[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Notices]
[Pages 62842-62844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26418]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG619


Implementation of Fish and Fish Product Import Provisions of the 
Marine Mammal Protection Act--Notification of Comparability Findings

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

ACTION: Notice; comparability findings for Mexico.

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SUMMARY: Under the authority of the Marine Mammal Protection Act 
(MMPA), the NMFS Assistant Administrator for Fisheries (Assistant 
Administrator) has issued comparability findings for the Government of 
Mexico's following fisheries: Upper Gulf of California shrimp trawl 
fishery for both small and large vessels; Upper Gulf of California 
shrimp suripera fishery; Upper Gulf of California sierra purse seine 
fishery; Upper Gulf of California sierra hook and line fishery; Upper 
Gulf of California chano trawl fishery, for small vessels; Upper Gulf 
of California curvina purse seine fishery; and Upper Gulf of California 
sardine/curvina purse seine fishery for both small and large vessels. 
The Assistant Administrator is denying a comparability finding for the 
El Golfo de Santa Clara curvina rodeo-style gillnet fishery. NMFS bases 
the comparability findings on documentary evidence submitted by the 
Government of Mexico and other relevant, readily-available information 
including scientific literature and the reports of the ``Comit[eacute] 
Internacional para la Recuperaci[oacute]n de la Vaquita'' (CIRVA) (the 
international recovery team for vaquita).

DATES: These comparability findings are valid for the period of 
November 30, 2018, through January 1, 2022, unless revoked by the 
Assistant Administrator in a subsequent action.

FOR FURTHER INFORMATION CONTACT: Nina Young, at email: 
[email protected] or phone: 301-427-8383.

[[Page 62843]]


SUPPLEMENTARY INFORMATION: The MMPA, 16 U.S.C. 1371 et seq., 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 this import restriction, 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.
    On August 15, 2016, NMFS published a final rule (81 FR 54389) 
amending the fish and fish product import provisions of Section 
101(a)(2) of the MMPA (see implementing regulations at 50 CFR 
216.24(h)). This final rule established conditions for evaluating a 
harvesting nation's regulatory programs to address incidental and 
intentional mortality and serious injury of marine mammals in its 
commercial fisheries producing fish and fish products exported to the 
United States.
    Under the final rule, fish or fish products cannot be imported into 
the United States from commercial fishing operations that result in the 
incidental mortality or serious injury of marine mammals in excess of 
U.S. standards (16 U.S.C. 1371(a)(2)). NMFS published a List of Foreign 
Fisheries (LOFF) on March 16, 2018 (83 FR 11703) to classify fisheries 
subject to the import requirements. Effective January 1, 2022, fish and 
fish products from fisheries identified by the Assistant Administrator 
in the LOFF can only be imported into the United States if the 
harvesting nation has applied for and received a comparability finding 
from NMFS for those fisheries on the LOFF. The rule established the 
procedures that a harvesting nation must follow, and the conditions it 
must meet, to receive a comparability finding for a fishery on the 
LOFF. The final rule established a five-year exemption period, ending 
January 1, 2022, before imports would be subject to any trade 
restrictions (see 50 CFR 216.24(h)(2)(ii)).
    Vaquita are listed as an endangered species under the U.S. 
Endangered Species Act, 16 U.S.C. 1531 et seq., and are endemic to 
northern Gulf of California waters in Mexico. In 2017, the 
International Committee for the Recovery of the Vaquita (CIRVA)--a 
group of international scientists supported by Mexico and led by 
Mexican scientists--estimated that fewer than 30 individuals remain. 
Gillnets used to illegally fish for totoaba are the direct primary 
source of current vaquita mortality and continue to be deployed to 
supply China's black market demand for totoaba swim bladders.
    On May 18, 2017, Natural Resources Defense Council (NRDC), Center 
for Biological Diversity (CBD), and the Animal Welfare Institute (AWI) 
petitioned the Secretaries of Homeland Security, the Treasury, and 
Commerce to ``ban the importation of commercial fish or products from 
fish'' sourced using fishing activities that ``result in the incidental 
mortality or incidental serious injury'' of vaquita ``in excess of 
United States standards.'' The petitioners requested that the 
Secretaries immediately ban imports of all fish and fish products from 
Mexico that do not satisfy the MMPA import provision requirements, 
claiming that emergency action banning such imports is necessary to 
avoid immediate, ongoing, and ``unacceptable risks'' to vaquita. NMFS 
published a notice of the petition's receipt on August 22, 2017, in the 
Federal Register for a 60-day comment period.
    On December 21, 2017, the petitioners filed suit in the United 
States District Court for the District of Columbia, which among other 
things challenges the failure of NMFS, the U.S. Department of Commerce, 
the U.S. Department of the Treasury, and the U.S. Department of 
Homeland Security (``Defendants'') to respond to the petition pursuant 
to the Administrative Procedure Act (``APA''). 5 U.S.C. 551-559; 701-
706. On March 21, 2018, the petitioners filed suit before the Court of 
International Trade seeking an injunction requiring the U.S. Government 
to ban the import of fish or fish products from any Mexican commercial 
fishery that uses gillnets within the vaquita's range. On April 16, 
2018, Petitioners filed a motion for a preliminary injunction on which 
oral argument was held on July 10, 2018. The Court of International 
Trade found in favor of the petitioners and granted the preliminary 
injunction.
    On July 26, 2018, and August 14, 2018, the Court of International 
Trade (CIT) (Slip-Op 18-92) required the U.S. Government to ban all 
fish and fish products from Mexican commercial fisheries that use 
gillnets within the vaquita's range, pending final adjudication of the 
merits. This ban includes the importation from Mexico of all shrimp, 
curvina, sierra, and chano fish and their products caught with gillnets 
inside the vaquita's range. To effect this court order, NMFS published 
a Federal Register document on August 28, 2018 (83 FR 43792) giving 
notice of import restrictions on fish and fish products from Mexico 
caught with gillnets deployed in the range of the vaquita. In that 
notice, NMFS also required that all other fish and fish products not 
within the scope of the import restrictions but imported under the 
Harmonized Tariff Schedule (HTS) codes associated with the prohibited 
fish and fish products be accompanied by a Certification of 
Admissibility in accordance with the provisions of 50 CFR 216.24(h)(9).
    On November 9, 2018, the Government of Mexico requested that the 
Assistant Administrator make comparability findings based upon 
documentary evidence provided by the Government of Mexico for the Upper 
Gulf of California shrimp trawl fishery for both small and large 
vessels; Upper Gulf of California shrimp suripera \1\ fishery; Upper 
Gulf of California sierra purse seine fishery; Upper Gulf of California 
sierra hook and line fishery; Upper Gulf of California chano trawl 
fishery, for small vessels; Upper Gulf of California curvina purse 
seine fishery; Upper Gulf of California sardine/curvina purse seine 
fishery for both small and large vessel; and El Golfo de Santa Clara 
curvina rodeo-style gillnet fishery. As stated in the final rule (81 FR 
54397, Aug. 15, 2016) in response to comments on the proposed rule, 
nothing within the procedures set forth in 50 CFR 216.24(h) prevents a 
nation from implementing a bycatch reduction regulatory program and 
seeking a comparability finding during the five-year exemption period 
(see 50 CFR 216.24(h)(2)(ii)).
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    \1\ Suripera nets rely on utilizing the movement of the wind and 
water currents to draw shrimp into a small-mesh modified cast net.
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    NMFS used the comparability finding process set forth at 50 CFR 
216.24(h)(6), which is the process that will be used for all nations 
and fisheries at the conclusion of the five-year exemption, with the 
Assistant Administrator considering documentary evidence submitted by 
the Government of Mexico and other relevant, readily-available 
information. This information includes including scientific literature 
and the reports of the ``Comit[eacute] Internacional para la 
Recuperaci[oacute]n de la Vaquita'' (CIRVA) (the international recovery 
team for vaquita) and has determined that the Upper Gulf of California 
shrimp trawl fishery for both small and large vessels; Upper Gulf of 
California shrimp suripera fishery; Upper Gulf of California sierra 
purse seine fishery;

