Fish and Fish Product Import Provisions of the Marine Mammal Protection Act List of Foreign Fisheries, 39762-39776 [2017-17671]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 161 (Tuesday, August 22, 2017)]
[Notices]
[Pages 39762-39776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17671]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 170706630-7630-01]
RIN 0648-XF538


Fish and Fish Product Import Provisions of the Marine Mammal 
Protection Act List of Foreign Fisheries

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

ACTION: Notice of availability; request for comments.

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SUMMARY: NMFS is publishing its draft List of Foreign Fisheries (LOFF) 
for 2017, as required by the regulations implementing the Fish and Fish 
Product Import Provisions of the Marine Mammal Protection Act (MMPA). 
The draft LOFF reflects available information on marine mammal 
interactions in commercial fisheries exporting fish and fish products 
to the United States. NMFS has classified each commercial fishery 
included in the draft LOFF into one of two categories based upon 
frequency and likelihood of incidental mortality and serious injury of 
marine mammals that is likely to occur incidental to each fishery. 
Fisheries are classified as either exempt or export. The classification 
of a fishery on the draft and final LOFF will determine which 
regulatory requirements will be applicable to that fishery to enable 
the nation to receive a comparability finding necessary to export fish 
and fish products to the United States from that particular fishery. 
The draft LOFF can be found at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html.

DATES: Written comments must be received by 5 p.m. Eastern Time on 
October 23, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0084, by either of the following methods:
    1. Electronic Submissions: Submit all electronic comments via the 
Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0084, 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 and Seafood Inspection, Attn: MMPA List of 
Foreign Fisheries, NMFS, F/IASI, 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 
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.
    NMFS will consider all comments and information received during the 
comment period in preparing a final LOFF. NMFS will also seek input 
from nations on the draft LOFF at bilateral and multilateral meetings, 
as appropriate.

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

SUPPLEMENTARY INFORMATION: In August 2016, NMFS published a final rule 
(81 FR 54390; August 15, 2016) implementing the fish and fish product 
import provisions (section 101(a)(2)) of the Marine Mammal Protection 
Act (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 this rule, fish or fish products cannot be imported into the 
United States from commercial fishing operations, which result in the

[[Page 39763]]

incidental mortality or serious injury of marine mammals in excess of 
United States standards. Such fish and fish products from export and 
exempt fisheries identified by the Assistant Administrator for 
Fisheries in the LOFF can only be imported into the United States if 
the harvesting nation has applied for and received a comparability 
finding from NMFS. The rule established procedures that a harvesting 
nation must follow and conditions it must meet to receive a 
comparability finding for a fishery. The rule also established 
provisions for intermediary nations to ensure that such nations do not 
import and re-export to the United States fish or fish products that 
are subject to an import prohibition.

What is the List of Foreign Fisheries?

    Based on information provided by nations, industry, the public, and 
other readily available sources, NMFS has identified nations with 
commercial fishing operations that export fish and fish products to the 
United States and has classified each of those fisheries based on their 
frequency of marine mammal interactions as either ``exempt'' or 
``export'' fisheries (see definitions below). The entire list of these 
export and exempt fisheries, organized by nation (or subsidiary 
jurisdiction), constitutes the LOFF.

Why is the LOFF important?

    Under the MMPA, the United States prohibits imports of commercial 
fish or fish products caught in commercial fishing operations resulting 
in the incidental killing or serious injury (bycatch) of marine mammals 
in excess of United States standards (16 U.S.C. 1371(a)(2)). NMFS 
published regulations implementing these MMPA import provisions in 
August 2016 (81 FR 54390, August 15, 2016). The regulations apply to 
any foreign nation with fisheries exporting fish and fish products to 
the United States, either directly or through an intermediary nation.
    The LOFF is an integral part of the process for implementing the 
import provisions of the MMPA. As described below, the LOFF lists 
foreign commercial fisheries that export fish and fish products to the 
United States and that have been classified as either ``export'' or 
``exempt'' based on the frequency and likelihood of interactions or 
incidental mortality and serious injury of marine mammal. A harvesting 
nation must apply for and receive a comparability finding for each of 
its export and exempt fisheries to continue to export fish and fish 
products from those fisheries to the United States. For all fisheries, 
in order to receive a comparability finding under this program, the 
harvesting nation must prohibit intentional killing of marine mammals 
in the course of commercial fishing operations in the fishery or 
demonstrate that it has procedures to reliably certify that exports of 
fish and fish products to the United States were not harvested in 
association with the intentional killing or serious injury of marine 
mammals.

What do the classifications of ``exempt fishery'' and ``export 
fishery'' mean?

    The classifications of ``exempt fishery'' or ``export fishery'' 
determine the criteria that a particular nation's fishery must meet to 
receive a comparability finding for that fishery. A comparability 
finding is required for both exempt and export fisheries, but the 
criteria differ.
    The criteria for an exempt fishery to receive a comparability 
finding are limited only to those conditions related to the prohibition 
of intentional killing or injury of marine mammals (see 50 CFR 
216.24(h)(6)(iii)(A)). To receive a comparability finding, export 
fisheries, must comply with those criteria and also maintain regulatory 
programs comparable in effectiveness to the U.S. regulatory program for 
reducing incidental marine mammal bycatch (see 50 CFR 216.24(h)(6)).

What is the five-year exemption period?

    NMFS included a five-year exemption period (which began 1 January, 
2017) in this process to allow foreign harvesting nations time to 
develop, as appropriate, regulatory programs comparable in 
effectiveness to U.S. programs at reducing marine mammal bycatch. 
During this exemption period, NMFS, based on the final LOFF, and in 
consultation with the Secretary of State, will consult with harvesting 
nations with commercial fishing operations identified as export or 
exempt fisheries for purposes of notifying the harvesting nation of the 
requirements of the MMPA. NMFS will continue to urge harvesting nations 
to gather information about marine mammal bycatch in their commercial 
fisheries to inform the next draft and final LOFF. NMFS will re-
evaluate foreign commercial fishing operations and publish a notice of 
availability of the draft for public comment, and a notice of 
availability of the final revised LOFF in the Federal Register the year 
prior to the expiration of the exemption period (2020).
    If, during the five-year exemption period, the United States 
determines that a marine mammal stock is immediately and significantly 
adversely affected by an export fishery, NMFS may use its emergency 
rulemaking authority to institute an import ban on these products.

How will NMFS classify a fishery if a harvesting nation does not 
provide information?

    In instances where information on the commercial fishing operations 
and the frequency and likelihood of bycatch in a fishery has not been 
provided by the nation or is not readily available, NMFS may determine 
whether a fishery is an exempt or export fishery by evaluating the 
fishery using information 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.
    As anticipated, information on the frequency or likelihood of 
interactions or bycatch in most foreign fisheries was lacking or 
incomplete. In the absence of such information, NMFS used the 
information noted above to classify fisheries, which may include 
drawing analogies to similar U.S. fisheries and gear types interacting 
with similar marine mammal stocks. Where no analogous fishery or 
fishery information exists, NMFS classified the commercial fishing 
operation as an export fishery until such time as information comes 
available to properly classify the fishery. NMFS may reclassify a 
fishery if a harvesting nation provides, during the comment period, 
reliable information to reclassify the fishery or such information is 
readily available to NMFS in the course of preparing a revised LOFF.

Instructions to Nations Reviewing the Draft LOFF

    In the LOFF, the vast majority, 3272 fisheries, are classified as 
export fisheries in accordance with 50 CFR 216.24(h)(3) and 216.3. To 
ensure the appropriate classification of their fisheries, nations 
should review the LOFF at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html together with this Federal Register notice carefully and 
submit detailed comments on their commercial fishing and processing 
operations. In this Federal Register notice, NMFS provides detailed 
information on the information reviewed to create the LOFF, the 
criteria used to classify a fishery as exempt or export, and the 
assumptions made to determine such classifications based on the 
information submitted or found readily available.

