[Federal Register Volume 80, Number 154 (Tuesday, August 11, 2015)]
[Proposed Rules]
[Pages 48172-48198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19231]



[[Page 48171]]

Vol. 80

Tuesday,

No. 154

August 11, 2015

Part III





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; Proposed Rule

Federal Register / Vol. 80 , No. 154 / Tuesday, August 11, 2015 / 
Proposed Rules

[[Page 48172]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 216

[Docket No. 0907301201-4923-02]
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: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to revise its regulations to implement the 
import provisions of the Marine Mammal Protection Act (MMPA). These 
proposed regulations would establish conditions for evaluating a 
harvesting nation's regulatory program for reducing marine mammal 
incidental mortality and serious injury in fisheries that export fish 
and fish products to the United States. Under this proposed rule, 
harvesting nations must apply for and receive a comparability finding 
for each fishery identified by the Assistant Administrator in the List 
of Foreign Fisheries in order to import fish and fish products into the 
United States. The proposed rule establishes procedures that a 
harvesting nation must follow, and conditions to meet, to receive a 
comparability finding for a fishery. The proposed rule also establishes 
procedures for intermediary nations to certify that exports from those 
nations to the United States do not contain 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 trade law, including the World Trade 
Organization (WTO) Agreement.

DATES: Written comments must be received by 5 p.m. Eastern Time on 
November 9, 2015. Information and comments concerning this proposed 
rule may be submitted by any one of several methods (see ADDRESSES). 
NMFS will consider all comments and information received during the 
comment period in preparing a final rule. NMFS will also seek input 
from other nations on the proposed rule at bilateral and multilateral 
meetings, as appropriate.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2010-0098, by any of the following methods:
    1. Electronic Submissions: Submit all electronic public comments 
via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2010-0098, click the ``Comment Now!'' icon, 
complete the required fields and enter or attach your comments.
    2. Mail: Submit written comments to: Director, Office of 
International Affairs, Attn: MMPA Fish Import Provisions, NMFS, F/IA, 
1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. 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, or Adobe portable document file (PDF) formats 
only.

National Environmental Policy Act (NEPA)

    NMFS prepared a draft Environmental Assessment (EA) to accompany 
this proposed rule and will consider comments on the EA submitted in 
response to this notice. The EA was developed as an integrated document 
that includes a Regulatory Impact Review (RIR) and Initial Regulatory 
Flexibility Analysis (IRFA). Copies of the proposed rule and draft EA/
RIR/IRFA analysis are available by writing to the mailing address 
specified above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the NMFS Web site at http://www.nmfs.noaa.gov/ia/. This proposed rule is also accessible on the 
Government Printing Office Web site at http://www.gpo.gov/fdsys/. 
Documents cited in this notice may also be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Nina Young, NMFS F/IA at 
Nina.Young@noaa.gov or 301-427-8383.

SUPPLEMENTARY INFORMATION: 

MMPA Requirements

    The U.S. Ocean Commission stated in its 2005 report that the 
``biggest threat to marine mammals worldwide is their accidental 
capture or entanglement in fishing gear (bycatch), which kills hundreds 
of thousands of them each year.'' Scientists estimate the global annual 
bycatch of marine mammals at more than 600,000 animals. 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. (see 16 U.S.C. 
1371(a)(2)) Throughout the 1970s and 1980s, section 101(a)(2) was 
implemented by regulations under 50 CFR 216.24(e) and was tied to 
standards governing U.S. fisheries under general permits. In 1994, 
Congress reauthorized the MMPA and created a regime for governing the 
incidental take of marine mammals in U.S. commercial fisheries (16 
U.S.C. 1387). This regime replaced the general permit thereby rendering 
those regulations obsolete and narrowing their focus to fish and fish 
products caught with driftnets (50 CFR 216.24(e)) (See EA for details 
on the regulatory history).
    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. (see 16 U.S.C. 
1372(c)(3)). Section 102(c)(3) is implemented by regulations under 50 
CFR 216.12(d). This section among other provisions implements the 
MMPA's prohibition on the intentional killing or serious injury of 
marine mammals in the course of commercial fishing, under 16 U.S.C. 
1378.

[[Page 48173]]

U.S. Standards Governing Incidental Marine Mammal Mortality and Serious 
Injury in Commercial Fisheries Under the Jurisdiction of the United 
States

    Since the MMPA was first passed in 1972, one of its goals has been 
that the incidental kill or incidental serious injury of marine mammals 
permitted in the course of [U.S.] commercial fishing operations be 
reduced to insignificant levels approaching a zero mortality and injury 
rate. (see 16 U.S.C. 1371(a)(2)).
    The MMPA establishes a moratorium on taking marine mammals (with 
limited exceptions) within U.S. waters or by persons or vessels subject 
to U.S. jurisdiction on the high seas or in waters of another nation 
seaward of its territorial sea (16 U.S.C. 1371(a)), where ``take'' 
means to ``harass, hunt, capture, or kill or attempt to harass, hunt, 
capture, or kill any marine mammal'' (16 U.S.C. 1362(13)). The MMPA 
originally prohibited the incidental take of marine mammals in U.S. 
commercial fisheries unless authorized by a general permit. In U.S. 
commercial fisheries, optimum sustainable population (OSP) had been the 
standard used to issue a general permit authorizing such incidental 
take. General permits could not be issued for the take of marine 
mammals from a population that was determined to be below its OSP 
level. Internationally, nations could not export fish to the United 
States if caught in a manner that would not be allowed by a general 
permit (45 FR 72194, October 31, 1980).
    In January 1988, NMFS announced its intention to prepare an 
Environmental Impact Statement (EIS) on the proposed reissuance of 
domestic general permits authorizing commercial fishers to take marine 
mammals incidental to commercial fisheries (53 FR 2069, January 26, 
1988). In preparing the draft EIS, NMFS determined that it had 
insufficient information to determine OSP levels for the majority of 
marine mammal stocks taken in U.S. commercial fisheries. Subsequently, 
a legal challenge to an MMPA general permit resulted in a court order 
that NMFS could not issue a general permit to incidentally take any 
population that is below its OSP level or for which NMFS could not 
calculate OSP. See Kokechik Fishermen's Ass'n. v. Secretary of 
Commerce, 839 F.2d 795 (D.C. 1988). Without OSP determinations, NMFS 
could not make the findings required to waive the MMPA moratorium on 
incidental take and therefore could not promulgate regulations to issue 
a general permit for the incidental take of marine mammals in 
commercial fishing operations. Without the authority to issue a general 
permit, regulations governing importations from foreign fisheries were 
no longer coherent since they were linked to the U.S. general permit 
requirements.
    In November 1988, Congress provided a five-year interim exemption 
to the commercial fisheries incidental take provision to allow fishing 
to continue yet minimize the harm it caused marine mammals. This 
exemption allowed NMFS time to develop a comprehensive regime governing 
commercial fisheries interactions with marine mammals and alternative 
standards to OSP (16 U.S.C. 1383a). The MMPA Interim Exemption Program 
(Interim Exemption) required fishers to participate in a data-gathering 
program by carrying mandatory observers, compiling log books, and 
reporting marine mammal interactions in return for a temporary 
exemption from the moratorium on incidental take (16 U.S.C. 1383a). 
Under the Interim Exemption, Congress also required the Secretary of 
Commerce to place commercial fishing operations into one of three 
categories based on the frequency of incidental mortality and serious 
injury of marine mammals and to publish an annual list of fisheries by 
category (16 U.S.C. 1383a(b)).
    In 1994, the MMPA was amended to add sections 117 and 118 (16 
U.S.C. 1386 and 1387, respectively), which established the current U.S. 
standards governing the incidental take of marine mammals in commercial 
fisheries. These amendments established a new metric: Potential 
Biological Removal (PBR). PBR is defined 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'' (16 U.S.C. 1362(20)).
    With this change in the MMPA, incidental take authorizations and 
regulations to reduce incidental take in commercial fisheries became 
linked to PBR, which could be readily calculated for marine mammal 
stocks. The 1994 amendments reaffirmed the original goal of the MMPA to 
reduce the incidental mortality or serious injury of marine mammals in 
the course of commercial fishing operations to insignificant levels 
approaching zero. To more clearly delineate this goal, NMFS later 
issued regulations (50 CFR 229.2) to define this ``insignificance 
threshold'' as 10% of a stock's PBR level. Therefore, with these 
amendments, MMPA section 118(f)(2) sets two goals. The short-term goal 
is to reduce and maintain incidental mortality and serious injury below 
the PBR of a stock. The long-term goal is to reduce incidental 
mortality and serious injury ``to insignificant levels approaching a 
zero mortality and serious injury rate'' (i.e., 10% of a stock's PBR 
level).
    The 1994 amendments to the MMPA maintained the requirement for 
categorizing commercial fisheries into three groups based on frequency 
of interactions with marine mammals (16 U.S.C. 1387(c)(1)). Category I 
includes fisheries that have frequent incidental mortality and serious 
injury of marine mammals. Category II includes fisheries that have 
occasional incidental mortality and serious injury of marine mammals. 
Category III includes fisheries that have a remote likelihood of, or no 
known, incidental mortality and serious injury of marine mammals. 
Numerical criteria for placing fisheries into these categories were 
eventually developed using the PBR standard (50 CFR 229.2).
    Today, sections 117 and 118 of the MMPA comprise the U.S. standards 
for regulating incidental mortality and serious injury in domestic 
commercial fisheries, including (1) evaluating marine mammal stock 
status; (2) evaluating the levels of incidental mortality and serious 
injury in commercial fisheries by placing observers on vessels, 
reporting requirements, and other means; (3) developing take reduction 
plans and regulations to reduce incidental mortality and serious injury 
of marine mammals below each stock's PBR level and, ultimately, to 
insignificant levels approaching zero mortality and serious injury 
rate, following consultation with stakeholder-based take reduction 
teams; and (4) implementing emergency regulations when necessary. 
However, regulations implementing the MMPA's import provisions at 
section 101(a)(2) were never modified to codify these new U.S. 
standards. Instead the regulatory focus was narrowed to govern imports 
of yellowfin tuna and fish products caught with driftnets.

Petition

    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/docs/swordfish_petition_l-4.pdf. Copies

[[Page 48174]]

of this petition may also be obtained by contacting NMFS [see 
ADDRESSES].
    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).
    Although the petition requested specific action regarding imports 
of swordfish and swordfish products, the import provisions of the MMPA 
apply more broadly to imports from other foreign fisheries that use 
``commercial fishing technology which results in the incidental kill or 
incidental serious injury of ocean mammals in excess of U.S. 
standards.'' Additionally, on October 5, 2011, and on March 13, 2012, 
NOAA 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 which is prohibited under the MMPA sections 101(a)(2), 102(c)(3) 
for international fisheries, and 118(a)(5) for domestic fisheries. NOAA 
decided that the proposed rule would be broader in scope than the 2008 
petition and is not limited in application to swordfish fisheries.

