[Federal Register Volume 75, Number 83 (Friday, April 30, 2010)]
[Proposed Rules]
[Pages 22731-22735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10158]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
Docket No. 0907301201-91203-01
RIN 0648-AY15
Implementation of Fish and Fish Product Import Provisions of the
Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking; request for comments.
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SUMMARY: NMFS issues this advance notice of proposed rulemaking to
announce that it is developing procedures to implement provisions of
the Marine Mammal Protection Act for imports of fish and fish products.
NMFS is seeking advance public comment on the development of these
procedures and on the types of information to be considered in the
process.
DATES: Written comments must be received by 5 p.m. on June 29, 2010.
ADDRESSES: You may submit comments by any of the following methods:
(1) Electronic Submissions: Submit all electronic public comments
via the Federal eRulemaking Portal at http://www.regulations.gov.
(2) Mail: Director, Office of International Affairs, Attn: MMPA
Fish Import Provisions, NMFS, F/IA, 1315 East-West Highway, Silver
Spring, MD 20910
(3) Fax: (301) 713-2313
All comments received are a part of the public record and will
generally be posted to http://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
FOR FURTHER INFORMATION CONTACT: Michael Simpkins at
[email protected] or 301-713-9090.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361-1423h,
contains provisions addressing bycatch, or the incidental mortality and
serious injury, of marine mammals in both domestic and foreign
fisheries. With respect to foreign fisheries, section 101(a)(2) of the
MMPA (16 U.S.C. 1371(a)(2)) states that ``[t]he 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]- (A) 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.''
This rulemaking would define the ``United States standards''
referred to in MMPA section 101(a)(2), along with any associated
criteria by which the United States would assess foreign fisheries that
supply fish and fish product imports to the United States (hereafter
``import-supplying fisheries'') with respect to marine mammal bycatch.
The rule also would describe procedures for ensuring the established
standards and their associated criteria are met, as well as procedures
for developing recommendations regarding import prohibitions if those
standards and associated criteria are not met. In defining the
standards and associated criteria by which marine mammal bycatch in
import-supplying fisheries would be evaluated, this rulemaking would
consider U.S. statutory provisions and regulations applied to the
management of incidental mortality and serious injury of marine
mammals, including provisions of the MMPA, the Endangered Species Act
(ESA), and the High Seas Driftnet Fishing Moratorium Protection Act
(HSDFMPA).
This rulemaking also would recognize existing bilateral or
multilateral arrangements to address marine mammal bycatch in foreign
fisheries as well as the potential for such arrangements in the future.
In the case of eastern tropical Pacific yellowfin tuna purse seine
fisheries, marine mammal bycatch is covered by section 101(a)(2)(B) and
Title III of the MMPA (16 U.S.C. 1371(a)(2)(B) & 1411-1417,
respectively), which incorporate requirements adopted under the
auspices of the Agreement on the International Dolphin Conservation
Program (AIDCP).
U.S. Incidental Marine Mammal Mortality and Serious Injury Statutory
Provisions
Section 2 of the MMPA describes several broad goals, including (1)
maintaining the health and stability of the marine ecosystem; (2)
retaining marine mammals as a significant functioning element in the
ecosystem of which they are a part; and (3) ensuring that marine
mammals can remain at or recover to their optimum sustainable
population. The term ``optimum sustainable population'' is defined in
section 3(9) (16 U.S.C. 1362(9), 50 CFR 216.3) of the MMPA as ``the
number of animals which will result in the maximum productivity of the
[[Page 22732]]
population or the species, keeping in mind the carrying capacity of the
habitat and the health of the ecosystem of which they form a
constituent element.''
Sections 117 and 118 (16 U.S.C. 1386 and 1387) of the MMPA describe
the current U.S. program for regulating bycatch in domestic commercial
fisheries. The program includes (1) evaluating marine mammal stock
status; (2) evaluating bycatch in commercial fisheries; (3) developing
bycatch reduction measures and regulations following consultation with
stakeholder-based take reduction teams; and (4) implementing emergency
regulations when necessary.
MMPA section 118(f)(2) defines both short- and long-term goals for
take reduction plans created by take reduction teams. The short-term
goal is to reduce and maintain marine mammal bycatch below the
potential biological removal level for a given stock. MMPA section
3(20) defines ``potential biological removal'' (PBR) 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.'' The long-term goal is
to reduce bycatch ``to insignificant levels approaching a zero
mortality and serious injury rate,'' often referred to as the zero-
mortality rate goal. MMPA section 118(f)(3) provides NMFS with
discretion to prioritize and develop take reduction plans based on
available funding. MMPA section 118(f)(2) provides additional
discretion with respect to the long-term goal by requiring NMFS to take
into account ``the economics of the fishery, the availability of
existing technology, and existing State or regional fishery management
plans.''