[[Page 39764]]

    If a nation or entity wishes to advocate for a change in the 
classification of a fishery, the nation or entity should provide 
detailed information about the fishery, summaries of observer or 
logbook data, information on analogous fisheries where marine mammal 
bycatch may or may not occur, and detailed documentary evidence to 
support its claims, including, whenever possible, peer-reviewed data on 
marine mammal bycatch and impacts of bycatch to marine mammal 
population abundance. NMFS recommends that nations make specific edits 
in the appropriate column to the draft LOFF and provide references and 
supporting information.
Instructions for Freshwater and Inland Fisheries
    Fisheries that occur solely in fresh water outside any marine 
mammal habitat, and inland aquaculture operations, are exempt from this 
rule. If any such fisheries have been included in the LOFF, nations 
should indicate such fisheries and provide the necessary documentary 
evidence so NMFS can remove them from the LOFF as appropriate.
Instructions for Data Sets Listed as ``None Provided''
    Many nations either did not provide information or provided 
incomplete information. Where no information was provided, NMFS 
labelled that data set as ``none provided.'' Nations are strongly 
encouraged to provide that information during the public comment 
period. In particular, NMFS is lacking information for many fisheries 
on gear type, area of operation, marine mammal species that a fishery 
may encounter or entangle as bycatch, and bycatch estimates for many 
species. This information is critical for properly classifying the 
fishery. When no information was provided, NMFS used other readily 
available information to define a fishery. Nations are urged to review 
both information supplied by the nation or discovered by NMFS, 
especially those nations that did not provide information or provided 
incomplete information.
    NMFS also urges nations to provide the area of operation for both 
wild-caught fisheries and aquaculture operations for all the fisheries 
listed. It is particularly important for nations to provide information 
on the location of aquaculture operations (e.g., open ocean, lagoon, or 
pond) and the type of aquaculture operation (e.g., pens, cages, or 
lines); without this information, NMFS cannot properly classify an 
aquaculture operation.
Instructions for Reviewing Gear Type and Operational Areas
    In developing the LOFF, NMFS divided the fisheries by gear type 
because certain gears are documented as posing a greater risk of having 
marine mammal bycatch than others. Subdividing fishery information in 
this manner may not account for the actual or estimated number of 
vessels. Nations should review the number of vessels licensed to fish 
with a particular gear type and provide comments or revised estimates 
of vessels licensed to fish with that gear type.
    Some fisheries in the LOFF are likely multi-species fisheries but 
are currently classified separately by fish species. If a fishery 
listed has multiple target species (e.g., demersal fish or large 
pelagics) and is represented more than once on the LOFF, nations should 
consider consolidating those fisheries to accurately reflect the multi-
species nature of that fishery. For example, cod and haddock fisheries 
that are classified separately can be designated as multispecies 
groundfish fishery (including cod, haddock, etc.). NMFS encourages 
nations to aggregate those fisheries that are listed separately into a 
broader fishery designation, as appropriate, and provide NMFS with a 
list of fish species that are captured in that fishery and its 
operational details (e.g., coastal pelagic gillnet fishery).
    NMFS also urges nations to group or list fisheries, not based on 
the product exported but on the actual target species of the fishery. 
If an exported fish or fish product is not a target of a fishery but 
rather is a bycatch of that fishery, nations should note that 
information. NMFS prefers avoiding consolidating gear types together 
due to the different risk gear types pose to marine mammals, but would 
consider aggregating fisheries by target species or area, based on a 
nation's recommendations.
    NMFS separated fisheries into specific areas of operation. Our 
experience indicates that marine mammal bycatch can differ depending on 
a fishery's area of operation and its overlap with marine mammal 
populations. NMFS urges nations to review the area of operation listed 
for each fishery and aggregate fisheries of the same gear type into 
larger areas of operation (e.g., encompassing more bays or management 
zones) where appropriate. NMFS recommends avoiding collapsing areas 
into larger management areas unless it is appropriate to do so and 
would not result in a fishery with marine mammal bycatch disadvantaging 
one or more fisheries that do not pose the same level of risk.
Instructions for High Seas Fisheries Operating Within a Regional 
Fishery Management Organization, Intergovernmental Agreement, or Access 
Agreement
    NMFS attempted to identify fisheries that are operating within a 
convention area of a regional fishery management organization (RFMO) or 
are associated with an intergovernmental agreement. NMFS requests that 
nations identify which fisheries are operating or authorized under an 
RFMO or intergovernmental agreement and provide information on 
conservation and management measures that specifically govern the 
bycatch of marine mammals in that organization. This information will 
further assist in the classification of fisheries and determinations 
related to future comparability findings.
    Many nations have access agreements with other nations that permit 
them to fish within the EEZ or territorial waters of another nation 
(see annex on global tuna catch and access agreements in supporting 
documents at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html).
    In most cases, nations did not provide information distinguishing 
between vessels permitted to fish in their own territorial waters from 
their national vessels fishing in distant waters under some type of 
access agreement. NMFS strongly encourages nation to identify which 
fisheries are operating under access agreements in distant waters or 
within the EEZ of another nation and the reporting requirements for 
such fisheries.
Instruction for Nations That Are Processing Fish and Fish Products
    For the purposes of identifying intermediary nations (discussed 
below), if a nation exports a fish or fish product to the United States 
for which it is only the processor, and the fish in that product is 
harvested elsewhere, NMFS strongly encourages nations or other entities 
to identify those products and the source fisheries and nations for 
those products. Providing this information will result in NMFS re-
classifying a nation as an intermediary nation for that specific fish 
or fish product.
Instructions for Fisheries With No Specific Target Species
    Nations will note that there are products for which NMFS has been 
unable to find information (e.g., gear type and area of operation), and 
there

[[Page 39765]]

are fisheries that have been documented in the literature as having 
marine mammal bycatch associated with a nation and gear type but for 
which no target species of fish or fish products was identified. NMFS 
urges nations to provide the information that is lacking and as much 
detail as possible about the fishery, its operational characteristics, 
and its interactions with marine mammals, including applicable 
references.
Instructions for Which Fisheries Should be Included in the LOFF
    NMFS urges nations to examine their exports to the United States 
over the last decade and include all fisheries which have, are, or may 
in the future be the source of fish and fish products exported to the 
United States. To ensure that no fisheries are overlooked in this 
process, nations should be as inclusive as possible. Nations or other 
entities should provide all the documentation and applicable references 
necessary to support any proposed modifications to the fisheries in the 
LOFF. Providing such information will ensure an accurate classification 
of each fishery in the final LOFF and avoid requiring a nation to 
develop a regulatory program for a fishery classified as an export 
fishery because the nation failed to provide information.
Instructions for Non-Nation Entities
    NMFS welcomes the input of the public, non-governmental 
organizations, and scientists. These entities can provide critical 
information about marine mammal bycatch in global fisheries and efforts 
to mitigate such bycatch. NMFS requests that when such entities comment 
on the LOFF, they provide as much detail and supporting documentary 
evidence as possible. While there are references in the literature to 
marine mammal bycatch in certain foreign fisheries, it may be that fish 
and fish products originating from those fisheries are not exported to 
the United States (e.g., artisanal or coastal fisheries for domestic 
consumption). NMFS would like to receive information on which fish and 
fish products are exported to the United States and the frequency of 
marine mammal interactions or bycatch in those fisheries.
Further Direction and Instructions
    NMFS urges all nations and all stakeholders to review the criteria, 
assumptions, and global classifications that follow in this Federal 
Register notice, to more completely understand the classifications and 
rationale in the LOFF.

Definitions

What is a ``comparability finding?''

    A comparability finding is a finding by NMFS that the harvesting 
nation for an export or exempt fishery has met the applicable 
conditions specified in the regulations (see 50 CFR 216.24(h)) subject 
to the additional considerations for comparability findings set out in 
the regulations. A comparability finding is required for a nation to 
export fish and fish products to the United States. In order to receive 
a comparability finding for an export fishery, the harvesting nation 
must maintain a regulatory program with respect to that fishery that is 
comparable in effectiveness to the U.S. regulatory program for reducing 
incidental marine mammal bycatch. This may be met by maintaining a 
regulatory program that includes measures that are comparable, or that 
effectively achieve comparable results, to the regulatory program under 
which the analogous U.S. fishery operates.

What is the definition of an ``export fishery?''

    The definition of export fishery can be found in the implementing 
regulations for section 101(a)(2) of the MMPA (see 50 CFR 216.3). NMFS 
considers ``export'' fisheries to be functionally equivalent to 
Category I and II fisheries under the U.S. regulatory program (see 
definitions at 50 CFR 229.2). The definition of an export fishery is 
summarized below.
    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 that 
have more than a remote likelihood of incidental mortality and serious 
injury of marine mammals in the course of its commercial fishing 
operations.
    Where reliable information on the frequency of incidental mortality 
and serious injury of marine mammals caused by the commercial fishing 
operation is not provided by the harvesting nation, the Assistant 
Administrator may determine the likelihood of incidental mortality and 
serious injury as more than remote by evaluating information concerning 
factors such as fishing techniques, gear used, methods used to deter 
marine mammals, target fish 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.
    Commercial fishing operations not specifically identified in the 
current LOFF as either exempt or export fisheries are deemed to be 
export fisheries until a revised LOFF is posted, unless the harvesting 
nation provides the Assistant Administrator with information to 
properly classify the foreign commercial fishing operation. The 
Assistant Administrator may also request additional information from 
the harvesting nation, as well as consider other relevant information 
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.

