Magnuson-Stevens Fishery Conservation and Management Act; Seafood Import Monitoring Program, 88975-88998 [2016-29324]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Rules and Regulations]
[Pages 88975-88998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29324]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 300 and 600

[Docket No. 150507434-6638-02]
RIN 0648-BF09


Magnuson-Stevens Fishery Conservation and Management Act; Seafood 
Import Monitoring Program

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: Pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA), this final rule establishes permitting, reporting 
and recordkeeping procedures relating to the importation of certain 
fish and fish products, identified as being at particular risk of 
illegal, unreported, and unregulated (IUU) fishing or seafood fraud, in 
order to implement the MSA's prohibition on the import and trade, in 
interstate or foreign commerce, of fish taken, possessed, transported 
or sold in violation of any foreign law or regulation or in 
contravention of a treaty or a binding conservation measure of a 
regional fishery organization to which the United States is a party. 
Collection of catch and landing documentation for certain fish and fish 
products will be accomplished through the government-wide International 
Trade Data System (ITDS) by electronic submission of data through the 
Automated Commercial Environment (ACE) maintained by the Department of 
Homeland Security, Customs and Border Protection (CBP). The information 
will be collected through the ITDS electronic single window consistent 
with the Safety and Accountability for Every (SAFE) Port Act of 2006 
and other applicable statutes. Specifically, this rule revises an 
existing NMFS requirement for the importer of record to file 
electronically through ACE data prescribed under certain existing NMFS 
programs (and to retain records supporting such filings) to also cover 
the data required to be reported under this rule. This rule requires 
data to be reported on the harvest of fish and fish products. In 
addition, this rule requires retention of additional supply chain data 
by the importer of record and extends an existing NMFS requirement to 
obtain an annually renewable International Fisheries Trade Permit 
(IFTP) to the fish and fish products regulated under this rule. The 
information to be reported and retained, as applicable, under this rule 
will help authorities verify that the fish or fish products were 
lawfully acquired by providing information to trace each import 
shipment back to the initial harvest event(s). The rule will also 
decrease the incidence of seafood fraud by requiring the reporting of 
this information to the U.S. Government at import and requiring 
retention of documentation so that the information reported (e.g., 
regarding species and harvest location) can be verified.

DATES: Effective date: This final rule is effective January 9, 2017. 
Title 50 CFR 300.324(a)(3) is stayed indefinitely. NMFS will publish a 
document in the Federal Register lifting the stay and announcing the 
effective date of 50 CFR 300.324(a)(3).
    Compliance date: The compliance date for this rule for the species 
included at 50 CFR 300.324(a)(2) is January 1, 2018.

ADDRESSES: Applications for the International Fisheries Trade Permit 
may be completed and submitted at: https://fisheriespermits.noaa.gov/. 
Copies of the Final Regulatory Impact Review, Final Regulatory 
Flexibility Analysis and the information collection

[[Page 88976]]

request submitted to OMB may be obtained at: https://www.iuufishing.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office for 
International Affairs and Seafood Inspection, NOAA Fisheries (phone 
301-427-8350, or email christopher.rogers@noaa.gov).

SUPPLEMENTARY INFORMATION: 

Background

    On June 17, 2014, the White House released a Presidential 
Memorandum entitled ``Establishing a Comprehensive Framework to Combat 
Illegal, Unreported, and Unregulated Fishing and Seafood Fraud.'' Among 
other actions, the Memorandum established a Presidential Task Force on 
Combating Illegal, Unreported, and Unregulated (IUU) Fishing and 
Seafood Fraud (Task Force), co-chaired by the Departments of State and 
Commerce, with membership including a number of other Federal agency 
and White House offices. The Task Force provided recommendations to the 
President through the National Ocean Council, and NMFS requested 
comments from the public on how to effectively implement the 
recommendations of the Task Force (79 FR 75536, December 18, 2014). 
Oversight for implementing the recommendations of the Task Force has 
been charged to the National Ocean Council Standing Committee on IUU 
Fishing and Seafood Fraud (NOC Committee).
    Of the recommendations advanced to the President, Recommendations 
14 and 15 called for the development of a risk-based traceability 
program (including defining operational standards and the types of 
information to be collected) as a means to combat IUU fishing and 
seafood fraud. The multiple steps toward implementation of 
Recommendations 14 and 15, as set out in the Task Force Action Plan, 
were described in the preamble to the proposed rule (81 FR 6210, 
February 5, 2016) and are not repeated here (see also https://www.regulations.gov/docket?D=NOAA-NMFS-2014-0090).
    The proposed rule set forth a program of permitting, reporting and 
recordkeeping applicable to importers of record for imported fish and 
fish products within the scope of the initial phase of the seafood 
traceability program. A number of public webinars and meetings were 
held to explain the proposed rule and to take comments about the 
potential impacts of the trade reporting and recordkeeping requirements 
on entities engaged in seafood trade. Written comments that were 
received through the Federal e-rulemaking portal are available for 
viewing in the docket for this rulemaking (see https://www.regulations.gov/docket?D=NOAA-NMFS-2015-0122).

Comments and Responses

    NMFS received comments on the proposed rule from fishing industry 
groups, including fish importers, processors, trade organizations, non-
governmental organizations (NGOs), private citizens, other government 
agencies, and foreign governments. Comments are summarized by category 
and NMFS responses are presented. NMFS received more than 67,933 
signatures on group comment letters from private citizens through 
environmental NGOs supporting implementation of the Seafood Import 
Monitoring Program (Program). Comments are summarized by category and 
NMFS responses are presented.
    Several comments received were not germane to this rulemaking and 
are not addressed in this section. These comments addressed actions 
outside the scope of the statutory mandate (e.g., sharing information 
with consumers) or actions covered under other rulemakings (e.g., the 
International Trade Data System integration or the Marine Mammal 
Protection Act fish import requirements.) In the following section, 
NMFS responds to the specific comments applicable to this rulemaking.

General Comments

    Comment 1: Many commenters asked the agency to implement a Seafood 
Inspection Monitoring Program that includes all seafood and 
traceability from the point of harvest to the point of final sale, and 
to incorporate consumer labeling.
    Response: As indicated in the Task Force's recommendations to the 
President, it is the goal of the U.S. government ``to eventually expand 
the program to all seafood at first point of sale or import.'' The 
process for expansion will account for, among other factors, 
consideration of authorities needed for more robust implementation, 
stakeholder input, and the cost-effectiveness of program expansion. The 
NOC Committee will issue a report that includes an evaluation of the 
program as set out in a final rule, as well as recommendations of how 
and under what timeframe it would be expanded and measures that could 
be taken to provide traceability information to the consumer.
    In recognition of the fact that expansion of the seafood 
traceability program to include all species will result in the 
inclusion of species having a lower perceived risk of IUU fishing and 
seafood fraud, NMFS will refer to the species that have been identified 
as ``at-risk'' of IUU fishing and seafood fraud as ``priority'' species 
in this rulemaking and associated guidance and outreach materials. See 
response to Comment 14 below for additional discussion on the 
transition from use of the term ``at risk'' in the final rule.
    Comment 2: NMFS received numerous comments questioning the extent 
to which the rule, as proposed, meets U.S. obligations to comply with 
international trade agreements, and in particular with respect to 
national treatment.
    Response: As described in the preamble to the proposed rule, this 
regulation addresses only the collection of information on imported 
fish and fish products at the point of entry into U.S. commerce. For 
U.S. domestic wild capture fisheries, entry into U.S. commerce occurs 
at the first point of landing or sale or transfer to a dealer or 
processor in the United States. For U.S. aquaculture products, entry 
into U.S. commerce is the first sale to a processor or directly to a 
consumer market.
    For the priority species to which this rule applies, equivalent 
information is already being collected at the point of entry into 
commerce for the products of U.S. domestic fisheries pursuant to 
various federal and/or state fishery management and reporting programs. 
For this reason, this regulation does not duplicate data reporting 
requirements already in place for products of U.S. domestic fisheries, 
and instead focuses on accessing the data necessary to establish 
traceability from point of harvest or production to entry into U.S. 
commerce for imported fish and fish products.
    However, current data collection for U.S. aquacultured shrimp and 
abalone is not equivalent to the data that would be reported for 
imports. Consequently, the effective date of this rule for imported 
shrimp and abalone products is stayed indefinitely.
    Comment 3: A number of comments were driven by assumptions that, 
through this rulemaking, NMFS intended to require that fish and fish 
products from individual harvest events be segregated throughout the 
supply chain and identifiable by harvest event at the point of entry 
into U.S. commerce.
    Response: NMFS clarifies that segregation of harvest events through 
the supply chain was not an intended requirement in the proposed rule 
and is not a requirement in the final rule.

[[Page 88977]]

Instead, a product offered for entry may be comprised of products from 
more than one harvest event. In such instances, an importer of record 
must provide information on each harvest event relevant to the contents 
of the shipment offered for entry but does not need to provide specific 
links between portions of the shipment and particular harvest events. 
See response to Comment 27 for further discussion. A mass balance 
calculation will not be applied at the time of entry to determine 
admissibility of the shipment because all of the product from any 
single harvest event may not be exported to the U.S. market.

Scope of the Program

    Comment 4: Several commenters from the seafood industry expressed 
their opinion that the Program will not combat illegal fishing and 
seafood fraud, arguing that limited resources to combat these issues 
would be most effectively spent on international capacity building.
    Response: NMFS and the other agencies contributing to this effort 
agree that the Program will in fact serve to reduce IUU fishing. On 
June 17, 2014, the White House released a Presidential Memorandum 
entitled ``Establishing a Comprehensive Framework to Combat Illegal, 
Unreported, and Unregulated Fishing and Seafood Fraud'' which 
established and directed the President's Task Force on Combating 
Illegal, Unreported and Unregulated Fishing and Seafood Fraud to 
develop a comprehensive framework of integrated programs to combat IUU 
fishing and seafood fraud that emphasizes areas of greatest need. Per 
the Task Force's recommendations, it is in the national interest to 
prevent the entry of illegal seafood into U.S. commerce. Creating the 
Program, an information system that better facilitates data collection, 
sharing, and analysis among relevant regulators and enforcement 
authorities is a significant step forward in addressing IUU fishing and 
seafood fraud. The National Ocean Council Committee on IUU Fishing and 
Seafood Fraud continues to move forward on all of the 15 
recommendations of the Task Force, including development of a program 
for capacity building and assistance as called for in Recommendation 6 
of the Task Force action plan. The approach to capacity building will 
include technical assistance with fisheries governance, monitoring, 
recordkeeping and enforcement. For more information please visit 
www.iuufishing.noaa.gov.
    Comment 5: NOAA received several comments regarding the inclusion 
of aquaculture products in the Program, noting that the application of 
measures to combat IUU fishing to aquaculture products is 
inappropriate.
    Response: NOAA agrees that IUU fishing is not a concern directly 
related to the aquaculture industry. That said, the recommendations of 
the Presidential Task Force were intended to combat both IUU fishing 
and seafood fraud, and the scope of its recommendation to establish a 
seafood traceability program includes both wild-capture and aquaculture 
fish and fish products. Specifically, the Program is intended and 
designed to trace seafood from its entry into commerce back to the 
point of harvest or production. Inclusion of aquaculture products in 
the Program addresses several concerns. First, some imported fish 
products are sourced from both wild capture fisheries and aquaculture 
operations, yet are indistinguishable in product form. Excluding 
aquaculture products from the import reporting requirement of the 
Program presents enforcement issues if shipments are declared to be of 
aquaculture origin with no information to support such declaration. 
Additionally, similar to wild capture fisheries, aquaculture operations 
are likely to be subject to foreign laws or regulations pertaining to 
licensing and reporting on production and distribution; importation of 
aquaculture products harvested in violation of those laws would make 
them subject to the MSA provision under which this rule is promulgated. 
Finally, evidence exists that aquaculture products have been subject to 
various types of product misrepresentation, some of which can cause 
risk to human health. As is the case for wild capture fisheries, 
collecting information on the origin of aquaculture products supports 
the determination of conformance with foreign law or regulation, 
including the determination that the fish products are not fraudulently 
misrepresented.
    Comment 6: NMFS received comment that, with respect to 
misrepresented products, the Program is redundant to existing Food and 
Drug Administration (FDA) programs and authorities. A commenter also 
questioned whether MSA section 307(1)(Q) provided authority to 
determine if seafood imports were the product of unregulated or 
unreported fishing.
    Response: NMFS disagrees that the Program is redundant with 
existing programs and authorities. When developing its recommendations 
to the President, the Task Force on Combating IUU Fishing and Seafood 
Fraud considered existing rules and authorities and determined that 
measures to ensure that misrepresented products do not enter the U.S. 
market should be expanded. The Task Force's evaluation indicated the 
need to develop and implement a seafood traceability program that 
placed greater scrutiny of the source of seafood products and on the 
entire supply chain from point of harvest to entry into U.S. commerce. 
While existing authorities empower the FDA to enforce the accuracy of 
seafood labeling and trace food products through the supply chain, it 
does not currently administer any laws or programs which enable the 
U.S. government to ensure that seafood products imported into the 
United States were not taken, possessed, transported, or sold in 
violation of any foreign law or regulation. For example, the co-
mingling of legally harvested and IUU seafood products between the 
point of harvest and entry into U.S. commerce would not be identified 
by existing FDA inspections.
    MSA section 307(1)(Q) prohibits, among other things, imports of 
fish ``taken, possessed, transported, or sold in violation of any 
foreign law or regulation or any treaty or in contravention of any 
binding conservation measures adopted by an international agreement or 
organization to which the United States is a party.'' 16 U.S.C. 
1857(1)(Q) (emphasis added). To effectively enforce this section, NMFS 
is adopting the reporting and recordkeeping requirements set forth in 
this rule. NMFS has broad discretion under the MSA to promulgate 
regulations as necessary to carry out provisions of the MSA. Id. 
1855(d).
    Comment 7: A number of comments were received urging NMFS to 
establish data collection programs for domestic shrimp and abalone 
aquaculture production to ensure that shrimp and abalone can be 
included in the Program when it begins.
    Response: As described in the preamble to the proposed rule, gaps 
exist in the collection of traceability information for domestic 
aquaculture-raised shrimp and abalone, which is currently largely 
regulated at the state level. (81 FR 6212, February 5, 2016). Since 
publication of the proposed rule, NMFS has explored the opportunity to 
work with its state partners to establish reporting and recordkeeping 
requirements for aquaculture traceability information that could be 
shared with NMFS. However, this did not prove to be a viable approach 
at the present time. NMFS is thus staying the effective date of the 
rule as it pertains to shrimp and abalone until appropriate reporting 
and/or recordkeeping requirements for domestic aquaculture production 
can be established. To that

[[Page 88978]]

end, NMFS is continuing to work with its Presidential Task Force 
partner agencies with respect to measures that could be adopted to 
close the gaps and to ensure comparability between traceability 
requirements and NMFS' access to traceability information for imported 
and domestic shrimp and abalone.
    For example, FDA, whose parent agency Health & Human Services is 
also a member of the Presidential Task Force, is currently exploring 
which of its authorities could fill the gap, including regulations that 
would require designating high risk foods for certain additional 
recordkeeping by food processors under the authority of section 204 of 
the Food Safety Modernization Act (21 U.S.C. 2223), which addresses 
enhanced tracking and tracing of food through recordkeeping and was 
passed by Congress in 2011. See, e.g., Designation of High-Risk Foods 
for Tracing; Request for Comments and Scientific Data and Information 
(79 FR 6596, February 4, 2014). Such additional recordkeeping 
requirements to enhance food safety are expected to facilitate FDA's 
ability to track the origin of and prevent the spread of foodborne 
illness. FDA is also planning to make revisions to its Seafood Hazard 
Analysis and Critical Control Points (Seafood HACCP) provisions.
    As FDA conducts this work, NMFS, together with the other 
Presidential Task Force agencies, would assess the extent to which 
FDA's program, or other changes in state or federal law or regulation, 
have resulted in closing gaps in traceability requirements between 
domestic and imported shrimp and abalone. At such time that the 
domestic reporting and recordkeeping gaps have been closed, NMFS will 
then publish an action in the Federal Register to lift the stay of the 
effective date for Sec.  300.324(a)(3) of the rule pertaining to shrimp 
and abalone. Adequate advance notice to the trade community would be 
provided in setting the effective date so that producers, processors, 
exporters and importers will have the opportunity to establish 
recordkeeping and reporting systems necessary to comply with the 
program.
    Comment 8: One commenter asserted that NMFS only has the authority 
to trace aquaculture conducted in federal waters.
    Response: Under the Magnuson-Stevens Act, NMFS cannot establish 
reporting requirements for domestic aquaculture that occurs within 
state waters or in terrestrially located facilities, which is where 
most domestic aquaculture occurs.
    Comment 9: A number of commenters proposed that NMFS include 
reporting on production method for aquaculture imports of priority 
species, as a way to ascertain whether the feed used to raise imported 
farmed fish may have been illegally harvested.
    Response: The Task Force clearly defined traceability for the 
purpose of the Program as beginning at the point of harvest for wild-
capture fisheries, and at the point of production for aquaculture 
products. Therefore, it is outside the scope of Program to trace feed 
sources for imported aquaculture seafood, even if those feeds contain 
priority species.
    Comment 10: NMFS received comments questioning the appropriateness 
of addressing both IUU fishing and seafood fraud through one data 
collection program.
    Response: While IUU fishing and seafood fraud are indeed different 
issues, both can be effectively addressed through traceability within 
the scope of the Program (from the point of harvest or production to 
entry into U.S. commerce) because both are enabled by lack of 
transparency within the seafood supply chain. Many commenters referred 
to seafood fraud further down in the supply chain--at the dealer and 
wholesale level--and NMFS acknowledges these concerns but notes that 
they are beyond the scope of the Program.
    Comment 11: Several groups suggested various reasons and methods 
for which the Program can and should be used to combat forced labor in 
the seafood industry.
    Response: While NMFS agrees that forced labor and unfair labor 
practices are important issues in several fisheries and in the fish 
processing sector, the stated objective of the Program is to trace 
seafood products from the point of entry into U.S. commerce back to the 
point of harvest or production for the purpose of ensuring that 
illegally harvested or falsely represented seafood does not enter U.S. 
commerce. The data elements captured by the reporting and recordkeeping 
requirements were chosen to serve this specific objective. Data 
collected under the authority of the Magnuson-Stevens Act is considered 
to be confidential and may not be shared publicly. However, subject to 
the data confidentiality provisions of the Magnuson-Stevens Act (16 
U.S.C. 1881a (b)), and other federal law, NMFS will provide information 
regarding entries of seafood product to aid in the investigation or 
prosecution of labor crimes by one of the U.S. government agencies that 
has the mandate and authority to do so. NMFS will determine the legal 
basis to share such information with those government agencies for such 
enforcement purposes.

