
Automated Commercial Environment (ACE) has the same meaning as that
term is defined in Sec. 300.321 of this part.
Automated Export System (AES) has the same meaning as that term is
defined in Sec. 300.321 of this part.
* * * * *
CBP means U.S. Customs and Border Protection, Department of
Homeland Security.
* * * * *
Document Imaging System (DIS) means the system established by CBP
to receive image files of paper documents in ACE or AES and associate
the image files with specific trade transactions.
* * * * *
International Fisheries Trade Permit (IFTP) or trade permit means
the permit issued by NMFS under Sec. 300.322.
* * * * *
Permit holder, for purposes of this subpart, means, unless
otherwise specified, a person who is required to obtain an
International Fisheries Trade Permit (IFTP) under Sec. 300.322.
* * * * *
Required data set has the same meaning as Sec. 300.321 (see
definition of ``Documentation and data sets required'').
* * * * *
0
10. Section 300.182 is revised to read as follows:
Sec. 300.182 International fisheries trade permit.
An importer, entering for consumption any fish or fish products
regulated under this subpart, harvested from any ocean area, into the
United States, or an exporter exporting or re-exporting such product,
must possess a valid International Fisheries Trade Permit (IFTP) issued
under Sec. 300.322.
0
11. In Sec. 300.183, revise paragraphs (a) introductory text, (a)(3),
and (b) through (e) to read as follows:
Sec. 300.183 Permit holder reporting and recordkeeping requirements.
(a) Biweekly reports. Any person trading fish and fish products
regulated under this subpart and required to
[[Page 51135]]
obtain a trade permit under Sec. 300.322 must submit to NMFS, on forms
supplied by NMFS, a biweekly report of entries for consumption, exports
and re-exports of fish and fish products regulated under this subpart,
except shark fins.
* * * * *
(3) A biweekly report is not required for export consignments of
bluefin tuna when the information required on the biweekly report has
been previously supplied on a biweekly report submitted under Sec.
635.5(b)(2)(i)(B) of this title. The person required to obtain a trade
permit under Sec. 300.322 must retain, at his/her principal place of
business, a copy of the biweekly report which includes the required
information and is submitted under Sec. 635.5(b)(2)(i)(B) of this
title, for a period of 2 years from the date on which each report was
submitted to NMFS.
(b) Recordkeeping. Any person trading fish and fish products
regulated under this subpart and required to submit biweekly reports
under paragraph (a) of this section must retain, at his/her principal
place of business, a copy of each biweekly report and all supporting
records for a period of 2 years from the date on which each report was
submitted to NMFS.
(c) Other requirements. Any person trading fish and fish products
regulated under this subpart and required to obtain a trade permit
under Sec. 300.322 is also subject to the reporting and recordkeeping
requirements identified in Sec. 300.185.
(d) Inspection. Any person authorized to carry out the enforcement
activities under the regulations in this subpart (authorized person)
has the authority, without warrant or other process, to inspect, at any
reasonable time: fish or fish products regulated under this subpart,
biweekly reports, statistical documents, catch documents, re-export
certificates, relevant sales receipts, import and export documentation,
and any other records or reports made, retained, or submitted pursuant
to this subpart. A permit holder must allow NMFS or an authorized
person to inspect any fish or fish products regulated under this
subpart, and inspect and copy any import export, and re-export
documentation and any reports required under this subpart, and the
records, in any form, on which the completed reports are based,
wherever they exist. Any agent of a person trading and required to
obtain a trade permit under Sec. 300.322, or anyone responsible for
importing, exporting, re-exporting, storing, packing, or selling fish
or fish products regulated under this subpart, shall be subject to the
inspection provisions of this section.
(e) Applicability of reporting and recordkeeping requirements.
Reporting and recordkeeping requirements in this subpart apply to any
person engaging in international trade regardless of whether a trade
permit has been issued to that person.
0
12. Effective August 3, 2016, revise Sec. 300.184 to read as follows:
Sec. 300.184 Species subject to permitting, documentation,
reporting, and recordkeeping requirements.