What is the definition of an ``exempt fishery?''

    The definition of exempt fishery can be found in the implementing 
regulations for section 101(a)(2) of the MMPA (see 50 CFR 216.3). NMFS 
considers ``exempt'' fisheries to be functionally equivalent to 
Category III fisheries under the U.S. regulatory program (see 
definitions at 50 CFR 229.2). The definition of an exempt fishery is 
summarized below.
    NMFS defines an 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 that 
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 ten percent of any marine mammal stock's bycatch 
limit, yet that fishery by itself removes one 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 such as fishing techniques, gear used, methods to deter 
marine mammals, target fish 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

[[Page 39766]]

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.

Developing the 2017 Draft List of Foreign Fisheries

How is the List of Foreign Fisheries organized?

    NMFS organized the LOFF by harvesting nation (or subsidiary 
jurisdiction), then exempt fisheries, export fisheries, and export 
fisheries with no information. The fisheries listed contain defining 
factors including geographic location of harvest, gear-type, target 
species or a combination thereof. The LOFF also includes a list of the 
marine mammals that interact with each commercial fishing operation, 
where known, and, when available, indicates the level of incidental 
mortality and serious injury of marine mammals in each commercial 
fishing operation.

What sources of information did NMFS use to classify the commercial 
fisheries included in the draft LOFF?

    NMFS reviewed and considered documentation provided by nations; the 
public; and other sources of information, where available, including 
fishing vessel records; reports of on-board fishery observers; 
information from off-loading facilities, port-side government 
officials, enforcement, transshipment vessel workers and fish 
importers; government vessel registries; RFMOs or intergovernmental 
agreement documents, reports, national reports, and statistical 
document programs; appropriate catch certification programs; Food and 
Agricultural Organization (FAO)documents and profiles; and published 
literature and reports on commercial fishing operations with 
intentional or incidental mortality and serious injury of marine 
mammals. NMFS has used these sources of information and any other 
readily available information to classify the fisheries as ``export'' 
or ``exempt'' fisheries to develop the LOFF.

How did NMFS obtain the information used to classify fisheries included 
in the draft LOFF?

    First, NMFS identified imports of fish and fish products by nation 
using the U.S. foreign trade database for commercial fisheries imports 
found at: https://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/. Second, in December 2016 NMFS notified in writing each nation 
with commercial fishing or processing operations that export fish or 
fish products to the United States to request that within 90 days of 
notification, by April 1, 2017, the nation submit information about 
commercial fishing or processing operations. NMFS included in that 
notification a list of fish and fish products imported into the United 
States from that nation during the past several years.
    For commercial fishing operations, NMFS requested information on 
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 
or bycatch. NMFS also requested that nations submit copies of any laws, 
decrees, regulations, or measures to reduce incidental mortality and 
serious injury of marine mammals in their commercial fishing operations 
or prohibit the intentional killing or injury of marine mammals.
    NMFS also evaluated information submitted by the nations and the 
public in response to Federal Register Notice (82 FR 2961, January 10, 
2017) seeking information on foreign commercial fishing operations that 
export fish and fish products to the United States and the frequency of 
incidental and intentional mortality and serious injury of marine 
mammals in those fisheries.

How did NMFS determine which species or stocks are included as 
incidentally or intentionally killed or seriously injured in a fishery?

    The LOFF includes a list of marine mammal species and/or stocks 
incidentally or intentionally killed or injured in a commercial fishing 
operation. The list of species and/or stocks incidentally or 
intentionally killed or injured includes ``serious'' and ``non-
serious'' documented injuries and interactions with fishing gear, 
including interactions such as depredation.
    NMFS reviewed information submitted by nations and readily 
available scientific information including co-occurrence models 
demonstrating distributional overlap of the commercial fishing 
operations and marine mammals to determine which species or stocks to 
include as incidentally or intentionally killed or seriously injured in 
or interacting with a fishery. NMFS also reviewed, when available, 
injury determination reports, bycatch estimation reports, observer 
data, logbook data, disentanglement network data, fisher self-reports, 
and the information referenced in the definition of exempt and export 
fishery (see above or 50 CFR 216.3).

How often will NMFS revise the List of Foreign Fisheries?

    NMFS has developed this draft LOFF and intends to publish a notice 
of the availability of the final LOFF in the Federal Register by 
January 1, 2018. NMFS will re-evaluate foreign commercial fishing 
operations and publish a notice of availability of the draft for public 
comment, and a notice of availability of the final revised LOFF in the 
Federal Register the year prior to the expiration of the exemption 
period (2020). NMFS will revise the final LOFF, as appropriate, and 
publish a notice of availability in the Federal Register every four 
years thereafter. In revising the list, NMFS may reclassify a fishery 
if new, substantive information indicates the need to re-examine and 
possibly reclassify a fishery. After publication of the LOFF, if a 
nation wishes to commence exporting fish and fish products to the 
United States from a fishery not on the LOFF, that fishery will be 
classified as an export fishery until the next LOFF 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 the 
regulations implementing section 101(a)(2) of the MMPA (see 50 CFR 
216.24(h)(8)(vi)).

How can a classification be changed?

    To change a fishery's classification, nations or other interested 
stakeholders must provide observer data, logbook summaries, or reports 
that specifically indicate the presence or absence of marine mammal 
interactions, quantify such interactions wherever possible, provide 
additional information on the location and operation of the fishery 
(e.g., nearshore in less than three meters of water), details about the 
gear type and how it is used, maps showing the distribution of marine 
mammals and the operational area of the fishery; information regarding 
marine mammal populations and the biological impact of that fishery on 
those populations, and/or any other documentation that clearly 
demonstrates that a fishery is either an export or exempt fishery.

[[Page 39767]]

The Intersection of the LOFF and Other Statutes Certifying Bycatch

What is the relationship between the MMPA import rule, the LOFF, and 
the affirmative finding process and yellowfin tuna purse seine 
fisheries in the eastern tropical Pacific Ocean?

    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 at 50 CFR 
216.24(a)-(g). Nations must still comply with those provisions and 
receive an affirmative finding in order to export tuna to the United 
States. Tuna purse seine fishing vessels fishing for tuna with a 
carrying capacity of 400 short tons or greater that are governed by the 
Agreement for the International Dolphin Conservation Program (AIDCP) 
are not included in the LOFF, and are not required to apply for and 
receive a comparability finding. Purse seine vessels under 400 short 
tons and vessels using all other gear types operating in the eastern 
tropical Pacific must comply with the MMPA import rule. These fisheries 
are included in the LOFF and must apply for and receive a comparability 
finding.

What is the intersection of the U.S. shrimp certification program 
(Section 609 of Pub. L. 101-162) with the MMPA import rule?

    Section 609 of Public Law 101-162 (``Sec. 609'') prohibits imports 
of certain categories of shrimp unless the President annually certifies 
to the Congress by May 1, 1991, and annually thereafter, that either: 
(1) The harvesting nation has adopted a program governing the 
incidental taking of sea turtles in its commercial shrimp fishery 
comparable to the program in effect in the United States and has an 
incidental take rate comparable to that of the United States; or (2) 
the particular fishing environment of the harvesting nation does not 
pose a threat of the incidental taking of sea turtles. On May 1, 2017, 
the Department of State certified that 13 shrimp-harvesting nations and 
four fisheries have a regulatory program comparable to that of the 
United States governing the incidental taking of the relevant species 
of sea turtles in the course of commercial shrimp harvesting and that 
the particular fishing environments of 26 shrimp-harvesting nations, 
one economy, and three fisheries do not pose a threat of the incidental 
taking of covered sea turtles in the course of such harvesting (83 FR 
21295 May 5, 2017). All nations exporting wild-caught shrimp and shrimp 
products to the United States, regardless of whether they are certified 
under this provision, must also comply with the MMPA import rule, be 
included on the LOFF, and have a comparability finding. Nations in 
compliance with the MMPA import rule, but not certified under Public 
Law 101-162, cannot export wild-caught shrimp to the United States.

Classification Criteria, Rationale, and Process Used To Classify 
Fisheries

Process When Incidental Mortality and Serious Injury Estimates and 
Bycatch Limits Are Available

    If estimates of the total incidental mortality and serious injury 
were available and a bycatch limit calculated for a marine mammal 
stock, NMFS used 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, at https://www.nmfs.noaa.gov/pr/interactions/lof/.

Process When Only Incidental Mortality and Serious Injury Estimates 
Were Available

    In the majority of cases, however, NMFS either did not receive any 
information or found that the information provided was incomplete, 
lacking detail regarding marine mammal interactions, and lacking 
quantitative information on the frequency of interactions. Where 
nations provided estimates of bycatch (incidental or intentional 
mortality or serious injury) or NMFS found estimates of bycatch in 
published literature, national reports, or through other readily 
available sources, NMFS classified the fishery as an export fishery if 
the information indicated that there was a likelihood that the 
mortality and serious injury was more than remote. The code or 
designation in the LOFF for the determination ``presence of bycatch'' 
is recorded as ``P'' in the LOFF.