Species and Harmonized Tariff Schedule Codes

    Comment 12: Several commenters questioned the description of 
species included in this rulemaking as ``at-risk'' and suggested that 
NMFS had failed to provide adequate rationale for inclusion of certain 
species in the Program. Commenters also recommended that species be 
added or removed from the initial phase of Program. Species suggested 
for addition included orange roughy, skates and rays. Species suggested 
for removal include Atlantic and Pacific cod, shrimp, and blue crab, in 
some cases on the basis that keeping individual harvest events 
separated throughout the supply chain would place an unnecessary burden 
on industry relative to the risk of IUU fishing for these species.
    Response: NMFS led a rigorous, interactive public process to 
identify the priority species for the Program and did not find 
sufficient new information from commenters to warrant changes to the 
``at-risk'' (now referred to as, ``priority'') species list as was 
included in the proposed rule. The Presidential Task Force on Combating 
Illegal, Unreported and Unregulated Fishing and Seafood Fraud directed 
development of an initial traceability program for seafood products of 
particular concern because the species at issue are subject to 
significant seafood fraud or because they are at significant risk of 
being caught through IUU fishing.
    In developing the seafood traceability program, NMFS requested and 
received extensive public comment regarding principles for identifying 
species at particular risk of IUU fishing or seafood fraud and on the 
application of those principles to a list of candidate species. An 
interagency expert working group reviewed public comments and 
confidential enforcement information and developed a draft list of 
``at-risk'' species and once again sought public comment prior to 
publication of the final list of species to which this rule applies in 
October 2015 (80 FR 66867, October 30, 2015). In publishing the final 
list of species, NMFS provided the rationale for inclusion of each 
species on the list. NMFS considers the list of species to which this 
rule applies to be accurately and appropriately identified as those 
species most ``at-risk'' of IUU fishing or seafood fraud. The issue of 
reporting burden with respect to the risks applicable to particular 
species will become less relevant as traceability systems expand in 
global commerce and industry improves its ability to comply

[[Page 88979]]

with them in a cost-effective manner. However, the response to Comment 
42 below addresses reporting burden issues for this initial phase of 
the Program.
    Comment 13: Several commenters requested that species managed under 
Regional Fisheries Management Organization (RFMO) catch documentation 
schemes (CDS) be excluded from the scope of this rule.
    Response: Bluefin tuna is the only priority species currently 
managed under an RFMO CDS, and NMFS, in the preamble to the proposed 
rule, discussed its reasons for inclusion in the Program. Although 
bluefin tuna species were determined to be at a lower risk of IUU 
fishing and seafood fraud than other tuna species and were not included 
on the list of at-risk species, the reporting and recordkeeping 
requirements proposed in this rule apply to HTS codes for fish and fish 
products of all tuna species including bluefin tuna. NMFS notes that 
bluefin tuna was historically a target of IUU fishing, and in response, 
two RFMOs implemented a CDS which together, include two of the three 
species world-wide. While NMFS continues to view the bluefin tuna to be 
at considerably lower risk of IUU fishing and seafood fraud than other 
tuna species and has made no modification to the list of at-risk 
species published on October 30, 2015, NMFS proposed to cover bluefin 
tuna in this rule (and has therefore included the HTS codes for bluefin 
tuna in the list of HTS codes to which this rule applies) in order to 
establish consistent treatment of tuna species, and avoid possible 
concerns that one species of tuna may be treated differently than 
others and therefore affect certain producers less favorably.
    Comment 14: NMFS received comments from members of the domestic 
seafood sector as well as from several national governments expressing 
the opinion that the determination of ``at-risk'' was an implicit 
indictment of the management and biological status of fisheries for 
those species both in the United States and abroad and expressing 
concern that the inference will have a negative impact on the 
consumer's willingness to purchase products from those fisheries.
    Response: NMFS has been clear about the fact that identification of 
priority species has been necessarily broad with respect to both area 
(it is applied at the species level without distinction of specific 
fisheries across the geographic range of the species) and principles 
(species were identified as priority on the basis of IUU-related 
principles, seafood fraud related principles, or any combination 
thereof). Records and data from both domestic and international sources 
were considered by the priority species working group. The process for 
making these determinations is described at: https://www.iuufishing.NMFS.gov/RecommendationsandActions/RECOMMENDATION1415.aspx.
    NMFS has been clear throughout the process that inclusion of any 
species in the risk-based first phase of implementation of this seafood 
traceability program should not be considered in any way an indictment, 
either explicit or implicit, of the management system or biological 
status of a fishery in the United States or any foreign nation. NMFS 
believes that the seafood traceability program will ultimately serve to 
reassure the U.S. seafood consumer that seafood products harvested in, 
or imported to, the United States are harvested legally and conveyed 
through a transparent supply chain.
    Comment 15: NMFS received a number of comments noting that priority 
species could be imported under HTS codes not listed in the proposed 
rule, and that some HTS codes not listed clearly contain priority 
species (e.g. Shrimp frozen in ATC, canned light meat tuna) while other 
HTS codes for highly processed products could contain priority species 
(e.g. Fish NSPF Dried, Marine Fish NSPF Frozen).
    Response: NMFS notes that importers are legally obligated under CBP 
regulations to use the most detailed and descriptive HTS code 
applicable to the product being entered (see 19 CFR 141.90), and NMFS 
will monitor shifts in HTS code usage to ensure that importers are not 
illegally avoiding obligations to provide information pursuant to this 
rule through the use of less specific codes. While it remains 
operationally infeasible to apply this rule to all highly-processed 
products, NMFS will include in the set of HTS codes to which the 
Program applies all seafood products, including highly processed 
products, for which the priority species can be accurately determined 
and tracked from its point of harvest. NMFS will not apply this rule to 
HTS codes representing products such as fish oil, slurry, sauces, 
sticks, balls, cakes, puddings, meal and other similar highly processed 
fish products for which the species of fish comprising the product or 
the harvesting event(s) or aquaculture operation(s) of the product 
being entered, cannot be feasibly identified, either through 
inspection, labeling, or HTS code. NMFS disagrees that the failure to 
apply the rule to those products would provide sufficient economic 
incentive for businesses to increase production of highly processed 
products over traditional product forms in order to circumvent the 
requirements of the rule.
    Comment 16: One commenter noted that a number of duplicate HTS 
codes were listed in the proposed rule.
    Response: NMFS has removed duplicate HTS codes in the associated 
compliance guide, where HTS codes applicable to this rule will be 
updated as needed. This approach, which NMFS has used in other recent 
rulemakings, allows the agency to update the list of applicable HTS 
codes for priority species as described in the rule in the compliance 
guide as codes are revised by the U.S. International Trade Commission 
and published in the Federal Register (see 19 U.S.C. 1202). NMFS, 
however, wants to be clear that the expansion of the Program through 
its application to additional species will require new rulemaking with 
opportunity for public comment.
    Comment 17: NMFS received comments expressing concern that 
importers may resort to the use of generic HTS codes in order to 
circumvent reporting and recordkeeping requirements associated with the 
Program and suggesting that those HTS codes should be included in the 
rule. One commenter identified several HTS codes for priority species 
products that were not included in the publication of the proposed 
rule.
    Response: NMFS acknowledges the potential risk that an importer 
seeking to circumvent the requirements of this rule might attempt to 
utilize a more general HTS code to which the rule is not being applied. 
As NMFS noted in the response to Comment 15, importers are legally 
obligated to use the most detailed and descriptive HTS code applicable 
to the product being entered. Therefore, if a more specific HTS code 
(to which this rule is applied) is not used for the entry filing, such 
misspecification would be a violation of customs regulations. NMFS 
considered applying this rule to generic (non-species specific) HTS 
codes and requiring a disclaimer from the importer of record that the 
shipment does not include any of the species to which the Program 
applies, but decided against doing so as it would expand considerably 
the universe of importers required to obtain an International Fisheries 
Trade Permit for the sole purpose of making that disclaimer. NMFS does 
not consider such an approach to be a reasonable burden on the trade 
community for the initial phase of the Program. NMFS will monitor for 
significant increases in the

[[Page 88980]]

use of generic HTS codes or decreases in the use of HTS codes to which 
this Program applies.
    NMFS has made corrections to the list of HTS codes to which the 
rule is applied. This list is not included in the regulatory language 
but will instead be described in the compliance guidance. This will 
allow for technical corrections and adjustments in the list of HTS 
codes applicable to the priority species without requiring additional 
rulemaking.
    Comment 18: NMFS received numerous comments regarding the use of 
various combinations of names and codes for providing species 
information under this rulemaking.
    Response: Per the recommendation of the interagency working group 
for the Presidential Task Force's Recommendation 10, the proposed rule 
required that for each entry, the scientific name, the accepted common 
name, and the United Nations Food and Agriculture Organization's (FAO) 
Aquatic Sciences and Fisheries Information System (ASFIS) 10-digit 
number and 3-alpha code must be reported. The recommendation and its 
inclusion in the proposed rule intentionally created redundancies 
within that data reporting element that would serve as a ``cross-
check'' to reduce unintentional reporting errors.
    NOAA agrees that reporting all three (scientific name, common name, 
and ASFIS code) may represent an unnecessary burden on industry and 
has, therefore, modified the rule to require only the ASFIS 3-alpha 
code. NOAA is confident that elimination of the requirement to report 
the scientific and common name of the fish or fish products while 
requiring the use of the ASFIS 3-alpha code will not diminish the 
effectiveness of the Program. If needed, a cross-check can be made 
between the product description reported to CBP, the HTS code, the 
product code reported to FDA, and the ASFIS 3-alpha code.

Data Requirements/Elements

    Comment 19: A number of comments were received requesting clarity 
on expectations for the fishing area data element, whether it be FAO 
area, exclusive economic zone (EEZ), GPS coordinates (as the European 
Union (EU) requires) or otherwise.
    Response: In consideration of comments received regarding area of 
wild capture, NMFS has described the format and coding for this data 
element in greater detail in the NMFS Implementation Guide posted by 
CBP at https://www.cbp.gov/trade/ace/catair. Several format options are 
recognized given the many differences in data collection and reporting 
conventions world-wide. For fisheries conducted in a nation's exclusive 
economic zone (EEZ) or territorial waters, the area of wild capture is 
the area that the competent authority exercising jurisdiction over the 
wild capture operation requires to be reported (e.g., sub-area of the 
harvesting nation's EEZ). If no such reporting requirement exists, then 
for fishing within the EEZ, the area of wild capture is specified using 
the relevant International Organization for Standardization (ISO) 2-
alpha code. See https://www.fao.org/3/a-az126e.pdf and ftp://ftp.fao.org/FI/STAT/by_FishArea/Fishing_Areas_list.pdf. For fishing 
beyond national jurisdiction, the United Nations Food and Agriculture 
Organization (FAO) Major Fishing Area codes (https://www.fao.org/fishery/cwp/handbook/H/en) should be used. Specific instructions for 
reporting fishing area are provided in the NMFS Implementation Guide.
    Comment 20: A number of commenters suggested that NMFS include 
transshipment information as a reporting data element.
    Response: NMFS acknowledges the value and importance of tracking 
transshipment information as a tool for combating IUU fishing. As 
drafted, the rule establishes access to this data by NMFS through 
audits of chain of custody information for selected entries. During the 
first year of implementation of the Program, NMFS will consider key 
chain of custody data elements that could be established as mandatory 
reporting requirements; as part of that process, the merits of 
requiring the reporting of transshipment data will be assessed. Any new 
mandatory reporting requirements for chain of custody data would be 
promulgated through a rulemaking.
    Comment 21: NMFS received several comments regarding the value of 
using established naming and code conventions for fishing gear.
    Response: As with fishing area, in response to comments, NMFS is 
providing further detail on the format and coding for the fishing gear 
data element in the NMFS Implementation Guide posted by CBP at https://www.cbp.gov/trade/ace/catair. The type of fishing gear should be 
specified per the reporting convention and codes used by the competent 
authority exercising jurisdiction over the wild capture operation. If 
no such reporting requirements exist, the FAO fishing gear code should 
be used. See https://www.fao.org/fishery/cwp/handbook/M/en (providing 
International Standard Statistical Classification of Fishing Gear).
    Comment 22: Several groups commented on the requirement of 
Automatic Identification Systems and International Maritime 
Organization numbers for all fishing vessels whose seafood is imported 
into the United States.
    Response: While noting that some entities utilize Automatic 
Identification System (AIS) for vessel monitoring, the purpose of AIS 
is to ensure vessel safety at sea and AIS is not an appropriate 
substitute for a Vessel Monitoring System (VMS) as a primary means of 
vessel monitoring for fisheries. The fifteen Task Force recommendations 
for combating IUU fishing and seafood fraud represent a broad set of 
tools and strategies for combating IUU fishing including international 
engagement, enforcement authorities, partnerships, and supply-chain 
transparency. Specifically, Recommendation 3 speaks to the enhancement 
of maritime domain awareness, a goal for which AIS may be, in certain 
circumstances, an effective tool.
    Recommendation 2 of the Task Force Action Plan focuses on efforts 
to advance the elimination of IUU fishing through Regional Fishery 
Management Organizations. Within those fora and others, the U.S. 
government has consistently advocated for use of unique, permanent 
identifiers in support of a global record. Included in the set of data 
elements to be reported at the time of entry for wild-capture fish and 
fish products is the ``unique vessel identifier(s)'' (if available). 
For larger scale vessels, this may be a number assigned by the 
International Maritime Organization, or an identifier assigned by a 
Regional Fishery Management Organization. Smaller scale vessels may be 
assigned registration numbers by national or regional governments.

