The US has been slow burning is anti IUU system and policy, and it looks like they started their game with a consultation, which is already a good thing.
We all knew that something was coming (I wrote about it here, here , and here). So a cpuple of weeks ago the US National Oceanic and Atmospheric Administration (NOAA) unveiled the "new" requirements for imported seafood. The regulations are the product of a presidential task force I blogged before.
NOAA Fisheries spokesmen said that the “U.S. seafood traceability program” will require seafood importers to document the “catch” to first “landfall” in the United States for certain species. The regulated species were chosen based on:
- principals of enforcement capability;
- species misrepresentation;
- catch documents;
- complexity of the chain of custody and processing;
- mislabeling or other misrepresentation; and
- human health risks
On the “at risk” species list are: abalone, Atlantic cod, blue crab, mahi-mahi, grouper, red king crab, Pacific cod, red snapper, sea cucumber, sharks, shrimp, swordfish, albacore tuna, bigeye tuna, skipjack tuna and yellowfin tuna.
The criteria and the list were chosen by the presidential task force known as the National Ocean Committee to Combat Illegal, Unreported and Unregulated Fishing and Seafood Fraud. It was the task force that last year recommended a “harvest to entry in the U.S.” approach to traceability
The at risk list represents about 40 percent of the seafood that enters the U.S. when measured by value. NOAA eventually wants to include all seafood species imported into the U.S.
The Seafood Import Monitoring Program, as it is officially known, is in the Federal Register for a 60-day comment period.
Some of the most interesting areas I rescue are:
Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), this proposed rule would establish filing and recordkeeping procedures relating to the importation of certain fish and fish products, 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. The information to be filed is proposed to be collected at the time of entry, and makes use of an electronic single window consistent with the Safety and Accountability for Every (SAFE) Port Act of 2006 and other applicable statutes. Specifically, NMFS proposes to integrate collection of catch and landing documentation for certain fish and fish products within the government-wide International Trade Data System (ITDS) and require electronic information collection through the Automated Commercial Environment (ACE) maintained by the Department of Homeland Security, Customs and Border Protection (CBP). Under these procedures, NMFS would require an annually renewable International Fisheries Trade Permit (IFTP) and specific data for certain fish and fish products to be filed and retained as a condition of import to enable the United States to exclude the entry into commerce of products of illegal fishing activities. The information to be collected and retained will help authorities verify that the fish or fish products were lawfully acquired by providing information that traces each import shipment from point of harvest to entry-into commerce. The rule will also decrease the incidence of seafood fraud by collecting information at import and requiring retention of documentation so that the information reported (e.g., regarding species and harvest location) can be verified. This proposed rule stipulates the catch and landing data for imports of certain fish and fish products which would be required to be submitted electronically to NMFS through ACE and the requirements for recordkeeping concerning such imports.
So it introduces the concept of a “catch certificate scheme” of sorts via a International Trade Data System (ITDS) and the it would require an annually renewable International Fisheries Trade Permit (IFTP) and specific data for certain fish and fish products to be filed and retained as a condition of import to enable the United States to exclude the entry into commerce of products of illegal fishing activities.
The ITDS would be the electronic means of collecting NMFS-required catch and trade data at the point of entry for imports subject to existing trade monitoring programs. They anticipates that would require entry filers, when importing at-risk species, to submit data elements at the point of entry into U.S. commerce and use the CBP ACE portal for submission of import data and/or document images (as applicable for HTS codes covered under multiple programs).
This proposed rule would also require the importer of record to obtain a permit to import a designated at-risk species (the International Fisheries Trade Permit) At-risk species, and some products derived from such species, would be identified by Harmonized Tariff Schedule (HTS) codes (in combination with other codes where applicable), and entries filed under these codes would be subject to the additional data requirements set forth in this proposed rule. While some HTS codes will have a direct correspondence to the at-risk species, other applicable HTS codes, particularly for processed products, may be broader (i.e., potentially including species other than those designated at-risk.)
Entry Into U.S. Commerce
This proposed rule addresses only the collection of information on imported fish and fish products at the point of entry into U.S. commerce. For imported fish and fish products, entry into commerce is the landing on, bringing into, or introduction into, or attempted landing on, bringing into, or introduction into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.
A working group including representatives from NMFS and other Federal agency partners solicited comment on principles to be applied in the identification of fish species likely to be most at risk of IUU fishing or seafood fraud.
Taking into consideration public comment received, the working group evaluated the strength and utility of various indicators of IUU fishing or seafood fraud as well as their measurability and the robustness of data available to assess them. The working group endeavored to minimize overlap of principles to ensure that alignment with multiple principles did not overstate associated risk, and also to distinguish between risk of IUU fishing and risk of seafood fraud.
