[Federal Register Volume 91, Number 144 (Wednesday, July 29, 2026)]
[Proposed Rules]
[Pages 47798-47801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15294]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 260723-0179]
RIN 0648-BO43
Implementation of 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: Advance notice of proposed rulemaking; request for comments.
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SUMMARY: NMFS is soliciting public input to inform potential revisions
to the implementing regulations pursuant to the import provisions of
the Marine Mammal Protection Act (MMPA). NMFS is initiating a
comprehensive review of the import regulations to increase efficiency
of the program while ensuring that the objectives of the statute are
met.
DATES: Written comments must be received by 5 p.m. on September 28,
2026.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2026-0826
by any of the following methods:
(1) Electronic Submissions: Submit all electronic public comments
via the Federal e-Rulemaking Portal. Visit http://www.regulations.gov
and type NOAA-NMFS-2026-0826 in the Search box. Click on the
``Comment'' icon, complete the required fields, and enter or attach
your comments.
(2) Mail: Julia Goss, Foreign Affairs Specialist, Office of
International Affairs, Trade, and Commerce, Attn: MMPA Fish Import
Provisions, NMFS, F/IA, 1315 East-West Highway, Silver Spring, MD
20910.
All comments received are a part of the public record and will
generally be posted to http://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
FOR FURTHER INFORMATION CONTACT: Julia Goss at [email protected] or
301-427-8360.
SUPPLEMENTARY INFORMATION: The Marine Mammal Protection Act (MMPA), 16
U.S.C. 1361 et seq., contains provisions to address the incidental
mortality and serious injury of marine mammals in both domestic and
foreign commercial fisheries. Section 1371(a)(2) requires the United
States to ban the importation of commercial fish or fish products
caught with commercial fishing technology that results in the
incidental kill or serious injury of marine mammals in excess of U.S.
standards. The regulations at 50 CFR 216.24(h), finalized on August 15,
2016, established procedures for making comparability findings, i.e.,
assessments of whether a nation has met certain conditions for its
fisheries to be considered comparable to the U.S. regulatory program
for addressing marine mammal bycatch. The statute further requires the
Secretary of Commerce to insist on reasonable proof from exporting
nations of the effects of commercial fishing technology on marine
mammals incidental to those fisheries.
NMFS' implementation of the import provisions followed a multi-year
rulemaking process. In 2008, NMFS received a petition to ban the import
of swordfish and swordfish products from nations that could not provide
reasonable proof regarding their fishing technology's impact on marine
mammals. NMFS subsequently published an advance notice of proposed
rulemaking (75 FR 22731, April 30, 2010) requesting comments on the
standards to be used for implementing the import provisions for all
fish and fish product imports; procedures for ensuring the established
standards and their associated criteria are met; and procedures for
developing recommendations regarding import prohibitions if those
standards are not met. NMFS then issued a proposed rule on August 11,
2015 (80 FR 48172) and a final rule on August 15, 2016 (81 FR 54390).
The import provisions established an initial 5-year exemption period
before imports would be subject to trade restrictions to allow
harvesting nations time to develop their regulatory programs governing
mortality and serious injury of marine mammals incidental to commercial
fishing. The exemption period was extended three times and ended on
December 31, 2025.
The final rule established procedures for NMFS to identify foreign
commercial fisheries that export fish and fish products to the United
States, evaluate whether the nations' regulatory programs for each of
those fisheries are comparable in effectiveness to the U.S. regulatory
program, and implement import prohibitions when fisheries do not
receive a comparability finding. To establish the scope of the
evaluations, NMFS publishes a List of Foreign Fisheries (LOFF), which
identifies the foreign commercial fisheries subject to the MMPA import
provisions. The LOFF classifies these fisheries based on the frequency
of marine mammal mortality and serious injury: ``Exempt'' fisheries are
classified as having a remote likelihood of, or no known, incidental
mortality and serious injury, while ``Export'' fisheries are those
having more than a remote likelihood of such mortality or injury.
Additional information on the LOFF can be found on the NMFS website at
https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries. In order to receive a comparability finding for
Exempt fisheries, a nation must demonstrate that it prohibits the
intentional mortality or serious injury of marine mammals in the course
of commercial fishing operations or has procedures to reliably certify
that exports of fish and fish products to the United States are not the
product of intentional killing or serious injury of a marine mammal. In
addition, Export fisheries must maintain
[[Page 47799]]
a regulatory program with respect to the fishery that is comparable in
effectiveness to the U.S. regulatory program.