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

    NMFS is proposing to amend 50 CFR 216.24 to add a new section to 
establish procedures and conditions for evaluating a harvesting 
nation's regulatory program for reducing 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. However, it is not proposing to amend any other section within 
50 CFR 216.24, including the regulations on importing fish products 
taken in high seas driftnet fisheries or in eastern tropical Pacific 
yellowfin tuna purse seine fisheries. Dolphin (family Delphinidae) 
incidental mortality and serious injury in eastern tropical Pacific 
yellowfin tuna purse seine fisheries are covered by section 
101(a)(2)(B) and Title III of the MMPA (16 U.S.C. 1371(a)(2)(B) and 16 
U.S.C. 1411-1417), implemented in 50 CFR 216.24(a)-(g), and are not 
addressed in this proposed rule. Likewise, section 101(a)(2)(F) (16 
U.S.C. 1371(a)(2)(F)) of the MMPA and its implementing regulations 
cover marine mammal incidental mortality and serious injury from high 
seas driftnet fisheries and are not addressed in this proposed rule.
    To implement section 101(a)(2) and 102(c)(3) of the MMPA, NMFS is 
proposing a procedural approach similar to the regulations implementing 
the affirmative finding process for importing yellowfin tuna caught 
with purse seine vessels in the eastern tropical Pacific Ocean (51 FR 
28963, August 13, 1986). Section 101(a)(2) of the MMPA only pertains to 
incidental serious injury and mortality to marine mammals from 
commercial fishing operations that export the fish product to the 
United States and does not apply to a foreign nation's non-exporting 
fisheries or other sources of non-fishery human-caused incidental 
mortality and serious injury of marine mammals.
    Consistent with this approach, NMFS is proposing to define ``Fish 
and Fish Products'' for the purposes of this proposed rule 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 does not include fish oil, slurry, sauces, sticks, 
balls, cakes, and pudding and other similar highly processed fish 
products. NMFS is proposing to exclude fish oil, slurry, sauces, 
sticks, balls, cakes, pudding and other similar highly processed fish 
products from the requirements of the proposed rule as these represent 
processed product which cannot be tracked back to one species of fish 
or a specific commercial fishing operation. Instead NMFS will track 
Harmonized Tariff Schedule (HTS) codes (http://www.usitc.gov/publications/docs/tata/hts/bychapter/1401c16_0.pdf) which correspond to 
whole fish or processed fish which can be identified to a species. 
Examples included under this definition: Crabmeat in airtight 
containers, lobster products, bonito, yellowtail, pollock, mackerel, 
tunas, among others.
    NMFS is also proposing to define ``harvesting nation'' as the 
country under whose flag or 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 to be imported into the United States, 
regardless of any intervening transshipments, exports or re-exports. By 
this definition NMFS clarifies that the government or ``harvesting 
nation'' is the sovereign nation responsible for regulating its exempt 
and export fisheries, providing all necessary documentation proposed to 
be required by this rule and consulting with the Assistant 
Administrator on the subject fisheries. A harvesting nation's exempt 
and export fisheries include commercial fishing operations from a 
nation's flag vessels conducted on the high seas and in another coastal 
state's exclusive economic zone (EEZ), and all vessels, persons, and 
operations within a nation's EEZ and territorial sea.

Overview of the Proposed Process

    This section provides an overview of the proposed process for 
implementing MMPA sections 101(a)(2)(A) and 102(c)(3). Each step is 
discussed in more detail in subsequent sections of this rule. 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 section entitled ``List 
of Foreign Fisheries'' for definitions of exempt and export fisheries).
    NMFS will publish in the Federal Register a list of harvesting 
nations, their fisheries, and their classifications as a List of 
Foreign Fisheries. 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.
    NMFS will allow a one-time only, initial five-year exemption 
period, similar to the Interim Exemption for domestic fisheries, 
commencing from the effective date of the final rule implementing these 
regulations. During the exemption period, the prohibitions of this rule 
will not apply with respect to imports from the harvesting nation. This 
exemption period is necessary to allow harvesting nations sufficient 
time to develop regulatory programs to comply with the requirements to 
obtain a comparability finding, which are described below. By the end 
of the exemption period and every four years thereafter, a harvesting 
nation must

[[Page 48175]]

have applied for and received a comparability finding for its fisheries 
in order for fish and fish products from those fisheries to be imported 
into the United States. Fish and fish products from fisheries that fail 
to receive a comparability finding may not be imported into the United 
States. After the conclusion of the one-time exemption period, any 
harvesting nation or fishery that has not previously exported to the 
United States would be granted a provisional comparability finding not 
to exceed 12 months. Prior to the expiration of that 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 to export to the United States after the 
expiration of the provisional comparability finding.
    To receive a comparability finding for a fishery operating within 
the harvesting nation's exclusive economic zone (EEZ) and territorial 
sea, 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 an exempt and export 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 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 at 16 U.S.C. 1386 and 
1387, and also includes other regulatory requirements under the MMPA 
that regulate interactions of commercial fishing with marine mammals. 
The regulations implementing these provisions constitute the U.S. 
regulatory program. The conditions that constitute a harvesting 
nation's regulatory program for the Assistant Administrator to find it 
comparable in effectiveness to the U.S. regulatory program are 
discussed below in more detail, including the conditions for harvesting 
nations with fisheries operating on the high seas and in another 
coastal state.
    NMFS is not proposing to require that a harvesting nation match 
every aspect of the U.S. regulatory program to obtain a comparability 
finding for an export fishery. Instead, the conditions allow for 
flexibility in granting a comparability finding to programs that 
effectively achieve comparable results to the U.S. regulatory program 
even where they use different mechanisms to do so.
    In the event that an exempt or export fishery fails to receive a 
comparability finding from the Assistant Administrator, importation of 
fish and fish products from that fishery into the United States will be 
prohibited under sections 101(a)(2) or 102(c)(3) of the MMPA until the 
harvesting nation reapplies and receives a comparability finding for 
that fishery.
    Throughout this process, NMFS will engage in consultations with 
harvesting nations. Contingent on annual appropriations, NMFS may work 
with harvesting nations to assist with the design of marine mammal 
assessments and incidental mortality and serious injury mitigation 
programs.
    To review the ongoing progress in the development and 
implementation of the harvesting nation's regulatory program for its 
export fisheries, NMFS will require progress reports every four years. 
The proposed rule also contains provisions regarding intermediary 
nations. For an intermediary nation to export fish and fish products to 
the United States, the proposed rule calls for any intermediary nation 
to demonstrate that it does not import, or does not offer for import 
into the United States, fish or fish products subject to an import 
prohibition; or it has procedures to reliably certify that exports of 
fish and fish products from the intermediary to the United States do 
not contain fish or fish products caught or harvested in a fishery 
subject to an import prohibition. In the event that fish and fish 
products from a fishery are prohibited, NMFS has included provisions 
for an individual shipment certification of admissibility that will 
allow the importation of similar fish and fish products from a 
harvesting nation's fisheries that received comparability findings.

List of Foreign Fisheries--Initial Identification and Classification

    NMFS proposes to classify foreign commercial fishing operations 
exporting fish and fish products to the United States as either an 
``exempt fishery'' or ``export fishery'' based on the reliable 
information provided by the harvesting nation.
    NMFS defines ``exempt fishery'' as 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 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.
    Exempt fisheries are considered to be equivalent to Category III 
fisheries because the impact of these fisheries on marine mammals is 
remote. Commercial fishing operations that NMFS determines meet the 
definition of an exempt fishery would still be required to obtain a 
comparability finding by having the harvesting nation demonstrate that 
it has either prohibited the intentional mortality or serious injury of 
marine mammals in the course of commercial fishing operations in these 
exempt 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; or that it has procedures to 
reliably certify

[[Page 48176]]

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. Exempt fisheries would not have to meet the 
comparability finding requirement to have a regulatory program for 
incidental mortality and serious injury comparable in effectiveness to 
the U.S. regulatory program.
    NMFS defines ``export fishery'' as 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 paragraph (h)(3) of this 
section 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.
    Export fisheries would be considered to be the functional 
equivalent to Category I or II fisheries under the U.S. regulatory 
program (see definitions at 50 CFR 229.2). Fisheries that NMFS 
determines have more than a remote likelihood of incidental mortality 
and serious injury of marine mammals, or for which there is a lack of 
reliable information that they have no or a remote likelihood of 
incidental mortality and serious injury to marine mammals, will be 
classified as export fisheries. Because the United States focuses its 
incidental mortality and serious injury assessment efforts on Category 
I and II fisheries (which are domestic fisheries where the likelihood 
of incidental mortality and serious injury is more than remote) NMFS 
proposes that the regulatory requirements of this proposed rule apply 
to export fisheries.
    Within the first year of the effective date of the final rule 
implementing sections 101(a)(2) and 102(c)(3) of the MMPA, NMFS would 
produce a proposed and final List of Foreign Fisheries. To develop this 
list, NMFS would analyze imports of fish and fish products and identify 
harvesting nations with fisheries exporting such fish and fish products 
to the United States that are likely harvested with gear (e.g., 
gillnets, longlines, trawls, traps/pots, purse seines) or methods that 
have or may have incidental mortality or serious injury of marine 
mammals in the course of their commercial fishing operations. NMFS 
would notify each harvesting nation that has such fisheries 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 and 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 would evaluate each harvesting nation's submission and 
request additional information from the harvesting nations, as 
necessary.
    If estimates of the total incidental mortality and serious injury 
are available and a bycatch limit has been calculated, NMFS will use 
the quantitative and tiered analysis to classify foreign commercial 
fishing operations as export or exempt fisheries under the category 
definition within 50 CFR 229.2 and the procedures used to categorize 
U.S. fisheries as Category I, II, or III, reflected at http://www.nmfs.noaa.gov/pr/interactions/lof/ lof/.
    Initially, NMFS expects information on the frequency of 
interactions in most foreign fisheries to be lacking or incomplete. In 
the absence of quantifiable information or reliable information from 
the harvesting nation, NMFS would classify fisheries by analogy with 
similar U.S. fisheries and gear types interacting with similar marine 
mammal stocks using readily available information or available observer 
or logbook information per the procedures outlined in 50 CFR 229.2. 
Where no analogous fishery or fishery information exists, NMFS would 
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 is readily available to the 
Assistant Administrator.
    NMFS is proposing this approach since it follows the U.S. domestic 
program's implementation. In situations where no information exists for 
a domestic fishery, MMPA regulations direct NMFS to place the fishery 
into Category II, because the MMPA provides the authority to place 
observers on vessels participating in Category II fisheries to collect 
information, evaluate risk to the marine mammal stock, and to properly 
categorize the fishery (50 CFR 229.2 and 229.7(d)). The MMPA requires 
that a harvesting nation provide the reasonable proof necessary for the 
United States to determine the ``effects on ocean mammals of the 
commercial fishing technology.'' Because harvesting nations are not 
required for exempt fisheries to implement a regulatory program 
governing the incidental mortality and serious injury of marine mammals 
in the course of commercial fishing operations that is comparable in 
effectiveness to the U.S. regulatory program or, by extension, to 
report or estimate incidental mortality and serious injury for the 
fishery, fisheries lacking reliable information of their level of 
incidental mortality and serious injury must be classified as an export 
fishery until such time as the nation can provide the reliable 
information required by the MMPA to classify the fishery or in the 
course of preparing the List of Foreign Fisheries such information is 
readily available to the Assistant Administrator. If NMFS does

