0651 Supporting Statement Renewal 2019

SUPPORTING STATEMENT

FISHERY PRODUCTS SUBJECT TO TRADE RESTRICTIONS PURSUANT TO CERTIFICATION UNDER THE HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT AND THE MARINE MAMMAL PROTECTION ACT

OMB CONTROL NO. 0648-0651

A. JUSTIFICATION

1. Explain the circumstances that make the collection of information necessary.

This action requests the extension of an existing information collection. The information collection is currently approved for certification of admissibility of fish or fish products subject to trade measures under the authority of the High Seas Driftnet Fishing Moratorium Protection Act (MPA) and for certification of admissibility in the case of fish imports prohibited under the Marine Mammal Protection Act (MMPA).

The MPA final rule (76 FR 2011, 12 January 2011, RIN 0648-AV51) established a procedure for identifying nations that have vessels engaged in illegal fishing or bycatch of protected living marine resources. The 2011 enactment of the Shark Conservation Act established a requirement to also identify nations that have vessels engaged in unsustainable shark fishing on the high seas. Identified nations must take corrective action or risk a negative certification. Nations that are negatively certified are subject to trade restrictions on fish or fish products harvested in the identified fisheries.

The MMPA final rule (81 FR 54390, 15 August 2016, RIN 0648-AY15), established a procedure for making comparability findings for nations that are eligible for exporting fish and fish products to the United States. The nations may receive a comparability finding to export fish and fish products to the United States by providing documentation that a nation’s bycatch reduction regulatory program is comparable in effectiveness to that of the United States.

This information collection is necessary to ensure compliance with any trade restrictions imposed on foreign nations under the authority of the MPA or the MMPA. If a nation is negatively certified, or a nation’s export fishery fails to receive a comparability finding, certain fish or fish products of that fishery become subject to import prohibitions into the U.S. To facilitate enforcement of import prohibitions, the National Marine Fisheries Service (NMFS) will require that other fish or fish products from that nation, not subject to the import prohibitions, must be accompanied by certification of admissibility (i.e., certification that the imported products are not from the fish or the fishery subject to restrictions).

The form will only have to be completed by a harvesting nation that receives a negative certification or comparability finding for some of its fisheries and fish products but not for other fisheries exporting fish products of like species or processed. For example, if a nation receives a comparability finding for a purse seine fishery harvesting yellowfin tuna, but does not receive a comparability finding for a longline fishery harvesting yellowfin tuna, an embargo will be placed on yellowfin tuna harvested in the longline fishery. Yellowfin tuna harvested in the purse seine fishery will be eligible for import, but will require certification from a government official of the exporting nation that the fish were not harvested in the prohibited longline fishery.

2. Explain how, by whom, how frequently, and for what purpose the information will be used.

Pursuant to the trade provisions of the MPA or MMPA, if certain fish or fish products of a nation’s export fishery are subject to import prohibitions, to facilitate enforcement, NMFS may require other fish or fish products from that nation’s other export fisheries that are not subject to the import prohibitions to be accompanied by Certification of Admissibility. A duly authorized official/agent of the exporter’s Government must certify that the fish in shipments being imported into the United States are of a species that are not subject to an import restriction of the United States. The exporter and the duly authorized official/agent of the exporter’s Government must specify the nation of origin and complete the first section of the form. In that section, the exporter must specify the fish species or fish product, weight, fishing gear type, and harvesting vessel flag, name and number, for the fish product in the shipment. The duly authorized official/agent of the applicant’s Government must sign, date the form, and provide the requested contact information.

In the event of the U.S. imposing trade measures in response to a negative certification (MPA) or a denial or revocation of a comparability finding (MMPA), respondents (foreign government officials, foreign exporters and U.S importers) will receive all instructions and forms for certification of admissibility. NMFS is requesting OMB approval of the “Certification of Admissibility” form and the general instructions to account for the situation of negatively certified nations or nations for which an export fishery is without a comparability finding, yet the nation is seeking to export otherwise eligible fishery products to the United States.

For products subject to a trade restriction, NOAA/NMFS will provide U.S. Customs and Border Protection a list of nations and Harmonized Tariff Schedule Codes to delineate the embargoes and those products eligible for entry only with Certification of Admissibility. The U.S. Importer of Record must submit the certification to U.S. Customs and Border Protection via the Document Image System of the Automated Commercial Environment. Absent certification, the entry filing will be denied and the inbound shipment will not be released.