Reporting and Recordkeeping

    Comment 23: Numerous commenters provided detailed feedback 
regarding the significant burden that the Program's data collection 
requirements would pose to small-scale fisheries. In addition to the 
substantial number of individual catches that could be contained in a 
single shipment of seafood, and the burden to industry that reporting 
each of those harvest events would represent, it was noted that small 
commercial fishing vessels in some developing countries are not 
required to have unique vessel identifiers, and in some cases unique 
identifiers for small vessels are required but not enforced. NMFS was 
also asked to consider the EU's approach to an aggregated

[[Page 88981]]

reporting for small-scale fisheries in an effort to reduce the burden 
to industry.
    Response: NMFS agrees that small-scale fisheries should be 
addressed. To this end, the final rule would exempt an importer from 
providing vessel- or aquaculture facility-specific information, if the 
importer provides other required data elements based on an aggregated 
harvest report. The rule defines aggregated harvest report as a record 
that covers: (1) Harvests at a single collection point in a single 
calendar day from small-scale vessels (i.e., twelve meters in length or 
less or 20 gross tons or less); (2) landing by a vessel to which 
catches of small-scale vessels were made at sea; or (3) deliveries made 
to a single collection point (processing facility, broker, or 
transport) on a single calendar day by aquaculture facilities that each 
deliver 1,000 kg or less in that day. Even if there is an Aggregated 
Harvest Report, the importer must still provide all of the information 
required under Sec.  300.324(b)(2)-(3), (e.g., total quantity and/or 
weight of the product(s) as landed/delivered, harvest or landing date, 
fishing area, species).
    This provision will substantially reduce the amount of data that is 
required to be provided by importers of record of seafood originating 
from small-boat fisheries. NMFS does not consider this provision to 
negatively impact the effectiveness of the Program. As explained above, 
in order to invoke the exemption, an importer must provide data based 
on an aggregated harvest report. That report will record information on 
aggregated harvests or landings and establish the point to which a 
trace back would occur. This will enable NMFS to ascertain the 
jurisdiction/authority whose laws and regulations are relevant to the 
harvests or landings. NMFS notes that, in its catch certification 
program design, the European Union established similar provisions to 
address concerns related to small vessels.
    Comment 24: Two commenters noted that the 5-year recordkeeping 
requirement could be burdensome to industry.
    Response: In many federally-managed fisheries, recordkeeping is 
required for 2 years, and that time frame has proven to be effective 
for enforcement purposes. In the final rule, NMFS has reduced the 
record retention period from 5 to 2 years and has accounted for the 
costs associated with data storage in the final regulatory flexibility 
analysis. However, importers must take note that CBP recordkeeping 
requirements may differ from NMFS requirements, depending on the 
commodity and the circumstances of entry filing.
    Comment 25: A number of comments from foreign industry sectors and 
governments requested decreased reporting or recordkeeping requirements 
at the national level, similar to the individual national reporting 
forms for some countries under the EU catch documentation scheme.
    Response: NMFS will not offer nation-level treatment differences 
because, unlike the EU system which requires nation-level 
certification, the Program does not lend itself to nation-level 
treatment or considerations. Under the Program, accuracy in 
recordkeeping and reporting is the responsibility of the IFTP holder 
for seafood imports from any nation. The basic data about the harvest 
event are necessary to enable NMFS to ascertain the jurisdiction/
authority whose laws and regulations are relevant to harvests or 
landings.
    Comment 26: One commenter suggested that some or all of the harvest 
and landing data to be reported at the time of entry should be moved to 
the category of ``summary data'' that can be provided up to 10 days 
following the date of entry.
    Response: NMFS believes that delayed reporting of key harvest and 
landing data could undermine its ability to apply risk-based 
enforcement strategies to identify IUU-sourced and misrepresented 
seafood and prevent the entry of such seafood into U.S. commerce. While 
NMFS does not intend to ask that CBP hold all shipments until reported 
data are verified, it will make that request when intelligence or risk 
analysis indicates that the source of the entry should be scrutinized. 
The final rule therefore requires that all data be reported at the time 
of entry. NMFS will reconsider this comment in the context of the 
elements and design of a Commerce Trusted Trader Program. See response 
to Comment 34 for further information.
    Comment 27: NMFS received several comments regarding the logistical 
feasibility of tracking seafood from entry into U.S. commerce back to 
point of harvest or production, particularly in situations involving 
complex chains of custody and co-mingling of products from numerous 
harvest events, fishing areas, and processing facilities.
    Response: NMFS points out that complexity of the supply chain was 
one of the principles established to determine the list of priority 
species to which this rule will initially apply, and the reporting and 
recordkeeping requirements of the rule will enhance NMFS' ability to 
track product from point of harvest to entry into U.S. commerce.
    NMFS acknowledges that co-mingling of product is an established and 
essential practice within the seafood supply chain and does not 
consider the tracing of like products from each individual harvest 
event through one or more co-mingling processes to be logistically 
feasible or necessary for the success of the Program. Under this rule, 
in cases where product offered for entry is comprised of one or more 
events of co-mingling of fish (e.g., at the landing point, processor, 
re-processor, etc.), the importer of record would be required to 
provide data on all harvest events contributing to the product(s) 
offered for entry that are made from priority species subject to this 
rule. The rule does not require, however, that the importer provide 
data linking each unit (e.g., each fish, fillet, block, etc.) of the 
product(s) offered for entry to a specific harvest event. This will in 
some cases result in reported harvest records totaling more than the 
product weight of the shipment in question, but mass balance is not a 
criterion for admissibility. Reporting requirements under the Program 
will enable NMFS to ascertain, among other things, the jurisdiction/
authority whose laws and regulations are relevant to harvests or 
landings.
    Comment 28: NMFS received comment that the proposed requirement 
that importers of record retain chain of custody records for five years 
creates a significant burden that could be mitigated by allowing 
suppliers to retain records and provide them to importers as needed.
    Response: One of the Program's basic design objectives is that 
importers devote adequate attention to their supply chain so as to 
confirm that the fish and fish products that they are importing were 
legally harvested and are accurately represented. NMFS has therefore 
maintained a recordkeeping requirement in the final rule, and as noted 
in response to Comment 24, has reduced the requirement from 5 to 2 
years. For purposes of this record keeping, digital records are 
entirely acceptable.
    Comment 29: NMFS received comment stressing that the timeline for 
expanding the reporting requirements for inclusion of chain of custody 
information in the ITDS message set should be specified in the final 
rule.
    Response: The preamble to the proposed rule for the Program 
describes NMFS' intent to consider, during the first year of 
implementation of the Program, key chain of custody data elements to be 
reported rather than kept

[[Page 88982]]

as records as currently proposed. Modifying that requirement of the 
Program will require additional rulemaking.
    NMFS chose to not require the reporting of chain of custody 
information at this time for three primary reasons: (1) Introduction of 
data elements that are less similar to those message sets already 
developed for ITDS implementation of NMFS-administered catch 
documentation programs would very likely expand and prolong the ITDS 
programming requirements, resulting in implementation uncertainty; (2) 
were NMFS to require document images as a means to collect chain of 
custody data at the time of entry, it would have no way of manipulating 
and analyzing the data through automated processes as it can with data 
provided through the ITDS message sets; and (3) chain of custody events 
represent a broad and diverse universe of potential movements and 
transactions and cannot, without some analysis of baseline reports, 
establish standardized chain of custody data elements that will be 
useful for screening entries and informing risk-based enforcement.
    Following implementation of the Program, NMFS intends to evaluate 
chain of custody information as part of the post-entry auditing 
process. These evaluations will, over time, inform the Agency as to the 
types of chain of custody data that can feasibly be collected through 
the ITDS reporting process and the costs and benefits associated with 
requiring reporting of the additional data.

Harmonization/Intersection With Other Relevant Programs/Requirements

    Comment 30: NMFS received several comments asking that it consider 
potential interfaces of the Program and third-party traceability and 
certification entities. One commenter advised that NMFS take care in 
not expressing an implicit endorsement or requirement for use of, or 
participation in, any such third-party programs as a condition for 
compliance with the rule.
    Response: The Program neither prevents nor requires the use of 
third-party certification or traceability systems in support of 
compliance with its reporting and recordkeeping requirements. NMFS 
acknowledges that some third-party programs use data similar to that 
required by the Program. To the extent that third-party traceability 
systems or certification programs serve as conduits for data elements 
described in this rule, there is nothing prohibiting the importer of 
record or their authorized agent from utilizing those data, either 
manually or electronically, to meet the Program reporting requirements 
or from using those systems to meet Program recordkeeping requirements. 
The Program thus affords flexibility in terms of meeting reporting and 
recordkeeping requirements, but does not endorse, explicitly or 
implicitly any third party traceability systems. NMFS requested, and 
will consider, comments regarding the use of third-party certification 
and traceability systems in the context of the Commerce Trusted Trader 
Program. See response to Comment 34 for further information.
    Comment 31: NMFS received several comments that it should consider, 
recognize, or adopt the EU's Catch Documentation Program in the design 
of the U.S. Program.
    Response: The Task Force considered the European Union's Catch 
Documentation Program in developing its recommendation to establish a 
risk-based traceability program to allow fish and fish product to be 
tracked from point of harvest or production to entry into U.S. 
commerce. The United States recognizes and appreciates the European 
Union's leadership and innovation in establishing its program and fully 
supports its continued application. While fundamental structural 
differences exist between the European Union's program and both the 
domestic and import components of the United States' seafood 
traceability program, the types of information and actual data elements 
with respect to harvest and landing information are highly comparable. 
Furthermore, NMFS looked to the European Union's example in addressing 
operational challenges for small-boat fleets and structured the small 
boat provision in the Program to closely resemble that approach. 
Further consideration will be given to the European Union's Catch 
Documentation Program in the development of the Commerce Trusted Trader 
Program. See response to Comment 34 for further information.
    Comment 32: NMFS received numerous comments describing the 
importance of data standardization across other national and RFMO catch 
documentation and traceability programs and data interoperability in 
the design of the Program. Commenters also noted the importance of 
careful integration of the Program and the Tuna Tracking and 
Verification Program.
    Response: NMFS acknowledges the benefit of standardization and 
interoperability of data and has, in its design of the Program, 
attempted to balance those values against the specific strategic and 
operational objectives of the Program. For example, while the EU catch 
documentation program is essentially a ``government-to-government'' 
framework, the Program is designed to shift the responsibility for 
preventing the import of IUU-sourced and misrepresented seafood to the 
supply chain itself and stands as a ``government-to-business'' program. 
That said, the harvest and landing data elements captured by the two 
programs are quite similar. In order to minimize the burden of similar, 
but not identical data and reporting requirements, NMFS designed the 
Program for maximum flexibility in both the source and format of 
supporting documentation. Recognizing that harvest and landing data are 
reported and collected differently in various fisheries and regions of 
the United States, the Program is intended to accommodate the same 
diversity of approaches with respect to imported seafood.
    With respect to the Tuna Tracking and Verification Program (TTVP), 
NMFS agrees that the data elements and compliance requirements of the 
two programs should be as closely aligned as possible given their 
differences in underlying authorities and regulatory objectives. To 
that end, NMFS published an interim final rule intended to improve the 
regulatory framework within which the Dolphin Protection Consumer 
Information Act is implemented (81 FR 15444, March 23, 2016). Among 
other things, this rule would bring the chain of custody recordkeeping 
requirements for the TTVP in closer alignment with the requirements of 
the Program, as proposed. For HTS codes to which both the Program and 
the TTVP apply, ITDS programming will ensure that common data elements 
are reported no more than once.

Timeframe for Implementation

    Comment 33: Many commenters offered feedback on the implementation 
time frame for this rule. Some recommended a phased-in approach where 
mandatory reporting would be required earlier for some species than 
others. Suggested implementation periods ranged from six months to one 
year, with one commenter suggesting a 3-6 month period when industry 
could practice submission to the ACE portal. Some countries commented 
that additional capacity building and clear explanation of compliance 
guidelines will be necessary to meet a one year implementation time 
frame.
    Response: NMFS agrees with commenters' interests in allowing time 
for the Program to be implemented smoothly and without disruption to

[[Page 88983]]

trade. To allow for development of both the ACE software maintained by 
the Department of Homeland Security, CBP and the industry data 
submission software, testing data input into ACE, and international 
capacity building, the Program will be implemented (i.e., required 
permitting, reporting and recordkeeping will be mandatory) 
approximately twelve months following the publication of this rule, 
except for shrimp and abalone. NMFS believes that this implementation 
schedule will provide adequate time for foreign exporters to establish 
systems for conveying harvest, landing, and chain of custody 
information to the U.S. importers of record. The requirements for the 
U.S. importer to obtain the IFTP, to report harvest event data at entry 
filing, and to maintain supply chain records for auditing purposes, 
will be enforced beginning January 1, 2018 (except for shrimp and 
abalone). However, 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 evaluated 
the time interval from harvest date to entry date for several fish 
products currently subject to import monitoring programs (e.g., bluefin 
tuna, swordfish, toothfish) and determined that in most cases U.S. 
imports occur within a few months of the harvest event. Some products 
may be in the supply chain for longer periods due to processing, cold 
storage and shipping time. U.S. importers should work with their 
suppliers in advance of the compliance date of January 1, 2018 to 
ensure that the required information is available. NMFS will publish a 
document in the Federal Register to establish the effective date of the 
rule for shrimp and abalone products and, in establishing that date, 
due consideration will be given to the need for adequate advance 
notice. See response to Comment 7.
    Comment 34: One commenter noted that the timeline for 
implementation of the Program should not be established until the 
Commerce Trusted Trader Program is closer to implementation.
    Response: NMFS disagrees. The NOC Committee considers the 
development of a Commerce Trusted Trader Program to be a critical 
element in the long-term implementation and success of the Program. The 
Trusted Trader Program would allow NMFS and the trade to segment risk 
in supply chain management and allow for streamlined entry processing 
and reduced inspections for entities granted program status. NMFS 
announced a 60-day public comment period on the elements and design of 
a Commerce Trusted Trader Program on April 29, 2016 (81 FR 25646). That 
announcement identifies a variety of issues that will be considered in 
the development and implementation of a Commerce Trusted Trader 
Program. It also acknowledges that while NMFS will make every effort to 
implement the Commerce Trusted Trader Program simultaneously with the 
Program, rulemaking and implementation requirements remain uncertain, 
and those factors could preclude simultaneous implementation. NMFS 
sought comment on the potential impacts and benefits of having the 
Commerce Trusted Trader Program implemented some weeks or months 
following implementation of the Program and recommendations for design 
and implementation of the Commerce Trusted Trader Program as well as 
measures that can be taken to minimize the cost and burden of those 
impacts and maximize available benefits. As NMFS considers comments and 
initiates design of the Trusted Trader Program, the requirements for 
additional rulemaking will be determined and the time frame for 
implementation will be clarified.
    Comment 35: NMFS received comment that the timing of expansion of 
the seafood traceability program to all species should be prescribed in 
the final rule.
    Response: NMFS disagrees. The Administration has indicated and 
described in the Action Plan its goal to expand the Program to all 
seafood, after consideration of factors including authorities needed, 
stakeholder input, and cost-effectiveness, which includes a risk-based 
implementation. The need to evaluate operational successes and 
challenges before expanding the Program to more, or all, species was 
clearly recognized by the Task Force as evidenced by its recommendation 
that the National Ocean Council Committee on IUU fishing and Seafood 
Fraud publish a report in December of 2016 evaluating the Program as 
set out in this final rule, identifying hurdles and potential 
approaches for addressing those hurdles, costs and benefits of 
expanding the Program, and issues associated with sharing traceability 
information at the consumer level.
    Due to existing operational uncertainties regarding the 
implementation of this first phase of the Program such as the 
scheduling of, and time required for, the programming of the ITDS for 
data reporting by the importer of record, NMFS has established an 
implementation date for the Program of approximately 12 months 
following the publication of the final rule. For similar reasons, it 
would be inadvisable to project a schedule for expansion of the Program 
at this time. Furthermore, specifying the expansion of the Program to 
all species in this rulemaking would require that the supporting 
analyses (Regulatory Impact Review and Final Regulatory Flexibility 
Analysis) include in their scope reporting and recordkeeping for all 
seafood. NMFS does not consider those analyses to be feasible at this 
time and therefore cannot define a schedule for expansion for inclusion 
in this rule.

Outreach and Assistance to Industry

    Comment 36: Several national governments commented on the 
importance of outreach and capacity building to support implementation 
of, and compliance with, the Program implementing regulations.
    Response: NMFS recognizes the need for outreach and education in 
support of implementation of the Program and compliance with its 
requirements. NMFS noted in the proposed rule the intention to provide 
assistance to exporting nations to support compliance with the 
requirements of the program, including by providing assistance to 
strengthen fisheries governance structures and enforcement bodies to 
combat IUU fishing and seafood fraud and to establish systems to enable 
export shipments of fish and fish products to be traced back to the 
point of harvest. However, outreach will not be limited to 
international engagement. NMFS will work closely with the U.S. seafood 
trade sector as well to ensure awareness and understanding of the 
program requirements in support of importers' compliance with the rule. 
Additionally, NMFS intends to publish compliance guidance as well as a 
``plain language'' description of the final regulation.