[[Page 48177]]

not follow this procedure, it cannot reasonably determine the ``effects 
on ocean mammals of the commercial fishing technology'' from a 
particular fishery. By including such data-poor commercial fishing 
operations as export fisheries, harvesting nations have an incentive to 
gather and provide to NMFS the reliable information necessary for NMFS 
to consider classifying the fishery as exempt. In comments on this 
proposed rule, NMFS encourages nations to include reliable information 
about their commercial fishing operations exporting fish and fish 
products to the United States, their frequency of marine mammal 
incidental mortality and serious injury, and any regulatory programs to 
reduce such mortality and serious injury. It is important that nations 
work closely with NMFS as soon as possible to provide the information 
necessary to classify their commercial fishing operations.
    The year prior to the expiration of the exemption period and every 
four years thereafter, NMFS proposes to re-evaluate foreign commercial 
fishing operations and publish a notice of the draft, 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. Fisheries wishing to commence exports of fish and 
fish products to the United States after publication of the Foreign 
List of Fisheries will be classified as export fisheries until the next 
List of Foreign Fisheries is published and will be provided a 
provisional comparability finding for a period not to exceed twelve 
months. If a harvesting nation can provide 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. The provisions for new 
entrants are discussed in more detail below.
    To classify fisheries, gather information to assist in making a 
comparability finding, or determine if a harvesting nation's fishery is 
still in compliance with the terms of a previously-issued comparability 
finding, NMFS may solicit information as part of the High Seas Drift 
Net Fishing Moratorium Protection Act (HSDFMPA) information 
solicitation and use information obtained from U.S. government 
agencies; harvesting nations; other foreign, regional, and local 
governments; regional fishery management organizations; nongovernmental 
organizations; industry organizations; academic institutions; and 
citizens and citizen groups to identify commercial fishing operations 
with intentional or incidental mortality and serious injury of marine 
mammals. Such information may include fishing vessel records; reports 
of on-board fishery observers; information from off-loading facilities, 
port-side government officials, enforcement agents, transshipment 
vessel workers and fish importers; government vessel registries; RFMO 
or intergovernmental agreement documents, reports, and statistical 
document programs; appropriate catch certification programs; and 
published literature and reports on commercial fishing operations with 
intentional or incidental mortality and serious injury of marine 
mammals.
    NMFS would publish the final List of Foreign Fisheries in the 
Federal Register. The List of Foreign Fisheries would be separate and 
different from the domestic List of Fisheries published annually in the 
Federal Register, pursuant to Section 118 of the MMPA (16 U.S.C. 
1387(c)(1)).
    The List of Foreign Fisheries would be organized by harvesting 
nation and other defining factors including geographic location of 
harvest, gear-type, target species or a combination thereof. For 
example, tuna fisheries in the western central Pacific could be 
designated as the western central Pacific yellowfin tuna purse seine 
fishery. The List of Foreign Fisheries would also include a list of 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. If available, the list 
would also 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 
actions it has taken to 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.

Consultations With Harvesting Nations

    The proposed rule includes several consultations that are specific 
to the comparability finding and those are outlined below. Three broad 
consultation areas are (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. Within ninety days of the date of publication of the final 
List of Foreign Fisheries in the Federal Register, NMFS, in 
consultation with the Department of State, would consult with the 
harvesting nations that export fish or fish products to the United 
States and provide them with the final List of Foreign Fisheries, 
relevant U.S. regulations, and applicable take reduction plan measures 
that relate to its exempt and export fisheries.
    NMFS would consult with harvesting nations throughout the exemption 
period and implementation of the program outlined in this rule. Given 
the number of nations, fisheries, and the range of exports, NMFS does 
not envision that all nations will need the same level of 
consultations. The exact nature and extent of these consultations are 
discretionary for NMFS and is a mechanism through which the United 
States could potentially assist a harvesting nation's needs for 
information and technical expertise. NMFS, in consultation with the 
Department of State, would, when necessary or upon request by a 
harvesting nation, initiate bilateral discussions with the harvesting 
nation to, among other things:
     Communicate the provisions of the MMPA;
     Provide notifications of deadlines for reports or 
comparability finding applications;
     Discuss the development, adoption, implementation, or 
enforcement of the harvesting nation's regulatory program;
     Offer an opportunity to provide or supplement information 
on the implementation and enforcement of the harvesting nation's 
regulatory program in conjunction with an application, preliminary 
comparability finding, or reconsideration of a comparability finding; 
and
     Provide an opportunity for the harvesting nation to 
clarify, support, or refute information from other sources in 
conjunction with the List of Foreign Fisheries, the progress report or 
an application for a comparability finding.
    NMFS, in consultation with the Department of State and the Office 
of the United States Trade Representative, would notify harvesting 
nations with fisheries that are likely to fail to receive a 
comparability finding for a fishery and provide the harvesting nation 
with an opportunity to refute preliminary comparability findings, and 
communicate any corrective actions taken to comply with the conditions 
of a comparability finding. If a harvesting nation cannot refute 
preliminary

[[Page 48178]]

comparability findings, or communicate any corrective actions taken to 
comply with the comparability finding conditions, by the expiration of 
either the exemption period or an existing comparability determination, 
the fishery will not receive a comparability finding and will have to 
reapply. The Assistant Administrator would, in consultation with the 
Department of State and the Office of the United States Trade 
Representative, consult with harvesting nations that failed to receive 
a comparability finding for a fishery, provide the reasons for the 
denial of such comparability finding, and encourage the harvesting 
nation to take corrective action and reapply for a comparability 
finding.

Comparability Finding for Harvesting Nations' Fisheries

    Section 101(a)(2)(A) requires that the Assistant Administrator 
``insist on reasonable proof'' from harvesting nations as to the effect 
of its commercial fishing technology on marine mammals. As a condition 
to import fish and fish products into the United States, NMFS proposes 
to require that a harvesting nation apply for and receive a 
comparability finding for its fisheries. The first application for a 
comparability finding must be submitted by March 1st of the last year 
of the exemption period, and on March 1st every four years thereafter. 
To receive a comparability finding, a harvesting nation must submit an 
application, along with documentary evidence demonstrating that the 
harvesting nation's export or exempt fishery meets the requirements of 
a comparability finding 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 
from such nation to the United States. For the purposes of this 
proposed rule, documentary evidence means the submission to the 
Assistant Administrator by a responsible government official from a 
harvesting nation of information of sufficient detail, including an 
attestation that the information is accurate, to allow the Assistant 
Administrator to evaluate 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 for making a 
comparability finding. When making a comparability finding NMFS will 
rely largely on the documentary evidence provided by the harvesting 
nation; however, NOAA will also consider information from other readily 
available sources. Where information from the harvesting nation is 
insufficient, NOAA will draw reasonable conclusions based on 
information from other sources, including analogous fisheries. For 
example, where a harvesting nation does not provide sufficient relevant 
information for a fishery and information from other sources of direct 
evidence regarding the fishery is not readily available to NOAA, the 
Assistant Administrator shall draw reasonable conclusions based on 
other information, such as indirect evidence of bycatch in the fishery 
or information from analogous fisheries (e.g. fisheries that use 
similar gear type or operate under similar conditions as the fishery at 
issue). In addition, all agency decisions under this rule must comply 
with the Administrative Procedure Act (5 U.S.C. 500 et seq.), including 
the relevant requirements prohibiting arbitrary and capricious 
decisionmaking.
    The comparability finding has two parts. The first part requires 
the harvesting nation to demonstrate that it has either prohibited the 
intentional mortality or serious injury of marine mammals in the course 
of commercial fishing operations in an exempt and export 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. No later than November 30th of the year when the 
exemption period or comparability finding is to expire, NMFS would 
grant or renew the comparability finding for exempt fisheries should 
they meet this condition, export fisheries must meet this and other 
conditions, discussed below.
    The prohibition of intentional killing or seriously injuring a 
marine mammal is one of the U.S. standards within the MMPA (16 U.S.C. 
1387(a)(5) and 16 U.S.C. 1372(c)(3)). The United States prohibits the 
intentional killing or injury of marine mammals in the course of all 
commercial fishing operations 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. Therefore, 
NMFS proposes that to receive a comparability finding, a harvesting 
nation must demonstrate for all exempt and export fisheries, whether 
such operations are within its EEZ, its territorial sea, the EEZ of 
another coastal state (excluding its territorial sea) or on the high 
seas, that it either prohibits the intentional killing or serious 
injury of marine mammals in the course of commercial fishing operations 
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. This prohibition includes aquaculture operations 
that interact with or occur in marine mammal habitat and the 
intentional killing of marine mammals for bait in commercial fishing 
operations. The application of the intentional lethal removal 
provisions of Section 120 of the MMPA (16 U.S.C. 1389) do not fall 
under this proposed rule as they are not undertaken in the course of 
commercial fishing.
    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. In the absence of this approach, a 
harvesting nation must submit documentary evidence that it has 
procedures, such as certification programs and tracking and 
verification schemes, 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.
    To receive a comparability finding for export fisheries, a 
harvesting nation must not only demonstrate that it meets the 
conditions related to intentional killing and serious injury of marine 
mammals in the course of commercial fisheries, it must also meet a 
second condition. The Assistant Administrator will grant or renew a 
comparability finding for an export fishery under the jurisdiction of a 
harvesting nation provided the harvesting nation has and, in the case 
of a renewal, maintains a regulatory program that is comparable in 
effectiveness to the U.S. regulatory program in reducing marine mammal 
incidental mortality and serious injury in commercial fishing 
operations, including for transboundary stocks, subject to the 
additional considerations for a comparability finding set out in the