[[Page 62844]]

Upper Gulf of California sierra hook and line fishery; Upper Gulf of 
California chano trawl fishery, for small vessels; Upper Gulf of 
California curvina purse seine fishery; and Upper Gulf of California 
sardine/curvina purse seine fishery for both small and large vessels; 
have met the MMPA's requirements to receive comparability findings. The 
Assistant Administrator has determined that the El Golfo de Santa Clara 
curvina rodeo-style gillnet fishery has not met the requirements to 
receive a comparability finding, will be denied such, and will remain 
subject to import restrictions in accordance with 50 CFR 216.24(h)(9).
    Although this comparability finding would allow the importation 
into the United States of fish and fish product derived from these non-
gillnet fisheries operating in the Upper Gulf of California under the 
Government of Mexico's jurisdiction, as noted above, CIT required the 
U.S. Government to ban all fish and fish products from said fisheries 
(effectuated through 83 FR 43792, August 28, 2018). Due to CIT's 
injunction, imports of sierra, shrimp, chano, and curvina fish and fish 
products must continue to be accompanied by a Certification of 
Admissibility in accordance with the provisions of 50 CFR 216.24(h)(9) 
until a court of competent jurisdiction lifts the injunction and 
further notice from NMFS (See August 28, 2018 (83 FR 43792) for a list 
of HTS and instructions for the Certification of Admissibility).
    In accordance with 50 CFR 216.24(h)(8)(vii), a comparability 
finding will be terminated or revoked if the Assistant Administrator 
determines that the requirements of 50 CFR 216.24(h)(6) are no longer 
being met.
    Pursuant to 50 CFR 216.24(h)(8)(iv) the Assistant Administrator may 
specify the period for which a comparability finding is valid, 
particularly, when nations are requesting a finding during the 
exemption period. The comparability finding for the Government of 
Mexico's affected fisheries included in this Federal Register notice 
will remain valid through January 1, 2022. Additionally, in accordance 
with 50 CFR 216.24(h)(9)(ii), the Government of Mexico can reapply for 
a comparability finding for the El Golfo de Santa Clara curvina rodeo-
style gillnet fishery at any time. All other exempt and export 
fisheries operating under the control of the Government of Mexico are 
still subject to the five-year exemption period under 50 CFR 
216.24(h)(2)(ii). Therefore, prior to the conclusion of the five-year 
exemption period, per the requirements of 50 CFR 216.24(h)(6), the 
Government of Mexico, as is the case with all harvesting nations, must 
apply for and receive a comparability finding for all fisheries, 
including those in this Federal Register document, in order to export 
fish and fish products from those fisheries to the United States after 
January 1, 2022. Also, the Government of Mexico is still required to 
provide a progress report in accordance with 50 CFR 216.24(h)(10) for 
these fisheries and all other fisheries on its List of Foreign 
Fisheries.
    The Government of Mexico has requested that NMFS update its LOFF to 
reflect only those fisheries and gear types authorized to fish in the 
upper Gulf of California. NMFS will add these fisheries (both those 
that have and were denied a comparability finding) and remove all 
gillnet fisheries listed as operating in the upper Gulf of California 
from the List of Foreign Fisheries for Mexico. This action is taken in 
accordance with 50 CFR 216.24(h)(8)(vi).

    Dated: November 30, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-26418 Filed 11-30-18; 4:15 pm]
 BILLING CODE 3510-22-P