Rule2022-27155
Implementation of Import Restrictions; Certification of Admissibility for Certain Fish Products From New Zealand
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 16, 2022
Effective
December 5, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under the authority of the Marine Mammal Protection Act (MMPA), and pursuant to a court order, the NMFS Assistant Administrator for Fisheries (Assistant Administrator) has implemented import restrictions on the products harvested in certain Government of New Zealand (GNZ) regulated fisheries: West Coast North Island multi- species set-net fishery, and West Coast North Island multi-species trawl fishery. Similar fish products harvested from other areas or with other types of fishing gear are eligible for entry into the U.S. market only when accompanied by Certification of Admissibility validating origin from other than the restricted fisheries.
Full Text
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<title>Federal Register, Volume 87 Issue 241 (Friday, December 16, 2022)</title>
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[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Rules and Regulations]
[Pages 76998-77000]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27155]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[RTID 0648-XC604]
Implementation of Import Restrictions; Certification of
Admissibility for Certain Fish Products From New Zealand
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Import restrictions.
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SUMMARY: Under the authority of the Marine Mammal Protection Act
[[Page 76999]]
(MMPA), and pursuant to a court order, the NMFS Assistant Administrator
for Fisheries (Assistant Administrator) has implemented import
restrictions on the products harvested in certain Government of New
Zealand (GNZ) regulated fisheries: West Coast North Island multi-
species set-net fishery, and West Coast North Island multi-species
trawl fishery. Similar fish products harvested from other areas or with
other types of fishing gear are eligible for entry into the U.S. market
only when accompanied by Certification of Admissibility validating
origin from other than the restricted fisheries.
DATES: These import restrictions and requirement for Certification of
Admissibility are effective December 5, 2022, until revoked or revised
by the Assistant Administrator in a subsequent action.
FOR FURTHER INFORMATION CONTACT: Kellie Foster-Taylor, NMFS Office of
International Affairs, Trade, and Commerce at <a href="/cdn-cgi/l/email-protection#d4bfb1b8b8bdb1fab2bba7a0b1a6f9a0b5adb8bba694babbb5b5fab3bba2"><span class="__cf_email__" data-cfemail="bcd7d9d0d0d5d992dad3cfc8d9ce91c8ddc5d0d3cefcd2d3dddd92dbd3ca">[email protected]</span></a> or 301-427-7721.
SUPPLEMENTARY INFORMATION:
The MMPA Import Provisions
The MMPA, 16 U.S.C. 1371 et seq., states that the Secretary of the
Treasury shall ban the importation of commercial fish or products from
fish which have been caught with commercial fishing technology which
results in the incidental kill or incidental serious injury of ocean
mammals in excess of United States standards. For purposes of applying
this import restriction, the Secretary of Commerce shall insist on
reasonable proof from the government of any nation from which fish or
fish products will be exported to the United States of the effects on
ocean mammals of the commercial fishing technology in use for such fish
or fish products exported from such nation to the United States.
In August 2016, NMFS published a final rule (81 FR 54390; August
15, 2016) implementing the fish and fish product import provisions in
section 101(a)(2) of the MMPA. This rule established conditions for
evaluating a harvesting nation's regulatory programs to address
incidental and intentional mortality and serious injury of marine
mammals in fisheries operated by nations that export fish and fish
products to the United States. Under the final rule, fish or fish
products may not be imported into the United States from commercial
fishing operations that result in the incidental mortality or serious
injury of marine mammals in excess of U.S. standards (16 U.S.C.
1371(a)(2)). NMFS published a List of Foreign Fisheries (LOFF) on
October 8, 2020 (85 FR 63527), to classify fisheries subject to the
import requirements.
The final rule established a five-year exemption period, through
December 31, 2021, before imports would be subject to any trade
restrictions (see 50 CFR 216.24(h)(2)(ii)). In recognition of the
diversion of foreign government resources away from fishery research
and regulatory programs in response to the COVID pandemic, NMFS issued
an interim final rule to extend the exemption period through December
31, 2022 (85 FR 69515, November 3, 2020). Subsequently, NMFS issued a
final rule to extend further the exemption period through December 31,
2023 (87 FR 63955, October 21, 2022) due to the large number of foreign
nation applications for comparability findings received and the need to
evaluate regulatory programs fairly and equitably for more than 2500
foreign fisheries.