Burden to Industry/Regulatory Impact/Alternatives

    Comment 37: A number of commenters requested additional detail on 
how the reported data will be used. Some comments called for the data 
to be used to support enforcement of other statutes (e.g., Lacey Act), 
others requested a more robust description of enforcement and auditing 
procedures.
    Response: Historically, much of the enforcement effort to address 
imports of illegally-harvested or misrepresented seafood has been 
reactive, working at the border posts and following suspected 
shipments. The intent of this rulemaking is to enhance the ability of 
NOAA and its law enforcement partners to detect misrepresented or 
illegally

[[Page 88984]]

harvested fish and fish product before it enters U.S. Commerce. The 
data and records required by this regulation will be used to screen 
products in an effort to detect and prevent illegally-harvested and 
misrepresented seafood from entering U.S. commerce.
    The National Marine Fisheries Service Seafood Inspection Program 
(SIP) inspects over two billion pounds of seafood per year for export 
and domestic consumption. About 20 percent of domestic consumption is 
examined by SIP. These examinations include checks for proper labeling, 
proper net weight and proper nomenclature. The NOAA Office of Law 
Enforcement also conducts inspections of imported fish and fish 
products. These inspections are conducted in collaboration with our 
federal and state law enforcement partners to ensure compliance with 
statutes administered by NOAA, such as the requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act and the Lacey 
Act. The new data and reporting requirements will further enhance the 
effectiveness of these inspections and provide information that will 
allow limited enforcement resources to be better targeted at fish and 
fish products suspected of being misrepresented or illegally harvested.
    NOAA has also actively increased collaboration on analysis of U.S. 
fisheries imports with other law enforcement agencies in an effort to 
detect and prevent illegally-harvested and misrepresented fish and fish 
products from entering the U.S. market. To this end, NOAA has entered 
into information sharing agreements with other law enforcement agencies 
and is also a partner government agency with CBP in the transition to 
electronic reporting of trade data through the ITDS, an initiative 
highlighted in the President's recent Executive Order on streamlining 
export/import processes.
    NOAA has also recently signed a memorandum of understanding with 
Customs and Border Protection to participate as a member agency of its 
Commercial Targeting and Analysis Center (CTAC). At the multiagency 
CTAC facility, members have direct access to a wide array of import 
processing and law enforcement systems, as well as other member 
agencies' data systems, to enable collaborative analysis, development 
and coordination of operational targeting of import shipments for a 
wide variety of regulatory and enforcement concerns. CTAC member 
agencies such as NOAA, FDA and CBP are increasing collaboration to 
target potential seafood fraud in an effort to develop intelligence 
driven targeting of high risk seafood product imports.
    These partnerships, combined with the additional information and 
records required by this rulemaking will significantly increase the 
likelihood of detecting illegal seafood products before admission into 
U.S. commerce, allow more effective use of limited law enforcement 
resources available to enforce the various federal statutes designed to 
prevent illegal importation of products into the United States, and 
reduce the need for random inspections which can slow the entry of 
legal products into the United States.
    Comment 38: NMFS received a number of comments requesting that it 
remove certain species, in particular Atlantic and Pacific cod, from 
the initial phase of the Seafood Import Monitoring Program based on a 
lack of documented foreign illegal fishing activity for the species in 
question.
    Response: Many factors were considered in determining the potential 
for a species to be susceptible to IUU fishing or seafood fraud, 
including known foreign or domestic unlawful harvest of the species, 
susceptibility to mislabeling or species substitution, and presence of 
international catch documentation schemes among others. While not 
widespread, there have been reports to NOAA of illegal fishing of both 
Atlantic and Pacific cod species. Additionally, there are reports of, 
and significant risk of, species substitution.
    We note that a preliminary review of 2015 data, for example, 
demonstrates that at least 94% of the cod imported by the United States 
is filleted and/or dried or otherwise processed. The majority of such 
processed product is imported under tariff codes which are not specific 
with regard to ocean area of origin (Atlantic, Pacific). Given the use 
of non-specific tariff codes, there is considerable potential for such 
generic and ready-to-use cod products to be described, for instance, 
``Atlantic cod fillets'', even if not of Atlantic origin--the sort of 
misrepresentation that would be precluded by requiring a report on the 
harvest event. It is also important to consider that processing into 
fillets is regarded under international customs convention and 
implementing national regulations as a ``substantial transformation'' 
of the underlying product, and therefore the product acquires a new 
country of origin with the result that the harvesting nation may no 
longer be apparent without specific data on the harvest event.
    Comment 39: A number of commenters provided input on liability for 
data accuracy. One commenter saw a lack of clarity in NMFS' definition 
of the `importer of record' and expressed that this person may not 
always be the best person to hold responsible for accuracy of the 
information submitted to ACE. One nation's comments indicated that it 
would be helpful for NMFS to clarify if there is any liability for 
nations/flag states under this rule.
    Response: Nations or flag states are not expected to certify the 
accuracy of data. Under the Program, responsibility for accurate 
reporting is borne by the IFTP holder, which NMFS has referred to as 
the importer of record as required to be designated on each entry filed 
with CBP. See response to Comment 49 for further information.
    Comment 40: The U.S. Small Business Administration Office of 
Advocacy (Advocacy) commented that NMFS did not adequately comply with 
requirements under the Regulatory Flexibility Act, and expressed 
concerns that NMFS did not adequately assess the burden on small 
businesses.
    Response: NMFS has made adjustments to the final rule that reduce 
the burden on industry without compromising the integrity of the 
Program. As discussed in the Initial Regulatory Flexibility Analysis 
(IRFA), all businesses directly affected by this rulemaking are 
considered small businesses. The Regulatory Flexibility Act (RFA) has 
two main requirements for an initial regulatory flexibility analysis 
(IRFA): (1) ``describe the impact'' the rule would have on small 
entities, and (2) discuss alternatives that ``minimize any significant 
economic impact . . . on small entities.'' NMFS did both with the 
information available at the time the proposed rule was published. To 
assess the impact on small entities, in the Regulatory Impact Review 
(RIR) and IRFA together, NMFS analyzed the costs associated with the 
proposed rule which included the precise amount of permit fees and an 
acknowledgement of incremental costs of reporting and recordkeeping. As 
much of the reporting is either already required or already otherwise 
undertaken by the impacted entities, NMFS could not definitively 
provide precise incremental costs and, instead, described the types of 
incremental costs that regulated entities would face. The RFA 
specifically acknowledges that costs often cannot be precisely 
quantified and, thus, allows that ``an agency may provide . . . more 
general descriptive statements if quantification is not practicable or 
reliable.'' 5 U.S.C. 607. NMFS sought comment on these incremental 
costs to allow small entities the chance to provide relevant 
quantifiable information. Granting small businesses a voice in the 
rulemaking

[[Page 88985]]

process is one of the main purposes of the RFA. See Regulatory 
Flexibility Act of 1980, Public Law 96-354 (2)(a)(8).
    The commenter incorrectly states that ``NMFS asserts that the only 
new cost will be the industry wide cost of $60,000 due to permitting 
fees.'' The proposed rule did not state that this would be the only 
cost--it simply stated that ``there will be approximately 2,000 new 
applications for the IFTP, with an estimated industry-wide increase in 
annual costs to importers of $60,000 in permit fees.'' NMFS then later 
states that ``[i]ncremental costs are likely to consist of developing 
interoperable systems . . .''. NMFS also discusses the issue of 
incremental costs in the IRFA summary in the proposed rule and section 
1.3.2 of the RIR.
    The commenter asserted that ``the IRFA does not have information 
about the costs of the reporting requirements''. However, NMFS states 
that there will not likely be significant additional costs because the 
industry is otherwise in compliance with the rule. The IRFA stated that 
``[d]ata sets to be submitted electronically . . . are, to some extent, 
either already collected by the trade in the course of supply chain 
management, already required to be collected and submitted . . ., or 
collected in support of third-party certification schemes voluntarily 
adopted by the trade.'' NMFS acknowledges that there will be 
incremental costs; it just could not quantify them.
    The commenter also stated that the number of required data points 
increases the economic burden on small entities and encouraged NMFS to 
reconsider whether all of the data points were necessary to collect 
from small entities. NMFS notes that the proposed rule explains why 
each data point is necessary to establish the chain of custody and an 
effective traceability scheme (81 FR 6210, February 5, 2016). In 
addition, the third alternative that was analyzed in the IRFA discussed 
a ``reduced data set'' and was not selected as the preferred 
alternative because it would not achieve the objectives of the rule.
    Comment 41: Advocacy also requested that NMFS consider ``less 
burdensome alternatives'' including the voluntary third party 
certification, Trusted Trader, and European Union catch certification 
programs and, if these three programs are not viable alternatives, 
explain why. Advocacy requested that NMFS analyze and take advantage of 
opportunities to harmonize the Program requirements with the existing 
EU catch certification scheme and third party certification to minimize 
the burden on industry.
    Response: The proposed rule noted that NMFS did not have sufficient 
information to analyze the extent to which voluntary third party 
certification, Trusted Trader, and European Union Catch Certification 
programs could minimize burden to industry and whether any of them 
could achieve the rule's statutory objectives, and specifically sought 
and received public comment on these programs. NMFS received and took 
into consideration public comment on these programs. Throughout the 
Response to Comments section of this final rule, NMFS has noted where 
changes have been made that minimize the burden on industry without 
compromising the integrity of the Program and those changes are also 
reflected in the regulatory text and in the Final Regulatory 
Flexibility Analysis accompanying this rule.
    Comment 42: NMFS received comments that the Program will impose 
substantial costs on the international seafood supply chain. Commenters 
challenged the cost estimated in the Draft Regulatory Impact Review and 
Initial Regulatory Flexibility Analysis, suggesting that the compliance 
burden for this rulemaking will often be incrementally higher due to 
multiple harvest events associated with an entry. Commenters also 
suggested that the total hourly cost to an importer for the labor 
required to enter traceability data through ITDS is $31.25 per hour. 
Commenters also identified additional costs not incorporated in the 
Draft Regulatory Impact Review and Initial Regulatory Flexibility 
Analysis, including the cost of paying harvesters and farmers for 
traceability data, the cost of auditing suppliers to insure that 
reported information is accurate and complete, and the cost of insuring 
themselves against the risk that imported information is erroneous, and 
the related risk of delayed entry of imported products. Comments 
suggest that enforcement of the regulations implementing the Program 
will cause exporters to choose alternative markets to the United 
States.
    Response: NMFS noted in the Draft Regulatory Impact Review and 
Initial Regulatory Flexibility Analysis the difficulty of estimating 
certain costs associated with compliance with the rule for a new 
program, and identified specific issues about which the public was 
encouraged to comment. NMFS is greatly appreciative of the thoughtful 
and detailed comments offered in this regard. Commenters affirmed that 
the operational attributes of some, if not all of the fisheries for 
species subject to the Program are such that entries of fish or fish 
products from those fisheries will represent, and require the reporting 
of data for, more than one harvest event. This was anticipated by NMFS 
and described in the proposed rule. In response to public comment, NMFS 
has made some revisions in the final rule. See response to Comment 43 
for information on the revisions.
    With regard to cost of labor to enter data, NMFS estimated that the 
average hourly total cost was $15.00 per hour in the Draft Regulatory 
Impact Review. In light of public comment, NMFS updated the hourly rate 
to $25.00 per hour in the Final Regulatory Impact Review and Final 
Regulatory Flexibility Analysis, based on the Bureau of Labor 
Statistics' estimate of total cost to the employer for office and 
administrative support services in the fourth quarter of 2015.
    Commenters apparently assume a linear relationship between the 
number of harvest events related to an import entry and the amount of 
time required to provide the traceability data. This would be the case 
if all data were manually entered. NMFS has consulted with software 
developers who are in the business of automating the ITDS data-input 
process for importers and customs brokers. As they point out, many of 
the data elements will be identical across numerous harvest events, and 
developers will likely identify ``loop-backs'' that preclude the need 
to repeatedly enter the same species, harvest area, address, etc. for a 
series of harvest events in the same fishery. As well, importers are 
likely to build databases from which previously reported information 
can be pulled and entered as appropriate. These efficiencies will 
create economies of scale such that the actual (average) time needed to 
complete the harvest information associated with an entry will decrease 
as the number of harvest events increases.
    NMFS does not agree that harvesters and farmers will be in a 
position to demand payment for traceability data, and commenters did 
not provide quantitative or qualitative information regarding the 
likelihood of such risks. There is no indication that the imposition of 
existing catch documentation systems (e.g., the EU system) resulted in 
measurable increases in the cost of seafood. The harvest event data 
required to be provided under the U.S. program aligns very closely with 
those data on the harvest event required in the European Union catch 
certification program. Providing this information to U.S. importers 
subject to the Program should be no more costly or burdensome.

[[Page 88986]]

    However, we recognize that some businesses and some countries do 
not currently export to the EU and, for these entities, providing 
harvest, landing, and chain of custody information to U.S. importers 
subject to this rule could result in new burdens for these exporters to 
supply priority species to the U.S. market. There are few affected 
countries not currently exporting the designated priority species to 
the E.U. market, suggesting compliance with the U.S. requirements would 
not pose an inordinate burden on U.S. importers or consumers given the 
relatively small volume of trade involved. We note, however, that 
individual businesses located within each country may have different 
levels of experience with exporting to the EU market. While this 
analysis assumes minimal incremental regulatory burden for businesses 
located in countries that ship to the EU, it is possible that some 
businesses within these countries will incur costs as a consequence of 
this rule, in particular the chain-of-custody recordkeeping in cases of 
complex supply chains, that may be either passed through to U.S. 
consumers or result in a decline in exports to the U.S. market. Both of 
these responses to the Program could affect prices in the U.S. market. 
However, evidence indicates that there were not significant effects on 
supply to the EU seafood market in response to the EU's IUU regulation.
    The rule does not require any formal audits by suppliers. Adoption 
of that practice by an importer would likely be informed by the 
importer's business model, relationship with suppliers, and perceived 
risk that the supplier might, whether intentional or not, provide 
incorrect traceability information to the importer.
    Commenters pointed to the cost of insurance indemnifying importers 
against the cost of civil penalties for failure to comply with the 
rule. NMFS is not familiar with such insurance but assumes that need 
for indemnification would also pertain to risks associated with 
existing other agency regulations on seafood safety and trade 
documentation.
    NMFS disagrees that implementation of the Program will result in 
exporters choosing alternative markets to the United States. Similar 
information requirements relative to harvesting authorizations and 
documentation of processing and transshipment were placed on fisheries 
exporting to the European Union through the implementation of its catch 
documentation program. No significant disruptions in European seafood 
markets were observed. The United States represents an equally 
attractive international market, access to which is well worth the 
effort of providing traceability data to exporters.
    Comment 43: One commenter developed three scenarios (mahi mahi, 
blue swimming crab, and Atlantic cod) for the purpose of demonstrating 
the number of harvest events that may be associated with an import 
entry of those species. The commenter stated that there is no evidence 
showing that the Program's data reporting requirements will lead to 
reduction of either IUU fishing or seafood mislabeling.
    Response: NMFS greatly appreciates the detailed information 
provided. On the basis of those comments as well as similar information 
from other commenters, NMFS revised the final rule to exempt an 
importer from having to provide vessel- or aquaculture facility-
specific information where certain criteria are met for small-scale 
vessels and aquaculture facilities, if the importer provides other 
information required under this rule from an aggregated harvest report. 
See response to Comment 23 for detailed explanation of the exemption.
    A detailed response to each scenario follows. While NMFS does not 
agree with a number of assumptions and methodologies applied in the 
comment, the commenter's overall approach to estimating potential 
harvest events is sound. Below, NMFS applies the commenter's overall 
estimation approach to the three scenarios adjusting the estimates to 
reflect the aforementioned provision for aggregating data from small-
scale fisheries. These alternative estimates are also provided in the 
Final Regulatory Impact Review and Final regulatory Flexibility 
Analysis.

Mahi-Mahi From Ecuador

    NMFS finds the general description of the fishery operations in the 
comment to be consistent with information provided in publicly 
available peer-reviewed literature. Based on fleet composition data 
with respect to small ``day-boats'' and mothership operations described 
in the same journal publication, NMFS believes that the new aggregated 
harvest report exemption will significantly reduce the number of 
harvest events potentially associated with any given entry of product 
from this fishery. Assuming that the average aggregated harvest amount 
was only 20,000 pounds (considering both shore-based aggregations not 
to exceed one day and trip-based aggregations by motherships), a 
thirty-five percent yield of processed product as described in the 
comments would result in one ``harvest event'' accounting for 7,350 
pounds of mahi-mahi portions. Following the commenter's methodology, 
which estimated that a full container of mahi-mahi is 44,000 pounds, 
there would only be six harvest events that must be reported on entry 
of that container into the United States.
    NMFS agrees that the relationship between yield of specific 
portions and products included in an entry may impact the actual number 
of harvest events associated with a shipment. That said, there are many 
additional variables that could incrementally increase or decrease that 
number of harvest events.

Blue Crab From Mexico

    As noted by the commenter, blue swimming crab is not included in 
the list of priority species and is therefore outside the scope of this 
rulemaking. NMFS appreciates these comments, and notes that the new 
aggregated harvest report exemption will significantly reduce the 
number of landing events that would need to be reported by the importer 
of record for species covered under the Program.