(a) Except as noted in paragraphs (b) and (c) of this section, the
following fish or fish products are subject to the documentation
requirements of this subpart, regardless of ocean area of catch, and
must be reported under the appropriate heading or subheading numbers
from the Harmonized Tariff Schedule of the United States (HTS):
(1) Bluefin tuna,
(2) Southern bluefin tuna,
(3) Frozen bigeye tuna,
(4) Swordfish, and
(5) Shark fins.
(b) For bluefin tuna, southern bluefin tuna, frozen bigeye tuna,
and swordfish, fish parts other than meat (e.g., heads, eyes, roe,
guts, and tails) may be imported without the documentation required
under this subpart.
(c) Bigeye tuna caught by purse seiners or pole and line (bait)
vessels and destined for canneries within the United States, including
all U.S. commonwealths, territories, and possessions, may be imported
without the documentation required under this subpart.
0
13. In Sec. 300.185:
0
a. Revise paragraphs (a)(2)(i), (a)(2)(ii)(A), and (a)(2)(iii)(A);
0
b. Remove paragraph (a)(2)(vii);
0
c. Revise paragraphs (a)(3), (b)(2) and (3), (c)(2)(i) and (ii), and
(c)(3).
The revisions read as follows:
Sec. 300.185 Documentation, reporting and recordkeeping requirements
for consignment documents and re-export certificates.
(a) * * *
(2) Documentation requirements. (i) Except for shark fins, all fish
or fish products regulated under this subpart, imported into the
Customs territory of the United States or entered for consumption into
a separate customs territory of a U.S. insular possession, must, at the
time of presenting entry documentation for clearance by customs
authorities (e.g., electronic filing via ACE or other documentation
required by the port director) be accompanied by an original, complete,
accurate, approved and properly validated, species-specific consignment
document. An image of such document and the required data set must be
filed electronically with CBP via ACE.
(ii) Bluefin tuna. (A) Imports that were re-exported from another
nation must also be accompanied by an original, complete, accurate,
approved and properly validated, species-specific re-export
certificate.
(1) For Atlantic bluefin tuna, this requirement must be satisfied
by the U.S. importer through electronic receipt and completion of a re-
export certificate in the ICCAT eBCD system, unless NMFS provides
otherwise through actual notice or Federal Register notice. In cases
where the documentation requirements have been completed in the ICCAT
eBCD system, a reduced data set consisting of the eBCD number or re-
export certificate number, as applicable, and the importer trade permit
number would suffice as an import filing, without need to submit any
forms via DIS in ACE.
(2) For bluefin tuna harvested from other than the Atlantic Ocean,
or for Atlantic Bluefin tuna entered pursuant to a notified exception
under (a)(2)(ii)(A)(1), an image of the original paper re-export
certificate and the supporting consignment documents must be submitted
to CBP via the ACE DIS.
* * * * *
(iii) * * *
(A) Imports that were previously re-exported and were subdivided or
consolidated with another consignment before re-export, must also be
accompanied by an original, completed, accurate, valid, approved and
properly validated, species-specific re-export certificate. An image of
such document, an image of the original import document, and the
required data set must be filed electronically with CBP via ACE.
* * * * *
(3) Reporting requirements. (i) For fish or fish products regulated
under this subpart, except shark fins, that are entered for consumption
and whose final destination is within the United States, which includes
U.S. insular possessions, a permit holder must submit an image of the
original consignment document that accompanied the fish product as
completed under paragraph (a)(2) of this section to CBP electronically
through the ACE DIS.
(ii) For Atlantic bluefin tuna, this requirement must be satisfied
electronically by entering the specified information into the ICCAT
eBCD
[[Page 51136]]
system as directed in paragraph (a)(2)(vi)(A) of this section, unless
NMFS provides otherwise through actual notice or Federal Register
notice. In cases where the documentation requirements have been
completed in the ICCAT eBCD system, a reduced data set consisting of
the eBCD number or the re-export certificate number, as applicable, and
the importer trade permit number would suffice as an import filing,
without need to submit any forms via DIS in ACE.