[[Page 48179]]

section on ``Considerations for Comparability Finding Determinations''.
    Different conditions exist for the following areas of a harvesting 
nation's export fisheries: Export fisheries operating within the EEZ or 
territorial waters of the harvesting nation, export fisheries operating 
within the jurisdiction of another coastal state and export fisheries 
operating on the high seas. Each is discussed below. The proposed 
rule's consideration of these three different areas is comparable to 
the U.S. regulatory program governing U.S. domestic fisheries operating 
in these areas.
    In using the terms ``comparable in effectiveness'' NMFS means that 
the program includes the same conditions listed below or the 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 or a program that is completely 
different but achieves the same results.
    Since NMFS has developed regulatory measures for its domestic 
commercial fisheries with incidental mortality and serious injury of 
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 
proposed rule. In the proposed rule, NMFS defines a transboundary stock 
as a marine mammal stock occurring in the EEZ or territorial sea of the 
United States and one or more other coastal States, or in the EEZ or 
territorial sea of the United States and on the high seas. Because NMFS 
shares conservation and management for these stocks with other nations, 
a harvesting nation must 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 transboundary stocks, 
especially for transboundary stocks governed by specific requirements 
of the U.S. regulatory program, including take reduction plans.
    NMFS recognizes that harvesting nations face resource limitations. 
A harvesting nation can submit an application for a comparability 
finding for all or a subset of its export fisheries. In the proposed 
rule, the harvesting nation has the flexibility to prioritize the 
export fisheries to which it will devote resources towards developing 
its regulatory program. Export fisheries not included in the 
application and not governed by the harvesting nation's regulatory 
program will not receive a comparability finding and will be ineligible 
to export fish and fish products to the United States.
    NOAA seeks comment on alternative approaches for meeting the 
requirements of section 101(a)(2)of the MMPA. For example, the rule 
could operate on the basis of non-comparability findings. Under this 
alternative, the Assistant Administrator would issue non-comparability 
findings where it determines (considering documentary evidence and 
information from other sources that a harvesting nation's regulatory 
program is not comparable in effectiveness to the U.S. regulatory 
program and that the commercial fishing technology used in the fishery 
results in marine mammal bycatch in excess of U.S. standards. Under 
this alternative, continued entry of seafood into the U.S. would be 
predicated on the absence of a ``non-comparability finding,'' though 
the criteria could be similar to what is described in below, as 
applicable.
    A modification of this alternative would be for the Assistant 
Administrator to issue comparability findings unless it determines 
(considering documentary evidence and information from other sources) 
that a harvesting nation's regulatory program is not comparable in 
effectiveness to the U.S. regulatory program and that the commercial 
fishing technology used in the fishery results in marine mammal bycatch 
in excess of U.S. standards. The regulatory text would read as follows:

    ``Conditions for a Comparability Finding. In response to an 
application, the Assistant Administrator shall issue a harvesting 
nation a comparability finding for the fishery unless the Assistant 
Administrator finds that the harvesting nation has not met the 
applicable conditions set out in . . .)''

    Comments should discuss the relative costs and benefits of these or 
any other alternative approaches, including aspects related to 
paperwork burden.

Conditions for a Comparability Finding for an Export Fishery Operating 
Within a Harvesting Nation's EEZ or Territorial Sea

    A comparability finding would be granted or renewed for an export 
fishery where the Assistant Administrator finds that the harvesting 
nation implements a regulatory program comparable in effectiveness to 
the U.S. regulatory program with respect to the export fishery that 
includes, or effectively achieves comparable results as, the following 
conditions:
    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 an 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 for each export fishery;
    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: Bycatch reduction devices; incidental mortality and serious 
injury limits; careful release and safe-handling of marine mammals and 
gear removal; gear marking; bycatch avoidance gear (e.g., pingers); 
gear modifications or restrictions; or time-area closures.
    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) Does not exceed the bycatch limit for that stock or stocks; or
    (b) Exceeds the bycatch limit for that stock or stocks, but the 
portion of

[[Page 48180]]

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.
    NMFS is proposing that a harvesting nation calculate bycatch limits 
using either the PBR equation (50 CFR 229.2), or a comparable equation 
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. The scientific literature demonstrates other nations have 
adopted variations on PBR that are comparable and achieve this goal.
    For marine mammal stocks that have bycatch limits and the export 
fisheries that interact with those stocks, a harvesting nation that is 
seeking a comparability finding for an export fishery must demonstrate 
that the cumulative incidental mortality and serious injury of each 
marine mammal stock or stocks resulting from fishing technology used by 
the export fishery and any other export fisheries of the harvesting 
nation that interact with the same marine mammal stock or stocks does 
not exceed the bycatch limit for that stock or stocks. In instances 
where the cumulative incidental mortality and serious injury exceeds 
the bycatch limit for that stock or stocks, the harvesting nation must 
demonstrate 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 harvesting nation 
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 example, in the latter scenario, three export fisheries (A, B, 
and C) cumulatively exceed the bycatch limit of 30 animals for a 
particular marine mammal stock. If export fishery C's incidental 
mortality and serious injury is 5 animals, it would meet this condition 
to qualify for a comparability finding, if all three export fisheries 
each had the same level of incidental mortality and serious injury 
(i.e., 5 animals for a cumulative total of 15), bycatch would be below 
the bycatch limit of 30.
    In this situation, NMFS expects a harvesting nation will take 
measures to reduce the incidental mortality and serious injury by all 
of its export fisheries, but that it would prioritize and implement 
more stringent measures on export fisheries with the highest bycatch 
levels.
    To implement its regulatory program, generally, regardless of 
location, the harvesting nation may enter into arrangements with 
academic institutions, non-governmental bodies, or any other entity to 
conduct assessments, estimate incidental mortality and serious injury, 
test and implement mitigation measures, or carry out any other 
components of the regulatory program, so long as the harvesting nation 
maintains responsibility for the oversight, verification and reporting 
on the implementation of its regulatory program to the United States.
    A nation could receive a comparability finding for its export 
fishery without conducting a marine mammal stock assessment, estimating 
bycatch, or calculating a bycatch limit provided it can demonstrate 
that its program achieves comparable results to the U.S. regulatory 
program. NMFS will consider whether a regulatory program effectively 
achieves the outcomes of the U.S. regulatory program for similar marine 
mammal stocks and fisheries (considering gear type and target species), 
providing flexibility to allow a nation to develop comparably effective 
alternative measures to reduce incidental mortality and serious injury. 
Therefore, the Assistant Administrator may make a comparability finding 
based on alternative measures or approaches provided the harvesting 
nation's regulatory program effectively achieves comparable results to 
the U.S. regulatory program.

Conditions for a Comparability Finding for an Export Fishery Operating 
Within the Jurisdiction of Another Coastal State

    International law provides that coastal States have sovereign 
rights to manage fisheries in waters under their jurisdiction. More 
than ninety percent of the global fish catch is estimated to be taken 
within waters under the jurisdiction of coastal States. The large 
majority of fishing activity taking place in waters under the 
jurisdiction of most coastal States is undertaken by vessels registered 
in the coastal States themselves. In such situations, the coastal State 
is also the flag State and the harvesting nation. This scenario covers 
fishing vessels registered to a harvesting nation that operate with 
permission of another coastal State or fish under terms of access 
granted to them by the coastal State.
    The Assistant Administrator will grant or renew a comparability 
finding for an export fishery operating within the jurisdiction of 
another coastal state where the Assistant Administrator finds that the 
harvesting nation maintains a regulatory program that includes, or 
effectively achieves comparable results as, the following conditions:
    1. Implementation in the export fishery:
    (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 that transboundary stock; and
    (b) With respect to any other marine mammal stocks interacting with 
the export fishery while operating within the jurisdiction of the 
coastal state or 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.
    2. For an export fishery not subject to management by a regional 
fishery management organization the harvesting nation:
    (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 coastal 
state; 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 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.
    3. For an export fishery subject to management by a regional 
fishery management organization, the harvesting nation demonstrates it

[[Page 48181]]

applies a regulatory program comparable in effectiveness to the United 
States regulatory program, which includes implementing marine mammal 
data collection and conservation and management measures applicable to 
that fishery required under an applicable intergovernmental agreement 
or regional fisheries management organization to which the United 
States is a party.

Conditions for a Comparability Finding for an Export Fishery Operating 
on the High Seas

    For export fisheries operating on the high seas, the Assistant 
Administrator would grant or renew a comparability finding where the 
Assistant Administrator finds that the harvesting nation maintains a 
regulatory program with respect to the harvesting nation's export 
fisheries operating on the high seas that includes, or effectively 
achieves comparable results as, the following conditions:
    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 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.
    An export fishery must satisfy the appropriate condition to receive 
a comparability finding. For example, for high seas export fisheries or 
export fisheries operating within another coastal state's EEZ and 
governed by an RFMO, the proposed rule includes as a condition for a 
comparability finding that the harvesting nation has adopted and 
implemented data collection and conservation and management measures 
required under an applicable intergovernmental agreement or RFMO to 
which the United States is a party. By taking this approach NMFS 
recognizes, where the United States is a party to a multilateral 
agreement, the measures adopted under that agreement should be used 
among other factors to assess those export fisheries.
    These provisions also provide an alternative route to receiving a 
comparability finding, including in circumstances when the export 
fishery is governed by an intergovernmental agreement or RFMO to which 
the United States is not a party. In this situation, NMFS will evaluate 
any conservation and management measures adopted by the 
intergovernmental agreement or RFMO and 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.
    This provision also addresses situations where the United States 
has adopted measures through a 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 attempt to advance such measures for adoption by the 
intergovernmental agreement or RFMO, there may be situations where the 
measures are not adopted by the RFMO. In that case, 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 on 
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.