It is anticipated that information collected will be disseminated to the public only in summary (aggregate) form or used to support publicly releasable information products. NMFS will retain control over the information and safeguard it from improper access, modification, and destruction, consistent with NOAA standards for confidentiality, privacy and electronic information. See response to Question 10 of this Supporting Statement for more information on confidentiality and privacy. The information collection is designed to yield data that meet applicable information quality guidelines. Prior to dissemination, the information will be subjected to quality control measures and a pre-dissemination review pursuant to Section 515 of Public Law 106-554.

During the time provided to prepare for import prohibitions and the implementation of this documentation requirement, NMFS will work with the affected nations to determine who will serve as duly authorized official/agent. In a situation where import prohibitions are applied, NMFS will work with U.S. Customs and Border Protection (CBP) and the exporting nations regarding which fish and fish products are admissible with documentation and be able to provide the citations to the specific U.S. regulations of relevance. Until such decisions are made, however, it is impossible to stipulate which officials will be authorized and which U.S. regulations will be assessed for comparability.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological techniques or other forms of information technology.

As already required under the currently approved information collection, the “Certification of Admissibility” form must be completed and signed by a duly authorized official of the identified nation and validated by a responsible official(s) designated by NMFS. The documentation must be associated with the entry and submitted by the importer of record via electronic filing in the CBP Automated Commercial Environment (ACE) by upload to the Document Image System (DIS). At the time of automated entry processing, or post-release, the documents will be reviewed by NMFS for validation. If shipments are determined to be ineligible after release, NMFS will work with CBP to issue a redelivery order to the importer and require that the products be returned to the port of entry. The requirement for a signature by the exporting government official and U.S. importer of record precludes the use of fully automated technologies (i.e., electronic signature) for completing the form at this time. However, NMFS will work with U.S. CBP to consider automated procedures for collecting the information at the border through fully electronic entry processing rather than DIS.

4. Describe efforts to identify duplication.

Information collected in connection with these requirements is unique. There are no other collections or existing forms which can substitute for the information required to establish admissibility of products which are of the same species of fish otherwise subject to embargo when such an embargo is imposed under the authority of the MPA or MMPA.

5. If the collection of information involves small businesses or other small entities, describe the methods used to minimize burden.

A U.S. Importer of Record/Agent may be a small business. To minimize the burden of the information collection on small businesses, the “Certification of Admissibility” form only requires the importer to provide contact information and a signature certifying that the fish or fish products contained in the shipment are accurately described on the form (responsibility of exporter) to the best of the importer’s knowledge and belief. Verifying, the contents and value of an import shipment is an essential business practice necessary to avoid fraud, so the incremental burden on importers is minor – they need only report on the results of a verification activity that is already being undertaken.

6. Describe the consequences to the Federal program or policy activities if the collection is not conducted or is conducted less frequently.

The frequency of the information collection is on a per shipment basis. Not collecting, or less frequent collection of, this information would not provide NMFS with data it must have to ensure that fish and fish products subject to import prohibitions do not enter United States commerce. NMFS and CBP could not enforce the import prohibitions without this collection of information

In the alternative, NMFS would have to implement an import ban on all fish products that could be harvested in the foreign export fishery that does not receive a comparability finding, regardless of whether the fish were harvested in that fishery. As the United States is a member of the World Trade Organization, there are obligations to ensure that import requirements are non-discriminatory and do not impose restrictions on foreign suppliers that are not imposed on domestic producers. A blanket prohibition on fishery products from all of a nation’s fisheries would be discriminatory and raise issues of unequal national treatment. Use of the Certification of Admissibility allows NMFS to tailor a trade measure to the specific fishery with unaddressed issues, while allowing continued access to the U.S. market for products from other fisheries that are deemed eligible to export by virtue of a positive certification or comparability finding.

7. Explain any special circumstances that require the collection to be conducted in a manner inconsistent with OMB guidelines.

The collection is consistent with the guidelines.

8. Provide information on the PRA Federal Register Notice that solicited public comments on the information collection prior to this submission. Summarize the public comments received in response to that notice and describe the actions taken by the agency in response to those comments. Describe the efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

The proposed rules for the MPA and MMPA import provisions requested public comment on the procedures for identification and certification of nations (MPA) and the issuance of comparability findings (MMPA). Both proposed rules included the information collection requirement for certification of admissibility and solicited public comment specifically on that aspect of the respective regulations. No comments on the information collection aspects of the Certification of Admissibility were received. In the case of each rulemaking, once the final rule was published, NMFS conducted an extensive public outreach campaign via visits to foreign embassies in Washington, D.C., webinars scheduled to allow participation by foreign exporters, and some personal visits with government officials from key exporting countries. While the focus of outreach was primarily to inform about the procedures to obtain positive certifications and comparability findings for export fisheries, the provisions for Certification of Admissibility were explained. Explicit discussion of the Certification of Admissibility was helpful in achieving a cooperative framework for outreach on the MMPA rule. Exporting nations were assured that the intent of the rule is first and foremost to conserve fishery stocks through properly authorized fisheries and to recover protected species through reduced fishery interactions, not to serve as a protectionist trade measure. For exporters, Certification of Admissibility is viewed as a way to avoid more disruptive blanket trade prohibitions, while working to achieve bycatch mitigation programs in specific fisheries.

