[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Rules and Regulations]
[Pages 76998-77000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27155]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[RTID 0648-XC604]


Implementation of Import Restrictions; Certification of 
Admissibility for Certain Fish Products From New Zealand

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

ACTION: Import restrictions.

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SUMMARY: Under the authority of the Marine Mammal Protection Act

[[Page 76999]]

(MMPA), and pursuant to a court order, the NMFS Assistant Administrator 
for Fisheries (Assistant Administrator) has implemented import 
restrictions on the products harvested in certain Government of New 
Zealand (GNZ) regulated fisheries: West Coast North Island multi-
species set-net fishery, and West Coast North Island multi-species 
trawl fishery. Similar fish products harvested from other areas or with 
other types of fishing gear are eligible for entry into the U.S. market 
only when accompanied by Certification of Admissibility validating 
origin from other than the restricted fisheries.

DATES: These import restrictions and requirement for Certification of 
Admissibility are effective December 5, 2022, until revoked or revised 
by the Assistant Administrator in a subsequent action.

FOR FURTHER INFORMATION CONTACT: Kellie Foster-Taylor, NMFS Office of 
International Affairs, Trade, and Commerce at [email protected] or 301-427-7721.

SUPPLEMENTARY INFORMATION: 

The MMPA Import Provisions

    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.
    In August 2016, NMFS published a final rule (81 FR 54390; August 
15, 2016) implementing the fish and fish product import provisions in 
section 101(a)(2) of the MMPA. This rule established conditions for 
evaluating a harvesting nation's regulatory programs to address 
incidental and intentional mortality and serious injury of marine 
mammals in fisheries operated by nations that export fish and fish 
products to the United States. Under the final rule, fish or fish 
products may not 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 
October 8, 2020 (85 FR 63527), to classify fisheries subject to the 
import requirements.
    The final rule established a five-year exemption period, through 
December 31, 2021, before imports would be subject to any trade 
restrictions (see 50 CFR 216.24(h)(2)(ii)). In recognition of the 
diversion of foreign government resources away from fishery research 
and regulatory programs in response to the COVID pandemic, NMFS issued 
an interim final rule to extend the exemption period through December 
31, 2022 (85 FR 69515, November 3, 2020). Subsequently, NMFS issued a 
final rule to extend further the exemption period through December 31, 
2023 (87 FR 63955, October 21, 2022) due to the large number of foreign 
nation applications for comparability findings received and the need to 
evaluate regulatory programs fairly and equitably for more than 2500 
foreign fisheries.
    In the 2016 final rule, NMFS stated that it may consider emergency 
rulemaking during the exemption period to ban imports of fish and fish 
products from a foreign fishery having or likely to have an immediate 
and significant adverse impact on a marine mammal stock. In addition, 
pursuant to the MMPA Import Provisions rule, nothing prevents a nation 
from implementing a bycatch reduction regulatory program and seeking a 
comparability finding during the exemption period. The GNZ requested 
that NMFS consider comparability findings for certain fisheries prior 
to the end of the exemption period.

Petition for Rulemaking and Request for a Comparability Finding

    In February 2019, Sea Shepherd Legal, Sea Shepherd New Zealand 
Ltd., and Sea Shepherd Conservation Society petitioned NMFS for an 
emergency rulemaking to ban the import of fish caught in gillnet and 
trawl fisheries in the M[amacr]ui dolphin's range because the GNZ 2012 
regulations allegedly were insufficient to protect the M[amacr]ui 
dolphin. NMFS rejected the petition (84 FR 32853, July 10, 2019) on the 
basis that the GNZ had in place an existing regulatory program to 
reduce M[amacr]ui dolphin bycatch and was proposing a revised 
regulatory program which, when fully implemented, would likely further 
reduce risk to M[amacr]ui dolphin.
    On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd 
Conservation Society (collectively, ``Plaintiffs'') initiated a lawsuit 
in the Court of International Trade (CIT) challenging NMFS' denial of 
its petition. On June 24, 2020, the GNZ announced its final fisheries 
measures for reducing bycatch of M[amacr]ui dolphins (effective October 
1, 2020) and its final Threat Management Plan (TMP). On July 1, 2020, 
Plaintiffs moved for a preliminary injunction to ban imports of seafood 
into the United States from New Zealand's set-net and trawl fisheries. 
Before responding to Plaintiffs' motion for a preliminary injunction, 
NMFS moved for a voluntary remand in order to reconsider the 
Plaintiffs' petition for emergency rulemaking under the MMPA due to 
GNZ's final fisheries measures and final TMP.
    On July 15, 2020, the GNZ, acting through the Ministry for Primary 
Industries, requested that NMFS perform a comparability assessment of 
the TMP and its regulatory program as it relates to M[amacr]ui 
dolphins. On August 13, 2020, the CIT granted NMFS the voluntary 
remand. On August 27, 2020, NMFS received the Plaintiffs' supplemental 
petition, which both maintained the grounds for action outlined in the 
original petition and included new information on sightings of 
M[amacr]ui dolphins, the final TMP and the 2020 LOFF.