Alternative Approaches When Estimates of Marine Mammal Bycatch Are 
Unavailable

    Because bycatch estimates were lacking for most fisheries, NMFS 
relied on three considerations to assess the likelihood of bycatch or 
interaction with marine mammals, including: (1) Co-occurrence, the 
spatial and seasonal distribution and overlap of marine mammals and 
fishing operations; (2) analogous gear, evaluation of records of 
bycatch and assessment of risk, where such information exists, in 
analogous U.S. and international fisheries or gear types; and (3) 
overarching classifications, evaluation of gears and fishing operations 
and their risk of marine mammal bycatch (see section below for further 
discussion). Published scientific literature provides numerous risk 
assessments of marine mammal bycatch in fisheries, routinely using 
these approaches to estimate marine mammal mortality rates, identify 
information gaps, set priorities for conservation, and transfer 
technology for deterring marine mammals from gear and catch. Findings 
from the most recent publications cited in this Federal Register 
notice, often demonstrate level of risk by location, season, fishery, 
and gear. A summary of the information used to support the designations 
described below is available in the annotated bibliography and the 
expanded LOFF with references and comments, at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html.

Co-Occurrence Evaluation

    The co-occurrence of marine mammal populations with a commercial 
fishing operation can be a measure of risk. NMFS evaluated, when 
available, the distribution and spatial overlap of marine mammal 
populations and commercial fishing operations to determine whether the 
probability for marine mammal interactions or bycatch in that fishery 
is more than remote. Resources that NMFS used to consider co-occurrence 
include OBIS-SEAMAP https://seamap.env.duke.edu/, https://www.hsi.org/assets/pdfs/mapping_marine_mammals.pdf and https://www.conservationecologylab.com/uploads/1/9/7/6/19763887/lewison_et_al_2014.pdf. Additional sources in peer reviewed literature 
that provide documentation of co-occurrence are Komoroske & Lewison 
2015; FAO 2010; Watson et al. 2006; Read et al., 2006; Reeves et al., 
2004. The code or designation for ``co-occurrence'' is recorded as ``C/
O'' in the LOFF.

Analogous Gear Evaluation

    Where a nation did not provide documentation or information was not 
readily available on the amount of marine mammal bycatch in a fishery 
or the co-occurrence, NMFS classified a fishery as exempt or export by 
analogy to similar U.S. or international fisheries and gear types 
interacting with similar marine mammal stocks. NMFS consulted the 
United States' domestic MMPA List of Fisheries when classifying by 
analogy international fisheries https://www.nmfs.noaa.gov/pr/interactions/fisheries/2017_list_of_

[[Page 39768]]

fisheries_lof.html. NMFS also evaluated other relevant information 
including, but not limited to: Fishing techniques, gear used, methods 
used to deter marine mammals, target fish 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. The code or designation for the determination 
``analogous gear'' is recorded as ``A/G'' in the LOFF. Gear types 
commonly used in U.S. fisheries, such as longline, gillnet, purse 
seine, trawl, and pot/trap, were identified as ``analogous gear'' in 
the justification section of the LOFF. Gear types not commonly used in 
U.S. waters, such as Danish seine, ring nets, lift nets or large pound 
nets off Southeast Asia, however, could not be compared to an analogous 
gear or fishery in the United States.

Classification in the Absence of Information

    When no analogous gear, fishery, or fishery information existed, or 
insufficient information was provided by the nation, and information 
was not readily available, NMFS classified the commercial fishing 
operation as an export fishery per the definition of ``export fishery'' 
at 50 CFR 216.3. These fishing operations will remain classified as 
export fisheries until the harvesting nation provides the reliable 
information necessary to classify properly the fishery or, in the 
course of revising the LOFF, such information becomes readily available 
to NMFS. The code or designation for the determination ``no 
information'' is recorded as ``N/I'' in the LOFF.

Multiple Codes and Additional Terms in the LOFF

    In some cases, NMFS recorded multiple codes as the rationale for a 
fishery classification. For example, NMFS may have received 
insufficient information from a nation, still lacks information in some 
columns, yet classified the fishery by analogy. In that instance, the 
codes used to classify the fishery would be: ``N/I, A/G.''
    Additional terms in the LOFF include ``none provided,'' ``no 
information,'' and ``none documented''. ``None provided'' indicates the 
nation did not provide information and no information could be found 
through research and literature searches. ``None documented'' indicates 
that neither the nation nor reference material have documented 
interactions with marine mammals either through observers or logbooks. 
``No information'' indicates that the nation provided information but 
did not specifically provide information on the marine mammal species 
interacting with a fishery or estimates of marine mammal bycatch.

Overarching Classifications

    Below is a discussion of the overarching fishery classifications of 
gillnets, longlines, purse seines, trawls, and aquaculture, and their 
interactions with marine mammals.

Gillnets

    Because the available information indicates that there is a 
likelihood that the mortality and serious injury caused by gillnets is 
more than remote, NMFS has classified all gillnet fisheries as export 
fisheries in the draft LOFF. Several U.S. gillnet fisheries, which are 
analogous to some fisheries considered in the LOFF, have been 
categorized as Category I fisheries under the MMPA. Records show that 
between 1990 and 2011, bycatch in gillnets continues to affect many 
dolphins (odontocetes); namely 56 of the 74 recognized species (75%) 
have been bycaught in gillnets (Reeves et al. 2013). Additionally, 
records indicate that nine species of the 14 recognized species of 
whales have been bycaught in gillnets. For seals and sea lions, 14 of 
the 18 extant species of phocid seals were captured in gillnets; and of 
the 14 species of otariid seals and sea lions (including one extinct 
species), seven have been bycaught in gillnets (Reeves et al. 2013). 
Since 1990, marine mammal bycatch in gillnets has increased and 
consistently poses a significant risk to marine mammals (Reeves et al. 
2013). In particular, Lewison et al. (2014) found that gillnets for 
finfish have high bycatch intensity in various fishing regions of the 
world.
    International and regional marine mammal and fishery management 
organizations such as ACCOBAMS (2008), ASCOBANS (2009), CMS (2011), FAO 
(2000), ICES (2013), IOTC (2014), and IWC (2004) have conducted 
workshops, collected information, and published findings documenting 
the high risk gillnets pose to marine mammals.
    Based on the available information, NMFS has designated all gillnet 
fisheries as export fisheries. Nations wishing to challenge this 
designation must provide observer or logbook data sufficient to refute 
this determination. When possible, NMFS requests nations provide 
documentation that demonstrates that a gillnet fishery poses a remote 
likelihood of incidental mortality and serious injury to marine 
mammals.

Longlines

    Because the available information indicates that there is a 
likelihood that the mortality and serious injury caused by longlines is 
more than remote, NMFS classified all longline fisheries as export 
fisheries. U.S. longline fisheries, which are analogous to some 
fisheries considered in the LOFF, have been categorized as Category I 
fisheries under the MMPA.
    In longline fisheries, hooking, entanglement, and boat strikes 
account for some mortality and serious injury, but not all interactions 
or depredation may have this result. Interactions of marine mammals 
with longline fisheries are likely to be under-reported (Clarke 2014). 
Though not as great a threat for cetaceans globally as compared with 
other gear types, longline bycatch is a threat to several species and 
populations, including false killer whales (Pseudorca crassidens), 
Risso's dolphin (Grampus griseus), and pilot whales (Globicephala spp.) 
in the Northwest Atlantic (Werner 2015). Killer whales (Orcinus orca) 
and sperm whales (Physeter macrocephalus) appear to be the main species 
involved with demersal longline fisheries at higher latitudes, while 
false killer whales (Pseudorca crassidens) and pilot whales 
(Globicephala spp.) appear to be the primary species involved with 
pelagic longline fisheries at lower latitudes (Hamer 2012).
    In a 2010 bycatch workshop with tuna RFMOs, the FAO found that 
progress on quantifying tuna RFMO fishery impacts on marine mammal 
populations and related progress in mitigating or reducing the 
mortality has been slow, because the priority for fishers is the 
adoption of measures to reduce or eliminate depredation and gear damage 
(FAO 2010). In tuna longline fisheries, which represent a significant 
portion of fisheries that export seafood to the United States, 
cetaceans are occasionally entangled and hooked. Any entanglement could 
be mitigated by the use of voluntary or mandated best practices to 
avoid bycatch by the tuna fishing industry; however, to date, the 
application of such techniques has been limited (Gilman 2011).
    Only through an evaluation of the bycatch rate and a determination 
of overall risk of bycatch associated with longline fishing can 
definitive case-by-case classifications be made for longline fisheries. 
NMFS invites nations who are parties and cooperating non-parties to 
RFMOs to join us in urging their respective RFMOs to undertake, as a 
research priority, such a risk assessment and analyze logbook and 
observer data

[[Page 39769]]

to analyze the marine mammal bycatch risk posed by longline fisheries.
    NMFS designated all longline fisheries as export fisheries. Nations 
wishing to challenge this designation must provide observer or logbook 
data sufficient to refute this determination. When possible, NMFS 
requests that nations provide documentation that demonstrates that a 
longline fishery poses a remote likelihood of incidental mortality and 
serious injury to marine mammals.

