81_FR_54546 81 FR 54389 - Fish and Fish Product Import Provisions of the Marine Mammal Protection Act

81 FR 54389 - Fish and Fish Product Import Provisions of the Marine Mammal Protection Act

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 157 (August 15, 2016)

Page Range54389-54419
FR Document2016-19158

This final action implements the import provisions of the Marine Mammal Protection Act (MMPA). This rule establishes conditions for evaluating a harvesting nation's regulatory program to address incidental and measures to address intentional mortality and serious injury of marine mammals in fisheries that export fish and fish products to the United States. Under this rule, fish and fish products from fisheries identified by the Assistant Administrator in the List of Foreign Fisheries can only be imported into the United States if the harvesting nation has applied for and received a comparability finding from NMFS. The rule establishes procedures that a harvesting nation must follow and conditions to meet, to receive a comparability finding for a fishery. The rule also establishes provisions for intermediary nations to ensure that intermediary nations do not import, and re- export to the United States, fish or fish products subject to an import prohibition. Agency actions and recommendations under this rule will be in accordance with U.S. obligations under applicable international law, including, among others, the World Trade Organization (WTO) Agreement.

Federal Register, Volume 81 Issue 157 (Monday, August 15, 2016)
[Federal Register Volume 81, Number 157 (Monday, August 15, 2016)]
[Rules and Regulations]
[Pages 54389-54419]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-19158]



[[Page 54389]]

Vol. 81

Monday,

No. 157

August 15, 2016

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 902

50 CFR Part 216





Fish and Fish Product Import Provisions of the Marine Mammal Protection 
Act; Final Rule

Federal Register / Vol. 81 , No. 157 / Monday, August 15, 2016 / 
Rules and Regulations

[[Page 54390]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 216

[Docket No. 0907301201-6406-03]
RIN 0648-AY15


Fish and Fish Product Import Provisions of the Marine Mammal 
Protection Act

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

ACTION: Final rule.

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SUMMARY: This final action implements the import provisions of the 
Marine Mammal Protection Act (MMPA). This rule establishes conditions 
for evaluating a harvesting nation's regulatory program to address 
incidental and measures to address intentional mortality and serious 
injury of marine mammals in fisheries that export fish and fish 
products to the United States. Under this rule, fish and fish products 
from fisheries identified by the Assistant Administrator in the List of 
Foreign Fisheries can only be imported into the United States if the 
harvesting nation has applied for and received a comparability finding 
from NMFS. The rule establishes procedures that a harvesting nation 
must follow and conditions to meet, to receive a comparability finding 
for a fishery. The rule also establishes provisions for intermediary 
nations to ensure that intermediary nations do not import, and re-
export to the United States, fish or fish products subject to an import 
prohibition. Agency actions and recommendations under this rule will be 
in accordance with U.S. obligations under applicable international law, 
including, among others, the World Trade Organization (WTO) Agreement.

DATES: This final rule is effective on January 1, 2017.

FOR FURTHER INFORMATION CONTACT: Nina Young, Office of International 
Affairs and Seafood Inspection, NMFS at [email protected] or 301-427-
8383. More information on this final action can be found on the NMFS 
Web site at http://www.nmfs.noaa.gov/ia/.

SUPPLEMENTARY INFORMATION: 

MMPA Requirements

    The MMPA contains provisions to address the incidental mortality 
and serious injury of marine mammals in both domestic and foreign 
commercial fisheries. With respect to foreign fisheries, section 
101(a)(2) of the MMPA states that the Secretary of the Treasury shall 
ban the importation of commercial fish or products from fish which have 
been caught with commercial fishing technology which results in the 
incidental kill or incidental serious injury of ocean mammals in excess 
of United States standards. For purposes of applying the preceding 
sentence, the Secretary of Commerce shall insist on reasonable proof 
from the government of any nation from which fish or fish products will 
be exported to the United States of the effects on ocean mammals of the 
commercial fishing technology in use for such fish or fish products 
exported from such nation to the United States. (16 U.S.C. 1371(a)(2))
    Section 102 (c)(3) of the MMPA states that it is unlawful to import 
into the United States any fish, whether fresh, frozen, or otherwise 
prepared, if such fish was caught in a manner which the Secretary of 
Commerce (Secretary) has proscribed for persons subject to the 
jurisdiction of the United States, whether or not any marine mammals 
were in fact taken incident to the catching of the fish. (16 U.S.C. 
1372(c)(3)).

Petition To Ban Imports

    On March 5, 2008, the U.S. Department of Commerce and other 
relevant Departments were petitioned under the MMPA to ban the imports 
of swordfish and swordfish products from nations that have failed to 
provide reasonable proof of the effects on ocean mammals of the 
commercial fishing technology in use to catch swordfish. The petition 
was submitted by two nongovernmental organizations, the Center for 
Biological Diversity and Turtle Island Restoration Network. The 
petition is available at the following Web site: http://www.nmfs.noaa.gov/ia/ gov/ia/. Copies of this petition may also be obtained by contacting 
NMFS (see FOR FURTHER INFORMATION CONTACT).
    On December 15, 2008, NMFS published a notice of receipt of the 
petition in the Federal Register and a request for public comments 
through January 29, 2009 (73 FR 75988). NMFS subsequently reopened the 
comment period for an additional 45 days from February 4 to March 23, 
2009 (74 FR 6010, February 4, 2009).
    On April 30, 2010, NMFS published an advance notice of proposed 
rulemaking (ANPR) describing options to develop procedures to implement 
the import provisions of MMPA section 101(a)(2) (75 FR 22731). On July 
1, 2010, NMFS extended the comment period for an additional 60 days (75 
FR 38070).
    Additionally, on October 5, 2011, and on March 13, 2012, NMFS 
received correspondence from 21 animal rights and animal welfare 
organizations and Save Our Seals Fund, respectively, urging it to take 
action to ban the importation of Canadian and Scottish aquaculture 
farmed salmon into the United States due to the intentional killing of 
seals asserting such lethal deterrence is subject to the importation 
ban under the MMPA sections 101(a)(2) and 102(c)(3) for international 
fisheries. NMFS decided that the proposed rule would be broader in 
scope than the 2008 petition. In particular, NMFS decided that it would 
be not limited in application to swordfish fisheries and would cover 
intentional, as well as incidental, killing and serious injury of 
marine mammals.
    NMFS published a proposed rule on August 11, 2015 (80 FR 48172) 
that included a 90-day comment period. A summary of the comments 
received on the proposed rule and how these comments were addressed in 
the final rule can be found below. Further background is provided in 
the above referenced Federal Register documents and is not repeated 
here.

National Environmental Policy Act (NEPA)

    NMFS prepared a final Environmental Assessment (EA) to accompany 
this final rule. The EA was developed as an integrated document that 
includes a Regulatory Impact Review (RIR) and a Final Regulatory 
Flexibility Analysis (FRFA). Copies of the EA/RIR/FRFA analysis are 
available at the following address: Office of International Affairs and 
Seafood Inspection, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. Copies are also available via the 
Internet at the NMFS Web site at http://www.nmfs.noaa.gov/ia/.

Overall Framework To Implement Sections 101(a)(2) and 102(c)(3) of the 
MMPA

Overview of the MMPA Import Rule Process

    NMFS is amending 50 CFR 216.24 to add a new paragraph to establish 
procedures and conditions for evaluating a harvesting nation's 
regulatory program addressing marine mammal incidental mortality and 
serious injury in its export fisheries, to determine whether it is 
comparable in effectiveness to the U.S. regulatory program. The new 
paragraph also addresses intentional mortality and

[[Page 54391]]

serious injury in fisheries that export to the United States. The 
following is a brief summary of the process for implementing MMPA 
sections 101(a)(2)(A) and 102(c)(3). Each step was discussed in detail 
in the proposed rule and is not repeated here.

List of Foreign Fisheries

    NMFS will identify harvesting nations with commercial fishing 
operations that export fish and fish products to the United States and 
classify those fisheries based on their frequency of marine mammal 
interactions as either ``exempt'' or ``export'' fisheries (See 
regulatory text in this rule for definitions of exempt and export 
fisheries).
    NMFS will publish in the Federal Register a List of Foreign 
Fisheries by harvesting nation, their fisheries, and their 
classifications. After the effective date of the rule, NMFS will 
publish a proposed List of Foreign Fisheries for comment and a 
subsequent final List. To develop this list, NMFS will notify each 
harvesting nation having fisheries that export to the United States and 
request that within 90 days of notification the harvesting nation 
submit reliable information about the commercial fishing operations 
identified, including the number of participants, number of vessels, 
gear type, target species, area of operation, fishing season, and any 
information regarding the frequency of marine mammal incidental 
mortality and serious injury, including programs to assess marine 
mammal populations. Harvesting nations will also be requested to submit 
copies of any laws, decrees, regulations, or measures to reduce 
incidental mortality and serious injury of marine mammals in those 
fisheries or prohibit the intentional killing or injury of marine 
mammals. NMFS will evaluate each harvesting nation's submission, any 
readily available information, request additional information from the 
harvesting nations, as necessary, and use this information to classify 
the fisheries. Where no information or analogous fishery or fishery 
information exists, NMFS will classify the commercial fishing operation 
as an export fishery until such time as the harvesting nation provides 
reliable information to properly classify the fishery or such 
information is readily available to the Assistant Administrator in the 
course of preparing the List of Foreign Fisheries.
    The year prior to the expiration of the exemption period and every 
four years thereafter, NMFS will re-evaluate foreign commercial fishing 
operations and publish a notice of the proposed list, for public 
comment, and the final revised List of Foreign Fisheries in the Federal 
Register. In revising the list, NMFS may reclassify a fishery if new 
substantive information indicates the need to re-examine and possibly 
reclassify a fishery. The List of Foreign Fisheries will be organized 
by harvesting nation and other defining factors including geographic 
location of harvest, gear-type, target species or a combination 
thereof. Based upon the List of Foreign Fisheries, the Assistant 
Administrator will consult with harvesting nations, informing them of 
the regulatory requirements for exempt and export fisheries to import 
fish and fish products into the United States.

Exemption Period and New Entrants

    NMFS will allow a one-time only, initial five-year exemption 
period, similar to the Interim Exemption for domestic fisheries that 
occurred in 1988 prior to implementation of the framework for 
addressing marine mammal bycatch in U.S. commercial fisheries, 
commencing from January 10, 2017. During the exemption period, the 
prohibitions of this rule will not apply to imports from the harvesting 
nation; however, harvesting nations are expected to develop regulatory 
programs to comply with the requirements to obtain a comparability 
finding during this time period.
    After the conclusion of the one-time exemption period, any 
harvesting nation or fishery that has not previously exported to the 
United States wishing to commence exports will be granted a provisional 
comparability finding for a period not to exceed twelve months. Such 
fishery will be classified as an export fishery until the next List of 
Foreign Fisheries is published. If a harvesting nation provides the 
reliable information necessary to classify the commercial fishing 
operation at the time of the request for a provisional comparability 
finding or prior to the expiration of the provisional comparability 
finding, NMFS will classify the fishery in accordance with the 
definitions. Prior to the expiration of a provisional comparability 
finding, a harvesting nation must provide information to classify the 
fishery and apply for and receive a comparability finding for its 
fishery to continue exporting fish and fish products from that fishery 
to the United States after the expiration of the provisional 
comparability finding.

Consultations With Harvesting Nations

    The rule includes three broad consultation areas: (1) Notification 
of the List of Foreign Fisheries; (2) notification of a denial of a 
comparability finding; and (3) discretionary consultations for 
transmittal or exchange of information.

Comparability Finding

    By the end of the exemption period and every four years thereafter, 
a harvesting nation must have applied for and received a comparability 
finding for its fisheries to export fish and fish products to the 
United States. Fish and fish products from fisheries that fail to 
receive a comparability finding may not be imported into the United 
States.
    To receive a comparability finding for an exempt or export fishery 
operating within the harvesting nation's exclusive economic zone (EEZ) 
and territorial sea, the high seas, or in the waters of another state, 
the harvesting nation must demonstrate it has prohibited the 
intentional mortality or serious injury of marine mammals in the course 
of commercial fishing operations in the fishery unless the intentional 
mortality or serious injury of a marine mammal is imminently necessary 
in self-defense or to save the life of a person in immediate danger; or 
that it has procedures to reliably certify that exports of fish and 
fish products to the United States are not the product of an 
intentional killing or serious injury of a marine mammal unless the 
intentional mortality or serious injury of a marine mammal is 
imminently necessary in self-defense or to save the life of a person in 
immediate danger.
    The harvesting nation must also demonstrate that it has adopted and 
implemented, with respect to an export fishery, a regulatory program 
governing the incidental mortality and serious injury of marine mammals 
in the course of commercial fishing operations in its export fishery 
that is comparable in effectiveness to the U.S. regulatory program. The 
U.S. regulatory program governing the incidental mortality and serious 
injury of marine mammals in the course of commercial fishing operations 
is specified in the MMPA (e.g., 16 U.S.C. 1386 and 1387) and its 
implementing regulations. To determine whether a harvesting nation 
maintains a regulatory program that is comparable in effectiveness to 
the U.S. regulatory program for a fishery, NMFS will examine whether 
the harvesting nation maintains a regulatory program that includes, or 
effectively achieves comparable results, as certain conditions 
specified in paragraph (h)(6)(iii) of the rule, subject to additional 
considerations specified in paragraph (h)(7) of the rule. The 
conditions specified in paragraph

[[Page 54392]]

(h)(6)(iii) are features of the U.S. regulatory program.
    Paragraph (h)(6)(iii) specifies different conditions that a 
harvesting nation must meet for the Assistant Administrator to issue a 
comparability finding for: Export fisheries operating within the EEZ or 
territorial waters of the harvesting nation, export fisheries operating 
within the jurisdiction of another state, and export fisheries 
operating on the high seas. The conditions specified in paragraph 
(h)(6)(iii) and additional considerations specified paragraph (h)(7) 
are summarized below.
    For export fisheries operating within the EEZ or territorial waters 
of the harvesting nation, the conditions include:
    1. Marine mammal stock assessments that estimate population 
abundance for marine mammal stocks in waters under its jurisdiction 
that are incidentally killed or seriously injured in the export 
fishery;
    2. An export fishery register containing a list of all vessels 
participating in the export fishery under the jurisdiction of the 
harvesting nation, including the number of vessels participating, 
information on gear type, target species, fishing season, and fishing 
area;
    3. Regulatory requirements (e.g., including copies of relevant 
laws, decrees, and implementing regulations or measures) that include:
    (a) A requirement for the owner or operator of vessels 
participating in the fishery to report all intentional and incidental 
mortality and injury of marine mammals in the course of commercial 
fishing operations; and
    (b) A requirement to implement measures in export fisheries 
designed to reduce the total incidental mortality and serious injury of 
a marine mammal stock below the bycatch limit. Such measures may 
include: Incidental mortality and serious injury limits; careful 
release and safe-handling of marine mammals and gear removal; gear 
marking; bycatch reduction devices or avoidance gear (e.g., pingers); 
gear modifications or restrictions; or time-area closures; and
    (c) for transboundary stocks or any other marine mammal stocks 
interacting with the export fishery, any measures to reduce the 
incidental mortality and serious injury of that stock that are the same 
or are comparable in effectiveness to measures the United States 
requires its domestic fisheries to take with respect to that 
transboundary stock or marine mammal stock in the United States.
    4. Implementation of monitoring procedures in export fisheries 
designed to estimate incidental mortality and serious injury of marine 
mammals in each export fishery under its jurisdiction, as well as 
estimates of cumulative incidental mortality and serious injury for 
marine mammal stocks in waters under its jurisdiction that are 
incidentally killed or seriously injured in the export fishery and 
other export fisheries with the same marine mammal stock, including an 
indication of the statistical reliability of those estimates;
    5. Calculation of bycatch limits for marine mammal stocks in waters 
under its jurisdiction that are incidentally killed or seriously 
injured in an export fishery;
    6. Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export 
fishery in relation to the bycatch limit for each stock; and comparison 
of the cumulative incidental mortality and serious injury of each 
marine mammal stock or stocks that interact with the export fishery and 
any other export fisheries of the harvesting nation showing that these 
export fisheries:
    (a) Do not exceed the bycatch limit for that stock or stocks; or
    (b) Exceed the bycatch limit for that stock or stocks, but the 
portion of incidental marine mammal mortality or serious injury for 
which the exporting fishery is responsible is at a level that, if the 
other export fisheries interacting with the same marine mammal stock or 
stocks were at the same level, would not result in cumulative 
incidental mortality and serious injury in excess of the bycatch limit 
for that stock or stocks.
    For export fisheries operating within the jurisdiction of another 
state the conditions include:
    1. With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect to that transboundary stock; 
and
    2. With respect to any other marine mammal stocks interacting with 
the export fishery while operating within the jurisdiction of the 
state, any measures to reduce incidental mortality and serious injury 
that the United States requires its domestic fisheries to take with 
respect to that marine mammal stock; and
    3. For an export fishery not subject to management by a regional 
fishery management organization:
    (a) An assessment of marine mammal abundance of stocks interacting 
with the export fishery, the calculation of a bycatch limit for each 
such stock, an estimation of incidental mortality and serious injury 
for each stock and reduction in or maintenance of the incidental 
mortality and serious injury of each stock below the bycatch limit. 
This data included in the application may be provided by the state or 
another source; and
    (b) Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export 
fishery in relation to the bycatch limit for each stock; and comparison 
of the cumulative incidental mortality and serious injury of each 
marine mammal stock or stocks that interact with the export fishery and 
any other export fisheries of the harvesting nation showing that these 
export fisheries do not exceed the bycatch limit for that stock or 
stocks; or that, if they do exceed the bycatch limit for that stock or 
stocks, the portion of incidental marine mammal mortality or serious 
injury for which the export fishery is responsible is at a level that, 
if the other export fisheries interacting with the same marine mammal 
stock or stocks were at the same level, would not result in cumulative 
incidental mortality and serious injury in excess of the bycatch limit 
for that stock or stocks; or
    4. For an export fishery that is subject to management under an 
intergovernmental agreement or by a regional fishery management 
organization, implementation of marine mammal data collection and 
conservation and management measures applicable to that fishery 
required under any applicable intergovernmental agreement or regional 
fisheries management organization to which the United States is a 
party.
    For an export fishery operating on the high seas under the 
jurisdiction of the harvesting nation or of another state:
    1. Implementation in the fishery of marine mammal data collection 
and conservation and management measures applicable to that fishery 
required under any applicable intergovernmental agreement or regional 
fisheries management organization to which the United States is a 
party; and
    2. Implementation in the export fishery of:
    (a) With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect to that transboundary stock; 
and
    (b) With respect to any other marine mammal stocks interacting with 
the export fishery while operating on the high seas, any measures to 
reduce

[[Page 54393]]

incidental mortality and serious injury that the United States requires 
its domestic fisheries to take with respect to that marine mammal stock 
when they are operating on the high seas.

Additional Considerations

    When determining whether to issue any comparability finding for a 
harvesting nation's export fishery the Assistant Administrator will 
also consider:
     U.S. implementation of its regulatory program for similar 
marine mammal stocks and similar fisheries (e.g., considering gear or 
target species), including transboundary stocks governed by regulations 
implementing a marine mammal take reduction plan, and any other 
relevant information received during consultations;
     The extent to which the harvesting nation has successfully 
implemented measures in the export fishery to reduce the incidental 
mortality and serious injury of marine mammals caused by the harvesting 
nation's export fisheries to levels below the bycatch limit;
     Whether the measures adopted by the harvesting nation for 
its export fishery have reduced or will likely reduce the cumulative 
incidental mortality and serious injury of each marine mammal stock 
below the bycatch limit, and the progress of the regulatory program 
toward achieving its objectives;
     Other relevant facts and circumstances, which may include 
the history and nature of interactions with marine mammals in this 
export fishery, whether the level of incidental mortality and serious 
injury resulting from the fishery or fisheries exceeds the bycatch 
limit for a marine mammal stock, the population size and trend of the 
marine mammal stock, the population level impacts of the incidental 
mortality or serious injury of marine mammals in a harvesting nation's 
export fisheries, and the conservation status of those marine mammal 
stocks where available;
     The record of consultations with the harvesting nation, 
results of these consultations, and actions taken by the harvesting 
nation, including under any applicable intergovernmental agreement or 
regional fishery management organization, to reduce the incidental 
mortality and serious injury of marine mammals in its export fisheries; 
and
     Information gathered during any onsite inspection by U.S. 
government officials of a fishery's operations.
     For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fishery management 
organization to which the United States is a party, the harvesting 
nation's record of implementation of or compliance with measures 
adopted by that regional fishery management organization or 
intergovernmental agreement for data collection, incidental mortality 
and serious injury mitigation or the conservation and management of 
marine mammals; whether the harvesting nation is a party or cooperating 
non-party to such intergovernmental agreement or regional fishery 
management organization; the record of United States implementation of 
such measures; and whether the United States has imposed additional 
measures on its fleet not required by an intergovernmental agreement or 
regional fishery management organization.
     For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fisheries management 
organization to which the United States is not a party, the harvesting 
nation's implementation of and compliance with measures adopted by that 
regional fisheries management organization or intergovernmental 
agreement, and any additional measures implemented by the harvesting 
nation for data collection, incidental mortality and serious injury 
mitigation or the conservation and management of marine mammals and the 
extent to which such measures are comparable in effectiveness to the 
U.S. regulatory program for similar fisheries.

Issuance or Denial of a Comparability Finding

    No later than November 30th of the calendar year when the exemption 
period or comparability finding is to expire, the Assistant 
Administrator will publish in the Federal Register, by harvesting 
nation, a notice of the harvesting nations and fisheries for which it 
has issued or denied a comparability finding and the specific fish and 
fish products that, as a result, are subject to import prohibitions.
    Prior to publication in the Federal Register, the Assistant 
Administrator, in consultation with the Secretary of State and, in the 
event of a denial of a comparability finding, with the Office of the 
U.S. Trade Representative, shall notify each harvesting nation in 
writing of the fisheries of the harvesting nation for which the 
Assistant Administrator is:
     Issuing a comparability finding;
     Denying a comparability finding with an explanation for 
the reasons for the denial; and
     Specify the fish and fish products that will be subject to 
import prohibitions on account of a denial of a comparability finding 
and the effective date of such import prohibitions.
    For a fishery that applied for and is unlikely to receive a 
comparability finding, NMFS will conduct a preliminary comparability 
finding consultation. NMFS, in consultation with the Secretary of State 
and the United States Trade Representative, will notify the harvesting 
nation prior to the notification and publication of the decision 
whether to issue or deny a comparability finding in the Federal 
Register that it is preliminarily denying the harvesting nation a 
comparability finding for the fishery, or terminating an existing 
comparability finding, and provide the harvesting nation with an 
opportunity to submit reliable information to refute this preliminary 
denial or termination of the comparability finding, and communicate any 
corrective actions taken since submission of its application to comply 
with the applicable conditions for a comparability finding. If a 
harvesting nation does not take action or the situation is not 
otherwise resolved by the time the Assistant Administrator has made all 
comparability findings, issued such findings in writing to the 
harvesting nation and published them in the Federal Register, the 
fishery will not receive and will have to reapply for a comparability 
finding. NMFS will take the information received and the results of 
such consultations into consideration in finalizing its comparability 
finding for the fishery. A preliminary denial or termination of a 
comparability finding shall not result in import prohibitions.

Duration and Renewal of a Comparability Finding

    For those fisheries receiving a comparability finding, such finding 
will remain valid for 4 years or for such other period as the Assistant 
Administrator may specify. To seek renewal of a comparability finding, 
every 4 years, the harvesting nation must submit to the Assistant 
Administrator an application by March 1 of the year when the 
comparability finding is due to expire, requesting a comparability 
finding for the fishery and providing the same documentary evidence 
required for the initial comparability finding, including documentary 
evidence of any measures they have implemented to reduce the incidental 
mortality and serious injury of marine mammals in its export fishery 
that are comparable in effectiveness to the U.S. regulatory program, in 
particular by maintaining a regulatory program that includes, or 
effectively achieves comparable results as the

[[Page 54394]]

features of the U.S. regulatory program described in paragraph 
(h)(6)(iii) of the rule. The Assistant Administrator may request the 
submission of additional supporting documentation or verification of 
statements made to support a comparability finding. If a harvesting 
nation's fishery does not receive a comparability finding during the 
renewal process, import restrictions will be applied.

Import Restrictions

    If the Assistant Administrator denies or terminates a comparability 
finding for a fishery, the Assistant Administrator, in cooperation with 
the Secretaries of the Treasury and Homeland Security, will identify 
and prohibit the importation of fish and fish products into the United 
States from the harvesting nation caught or harvested in that fishery. 
Any such import prohibition will become effective 30 days after 
publication of the Federal Register notice announcing the comparability 
finding and shall only apply to fish and fish products caught or 
harvested in that fishery. Any import prohibition imposed under this 
rule will remain in effect until the harvesting nation reapplies and 
receives a comparability finding for that fishery.

Duration of Import Restrictions and Removal of Import Restrictions

    NMFS, in consultation with the Department of State and the Office 
of the United States Trade Representative, will consult with harvesting 
nations that failed to receive a comparability finding for a fishery, 
provide the reasons for the denial, and encourage the harvesting nation 
to take corrective action and reapply for a comparability finding. A 
harvesting nation may, at any time, reapply for or request the 
reconsideration of a denied comparability finding for a fishery, and 
submit documentary evidence to the Assistant Administrator in support 
of such application or request. Upon issuance of a comparability 
finding and notification to the harvesting nation, the Assistant 
Administrator, in cooperation with the Secretaries of the Treasury and 
Homeland Security, will publish notification of the removal of the 
import prohibitions for that fishery, effective on the date of 
publication in the Federal Register.

Certification of Admissibility

    If fish or fish products are subject to import prohibitions from a 
harvesting nation's fishery, the Assistant Administrator, to avoid 
circumvention of or to facilitate enforcement of import prohibitions, 
may require and publish in the Federal Register the requirement that 
the same or similar fish or fish products from the harvesting nation's 
exempt or export fisheries that are not subject to any import 
prohibitions (i.e., those that have received a comparability finding) 
be accompanied by certification of admissibility or electronic 
equivalent filed through the National Marine Fisheries message set 
required in the International Trade Data System.
    The Assistant Administrator will notify the harvesting nation of 
the fisheries and the fish and fish products required to be accompanied 
by a certification of admissibility and provide the necessary documents 
and instruction. The Assistant Administrator in cooperation with the 
Secretaries of Treasury and Homeland Security, shall as part of the 
Federal Register notice referenced above, publish by harvesting nation 
the fish and fish products required to be accompanied by a 
certification of admissibility. Any requirement for a certification of 
admissibility shall be effective 30 days after the publication of such 
notice in the Federal Register.

Discretionary Review of Comparability Findings

    In addition, the Assistant Administrator may reconsider a 
comparability finding and may terminate a comparability finding if he 
or she determines that the fishery no longer meets the applicable 
conditions for a comparability finding. Given that comparability 
findings are made every four years, this provision allows the Assistant 
Administrator to consider the progress report submitted by a harvesting 
nation, information collected by NMFS, or information provided by 
entities including RFMOs, nongovernmental organizations, and the 
public, to determine whether the exempt or export fishery is continuing 
to meet the conditions for a comparability finding. After such review 
or reconsideration, and after consultation with the harvesting nation 
(preliminary comparability finding), a comparability finding can be 
terminated if the Assistant Administrator determines that the basis for 
the comparability finding no longer applies. The Assistant 
Administrator shall notify in writing the harvesting nation and publish 
notice in the Federal Register, of the termination and the specific 
fish and fish products that as a result are subject to import 
prohibitions.

Intermediary Nations

    To prevent any fish or fish products subject to import prohibitions 
authorized by this rule from being imported into the United States from 
any intermediary nation, including a processing nation, NMFS includes 
provisions for intermediary nations. Under these provisions, NMFS will 
identify intermediary nations that may import, and re-export to the 
United States, fish and fish products from a fishery subject to an 
import prohibition applied under this rule and notify such nations of 
the fish and fish products for which NMFS has identified them. Such 
intermediary nations must in turn certify that it does not import such 
fish and fish products from a harvesting nation's fisheries that are 
subject to import prohibitions applied under this rule or that it has 
procedures to reliably certify that its exports of fish and fish 
products to the United States do not contain such fish or fish products 
caught or harvested in a fishery subject to an import prohibition. 
Those procedures can be implemented globally or on a shipment-by-
shipment basis and could include, for example, prohibiting the import 
of the prohibited fish and fish products, prohibiting the export of 
such product to the United States, or maintaining a tracking and 
verification scheme and including certification of such scheme on a 
shipment-by-shipment basis. The steps that the Assistant Administrator 
and the intermediary nation must follow are detailed in the preamble to 
the proposed rule and the regulatory text below and are not repeated in 
this summary.
    For an intermediary nation that NMFS has identified as a nation 
that may import, and re-export to the United States, fish or fish 
products caught or harvested in a fishery subject to an import 
prohibition and that cannot certify that it does not import such fish 
or fish products caught or harvested in the fishery, such fish and fish 
products from that intermediary nation will not be imported into the 
United States, if the Assistant Administrator determines that the 
intermediary nation does not have procedures to reliably certify that 
exports of such fish and fish products from the intermediary nation to 
the United States do not contain fish or fish products caught or 
harvested in the fishery subject to the import prohibition. No fish or 
fish products caught or harvested in a fishery subject to an import 
prohibition under the rule may be imported into the United States from 
any intermediary nation. The Assistant Administrator, in cooperation 
with the Secretaries of the Treasury and Homeland Security, will 
publish a notice in the Federal Register announcing the prohibited fish 
and fish products exported from the

[[Page 54395]]

intermediary nation to the United States that are of the same species 
as, or similar to, fish or fish products subject to an import 
prohibition.
    The Assistant Administrator will review determinations under this 
paragraph upon the request of an intermediary nation. Such requests 
must be accompanied by specific and detailed supporting information or 
documentation indicating that a review or reconsideration is warranted. 
Based upon such information and other relevant information, the 
Assistant Administrator may determine that fish and fish products from 
the intermediary nation should no longer be subject to an import 
prohibition. Based on that determination, the Assistant Administrator, 
in cooperation with the Secretaries of the Treasury and Homeland 
Security, may lift an import prohibition under this paragraph and 
publish notification of such action in the Federal Register.

Progress Report

    To review the harvesting nation's ongoing progress in developing 
and implementing its regulatory program for its export fisheries, NMFS 
will require progress reports every four years. The first report will 
be submitted two years prior to the end of the exemption period and 
then every four years thereafter, on or before July 31. In this report, 
the harvesting nation will present an update on actions taken over the 
previous two years to develop, adopt, and implement its regulatory 
program, as well as information on the performance of its export 
fisheries in reducing incidental mortality and serious injury of marine 
mammals. This progress report should detail the methods used to obtain 
the information contained in the progress report and should include a 
certification by the harvesting nation of its accuracy and 
authenticity. The report allows NMFS to monitor the harvesting nation's 
efforts in its export fisheries and to work closely with a harvesting 
nation to ensure they meet and continue to meet the conditions for a 
comparability finding.

International Cooperation and Assistance

    Throughout implementation of this rule, NMFS will engage in 
consultations with harvesting nations. Consistent with existing 
authority under the MMPA (16 U.S.C. 1378), and contingent on annual 
appropriations, NMFS may provide assistance to harvesting nations to 
aid in compliance with this rule. Assistance activities may include 
cooperative research on marine mammal assessments (e.g., designing 
vessel surveys and fishery observer programs) and development of 
techniques or technology to reduce incidental mortality and serious 
injury (e.g., fishing gear modifications), as well as efforts to 
improve governance structures or enforcement capacity (e.g., training). 
NMFS would also facilitate, as appropriate, the voluntary transfer of 
appropriate technology on mutually-agreed terms to assist a harvesting 
nation in qualifying its export fishery for a comparability finding and 
in designing and implementing appropriate fish harvesting methods that 
minimize the incidental mortality and serious injury of marine mammals.

Emergency Rulemaking

    During the five-year interim exemption, NMFS may consider emergency 
rulemaking to ban imports of fish and fish products from an export or 
exempt fishery having or likely to have an immediate and significant 
adverse impact on a marine mammal stock. Under this rule, ``U.S. 
regulatory program'' is defined as the regulatory program governing the 
incidental mortality and serious injury of marine mammals in the course 
of commercial fishing operations as specified in the MMPA and its 
implementing regulations. The U.S. regulatory program at section 118(g) 
of the MMPA (16 U.S.C. 1387(g)) contains provisions for emergency 
rulemaking for U.S. domestic fisheries that are having or likely to 
have an immediate and significant adverse impact on a marine mammal 
stock. NMFS would likewise consider an emergency rulemaking for an 
export or exempt fishery having or likely to have an immediate and 
significant adverse impact on a marine mammal stock interacting with 
that fishery. Before NMFS initiates an emergency rulemaking, NMFS would 
consult with the nation with the relevant fishery and urge it to take 
measures to reduce the incidental mortality and serious injury and 
effectively mitigate such immediate and significant adverse impact on 
the marine mammal stock(s). If the harvesting nation fails to take 
measures to reduce the incidental mortality and serious injury and 
mitigate such immediate and significant adverse impact, NMFS would 
consider prohibiting the imports of fish and fish products from the 
relevant export or exempt fishery through notice and comment 
rulemaking.
    The emergency regulations or measures allow for timely treatment of 
cases where the usual process and timeframe could result in 
unacceptable risks to the affected marine mammal stock or species. 
Logically, such risks would result either from very small populations 
where any incidental mortality could result in increased risk of 
extinction or larger populations with substantial mortality that could 
become very small populations within the timeframe taken by the 
standard management process; in either situation these cases represent 
an unacceptable ecological risk.

Responses to Comments on the Proposed Rule

    NMFS received comments on the proposed rule from fishing industry 
groups, including fish importers, processors, and trade organizations, 
environmental non-governmental organizations (NGOs), private citizens, 
the Marine Mammal Commission, and foreign governments.

General Comments

    NMFS received more than 92,000 comment letters and petitions from 
private citizens through environmental NGOs supporting procedures to 
implement the MMPA import provisions. Specifically, the majority of 
commenters expressed their support for the comparability finding 
process and the application of trade measures. NMFS received numerous 
comments asking the agency to adopt the strongest measures possible to 
reduce marine mammal bycatch to conserve these resources and level the 
playing field for U.S. fishermen. Several commenters supported NMFS 
holding other nations to the same rigorous and strict standards to 
which U.S. fishermen are subject.
    Several comments received were not germane to this rulemaking and 
are not addressed in this section. These comments include actions 
outside the scope of the statutory mandate or actions covered under 
other rulemakings. Comments received are available on the Internet at 
http://www.regulations.gov under Docket ID NOAA-NMFS-2010-0098. In the 
following section, NMFS responds to the comments applicable to this 
rulemaking.

Definitions

    Comment 1: Numerous commenters recommended expanding the definition 
of ``Fish and Fish Products'' to encompass all fish products including 
highly processed products and expressed concern that the proposed 
exclusion of highly processed product has the potential to exempt from 
this rule a significant portion of U.S. imports from, or worse 
encourage exporters to increase export of process product to evade 
compliance with the MMPA.

[[Page 54396]]

    Response: NMFS disagrees that the proposed exemption would 
incentivize businesses to increase production of highly processed 
products over traditional product forms in order to circumvent the 
requirements of the rule. However, NMFS is modifying the rule to remove 
language excluding highly processed products from the definition of 
fish and fish products. The rationale for doing so is provided below in 
``Changes From Proposed Action''. If a fishery of a harvesting nation 
fails to receive a comparability finding for a fishery, fish and fish 
products caught or harvested in that fishery will be subject to an 
import prohibition, including highly processed fish products containing 
fish caught or harvested in the fishery. This revision of the 
definition of fish and fish products to remove the exclusion for highly 
processed products also has implications for the provision of this rule 
that allows the Assistant Administrator to require that the same or 
similar fish and fish products caught or harvested in another fishery 
of the harvesting nation and not subject to the prohibition be 
accompanied by a certification of admissibility and therefore has 
clarified that provision as described ``Changes to the Proposed 
Action'' below.
    Comment 2: Several commenters disagree that the MMPA authorizes 
NMFS to exempt certain fish products from this regulation. Further, 
exempting this subcategory of fish products runs contrary to the MMPA's 
accompanying regulations under 50 CFR 216.24 for ``tuna product'' which 
explicitly include processed items such as ``fish pastes,'' and ``fish 
balls, cakes, and puddings.''
    Response: For the reasons explained in the ``Changes from Proposed 
Action'' section, NMFS is modifying the rule to remove language that 
would exclude highly processed products from the definition of fish and 
fish products.
    Comment 3: One commenter suggested that the term ``remote'' be 
clarified within the definition of an exempt fishery.
    Response: NMFS believes no further clarification of the term 
``remote'' is needed. The definition clearly indicates that a 
commercial fishing operation with a remote likelihood of causing 
incidental mortality and serious injury of marine mammals is one that 
collectively with other foreign fisheries exporting fish and fish 
products to the United States causes the annual removal of:
    (1) Ten percent or less of any marine mammal stock's bycatch limit; 
or
    (2) More than 10 percent of any marine mammal stock's bycatch 
limit, yet that fishery by itself removes 1 percent or less of that 
stock's bycatch limit annually.
    Comment 4: One commenter questioned why NMFS chose only two 
categories of fisheries, exempt and export, as opposed to the 3 
categories of fisheries applicable to U.S. fisheries, stating that 
three categories of fisheries would allow the fisheries with the 
highest marine mammal bycatch to be excluded from comparability 
findings by the harvesting nations until those fisheries could be 
brought into compliance with the comparability finding requirements.
    Response: Having only two categories simplifies and streamlines the 
development of the List of Foreign Fisheries. The regulatory program 
governing U.S. fisheries requires management action for Category 1 and 
2 fisheries; this simplified approach is more practical for a 
harvesting nation developing regulatory programs to reduce marine 
mammal bycatch in its export fisheries. Nonetheless, nothing prevents 
the harvesting nation from prioritizing the export fisheries to which 
it will devote resources in developing regulatory programs for reducing 
marine mammal bycatch. Export fisheries not included in the application 
for a comparability finding and not governed by the harvesting nation's 
regulatory program will not receive a comparability finding and fish 
and fish products from those fisheries will be subject to import 
prohibitions.
    Comment 5: One commenter questioned whether the rule would address 
the bycatch of marine mammals that migrate from waters under the 
jurisdiction of one nation into U.S. waters?
    Response: Yes, and NMFS has specifically defined ``transboundary 
stock'' as a marine mammal stock occurring in the: (1) Exclusive 
economic zones or territorial sea of the United States and one or more 
other States; or (2) Exclusive economic zone or territorial sea of the 
United States and on the high seas. A harvesting nation with bycatch of 
a transboundary stock in an export fishery must develop a regulatory 
program comparable in effectiveness to the U.S. regulatory program for 
that transboundary stock.
    Comment 6: One commenter stated it is unclear why NMFS 
distinguishes between U.S. transboundary and non-transboundary stocks; 
and there is no reason NMFS should limit the application of this rule 
to U.S. stocks.
    Response: NMFS is not limiting the application of this rule to U.S. 
stocks. Because NMFS has developed regulatory measures for its domestic 
commercial fisheries with incidental mortality and serious injury of 
some transboundary stocks and shares management authority for such 
stocks with other harvesting nations, NMFS emphasizes the consideration 
of transboundary stocks in the comparability finding conditions in the 
rule. Because NMFS shares conservation and management for these stocks 
with other nations, there is a greater need for a harvesting nation to 
demonstrate that it has implemented a regulatory program for its export 
fisheries (whether operating in its EEZ, territorial sea, or on the 
high seas) that is comparable in effectiveness to the U.S. regulatory 
program for such transboundary stocks, especially for transboundary 
stocks governed by specific requirements of the U.S. regulatory 
program, including marine mammal take reduction plans.
    Comment 7: The Marine Mammal Commission recommended that NMFS 
include a definition of the term ``ocean mammals'' and that it be 
defined as equivalent to the statutory definition of the term ``marine 
mammal.''
    Response: For this rule, NMFS considers the terms ``marine mammal'' 
and ``ocean mammal'' to be equivalent.
    Comment 8: A commenter noted that NMFS defines a commercial fishing 
operation to include aquaculture activities that interact with or occur 
in marine mammal habitat (50 CFR 216.24(h)(3)(i)(A)). The commenter 
recommended that NMFS clearly state the commercial aquaculture 
operations that would not be: Impacted by the final rule, included in 
the List of Foreign Fisheries and required to have a comparability 
finding to export to the U.S.
    Response: This rule applies to aquaculture facilities sited in 
marine mammal habitat that have or may incidentally or intentionally 
kill and seriously injury marine mammals. NMFS does not intend to 
include aquaculture facilities that are freshwater-based or are not 
located in marine mammal habitat.

Application of This Rule

    Comment 9: One commenter asserts the purpose of this rule is to 
punish nations that continue to hunt whales while another urged NMFS to 
prohibit importation of fish products from Japan until they ceased 
their drive fisheries for dolphins.
    Response: NMFS disagrees. This rule does not apply to commercial 
and subsistence whaling or drive fisheries for marine mammals. 
Subsistence and commercial whaling are governed under the other 
provisions of the MMPA, other U.S. laws, and the International

[[Page 54397]]

Convention for the Regulation of Whaling.
    Comment 10: One nation asserted the U.S. does not have the 
authority to regulate marine mammals within another nation's coastal 
waters, except for those species included under an international 
management framework such as the Convention on International Trade in 
Endangered Species (CITES).
    Response: NMFS is not attempting to regulate marine mammals within 
a nation's coastal waters. NMFS is prohibiting the importation of fish 
and fish products into the United States from a fishery that has not 
been issued comparability findings and establishing criteria for such 
comparability finding. The rule does require an export fishery 
operating under the jurisdiction of a harvesting nation within its EEZ 
(or the equivalent) or territorial sea, to develop and maintain a 
regulatory program comparable in effectiveness to the U.S. regulatory 
program in order to obtain a comparability finding. The harvesting 
nation must develop and implement such a regulatory program only if it 
wishes to export fish and fish products to the United States.
    Comment 11: One nation commented that the rule should not be 
applied to all marine mammals, stating the proposed rule does not take 
into account that many marine mammal species are abundant and that 
incidental injury or mortality of some species will have little or no 
effect on their respective populations and recommended that NMFS list 
the specific species of concern, rather than all marine mammals 
generally.
    Response: NMFS disagrees. The MMPA requires that the incidental 
mortality or serious injury of marine mammals occurring in the course 
of commercial fishing operations be reduced to insignificant levels 
approaching a zero mortality and serious injury rate. This goal 
includes all marine mammals and does not differentiate based on level 
of abundance. The MMPA does prioritize action for those stocks defined 
as ``strategic,'' and the agency hopes that nations would also 
prioritize action for threatened and endangered species and those for 
which bycatch is unsustainable.

Aquaculture

    Comment 12: Numerous commenters supported inclusion of aquaculture 
operations under the rule. The Marine Mammal Commission recommended 
that foreign aquaculture operations should be subject to the import 
provisions under the MMPA recognizing that aquaculture operations 
interact with marine mammals in ways that can result in intentional or 
incidental mortality or serious injury. Additionally, several 
commenters called for an immediate investigation into lethal practices 
(e.g. intentional shooting of depredating seals) by the global salmon 
aquaculture industry, while others recommended an immediate import 
prohibition of salmon harvested by aquaculture operations that engage 
in such practices, stating it was a violation of the MMPA to import the 
product.
    Response: The regulatory definition of a commercial fishing 
operation includes aquaculture, and NMFS will classify foreign 
aquaculture operations considering both intentional and incidental 
mortality and serious injury according to the requirements of this 
rule. When making comparability finding determinations for farmed 
salmon imports, NMFS will evaluate measures to reduce interactions, 
prohibit intentional, and reduce incidental mortality and serious 
injury of marine mammals in foreign aquaculture operations as compared 
to the U.S. standards for aquaculture facilities (e.g., use of predator 
nets and the prohibition on intentional killing).
    Comment 13: One nation asked what standard or measures the United 
States has implemented in its aquaculture facilities to avoid marine 
mammal bycatch, and what marine mammal mortality and serious injury 
rates are associated with U.S. aquaculture operations.
    Response: U.S. marine aquaculture fisheries are currently Category 
III fisheries under the MMPA and are regulated under the regulations 
implementing the MMPA section 118 provisions governing the incidental 
take of marine mammals in all U.S. commercial fishing operations. These 
regulations also include provisions that prohibit the intentional 
killing and serious injury of marine mammals in commercial fishing 
operations. No U.S. marine aquaculture fishery is currently included 
under any marine mammal take reduction plan which would specify 
additional regulations specific to that particular aquaculture fishery 
(e.g., California white seabass enhancement net pens). Annual estimates 
of marine mammal incidental mortality and serious injury resulting from 
aquaculture operations, when they are reported, are published in the 
annual marine mammal stock assessment reports.