Comparability findings for Exempt and Export fisheries are made on
a fishery-by-fishery basis. Additional details regarding the process
for making such findings can be found in the proposed rule published in
2015, the final rule published in 2016, and the NMFS website at https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/marine-mammal-protection-act-import-provisions. Before NMFS denies a foreign fishery
a comparability finding, NMFS provides the harvesting nation notice of
the preliminary finding and an opportunity to submit reliable
information to refute the denial and communicate corrective actions.
Unless terminated by NMFS, a comparability finding remains valid for 4
years from the publication of the finding or for such other period
specified by NMFS. To seek renewal, harvesting nations must submit the
application and required documentary evidence by November 30 of the
year prior to the expiration date of its current comparability finding.
If a harvesting nation begins exporting fish or fish product to the
United States from a fishery that is not on the LOFF, the harvesting
nation must notify NMFS, and NMFS may issue a provisional comparability
finding allowing such imports for a period not to exceed 12 months
while the nation submits the required application materials for NMFS to
evaluate comparability.
Denial of a comparability finding for a fishery results in an
import prohibition of fish and fish products harvested in that fishery
into the United States. Import prohibitions become effective 30 days
after publication of the Federal Register notice announcing the denial
of the comparability finding and remain in effect until NMFS issues a
comparability finding for that fishery. A harvesting nation may reapply
at any time by submitting an application and providing new documentary
evidence that the fishery meets the required conditions.
To allow for the lawful entry of product that is the same or
similar to product harvested in a fishery subject to an import
prohibition, the product must be accompanied by a Certification of
Admissibility (COA) or an electronic equivalent. The COA is a
government attestation that the fish or fish products being imported
into the United States were not harvested in a fishery subject to an
import prohibition under the MMPA import provisions. As traded products
are identified by tariff codes, the COA allows for the identification
of products that are admissible to the United States, but may otherwise
be blocked because they share tariff codes with prohibited products.
COA reporting requirements allow verification that fish and fish
products are not sourced from a prohibited fishery and must be signed
by an authorized government official of the harvesting or exporting
nation. The COA must be filed with the U.S. Customs and Border
Protection (CBP) upon entry through the Automated Commercial
Environment (ACE) portal. The COA is required to be provided upon entry
into ACE as a condition for CBP to release the import into the United
States. Imports that are the same or similar to fish and fish products
subject to import restrictions under the MMPA are not admissible unless
a completed COA is provided through ACE.
Under the 2016 final rule, no fish or fish products caught or
harvested in a fishery subject to an import prohibition may be imported
into the United States from any intermediary nations (i.e., nations
processing and re-exporting products to the United States). NMFS may
identify intermediary nations that import and re-export fish and fish
products to the United States from prohibited fisheries and require
those intermediary nations to certify either that they do not import
such prohibited products or that they have procedures in place to
reliably certify that exports to the United States do not contain fish
or fish products from prohibited fisheries.
The 2016 final rule also established an ongoing oversight mechanism
through periodic progress reports. A harvesting nation must submit
progress reports every 4 years, offset with the 4-year cycle for
comparability findings, to document actions taken to develop, adopt,
and implement its regulatory program and to meet the conditions in 50
CFR 216.24(h)(6)(iii). The first progress reports received from
harvesting nations in 2019 helped establish baselines and prepare
harvesting nations for the comparability finding application. Finally,
the final rule addressed international cooperation and assistance,
including the possibility of technical support, subject to existing
authority and appropriations.
As NMFS moved from developing to implementing the regulatory
framework, completing the first full round of comparability findings
proved to be significantly more complex and time-intensive than NMFS
anticipated when the final rule was promulgated. On September 2, 2025,
NMFS issued comparability findings for approximately 2,500 fisheries
from 135 harvesting nations with a highly diverse set of management
systems. For each of these fisheries, NMFS evaluated multiple, detailed
conditions for each comparability finding as outlined in 50 CFR
216.24(h)(6)(iii) and (h)(7), a task complicated by vastly different
legal systems, institutional capacities, monitoring programs, bycatch
reduction strategies, and data availability among the harvesting
nations. This required NMFS to review massive volumes of documentation,
conduct extensive follow-up engagement with harvesting nations to
clarify its understanding of the harvesting nations' regulatory
programs, resolve inconsistencies, and prepare fishery-specific
determinations for publication. Including several extensions to the
exemption period, the first comparability finding review took NMFS more
than 3 years to complete. Because these evaluations, in addition to the
progress reports, are scheduled to occur on 4-year cycles, processing
this volume of data consistently across thousands of fisheries creates
a high level of administrative burden for harvesting nations and NMFS
under restrictive timelines.
