NMFS Final Rule Modifies Tuna Regulations (Part II - Labeling & Import Tracking)

This is Part II, of a two-part series of summaries of this final rule and focuses on tuna requiring a Fisheries Certification of Origin (FCO, NOAA Form 370), certain labeling and import tracking regulations, etc.

Amendments to Required Contents of FCOs

NMFS' final rule makes the following amendments to 50 CFR 216.24(f)(4) with regard to the required contents of the Fisheries Certificate of Origin (FCO):

Name of harvesting vessel. The final rule amends 50 CFR 216.24(f)(4)(xi) to state that the name of the harvesting vessel must be on the FCO.

(The current regulations state that the name of the harvesting vessel is required only if the shipment included tuna or tuna products harvested with a purse seine net.)

Additional parties taking custody of shipment required to sign & date FCO. Amended 50 CFR 216.24(f)(4)(xiv) states that each additional importer, exporter, or processor who takes custody of the shipment must sign and date the form to certify that the form (FCO) and attached documentation accurately describes the shipment of fish that they accompany.

(The current regulations provide that this is required only when the shipment contains tuna harvested in the Eastern Tropical Pacific (ETP) by a purse seine vessel of more than 400 st (362.8 mt) carrying capacity.)

Labeling of Tuna, Tuna Products Must Comply With 16 USC 1385(d)

The final rule issued by NMFS has amended 50 CFR 216.24(f)(12)(ii) by adding new text which states that it is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to possess, sell, purchase, offer for sale, transport, or ship in the U.S., any tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless the label or mark complies with the requirements of 16 USC 1385(d).

(The final rule has also moved the current text of 50 CFR 216.24(f)(12)(ii) to new 50 CFR 216.24(f)(12)(i)(B), etc.)

1. USC 1385(d), the 'labeling standard' of the Dolphin Protection Consumer Information Act is available at http://straylight.law.cornell.edu/uscode/html/uscode16/usc_sec_16_00001385----000-.html.

Verification and Record Maintenance Requirements for FCOs

The NMFS' final rule amends 50 CFR 216.93 (Tracking and Verification Program). The following are highlights of these amendments (newly amended or added text is highlighted with "" and deleted text is denoted by "< >"):

Tracking imports. 50 CFR 216.93(e), states that all tuna products, except fresh tuna, that are imported into the United States must be accompanied by a properly certified FCO as required by 50 CFR 216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated certifications must be submitted by the importer of record to the Administrator, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States as required by 50 CFR 216.24(f)(3)(ii).

Verification requirements. Record maintenance. In the final rule, 50 CFR 216.93(f)(1) states that any exporter, transshipper, importer, processor, or wholesaler/distributor of any tuna or tuna products <harvested in the ETP> must maintain records related to that tuna for at least 2 years. These records include, but are not limited to: FCOs and required certifications, any reports required in paragraphs 50 CFR 216.93(a), (b) and (d), invoices, other import documents, and trip reports.

Record submission. The final rule states at 50 CFR 216.93(f)(2) that within 30 days of receiving a shipment of tuna or tuna products, any exporter, transshipper, importer, processor, wholesaler/distributor of tuna or tuna products must submit to the Administrator, Southwest Region, all corresponding FCOs and required certifications for those tuna or tuna products.

(In the current regulations, this paragraph states that within 30 days of receiving a written request from the Administrator, Southwest Region, any exporter, transshipper, importer, or processor of tuna or tuna products containing tuna harvested in the ETP must submit to the Administrator, Southwest Region, any record required to be maintained under 50 CFR 216.93(f)(1).)

Audits and spot checks. The final rule also notes at 50 CFR 216.93(f)(3) that upon request of the Administrator, Southwest Region, any exporter, transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must provide the Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for audits and spot-checks on caught, landed, stored, and processed tuna.

(Note that the instructions on the back of the FCO (NOAA Form 370) indicate that besides tuna and tuna products (excluding fresh tuna), shipments of certain other species of fish and fish products from countries that use large-scale driftnets also require a FCO. For a list of all the HTS numbers requiring an FCO (tuna and certain other fish), refer to 50 CFR 216.24(f)(2).

(See NMFS final rule for further details of certain definitions, general prohibitions, vessel permit applications and fees, observer placement fee, market prohibitions, and international fisheries regulations.

See ITT's Online Archives or 04/22/05 news, 05042215, for Part I of BP summary of this final rule, etc.

See ITT's Online Archives or 10/06/04 news, 04100620 for BP summary of final rule which amended a January 2000 interim rule on tuna, etc. )

NMFS Contact - Jeremy Rusin (562) 980-4020

NMFS Final Rule (D/N 040920271-5083-02, I.D. 102004A, FR Pub 04/12/05), http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-7312.pdf

NMFS Proposed Rule (D/N 040920271-4271-01; I.D. 102004A, FR Pub 10/29/04), http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-24008.pdf