Purse Seines

    Because the available information indicates that there is a 
likelihood that the mortality and serious injury caused by purse seines 
is more than remote, NMFS classified several types of purse seine 
fisheries as export fisheries. Purse seine gear is documented to have 
marine mammal bycatch globally (Anderson 2014, Hall 2013, NOAA Tech 
Memo 2011). A portion of tuna exported to the United States is captured 
with purse seines, documented to have marine mammal bycatch (Anderson 
2014, Gilman 2011, IOTC 2010). Marine mammal interactions have been 
documented in purse seine fisheries other than those for tuna, 
including anchovy (Gonzales 2015), sardine (Prajith 2014), and small 
scale coastal fisheries for various species (Mustika, 2014, Kiszka 
2008).
    Purse seine fisheries for tuna are, with some exceptions, managed 
through RFMOs according to agreements entered into by member nations. 
Five tuna RFMOs manage fisheries in the Southern Ocean, Indian Ocean, 
Eastern Tropical Pacific, Western and Central Pacific, and Atlantic. 
Only three RFMOs have adopted measures to mitigate marine mammal 
bycatch in purse seine fisheries or prohibit entirely the intentional 
encirclement of marine mammals with purse seines. Specifically, the 
Inter-American Tropical Tuna Commission serves as the secretariat for 
the International Dolphin Conservation Program; the Indian Ocean Tuna 
Commission prohibits members from intentionally setting on cetaceans; 
and the Western and Central Pacific Fisheries Commission also prohibits 
intentionally setting on schools associated with cetaceans, and 
requires reasonable steps to ensure safe release of marine mammals. The 
International Commission for the Conservation of Atlantic Tunas and the 
Commission for the Conservation of Southern Bluefin Tuna do not 
prescribe marine mammal conservation measures.
    NMFS designated most non-tuna purse seine fisheries as export 
fisheries. Purse seine fisheries outside tuna RFMO areas of 
jurisdiction are designated as export fisheries. Tuna fisheries within 
the jurisdiction of RFMOs lacking measures that prohibit intentional 
encirclement are export fisheries. Tuna fisheries within the 
jurisdiction of RFMOs with measures that prohibit intentional 
encirclement are exempt fisheries, unless information submitted by 
nations or readily available scientific information shows that the 
fishery has more than a remote likelihood of incidental mortality and 
serious injury of marine mammals in the course of its commercial 
fishing operations. Nations wishing to challenge these designations 
must provide observer or logbook data sufficient to refute this 
determination. When possible, NMFS requests nations provide 
documentation that demonstrates that purse seine gear in a particular 
fishery poses a remote likelihood of incidental mortality and serious 
injury to marine mammals.

Trawl

    Because the available information indicates that there is a 
likelihood that the mortality and serious injury caused by trawl 
fisheries is more than remote, NMFS classified several types of trawl 
fisheries as export fisheries. U.S. trawl fisheries with marine mammal 
bycatch, which are analogous to some fisheries considered in the LOFF 
have been categorized as Category II fisheries under the MMPA.
    Trawl fisheries, including bottom, mid-water, and pelagic trawls, 
have been documented to globally interact with marine mammals (Peltier 
et al. 2016, Komoroske & Lewison 2015, Read 2014, Brown 2014). 
Pinnipeds are more likely to be entangled in industrial pair and 
pelagic trawl fisheries (Machado 2015, Lobao-Tello et al. 2013). ICES 
(2010) has identified pelagic trawl nets as posing a risk of cetacean 
bycatch. Northridge et al. (2011) documented bycatch of harbor 
porpoises, bottlenose dolphins, common dolphins, pilot whales, minke 
whales, grey and harbor seals in mid-water and pair trawl fisheries in 
the North Atlantic. Trawl bycatch intensity was found to be higher in 
certain regions (Lewison et al. 2014).
    Nations wishing to challenge that designation must provide observer 
or logbook data sufficient to refute this determination. When possible, 
NMFS requests nations provide documentation that demonstrates that a 
trawl fishery poses a remote likelihood of incidental mortality and 
serious injury to marine mammals.

Aquaculture

    Based on the available information, NMFS has designated most 
aquaculture operations for which nations submitted information as 
exempt fisheries unless there is a record of entanglement or 
intentional killing in such aquaculture operations. Because the MMPA 
import rule applies to aquaculture facilities sited in marine mammal 
habitat, where deterrence measures (e.g., anti-predator nets) may 
incidentally or intentionally kill and seriously injury marine mammals, 
NMFS evaluated an array of aquaculture operations, some of which have 
no analogous operations or characteristics to operations in the United 
States. Aquaculture operations for finfish (especially salmon), 
mollusks, seaweed, and other species are proliferating globally. Since 
1990, annual production of salmonid farms has increased from 299,000 to 
1,900,000 tons (FAO 2012), and accompanying this expansion has been an 
increase in conflicts with marine mammals, especially pinnipeds. 
Pinniped depredation is a major problem at many aquaculture facilities 
in Europe, Chile, Australia, and South Africa (Kemper et al. 2003). 
Some nations use anti-predator nets as a deterrent.
    In some aquaculture operations, bycatch of marine mammals in anti-
predator nets occurs occasionally, although direct killing, harassment, 
and exclusion from preferred habitat may pose more serious problems for 
marine mammal populations (Kemper et al. 2003). Fatal entanglements of 
odontocetes in aquaculture anti-predator nets appear to be infrequent; 
however, dolphin deaths in such nets have been reported from salmon and 
tuna facilities in Australia and Chile (Kemper et al. 2003).
    Literature documenting marine mammal interactions and the risk of 
marine mammal interactions with aquaculture equipment, or fish cages is 
lacking. For net pens and fish cages, the most damaging marine mammal 
interactions are with pinnipeds, while dolphins, porpoises and whales 
are viewed as a minor threat. Dolphins have been documented feeding on 
wild fish attracted to marine fish farms off Italy but were not 
reported to predate the caged fish (D[iacute]az L[oacute]pez et al. 
2005). In a five-year study of Italian sea bass, sea bream, and meagre 
cages, D[iacute]az L[oacute]pez (2012) observed individually identified 
dolphins to assess patterns of habitat use and farm fidelity. Dolphins 
near farms typically foraged on wild fish concentrated in the farm but 
also fed on discarded or escaping fish during harvesting operations. 
Annual dolphin mortality was 1.5 per year, and five animals were found 
entangled in nets during the study period. The potential for marine 
mammals to become

[[Page 39770]]