Atlantic Cod

    Of the major exporters of Atlantic cod products to the United 
States, Iceland is particularly transparent with respect to trade and 
fisheries statistics and will be referenced throughout this response 
due to the public availability of data from that nation. NMFS takes 
issue with several elements of the commenter's description of the 
Atlantic Cod fishery. Comments focused solely on minced block and 
treated that product as an exclusively secondary product, noting a 2.5 
percent recovery rate. While minced product may, as stated in the 
comments, represent 2.5 percent of the catch, that does not equate to 
using 2.5 percent of each fish out of each harvest event. To the extent 
that minced product is made from mis-cut fillets or as a primary form 
of production, recovery per fish could approach 30 percent (FAO lists 
the yield of skinless cod fillets as 36 percent).
    The exclusive focus on minced block product mischaracterizes the 
nature of U.S. imports of Atlantic cod. From 2013 through 2015, imports 
of product reported under the tariff schedule code for ``GROUNDFISH COD 
NSPF MINCED FROZEN >6.8KG'' made up, on average, 0.6 percent of total 
cod imports according to NMFS's seafood trade database. During the 
years 2010 through 2014, Iceland's export of minced cod block ranged 
from 147 metric tons to 214 metric tons, while its export of fresh and 
frozen fillet products to the U.S. ranged from 1,799 to 4,779 metric 
tons. While the use of secondary-product

[[Page 88987]]

minced cod block as described in the comments may be useful in making 
an extreme example, it would be inappropriate to extrapolate the 
results to the entirety of U.S. Atlantic cod imports.
    Comments characterize the average catch of small ``in shore'' boats 
to be about 400 pounds, or 180 kilograms per day. A review of cod 
landings by a variety of Icelandic harvesting vessels ranging from 
small inshore boats (<12 meters) to large trawlers in Iceland's web-
based catch reporting system (https://www.fiskistofa.is) indicates that 
180 kilogram landings are much more the exception than the rule. While 
examples of landings less than 1,000 kilograms can be identified, there 
are many more that can be found in the tens of thousands of kilograms.
    To the extent that small cod landings occur, small vessels are 
likely to be the source of those landings and the final rule exempts 
importers from providing vessel-specific information from small-scale 
vessels (i.e., twelve meters in length or less or 20 gross tons or 
less), if the importer provides other information required under the 
rule based on an aggregated harvest report. See response to Comment 23 
for further detail on the exemption. Under this exemption, the importer 
of record would be responsible for reporting fewer harvest events at 
the time of entry into U.S. commerce.
    When considering the more common-sized cod landings in Iceland 
using a conservative example of 25,000 kilograms per landing, a much 
more probable scenario for reporting requirements emerges. Assuming a 
35% yield of processed product for cod fillets, a 50,000 pound 
container requires 142,900 pounds of round cod, (68,836 kilograms), 
which results in an estimated minimum of three harvest events that an 
importer would be required to report upon entry of the container into 
U.S. commerce.
    NMFS points to the recommendations of the Task Force to address the 
concern that NMFS has not demonstrated that the Program will lead to a 
decrease in IUU fishing and seafood fraud. Supply chain traceability is 
one of four thematic approaches identified by the Task Force. Others 
include international engagement, enforcement capabilities, and 
partnerships. NMFS considers the sum of the entire suite of 
recommendations to be an integrated and effective framework for 
combating IUU fishing and seafood fraud. Additionally, the Program's 
recordkeeping and reporting requirements are very closely aligned with 
those used in other catch documentation schemes which share the 
objective of preventing the entry of illegally harvested and 
misrepresented fish and fish products into commerce and reflect many of 
the best practices associated with seafood traceability.
    Comment 44: Commenters asserted that NMFS failed to consider costs 
of audits of the information received from overseas suppliers, training 
costs, the longer lead time, or additional insurance for inaccurate 
uploads in development of the IRFA.
    Response: NMFS appreciates comments on the cost evaluation 
presented in the Initial Regulatory Flexibility Analysis (IRFA) 
accompanying this rule. While NMFS disagrees with the comments on the 
actual cost of these variables, NMFS has taken all comments into 
consideration and included new cost estimates in the Final Regulatory 
Flexibility Analysis.
    Comment 45: Two commenters expressed concern that reported 
information could contain trade secrets that would pose significant 
business impacts if disclosed to competitors.
    Response: NMFS believes industry has or can employ measures to 
support this transfer of information securely to the IFTP holder. As 
explained in the proposed rule, data security will be given the highest 
priority. Information collected via ACE and maintained in CBP systems 
is highly sensitive commercial, financial and proprietary information, 
generally exempt from disclosure pursuant to the Freedom of Information 
Act (5 U.S.C. 552(b)(4)) and prohibited from disclosure by the Trade 
Secrets Act (18 U.S.C. 1905). Further, information required to be 
submitted under the MSA is subject to confidentiality of information 
requirements at 16 U.S.C. 1881a(b).
    Comment 46: A commenter requested clarification on what constitutes 
a ``harvest event'' in the case of multi-day trips on large catcher 
vessels or catcher processors. The commenter pointed out that a 
``harvest event'' could be applied to each set or tow, each day, or to 
the entire fishing trip in the aggregate.
    Response: In response to that comment, NMFS has added a definition 
of ``harvest event'' in Sec.  300.321. For trips occurring in more than 
one harvest area, catch from each harvest area during the trip will be 
considered a separate harvest event. As discussed in response to 
Comment 23 and other comments, the final rule includes an exemption 
related to an aggregated harvest report.
    Comment 47: NMFS received comments expressing concern regarding the 
likely frequency of product inspection and post-entry audits and 
verification of traceability information provided in accordance with 
this rule. One commenter noted that inspections and real-time 
verification of data provided at the time of entry may slow the flow of 
seafood imports into the United States, having an especially 
detrimental effect on shippers of fresh (unfrozen) product.
    Response: NMFS agrees that frequent or lengthy delays of imported 
seafood import entries at the U.S. border may be costly to industry. 
NMFS intends to focus the use of its authority to request holds on 
incoming shipments primarily when risk indicators or specific 
intelligence indicate reason to do so. Post-entry audit and 
verification will be more frequent, but those activities will not 
impact the flow of trade or speed of entry, provided that all necessary 
data are provided at the time of entry.
    Comment 48: Several commenters expressed concern over NMFS's 
definition of ``importer of record'' in the proposed rule, stating that 
import entry functions and product ownership is handled in a variety of 
ways across importing companies and in some cases, the proposed 
definition may not fit the business model.
    Response: NMFS believes the Program has been designed to 
accommodate all of the scenarios described in the comment provided the 
entity in question is located in the U.S. The determination of who 
should act as the importer of record is a private, business decision 
between the parties involved in the importation process. The importer 
of record is the entity required to be designated on the entry filing 
and this rule requires that the entity so designated is issued an IFTP. 
That permit number must be reported to make the entry. In some 
instances, there may be more than one entity involved in a transaction 
that holds an IFTP. In that instance, it is again up to the parties 
involved in the transaction to determine whose permit will be used for 
the entry and who will therefore be designated as the importer of 
record on the filing with CBP.
    Comment 49: One commenter noted that seafood importers do not have 
the ability to ground-truth claims by exporters that the product is 
from legitimate fishing operations.
    Response: NMFS disagrees. Per the Magnuson-Stevens Act authority by 
which this rule is promulgated, it is illegal to import any fish taken, 
possessed, transported, or sold in violation of any foreign law or 
regulation. Therefore, NMFS considers it to be the responsibility of 
seafood importers to determine the source of the product entering the 
U.S. market, and it

[[Page 88988]]

is one of the reasons that the National Ocean Council Committee 
determined that a ``government-to-business'' model would be most 
effective in ensuring that the U.S. seafood supply chain is closed to 
IUU and misrepresented fish and fish products.

Changes From the Proposed Rule

    In response to comments received on the proposed rule, NMFS has 
made a number of changes in the final rule. In addition, certain other 
changes in the regulatory text are necessary because final rules, 
promulgated after the proposed rule for the Seafood Traceability 
Program was published, amended regulatory text that is also amended by 
this rule.

Redesignation of 50 CFR Part 300 Subpart Q

    In publishing the proposed rule for integration of NMFS current 
trade monitoring programs within the ITDS (see 80 FR 81251, December 
29, 2015), NMFS incorrectly numbered the sections of the proposed new 
subpart R to 50 CFR part 300 such that the section numbers were out of 
sequence with existing subpart Q. Consequently, the final rule for ITDS 
integration (81 FR 51126, August 3, 2016) redesignated existing subpart 
Q as new subpart R and inserted a new subpart Q for the ITDS 
regulations with sections numbered in the correct order. Because the 
proposed rule for the Seafood Traceability Program (81 FR 6210, 
February 5, 2016) would have further revised regulatory text in the 
proposed subpart R to 50 CFR part 300, this final rule amends 
regulations that now exist in subpart Q.

Electronic System for Atlantic Bluefin Tuna

    In a final rule published April 1, 2016 (81 FR 18796), NMFS amended 
the regulatory text at 50 CFR 300.181 through 300.189 to reflect the 
implementation of the electronic bluefin tuna catch document program of 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT). As a contracting party to ICCAT, the United States has 
implemented the electronic bluefin tuna catch document program and has 
established simplified entry and export reporting requirements for 
bluefin tuna accordingly. The simplified ACE reporting requirements for 
bluefin tuna catches recorded in the ICCAT system are sufficient to 
meet the requirements of the Program established under this rule. 
Therefore, this rule does not amend those reporting requirements.

Aggregated Harvest Report Exemption

    This final rule has been revised to exempt an importer of record 
from providing vessel-, farm-, or aquaculture facility-specific 
information under Sec.  300.324(b)(1), if the importer provides other 
required information from an Aggregated Harvest Report. Even if there 
is an Aggregated Harvest Report, the importer is still required to 
provide harvest information under Sec.  300.324(b)(2)-(3).
    Following an approach similar to that of the EU's CDS regarding 
small-scale vessels, the final rule at Sec.  300.321 defines Aggregated 
Harvest Report to mean a record made at a single collection point on a 
single calendar day for aggregated catches by multiple small-scale 
fishing vessels (20 measured gross tons or less or 12 meters length 
overall or less) offloaded at that collection point on that day, or for 
a landing by a vessel to which the catches of one or more small-scale 
vessels were transferred at sea. A report would include non-vessel 
specific harvest event information in aggregate for all fish from 
small-scale vessels received by an entity (e.g., fish receiver) 
operating at a collection point on a single calendar day. As there may 
be multiple receivers at a landing point, each fish receiver would 
generate one or more harvest event reports for their respective 
aggregate receipts on each day.
    Aggregated Harvest Report is also defined at Sec.  300.321 to mean 
a record made at a single collection point or processing facility on a 
single calendar day for aggregated deliveries from multiple small-scale 
aquaculture facilities, where each aquaculture facility delivers 1,000 
kg or less to that collection point or processing facility on that day. 
The entity operating at the collection point or processing facility may 
record the harvest event information in aggregate for all receipts by 
that entity or processing facility on that day. As there may be 
multiple receivers at an intermediate collection point prior to 
delivery to a processor, each receiver would generate a daily harvest 
event report for its respective aggregate receipts.

Implementation of Mandatory Reporting and Recordkeeping

    This rule establishes a compliance date of January 1, 2018, except 
for shrimp and abalone for which the effective date is stayed pending 
further action by NMFS. The requirements for permitting, ACE reporting 
and recordkeeping will be enforced beginning on that date, though 
permits would be available for issuance and ACE reporting would be 
available for testing prior to that date. NMFS will publish a notice in 
the Federal Register when ACE programming has been completed to allow 
testing of the entry reporting. For products harvested prior to the 
compliance date, U.S. importers should work with their foreign 
suppliers to ensure that the harvest event and supply chain records are 
available for any entries made on or after January 1, 2018.

Electronic Filing Instructions

    The proposed rule explained that the format for data elements 
required under this rule would be specified in the following documents: 
Customs and Trade Automated Interface Requirements--Appendix PGA, 
Customs and Trade Automated Interface Requirements--PGA Message Set, 
and Automated Broker Interface (ABI) Requirements--Implementation Guide 
for NMFS. For ease of reference, NMFS has added at Sec.  300.323 
references to where import and export electronic filing instructions 
can be found on the internet.

Information on Fish Species, Product Description and Quantity and/or 
Weight

    Proposed Sec.  300.324(b)(2) required that importers provide 
information on fish species using the scientific name, acceptable 
market name, and Aquatic Sciences Fishery Information System (ASFIS) 
number. In response to comment, the final rule requires reporting of 
only the ASFIS 3-alpha code and provides a reference to where the codes 
may be found on the internet. A list of ASFIS 3-Alpha codes as 
associated with HTS codes is provided in the NMFS Implementation Guide 
posted by CBP at https://www.cbp.gov/trade/ace/catair.
    Proposed Sec.  300.324(b)(2) required a ``product description'' 
data element referring to the product form as it exists at the time it 
is offered for entry. After reconsidering other data reported at entry 
and public comments, NMFS has deleted ``product description'' from the 
final rule, as this information is reported on transportation manifests 
and to FDA in prior notice reports as well as part of the entry summary 
reported to CBP. As in the proposed rule, NMFS will still require 
information on product form as landed (e.g., whole, headed/gutted). 
Such information is necessary to interpret the landed weight and ensure 
that IUU product is not associated with that harvest event if inserted 
later in the supply chain. If there is an Aggregated Harvest Report, 
NMFS has added in Sec.  300.324(b)(2) that the importer may provide the 
total quantity and/or weight

[[Page 88989]]

of the product(s) as landed/delivered on the date of the report.

Format for Data Elements: Area of Wild Capture and Fishing Gear

    Proposed Sec.  300.324(b)(1) and (3) required information on area 
of wild capture and type of fishing gear used to harvest fish. NMFS has 
not changed this text in the final rule, but as explained in response 
to Comments 19 and 21, will provide further information on the format 
for these data elements in the NMFS Implementation Guide.

Segregation of Individual Harvest Events

    The final rule defines a harvest event for the purposes of 
reporting landings or deliveries, and allows for reporting in the 
aggregate for small-scale vessels and aquaculture facilities. As 
explained above, the rule does not require that inbound shipments 
segregate imported product by each harvesting event. NMFS has clarified 
in Sec.  300.324(b)(3) that a product offered for entry may be 
comprised of products from more than one harvest event and each harvest 
event must be documented. However, specific links between portions of 
the shipment and particular harvest events are not required.

Record Retention Period

    The record retention period for supply chain information required 
by NMFS is reduced from the proposed five years to two years from the 
date of import for entries subject to the recordkeeping requirements of 
this rule.

Requirements for Shrimp and Abalone

    As described in the preamble to the proposed rule, gaps exist in 
the collection of traceability information for domestic aquaculture-
raised shrimp and abalone, which is currently largely regulated at the 
state level. (See 81 FR 6212, February 5, 2016). Since publication of 
the proposed rule, NMFS has explored the opportunity to work with its 
state partners to establish reporting and recordkeeping requirements 
for aquaculture traceability information that could be shared with 
NMFS. However, this did not prove to be a viable approach at the 
present time. NMFS is thus staying the effective date of the rule for 
shrimp and abalone until appropriate reporting and/or recordkeeping 
requirements for domestic aquaculture production can be established. To 
that end, NMFS is continuing to work with its Presidential Task Force 
partner agencies with respect to measures that could be adopted to 
close the gaps and to ensure comparability between traceability 
requirements and NMFS' access to traceability information for imported 
and domestic shrimp and abalone.
    For example, FDA, whose parent agency Health & Human Services is 
also a member of the Presidential Task Force, is currently exploring 
which of its authorities could fill the gap, including regulations that 
would require designating high risk foods for certain additional 
recordkeeping by food processors under the authority of section 204 of 
the Food Safety Modernization Act, which addresses enhanced tracking 
and tracing of food through recordkeeping and was passed by Congress in 
2011. See, e.g., Designation of High-Risk Foods for Tracing; Request 
for Comments and Scientific Data and Information (79 FR 6596, Feb. 4, 
2014). Such additional recordkeeping requirements to enhance food 
safety are expected to facilitate FDA's ability to track the origin of 
and prevent the spread of foodborne illness. FDA is also planning to 
make revisions to its Seafood Hazard Analysis and Critical Control 
Points (Seafood HACCP) provisions.
    This final rule changes the proposed rule by staying the effective 
date of the program requirements to imported shrimp and abalone, 
originating from both wild capture fisheries and aquaculture 
operations. In addition, the final rule clarifies that for shrimp and 
abalone, the program consists of two components, reporting of harvest 
events at the time of entry and permitting and recordkeeping 
requirements with respect to both harvest events and chain of custody 
information. (For covered species or species groups other than shrimp 
and abalone, the program similarly consists of two components, 
reporting of harvest events and permitting and recordkeeping 
requirements with respect to both harvest events and chain of custody 
information.)
    NMFS will lift the stay of the effective date as to the reporting 
and/or recordkeeping components of the program once commensurate 
reporting and/or recordkeeping requirements have been established for 
domestic aquaculture-raised shrimp and abalone and will determine and 
announce an effective date for the rule as to these species. 
Application of the program's reporting and/or recordkeeping 
requirements to shrimp and abalone will enable audits of imports to be 
conducted to determine the origin of the products and confirm that they 
were lawfully acquired.