The working group identified the following draft principles:
Enforcement capability, existence of a catch documentation scheme, complexity of the supply chain, known species substitution, history of mislabeling (other than misidentification of species), and history of fisheries violations.
Applying those principles to a base list of species, thirteen fish species/species groups were identified as likely to be most at risk of IUU fishing or seafood fraud. Under this proposed rule, importers would therefore be subject to the permitting, reporting and recording keeping requirements, which are described below, with respect to imports of the species and species groups as proposed, subject to revision at the time of issuance of the final rule. Entries of the fish and fish product of species covered by this rule filed under the following HTS codes would be designated in ACE as requiring the additional data in order to obtain release of the inbound shipment: (go to the original for the list).
Regulatory requirements for reporting and recordkeeping already exist for certain products subject to this rule. In particular, tuna products would be subject to this proposed rule and are now subject to the Tuna Tracking and Verification Program (TTVP) (See http://www.nmfs.noaa.gov/pr/dolphinsafe/tunaHTScodes.htm), which monitors compliance under the Dolphin Protection Consumer Information Act (DPCIA).
They argue that:
Furthermore, in light of the similarity in underlying reporting and recordkeeping requirements of the IUU fishing seafood fraud traceability program and the TTVP program, which verifies whether tuna product marketed as “dolphin safe” meets the eligibility conditions for the dolphin safe label, NMFS intends to ensure that any future changes to the IUU fishing and risk of seafood fraud requirements such as converting certain recordkeeping requirements to a reporting requirement, as discussed below, will be replicated in the TTVP program (through the inclusion of appropriate HTS codes) so that entities serving the U.S. tuna product market will not be subject to conflicting reporting and recordkeeping requirements.
In my experience there substantial differences in between the level of verification that declaring something IUU free and dolphin safe entitles… but lets see what it comes out.
Data for Reporting and Recordkeeping
The working group considered the minimum types of information that should be reported in order to determine that imports of at-risk species are not products of illegal fishing or are fraudulently represented. The area of harvest or the location of the aquaculture facility, and the time at which the harvest took place, represents the initial “link” in the supply chain. At-risk species entering U.S. commerce will be traced to their harvest and its authorization. Information on each point of transshipment and processing throughout the fish or fish product's chain of custody culminating at the point of entry into U.S. commerce can also be used to trace product back to point of harvest.
NMFS proposes that, at the point of entry for species covered by this rule, importers of record would be required to report the following information for each entry in addition to 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 (scientific name, acceptable market name, and ASFIS number); Product description(s); Name(s) of product; Quantity and/or weight of the product(s).
Information on where and when the fish were harvested and landed: Area(s) of wild-capture or aquaculture harvest; Harvest date(s); Location(s) of aquaculture facility; Point of first landing; Date of first landing; Name of entity(ies) (processor, dealer, vessel) to which fish was landed. Such information may be contained, for example, in catch certificates, landing reports, and port inspection reports. Entries may comprise products from more than one harvest event and each event relevant to entry must be reported.
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 would be established as a recordkeeping requirement on the part of the importer of record to ensure that information is 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 to verify the information that is reported upon entry. Such information would 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.
Due to technological limitations of automated data processing for imaged documents and requirements associated with the phase-in of ITDS, this proposed rule requires that chain of custody information be retained by the importer of record and made available to NMFS upon request. However, NMFS recognizes the conservation value of requiring reporting of key chain of custody data elements for the purpose of real-time verification and compliance risk assessment if those data can be accessed and analyzed using automated processes.
In developing software for assembling and transferring the additional data to ACE, importers may wish to consider inter-operability with existing traceability systems that are prevalent in the private sector supply chain or which may exist for certain commodities subject to catch/trade documentation schemes under the auspices of a regional fishery management organization (RFMO). While NMFS does not endorse any particular private sector traceability system, use of such systems may facilitate the collection of the required information along the supply chain in order to report this information through ACE. However, importers of record are still responsible for the accuracy of the information in their import transactions, irrespective of whether integration software or other automated supply chain solutions are utilized.
Where RFMO catch/documentation schemes apply to the affected at-risk species, including those that have been implemented by NMFS through regulation (e.g., the swordfish statistical document of the ICCAT, it is anticipated that compliance with the entry data collection requirements of these schemes would for the most part meet the data reporting and recordkeeping requirements of the traceability program proposed here. However, ITDS provides sufficient flexibility to collect additional data in cases where the data requirements of the seafood traceability program proposed by this rule would exceed those of an RFMO scheme applicable to the same species. NMFS will work with CBP to avoid duplication of reporting requirement in cases where more than one reporting program applies to a particular fish or fish product, and to ensure that all the data are reported to meet the requirements of each applicable reporting program.