Considerations for Comparability Finding Determinations

    When determining whether to grant or renew any comparability 
finding for a fishery, the Assistant Administrator would review and 
evaluate information submitted by the harvesting nation in making its 
application for each fishery, and consider readily available 
information from other sources, on the extent of the harvesting 
nation's implementation of its regulatory program in the export fishery 
and progress toward reducing the total incidental mortality and serious 
injury of marine mammals in the export fishery to levels below the 
bycatch limit. This information could include data readily available to 
the U.S. Government as well as information made available by other 
nations, international organizations (such as RFMOs), institutions, 
bilateral or other arrangements, or non-governmental organizations.
    When determining whether a harvesting nation's regulatory program 
is comparable in effectiveness to the U.S. regulatory program, NMFS 
will consider:
     U.S. implementation of its regulatory program for similar 
marine mammal stocks and similar fisheries (considering gear, target 
species, or other factors), including transboundary stocks governed by 
regulations implementing a take reduction plan, and any other relevant 
information received during consultations;
     The extent to which the harvesting nation has implemented 
measures in the export fishery to reduce the total incidental mortality 
and serious injury of a marine mammal stock below the bycatch limit;
     The effectiveness of such measures, based on evidence that 
such measures implemented in an export fishery have reduced or are 
progressing and likely to reduce the cumulative incidental mortality 
and serious injury of a marine mammal stock below the bycatch limit, 
especially for the marine mammal stocks interacting with an export 
fishery with the greatest contribution to the incidental mortality and 
serious injury;
     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 
exceeds the bycatch limit for a marine mammal stock, the population 
size and trend (particularly for declining stocks), and the estimated 
population level impacts of the incidental mortality and serious injury 
of marine mammals in a harvesting nation's export fisheries and the 
conservation status of the marine mammal stocks where available;
     The record of consultations with the harvesting nation, 
the results of these consultations and actions taken by the harvesting 
nation and any applicable intergovernmental agreement or RFMO to reduce 
the incidental mortality and serious injury of marine mammals in its 
export fisheries; and
     Information gathered during onsite inspection by any 
government official of

[[Page 48182]]

an export fishery's operations and any relevant information received 
during consultations.
    For export fisheries operating on the high seas covered by an 
intergovernmental agreement or RFMO to which the United States is a 
party, NMFS will consider among other things:
     The harvesting nation's record of implementation of or 
compliance with measures adopted by that RFMO 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 the organization; and
     The record of the United States in implementing or 
complying with such measures and whether it has imposed additional 
measures on its fleet not required by the RFMO or intergovernmental 
agreement.
    With regard to export fisheries operating on the high seas, under 
an intergovernmental agreement or RFMO to which the United States is 
not a party NMFS will consider, among other things:
     The harvesting nation's record of implementation of, or 
compliance with, measures adopted by that RFMO or intergovernmental 
agreement for data collection, incidental mortality and serious injury 
mitigation, or for the conservation and management of marine mammals, 
and whether such measures are comparable in effectiveness to the U.S. 
regulatory program for similar fisheries;
     Whether the harvesting nation is a party or cooperating 
non-party to the organization; and
     The effectiveness of any additional measures implemented 
by the harvesting nation to reduce or mitigate the incidental mortality 
and serious injury of marine mammals in these export fisheries, and 
whether such measures are comparable in effectiveness to the U.S. 
regulatory program for similar fisheries.
    For transboundary stocks incidentally killed or seriously injured 
in a high seas export fishery, NMFS will also consider the extent to 
which the harvesting nation has adopted and implemented a regulatory 
program, including measures to reduce the incidental mortality or 
serious injury of transboundary stocks in export fisheries operating on 
the high seas and within its EEZ or territorial sea, that is comparable 
in effectiveness to the U.S. regulatory program governing similar U.S. 
fisheries.
    NMFS would make comparability findings pursuant to the MMPA, and 
also considering U.S. regulations implementing our obligations under 
RFMOs, intergovernmental agreements, trade agreements. NMFS will make 
determinations and any resulting imposition of import restrictions 
consistent with the international obligations of the United States, 
including under the WTO Agreement pertaining to non-discrimination.
    In this regard, where NMFS lacks data and PBR calculations for 
analogous U.S. fisheries, NMFS would not require foreign nations to 
have such data or calculations as a condition for a comparability 
finding. In addition, where analogous U.S. fisheries have not reduced 
bycatch below an established bycatch limit, NMFS will evaluate the 
measures harvesting nations have adopted and determine whether those 
measures are at least as comparable in effectiveness to the U.S. 
regulatory program in reducing marine mammal bycatch.
    Finally NMFS is interested in receiving comments on the extent to 
which these additional considerations should also apply to exempt 
fisheries.

Issuance or Denial of a Comparability Finding

    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 and 
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 of such comparability finding; 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.
    Notification is the action whereby the decision is made. For a 
fishery that applied for and is unlikely to receive a comparability 
finding, NMFS will implement a preliminary comparability finding 
consultation. Specifically, for a fishery that applied for and is 
unlikely to receive a comparability finding NMFS, in consultation with 
the Secretary of State and the United States Trade Representative, 
would 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, or terminating an existing 
comparability finding, and provide the harvesting nation with an 
opportunity to submit reliable information to refute the preliminary 
denial or termination of the comparability findings, and communicate 
any corrective actions taken since submission of its application to 
comply with the comparability finding conditions. If a harvesting 
nation does not take corrective action by the time the Assistant 
Administrator has made all comparability findings and will issue such 
findings in writing to the harvesting nation and publish them in the 
Federal Register, the fishery will not receive a comparability finding 
and will have to reapply for a comparability finding. NMFS would take 
the information received and the results of such consultations into 
consideration in finalizing its comparability findings or when making 
subsequent comparability findings for that harvesting nation's 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 that receive a comparability finding, such 
finding will remain valid for 4 years or for such other period as the 
Assistant Administrator may specify to keep it on the same renewal 
cycle, particularly if the comparability finding was issued as part of 
a reapplication following a denied or terminated comparability finding 
or was an application for a new export fishery proposed after a round 
of comparability findings. NMFS prefers to keep all nations on the same 
cycle. Thus if a harvesting nation is denied a comparability finding 
for an export fishery and reapplies mid-cycle and receives a 
comparability finding for that fishery, the duration may be less to 
bring it into a cycle with all other comparability findings. Likewise 
this language also allows NMFS to issue a comparability finding for 
less than four years to a fishery that was on the cusp of denial but 
would benefit from additional time to demonstrate that its regulatory 
program is comparable in effectiveness.

[[Page 48183]]

    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 by providing documentary evidence of 
any alternative measures they implemented to reduce the incidental 
mortality and serious injury of marine mammals in their export fishery 
are comparable in effectiveness and achieve comparable results to the 
U.S. regulatory program. The Assistant Administrator may require 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 this 
renewal process, the procedures detailed below to implement import 
restrictions would be followed.

Procedures for a Comparability Finding for New Foreign Commercial 
Fishing Operations Wishing To Export to the United States

    For foreign commercial fishing operations not on the List of 
Foreign Fisheries that are 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. Upon notification the Assistant Administrator shall 
issue a provisional comparability finding allowing such imports for a 
period not to exceed 12 months. 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 the section to categorize foreign fisheries 
and the application and the documentary evidence required to receive a 
comparability finding, 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 to the United States.
    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 and determine whether to issue the harvesting 
nation a comparability finding for the fishery.
    If the harvesting nation submits the reliable information specified 
to classify the fishery 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.

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 requirements of these regulations are no 
longer being met. 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 the 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 
requirements of these regulations. 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 
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.

Duration of Import Restrictions and Removal of Import Restrictions

    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 would identify and 
prohibit importation of fish and fish products from that fishery into 
the United States until the harvesting nation's fishery applies or 
reapplies for, and receives, a comparability finding. The Assistant 
Administrator, in cooperation with the Secretaries of the Treasury and 
Homeland Security, will publish a notice of such import restrictions in 
the Federal Register announcing the comparability finding 
determinations (referenced above). The import restrictions would become 
effective thirty days after the date of publication in the Federal 
Register allowing sufficient time for implementation of such 
restrictions and disposition of any product currently in warehouses or 
in transit.
    NMFS, in consultation with the Department of State and the Office 
of the United States Trade Representative, would consult with 
harvesting nations that failed to receive a comparability finding for a 
fishery, provide the reasons for the denial of such comparability 
finding, and encourage the harvesting nation to take corrective action 
and reapply for a comparability finding.
    Any harvesting nation's fishery that fails to attain a 
comparability finding would remain subject to import prohibitions until 
it has satisfactorily met the conditions for and received a 
comparability finding. A harvesting nation may, at any time, re-apply 
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, would 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 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.
    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. 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 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.
    For each shipment, the certification of admissibility must be 
completed and signed by a duly authorized official or agent of the 
harvesting nation and validated by a responsible official(s)

[[Page 48184]]

designated by the Assistant Administrator. The certification must also 
be signed by the importer of record and submitted in a format 
(electronic mail, facsimile [fax], the Internet, etc.) specified by the 
Assistant Administrator. NMFS proposes to modify the certification of 
admissibility developed under the HSDFMPA and the Shark Conservation 
Act of 2010 to add a designation on the certification of admissibility 
stating that the fish or fish products are from a fishery or nation 
that are not subject to an import restriction of the United States 
under the MMPA.
    Should import prohibitions be imposed due to denial or revocation 
of a comparability finding, NMFS will identify to Customs and Border 
Protection the specific HTS codes for fish and fish products subject to 
embargo from the relevant harvesting nation. If the fish and fish 
products subject to an import prohibition also originate from a 
different fishery of the same harvesting nation, and that different 
fishery is exempt or has been issued a comparability finding, these 
products may be subject to requirement for a certification of 
admissibility whereby such products would be admissible to the U.S. if 
accompanied by a certification of admissibility that they were not 
harvested in the fishery subject to the embargo. The certification of 
admissibility must be properly completed and signed by a duly 
authorized official or agent of the harvesting nation. At the time of 
implementing an import prohibition, NMFS will communicate the scope of 
the prohibition to the harvesting nation and, should it be the case 
that the identified fish and fish products may also originate from a 
fishery of the harvesting nation other than the fishery subject to 
embargo, NMFS would work with the harvesting nation to define an 
acceptable protocol for certification of the identified fish and fish 
products from the harvesting nation's non-embargoed fisheries and 
obtain a list of duly authorized officials designated by the harvesting 
nation as well as details of the methods to be implemented by the 
harvesting nation to ensure that certifications are not issued for 
products of prohibited fisheries. The certification would be required 
for all inbound shipments of the identified products (designated by HTS 
codes) from the harvesting nation. While the certification must be 
properly completed and signed as a condition of entry, NMFS will also 
validate the certifications to ensure that prohibited products are not 
admitted. NMFS will designate validating authorities (e.g., NMFS or 
other agency employees, contractors, accredited third party certifiers) 
and a protocol for validating the information provided by, or requested 
from, harvesting nations in support of certifications accompanying 
admitted shipments. Pre- and/or post-entry validations would be 
conducted using a risk-based approach and may involve random samples or 
specific screening and targeting criteria. Admitted products, later 
determined to be inadmissible by the validation process, could be 
subject to re-delivery orders and/or administrative sanctions against 
the importer.
    The certification of admissibility would be a requirement for 
lawful import for the fish and fish products identified by harmonized 
tariff codes communicated by NMFS to Customs and Border Protection 
(CBP). The certification would be collected as part of electronic entry 
filing through the Automated Commercial Environment/International Trade 
Data System (ACE/ITDS). It is envisioned that a limited number of data 
elements would be collected through the partner government agency 
message set as part of the entry/entry summary submission in ACE/ITDS. 
In addition, an image file of the certification document would be 
submitted at entry summary through the document imaging system 
maintained by CBP as part of ACE/ITDS.
    The NMFS approach to integrating its existing trade monitoring 
programs into ACE/ITDS is to be addressed in a separate rulemaking that 
is currently under development (RIN 0648-AX63). When the 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) (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 Task Force 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.