Summary of Requirements

    Under this rule, importers are subject to permitting, reporting and 
recording keeping requirements applicable to imports of the designated 
priority species and species groups. The HTS codes applicable to the 
products subject to the requirements of this rule may be revised from 
time to time by the International Trade Commission. Any such changes 
will be reflected in the NMFS Implementation Guides for ACE that are 
posted to the internet by CBP. At the time of issuing this final rule, 
entries of the fish and fish products filed under the following HTS 
codes are subject to the permitting and recordkeeping requirements of 
this rule and are designated in ACE as requiring the additional NMFS 
data set in order to obtain release of the inbound shipment:

------------------------------------------------------------------------
             HTS code                       Commodity description
------------------------------------------------------------------------
0301940100........................  TUNA BLUEFIN ATLANTIC, PACIFIC LIVE.
0301950000........................  TUNA BLUEFIN SOUTHERN LIVE.
0302310000........................  TUNA ALBACORE FRESH.
0302320000........................  TUNA YELLOWFIN FRESH.
0302330000........................  TUNA SKIPJACK FRESH.
0302340000........................  TUNA BIGEYE FRESH.
0302350100........................  TUNA BLUEFIN ATLANTIC, PACIFIC
                                     FRESH.
0302360000........................  TUNA BLUEFIN SOUTHERN FRESH.
0302470010........................  SWORDFISH STEAKS FRESH.
0302470090........................  SWORDFISH FRESH.
0302510010........................  GROUNDFISH COD ATLANTIC FRESH.
0302510090........................  GROUNDFISH COD NSPF FRESH.
0302810010........................  SHARK DOGFISH FRESH.
0302810090........................  SHARK NSPF FRESH.

[[Page 88990]]

 
0302895058........................  SNAPPER (LUTJANIDAE SPP.) FRESH.
0302895061........................  GROUPER FRESH.
0302895072........................  DOLPHIN FISH FRESH.
0303410000........................  TUNA ALBACORE FROZEN.
0303420020........................  TUNA YELLOWFIN WHOLE FROZEN.
0303420040........................  TUNA YELLOWFIN EVISCERATED HEAD-ON
                                     FROZEN.
0303420060........................  TUNA YELLOWFIN EVISCERATED HEAD-OFF
                                     FROZEN.
0303430000........................  TUNA SKIPJACK FROZEN.
0303440000........................  TUNA BIGEYE FROZEN.
0303450110........................  TUNA BLUEFIN ATLANTIC FROZEN.
0303450150........................  TUNA BLUEFIN PACIFIC FROZEN.
0303460000........................  TUNA BLUEFIN SOUTHERN FROZEN.
0303490200........................  TUNA NSPF FROZEN.
0303570010........................  SWORDFISH STEAKS FROZEN.
0303570090........................  SWORDFISH FROZEN.
0303630010........................  GROUNDFISH COD ATLANTIC FROZEN.
0303630090........................  GROUNDFISH COD NSPF FROZEN.
0303810010........................  SHARK DOGFISH FROZEN.
0303810090........................  SHARK NSPF FROZEN.
0303890067........................  SNAPPER (LUTJANIDAE SPP.) FROZEN.
0303890070........................  GROUPER FROZEN.
0304440010........................  GROUNDFISH COD ATLANTIC FILLET
                                     FRESH.
0304440015........................  GROUNDFISH COD NSPF FILLET FRESH.
0304450000........................  SWORDFISH FILLET FRESH.
0304530010........................  GROUNDFISH COD ATLANTIC MEAT FRESH.
0304530010........................  GROUNDFISH COD ATLANTIC MEAT FRESH.
0304530015........................  GROUNDFISH COD NSPF MEAT FRESH.
0304530015........................  GROUNDFISH COD NSPF MEAT FRESH.
0304540000........................  SWORDFISH MEAT FRESH.
0304711000........................  GROUNDFISH COD NSPF FILLET BLOCKS
                                     FROZEN >4.5KG.
0304711000........................  GROUNDFISH COD NSPF FILLET BLOCKS
                                     FROZEN >4.5KG.
0304715000........................  GROUNDFISH COD NSPF FILLET FROZEN.
0304715000........................  GROUNDFISH COD NSPF FILLET FROZEN.
0304870000........................  TUNA NSPF FILLET FROZEN.
0304895055........................  DOLPHINFISH FILLET FROZEN.
0304895055........................  DOLPHINFISH FILLET FROZEN.
0304911000........................  SWORDFISH MEAT FROZEN >6.8KG.
0304919000........................  SWORDFISH MEAT FROZEN NOT >6.8KG.
0304951010........................  GROUNDFISH COD NSPF MINCED FROZEN
                                     >6.8KG.
0304951010........................  GROUNDFISH COD NSPF MINCED FROZEN
                                     >6.8KG.
0304991190........................  TUNA NSPF MEAT FROZEN >6.8KG.
0305320010........................  GROUNDFISH COD NSPF FILLET DRIED/
                                     SALTED/BRINE.
0305494020........................  GROUNDFISH COD, CUSK, HADDOCK, HAKE,
                                     POLLOCK SMOKED.
0305510000........................  GROUNDFISH COD NSPF DRIED.
0305620010........................  GROUNDFISH COD NSPF SALTED MOISTURE
                                     CONTENT >50%.
0305620025........................  GROUNDFISH COD NSPF SALTED MOISTURE
                                     CONTENT BET 45-50%.
0305620030........................  GROUNDFISH COD NSPF SALTED MOISTURE
                                     CONTENT BET 43-45%.
0305620045........................  GROUNDFISH COD NSPF SALTED MOISTURE
                                     CONTENT NOT >43%.
0305620050........................  GROUNDFISH COD NSPF FILLET SALTED
                                     MOISTURE >50%.
0305620060........................  GROUNDFISH COD NSPF FILLET SALTED
                                     MOISTURE CONTENT 45-50%.
0305620070........................  GROUNDFISH COD NSPF FILLET SALTED
                                     MOISTURE CONTENT 43-45%.
0305620080........................  GROUNDFISH COD NSPF FILLET SALTED
                                     MOISTURE NOT >43%.
0305710000........................  SHARK FINS.
0306142000........................  CRABMEAT NSPF FROZEN.
0306144010........................  CRAB KING FROZEN.
0306144090........................  CRAB NSPF FROZEN.
0308110000........................  SEA CUCUMBERS LIVE/FRESH.
0308190000........................  SEA CUCUMBERS FROZEN/DRIED/SALTED/
                                     BRINE.
1604141010........................  TUNA NSPF IN ATC (FOIL OR FLEXIBLE)
                                     IN OIL.
1604141091........................  TUNA ALBACORE IN ATC (OTHER) IN OIL.
1604141099........................  TUNA NSPF IN ATC (OTHER) IN OIL.
1604142251........................  TUNA ALBACORE IN ATC (FOIL OR
                                     FLEXIBLE) NOT IN OIL IN QUOTA.
1604142259........................  TUNA ALBACORE IN ATC (OTHER) NOT IN
                                     OIL IN QUOTA.
1604142291........................  TUNA NSPF IN ATC (FOIL OR FLEXIBLE)
                                     NOT IN OIL IN QUOTA.
1604142299........................  TUNA NSPF IN ATC (OTHER) NOT IN OIL
                                     IN QUOTA.
1604143051........................  TUNA ALBACORE IN ATC (FOIL/FLEXIBLE)
                                     NOT IN OIL OVER QUOTA.
1604143059........................  TUNA ALBACORE IN ATC (OTHER) NOT IN
                                     OIL OVER QUOTA.
1604143091........................  TUNA NSPF IN ATC (FOIL OR FLEXIBLE)
                                     NOT IN OIL OVER QUOTA.
1604143099........................  TUNA NSPF IN ATC (OTHER) NOT IN OIL
                                     OVER QUOTA.
1604144000........................  TUNA NSPF NOT IN ATC NOT IN OIL
                                     >6.8KG.
1604145000........................  TUNA NSPF NOT IN ATC NOT IN OIL NOT
                                     >6.8KG.
1605100510........................  CRAB PRODUCTS PREPARED DINNERS IN
                                     ATC.
1605100590........................  CRAB PRODUCTS PREPARED DINNERS NOT
                                     IN ATC.
1605102010........................  CRABMEAT KING IN ATC.

[[Page 88991]]

 
1605102051........................  CRABMEAT SWIMMING (CALLINECTES) IN
                                     ATC.
1605104002........................  CRABMEAT KING FROZEN.
1605104025........................  CRABMEAT SWIMMING (CALLINECTES)
                                     FROZEN.
1605104025........................  CRABMEAT SWIMMING (CALLINECTES)
                                     FROZEN.
------------------------------------------------------------------------

    Application of this rule to entries of fish and fish products filed 
under the following HTS codes is stayed pending publication of an 
action in the Federal Register lifting the stay and announcing an 
effective date for shrimp and abalone. After the effective date, these 
HTS codes will be designated in ACE as requiring a NMFS data set in 
order to obtain release of the inbound shipment:

------------------------------------------------------------------------
             HTS code                       Commodity description
------------------------------------------------------------------------
0306160003........................  SHRIMP COLD-WATER SHELL-ON FROZEN
                                     <15.
0306160006........................  SHRIMP COLD-WATER SHELL-ON FROZEN 15/
                                     20.
0306160009........................  SHRIMP COLD-WATER SHELL-ON FROZEN 21/
                                     25.
0306160012........................  SHRIMP COLD-WATER SHELL-ON FROZEN 26/
                                     30.
0306160015........................  SHRIMP COLD-WATER SHELL-ON FROZEN 31/
                                     40.
0306160018........................  SHRIMP COLD-WATER SHELL-ON FROZEN 41/
                                     50.
0306160021........................  SHRIMP COLD-WATER SHELL-ON FROZEN 51/
                                     60.
0306160024........................  SHRIMP COLD-WATER SHELL-ON FROZEN 61/
                                     70.
0306160027........................  SHRIMP COLD-WATER SHELL-ON FROZEN
                                     >70.
0306160040........................  SHRIMP COLD-WATER PEELED FROZEN.
0306170003........................  SHRIMP WARM-WATER SHELL-ON FROZEN
                                     <15.
0306170006........................  SHRIMP WARM-WATER SHELL-ON FROZEN 15/
                                     20.
0306170009........................  SHRIMP WARM-WATER SHELL-ON FROZEN 21/
                                     25.
0306170012........................  SHRIMP WARM-WATER SHELL-ON FROZEN 26/
                                     30.
0306170015........................  SHRIMP WARM-WATER SHELL-ON FROZEN 31/
                                     40.
0306170018........................  SHRIMP WARM-WATER SHELL-ON FROZEN 41/
                                     50.
0306170021........................  SHRIMP WARM-WATER SHELL-ON FROZEN 51/
                                     60.
0306170024........................  SHRIMP WARM-WATER SHELL-ON FROZEN 61/
                                     70.
0306170027........................  SHRIMP WARM-WATER SHELL-ON FROZEN
                                     >70.
0306170040........................  SHRIMP WARM-WATER PEELED FROZEN.
0306260020........................  SHRIMP COLD-WATER SHELL-ON FRESH/
                                     DRIED/SALTED/BRINE.
0306260040........................  SHRIMP COLD-WATER PEELED FRESH/DRIED/
                                     SALTED/BRINE.
0306270020........................  SHRIMP WARM-WATER SHELL-ON FRESH/
                                     DRIED/SALTED/BRINE.
0306270040........................  SHRIMP WARM-WATER PEELED FRESH/DRIED/
                                     SALTED/BRINE.
1605211000........................  SHRIMPS AND PRAWNS, NOT IN AIRTIGHT
                                     CONTAINERS.
1605291000........................  SHRIMPS AND PRAWNS, OTHER.
1605570500........................  ABALONE PRODUCTS PREPARED DINNERS.
1605576000........................  ABALONE PREPARED/PRESERVED.
------------------------------------------------------------------------

    When the above listed HTS codes are listed in entry filings, the 
ASFIS 3-alpha code indicating the scientific name will be required to 
discern whether the shipment offered for entry is subject to additional 
data collection under the Program. Highly processed fish products (fish 
oil, slurry, sauces, sticks, balls, cakes, puddings, and other similar 
highly processed fish products) for which the species of fish 
comprising the product or the harvesting event(s) or aquaculture 
operation(s) of the product cannot be feasibly identified are not 
subject to the requirements of this rule. Therefore, HTS codes for such 
fish and fish products have not been included in the lists above. 
However, importers are advised to determine if other NMFS program 
requirements (e.g., TTVP) or other agency requirements (e.g., Fish and 
Wildlife Service, State Department, Food and Drug Administration) have 
ACE data reporting requirements applicable to HTS codes used for entry 
filing, whether or not those codes have been identified for the Seafood 
Traceability Program.

Data for Reporting and Recordkeeping

    The NMFS data to be reported at entry would be in addition to the 
information required by CBP as part of normal entry processing via the 
ACE portal. After consideration of comments as outlined above, this 
rule requires that, at the time of entry for species covered by this 
rule, importers of record would be required to report the following 
information for each entry (unless the Aggregated Harvest Report 
exemption under Sec.  300.324(b)(1) is applicable) in addition to any 
other information that CBP and other agencies, including NMFS, 
currently require:
     Information on the entity(ies) harvesting or producing the 
fish (as applicable): 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, 
including: Species of fish (ASFIS code); Product form (whole, gilled 
and gutted, etc.) at point of first landing; Quantity and/or weight of 
the product(s) as landed/delivered.
     Information on where and when the fish were harvested and 
landed: Area(s) of wild-capture or aquaculture harvest; Location(s) of 
aquaculture facility; Point of first landing; Date of first landing or 
removal from aquaculture facility; Name of entity(ies) (processor, 
dealer, vessel) to which fish was landed.
     The NMFS IFTP number issued to the importer of record for 
the entry.
    Additional information on each point in the chain of custody 
regarding the shipment of the fish or fish product to point of entry 
into U.S. commerce is established as a recordkeeping requirement on the 
part of the importer of record to ensure that information is

[[Page 88992]]

readily available to NMFS to allow it to trace the fish or fish product 
from the point of entry into U.S. commerce back to the point of harvest 
or production to verify the information that is reported upon entry. 
Such information could include records regarding each custodian of the 
fish and fish product, including, as applicable, transshippers, 
processors, storage facilities, and distributors. The information 
contained in the records must be provided to NMFS upon request and be 
sufficient for NMFS to conduct a trace back to verify the veracity of 
the information that is reported on entry. NMFS expects that typical 
supply chain records that are kept in the normal course of businesses, 
including declarations by harvesting/carrier vessels, bills of lading 
and forms voluntarily used or required under foreign government or 
international monitoring programs which include such information as the 
identity of the custodian, the type of processing, and the weight of 
the product, would provide sufficient information for NMFS to conduct a 
trace back. In addition to relying on such records, the trade may 
choose to use model forms that NMFS has developed to track and document 
chain of custody information through the supply chain.

Reporting Mechanism

    As explained above, this rule requires that the importer of record, 
or entry filer acting on their behalf, report the data required via the 
ACE portal as part of the CBP entry/entry summary process. To this end, 
importers of record who make entries under the designated HTS codes are 
required to report the data electronically through the ACE Partner 
Government Agency Message Set for NMFS (NMFS Message Set) and/or the 
Digital Image System (DIS). The format for the NMFS Message Set is 
designated for each of the affected commodities (by HTS code) and 
specified in the following documents jointly developed by NMFS and CBP 
and made available to importers and other entry filers by CBP (https://www.cbp.gov/trade/ace/catair):

 CBP and Trade Automated Interface Requirements--Appendix PGA
 CBP and Trade Automated Interface Requirements--PGA Message 
Set
 Automated Broker Interface (ABI) Requirements--Implementation 
Guide for NMFS

    To obtain the IFTP, U.S. importers of record for designated 
priority species covered by this rule and seafood products derived from 
such species must electronically submit their application and fee for 
the IFTP via the National Permitting System Web site designated by NMFS 
(see ADDRESSES). The fee charged for the IFTP will be calculated, at 
least annually, in accordance with procedures set forth in Chapter 9 of 
the NOAA Finance Handbook for determining the administrative costs for 
special products and services (https://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html); the permit fee will not exceed such 
costs. An importer of record who is required to have an IFTP only needs 
one IFTP. Separate permits are not required, for example, if the 
imported species are covered under more than one NMFS import monitoring 
program or the importer trades in more than one covered species. Note, 
however, that for some commodities, other agency permits may also be 
required (e.g., U.S. Fish and Wildlife Service permits for products of 
species listed under the Convention for International Trade in 
Endangered Species).