entangled and drown in farm structures or lines is a concern 
(W[uuml]rsig and Gailey 2002). From surveys at marine fish farms off 
Italy, D[iacute]az L[oacute]pez and Shirai (2007) estimated one 
bottlenose dolphin mortality per month due to entanglement with farm 
nets.
    Mussel aquaculture is a growing industry, with coastal and offshore 
waters being utilized for mussel aquaculture farms. This form of 
aquaculture uses ropes in the water column that pose an entanglement 
risk to marine mammals, particularly whales, although the extent of the 
risk is undetermined. In 2015, a Pacific right whale was documented 
entangled in, but successfully disentangled and released from, the 
grow-out ropes of mussel farm gear in Korea (Young, 2015). A Bryde's 
whale was entangled in mussel spat lines off the coast of New Zealand 
(Lloyd 2003). A humpback calf was found entangled in mussel spat-
collecting rope off Western Australia but was disentangled and released 
(Groom & Coughran, 2012). Finally, a humpback whale died from 
entanglement in single dropper spat- collectors at an experimental 
mussel farm in northwest Iceland (Young, 2015). Given this information, 
the placement of aquaculture farms in waters that are critical habitats 
and migratory routes for endangered species, can increase the risk of 
entanglements, and in so doing can change the classification of the 
aquaculture operation.
    Review of the NMFS U. S. Atlantic and Gulf of Mexico Marine Mammal 
Stock Assessments (Waring et al. 2012, 2015) finds very few verified 
instances of marine mammals being injured by or entangled in 
aquaculture gear. U.S aquaculture facilities are Category III 
fisheries, because there are no known incidental mortalities or serious 
injuries of marine mammals in these operations, and they are considered 
to have a remote likelihood of marine mammal interactions. Therefore, 
by analogy, NMFS is proposing to classify all aquaculture operations 
for which nations provided information (or for which scientific 
information is readily available) as exempt in the LOFF, absent 
information and evidence that a particular aquaculture operation has 
more than a remote likelihood of incidental mortality and serious 
injury of marine mammals, NMFS is seeking comment on this 
classification. However, NMFS has classified as export fisheries 
aquaculture facilities with a record of entanglement or a history of 
intentional killing. A harvesting nation must demonstrate that all 
aquaculture operations, regardless of their classification, sited in 
marine mammal habitat or interacting with marine mammals, are 
prohibited from the intentional killing or serious injury of marine 
mammals in the course of aquaculture operations or have established 
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.
    While NMFS desires more information about the environmental risk of 
these operations, particularly mussel rope and cage aquaculture, to 
marine mammals and urges the industry to develop mitigation techniques 
to avoid potential entanglements or reduce their severity, the 
documented interactions have been mostly non-life threatening. 
Nevertheless, in developing the LOFF, NMFS has evaluated, and will 
continue to evaluate, aquaculture operations on a case-by-case basis, 
considering the operation's measures to reduce interactions, prohibit 
intentional mortality, and reduce incidental mortality and serious 
injury of marine mammals (e.g., use of anti-predator nets and the 
prohibition on intentional killing).

Fisheries or Gear Types Excluded From This Rule or That are Generally 
Listed as Exempt

    In the implementing regulations and the LOFF, NMFS has defined 
``commercial fishing operation'' as: 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. Consequently, this rule does 
not apply to any land-based or freshwater aquaculture operations; these 
commercial fishing operations do not occur in marine mammal habitat.
    Additionally, there are several gear types in the U.S. List of 
Fisheries that are consistently and broadly classified as category III 
fisheries with no documented marine mammal catch (see https://www.nmfs.noaa.gov/pr/interactions/fisheries/2016_list_of_fisheries_lof.html#table3_cat3). NMFS has classified those 
fisheries as Category III because there are often no known incidental 
mortalities or serious injuries of marine mammals in these fisheries, 
and there is a remote likelihood of marine mammal mortalities and 
serious injuries given that the fishing method or gear is highly 
selective. These include:

 handline
 harpoon
 hook and line
 pole and line
 spearfishing
 aquarium collecting
 cast net
 hand collection
 loop net
 rake/tongs
 diving

    By analogy, NMFS classified these gear types as exempt in the LOFF.

What was the process for notification and the classification for 
fisheries where nations failed to provide information?

    NMFS first informed nations of the requirements of the MMPA import 
rule and the process to develop the LOFF via a cable sent to all 
trading partners in September 2016. On December 21, 2016, NMFS sent a 
letter to the Washington, DC embassy of each trading partner officially 
requesting the information needed to create the LOFF. The letter 
included explicit details about the type of information needed. From 
March through June 2017, NMFS followed up on these requests by phone, 
emails, and in some cases, visits to embassies in the United States, 
requesting information on nation's fisheries that export to the United 
States. Additionally, NMFS searched readily available information, 
including FAO documents, in an attempt to classify fisheries for which 
nations failed to provide sufficient information or provided no 
information at all. If nations submit information during this comment 
period on the draft LOFF, NMFS will consider this information when 
developing the final LOFF.
    As discussed above, NMFS classified as export fisheries all 
fisheries from nations that failed to respond to requests for 
information or provided insufficient information about a fishery and 
for which information was not readily available as stipulated in the 
implementing regulations defining export and exempt fishery (see 50 CFR 
216.3 Definitions of Export and Exempt Fishery).

Nations that Failed to Provide Information

    The following nations failed to provide information on their 
fisheries, and NMFS did not find available information to classify 
their fisheries; consequently, NMFS classified all these nations' 
fisheries as export fisheries (see 50 CFR 216.3 Definitions of Export 
and Exempt Fishery).

     British Virgin Islands (BVI) failed to provide data for 
exports of marine fish,

[[Page 39771]]

toothfish, snapper and squid. BVI maintains that it does not export 
fish and fish products to the United States.
     Cameroon failed to provide data for exports of 
groundfish (cod, cusk, haddock, hake, pollock, sole), mackerel, 
herring, snail, mussels, oysters, crawfish, crustaceans, tilapia, 
and shrimp. These species may be harvested with longlines and 
gillnets. Indications of marine mammal bycatch in longlines (Werner 
2014) and gillnets (Ayissi et al. 2014) are documented; however, the 
target species for these gear types are not identified in the 
literature for Cameroon.
     China also did not provide information, and the data 
readily available and used to classify China's fisheries that export 
to the United States may not accurately characterize existing 
aquaculture operations, processing operations, and wild-capture 
fisheries.
     Haiti failed to provide data for exports of conch, 
coral, crab, lobster, molluscs, sea cucumbers, and shrimp. Haiti has 
not exported fish or fish products to the United States since 2012.

Classification for Fisheries of Nations Identified as Solely 
Intermediary Nations

    NMFS defines an intermediary nation as a nation that imports fish 
or fish products from a fishery on the LOFF and re-exports such fish or 
fish products to the United States. To prevent any fish or fish 
products subject to import prohibitions authorized by the MMPA import 
rule from being imported into the United States from any intermediary 
nation, including a processing nation, NMFS includes provisions for 
intermediary nations (see 50 CFR 216.24 (h)(9)(iv)). NMFS requested 
that intermediary nations provide information on the fisheries and 
nations that are the source of any imported product that they process 
and export to the United States. Many nations failed to provide this 
information; NMFS continues to urge them to do so.
    Based on the information received or obtained, the following 
nations are solely intermediary nations: Belarus, Monaco, and 
Switzerland. Israel is predominantly an intermediary nation except for 
the export of seaweed, tuna, and freshwater species-derived caviar. 
Nations are encouraged to identify and indicate the fish and fish 
products for which they are acting as intermediary nations.

Nations That Do Not Have a Consistent History of Exporting Fish and 
Fish Products to the United States and Are Not Included in the List of 
Foreign Fisheries

    In reviewing the import data, information submitted by nations, and 
readily available information, NMFS identified twenty-five trading 
partners that either exported solely freshwater species or had a 
sporadic or inconsistent export history with the United States. Table 1 
summarizes the nations that NMFS has determined will not be included in 
the LOFF and are not subject to any of the requirements of the MMPA 
import rule. However, if any of these nations wish to export fish and 
fish products to the United States, they must contact NMFS and satisfy 
the requirements of the MMPA import rule.

    Table 1--Nations Suggested for Removal From the MMPA LOFF and the
                        Justification for Removal
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Bolivia
    Justification--Landlocked nation, low level of U.S. fish imports
     from Bolivia.
    Detail--Landlocked nation. In 2006 & 2015, the U.S. imported fish
     and shellfish meal not for human consumption, and fish eggs only in
     2006. In 2013, Bolivia exported seaweed to the U.S.
    https://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/.
    https://www.fao.org/fi/oldsite/FCP/en/bol/profile.htm.
    https://www.fao.org/fishery/facp/BOL/en.
Bosnia Hercegovina
    Justification--Export conch (2015), grouper, snapper, and swordfish
     (2003).
    Detail--Very small amount of coastline on the Adriatic Sea. ``The
     role of maritime areas in the total national economy is very small.
     There are no exact figures on the performance of the economy but it
     is estimated (Strategy for development of tourism of Bosnia and
     Herzegovina) that the GDP from the maritime area of Bosnia and
     Herzegovina is less than 1 percent of the total GDP of the country
     (European Commission, 2014 H).''
    Fisheries are artisanal and sold domestically or captured for
     domestic aquaculture.
    https://www.fao.org/3/a-au016e.pdf.
    https://www.fao.org/fishery/facp/BIH/en.
Burkina Faso
    Justification--Landlocked; only export waxes.
    Detail--Have exported ``waxes, may include spermaceti'' to the U.S.
     in 2010, 2013, 2014, and 2016. Further consultation with NMFS
     Office of Science and Technology (S&T) and Customs and Border
     Protection (CBP) revealed that since cessation of commercial
     whaling and whale product imports, ``waxes'' encompasses waxes not
     derived from spermaceti whale oil, such as beeswax.
Cayman Islands
    Justification--Only toothfish exports which may be an error.
    Detail--Consultations with S&T, CBP, and NOAA experts on the
     Dissostichus catch documentation scheme indicate that attribution
     of toothfish catch to Cayman Islands is likely a recording error of
     ``last port'' vs. ``origin of product.'' NMFS contacted the
     Caymans, and they have no records of toothfish exports. Further,
     the catch documentation scheme ensures that toothfish cannot enter
     the United States without valid catch documentation.
Central African Republic (CAR)
    Justification--Landlocked, possible processor only.
    Detail--Exported processed squid in 2016, lobster, yellowfin and
     swordfish 2000-2001. Aquaculture for domestic use only. https://www.fao.org/3/a-au069e.pdf FAO indicates that CAR does not have an
     export market for fish products: Table 2.
    https://www.fao.org/fishery/facp/CAF/fr.
Chad
    Justification--Landlocked; Last 17 years only product exported was
     thickeners derived from seaweed (2015).
    Detail--Landlocked, local economy produces no exports of fish for
     human consumption to U.S. from Chad.
    https://www.fao.org/fishery/facp/TCD/fr.
Christmas Island, territory of Australia
    Justification--During the last 17 years exports have been sporadic,
     clam or crab in 2002, 2003, 2004, 2007, fish liver, roe 2016.
    Detail--Australia indicated that no export fisheries originate from
     Christmas Island.
Cocos Island
    Justification--Freshwater fish exports.

