[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]
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