Verification of Entries

    To implement this regulation, business rules are programmed into 
ACE to automatically validate that the importer of record has satisfied 
all of the NMFS Message Set and document image requirements as 
applicable to HTS codes subject to this rule and other applicable 
programs (e.g., all data fields are populated and conform to format and 
coding specifications, required image files are attached). Absent 
validation of the NMFS requirements in ACE, the entry filed would be 
rejected and the entry filer would be notified of the deficiencies that 
must be addressed in order for the entry to be certified by ACE prior 
to release by NMFS and CBP.
    In addition to automated validation of the data submitted, entries 
may be subject to verification by NMFS that the supplied data elements 
are true and can be corroborated via auditing procedures (e.g., vessel 
was authorized by the flag state, legal catch was landed to an 
authorized entity, processor receipts correspond to outputs). 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. Entries for which timely provision 
of records is not provided to NMFS or that cannot be verified as 
lawfully acquired and non-fraudulent by NMFS, will be subject to 
enforcement or other appropriate action by NMFS in coordination with 
CBP. Such responses could include, but are not limited to, a re-
delivery order for the shipment, exclusion from admission into commerce 
of the shipment, forfeiture of the fish or fish product, and 
enforcement action against the entry filer or importer of record.
    To select entries for verification, NMFS will work with CBP to 
develop a specific program within ITDS to screen information for the 
covered commodities based on risk criteria. For example, risk-based 
screening and targeting procedures can be programmed to categorize 
entries by volume and certain attributes (e.g., ocean area of catch, 
vessel type or gear), and then randomly select entries for verification 
on a percentage basis within groups of entries defined by the 
associated attributes. In applying these procedures, NMFS will 
implement a verification scheme, including levels of inspection 
sufficient to assure that imports of the priority species are not 
products of illegal fisheries and are not fraudulently represented. 
Given the volume of imports, and the perishable nature of seafood, it 
would not likely be cost-effective for most verifications to be 
conducted on a pre-release basis. However, the verification scheme may 
involve targeted operations on a pre-release basis that are focused on 
particular products or ports of concern.
    A verification program as described above will facilitate a 
determination of whether imported seafood has been lawfully acquired 
and not misrepresented and deter the infiltration of illegally 
harvested and misrepresented seafood into the supply chain. In addition 
to such deterrent effect, there may be price effects in that illegal or 
would-be fraudulent seafood would be diverted from the U.S. market to 
lower value markets. Taken together, deterrent and price effects would 
reduce the incentives for IUU fishing operations and for seafood fraud. 
Conversely, authorized fisheries stand to benefit from import 
monitoring programs that aim to identify and exclude products of IUU 
fishing and seafood fraud, both through enhanced market share and 
potentially higher prices.

Trusted Trader Program

    NMFS received comments on the applicability of trusted trader 
programs in response to the proposed rule. Additionally, NMFS issued a 
separate notice (81 FR 25646, April 29, 2016) to specifically request 
comments on the potential scope of a Commerce Trusted Trader Program 
and how it could be applied to streamline entry processing for 
shipments subject to this rule. NMFS

[[Page 88993]]

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.

Program Expansion

    NMFS received comments on the lead time needed for seafood trade 
participants to implement potential expansion of this rule, by 
inclusion of additional species and/or additional data elements. NMFS 
acknowledges the need for 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. 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. The notice of proposed rulemaking would direct 
potentially affected parties to the pertinent CBP documents (Appendix 
PGA, PGA Message Set, Implementation Guide for NMFS) that would be 
developed jointly by NMFS and CBP to provide the implementation details 
(e.g., species by HTS code, data elements, message set format, DIS 
requirements).

International Cooperation and Assistance

    During the period prior to the effective date of this rule, NMFS 
will undertake a program of communication and outreach to U.S. 
importers and foreign exporters to ensure understanding of the 
requirements of this rule. Subject to the availability of resources, 
NMFS intends to provide technical assistance to exporting nations to 
support compliance with the requirements of this proposed rule, 
including by providing assistance to build capacity to: (1) Undertake 
effective fisheries management; (2) strengthen fisheries governance 
structures and enforcement bodies to combat IUU fishing and seafood 
fraud; and (3) establish, maintain, or support systems to enable export 
shipments of fish and fish products to be traced back to point of 
harvest.

Intersection With Other Applicable Requirements

    The requirements for additional data collection at the time of 
entry into the United States for imported fish and fish products of, or 
derived from, the priority species within the scope of this final rule 
could intersect with data collection requirements applicable to imports 
of those same species under other authorities, including programs 
implemented by NMFS and other agencies. Some of these authorities are 
related to combating IUU fishing, while other authorities are aimed at 
other concerns such as managing bycatch in commercial fisheries. 
Through use of the ITDS single window, importers are generally able to 
meet all applicable requirements through a consolidated entry filing. 
Importers should consult the compliance guides issued by CBP for NMFS 
and other agency import monitoring programs (https://www.cbp.gov/trade/ace/catair) to determine all requirements that apply to a specific 
import based on the HTS codes within the scope of the respective 
monitoring programs.

Classification

    This rule implements MSA section 307(1)(Q), which makes it unlawful 
to import, export, transport, sell, receive, acquire, or purchase in 
interstate or foreign commerce any fish taken, possessed, transported, 
or sold in violation of any foreign law or regulation or any treaty or 
in contravention of any binding conservation measure adopted by an 
international agreement or organization to which the United States is a 
party. See 16 U.S.C. 1857(1)(Q). The NMFS Assistant Administrator has 
determined that this final action is consistent with the provisions of 
this and other applicable laws.

Executive Order 12866

    This rule has been determined to be significant for the purposes of 
Executive Order (E.O.) 12866 because it may raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in E.O. 12866. NMFS has prepared a final 
regulatory impact review of this action, which is available from NMFS 
(see ADDRESSES). This analysis describes the economic impact this 
proposed action, if adopted, would have on U.S. businesses and 
consumers.
    The regulatory action, and its legal basis, was described in the 
preamble of the proposed rule. This rule requires a permit (IFTP) for 
importers of species within the scope of the program. Additionally, 
information pertaining to the harvest and landing of the product prior 
to U.S. import is required at the time of entry into U.S. commerce, and 
certain records must be retained. NMFS prepared a draft Regulatory 
Impact Review (RIR) and released it for comment in conjunction with the 
proposed rule. NMFS received numerous comments, particularly focused on 
the costs of compliance with the proposed requirements. In 
consideration of comments received, NMFS revised the RIR. With regard 
to the possible economic effects of this action, NMFS concludes that 
U.S. entities would not be significantly affected by this action 
because it does not directly restrict trade in the designated species 
and does not pose entirely new burdens with regard to the collection 
and submission of information necessary to determine product 
admissibility. Some of the data proposed to be collected at entry or to 
be subject to recordkeeping requirements is already collected by the 
seafood industry in order to comply with food safety and product 
labeling requirements. In addition, the majority of the countries 
exporting fish and fish products derived from the designated priority 
species to the U.S. market also export a number of these same fish and 
fish products to the European Union (EU) market. Consequently, many 
harvesting states, port states, and intermediary/exporting states that 
are affected by this rule may already have comparable information 
collection systems in place to satisfy the requirements of EU 
regulation on IUU fishing.
    NMFS has estimated that this rule would affect 2,000 importers and 
600 customs brokers making 215,000 entries per year for the priority 
species subject to the initial phase of the traceability program. Total 
costs for permits, software, data entry, recordkeeping and data storage 
are estimated by NMFS to amount to $7,875,000 in the first year 
(including one-time broker software acquisition), and $6,075,000 
annually thereafter.
    However, to obtain an upper-bound on estimated compliance costs, 
NMFS calculated an alternative estimate using information provided by 
NFI through the E.O. 12866 regulatory review (https://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=true&rin=0648-BF09&meetingId=2004&acronym=0648-DOC/NOAA) as well as NFI's written 
comments on the proposed rule (https://www.regulations.gov/document?D=NOAA-NMFS-2015-0122-0098). Specifically, NMFS used NFI's 
estimate of cost per year for complex supply chains. In certain 
instances, NMFS revised the NFI assumptions and resulting estimates 
where the assumptions were based on an inaccurate understanding of the 
rule or to account for changes from the proposed rule (e.g., the 
provision for aggregated harvest reports of landings by small vessels 
and small-scale aquaculture).

[[Page 88994]]

    Based on NFI's assumptions as modified by NMFS and the methodology 
applied to generate a cost estimate suggested by NFI, NMFS estimates an 
upper-bound estimate of compliance cost for reporting, recordkeeping 
and supply chain auditing of $17,815,225 per year. A species-by-species 
breakdown of that cost estimate is provided in Table 11. A total 
compliance cost for the program must also include an additional 
$2,500,000 in permit fees, ACE reporting software and data storage 
costs. Thus, the upper bound estimate for compliance with all program 
requirements is $20,315,225 for the first year (including software 
acquisition) and $18,515,225 thereafter. Given the approximate $9 
billion annual value of seafood imports into the United States for the 
priority species subject to the initial phase of the seafood 
traceability program, the estimated annual compliance costs of about 
$5.5 to $18.5 million amount to less than one half of one percent of 
product value. Copies of the final RIR/FRFA are available from NMFS 
(see ADDRESSES).

Regulatory Flexibility Act

    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA described the economic impact this proposed rule will have on 
small entities and includes a description of the action, why it is 
being considered, and the legal basis for this action. NMFS received a 
number of comments on the burden likely to be placed on small 
businesses should the rule be implemented. The purpose of the RFA is to 
ameliorate, to the extent possible, small businesses, small 
organizations, and small governmental entities of burdensome 
regulations and recordkeeping requirements. Major goals of the RFA are: 
(1) To increase agency awareness and understanding of the impact of 
their regulations on small business, (2) to require agencies to 
communicate and explain their findings to the public, and (3) to 
encourage agencies to use flexibility where possible to provide 
regulatory relief to small entities. The RFA emphasizes predicting 
impacts on small entities as a group distinct from other entities and 
the consideration of alternatives that may minimize the impacts while 
still achieving the stated objective of the action. In response to 
comments on the IRFA, NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA). Below is a summary of the FRFA for this final rule 
which was prepared in conjunction with the RIR. Copies of the final 
RIR/FRFA are available from NMFS (see ADDRESSES).
    The primary objective of the rule is to collect or have access to 
additional data on imported fish and fish products to determine that 
they have been lawfully harvested and are not misrepresented as well as 
to deter illegally caught or misrepresented seafood from entering into 
U.S. commerce. These data reporting and recordkeeping requirements 
affect mainly importers of seafood products, many of which are small 
businesses. Given the level of imports contributing to the annual 
supply of seafood, collecting and evaluating information about fish and 
fish products sourced overseas are a part of normal business practices 
for U.S. seafood dealers. The permitting, electronic reporting and 
recordkeeping requirements proposed by this rulemaking would build on 
current business practices (e.g., information systems to facilitate 
product recalls, to maintain product quality, or to reduce risks of 
food borne illnesses) and are not estimated to pose significant adverse 
or long-term economic impacts on small entities.
    In implementing the final rule, NMFS estimates there will be 
approximately 2,000 new applicants for the IFTP, with an estimated 
industry-wide increase to importers of $60,000 in annual costs for 
permit fees. Data sets to be submitted electronically to determine 
product admissibility are, to some extent, either already collected by 
the trade in the course of supply chain management, already required to 
be collected and submitted under existing trade monitoring programs 
(e.g., tuna, swordfish, toothfish), or collected in support of third-
party certification schemes voluntarily adopted by the trade. 
Incremental costs, separate from the permit fees, are likely to consist 
of developing interoperable systems to ensure that the data are 
transmitted along with the product to ensure the information is 
available to the entry filer. NMFS has estimated that the software, 
data entry and recordkeeping costs would amount to $7,875,000 in the 
first year (including one-time broker software acquisition), and 
$6,075,000 annually thereafter for importers to submit data and retain 
records of imports of the priority species subject to the Program. An 
alternative approach to estimating compliance costs yields an upper 
bound estimate of $20,315,225 in the first year and $18,515,225 
annually thereafter.
    The rule applies to entities authorized to import fish and fish 
products derived from the designated species within the scope of the 
Program. This rule has been developed to avoid duplication or conflict 
with any other Federal rules. To the extent that the requirements of 
the rule overlap with other reporting requirements applicable to the 
designated species, this has been taken into account to avoid 
collecting data more than once or by means other than the single window 
(ACE portal). Given the large volume of fish and fish product imports 
to the U.S. market, the number of exporting countries, and the fact 
that traceability systems are being increasingly used within the 
seafood industry, it is not expected that this rule will significantly 
affect the overall volume of trade or alter trade flows in the U.S. 
market for fish and fish products that are legally harvested and 
accurately represented.
    NMFS considered several alternatives in this rulemaking: The 
requirements described in the proposed rule, a no-action alternative 
and various combinations of data reporting and recordkeeping for the 
supply chain information applicable to the priority species. NMFS 
believes that the final rule effectively implements the initial phase 
of a traceability program as envisioned by Recommendations 14 and 15 of 
the Task Force. In addition, it is consistent with the existing 
requirement that all applicable U.S. government agencies are required 
to implement ITDS under the authority of the SAFE Port Act and 
Executive Order 13659, Streamlining the Export/Import Process (79 FR 
10657, February 28, 2014). Also, the Seafood Traceability Program takes 
into account the burden of data collection from the trade and the 
government requirements for admissibility determinations and has 
mitigated that burden to the extent possible by, among other things, 
implementing the Aggregated Harvest Report exemption as a change to the 
final rule from the proposed rule.

National Environmental Policy Act

    Under NOAA Administrative Order (NAO 216-6), the promulgation of 
regulations that are procedural and administrative in nature are 
categorically excluded from the requirement to prepare an Environmental 
Assessment. This final regulation to implement a seafood traceability 
program is procedural and administrative in nature in that they would 
impose reporting and recordkeeping requirements for ongoing authorized 
catch and trade activities. There are no further restrictions on 
fishing activity or trade in seafood products relative to any existing 
laws or regulations, either foreign or domestic. Given the procedural 
and administrative

[[Page 88995]]

nature of this rulemaking, an Environmental Assessment was not 
prepared.