Five-Year Interim Exemption Period

    Comment 14: The majority of commenters, including private citizens 
and environmental NGOs, opposed the five-year exemption period, stating 
several species may become extinct within that timeframe, that nations 
have had a 43-year de facto exemption, that some nations and fisheries 
can comply in a shorter timeframe, and that an exemption period of that 
length weakens the incentive for a nation to develop the necessary 
infrastructure, much less the political and economic will to satisfy 
the rule's requirements. Further, some commenters assert that the MMPA 
does not authorize such an exemption. These commenters recommended 
exemption periods of 1 to 3 years, immediate implementation of a 
prohibition on intentional killing and serious injury, or adoption of 
emergency regulations for species of particular conservation concern. 
Numerous commenters stated that if the five-year exemption period is 
retained, provisions should be put in place requiring harvesting 
nations to demonstrate in the interim that they are making a good faith 
effort to comply with the rule.
    Response: NMFS will retain the five-year interim exemption because 
we believe that this exemption is needed to provide nations with 
adequate time to assess marine mammal stocks, estimate bycatch, and 
develop regulatory programs to mitigate that bycatch. The progress 
report is NMFS' means to determine if nations are making a good faith 
effort to comply with the rule. Moreover, nothing in the rule prevents 
a nation from implementing a bycatch reduction regulatory program and 
seeking a comparability finding during the five-year exemption period.
    Comment 15: The Marine Mammal Commission asserts the MMPA import 
provision is an ongoing, long-standing statutory requirement, and it 
does not see a legal basis for deferring implementation. To the extent 
that any delay can be countenanced, it should be kept to the absolute 
minimum necessary to secure the required information from exporting 
countries. The Marine Mammal Commission recommends that NMFS provide 
additional justification, including a legal analysis explaining why 
imports of fish and fish products need not be banned until the 
exporting countries provide the ``reasonable proof'' required under 
section 101(a)(2)(A), if it decides to defer implementation as 
proposed. NMFS also should explain why a shorter phase-in is not 
possible.
    Response: NMFS has concluded that a five-year exemption period is 
permissible and has provided the rationale for such in the above 
response to comment 14 and the preamble to the

[[Page 54398]]

proposed rule (See August 11, 2015 80 FR 48172).
    Comment 16: The Marine Mammal Commission recommended that NMFS 
establish a shorter exemption period for fisheries that (1) have 
bycatch of marine mammals that are critically endangered; (2) involve 
marine mammal stocks for which ample information already exists on 
their status and bycatch levels and for which monitoring and bycatch 
mitigation measures are already well developed or could be quickly 
established; or (3) are already subject to RFMO measures for monitoring 
and mitigating marine mammal bycatch. If NMFS proceeds to allow a five-
year exemption period, the Marine Mammal Commission recommended that 
harvesting nations be required to take immediate steps once the final 
List of Foreign Fisheries is published to institute programs that 
require all fishermen engaged in fisheries that might take marine 
mammals to register with the appropriate national agency to identify 
their target catch and gear type, to report all marine mammals taken, 
and to carry observers when asked to do so.
    Response: The intent of the exemption period is to provide nations 
with the time needed to assess marine mammal stocks and estimate and 
mitigate bycatch in their export fisheries. To meet these objectives 
nations will have to implement registries, and monitoring programs of 
the type recommended by the Marine Mammal Commission. NMFS believes the 
progress report will provide critical information on a nation's actions 
toward developing its regulatory program so it might receive a 
comparability finding for its fisheries.
    Comment 17: Several commenters including the Marine Mammal 
Commission recommended that in lieu of decreasing the timeframe for the 
five-year exemption period, NMFS consider implementing an emergency 
import ban to protect species facing ``significant adverse'' impacts 
during the delay period. The Marine Mammal Commission noted the 
domestic interim exemption included an emergency rulemaking provision 
that directed NMFS to issue regulations ``to prevent to the maximum 
extent practicable any further taking'' of marine mammals in a fishery 
if information being collected under the interim program indicated that 
incidental taking was having ``an immediate and significant adverse 
impact'' on any marine mammal stock.
    Response: NMFS acknowledges that the domestic interim exemption 
included emergency provisions, and believes the adoption of such 
measures would add a layer of precaution. The emergency provisions are 
included within the U.S. standards to ensure that the United States can 
move quickly to engender protections for highly at-risk species. See 
the preamble for the discussion of emergency rulemaking during the 
interim exemption period and comparability finding period.
    Comment 18: Processors and nations supported the exemption period 
stating that the majority of the harvesting nations exporting fish and 
fish products to the United States are not as advanced as the U.S. in 
developing, implementing, and enforcing fishery or protected species 
conservation and management rules; and in cases where data deficiencies 
exist, five years will likely be too short of a period to develop and 
apply rules for flag nation fleets and/or for fishing operations within 
an EEZ. These commenters recommended a ten-year exemption period, with 
one-year renewable extensions to the initial exemption period or 
flexibility in the timeline to avoid a disruption in trade that could 
arise if foreign fisheries fail to receive a comparability finding 
simply because they or even NMFS could not fulfill all the provisions 
of the rule within a non-extendable timeline.
    Response: NMFS disagrees that the exemption period should be 
increased or have one-year renewable extensions. NMFS considers the 
five-year exemption period to be sufficient time for nations to develop 
regulatory programs for their fisheries subject to this rule.

United States Regulatory Program

    Comment 19: Two nations requested information on incidental bycatch 
of marine mammals taken in U.S. fisheries and stock abundance 
estimates. One nation stated that it is important that NMFS provide all 
harvesting nations with sufficient information and suggested that NMFS 
first provide the contents of existing regulations and rules for 
conservation and management of marine mammals that the U.S. has already 
implemented as well as existing bycatch data.
    Response: This information is readily available. Information on 
marine mammal bycatch and the U.S. regulatory program and stock 
assessments can be found at http://www.nmfs.noaa.gov/pr/interactions/trt/marine_mammal_take_reduction_program.html and http://www.nmfs.noaa.gov/pr/sars/species.htm, respectively. In addition, when 
NMFS provides the List of Foreign Fisheries and the harvesting nation's 
export and exempt fisheries, NMFS will also provide harvesting nations 
with general information on the regulatory program governing the 
incidental mortality and serious injury of marine mammals in the course 
of commercial fisheries and specific regulations applicable to their 
fisheries.
    Comment 20: Several commenters recommended that NMFS adopt a 
bycatch standard that fully mirrors the U.S. standard in the MMPA 
including incorporating the MMPA's goal of reducing incidental 
mortality and serious injury of marine mammals to insignificant levels 
approaching a zero mortality and injury rate (ZMRG).
    Response: The rule defines U.S. regulatory program as the 
regulatory program governing the incidental mortality and serious 
injury of marine mammals in the course of commercial fishing operations 
as specified in the MMPA and its implementing regulations. NMFS is not 
ignoring the ZMRG standard in the rule; it has prioritized reducing 
bycatch to sustainable levels (e.g. below the bycatch limit) and will 
consider the application of the ZMRG, or metrics/measures comparable in 
effectiveness to ZMRG, to foreign fisheries providing the same 
flexibility to foreign fisheries as it has applied to analogous U.S. 
fisheries that have not met ZMRG.
    Comment 21: One commenter stated that, for marine mammal species 
that are listed as threatened or endangered under the ESA, NMFS may 
only authorize incidental mortality and serious injury from all 
commercial fisheries that have a ``negligible impact'' on the listed 
stocks. NMFS has not addressed section 101(a)(5)(E) or the negligible 
impact standard in its proposed rule.
    Response: Section 101(a)(5)(E) is one of the links to the ESA to 
ensure threatened and endangered species are adequately addressed in 
fisheries. One of the requirements in section 101(a)(5)(E) is to comply 
with monitoring and take reduction plans, which are the same elements 
included in the comparability finding process for this rule.

List of Foreign Fisheries

    Comment 22: Several commenters asked whether foreign fishery 
classifications would apply to a nation's entire fishery based on 
species, or whether there would be sub-classifications based on 
specific geographic areas and frequency of marine mammal interactions.
    Response: NMFS intends to work with harvesting nations to adopt 
classifications of fisheries that, to the extent practicable, reflect 
gear type, geographic or management areas, and

[[Page 54399]]

frequency of interaction when warranted.
    Comment 23: One commenter stated the regulatory language must be 
clear that imports of fish and fish products from a commercial fishing 
operation not on the List of Foreign Fisheries and not covered under 
this regulatory process must be banned.
    Response: NMFS disagrees. A fishery must be classified as export or 
exempt. The nation must then apply for and receive a comparability 
finding for those fisheries otherwise the fish and fish products from 
that fishery cannot be imported into the United States.
    Comment 24: Several commenters raised concern and sought 
clarification on the discretionary reasoning and factors that the 
Assistant Administrator may use to classify ``exempt'' or ``export'' 
fisheries absent adequate scientific information provided by the 
harvesting nation about the frequency and/or magnitude of incidental 
mortalities. Another commenter opposes the approach of classification 
by analogy, asserting the diverse range of gear types and 
configurations and differences in marine mammal distribution and 
behavior in various geographic locations. The Marine Mammal Commission 
recommended that, if NMFS finds that available information is not 
adequate to determine with sufficient reliability the frequency with 
which a foreign fishery takes marine mammals and from what stocks, the 
List of Foreign Fisheries identify that fishery as an export fishery 
until such information becomes available.
    Response: To classify fisheries as exempt or export fisheries in 
the absence of information from the harvesting nation, NMFS will 
evaluate information concerning factors such as fishing techniques, 
gear used, methods used to deter marine mammals, target species, 
seasons and areas fished, qualitative data from logbooks or fisher 
reports, stranding data, the species and distribution of marine mammals 
in the area, and will classify fisheries by analogy with similar U.S. 
or foreign fisheries and gear types interacting with similar marine 
mammal stocks. Where no analogous fishery or other reliable information 
exists demonstrating that the likelihood of incidental mortality and 
serious injury is remote, NMFS will classify the commercial fishing 
operation as an export fishery until such time as the harvesting nation 
provides the reliable information to properly classify the fishery or, 
in the course of preparing the List of Foreign Fisheries, such 
information becomes readily available to the Assistant Administrator.
    Comment 25: One commenter raised a concern about using readily 
available information stating NMFS should not reward a harvesting 
nation with a finding of exemption if that nation has not made a good-
faith effort to support such a finding. The Marine Mammal Commission 
was troubled that the rule could be interpreted as placing the onus on 
NMFS to gather the necessary information.
    Response: Consistent with section 101(a)(2)(A) of the MMPA, this 
rule places the burden of proof on the harvesting nation to supply the 
information to classify its fisheries. However, through the 
implementation of other regulations and participation in RFMOs, NMFS 
may have readily available information that it can use to supplement 
its evaluation and classification.
    Comment 26: One commenter sought guidance on whether depredation by 
marine mammals on fish such as albacore captured on longlines can be 
regarded as interactions under the proposed rule.
    Response: This rule addresses mortality and injury of marine 
mammals in the course of commercial fishing operations. Depredation in 
and of itself will not be considered for the purposes of this rule 
unless the outcome of that depredation is mortality or serious injury.

Application and Duration of a Comparability Finding

    Comment 27: Several commenters opposed having the comparability 
finding being valid for four years noting that, in the interim, changes 
in fishing operations, regulations, and enforcement can all affect 
compliance with the conditions of a comparability finding. Some 
commenters suggested that comparability findings be renewed annually, 
others suggested that NMFS shorten the time that comparability findings 
are valid, to more closely align with the process to issue permits for 
the incidental take of threatened and endangered species by domestic 
commercial fisheries (e.g. three years). While no commenters supported 
issuing comparability findings lasting longer than 4 years, some stated 
the regulation should explicitly state that the Administrator's 
discretion on timing may not extend beyond 4 years.
    Response: NMFS maintains that four years is an appropriate duration 
for a valid comparability finding. The rule provides adequate oversight 
during the time when a comparability finding is in effect by requiring 
harvesting nations to submit a progress report half way through the 
four-year period that comparability findings are in effect, and by 
providing the Assistant Administrator with the discretion to 
reconsider, at any time throughout the four year effective period, a 
comparability finding based on new information.

Intentional Killing and Serious Injury

    Comment 28: The majority of commenters supported the prohibition on 
intentional mortality or serious injury of marine mammals in foreign 
commercial fishing operations as a condition for receiving a 
comparability finding. Several commenters noted that because the MMPA 
prohibits ``the intentional lethal take of any marine mammal'' by 
domestic commercial fishing operations, this is the clearest standard 
applicable to domestic commercial fisheries and as such must be applied 
to foreign commercial fisheries exporting fish and fish products to the 
United States.
    Response: NMFS agrees that the rule should cover intentional 
mortality and serious injury and has retained, from the proposed rule, 
the provisions concerning intentional mortality and serious injury of 
marine mammals in the final rule.
    Comment 29: Several commenters noted that when Congress granted 
U.S. fisheries an interim exemption from MMPA's take ban in 1988, 
Congress maintained a strict prohibition on the ``intentional lethal 
taking'' of (a) any Steller sea lion, (b) any cetacean, and (c) any 
marine mammals from a depleted stock (i.e., ESA-listed species or 
stocks below Optimum Sustainable Population). 16 U.S.C. 1383a(b)(2)(C). 
Therefore, these commenters were of the view that, if NMFS adopts an 
exemption period, the agency should institute an analogous ban on 
intentional take comparable to that in the interim exemption during the 
exemption period.
    Response: NMFS acknowledges that the interim exemption under the 
MMPA included a ban on the intentional lethal taking and that ban did 
not include all species or stocks of marine mammals due to species-
specific conservation concerns relative to U.S. commercial fisheries at 
the time. The species-specific intentional lethal taking prohibition of 
the interim exemption does not include all marine mammals. Requiring 
harvesting nations to implement immediately a prohibition on the 
intentional mortality and serious injury on all or only some marine 
mammals, creates two problems. First, the application of such a piece-
meal prohibition on intentional lethal take may not realize the same 
conservation benefit internationally that it did in the

[[Page 54400]]

United States. For example, data indicate that much of the intentional 
mortality and serious injury of pinnipeds involves species other than 
Steller sea lions, which were included in the interim exemption 
prohibition. Second, it is not feasible to require such a prohibition 
immediately as nations need sufficient time to institute decrees, laws, 
or regulations to prohibit the intentional mortality and serious injury 
of marine mammals.
    Comment 30: The Marine Mammal Commission and other commenters 
expressed concern with the option that would allow imports of fish and 
fish products to the United States from fisheries in which it is 
permissible to kill marine mammals intentionally, as long as no marine 
mammals were killed or seriously injured in catching or raising the 
particular fish being exported to the United States. The Marine Mammal 
Commission stated that this is inconsistent with U.S. domestic 
standards for aquaculture and other fisheries, and provides a 
significant loophole for aquaculture operations around the world to 
circumvent the rule's requirements. It also presents significant 
enforcement problems, both in terms of monitoring whether any marine 
mammals were intentionally killed or injured in raising or harvesting 
the fish products and in differentiating seafood that can be imported 
from that which is banned. One commenter stated the statute does not 
explicitly authorize NMFS to create such a bifurcated regime, and there 
exists no general administrative power to create exemptions to 
statutory requirements based upon the agency's perceptions of costs and 
benefits. The Marine Mammal Commission and others recommended that NMFS 
require an outright prohibition on intentional mortality and serious 
injury of marine mammals in the course of commercial fishing as a 
condition to be met before any fishery, including an exempt fishery, 
could receive a comparability finding, and that the alternative 
provided by the second option be dropped.
    Response: For implementation and enforcement purposes, NMFS' 
preference is that a nation demonstrate it has prohibited the 
intentional mortality or serious injury of marine mammals in the course 
of commercial fishing operations in exempt and export fisheries unless 
the intentional mortality or serious injury of a marine mammal is 
imminently necessary in self-defense or to save the life of a person in 
immediate danger. Harvesting nations may implement this provision by 
either instituting a law, regulation, or licensure or permit condition 
applicable to its export and exempt fisheries that prohibits the 
intentional killing or serious injury of marine mammals in the course 
of commercial fishing operations. Section 102(c)(3) only applies to 
imports of fish caught in a manner proscribed by the Secretary of 
Commerce. The alternative to the outright prohibition requires a 
harvesting nation to submit documentary evidence demonstrating that it 
has procedures to reliably certify that its exports of fish and fish 
products to the United States are not the product of the intentional 
killing or serious injury of marine mammals. NMFS expects that such 
procedures would include certification programs and tracking and 
verification schemes. For NMFS to consider that such a scheme can 
``reliably'' certify their claims, the documentary evidence submitted 
by a harvesting nation must include tracking, verification, and chain 
of custody procedures ensuring, throughout the entire chain of commerce 
from the farms, to the packers, to the distributers, and finally to the 
ultimate importer -- the ability to consistently segregate fish caught 
without intentional mortality and serious injury of marine mammals. 
This mirrors traceability requirements for seafood imports as described 
in the proposed seafood traceability implementing regulations (81 FR 
6210, February 5, 2016).

Stock Assessments

    Comment 31: Several nations raised concerns that for some species 
of marine mammals (such as rare species or species with wide 
distribution ranges), abundance estimates may be inadequate or lacking 
and that requiring governments to undertake such assessments is 
burdensome. One nation recommended that NMFS provide a specific 
treatment when data for marine mammals is not available and where the 
generation of such data would entail high and disproportionate costs.
    Response: NMFS will consider all data, including abundance 
estimates, provided in a harvesting nation's application for a 
comparability finding for an export fish in light of the U.S. 
implementation of its stock assessment program for the same or similar 
marine mammal stocks and its bycatch mitigation measures for similar 
fisheries.

Bycatch Limits

    Comment 32: Several nations requested clarification on the 
calculation of bycatch limits. One nation asked how the bycatch limit 
compares to thresholds based on the scientific advice provided by the 
International Council for the Exploration of the Seas (ICES) and the 
Institute of Marine Research. Other commenters asked for examples of 
what constitutes a comparable equation. Another commenter recommended 
that NMFS rigorously define the standards applicable to determining 
whether an equation or bycatch estimation method is ``comparable'' 
including by stipulating appropriate and precautionary, recovery 
factors in the PBR equation.
    Response: In addition to the U.S. Potential Biological Removal 
(PBR) level, there are several bycatch limit calculations that could be 
considered comparable formulae; these include the Catch Limit Algorithm 
and the conservation objective of the Agreement on the Conservation of 
Small Cetaceans of the Baltic and North Seas (ASCOBANS). For example, 
the conservation objective for harbor porpoise set under ASCOBANS calls 
for all anthropogenic mortality to be reduced to less than 1.7% of the 
best available estimate of abundance. ASCOBANS has subsequently reduced 
that further to less than 1% of the best available estimate of 
abundance.
    PBR is defined by the MMPA as the maximum number of animals, not 
including natural mortalities that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population. The PBR level is the product of the following 
factor: (a) The minimum population estimate of the stock; (b) one-half 
the maximum theoretical or estimated net productivity rate of the stock 
at a small population size; and (c) a recovery factor of between 0.1 
and 1.0. The following guidelines apply to PBR elements:
     Minimum population estimate or Nmin is defined as the 
lower 20th percentile of a log-normal distribution according to Nmin = 
N/exp(0.842 * (ln(1+CV(N)2))1/2), where CV(N) is the coefficient of 
variation of the stock's abundance.
     Default values of the maximum theoretical or estimated net 
productivity or Rmax are used when stock-specific values are not 
available: 0.12 (pinnipeds and sea otters) and 0.04 (cetaceans and 
manatees).
     Recovery Factor or Fr is set at 0.1 for endangered species 
and 0.5 when stocks are depleted, threatened, or of unknown status. 
When stocks are within OSP or are increasing and incidental mortality 
has not been increasing, other values may be used up to 1.

    NMFS does not need to go further by stipulating specific recovery 
factors as

[[Page 54401]]

there is ample guidance and the definition of bycatch limit, as we have 
stated in the proposed rule, notes a comparable equation for a bycatch 
limit is one that incorporates scientific uncertainty about the 
population estimate and trend and results in sustainable levels of 
incidental mortality and serious injury while still allowing the marine 
mammal stock to grow or recover.
    Comment 33: One nation stated it is not clear how NMFS determines 
bycatch limits for incidental catches of marine mammals in individual 
fisheries given the fact that they have different stock development 
characteristics, feeding patterns, reproductive abilities, etc. The 
nation also asked from where the figure of 10 percent and below 
incidental catch level, as an objective, was taken.
    Response: NMFS has conducted a series of workshops starting in 1994 
to develop guidelines that may be consistently applied nationally to 
assess marine mammal stocks. These workshops resulted in Guidelines for 
Assessing Marine Mammal Stocks (GAMMS) and address the elements of PBR, 
abundance estimates, stock identification, etc. These guidelines and 
workshop reports can be found at http://www.nmfs.noaa.gov/pr/sars/guidelines.htm.
    The MMPA includes a goal for U.S. domestic fisheries to reduce the 
mortality and serious injury levels incidental to commercial fishing to 
``insignificant levels approaching a zero mortality and serious injury 
rate.'' NMFS has defined this insignificant threshold as 10% of the PBR 
level for a given stock. Ten percent of PBR is a level of mortality and 
serious injury incidental to commercial fisheries that, by itself, 
would allow a population to equilibrate to a level within 90 percent of 
its carrying capacity and would be considered insignificant to the 
population.
    Comment 34: One commenter was concerned that NMFS only requires 
export fisheries to reduce their mortality and serious injury below the 
bycatch limit, while allowing non-export fisheries causing bycatch of 
the same stock to exceed the bycatch limit. They recommended that NMFS 
require harvesting nations to demonstrate that, for any stock that 
interacts with an export fishery, all bycatch of that stock (both from 
export and non-export fisheries) is cumulatively below the bycatch 
limit.
    Response: Section 101(a)(2) of the MMPA only provides the U.S. 
authority to require fish imported into the United States to meet U.S. 
standards; consequently NMFS has no authority to address non-export 
fisheries. Even so, NMFS will encourage harvesting nations to reduce 
cumulative bycatch by export, exempt, and non-export fisheries to 
levels below the bycatch limits for marine mammal stocks killed or 
seriously injured in such fisheries. We hope that through the 
development of effective bycatch mitigation measures and capacity 
building efforts, there will be the collateral benefit of bycatch 
reduction in non-export fisheries.
    Comment 35: Several commenters opposed the ``cumulative exceedance 
exemption'' which allows a harvesting nation's export fisheries to 
export fish to the U.S. when the cumulative incidental mortality or 
serious injury of exporting fisheries exceeds the bycatch limit for a 
marine mammal stock or stocks provided the harvesting nation 
demonstrates that the portion of incidental marine mammal mortality or 
serious injury for which the exporting fishery is responsible is at a 
level that, if the other export fisheries of that nation interacting 
with the same marine mammal stock or stocks were at the same level, 
would not result in a cumulative mortality or serious injury in excess 
of the bycatch limit for that stock or stocks. Commenters in opposition 
noted this exception is not part of the U.S. regulatory program, does 
not ensure that a harvesting nation's mortality and serious injury 
level is below a marine mammal stock's bycatch limit or approaching 
ZMRG, and would not meet the goal of the MMPA to ensure that marine 
mammal stocks meet their optimum sustainable population. They further 
maintained that the exemption is complicated and will likely confuse 
nations trying to comply with this rule.
    Response: NMFS disagrees. NMFS adopted this approach to encourage 
compliance with the rule and avoid impacting export fisheries with low 
bycatch, while allowing nations to focus resources on fisheries with 
the highest bycatch. This is similar to the U.S. marine mammal take 
reduction program that prioritizes increased regulation of fisheries 
with high bycatch rather than fisheries that contribute little to the 
cumulative estimated bycatch.

Comparable in Effectiveness

    Comment 36: Nations, industry, and environmental NGOs suggested 
that NMFS must either define what will be deemed comparable to U.S. 
standards or provide more detail and specificity on the criteria that 
will be used to determine ``comparable in effectiveness''. Some 
commenters asserted that because ``comparable in effectiveness'' is 
vague, without establishing minimum standards that all nations must 
meet, it will be difficult for the agency to make consistent and 
objective comparability determinations. By adopting such a vague 
standard, the agency greatly reduces transparency and accountability to 
the public, making it difficult to ascertain how and why the agency 
made a particular comparability determination. Commenters urge NMFS to 
provide specific examples within the rule of alternative programs that 
it would find ``comparable.''
    Response: In using the terms ``comparable in effectiveness'' NMFS 
means that the regulatory program effectively achieves comparable 
results to the U.S. regulatory program. This approach gives harvesting 
nations flexibility to implement the same type of regulatory program as 
the United States or a program that is completely different but 
achieves the same results. For example, if a particular fishery with 
high bycatch switches to non-entangling gear and can demonstrate that 
it has virtually eliminated its bycatch, those results can be 
considered comparable in effectiveness. Likewise, if a nation chooses 
to eliminate its bycatch by implementing time/area closures and can 
demonstrate the effectiveness of such closures, that regulatory program 
may be considered comparable in effectiveness. When making this 
determination, NMFS is evaluating, in lieu of implementing all 
conditions (e.g., stock assessments and bycatch limits), a harvesting 
nation's implementation of bycatch mitigation measures that will result 
in clear and significant reductions.
    Comment 37: One commenter stated that to properly ensure that a 
harvesting nation's regulatory scheme is comparable to the U.S. 
regulatory program, a comparability finding should include a review of 
all sources of human-caused mortality and serious injury under a 
harvesting nation's jurisdiction including all of its fisheries, not 
only those fisheries planning to export to the U.S.
    Response: NMFS disagrees. Section 101 (a)(2) neither gives NMFS the 
legal authority to require nations to submit data on all human-caused 
mortality as a condition for a comparability finding nor does it 
authorize NMFS to regulate such mortality; see response to Comment 34.
    Comment 38: One commenter supported the approach outlined in 
Alternative 3 of the Environmental Assessment requiring countries to 
implement specific regulatory measures required of U.S. commercial 
fishing operations as the result of a Take

[[Page 54402]]

Reduction Plan's implementing regulations, stating such an approach 
better meets the requirements of the MMPA.
    Response: NMFS disagrees. Focusing only on those export fisheries 
for which NMFS has implemented specific regulatory requirements under a 
Take Reduction Plan would exclude many foreign fisheries from this 
regulation, permitting bycatch to continue, and providing no means to 
compel these fisheries to assess and reduce their bycatch.
    Comment 39: The Marine Mammal Commission recommends that NMFS 
provide additional details on how it would make determinations as to 
whether U.S. and foreign fisheries are analogous, and that similarities 
in the taxa, behavior, and status of the marine mammals subject to 
taking be one of the considerations.
    Response: Due to the highly variable nature of commercial fisheries 
and the marine mammals species with which they interact, NMFS cannot be 
rigid or overly prescriptive in its methodology for identifying 
analogous fisheries. To consider a fishery analogous, NMFS will use the 
best available information when considering the gear type, target 
species, and taxa of the marine mammal stocks incidentally killed and 
seriously injured.

High Seas Fisheries

    Comment 40: For fisheries operating on the high seas, one of the 
conditions for a comparability finding is that a harvesting nation must 
demonstrate how its export fisheries implement both conservation and 
management and data requirements of any international agreement ``to 
which the United States is a party.'' One commenter stated it is 
unclear why NMFS only requires compliance with agreements to which the 
United States is a party, as opposed to broadly requiring nations to 
comply with any international agreement that is applicable to that 
fishery.
    Response: When fishing on the high seas, U.S. fishermen are 
required to comply with international measures to conserve and manage 
species of living marine resources recognized by the United States, 
pursuant to the High Seas Fishing Compliance Act (HSFCA) (16 U.S.C. 
5505(1)). The United States participates in the negotiation and 
adoption of such measures. For export fisheries subject to measures 
adopted by RFMOs of which the United States is not a member, or under 
international agreements to which the United States is not a party, 
NMFS will still evaluate the harvesting nation's implementation of any 
conservation and management measures adopted under that 
intergovernmental agreement or by that RFMO as well as any other 
measures adopted by a harvesting nation that constitute its regulatory 
program governing its high seas export fisheries interacting with 
marine mammals. NMFS will then determine whether this regulatory 
program is comparable in effectiveness to the U.S. regulatory program 
for similar fisheries interacting with similar stocks.
    Comment 41: Another commenter noted that the standards for 
transboundary and non-transboundary stocks appear to be identical, and 
thus without further detail, it is unclear to the reader why NMFS is 
separating them. A second condition that an export fishery operating on 
the high seas must meet is implementation in the export fishery of: (a) 
With respect to any transboundary stock interacting with the export 
fishery, any measures to reduce the incidental mortality and serious 
injury of that stock that the United States requires its domestic 
fisheries to take with respect to that transboundary stock; and (b) 
With respect to any other marine mammal stocks interacting with the 
export fishery while operating on the high seas, any measures to reduce 
incidental mortality and serious injury that the United States requires 
its domestic fisheries to take with respect to that marine mammal stock 
when they are operating on the high seas.
    Response: These requirements target situations where the United 
States has adopted regulatory measures through a marine mammal take 
reduction plan governing U.S. vessels participating in high seas 
fisheries to reduce incidental mortality and serious injury of a 
transboundary stock. While the United States would generally attempt to 
advance such measures for adoption by the intergovernmental agreement 
or RFMO, there may be situations where the U.S. has implemented 
regulatory measures for transboundary stocks that are more restrictive 
than existing RFMO measures or where measures have not been adopted by 
the relevant international body or RFMO, for high seas fisheries that 
interact with transboundary stocks. A harvesting nation would be 
expected to implement a regulatory program for such stocks that is 
comparable in effectiveness to the U.S. regulatory program for its 
vessels operating on the high seas or the U.S. EEZ or territorial sea, 
including any relevant RFMO measures that the U.S. is applying to its 
fisheries. If the U.S. regulatory program includes measures prescribed 
for the high seas and the U.S. EEZ or territorial sea to reduce the 
incidental mortality or serious injury of transboundary stocks, and 
such stocks frequent both the high seas and the harvesting nation's EEZ 
or territorial sea, the harvesting nation must have a regulatory 
program applicable to both areas that is comparable in effectiveness to 
the U.S. regulatory program including any marine mammal take reduction 
plan measures.
    Comment 42: A commenter noted the Western and Central Pacific 
Fisheries Commission, of which the United States is a member, has 
developed draft guidelines for the safe release of encircled animals in 
the purse seine fishery, and similar international guidelines are 
available for longline captured marine mammals. Given the role of the 
United States in developing and negotiating such arrangements, they 
recommended that the application of these guidelines should be 
considered sufficient under the proposed rule.
    Response: NMFS acknowledges these guidelines but notes that RFMO 
conservation and management measures reflect multilateral agreements 
which may or may not meet U.S. standards for its domestic fisheries. 
The U.S. standard applicable to domestic fisheries under the MMPA 
prohibits the intentional encirclement of dolphins in the course of 
purse seine fishing; and there are additional regulatory requirements 
on longline fisheries to reduce the bycatch of false killer whales 
including longline gear requirements and longline prohibited areas (see 
https://www.federalregister.gov/articles/2012/11/29/2012-28750/taking-of-marine-mammals-incidental-to-commercial-fishing-operations-false-killer-whale-take).

Progress Reports

    Comment 43: The majority of commenters supported the submission of 
a progress report. One commenter suggested that the progress reports 
should be made available to the public to aid outside groups in 
evaluating the veracity of the report and the extent of compliance with 
the MMPA rule. An industry organization supported the initial progress 
report but questioned the value of continued progress reports for 
harvesting nations that have been determined to have a comparable 
regulatory system, especially with the requirement to reapply and be 
reassessed every four years. The Marine Mammal Commission recommended 
progress reports be required for all fisheries to ensure that the 
conditions that led to a comparability finding being issued remain in 
place and that each fishery continues to be comparable to U.S. 
standards, particularly in cases where complete information was not

[[Page 54403]]

provided by the harvesting nation. The Marine Mammal Commission further 
recommended that failure to meet research and monitoring standards by 
the time that the initial progress report is due should be a sufficient 
basis for implementing a trade ban immediately rather than allowing the 
full five-year exemption.
    Response: NMFS maintains that progress reports provide the agency 
with an important means to track both the development and continued 
application of a regulatory program. While NMFS is not proposing to use 
the initial or subsequent progress report as the basis for imposing 
import restrictions, NMFS can use the information or lack thereof as 
grounds to initiate consultations to guide harvesting nations in the 
development of their regulatory program or urge improved compliance 
with the conditions of a comparability finding. For example, if NMFS 
provides a comparability finding to an export fishery that has just 
implemented or newly revised its regulations to meet reduce marine 
mammal incidental mortality or serious injury to levels below the 
bycatch limit, the progress report enables NMFS to track whether such 
regulations are meeting their target. This could prompt NMFS to work 
with nations to identify and correct problem to proactively avoid 
denying or revoking the comparability finding. Progress reports can 
also signal major shifts in the fishery which either reduce or increase 
incidental mortality or serious injury, enabling NMFS to work with the 
nations to make necessary adjustments. NMFS can also use the progress 
report as the basis to initiate reconsideration of a comparability 
finding.

Consultations

    Comment 44: A commenter noted that information regarding regulatory 
requirements must be shared with nations, prior to the commencement of 
the five-year exemption period so every nation has equal opportunity to 
comply. Each nation needs an equal opportunity to share, discuss, and 
validate information.
    Response: NMFS agrees and will continue to provide information on 
the rule to nations and use every avenue possible to consult with 
nations and provide information on an equal basis to facilitate 
compliance with this rule.

Additional Consideration/Flexibility

    Comment 45: Several commenters noted that there can be multiple 
solutions to address a bycatch issue; therefore, harvesting nations 
should be afforded flexibility to set up regulatory programs to protect 
marine mammals and reduce bycatch. Different measures should not be 
discarded as long as they contribute to the required objective. 
Generally, programs that allow solutions to develop that meet the needs 
of the individual nation and communities have a higher likelihood of 
success than prescribing one standard approach.
    Response: NMFS agrees. By taking into account different approaches 
in a harvesting nation's export fishery, including alternative measures 
that could bear on the feasibility and effectiveness of certain bycatch 
mitigation measures, NMFS considers alternative measures implemented by 
the nation that are as effective or more effective than those 
applicable in U.S. fisheries. It is the essence of ``comparable in 
effectiveness.''
    Comment 46: A commenter was concerned that NMFS proposes to examine 
several ``considerations'' in determining whether a program is 
comparably effective, including ``[w]hether the measures adopted by the 
harvesting nation . . . have reduced or will likely reduce'' mortality 
and serious injury to below the bycatch limit; ``the progress'' of the 
foreign program in achieving its objectives; and ``[t]he extent to 
which the harvesting nation has successfully implemented'' bycatch 
measures. The commenter claims that this is contrary to ``United States 
standards,'' which clearly require NMFS to only permit nations to 
import if they meet or go beyond the strict standards of section 
101(a)(2).
    Response: NMFS recognizes that there will be situations, similar to 
those encountered in our domestic fisheries, where comparability 
findings determinations will occur during a time when a harvesting 
nation may be implementing new regulations or revising existing 
regulations to meet the conditions of a comparability finding. NMFS 
believes that such actions should be encouraged rather than penalized. 
In those situations, NMFS must determine whether such regulations are 
likely to, or are making progress toward, reducing marine mammal 
bycatch. The Secretary must make that same determination when 
promulgating regulations to implement domestic take reduction measures, 
as the MMPA mandates that a ``take reduction plan shall include 
measures the Secretary expects will reduce, within 6 months of the 
plan's implementation, such mortality and serious injury to a level 
below the potential biological removal level.'' 16 U.S.C. 
1387(f)(5)(A).
    Comment 47: The Marine Mammal Commission raised a similar concern 
to the one described in Comment 46, noting it would be unfortunate if 
comparability findings were granted to export fisheries at a time when 
U.S. fisheries' bycatch or marine mammal stock assessments are not 
meeting the performance standards but corrective actions are being 
implemented or developed. The Marine Mammal Commission recommends that 
NMFS base an export fishery's comparability finding on its 
comparability to the overall performance and effectiveness of the U.S. 
marine mammal science and regulatory framework over a longer time 
period.
    Response: NMFS has included in the rule the consideration of ``U.S. 
implementation of its regulatory program for similar marine mammal 
stocks and similar fisheries.'' NMFS will consider the implementation 
history of marine mammal take reduction measures and stock assessments.

Comparability Finding Requirements for New Entrants

    Comment 48: The majority of commenters opposed granting a 1-year 
provisional comparability finding to a harvesting nation or fishery 
that has not previously exported to the U.S. With a provisional 
comparability finding, NMFS will allow imports from harvesting nations 
that have not submitted ``reasonable proof'' that the new foreign 
commercial fishing operation is meeting U.S. standards for marine 
mammal bycatch. Commenters urged NMFS, once the proposed regulations 
come into force, to only allow imports from new foreign commercial 
fishing operations after they have received a comparability finding 
supported by reasonable proof. One industry commenter recommended new 
entrants be afforded the same five-year exemption period proposed for 
nations and fisheries currently exporting fish or fish products to the 
United States, and noted that there is no justification for two 
different approaches.
    Response: NMFS retains the provisional comparability finding in the 
rule. While a new entrant may or may not be a new fishery or merely an 
existing fishery that is a new exporter, is inconsequential. All 
nations will receive an initial five-year exemption period and will be 
familiar with the requirements of this rule. NMFS does not want to 
incentivize non-compliance by providing each new entrant with another 
five-year exemption period. The shorter timetable for new entrants 
provides both NMFS and harvesting nations with the minimum amount of 
time to gather information to classify the

[[Page 54404]]

fishery, apply for, and make a comparability finding determination.

Intermediary Nations

    Comment 49: Several commenters associated with the Maine lobster 
industry and the Maine Department of Marine Resources expressed concern 
with the intermediary nations provisions. A significant portion of 
Maine's lobster is sent to Canada for processing and comes back to the 
United States as a product of Canada. Commenters claim that seafood 
traceability is inadequate and existing traceability technologies are 
not operationally feasible for many fish product supply chains, 
including live lobster, to address any trade restrictions imposed by 
the proposed rule due to comingling of product and scale of operations. 
Application of an import prohibition on Canadian lobster could prevent 
millions of pounds of Maine-caught lobster from being sold in the U.S.
    Response: There is no basis now to speculate that any import 
prohibition would ensue on Canadian lobster. Also in terms of re-
imports to the U.S. of U.S. lobster, processed in Canada, the commenter 
has wrongly characterized Canada as an intermediary nation. For the 
Canadian caught lobster, Canada is the harvesting nation, and for the 
U.S. caught lobster Canada doesn't meet the definition of an 
intermediary nation because the U.S. lobster fishery is not on the List 
of Foreign Fisheries. If the Canadian lobster fishery fails to receive 
a comparability finding, the fish and fish products harvested in the 
Canadian lobster fishery would be subject to an import prohibition and 
NMFS may require a certificate of admissibility accompany processed 
lobster from Canada that is not harvested in the Canadian lobster 
fishery. According to Maine Department of Marine Resources (DMR), in 
2014, Maine imported $238 million of seafood from Canada. However, DMR 
did not stipulate what percentage of these imports are Maine-caught 
lobsters being re-imported to the U.S. Two actions appear to mitigate 
any potential impact from requiring a certificate of admissibility 
under this rule. First, Maine is increasing its lobster meat processing 
capabilities. In 2010, there were five companies processing lobster, in 
2013 that number increased to 15 firms processing approximately 20 
million pounds of meat. As Maine continues to increase its processing 
capacity, any potential economic impact from requiring a certificate of 
admissibility would be lessened.
    Second, Canada is implementing traceability measures, not in 
response to this rule, but to global forces demanding seafood 
traceability throughout supply chains. In 2011 the Canadian Council of 
Fisheries and Aquaculture Ministers undertook the ``Lobster 
Traceability Pilot Project'' the objective of which was to ``test the 
implementation of a seafood traceability system with practical 
experience, with real-life situations and challenges, and with a small 
number of participants at each step of the lobster value chain (a small 
number of fishermen, a few processors, one or two distributors, 
etc.).'' The report of the pilot project lays out traceability 
requirements and models based on existing government regulations and 
existing traceability programs that Canada should use as it moves 
forward with its traceability program. The pilot project identified 
that the primary requirement of any traceability program must be that 
it can fully trace lobster, at any point in the supply chain, back to 
the source within 24 hours. Globally recognized basic models for 
traceability, and one implemented in the U.S. Bioterrorism Act, include 
a ``one up, one down'' approach. This mandates that each organization 
in the supply chain must be able to identify from whom, where, and when 
the product was received and to whom, where, and when the product was 
sent. Since this pilot project report several harvesters and processors 
have adopted traceability programs including the lobster fishery on the 
Gaspe Peninsula in Quebec and the Fisheries, Science Stewardship and 
Sustainability Board implemented a Newfoundland, Labrador lobster 
traceability program. As Canadian importers and processors continue to 
develop and roll-out additional tracking, verification, and 
traceability procedures that will allow for the differentiation of 
U.S.-harvested product from Canadian product, Canada should be able to 
meet any certification of admissibility requirements the AA may impose 
on processed lobster from Canada.
    Comment 50: The proposed regulations call for any nation that NMFS 
identifies as a possible intermediary nation to either prohibit the 
importation of fish or fish products from fisheries subject to import 
prohibitions under this rule or to have procedures to reliably certify 
that exports of fish and fish products exported to the United States do 
not contain fish or fish products caught or harvested in a fishery 
subject to an import restriction. Several commenters expressed concern 
that this approach introduces additional challenges to traceability and 
allows for the mixing of legally and illegally sourced fish; 
subsequently allowing illegally sourced fish to enter international 
trade as a ``legal'' product of the exporting nation. Another commenter 
stated that the rule lacks any real details as to what constitutes a 
reliable certification and does not specify what type of port state 
measures will be expected to monitor transshipments, loading, 
unloading, segregation of catch, processing of raw product from mixed 
sources; what type of effective monitoring, control and surveillance 
systems NMFS will require to be in place, or what type of legislative 
and administrative measures will be required to support a reliable 
catch documentation system.
    Response: NMFS is neither prescribing the details for traceability 
or segregation of fish and fish products caught or harvested in a 
fishery subject to an import restriction nor defining what constitutes 
a reliable certification. The burden to develop these certification 
procedures rest on the possible intermediary nation, and NMFS wants to 
provide such nations with the flexibility to determine how best to 
comply with the intermediary nation requirements. If the nation's 
procedures can reliably certify that exports of fish and fish products 
from the nation to the United States do not contain fish or fish 
products caught or harvested in a fishery subject to an import 
prohibition, NMFS will continue to allow trade in those fish and fish 
products from that nation.

Certificate of Admissibility

    Comment 51: Several commenters including the Marine Mammal 
Commission were extremely concerned that the rule would allow a 
harvesting nation denied a comparability finding for one fishery to 
export that same seafood product from another fishery in another region 
or using a different gear type, which presents considerable risk that 
the trade ban could be bypassed. One commenter believes the possibility 
of fraud or even accidental mislabeling is too great, and the 
documentation required from the exporting nation is too complex to 
expect compliance or detection of violations by the United States. 
Therefore, the Marine Mammal Commission recommended that, if a 
harvesting nation fails to receive a comparability finding for a 
certain seafood product produced by a given fishery, then all exports 
of that seafood product from all fisheries should be prohibited until 
the harvesting nation is able to meet U.S. standards, unless the 
harvesting nation and intermediary

[[Page 54405]]

nation or the United States are able to design and implement a tracking 
program that provides reasonable assurance that no prohibited fish or 
fish products are being exported to the United States.
    Response: NMFS disagrees and believes the rule addresses the 
concern through provisions providing for the Assistant Administrator to 
require a Certification of Admissibility on the same or similar fish 
and fish products caught or harvested in another fishery of the 
harvesting nation and not subject to the prohibition. Requiring a 
Certification of Admissibility properly places the burden on the 
harvesting nation to substantiate the attestation on the Certification 
of Admissibility form that the fish or fish products are not caught or 
harvested from the fishery subject to an import prohibition. The 
Certification of Admissibility avoids penalizing export fisheries that 
receive a comparability finding by allowing the same or similar fish 
and fish products from those fisheries to enter the United States.
    Comment 52: A nation asked what constitutes other readily available 
sources and how NMFS will determine the veracity of that information. 
Another commenter expressed concern that NMFS could potentially rely on 
information provided by nongovernmental organizations and the public 
and asked how NMFS would ensure that information provided by 
nongovernment organizations and public sources is substantiated and 
credible if utilized in comparability finding determinations.
    Response: NMFS will analyze and assess readily available 
information from a variety of sources, including scientific literature 
and reports from RFMOs and intergovernmental organizations. NMFS will 
evaluate which information and evidence is most appropriate for use in 
classifying fisheries and making comparability findings. This 
information could include data actively gathered by the U.S. Government 
as well as data offered by other nations, or international 
organizations (such as RFMOs), institutions, or arrangements that 
provides a reasonable basis to evaluate comparability findings or 
classify fisheries. NMFS decisions under this rule must comply with the 
Administrative Procedure Act, which prohibits arbitrary and capricious 
decision making.

Burden of Proof and Non-Comparability Findings

    Comment 53: Several commenters note that the proposed rule rightly 
places the burden of proof on the harvesting nation to provide the 
information necessary to show that fish and fish products exported to 
the United States were not caught in ways that exceed U.S. marine 
mammal protection standards. Unless sufficient evidence is presented by 
the exporting nation, imports of such fish and fish products are to be 
banned. Additionally, several commenters recommended that NMFS reject 
the options of issuing non-comparability findings or issuing 
comparability findings unless it was determined that such a finding was 
unwarranted. Other commenters noted that neither of these are viable 
options, as neither allows a process for the U.S. to ensure compliance 
with the MMPA before allowing access to the U.S. market, and both would 
place the burden of proof on NMFS. The MMPA requires the harvesting 
nation to provide evidence of compliance to maintain or gain access to 
the U.S. market; this process provides greater incentive for compliance 
and also allows for bilateral dialogue and U.S. technical and funding 
support to support compliance. The regulations, as proposed, will go 
much further in ensuring the goal of marine mammal protection across 
the globe. Likewise, the Marine Mammal Commission recommended that NMFS 
either issue or deny a comparability finding, rather than issuing a 
``Finding of Non-Comparability for nations that do not meet 
comparability finding requirements'' as it would violate the MMPA by 
switching the burden of proof onto the U.S. government by allowing 
imports to continue until NMFS has collected sufficient information to 
show that the measures in place for a given fishery are not comparable. 
The Marine Mammal Commission further recommended that the final rule 
clearly specify that harvesting nations be issued a comparability 
finding only if they meet the U.S. standards, rather than be issued a 
comparability finding unless it is shown that they do not meet the 
applicable requirements.
    Response: The MMPA bans imports of fish and fish products that 
result in the incidental morality or serious injury of marine mammals 
in excess of U.S. standards for administering the ban to ``insist on 
reasonable proof from the government of any nation from which fish or 
fish products will be exported to the United States of the effect on 
ocean mammals of the commercial fishing technology in use for such fish 
or fish products exported from such nation to the United States.'' 16 
U.S.C. 1371(a)(2)(A). Thus, this rule requires any harvesting nation 
submitting an application for a comparability finding for a fishery to 
provide documentary evidence demonstrating that it has met the 
applicable conditions for a comparability finding for that fishery, 
including reasonable proof as to the effects on marine mammals of 
commercial fishing technology in use in the fishery for fish or fish 
products exported from such nation to the United States.
    Comment 54: One commenter suggested that NMFS could presume that a 
harvesting nation's standards are comparable in effectiveness to those 
of the United States upon presentation of reasonable proof of a valid 
marine mammal protection program. Such a country could export fish to 
the United States unless NMFS issued a non-comparability finding upon 
closer examination of the nation's application, or a comparability 
finding would automatically issue if NMFS did not act on the 
application within a specified time period, perhaps six months, subject 
to a later determination of non-comparability. The commenter also 
suggested that NMFS consider third party certifications of foreign 
fisheries, as sufficient to establish comparability findings and 
certifications of admissibility in order to reduce redundant efforts. 
Likewise one nation recommended NMFS consider Marine Stewardship 
Council (MSC) certifications in support of program efficiencies, 
towards establishing exempt fisheries classifications under the 
proposed rule, since amongst other criteria, the MSC certification 
considers marine mammal bycatch.
    Response: NMFS disagrees, see response to Comment 53. Nothing in 
the MMPA authorizes NMFS to abrogate its responsibility to determine 
whether a fishery has bycatch in excess of U.S. standards to a third-
party issuing certifications for other market or ecological purposes. 
NMFS cannot outright use third-party certifications as a proxy that an 
export fishery is meeting the conditions of a comparability finding. 
NMFS can consider such information as part of the documentary evidence 
that a harvesting nation submits to receive a comparability finding. 
Currently, NMFS does not recognize MSC certification in its management 
of protected species because the criteria for obtaining MSC 
certification do not comport with all the specific requirements of the 
MMPA or the ESA. Therefore, NMFS cannot base determinations to issue 
comparability findings solely on MSC certification.
    Comment 55: Several nations asserted that NMFS should issue a 
comparability

[[Page 54406]]

finding in situations where the agency cannot evaluate an application 
within the stipulated timeframe or cannot judge whether the harvesting 
nation's regulatory program is comparable in effectiveness, due to 
scientific uncertainty, the lack of data, absence of consensus among 
scientists, or technical reasons such as there is no similar fishery. 
While other commenters stressed that, in the absence of reasonable, 
direct proof from a harvesting nation, NMFS should not render a 
comparability finding.
    Response: NMFS will only make its comparability finding 
determinations based on the information provided by the nation, and any 
other readily available information, taking into consideration 
scientific uncertainty.