In the 2016 final rule, NMFS stated that it may consider emergency
rulemaking during the exemption period to ban imports of fish and fish
products from a foreign fishery having or likely to have an immediate
and significant adverse impact on a marine mammal stock. In addition,
pursuant to the MMPA Import Provisions rule, nothing prevents a nation
from implementing a bycatch reduction regulatory program and seeking a
comparability finding during the exemption period. The GNZ requested
that NMFS consider comparability findings for certain fisheries prior
to the end of the exemption period.
Petition for Rulemaking and Request for a Comparability Finding
In February 2019, Sea Shepherd Legal, Sea Shepherd New Zealand
Ltd., and Sea Shepherd Conservation Society petitioned NMFS for an
emergency rulemaking to ban the import of fish caught in gillnet and
trawl fisheries in the M[amacr]ui dolphin's range because the GNZ 2012
regulations allegedly were insufficient to protect the M[amacr]ui
dolphin. NMFS rejected the petition (84 FR 32853, July 10, 2019) on the
basis that the GNZ had in place an existing regulatory program to
reduce M[amacr]ui dolphin bycatch and was proposing a revised
regulatory program which, when fully implemented, would likely further
reduce risk to M[amacr]ui dolphin.
On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd
Conservation Society (collectively, ``Plaintiffs'') initiated a lawsuit
in the Court of International Trade (CIT) challenging NMFS' denial of
its petition. On June 24, 2020, the GNZ announced its final fisheries
measures for reducing bycatch of M[amacr]ui dolphins (effective October
1, 2020) and its final Threat Management Plan (TMP). On July 1, 2020,
Plaintiffs moved for a preliminary injunction to ban imports of seafood
into the United States from New Zealand's set-net and trawl fisheries.
Before responding to Plaintiffs' motion for a preliminary injunction,
NMFS moved for a voluntary remand in order to reconsider the
Plaintiffs' petition for emergency rulemaking under the MMPA due to
GNZ's final fisheries measures and final TMP.
On July 15, 2020, the GNZ, acting through the Ministry for Primary
Industries, requested that NMFS perform a comparability assessment of
the TMP and its regulatory program as it relates to M[amacr]ui
dolphins. On August 13, 2020, the CIT granted NMFS the voluntary
remand. On August 27, 2020, NMFS received the Plaintiffs' supplemental
petition, which both maintained the grounds for action outlined in the
original petition and included new information on sightings of
M[amacr]ui dolphins, the final TMP and the 2020 LOFF.
NMFS Determination on the Petition and the GNZ's Comparability
Application
NMFS rejected the supplemental petition to ban the importation of
commercial fish or products from fish harvested in a manner that
results in the incidental kill or incidental serious injury of
M[amacr]ui dolphins in excess of U.S. standards. Further, NMFS issued
comparability findings for the West Coast North Island multi-species
set-net and trawl fisheries because the GNZ has implemented a
regulatory program governing the bycatch of M[amacr]ui dolphin that is
comparable in effectiveness to U.S. standards.
Motion for Preliminary Injunction and Court Order
Plaintiffs subsequently filed a Renewed Motion for Preliminary
Injunction on December 11, 2020, seeking a preliminary injunction
requiring the U.S. Government to ban the import of fish or fish
products from any New Zealand commercial fishery that uses set-nets or
trawl gear within the M[amacr]ui dolphin's range.
On November 28, 2022, the CIT granted the plaintiffs' request for a
preliminary injunction requiring the U.S. government, pending final
adjudication of the merits, to ban immediately the importation of
certain fish and fish products from New Zealand commercial fisheries
that use set-nets or trawls within the M[amacr]ui dolphin's range.