Paperwork Reduction Act

    This final 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 and has been assigned 
Control Number 0648-0739. The information collection burden for the 
requirements under this rule (IFTP, harvest and landing data submitted 
at entry, image files submitted at entry, recordkeeping and data 
storage, and provision of records of supply chain information when 
selected for audit) as applicable to imports of the designated species 
is estimated to be 367,115 hours. Compliance costs are estimated to 
total $60,000 for the permit application fees, $1,800,000 for data 
entry software, and $431,630 for data storage. An upper bound estimate 
of compliance costs for harvest event data reporting in ACE, 
recordkeeping and auditing is $11,742,311 annually.
    IFTP Requirement: With the requirement to obtain an IFTP under this 
program, there would be approximately 2,000 respondents who would need 
approximately 5 minutes to fill out the online IFTP form (estimate 
consistent with that used for ITDS proposed rule 0648-AX63) resulting 
in a total annual burden of 167 hours and a cost of $4,175. This 
estimate of the number of entities that would be required to obtain the 
permit under the seafood traceability program is in addition to those 
entities that would be required to obtain the permit under the ITDS 
rule. However, there may be some overlap in that importers of multiple 
seafood products that are covered under more than one trade monitoring 
program would not be required to obtain a separate permit for each 
program. A single, consolidated permit would suffice for all 
commodities covered under all programs.
    Data Set Submission Requirement: Data sets to be submitted 
electronically to determine product admissibility are, to some extent, 
either already collected by the trade in the course of supply chain 
management, already required to be collected and submitted under 
existing trade monitoring programs (e.g., tuna, swordfish, toothfish), 
or collected in support of third party certification schemes 
voluntarily adopted by the trade. Incremental costs are likely to 
consist of developing interoperable systems to ensure that the data are 
transmitted along with the product to ensure the information is 
available to the entry filer. Initial feedback from one seafood 
importer indicates, however, that importers may already have 
arrangements with software developers to update entry filing programs 
as needed to address required changes so no extra incremental costs may 
be involved to accommodate this new requirement.
    Taking into account differences in fisheries (small and large catch 
volume), but also the allowance for aggregated harvest reports by small 
scale vessels, NMFS estimates that the data entry costs for vessel 
information would average about $10.00 or 24 minutes for each import. 
In addition to the vessel information to be reported in each entry 
filing, the NMFS Message Set requires some header records and 
structural records so that the data are correctly interpreted when 
loaded into ACE, as well as permit data for the importer. NMFS 
estimates that the data entry costs for this type of information to be 
about 12 minutes or $5.00 per import.
    Based on 2014 CBP import records of seafood products derived from 
the priority species subject to the traceability program, it can be 
expected that approximately 215,000 entries per year would require a 
NMFS message set reported via ACE. However, in the final rule, NMFS has 
delayed shrimp and abalone imports from harvest event data reporting 
due to present concerns about parity with harvest data reporting in the 
U.S. domestic aquaculture sector. Approximately 70,000 entries of 
shrimp and abalone products would not immediately require permitting, 
harvest event data reporting in ACE, or chain-of-custody recordkeeping 
on the part of the U.S. importer. NMFS will request approval of these 
information collection requirements at the time that shrimp and abalone 
imports will be included in the Seafood Traceability Program. This will 
be dependent on the establishment of reporting and recordkeeping 
requirements for the domestic aquaculture industry through separate 
actions by other agencies.
    Therefore, excluding these shrimp and abalone entries would incur 
reporting and recordkeeping costs for approximately 145,000 entries 
annually. These 145,000 entries would be subject to submission of 
harvest event data that would require 36 minutes of data entry each. 
The total increase in hours for the 145,000 responses for the data set 
submission requirement would therefore total 87,000 hours and labor 
costs of $2,175,000@$25/hour.
    Recordkeeping Requirement: The rule also requires that the harvest 
event records and the chain-of-custody records be retained by the 
importer for two years from cargo release. NMFS estimates that 
organizing and filing the records would require 24 minutes or $10.00 
for each entry subject to import reporting. The burden for the NMFS-
specific recordkeeping requirements under this rule would amount to 
58,000 hours or $1,450,000 in labor costs, excluding shrimp and abalone 
imports. The burden for the NMFS-specific recordkeeping requirements 
under this rule would amount to 86,000 hours or $2,150,000 in labor 
costs, when fully implemented after the compliance date for shrimp and 
abalone is established.
    Alternative Estimate: As an alternative estimate, NMFS considered 
the NFI comments and modified certain assumptions of NFI to account for 
changes from the proposed rule. This yielded a burden estimate of 
289,769 hours for reporting and recordkeeping, excluding the monitoring 
of shrimp and abalone. Under this methodology (again excluding shrimp 
and abalone), the information collection burden attributed to auditing 
of shipments is an additional 77,188 hours to assemble records 
requested by NMFS.
    Summary of Requirements: Assuming that this rule would affect 2,000 
importers and 600 customs brokers making 215,000 entries per year for 
the priority species subject to the initial phase of the traceability 
program (once shrimp and abalone imports are included), the total 
burden estimated by NMFS for permits, data entry, recordkeeping and 
audits would amount to 189,317 hours, and labor costs of $4,732,925 at 
$25/hour. However, in consideration of public comments received on the 
proposed rule, NMFS calculated an alternative estimate for reporting, 
recordkeeping. Assuming the NFI estimated cost of $32.00 per hour of 
labor for the data reporting, recordkeeping and auditing, the burden 
hour estimate derived by applying the NFI methodology as modified by 
NMFS amounts to 328,913 hours for reporting and recordkeeping and 
227,813 hours for auditing, yielding a total burden of 556,726 hours.
    Excluding shrimp and abalone imports lowers the NFI adjusted burden 
estimate to 289,760 hours for reporting and recordkeeping and 77,188 
hours for auditing, yielding a total burden of 367,115 hours. NMFS has 
requested, and OMB has approved, the upper bound (NFI) estimate, 
excluding shrimp and abalone imports. A revision to the approved 
information collection burden will be requested of OMB when the program 
is expanded to include shrimp and abalone.
    NMFS received public comment regarding aspects of the information 
collection, and has responded to those

[[Page 88996]]

comments (see Comments and Responses). In particular, NMFS revised the 
model catch certificate and provided instructions for each data 
element. NMFS concludes that data reporting is necessary for the 
enforcement of the import restrictions under MSA, that the information 
collected is of practical utility; that the burden estimate is as 
accurate as possible pending implementation of the rule; that ways to 
enhance the quality, utility, and clarity of the information to be 
collected were considered and addressed; and that ways to minimize the 
burden of the collection of information, including through the use of 
automated collection techniques or other forms of information 
technology have been applied.
    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. The control number assigned to 
the information collection contained in this final rule is listed in 
the table appearing at 15 CFR part 902. In addition, the table is 
updated to reflect several other information collections previously 
approved by OMB under separate final rules recently published by NMFS 
(RIN 0648-AV12, RIN 0648-AX63) that are affected by the revisions to 50 
CFR part 300 subpart Q in this rule.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 300

    Exports, Fisheries, Fishing, Fishing vessels, Illegal, Unreported 
or unregulated fishing, Foreign relations, Imports, International trade 
permits, Treaties.

50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

    Dated: December 2, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 15 CFR part 902, 50 CFR 
part 300, subpart Q, and 50 CFR part 600 are amended as follows:

15 CFR Chapter IX--National Oceanic and Atmospheric Administration, 
Department of Commerce

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority:  44 U.S.C. 3501 et seq.


0
2. In Sec.  902.1, the table in paragraph (b) under ``50 CFR'' is 
amended by removing the entries for ``300.13,'' ``300.14'' and 
``300.17,'' and adding, in numerical order, entries for ``300.322,'' 
``300.323,'' ``300.324,'' ``300.333,'' ``300.336,'' ``300.337,'' 
``300.338,'' ``300.339'' and ``300.341'' to read as follows:


Sec.  902.1   OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
 CFR part or section where the information  Current OMB control No. (all
    collection  requirement is located        numbers begin with 0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR:
 
                                * * * * *
300.322...................................  -0732
300.323...................................  -0732
300.324...................................  -0739
300.333...................................   -0304
300.336...................................   -0304
300.337...................................   -0304
300.338...................................   -0304
300.339...................................  -0304
300.341...................................   -0304
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

50 CFR Chapter III--International Fishing and Related Activities

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
3. The authority citation for 50 CFR 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
4. In Sec.  300.321:
0
a. Add, in alphabetical order, a definition for ``Aggregated Harvest 
Report'';
0
b. Revise the definitions of ``Catch and Statistical Document/
Documentation'', ``Documentation and data sets required under this 
subpart'' and ``Fish or fish products regulated under this subpart''; 
and
0
c. Add, in alphabetical order, definitions for ``Harvest Event'' and 
``Seafood Traceability Program''.
    The additions and revisions read as follows:


Sec.  300.321   Definitions.

* * * * *
    Aggregated Harvest Report means a record made at a single 
collection point on a single calendar day for aggregated catches by 
multiple small-scale fishing vessels (20 measured gross tons or less or 
12 meters length overall or less) offloaded at that collection point on 
that day, or for a landing by a vessel to which the catches of one or 
more small-scale vessels were transferred at sea. An Aggregated Harvest 
Report also means a record made at a single collection point or 
processing facility on a single calendar day for aggregated deliveries 
from multiple small-scale aquaculture facilities, where each 
aquaculture facility delivers 1,000 kg or less to that collection point 
or processing facility on that day. An Aggregated Harvest Report may 
not be used for information for catches from vessels greater than 20 
measured gross tons or 12 meters length overall, and deliveries of more 
than 1000 kg from aquaculture facilities.
* * * * *
    Catch and Statistical Document/Documentation means a document or 
documentation, in paper or electronic form, accompanying regulated 
seafood imports and exports that is submitted by importers and 
exporters to document compliance with TTVP, AMLR trade program, and HMS 
ITP trade documentation programs or the Seafood Traceability Program as 
described in this subpart.
* * * * *
    Documentation and data sets required under this subpart refers to 
documentation and data that must be submitted by an importer or 
exporter to NMFS at the time of, or in advance of, import, export, or 
re-export, as applicable for those seafood products regulated under the 
TTVP, AMLR trade program, and HMS ITP or the Seafood Traceability 
Program as described in this subpart. 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, and the 
AMLR trade program, the HMS ITP, the TTVP, or the Seafood Traceability 
Program.
    Harvest Event means, for wild-capture fisheries, the landing of 
fish in port or

[[Page 88997]]

offloading of fish from a fishing vessel that caught the fish to a 
carrier vessel at sea or in port, and for aquaculture production, the 
delivery of fish from the facility to a consolidator or a processor. 
For wild-capture fisheries, the harvest event is considered to occur at 
the fishing trip level, such that the harvest event concludes at the 
time catch is landed or offloaded from the catching vessel. For fishing 
trips occurring in more than one area, each area fished during the trip 
must be identified in the report on the harvest event.
* * * * *
    Seafood Traceability Program means the data reporting and 
recordkeeping requirements established under Sec.  300.324 and includes 
the permitting requirements of Sec.  300.322, and the requirements 
under Sec.  300.323 as they pertain to species or species group subject 
to the Seafood Traceability Program.
* * * * *

0
5. Revise Sec.  300.323 to read as follows:


Sec.  300.323   Reporting and Recordkeeping Requirements.

    (a) Reporting. 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 subpart must file all data sets, reports, and documentation as 
required under the AMLR program, HMS ITP, TTVP and Seafood Traceability 
Program, 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, except in cases where CBP 
provides alternate means of collecting NMFS-required data and/or 
document images.
    (b) Recordkeeping. A paper or electronic copy of all documentation 
and data sets required under this subpart, and all supporting records 
upon which an entry filing or export declaration is made, must be 
maintained by the importer of record or the exporting principal party 
in interest as applicable, and made available for inspection, at the 
importer's/exporter's place of business for a period of two years from 
the date of the import, export or re-export.


Sec.  300.324   [Redesignated as Sec.  300.325]

0
6. Redesignate Sec.  300.324 as Sec.  300.325.

0
7. Add new Sec.  300.324 and immediately stay paragraph (a)(3) 
indefinitely to read as follows:


Sec.  300.324   Seafood Traceability Program.

    This section establishes a Seafood Traceability Program which has 
data reporting requirements at the time of entry for imported fish or 
fish products and recordkeeping requirements for fish or fish products 
entered into U.S. commerce. The data reported and retained will 
facilitate enforcement of section 307(1)(Q) of the Magnuson-Stevens Act 
and the exclusion of products from entry into U.S. commerce that are 
misrepresented or the product of illegal or unreported fishing. The 
data reporting and recordkeeping requirements under the program enable 
verification of the supply chain of the product offered for entry back 
to the harvesting event(s). In addition, the permitting requirements of 
Sec.  300.322 pertain to importers of products within the scope of the 
program.
    (a)(1) For species or species groups subject to this Seafood 
Traceability Program, data is required to be reported and retained 
under this program for all fish and fish products, whether fresh, 
frozen, canned, pouched, or otherwise prepared in a manner that allows, 
including through label or declaration, the identification of the 
species contained in the product and the harvesting event. Data is not 
required to be reported or retained under this program for fish oil, 
slurry, sauces, sticks, balls, cakes, pudding and other similar fish 
products for which it is not technically or economically feasible to 
identify the species of fish comprising the product or the harvesting 
event(s) contributing to the product in the shipment.
    (2) The following species or species groups are subject to this 
Seafood Traceability Program: Atlantic Cod; Pacific Cod; Blue Crab; Red 
King Crab; Dolphinfish (Mahi Mahi); Grouper; Red Snapper; Sea Cucumber; 
Sharks; Swordfish; Tunas (Albacore, Bigeye, Skipjack, Yellowfin, and 
Bluefin). The harmonized tariff schedule (HTS) numbers applicable to 
these species or species groups are listed in the documents referenced 
in paragraph (c) of this section. Compliance with the requirements of 
the Seafood Traceability Program for these species or groups of species 
is mandatory beginning January 1, 2018.
    (3) The following species or species groups are also subject to 
this Seafood Traceability Program: Abalone and Shrimp. The harmonized 
tariff schedule (HTS) numbers applicable to these species or species 
groups are listed in the documents referenced in paragraph (c) of this 
section. The Seafood Traceability Program for these species or species 
groups consists of two components:
    (i) The data reporting requirements of paragraphs (b)(1) through 
(3) and (c) of this section in conjunction with Sec.  300.323(a); and
    (ii) The permit requirements of Sec.  300.322, the IFTP number 
reporting requirement in paragraph (b)(4) of this section in 
conjunction with Sec.  300.323(a), and the recordkeeping requirements 
of Sec.  300.323(b) which includes the recordkeeping of all information 
specified in paragraphs (b) and (e) of this section.
    (b) In addition to data reporting requirements applicable, pursuant 
to other authorities and requirements set out elsewhere in U.S. law and 
regulation (e.g., under other NMFS programs or U.S. Customs and Border 
Protection (CBP) requirements), to the particular commodity offered for 
entry, the importer of record is required to provide the following data 
set in ACE at the time of entry for each entry containing the species 
or species groups listed under paragraph (a) of this section:
    (1) Information on the entity(ies) harvesting or producing the 
fish: Name and flag state of harvesting vessel(s) and evidence of 
fishing authorization; Unique vessel identifier(s) (if available); 
Type(s) of fishing gear used to harvest the fish; Name(s) of farm or 
aquaculture facility. Vessel-, farm-, or aquaculture facility-specific 
information is not required if the importer of record provides 
information from an Aggregated Harvest Report, unless the product 
offered for entry is subject to another NMFS program that requires data 
reporting or documentation at an individual vessel, farm, or 
aquaculture facility level.
    (2) Information on the fish that was harvested and processed: 
Species of fish (Aquatic Sciences Fishery Information System 3-alpha 
code as listed at https://www.fao.org/); Product form(s) at the point of 
first landing whether unprocessed or processed prior to landing/
delivery; Quantity and/or weight of the product(s) as landed/delivered. 
When an Aggregated Harvest Report is used, the importer must provide 
all of the information under this

[[Page 88998]]

paragraph (b)(2), but may provide the total quantity and/or weight of 
the product(s) as landed/delivered on the date of the report.
    (3) Information on where and when the fish were harvested and 
landed: Area(s) of wild-capture or aquaculture location; Location of 
aquaculture facility; Point(s) of first landing; Date(s) of first 
landing, transshipment or delivery; Name of entity(ies) (processor, 
dealer, vessel) to which fish was landed or delivered. When an 
Aggregated Harvest Report is used, the importer must provide all of the 
information under this paragraph (b)(3). Some product offered for entry 
may be comprised of products from more than one harvest event and each 
such harvest event relevant to the contents of the shipment must be 
documented; however, specific links between portions of the shipment 
and a particular harvest event are not required.
    (4) The NMFS-issued IFTP number for the importer of record.
    (c) The importer of record, either directly or through an entry 
filer, is required to submit the data under paragraph (b) of this 
section through ACE as a message set and/or image files in conformance 
with the procedures and formats prescribed by the NMFS Implementation 
Guide and CBP and made available at: https://www.cbp.gov/trade/ace/catair. All harvest events contributing to the inbound shipment must be 
reported, but links between portions of the shipment and particular 
harvest events are not required.
    (d) Import shipments of fish or fish products subject to this 
program may be selected for inspection and/or the information or 
records supporting entry may be selected for audit, on a pre- or post-
release basis, in order to verify the information submitted at entry. 
To support such audits, the importer must retain records of the 
information reported at entry under paragraph (b) of this section in 
electronic or paper format, and make them available for inspection, at 
the importer's place of business for a period of two years from the 
date of the import.
    (e) In addition to the entry recordkeeping requirements specified 
at 19 CFR part 163 and Sec.  300.323(b), the importer of record is 
required to maintain records containing information on the chain of 
custody of the fish or fish products sufficient to trace the fish or 
fish product from point of entry into U.S. commerce back to the point 
of harvest, including individual or Aggregated Harvest Reports, if any, 
and information that identifies each custodian of the fish or fish 
product (such as any transshipper, processor, storage facility or 
distributor). The latter may include widely used commercial documents 
such as declarations by the harvesting/carrier vessels or bills of 
lading. The importer must retain such chain-of-custody records in 
electronic or paper format, and make them available for inspection, at 
the importer's/exporter's place of business for a period of two years 
from the date of the import.

0
8. Revise newly redesignated Sec.  300.325 to read as follows:


Sec.  300.325   Prohibitions.

    In addition to the prohibitions specified in Sec. Sec.  300.4, 
300.117, and 300.189 and 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 
informal filing procedures or 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; and
    (c) Import species listed in Sec.  300.324(a) without a valid IFTP 
or without submitting complete and accurate information as required 
under Sec.  300.324(b) and (c) or without maintaining for inspection 
records as required under Sec.  300.324(d) and (e).

50 CFR Chapter VI--Fishery Conservation and Management, National 
Oceanic and Atmospheric Administration, Department of Commerce

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
9. 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
10. In Sec.  600.725, revise paragraph (a) to read as follows:


Sec.  600.725   General prohibitions.

* * * * *
    (a) Possess, have custody or control of, ship, transport, offer for 
sale, sell, purchase, land, import, export or re-export, any fish or 
parts thereof taken or retained in violation of the Magnuson-Stevens 
Act or any other statute administered by NOAA or any regulation or 
permit issued thereunder, or import, export, transport, sell, receive, 
acquire, or purchase in interstate or foreign commerce any fish taken, 
possessed, transported, or sold in violation of any foreign law or 
regulation, or any treaty or in contravention of a binding conservation 
measure adopted by an international agreement or organization to which 
the United States is a party.
* * * * *

[FR Doc. 2016-29324 Filed 12-8-16; 8:45 am]
 BILLING CODE 3510-22-P