(b) * * *
(2) Documentation requirements. A permit holder must complete an
original, approved, numbered, species-specific consignment document
issued to that permit holder by NMFS for each export referenced under
paragraph (b)(1) of this section, and electronically file an image of
such documentation and the required data set with CBP via AES. Such an
individually numbered document is not transferable and may be used only
once by the permit holder to which it was issued to report on a
specific export consignment. A permit holder must provide on the
consignment document the correct information and exporter
certification. The consignment document must be validated, as specified
in Sec. 300.187, by NMFS, or another official authorized by NMFS. A
list of such officials may be obtained by contacting NMFS. A permit
holder requesting U.S. validation for exports should notify NMFS as
soon as possible after arrival of the vessel to avoid delays in
inspection and validation of the export consignment.
(i) For Atlantic bluefin tuna, this requirement must be satisfied
by electronic completion of a consignment document in the ICCAT eBCD
system, unless NMFS provides otherwise through actual notice or Federal
Register notice. In cases where the documentation requirements have
been completed in the ICCAT eBCD system, a reduced data set consisting
of the eBCD number and the exporter trade permit number would suffice
as an export filing, without need to submit any forms in AES via DIS.
(ii) For non-Atlantic bluefin tuna, this requirement must be
satisfied by completion of a paper consignment document, and electronic
filing of an image of such documentation and the required data set with
CBP via AES.
(3) Reporting requirements. (i) A permit holder must ensure that
the original, approved, consignment document as completed under
paragraph (b)(2) of this section accompanies the export of such
products to their export destination and must electronically file an
image of such documentation and the required data set with CBP via AES.
(ii) For Atlantic bluefin tuna, this requirement must be satisfied
electronically by entering the specified information into the eBCD
system as directed in paragraph (b)(2)(i) of this section, unless NMFS
provides otherwise through actual notice or Federal Register notice. In
cases where the documentation requirements have been completed in the
ICCAT eBCD system, a reduced data set consisting of the eBCD number and
the exporter trade permit number would suffice as an export filing
without need to submit any forms in AES via DIS.
(c) * * *
(2) Documentation requirements. (i) If a permit holder re-exports a
consignment of bluefin tuna, or subdivides or consolidates a
consignment of fish or fish products regulated under this subpart,
other than shark fins, that was previously entered for consumption as
described in paragraph (c)(1) of this section, the permit holder must
complete an original, approved, individually numbered, species-specific
re-export certificate issued to that permit holder by NMFS for each re-
export consignment. Such an individually numbered document is not
transferable and may be used only once by the permit holder to which it
was issued to report on a specific re-export consignment. A permit
holder must provide on the re-export certificate the correct
information and re-exporter certification. The permit holder must also
attach the original consignment documentation that accompanied the
import consignment or a copy of that documentation, and must note on
the top of both the consignment documents and the re-export
certificates the entry number assigned by CBP authorities at the time
of filing the entry for the previously imported consignment. An
electronic image of these documents and the required data set must be
filed electronically with CBP via AES at the time of export.
(A) For Atlantic bluefin tuna, these requirements must be satisfied
by electronic completion of a re-export certificate in the ICCAT eBCD
system, unless NMFS provides otherwise through actual notice or Federal
Register notice. In cases where the documentation requirements have
been completed in the ICCAT eBCD system, a reduced data set consisting
of the eBCD number and the exporter trade permit number would suffice
as a re-export filing, without need to submit any forms in AES via DIS.
(B) For non-Atlantic bluefin tuna, these requirements must be
satisfied by completion of a paper re-export certificate, and
electronic filing of an image of such documentation and the required
data set with CBP via AES.
(ii) If a consignment of fish or fish products regulated under this
subpart, except bluefin tuna or shark fins, that was previously entered
for consumption as described in paragraph (c)(1) of this section is not
subdivided into sub-consignments or consolidated with other
consignments or parts thereof, for each such re-export consignment, a
permit holder must complete the intermediate importer's certification
on the original consignment document and note the entry number
previously issued by CBP for the consignment at the top of the
document. Such re-exports do not need a re-export certificate and the
re-export does not require validation. An electronic image of the
consignment document with the completed intermediate importer's
certification and the required data set must be filed electronically
with CBP via AES at the time of re-export.