A related challenge is that the ``U.S. standards'' component of the
MMPA import provisions requires NMFS to evaluate foreign harvesting
nations' programs through the lens of the MMPA's domestic framework
(i.e., 16 U.S.C. 1386 and 1387), which relies on systematic
prioritization and is specific to commercial fisheries in the United
States. As described in more detail in the proposed rule published in
2015 and the final rule published in 2016, effective bycatch reduction
programs for harvesting nations should include estimating population
abundance and bycatch, monitoring fisheries, and mitigating
unsustainable bycatch; however, their practical implementation can be
constrained by lack of data, poor data quality, and lack of technical
expertise.
The United States experiences many similar challenges in regard to
managing marine mammal bycatch in its domestic fisheries. Under 16
U.S.C. 1387(f)(3), for example, these limitations necessitate a
domestic prioritization process to determine which species or stocks
are designated as ``strategic''--defined as those for which the level
of human-caused mortality exceeds the stock's potential biological
removal level, those declining and listed (or likely to be listed) as
endangered or threatened under the U.S. Endangered Species Act, or are
designated as depleted under the MMPA. If those stocks interact with a
Category I or Category II fishery (defined
[[Page 47800]]
as those having frequent or occasional incidental death or serious
injury of marine mammals), they are prioritized for the development of
Take Reduction Plans (TRPs). Once a TRP is developed, the process
remains highly iterative as the Take Reduction Teams develop and refine
both regulatory and voluntary measures to ensure the fishery meets MMPA
requirements while adapting to the specific operational realities of
the fleet. While the regulatory conditions in 50 CFR 216.24(h)(6)(iii)
and (h)(7) provide a framework for evaluation, they do not explicitly
reflect this underlying prioritization prescribed for the domestic
program or the iterative, resource-dependent nature of domestic bycatch
management. Consequently, defining ``U.S. standards'' and what may be
considered to be ``comparable in effectiveness'' for a multitude of
fisheries under a range of systems of governance presents an immense
analytical hurdle. NMFS has had to grapple with applying a dynamic and
tailored domestic set of requirements in determining comparability
consistently for thousands of diverse foreign fisheries.
Linking comparability findings to U.S market access is a central
feature of the statute and is intended to create incentives for
regulatory improvements and bycatch reduction as well as address
disadvantages facing domestic fishermen with unfair competition from
imports. However, the structure of the program under the final rule
requires substantial operational effort to implement. When NMFS denies
a comparability finding for a fishery, the agency translates that
determination into an import prohibition by identifying the affected
fish and fish products and the most appropriate U.S. HTS codes
associated with those products. The combination of the HTS codes and
the Country of Origin associated with the product determine whether or
not a COA is required. Because HTS codes are designed for trade
classification rather than tracing products to a specific fishery of
harvest, NMFS relies on the COA to distinguish allowable from
prohibited products at the point of entry into the United States. This
task is complicated by dynamic seafood supply chains, where products
are often landed, processed, or re-exported through multiple
jurisdictions, including intermediary nations that may process catch
from various sources. Consequently, the COA process requires constant
coordination among foreign officials, the fishing and seafood
industries, the trade community, and U.S. agencies, creating delays at
ports, a heavy administrative workload, and enforcement concerns.
Traceability challenges are particularly acute for certain highly
processed products, such as fish oil or fish sauce. The final rule
acknowledges that NMFS may not be able to include certain products in
an import prohibition where it is not feasible to identify the species
or link a product back to the specific fishery subject to the
prohibition. Determining whether to apply a COA requirement to any fish
or fish product on a case-by-case basis places a significant demand on
agency resources and, in some cases, may not be feasible. Taken
together, these factors require substantial ongoing effort by NMFS and
its partners to implement, administer, and maintain the trade-related
components of the program.
NMFS' implementation experience indicates that the MMPA import
provisions framework is an important tool that can be used to encourage
harvesting nations to implement more effective measures to reduce
marine mammal bycatch, but that administering the program at the scale
required by the current regulations is resource-intensive and
operationally complex. NMFS is therefore seeking public comment on
whether and how to: (1) clarify the term ``U.S. standards'' for
purposes of issuing comparability findings; (2) better account for the
diversity among harvesting nations' legal and regulatory programs and
their capacity to develop and oversee bycatch reduction programs that
could meet the requirements of the MMPA at 16 U.S.C. 1371(a)(2); (3)
change the procedures to improve administrative operations and
efficiency; (4) ensure fair and consistent application across exporting
nations; and (5) ensure a level playing field such that fisheries abide
by marine mammal bycatch standards that are comparable in effectiveness
to the U.S. regulatory program when introducing fish or fish products
into the U.S. market. NMFS requests comments on the current processes
but also welcomes comments related to the LOFF, comparability findings,
international cooperation and assistance, and import prohibitions. NMFS
also seeks responses to the specific questions provided below to help
inform future rulemaking that revises implementation of the MMPA import
provisions while maintaining fidelity to the MMPA's statutory
requirements and the outcomes the import provisions are intended to
achieve.