Under the CIT order,
[[Page 77000]]
all (1) snapper; (2) tarakihi; (3) spotted dogfish; (4) trevally; (5)
warehou; (6) hoki; (7) barracouta; (8) mullet; and (9) gurnard derived
from the fisheries of the West Coast North Island are subject to the
ban. The court also ordered NMFS to submit notice of the ban for
publication in the Federal Register within 15 days. By granting this
preliminary injunction and requiring the imposition of import
restrictions and a comparability finding determination for the export
fisheries operating on the West Coast North Island within the
M[amacr]ui dolphin's range, the judge's order effectively removes the
currently operative exemption under 50 CFR 216.24 (h)(2)(ii) for these
fisheries.
Implementing Import Restrictions Under the Court Order
The CIT order stipulates that specific fish products deriving from
West Coast North Island multi-species set-net and trawl fisheries are
prohibited from entry into the U.S market. Several of these fish
species are not imported into the United States under Harmonized Tariff
Schedule (HTS) codes that are specific to the type of fish. Instead,
these fish are imported under non-specific fish and marine fish codes.
Consequently, the list of affected HTS codes has been determined by
NMFS and is available at: <a href="https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions">https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions</a>. The list includes
those non-specific HTS codes necessary to encompass the possible codes
used for products subject to the trade restriction.
However, NMFS acknowledges that fish species harvested in the West
Coast North Island fisheries are also harvested elsewhere in New
Zealand and harvested with other fishing gear not subject to the court-
ordered embargo. Consequently, further steps are needed to enforce an
import restriction focused on fish harvested in the affected fisheries
and included in the court order while not affecting trade in products
not subject to embargo. NMFS must collect additional information from
importers during the entry process to identify products not subject to
an import restriction. To that end, NMFS has identified tariff codes
for the fish and fish products that require Certification of
Admissibility to validate that the fish and fish products from New
Zealand being offered for entry into the United States do not originate
from West Coast North Island set-net and trawl fisheries.
On December 5, 2022, U.S. Customs and Border Protection (CBP)
transmitted a user-defined rule to inspectors at affected ports of
entry with instructions for port inspectors to examine entry filings
from New Zealand under the specified tariff codes. Fish or fish
products imported to the United States from New Zealand under the
designated HTS codes that are not subject to the import prohibition
must be accompanied by Certification of Admissibility. The
Certification of Admissibility form and accompanying instructions for
its use in entry filing are available at <a href="https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions">https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions</a>. The Certification of Admissibility is an information
collection subject to the requirements of the Paperwork Reduction Act
and has been approved by the Office of Management and Budget under
control number 0648-0651.
Absent Certification of Admissibility, entry filings under the
specified tariff codes will be rejected. Implementing this process will
require notice to the trade community (importers and customs brokers)
and CBP inspectors. NMFS is working with CBP to use its internal and
external messaging systems for such notification. Also, consultations
with the GNZ are needed to identify those officials authorized to
certify shipments bound for the United States. NMFS initiated these
steps prior to the effective date of the embargo.
Importers are advised to determine if other NMFS program
requirements (e.g., Tuna Tracking and Verification Program, Seafood
Import Monitoring Program) or other agency requirements (e.g., U.S.
Fish and Wildlife Service, State Department, Food and Drug
Administration) have Automated Commercial Environment (ACE) data
reporting requirements applicable to the designated HTS codes subject
to certification under the MMPA import provisions. In such cases, the
other reporting requirements still pertain in addition to the
Certification of Admissibility requirements imposed to implement the
CIT order.
Until such time as the CIT (or other court of competent
jurisdiction) lifts the preliminary injunction, trade restrictions on
the fish products harvested by set-nets and trawls operating off the
West Coast North Island within the M[amacr]ui dolphin's range will
continue and Certification of Admissibility will be required for the
HTS codes designated under this notice.
Authority: 16 U.S.C. 1361 et seq.
Dated: December 9, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-27155 Filed 12-15-22; 8:45 am]
BILLING CODE 3510-22-P
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