* * * * *
(3) Reporting requirements. (i) For each re-export, a permit holder
must submit the original of the completed re-export certificate (if
applicable) and the original or a copy of the original consignment
document completed as specified under paragraph (c)(2) of this section,
to the shipper to accompany the consignment of such products to their
re-export destination, and an image of such documentation and the
required data set must be filed electronically with CBP via AES.
(ii) For Atlantic bluefin tuna, this requirement must be satisfied
electronically by entering the specified information into the ICCAT
eBCD system as directed in paragraph (c)(2)(i)(A) of this section,
unless NMF provides otherwise through actual notice or Federal Register
notice. In cases where the documentation requirements have been
completed in the ICCAT eBCD system, a reduced data set consisting of
the eBCD number and the exporter trade permit number would suffice as
an export filing, without need to submit any forms in AES via DIS.
* * * * *
0
14. In Sec. 300.189, revise paragraphs (a), (b), (c), (m), and (n) to
read as follows:
Sec. 300.189 Prohibitions.
* * * * *
(a) Falsify information required on an application for a permit
submitted under Sec. 300.322.
[[Page 51137]]
(b) Import as an entry for consumption, purchase, receive for
export, export, or re-export any fish or fish product regulated under
this subpart without a valid trade permit issued under Sec. 300.322.
(c) Fail to possess, and make available for inspection, a trade
permit at the permit holder's place of business, or alter any such
permit as specified in Sec. 300.322.
* * * * *
(m) Fail to electronically file via ACE a validated consignment
document and the required data set for imports at time of entry into
the Customs territory of the United States of fish or fish products
regulated under this subpart except shark fins, regardless of whether
the importer, exporter, or re-exporter holds a valid trade permit
issued pursuant to Sec. 300.322 or whether the fish products are
imported as an entry for consumption.
(n) Import or accept an imported consignment of fish or fish
products regulated under this subpart, except shark fins, without an
original, complete, accurate, approved and properly validated, species-
specific consignment document and re-export certificate (if applicable)
with the required information and exporter's certification completed.
Subpart Q--[Redesignated as Subpart R]
0
15. Redesignate subpart Q, consisting of Sec. 300.330 through 300.341,
as subpart R.
0
16. Add new subpart Q to read as follows:
Subpart Q--International Trade Documentation and Tracking Programs
Sec.
300.320 Purpose and scope.
300.321 Definitions.
300.322 International Fisheries Trade Permit.
300.323 Reporting requirements.
300.324 Prohibitions.
Subpart Q--International Trade Documentation and Tracking Programs
Sec. 300.320 Purpose and scope.
The regulations in this subpart are issued under the authority of
the Atlantic Tunas Convention Act of 1975 (ATCA), the Magnuson-Stevens
Fishery Conservation and Management Act, the Tuna Conventions Act of
1950, and the Antarctic Marine Living Resources Convention Act of 1984.
These regulations implement the applicable recommendations of the
International Commission for the Conservation of Atlantic Tunas (ICCAT)
for the conservation and management of tuna and tuna-like species in
the Atlantic Ocean, the Inter-American Tropical Tuna Commission (IATTC)
for the conservation and management of highly migratory fish resources
in the eastern Pacific Ocean, and the Commission for the Conservation
of Antarctic Marine Living Resources so far as they affect vessels and
persons subject to the jurisdiction of the United States. These
regulations are also issued under the Marine Mammal Protection Act of
1972, the Dolphin Protection Consumer Information Act and the Security
and Accountability for Every Port Act of 2006. The requirements in this
subpart may be incorporated by reference in other regulations under
this title.
Sec. 300.321 Definitions.
ACE Implementation Guide for NMFS means the data set and document
imaging requirements set forth in the Appendices to the Customs and
Trade Automated Interface Requirements issued by Customs and Border
Protection.
AMLR trade program means the program for monitoring trade in
Antarctic marine living resources including, inter alia, Dissostichus
species as set forth in subpart G of this part.