Reasonable Proof

    Comment 56: Several commenters recommended that NMFS define 
``reasonable proof.'' Some commenters stated that requiring harvesting 
nations to provide documentary evidence of sufficient detail and an 
attestation that the evidence is accurate does not define the specific 
requirements which represent ``reasonable proof.'' Other commenters 
stated, given the MMPA's reliance on the best available scientific 
information, NMFS should incorporate this standard into the meaning of 
``reasonable proof'' for the submission of scientific information and 
should make determinations on Lists of Foreign Fisheries and 
comparability using the best scientific information available for 
science-based factors. The Marine Mammal Commission interprets the 
``reasonable proof'' requirement of section 101(a)(2)(A) as placing the 
onus on the exporting country to provide information of sufficient 
quality and reliability to make the required showings. The Marine 
Mammal Commission asserts that the proposed rule does not include clear 
mechanisms for NMFS to ensure the reliability of the information that 
is submitted and recommended that NMFS require the harvesting nation to 
provide information in sufficient detail to demonstrate its 
reliability.
    Response: NMFS will, as a matter of practice, use the best 
scientific information available. This rule does not define 
``reasonable proof''; but, in our guidance to harvesting nations, NMFS 
will make clear that the information provided by a harvesting nation in 
its application for a comparability finding must include documentary 
evidence of sufficient detail, quality, and reliability for NMFS to 
fully evaluate the regulatory program for a given export fishery.

Capacity Building

    Comment 57: The Marine Mammal Commission urges NMFS to pursue one-
on-one consultations, as well as capacity building, whenever possible. 
The Marine Mammal Commission and other commenters stated it would be 
important for NMFS to have sufficient funding in order to provide 
``carrots'' and not just ``sticks'' to build capacity and encourage 
compliance. One commenter recommended that NMFS, in conjunction with 
cooperating nations, establish a permanent fund for research and 
implementation, and work in conjunction with foreign nations to make 
new bycatch reduction technologies available to all. Other commenters 
submitted that budgetary constraints and realities make direct capacity 
building assistance to other nations for MMPA implementation unlikely, 
especially given the number of competing priorities.
    Response: NMFS, compliant with requirements regarding 
Congressionally-appropriated funding, will work cooperatively with 
harvesting nations to assist those nations in reducing their marine 
mammal bycatch and provide appropriate assistance to help such nations 
obtain a comparability finding. While NMFS cannot commit to 
establishing a fund (given this would require Congressional 
appropriations), we note that capacity building can take many forms, 
including technical collaboration between staff at NMFS and harvesting 
nations.
    Comment 58: The Marine Mammal Commission recommended that any 
harvesting nation seeking a comparability finding should be subject to 
a shorter exemption period if the harvesting nation has benefited from 
capacity building from the United States in designing the bycatch 
reduction program.
    Response: NMFS disagrees; the capacity building program is designed 
to help those nations, species, and fisheries most in need to comply 
with the comparability finding requirements. The Marine Mammal 
Commission recommendation would be a disincentive for nations to seek 
and participate in capacity building efforts.
    Comment 59: Numerous commenters expressed concern that this rule 
would create a complex and cumbersome regulatory program for NMFS to 
administer and the process of evaluating comparability finding 
applications will be very time and resource consuming given the number 
of harvesting nations, especially with the added layer of complexity of 
having to potentially translate existing rules and applications into 
English. Commenters were troubled that implementation of this rule, 
including its capacity building, has the potential to divert already 
limited resources necessary to implement MMPA provisions for domestic 
fisheries and result in other unintended consequences to U.S. 
fisheries. Still others were concerned that the proposed regulations 
put a sizable administrative burden on an agency that is resource-
constrained and, without additional resources, these tasks may not be 
accomplished within the prescribed timeframes. A commenter recommended 
that NMFS request and ensure that the agency has the appropriate budget 
to fully implement the final regulatory regime. The Marine Mammal 
Commission recommended that the preamble to the final rule estimate the 
resource requirements (staff, funding) needed to implement the rule and 
identify the steps that will be taken to secure those resources (e.g., 
new budget initiatives, reallocation).
    Response: NMFS acknowledges these concerns and will work, within 
its appropriated budget, to allocate sufficient resources toward the 
implementation of this program while continuing to meet its domestic 
conservation, science, and management obligations. The tasks and the 
actions to administer the rule are set out in Table 17 of the RIR. NMFS 
estimates that implementation of this rule will cost approximately $0.9 
million per year, which is based on the cost of NMFS and contract staff 
to carry out these activities. NMFS estimates that a total of 3.5 full 
time employees (FTEs) and two contract employees with subject matter 
expertise will be required. The 3.5 FTEs are already part of the plan 
for hiring for the Office of International Affairs and Seafood 
Inspection (3 FTEs) and the Office of Sustainable Fisheries (0.5 FTEs) 
and therefore this activity will not require additional personnel or 
funds. NMFS has provided an estimate in the Final Regulatory Impact 
Review of the cost for NMFS to administer the rule and the task 
associated with the rule.
    Comment 60: The Marine Mammal Commission recommended that NMFS 
explore some form of cost recovery to supplement funding needed to 
implement the import provisions of the MMPA. A commenter specifically 
suggested a ``sustainability fee'' levied on foreign fisheries 
commensurate with their level of bycatch. Recognizing the multi-billion 
dollar value of seafood products imported annually into the United 
States, shifting the burden of funding research and information 
collection onto those nations that benefit from selling fish and fish

[[Page 54407]]

products to the U.S. market is a way to reduce the costs to NMFS.
    Response: The MMPA does not authorize NMFS to collect such fees, 
making implementation of a cost recovery system impossible.

Monitoring, Verification, and Enforcement

    Comment 61: A commenter noted that given the sources of imported 
seafood subject to the MMPA import rule are nations that likely lack 
the capacity and perhaps the will to effectively monitor and control 
both their fishing activities and their seafood supply chain, there is 
substantial opportunity for fraudulent declarations intended to 
circumvent the intent of this rule and any sanctions imposed pursuant 
to that authority. The commenter recommended that NMFS make extra 
efforts to ensure the veracity of declarations and take swift action to 
prohibit imports if verification is not clearly documented or observed. 
Several other commenters noted that NMFS should consider the link 
between illegal, unregulated and unreported (IUU) fishing rates and 
incidental bycatch and should modify the proposed rule to require 
examination of IUU data when making a comparability finding.
    Response: NMFS acknowledges that the Presidential Task Force on 
Combating Illegal, Unregulated, and Unreported (IUU) Fishing and 
Seafood Fraud will provide a helpful tool for use in assessing 
comparability. The proposed regulations will establish traceability for 
some marine species from the point of catch or the location of the 
aquaculture facility to the first point of sale in the United States. 
This documentation requirement will aid NMFS in determining whether 
seafood came from a legal fishery, add more transparency to the supply 
chain to address IUU fishing and seafood fraud, and help enforce 
compliance with this final rule.
    Comment 62: Several commenters criticized NMFS for failing to 
provide details as to how it intends to prevent fraud and to ensure the 
authenticity and accuracy of information submitted for comparability 
findings and certifications of admissibility. They questioned how NMFS 
would ensure that comparability findings are based on a truly effective 
program rather than one that only looks good on paper. Similarly, the 
Marine Mammal Commission recommended that NMFS require exporting 
countries to submit more than just a basic written description of its 
incidental take program to obtain a comparability finding. The Marine 
Mammal Commission noted that NMFS must take into account not only the 
statutory or regulatory requirements imposed on foreign fishermen but 
also the corresponding level of compliance. Therefore, the Marine 
Mammal Commission recommended that NMFS require nations to provide 
information on the methods and effectiveness of fishery monitoring and 
enforcement activities in addition to the overall marine mammal bycatch 
reduction program.
    Response: NMFS agrees that implementation and enforcement of a 
regulatory program is critical to its effectiveness and will take these 
factors into account in making comparability determinations. NMFS 
believes that it has included data and information verification 
safeguards through the rule's provisions including allowing other 
entities to challenge a comparability finding through the submission of 
information demonstrating that the conditions for a finding are not 
being met.

International Agreements

    Comment 63: The Marine Mammal Commission suggested that, in 
addition to working bilaterally on capacity building, NMFS should 
continue a multilateral effort to develop guidelines for reducing 
marine mammal bycatch through the United Nations Food and Agriculture 
Organization, much as was done for sea turtles. In addition to 
providing marine mammal bycatch guidance for nations to apply in their 
small-scale domestic fisheries, these guidelines could be a powerful 
tool in multilateral negotiations within RFMOs on measures to address 
marine mammal bycatch. One nation recommended that the appropriate 
approach should be international action rather than unilateral 
measures; and strongly urged the U.S. to seek an international 
agreement on a common standard for by-catches of marine mammals that 
are in conformity with international trade law.
    Response: NMFS agrees and will continue its multilateral efforts to 
develop guidelines for reducing marine mammal bycatch under the United 
Nations Food and Agriculture Organization. Consistent with the 
legislative intent of the MMPA, NMFS will work with the U.S. Department 
of State to protect marine mammals through the adoption of measures in 
relevant international fora that require reporting of bycatch data and 
use of bycatch mitigation gear. NMFS will also continue its efforts to 
work cooperatively with nations that lack sufficient capacity for 
fisheries monitoring, control, surveillance, and bycatch mitigation and 
assist these nations to achieve sustainable fisheries.

Economic Burden

    Comment 64: One commenter stated that most foreign nations 
exporting fish and fish products to the U.S. are unlikely to have 
comparable marine mammal protection legislation in place and thus 
unlikely to have information needed to meet the comparability finding 
requirements. As a result, countries that export a small number of 
products may choose to stop exporting to the U.S. if the costs 
associated with meeting the MMPA import provision requirements outweigh 
the benefits, and those that wish to obtain comparability findings 
could require compliance with marine mammal measures only for sectors 
that export fish to the U.S., which may represent a small portion of 
their fisheries.
    Response: NMFS cannot control which export fisheries will seek 
comparability findings and choose to continue to export to the U.S. 
market. NMFS has crafted a rule that implements the relevant provisions 
of the MMPA, establishes clear standards, allows flexibility to comply 
with those standards and, when possible, offers assistance to achieve 
those standards.
    Comment 65: A commenter questioned NMFS' statement that ``[n]o U.S. 
industrial sector is likely to be directly affected by [this] 
rulemaking.'' While it is true that the burden of complying with the 
proposed regulation will be borne by NMFS and the foreign harvesting 
nations, the U.S. seafood supply chain relies heavily on having access 
to imported seafood. Any uncertainties to the availability of supply 
will impact pricing and could jeopardize jobs. The burden to the U.S. 
industry is difficult to estimate without having a sense of which, if 
any, of the over 120 nations would be successful in achieving a 
comparability finding and thus be allowed to continue to export fish 
and fish products to the U.S. Another commenter objected to the lack of 
economic impact analysis included in the Environmental Assessment for 
the proposed rule, especially for the U.S. lobster industry, claiming 
NMFS' inability to identify with certainty the nations that will fail 
to obtain a comparability finding should not absolve the agency of its 
obligation to make a good faith attempt to identify and analyze the 
significant adverse impacts to state and local economies that may 
result from trade restrictions imposed by the proposed rule. Another 
commenter challenged NMFS' assertion that one country's seafood can 
easily be

[[Page 54408]]

substituted for another's. As stated, ``it is possible that a 
substitute product will be more expensive or otherwise less preferable 
to a prohibited foreign fish or fish product.'' If the substitute is 
more expensive, consumers will not buy it. To the extent that they 
purchase another seafood product, the impact generally may be lessened, 
albeit not to the importer who suddenly finds himself with no products 
and no customers. In that situation import prohibitions will be 
devastating to those U.S. businesses built around that particular 
supply.
    Response: There are several factors that would have to occur for 
the regulations to directly increase costs to U.S. suppliers. The 
fishery subject to a ban would need to provide a significant proportion 
of the product to the U.S. Among the most heavily imported seafood 
products into the U.S., there are relatively few countries that 
presently provide a disproportionately large amount. The RIR provides 
data on the top exporting nations for the most widely imported 
categories of seafood. For example, Thailand is a major supplier of 
shrimp and tuna; however, for much of that product they are the 
processing (intermediary) nation and not the harvesting nation. Chile 
and Canada are major suppliers of salmon. Most fisheries supply a 
relatively small amount of product such that importers should be able 
to source an equivalent amount of product from another fishery. NOAA 
recognizes that substitute product may be less desirable and/or more 
expensive, but it would be speculative to quantify these costs. 
Additionally, there are important intermediary nations in the 
processing of certain fish and fish products and the cost of a trade 
prohibition to the U.S. suppliers and consumers would be contingent 
upon the role and behavior of intermediary nations.
    If a foreign nation's ability to import certain fish or fish 
products into the United States is limited upon the failure of a 
particular export fishery to receive a comparability finding and the 
subsequent application of import prohibitions, this may impact the 
ability of U.S. suppliers to access fish or fish products from that 
nation. NMFS assumes that for the majority of the fish and fish 
products imported and consumed alternative sources of fish and fish 
products could mitigate the impacts of restrictions on U.S. suppliers' 
access to fish and fish products. NMFS will continue to work with 
partner resource agencies in the Federal and state governments to 
obtain the data necessary to fully understand and analyze potential 
trade implications of any import prohibition.

Level Playing Field

    Comment 66: Numerous commenters supported efforts to level the 
playing field for U.S. fisheries, noting that American fishermen comply 
with the requirements of the MMPA in conducting their fishing 
activities, and those efforts come at an increased cost, so it is only 
fair to U.S. fisheries that a level playing field exists such that 
importing fisheries abide by similar standards when introducing fish 
into the U.S. market.
    Response: NMFS agrees that the intent of sections 101(a)(2) and 
102(c)(3) of the MMPA is to ensure that all fish and fish products 
entering the U.S. market was caught or harvested in fisheries meeting 
the U.S. standards for marine mammal bycatch.

Trade Considerations

    Comment 67: One nation contended that not all marine mammals, 
including dolphins and whales, are threatened to extinction; therefore, 
it is not acceptable for an importing country to unilaterally impose 
trade restriction on exporting countries based solely on its unilateral 
sense of value. Another nation noted that the rule may create 
unnecessary obstacles to trade, because it requires considerable and 
unknown use of administrative and human resources relating to 
biological research, record keeping and statistics for the exporting 
countries, in particular developing countries, and seeks to influence 
the specific policy decisions of trading partners. Several questioned 
whether the rule is consistent with the WTO obligations of the U.S.
    Response: NMFS is mindful of U.S. obligations under the WTO 
Agreement when implementing the provisions of the MMPA and works with 
the Office of the U.S. Trade Representative to ensure that any actions 
taken under the MMPA are consistent with these obligations. Agency 
actions and recommendations under this final rule will be in accordance 
with U.S. obligations under applicable international law, including the 
WTO Agreement. Consistent with the WTO Agreement and U.S. obligations 
under other free trade agreements, NMFS will consider a harvesting 
nation's existing mechanisms, where they provide for comparable 
protection of marine mammal species and are appropriate to the 
conditions in the harvesting nation. By taking into account different 
conditions in a nation's fishery, including conditions that could bear 
on the feasibility and effectiveness of certain bycatch mitigation 
measures, NMFS considers alternative measures implemented by the nation 
that are as effective or more effective than those applicable in U.S. 
fisheries.
    Comment 68: One commenter suggested that NMFS did not consider 
potential retaliatory responses of foreign markets on exports from the 
United States and the impact of such retaliation on U.S. exports. If 
the U.S. violates WTO standards by insisting that a sovereign nation 
with different laws and social mores comply with a complex marine 
mammal regulatory scheme such as is in place for U.S. fisheries, what 
makes NMFS think that said sovereign nation will not exercise its 
rights under the WTO to retaliate against U.S. exports?
    Response: As noted in the response to Comment 67, the rule is 
designed to enable NMFS to apply this entire regulation, including any 
import prohibitions on certain fish or fish products, consistent with 
U.S. international obligations, including the WTO Agreement. Included 
in NMFS' approach is its intention to regulate in a fair, transparent, 
and non-discriminatory manner and to make determinations based on the 
best available science.
    Comment 69: A commenter noted that the public will be challenged in 
assisting NMFS with comparability findings as it will not be informed 
about what information a nation has submitted and what information the 
agency already has and what it needs. They recommended NMFS review the 
proposed compliance process and identify additional opportunities for 
public notice and comment; and urged NMFS to provide for notice and 
comment on its proposed comparability findings.
    Response: NMFS believes that the rule contains ample opportunity 
for input from the public, including at the point of publishing the 
List of Foreign Fisheries, the call for information on bycatch under 
the Moratorium Protection Act that NMFS intends to use to gather 
additional information on marine mammal bycatch, and the ability to 
challenge comparability finding determinations published in the Federal 
Register.

Changes From Proposed Action

    In addition to streamlining the final rule to reduce duplication 
and improve readability, NMFS has made several changes in the final 
rule to respond to public comments, and provide clarification. The key 
changes are outlined below.

[[Page 54409]]

1. Changes to the Definition of Fish and Fish Products

    In the proposed rule, ``fish and fish products'' was defined as any 
marine finfish, mollusk, crustacean, or other form of marine life other 
than marine mammals, reptiles, and birds, whether fresh, frozen, 
canned, pouched, or otherwise prepared in a manner that allows species 
identification, but did not include fish oil, slurry, sauces, sticks, 
balls, cakes, pudding and other similar highly processed fish products. 
Commenters strongly opposed this exemption arguing it would exclude 
from the regulatory requirements a significant proportion of fish and 
fish product imports so this definition has been revised in response to 
public comments. NMFS is removing from the definition of fish and fish 
products the exemption pertaining to fish oil, slurry, sauces, sticks, 
balls, cakes, pudding and other similar highly processed fish products. 
NMFS had originally excluded these products because due to the high 
degree of comingling or processing through the supply chain that may be 
associated with these products and the potential difficulty identifying 
the source of fish contained in such products.
    NMFS recognizes the List of Foreign Fisheries is linked to fish 
that are caught or harvested in a specific fishery, not the level of 
processing that occurs downstream of the harvest event. As suggested in 
public comment, NMFS considers the product form to be less 
determinative of an importer's ability to trace back to the source 
fishery than is the specificity and number of fishery or fisheries 
which generated the raw material for that product. For example, NOAA 
considers it no less feasible to identify surimi or fish sticks as a 
product originating from the pollock fishery as it would be for pollock 
fillets. That said, NMFS did not anticipate that a fishery would appear 
on the List of Foreign Fisheries, and therefore need to apply for a 
comparability finding, solely because of its exports of highly 
processed products to the United States. However, as that is a 
possibility and because it will not increase the burden on harvesting 
nations whose fisheries are already on the List of Foreign Fisheries 
for fish and fish products other than highly processed products, NMFS 
considers it appropriate to revise the definition of fish and fish 
products as described.
    NMFS does not consider the level of processing to be applicable to 
the definition of fish and fish products; rather the level of 
processing is applicable to the implementation of import prohibitions 
for fish and fish products from a specific fishery denied a 
comparability finding. If a fishery of a harvesting nation fails to 
receive a comparability finding, fish and fish products caught or 
harvested in that fishery will be subject to an import prohibition. 
When import prohibitions are put into place for such a fishery, NMFS 
will designate HTS codes of species and product originating from that 
fishery that will be prohibited from importation. NMFS ability to 
determine product type and origin for all species is limited. In 
designating those HTS codes NMFS acknowledges that, depending on data 
reporting requirements associated with that product and the 
traceability of product, NMFS may not in all cases include 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 shipment of the product 
cannot be feasibly identified, either through inspection or 
documentation back to the fishery subject to the import prohibition. 
Also, for the same or similar fish or fish products caught or harvested 
in another fishery of the harvesting nation, NMFS is clarifying in the 
final rule that no certification of admissibility shall apply with 
respect to fish or fish products for which it is infeasible to 
substantiate the attestation contained in the certification of 
admissibility that the fish or fish products do not contain fish caught 
or harvested in a fishery subject to an import prohibition. NMFS will 
determine whether to apply a certification of admissibility to any fish 
or fish product on a case by case basis.

2. Clarification of Conditions for a Comparability Requirement

    NMFS further clarified that a condition for a comparability 
finding, applicable to all export fisheries regardless of where they 
operate, that must be included in a regulatory program is the condition 
that the regulatory program must provide for or effectively achieves 
comparable results to measures that reduce the incidental mortality and 
serious injury of a marine mammal stock that the United States requires 
its domestic fisheries to take with respect to a transboundary or 
marine mammal stock.

3. Clarification of Use of Alternative Documentation to the 
Certification of Admissibility

    In the preamble to the proposed rule, NMFS discussed its intent 
that when the Automatic Commercial Environment/International Trade Data 
System (ACE/ITDS) rulemaking and subsequent rulemakings to implement 
the recommendations of the Presidential Task Force on Combating 
Illegal, Unreported and Unregulated Fishing and Seafood Fraud (Task 
Force) (see 79 FR 75536; December 18, 2014) are issued, NMFS may be 
able to identify fish prohibited from entry under MMPA authority based 
on the documentation specifying fishery of capture/harvest to be 
submitted by the importer to ACE/ITDS as part of the seafood 
traceability program. To eliminate duplicative requirements for MMPA 
import restrictions, NMFS will utilize import documentation procedures 
that have been developed as part of the ACE/ITDS and Task Force 
rulemakings so long as the information is sufficient to identify the 
fish or fish product was not caught or harvested in a fishery subject 
to an import prohibition under the MMPA. NMFS has added language in the 
regulations for the Certification of Admissibility to allow alternative 
data collection systems that require the same information found on the 
Certification of Admissibility.

Classification

    This rule is published under the authority of the Marine Mammal 
Protection Act, 16 U.S.C. 1371, 16 U.S.C. 1372, and 16 U.S.C. 1382.
    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 EA. 
Nevertheless, NMFS prepared an EA for this action to facilitate public 
involvement in the development of the national standard and procedures 
and to evaluate the impacts on the environment. This EA describes the 
impacts on marine mammals associated with fishing, the methods the 
United States has used to reduce those impacts, and a comparison of how 
approaches under the MMPA and the High Seas Driftnet Fishing Moratorium 
Protection Act provisions of the Magnuson-Stevens Fishery Conservation 
and Management Reauthorization Act of 2006 would affect harvesting 
nations.
    The alternatives described in section 2.1 of the EA (see NEPA) 
provide five alternatives for defining ``U.S. standards'' that would 
reduce mortality and serious injury of marine mammals in fishing 
operations (Sections 2.1.1 through 2.1.5). In addition to defining 
standards, the alternatives identify implementation and compliance 
steps as part of an overall regulatory program

[[Page 54410]]

for harvesting nations wishing to export fish and fish products into 
the United States.
    The alternatives to implement the import provisions of the MMPA are 
as follows: Under Alternative 1 (Quantitative Standard), NMFS would 
require harvesting nations wishing to export fish and fish products to 
the United States to, as required by NMFS for U.S. domestic fisheries, 
reduce incidental mortality and serious injury of marine mammals to 
levels below PBR and subsequently to the same ``insignificant'' 
threshold, or 10 percent of potential biological removal, to export 
fish and fish products to the United States.
    Alternative 2 (Preferred Alternative) would require harvesting 
nations wishing to export fish and fish products to the United States 
to demonstrate comparability with U.S. standards as set out for 
domestic fisheries under sections 117 and 118 of the MMPA. 
Comparability is defined as ``comparable in effectiveness to that of 
the United States [regulatory program],'' not necessarily identical or 
as detailed. A finding of comparability would be made based on the 
documentary evidence provided by the harvesting nation to allow the 
Assistant Administrator to determine whether the harvesting nation has 
developed and implemented a regulatory program comparable in 
effectiveness to the U.S. program prescribed for U.S. commercial 
fisheries in sections 117 and 118 of the MMPA. Like the prior 
alternative, the preferred alternative also requires calculation of PBR 
or a bycatch limit and reducing incidental mortality and serious injury 
of marine mammals to levels below the bycatch limit.
    Alternative 3 would define U.S. standards as those specific 
regulatory measures required of U.S. commercial fishing operations as 
the result of a take reduction plan's implementing regulations. Such 
regulatory measures could be applied to fisheries conducted on the high 
seas where a take reduction plan is in place (and thus the requirements 
would already apply to vessels under the jurisdiction of the United 
States), and to foreign fisheries, regardless of their area of 
operation, that are comparable to U.S. fisheries.
    Alternative 4 uses a procedure of identification, documentation and 
certification devised under the HSDFMPA and promulgated as a final rule 
in January 2011 (76 FR 2011, January 12, 2011).
    Alternative 5, the no action alternative, proposes an approach for 
taking no action to implement section 101(a)(2) of the MMPA.
    Overall, the preferred alternative in the EA sets the U.S. import 
standards for harvesting nations as the same standard used for U.S. 
commercial fishing operations to reduce incidental mortality and 
serious injury of marine mammals with flexibility for comparability in 
effectiveness. It takes an approach that evaluates whether fish and 
fish products exported to the United States are subject to a regulatory 
program of the harvesting nation that is comparable in effectiveness to 
the U.S. regulatory program in terms of reducing incidental mortality 
and serious injury and considers fish and fish products not subject to 
such a regulatory program as caught with technology that results in 
marine mammal incidental mortality and serious injury in excess of U.S. 
standards. This approach provides harvesting nations with flexibility 
to implement the same measures as under the U.S. program or other 
measures that achieve comparable results.
    This rulemaking has been determined to be significant for the 
purposes of Executive Order (E.O.) 12866 because it raises novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.
    Pursuant to E.O. 12866, NMFS conducted a Regulatory Impact Review 
(RIR). When conducting the RIR and the EA's socioeconomic analysis of 
the preferred alternative, NMFS considered the number of harvesting 
nations and the types of fish products exported to the United States. 
In 2012, 122 nations exported fish and fish products into the United 
States (see EA Section 3.4.3 Table 3). Fifty-five percent (66 nations) 
of those nations export five or fewer fish products, and 74% of the 
nations export 10 or fewer fish products. Only nine economies export 25 
or more fish products; they are: Canada, Chile, China, Japan, Mexico, 
Taiwan, Thailand, South Korea, and Vietnam. With the exception of 
Japan, all of these economies are included within the U.S. list of top 
ten seafood trading partners by volume and weight (see EA Section 3.4.3 
Table 4).
    The United States imports more than 67 marine species, with tuna, 
shrimp, salmon (both farmed and wild salmon), mollusks, mackerel, and 
sardines representing the six largest imports. Tuna fisheries are 
conducted primarily on the high seas, whereas shrimp and salmon 
fisheries are a combination of live capture and aquaculture operations. 
For example, for high seas export fisheries to receive a comparability 
finding, harvesting nations may demonstrate, among other things, that 
they are implementing the requirements of an RFMO or intergovernmental 
agreement to which the U.S. is a party. Tuna is caught in numerous gear 
types including purse seine nets, longline, hook and line, trolling, 
trap, harpoon and gillnets. Marine mammals interact with several gear 
types used in fisheries managed by tuna regional fishery management 
organizations (RFMOs). They most commonly interact with or are caught 
in purse seine, longline, and gillnet gear. With the exception of the 
eastern tropical Pacific Ocean, accurate abundance and bycatch 
estimates for marine mammals are lacking in areas where marine mammal 
distribution overlaps tuna fisheries, making quantitative analysis of 
bycatch extremely difficult. Nevertheless, there has been progress in 
quantifying tuna RFMO fishery impacts on or bycatch of marine mammals 
and several RFMOs have either passed or introduced measures to mitigate 
or reduce marine mammal mortality. For example, both the Western 
Central Pacific Fisheries Commission and the Indian Ocean Tuna 
Commission have adopted measures that prohibit the intentional 
encirclement of marine mammals in purse seine sets and also require 
safe handling and release in the event that a marine mammal is 
encircled. Similar measures have been introduced for purse seine 
fisheries operating under the International Convention for the 
Conservation of Atlantic Tunas. Therefore, these conservation and 
management measures would govern the purse seine fisheries of Thailand, 
Vietnam, Philippines, Indonesia and China. The largest exporter is 
Thailand, who exported more than 93 million kilos of tuna to the United 
States. Thailand is both a harvesting nation, landing roughly 26 
million kilos, and intermediary nation, by way of its canning 
operations. Currently, Thailand processes almost one-quarter of the 
world's canned tuna (736,000 mt in 2008). Other nations exporting more 
than 20 million kilos include Vietnam, the Philippines, Indonesia, 
Ecuador, and China. Several of these nations are also processors, 
including Ecuador, which is the second largest processing site 
accounting for almost 12% of global annual production (362,400 mt in 
2008). Ecuador, which has an affirmative finding for its yellowfin tuna 
purse seine fisheries, exports are governed predominantly by the 
Agreement on the Dolphin Conservation Program Act and section 
101(a)(2)(B) of the MMPA. Because these regulatory programs are in 
place for purse seine fisheries, import prohibitions are unlikely for 
such fisheries.

[[Page 54411]]

    U.S aquaculture facilities are Category III fisheries, having a 
remote likelihood of marine mammal mortality and serious injury. By 
analogy, NMFS anticipates that most aquaculture facilities will be 
designated exempt in the List of Foreign Fisheries. Therefore, for 
aquaculture facilities classified as exempt fisheries and sited in 
marine mammal habitat or interacting with marine mammals, the 
harvesting nation must demonstrate it is prohibiting the intentional 
killing or serious injury of marine mammals in the course of 
aquaculture operations or has procedures to reliably certify that 
exports of fish and fish products to the United States are not the 
product of an intentional killing or serious injury of a marine mammal.
    Therefore, NMFS anticipates that out of 122 harvesting nations, the 
greatest economic burden will be on the 21 nations that export more 
than 10 fish products, assuming that their regulatory program will 
include more export fisheries. This rule offers harvesting nations time 
to develop their regulatory program. Additionally, the consultative 
process and potential for financial and technological assistance will 
aid harvesting nations in meeting the requirements of these 
regulations. No U.S. industry sector would be directly affected by the 
rulemaking, although indirect effects may cause disruptions in the flow 
of seafood imports, potentially impacting U.S. businesses. Without 
knowing the fish products subject to a trade restriction, it is 
impossible to estimate how these indirect impacts will be distributed 
across U.S. businesses. There are several factors that suggest impacts 
in many instances will be small and short-lived or non-existent, though 
there may be potential scenarios that could result in the rule having 
more than negligible impacts. Additionally, if fisheries of other 
nations become subject to regulatory requirements that are comparable 
in effectiveness to requirements imposed on U.S. fishermen for 
conservation of marine mammals, there could be benefits to U.S. 
fishermen. Whether or not regulatory costs induced in foreign fisheries 
increase import prices enough to affect the price differential between 
domestic products and imported products remains to be seen. If the 
import prices rise enough to cause switching in the U.S. market from 
imports to domestically harvested fish, U.S. commercial fishermen may 
benefit. However, the high rate of exporting for U.S. harvested seafood 
is indicative that foreign markets already offer greater price 
incentives. Thus, it is more likely that seafood dealers will locate 
alternative foreign sources for any product subject to an embargo. 
Additionally, there are important intermediary nations in the 
processing of certain fish and fish products and the cost of a trade 
prohibition to the U.S. consumer would be contingent upon the role and 
behavior of intermediary nations. Therefore, based on these analyses, 
NMFS does not anticipate that national net benefits and costs would 
change significantly in the long term as a result of the implementation 
of the proposed action.
    A final regulatory flexibility analysis (FRFA) was prepared, as 
required by section 604 of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact this final rule would have on small 
entities. A statement of the need for and objectives of this rule are 
contained in this SUPPLEMENTARY INFORMATION section of the preamble. A 
summary of the analysis follows. A copy of the complete FRFA is 
available from NMFS (see NEPA).
    NMFS did not receive comments from the Chief Counsel of Advocacy 
for the Small Business Administration on the initial regulatory 
flexibility analysis (IRFA) that was published with the proposed rule. 
As discussed in Comment 49 above, several commenters associated with 
the Maine lobster industry and the Maine Department of Natural 
Resources expressed concern that the rule could negatively impact the 
Maine lobster industry and lobstermen because application of an import 
prohibition on Canadian lobster could prevent millions of pounds of 
Maine-caught lobster, processed in Canada, from being sold in the U.S. 
As stated in the response to Comment 49 above, NMFS believes that the 
efforts Maine and Canada are already undertaking to implement tracking, 
verification, and traceability procedures will mitigate the potential 
for this negative indirect impact.

Number and Description of Small Entities Regulated by the Final Action

    Under the final rule, NMFS would classify foreign fisheries based 
on the extent that the fishing gear and methods used interact with 
marine mammals. After notification from NMFS, harvesting nations 
desiring to export fish and fish products to the United States must 
apply for and receive a comparability finding for their exempt and 
export fisheries as identified in the List of Foreign Fisheries. Such a 
finding would indicate that marine mammal protection measures have been 
implemented in the fisheries that are comparable in effectiveness to 
the U.S. regulatory program. In the event of import prohibitions being 
imposed for specific fish products, certain other fish products 
eligible for entry from the affected nation may be required to be 
accompanied by a certification of admissibility in order to be admitted 
into the United States.
    This final rule does not directly regulate small entities; the rule 
requires harvesting nations that export fish and fish products to the 
United States to apply for and receive a comparability finding for its 
exempt and export fisheries. The universe of potentially indirectly 
affected industries includes: U.S. seafood processors, importers, 
retailers, and wholesalers. The exact volume and value of product, and 
the number of jobs supported primarily by imports within the 
processing, wholesale, and retail sectors cannot be ascertained based 
on available information. In general, however, the dominant position of 
imported seafood in the U.S. supply chain is indicative of the number 
of U.S. businesses that rely on seafood harvested by foreign entities.

Recordkeeping and Reporting Requirements

    This final action contains new collection-of-information, involving 
limited reporting and record keeping, or other compliance requirements. 
To facilitate enforcement of the import prohibitions for prohibited 
fish products, harvesting nations with fisheries that do receive a 
comparability finding, that offer similar fish and fish products to 
those that have been prohibited from entry, may be required to submit 
certification of admissibility along with the fish or fish products 
offered for entry into the United States that are not subject to the 
specific import restrictions.

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    No U.S. industrial sector is directly regulated by this rulemaking. 
However, the indirect effects of import prohibitions may cause short-
term disruptions in the flow of seafood imports potentially impacting 
U.S. businesses. NMFS does not anticipate that national benefits and 
costs would change significantly in the long-term as a result of the 
implementation of the rule. Therefore, NMFS anticipates that the 
impacts on U.S. businesses engaged in trading, processing, or retailing 
seafood will likely be minimal.
    As described above and in Section 2.1 of the Final Environmental 
Assessment (see NEPA), NMFS analyzed several alternatives that achieve 
the objective of

[[Page 54412]]

reducing mortality of marine mammals in fishing operations. The final 
rule is based on the preferred alternative and is the one that offers 
the most flexibility while also complying with the relevant provisions 
of the MMPA and U.S. obligations under applicable international law, 
including the WTO Agreement. The flexibility offered under the rule 
allows harvesting nations to adopt a variety of alternatives to assess 
and reduce marine mammal incidental mortality and serious injury, 
provided the alternatives are comparable in effectiveness to the U.S. 
regulatory program. Because this flexibility facilitates the ability of 
the harvesting nations to comply, the potential for indirect adverse 
impacts on small entities is minimized.
    The no action alternative, where NMFS would not promulgate 
regulations to implement the international provisions of the MMPA, may 
have reduced the potential indirect burden or economic impact to small 
entities; however, because the international provisions of the MMPA are 
statutory requirements, the no action alternative would be inconsistent 
with the MMPA. The final rule also demonstrates the U.S. commitment to 
achieving the conservation and sustainable management of marine mammals 
consistent with the statutory requirement of section 101(a)(2) of the 
MMPA. Additionally, the increased data collection that may result from 
the regulations could assist in global stock assessments of marine 
mammals and improve our scientific understanding of these species. 
Finally, the rule should help ensure that the United States is not 
importing fish and fish products harvested by nations that engage in 
the unsustainable bycatch of marine mammals in waters within and beyond 
any national jurisdiction.

Paperwork Reduction Act

    This final rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. The information collection in this 
final rule modifies an existing information collection that was 
approved under OMB Control Number 0648-0651 (Certification of 
Admissibility).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 216

    Administrative practice and procedure, Exports, Marine mammals, 
Reporting and recordkeeping requirements.

    Dated: August 8, 2016.
Paul Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR 
part 216 are amended as follows:

Title 15: Commerce and Foreign Trade

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, in the table in paragraph (b), remove the entry for 
216.24 and add entries for 216.24(f)(2) and 216.24(h)(9)(iii) in 
numerical order under the heading 50 CFR to read as follows:


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

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
 
                                * * * * *
50 CFR
 
                                * * * * *
    216.24(f)(2)..........................  -0387
    216.24(h)(9)(iii).....................  -0651
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

Title 50: Wildlife and Fisheries

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
3. The authority citation for part 216 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


0
4. In Sec.  216.3:
0
a. Revise the definition for ``Import''; and
0
b. Add definitions for ``Bycatch limit'', ``Comparability finding'', 
``Exempt fishery'', ``Exemption period'', ``Export fishery'', ``Fish 
and fish product'', ``Intermediary nation'', ``List of Foreign 
Fisheries'', ``Transboundary stock'', and ``U.S. regulatory program'' 
in alphabetical order.
    The additions and revisions read as follows:


Sec.  216.3  Definitions.

* * * * *
    Bycatch limit means the calculation of a potential biological 
removal level for a particular marine mammal stock, as defined in Sec.  
229.2 of this chapter, or comparable scientific metric established by 
the harvesting nation or applicable regional fishery management 
organization or intergovernmental agreement.
* * * * *
    Comparability finding means a finding by the Assistant 
Administrator that the harvesting nation for an export or exempt 
fishery has met the applicable conditions specified in Sec.  
216.24(h)(6)(iii) subject to the additional considerations for 
comparability determinations set out in Sec.  216.24(h)(7).
* * * * *
    Exempt fishery means a foreign commercial fishing operation 
determined by the Assistant Administrator to be the source of exports 
of commercial fish and fish products to the United States and to have a 
remote likelihood of, or no known, incidental mortality and serious 
injury of marine mammals in the course of commercial fishing 
operations. A commercial fishing operation that has a remote likelihood 
of causing incidental mortality and serious injury of marine mammals is 
one that collectively with other foreign fisheries exporting fish and 
fish products to the United States causes the annual removal of:
    (1) Ten percent or less of any marine mammal stock's bycatch limit; 
or
    (2) More than 10 percent of any marine mammal stock's bycatch 
limit, yet that fishery by itself removes 1 percent or less of that 
stock's bycatch limit annually; or
    (3) Where reliable information has not been provided by the 
harvesting nation on the frequency of incidental mortality and serious 
injury of marine mammals caused by the commercial fishing operation, 
the Assistant Administrator may determine whether the likelihood of 
incidental mortality and serious injury is ``remote'' by evaluating 
information concerning factors such as fishing techniques, gear used, 
methods used to deter marine mammals, target species, seasons and areas 
fished, qualitative data from logbooks or fisher reports, stranding 
data, the species and

[[Page 54413]]

distribution of marine mammals in the area, or other factors at the 
discretion of the Assistant Administrator. A foreign fishery will not 
be classified as an exempt fishery unless the Assistant Administrator 
has reliable information from the harvesting nation, or other 
information to support such a finding.
    Exemption period means the one-time, five-year period that 
commences January 1, 2017, during which commercial fishing operations 
that are the source of exports of commercial fish and fish products to 
the United States will be exempt from the prohibitions of Sec.  
216.24(h)(1).
    Export fishery means a foreign commercial fishing operation 
determined by the Assistant Administrator to be the source of exports 
of commercial fish and fish products to the United States and to have 
more than a remote likelihood of incidental mortality and serious 
injury of marine mammals (as defined in the definition of an ``exempt 
fishery'') in the course of its commercial fishing operations. Where 
reliable information has not been provided by the harvesting nation on 
the frequency of incidental mortality and serious injury of marine 
mammals caused by the commercial fishing operation, the Assistant 
Administrator may determine whether the likelihood of incidental 
mortality and serious injury is more than ``remote'' by evaluating 
information concerning factors such as fishing techniques, gear used, 
methods used to deter marine mammals, target species, seasons and areas 
fished, qualitative data from logbooks or fisher reports, stranding 
data, and the species and distribution of marine mammals in the area, 
or other factors at the discretion of the Assistant Administrator that 
may inform whether the likelihood of incidental mortality and serious 
injury of marine mammals caused by the commercial fishing operation is 
more than ``remote.'' Commercial fishing operations not specifically 
identified in the current List of Foreign Fisheries as either exempt or 
export fisheries are deemed to be export fisheries until the next List 
of Foreign Fisheries is published unless the Assistant Administrator 
has reliable information from the harvesting nation to properly 
classify the foreign commercial fishing operation. Additionally, the 
Assistant Administrator, may request additional information from the 
harvesting nation and may consider other relevant information as set 
forth in Sec.  216.24(h)(3) about such commercial fishing operations 
and the frequency of incidental mortality and serious injury of marine 
mammals, to properly classify the foreign commercial fishing operation.
* * * * *
    Fish and fish product means any marine finfish, mollusk, 
crustacean, or other form of marine life other than marine mammals, 
reptiles, and birds, whether fresh, frozen, canned, pouched, or 
otherwise prepared.
* * * * *
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the Customs 
laws of the United States; except that, for the purpose of any ban on 
the importation of fish or fish products issued under the authority of 
16 U.S.C. 1371(a)(2)(B), the definition of ``import'' in Sec.  
216.24(f)(1)(ii) shall apply.
* * * * *
    Intermediary nation means a nation that imports fish or fish 
products from a fishery on the List of Foreign Fisheries and re-exports 
such fish or fish products to the United States.
* * * * *
    List of Foreign Fisheries means the most recent list, organized by 
harvesting nation, of foreign commercial fishing operations exporting 
fish or fish products to the United States, that is published in the 
Federal Register by the Assistant Administrator and that classifies 
commercial fishing operations according to the frequency and likelihood 
of incidental mortality and serious injury of marine mammals during 
such commercial fishing operations as either an exempt fishery or an 
export fishery.
* * * * *
    Transboundary stock means a marine mammal stock occurring in the:
    (1) Exclusive economic zones or territorial sea of the United 
States and one or more other coastal States; or
    (2) Exclusive economic zone or territorial sea of the United States 
and on the high seas.
* * * * *
    U.S. regulatory program means the regulatory program governing the 
incidental mortality and serious injury of marine mammals in the course 
of commercial fishing operations as specified in the Marine Mammal 
Protection Act and its implementing regulations.
* * * * *

0
4. In Sec.  216.24, the section heading is revised and paragraph (h) is 
added to read as follows:


Sec.  216.24  Taking and related acts in commercial fishing operations 
including tuna purse seine vessels in the eastern tropical Pacific 
Ocean.