Intermediary Nations

    To prevent any fish or fish products subject to import prohibitions 
authorized by this rulemaking from being imported into the United 
States from any intermediary nation, including a processing nation, 
NMFS proposes provisions for intermediary nations. A fishery without a 
comparability finding may still export its fish and fish products to an 
intermediary nation. That intermediary nation from which fish and fish 
products would be imported into the United States must in turn certify 
that it exports do not include fish and fish products from a harvesting 
nation's fisheries that are subject to U.S. import prohibitions applied 
under this rule. To implement this provision, NMFS would not require an 
intermediary nation to enact laws or regulations to meet this 
condition. NMFS recognizes that an intermediary nation needs 
flexibility to determine how it will certify to the United States that 
any fish or fish product that it exports is not subject to import 
prohibitions applied under this rule. The proposed rule creates 
flexibility with respect to how a nation can show that it does not 
export prohibited fish and fish products to the United States, 
including by providing any certification, traceability, or tracking 
scheme that may be readily available or that it chooses to create. The 
nation must demonstrate that it has procedures to reliably certify that 
exports of fish and fish products from the intermediary to the United 
States do not contain 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. They could 
include 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.
    For purposes of this proposed rule, 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 custom jurisdiction and enters the custom 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. 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 nation.

[[Page 48185]]

    Within 30 days of publication of the Federal Register specifying 
fish and fish products subject to import prohibitions, the Assistant 
Administrator shall, based on readily-available information, identify 
nations that may import, and re-export to the United States, fish and 
fish products from a fishery subject to an import prohibition and 
notify such nations in writing that they are subject to action with 
respect to the fish and fish products for which the Assistant 
Administer identified them.
    Within 60 days from the date of notification, a nation 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; or
    (2) Has procedures to reliably certify that exports of fish and 
fish products from the intermediary to the United States do not contain 
fish or fish products caught or harvested in a fishery subject to an 
import prohibition.
    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; 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 of fish 
or fish products caught or harvested in a fishery subject to an import 
prohibition and for which it was notified.
    No later than 120 days after a notification, the Assistant 
Administrator will review the certification and documentary evidence 
provided by the intermediary nation and determine based on that 
information or other readily available information whether the 
intermediary nation imports 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 to the United States do not contain fish or fish products 
subject to import prohibitions, and notify the intermediary nation of 
its determination.
    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 to the United States do 
not contain fish or fish products caught or harvested in a fishery 
subject to an import prohibition, 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 
that 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 and for which it was 
notified may not be imported into the United States.
    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. 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.
    In response to the recommendations of the Presidential Task Force 
on Combatting Illegal, Unreported and Unregulated Fishing and Seafood 
Fraud (79 FR 75536; December 18, 2014), relevant U.S. government 
agencies are considering the scope of a seafood traceability scheme to 
prevent unlawfully acquired or fraudulently represented fish products 
from infiltrating the legitimate supply chain. It is envisioned that 
such a scheme would collect information on the origin of seafood 
products and the fishery in which such seafood is caught or harvested 
when such products are offered for entry into U.S. commerce. The 
National Ocean Council Committee on IUU Fishing and Seafood Fraud (NOC 
Committee) is seeking public input on the minimum types of information 
necessary for an effective seafood traceability program to combat IUU 
fishing and seafood fraud, as well as the operational standards related 
to collecting, verifying and securing that data. The Federal Register 
notice (80 FR 37601; July 1, 2015), seeks comments on the basic 
information that may be collected as part of the electronic entry 
filing through ACE/ITDS including:
     Who harvested or produced the fish, including name of 
harvesting vessel; flag state of harvesting vessel; name of farm or 
aquaculture facility; name of processor; and type of fishing gear.
     What fish was harvested and processed, including species 
of fish; product description; name of product; form of the product; and 
quantity and/or weight of the product.
     Where and when was the fish harvested and landed, 
including area of wild-capture or aquaculture harvest; harvest date(s); 
name and location of aquaculture facility; point of first landing; date 
of first landing.
    Such information would be required for products exported directly 
from the harvesting nation, and also when exported from intermediary 
nations. NMFS is participating in the implementation of the 
Presidential Task Force's recommendations and will work to ensure that 
the Task Force's recommendations and this rule are implemented in a 
manner so as to avoid duplicative requirements. NMFS will also work 
with harvesting and intermediary nations to specify the data elements 
that must be collected and reported, and the interoperability standards 
for data management systems to ensure that the required data are 
available to entry filers at the point of import into U.S. commerce. 
Such a traceability scheme would also facilitate the certification 
options for intermediary nations, in addition to certificates of 
admissibility for harvesting nations, as envisioned by this proposed 
rule.

Progress Report

    The Assistant Administrator would require each harvesting nation to 
submit a progress report. The first report would 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 
would 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. 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. 
NMFS is seeking comment on the utility of the progress report and an 
alternative that, after the first progress report, would only require 
subsequent progress reports for those fisheries denied a comparability 
finding or for which a comparability finding has been terminated and 
wish to reapply.

[[Page 48186]]

    This progress report should describe in 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.

International Cooperation and Assistance

    Consistent with existing authority under the MMPA (16 U.S.C 1378), 
and subject to the availability of funds, NMFS may provide assistance 
to harvesting nations whose export fisheries NMFS has identified for 
assistance based on information in the List of Foreign Fisheries, 
comparability finding applications, progress reports, and to harvesting 
nations whose financial capacity to establish a comparable regulatory 
program is limited. To prioritize its capacity building efforts, NMFS 
may consider the needs of harvesting nations and the potential impacts 
of those nations' fisheries, based on: (1) Frequent incidental 
mortality and serious injury of marine mammals, (2) incidental 
mortality and serious injury in excess of a bycatch limit, if known; 
and (3) incidental mortality and serious injury of a threatened or 
endangered species listed under the Endangered Species Act (ESA). NMFS 
may also consider the extent to which a harvesting nation has programs 
or the capacity to assess marine mammal stocks and estimate or mitigate 
marine mammal incidental mortality and serious injury. 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.
    Participating in the U.S. cooperation and assistance program is 
voluntary and would not determine whether a harvesting nation is issued 
a comparability finding. Likewise, NMFS' funds are limited and likely 
will be insufficient to meet all requests for assistance. NMFS' 
inability to provide requested assistance does not relieve a harvesting 
nation from the requirement to meet the conditions set forth in this 
proposed rule in order to obtain a comparability finding for an export 
fishery.

Coordination With Other Consultation Processes

    NMFS would utilize, as appropriate, existing programs and processes 
to conduct outreach to potentially affected nations, including the 
consultation process of the HSDFMPA (50 CFR 300.200 et seq.), for 
addressing the bycatch of protected living marine resources incidental 
to commercial fisheries. While the applicability of sections 101(a)(2) 
and 102(c)(3) of the MMPA is broader than the HSDFMPA, NMFS would use 
HSDFMPA consultative process to augment the efforts outlined elsewhere 
in this rule to seek information and conduct outreach to harvesting 
nations potentially affected by this proposed rule. NMFS would also 
discuss and address these issues through bilateral fisheries 
consultations, and other relevant bilateral dialogues with harvesting 
nations and through appropriate fora associated with intergovernmental 
agreements and RFMOs.

Advance Notice of Proposed Rulemaking

    NMFS published an ANPR on April 30, 2010 (75 FR 22731) describing 
options to develop procedures for implementing MMPA provisions for 
imports of fish and fish products and defining U.S. standards. The ANPR 
identified nine potential options to implement section 101(a)(2) of the 
MMPA in response to the petition for rulemaking. NMFS sought public 
comment on the following options:
    Option 1: Marine mammal incidental mortality and serious injury 
(bycatch) in export fisheries is maintained at a level below PBR for 
impacted marine mammal stocks.
    Option 2: Marine mammal incidental mortality and serious injury in 
export fisheries have been reduced to insignificant levels approaching 
a zero mortality and serious injury rate to the extent feasible, taking 
into account different conditions.
    Option 3: Marine mammal incidental mortality and serious injury in 
export fisheries are maintained at levels below PBR or at levels 
comparable to those actually achieved in comparable U.S. fisheries, 
whichever is higher.
    Option 4: Marine mammal incidental mortality and serious injury in 
export fisheries either cause the depletion of a marine mammal stock 
below its optimum sustainable population or impede the ability of a 
depleted stock to recover to its optimum sustainable population.
    Option 5: Incidental mortality and serious injury in export 
fisheries have, or are likely to have, an immediate and significant 
adverse impact on a marine mammal stock (the trigger for issuing 
emergency regulations in U.S. commercial fisheries pursuant to section 
118 of the MMPA).
    Option 6: Incidental mortality and serious injury in export 
fisheries are likely to jeopardize the continued existence of any 
endangered or threatened marine mammal species or stock (the 
prohibitive standard of the ESA.
    Option 7: Incidental mortality and serious injury by export 
fisheries are likely to jeopardize the continued existence of any 
marine mammal species or stock regardless of whether it is ESA-listed 
as threatened or endangered.
    Option 8: Marine mammal incidental mortality and serious injury in 
a foreign nation's export fisheries are managed effectively by a 
relevant international fisheries or conservation organization or by the 
fishing nation itself.
    Option 9: Foreign nations that supply fish and fish product imports 
to the United States have implemented regulations to address marine 
mammal incidental mortality and serious injury in the nations' export 
fisheries that are comparable to regulations implemented by the United 
States, taking into account different conditions.
    NMFS received 42 comments from governmental entities, including the 
Marine Mammal Commission, individuals, and organizations. Comments 
received were compiled and are available on the Internet at http://www.regulations.gov under Docket ID NOAA-NMFS-2010-0098. Comments 
addressed both the proposed options and other topics.