NMFS Determination on the Petition and the GNZ's Comparability 
Application

    NMFS rejected the supplemental petition to ban the importation of 
commercial fish or products from fish harvested in a manner that 
results in the incidental kill or incidental serious injury of 
M[amacr]ui dolphins in excess of U.S. standards. Further, NMFS issued 
comparability findings for the West Coast North Island multi-species 
set-net and trawl fisheries because the GNZ has implemented a 
regulatory program governing the bycatch of M[amacr]ui dolphin that is 
comparable in effectiveness to U.S. standards.

Motion for Preliminary Injunction and Court Order

    Plaintiffs subsequently filed a Renewed Motion for Preliminary 
Injunction on December 11, 2020, seeking a preliminary injunction 
requiring the U.S. Government to ban the import of fish or fish 
products from any New Zealand commercial fishery that uses set-nets or 
trawl gear within the M[amacr]ui dolphin's range.
    On November 28, 2022, the CIT granted the plaintiffs' request for a 
preliminary injunction requiring the U.S. government, pending final 
adjudication of the merits, to ban immediately the importation of 
certain fish and fish products from New Zealand commercial fisheries 
that use set-nets or trawls within the M[amacr]ui dolphin's range. 
Under the CIT order,

[[Page 77000]]

all (1) snapper; (2) tarakihi; (3) spotted dogfish; (4) trevally; (5) 
warehou; (6) hoki; (7) barracouta; (8) mullet; and (9) gurnard derived 
from the fisheries of the West Coast North Island are subject to the 
ban. The court also ordered NMFS to submit notice of the ban for 
publication in the Federal Register within 15 days. By granting this 
preliminary injunction and requiring the imposition of import 
restrictions and a comparability finding determination for the export 
fisheries operating on the West Coast North Island within the 
M[amacr]ui dolphin's range, the judge's order effectively removes the 
currently operative exemption under 50 CFR 216.24 (h)(2)(ii) for these 
fisheries.

Implementing Import Restrictions Under the Court Order

    The CIT order stipulates that specific fish products deriving from 
West Coast North Island multi-species set-net and trawl fisheries are 
prohibited from entry into the U.S market. Several of these fish 
species are not imported into the United States under Harmonized Tariff 
Schedule (HTS) codes that are specific to the type of fish. Instead, 
these fish are imported under non-specific fish and marine fish codes. 
Consequently, the list of affected HTS codes has been determined by 
NMFS and is available at: https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. The list includes 
those non-specific HTS codes necessary to encompass the possible codes 
used for products subject to the trade restriction.
    However, NMFS acknowledges that fish species harvested in the West 
Coast North Island fisheries are also harvested elsewhere in New 
Zealand and harvested with other fishing gear not subject to the court-
ordered embargo. Consequently, further steps are needed to enforce an 
import restriction focused on fish harvested in the affected fisheries 
and included in the court order while not affecting trade in products 
not subject to embargo. NMFS must collect additional information from 
importers during the entry process to identify products not subject to 
an import restriction. To that end, NMFS has identified tariff codes 
for the fish and fish products that require Certification of 
Admissibility to validate that the fish and fish products from New 
Zealand being offered for entry into the United States do not originate 
from West Coast North Island set-net and trawl fisheries.
    On December 5, 2022, U.S. Customs and Border Protection (CBP) 
transmitted a user-defined rule to inspectors at affected ports of 
entry with instructions for port inspectors to examine entry filings 
from New Zealand under the specified tariff codes. Fish or fish 
products imported to the United States from New Zealand under the 
designated HTS codes that are not subject to the import prohibition 
must be accompanied by Certification of Admissibility. The 
Certification of Admissibility form and accompanying instructions for 
its use in entry filing are available at https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. The Certification of Admissibility is an information 
collection subject to the requirements of the Paperwork Reduction Act 
and has been approved by the Office of Management and Budget under 
control number 0648-0651.
    Absent Certification of Admissibility, entry filings under the 
specified tariff codes will be rejected. Implementing this process will 
require notice to the trade community (importers and customs brokers) 
and CBP inspectors. NMFS is working with CBP to use its internal and 
external messaging systems for such notification. Also, consultations 
with the GNZ are needed to identify those officials authorized to 
certify shipments bound for the United States. NMFS initiated these 
steps prior to the effective date of the embargo.
    Importers are advised to determine if other NMFS program 
requirements (e.g., Tuna Tracking and Verification Program, Seafood 
Import Monitoring Program) or other agency requirements (e.g., U.S. 
Fish and Wildlife Service, State Department, Food and Drug 
Administration) have Automated Commercial Environment (ACE) data 
reporting requirements applicable to the designated HTS codes subject 
to certification under the MMPA import provisions. In such cases, the 
other reporting requirements still pertain in addition to the 
Certification of Admissibility requirements imposed to implement the 
CIT order.
    Until such time as the CIT (or other court of competent 
jurisdiction) lifts the preliminary injunction, trade restrictions on 
the fish products harvested by set-nets and trawls operating off the 
West Coast North Island within the M[amacr]ui dolphin's range will 
continue and Certification of Admissibility will be required for the 
HTS codes designated under this notice.

    Authority: 16 U.S.C. 1361 et seq.

    Dated: December 9, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-27155 Filed 12-15-22; 8:45 am]
BILLING CODE 3510-22-P