* * * * *
    (h) Taking and related acts of marine mammals in foreign commercial 
fishing operations not governed by the provisions related to tuna purse 
seine vessels in the eastern tropical Pacific Ocean--(1) Prohibitions. 
(i) As provided in section 101(a)(2) and 102(c)(3)of the MMPA, the 
importation of commercial fish or fish products which have been caught 
with commercial fishing technology which results in the incidental kill 
or incidental serious injury of ocean mammals in excess of U.S. 
standards or caught in a manner which the Secretary has proscribed for 
persons subject to the jurisdiction of the United States are 
prohibited. For purposes of paragraph (h) of this section, a fish or 
fish product caught with commercial fishing technology which results in 
the incidental mortality or incidental serious injury of marine mammals 
in excess of U.S. standards is any fish or fish product harvested in an 
exempt or export fishery for which a valid comparability finding is not 
in effect.
    (ii) Accordingly, it is unlawful for any person to import, or 
attempt to import, into the United States for commercial purposes any 
fish or fish product if such fish or fish product:
    (A) Was caught or harvested in a fishery that does not have a valid 
comparability finding in effect at the time of import; or
    (B) Is not accompanied by a Certification of Admissibility where 
such Certification is required pursuant to paragraph (h)(9)(iv) of this 
section or by such other documentation as the Assistant Administrator 
may identify and announce in the Federal Register that indicates the 
fish or fish product was not caught or harvested in a fishery subject 
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this 
section.
    (iii) It is unlawful for any person, including exporters, 
transshippers, importers, processors, or wholesalers/distributors to 
possess, sell, purchase, offer for sale, re-export, transport, or ship 
in interstate or foreign commerce in the United States, any fish or 
fish product imported in violation of paragraph (h) of this section.
    (2) Exemptions. (i) Exempt fisheries are exempt from requirements 
of paragraphs (h)(6)(iii)(B) through (E) of this section.
    (A) For the purposes of paragraph (h) of this section, harvesting 
nation means the country under whose flag or

[[Page 54414]]

jurisdiction one or more fishing vessels or other entity engaged in 
commercial fishing operations are documented, or which has by formal 
declaration or agreement asserted jurisdiction over one or more 
authorized or certified charter vessels, and from such vessel(s) or 
entity(ies) fish are caught or harvested that are a part of any cargo 
or shipment of fish or fish products to be imported into the United 
States, regardless of any intervening transshipments, exports or re-
exports.
    (B) [Reserved]
    (ii) The prohibitions of paragraph (h)(1) of this section shall not 
apply during the exemption period.
    (iii) Paragraph (h) of this section shall not apply to a commercial 
fishing operation subject to section 101(a)(2)(B) of the MMPA and its 
implementing regulations set out in the relevant provisions of 
paragraph (f) of this section which govern the incidental take of 
delphinids in course of commercial purse seine fishing operations for 
yellowfin tuna in the eastern tropical Pacific Ocean and restrictions 
on importation and sale of fish and fish products caught or harvested 
in that commercial fishing operation. Paragraph (h) of this section 
shall not apply with respect to large-scale driftnet fishing, which is 
governed by paragraph (f)(7) of this section and the restrictions it 
sets out on importation and sale of fish and fish products harvested by 
using a large-scale driftnet.
    (3) Procedures to identify foreign commercial fishing operations 
with incidental mortality and serious injury of marine mammals as 
exempt or export fisheries. In developing the List of Foreign Fisheries 
in paragraph (h)(4) of this section, the Assistant Administrator:
    (i) Shall periodically analyze imports of fish and fish products 
and identify commercial fishing operations that are the source of 
exports of such fish and fish products to the United States that have 
or may have incidental mortality or serious injury of marine mammals in 
the course of their commercial fishing operations.
    (A) For the purposes of paragraph (h) of this section, a commercial 
fishing operation means vessels or entities that catch, take, or 
harvest fish (as defined in section 3 of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1802)) from the marine 
environment (or other areas where marine mammals occur) that results in 
the sale or barter of all or part of the fish caught, taken or 
harvested. The term includes aquaculture activities that interact with 
or occur in marine mammal habitat.
    (B) [Reserved]
    (ii) Shall notify, in consultation with the Secretary of State, 
each harvesting nation that has commercial fishing operations 
identified pursuant to paragraph (h)(3)(i) of this section and request 
that within 90 days of notification the harvesting nation submit 
reliable information about the commercial fishing operations 
identified, including as relevant the number of participants, number of 
vessels, gear type, target species, area of operation, fishing season, 
any information regarding the frequency of marine mammal incidental 
mortality and serious injury and any programs (including any relevant 
laws, decrees, regulations or measures) to assess marine mammal 
populations and to reduce incidental mortality and serious injury of 
marine mammals in those fisheries or prohibit the intentional killing 
or injury of marine mammals.
    (iii) Shall review each harvesting nation's submission, evaluate 
any information it contains (including descriptions of its regulatory 
programs) and, if necessary, request additional information.
    (iv) May consider other readily available and relevant information 
about such commercial fishing operations and the frequency of 
incidental mortality and serious injury of marine mammals, including: 
fishing vessel records; reports of on-board fishery observers; 
information from off-loading facilities, port-side officials, 
enforcement agents and officers, transshipment vessel workers and fish 
importers; government vessel registries; regional fisheries management 
organizations documents and statistical document programs; and 
appropriate certification programs. Other sources may include published 
literature and reports on fishing vessels with incidental mortality and 
serious injury of marine mammals from government agencies; foreign, 
state, and local governments; regional fishery management 
organizations; nongovernmental organizations; industry organizations; 
academic institutions; and citizens and citizen groups.
    (4) List of Foreign Fisheries. (i) Within one year of January 1, 
2017, and the year prior to the expiration of the exemption period and 
every four years thereafter, the Assistant Administrator, based on the 
information obtained in paragraph (h)(3) of this section, will publish 
in the Federal Register:
    (A) A proposed List of Foreign Fisheries by harvesting nation for 
notice and comment; and
    (B) A final List of Foreign Fisheries, effective upon publication 
in the Federal Register.
    (ii) To the extent that information is available, the List of 
Foreign Fisheries shall:
    (A) Classify each commercial fishing operation that is the source 
of exports of fish and fish products to the United States based on the 
definitions for export fishery and exempt fishery set forth in Sec.  
216.3 and identified in the List of Foreign Fisheries by harvesting 
nation and other defining factors including geographic location of 
harvest, gear-type, target species or a combination thereof;
    (B) Include fishing gear type, target species, and number of 
vessels or other entities engaged in each commercial fishing operation;
    (C) List the marine mammals that interact with each commercial 
fishing operation and indicate the level of incidental mortality and 
serious injury of marine mammals in each commercial fishing operation;
    (D) Provide a description of the harvesting nation's programs to 
assess marine mammal stocks and estimate and reduce marine mammal 
incidental mortality and serious injury in its export fisheries; and
    (E) List the harvesting nations that prohibit, in the course of 
commercial fishing operations that are the source of exports to the 
United States, the intentional mortality or serious injury of marine 
mammals unless the intentional mortality or serious injury of a marine 
mammal is imminently necessary in self-defense or to save the life of a 
person in immediate danger.
    (5) Consultations with Harvesting Nations with Commercial Fishing 
Operations on the List of Foreign Fisheries. (i) Within 90 days of 
publication of the final List of Foreign Fisheries in the Federal 
Register, the Assistant Administrator, in consultation with the 
Secretary of State, shall consult with harvesting nations with 
commercial fishing operations identified as export or exempt fisheries 
as defined in Sec.  216.3 for purposes of notifying the harvesting 
nation of the requirements of the Marine Mammal Protection Act and this 
subpart.
    (ii) The Assistant Administrator, in consultation with the 
Secretary of State, may consult with harvesting nations for the 
purposes of providing notifications of deadlines under this section, 
ascertaining or reviewing the progress of the harvesting nation's 
development, adoption, implementation, or enforcement of its regulatory 
program governing the incidental mortality and serious injury of marine 
mammals in the

[[Page 54415]]

course of commercial fishing operations for an export fishery, 
supplementing or clarifying information needed in conjunction with the 
List of Foreign Fisheries in paragraphs (h)(3) and (4) of this section, 
the progress report in paragraph (h)(10) of this section or an 
application for or reconsideration of a comparability finding in 
paragraphs (h)(6) and (8) of this section.
    (iii) The Assistant Administrator shall, in consultation with the 
Secretary of State and the United States Trade Representative, consult 
with any harvesting nations that failed to receive a comparability 
finding for one or more of commercial fishing operations or for which a 
comparability finding is terminated and encourage the harvesting nation 
to take corrective action and reapply for a comparability finding in 
accordance with paragraph (h)(9)(iii) of this section.
    (6) Procedure and conditions for a comparability finding--(i) 
Procedures to apply for a comparability finding. On March 1st of the 
year when the exemption period or comparability finding is to expire, a 
harvesting nation shall submit to the Assistant Administrator an 
application for each of its export and exempt fisheries, along with 
documentary evidence demonstrating that the harvesting nation has met 
the conditions specified in paragraph (h)(6)(iii) of this section for 
each of such fishery, including reasonable proof as to the effects on 
marine mammals of the commercial fishing technology in use in the 
fishery for fish or fish products exported from such nation to the 
United States. The Assistant Administrator may request the submission 
of additional supporting documentation or other verification of 
statements made in an application for a comparability finding.
    (ii) Procedures to issue a comparability finding. No later than 
November 30th of the year when the exemption period or comparability 
finding is to expire, the Assistant Administrator, in response to an 
application from a harvesting nation for an export or exempt fishery, 
shall determine whether to issue to the harvesting nation, in 
accordance with the procedures set forth in paragraph (h)(8) of this 
section, a comparability finding for the fishery. In making this 
determination, the Assistant Administrator shall consider documentary 
evidence provided by the harvesting nation and relevant information 
readily available from other sources. If a harvesting nation provides 
insufficient documentary evidence in support of its application, the 
Assistant Administrator shall draw reasonable conclusions regarding the 
fishery based on readily available and relevant information from other 
sources, including where appropriate information concerning analogous 
fisheries that use the same or similar gear-type under similar 
conditions as the fishery, in determining whether to issue the 
harvesting nation a comparability finding for the fishery.
    (iii) Conditions for a comparability finding. The following are 
conditions for the Assistant Administrator to issue a comparability 
finding for the fishery, subject to the additional considerations set 
out in paragraph (h)(7) of this section:
    (A) For an exempt or export fishery, the harvesting nation:
    (1) Prohibits the intentional mortality or serious injury of marine 
mammals in the course of commercial fishing operations in the fishery 
unless the intentional mortality or serious injury of a marine mammal 
is imminently necessary in self-defense or to save the life of a person 
in immediate danger; or
    (2) Demonstrates that it has procedures to reliably certify that 
exports of fish and fish products to the United States are not the 
product of an intentional killing or serious injury of a marine mammal 
unless the intentional mortality or serious injury of a marine mammal 
is imminently necessary in self-defense or to save the life of a person 
in immediate danger; and
    (B) For an export fishery, the harvesting nation maintains a 
regulatory program with respect to the fishery that is comparable in 
effectiveness to the U.S. regulatory program with respect to incidental 
mortality and serious injury of marine mammals in the course of 
commercial fishing operations, in particular by maintaining a 
regulatory program that includes, or effectively achieves comparable 
results as, the conditions in paragraph (h)(6)(iii)(C), (D), or (E) of 
this section as applicable (including for transboundary stocks).
    (C) Conditions for an export fishery operating under the 
jurisdiction of a harvesting nation within its EEZ (or the equivalent) 
or territorial sea. In making the finding in paragraph (h)(6)(ii) of 
this section, with respect to an export fishery operating under the 
jurisdiction of a harvesting nation within its EEZ (or the equivalent) 
or territorial sea, the Assistant Administrator shall determine whether 
the harvesting nation maintains a regulatory program that provides for, 
or effectively achieves comparable results as, the following:
    (1) Marine mammal assessments that estimate population abundance 
for marine mammal stocks in waters under the harvesting nation's 
jurisdiction that are incidentally killed or seriously injured in the 
export fishery.
    (2) An export fishery register containing a list of all fishing 
vessels participating in the export fishery, including information on 
the number of vessels participating, the time or season and area of 
operation, gear type and target species.
    (3) Regulatory requirements that include:
    (i) A requirement for the owner or operator of a vessel 
participating in the export fishery to report all intentional and 
incidental mortality and injury of marine mammals in the course of 
commercial fishing operations; and
    (ii) A requirement to implement measures in the export fishery 
designed to reduce the total incidental mortality and serious injury of 
a marine mammal stock below the bycatch limit; and
    (iii) with respect to any transboundary stock or any other marine 
mammal stocks interacting with the export fishery, measures to reduce 
the incidental mortality and serious injury of that stock that the 
United States requires its domestic fisheries to take with respect to 
that transboundary stock or marine mammal stock.
    (4) Implementation of monitoring procedures in the export fishery 
designed to estimate incidental mortality or serious injury in the 
export fishery, and to estimate the cumulative incidental mortality and 
serious injury of marine mammal stocks in waters under its jurisdiction 
resulting from the export fishery and other export fisheries 
interacting with the same marine mammal stocks, including an indication 
of the statistical reliability of those estimates.
    (5) Calculation of bycatch limits for marine mammal stocks in 
waters under its jurisdiction that are incidentally killed or seriously 
injured in the export fishery.
    (6) Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export 
fishery in relation to the bycatch limit for each stock; and comparison 
of the cumulative incidental mortality and serious injury of each 
marine mammal stock or stocks that interact with the export fishery and 
any other export fisheries of the harvesting nation showing that these 
export fisheries:
    (i) Do not exceed the bycatch limit for that stock or stocks; or
    (ii) Exceed the bycatch limit for that stock or stocks, but the 
portion of incidental marine mammal mortality or serious injury for 
which the export fishery is responsible is at a level that, if the 
other export fisheries interacting

[[Page 54416]]

with the same marine mammal stock or stocks were at the same level, 
would not result in cumulative incidental mortality and serious injury 
in excess of the bycatch limit for that stock or stocks.
    (D) Conditions for a harvesting nation's export fishery operating 
within the jurisdiction of another state. In making the finding in 
paragraph (h)(6)(ii) of this section, with respect to a harvesting 
nation's export fishery operating within the jurisdiction of another 
state, the Assistant Administrator shall determine whether the 
harvesting nation maintains a regulatory program that provides for, or 
effectively achieves comparable results as, the following:
    (1) Implementation in the export fishery of:
    (i) With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect that transboundary stock; and
    (ii) With respect to any other marine mammal stocks interacting 
with the export fishery while operating within the jurisdiction of the 
state, any measures to reduce incidental mortality and serious injury 
that the United States requires its domestic fisheries to take with 
respect to that marine mammal stock; and
    (2) For an export fishery not subject to management by a regional 
fishery management organization:
    (i) An assessment of marine mammal abundance of stocks interacting 
with the export fishery, the calculation of a bycatch limit for each 
such stock, an estimation of incidental mortality and serious injury 
for each stock and reduction in or maintenance of the incidental 
mortality and serious injury of each stock below the bycatch limit. 
This data included in the application may be provided by the state or 
another source; and
    (ii) Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export 
fishery in relation to the bycatch limit for each stock; and comparison 
of the cumulative incidental mortality and serious injury of each 
marine mammal stock or stocks that interact with the export fishery and 
any other export fisheries of the harvesting nation showing that these 
export fisheries do not exceed the bycatch limit for that stock or 
stocks; or exceed the bycatch limit for that stock or stocks, but the 
portion of incidental marine mammal mortality or serious injury for 
which the export fishery is responsible is at a level that, if the 
other export fisheries interacting with the same marine mammal stock or 
stocks were at the same level, would not result in cumulative 
incidental mortality and serious injury in excess of the bycatch limit 
for that stock or stocks; or
    (3) For an export fishery that is subject to management by a 
regional fishery management organization, implementation of marine 
mammal data collection and conservation and management measures 
applicable to that fishery required under any applicable 
intergovernmental agreement or regional fisheries management 
organization to which the United States is a party.
    (E) Conditions for a harvesting nation's export fishery operating 
on the high seas under the jurisdiction of the harvesting nation or 
another state. In making the finding in paragraph (h)(6)(ii) of this 
section, with respect to a harvesting nation's export fishery operating 
on the high seas under the jurisdiction of the harvesting nation or 
another state, the Assistant Administrator shall determine whether the 
harvesting nation maintains a regulatory program that provides for, or 
effectively achieves comparable results as, the U.S. regulatory program 
with respect to the following:
    (1) Implementation in the fishery of marine mammal data collection 
and conservation and management measures applicable to that fishery 
required under any applicable intergovernmental agreement or regional 
fisheries management organization to which the United States is a 
party; and
    (2) Implementation in the export fishery of:
    (i) With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect that transboundary stock; and
    (ii) With respect to any other marine mammal stocks interacting 
with the export fishery while operating on the high seas, any measures 
to reduce incidental mortality and serious injury that the United 
States requires its domestic fisheries to take with respect to that 
marine mammal stock when they are operating on the high seas.
    (7) Additional considerations for comparability finding 
determinations. When determining whether to issue any comparability 
finding for a harvesting nation's export fishery the Assistant 
Administrator shall also consider:
    (i) U.S. implementation of its regulatory program for similar 
marine mammal stocks and similar fisheries (e.g., considering gear or 
target species), including transboundary stocks governed by regulations 
implementing a take reduction plan (Sec.  229.2 of this chapter), and 
any other relevant information received during consultations;
    (ii) The extent to which the harvesting nation has successfully 
implemented measures in the export fishery to reduce the incidental 
mortality and serious injury of marine mammals caused by the harvesting 
nation's export fisheries to levels below the bycatch limit;
    (iii) Whether the measures adopted by the harvesting nation for its 
export fishery have reduced or will likely reduce the cumulative 
incidental mortality and serious injury of each marine mammal stock 
below the bycatch limit, and the progress of the regulatory program 
toward achieving its objectives;
    (iv) Other relevant facts and circumstances, which may include the 
history and nature of interactions with marine mammals in this export 
fishery, whether the level of incidental mortality and serious injury 
resulting from the fishery or fisheries exceeds the bycatch limit for a 
marine mammal stock, the population size and trend of the marine mammal 
stock, and the population level impacts of the incidental mortality or 
serious injury of marine mammals in a harvesting nation's export 
fisheries and the conservation status of those marine mammal stocks 
where available;
    (v) The record of consultations under paragraph (h)(5) of this 
section with the harvesting nation, results of these consultations, and 
actions taken by the harvesting nation and under any applicable 
intergovernmental agreement or regional fishery management organization 
to reduce the incidental mortality and serious injury of marine mammals 
in its export fisheries;
    (vi) Information gathered during onsite inspection by U.S. 
government officials of a fishery's operations;
    (vii) For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fishery management 
organization to which the United States is a party, the harvesting 
nation's record of implementation of or compliance with measures 
adopted by that regional fishery management organization or 
intergovernmental agreement for data collection, incidental mortality 
and serious injury mitigation or the conservation and management of 
marine mammals; whether the harvesting nation is a party or cooperating 
non-party to such intergovernmental agreement or regional fishery 
management organization; the record of United States implementation of 
such measures; and whether the United

[[Page 54417]]

States has imposed additional measures on its fleet not required by an 
intergovernmental agreement or regional fishery management 
organization; or
    (viii) For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fisheries management 
organization to which the United States is not a party, the harvesting 
nation's implementation of and compliance with measures, adopted by 
that regional fisheries management organization or intergovernmental 
agreement, and any additional measures implemented by the harvesting 
nation for data collection, incidental mortality and serious injury 
mitigation or the conservation and management of marine mammals and the 
extent to which such measures are comparable in effectiveness to the 
U.S. regulatory program for similar fisheries.
    (8) Comparability finding determinations--(i) Publication. No later 
than November 30th of the year when the exemption period or 
comparability finding is to expire, the Assistant Administrator shall 
publish in the Federal Register, by harvesting nation, a notice of the 
harvesting nations and fisheries for which it has issued or denied a 
comparability finding and the specific fish and fish products that as a 
result are subject to import prohibitions under paragraphs (h)(1) and 
(9) of this section.
    (ii) Notification. Prior to publication in the Federal Register, 
the Assistant Administrator, in consultation with the Secretary of 
State and, in the event of a denial of a comparability finding, with 
the Office of the U.S. Trade Representative, shall notify each 
harvesting nation in writing of the fisheries of the harvesting nation 
for which the Assistant Administrator is:
    (A) Issuing a comparability finding;
    (B) Denying a comparability finding with an explanation for the 
reasons for the denial of such comparability finding; and
    (C) Specify the fish and fish products that will be subject to 
import prohibitions under paragraphs (h)(1) and (9) of this section on 
account of a denial of a comparability finding and the effective date 
of such import prohibitions.
    (iii) Preliminary comparability finding consultations. (A) Prior to 
denying a comparability finding under paragraph (h)(8)(ii) of this 
section or terminating a comparability finding under paragraph 
(h)(8)(vii) of this section, the Assistant Administrator shall:
    (1) Notify the harvesting nation that it is preliminarily denying 
or terminating its comparability finding and explain the reasons for 
that preliminary denial or termination;
    (2) Provide the harvesting nation a reasonable opportunity to 
submit reliable information to refute the preliminary denial or 
termination of the comparability finding and communicate any corrective 
actions it is taking to meet the applicable conditions for a 
comparability finding set out in paragraph (h)(6)(iii) of this section 
subject to the additional considerations set out in paragraph (h)(7) of 
this section.
    (B) The Assistant Administrator shall take into account any 
information it receives from the harvesting nation and issue a final 
comparability finding determination, notifying the harvesting nation 
pursuant to paragraph (h)(8)(ii) of this section of its determination 
and, if a denial or termination, an explanation of the reasons for the 
denial or termination of the comparability finding.
    (C) A preliminary denial or termination of a comparability finding 
shall not result in import prohibitions pursuant to paragraphs (h)(1) 
and (9) of this section.
    (iv) Duration of a comparability finding. Unless terminated in 
accordance with paragraph (h)(8)(vii) of this section or issued for a 
specific period pursuant to a re-application under paragraph 
(h)(9)(iii) of this section, a comparability finding shall remain valid 
for 4 years from publication or for such other period as the Assistant 
Administrator may specify.
    (v) Renewal of comparability finding. To seek renewal of a 
comparability finding, every 4 years or prior to the expiration of a 
comparability finding, the harvesting nation must submit to the 
Assistant Administrator the application and the documentary evidence 
required pursuant to paragraph (h)(6)(i) of this section, including, 
where applicable, reasonable proof as to the effects on marine mammals 
of the commercial fishing technology in use in the fishery for fish or 
fish products exported to the United States, by March 1 of the year 
when its current comparability finding is due to expire.
    (vi) Procedures for a comparability finding for new foreign 
commercial fishing operations wishing to export to the United States. 
(A) For foreign commercial fishing operations not on the List of 
Foreign Fisheries that are the source of new exports to the United 
States, the harvesting nation must notify the Assistant Administrator 
that the commercial fishing operation wishes to export fish and fish 
products to the United States.
    (B) Upon notification the Assistant Administrator shall issue a 
provisional comparability finding allowing such imports for a period 
not to exceed 12 months.
    (C) At least 120 days prior to the expiration of the provisional 
comparability finding the harvesting nation must submit to the 
Assistant Administrator the reliable information specified in paragraph 
(h)(3)(ii) of this section and the application and the applicable 
documentary evidence required pursuant to paragraph (h)(6)(i) of this 
section.
    (D) Prior to expiration of the provisional comparability finding, 
the Assistant Administrator shall review the application and 
information provided and classify the commercial fishing operation as 
either an exempt or export fishery in accordance with paragraphs 
(h)(3)(iii) through (iv) and (h)(4)(ii) of this section and determine 
whether to issue the harvesting nation a comparability finding for the 
fishery in accordance with paragraph (h)(6)(ii) through (iii) of this 
section.
    (E) If the harvesting nation submits the reliable information 
specified in paragraph (h)(3)(ii) of this section at least 180 days 
prior to expiration of the provisional comparability finding, the 
Assistant Administrator will review that information and classify the 
fishery as either an exempt or export fishery.
    (vii) Discretionary review of comparability findings. (A) The 
Assistant Administrator may reconsider a comparability finding that it 
has issued at any time based upon information obtained by the Assistant 
Administrator including any progress report received from a harvesting 
nation; or upon request with the submission of information from the 
harvesting nation, any nation, regional fishery management 
organizations, nongovernmental organizations, industry organizations, 
academic institutions, citizens or citizen groups that the harvesting 
nation's exempt or export fishery no longer meets the applicable 
conditions in paragraph (h)(6)(iii) of this section. Upon receiving a 
request, the Assistant Administrator has the discretion to determine 
whether to proceed with a review or reconsideration.
    (B) After such review or reconsideration and consultation with the 
harvesting nation, the Assistant Administrator shall, if the Assistant 
Administrator determines that the basis for the comparability finding 
no longer applies, terminate a comparability finding.
    (C) The Assistant Administrator shall notify in writing the 
harvesting nation

[[Page 54418]]

and publish in the Federal Register a notice of the termination and the 
specific fish and fish products that as a result are subject to import 
prohibitions under paragraphs (h)(1) and (9) of this section.
    (9) Imposition of import prohibitions. (i) With respect to a 
harvesting nation for which the Assistant Administrator has denied or 
terminated a comparability finding for a fishery, the Assistant 
Administrator, in cooperation with the Secretaries of the Treasury and 
Homeland Security, shall identify and prohibit the importation of fish 
and fish products into the United States from the harvesting nation 
caught or harvested in that fishery. Any such import prohibition shall 
become effective 30 days after the of publication of the Federal 
Register notice referenced in paragraph (h)(8)(i) of this section and 
shall only apply to fish and fish products caught or harvested in that 
fishery.
    (ii) Duration of import restrictions and removal of import 
restrictions. (A) Any import prohibition imposed pursuant to paragraphs 
(h)(1) and (9) of this section with respect to a fishery shall remain 
in effect until the Assistant Administrator issues a comparability 
finding for the fishery.
    (B) A harvesting nation with an export fishery with a comparability 
finding that expired, was denied or terminated may re-apply for a 
comparability finding at any time by submitting an application to the 
Assistant Administrator, along with documentary evidence demonstrating 
that the harvesting nation has met the conditions specified in 
paragraph (h)(6)(iii) of this section, including, as applicable, 
reasonable proof as to the effects on marine mammals of the commercial 
fishing technology in use in the fishery for the fish or fish products 
exported from such nation to the United States.
    (C) The Assistant Administrator shall make a determination whether 
to issue the harvesting nation that has re-applied for a comparability 
finding for the fishery within 90 days from the submission of complete 
information to the Assistant Administrator. The Assistant Administrator 
shall issue a comparability finding for the fishery for a specified 
period where the Assistant Administrator finds that the harvesting 
nation meets the applicable conditions in paragraph (h)(6)(iii) of this 
section, subject to the additional consideration for a comparability 
finding in paragraph (h)(7) of this section.
    (D) Upon issuance of a comparability finding to the harvesting 
nation with respect to the fishery and notification in writing to the 
harvesting nation, the Assistant Administrator, in cooperation with the 
Secretaries of Treasury and Homeland Security, shall publish in the 
Federal Register a notice of the comparability finding and the removal 
of the corresponding import prohibition effective on the date of 
publication in the Federal Register.
    (iii) Certification of admissibility. (A) If fish or fish products 
are subject to an import prohibition under paragraphs (h)(1) and (9) of 
this section, the Assistant Administrator, to avoid circumvention of 
the import prohibition, may require that the same or similar fish and 
fish products caught or harvested in another fishery of the harvesting 
nation and not subject to the prohibition be accompanied by a 
certification of admissibility by paper or electronic equivalent filed 
through the National Marine Fisheries Service message set required in 
the International Trade Data System. No certification of admissibility 
shall be required for a fish product for which it is infeasible to 
substantiate the attestation that the fish or fish products do not 
contain fish or fish products caught or harvested in a fishery subject 
to an import prohibition. The certification of admissibility may be in 
addition to any other applicable import documentation requirements.
    (B) The Assistant Administrator shall notify the harvesting nation 
of the fisheries and the fish and fish products to be accompanied by a 
certification of admissibility and provide the necessary documents and 
instruction.
    (C) The Assistant Administrator, in cooperation with the 
Secretaries of Treasury and Homeland Security, shall as part of the 
Federal Register notice referenced in paragraph (h)(8)(i) of this 
section, publish a list of fish and fish products, organized by 
harvesting nation, required to be accompanied by a certification of 
admissibility. Any requirement for a certification of admissibility 
shall be effective 30 days after the publication of such notice in the 
Federal Register.
    (D) For each shipment, the certification of admissibility must be 
properly completed and signed by a duly authorized official or agent of 
the harvesting nation and subject to validation by a responsible 
official(s) designated by the Assistant Administrator. The 
certification must also be signed by the importer of record and 
submitted in a format (electronic facsimile [fax], the Internet, etc.) 
specified by the Assistant Administrator.
    (iv) Intermediary nation. (A) For purposes of this paragraph 
(h)(9), and in applying the definition of an ``intermediary nation,'' 
an import into the intermediary nation occurs when the fish or fish 
product is released from a harvesting nation's customs jurisdiction and 
enters the customs jurisdiction of the intermediary nation or when the 
fish and fish products are entered into a foreign trade zone of the 
intermediary nation for processing or transshipment. For other 
purposes, ``import'' is defined in Sec.  216.3.
    (B) No fish or fish products caught or harvested in a fishery 
subject to an import prohibition under paragraphs (h)(1) and (9) of 
this section, may be imported into the United States from any 
intermediary nation.
    (C) Within 30 days of publication of the Federal Register notice 
described in paragraph (h)(8)(i) of this section specifying fish and 
fish products subject to import prohibitions under paragraphs (h)(1) 
and (9) of this section, the Assistant Administrator shall, based on 
readily available information, identify intermediary nations that may 
import, and re-export to the United States, fish and fish products from 
a fishery subject to an import prohibition under paragraphs (h)(1) and 
(h)(9)(i) of this section and notify such nations in writing that they 
are subject to action under paragraph (h)(9)(iv)(D) of this section 
with respect to the fish and fish products for which the Assistant 
Administer identified them.
    (D) Within 60 days from the date of notification, an intermediary 
nation notified pursuant to paragraph (h)(9)(iv)(C) of this section 
must certify to the Assistant Administrator that it:
    (1) Does not import, or does not offer for import into the United 
States, fish or fish products subject to an import prohibition under 
paragraphs (h)(1) and (h)(9)(i) of this section; or
    (2) Has procedures to reliably certify that exports of fish and 
fish products from the intermediary nation to the United States do not 
contain fish or fish products caught or harvested in a fishery subject 
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this 
section.
    (E) The intermediary nation must provide documentary evidence to 
support its certification including information demonstrating that:
    (1) It has not imported in the preceding 6 months the fish and fish 
products for which it was notified under paragraph (h)(9)(iv)(C) of 
this section; or
    (2) It maintains a tracking, verification, or other scheme to 
reliably certify on either a global, individual shipment or other 
appropriate basis that fish and fish products from the intermediary 
nation offered for import to the United States do not contain fish or 
fish products caught or harvested in

[[Page 54419]]

a fishery subject to an import prohibition under paragraphs (h)(1) and 
(h)(9)(i) of this section and for which it was notified under paragraph 
(h)(9)(iv)(C) of this section.
    (F) No later than 120 days after a notification pursuant to 
paragraph (h)(9)(iv)(C) of this section, the Assistant Administrator 
will review the documentary evidence provided by the intermediary 
nation under paragraphs (h)(9)(iv)(D) and (E) of this section and 
determine based on that information or other readily available 
information whether the intermediary nation imports, or offers to 
import into the United States, fish and fish products subject import 
prohibitions and, if so, whether the intermediary nation has procedures 
to reliably certify that exports of fish and fish products from the 
intermediary nation to the United States do not contain fish or fish 
products subject to import prohibitions under paragraphs (h)(1) and (9) 
of this section, and notify the intermediary nation of its 
determination.
    (G) If the Assistant Administrator determines that the intermediary 
nation does not have procedures to reliably certify that exports of 
fish and fish products from the intermediary nation to the United 
States do not contain fish or fish products caught or harvested in a 
fishery subject to an import prohibition under paragraphs (h)(1) and 
(h)(9)(i) of this section, the Assistant Administrator, in cooperation 
with the Secretaries of the Treasury and Homeland Security, will file 
with the Office of the Federal Register a notice announcing the fish 
and fish products exported from the intermediary nation to the United 
States that are of the same species as, or similar to, fish or fish 
products subject to an import prohibition under paragraphs (h)(1) and 
(h)(9)(i) of this section that may not be imported into the United 
States as a result of the determination. A prohibition under this 
paragraph shall not apply to any fish or fish product for which the 
intermediary nation was not identified under paragraph (h)(9)(iv)(C) of 
this section.
    (H) The Assistant Administrator will review determinations under 
this paragraph upon the request of an intermediary nation. Such 
requests must be accompanied by specific and detailed supporting 
information or documentation indicating that a review or 
reconsideration is warranted. Based upon such information and other 
relevant information, the Assistant Administrator may determine that 
the intermediary nation should no longer be subject to an import 
prohibition under paragraph (h)(9)(iv)(G) of this section. If the 
Assistant Administrator makes such a determination, the Assistant 
Administrator, in cooperation with the Secretaries of the Treasury and 
Homeland Security, shall lift the import prohibition under this 
paragraph and publish notification of such action in the Federal 
Register.
    (10) Progress report for harvesting nations with export fisheries. 
(i) A harvesting nation shall submit, with respect to an exempt or 
export fishery, a progress report to the Assistant Administrator 
documenting actions taken to:
    (A) Develop, adopt and implement its regulatory program; and
    (B) Meet the conditions in paragraph (h)(6)(iii) of this section, 
including with respect to reducing or maintaining incidental mortality 
and serious injury of marine mammals below the bycatch limit for its 
fisheries.
    (ii) The progress report should include the methods the harvesting 
nation is using to obtain information in support of a comparability 
finding and a certification by the harvesting nation of the accuracy 
and authenticity of the information contained in the progress report.
    (iii) The first progress report will be due two years prior to the 
end of exemption period and every four years thereafter on or before 
July 31.
    (iv) The Assistant Administrator may review the progress report to 
monitor progress made by a harvesting nation in developing its 
regulatory program or to reconsider a comparability finding in 
accordance with paragraph (h)(8)(vi) of this section.
    (11) International cooperation and assistance. Consistent with the 
authority granted under Marine Mammal Protection Act at 16 U.S.C. 1378 
and the availability of funds, the Assistant Administrator may:
    (i) Provide appropriate assistance to harvesting nations identified 
by the Assistant Administrator under paragraph (h)(5) of this section 
with respect to the financial or technical means to develop and 
implement the requirements of this section;
    (ii) Undertake, where appropriate, cooperative research on marine 
mammal assessments for abundance, methods to estimate incidental 
mortality and serious injury and technologies and techniques to reduce 
marine mammal incidental mortality and serious injury in export 
fisheries;
    (iii) Encourage and facilitate, as appropriate, the voluntary 
transfer of appropriate technology on mutually agreed terms to assist 
harvesting nations in qualifying for a comparability finding under 
paragraph (h)(6) of this section; and
    (iv) Initiate, through the Secretary of State, negotiations for the 
development of bilateral or multinational agreements with harvesting 
nations to conserve marine mammals and reduce the incidental mortality 
and serious injury of marine mammals in the course of commercial 
fishing operations.
    (12) Consistency with international obligations. The Assistant 
Administrator shall ensure, in consultation with the Department of 
State and the Office of the United States Trade Representative that any 
action taken under this section, including any action to deny a 
comparability finding or to prohibit imports, is consistent with the 
international obligations of the United States, including under the 
World Trade Organization Agreement.

[FR Doc. 2016-19158 Filed 8-11-16; 8:45 am]
 BILLING CODE 3510-22-P



                                                                                                    Vol. 81                           Monday,
                                                                                                    No. 157                           August 15, 2016




                                                                                                    Part IV


                                                                                                    Department of Commerce
                                                                                                    National Oceanic and Atmospheric Administration
                                                                                                    15 CFR Part 902
                                                                                                    50 CFR Part 216
                                                                                                    Fish and Fish Product Import Provisions of the Marine Mammal Protection
                                                                                                    Act; Final Rule
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                                               54390             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               DEPARTMENT OF COMMERCE                                  both domestic and foreign commercial                  NMFS extended the comment period for
                                                                                                       fisheries. With respect to foreign                    an additional 60 days (75 FR 38070).
                                               National Oceanic and Atmospheric                        fisheries, section 101(a)(2) of the MMPA                Additionally, on October 5, 2011, and
                                               Administration                                          states that the Secretary of the Treasury             on March 13, 2012, NMFS received
                                                                                                       shall ban the importation of commercial               correspondence from 21 animal rights
                                               15 CFR Part 902                                         fish or products from fish which have                 and animal welfare organizations and
                                                                                                       been caught with commercial fishing                   Save Our Seals Fund, respectively,
                                               50 CFR Part 216                                         technology which results in the                       urging it to take action to ban the
                                               [Docket No. 0907301201–6406–03]                         incidental kill or incidental serious                 importation of Canadian and Scottish
                                                                                                       injury of ocean mammals in excess of                  aquaculture farmed salmon into the
                                               RIN 0648–AY15                                           United States standards. For purposes of              United States due to the intentional
                                                                                                       applying the preceding sentence, the                  killing of seals asserting such lethal
                                               Fish and Fish Product Import                            Secretary of Commerce shall insist on                 deterrence is subject to the importation
                                               Provisions of the Marine Mammal                         reasonable proof from the government of               ban under the MMPA sections 101(a)(2)
                                               Protection Act                                          any nation from which fish or fish                    and 102(c)(3) for international fisheries.
                                               AGENCY:  National Marine Fisheries                      products will be exported to the United               NMFS decided that the proposed rule
                                               Service (NMFS), National Oceanic and                    States of the effects on ocean mammals                would be broader in scope than the
                                               Atmospheric Administration (NOAA),                      of the commercial fishing technology in               2008 petition. In particular, NMFS
                                               Commerce.                                               use for such fish or fish products                    decided that it would be not limited in
                                               ACTION: Final rule.                                     exported from such nation to the United               application to swordfish fisheries and
                                                                                                       States. (16 U.S.C. 1371(a)(2))                        would cover intentional, as well as
                                               SUMMARY:    This final action implements                   Section 102 (c)(3) of the MMPA states              incidental, killing and serious injury of
                                               the import provisions of the Marine                     that it is unlawful to import into the                marine mammals.
                                               Mammal Protection Act (MMPA). This                      United States any fish, whether fresh,                  NMFS published a proposed rule on
                                               rule establishes conditions for                         frozen, or otherwise prepared, if such                August 11, 2015 (80 FR 48172) that
                                               evaluating a harvesting nation’s                        fish was caught in a manner which the                 included a 90-day comment period. A
                                               regulatory program to address incidental                Secretary of Commerce (Secretary) has                 summary of the comments received on
                                               and measures to address intentional                     proscribed for persons subject to the                 the proposed rule and how these
                                               mortality and serious injury of marine                  jurisdiction of the United States,                    comments were addressed in the final
                                               mammals in fisheries that export fish                   whether or not any marine mammals                     rule can be found below. Further
                                               and fish products to the United States.                 were in fact taken incident to the                    background is provided in the above
                                               Under this rule, fish and fish products                 catching of the fish. (16 U.S.C.                      referenced Federal Register documents
                                               from fisheries identified by the                        1372(c)(3)).                                          and is not repeated here.
                                               Assistant Administrator in the List of
                                                                                                       Petition To Ban Imports                               National Environmental Policy Act
                                               Foreign Fisheries can only be imported
                                                                                                                                                             (NEPA)
                                               into the United States if the harvesting                  On March 5, 2008, the U.S.
                                               nation has applied for and received a                   Department of Commerce and other                         NMFS prepared a final Environmental
                                               comparability finding from NMFS. The                    relevant Departments were petitioned                  Assessment (EA) to accompany this
                                               rule establishes procedures that a                      under the MMPA to ban the imports of                  final rule. The EA was developed as an
                                               harvesting nation must follow and                       swordfish and swordfish products from                 integrated document that includes a
                                               conditions to meet, to receive a                        nations that have failed to provide                   Regulatory Impact Review (RIR) and a
                                               comparability finding for a fishery. The                reasonable proof of the effects on ocean              Final Regulatory Flexibility Analysis
                                               rule also establishes provisions for                    mammals of the commercial fishing                     (FRFA). Copies of the EA/RIR/FRFA
                                               intermediary nations to ensure that                     technology in use to catch swordfish.                 analysis are available at the following
                                               intermediary nations do not import, and                 The petition was submitted by two                     address: Office of International Affairs
                                               re-export to the United States, fish or                 nongovernmental organizations, the                    and Seafood Inspection, National
                                               fish products subject to an import                      Center for Biological Diversity and                   Marine Fisheries Service, 1315 East-
                                               prohibition. Agency actions and                         Turtle Island Restoration Network. The                West Highway, Silver Spring, MD
                                               recommendations under this rule will                    petition is available at the following                20910. Copies are also available via the
                                               be in accordance with U.S. obligations                  Web site: http://www.nmfs.noaa.                       Internet at the NMFS Web site at http://
                                               under applicable international law,                     gov/ia/. Copies of this petition may also             www.nmfs.noaa.gov/ia/.
                                               including, among others, the World                      be obtained by contacting NMFS (see                   Overall Framework To Implement
                                               Trade Organization (WTO) Agreement.                     FOR FURTHER INFORMATION CONTACT).                     Sections 101(a)(2) and 102(c)(3) of the
                                               DATES: This final rule is effective on                    On December 15, 2008, NMFS                          MMPA
                                               January 1, 2017.                                        published a notice of receipt of the
                                               FOR FURTHER INFORMATION CONTACT:                        petition in the Federal Register and a                Overview of the MMPA Import Rule
                                               Nina Young, Office of International                     request for public comments through                   Process
                                               Affairs and Seafood Inspection, NMFS                    January 29, 2009 (73 FR 75988). NMFS                     NMFS is amending 50 CFR 216.24 to
                                               at Nina.Young@noaa.gov or 301–427–                      subsequently reopened the comment                     add a new paragraph to establish
                                               8383. More information on this final                    period for an additional 45 days from                 procedures and conditions for
                                               action can be found on the NMFS Web                     February 4 to March 23, 2009 (74 FR                   evaluating a harvesting nation’s
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                                               site at http://www.nmfs.noaa.gov/ia/.                   6010, February 4, 2009).                              regulatory program addressing marine
                                               SUPPLEMENTARY INFORMATION:                                On April 30, 2010, NMFS published                   mammal incidental mortality and
                                                                                                       an advance notice of proposed                         serious injury in its export fisheries, to
                                               MMPA Requirements                                       rulemaking (ANPR) describing options                  determine whether it is comparable in
                                                 The MMPA contains provisions to                       to develop procedures to implement the                effectiveness to the U.S. regulatory
                                               address the incidental mortality and                    import provisions of MMPA section                     program. The new paragraph also
                                               serious injury of marine mammals in                     101(a)(2) (75 FR 22731). On July 1, 2010,             addresses intentional mortality and


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54391

                                               serious injury in fisheries that export to              list, for public comment, and the final               notification of a denial of a
                                               the United States. The following is a                   revised List of Foreign Fisheries in the              comparability finding; and (3)
                                               brief summary of the process for                        Federal Register. In revising the list,               discretionary consultations for
                                               implementing MMPA sections                              NMFS may reclassify a fishery if new                  transmittal or exchange of information.
                                               101(a)(2)(A) and 102(c)(3). Each step                   substantive information indicates the
                                                                                                                                                             Comparability Finding
                                               was discussed in detail in the proposed                 need to re-examine and possibly
                                               rule and is not repeated here.                          reclassify a fishery. The List of Foreign                By the end of the exemption period
                                                                                                       Fisheries will be organized by                        and every four years thereafter, a
                                               List of Foreign Fisheries
                                                                                                       harvesting nation and other defining                  harvesting nation must have applied for
                                                  NMFS will identify harvesting nations                factors including geographic location of              and received a comparability finding for
                                               with commercial fishing operations that                 harvest, gear-type, target species or a               its fisheries to export fish and fish
                                               export fish and fish products to the                    combination thereof. Based upon the                   products to the United States. Fish and
                                               United States and classify those                        List of Foreign Fisheries, the Assistant              fish products from fisheries that fail to
                                               fisheries based on their frequency of                   Administrator will consult with                       receive a comparability finding may not
                                               marine mammal interactions as either                    harvesting nations, informing them of                 be imported into the United States.
                                               ‘‘exempt’’ or ‘‘export’’ fisheries (See                 the regulatory requirements for exempt                   To receive a comparability finding for
                                               regulatory text in this rule for                        and export fisheries to import fish and               an exempt or export fishery operating
                                               definitions of exempt and export                        fish products into the United States.                 within the harvesting nation’s exclusive
                                               fisheries).                                                                                                   economic zone (EEZ) and territorial sea,
                                                  NMFS will publish in the Federal                     Exemption Period and New Entrants
                                                                                                                                                             the high seas, or in the waters of another
                                               Register a List of Foreign Fisheries by                    NMFS will allow a one-time only,
                                                                                                                                                             state, the harvesting nation must
                                               harvesting nation, their fisheries, and                 initial five-year exemption period,
                                               their classifications. After the effective                                                                    demonstrate it has prohibited the
                                                                                                       similar to the Interim Exemption for
                                               date of the rule, NMFS will publish a                                                                         intentional mortality or serious injury of
                                                                                                       domestic fisheries that occurred in 1988
                                               proposed List of Foreign Fisheries for                                                                        marine mammals in the course of
                                                                                                       prior to implementation of the
                                               comment and a subsequent final List. To                                                                       commercial fishing operations in the
                                                                                                       framework for addressing marine
                                               develop this list, NMFS will notify each                                                                      fishery unless the intentional mortality
                                                                                                       mammal bycatch in U.S. commercial
                                               harvesting nation having fisheries that                                                                       or serious injury of a marine mammal is
                                                                                                       fisheries, commencing from January 10,
                                               export to the United States and request                                                                       imminently necessary in self-defense or
                                                                                                       2017. During the exemption period, the
                                               that within 90 days of notification the                 prohibitions of this rule will not apply              to save the life of a person in immediate
                                               harvesting nation submit reliable                       to imports from the harvesting nation;                danger; or that it has procedures to
                                               information about the commercial                        however, harvesting nations are                       reliably certify that exports of fish and
                                               fishing operations identified, including                expected to develop regulatory                        fish products to the United States are
                                               the number of participants, number of                   programs to comply with the                           not the product of an intentional killing
                                               vessels, gear type, target species, area of             requirements to obtain a comparability                or serious injury of a marine mammal
                                               operation, fishing season, and any                      finding during this time period.                      unless the intentional mortality or
                                               information regarding the frequency of                     After the conclusion of the one-time               serious injury of a marine mammal is
                                               marine mammal incidental mortality                      exemption period, any harvesting nation               imminently necessary in self-defense or
                                               and serious injury, including programs                  or fishery that has not previously                    to save the life of a person in immediate
                                               to assess marine mammal populations.                    exported to the United States wishing to              danger.
                                               Harvesting nations will also be                         commence exports will be granted a                       The harvesting nation must also
                                               requested to submit copies of any laws,                 provisional comparability finding for a               demonstrate that it has adopted and
                                               decrees, regulations, or measures to                    period not to exceed twelve months.                   implemented, with respect to an export
                                               reduce incidental mortality and serious                 Such fishery will be classified as an                 fishery, a regulatory program governing
                                               injury of marine mammals in those                       export fishery until the next List of                 the incidental mortality and serious
                                               fisheries or prohibit the intentional                   Foreign Fisheries is published. If a                  injury of marine mammals in the course
                                               killing or injury of marine mammals.                    harvesting nation provides the reliable               of commercial fishing operations in its
                                               NMFS will evaluate each harvesting                      information necessary to classify the                 export fishery that is comparable in
                                               nation’s submission, any readily                        commercial fishing operation at the time              effectiveness to the U.S. regulatory
                                               available information, request                          of the request for a provisional                      program. The U.S. regulatory program
                                               additional information from the                         comparability finding or prior to the                 governing the incidental mortality and
                                               harvesting nations, as necessary, and                   expiration of the provisional                         serious injury of marine mammals in the
                                               use this information to classify the                    comparability finding, NMFS will                      course of commercial fishing operations
                                               fisheries. Where no information or                      classify the fishery in accordance with               is specified in the MMPA (e.g., 16
                                               analogous fishery or fishery information                the definitions. Prior to the expiration of           U.S.C. 1386 and 1387) and its
                                               exists, NMFS will classify the                          a provisional comparability finding, a                implementing regulations. To determine
                                               commercial fishing operation as an                      harvesting nation must provide                        whether a harvesting nation maintains a
                                               export fishery until such time as the                   information to classify the fishery and               regulatory program that is comparable
                                               harvesting nation provides reliable                     apply for and receive a comparability                 in effectiveness to the U.S. regulatory
                                               information to properly classify the                    finding for its fishery to continue                   program for a fishery, NMFS will
                                               fishery or such information is readily                  exporting fish and fish products from                 examine whether the harvesting nation
                                               available to the Assistant Administrator                that fishery to the United States after the           maintains a regulatory program that
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                                               in the course of preparing the List of                  expiration of the provisional                         includes, or effectively achieves
                                               Foreign Fisheries.                                      comparability finding.                                comparable results, as certain
                                                  The year prior to the expiration of the                                                                    conditions specified in paragraph
                                               exemption period and every four years                   Consultations With Harvesting Nations                 (h)(6)(iii) of the rule, subject to
                                               thereafter, NMFS will re-evaluate                         The rule includes three broad                       additional considerations specified in
                                               foreign commercial fishing operations                   consultation areas: (1) Notification of               paragraph (h)(7) of the rule. The
                                               and publish a notice of the proposed                    the List of Foreign Fisheries; (2)                    conditions specified in paragraph