[[Page 39772]]

 
    Detail--Between 2000 and 2017, Cocos Island has exported tilapia
     once to the U.S. Australia noted hand collection of giant clam for
     aquaculture and re-seeding in the waters around Cocos Island, but
     these products are not entering the U.S. via Cocos Island.
Ethiopia
    Justification--Landlocked, only product exported is waxes.
    Detail--Consultation with NMFS S&T and CBP revealed that since
     cessation of commercial whaling and whale product imports,
     ``waxes'' encompasses wax that is not made from spermaceti whale
     oil, likely beeswax. Ethiopia confirmed the wax was beeswax.
    Ethiopian fisheries are entirely from aquaculture with limited
     exports.
    https://www.fao.org/fishery/facp/ETH/en.
French Guiana
    Justification--Freshwater fish in 2016, no exports to the U.S. 2001-
     2015.
    Details--Rule does not apply to freshwater fisheries.
Hungary
    Justification--Landlocked; Seaweed and other algae, historically
     caviar (2014).
    Details--Hungary has extensive inland capture fisheries, pond
     aquaculture, and fish farming. Carps are the most popular fish
     species in capture fisheries (54%) and pond aquaculture (82%) while
     African catfish is the dominant fish in intensive fish farming.
     Inland waters have high value predator species such as pikes,
     catfish and pike perch, which were not exported to the U.S. Given
     the inland nature of Hungarian fisheries, the export of seaweed is
     likely from inland freshwater aquaculture and fish farming and is
     therefore not included under this rule.
Kazakhstan
    Justification--Landlocked; Solely freshwater fisheries, some caviar.
    Details--The MMPA import rule does not apply to freshwater
     fisheries. The last U.S. import of caviar (aquaculture) was in
     2010. Aquaculture is on the rise, but fish farming is expensive to
     maintain and consequently results in very few exports.
    ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_KZ.pdf.
Kyrgyzstan
    Justification--Landlocked; Oysters, canned (2004), dolphinfish and
     tilapia (2013), marine fish (2015).
    Details--In the last 17 years, U.S. importation records show imports
     for only the three years listed above. Import reports/records may
     be an error, generally there are no consistent seafood imports to
     the U.S. from this nation.
Macedonia
    Justification--Landlocked; Exported fish paste in 2016.
    Details--Exported fish paste (2016 and 2010), and processed tuna in
     2010. Their fisheries are entirely freshwater, for which the rule
     does not apply.
    ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_MK.pdf.
Mali
    Justification--Landlocked, main export is waxes 2003 to 2015.
    Details--Mali exported to the U.S. grouper and processed fish in
     2009, and solely waxes were exported to the U.S. other years, with
     no exports to the U.S. between 2015-present.
    ftp://ftp.fao.org/FI/DOCUMENT/fcp/fr/FI_CP_ML.pdf (in French).
Moldova
    Justification--Landlocked; Export is aquaculture derived caviar.
    Details--Moldova exported tuna and caviar in 2012 and 2016, caviar
     only in 2015. FAO has no record of tuna or caviar harvest in
     Moldova:
    ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_MD.pdf.
    It appears that most of the sturgeon caviar harvest is derived from
     aquaculture:
    https://www.aquatir.md/?lang=en (and other google searches).
Mongolia
    Justification--Landlocked, freshwater fisheries only.
    Details-- Mongolia exported to U.S. seaweed unfit for human
     consumption in 2016 (processed product). No FAO fishery profile.
     The MMPA import rule does not apply to freshwater inland fisheries.
Monserrat
    Justification--freshwater aquaculture; No exports to U.S. from 2000-
     2017 with exception of tuna in 2012.
    Details--It appears that Monserrat has no active commercial tuna
     fishery (https://waittinstitute.org/wp-content/uploads/2016/11/5_Montserrat-Fisheries-Assessment-final.pdf, and targeted
     searches), no FAO fishery profile.
Serbia
    Justification--No exports 2000-17 with the exception of tuna in
     2012.
    Details--Landlocked, Rule does not apply to freshwater aquaculture.
     No FAO fishery profile. (https://www.fao.org/fishery/countrysector/naso_serbia/en). Do not and have not fished for tuna as members of
     International Convention for the Conservation of Atlantic Tunas.
Slovakia
    Justification-- Landlocked; Freshwater pond aquaculture.
    Details-- U.S. does not import aquaculture product from Slovakia.
     The U.S. imported bigeye and yellowfin tuna in 2013 and pickled
     herring in 2014. Neither are products that Slovakia is likely
     harvesting or processing.
    ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_SK.pdf.
Somalia
    Justification--U.S. imported shrimp in 2002, lobster (Homarus spp.)
     in 2004, and coral/shells in 2015.
    Details--The Homarus lobster is not native to the Indian Ocean;
     therefore, this product is likely a re-export or reporting error.
     Coral and shell fisheries are predominantly hand collection
     fisheries and have a remote likelihood of marine mammal
     interaction. NMFS was unable to find evidence of an existing shrimp
     fishery. Possible import recording issue as the U.S. is not
     actively importing any product from Somalia. (https://www.fao.org/fi/oldsite/FCP/en/SOM/profile.htm).
Tokelau Islands, Territory of New Zealand
    Justification--No commercial fisheries.
    Details--2000-2017 U.S. Trade Data shows records of exports of
     marine fish (2001, 2007, 2008, 2009) seabass (2010, 2011, 2012) and
     Bluefin tuna (2016). However, several reports indicate the absence
     of commercial fisheries operating in Tokelau (Dalzell et al., 1996;
     Passfield, 1998). All fishing activities are subsistence. In
     addition, seabass is not a species found in Tokelau. Tokelau does
     not have the food safety regulations to export fish to another
     nation and is not a flag state or port state.
Togo

[[Page 39773]]

 
    Justification--Few and inconsistent exports.
    Details--We found evidence that Togo's fisheries for shrimp are
     subsistence, artisanal fisheries; likewise, Togo's tuna fisheries
     are solely artisanal fisheries with no current active industrial
     fishery although foreign-flagged and IUU vessels target tuna in
     Togo's waters. Togo's sardine fishery consists of industrial trawl
     and artisanal beach seine operations, with no evidence that these
     are commercial and exporting fisheries (https://s3-us-west-2.amazonaws.com/legacy.seaaroundus/doc/Researcher+Publications/dpauly/PDF/2015/Working+Papers/MarineFisheriesTogo.pdf). Togo's
     snail (other than sea snail) are freshwater species for which the
     rule does not apply. Finally, the crustacean fishery is lagoon-
     based (artisanal and subsistence) with limited exports to
     international markets.
Uganda
    Justification--Landlocked, only export freshwater species.
    Details--From 2000-2009, U.S. Trade Data records show some processed
     marine fishery products imported to the U.S via Uganda; however
     from 2012 to 2017, exports have been exclusively Nile perch, a
     freshwater species for which the MMPA import rule does not apply.
Uzbekistan
    Justification--Landlocked; Freshwater species only.
    Details--No imports 2014-2017, in 2013 Uzbekistan exported
     freshwater species only; and, from 2009-2012, the predominant
     exports were freshwater fish species with some exports of processed
     ``marine fish.'' For freshwater species the MMPA import rule does
     not apply.
    https://www.fao.org/fishery/facp/UZB/en.
------------------------------------------------------------------------

Assumptions Made in the Development of the LOFF

Fishery Products

    NMFS assumed that seafood products imported by the U.S. between the 
years 2000 and 2017 would be a reasonable basis for the list of target 
species included in the draft LOFF for each harvesting nation, unless 
the nation indicated that the fishery no longer occurs, the species is 
a re-export, (e.g., because the nation is only the processor for that 
fish or fish product), or the reported export of that seafood species/
product to the United States was a data reporting error. For those fish 
and fish products listed on the U.S. Trade database, NMFS initially 
assumed that a fishery was associated with those products and looked to 
exporting nations to confirm their status as either the harvesting 
nation, intermediary nation, or both.
    NMFS assumed that species or products that were associated with a 
gear type were wild caught and not aquacultured, with one exception. 
Unless occurring in the wild in a given country, NMFS assumed tilapia 
was produced by aquaculture operation.