Section 118(g) of the MMPA empowers NMFS to prescribe emergency
regulations to reduce marine mammal bycatch in a fishery if the
Secretary of Commerce finds that such bycatch is having, or is likely
to have, an immediate and significant adverse impact on a stock or
species.
The ESA contains provisions that apply more broadly to any direct
or incidental serious injury or mortality of species listed as
endangered or threatened under the ESA. Specifically, section 7 of the
ESA (16 U.S.C. 1536) requires Federal agencies to ensure that any
action authorized, funded, or carried out by such agencies is not
likely to jeopardize the continued existence of any species listed as
endangered or threatened under the ESA, or any species proposed for
such listing. If an action is determined to likely result in jeopardy
to a species that has been listed or proposed to be listed under the
ESA, the responsible Secretary (of Interior or Commerce) is required to
develop reasonable and prudent alternatives, as necessary or
appropriate, to mitigate such impact. If there is no reasonable and
prudent alternative available, then section 7 of the ESA also provides
that the Endangered Species Committee may decide whether to grant an
exemption from the jeopardy prohibition.
Under section 610 of the HSDFMPA (16 U.S.C. 1826k), the Secretary
of Commerce is required to identify nations whose fishing vessels
engage in fishing activities or practices that result in bycatch of
protected living marine resources (PLMRs), including marine mammals. In
determining whether a nation's vessels have engaged in bycatch of a
PLMR, the Secretary must determine whether the fishing activities in
question result in bycatch of PLMRs in waters beyond any national
jurisdiction or whether the bycatch involves stocks that are shared by
the United States and occur beyond the exclusive economic zone of the
United States. Such nations are identified if (1) the fishing activity
in question occurred during the preceding calendar year; (2) the
relevant international organizations for managing the fisheries or
protecting the bycaught species have failed to implement effective
measures to end or reduce such bycatch, or the nation is not a party or
cooperating member of such organization; and (3) the nation has not
adopted a regulatory program to reduce bycatch that is comparable to
that of the United States, taking into account different conditions.
After a nation has been identified, the HSDFMPA requires that the
Secretary, acting through the Secretary of State, notify and consult
with the identified nation for the purpose of entering into treaties to
protect the PLMRs in question. The HSDFMPA also authorizes the
Secretary of Commerce to provide appropriate assistance to identified
nations to assist those nations in qualifying for positive HSDFMPA
certification, described below. Such assistance may include cooperative
research, technology transfer, and assistance in designing and
implementing fish harvesting plans.
Following consultation, an identified nation is certified
positively only if it provides documentary evidence that the nation has
adopted a regulatory program to conserve PLMRs that is comparable to
that of the United States, taking into account different conditions,
and also has established a management plan that will assist in
gathering species-specific data to support international stock
assessments and conservation efforts for PLMRs.
Failure by a nation to receive a positive certification under the
HSDFMPA may result in denial of port privileges and prohibition of
imports of some fish or fish products.
Possible Standards for Evaluating Marine Mammal Bycatch Associated with
Fish and Fish Product Imports
NMFS is considering whether the statutory provisions described
above rise to the level of ``United States standards,'' and, if so,
NMFS is considering several possible standards that could be used when
evaluating marine mammal bycatch in import-supplying fisheries for the
purposes of implementing MMPA section 101(a)(2). NMFS also is
considering whether to use only one of these standards or a combination
of two or more standards when evaluating marine mammal bycatch in
import-supplying fisheries. The options under consideration as possible
standards are described below.
Several possible standards that NMFS is considering are derived
from the short- and long-term goals of take reduction plans developed
under section 118(f)(2) of the MMPA. Specifically, NMFS is considering
evaluating whether marine mammal bycatch in import-supplying fisheries
is maintained at a level below PBR for impacted marine mammal stocks
(option 1). Alternatively, NMFS is considering evaluating whether such
bycatch has been reduced to insignificant levels approaching a zero
mortality and serious injury rate to the extent feasible, taking into
account different conditions (option 2). NMFS recognizes that these two
goals have been met for many, but not all, U.S. domestic fisheries.