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                                               54392             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               (h)(6)(iii) are features of the U.S.                    to estimate incidental mortality and                  estimation of incidental mortality and
                                               regulatory program.                                     serious injury of marine mammals in                   serious injury for each stock and
                                                  Paragraph (h)(6)(iii) specifies different            each export fishery under its                         reduction in or maintenance of the
                                               conditions that a harvesting nation must                jurisdiction, as well as estimates of                 incidental mortality and serious injury
                                               meet for the Assistant Administrator to                 cumulative incidental mortality and                   of each stock below the bycatch limit.
                                               issue a comparability finding for: Export               serious injury for marine mammal                      This data included in the application
                                               fisheries operating within the EEZ or                   stocks in waters under its jurisdiction               may be provided by the state or another
                                               territorial waters of the harvesting                    that are incidentally killed or seriously             source; and
                                               nation, export fisheries operating within               injured in the export fishery and other                  (b) Comparison of the incidental
                                               the jurisdiction of another state, and                  export fisheries with the same marine                 mortality and serious injury of each
                                               export fisheries operating on the high                  mammal stock, including an indication                 marine mammal stock or stocks that
                                               seas. The conditions specified in                       of the statistical reliability of those               interact with the export fishery in
                                               paragraph (h)(6)(iii) and additional                    estimates;                                            relation to the bycatch limit for each
                                               considerations specified paragraph                         5. Calculation of bycatch limits for               stock; and comparison of the cumulative
                                               (h)(7) are summarized below.                            marine mammal stocks in waters under                  incidental mortality and serious injury
                                                  For export fisheries operating within                its jurisdiction that are incidentally                of each marine mammal stock or stocks
                                               the EEZ or territorial waters of the                    killed or seriously injured in an export              that interact with the export fishery and
                                               harvesting nation, the conditions                       fishery;                                              any other export fisheries of the
                                               include:                                                   6. Comparison of the incidental                    harvesting nation showing that these
                                                  1. Marine mammal stock assessments                   mortality and serious injury of each                  export fisheries do not exceed the
                                               that estimate population abundance for                  marine mammal stock or stocks that                    bycatch limit for that stock or stocks; or
                                               marine mammal stocks in waters under                    interact with the export fishery in                   that, if they do exceed the bycatch limit
                                               its jurisdiction that are incidentally                  relation to the bycatch limit for each                for that stock or stocks, the portion of
                                               killed or seriously injured in the export               stock; and comparison of the cumulative               incidental marine mammal mortality or
                                               fishery;                                                incidental mortality and serious injury               serious injury for which the export
                                                  2. An export fishery register                        of each marine mammal stock or stocks                 fishery is responsible is at a level that,
                                               containing a list of all vessels                        that interact with the export fishery and             if the other export fisheries interacting
                                               participating in the export fishery under               any other export fisheries of the                     with the same marine mammal stock or
                                               the jurisdiction of the harvesting nation,              harvesting nation showing that these                  stocks were at the same level, would not
                                               including the number of vessels                         export fisheries:                                     result in cumulative incidental
                                               participating, information on gear type,                   (a) Do not exceed the bycatch limit for            mortality and serious injury in excess of
                                               target species, fishing season, and                     that stock or stocks; or                              the bycatch limit for that stock or stocks;
                                               fishing area;                                              (b) Exceed the bycatch limit for that              or
                                                  3. Regulatory requirements (e.g.,                    stock or stocks, but the portion of                      4. For an export fishery that is subject
                                               including copies of relevant laws,                      incidental marine mammal mortality or                 to management under an
                                               decrees, and implementing regulations                   serious injury for which the exporting                intergovernmental agreement or by a
                                               or measures) that include:                              fishery is responsible is at a level that,            regional fishery management
                                                  (a) A requirement for the owner or                   if the other export fisheries interacting             organization, implementation of marine
                                               operator of vessels participating in the                with the same marine mammal stock or                  mammal data collection and
                                               fishery to report all intentional and                   stocks were at the same level, would not              conservation and management measures
                                               incidental mortality and injury of                      result in cumulative incidental                       applicable to that fishery required under
                                               marine mammals in the course of                         mortality and serious injury in excess of             any applicable intergovernmental
                                               commercial fishing operations; and                      the bycatch limit for that stock or stocks.           agreement or regional fisheries
                                                  (b) A requirement to implement                          For export fisheries operating within              management organization to which the
                                               measures in export fisheries designed to                the jurisdiction of another state the                 United States is a party.
                                               reduce the total incidental mortality and               conditions include:                                      For an export fishery operating on the
                                               serious injury of a marine mammal                          1. With respect to any transboundary               high seas under the jurisdiction of the
                                               stock below the bycatch limit. Such                     stock interacting with the export fishery,            harvesting nation or of another state:
                                               measures may include: Incidental                        any measures to reduce the incidental                    1. Implementation in the fishery of
                                               mortality and serious injury limits;                    mortality and serious injury of that                  marine mammal data collection and
                                               careful release and safe-handling of                    stock that the United States requires its             conservation and management measures
                                               marine mammals and gear removal; gear                   domestic fisheries to take with respect               applicable to that fishery required under
                                               marking; bycatch reduction devices or                   to that transboundary stock; and                      any applicable intergovernmental
                                               avoidance gear (e.g., pingers); gear                       2. With respect to any other marine                agreement or regional fisheries
                                               modifications or restrictions; or time-                 mammal stocks interacting with the                    management organization to which the
                                               area closures; and                                      export fishery while operating within                 United States is a party; and
                                                  (c) for transboundary stocks or any                  the jurisdiction of the state, any                       2. Implementation in the export
                                               other marine mammal stocks interacting                  measures to reduce incidental mortality               fishery of:
                                               with the export fishery, any measures to                and serious injury that the United States                (a) With respect to any transboundary
                                               reduce the incidental mortality and                     requires its domestic fisheries to take               stock interacting with the export fishery,
                                               serious injury of that stock that are the               with respect to that marine mammal                    any measures to reduce the incidental
                                               same or are comparable in effectiveness                 stock; and                                            mortality and serious injury of that
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                                               to measures the United States requires                     3. For an export fishery not subject to            stock that the United States requires its
                                               its domestic fisheries to take with                     management by a regional fishery                      domestic fisheries to take with respect
                                               respect to that transboundary stock or                  management organization:                              to that transboundary stock; and
                                               marine mammal stock in the United                          (a) An assessment of marine mammal                    (b) With respect to any other marine
                                               States.                                                 abundance of stocks interacting with the              mammal stocks interacting with the
                                                  4. Implementation of monitoring                      export fishery, the calculation of a                  export fishery while operating on the
                                               procedures in export fisheries designed                 bycatch limit for each such stock, an                 high seas, any measures to reduce


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54393

                                               incidental mortality and serious injury                 harvesting nation’s record of                         comparability finding and the effective
                                               that the United States requires its                     implementation of or compliance with                  date of such import prohibitions.
                                               domestic fisheries to take with respect                 measures adopted by that regional                        For a fishery that applied for and is
                                               to that marine mammal stock when they                   fishery management organization or                    unlikely to receive a comparability
                                               are operating on the high seas.                         intergovernmental agreement for data                  finding, NMFS will conduct a
                                                                                                       collection, incidental mortality and                  preliminary comparability finding
                                               Additional Considerations                                                                                     consultation. NMFS, in consultation
                                                                                                       serious injury mitigation or the
                                                  When determining whether to issue                    conservation and management of marine                 with the Secretary of State and the
                                               any comparability finding for a                         mammals; whether the harvesting                       United States Trade Representative, will
                                               harvesting nation’s export fishery the                  nation is a party or cooperating non-                 notify the harvesting nation prior to the
                                               Assistant Administrator will also                       party to such intergovernmental                       notification and publication of the
                                               consider:                                               agreement or regional fishery                         decision whether to issue or deny a
                                                  • U.S. implementation of its                         management organization; the record of                comparability finding in the Federal
                                               regulatory program for similar marine                   United States implementation of such                  Register that it is preliminarily denying
                                               mammal stocks and similar fisheries                     measures; and whether the United                      the harvesting nation a comparability
                                               (e.g., considering gear or target species),             States has imposed additional measures                finding for the fishery, or terminating an
                                               including transboundary stocks                          on its fleet not required by an                       existing comparability finding, and
                                               governed by regulations implementing a                  intergovernmental agreement or regional               provide the harvesting nation with an
                                               marine mammal take reduction plan,                      fishery management organization.                      opportunity to submit reliable
                                               and any other relevant information                         • For export fisheries operating on                information to refute this preliminary
                                               received during consultations;                          the high seas under an applicable                     denial or termination of the
                                                  • The extent to which the harvesting                 intergovernmental agreement or regional               comparability finding, and
                                               nation has successfully implemented                     fisheries management organization to                  communicate any corrective actions
                                               measures in the export fishery to reduce                which the United States is not a party,               taken since submission of its
                                               the incidental mortality and serious                    the harvesting nation’s implementation                application to comply with the
                                               injury of marine mammals caused by                      of and compliance with measures                       applicable conditions for a
                                               the harvesting nation’s export fisheries                adopted by that regional fisheries                    comparability finding. If a harvesting
                                               to levels below the bycatch limit;                      management organization or                            nation does not take action or the
                                                  • Whether the measures adopted by                                                                          situation is not otherwise resolved by
                                                                                                       intergovernmental agreement, and any
                                               the harvesting nation for its export                                                                          the time the Assistant Administrator has
                                                                                                       additional measures implemented by
                                               fishery have reduced or will likely                                                                           made all comparability findings, issued
                                                                                                       the harvesting nation for data collection,
                                               reduce the cumulative incidental                                                                              such findings in writing to the
                                                                                                       incidental mortality and serious injury
                                               mortality and serious injury of each                                                                          harvesting nation and published them
                                                                                                       mitigation or the conservation and
                                               marine mammal stock below the                                                                                 in the Federal Register, the fishery will
                                                                                                       management of marine mammals and
                                               bycatch limit, and the progress of the                                                                        not receive and will have to reapply for
                                                                                                       the extent to which such measures are
                                               regulatory program toward achieving its                                                                       a comparability finding. NMFS will take
                                                                                                       comparable in effectiveness to the U.S.
                                               objectives;                                                                                                   the information received and the results
                                                  • Other relevant facts and                           regulatory program for similar fisheries.
                                                                                                                                                             of such consultations into consideration
                                               circumstances, which may include the                    Issuance or Denial of a Comparability                 in finalizing its comparability finding
                                               history and nature of interactions with                 Finding                                               for the fishery. A preliminary denial or
                                               marine mammals in this export fishery,                                                                        termination of a comparability finding
                                               whether the level of incidental mortality                  No later than November 30th of the
                                                                                                                                                             shall not result in import prohibitions.
                                               and serious injury resulting from the                   calendar year when the exemption
                                               fishery or fisheries exceeds the bycatch                period or comparability finding is to                 Duration and Renewal of a
                                                                                                       expire, the Assistant Administrator will              Comparability Finding
                                               limit for a marine mammal stock, the
                                               population size and trend of the marine                 publish in the Federal Register, by                      For those fisheries receiving a
                                               mammal stock, the population level                      harvesting nation, a notice of the                    comparability finding, such finding will
                                               impacts of the incidental mortality or                  harvesting nations and fisheries for                  remain valid for 4 years or for such
                                               serious injury of marine mammals in a                   which it has issued or denied a                       other period as the Assistant
                                               harvesting nation’s export fisheries, and               comparability finding and the specific                Administrator may specify. To seek
                                               the conservation status of those marine                 fish and fish products that, as a result,             renewal of a comparability finding,
                                               mammal stocks where available;                          are subject to import prohibitions.                   every 4 years, the harvesting nation
                                                  • The record of consultations with                      Prior to publication in the Federal                must submit to the Assistant
                                               the harvesting nation, results of these                 Register, the Assistant Administrator, in             Administrator an application by March
                                               consultations, and actions taken by the                 consultation with the Secretary of State              1 of the year when the comparability
                                               harvesting nation, including under any                  and, in the event of a denial of a                    finding is due to expire, requesting a
                                               applicable intergovernmental agreement                  comparability finding, with the Office of             comparability finding for the fishery
                                               or regional fishery management                          the U.S. Trade Representative, shall                  and providing the same documentary
                                               organization, to reduce the incidental                  notify each harvesting nation in writing              evidence required for the initial
                                               mortality and serious injury of marine                  of the fisheries of the harvesting nation             comparability finding, including
                                               mammals in its export fisheries; and                    for which the Assistant Administrator                 documentary evidence of any measures
                                                  • Information gathered during any                    is:                                                   they have implemented to reduce the
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                                               onsite inspection by U.S. government                       • Issuing a comparability finding;                 incidental mortality and serious injury
                                               officials of a fishery’s operations.                       • Denying a comparability finding                  of marine mammals in its export fishery
                                                  • For export fisheries operating on                  with an explanation for the reasons for               that are comparable in effectiveness to
                                               the high seas under an applicable                       the denial; and                                       the U.S. regulatory program, in
                                               intergovernmental agreement or regional                    • Specify the fish and fish products               particular by maintaining a regulatory
                                               fishery management organization to                      that will be subject to import                        program that includes, or effectively
                                               which the United States is a party, the                 prohibitions on account of a denial of a              achieves comparable results as the


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                                               54394             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               features of the U.S. regulatory program                 in the Federal Register the requirement               imported into the United States from
                                               described in paragraph (h)(6)(iii) of the               that the same or similar fish or fish                 any intermediary nation, including a
                                               rule. The Assistant Administrator may                   products from the harvesting nation’s                 processing nation, NMFS includes
                                               request the submission of additional                    exempt or export fisheries that are not               provisions for intermediary nations.
                                               supporting documentation or                             subject to any import prohibitions (i.e.,             Under these provisions, NMFS will
                                               verification of statements made to                      those that have received a comparability              identify intermediary nations that may
                                               support a comparability finding. If a                   finding) be accompanied by certification              import, and re-export to the United
                                               harvesting nation’s fishery does not                    of admissibility or electronic equivalent             States, fish and fish products from a
                                               receive a comparability finding during                  filed through the National Marine                     fishery subject to an import prohibition
                                               the renewal process, import restrictions                Fisheries message set required in the                 applied under this rule and notify such
                                               will be applied.                                        International Trade Data System.                      nations of the fish and fish products for
                                                                                                          The Assistant Administrator will                   which NMFS has identified them. Such
                                               Import Restrictions                                     notify the harvesting nation of the                   intermediary nations must in turn
                                                  If the Assistant Administrator denies                fisheries and the fish and fish products              certify that it does not import such fish
                                               or terminates a comparability finding for               required to be accompanied by a                       and fish products from a harvesting
                                               a fishery, the Assistant Administrator,                 certification of admissibility and                    nation’s fisheries that are subject to
                                               in cooperation with the Secretaries of                  provide the necessary documents and                   import prohibitions applied under this
                                               the Treasury and Homeland Security,                     instruction. The Assistant Administrator              rule or that it has procedures to reliably
                                               will identify and prohibit the                          in cooperation with the Secretaries of                certify that its exports of fish and fish
                                               importation of fish and fish products                   Treasury and Homeland Security, shall                 products to the United States do not
                                               into the United States from the                         as part of the Federal Register notice                contain such fish or fish products
                                               harvesting nation caught or harvested in                referenced above, publish by harvesting               caught or harvested in a fishery subject
                                               that fishery. Any such import                           nation the fish and fish products                     to an import prohibition. Those
                                               prohibition will become effective 30                    required to be accompanied by a                       procedures can be implemented globally
                                               days after publication of the Federal                   certification of admissibility. Any                   or on a shipment-by-shipment basis and
                                               Register notice announcing the                          requirement for a certification of                    could include, for example, prohibiting
                                               comparability finding and shall only                    admissibility shall be effective 30 days              the import of the prohibited fish and
                                               apply to fish and fish products caught                  after the publication of such notice in               fish products, prohibiting the export of
                                               or harvested in that fishery. Any import                the Federal Register.                                 such product to the United States, or
                                               prohibition imposed under this rule will                                                                      maintaining a tracking and verification
                                                                                                       Discretionary Review of Comparability
                                               remain in effect until the harvesting                                                                         scheme and including certification of
                                                                                                       Findings
                                               nation reapplies and receives a                                                                               such scheme on a shipment-by-
                                               comparability finding for that fishery.                    In addition, the Assistant
                                                                                                       Administrator may reconsider a                        shipment basis. The steps that the
                                               Duration of Import Restrictions and                     comparability finding and may                         Assistant Administrator and the
                                               Removal of Import Restrictions                          terminate a comparability finding if he               intermediary nation must follow are
                                                  NMFS, in consultation with the                       or she determines that the fishery no                 detailed in the preamble to the proposed
                                               Department of State and the Office of                   longer meets the applicable conditions                rule and the regulatory text below and
                                               the United States Trade Representative,                 for a comparability finding. Given that               are not repeated in this summary.
                                               will consult with harvesting nations that               comparability findings are made every                    For an intermediary nation that NMFS
                                               failed to receive a comparability finding               four years, this provision allows the                 has identified as a nation that may
                                               for a fishery, provide the reasons for the              Assistant Administrator to consider the               import, and re-export to the United
                                               denial, and encourage the harvesting                    progress report submitted by a                        States, fish or fish products caught or
                                               nation to take corrective action and                    harvesting nation, information collected              harvested in a fishery subject to an
                                               reapply for a comparability finding. A                  by NMFS, or information provided by                   import prohibition and that cannot
                                               harvesting nation may, at any time,                     entities including RFMOs,                             certify that it does not import such fish
                                               reapply for or request the                              nongovernmental organizations, and the                or fish products caught or harvested in
                                               reconsideration of a denied                             public, to determine whether the                      the fishery, such fish and fish products
                                               comparability finding for a fishery, and                exempt or export fishery is continuing                from that intermediary nation will not
                                               submit documentary evidence to the                      to meet the conditions for a                          be imported into the United States, if
                                               Assistant Administrator in support of                   comparability finding. After such                     the Assistant Administrator determines
                                               such application or request. Upon                       review or reconsideration, and after                  that the intermediary nation does not
                                               issuance of a comparability finding and                 consultation with the harvesting nation               have procedures to reliably certify that
                                               notification to the harvesting nation, the              (preliminary comparability finding), a                exports of such fish and fish products
                                               Assistant Administrator, in cooperation                 comparability finding can be terminated               from the intermediary nation to the
                                               with the Secretaries of the Treasury and                if the Assistant Administrator                        United States do not contain fish or fish
                                               Homeland Security, will publish                         determines that the basis for the                     products caught or harvested in the
                                               notification of the removal of the import               comparability finding no longer applies.              fishery subject to the import
                                               prohibitions for that fishery, effective on             The Assistant Administrator shall notify              prohibition. No fish or fish products
                                               the date of publication in the Federal                  in writing the harvesting nation and                  caught or harvested in a fishery subject
                                               Register.                                               publish notice in the Federal Register,               to an import prohibition under the rule
                                                                                                       of the termination and the specific fish              may be imported into the United States
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                                               Certification of Admissibility                                                                                from any intermediary nation. The
                                                                                                       and fish products that as a result are
                                                 If fish or fish products are subject to               subject to import prohibitions.                       Assistant Administrator, in cooperation
                                               import prohibitions from a harvesting                                                                         with the Secretaries of the Treasury and
                                               nation’s fishery, the Assistant                         Intermediary Nations                                  Homeland Security, will publish a
                                               Administrator, to avoid circumvention                     To prevent any fish or fish products                notice in the Federal Register
                                               of or to facilitate enforcement of import               subject to import prohibitions                        announcing the prohibited fish and fish
                                               prohibitions, may require and publish                   authorized by this rule from being                    products exported from the


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54395

                                               intermediary nation to the United States                surveys and fishery observer programs)                stock or species. Logically, such risks
                                               that are of the same species as, or                     and development of techniques or                      would result either from very small
                                               similar to, fish or fish products subject               technology to reduce incidental                       populations where any incidental
                                               to an import prohibition.                               mortality and serious injury (e.g.,                   mortality could result in increased risk
                                                 The Assistant Administrator will                      fishing gear modifications), as well as               of extinction or larger populations with
                                               review determinations under this                        efforts to improve governance structures              substantial mortality that could become
                                               paragraph upon the request of an                        or enforcement capacity (e.g., training).             very small populations within the
                                               intermediary nation. Such requests must                 NMFS would also facilitate, as                        timeframe taken by the standard
                                               be accompanied by specific and detailed                 appropriate, the voluntary transfer of                management process; in either situation
                                               supporting information or                               appropriate technology on mutually-                   these cases represent an unacceptable
                                               documentation indicating that a review                  agreed terms to assist a harvesting                   ecological risk.
                                               or reconsideration is warranted. Based                  nation in qualifying its export fishery
                                               upon such information and other                                                                               Responses to Comments on the
                                                                                                       for a comparability finding and in
                                               relevant information, the Assistant                                                                           Proposed Rule
                                                                                                       designing and implementing
                                               Administrator may determine that fish                   appropriate fish harvesting methods that                NMFS received comments on the
                                               and fish products from the intermediary                 minimize the incidental mortality and                 proposed rule from fishing industry
                                               nation should no longer be subject to an                serious injury of marine mammals.                     groups, including fish importers,
                                               import prohibition. Based on that                                                                             processors, and trade organizations,
                                               determination, the Assistant                            Emergency Rulemaking                                  environmental non-governmental
                                               Administrator, in cooperation with the                     During the five-year interim                       organizations (NGOs), private citizens,
                                               Secretaries of the Treasury and                         exemption, NMFS may consider                          the Marine Mammal Commission, and
                                               Homeland Security, may lift an import                   emergency rulemaking to ban imports of                foreign governments.
                                               prohibition under this paragraph and                    fish and fish products from an export or
                                                                                                       exempt fishery having or likely to have               General Comments
                                               publish notification of such action in
                                               the Federal Register.                                   an immediate and significant adverse                    NMFS received more than 92,000
                                                                                                       impact on a marine mammal stock.                      comment letters and petitions from
                                               Progress Report                                         Under this rule, ‘‘U.S. regulatory                    private citizens through environmental
                                                  To review the harvesting nation’s                    program’’ is defined as the regulatory                NGOs supporting procedures to
                                               ongoing progress in developing and                      program governing the incidental                      implement the MMPA import
                                               implementing its regulatory program for                 mortality and serious injury of marine                provisions. Specifically, the majority of
                                               its export fisheries, NMFS will require                 mammals in the course of commercial                   commenters expressed their support for
                                               progress reports every four years. The                  fishing operations as specified in the                the comparability finding process and
                                               first report will be submitted two years                MMPA and its implementing                             the application of trade measures.
                                               prior to the end of the exemption period                regulations. The U.S. regulatory                      NMFS received numerous comments
                                               and then every four years thereafter, on                program at section 118(g) of the MMPA                 asking the agency to adopt the strongest
                                               or before July 31. In this report, the                  (16 U.S.C. 1387(g)) contains provisions               measures possible to reduce marine
                                               harvesting nation will present an update                for emergency rulemaking for U.S.                     mammal bycatch to conserve these
                                               on actions taken over the previous two                  domestic fisheries that are having or                 resources and level the playing field for
                                               years to develop, adopt, and implement                  likely to have an immediate and                       U.S. fishermen. Several commenters
                                               its regulatory program, as well as                      significant adverse impact on a marine                supported NMFS holding other nations
                                               information on the performance of its                   mammal stock. NMFS would likewise                     to the same rigorous and strict standards
                                               export fisheries in reducing incidental                 consider an emergency rulemaking for                  to which U.S. fishermen are subject.
                                               mortality and serious injury of marine                  an export or exempt fishery having or                   Several comments received were not
                                               mammals. This progress report should                    likely to have an immediate and                       germane to this rulemaking and are not
                                               detail the methods used to obtain the                   significant adverse impact on a marine                addressed in this section. These
                                               information contained in the progress                   mammal stock interacting with that                    comments include actions outside the
                                               report and should include a certification               fishery. Before NMFS initiates an                     scope of the statutory mandate or
                                               by the harvesting nation of its accuracy                emergency rulemaking, NMFS would                      actions covered under other
                                               and authenticity. The report allows                     consult with the nation with the                      rulemakings. Comments received are
                                               NMFS to monitor the harvesting                          relevant fishery and urge it to take                  available on the Internet at http://
                                               nation’s efforts in its export fisheries                measures to reduce the incidental                     www.regulations.gov under Docket ID
                                               and to work closely with a harvesting                   mortality and serious injury and                      NOAA–NMFS–2010–0098. In the
                                               nation to ensure they meet and continue                 effectively mitigate such immediate and               following section, NMFS responds to
                                               to meet the conditions for a                            significant adverse impact on the                     the comments applicable to this
                                               comparability finding.                                  marine mammal stock(s). If the                        rulemaking.
                                                                                                       harvesting nation fails to take measures
                                               International Cooperation and                           to reduce the incidental mortality and                Definitions
                                               Assistance                                              serious injury and mitigate such                         Comment 1: Numerous commenters
                                                 Throughout implementation of this                     immediate and significant adverse                     recommended expanding the definition
                                               rule, NMFS will engage in consultations                 impact, NMFS would consider                           of ‘‘Fish and Fish Products’’ to
                                               with harvesting nations. Consistent with                prohibiting the imports of fish and fish              encompass all fish products including
                                               existing authority under the MMPA (16                   products from the relevant export or                  highly processed products and
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                                               U.S.C. 1378), and contingent on annual                  exempt fishery through notice and                     expressed concern that the proposed
                                               appropriations, NMFS may provide                        comment rulemaking.                                   exclusion of highly processed product
                                               assistance to harvesting nations to aid in                 The emergency regulations or                       has the potential to exempt from this
                                               compliance with this rule. Assistance                   measures allow for timely treatment of                rule a significant portion of U.S. imports
                                               activities may include cooperative                      cases where the usual process and                     from, or worse encourage exporters to
                                               research on marine mammal                               timeframe could result in unacceptable                increase export of process product to
                                               assessments (e.g., designing vessel                     risks to the affected marine mammal                   evade compliance with the MMPA.


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                                               54396             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                                  Response: NMFS disagrees that the                    yet that fishery by itself removes 1                  commercial fisheries with incidental
                                               proposed exemption would incentivize                    percent or less of that stock’s bycatch               mortality and serious injury of some
                                               businesses to increase production of                    limit annually.                                       transboundary stocks and shares
                                               highly processed products over                             Comment 4: One commenter                           management authority for such stocks
                                               traditional product forms in order to                   questioned why NMFS chose only two                    with other harvesting nations, NMFS
                                               circumvent the requirements of the rule.                categories of fisheries, exempt and                   emphasizes the consideration of
                                               However, NMFS is modifying the rule to                  export, as opposed to the 3 categories of             transboundary stocks in the
                                               remove language excluding highly                        fisheries applicable to U.S. fisheries,               comparability finding conditions in the
                                               processed products from the definition                  stating that three categories of fisheries            rule. Because NMFS shares conservation
                                               of fish and fish products. The rationale                would allow the fisheries with the                    and management for these stocks with
                                               for doing so is provided below in                       highest marine mammal bycatch to be                   other nations, there is a greater need for
                                               ‘‘Changes From Proposed Action’’. If a                  excluded from comparability findings                  a harvesting nation to demonstrate that
                                               fishery of a harvesting nation fails to                 by the harvesting nations until those                 it has implemented a regulatory
                                               receive a comparability finding for a                   fisheries could be brought into                       program for its export fisheries (whether
                                               fishery, fish and fish products caught or               compliance with the comparability                     operating in its EEZ, territorial sea, or
                                               harvested in that fishery will be subject               finding requirements.                                 on the high seas) that is comparable in
                                               to an import prohibition, including                        Response: Having only two categories               effectiveness to the U.S. regulatory
                                               highly processed fish products                          simplifies and streamlines the                        program for such transboundary stocks,
                                               containing fish caught or harvested in                  development of the List of Foreign                    especially for transboundary stocks
                                               the fishery. This revision of the                       Fisheries. The regulatory program                     governed by specific requirements of the
                                               definition of fish and fish products to                 governing U.S. fisheries requires                     U.S. regulatory program, including
                                               remove the exclusion for highly                         management action for Category 1 and                  marine mammal take reduction plans.
                                               processed products also has                             2 fisheries; this simplified approach is                 Comment 7: The Marine Mammal
                                               implications for the provision of this                  more practical for a harvesting nation                Commission recommended that NMFS
                                               rule that allows the Assistant                          developing regulatory programs to                     include a definition of the term ‘‘ocean
                                               Administrator to require that the same                  reduce marine mammal bycatch in its                   mammals’’ and that it be defined as
                                               or similar fish and fish products caught                export fisheries. Nonetheless, nothing                equivalent to the statutory definition of
                                               or harvested in another fishery of the                  prevents the harvesting nation from                   the term ‘‘marine mammal.’’
                                               harvesting nation and not subject to the                prioritizing the export fisheries to which               Response: For this rule, NMFS
                                               prohibition be accompanied by a                         it will devote resources in developing                considers the terms ‘‘marine mammal’’
                                               certification of admissibility and                      regulatory programs for reducing marine               and ‘‘ocean mammal’’ to be equivalent.
                                               therefore has clarified that provision as               mammal bycatch. Export fisheries not                     Comment 8: A commenter noted that
                                               described ‘‘Changes to the Proposed                     included in the application for a                     NMFS defines a commercial fishing
                                               Action’’ below.                                         comparability finding and not governed                operation to include aquaculture
                                                  Comment 2: Several commenters                        by the harvesting nation’s regulatory                 activities that interact with or occur in
                                               disagree that the MMPA authorizes                       program will not receive a                            marine mammal habitat (50 CFR
                                               NMFS to exempt certain fish products                    comparability finding and fish and fish               216.24(h)(3)(i)(A)). The commenter
                                               from this regulation. Further, exempting                products from those fisheries will be                 recommended that NMFS clearly state
                                               this subcategory of fish products runs                  subject to import prohibitions.                       the commercial aquaculture operations
                                               contrary to the MMPA’s accompanying                        Comment 5: One commenter                           that would not be: Impacted by the final
                                               regulations under 50 CFR 216.24 for                     questioned whether the rule would                     rule, included in the List of Foreign
                                               ‘‘tuna product’’ which explicitly include               address the bycatch of marine mammals                 Fisheries and required to have a
                                               processed items such as ‘‘fish pastes,’’                that migrate from waters under the                    comparability finding to export to the
                                               and ‘‘fish balls, cakes, and puddings.’’                jurisdiction of one nation into U.S.                  U.S.
                                                  Response: For the reasons explained                  waters?                                                  Response: This rule applies to
                                               in the ‘‘Changes from Proposed Action’’                    Response: Yes, and NMFS has                        aquaculture facilities sited in marine
                                               section, NMFS is modifying the rule to                  specifically defined ‘‘transboundary                  mammal habitat that have or may
                                               remove language that would exclude                      stock’’ as a marine mammal stock                      incidentally or intentionally kill and
                                               highly processed products from the                      occurring in the: (1) Exclusive economic              seriously injury marine mammals.
                                               definition of fish and fish products.                   zones or territorial sea of the United                NMFS does not intend to include
                                                  Comment 3: One commenter                             States and one or more other States; or               aquaculture facilities that are
                                               suggested that the term ‘‘remote’’ be                   (2) Exclusive economic zone or                        freshwater-based or are not located in
                                               clarified within the definition of an                   territorial sea of the United States and              marine mammal habitat.
                                               exempt fishery.                                         on the high seas. A harvesting nation
                                                  Response: NMFS believes no further                   with bycatch of a transboundary stock                 Application of This Rule
                                               clarification of the term ‘‘remote’’ is                 in an export fishery must develop a                     Comment 9: One commenter asserts
                                               needed. The definition clearly indicates                regulatory program comparable in                      the purpose of this rule is to punish
                                               that a commercial fishing operation                     effectiveness to the U.S. regulatory                  nations that continue to hunt whales
                                               with a remote likelihood of causing                     program for that transboundary stock.                 while another urged NMFS to prohibit
                                               incidental mortality and serious injury                    Comment 6: One commenter stated it                 importation of fish products from Japan
                                               of marine mammals is one that                           is unclear why NMFS distinguishes                     until they ceased their drive fisheries for
                                               collectively with other foreign fisheries               between U.S. transboundary and non-                   dolphins.
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                                               exporting fish and fish products to the                 transboundary stocks; and there is no                   Response: NMFS disagrees. This rule
                                               United States causes the annual removal                 reason NMFS should limit the                          does not apply to commercial and
                                               of:                                                     application of this rule to U.S. stocks.              subsistence whaling or drive fisheries
                                                  (1) Ten percent or less of any marine                   Response: NMFS is not limiting the                 for marine mammals. Subsistence and
                                               mammal stock’s bycatch limit; or                        application of this rule to U.S. stocks.              commercial whaling are governed under
                                                  (2) More than 10 percent of any                      Because NMFS has developed                            the other provisions of the MMPA, other
                                               marine mammal stock’s bycatch limit,                    regulatory measures for its domestic                  U.S. laws, and the International


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                       54397

                                               Convention for the Regulation of                        interact with marine mammals in ways                  and environmental NGOs, opposed the
                                               Whaling.                                                that can result in intentional or                     five-year exemption period, stating
                                                  Comment 10: One nation asserted the                  incidental mortality or serious injury.               several species may become extinct
                                               U.S. does not have the authority to                     Additionally, several commenters called               within that timeframe, that nations have
                                               regulate marine mammals within                          for an immediate investigation into                   had a 43-year de facto exemption, that
                                               another nation’s coastal waters, except                 lethal practices (e.g. intentional                    some nations and fisheries can comply
                                               for those species included under an                     shooting of depredating seals) by the                 in a shorter timeframe, and that an
                                               international management framework                      global salmon aquaculture industry,                   exemption period of that length
                                               such as the Convention on International                 while others recommended an                           weakens the incentive for a nation to
                                               Trade in Endangered Species (CITES).                    immediate import prohibition of salmon                develop the necessary infrastructure,
                                                  Response: NMFS is not attempting to                  harvested by aquaculture operations                   much less the political and economic
                                               regulate marine mammals within a                        that engage in such practices, stating it             will to satisfy the rule’s requirements.
                                               nation’s coastal waters. NMFS is                        was a violation of the MMPA to import                 Further, some commenters assert that
                                               prohibiting the importation of fish and                 the product.                                          the MMPA does not authorize such an
                                               fish products into the United States                       Response: The regulatory definition of             exemption. These commenters
                                               from a fishery that has not been issued                 a commercial fishing operation includes               recommended exemption periods of 1 to
                                               comparability findings and establishing                 aquaculture, and NMFS will classify                   3 years, immediate implementation of a
                                               criteria for such comparability finding.                foreign aquaculture operations                        prohibition on intentional killing and
                                               The rule does require an export fishery                 considering both intentional and                      serious injury, or adoption of emergency
                                               operating under the jurisdiction of a                   incidental mortality and serious injury               regulations for species of particular
                                               harvesting nation within its EEZ (or the                according to the requirements of this                 conservation concern. Numerous
                                               equivalent) or territorial sea, to develop              rule. When making comparability                       commenters stated that if the five-year
                                               and maintain a regulatory program                       finding determinations for farmed                     exemption period is retained, provisions
                                               comparable in effectiveness to the U.S.                 salmon imports, NMFS will evaluate                    should be put in place requiring
                                               regulatory program in order to obtain a                 measures to reduce interactions,                      harvesting nations to demonstrate in the
                                               comparability finding. The harvesting                   prohibit intentional, and reduce                      interim that they are making a good
                                               nation must develop and implement                       incidental mortality and serious injury               faith effort to comply with the rule.
                                               such a regulatory program only if it                    of marine mammals in foreign                             Response: NMFS will retain the five-
                                               wishes to export fish and fish products                 aquaculture operations as compared to                 year interim exemption because we
                                               to the United States.                                   the U.S. standards for aquaculture
                                                  Comment 11: One nation commented                                                                           believe that this exemption is needed to
                                                                                                       facilities (e.g., use of predator nets and            provide nations with adequate time to
                                               that the rule should not be applied to all              the prohibition on intentional killing).
                                               marine mammals, stating the proposed                                                                          assess marine mammal stocks, estimate
                                                                                                          Comment 13: One nation asked what
                                               rule does not take into account that                                                                          bycatch, and develop regulatory
                                                                                                       standard or measures the United States
                                               many marine mammal species are                                                                                programs to mitigate that bycatch. The
                                                                                                       has implemented in its aquaculture
                                               abundant and that incidental injury or                  facilities to avoid marine mammal                     progress report is NMFS’ means to
                                               mortality of some species will have little              bycatch, and what marine mammal                       determine if nations are making a good
                                               or no effect on their respective                        mortality and serious injury rates are                faith effort to comply with the rule.
                                               populations and recommended that                        associated with U.S. aquaculture                      Moreover, nothing in the rule prevents
                                               NMFS list the specific species of                       operations.                                           a nation from implementing a bycatch
                                               concern, rather than all marine                            Response: U.S. marine aquaculture                  reduction regulatory program and
                                               mammals generally.                                      fisheries are currently Category III                  seeking a comparability finding during
                                                  Response: NMFS disagrees. The                        fisheries under the MMPA and are                      the five-year exemption period.
                                               MMPA requires that the incidental                       regulated under the regulations                          Comment 15: The Marine Mammal
                                               mortality or serious injury of marine                   implementing the MMPA section 118                     Commission asserts the MMPA import
                                               mammals occurring in the course of                      provisions governing the incidental take              provision is an ongoing, long-standing
                                               commercial fishing operations be                        of marine mammals in all U.S.                         statutory requirement, and it does not
                                               reduced to insignificant levels                         commercial fishing operations. These                  see a legal basis for deferring
                                               approaching a zero mortality and                        regulations also include provisions that              implementation. To the extent that any
                                               serious injury rate. This goal includes                 prohibit the intentional killing and                  delay can be countenanced, it should be
                                               all marine mammals and does not                         serious injury of marine mammals in                   kept to the absolute minimum necessary
                                               differentiate based on level of                         commercial fishing operations. No U.S.                to secure the required information from
                                               abundance. The MMPA does prioritize                     marine aquaculture fishery is currently               exporting countries. The Marine
                                               action for those stocks defined as                      included under any marine mammal                      Mammal Commission recommends that
                                               ‘‘strategic,’’ and the agency hopes that                take reduction plan which would                       NMFS provide additional justification,
                                               nations would also prioritize action for                specify additional regulations specific to            including a legal analysis explaining
                                               threatened and endangered species and                   that particular aquaculture fishery (e.g.,            why imports of fish and fish products
                                               those for which bycatch is                              California white seabass enhancement                  need not be banned until the exporting
                                               unsustainable.                                          net pens). Annual estimates of marine                 countries provide the ‘‘reasonable
                                                                                                       mammal incidental mortality and                       proof’’ required under section
                                               Aquaculture                                                                                                   101(a)(2)(A), if it decides to defer
                                                                                                       serious injury resulting from
                                                 Comment 12: Numerous commenters                       aquaculture operations, when they are                 implementation as proposed. NMFS
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                                               supported inclusion of aquaculture                      reported, are published in the annual                 also should explain why a shorter
                                               operations under the rule. The Marine                   marine mammal stock assessment                        phase-in is not possible.
                                               Mammal Commission recommended                           reports.                                                 Response: NMFS has concluded that
                                               that foreign aquaculture operations                                                                           a five-year exemption period is
                                               should be subject to the import                         Five-Year Interim Exemption Period                    permissible and has provided the
                                               provisions under the MMPA                                 Comment 14: The majority of                         rationale for such in the above response
                                               recognizing that aquaculture operations                 commenters, including private citizens                to comment 14 and the preamble to the


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                                               54398             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               proposed rule (See August 11, 2015 80                   emergency provisions are included                     regulatory program governing the
                                               FR 48172).                                              within the U.S. standards to ensure that              incidental mortality and serious injury
                                                  Comment 16: The Marine Mammal                        the United States can move quickly to                 of marine mammals in the course of
                                               Commission recommended that NMFS                        engender protections for highly at-risk               commercial fisheries and specific
                                               establish a shorter exemption period for                species. See the preamble for the                     regulations applicable to their fisheries.
                                               fisheries that (1) have bycatch of marine               discussion of emergency rulemaking                       Comment 20: Several commenters
                                               mammals that are critically endangered;                 during the interim exemption period                   recommended that NMFS adopt a
                                               (2) involve marine mammal stocks for                    and comparability finding period.                     bycatch standard that fully mirrors the
                                               which ample information already exists                     Comment 18: Processors and nations                 U.S. standard in the MMPA including
                                               on their status and bycatch levels and                  supported the exemption period stating                incorporating the MMPA’s goal of
                                               for which monitoring and bycatch                        that the majority of the harvesting                   reducing incidental mortality and
                                               mitigation measures are already well                    nations exporting fish and fish products              serious injury of marine mammals to
                                               developed or could be quickly                           to the United States are not as advanced              insignificant levels approaching a zero
                                               established; or (3) are already subject to              as the U.S. in developing,                            mortality and injury rate (ZMRG).
                                               RFMO measures for monitoring and                        implementing, and enforcing fishery or                   Response: The rule defines U.S.
                                               mitigating marine mammal bycatch. If                    protected species conservation and                    regulatory program as the regulatory
                                               NMFS proceeds to allow a five-year                      management rules; and in cases where                  program governing the incidental
                                               exemption period, the Marine Mammal                     data deficiencies exist, five years will              mortality and serious injury of marine
                                               Commission recommended that                             likely be too short of a period to develop            mammals in the course of commercial
                                               harvesting nations be required to take                  and apply rules for flag nation fleets                fishing operations as specified in the
                                               immediate steps once the final List of                  and/or for fishing operations within an               MMPA and its implementing
                                               Foreign Fisheries is published to                       EEZ. These commenters recommended a                   regulations. NMFS is not ignoring the
                                               institute programs that require all                     ten-year exemption period, with one-                  ZMRG standard in the rule; it has
                                               fishermen engaged in fisheries that                     year renewable extensions to the initial              prioritized reducing bycatch to
                                               might take marine mammals to register                   exemption period or flexibility in the                sustainable levels (e.g. below the
                                               with the appropriate national agency to                 timeline to avoid a disruption in trade               bycatch limit) and will consider the
                                               identify their target catch and gear type,              that could arise if foreign fisheries fail            application of the ZMRG, or metrics/
                                               to report all marine mammals taken, and                 to receive a comparability finding                    measures comparable in effectiveness to
                                               to carry observers when asked to do so.                 simply because they or even NMFS                      ZMRG, to foreign fisheries providing the
                                                  Response: The intent of the                          could not fulfill all the provisions of the
                                                                                                                                                             same flexibility to foreign fisheries as it
                                               exemption period is to provide nations                  rule within a non-extendable timeline.
                                                                                                                                                             has applied to analogous U.S. fisheries
                                               with the time needed to assess marine                      Response: NMFS disagrees that the
                                               mammal stocks and estimate and                          exemption period should be increased                  that have not met ZMRG.
                                               mitigate bycatch in their export                        or have one-year renewable extensions.                   Comment 21: One commenter stated
                                               fisheries. To meet these objectives                     NMFS considers the five-year                          that, for marine mammal species that
                                               nations will have to implement                          exemption period to be sufficient time                are listed as threatened or endangered
                                               registries, and monitoring programs of                  for nations to develop regulatory                     under the ESA, NMFS may only
                                               the type recommended by the Marine                      programs for their fisheries subject to               authorize incidental mortality and
                                               Mammal Commission. NMFS believes                        this rule.                                            serious injury from all commercial
                                               the progress report will provide critical                                                                     fisheries that have a ‘‘negligible impact’’
                                                                                                       United States Regulatory Program                      on the listed stocks. NMFS has not
                                               information on a nation’s actions toward
                                               developing its regulatory program so it                   Comment 19: Two nations requested                   addressed section 101(a)(5)(E) or the
                                               might receive a comparability finding                   information on incidental bycatch of                  negligible impact standard in its
                                               for its fisheries.                                      marine mammals taken in U.S. fisheries                proposed rule.
                                                  Comment 17: Several commenters                       and stock abundance estimates. One                       Response: Section 101(a)(5)(E) is one
                                               including the Marine Mammal                             nation stated that it is important that               of the links to the ESA to ensure
                                               Commission recommended that in lieu                     NMFS provide all harvesting nations                   threatened and endangered species are
                                               of decreasing the timeframe for the five-               with sufficient information and                       adequately addressed in fisheries. One
                                               year exemption period, NMFS consider                    suggested that NMFS first provide the                 of the requirements in section
                                               implementing an emergency import ban                    contents of existing regulations and                  101(a)(5)(E) is to comply with
                                               to protect species facing ‘‘significant                 rules for conservation and management                 monitoring and take reduction plans,
                                               adverse’’ impacts during the delay                      of marine mammals that the U.S. has                   which are the same elements included
                                               period. The Marine Mammal                               already implemented as well as existing               in the comparability finding process for
                                               Commission noted the domestic interim                   bycatch data.                                         this rule.
                                               exemption included an emergency                           Response: This information is readily
                                                                                                                                                             List of Foreign Fisheries
                                               rulemaking provision that directed                      available. Information on marine
                                               NMFS to issue regulations ‘‘to prevent                  mammal bycatch and the U.S.                             Comment 22: Several commenters
                                               to the maximum extent practicable any                   regulatory program and stock                          asked whether foreign fishery
                                               further taking’’ of marine mammals in a                 assessments can be found at http://                   classifications would apply to a nation’s
                                               fishery if information being collected                  www.nmfs.noaa.gov/pr/interactions/trt/                entire fishery based on species, or
                                               under the interim program indicated                     marine_mammal_take_reduction_                         whether there would be sub-
                                               that incidental taking was having ‘‘an                  program.html and http://                              classifications based on specific
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                                               immediate and significant adverse                       www.nmfs.noaa.gov/pr/sars/                            geographic areas and frequency of
                                               impact’’ on any marine mammal stock.                    species.htm, respectively. In addition,               marine mammal interactions.
                                                  Response: NMFS acknowledges that                     when NMFS provides the List of                          Response: NMFS intends to work
                                               the domestic interim exemption                          Foreign Fisheries and the harvesting                  with harvesting nations to adopt
                                               included emergency provisions, and                      nation’s export and exempt fisheries,                 classifications of fisheries that, to the
                                               believes the adoption of such measures                  NMFS will also provide harvesting                     extent practicable, reflect gear type,
                                               would add a layer of precaution. The                    nations with general information on the               geographic or management areas, and


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                          54399