International Fisheries Trade Permit (IFTP)
The ITDS proposed rule would establish the IFTP to consolidate existing permits under the highly migratory species international trade program (HMS ITP) and Antarctic marine living resources (AMLR) program, and would require a permit for the TTVP.
This proposed rule would extend the IFTP requirement in the ITDS proposed rule to include importers of record identified in CBP entry filings for shipments containing the designated at-risk species covered by this rule. Requiring the IFTP would allow NMFS to identify, and have current contact information for, importers of the at-risk species covered by this rule. This will enable NMFS to provide information about data reporting and recordkeeping requirements applicable to at-risk species; alert permit holders in advance of any pending changes to data reporting and recordkeeping requirements, including additional data elements or at-risk species; and minimize the potential for disruptions in trade and costly delays in release of shipments.
To obtain the IFTP, U.S. importers of record for designated at-risk species covered by this rule and seafood products derived from such species would electronically submit their application and fee for the IFTP via the National Permitting System Web site designated by NMFS.
Reporting and Recordkeeping
This proposed rule would require that an IFTP holder (i.e., importer of record as identified on CBP entry/entry summary) report certain data for entries of at-risk species covered by this rule. NMFS would provide detailed information to permit holders regarding submission of such data, as well as on recordkeeping, in a compliance guide for industry that will be prepared in advance of NMFS' implementation of a final rule. (The guide may include information on electronic filing through ITDS.) The IFTP holder/importer of record would be required to maintain or have access to, and make available for inspection, electronic or paper versions of records associated with an entry for at-risk species at their place of business for a period of five years after the date of entry.
Verification of Entries
To implement this proposed regulation, business rules would be 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 multiple 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 a re-delivery order for the shipment, exclusion from entry into commerce of the shipment, or enforcement action against the entry filer or importer of record.
To select entries for verification, NMFS would 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 would implement a verification scheme, including levels of inspection sufficient to assure that imports of the at-risk 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.
Voluntary Third Party Certifications and Trusted Trader Program
NMFS is considering how voluntary third party seafood certification programs could simplify entry filing for designated at-risk species or could be used to meet reporting requirements under this proposed rule. NMFS requests comment on how interoperability of third party data systems could be applied to meet the data reporting requirements on a pre-arrival basis or at the point of entry. Such interoperable systems would have to provide the information necessary for NMFS to trace product to the harvest event and therefore be sufficient to identify product that is the result of IUU fishing or is misrepresented.
Additionally, NMFS is considering how a Trusted Trader program might be used to streamline entry processing for designated at-risk species. The Trusted Trader Program is intended to streamline entry processing consistent with ensuring that all traders in the supply chain comply with applicable U.S. regulations. Participants in the Trusted Trader Program would collect or have access to the same data as non-participants, but may not need to provide it prior to entry. NMFS requests comment regarding the potential design and use of a Trusted Trader Program in connection with the requirements proposed in this rule, in particular how it could be used to streamline entry while allowing the United States to determine that imported seafood has been lawfully acquired and not misrepresented and to deter the infiltration of illegally harvested and misrepresented seafood into the supply chain.
And my favorite:
Consideration of the European Union Catch Certification Scheme
The EU's IUU regulations do not include a traceability scheme equivalent to that as contemplated by the IUU Task Force and as proposed in this rule. However, NMFS is interested in comments on how some of the elements inherent in the EU's IUU regulations may be adapted to this rule as a means of facilitating compliance and reducing burden for exporters, either through the design of the traceability process itself or as part of a trusted trader program.
As an initial estimate, NMFS anticipates that firms may need between 90 days and 12 months to adapt their practices to comply with the requirements of this rule and proposes an implementation date of somewhere between 90 days and 12 months following publication of the final rule.
International Cooperation and Assistance
Subject to the availability of resources, NMFS intends to provide 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.
Reality is that the US never been been particularly interested in incorporating other people's or countries views (unless they match completely their own ones), hence I have no idea if the consultation process will, at the end of the day, incorporate the doubts of the non US interests... the key voice here is the one of the American companies that import and trade fish.
From my side, I still not clear how the conundrums in between ports, flag, coastal and processing states would be worked out... and I just hope that the final system (that will indubitably affect the Pacific Islands because all tunas are included) is data format friendly so the systems we are developing can be "twitched" at the final step to interact with their system... it would be truly frustrating having to run paralleled systems to satisfy two masters.