Area of Operation

    To the extent possible, NMFS listed a harvesting nation's fisheries 
that take place in a foreign Exclusive Economic Zone (EEZ) or on the 
high seas under that harvesting nation's LOFF, rather than under the 
LOFF of the nation in whose EEZ the fishing took place.

Hand Collection Fisheries for Corals, Sponges, Shells

    Where no information was provided by a nation and the U.S. has 
imported corals, sponges, and/or shells from that nation, these 
fisheries were designated as a gear type of ``hand collection'' and 
subsequently labelled an exempt fishery. There is limited aquaculture 
of corals for export, though aquaculture-raised coral would also be 
hand collected and labelled an exempt fishery.

Duplication of Marine Mammal Interactions Based on Gear Type With No 
Associated Target Fishery Species

    Where nations did not indicate target species and failed to provide 
fishery information in the form of: (1) A gear type and associated 
marine mammal interaction, or (2) a gear type and specific area of 
operation with associated marine mammal interaction, NMFS assumed that 
any instance of that gear type for any target species, or that gear 
type operating in a specific area of operation for any corresponding 
target species also reported, had the same likelihood or prevalence of 
marine mammal interaction. Any species or bycatch numbers provided in 
these instances were copied across target fisheries. Nations are 
encouraged to notice where duplication may have occurred and provide 
documentation to support changes to the bycatch species or bycatch 
estimates.

Toothfish (Dissostichus spp.) Catch Documentation Scheme (CDS)

    Antarctic and Patagonian toothfish (Dissostichus spp.) are fished 
under a strict catch documentation scheme (CDS) in order to prevent 
trade in toothfish harvested in contravention of Convention on the 
Conservation of Antarctic Marine Living Resources (CCAMLR) Conservation 
measures. The CDS allows for supply chain tracking of toothfish from 
point of harvest. Only Members and nations that are Party to the 
Convention are permitted to participate in the CDS for toothfish with 
the exception of the Seychelles, which is the sole Non-Contracting 
Party (NCP), permitted to participate in the CDS. As in the case of the 
Cayman Islands discussed above, instances where the NOAA S&T and CBP 
import data indicated the U.S. received toothfish from an NCP were 
crosschecked against the CDS and were determined to likely be the 
result misreporting a vessel's ``last port'' as its ``point of 
origin.'' As the U.S. already prohibits the importation of toothfish 
without a valid Dissostichus Catch Document, NMFS discarded these cases 
from the LOFF. For more information, see https://www.ccamlr.org/en/compliance/catch-documentation-scheme-cds.

Summary

    NMFS reviewed information from or related to more than 160 trading 
partners. NMFS eliminated 25 nations from the LOFF (see Table 1 for a 
list of these nations and the rationale used for eliminating them from 
the LOFF). The draft LOFF is comprised of 138 nations for a total of 
720 exempt and 3,270 export fisheries. The LOFF, an expanded LOFF 
containing references, a list of Intermediary nations and their 
associated products, and list of fisheries and nations where the rule 
does not apply can found at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html. An annotated bibliography with supporting 
references can be found at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html.

Impact of the LOFF on Largest Trading Partners by Volume and Value

    Below is a table containing the twenty largest imports by volume 
and value, an assessment of the data they provided, and their risk of 
marine mammal bycatch. NMFS based its assessment of the quality of the 
data supplied by

[[Page 39774]]

nations based on the completeness and amount of detail in the 
information provided. The number of export and exempt fisheries is a 
tally of those fisheries after NMFS analysis of the LOFF. The overall 
risk of marine mammal bycatch is based on the type of gear most 
prevalent in the nation's fisheries and the information provided by 
those nations related to marine mammal fisheries interactions.
    Chile, Peru, Argentina, and Ecuador have large numbers of small 
gillnet, purse seine, and trawl vessels with marine mammal bycatch. 
Canada's pot fisheries for lobster and snow crab have high levels of 
large whale bycatch. Canada also has bycatch in its gillnet fisheries 
and permits the intentional killing of marine mammals in aquaculture 
operations. Indonesia, Thailand, and Vietnam have large processing and 
aquaculture sectors; their vulnerability lies in their apparent 
inability to assess and mitigate marine mammal bycatch. If these 
nations estimate their marine mammal bycatch or provide more detailed 
information about their fishery operations, NMFS may be able to 
reclassify as exempt additional fisheries.
    The Russian Federation, Japan, Mexico, and China provided little to 
no information to enable a full assessment of their fisheries and level 
of marine mammal risk. Japan's marine mammal bycatch is particularly 
large in its pound net fisheries, whereas the Russian Federation's 
bycatch is predominantly in its pot and trawl fisheries. Mexico's 
marine mammal bycatch includes its gillnet and trawl fisheries in the 
Gulf of Mexico and the Gulf of California. India's fishery bycatch is 
predominantly in its coastal gillnet fisheries which includes tens of 
thousands of vessels. Taiwan has bycatch in their longline fisheries 
and their drift gillnet fisheries. The United Kingdom has bycatch of 
harbor porpoise and common dolphins in gillnet and trawl fisheries.
    Nations, some not on this list, with a high level of documented 
marine mammal bycatch include South Korea (pound nets and gillnets); 
New Zealand (all gear types, especially trawl); and Australia (trawl 
and longline). However, NMFS recognizes that this evaluation may be 
highly influenced by the advanced assessment capabilities of these 
nations. New Zealand and Norway may be the only nations to have 
currently calculated a bycatch limit. Norway's information demonstrates 
bycatch of harbor porpoise, gray seal, and harbor seal in excess of the 
bycatch limit in its gillnet fisheries.

 Table 2--List of the Twenty Largest Imports by Volume and Value and an Assessment of the Data They Provided and
                                       Their Risk of Marine Mammal Bycatch
----------------------------------------------------------------------------------------------------------------
                                                                Number of
               Nation                    Quality of data      export/exempt     Overall risk of marine mammal
                                            supplied            fisheries                  bycatch
----------------------------------------------------------------------------------------------------------------
Canada.............................  Excellent.............          163/82  Average/High.
China..............................  Poor..................           110/3  Unknown.
Indonesia..........................  Fair..................           13/25  Low.
Thailand...........................  Fair..................           76/12  Average.
Chile..............................  Good..................           46/39  Average/High.
India..............................  Poor..................            24/2  Unknown.
Vietnam............................  Fair..................           26/14  Low.
Ecuador............................  Good..................            21/6  High.
Mexico.............................  Fair..................           40/24  Average.
Russian Federation.................  Poor..................           114/0  Average/High.
Japan..............................  Poor..................          197/18  High.
Philippines........................  Good..................            16/4  Low.
Peru...............................  Good..................           70/34  Average/High.
Argentina..........................  Good..................            65/9  Average.
Iceland............................  Excellent.............            27/2  Average.
Honduras...........................  Poor..................             4/6  Unknown.
Taiwan.............................  Good..................            19/3  Average/High.
South Korea........................  Excellent.............          604/44  High.
New Zealand........................  Excellent.............           81/25  Average/High.
United Kingdom.....................  Good..................            56/8  Average/High.
----------------------------------------------------------------------------------------------------------------

Request for Input

    In addition to the requested information in this Federal Register 
notice, NMFS is interested in receiving public comment and supporting 
documentation in response to the following:

    1. Should all marine aquaculture involving lines, such as 
seaweed, mussels, oysters, and other shellfish be considered an 
exempt fishery? Why or why not?
    2. Should net pen aquaculture for tuna be considered an exempt 
fishery? Why or why not?
    3. Should net cage aquaculture for finfish be considered an 
exempt fishery? Why or why not?
    4. Should lift net or other such nets be considered an exempt 
fishery? Why or why not?
    5. Would nations prefer to submit their information in the form 
of a database?
    6. Should nations with only exempt fisheries be allowed to apply 
for a comparability finding every eight years rather than every four 
years?

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    Dated: August 16, 2017.
John Henderschedt,
Director, Office for International Affairs and Seafood Inspection, 
National Marine Fisheries Service.
[FR Doc. 2017-17671 Filed 8-21-17; 8:45 am]
 BILLING CODE 3510-22-P