Another alternative possible standard NMFS is considering is to
evaluate whether marine mammal bycatch in import-supplying fisheries is
maintained at levels below PBR or at levels comparable to those
actually achieved in comparable U.S. fisheries, whichever is higher
(option 3). With respect to all three of these possible standards, NMFS
recognizes that section 118(f)(3) of the MMPA provides NMFS with
discretion to prioritize and develop take reduction plans for domestic
U.S. fisheries to achieve these goals subject to available funding.
NMFS also is considering possible standards derived from the
population status goal described in MMPA section 2. Specifically, NMFS
is considering evaluating whether marine mammal bycatch in import-
supplying fisheries either causes the depletion of a marine
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mammal stock below its optimum sustainable population or impedes the
ability of a depleted stock to recover to its optimum sustainable
population (option 4). Domestically, the United States manages marine
mammal bycatch based on PBR levels to achieve the goal of allowing
marine mammal stocks to reach or maintain their optimum sustainable
populations. However, NMFS recognizes that foreign nations may have
other approaches to achieving the same goal, and that some of these
might be commensurate with the U.S. marine mammal bycatch management
program.
NMFS also is considering possible standards derived from the
trigger for emergency regulations in MMPA section 118(g). Specifically,
NMFS is considering evaluating whether bycatch in import-supplying
fisheries has, or is likely to have, an immediate and significant
adverse impact on a marine mammal stock (option 5).
NMFS also is considering possible standards derived from the
jeopardy criteria described in ESA section 7. Specifically, NMFS is
considering evaluating whether bycatch in import-supplying fisheries is
likely to jeopardize the continued existence of any endangered or
threatened marine mammal species (option 6). For this option, NMFS is
considering whether and how to apply such possible standards uniformly
to bycatch of foreign or international marine mammal species that are
endangered or threatened, but have not been evaluated or listed under
the ESA. Alternatively, NMFS is considering evaluating more broadly
whether bycatch by import-supplying fisheries is likely to jeopardize
the continued existence of a marine mammal species (option 7).
NMFS also is considering possible standards derived from HSDFMPA
section 610. Specifically, NMFS is considering evaluating whether
marine mammal bycatch in a foreign nation's import-supplying fisheries
is managed effectively by a relevant international fisheries management
or conservation organization, or by the fishing nation itself (option
8). For this possible standard, NMFS would evaluate whether effective
measures have been implemented by a relevant international fisheries
management or conservation organization to which the nation is a party
or cooperating member. If the relevant organization has not implemented
effective measures, or the fishing nation is not a party or cooperating
member of the organization, then NMFS would also evaluate whether the
nation has adopted a regulatory program to reduce marine mammal bycatch
that is comparable to that of the United States, taking into account
different conditions.
Finally, NMFS is considering possible standards derived from
regulations implemented to manage marine mammal bycatch in U.S.
domestic fisheries. Specifically, NMFS is considering evaluating
whether foreign nations that supply fish and fish product imports to
the United States have implemented regulations to address marine mammal
bycatch in the nations' import-supplying fisheries that are comparable
to regulations implemented by the United States, taking into account
different conditions (option 9). These U.S. domestic regulations are
developed and applied on a regional and fishery-by-fishery basis,
recognizing that different regional and fishery conditions bear on the
effectiveness of the measures.
To the extent that the options described above are determined to
rise to the level of ``United States standards,'' NMFS anticipates
selecting one or more of the possible standards described above to
apply when evaluating marine mammal bycatch in a foreign nation's
import-supplying fisheries and, in turn, to define those standards as
``United States standards'' for the purposes of section 101(a)(2)(A).
NMFS intends to select clear standards and associated criteria that
could be applied uniformly to all foreign fisheries that supply fish
and fish product imports to the United States. NMFS also intends to
select only standards and associated criteria that have been met by
U.S. domestic fisheries.
NMFS requests comments on the standards to be used when evaluating
foreign import-supplying fisheries, including any suggestions of other
standards or associated criteria NMFS should consider or modifications
of the standards suggested above; and whether to apply one or more
standards.