                                               frequency of interaction when                              Comment 25: One commenter raised a                 comparability findings are in effect, and
                                               warranted.                                              concern about using readily available                 by providing the Assistant
                                                  Comment 23: One commenter stated                     information stating NMFS should not                   Administrator with the discretion to
                                               the regulatory language must be clear                   reward a harvesting nation with a                     reconsider, at any time throughout the
                                               that imports of fish and fish products                  finding of exemption if that nation has               four year effective period, a
                                               from a commercial fishing operation not                 not made a good-faith effort to support               comparability finding based on new
                                               on the List of Foreign Fisheries and not                such a finding. The Marine Mammal                     information.
                                               covered under this regulatory process                   Commission was troubled that the rule
                                               must be banned.                                                                                               Intentional Killing and Serious Injury
                                                                                                       could be interpreted as placing the onus
                                                  Response: NMFS disagrees. A fishery                  on NMFS to gather the necessary                          Comment 28: The majority of
                                               must be classified as export or exempt.                 information.                                          commenters supported the prohibition
                                               The nation must then apply for and                         Response: Consistent with section                  on intentional mortality or serious
                                               receive a comparability finding for those               101(a)(2)(A) of the MMPA, this rule                   injury of marine mammals in foreign
                                               fisheries otherwise the fish and fish                   places the burden of proof on the                     commercial fishing operations as a
                                               products from that fishery cannot be                    harvesting nation to supply the                       condition for receiving a comparability
                                               imported into the United States.                        information to classify its fisheries.                finding. Several commenters noted that
                                                  Comment 24: Several commenters                       However, through the implementation                   because the MMPA prohibits ‘‘the
                                               raised concern and sought clarification                 of other regulations and participation in             intentional lethal take of any marine
                                               on the discretionary reasoning and                      RFMOs, NMFS may have readily                          mammal’’ by domestic commercial
                                               factors that the Assistant Administrator                available information that it can use to              fishing operations, this is the clearest
                                               may use to classify ‘‘exempt’’ or                       supplement its evaluation and                         standard applicable to domestic
                                               ‘‘export’’ fisheries absent adequate                    classification.                                       commercial fisheries and as such must
                                               scientific information provided by the                     Comment 26: One commenter sought                   be applied to foreign commercial
                                               harvesting nation about the frequency                   guidance on whether depredation by                    fisheries exporting fish and fish
                                               and/or magnitude of incidental                          marine mammals on fish such as                        products to the United States.
                                               mortalities. Another commenter                          albacore captured on longlines can be                    Response: NMFS agrees that the rule
                                               opposes the approach of classification                  regarded as interactions under the                    should cover intentional mortality and
                                               by analogy, asserting the diverse range                 proposed rule.                                        serious injury and has retained, from the
                                               of gear types and configurations and                       Response: This rule addresses                      proposed rule, the provisions
                                               differences in marine mammal                            mortality and injury of marine mammals                concerning intentional mortality and
                                               distribution and behavior in various                    in the course of commercial fishing                   serious injury of marine mammals in the
                                               geographic locations. The Marine                        operations. Depredation in and of itself              final rule.
                                               Mammal Commission recommended                           will not be considered for the purposes                  Comment 29: Several commenters
                                               that, if NMFS finds that available                      of this rule unless the outcome of that               noted that when Congress granted U.S.
                                               information is not adequate to                          depredation is mortality or serious                   fisheries an interim exemption from
                                               determine with sufficient reliability the               injury.                                               MMPA’s take ban in 1988, Congress
                                               frequency with which a foreign fishery                                                                        maintained a strict prohibition on the
                                                                                                       Application and Duration of a                         ‘‘intentional lethal taking’’ of (a) any
                                               takes marine mammals and from what
                                                                                                       Comparability Finding                                 Steller sea lion, (b) any cetacean, and (c)
                                               stocks, the List of Foreign Fisheries
                                               identify that fishery as an export fishery                 Comment 27: Several commenters                     any marine mammals from a depleted
                                               until such information becomes                          opposed having the comparability                      stock (i.e., ESA-listed species or stocks
                                               available.                                              finding being valid for four years noting             below Optimum Sustainable
                                                  Response: To classify fisheries as                   that, in the interim, changes in fishing              Population). 16 U.S.C. 1383a(b)(2)(C).
                                               exempt or export fisheries in the                       operations, regulations, and                          Therefore, these commenters were of the
                                               absence of information from the                         enforcement can all affect compliance                 view that, if NMFS adopts an exemption
                                               harvesting nation, NMFS will evaluate                   with the conditions of a comparability                period, the agency should institute an
                                               information concerning factors such as                  finding. Some commenters suggested                    analogous ban on intentional take
                                               fishing techniques, gear used, methods                  that comparability findings be renewed                comparable to that in the interim
                                               used to deter marine mammals, target                    annually, others suggested that NMFS                  exemption during the exemption period.
                                               species, seasons and areas fished,                      shorten the time that comparability                      Response: NMFS acknowledges that
                                               qualitative data from logbooks or fisher                findings are valid, to more closely align             the interim exemption under the MMPA
                                               reports, stranding data, the species and                with the process to issue permits for the             included a ban on the intentional lethal
                                               distribution of marine mammals in the                   incidental take of threatened and                     taking and that ban did not include all
                                               area, and will classify fisheries by                    endangered species by domestic                        species or stocks of marine mammals
                                               analogy with similar U.S. or foreign                    commercial fisheries (e.g. three years).              due to species-specific conservation
                                               fisheries and gear types interacting with               While no commenters supported issuing                 concerns relative to U.S. commercial
                                               similar marine mammal stocks. Where                     comparability findings lasting longer                 fisheries at the time. The species-
                                               no analogous fishery or other reliable                  than 4 years, some stated the regulation              specific intentional lethal taking
                                               information exists demonstrating that                   should explicitly state that the                      prohibition of the interim exemption
                                               the likelihood of incidental mortality                  Administrator’s discretion on timing                  does not include all marine mammals.
                                               and serious injury is remote, NMFS will                 may not extend beyond 4 years.                        Requiring harvesting nations to
                                               classify the commercial fishing                            Response: NMFS maintains that four                 implement immediately a prohibition
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                                               operation as an export fishery until such               years is an appropriate duration for a                on the intentional mortality and serious
                                               time as the harvesting nation provides                  valid comparability finding. The rule                 injury on all or only some marine
                                               the reliable information to properly                    provides adequate oversight during the                mammals, creates two problems. First,
                                               classify the fishery or, in the course of               time when a comparability finding is in               the application of such a piece-meal
                                               preparing the List of Foreign Fisheries,                effect by requiring harvesting nations to             prohibition on intentional lethal take
                                               such information becomes readily                        submit a progress report half way                     may not realize the same conservation
                                               available to the Assistant Administrator.               through the four-year period that                     benefit internationally that it did in the


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                                               54400             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               United States. For example, data                        to its export and exempt fisheries that               International Council for the
                                               indicate that much of the intentional                   prohibits the intentional killing or                  Exploration of the Seas (ICES) and the
                                               mortality and serious injury of                         serious injury of marine mammals in the               Institute of Marine Research. Other
                                               pinnipeds involves species other than                   course of commercial fishing operations.              commenters asked for examples of what
                                               Steller sea lions, which were included                  Section 102(c)(3) only applies to                     constitutes a comparable equation.
                                               in the interim exemption prohibition.                   imports of fish caught in a manner                    Another commenter recommended that
                                               Second, it is not feasible to require such              proscribed by the Secretary of                        NMFS rigorously define the standards
                                               a prohibition immediately as nations                    Commerce. The alternative to the                      applicable to determining whether an
                                               need sufficient time to institute decrees,              outright prohibition requires a                       equation or bycatch estimation method
                                               laws, or regulations to prohibit the                    harvesting nation to submit                           is ‘‘comparable’’ including by
                                               intentional mortality and serious injury                documentary evidence demonstrating                    stipulating appropriate and
                                               of marine mammals.                                      that it has procedures to reliably certify            precautionary, recovery factors in the
                                                  Comment 30: The Marine Mammal                        that its exports of fish and fish products            PBR equation.
                                               Commission and other commenters                         to the United States are not the product                 Response: In addition to the U.S.
                                               expressed concern with the option that                  of the intentional killing or serious                 Potential Biological Removal (PBR)
                                               would allow imports of fish and fish                    injury of marine mammals. NMFS                        level, there are several bycatch limit
                                               products to the United States from                      expects that such procedures would                    calculations that could be considered
                                               fisheries in which it is permissible to                 include certification programs and                    comparable formulae; these include the
                                               kill marine mammals intentionally, as                   tracking and verification schemes. For                Catch Limit Algorithm and the
                                               long as no marine mammals were killed                   NMFS to consider that such a scheme                   conservation objective of the Agreement
                                               or seriously injured in catching or                     can ‘‘reliably’’ certify their claims, the            on the Conservation of Small Cetaceans
                                               raising the particular fish being                       documentary evidence submitted by a                   of the Baltic and North Seas
                                               exported to the United States. The                      harvesting nation must include tracking,              (ASCOBANS). For example, the
                                               Marine Mammal Commission stated that                    verification, and chain of custody                    conservation objective for harbor
                                               this is inconsistent with U.S. domestic                 procedures ensuring, throughout the                   porpoise set under ASCOBANS calls for
                                               standards for aquaculture and other                     entire chain of commerce from the                     all anthropogenic mortality to be
                                               fisheries, and provides a significant                   farms, to the packers, to the distributers,           reduced to less than 1.7% of the best
                                               loophole for aquaculture operations                     and finally to the ultimate importer —                available estimate of abundance.
                                               around the world to circumvent the                      the ability to consistently segregate fish            ASCOBANS has subsequently reduced
                                               rule’s requirements. It also presents                   caught without intentional mortality                  that further to less than 1% of the best
                                               significant enforcement problems, both                  and serious injury of marine mammals.                 available estimate of abundance.
                                               in terms of monitoring whether any                      This mirrors traceability requirements                   PBR is defined by the MMPA as the
                                               marine mammals were intentionally                       for seafood imports as described in the               maximum number of animals, not
                                               killed or injured in raising or harvesting              proposed seafood traceability                         including natural mortalities that may
                                               the fish products and in differentiating                implementing regulations (81 FR 6210,                 be removed from a marine mammal
                                               seafood that can be imported from that                  February 5, 2016).                                    stock while allowing that stock to reach
                                               which is banned. One commenter stated                                                                         or maintain its optimum sustainable
                                               the statute does not explicitly authorize               Stock Assessments                                     population. The PBR level is the
                                               NMFS to create such a bifurcated                           Comment 31: Several nations raised                 product of the following factor: (a) The
                                               regime, and there exists no general                     concerns that for some species of marine              minimum population estimate of the
                                               administrative power to create                          mammals (such as rare species or                      stock; (b) one-half the maximum
                                               exemptions to statutory requirements                    species with wide distribution ranges),               theoretical or estimated net productivity
                                               based upon the agency’s perceptions of                  abundance estimates may be inadequate                 rate of the stock at a small population
                                               costs and benefits. The Marine Mammal                   or lacking and that requiring                         size; and (c) a recovery factor of between
                                               Commission and others recommended                       governments to undertake such                         0.1 and 1.0. The following guidelines
                                               that NMFS require an outright                           assessments is burdensome. One nation                 apply to PBR elements:
                                               prohibition on intentional mortality and                recommended that NMFS provide a                          • Minimum population estimate or
                                               serious injury of marine mammals in the                 specific treatment when data for marine               Nmin is defined as the lower 20th
                                               course of commercial fishing as a                       mammals is not available and where the                percentile of a log-normal distribution
                                               condition to be met before any fishery,                 generation of such data would entail                  according to Nmin = N/exp(0.842 *
                                               including an exempt fishery, could                      high and disproportionate costs.                      (ln(1+CV(N)2))1/2), where CV(N) is the
                                               receive a comparability finding, and that                  Response: NMFS will consider all                   coefficient of variation of the stock’s
                                               the alternative provided by the second                  data, including abundance estimates,                  abundance.
                                               option be dropped.                                      provided in a harvesting nation’s                        • Default values of the maximum
                                                  Response: For implementation and                     application for a comparability finding               theoretical or estimated net productivity
                                               enforcement purposes, NMFS’                             for an export fish in light of the U.S.               or Rmax are used when stock-specific
                                               preference is that a nation demonstrate                 implementation of its stock assessment                values are not available: 0.12 (pinnipeds
                                               it has prohibited the intentional                       program for the same or similar marine                and sea otters) and 0.04 (cetaceans and
                                               mortality or serious injury of marine                   mammal stocks and its bycatch                         manatees).
                                               mammals in the course of commercial                     mitigation measures for similar                          • Recovery Factor or Fr is set at 0.1
                                               fishing operations in exempt and export                 fisheries.                                            for endangered species and 0.5 when
                                               fisheries unless the intentional mortality                                                                    stocks are depleted, threatened, or of
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                                               or serious injury of a marine mammal is                 Bycatch Limits                                        unknown status. When stocks are
                                               imminently necessary in self-defense or                   Comment 32: Several nations                         within OSP or are increasing and
                                               to save the life of a person in immediate               requested clarification on the                        incidental mortality has not been
                                               danger. Harvesting nations may                          calculation of bycatch limits. One                    increasing, other values may be used up
                                               implement this provision by either                      nation asked how the bycatch limit                    to 1.
                                               instituting a law, regulation, or                       compares to thresholds based on the                      NMFS does not need to go further by
                                               licensure or permit condition applicable                scientific advice provided by the                     stipulating specific recovery factors as


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                           54401

                                               there is ample guidance and the                         consequently NMFS has no authority to                 effectiveness’’ is vague, without
                                               definition of bycatch limit, as we have                 address non-export fisheries. Even so,                establishing minimum standards that all
                                               stated in the proposed rule, notes a                    NMFS will encourage harvesting                        nations must meet, it will be difficult for
                                               comparable equation for a bycatch limit                 nations to reduce cumulative bycatch by               the agency to make consistent and
                                               is one that incorporates scientific                     export, exempt, and non-export fisheries              objective comparability determinations.
                                               uncertainty about the population                        to levels below the bycatch limits for                By adopting such a vague standard, the
                                               estimate and trend and results in                       marine mammal stocks killed or                        agency greatly reduces transparency and
                                               sustainable levels of incidental                        seriously injured in such fisheries. We               accountability to the public, making it
                                               mortality and serious injury while still                hope that through the development of                  difficult to ascertain how and why the
                                               allowing the marine mammal stock to                     effective bycatch mitigation measures                 agency made a particular comparability
                                               grow or recover.                                        and capacity building efforts, there will             determination. Commenters urge NMFS
                                                  Comment 33: One nation stated it is                  be the collateral benefit of bycatch                  to provide specific examples within the
                                               not clear how NMFS determines                           reduction in non-export fisheries.                    rule of alternative programs that it
                                               bycatch limits for incidental catches of                   Comment 35: Several commenters                     would find ‘‘comparable.’’
                                               marine mammals in individual fisheries                  opposed the ‘‘cumulative exceedance                      Response: In using the terms
                                               given the fact that they have different                 exemption’’ which allows a harvesting                 ‘‘comparable in effectiveness’’ NMFS
                                               stock development characteristics,                      nation’s export fisheries to export fish to           means that the regulatory program
                                               feeding patterns, reproductive abilities,               the U.S. when the cumulative incidental               effectively achieves comparable results
                                               etc. The nation also asked from where                   mortality or serious injury of exporting              to the U.S. regulatory program. This
                                               the figure of 10 percent and below                      fisheries exceeds the bycatch limit for a             approach gives harvesting nations
                                               incidental catch level, as an objective,                marine mammal stock or stocks                         flexibility to implement the same type
                                               was taken.                                              provided the harvesting nation                        of regulatory program as the United
                                                  Response: NMFS has conducted a                       demonstrates that the portion of                      States or a program that is completely
                                               series of workshops starting in 1994 to                 incidental marine mammal mortality or                 different but achieves the same results.
                                               develop guidelines that may be                          serious injury for which the exporting                For example, if a particular fishery with
                                               consistently applied nationally to assess               fishery is responsible is at a level that,            high bycatch switches to non-entangling
                                               marine mammal stocks. These                             if the other export fisheries of that                 gear and can demonstrate that it has
                                               workshops resulted in Guidelines for                    nation interacting with the same marine               virtually eliminated its bycatch, those
                                               Assessing Marine Mammal Stocks                          mammal stock or stocks were at the                    results can be considered comparable in
                                               (GAMMS) and address the elements of                     same level, would not result in a                     effectiveness. Likewise, if a nation
                                               PBR, abundance estimates, stock                         cumulative mortality or serious injury                chooses to eliminate its bycatch by
                                               identification, etc. These guidelines and               in excess of the bycatch limit for that               implementing time/area closures and
                                               workshop reports can be found at http://                stock or stocks. Commenters in                        can demonstrate the effectiveness of
                                               www.nmfs.noaa.gov/pr/sars/                              opposition noted this exception is not                such closures, that regulatory program
                                               guidelines.htm.                                         part of the U.S. regulatory program, does             may be considered comparable in
                                                  The MMPA includes a goal for U.S.                    not ensure that a harvesting nation’s                 effectiveness. When making this
                                               domestic fisheries to reduce the                        mortality and serious injury level is                 determination, NMFS is evaluating, in
                                               mortality and serious injury levels                     below a marine mammal stock’s bycatch                 lieu of implementing all conditions
                                               incidental to commercial fishing to                     limit or approaching ZMRG, and would                  (e.g., stock assessments and bycatch
                                               ‘‘insignificant levels approaching a zero               not meet the goal of the MMPA to                      limits), a harvesting nation’s
                                               mortality and serious injury rate.’’                    ensure that marine mammal stocks meet                 implementation of bycatch mitigation
                                               NMFS has defined this insignificant                     their optimum sustainable population.                 measures that will result in clear and
                                               threshold as 10% of the PBR level for                   They further maintained that the                      significant reductions.
                                               a given stock. Ten percent of PBR is a                  exemption is complicated and will                        Comment 37: One commenter stated
                                               level of mortality and serious injury                   likely confuse nations trying to comply               that to properly ensure that a harvesting
                                               incidental to commercial fisheries that,                with this rule.                                       nation’s regulatory scheme is
                                               by itself, would allow a population to                     Response: NMFS disagrees. NMFS                     comparable to the U.S. regulatory
                                               equilibrate to a level within 90 percent                adopted this approach to encourage                    program, a comparability finding should
                                               of its carrying capacity and would be                   compliance with the rule and avoid                    include a review of all sources of
                                               considered insignificant to the                         impacting export fisheries with low                   human-caused mortality and serious
                                               population.                                             bycatch, while allowing nations to focus              injury under a harvesting nation’s
                                                  Comment 34: One commenter was                        resources on fisheries with the highest               jurisdiction including all of its fisheries,
                                               concerned that NMFS only requires                       bycatch. This is similar to the U.S.                  not only those fisheries planning to
                                               export fisheries to reduce their mortality              marine mammal take reduction program                  export to the U.S.
                                               and serious injury below the bycatch                    that prioritizes increased regulation of                 Response: NMFS disagrees. Section
                                               limit, while allowing non-export                        fisheries with high bycatch rather than               101 (a)(2) neither gives NMFS the legal
                                               fisheries causing bycatch of the same                   fisheries that contribute little to the               authority to require nations to submit
                                               stock to exceed the bycatch limit. They                 cumulative estimated bycatch.                         data on all human-caused mortality as a
                                               recommended that NMFS require                                                                                 condition for a comparability finding
                                               harvesting nations to demonstrate that,                 Comparable in Effectiveness                           nor does it authorize NMFS to regulate
                                               for any stock that interacts with an                       Comment 36: Nations, industry, and                 such mortality; see response to
                                               export fishery, all bycatch of that stock               environmental NGOs suggested that                     Comment 34.
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                                               (both from export and non-export                        NMFS must either define what will be                     Comment 38: One commenter
                                               fisheries) is cumulatively below the                    deemed comparable to U.S. standards or                supported the approach outlined in
                                               bycatch limit.                                          provide more detail and specificity on                Alternative 3 of the Environmental
                                                  Response: Section 101(a)(2) of the                   the criteria that will be used to                     Assessment requiring countries to
                                               MMPA only provides the U.S. authority                   determine ‘‘comparable in                             implement specific regulatory measures
                                               to require fish imported into the United                effectiveness’’. Some commenters                      required of U.S. commercial fishing
                                               States to meet U.S. standards;                          asserted that because ‘‘comparable in                 operations as the result of a Take


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                                               54402             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               Reduction Plan’s implementing                           measures adopted under that                           transboundary stocks, and such stocks
                                               regulations, stating such an approach                   intergovernmental agreement or by that                frequent both the high seas and the
                                               better meets the requirements of the                    RFMO as well as any other measures                    harvesting nation’s EEZ or territorial
                                               MMPA.                                                   adopted by a harvesting nation that                   sea, the harvesting nation must have a
                                                  Response: NMFS disagrees. Focusing                   constitute its regulatory program                     regulatory program applicable to both
                                               only on those export fisheries for which                governing its high seas export fisheries              areas that is comparable in effectiveness
                                               NMFS has implemented specific                           interacting with marine mammals.                      to the U.S. regulatory program including
                                               regulatory requirements under a Take                    NMFS will then determine whether this                 any marine mammal take reduction plan
                                               Reduction Plan would exclude many                       regulatory program is comparable in                   measures.
                                               foreign fisheries from this regulation,                 effectiveness to the U.S. regulatory                     Comment 42: A commenter noted the
                                               permitting bycatch to continue, and                     program for similar fisheries interacting             Western and Central Pacific Fisheries
                                               providing no means to compel these                      with similar stocks.                                  Commission, of which the United States
                                               fisheries to assess and reduce their                       Comment 41: Another commenter                      is a member, has developed draft
                                               bycatch.                                                noted that the standards for                          guidelines for the safe release of
                                                  Comment 39: The Marine Mammal                        transboundary and non-transboundary                   encircled animals in the purse seine
                                               Commission recommends that NMFS                         stocks appear to be identical, and thus               fishery, and similar international
                                               provide additional details on how it                    without further detail, it is unclear to              guidelines are available for longline
                                               would make determinations as to                         the reader why NMFS is separating                     captured marine mammals. Given the
                                               whether U.S. and foreign fisheries are                  them. A second condition that an export               role of the United States in developing
                                               analogous, and that similarities in the                 fishery operating on the high seas must               and negotiating such arrangements, they
                                               taxa, behavior, and status of the marine                meet is implementation in the export                  recommended that the application of
                                               mammals subject to taking be one of the                 fishery of: (a) With respect to any                   these guidelines should be considered
                                               considerations.                                         transboundary stock interacting with the              sufficient under the proposed rule.
                                                  Response: Due to the highly variable                 export fishery, any measures to reduce                   Response: NMFS acknowledges these
                                               nature of commercial fisheries and the                  the incidental mortality and serious                  guidelines but notes that RFMO
                                               marine mammals species with which                       injury of that stock that the United                  conservation and management measures
                                               they interact, NMFS cannot be rigid or                  States requires its domestic fisheries to             reflect multilateral agreements which
                                               overly prescriptive in its methodology                  take with respect to that transboundary               may or may not meet U.S. standards for
                                               for identifying analogous fisheries. To                 stock; and (b) With respect to any other              its domestic fisheries. The U.S. standard
                                               consider a fishery analogous, NMFS will                 marine mammal stocks interacting with                 applicable to domestic fisheries under
                                               use the best available information when                 the export fishery while operating on                 the MMPA prohibits the intentional
                                               considering the gear type, target species,              the high seas, any measures to reduce                 encirclement of dolphins in the course
                                               and taxa of the marine mammal stocks                    incidental mortality and serious injury               of purse seine fishing; and there are
                                               incidentally killed and seriously                       that the United States requires its                   additional regulatory requirements on
                                               injured.                                                domestic fisheries to take with respect               longline fisheries to reduce the bycatch
                                                                                                       to that marine mammal stock when they                 of false killer whales including longline
                                               High Seas Fisheries
                                                                                                       are operating on the high seas.                       gear requirements and longline
                                                  Comment 40: For fisheries operating                     Response: These requirements target                prohibited areas (see https://
                                               on the high seas, one of the conditions                 situations where the United States has                www.federalregister.gov/articles/2012/
                                               for a comparability finding is that a                   adopted regulatory measures through a                 11/29/2012-28750/taking-of-marine-
                                               harvesting nation must demonstrate                      marine mammal take reduction plan                     mammals-incidental-to-commercial-
                                               how its export fisheries implement both                 governing U.S. vessels participating in               fishing-operations-false-killer-whale-
                                               conservation and management and data                    high seas fisheries to reduce incidental              take).
                                               requirements of any international                       mortality and serious injury of a
                                               agreement ‘‘to which the United States                                                                        Progress Reports
                                                                                                       transboundary stock. While the United
                                               is a party.’’ One commenter stated it is                States would generally attempt to                        Comment 43: The majority of
                                               unclear why NMFS only requires                          advance such measures for adoption by                 commenters supported the submission
                                               compliance with agreements to which                     the intergovernmental agreement or                    of a progress report. One commenter
                                               the United States is a party, as opposed                RFMO, there may be situations where                   suggested that the progress reports
                                               to broadly requiring nations to comply                  the U.S. has implemented regulatory                   should be made available to the public
                                               with any international agreement that is                measures for transboundary stocks that                to aid outside groups in evaluating the
                                               applicable to that fishery.                             are more restrictive than existing RFMO               veracity of the report and the extent of
                                                  Response: When fishing on the high                   measures or where measures have not                   compliance with the MMPA rule. An
                                               seas, U.S. fishermen are required to                    been adopted by the relevant                          industry organization supported the
                                               comply with international measures to                   international body or RFMO, for high                  initial progress report but questioned
                                               conserve and manage species of living                   seas fisheries that interact with                     the value of continued progress reports
                                               marine resources recognized by the                      transboundary stocks. A harvesting                    for harvesting nations that have been
                                               United States, pursuant to the High Seas                nation would be expected to implement                 determined to have a comparable
                                               Fishing Compliance Act (HSFCA) (16                      a regulatory program for such stocks                  regulatory system, especially with the
                                               U.S.C. 5505(1)). The United States                      that is comparable in effectiveness to                requirement to reapply and be
                                               participates in the negotiation and                     the U.S. regulatory program for its                   reassessed every four years. The Marine
                                               adoption of such measures. For export                   vessels operating on the high seas or the             Mammal Commission recommended
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                                               fisheries subject to measures adopted by                U.S. EEZ or territorial sea, including any            progress reports be required for all
                                               RFMOs of which the United States is                     relevant RFMO measures that the U.S. is               fisheries to ensure that the conditions
                                               not a member, or under international                    applying to its fisheries. If the U.S.                that led to a comparability finding being
                                               agreements to which the United States                   regulatory program includes measures                  issued remain in place and that each
                                               is not a party, NMFS will still evaluate                prescribed for the high seas and the U.S.             fishery continues to be comparable to
                                               the harvesting nation’s implementation                  EEZ or territorial sea to reduce the                  U.S. standards, particularly in cases
                                               of any conservation and management                      incidental mortality or serious injury of             where complete information was not


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54403

                                               provided by the harvesting nation. The                  afforded flexibility to set up regulatory             the one described in Comment 46,
                                               Marine Mammal Commission further                        programs to protect marine mammals                    noting it would be unfortunate if
                                               recommended that failure to meet                        and reduce bycatch. Different measures                comparability findings were granted to
                                               research and monitoring standards by                    should not be discarded as long as they               export fisheries at a time when U.S.
                                               the time that the initial progress report               contribute to the required objective.                 fisheries’ bycatch or marine mammal
                                               is due should be a sufficient basis for                 Generally, programs that allow solutions              stock assessments are not meeting the
                                               implementing a trade ban immediately                    to develop that meet the needs of the                 performance standards but corrective
                                               rather than allowing the full five-year                 individual nation and communities                     actions are being implemented or
                                               exemption.                                              have a higher likelihood of success than              developed. The Marine Mammal
                                                  Response: NMFS maintains that                        prescribing one standard approach.                    Commission recommends that NMFS
                                               progress reports provide the agency                        Response: NMFS agrees. By taking                   base an export fishery’s comparability
                                               with an important means to track both                   into account different approaches in a                finding on its comparability to the
                                               the development and continued                           harvesting nation’s export fishery,                   overall performance and effectiveness of
                                               application of a regulatory program.                    including alternative measures that                   the U.S. marine mammal science and
                                               While NMFS is not proposing to use the                  could bear on the feasibility and                     regulatory framework over a longer time
                                               initial or subsequent progress report as                effectiveness of certain bycatch                      period.
                                               the basis for imposing import                           mitigation measures, NMFS considers                      Response: NMFS has included in the
                                               restrictions, NMFS can use the                          alternative measures implemented by                   rule the consideration of ‘‘U.S.
                                               information or lack thereof as grounds                  the nation that are as effective or more              implementation of its regulatory
                                               to initiate consultations to guide                      effective than those applicable in U.S.               program for similar marine mammal
                                               harvesting nations in the development                   fisheries. It is the essence of                       stocks and similar fisheries.’’ NMFS will
                                               of their regulatory program or urge                     ‘‘comparable in effectiveness.’’                      consider the implementation history of
                                               improved compliance with the                               Comment 46: A commenter was
                                                                                                                                                             marine mammal take reduction
                                               conditions of a comparability finding.                  concerned that NMFS proposes to
                                                                                                                                                             measures and stock assessments.
                                               For example, if NMFS provides a                         examine several ‘‘considerations’’ in
                                               comparability finding to an export                      determining whether a program is                      Comparability Finding Requirements for
                                               fishery that has just implemented or                    comparably effective, including                       New Entrants
                                               newly revised its regulations to meet                   ‘‘[w]hether the measures adopted by the
                                                                                                                                                                Comment 48: The majority of
                                               reduce marine mammal incidental                         harvesting nation . . . have reduced or
                                                                                                                                                             commenters opposed granting a 1-year
                                               mortality or serious injury to levels                   will likely reduce’’ mortality and
                                                                                                                                                             provisional comparability finding to a
                                               below the bycatch limit, the progress                   serious injury to below the bycatch
                                                                                                                                                             harvesting nation or fishery that has not
                                               report enables NMFS to track whether                    limit; ‘‘the progress’’ of the foreign
                                                                                                       program in achieving its objectives; and              previously exported to the U.S. With a
                                               such regulations are meeting their                                                                            provisional comparability finding,
                                               target. This could prompt NMFS to                       ‘‘[t]he extent to which the harvesting
                                                                                                       nation has successfully implemented’’                 NMFS will allow imports from
                                               work with nations to identify and                                                                             harvesting nations that have not
                                               correct problem to proactively avoid                    bycatch measures. The commenter
                                                                                                       claims that this is contrary to ‘‘United              submitted ‘‘reasonable proof’’ that the
                                               denying or revoking the comparability                                                                         new foreign commercial fishing
                                               finding. Progress reports can also signal               States standards,’’ which clearly require
                                                                                                       NMFS to only permit nations to import                 operation is meeting U.S. standards for
                                               major shifts in the fishery which either                                                                      marine mammal bycatch. Commenters
                                               reduce or increase incidental mortality                 if they meet or go beyond the strict
                                                                                                       standards of section 101(a)(2).                       urged NMFS, once the proposed
                                               or serious injury, enabling NMFS to                                                                           regulations come into force, to only
                                               work with the nations to make                              Response: NMFS recognizes that there
                                                                                                       will be situations, similar to those                  allow imports from new foreign
                                               necessary adjustments. NMFS can also                                                                          commercial fishing operations after they
                                               use the progress report as the basis to                 encountered in our domestic fisheries,
                                                                                                       where comparability findings                          have received a comparability finding
                                               initiate reconsideration of a                                                                                 supported by reasonable proof. One
                                               comparability finding.                                  determinations will occur during a time
                                                                                                       when a harvesting nation may be                       industry commenter recommended new
                                               Consultations                                           implementing new regulations or                       entrants be afforded the same five-year
                                                 Comment 44: A commenter noted that                    revising existing regulations to meet the             exemption period proposed for nations
                                               information regarding regulatory                        conditions of a comparability finding.                and fisheries currently exporting fish or
                                               requirements must be shared with                        NMFS believes that such actions should                fish products to the United States, and
                                               nations, prior to the commencement of                   be encouraged rather than penalized. In               noted that there is no justification for
                                               the five-year exemption period so every                 those situations, NMFS must determine                 two different approaches.
                                               nation has equal opportunity to comply.                 whether such regulations are likely to,                  Response: NMFS retains the
                                               Each nation needs an equal opportunity                  or are making progress toward, reducing               provisional comparability finding in the
                                               to share, discuss, and validate                         marine mammal bycatch. The Secretary                  rule. While a new entrant may or may
                                               information.                                            must make that same determination                     not be a new fishery or merely an
                                                 Response: NMFS agrees and will                        when promulgating regulations to                      existing fishery that is a new exporter,
                                               continue to provide information on the                  implement domestic take reduction                     is inconsequential. All nations will
                                               rule to nations and use every avenue                    measures, as the MMPA mandates that                   receive an initial five-year exemption
                                               possible to consult with nations and                    a ‘‘take reduction plan shall include                 period and will be familiar with the
                                               provide information on an equal basis to                measures the Secretary expects will                   requirements of this rule. NMFS does
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                                               facilitate compliance with this rule.                   reduce, within 6 months of the plan’s                 not want to incentivize non-compliance
                                                                                                       implementation, such mortality and                    by providing each new entrant with
                                               Additional Consideration/Flexibility                    serious injury to a level below the                   another five-year exemption period. The
                                                 Comment 45: Several commenters                        potential biological removal level.’’ 16              shorter timetable for new entrants
                                               noted that there can be multiple                        U.S.C. 1387(f)(5)(A).                                 provides both NMFS and harvesting
                                               solutions to address a bycatch issue;                      Comment 47: The Marine Mammal                      nations with the minimum amount of
                                               therefore, harvesting nations should be                 Commission raised a similar concern to                time to gather information to classify the


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                                               54404             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               fishery, apply for, and make a                             Second, Canada is implementing                     introduces additional challenges to
                                               comparability finding determination.                    traceability measures, not in response to             traceability and allows for the mixing of
                                                                                                       this rule, but to global forces demanding             legally and illegally sourced fish;
                                               Intermediary Nations
                                                                                                       seafood traceability throughout supply                subsequently allowing illegally sourced
                                                  Comment 49: Several commenters                       chains. In 2011 the Canadian Council of               fish to enter international trade as a
                                               associated with the Maine lobster                       Fisheries and Aquaculture Ministers                   ‘‘legal’’ product of the exporting nation.
                                               industry and the Maine Department of                    undertook the ‘‘Lobster Traceability                  Another commenter stated that the rule
                                               Marine Resources expressed concern                      Pilot Project’’ the objective of which was            lacks any real details as to what
                                               with the intermediary nations                           to ‘‘test the implementation of a seafood             constitutes a reliable certification and
                                               provisions. A significant portion of                    traceability system with practical                    does not specify what type of port state
                                               Maine’s lobster is sent to Canada for                   experience, with real-life situations and             measures will be expected to monitor
                                               processing and comes back to the                        challenges, and with a small number of                transshipments, loading, unloading,
                                               United States as a product of Canada.                   participants at each step of the lobster              segregation of catch, processing of raw
                                               Commenters claim that seafood                           value chain (a small number of                        product from mixed sources; what type
                                               traceability is inadequate and existing                 fishermen, a few processors, one or two               of effective monitoring, control and
                                               traceability technologies are not                       distributors, etc.).’’ The report of the              surveillance systems NMFS will require
                                               operationally feasible for many fish                    pilot project lays out traceability                   to be in place, or what type of legislative
                                               product supply chains, including live                   requirements and models based on                      and administrative measures will be
                                               lobster, to address any trade restrictions              existing government regulations and                   required to support a reliable catch
                                               imposed by the proposed rule due to                     existing traceability programs that                   documentation system.
                                               comingling of product and scale of                      Canada should use as it moves forward                    Response: NMFS is neither
                                               operations. Application of an import                    with its traceability program. The pilot              prescribing the details for traceability or
                                               prohibition on Canadian lobster could                   project identified that the primary                   segregation of fish and fish products
                                               prevent millions of pounds of Maine-                    requirement of any traceability program               caught or harvested in a fishery subject
                                               caught lobster from being sold in the                   must be that it can fully trace lobster, at           to an import restriction nor defining
                                               U.S.                                                    any point in the supply chain, back to                what constitutes a reliable certification.
                                                                                                       the source within 24 hours. Globally                  The burden to develop these
                                                  Response: There is no basis now to                                                                         certification procedures rest on the
                                               speculate that any import prohibition                   recognized basic models for traceability,
                                                                                                       and one implemented in the U.S.                       possible intermediary nation, and
                                               would ensue on Canadian lobster. Also                                                                         NMFS wants to provide such nations
                                               in terms of re-imports to the U.S. of U.S.              Bioterrorism Act, include a ‘‘one up,
                                                                                                       one down’’ approach. This mandates                    with the flexibility to determine how
                                               lobster, processed in Canada, the                                                                             best to comply with the intermediary
                                               commenter has wrongly characterized                     that each organization in the supply
                                                                                                       chain must be able to identify from                   nation requirements. If the nation’s
                                               Canada as an intermediary nation. For                                                                         procedures can reliably certify that
                                               the Canadian caught lobster, Canada is                  whom, where, and when the product
                                                                                                       was received and to whom, where, and                  exports of fish and fish products from
                                               the harvesting nation, and for the U.S.                                                                       the nation to the United States do not
                                               caught lobster Canada doesn’t meet the                  when the product was sent. Since this
                                                                                                       pilot project report several harvesters               contain fish or fish products caught or
                                               definition of an intermediary nation                                                                          harvested in a fishery subject to an
                                               because the U.S. lobster fishery is not on              and processors have adopted
                                                                                                                                                             import prohibition, NMFS will continue
                                               the List of Foreign Fisheries. If the                   traceability programs including the
                                                                                                                                                             to allow trade in those fish and fish
                                               Canadian lobster fishery fails to receive               lobster fishery on the Gaspe Peninsula
                                                                                                                                                             products from that nation.
                                               a comparability finding, the fish and                   in Quebec and the Fisheries, Science
                                               fish products harvested in the Canadian                 Stewardship and Sustainability Board                  Certificate of Admissibility
                                               lobster fishery would be subject to an                  implemented a Newfoundland,                              Comment 51: Several commenters
                                               import prohibition and NMFS may                         Labrador lobster traceability program.                including the Marine Mammal
                                               require a certificate of admissibility                  As Canadian importers and processors                  Commission were extremely concerned
                                               accompany processed lobster from                        continue to develop and roll-out                      that the rule would allow a harvesting
                                               Canada that is not harvested in the                     additional tracking, verification, and                nation denied a comparability finding
                                               Canadian lobster fishery. According to                  traceability procedures that will allow               for one fishery to export that same
                                               Maine Department of Marine Resources                    for the differentiation of U.S.-harvested             seafood product from another fishery in
                                               (DMR), in 2014, Maine imported $238                     product from Canadian product, Canada                 another region or using a different gear
                                               million of seafood from Canada.                         should be able to meet any certification              type, which presents considerable risk
                                               However, DMR did not stipulate what                     of admissibility requirements the AA                  that the trade ban could be bypassed.
                                               percentage of these imports are Maine-                  may impose on processed lobster from                  One commenter believes the possibility
                                               caught lobsters being re-imported to the                Canada.                                               of fraud or even accidental mislabeling
                                               U.S. Two actions appear to mitigate any                    Comment 50: The proposed                           is too great, and the documentation
                                               potential impact from requiring a                       regulations call for any nation that                  required from the exporting nation is
                                               certificate of admissibility under this                 NMFS identifies as a possible                         too complex to expect compliance or
                                               rule. First, Maine is increasing its                    intermediary nation to either prohibit                detection of violations by the United
                                               lobster meat processing capabilities. In                the importation of fish or fish products              States. Therefore, the Marine Mammal
                                               2010, there were five companies                         from fisheries subject to import                      Commission recommended that, if a
                                               processing lobster, in 2013 that number                 prohibitions under this rule or to have               harvesting nation fails to receive a
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                                               increased to 15 firms processing                        procedures to reliably certify that                   comparability finding for a certain
                                               approximately 20 million pounds of                      exports of fish and fish products                     seafood product produced by a given
                                               meat. As Maine continues to increase its                exported to the United States do not                  fishery, then all exports of that seafood
                                               processing capacity, any potential                      contain fish or fish products caught or               product from all fisheries should be
                                               economic impact from requiring a                        harvested in a fishery subject to an                  prohibited until the harvesting nation is
                                               certificate of admissibility would be                   import restriction. Several commenters                able to meet U.S. standards, unless the
                                               lessened.                                               expressed concern that this approach                  harvesting nation and intermediary


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54405

                                               nation or the United States are able to                 places the burden of proof on the                     any harvesting nation submitting an
                                               design and implement a tracking                         harvesting nation to provide the                      application for a comparability finding
                                               program that provides reasonable                        information necessary to show that fish               for a fishery to provide documentary
                                               assurance that no prohibited fish or fish               and fish products exported to the                     evidence demonstrating that it has met
                                               products are being exported to the                      United States were not caught in ways                 the applicable conditions for a
                                               United States.                                          that exceed U.S. marine mammal                        comparability finding for that fishery,
                                                  Response: NMFS disagrees and                         protection standards. Unless sufficient               including reasonable proof as to the
                                               believes the rule addresses the concern                 evidence is presented by the exporting                effects on marine mammals of
                                               through provisions providing for the                    nation, imports of such fish and fish                 commercial fishing technology in use in
                                               Assistant Administrator to require a                    products are to be banned. Additionally,              the fishery for fish or fish products
                                               Certification of Admissibility on the                   several commenters recommended that                   exported from such nation to the United
                                               same or similar fish and fish products                  NMFS reject the options of issuing non-               States.
                                               caught or harvested in another fishery of               comparability findings or issuing                        Comment 54: One commenter
                                               the harvesting nation and not subject to                comparability findings unless it was                  suggested that NMFS could presume
                                               the prohibition. Requiring a                            determined that such a finding was                    that a harvesting nation’s standards are
                                               Certification of Admissibility properly                 unwarranted. Other commenters noted                   comparable in effectiveness to those of
                                               places the burden on the harvesting                     that neither of these are viable options,             the United States upon presentation of
                                               nation to substantiate the attestation on               as neither allows a process for the U.S.              reasonable proof of a valid marine
                                               the Certification of Admissibility form                 to ensure compliance with the MMPA                    mammal protection program. Such a
                                               that the fish or fish products are not                  before allowing access to the U.S.                    country could export fish to the United
                                               caught or harvested from the fishery                    market, and both would place the                      States unless NMFS issued a non-
                                               subject to an import prohibition. The                   burden of proof on NMFS. The MMPA                     comparability finding upon closer
                                               Certification of Admissibility avoids                   requires the harvesting nation to                     examination of the nation’s application,
                                               penalizing export fisheries that receive                provide evidence of compliance to                     or a comparability finding would
                                               a comparability finding by allowing the                 maintain or gain access to the U.S.                   automatically issue if NMFS did not act
                                               same or similar fish and fish products                  market; this process provides greater                 on the application within a specified
                                               from those fisheries to enter the United                incentive for compliance and also                     time period, perhaps six months, subject
                                               States.                                                 allows for bilateral dialogue and U.S.                to a later determination of non-
                                                  Comment 52: A nation asked what                      technical and funding support to                      comparability. The commenter also
                                               constitutes other readily available                     support compliance. The regulations, as               suggested that NMFS consider third
                                               sources and how NMFS will determine                     proposed, will go much further in                     party certifications of foreign fisheries,
                                               the veracity of that information. Another               ensuring the goal of marine mammal                    as sufficient to establish comparability
                                               commenter expressed concern that                                                                              findings and certifications of
                                                                                                       protection across the globe. Likewise,
                                               NMFS could potentially rely on                                                                                admissibility in order to reduce
                                                                                                       the Marine Mammal Commission
                                               information provided by                                                                                       redundant efforts. Likewise one nation
                                                                                                       recommended that NMFS either issue or
                                               nongovernmental organizations and the                                                                         recommended NMFS consider Marine
                                                                                                       deny a comparability finding, rather
                                               public and asked how NMFS would                                                                               Stewardship Council (MSC)
                                                                                                       than issuing a ‘‘Finding of Non-
                                               ensure that information provided by                                                                           certifications in support of program
                                                                                                       Comparability for nations that do not
                                               nongovernment organizations and                                                                               efficiencies, towards establishing
                                                                                                       meet comparability finding
                                               public sources is substantiated and                                                                           exempt fisheries classifications under
                                                                                                       requirements’’ as it would violate the
                                               credible if utilized in comparability                                                                         the proposed rule, since amongst other
                                                                                                       MMPA by switching the burden of proof
                                               finding determinations.                                                                                       criteria, the MSC certification considers
                                                  Response: NMFS will analyze and                      onto the U.S. government by allowing
                                                                                                                                                             marine mammal bycatch.
                                               assess readily available information                    imports to continue until NMFS has                       Response: NMFS disagrees, see
                                               from a variety of sources, including                    collected sufficient information to show              response to Comment 53. Nothing in the
                                               scientific literature and reports from                  that the measures in place for a given                MMPA authorizes NMFS to abrogate its
                                               RFMOs and intergovernmental                             fishery are not comparable. The Marine                responsibility to determine whether a
                                               organizations. NMFS will evaluate                       Mammal Commission further                             fishery has bycatch in excess of U.S.
                                               which information and evidence is most                  recommended that the final rule clearly               standards to a third-party issuing
                                               appropriate for use in classifying                      specify that harvesting nations be issued             certifications for other market or
                                               fisheries and making comparability                      a comparability finding only if they                  ecological purposes. NMFS cannot
                                               findings. This information could                        meet the U.S. standards, rather than be               outright use third-party certifications as
                                               include data actively gathered by the                   issued a comparability finding unless it              a proxy that an export fishery is meeting
                                               U.S. Government as well as data offered                 is shown that they do not meet the                    the conditions of a comparability
                                               by other nations, or international                      applicable requirements.                              finding. NMFS can consider such
                                               organizations (such as RFMOs),                             Response: The MMPA bans imports of                 information as part of the documentary
                                               institutions, or arrangements that                      fish and fish products that result in the             evidence that a harvesting nation
                                               provides a reasonable basis to evaluate                 incidental morality or serious injury of              submits to receive a comparability
                                               comparability findings or classify                      marine mammals in excess of U.S.                      finding. Currently, NMFS does not
                                               fisheries. NMFS decisions under this                    standards for administering the ban to                recognize MSC certification in its
                                               rule must comply with the                               ‘‘insist on reasonable proof from the                 management of protected species
                                               Administrative Procedure Act, which                     government of any nation from which                   because the criteria for obtaining MSC
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                                               prohibits arbitrary and capricious                      fish or fish products will be exported to             certification do not comport with all the
                                               decision making.                                        the United States of the effect on ocean              specific requirements of the MMPA or
                                                                                                       mammals of the commercial fishing                     the ESA. Therefore, NMFS cannot base
                                               Burden of Proof and Non-Comparability                   technology in use for such fish or fish               determinations to issue comparability
                                               Findings                                                products exported from such nation to                 findings solely on MSC certification.
                                                 Comment 53: Several commenters                        the United States.’’ 16 U.S.C.                           Comment 55: Several nations asserted
                                               note that the proposed rule rightly                     1371(a)(2)(A). Thus, this rule requires               that NMFS should issue a comparability