Comments on the Proposed Options in the ANPR

Options 1 and 2

    Comment 1: Many of the comments supported options 1 or 2 or a 
combination of the two. One commenter stated that some U.S. fisheries 
have not met the requirements of options 1 and 2; and, thus, NMFS could 
not impose those standards on other countries.
    Response: NMFS has determined that because of a lack of data and 
PBR calculations for some marine mammal stocks in U.S waters, NMFS 
would adopt an approach that assesses whether a fishery has incidental 
marine mammal mortality and serious injury in excess of U.S. standards 
based on an evaluation of

[[Page 48187]]

whether foreign nations have adopted a regulatory program that is 
comparable in effectiveness to the U.S. regulatory program with respect 
to reducing incidental marine mammal bycatch mortality and serious 
injury, in particular by adopting a regulatory program with the same 
elements as the U.S. regulatory program or by adopting alternative 
measures that achieve comparable results. Therefore, where NMFS lacks 
data and PBR calculations for analogous U.S. fisheries, NMFS would not 
require foreign nations to have such data or calculations as a 
condition for a comparability finding. Rather, NMFS will be looking to 
see what measures harvesting nations have adopted and whether those 
measures are at least as comparable in effectiveness to the U.S. 
regulatory program in reducing marine mammal bycatch. The U.S. 
regulatory program begins with assessments and observations of marine 
mammals and their interactions with commercial fisheries and then 
calculates PBR and implements measures to reduce incidental mortality 
and serious injury of marine mammals in commercial fishing operations. 
NMFS finds that the proposed rule is sufficiently flexible to permit 
harvesting nations to develop and implement a range of approaches/
measures and receive a comparability finding provided the nation has a 
regulatory program that is comparable in effectiveness to U.S. 
standards. If a nation does not estimate stock abundance, mortality, 
and calculate a bycatch limit but can nonetheless demonstrate that its 
regulatory programs effectively achieves comparable results to the U.S. 
regulatory program, NMFS would grant a comparability finding.
    Although a nation may adopt a bycatch standard not currently in use 
by the United States, NMFS is not proposing to require nations to adopt 
and implement bycatch standards that we ourselves have not adopted and 
implemented. While the United States has not reduced incidental 
mortality and serious injury to insignificant levels (i.e., 10% of PBR) 
for all marine mammal stocks in all of its commercial fisheries, many 
of the fisheries with incidental mortality and serious injury at levels 
above PBR are subject to a take reduction team and take reduction plan. 
This proposed rule follows U.S. implementation of domestic requirements 
by focusing on export fisheries, the equivalent of those fisheries that 
have frequent or occasional interactions with marine mammals (Category 
I and Category II fisheries).

Options 6 and 7

    Comment 2: Most of the comments opposed options 6 or 7 because 
those are ESA standards, not MMPA standards and therefore should not be 
applied to the MMPA. Some respondents believe the ESA ``jeopardy 
standard'' is not as protective as OSP and PBR standards in the MMPA.
    Response: NMFS believes it is more appropriate to develop a 
proposed rule based on the requirements for U.S. domestic fisheries 
contained in Sections 117 and 118 of the MMPA, rather than relying on 
standards in another statute. In addition, the ``jeopardy standard'' of 
the ESA only applies to threatened or endangered species, subspecies, 
or distinct population segments (DPS). It does not apply to all species 
of marine mammals regardless of their status, nor does it apply at the 
stock level unless that stock is also designated as a DPS. The jeopardy 
standard also only applies to Federal activities. As a result, NMFS 
determined that attempting to apply ESA standards to a MMPA provision 
limits action to a subset of marine mammals and would create 
unnecessary confusion.

Other Comments

Support for the Rulemaking
    The majority of comments from organizations and individuals 
supported implementing the MMPA import provisions through a prohibition 
on imports of fish and fish products, as well as NMFS broadening the 
scope of its response to the petition to encompass all fish imports.
    Comment 3: One commenter noted that rulemaking was unnecessary to 
prohibit imports of fish and fish products and that a ban on swordfish 
products should be put in place immediately.
    Response: NMFS developed this proposed rule to implement Section 
101(a)(2) of the MMPA that would apply to all fisheries, not just 
swordfish imports, except high seas driftnet fisheries and eastern 
tropical Pacific yellowfin tuna purse seine fisheries, since other MMPA 
provisions govern these fisheries. NMFS believes this proposed rule 
would advance the U.S. conservation objective to reduce marine mammal 
incidental mortality and serious injury in commercial fisheries by 
applying a flexible regulatory approach that would be comparable in 
effectiveness to the U.S. regulatory program and allowing adequate time 
for harvesting nations to develop the necessary information and 
implement such programs. NMFS believes it is necessary to promulgate 
regulations in order to implement this section of the MMPA.

Suggested Alternative Approaches To Addressing International Marine 
Mammal Incidental Mortality and Serious Injury

    Comment 4: Several comments, particularly those from foreign 
governments, suggested that working cooperatively with trading partners 
would be more effective than banning imports. Some of those comments 
suggested that the United States work to address international marine 
mammal incidental mortality and serious injury through international 
organizations, such as RFMOs.
    Response: The United States will work through its participation in 
RFMOs to address incidental mortality and serious injury in commercial 
fisheries and will also promote this objective in other multilateral 
fora. The United States will look to all types of fora as a means to 
work with harvesting nations to reduce marine mammal mortality and 
serious injury in these global fisheries. Nevertheless, bilateral and 
multilateral fora alone are not sufficient to achieve the MMPA goals as 
they do not encompass all of the foreign fisheries subject to this 
proposed rule. Section 101(a)(2) directs the Secretary of the Treasury 
to ban the importation of commercial fish or fish products which have 
been caught with commercial fishing technology that results in the 
incidental kill or incidental serious injury of ocean mammals in excess 
of U.S. standards. This rulemaking would establish the U.S. program to 
implement that provision.

Trade and Economic Issues

    Comment 5: Several comments stated that any action the United 
States takes should be consistent with international law, particularly 
the WTO and not be a disguised method to unilaterally restrict the 
export of fisheries products to the United States.
    Response: As noted above, NMFS intends to apply this entire 
regulation, including the enforcement of 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 regulate based on the best available 
science. NMFS would implement the provisions of this rule taking into 
account a harvesting nation's existing regulatory program or progress 
in developing one and reducing bycatch, and the U.S. implementation of 
its regulatory

[[Page 48188]]

program for similar fisheries interacting with similar stocks.

U.S. Standards

    Comment 6: Several comments noted that the U.S. standards need to 
be clear but flexible.
    Response: NMFS believes the U.S. standards proposed through this 
rulemaking are clear and flexible. These are based on the U.S. program 
that requires assessment of marine mammal stocks and incidental 
mortality and serious injury as a first step, followed by measures to 
reduce marine mammal incidental mortality and serious injury in 
commercial fisheries to sustainable levels. NMFS intends to work with 
affected nations to develop regulatory programs to fit different 
conditions and situations.
    Comment 7: Several comments noted that NMFS must allow for 
different methods to achieve the common objective and focus on 
attaining outcomes of effective management and protection rather than 
specific management inputs.
    Response: NMFS believes the proposed rule contains sufficient 
flexibility to allow for different methods to achieve the objective of 
reducing marine mammal incidental mortality and serious injury. The 
proposed rule is modeled after the U.S. program to govern incidental 
take in commercial fisheries but does not require that affected nations 
adopt identical methods or regulations as the United States to meet the 
requirements of the proposed rule. NMFS will evaluate the results of 
each affected nation's regulatory program to determine if it is 
comparable in effectiveness to the U.S. program.

Reasonable Proof

    Comment 8: Several commenters noted that what constitutes 
``reasonable proof'' needs to be clearly defined.
    Response: NMFS is not proposing a definition of reasonable proof, 
but instead requires nations provide documentary evidence of sufficient 
detail and an attestation that the evidence is accurate to allow NMFS 
to evaluate the effects on ocean mammals of the commercial fishing 
technology in use for such fish or fish products exported from such 
harvesting nation to the United States for the purposes of rendering a 
comparability finding.
    Comment 9: Several comments noted that reasonable proof should be 
received as a precondition to allowing fish and fish products to be 
imported into the United States.
    Response: NMFS is requiring an application for a comparability 
finding to contain documentary evidence. NMFS believes nations must be 
given adequate time to develop comparable regulatory programs before 
any fish or fish products are prohibited from importation into the 
United States. The United State developed its current domestic program 
over the course of five years to provide sufficient time to collect 
information necessary to develop and implement its domestic bycatch 
reduction program. For that reason, NMFS is proposing an exemption 
period of five years to allow harvesting nations time to develop and 
implement their regulatory programs for their export fisheries.
    Comment 10: Several comments stated that reasonable proof should be 
provided on a continual basis.
    Response: The proposed program requires the harvesting nations to 
provide progress reports detailing the development and maintenance of a 
comparable regulatory program. NMFS is proposing that documentary 
evidence be the standard for any information submitted, including for 
the progress report, comparability finding, or reconsideration of a 
comparability finding.

Consultation Process

    Comment 11: Several comments noted the need for a consultation 
process and sufficient time allowed to meet requirements once measures 
are implemented, to assess effectiveness before any import 
determinations are made. Other comments stated that the consultation 
process should have specific deadlines.
    Response: The consultation process in this proposed rule would 
allow affected fisheries and nations five years to meet the 
requirements of the program. NMFS also intends to conduct outreach to 
potentially affected nations, including using the consultation process 
contained in HSDFMPA. NMFS' proposed consultation process has clear 
deadlines for comparability findings and the renewal of those findings.