Potential Procedures for Ensuring that U.S. Marine Mammal Bycatch
Standards Are Met for Foreign Imports
NMFS is considering developing a process for evaluating bycatch in
foreign import-supplying fisheries that would be consistent with both
the U.S. process for managing domestic marine mammal bycatch, outlined
in MMPA sections 117 and 118, and the process for assessing and
certifying nations for bycatch of protected living marine resources,
outlined in HSDFMPA section 610. In particular, NMFS is considering a
process that would include (1) requesting that nations whose fisheries
supply imports to the United States provide reasonable proof of the
impact of those fisheries on marine mammals; (2) initiating
consultation with nations who fail to provide such reasonable proof or
whose import-supplying fisheries are known or likely to not meet U.S.
marine mammal bycatch standards; (3) allowing some time for nations
undergoing consultation to meet U.S. marine mammal bycatch standards by
providing acceptable ``reasonable proof'' of the impacts of their
import-supplying fisheries on marine mammals, by improving their
assessment capabilities in order to provide such proof, or by
implementing effective bycatch mitigation measures; and (4)
recommending that the import of certain fish and fish products from a
nation or fishery into the United States be prohibited if that nation
or fishery fails to meet U.S. marine mammal bycatch standards after
consultation.
With regard to (1) above, NMFS is considering defining ``reasonable
proof'' as information that indicates that a nation's import-supplying
fisheries meet U.S. marine mammal bycatch standards.
With respect to (2) above, NMFS is considering initiating
consultation with nations to encourage each nation to take the
necessary corrective action to meet the U.S. marine mammal bycatch
standards. Such consultation would likely consider the efficacy of
marine mammal bycatch measures adopted under multilateral agreements to
which the nation is a party, as well as the nation's implementation of
those measures. Such consultation also would likely identify different
conditions that NMFS may consider when making decisions regarding
foreign fisheries imports, including existing scientific capacity
within the nation, differences in fishing practices, logistical and
technical challenges to assessing status or bycatch of specific marine
mammal stocks, and logistical and technical challenges to mitigating
bycatch for some stocks or fisheries. As necessary, appropriate, and
feasible, NMFS may provide capacity building, training, or technology
transfer to address issues identified during consultation. Such
consultation and capacity building would be consistent with the
approach described in HSDFMPA section 610 for identifying and
certifying nations for bycatch of protected living marine resources.
Further, U.S. domestic consultations with take reduction teams also
consider similar conditions, such as the quality of data available,
logistical or technological challenges, and the feasibility of
mitigation measures. NMFS also provides scientific support during
domestic take reduction team consultations.
[[Page 22734]]
The time allotted in (3) above recognizes the need for some nations
to improve their capacity to conduct suitable assessments, implement
effective mitigation measures, or address unique challenges. NMFS is
considering whether to include time to address these issues within the
consultation period or to allow some time after consultation to assess
the effectiveness of newly implemented measures before making import
determinations. Both MMPA section 118(f) and HSDFMPA section 610 allow
time for consultation before action is taken.
Finally, (4) refers to the implementation of import prohibitions
themselves. NMFS would coordinate with other Federal agencies to make
decisions regarding possible import prohibitions. NMFS also is
considering whether and what kind of alternative procedures to
establish for implementing import prohibitions on a shipment-by-
shipment, shipper-by-shipper, or other basis if such imports were
harvested by practices that do not result in marine mammal bycatch or
were harvested by practices that are comparable to those of the United
States. The HSDFMPA allows for the development of such alternative
procedures.
NMFS is considering if and how intermediary nations should be
addressed by the procedures under consideration. Intermediary nations
are those that serve as intermediaries in re-exporting fish or fish
products to the United States from the nation whose fisheries
originally harvested the fish. With respect to yellowfin tuna harvested
in the eastern tropical Pacific purse seine fisheries, section
101(a)(2)(D) of the MMPA requires that any intermediary nation certify
and provide reasonable proof that ``it has not imported, within the
preceding six months, any yellowfin tuna or yellowfin tuna products
that are subject to a direct ban on importation to the United States.''
NMFS is considering using a similar approach to ensure that imports
from intermediary nations meet U.S. marine mammal bycatch standards.
NMFS is requesting comments on the procedures under consideration
for ensuring that foreign fisheries imports meet U.S. marine mammal
bycatch standards, including whether to apply one or more of the
possible standards when evaluating import-supplying fisheries to make
decisions regarding initiating consultation or banning imports, which
standards to apply, and whether to apply different standards for making
the decision to initiate consultation than are used to make the
decision to ban imports. Further, NMFS is requesting comments on what
issues and conditions should be considered during consultation and
whether and what kind of alternative procedures should be established
for implementing import prohibitions on a shipment-by-shipment or
shipper-by-shipper basis. Finally, NMFS is requesting comments
regarding if and how intermediary nations should be addressed by the
procedures under consideration.