Automated Commercial Environment (ACE) means, for purposes of this
subpart, the central point through which import shipment data required
by multiple agencies is filed electronically to Customs and Border
Protection (CBP).
Automated Export System (AES) means, for purposes of this subpart,
the central point through which export shipment data required by
multiple agencies is filed electronically to Customs and Border
Protection (CBP).
Catch and Statistical Document/Documentation means a document or
documentation accompanying regulated seafood imports, exports and re-
exports that is submitted by importers and exporters to document
compliance with TTVP, AMLR, and HMS ITP trade documentation programs as
described in Sec. 216.24(f) of this title, and subparts G and M of
this part.
CBP means U.S. Customs and Border Protection, Department of
Homeland Security.
Documentation and data sets required under this subpart refers to
documentation and data that must be submitted by an importer or
exporter at the time of, or in advance of, the import, export or re-
export of fish or fish products as required under this subpart, the
AMLR trade program, the HMS ITP, or the TTVP. The required data sets
and document images to be submitted for specific programs and
transactions are posted by CBP as indicated in Sec. 300.323.
Fish or fish products regulated under this subpart means species
and products containing species regulated under this subpart, the AMLR
trade program, the HMS ITP, or the TTVP.
HMS ITP means the Highly Migratory Species International Trade
Program which includes trade monitoring and/or reporting and
consignment documentation for trade of bluefin tuna, southern bluefin
tuna, frozen bigeye tuna, swordfish, and shark fins as described in
subpart M of this part.
Import has the same meaning as 16 U.S.C. 1802(22). Import includes,
but is not limited to, customs entry for consumption, withdrawal from
customs bonded warehouse for consumption, or entry for consumption from
a foreign trade zone.
International Fisheries Trade Permit (or IFTP) means the permit
issued by NMFS under Sec. 300.222.
TTVP means the Tuna Tracking and Verification Program, which
regulates trade in certain fishery products as set forth in Sec.
216.24(f)(2) of this title.
Sec. 300.322 International Fisheries Trade Permit.
(a) General. Any person, including a resident agent for a
nonresident corporation (see 19 CFR 141.18), who imports as defined in
Sec. 300.321, exports, or re-exports fish or fish products regulated
under this sub-part from any ocean area, must possess a valid
International Fisheries Trade Permit (IFTP) issued under this section.
Fish or fish products regulated under this subpart may not be imported
into, or exported or re-exported from, the United States unless the
IFTP holder files electronically the documentation and the data sets
required under this subpart with U.S. Customs and Border Protection
(CBP) via ACE at the time of, or in advance of, importation,
exportation or re-exportation. If authorized under other regulations
under this title or other applicable laws and regulations, a
representative or agent of the IFTP holder may make the electronic
filings. Only persons resident in the United States are eligible to
apply for the IFTP.
(b) Application. A person must apply for an IFTP electronically via
a Web site designated by NMFS. The application must be submitted
electronically with the required permit fee payment, at least 30 days
before the date upon which the applicant wishes the permit to be made
effective.
(c) Issuance. Except as provided in subpart D of 15 CFR part 904,
NMFS
[[Page 51138]]
will issue an IFTP within 30 days of receipt of a completed
application. NMFS will notify the applicant of any deficiency in the
application, including failure to provide information, documentation or
reports required under this subpart. If the applicant fails to correct
the deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(d) Duration. An IFTP issued under this section is valid for a
period of one year from the permit effective date.
(e) Alteration. Any IFTP that is substantially altered, erased, or
mutilated is invalid.
(f) Replacement. NMFS may issue replacement permits. An application
for a replacement permit is not considered a new application. An
appropriate fee, consistent with paragraph (j) of this section, may be
charged for issuance of a replacement permit.
(g) Transfer. An IFTP issued under this section is not transferable
or assignable; it is valid only for the permit holder to whom it is
issued.
(h) Inspection. The permit holder must keep the IFTP issued under
this section at his/her principal place of business. The IFTP must be
displayed for inspection upon request of any authorized officer, or any
employee of NMFS designated by NMFS for such purpose.
(i) Sanctions. The Assistant Administrator may suspend, revoke,
modify, or deny a permit issued or sought under this section.