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                                               54406             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               finding in situations where the agency                  Capacity Building                                     into English. Commenters were troubled
                                               cannot evaluate an application within                      Comment 57: The Marine Mammal                      that implementation of this rule,
                                               the stipulated timeframe or cannot judge                Commission urges NMFS to pursue one-                  including its capacity building, has the
                                               whether the harvesting nation’s                         on-one consultations, as well as                      potential to divert already limited
                                               regulatory program is comparable in                     capacity building, whenever possible.                 resources necessary to implement
                                               effectiveness, due to scientific                        The Marine Mammal Commission and                      MMPA provisions for domestic fisheries
                                               uncertainty, the lack of data, absence of               other commenters stated it would be                   and result in other unintended
                                               consensus among scientists, or technical                important for NMFS to have sufficient                 consequences to U.S. fisheries. Still
                                               reasons such as there is no similar                     funding in order to provide ‘‘carrots’’               others were concerned that the
                                               fishery. While other commenters                                                                               proposed regulations put a sizable
                                                                                                       and not just ‘‘sticks’’ to build capacity
                                               stressed that, in the absence of                                                                              administrative burden on an agency that
                                                                                                       and encourage compliance. One
                                               reasonable, direct proof from a                                                                               is resource-constrained and, without
                                                                                                       commenter recommended that NMFS,
                                               harvesting nation, NMFS should not                                                                            additional resources, these tasks may
                                                                                                       in conjunction with cooperating
                                               render a comparability finding.                                                                               not be accomplished within the
                                                  Response: NMFS will only make its                    nations, establish a permanent fund for
                                                                                                                                                             prescribed timeframes. A commenter
                                               comparability finding determinations                    research and implementation, and work
                                                                                                                                                             recommended that NMFS request and
                                               based on the information provided by                    in conjunction with foreign nations to
                                                                                                                                                             ensure that the agency has the
                                               the nation, and any other readily                       make new bycatch reduction
                                                                                                                                                             appropriate budget to fully implement
                                               available information, taking into                      technologies available to all. Other
                                                                                                                                                             the final regulatory regime. The Marine
                                               consideration scientific uncertainty.                   commenters submitted that budgetary                   Mammal Commission recommended
                                                                                                       constraints and realities make direct                 that the preamble to the final rule
                                               Reasonable Proof                                        capacity building assistance to other                 estimate the resource requirements
                                                  Comment 56: Several commenters                       nations for MMPA implementation                       (staff, funding) needed to implement the
                                               recommended that NMFS define                            unlikely, especially given the number of              rule and identify the steps that will be
                                               ‘‘reasonable proof.’’ Some commenters                   competing priorities.                                 taken to secure those resources (e.g.,
                                               stated that requiring harvesting nations                   Response: NMFS, compliant with                     new budget initiatives, reallocation).
                                               to provide documentary evidence of                      requirements regarding Congressionally-                  Response: NMFS acknowledges these
                                               sufficient detail and an attestation that               appropriated funding, will work                       concerns and will work, within its
                                               the evidence is accurate does not define                cooperatively with harvesting nations to              appropriated budget, to allocate
                                               the specific requirements which                         assist those nations in reducing their                sufficient resources toward the
                                               represent ‘‘reasonable proof.’’ Other                   marine mammal bycatch and provide                     implementation of this program while
                                               commenters stated, given the MMPA’s                     appropriate assistance to help such                   continuing to meet its domestic
                                               reliance on the best available scientific               nations obtain a comparability finding.               conservation, science, and management
                                               information, NMFS should incorporate                    While NMFS cannot commit to                           obligations. The tasks and the actions to
                                               this standard into the meaning of                       establishing a fund (given this would                 administer the rule are set out in Table
                                               ‘‘reasonable proof’’ for the submission of              require Congressional appropriations),                17 of the RIR. NMFS estimates that
                                               scientific information and should make                  we note that capacity building can take               implementation of this rule will cost
                                               determinations on Lists of Foreign                      many forms, including technical                       approximately $0.9 million per year,
                                               Fisheries and comparability using the                   collaboration between staff at NMFS                   which is based on the cost of NMFS and
                                               best scientific information available for               and harvesting nations.                               contract staff to carry out these
                                               science-based factors. The Marine                          Comment 58: The Marine Mammal                      activities. NMFS estimates that a total of
                                               Mammal Commission interprets the                        Commission recommended that any                       3.5 full time employees (FTEs) and two
                                               ‘‘reasonable proof’’ requirement of                     harvesting nation seeking a                           contract employees with subject matter
                                               section 101(a)(2)(A) as placing the onus                comparability finding should be subject               expertise will be required. The 3.5 FTEs
                                               on the exporting country to provide                     to a shorter exemption period if the                  are already part of the plan for hiring for
                                               information of sufficient quality and                   harvesting nation has benefited from                  the Office of International Affairs and
                                               reliability to make the required                        capacity building from the United States              Seafood Inspection (3 FTEs) and the
                                               showings. The Marine Mammal                             in designing the bycatch reduction                    Office of Sustainable Fisheries (0.5
                                               Commission asserts that the proposed                    program.                                              FTEs) and therefore this activity will not
                                               rule does not include clear mechanisms                     Response: NMFS disagrees; the                      require additional personnel or funds.
                                               for NMFS to ensure the reliability of the               capacity building program is designed                 NMFS has provided an estimate in the
                                               information that is submitted and                       to help those nations, species, and                   Final Regulatory Impact Review of the
                                               recommended that NMFS require the                       fisheries most in need to comply with                 cost for NMFS to administer the rule
                                               harvesting nation to provide                            the comparability finding requirements.               and the task associated with the rule.
                                               information in sufficient detail to                     The Marine Mammal Commission                             Comment 60: The Marine Mammal
                                               demonstrate its reliability.                            recommendation would be a                             Commission recommended that NMFS
                                                  Response: NMFS will, as a matter of                  disincentive for nations to seek and                  explore some form of cost recovery to
                                               practice, use the best scientific                       participate in capacity building efforts.             supplement funding needed to
                                               information available. This rule does                      Comment 59: Numerous commenters                    implement the import provisions of the
                                               not define ‘‘reasonable proof’’; but, in                expressed concern that this rule would                MMPA. A commenter specifically
                                               our guidance to harvesting nations,                     create a complex and cumbersome                       suggested a ‘‘sustainability fee’’ levied
                                               NMFS will make clear that the                           regulatory program for NMFS to                        on foreign fisheries commensurate with
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                                               information provided by a harvesting                    administer and the process of evaluating              their level of bycatch. Recognizing the
                                               nation in its application for a                         comparability finding applications will               multi-billion dollar value of seafood
                                               comparability finding must include                      be very time and resource consuming                   products imported annually into the
                                               documentary evidence of sufficient                      given the number of harvesting nations,               United States, shifting the burden of
                                               detail, quality, and reliability for NMFS               especially with the added layer of                    funding research and information
                                               to fully evaluate the regulatory program                complexity of having to potentially                   collection onto those nations that
                                               for a given export fishery.                             translate existing rules and applications             benefit from selling fish and fish


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54407

                                               products to the U.S. market is a way to                 Commission noted that NMFS must take                  monitoring, control, surveillance, and
                                               reduce the costs to NMFS.                               into account not only the statutory or                bycatch mitigation and assist these
                                                 Response: The MMPA does not                           regulatory requirements imposed on                    nations to achieve sustainable fisheries.
                                               authorize NMFS to collect such fees,                    foreign fishermen but also the
                                               making implementation of a cost                                                                               Economic Burden
                                                                                                       corresponding level of compliance.
                                               recovery system impossible.                             Therefore, the Marine Mammal                             Comment 64: One commenter stated
                                                                                                       Commission recommended that NMFS                      that most foreign nations exporting fish
                                               Monitoring, Verification, and                                                                                 and fish products to the U.S. are
                                               Enforcement                                             require nations to provide information
                                                                                                       on the methods and effectiveness of                   unlikely to have comparable marine
                                                  Comment 61: A commenter noted that                   fishery monitoring and enforcement                    mammal protection legislation in place
                                               given the sources of imported seafood                   activities in addition to the overall                 and thus unlikely to have information
                                               subject to the MMPA import rule are                     marine mammal bycatch reduction                       needed to meet the comparability
                                               nations that likely lack the capacity and               program.                                              finding requirements. As a result,
                                               perhaps the will to effectively monitor                    Response: NMFS agrees that                         countries that export a small number of
                                               and control both their fishing activities               implementation and enforcement of a                   products may choose to stop exporting
                                               and their seafood supply chain, there is                regulatory program is critical to its                 to the U.S. if the costs associated with
                                               substantial opportunity for fraudulent                  effectiveness and will take these factors             meeting the MMPA import provision
                                               declarations intended to circumvent the                 into account in making comparability                  requirements outweigh the benefits, and
                                               intent of this rule and any sanctions                   determinations. NMFS believes that it                 those that wish to obtain comparability
                                               imposed pursuant to that authority. The                 has included data and information                     findings could require compliance with
                                               commenter recommended that NMFS                         verification safeguards through the                   marine mammal measures only for
                                               make extra efforts to ensure the veracity               rule’s provisions including allowing                  sectors that export fish to the U.S.,
                                               of declarations and take swift action to                other entities to challenge a                         which may represent a small portion of
                                               prohibit imports if verification is not                 comparability finding through the                     their fisheries.
                                               clearly documented or observed. Several                 submission of information                                Response: NMFS cannot control
                                               other commenters noted that NMFS                        demonstrating that the conditions for a               which export fisheries will seek
                                               should consider the link between                        finding are not being met.                            comparability findings and choose to
                                               illegal, unregulated and unreported                                                                           continue to export to the U.S. market.
                                               (IUU) fishing rates and incidental                      International Agreements                              NMFS has crafted a rule that
                                               bycatch and should modify the                             Comment 63: The Marine Mammal                       implements the relevant provisions of
                                               proposed rule to require examination of                 Commission suggested that, in addition                the MMPA, establishes clear standards,
                                               IUU data when making a comparability                    to working bilaterally on capacity                    allows flexibility to comply with those
                                               finding.                                                building, NMFS should continue a                      standards and, when possible, offers
                                                  Response: NMFS acknowledges that                     multilateral effort to develop guidelines             assistance to achieve those standards.
                                               the Presidential Task Force on                          for reducing marine mammal bycatch                       Comment 65: A commenter
                                               Combating Illegal, Unregulated, and                     through the United Nations Food and                   questioned NMFS’ statement that ‘‘[n]o
                                               Unreported (IUU) Fishing and Seafood                    Agriculture Organization, much as was                 U.S. industrial sector is likely to be
                                               Fraud will provide a helpful tool for use               done for sea turtles. In addition to                  directly affected by [this] rulemaking.’’
                                               in assessing comparability. The                         providing marine mammal bycatch                       While it is true that the burden of
                                               proposed regulations will establish                     guidance for nations to apply in their                complying with the proposed regulation
                                               traceability for some marine species                    small-scale domestic fisheries, these                 will be borne by NMFS and the foreign
                                               from the point of catch or the location                 guidelines could be a powerful tool in                harvesting nations, the U.S. seafood
                                               of the aquaculture facility to the first                multilateral negotiations within RFMOs                supply chain relies heavily on having
                                               point of sale in the United States. This                on measures to address marine mammal                  access to imported seafood. Any
                                               documentation requirement will aid                      bycatch. One nation recommended that                  uncertainties to the availability of
                                               NMFS in determining whether seafood                     the appropriate approach should be                    supply will impact pricing and could
                                               came from a legal fishery, add more                     international action rather than                      jeopardize jobs. The burden to the U.S.
                                               transparency to the supply chain to                     unilateral measures; and strongly urged               industry is difficult to estimate without
                                               address IUU fishing and seafood fraud,                  the U.S. to seek an international                     having a sense of which, if any, of the
                                               and help enforce compliance with this                   agreement on a common standard for                    over 120 nations would be successful in
                                               final rule.                                             by-catches of marine mammals that are                 achieving a comparability finding and
                                                  Comment 62: Several commenters                       in conformity with international trade                thus be allowed to continue to export
                                               criticized NMFS for failing to provide                  law.                                                  fish and fish products to the U.S.
                                               details as to how it intends to prevent                   Response: NMFS agrees and will                      Another commenter objected to the lack
                                               fraud and to ensure the authenticity and                continue its multilateral efforts to                  of economic impact analysis included in
                                               accuracy of information submitted for                   develop guidelines for reducing marine                the Environmental Assessment for the
                                               comparability findings and                              mammal bycatch under the United                       proposed rule, especially for the U.S.
                                               certifications of admissibility. They                   Nations Food and Agriculture                          lobster industry, claiming NMFS’
                                               questioned how NMFS would ensure                        Organization. Consistent with the                     inability to identify with certainty the
                                               that comparability findings are based on                legislative intent of the MMPA, NMFS                  nations that will fail to obtain a
                                               a truly effective program rather than one               will work with the U.S. Department of                 comparability finding should not
                                               that only looks good on paper.                          State to protect marine mammals                       absolve the agency of its obligation to
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                                               Similarly, the Marine Mammal                            through the adoption of measures in                   make a good faith attempt to identify
                                               Commission recommended that NMFS                        relevant international fora that require              and analyze the significant adverse
                                               require exporting countries to submit                   reporting of bycatch data and use of                  impacts to state and local economies
                                               more than just a basic written                          bycatch mitigation gear. NMFS will also               that may result from trade restrictions
                                               description of its incidental take                      continue its efforts to work                          imposed by the proposed rule. Another
                                               program to obtain a comparability                       cooperatively with nations that lack                  commenter challenged NMFS’ assertion
                                               finding. The Marine Mammal                              sufficient capacity for fisheries                     that one country’s seafood can easily be


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                                               54408             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               substituted for another’s. As stated, ‘‘it              Level Playing Field                                   implemented by the nation that are as
                                               is possible that a substitute product will                 Comment 66: Numerous commenters                    effective or more effective than those
                                               be more expensive or otherwise less                     supported efforts to level the playing                applicable in U.S. fisheries.
                                               preferable to a prohibited foreign fish or              field for U.S. fisheries, noting that                    Comment 68: One commenter
                                               fish product.’’ If the substitute is more               American fishermen comply with the                    suggested that NMFS did not consider
                                               expensive, consumers will not buy it.                   requirements of the MMPA in                           potential retaliatory responses of foreign
                                               To the extent that they purchase another                conducting their fishing activities, and              markets on exports from the United
                                               seafood product, the impact generally                   those efforts come at an increased cost,              States and the impact of such retaliation
                                               may be lessened, albeit not to the                      so it is only fair to U.S. fisheries that a           on U.S. exports. If the U.S. violates
                                               importer who suddenly finds himself
                                                                                                       level playing field exists such that                  WTO standards by insisting that a
                                               with no products and no customers. In
                                                                                                       importing fisheries abide by similar                  sovereign nation with different laws and
                                               that situation import prohibitions will
                                                                                                       standards when introducing fish into                  social mores comply with a complex
                                               be devastating to those U.S. businesses
                                                                                                       the U.S. market.                                      marine mammal regulatory scheme such
                                               built around that particular supply.
                                                                                                          Response: NMFS agrees that the                     as is in place for U.S. fisheries, what
                                                  Response: There are several factors
                                               that would have to occur for the                        intent of sections 101(a)(2) and 102(c)(3)            makes NMFS think that said sovereign
                                               regulations to directly increase costs to               of the MMPA is to ensure that all fish                nation will not exercise its rights under
                                               U.S. suppliers. The fishery subject to a                and fish products entering the U.S.                   the WTO to retaliate against U.S.
                                               ban would need to provide a significant                 market was caught or harvested in                     exports?
                                               proportion of the product to the U.S.                   fisheries meeting the U.S. standards for
                                                                                                                                                                Response: As noted in the response to
                                               Among the most heavily imported                         marine mammal bycatch.
                                                                                                                                                             Comment 67, the rule is designed to
                                               seafood products into the U.S., there are               Trade Considerations                                  enable NMFS to apply this entire
                                               relatively few countries that presently                                                                       regulation, including any import
                                                                                                         Comment 67: One nation contended
                                               provide a disproportionately large                                                                            prohibitions on certain fish or fish
                                                                                                       that not all marine mammals, including
                                               amount. The RIR provides data on the                                                                          products, consistent with U.S.
                                                                                                       dolphins and whales, are threatened to
                                               top exporting nations for the most                                                                            international obligations, including the
                                                                                                       extinction; therefore, it is not acceptable
                                               widely imported categories of seafood.                                                                        WTO Agreement. Included in NMFS’
                                               For example, Thailand is a major                        for an importing country to unilaterally
                                                                                                       impose trade restriction on exporting                 approach is its intention to regulate in
                                               supplier of shrimp and tuna; however,                                                                         a fair, transparent, and non-
                                               for much of that product they are the                   countries based solely on its unilateral
                                                                                                       sense of value. Another nation noted                  discriminatory manner and to make
                                               processing (intermediary) nation and                                                                          determinations based on the best
                                               not the harvesting nation. Chile and                    that the rule may create unnecessary
                                                                                                       obstacles to trade, because it requires               available science.
                                               Canada are major suppliers of salmon.
                                               Most fisheries supply a relatively small                considerable and unknown use of                          Comment 69: A commenter noted that
                                               amount of product such that importers                   administrative and human resources                    the public will be challenged in
                                               should be able to source an equivalent                  relating to biological research, record               assisting NMFS with comparability
                                               amount of product from another fishery.                 keeping and statistics for the exporting              findings as it will not be informed about
                                               NOAA recognizes that substitute                         countries, in particular developing                   what information a nation has
                                               product may be less desirable and/or                    countries, and seeks to influence the                 submitted and what information the
                                               more expensive, but it would be                         specific policy decisions of trading                  agency already has and what it needs.
                                               speculative to quantify these costs.                    partners. Several questioned whether                  They recommended NMFS review the
                                               Additionally, there are important                       the rule is consistent with the WTO                   proposed compliance process and
                                               intermediary nations in the processing                  obligations of the U.S.                               identify additional opportunities for
                                               of certain fish and fish products and the                 Response: NMFS is mindful of U.S.                   public notice and comment; and urged
                                               cost of a trade prohibition to the U.S.                 obligations under the WTO Agreement                   NMFS to provide for notice and
                                               suppliers and consumers would be                        when implementing the provisions of                   comment on its proposed comparability
                                               contingent upon the role and behavior                   the MMPA and works with the Office of                 findings.
                                               of intermediary nations.                                the U.S. Trade Representative to ensure
                                                                                                                                                                Response: NMFS believes that the
                                                  If a foreign nation’s ability to import              that any actions taken under the MMPA
                                                                                                                                                             rule contains ample opportunity for
                                               certain fish or fish products into the                  are consistent with these obligations.
                                                                                                                                                             input from the public, including at the
                                               United States is limited upon the failure               Agency actions and recommendations
                                                                                                                                                             point of publishing the List of Foreign
                                               of a particular export fishery to receive               under this final rule will be in
                                                                                                       accordance with U.S. obligations under                Fisheries, the call for information on
                                               a comparability finding and the                                                                               bycatch under the Moratorium
                                               subsequent application of import                        applicable international law, including
                                                                                                       the WTO Agreement. Consistent with                    Protection Act that NMFS intends to use
                                               prohibitions, this may impact the ability
                                                                                                       the WTO Agreement and U.S.                            to gather additional information on
                                               of U.S. suppliers to access fish or fish
                                                                                                       obligations under other free trade                    marine mammal bycatch, and the ability
                                               products from that nation. NMFS
                                                                                                       agreements, NMFS will consider a                      to challenge comparability finding
                                               assumes that for the majority of the fish
                                                                                                       harvesting nation’s existing                          determinations published in the Federal
                                               and fish products imported and
                                               consumed alternative sources of fish                    mechanisms, where they provide for                    Register.
                                               and fish products could mitigate the                    comparable protection of marine                       Changes From Proposed Action
                                               impacts of restrictions on U.S.                         mammal species and are appropriate to
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                                               suppliers’ access to fish and fish                      the conditions in the harvesting nation.                In addition to streamlining the final
                                               products. NMFS will continue to work                    By taking into account different                      rule to reduce duplication and improve
                                               with partner resource agencies in the                   conditions in a nation’s fishery,                     readability, NMFS has made several
                                               Federal and state governments to obtain                 including conditions that could bear on               changes in the final rule to respond to
                                               the data necessary to fully understand                  the feasibility and effectiveness of                  public comments, and provide
                                               and analyze potential trade implications                certain bycatch mitigation measures,                  clarification. The key changes are
                                               of any import prohibition.                              NMFS considers alternative measures                   outlined below.


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                        54409

                                               1. Changes to the Definition of Fish and                import prohibitions for fish and fish                 the Automatic Commercial
                                               Fish Products                                           products from a specific fishery denied               Environment/International Trade Data
                                                  In the proposed rule, ‘‘fish and fish                a comparability finding. If a fishery of              System (ACE/ITDS) rulemaking and
                                               products’’ was defined as any marine                    a harvesting nation fails to receive a                subsequent rulemakings to implement
                                               finfish, mollusk, crustacean, or other                  comparability finding, fish and fish                  the recommendations of the Presidential
                                               form of marine life other than marine                   products caught or harvested in that                  Task Force on Combating Illegal,
                                               mammals, reptiles, and birds, whether                   fishery will be subject to an import                  Unreported and Unregulated Fishing
                                               fresh, frozen, canned, pouched, or                      prohibition. When import prohibitions                 and Seafood Fraud (Task Force) (see 79
                                               otherwise prepared in a manner that                     are put into place for such a fishery,                FR 75536; December 18, 2014) are
                                               allows species identification, but did                  NMFS will designate HTS codes of                      issued, NMFS may be able to identify
                                               not include fish oil, slurry, sauces,                   species and product originating from                  fish prohibited from entry under MMPA
                                               sticks, balls, cakes, pudding and other                 that fishery that will be prohibited from             authority based on the documentation
                                                                                                       importation. NMFS ability to determine                specifying fishery of capture/harvest to
                                               similar highly processed fish products.
                                                                                                       product type and origin for all species               be submitted by the importer to ACE/
                                               Commenters strongly opposed this
                                                                                                       is limited. In designating those HTS                  ITDS as part of the seafood traceability
                                               exemption arguing it would exclude
                                                                                                       codes NMFS acknowledges that,                         program. To eliminate duplicative
                                               from the regulatory requirements a
                                                                                                       depending on data reporting                           requirements for MMPA import
                                               significant proportion of fish and fish
                                                                                                       requirements associated with that                     restrictions, NMFS will utilize import
                                               product imports so this definition has
                                                                                                       product and the traceability of product,              documentation procedures that have
                                               been revised in response to public
                                                                                                       NMFS may not in all cases include                     been developed as part of the ACE/ITDS
                                               comments. NMFS is removing from the
                                                                                                       highly processed fish products (fish oil,             and Task Force rulemakings so long as
                                               definition of fish and fish products the
                                                                                                       slurry, sauces, sticks, balls, cakes,                 the information is sufficient to identify
                                               exemption pertaining to fish oil, slurry,               puddings, and other similar highly                    the fish or fish product was not caught
                                               sauces, sticks, balls, cakes, pudding and               processed fish products) for which the                or harvested in a fishery subject to an
                                               other similar highly processed fish                     species of fish comprising the product                import prohibition under the MMPA.
                                               products. NMFS had originally                           or the harvesting event(s) or aquaculture             NMFS has added language in the
                                               excluded these products because due to                  operation(s) of the shipment of the                   regulations for the Certification of
                                               the high degree of comingling or                        product cannot be feasibly identified,                Admissibility to allow alternative data
                                               processing through the supply chain                     either through inspection or                          collection systems that require the same
                                               that may be associated with these                       documentation back to the fishery                     information found on the Certification
                                               products and the potential difficulty                   subject to the import prohibition. Also,              of Admissibility.
                                               identifying the source of fish contained                for the same or similar fish or fish
                                               in such products.                                                                                             Classification
                                                                                                       products caught or harvested in another
                                                  NMFS recognizes the List of Foreign                  fishery of the harvesting nation, NMFS                   This rule is published under the
                                               Fisheries is linked to fish that are caught             is clarifying in the final rule that no               authority of the Marine Mammal
                                               or harvested in a specific fishery, not                 certification of admissibility shall apply            Protection Act, 16 U.S.C. 1371, 16
                                               the level of processing that occurs                     with respect to fish or fish products for             U.S.C. 1372, and 16 U.S.C. 1382.
                                               downstream of the harvest event. As                     which it is infeasible to substantiate the               Under NOAA Administrative Order
                                               suggested in public comment, NMFS                       attestation contained in the certification            (NAO 216–6), the promulgation of
                                               considers the product form to be less                   of admissibility that the fish or fish                regulations that are procedural and
                                               determinative of an importer’s ability to               products do not contain fish caught or                administrative in nature are
                                               trace back to the source fishery than is                harvested in a fishery subject to an                  categorically excluded from the
                                               the specificity and number of fishery or                import prohibition. NMFS will                         requirement to prepare an EA.
                                               fisheries which generated the raw                       determine whether to apply a                          Nevertheless, NMFS prepared an EA for
                                               material for that product. For example,                 certification of admissibility to any fish            this action to facilitate public
                                               NOAA considers it no less feasible to                   or fish product on a case by case basis.              involvement in the development of the
                                               identify surimi or fish sticks as a                                                                           national standard and procedures and to
                                               product originating from the pollock                    2. Clarification of Conditions for a                  evaluate the impacts on the
                                               fishery as it would be for pollock fillets.             Comparability Requirement                             environment. This EA describes the
                                               That said, NMFS did not anticipate that                    NMFS further clarified that a                      impacts on marine mammals associated
                                               a fishery would appear on the List of                   condition for a comparability finding,                with fishing, the methods the United
                                               Foreign Fisheries, and therefore need to                applicable to all export fisheries                    States has used to reduce those impacts,
                                               apply for a comparability finding, solely               regardless of where they operate, that                and a comparison of how approaches
                                               because of its exports of highly                        must be included in a regulatory                      under the MMPA and the High Seas
                                               processed products to the United States.                program is the condition that the                     Driftnet Fishing Moratorium Protection
                                               However, as that is a possibility and                   regulatory program must provide for or                Act provisions of the Magnuson-Stevens
                                               because it will not increase the burden                 effectively achieves comparable results               Fishery Conservation and Management
                                               on harvesting nations whose fisheries                   to measures that reduce the incidental                Reauthorization Act of 2006 would
                                               are already on the List of Foreign                      mortality and serious injury of a marine              affect harvesting nations.
                                               Fisheries for fish and fish products                    mammal stock that the United States                      The alternatives described in section
                                               other than highly processed products,                   requires its domestic fisheries to take               2.1 of the EA (see NEPA) provide five
                                               NMFS considers it appropriate to revise                 with respect to a transboundary or                    alternatives for defining ‘‘U.S.
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                                               the definition of fish and fish products                marine mammal stock.                                  standards’’ that would reduce mortality
                                               as described.                                                                                                 and serious injury of marine mammals
                                                  NMFS does not consider the level of                  3. Clarification of Use of Alternative                in fishing operations (Sections 2.1.1
                                               processing to be applicable to the                      Documentation to the Certification of                 through 2.1.5). In addition to defining
                                               definition of fish and fish products;                   Admissibility                                         standards, the alternatives identify
                                               rather the level of processing is                          In the preamble to the proposed rule,              implementation and compliance steps
                                               applicable to the implementation of                     NMFS discussed its intent that when                   as part of an overall regulatory program


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                                               54410             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               for harvesting nations wishing to export                   Overall, the preferred alternative in              of an RFMO or intergovernmental
                                               fish and fish products into the United                  the EA sets the U.S. import standards                 agreement to which the U.S. is a party.
                                               States.                                                 for harvesting nations as the same                    Tuna is caught in numerous gear types
                                                  The alternatives to implement the                    standard used for U.S. commercial                     including purse seine nets, longline,
                                               import provisions of the MMPA are as                    fishing operations to reduce incidental               hook and line, trolling, trap, harpoon
                                               follows: Under Alternative 1                            mortality and serious injury of marine                and gillnets. Marine mammals interact
                                               (Quantitative Standard), NMFS would                     mammals with flexibility for                          with several gear types used in fisheries
                                               require harvesting nations wishing to                   comparability in effectiveness. It takes              managed by tuna regional fishery
                                               export fish and fish products to the                    an approach that evaluates whether fish               management organizations (RFMOs).
                                               United States to, as required by NMFS                   and fish products exported to the                     They most commonly interact with or
                                               for U.S. domestic fisheries, reduce                     United States are subject to a regulatory             are caught in purse seine, longline, and
                                               incidental mortality and serious injury                 program of the harvesting nation that is              gillnet gear. With the exception of the
                                               of marine mammals to levels below PBR                   comparable in effectiveness to the U.S.               eastern tropical Pacific Ocean, accurate
                                               and subsequently to the same                            regulatory program in terms of reducing               abundance and bycatch estimates for
                                               ‘‘insignificant’’ threshold, or 10 percent              incidental mortality and serious injury               marine mammals are lacking in areas
                                               of potential biological removal, to                     and considers fish and fish products not              where marine mammal distribution
                                               export fish and fish products to the                    subject to such a regulatory program as               overlaps tuna fisheries, making
                                               United States.                                          caught with technology that results in                quantitative analysis of bycatch
                                                  Alternative 2 (Preferred Alternative)                marine mammal incidental mortality                    extremely difficult. Nevertheless, there
                                               would require harvesting nations                        and serious injury in excess of U.S.                  has been progress in quantifying tuna
                                               wishing to export fish and fish products                standards. This approach provides                     RFMO fishery impacts on or bycatch of
                                               to the United States to demonstrate                     harvesting nations with flexibility to
                                               comparability with U.S. standards as set                                                                      marine mammals and several RFMOs
                                                                                                       implement the same measures as under                  have either passed or introduced
                                               out for domestic fisheries under sections               the U.S. program or other measures that
                                               117 and 118 of the MMPA.                                                                                      measures to mitigate or reduce marine
                                                                                                       achieve comparable results.                           mammal mortality. For example, both
                                               Comparability is defined as                                This rulemaking has been determined
                                               ‘‘comparable in effectiveness to that of                                                                      the Western Central Pacific Fisheries
                                                                                                       to be significant for the purposes of
                                               the United States [regulatory program],’’                                                                     Commission and the Indian Ocean Tuna
                                                                                                       Executive Order (E.O.) 12866 because it
                                               not necessarily identical or as detailed.                                                                     Commission have adopted measures
                                                                                                       raises novel legal or policy issues
                                               A finding of comparability would be                     arising out of legal mandates, the                    that prohibit the intentional
                                               made based on the documentary                           President’s priorities, or the principles             encirclement of marine mammals in
                                               evidence provided by the harvesting                     set forth in this Executive Order.                    purse seine sets and also require safe
                                               nation to allow the Assistant                              Pursuant to E.O. 12866, NMFS                       handling and release in the event that a
                                               Administrator to determine whether the                  conducted a Regulatory Impact Review                  marine mammal is encircled. Similar
                                               harvesting nation has developed and                     (RIR). When conducting the RIR and the                measures have been introduced for
                                               implemented a regulatory program                        EA’s socioeconomic analysis of the                    purse seine fisheries operating under
                                               comparable in effectiveness to the U.S.                 preferred alternative, NMFS considered                the International Convention for the
                                               program prescribed for U.S. commercial                  the number of harvesting nations and                  Conservation of Atlantic Tunas.
                                               fisheries in sections 117 and 118 of the                the types of fish products exported to                Therefore, these conservation and
                                               MMPA. Like the prior alternative, the                   the United States. In 2012, 122 nations               management measures would govern
                                               preferred alternative also requires                     exported fish and fish products into the              the purse seine fisheries of Thailand,
                                               calculation of PBR or a bycatch limit                   United States (see EA Section 3.4.3                   Vietnam, Philippines, Indonesia and
                                               and reducing incidental mortality and                   Table 3). Fifty-five percent (66 nations)             China. The largest exporter is Thailand,
                                               serious injury of marine mammals to                     of those nations export five or fewer fish            who exported more than 93 million
                                               levels below the bycatch limit.                         products, and 74% of the nations export               kilos of tuna to the United States.
                                                  Alternative 3 would define U.S.                      10 or fewer fish products. Only nine                  Thailand is both a harvesting nation,
                                               standards as those specific regulatory                  economies export 25 or more fish                      landing roughly 26 million kilos, and
                                               measures required of U.S. commercial                    products; they are: Canada, Chile,                    intermediary nation, by way of its
                                               fishing operations as the result of a take              China, Japan, Mexico, Taiwan,                         canning operations. Currently, Thailand
                                               reduction plan’s implementing                           Thailand, South Korea, and Vietnam.                   processes almost one-quarter of the
                                               regulations. Such regulatory measures                   With the exception of Japan, all of these             world’s canned tuna (736,000 mt in
                                               could be applied to fisheries conducted                 economies are included within the U.S.                2008). Other nations exporting more
                                               on the high seas where a take reduction                 list of top ten seafood trading partners              than 20 million kilos include Vietnam,
                                               plan is in place (and thus the                          by volume and weight (see EA Section                  the Philippines, Indonesia, Ecuador,
                                               requirements would already apply to                     3.4.3 Table 4).                                       and China. Several of these nations are
                                               vessels under the jurisdiction of the                      The United States imports more than                also processors, including Ecuador,
                                               United States), and to foreign fisheries,               67 marine species, with tuna, shrimp,                 which is the second largest processing
                                               regardless of their area of operation, that             salmon (both farmed and wild salmon),                 site accounting for almost 12% of global
                                               are comparable to U.S. fisheries.                       mollusks, mackerel, and sardines                      annual production (362,400 mt in 2008).
                                                  Alternative 4 uses a procedure of                    representing the six largest imports.                 Ecuador, which has an affirmative
                                               identification, documentation and                       Tuna fisheries are conducted primarily                finding for its yellowfin tuna purse
                                               certification devised under the                         on the high seas, whereas shrimp and                  seine fisheries, exports are governed
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                                               HSDFMPA and promulgated as a final                      salmon fisheries are a combination of                 predominantly by the Agreement on the
                                               rule in January 2011 (76 FR 2011,                       live capture and aquaculture operations.              Dolphin Conservation Program Act and
                                               January 12, 2011).                                      For example, for high seas export                     section 101(a)(2)(B) of the MMPA.
                                                  Alternative 5, the no action                         fisheries to receive a comparability                  Because these regulatory programs are
                                               alternative, proposes an approach for                   finding, harvesting nations may                       in place for purse seine fisheries, import
                                               taking no action to implement section                   demonstrate, among other things, that                 prohibitions are unlikely for such
                                               101(a)(2) of the MMPA.                                  they are implementing the requirements                fisheries.


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54411

                                                  U.S aquaculture facilities are Category              that seafood dealers will locate                      regulatory program. In the event of
                                               III fisheries, having a remote likelihood               alternative foreign sources for any                   import prohibitions being imposed for
                                               of marine mammal mortality and                          product subject to an embargo.                        specific fish products, certain other fish
                                               serious injury. By analogy, NMFS                        Additionally, there are important                     products eligible for entry from the
                                               anticipates that most aquaculture                       intermediary nations in the processing                affected nation may be required to be
                                               facilities will be designated exempt in                 of certain fish and fish products and the             accompanied by a certification of
                                               the List of Foreign Fisheries. Therefore,               cost of a trade prohibition to the U.S.               admissibility in order to be admitted
                                               for aquaculture facilities classified as                consumer would be contingent upon the                 into the United States.
                                               exempt fisheries and sited in marine                    role and behavior of intermediary                        This final rule does not directly
                                               mammal habitat or interacting with                      nations. Therefore, based on these                    regulate small entities; the rule requires
                                               marine mammals, the harvesting nation                   analyses, NMFS does not anticipate that               harvesting nations that export fish and
                                               must demonstrate it is prohibiting the                  national net benefits and costs would                 fish products to the United States to
                                               intentional killing or serious injury of                change significantly in the long term as              apply for and receive a comparability
                                               marine mammals in the course of                         a result of the implementation of the                 finding for its exempt and export
                                               aquaculture operations or has                           proposed action.                                      fisheries. The universe of potentially
                                               procedures to reliably certify that                        A final regulatory flexibility analysis            indirectly affected industries includes:
                                               exports of fish and fish products to the                (FRFA) was prepared, as required by                   U.S. seafood processors, importers,
                                               United States are not the product of an                 section 604 of the Regulatory Flexibility             retailers, and wholesalers. The exact
                                               intentional killing or serious injury of a              Act (RFA). The FRFA describes the                     volume and value of product, and the
                                               marine mammal.                                          economic impact this final rule would                 number of jobs supported primarily by
                                                                                                       have on small entities. A statement of                imports within the processing,
                                                  Therefore, NMFS anticipates that out
                                                                                                       the need for and objectives of this rule              wholesale, and retail sectors cannot be
                                               of 122 harvesting nations, the greatest
                                                                                                       are contained in this SUPPLEMENTARY                   ascertained based on available
                                               economic burden will be on the 21
                                                                                                       INFORMATION section of the preamble. A                information. In general, however, the
                                               nations that export more than 10 fish
                                                                                                       summary of the analysis follows. A copy               dominant position of imported seafood
                                               products, assuming that their regulatory
                                                                                                       of the complete FRFA is available from                in the U.S. supply chain is indicative of
                                               program will include more export
                                                                                                       NMFS (see NEPA).                                      the number of U.S. businesses that rely
                                               fisheries. This rule offers harvesting                     NMFS did not receive comments from                 on seafood harvested by foreign entities.
                                               nations time to develop their regulatory                the Chief Counsel of Advocacy for the
                                               program. Additionally, the consultative                 Small Business Administration on the                  Recordkeeping and Reporting
                                               process and potential for financial and                 initial regulatory flexibility analysis               Requirements
                                               technological assistance will aid                       (IRFA) that was published with the                       This final action contains new
                                               harvesting nations in meeting the                       proposed rule. As discussed in                        collection-of-information, involving
                                               requirements of these regulations. No                   Comment 49 above, several commenters                  limited reporting and record keeping, or
                                               U.S. industry sector would be directly                  associated with the Maine lobster                     other compliance requirements. To
                                               affected by the rulemaking, although                    industry and the Maine Department of                  facilitate enforcement of the import
                                               indirect effects may cause disruptions in               Natural Resources expressed concern                   prohibitions for prohibited fish
                                               the flow of seafood imports, potentially                that the rule could negatively impact the             products, harvesting nations with
                                               impacting U.S. businesses. Without                      Maine lobster industry and lobstermen                 fisheries that do receive a comparability
                                               knowing the fish products subject to a                  because application of an import                      finding, that offer similar fish and fish
                                               trade restriction, it is impossible to                  prohibition on Canadian lobster could                 products to those that have been
                                               estimate how these indirect impacts will                prevent millions of pounds of Maine-                  prohibited from entry, may be required
                                               be distributed across U.S. businesses.                  caught lobster, processed in Canada,                  to submit certification of admissibility
                                               There are several factors that suggest                  from being sold in the U.S. As stated in              along with the fish or fish products
                                               impacts in many instances will be small                 the response to Comment 49 above,                     offered for entry into the United States
                                               and short-lived or non-existent, though                 NMFS believes that the efforts Maine                  that are not subject to the specific
                                               there may be potential scenarios that                   and Canada are already undertaking to                 import restrictions.
                                               could result in the rule having more                    implement tracking, verification, and
                                               than negligible impacts. Additionally, if               traceability procedures will mitigate the             Description of Significant Alternatives
                                               fisheries of other nations become subject               potential for this negative indirect                  That Minimize Adverse Impacts on
                                               to regulatory requirements that are                     impact.                                               Small Entities
                                               comparable in effectiveness to                                                                                   No U.S. industrial sector is directly
                                               requirements imposed on U.S.                            Number and Description of Small                       regulated by this rulemaking. However,
                                               fishermen for conservation of marine                    Entities Regulated by the Final Action                the indirect effects of import
                                               mammals, there could be benefits to                        Under the final rule, NMFS would                   prohibitions may cause short-term
                                               U.S. fishermen. Whether or not                          classify foreign fisheries based on the               disruptions in the flow of seafood
                                               regulatory costs induced in foreign                     extent that the fishing gear and methods              imports potentially impacting U.S.
                                               fisheries increase import prices enough                 used interact with marine mammals.                    businesses. NMFS does not anticipate
                                               to affect the price differential between                After notification from NMFS,                         that national benefits and costs would
                                               domestic products and imported                          harvesting nations desiring to export                 change significantly in the long-term as
                                               products remains to be seen. If the                     fish and fish products to the United                  a result of the implementation of the
                                               import prices rise enough to cause                      States must apply for and receive a                   rule. Therefore, NMFS anticipates that
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                                               switching in the U.S. market from                       comparability finding for their exempt                the impacts on U.S. businesses engaged
                                               imports to domestically harvested fish,                 and export fisheries as identified in the             in trading, processing, or retailing
                                               U.S. commercial fishermen may benefit.                  List of Foreign Fisheries. Such a finding             seafood will likely be minimal.
                                               However, the high rate of exporting for                 would indicate that marine mammal                        As described above and in Section 2.1
                                               U.S. harvested seafood is indicative that               protection measures have been                         of the Final Environmental Assessment
                                               foreign markets already offer greater                   implemented in the fisheries that are                 (see NEPA), NMFS analyzed several
                                               price incentives. Thus, it is more likely               comparable in effectiveness to the U.S.               alternatives that achieve the objective of


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                                               54412             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               reducing mortality of marine mammals                    50 CFR Part 216                                           product’’, ‘‘Intermediary nation’’, ‘‘List
                                               in fishing operations. The final rule is                  Administrative practice and                             of Foreign Fisheries’’, ‘‘Transboundary
                                               based on the preferred alternative and is               procedure, Exports, Marine mammals,                       stock’’, and ‘‘U.S. regulatory program’’
                                               the one that offers the most flexibility                Reporting and recordkeeping                               in alphabetical order.
                                               while also complying with the relevant                  requirements.                                               The additions and revisions read as
                                               provisions of the MMPA and U.S.                                                                                   follows:
                                               obligations under applicable                              Dated: August 8, 2016.
                                               international law, including the WTO                    Paul Doremus,                                             § 216.3    Definitions.
                                               Agreement. The flexibility offered under                Deputy Assistant Administrator for                        *      *     *    *     *
                                               the rule allows harvesting nations to                   Operations, National Marine Fisheries                        Bycatch limit means the calculation of
                                               adopt a variety of alternatives to assess               Service.                                                  a potential biological removal level for
                                               and reduce marine mammal incidental                       For the reasons set out in the                          a particular marine mammal stock, as
                                               mortality and serious injury, provided                  preamble, 15 CFR part 902 and 50 CFR                      defined in § 229.2 of this chapter, or
                                               the alternatives are comparable in                      part 216 are amended as follows:                          comparable scientific metric established
                                               effectiveness to the U.S. regulatory                                                                              by the harvesting nation or applicable
                                                                                                       Title 15: Commerce and Foreign Trade                      regional fishery management
                                               program. Because this flexibility
                                               facilitates the ability of the harvesting                                                                         organization or intergovernmental
                                                                                                       PART 902—NOAA INFORMATION
                                               nations to comply, the potential for                                                                              agreement.
                                                                                                       COLLECTION REQUIREMENTS UNDER
                                               indirect adverse impacts on small                       THE PAPERWORK REDUCTION ACT:                              *      *     *    *     *
                                               entities is minimized.                                  OMB CONTROL NUMBERS                                          Comparability finding means a
                                                  The no action alternative, where                                                                               finding by the Assistant Administrator
                                               NMFS would not promulgate                               ■ 1. The authority citation for part 902                  that the harvesting nation for an export
                                               regulations to implement the                            continues to read as follows:                             or exempt fishery has met the applicable
                                               international provisions of the MMPA,                       Authority: 44 U.S.C. 3501 et seq.                     conditions specified in
                                               may have reduced the potential indirect                                                                           § 216.24(h)(6)(iii) subject to the
                                                                                                       ■ 2. In § 902.1, in the table in paragraph                additional considerations for
                                               burden or economic impact to small                      (b), remove the entry for 216.24 and add
                                               entities; however, because the                                                                                    comparability determinations set out in
                                                                                                       entries for 216.24(f)(2) and                              § 216.24(h)(7).
                                               international provisions of the MMPA                    216.24(h)(9)(iii) in numerical order
                                               are statutory requirements, the no action                                                                         *      *     *    *     *
                                                                                                       under the heading 50 CFR to read as
                                               alternative would be inconsistent with                                                                               Exempt fishery means a foreign
                                                                                                       follows:
                                               the MMPA. The final rule also                                                                                     commercial fishing operation
                                               demonstrates the U.S. commitment to                     § 902.1 OMB control numbers assigned                      determined by the Assistant
                                               achieving the conservation and                          pursuant to the Paperwork Reduction Act.                  Administrator to be the source of
                                               sustainable management of marine                        *       *    *           *       *                        exports of commercial fish and fish
                                               mammals consistent with the statutory                       (b) * * *                                             products to the United States and to
                                               requirement of section 101(a)(2) of the                                                                           have a remote likelihood of, or no
                                               MMPA. Additionally, the increased data                   CFR part or section                                      known, incidental mortality and serious
                                                                                                                                        Current OMB control
                                               collection that may result from the                     where the information                                     injury of marine mammals in the course
                                                                                                                                        number (all numbers
                                                                                                       collection requirement                                    of commercial fishing operations. A
                                               regulations could assist in global stock                       is located                 begin with 0648–)
                                               assessments of marine mammals and                                                                                 commercial fishing operation that has a
                                               improve our scientific understanding of                                                                           remote likelihood of causing incidental
                                               these species. Finally, the rule should                    *              *          *           *         *      mortality and serious injury of marine
                                               help ensure that the United States is not               50 CFR                                                    mammals is one that collectively with
                                               importing fish and fish products                                                                                  other foreign fisheries exporting fish
                                               harvested by nations that engage in the                       *            *           *      *            *      and fish products to the United States
                                               unsustainable bycatch of marine                                   216.24(f)(2) ........ –0387                     causes the annual removal of:
                                                                                                                 216.24(h)(9)(iii) ... –0651                        (1) Ten percent or less of any marine
                                               mammals in waters within and beyond
                                               any national jurisdiction.                                    *           *          *           *         *
                                                                                                                                                                 mammal stock’s bycatch limit; or
                                                                                                                                                                    (2) More than 10 percent of any
                                               Paperwork Reduction Act                                                                                           marine mammal stock’s bycatch limit,
                                                                                                       *          *      *      *       *
                                                 This final rule contains a collection-                                                                          yet that fishery by itself removes 1
                                               of-information requirement subject to                   Title 50: Wildlife and Fisheries                          percent or less of that stock’s bycatch
                                               review and approval by the Office of                                                                              limit annually; or
                                                                                                       PART 216—REGULATIONS                                         (3) Where reliable information has not
                                               Management and Budget (OMB) under                       GOVERNING THE TAKING AND
                                               the Paperwork Reduction Act (PRA).                                                                                been provided by the harvesting nation
                                                                                                       IMPORTING OF MARINE MAMMALS                               on the frequency of incidental mortality
                                               This requirement has been submitted to
                                               OMB for approval. The information                                                                                 and serious injury of marine mammals
                                                                                                       ■ 3. The authority citation for part 216
                                               collection in this final rule modifies an                                                                         caused by the commercial fishing
                                                                                                       continues to read as follows:
                                               existing information collection that was                                                                          operation, the Assistant Administrator
                                                                                                         Authority: 16 U.S.C. 1361 et seq., unless               may determine whether the likelihood
                                               approved under OMB Control Number                       otherwise noted.
                                               0648–0651 (Certification of                                                                                       of incidental mortality and serious
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                                               Admissibility).                                         ■  4. In § 216.3:                                         injury is ‘‘remote’’ by evaluating
                                                                                                       ■  a. Revise the definition for ‘‘Import’’;               information concerning factors such as
                                               List of Subjects                                        and                                                       fishing techniques, gear used, methods
                                               15 CFR Part 902                                         ■ b. Add definitions for ‘‘Bycatch                        used to deter marine mammals, target
                                                                                                       limit’’, ‘‘Comparability finding’’,                       species, seasons and areas fished,
                                                 Reporting and recordkeeping                           ‘‘Exempt fishery’’, ‘‘Exemption period’’,                 qualitative data from logbooks or fisher
                                               requirements.                                           ‘‘Export fishery’’, ‘‘Fish and fish                       reports, stranding data, the species and


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                          54413