Petition for Rulemaking
On March 5, 2008, the U.S. Department of Commerce and other
relevant Departments were petitioned to initiate rulemaking to ban
importation of swordfish and swordfish products from countries that
have not satisfied the MMPA section 101(a)(2) requirement. The petition
for rulemaking under the Administrative Procedure Act was submitted by
two nongovernmental organizations, the Center for Biological Diversity
and the Turtle Island Restoration Network. The complete text of the
petition is available via the internet at the following web address:
http://www.nmfs.noaa.gov/ia/. Copies of this petition may also be
obtained by contacting NMFS [see ADDRESSES].
On December 15, 2008, NMFS published a notification of receipt of
the petition, with a January 29, 2009, deadline for comments (73 FR
75988). NMFS subsequently reopened the comment period from February 4
to March 23, 2009 (74 FR 6010, February 4, 2009).
Although the petition only requested action regarding imports of
swordfish and swordfish products, the import provisions of MMPA section
101(a)(2) 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 United States standards''. Therefore, this rulemaking would be
broader in scope than the petition. Comments received on the petition
were considered during the development of this advance notice of
proposed rulemaking. Many of the comments were limited to the scope of
the petition, but others are more broadly applicable. We have
summarized all comments on the petition below.
Summary of Comments Received on Petition
NMFS received almost 45,000 comments on the petition during the two
public comment periods, including comments from individual members of
the public, environmental and industry groups, members of Congress, and
swordfish exporting nations. The vast majority of public comments were
submitted in association with mass comment campaigns by the Center for
Biological Diversity and the Natural Resources Defense Council. NMFS
developed this advance notice of proposed rulemaking in response to the
comments received on the petition.
(1) Support for the petition--The vast majority of public comments
supported the petition and recommended that NMFS implement the MMPA
import provisions. Most of those comments recommended banning swordfish
imports immediately, although a few comments recommended that NMFS
request and evaluate information from nations before banning imports.
Some comments in support of the petition indicated that
implementing the MMPA import provisions would (1) provide an incentive
for foreign fisheries to implement bycatch reduction measures and data
requirements similar to those of the United States; (2) provide added
protection for marine mammals outside of U.S. waters; (3) level the
``playing field'' and protect U.S. fishers from unfair competition; and
(4) ensure that U.S. consumers do not unwittingly contribute to the
depletion of marine mammal populations as a result of poorly regulated
fisheries. Several comments claimed that NMFS had failed to implement
the MMPA import provisions and, thereby, had promoted the destruction
of marine mammal populations and placed U.S. fishers at a significant
competitive disadvantage. One comment suggested that NMFS did not need
to develop regulations to implement a ban on swordfish imports because
NMFS could ``readily compare'' foreign fishing operations to U.S.
marine mammal bycatch standards.
(2) Suggested alternative approaches to addressing international
marine mammal bycatch--Several comments 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 bycatch through
international organizations, such as regional fishery management
organizations.
One comment suggested a capacity-building effort to bring about
change in the fishing practices of trading partners. Another comment
suggested developing a coalition of fish-importing companies in the
United States to encourage suppliers in other countries to buy fish
caught with ``mammal safe'' gear, which it suggested could be provided,
[[Page 22735]]
installed, and demonstrated by the U.S. government, industry, or non-
governmental organization partners.
(3) Possible standards--A few comments pointed out the need to
clearly define the ``United States standards'' regarding marine mammal
bycatch in the context of section 101(a)(2) of the MMPA. Two comments
recommended that NMFS consider the fisheries and fishing conditions of
individual nations when evaluating those fisheries against U.S. marine
mammal bycatch standards.
The majority of comments suggested that ``United States Standards''
should include consideration of the bycatch mitigation measures
implemented by exporting nations. Comments suggested that foreign
measures should be comparable to those used in U.S. fisheries, which
include pingers (acoustic deterrents), net extenders, limits on
longline length, time-area closures, safe handling and release training
and equipment, and observer coverage.