Prior to this request for renewal, NMFS published a Federal Register Notice to solicit public comment on the burden imposed by this information collection (83 FR 66681, 27 December 2018). No comments were received in response to this 60-day Federal Register notice. Consequently, NMFS solicited data from CBP to get contact information for importers who have submitted the Certification of Admissibility in response to a trade embargo on certain fish products from Mexico (order by the Court of International Trade in response to a law suit filed citing MMPA requirements; see: https://www.cbp.gov/trade/priority-issues/import-safety/ctac/import-restrictions-certain-mexican-fish-and-fish-products). NMFS provided the form and instructions to 6 of the top importers of products from Mexico that have required certification since August 2018, with a request for comment on the burden estimates and ways to reduce the burden of this information collection. To date, no comments have been received. However, it is worth noting that the imposition of the trade measure on Mexico has not been disruptive to trade. NMFS worked with CBP and the trade community, as well as the Government of Mexico, to communicate the requirements for certification, the list of affected tariff codes, and the protocol for submitting the certification via the DIS capability in ACE. Approximately 25 entries per month were received with certification in October and November 2018. According to CBP, the Certification of Admissibility requirement at the ports was implemented smoothly, even though there was short notice given the court order. In most instances of a certification requirement, NMFS anticipates much more time for consultation with the exporting nation and the affected trade community.

9. Explain any decisions to provide payments or gifts to respondents, other than remuneration of contractors or grantees.

No payments or gifts are made.

10. Describe any assurance of confidentiality provided to respondents and the basis for assurance in statute, regulation, or agency policy.

As stated on the form, regulations at 50 CFR 600 Subpart E govern the confidentiality of commercial or financial information submitted under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. These regulatory protections can be applied to protect the confidentiality of commercial or financial information collected under the Moratorium Protection Act and the MMPA.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.

No sensitive questions are asked.

12. Provide an estimate in hours of the burden of the collection of information.

In the operational protocol for this information collection, respondents include the foreign country exporter who completes information about the contents of the shipment, the foreign government official or designee who certifies the form prior to export, the U.S importer who verifies the contents of the shipment received and the customs broker who files the certification with CBP. The information collected via the Certification of Admissibility is already available to the respondents identified above and is normally recorded on various business and trade documents. The burden to transfer already available information is minimal, but it is necessary to pull the information together in one place so it can be submitted at the time of entry filing and evaluated at the time of entry processing or soon after release from the port.

The estimate to complete the Certification of Admissibility Form is 10 minutes, including gathering supporting documentation (e.g., landing reports, processor receipts) readily available to parties in the relevant business transactions. NMFS estimates that, in the event of import restrictions imposed on 10 foreign export fisheries, responses under the MPA or MMPA authority would amount to 900 responses (certified shipments) per year.

Totals = 90 respondents; 900 responses, (these numbers based on an examination of trade statistics and the number of traders), and 150 total hours, on an annual basis.

13. Provide an estimate of the total annual cost burden to the respondents or record-keepers resulting from the collection (excluding the value of the burden hours in Question 12 above).

Costs for submitting the forms to CBP and NMFS via the ACE portal are nominal at an estimated $10.00 total per year in incremental filing costs (paid by U.S. importer to the customs broker as part of entry filing).

14. Provide estimates of annualized cost to the Federal government.

NMFS estimates, in the event that import restrictions are imposed, the estimated Federal costs for processing forms, assisting importers, and facilitating CBP enforcement are as follows:

Category	NOAA
Computer	270
FRN Printing	1500
Mailing/Copying	0
Salaries/Benefits	22,500
Total	$24,270

15. Explain the reasons for any program changes or adjustments.

No program changes or adjustments are made concurrent with this request for extension.

16. For collections whose results will be published, outline the plans for tabulation and publication.

Not Applicable.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons why display would be inappropriate.

Not Applicable.

18. Explain each exception to the certification statement.

There are no exceptions.

B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS

This collection does not use statistical methods.

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