                                               distribution of marine mammals in the                   the foreign commercial fishing                        § 216.24 Taking and related acts in
                                               area, or other factors at the discretion of             operation.                                            commercial fishing operations including
                                               the Assistant Administrator. A foreign                                                                        tuna purse seine vessels in the eastern
                                                                                                       *      *     *     *     *                            tropical Pacific Ocean.
                                               fishery will not be classified as an                       Fish and fish product means any
                                               exempt fishery unless the Assistant                                                                           *       *      *    *     *
                                                                                                       marine finfish, mollusk, crustacean, or                  (h) Taking and related acts of marine
                                               Administrator has reliable information                  other form of marine life other than
                                               from the harvesting nation, or other                                                                          mammals in foreign commercial fishing
                                                                                                       marine mammals, reptiles, and birds,                  operations not governed by the
                                               information to support such a finding.                  whether fresh, frozen, canned, pouched,
                                                  Exemption period means the one-                                                                            provisions related to tuna purse seine
                                                                                                       or otherwise prepared.                                vessels in the eastern tropical Pacific
                                               time, five-year period that commences
                                               January 1, 2017, during which                           *      *     *     *     *                            Ocean—(1) Prohibitions. (i) As provided
                                               commercial fishing operations that are                     Import means to land on, bring into,               in section 101(a)(2) and 102(c)(3)of the
                                               the source of exports of commercial fish                or introduce into, or attempt to land on,             MMPA, the importation of commercial
                                               and fish products to the United States                  bring into, or introduce into, any place              fish or fish products which have been
                                               will be exempt from the prohibitions of                 subject to the jurisdiction of the United             caught with commercial fishing
                                               § 216.24(h)(1).                                         States, whether or not such landing,                  technology which results in the
                                                  Export fishery means a foreign                       bringing, or introduction constitutes an              incidental kill or incidental serious
                                               commercial fishing operation                            importation within the Customs laws of                injury of ocean mammals in excess of
                                               determined by the Assistant                             the United States; except that, for the               U.S. standards or caught in a manner
                                               Administrator to be the source of                       purpose of any ban on the importation                 which the Secretary has proscribed for
                                               exports of commercial fish and fish                     of fish or fish products issued under the             persons subject to the jurisdiction of the
                                               products to the United States and to                    authority of 16 U.S.C. 1371(a)(2)(B), the             United States are prohibited. For
                                               have more than a remote likelihood of                   definition of ‘‘import’’ in                           purposes of paragraph (h) of this
                                               incidental mortality and serious injury                 § 216.24(f)(1)(ii) shall apply.                       section, a fish or fish product caught
                                               of marine mammals (as defined in the                    *      *     *     *     *                            with commercial fishing technology
                                               definition of an ‘‘exempt fishery’’) in the                Intermediary nation means a nation                 which results in the incidental mortality
                                               course of its commercial fishing                        that imports fish or fish products from               or incidental serious injury of marine
                                               operations. Where reliable information                  a fishery on the List of Foreign Fisheries            mammals in excess of U.S. standards is
                                               has not been provided by the harvesting                 and re-exports such fish or fish products             any fish or fish product harvested in an
                                               nation on the frequency of incidental                   to the United States.                                 exempt or export fishery for which a
                                               mortality and serious injury of marine                  *      *     *     *     *                            valid comparability finding is not in
                                               mammals caused by the commercial                                                                              effect.
                                                                                                          List of Foreign Fisheries means the
                                               fishing operation, the Assistant                                                                                 (ii) Accordingly, it is unlawful for any
                                                                                                       most recent list, organized by harvesting
                                               Administrator may determine whether                                                                           person to import, or attempt to import,
                                               the likelihood of incidental mortality                  nation, of foreign commercial fishing
                                                                                                                                                             into the United States for commercial
                                               and serious injury is more than                         operations exporting fish or fish
                                                                                                                                                             purposes any fish or fish product if such
                                               ‘‘remote’’ by evaluating information                    products to the United States, that is
                                                                                                                                                             fish or fish product:
                                               concerning factors such as fishing                      published in the Federal Register by the                 (A) Was caught or harvested in a
                                               techniques, gear used, methods used to                  Assistant Administrator and that                      fishery that does not have a valid
                                               deter marine mammals, target species,                   classifies commercial fishing operations              comparability finding in effect at the
                                               seasons and areas fished, qualitative                   according to the frequency and                        time of import; or
                                               data from logbooks or fisher reports,                   likelihood of incidental mortality and                   (B) Is not accompanied by a
                                               stranding data, and the species and                     serious injury of marine mammals                      Certification of Admissibility where
                                               distribution of marine mammals in the                   during such commercial fishing                        such Certification is required pursuant
                                               area, or other factors at the discretion of             operations as either an exempt fishery                to paragraph (h)(9)(iv) of this section or
                                               the Assistant Administrator that may                    or an export fishery.                                 by such other documentation as the
                                               inform whether the likelihood of                        *      *     *     *     *                            Assistant Administrator may identify
                                               incidental mortality and serious injury                    Transboundary stock means a marine                 and announce in the Federal Register
                                               of marine mammals caused by the                         mammal stock occurring in the:                        that indicates the fish or fish product
                                               commercial fishing operation is more                       (1) Exclusive economic zones or                    was not caught or harvested in a fishery
                                               than ‘‘remote.’’ Commercial fishing                     territorial sea of the United States and              subject to an import prohibition under
                                               operations not specifically identified in               one or more other coastal States; or                  paragraphs (h)(1) and (h)(9)(i) of this
                                               the current List of Foreign Fisheries as                   (2) Exclusive economic zone or                     section.
                                               either exempt or export fisheries are                   territorial sea of the United States and                 (iii) It is unlawful for any person,
                                               deemed to be export fisheries until the                 on the high seas.                                     including exporters, transshippers,
                                               next List of Foreign Fisheries is                       *      *     *     *     *                            importers, processors, or wholesalers/
                                               published unless the Assistant                             U.S. regulatory program means the                  distributors to possess, sell, purchase,
                                               Administrator has reliable information                  regulatory program governing the                      offer for sale, re-export, transport, or
                                               from the harvesting nation to properly                                                                        ship in interstate or foreign commerce
                                                                                                       incidental mortality and serious injury
                                               classify the foreign commercial fishing                                                                       in the United States, any fish or fish
                                                                                                       of marine mammals in the course of
                                               operation. Additionally, the Assistant                                                                        product imported in violation of
                                                                                                       commercial fishing operations as
                                               Administrator, may request additional                                                                         paragraph (h) of this section.
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                                                                                                       specified in the Marine Mammal
                                               information from the harvesting nation                                                                           (2) Exemptions. (i) Exempt fisheries
                                                                                                       Protection Act and its implementing
                                               and may consider other relevant                                                                               are exempt from requirements of
                                                                                                       regulations.
                                               information as set forth in § 216.24(h)(3)                                                                    paragraphs (h)(6)(iii)(B) through (E) of
                                               about such commercial fishing                           *      *     *     *     *                            this section.
                                               operations and the frequency of                         ■ 4. In § 216.24, the section heading is                 (A) For the purposes of paragraph (h)
                                               incidental mortality and serious injury                 revised and paragraph (h) is added to                 of this section, harvesting nation means
                                               of marine mammals, to properly classify                 read as follows:                                      the country under whose flag or


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                                               54414             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               jurisdiction one or more fishing vessels                   (B) [Reserved]                                        (B) A final List of Foreign Fisheries,
                                               or other entity engaged in commercial                      (ii) Shall notify, in consultation with            effective upon publication in the
                                               fishing operations are documented, or                   the Secretary of State, each harvesting               Federal Register.
                                               which has by formal declaration or                      nation that has commercial fishing                       (ii) To the extent that information is
                                               agreement asserted jurisdiction over one                operations identified pursuant to                     available, the List of Foreign Fisheries
                                               or more authorized or certified charter                 paragraph (h)(3)(i) of this section and               shall:
                                               vessels, and from such vessel(s) or                     request that within 90 days of                           (A) Classify each commercial fishing
                                               entity(ies) fish are caught or harvested                                                                      operation that is the source of exports of
                                                                                                       notification the harvesting nation
                                               that are a part of any cargo or shipment                                                                      fish and fish products to the United
                                                                                                       submit reliable information about the
                                               of fish or fish products to be imported                                                                       States based on the definitions for
                                                                                                       commercial fishing operations
                                               into the United States, regardless of any                                                                     export fishery and exempt fishery set
                                                                                                       identified, including as relevant the
                                               intervening transshipments, exports or                                                                        forth in § 216.3 and identified in the List
                                                                                                       number of participants, number of
                                               re-exports.                                                                                                   of Foreign Fisheries by harvesting
                                                                                                       vessels, gear type, target species, area of
                                                  (B) [Reserved]                                                                                             nation and other defining factors
                                                                                                       operation, fishing season, any
                                                  (ii) The prohibitions of paragraph                                                                         including geographic location of
                                                                                                       information regarding the frequency of
                                               (h)(1) of this section shall not apply                                                                        harvest, gear-type, target species or a
                                                                                                       marine mammal incidental mortality
                                               during the exemption period.                                                                                  combination thereof;
                                                  (iii) Paragraph (h) of this section shall            and serious injury and any programs                      (B) Include fishing gear type, target
                                               not apply to a commercial fishing                       (including any relevant laws, decrees,                species, and number of vessels or other
                                               operation subject to section 101(a)(2)(B)               regulations or measures) to assess                    entities engaged in each commercial
                                               of the MMPA and its implementing                        marine mammal populations and to                      fishing operation;
                                               regulations set out in the relevant                     reduce incidental mortality and serious                  (C) List the marine mammals that
                                               provisions of paragraph (f) of this                     injury of marine mammals in those                     interact with each commercial fishing
                                               section which govern the incidental take                fisheries or prohibit the intentional                 operation and indicate the level of
                                               of delphinids in course of commercial                   killing or injury of marine mammals.                  incidental mortality and serious injury
                                               purse seine fishing operations for                         (iii) Shall review each harvesting                 of marine mammals in each commercial
                                               yellowfin tuna in the eastern tropical                  nation’s submission, evaluate any                     fishing operation;
                                               Pacific Ocean and restrictions on                       information it contains (including                       (D) Provide a description of the
                                               importation and sale of fish and fish                   descriptions of its regulatory programs)              harvesting nation’s programs to assess
                                               products caught or harvested in that                    and, if necessary, request additional                 marine mammal stocks and estimate
                                               commercial fishing operation. Paragraph                 information.                                          and reduce marine mammal incidental
                                               (h) of this section shall not apply with                   (iv) May consider other readily                    mortality and serious injury in its export
                                               respect to large-scale driftnet fishing,                available and relevant information about              fisheries; and
                                               which is governed by paragraph (f)(7) of                such commercial fishing operations and                   (E) List the harvesting nations that
                                               this section and the restrictions it sets               the frequency of incidental mortality                 prohibit, in the course of commercial
                                               out on importation and sale of fish and                 and serious injury of marine mammals,                 fishing operations that are the source of
                                               fish products harvested by using a large-               including: fishing vessel records; reports            exports to the United States, the
                                               scale driftnet.                                         of on-board fishery observers;                        intentional mortality or serious injury of
                                                  (3) Procedures to identify foreign                   information from off-loading facilities,              marine mammals unless the intentional
                                               commercial fishing operations with                      port-side officials, enforcement agents               mortality or serious injury of a marine
                                               incidental mortality and serious injury                 and officers, transshipment vessel                    mammal is imminently necessary in
                                               of marine mammals as exempt or export                   workers and fish importers; government                self-defense or to save the life of a
                                               fisheries. In developing the List of                    vessel registries; regional fisheries                 person in immediate danger.
                                               Foreign Fisheries in paragraph (h)(4) of                management organizations documents                       (5) Consultations with Harvesting
                                               this section, the Assistant                             and statistical document programs; and                Nations with Commercial Fishing
                                               Administrator:                                          appropriate certification programs.                   Operations on the List of Foreign
                                                  (i) Shall periodically analyze imports               Other sources may include published                   Fisheries. (i) Within 90 days of
                                               of fish and fish products and identify                  literature and reports on fishing vessels             publication of the final List of Foreign
                                               commercial fishing operations that are                  with incidental mortality and serious                 Fisheries in the Federal Register, the
                                               the source of exports of such fish and                  injury of marine mammals from                         Assistant Administrator, in consultation
                                               fish products to the United States that                 government agencies; foreign, state, and              with the Secretary of State, shall consult
                                               have or may have incidental mortality                   local governments; regional fishery                   with harvesting nations with
                                               or serious injury of marine mammals in                  management organizations;                             commercial fishing operations
                                               the course of their commercial fishing                  nongovernmental organizations;                        identified as export or exempt fisheries
                                               operations.                                             industry organizations; academic                      as defined in § 216.3 for purposes of
                                                  (A) For the purposes of paragraph (h)                                                                      notifying the harvesting nation of the
                                                                                                       institutions; and citizens and citizen
                                               of this section, a commercial fishing                                                                         requirements of the Marine Mammal
                                                                                                       groups.
                                               operation means vessels or entities that                                                                      Protection Act and this subpart.
                                               catch, take, or harvest fish (as defined in                (4) List of Foreign Fisheries. (i) Within             (ii) The Assistant Administrator, in
                                               section 3 of the Magnuson-Stevens                       one year of January 1, 2017, and the year             consultation with the Secretary of State,
                                               Fishery Conservation and Management                     prior to the expiration of the exemption              may consult with harvesting nations for
                                               Act (16 U.S.C. 1802)) from the marine                   period and every four years thereafter,               the purposes of providing notifications
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                                               environment (or other areas where                       the Assistant Administrator, based on                 of deadlines under this section,
                                               marine mammals occur) that results in                   the information obtained in paragraph                 ascertaining or reviewing the progress of
                                               the sale or barter of all or part of the fish           (h)(3) of this section, will publish in the           the harvesting nation’s development,
                                               caught, taken or harvested. The term                    Federal Register:                                     adoption, implementation, or
                                               includes aquaculture activities that                       (A) A proposed List of Foreign                     enforcement of its regulatory program
                                               interact with or occur in marine                        Fisheries by harvesting nation for notice             governing the incidental mortality and
                                               mammal habitat.                                         and comment; and                                      serious injury of marine mammals in the


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                         54415

                                               course of commercial fishing operations                 conclusions regarding the fishery based               are incidentally killed or seriously
                                               for an export fishery, supplementing or                 on readily available and relevant                     injured in the export fishery.
                                               clarifying information needed in                        information from other sources,                          (2) An export fishery register
                                               conjunction with the List of Foreign                    including where appropriate                           containing a list of all fishing vessels
                                               Fisheries in paragraphs (h)(3) and (4) of               information concerning analogous                      participating in the export fishery,
                                               this section, the progress report in                    fisheries that use the same or similar                including information on the number of
                                               paragraph (h)(10) of this section or an                 gear-type under similar conditions as                 vessels participating, the time or season
                                               application for or reconsideration of a                 the fishery, in determining whether to                and area of operation, gear type and
                                               comparability finding in paragraphs                     issue the harvesting nation a                         target species.
                                               (h)(6) and (8) of this section.                         comparability finding for the fishery.                   (3) Regulatory requirements that
                                                  (iii) The Assistant Administrator                       (iii) Conditions for a comparability               include:
                                               shall, in consultation with the Secretary               finding. The following are conditions for                (i) A requirement for the owner or
                                               of State and the United States Trade                    the Assistant Administrator to issue a                operator of a vessel participating in the
                                               Representative, consult with any                        comparability finding for the fishery,                export fishery to report all intentional
                                               harvesting nations that failed to receive               subject to the additional considerations              and incidental mortality and injury of
                                               a comparability finding for one or more                 set out in paragraph (h)(7) of this                   marine mammals in the course of
                                               of commercial fishing operations or for                 section:                                              commercial fishing operations; and
                                               which a comparability finding is                           (A) For an exempt or export fishery,                  (ii) A requirement to implement
                                               terminated and encourage the                            the harvesting nation:                                measures in the export fishery designed
                                               harvesting nation to take corrective                       (1) Prohibits the intentional mortality            to reduce the total incidental mortality
                                               action and reapply for a comparability                  or serious injury of marine mammals in                and serious injury of a marine mammal
                                               finding in accordance with paragraph                    the course of commercial fishing                      stock below the bycatch limit; and
                                               (h)(9)(iii) of this section.                            operations in the fishery unless the                     (iii) with respect to any transboundary
                                                  (6) Procedure and conditions for a                   intentional mortality or serious injury of            stock or any other marine mammal
                                               comparability finding—(i) Procedures to                 a marine mammal is imminently                         stocks interacting with the export
                                               apply for a comparability finding. On                   necessary in self-defense or to save the              fishery, measures to reduce the
                                               March 1st of the year when the                          life of a person in immediate danger; or              incidental mortality and serious injury
                                               exemption period or comparability                          (2) Demonstrates that it has                       of that stock that the United States
                                               finding is to expire, a harvesting nation               procedures to reliably certify that                   requires its domestic fisheries to take
                                               shall submit to the Assistant                           exports of fish and fish products to the              with respect to that transboundary stock
                                               Administrator an application for each of                United States are not the product of an               or marine mammal stock.
                                               its export and exempt fisheries, along                  intentional killing or serious injury of a               (4) Implementation of monitoring
                                               with documentary evidence                               marine mammal unless the intentional                  procedures in the export fishery
                                               demonstrating that the harvesting nation                mortality or serious injury of a marine               designed to estimate incidental
                                               has met the conditions specified in                     mammal is imminently necessary in                     mortality or serious injury in the export
                                               paragraph (h)(6)(iii) of this section for               self-defense or to save the life of a                 fishery, and to estimate the cumulative
                                               each of such fishery, including                         person in immediate danger; and                       incidental mortality and serious injury
                                               reasonable proof as to the effects on                      (B) For an export fishery, the                     of marine mammal stocks in waters
                                               marine mammals of the commercial                        harvesting nation maintains a regulatory              under its jurisdiction resulting from the
                                               fishing technology in use in the fishery                program with respect to the fishery that              export fishery and other export fisheries
                                               for fish or fish products exported from                 is comparable in effectiveness to the                 interacting with the same marine
                                               such nation to the United States. The                   U.S. regulatory program with respect to               mammal stocks, including an indication
                                               Assistant Administrator may request the                 incidental mortality and serious injury               of the statistical reliability of those
                                               submission of additional supporting                     of marine mammals in the course of                    estimates.
                                               documentation or other verification of                  commercial fishing operations, in                        (5) Calculation of bycatch limits for
                                               statements made in an application for a                 particular by maintaining a regulatory                marine mammal stocks in waters under
                                               comparability finding.                                  program that includes, or effectively                 its jurisdiction that are incidentally
                                                  (ii) Procedures to issue a                           achieves comparable results as, the                   killed or seriously injured in the export
                                               comparability finding. No later than                    conditions in paragraph (h)(6)(iii)(C),               fishery.
                                               November 30th of the year when the                      (D), or (E) of this section as applicable                (6) Comparison of the incidental
                                               exemption period or comparability                       (including for transboundary stocks).                 mortality and serious injury of each
                                               finding is to expire, the Assistant                        (C) Conditions for an export fishery               marine mammal stock or stocks that
                                               Administrator, in response to an                        operating under the jurisdiction of a                 interact with the export fishery in
                                               application from a harvesting nation for                harvesting nation within its EEZ (or the              relation to the bycatch limit for each
                                               an export or exempt fishery, shall                      equivalent) or territorial sea. In making             stock; and comparison of the cumulative
                                               determine whether to issue to the                       the finding in paragraph (h)(6)(ii) of this           incidental mortality and serious injury
                                               harvesting nation, in accordance with                   section, with respect to an export                    of each marine mammal stock or stocks
                                               the procedures set forth in paragraph                   fishery operating under the jurisdiction              that interact with the export fishery and
                                               (h)(8) of this section, a comparability                 of a harvesting nation within its EEZ (or             any other export fisheries of the
                                               finding for the fishery. In making this                 the equivalent) or territorial sea, the               harvesting nation showing that these
                                               determination, the Assistant                            Assistant Administrator shall determine               export fisheries:
                                               Administrator shall consider                            whether the harvesting nation maintains                  (i) Do not exceed the bycatch limit for
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                                               documentary evidence provided by the                    a regulatory program that provides for,               that stock or stocks; or
                                               harvesting nation and relevant                          or effectively achieves comparable                       (ii) Exceed the bycatch limit for that
                                               information readily available from other                results as, the following:                            stock or stocks, but the portion of
                                               sources. If a harvesting nation provides                   (1) Marine mammal assessments that                 incidental marine mammal mortality or
                                               insufficient documentary evidence in                    estimate population abundance for                     serious injury for which the export
                                               support of its application, the Assistant               marine mammal stocks in waters under                  fishery is responsible is at a level that,
                                               Administrator shall draw reasonable                     the harvesting nation’s jurisdiction that             if the other export fisheries interacting


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                                               54416             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               with the same marine mammal stock or                    export fisheries interacting with the                 governed by regulations implementing a
                                               stocks were at the same level, would not                same marine mammal stock or stocks                    take reduction plan (§ 229.2 of this
                                               result in cumulative incidental                         were at the same level, would not result              chapter), and any other relevant
                                               mortality and serious injury in excess of               in cumulative incidental mortality and                information received during
                                               the bycatch limit for that stock or stocks.             serious injury in excess of the bycatch               consultations;
                                                  (D) Conditions for a harvesting                      limit for that stock or stocks; or                       (ii) The extent to which the harvesting
                                               nation’s export fishery operating within                   (3) For an export fishery that is                  nation has successfully implemented
                                               the jurisdiction of another state. In                   subject to management by a regional                   measures in the export fishery to reduce
                                               making the finding in paragraph                         fishery management organization,                      the incidental mortality and serious
                                               (h)(6)(ii) of this section, with respect to             implementation of marine mammal data                  injury of marine mammals caused by
                                               a harvesting nation’s export fishery                    collection and conservation and                       the harvesting nation’s export fisheries
                                               operating within the jurisdiction of                    management measures applicable to that                to levels below the bycatch limit;
                                               another state, the Assistant                            fishery required under any applicable                    (iii) Whether the measures adopted by
                                               Administrator shall determine whether                   intergovernmental agreement or regional               the harvesting nation for its export
                                               the harvesting nation maintains a                       fisheries management organization to                  fishery have reduced or will likely
                                               regulatory program that provides for, or                which the United States is a party.                   reduce the cumulative incidental
                                               effectively achieves comparable results                    (E) Conditions for a harvesting                    mortality and serious injury of each
                                               as, the following:                                      nation’s export fishery operating on the              marine mammal stock below the
                                                  (1) Implementation in the export                     high seas under the jurisdiction of the               bycatch limit, and the progress of the
                                               fishery of:                                             harvesting nation or another state. In                regulatory program toward achieving its
                                                  (i) With respect to any transboundary                making the finding in paragraph                       objectives;
                                               stock interacting with the export fishery,              (h)(6)(ii) of this section, with respect to              (iv) Other relevant facts and
                                               any measures to reduce the incidental                   a harvesting nation’s export fishery                  circumstances, which may include the
                                               mortality and serious injury of that                    operating on the high seas under the                  history and nature of interactions with
                                               stock that the United States requires its               jurisdiction of the harvesting nation or              marine mammals in this export fishery,
                                               domestic fisheries to take with respect                 another state, the Assistant                          whether the level of incidental mortality
                                               that transboundary stock; and                           Administrator shall determine whether                 and serious injury resulting from the
                                                  (ii) With respect to any other marine                the harvesting nation maintains a                     fishery or fisheries exceeds the bycatch
                                               mammal stocks interacting with the                      regulatory program that provides for, or              limit for a marine mammal stock, the
                                               export fishery while operating within                   effectively achieves comparable results               population size and trend of the marine
                                               the jurisdiction of the state, any                      as, the U.S. regulatory program with                  mammal stock, and the population level
                                               measures to reduce incidental mortality                 respect to the following:                             impacts of the incidental mortality or
                                               and serious injury that the United States                  (1) Implementation in the fishery of               serious injury of marine mammals in a
                                               requires its domestic fisheries to take                 marine mammal data collection and                     harvesting nation’s export fisheries and
                                               with respect to that marine mammal                      conservation and management measures                  the conservation status of those marine
                                               stock; and                                              applicable to that fishery required under             mammal stocks where available;
                                                  (2) For an export fishery not subject                any applicable intergovernmental                         (v) The record of consultations under
                                               to management by a regional fishery                     agreement or regional fisheries                       paragraph (h)(5) of this section with the
                                               management organization:                                management organization to which the                  harvesting nation, results of these
                                                  (i) An assessment of marine mammal                   United States is a party; and                         consultations, and actions taken by the
                                               abundance of stocks interacting with the                   (2) Implementation in the export                   harvesting nation and under any
                                               export fishery, the calculation of a                    fishery of:                                           applicable intergovernmental agreement
                                               bycatch limit for each such stock, an                      (i) With respect to any transboundary              or regional fishery management
                                               estimation of incidental mortality and                  stock interacting with the export fishery,            organization to reduce the incidental
                                               serious injury for each stock and                       any measures to reduce the incidental                 mortality and serious injury of marine
                                               reduction in or maintenance of the                      mortality and serious injury of that                  mammals in its export fisheries;
                                               incidental mortality and serious injury                 stock that the United States requires its                (vi) Information gathered during
                                               of each stock below the bycatch limit.                  domestic fisheries to take with respect               onsite inspection by U.S. government
                                               This data included in the application                   that transboundary stock; and                         officials of a fishery’s operations;
                                               may be provided by the state or another                    (ii) With respect to any other marine                 (vii) For export fisheries operating on
                                               source; and                                             mammal stocks interacting with the                    the high seas under an applicable
                                                  (ii) Comparison of the incidental                    export fishery while operating on the                 intergovernmental agreement or regional
                                               mortality and serious injury of each                    high seas, any measures to reduce                     fishery management organization to
                                               marine mammal stock or stocks that                      incidental mortality and serious injury               which the United States is a party, the
                                               interact with the export fishery in                     that the United States requires its                   harvesting nation’s record of
                                               relation to the bycatch limit for each                  domestic fisheries to take with respect               implementation of or compliance with
                                               stock; and comparison of the cumulative                 to that marine mammal stock when they                 measures adopted by that regional
                                               incidental mortality and serious injury                 are operating on the high seas.                       fishery management organization or
                                               of each marine mammal stock or stocks                      (7) Additional considerations for                  intergovernmental agreement for data
                                               that interact with the export fishery and               comparability finding determinations.                 collection, incidental mortality and
                                               any other export fisheries of the                       When determining whether to issue any                 serious injury mitigation or the
                                               harvesting nation showing that these                    comparability finding for a harvesting                conservation and management of marine
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                                               export fisheries do not exceed the                      nation’s export fishery the Assistant                 mammals; whether the harvesting
                                               bycatch limit for that stock or stocks; or              Administrator shall also consider:                    nation is a party or cooperating non-
                                               exceed the bycatch limit for that stock                    (i) U.S. implementation of its                     party to such intergovernmental
                                               or stocks, but the portion of incidental                regulatory program for similar marine                 agreement or regional fishery
                                               marine mammal mortality or serious                      mammal stocks and similar fisheries                   management organization; the record of
                                               injury for which the export fishery is                  (e.g., considering gear or target species),           United States implementation of such
                                               responsible is at a level that, if the other            including transboundary stocks                        measures; and whether the United


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                          54417

                                               States has imposed additional measures                  the reasons for that preliminary denial                  (B) Upon notification the Assistant
                                               on its fleet not required by an                         or termination;                                       Administrator shall issue a provisional
                                               intergovernmental agreement or regional                    (2) Provide the harvesting nation a                comparability finding allowing such
                                               fishery management organization; or                     reasonable opportunity to submit                      imports for a period not to exceed 12
                                                  (viii) For export fisheries operating on             reliable information to refute the                    months.
                                               the high seas under an applicable                       preliminary denial or termination of the                 (C) At least 120 days prior to the
                                               intergovernmental agreement or regional                 comparability finding and communicate                 expiration of the provisional
                                               fisheries management organization to                    any corrective actions it is taking to                comparability finding the harvesting
                                               which the United States is not a party,                 meet the applicable conditions for a                  nation must submit to the Assistant
                                               the harvesting nation’s implementation                  comparability finding set out in                      Administrator the reliable information
                                               of and compliance with measures,                        paragraph (h)(6)(iii) of this section                 specified in paragraph (h)(3)(ii) of this
                                               adopted by that regional fisheries                      subject to the additional considerations              section and the application and the
                                               management organization or                              set out in paragraph (h)(7) of this                   applicable documentary evidence
                                               intergovernmental agreement, and any                    section.                                              required pursuant to paragraph (h)(6)(i)
                                               additional measures implemented by                         (B) The Assistant Administrator shall              of this section.
                                               the harvesting nation for data collection,              take into account any information it                     (D) Prior to expiration of the
                                               incidental mortality and serious injury                 receives from the harvesting nation and               provisional comparability finding, the
                                               mitigation or the conservation and                      issue a final comparability finding                   Assistant Administrator shall review the
                                               management of marine mammals and                        determination, notifying the harvesting               application and information provided
                                               the extent to which such measures are                   nation pursuant to paragraph (h)(8)(ii) of            and classify the commercial fishing
                                               comparable in effectiveness to the U.S.                 this section of its determination and, if             operation as either an exempt or export
                                               regulatory program for similar fisheries.               a denial or termination, an explanation               fishery in accordance with paragraphs
                                                  (8) Comparability finding                            of the reasons for the denial or                      (h)(3)(iii) through (iv) and (h)(4)(ii) of
                                               determinations—(i) Publication. No                      termination of the comparability                      this section and determine whether to
                                                                                                       finding.                                              issue the harvesting nation a
                                               later than November 30th of the year
                                                                                                          (C) A preliminary denial or                        comparability finding for the fishery in
                                               when the exemption period or
                                                                                                       termination of a comparability finding                accordance with paragraph (h)(6)(ii)
                                               comparability finding is to expire, the
                                                                                                       shall not result in import prohibitions               through (iii) of this section.
                                               Assistant Administrator shall publish in                pursuant to paragraphs (h)(1) and (9) of                 (E) If the harvesting nation submits
                                               the Federal Register, by harvesting                     this section.                                         the reliable information specified in
                                               nation, a notice of the harvesting                         (iv) Duration of a comparability                   paragraph (h)(3)(ii) of this section at
                                               nations and fisheries for which it has                  finding. Unless terminated in                         least 180 days prior to expiration of the
                                               issued or denied a comparability finding                accordance with paragraph (h)(8)(vii) of              provisional comparability finding, the
                                               and the specific fish and fish products                 this section or issued for a specific                 Assistant Administrator will review that
                                               that as a result are subject to import                  period pursuant to a re-application                   information and classify the fishery as
                                               prohibitions under paragraphs (h)(1)                    under paragraph (h)(9)(iii) of this                   either an exempt or export fishery.
                                               and (9) of this section.                                section, a comparability finding shall                   (vii) Discretionary review of
                                                  (ii) Notification. Prior to publication              remain valid for 4 years from                         comparability findings. (A) The
                                               in the Federal Register, the Assistant                  publication or for such other period as               Assistant Administrator may reconsider
                                               Administrator, in consultation with the                 the Assistant Administrator may                       a comparability finding that it has
                                               Secretary of State and, in the event of                 specify.                                              issued at any time based upon
                                               a denial of a comparability finding, with                  (v) Renewal of comparability finding.              information obtained by the Assistant
                                               the Office of the U.S. Trade                            To seek renewal of a comparability                    Administrator including any progress
                                               Representative, shall notify each                       finding, every 4 years or prior to the                report received from a harvesting
                                               harvesting nation in writing of the                     expiration of a comparability finding,                nation; or upon request with the
                                               fisheries of the harvesting nation for                  the harvesting nation must submit to the              submission of information from the
                                               which the Assistant Administrator is:                   Assistant Administrator the application               harvesting nation, any nation, regional
                                                  (A) Issuing a comparability finding;                 and the documentary evidence required                 fishery management organizations,
                                                  (B) Denying a comparability finding                  pursuant to paragraph (h)(6)(i) of this               nongovernmental organizations,
                                               with an explanation for the reasons for                 section, including, where applicable,                 industry organizations, academic
                                               the denial of such comparability                        reasonable proof as to the effects on                 institutions, citizens or citizen groups
                                               finding; and                                            marine mammals of the commercial                      that the harvesting nation’s exempt or
                                                  (C) Specify the fish and fish products               fishing technology in use in the fishery              export fishery no longer meets the
                                               that will be subject to import                          for fish or fish products exported to the             applicable conditions in paragraph
                                               prohibitions under paragraphs (h)(1)                    United States, by March 1 of the year                 (h)(6)(iii) of this section. Upon receiving
                                               and (9) of this section on account of a                 when its current comparability finding                a request, the Assistant Administrator
                                               denial of a comparability finding and                   is due to expire.                                     has the discretion to determine whether
                                               the effective date of such import                          (vi) Procedures for a comparability                to proceed with a review or
                                               prohibitions.                                           finding for new foreign commercial                    reconsideration.
                                                  (iii) Preliminary comparability finding              fishing operations wishing to export to                  (B) After such review or
                                               consultations. (A) Prior to denying a                   the United States. (A) For foreign                    reconsideration and consultation with
                                               comparability finding under paragraph                   commercial fishing operations not on                  the harvesting nation, the Assistant
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                                               (h)(8)(ii) of this section or terminating a             the List of Foreign Fisheries that are the            Administrator shall, if the Assistant
                                               comparability finding under paragraph                   source of new exports to the United                   Administrator determines that the basis
                                               (h)(8)(vii) of this section, the Assistant              States, the harvesting nation must notify             for the comparability finding no longer
                                               Administrator shall:                                    the Assistant Administrator that the                  applies, terminate a comparability
                                                  (1) Notify the harvesting nation that it             commercial fishing operation wishes to                finding.
                                               is preliminarily denying or terminating                 export fish and fish products to the                     (C) The Assistant Administrator shall
                                               its comparability finding and explain                   United States.                                        notify in writing the harvesting nation


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                                               54418             Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations

                                               and publish in the Federal Register a                   Assistant Administrator, in cooperation               the intermediary nation occurs when
                                               notice of the termination and the                       with the Secretaries of Treasury and                  the fish or fish product is released from
                                               specific fish and fish products that as a               Homeland Security, shall publish in the               a harvesting nation’s customs
                                               result are subject to import prohibitions               Federal Register a notice of the                      jurisdiction and enters the customs
                                               under paragraphs (h)(1) and (9) of this                 comparability finding and the removal                 jurisdiction of the intermediary nation
                                               section.                                                of the corresponding import prohibition               or when the fish and fish products are
                                                  (9) Imposition of import prohibitions.               effective on the date of publication in               entered into a foreign trade zone of the
                                               (i) With respect to a harvesting nation                 the Federal Register.                                 intermediary nation for processing or
                                               for which the Assistant Administrator                      (iii) Certification of admissibility. (A)          transshipment. For other purposes,
                                               has denied or terminated a                              If fish or fish products are subject to an            ‘‘import’’ is defined in § 216.3.
                                               comparability finding for a fishery, the                import prohibition under paragraphs                      (B) No fish or fish products caught or
                                               Assistant Administrator, in cooperation                 (h)(1) and (9) of this section, the                   harvested in a fishery subject to an
                                               with the Secretaries of the Treasury and                Assistant Administrator, to avoid                     import prohibition under paragraphs
                                               Homeland Security, shall identify and                   circumvention of the import                           (h)(1) and (9) of this section, may be
                                               prohibit the importation of fish and fish               prohibition, may require that the same                imported into the United States from
                                               products into the United States from the                or similar fish and fish products caught              any intermediary nation.
                                               harvesting nation caught or harvested in                or harvested in another fishery of the                   (C) Within 30 days of publication of
                                               that fishery. Any such import                           harvesting nation and not subject to the              the Federal Register notice described in
                                               prohibition shall become effective 30                   prohibition be accompanied by a                       paragraph (h)(8)(i) of this section
                                               days after the of publication of the                    certification of admissibility by paper or            specifying fish and fish products subject
                                               Federal Register notice referenced in                   electronic equivalent filed through the               to import prohibitions under paragraphs
                                               paragraph (h)(8)(i) of this section and                 National Marine Fisheries Service                     (h)(1) and (9) of this section, the
                                               shall only apply to fish and fish                       message set required in the International             Assistant Administrator shall, based on
                                               products caught or harvested in that                    Trade Data System. No certification of                readily available information, identify
                                               fishery.                                                admissibility shall be required for a fish            intermediary nations that may import,
                                                  (ii) Duration of import restrictions                 product for which it is infeasible to                 and re-export to the United States, fish
                                               and removal of import restrictions. (A)                 substantiate the attestation that the fish            and fish products from a fishery subject
                                               Any import prohibition imposed                          or fish products do not contain fish or               to an import prohibition under
                                               pursuant to paragraphs (h)(1) and (9) of                fish products caught or harvested in a                paragraphs (h)(1) and (h)(9)(i) of this
                                               this section with respect to a fishery                  fishery subject to an import prohibition.             section and notify such nations in
                                               shall remain in effect until the Assistant              The certification of admissibility may be             writing that they are subject to action
                                               Administrator issues a comparability                    in addition to any other applicable                   under paragraph (h)(9)(iv)(D) of this
                                               finding for the fishery.                                import documentation requirements.                    section with respect to the fish and fish
                                                  (B) A harvesting nation with an export                  (B) The Assistant Administrator shall              products for which the Assistant
                                               fishery with a comparability finding that               notify the harvesting nation of the                   Administer identified them.
                                               expired, was denied or terminated may                   fisheries and the fish and fish products                 (D) Within 60 days from the date of
                                               re-apply for a comparability finding at                 to be accompanied by a certification of               notification, an intermediary nation
                                               any time by submitting an application to                admissibility and provide the necessary               notified pursuant to paragraph
                                               the Assistant Administrator, along with                 documents and instruction.                            (h)(9)(iv)(C) of this section must certify
                                               documentary evidence demonstrating                         (C) The Assistant Administrator, in                to the Assistant Administrator that it:
                                               that the harvesting nation has met the                  cooperation with the Secretaries of                      (1) Does not import, or does not offer
                                               conditions specified in paragraph                       Treasury and Homeland Security, shall                 for import into the United States, fish or
                                               (h)(6)(iii) of this section, including, as              as part of the Federal Register notice                fish products subject to an import
                                               applicable, reasonable proof as to the                  referenced in paragraph (h)(8)(i) of this             prohibition under paragraphs (h)(1) and
                                               effects on marine mammals of the                        section, publish a list of fish and fish              (h)(9)(i) of this section; or
                                               commercial fishing technology in use in                 products, organized by harvesting                        (2) Has procedures to reliably certify
                                               the fishery for the fish or fish products               nation, required to be accompanied by                 that exports of fish and fish products
                                               exported from such nation to the United                 a certification of admissibility. Any                 from the intermediary nation to the
                                               States.                                                 requirement for a certification of                    United States do not contain fish or fish
                                                  (C) The Assistant Administrator shall                admissibility shall be effective 30 days              products caught or harvested in a
                                               make a determination whether to issue                   after the publication of such notice in               fishery subject to an import prohibition
                                               the harvesting nation that has re-applied               the Federal Register.                                 under paragraphs (h)(1) and (h)(9)(i) of
                                               for a comparability finding for the                        (D) For each shipment, the                         this section.
                                               fishery within 90 days from the                         certification of admissibility must be                   (E) The intermediary nation must
                                               submission of complete information to                   properly completed and signed by a                    provide documentary evidence to
                                               the Assistant Administrator. The                        duly authorized official or agent of the              support its certification including
                                               Assistant Administrator shall issue a                   harvesting nation and subject to                      information demonstrating that:
                                               comparability finding for the fishery for               validation by a responsible official(s)                  (1) It has not imported in the
                                               a specified period where the Assistant                  designated by the Assistant                           preceding 6 months the fish and fish
                                               Administrator finds that the harvesting                 Administrator. The certification must                 products for which it was notified under
                                               nation meets the applicable conditions                  also be signed by the importer of record              paragraph (h)(9)(iv)(C) of this section; or
                                               in paragraph (h)(6)(iii) of this section,               and submitted in a format (electronic                    (2) It maintains a tracking,
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                                               subject to the additional consideration                 facsimile [fax], the Internet, etc.)                  verification, or other scheme to reliably
                                               for a comparability finding in paragraph                specified by the Assistant                            certify on either a global, individual
                                               (h)(7) of this section.                                 Administrator.                                        shipment or other appropriate basis that
                                                  (D) Upon issuance of a comparability                    (iv) Intermediary nation. (A) For                  fish and fish products from the
                                               finding to the harvesting nation with                   purposes of this paragraph (h)(9), and in             intermediary nation offered for import
                                               respect to the fishery and notification in              applying the definition of an                         to the United States do not contain fish
                                               writing to the harvesting nation, the                   ‘‘intermediary nation,’’ an import into               or fish products caught or harvested in


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                                                                 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Rules and Regulations                                               54419

                                               a fishery subject to an import                          identified under paragraph (h)(9)(iv)(C)              reconsider a comparability finding in
                                               prohibition under paragraphs (h)(1) and                 of this section.                                      accordance with paragraph (h)(8)(vi) of
                                               (h)(9)(i) of this section and for which it                (H) The Assistant Administrator will                this section.
                                               was notified under paragraph                            review determinations under this                        (11) International cooperation and
                                               (h)(9)(iv)(C) of this section.                          paragraph upon the request of an                      assistance. Consistent with the
                                                                                                       intermediary nation. Such requests must               authority granted under Marine
                                                  (F) No later than 120 days after a
                                                                                                       be accompanied by specific and detailed               Mammal Protection Act at 16 U.S.C.
                                               notification pursuant to paragraph
                                                                                                       supporting information or                             1378 and the availability of funds, the
                                               (h)(9)(iv)(C) of this section, the Assistant
                                                                                                       documentation indicating that a review                Assistant Administrator may:
                                               Administrator will review the                           or reconsideration is warranted. Based
                                               documentary evidence provided by the                                                                            (i) Provide appropriate assistance to
                                                                                                       upon such information and other                       harvesting nations identified by the
                                               intermediary nation under paragraphs                    relevant information, the Assistant
                                               (h)(9)(iv)(D) and (E) of this section and                                                                     Assistant Administrator under
                                                                                                       Administrator may determine that the                  paragraph (h)(5) of this section with
                                               determine based on that information or                  intermediary nation should no longer be
                                               other readily available information                                                                           respect to the financial or technical
                                                                                                       subject to an import prohibition under
                                               whether the intermediary nation                                                                               means to develop and implement the
                                                                                                       paragraph (h)(9)(iv)(G) of this section. If
                                               imports, or offers to import into the                                                                         requirements of this section;
                                                                                                       the Assistant Administrator makes such
                                               United States, fish and fish products                   a determination, the Assistant                          (ii) Undertake, where appropriate,
                                               subject import prohibitions and, if so,                 Administrator, in cooperation with the                cooperative research on marine mammal
                                               whether the intermediary nation has                     Secretaries of the Treasury and                       assessments for abundance, methods to
                                               procedures to reliably certify that                     Homeland Security, shall lift the import              estimate incidental mortality and
                                               exports of fish and fish products from                  prohibition under this paragraph and                  serious injury and technologies and
                                               the intermediary nation to the United                   publish notification of such action in                techniques to reduce marine mammal
                                               States do not contain fish or fish                      the Federal Register.                                 incidental mortality and serious injury
                                               products subject to import prohibitions                   (10) Progress report for harvesting                 in export fisheries;
                                               under paragraphs (h)(1) and (9) of this                 nations with export fisheries. (i) A                    (iii) Encourage and facilitate, as
                                               section, and notify the intermediary                    harvesting nation shall submit, with                  appropriate, the voluntary transfer of
                                               nation of its determination.                            respect to an exempt or export fishery,               appropriate technology on mutually
                                                  (G) If the Assistant Administrator                   a progress report to the Assistant                    agreed terms to assist harvesting nations
                                               determines that the intermediary nation                 Administrator documenting actions                     in qualifying for a comparability finding
                                               does not have procedures to reliably                    taken to:                                             under paragraph (h)(6) of this section;
                                               certify that exports of fish and fish                     (A) Develop, adopt and implement its                and
                                                                                                       regulatory program; and                                 (iv) Initiate, through the Secretary of
                                               products from the intermediary nation
                                                                                                         (B) Meet the conditions in paragraph                State, negotiations for the development
                                               to the United States do not contain fish                (h)(6)(iii) of this section, including with
                                               or fish products caught or harvested in                                                                       of bilateral or multinational agreements
                                                                                                       respect to reducing or maintaining                    with harvesting nations to conserve
                                               a fishery subject to an import                          incidental mortality and serious injury
                                               prohibition under paragraphs (h)(1) and                                                                       marine mammals and reduce the
                                                                                                       of marine mammals below the bycatch                   incidental mortality and serious injury
                                               (h)(9)(i) of this section, the Assistant                limit for its fisheries.
                                               Administrator, in cooperation with the                                                                        of marine mammals in the course of
                                                                                                         (ii) The progress report should                     commercial fishing operations.
                                               Secretaries of the Treasury and                         include the methods the harvesting
                                               Homeland Security, will file with the                                                                           (12) Consistency with international
                                                                                                       nation is using to obtain information in
                                               Office of the Federal Register a notice                                                                       obligations. The Assistant Administrator
                                                                                                       support of a comparability finding and
                                               announcing the fish and fish products                                                                         shall ensure, in consultation with the
                                                                                                       a certification by the harvesting nation
                                               exported from the intermediary nation                                                                         Department of State and the Office of
                                                                                                       of the accuracy and authenticity of the
                                               to the United States that are of the same                                                                     the United States Trade Representative
                                                                                                       information contained in the progress
                                               species as, or similar to, fish or fish                                                                       that any action taken under this section,
                                                                                                       report.
                                               products subject to an import                             (iii) The first progress report will be             including any action to deny a
                                               prohibition under paragraphs (h)(1) and                 due two years prior to the end of                     comparability finding or to prohibit
                                               (h)(9)(i) of this section that may not be               exemption period and every four years                 imports, is consistent with the
                                               imported into the United States as a                    thereafter on or before July 31.                      international obligations of the United
                                               result of the determination. A                            (iv) The Assistant Administrator may                States, including under the World Trade
                                               prohibition under this paragraph shall                  review the progress report to monitor                 Organization Agreement.
                                               not apply to any fish or fish product for               progress made by a harvesting nation in               [FR Doc. 2016–19158 Filed 8–11–16; 8:45 am]
                                               which the intermediary nation was not                   developing its regulatory program or to               BILLING CODE 3510–22–P
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Document Created: 2016-08-13 02:21:47
Document Modified: 2016-08-13 02:21:47
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective on January 1, 2017.
ContactNina Young, Office of International Affairs and Seafood Inspection, NMFS at [email protected] or 301-427- 8383. More information on this final action can be found on the NMFS Web site at http://www.nmfs.noaa.gov/ia/.
FR Citation81 FR 54389 
RIN Number0648-AY15
CFR Citation15 CFR 902
50 CFR 216
CFR AssociatedReporting and Recordkeeping Requirements; Administrative Practice and Procedure; Exports and Marine Mammals

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