Many comments suggested applying either the short- or long-term
bycatch reduction goal of MMPA section 118 as a standard. The short-
term goal specifies that bycatch should be reduced below a marine
mammal stock's PBR level, while the long-term goal specifies that
bycatch should be reduced to insignificant levels approaching a zero
mortality and serious injury rate (sometimes referred to as the ``zero
mortality rate goal''). In contrast, one comment suggested that it
would be inappropriate to hold exporting nations to the long-term goal
until U.S. fisheries have achieved it. One comment recommended applying
additional MMPA standards, including (1) maintaining the health and
stability of the marine ecosystem; (2) recovering populations to, and
maintaining them at, optimum sustainable populations; (3) ensuring that
authorized take levels do not disadvantage affected stocks; and (4)
requiring development of take reduction plans for fisheries that exceed
a stock's PBR level. Several comments also pointed out that MMPA
section 101(a)(2)(B) establishes standards for the eastern tropical
Pacific purse seine fishery for tuna. Another comment suggested using
the standards described in section 610 of the HSDFMPA.
(4) Trade and economic issues--Several comments discussed the
relevance of the MMPA import provisions to intermediary nations. One
comment recommended that NMFS apply the provisions to intermediary
nations by requiring those nations to provide documentation as to how
swordfish or swordfish products they export to the United States were
harvested and what impact those fisheries had on marine mammals.
Another comment suggested that harvesting nations should be responsible
for issuing ``mammal-free certifications'' to vessels and that
importers in intermediary nations should be required to obtain such
``certifications'' prior to landing fish at the nations' ports.
Numerous comments stated that a ban on swordfish imports would
cause economic hardship for exporting nations. Another comment claimed
that banning imports would financially harm importing companies in the
United States because foreign harvesters would sell their fish to
alternative markets.
Some comments voiced concern that implementing the MMPA import
provisions could result in ``unlawful barriers to international
trade.'' Some comments suggested that any measures taken should not
hamper trade in swordfish or any other fish caught by ``proper fishing
devices.'' A comment from one nation suggested that banning imports of
swordfish would contradict the existing spirit of partnership and good
relations with the United States. In contrast, one comment suggested
that a ban on swordfish imports could be implemented in a manner
consistent with the General Agreement on Tariffs and Trade and the
World Trade Organization. That comment further suggested that NMFS is
obligated to implement the MMPA import provisions, even if a ban on
swordfish imports were found to be in conflict with international trade
agreements.
(5) Inaccuracies in petition and counter claims--During its review
of the petition, NMFS noted that the petition contained some factual
errors. For example, some of the swordfish import amounts reported for
Taiwan (referred to as China-Taipei in the petition), Mauritius,
Mexico, New Zealand, and South Africa were incorrect. Corrections are
available at http://www.st.nmfs.noaa.gov/st1/trade/.
NMFS also noted some discrepancies in the petition's description of
the scope and timing of some U.S. fishery closures described in the
petition. In particular, the description on page eleven of the petition
underestimated the extent of longline closures in the Pacific, ignoring
areas closed to longline fishing in Guam and the Northwestern and Main
Hawaiian Islands. The description on page eight of the petition failed
to recognize that the gillnet prohibition in the western Pacific
fishery management area includes all U.S. EEZ waters around Hawaii,
Guam, American Samoa, Commonwealth of the Northern Mariana Islands, and
U.S. Pacific remote island areas. Further, the description on the same
page of the timing of drift gillnet fishery closures on the U.S. west
coast during El Ni[ntilde]o events was incorrect; those closures are
implemented from June 1 through August 31 when NMFS has forecasted or
announced the occurrence of an El Ni[ntilde]o event.
Several exporting nations offered counterclaims to those listed in
the petition. Brazil noted that the petition claimed that Brazil
expanded its longline fleet by leasing vessels from flag of convenience
countries. In its comments, Brazil cited a law prohibiting vessels
operating for Brazilian fishing companies from registering in other
countries under flags of convenience. Taiwan provided comments
questioning the validity of bycatch estimates for Taiwan fisheries in
the petition. Taiwan argued that the estimates were derived using
incorrect methods and data. Two nations commented that they believed
there was no valid justification for the measures proposed by the
petitioners.
A number of nations commented that their marine mammal protection
programs were comparable to those of the United States. Those nations
provided a variety of supporting information regarding their laws,
regulations, and/or bycatch management measures.
One nation suggested that the provision of reasonable proof
regarding the effects of fisheries on marine mammals is not a prior
obligation of exporting nations, although the United States is entitled
to request such information.
Classification
This advance notice of proposed rulemaking has been determined to
be not significant for purposes of Executive Order 12866.
Dated: April 26, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2010-10158 Filed 4-29-10; 8:45 am]
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