Classification

    This proposed rule is published under the authority of the Marine 
Mammal Protection Act, 16 U.S.C. 1371.
    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 proposed national standard and 
procedures and to evaluate the impacts on the environment. This EA 
provides context for reviewing the proposed action by describing 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 HSDFMPA 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 provide five 
alternatives for ways to define ``U.S. standards'' for reducing 
mortality of marine mammals in fishing operations (Sections 2.1.1 
through 2.1.5). In addition to defining standards, the alternatives set 
out implementation and compliance steps as part of an overall 
regulatory program for harvesting nations wishing to import fish and 
fish products into the United States. To meet the purpose and need, 
NMFS will select one alternative.
    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 in order to 
export fish and fish products to the United States.
    Alternative 2 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.'' This is NMFS' preferred alternative. 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

[[Page 48189]]

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/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 proposed rulemaking has been determined to be significant for 
the purposes of Executive Order (EO) 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 EO 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. 
NMFS is proposing to define ``Fish and Fish Products'' for the purposes 
of this proposed rule 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 does not include fish 
oil, slurry, sauces, sticks, balls, cakes, pudding and other similar 
highly processed fish products. NMFS is proposing to exclude fish oil, 
slurry, sauces, sticks, balls, cakes, pudding and other similar highly 
processed fish products from the requirements of the proposed rule and 
thus the analysis in the RIR. 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 nations 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 nations 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)) molluscs, 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 get a comparability 
finding, harvesting nations may demonstrate including among other 
things that they are implementing the requirements of an RFMO or 
intergovernmental agreement to which the U.S. is a party; likewise 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 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 proposed 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. An 
initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained in 
the SUPPLEMENTARY INFORMATION section of the preamble. A summary of the 
Analysis follows. A copy of the complete IRFA is available from NMFS 
(see ADDRESSES). NMFS is specifically seeking comments on whether it 
may be appropriate at the final rule stage to certify to the Small 
Business Administration that the rule will not have a significant 
economic impact on a substantial number of small entities.
    Under the proposed 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 its 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 trade restrictive measures 
being imposed for specific fish products, certain other fish products 
eligible for entry from the affected nation may be required to have a 
certification of admissibility in order to be admitted into the United 
States.

Number and Description of Small Entities Regulated by the Proposed 
Action

    This proposed rule does not apply directly to any U.S. small 
business as the rulemaking applies with regard to imports of fish and 
fish products. The universe of potentially indirectly affected 
industries includes the following: 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 
U.S. businesses that rely on seafood harvested by foreign entities.

Recordkeeping and Reporting Requirements

    This proposed action contains new collection-of-information, 
involving limited reporting and record keeping, or

[[Page 48190]]

other compliance requirements. To facilitate enforcement of the import 
prohibitions for prohibited fish products, 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 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

    NMFS analyzed several alternatives under the EA for reducing 
mortality of marine mammals in fishing operations. Of those 
alternatives, the proposed rule (which is based on the EA preferred 
alternative) is the one that offers the most flexibility while being 
compliant with the provisions of the MMPA and U.S. obligations under 
the World Trade Organization, and thus was the one that could be 
considered in the analysis to minimize adverse impacts on small 
entities. The flexibility offered under the proposed 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. The flexibility should reduce burdens on small entities that 
import fish and fish products. One alternative to the proposed rule is 
the no action alternative, where NMFS would not promulgate regulations 
to implement the international provisions of the MMPA. This alternative 
to the proposed rule may demonstrate the least burden or economic 
impact to small entities. However, since the international provisions 
of the MMPA are statutory requirements, NOAA Fisheries does not have 
discretion to implement the no action alternative.
    The proposed 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 proposed regulations could assist in global stock assessments of 
marine mammals and improve our scientific understanding of these 
species. Finally, the proposed regulations should help ensure that the 
United States is not importing fisheries products harvested by nations 
that engage in the unsustainable bycatch of marine mammals in waters 
within and beyond any national jurisdiction.
    No U.S. industrial sector is likely to be directly affected by the 
rulemaking. However, indirect effects may result in temporary and long-
term responses that may be both positive and negative for various 
sectors of the U.S. seafood supply chain. Although over 90 percent of 
the edible seafood consumed annually in the United States is imported, 
the United States imports from over 120 nations. Given the number of 
nations exporting fish and fish products to the U.S. market and the 
volume of products supplied, domestic importers, retailers, 
wholesalers, and processors should be able to locate substitute or 
alternative sources of fish and fish products for those fisheries that 
fail to receive a comparability finding. However, it is possible that a 
substitute product will be more expensive or otherwise less preferable 
to a prohibited foreign fish or fish product. NMFS seeks comment on the 
costs, if any, incurred by U.S. entities that must find alternative 
sources for prohibited foreign fish and fish products.
    Although U.S. entities are not directly impacted by this rule, they 
may experience some indirect effects from this rule. 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 
proposed alternatives. Therefore, NMFS anticipates that the impacts on 
U.S. businesses engaged in trading, processing, or retailing seafood 
will likely be minimal.

Duplicate, Overlapping, or Conflicting Federal Rules

    This proposed action does not duplicate, overlap or conflict with 
any other Federal rules.

Public Participation

    It is the policy of the Department of Commerce, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the Instructions section. All comments must be received by midnight on 
the day of the close of the comment period.
    We are particularly interested in comments concerning the following 
questions:
    1. Are there fisheries that are likely to be subject to 
prohibitions under this rule and, if so, what are the potential 
economic impacts on small businesses and consumers?
    2. Is the five year exemption period an appropriate amount of time 
to allow harvesting nations to comply with the requirements of this 
rule?
    3. Is four years an appropriate amount of time for the duration of 
a comparability finding?
    4. Is the rule and corresponding notice of an information 
collection clear in regards to the type of documentation that would be 
required for harvesting nations to demonstrate the requirement that 
they have prohibited the intentional and incidental mortality or 
serious injury of marine mammals?
    5. Is there a definition of ``reasonable proof'' that is used by 
another Federal government agency that would be appropriate to 
incorporate into this rule?

Paperwork Reduction Act

    This proposed 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 
proposed rule would revise a collection-of-information requirement 
previously approved under OMB Control Number 0648-0651 (Certification 
of Admissibility). The revision would add a new category to the 
certification requirements for exports of fishery products to the 
United States from a nation's export fishery that have received a 
comparability finding under the procedures for evaluating export 
fisheries set forth in this proposed rule but are exporting fish and 
fish products similar to export fisheries that have failed to obtain a 
comparability finding. The Assistant Administrator may require that 
fish and fish products from such nation's other export fisheries could 
be admitted into the United States if the exporting nation certifies 
that the products were not harvested in the fishery for which a 
comparability finding was not issued.
    The public reporting burden for the proposed requirement has been 
estimated, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection information per response. NMFS 
estimates that the time to complete the Certification of Admissibility 
Form would be 10 minutes. In the event that import restrictions are 
imposed under these new procedures, additional responses by foreign 
exporters and U.S.

[[Page 48191]]

importers may increase the burden by 50% from the initial estimates 
under the existing approved collection. Based on an examination of 
trade statistics and the number of traders, the total number of 
respondents (e.g. seafood exporters/government officials) is estimated 
to be 90, increased from 60; the total number of responses is estimated 
to be 900, increased from 600; and the total annual burden is estimated 
at 150 hours, increased from 100 hours.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology.
    The burden associated with the application for a comparability 
finding and the progress reports are not presently analyzed under the 
Paperwork Reduction Act. Nonetheless, we recognize that these 
collections of information pose regulatory burdens for harvesting 
nations and possibly affected fisheries and seek comment on the 
potential cost of these provisions, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information.
    Send comments on these or any other aspects of the collection of 
information to the Director, Office of International Affairs (see 
ADDRESSES), and to OMB by email to OIRA_Submission@omb.eop.gov or by 
fax to (202) 395-5806.
    If this revision to the collection-of-information requirement under 
Control Number 0648-0651 is approved by OMB, the table of approved NOAA 
information collections that appears at 15 CFR part 902 would be 
amended accordingly.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

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: July 31, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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 in its place an entry for 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(h)(9)(iii).......................  -0387 and -0651
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

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.

0
4. In Sec.  216.3:
0
a. Add definitions for ``Bycatch limit,'' ``Comparability finding,'' 
``Exempt fishery,'' ``Exemption period,'' ``Export fishery,'' and 
``Fish and fish product'' in alphabetical order;
0
b. Revise the definition for ``Import''; and
0
c. Add definitions for ``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, 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 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 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

[[Page 48192]]

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 with the effective date of the final rule implementing this 
section 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) of this section 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 in a manner that allows species identification, but 
does not include fish oil, slurry, sauces, sticks, balls, cakes, 
pudding and other similar highly processed fish products.
* * * * *
    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 
issued under 16 U.S.C. 1371(a)(2)(B) on the importation of fish or fish 
products, 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 that is subject to an import restriction 
pursuant to Sec.  216.24(h)(9) and re-exports such fish or fish 
products to the United States.
* * * * *
    List of Foreign Fisheries means the most recent list 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 commercial 
fishing operations as either an exempt fishery or export fishery. This 
list will be organized by harvesting nation.
* * * * *
    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 incidental to commercial fishing 
operations including tuna purse seine vessels in the eastern tropical 
Pacific Ocean.

* * * * *
    (h) Taking and related acts of marine mammals incidental to 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) 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 is prohibited. For purposes 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 the United States, any fish or fish product imported in violation of 
this section.
    (2) Exemptions. (i) Exempt fisheries are exempt from requirements 
of paragraph (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 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

[[Page 48193]]

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) Section 216.24(h) shall not apply with respect to incidental 
take of delphinids in purse seine fishing for yellowfin tuna in the 
eastern tropical Pacific Ocean or large-scale driftnet fishing. Section 
216.24(f) shall govern restrictions on importation and sale of fish and 
fish products caught or harvested, and the taking of delphinids, in the 
course of commercial purse seine fishing operations for yellowfin tuna 
in the eastern tropical Pacific Ocean and fish and the importation of 
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. 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; and
    (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, 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 the effective 
date of the final rule implementing this section 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 of this part 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 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 
paragraph (h)(6) and (h)(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

[[Page 48194]]

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 require 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 paragraphs (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.
    (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 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 coastal 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 
coastal 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

[[Page 48195]]

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 
coastal state or 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; 
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 coastal 
state or other 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 an 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. 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, 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 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

[[Page 48196]]

Administrator shall publish in the Federal Register, by harvesting 
nation, a notice of the harvesting nations and fisheries for which it 
has issued and 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 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

[[Page 48197]]

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 denied a comparability finding for a 
fishery may re-apply for a comparability finding at any time 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. 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 by harvesting nation the fish and fish products 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, 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 described 
in paragraph (h)(8)(i) of this section specifying fish and fish 
products subject to import prohibitions under paragraphs (h)(1) and 
(h)(9) of this section, the Assistant Administrator shall, based on 
readily available information, identify 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, a 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 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 of 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 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 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 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

[[Page 48198]]

Office of the Federal Register a notice announcing that 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 and for which it was notified under paragraph 
(h)(9)(iv)(C) of this section may not be imported into the United 
States.
    (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. 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.
    (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 would 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) The Assistant Administrator shall ensure, in consultation with 
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. 2015-19231 Filed 8-10-15; 8:45 am]
BILLING CODE 3510-22-P