Procedures governing permit sanctions and denials are found at subpart
D of 15 CFR part 904.
(j) Fees. NMFS will charge a fee to recover the administrative
expenses of permit issuance. The amount of the fee is calculated, at
least annually, in accordance with the procedures of the NOAA Finance
Handbook, available from NMFS, for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified on each application form. The appropriate fee must be
submitted via a Web site designated by NMFS at the time of application.
Failure to pay the fee will preclude issuance of the permit. Payment by
a commercial instrument later determined to be insufficiently funded
shall invalidate any permit.
(k) Change in application information. Within 15 days after any
change in the information contained in an application submitted under
this section, the permit holder must report the change to NMFS via a
Web site designated by NMFS. If a change in permit information is not
reported within 30 days, the permit is void as of the 30th day after
such change.
(l) Renewal. Persons must apply annually for an IFTP issued under
this section. A renewal application must be submitted via a Web site
designated by NMFS, at least 15 days before the permit expiration date
to avoid a lapse in permitted status. NMFS will renew a permit provided
that: The application for the requested permit renewal is complete; all
documentation and reports required under this subpart and the Magnuson-
Stevens Act, Atlantic Tuna Conventions Act, the Tuna Conventions Act,
the Marine Mammal Protection Act, the Dolphin Consumer Protection
Information Act, and the Antarctic Marine Living Resources Act have
been submitted, including those required under Sec. Sec. 216.24,
216.93, 300.114, 300.183, 300.185, 300.186, 300.187 and 635.5 of this
title; and the applicant is not subject to a permit sanction or denial
under paragraph (i) of this section.
Sec. 300.323 Reporting requirements.
Any person, including a resident agent for a nonresident entity
(see 19 CFR 141.18), who imports as defined in Sec. 300.321, exports,
or re-exports fish or fish products regulated under this sub-part from
any ocean area, must file all reports and documentation required under
the AMLR trade program, HMS ITP, and TTVP as specified under this title
and under other regulations that incorporate by reference the
requirements of this subpart. For imports, specific instructions for
electronic filing are found in Customs and Trade Automated Interface
Requirements (CATAIR) Appendix PGA (https://www.cbp.gov/document/guidance/appendix-pga). For exports, specific instructions for
electronic filing are found in Automated Export System Trade Interface
Requirements (AESTIR) Appendix Q (https://www.cbp.gov/document/guidance/aestir-draft-appendix-q-pga-record-formats). For fish and fish
products regulated under this subpart, an ACE entry filing or AES
export filing, as applicable, is required regardless of value, except
in cases where CBP provides alternate means of collecting NMFS-required
data and/or document images.
Sec. 300.324 Prohibitions.
In addition to the prohibitions specified in Sec. Sec. 300.4,
300.117, 300.189, 600.725 and 635.71 of this title, it is unlawful for
any person subject to the jurisdiction of the United States to:
(a) Violate any provision of this subpart, or the conditions of any
IFTP issued under this subpart,
(b) Import, export or re-export fish or fish products regulated
under this subpart, including imports or exports otherwise eligible for
the de minimis value exemption from filing requirements under CBP
procedures, without a valid IFTP as required under Sec. 300.322 or
without submitting complete and accurate information as required under
Sec. 300.323.
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
17. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
18. In Sec. 600.705, revise the first sentence of paragraph (g) to
read as follows:
Sec. 600.705 Relation to other laws,
* * * * *
(g) High seas fishing activities. Regulations governing permits and
requirements for fishing activities on the high seas are set forth in
50 CFR part 300, subparts A and R.* * *
PART 660--FISHERIES OFF WEST COAST STATES
0
19. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and
16 U.S.C. 7001 et seq.
0
20. In Sec. 660.2, revise paragraph (c) to read as follows:
Sec. 660.2 Relation to other laws.
* * * * *
(c) Fishing activities on the high seas are governed by regulations
of the High Seas Fishing Compliance Act set forth in 50 CFR part 300,
subparts A and R.
[FR Doc. 2016-18401 Filed 8-2-16; 8:45 am]
BILLING CODE 3510-22-P