Overarching Questions
1. What changes should NMFS make to its regulations to improve
marine mammal conservation outcomes while treating exporting nations
fairly and consistently?
2. What opportunities or challenges have the MMPA import provisions
introduced to you as a harvesting nation, intermediary nation, seafood
importer, or seafood consumer?
Questions on U.S. Standards
3. For purposes of determining comparability, NMFS requires
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 the MMPA at 16 U.S.C. 1386 and 1387 of
MMPA. Comparability under the current regulations is defined to mean
``comparable in effectiveness to that of the United States [regulatory
program],'' not necessarily identical or as detailed. How else could
NMFS define ``U.S. standards'' for purposes of rendering comparability
determinations and are there other ways to assess comparability?
4. How can NMFS make the process for evaluating whether exporting
nations' fisheries are in excess of U.S. standards more
straightforward, while maintaining marine mammal conservation outcomes
across data-rich as well as data-limited contexts and a level playing
field for U.S. commercial fishing operations? (See 50 CFR
216.24(h)(6)(iii)).
Questions on Scope
5. Should NMFS consider revising the current regulations to specify
that NMFS will prioritize comparability findings for nations with
commercial fisheries that co-occur with marine mammals based on
conservation status and risk of bycatch, similar to NMFS'
prioritization scheme under the MMPA at 16 U.S.C. 1387(f)(3)? If so,
what criteria should NMFS consider and apply to its evaluation?
6. Are there any factors or elements that NMFS is not considering
under the current program but should be?
7. Instead of imposing an immediate import prohibition on
harvesting nations, should NMFS consider allowing ``conditional''
comparability findings based on a harvesting nation's commitments to
meeting ``U.S. standards''? In other words, should a discretionary
consultation period be allowed to afford nations time to address issues
identified concerning their fisheries that result in incidental
mortality or incidental serious injury of marine mammals in ``excess of
U.S. standards''?
[[Page 47801]]
8. Should fisheries be categorically excluded from the
comparability finding process because they would, whether by gear type,
likelihood of killing or seriously injuring marine mammals, or other
reasons, be considered to have de minimis impacts on marine mammals and
thus, the fishery would not be expected to exceed ``U.S. standards''?
Questions on Timeline
9. How do the current 4-year progress report and application cycle
deadlines impact the ability of harvesting nations to plan and
implement long-term conservation goals? Should the current four-year
cycles be modified, and if so, how? (See 50 CFR 216.24(h)(8)(v); 50 CFR
216.24(h)(10)(iii)).
Questions on Trade Restrictions
10. In what ways should NMFS structure and implement trade-related
measures under the MMPA import provisions, including the timing and
operationalization of trade measures to support fair, efficient, and
enforceable implementation? (See 50 CFR 216.24(h)(9)).
11. Should potential economic impacts inform NMFS' comparability
findings, specifically to the trade community, small entities, and
harvesting nations?
Questions on Intermediary Nations
12. How could NMFS revise or clarify the intermediary nation
provisions, including what constitutes procedures that can reliably
certify that exports do not contain fish from prohibited fisheries?
(See 50 CFR 216.24(h)(9)(iv)).
Questions on Public Input/Data Gathering
13. How should NMFS account for uncertainty and incomplete
information when evaluating comparability of foreign fisheries, while
ensuring fair and consistent treatment across exporting nations?
14. What changes, if any, would improve NMFS' processes for
receiving, evaluating, and incorporating public input that is relevant
to the agency's evaluation of the harvesting nations' regulatory
programs? (See 50 CFR 216.24(h)(6)(ii)).
Questions on the COA Process
15. How could the admissibility process, using the COA form or
alternative means, be changed to more efficiently and effectively
facilitate lawful entry of fish and fish products that are the same or
similar to products that are subject to an import ban? (See 50 CFR
216.24(h)(9)(iii)).
Questions on Capacity Building
16. Which technical areas are the highest priority for harvesting
nations to achieve and maintain comparability (e.g., marine mammal
stock assessments, monitoring programs, mitigation measures,
enforcement) and what forms of assistance are the most effective in
building these capacities in harvesting nations? (See 50 CFR
216.24(h)(11)).
Classification
This advance notice of proposed rulemaking has been determined to
be significant for purposes of Executive Order 12866.
Dated: July 24, 2026.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2026-15294 Filed 7-28-26; 8:45 am]
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