Implementation of Import Restrictions; Certification of Admissibility for Certain Fish Products From New Zealand, 76998-77000 [2022-27155]
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76998
Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 / Rules and Regulations
Contractor’’ and ‘‘10 U.S.C. 3771–3775,
10 U.S.C. 3781–3786’’ in their places,
respectively.
The revisions read as follows:
252.227–7018 Rights in Noncommercial
Technical Data and Computer Software—
Small Business Innovation Research (SBIR)
Program.
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Rights in Noncommercial Technical
Data and Computer Software—Small
Business Innovation Research (SBIR)
Program (DEC 2022)
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252.227–7037
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162. Amend section 252.227–7037—
a. By removing the clause date ‘‘(APR
2022)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (i)(3) by removing ‘‘10
U.S.C. 2321’’ and adding ‘‘10 U.S.C.
3785(c)’’ in its place.
[Amended]
163. Amend section 252.232–7012—
a. By removing the clause date ‘‘(APR
2020)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (b) by removing ‘‘10
U.S.C. 2307(b)(4)(A)’’ and adding ‘‘10
U.S.C. 3802(c)’’ in its place.
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252.232–7013
[Amended]
165. Amend section 252.232–7015—
a. By removing the clause date ‘‘(APR
2020)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (a) by removing ‘‘10
U.S.C. 2307(b)(4)(A)’’ and adding ‘‘10
U.S.C. 3802(c)’’ in its place.
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[Amended]
166. Amend section 252.232–7017—
a. By removing the clause date ‘‘(APR
2020)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (b) by removing
‘‘section 852 of Public Law 115–232’’
and adding ‘‘10 U.S.C. 3801(b)(2)’’ in its
place.
■ 167. Amend section 252.235–7000—
■ a. By revising the section heading and
clause heading and date; and
■ b. In paragraph (a) by removing ‘‘10
U.S.C. 2354’’ and adding ‘‘10 U.S.C.
3861’’ in its place.
The revisions read as follows:
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168. Amend section 252.235–7001—
■ a. By revising the section heading and
clause heading and date; and
■ b. In paragraph (a) by removing ‘‘10
U.S.C. 2354’’ and adding ‘‘10 U.S.C.
3861’’ in its place.
The revisions read as follows:
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Indemnification Under 10 U.S.C.
3861—Cost Reimbursement (DEC 2022)
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169. Amend section 252.239–7017—
a. By revising the section heading and
clause date; and
■ b. In paragraphs (a), (b), and (c) by
removing ‘‘10 U.S.C. 2339a’’ and adding
‘‘10 U.S.C. 3252’’ in their places.
The revisions read as follows:
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252.239–7017
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Notice of Supply Chain Risk.
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170. Amend section 252.239–7018—
a. By revising the section heading and
clause date;
■ b. In the paragraph (a), in the
definition of ‘‘Supply chain risk’’, and
paragraphs (c) and (d) by removing ‘‘10
U.S.C. 2339a’’ and adding ‘‘10 U.S.C.
3252’’ in their places.
The revisions read as follows:
252.239–7018
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Supply Chain Risk.
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■ 171. Amend section 252.243–7002—
■ a. By revising the section heading and
the clause date; and
■ b. In paragraph (b) introductory text
by removing ‘‘10 U.S.C. 2410(a)’’ and
adding ‘‘10 U.S.C. 3862(a)’’ in its place.
The revisions read as follows:
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Requests for Equitable
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252.244–7000
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[Amended]
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Appendix I to Chapter 2—Policy and
Procedures for the DoD Pilot MentorProte´ge´ Program
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I–106 Development of mentorprote´ge´ agreements.
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(6) * * *
(ii) Entities providing procurement
technical assistance pursuant to 10
U.S.C. Chapter 388 (Procurement
Technical Assistance Cooperative
Agreement Program).
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[FR Doc. 2022–26689 Filed 12–15–22; 8:45 am]
BILLING CODE 5001–06–P
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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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Import restrictions.
Under the authority of the
Marine Mammal Protection Act
SUMMARY:
172. Amend section 252.244–7000—
PO 00000
[Amended]
173. Amend section 252.249–7002—
a. By removing the clause date ‘‘(JUN
2020)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In the paragraph (a), in the
definition of ‘‘Major defense program’’,
removing ‘‘10 U.S.C. 2302(5)’’ and
adding ‘‘10 U.S.C. 3041(a)’’ in its place.
■ 174. Amend appendix I to chapter 2
as follows:
■ a. In section I–100, in paragraph (a)
introductory text, by removing ‘‘10
U.S.C. 2302 note’’ and adding ‘‘10
U.S.C. 4901 note prec.’’ in its place;
■ b. By removing sections I–101.1, I–
101.2, I–101.3, I–101.4, I–101.5, I–101.6,
and I–101.7; and
■ c. In section I–106 by revising
paragraph (d)(6)(ii).
The revision reads as follows:
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AGENCY:
Requests for Equitable Adjustment (DEC
2022)
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252.249–7002
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Supply Chain Risk (DEC 2022)
252.243–7002
Adjustment.
a. By removing the clause date ‘‘(JAN
2021)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (c)(1) by removing ‘‘10
U.S.C. 2380b’’ and adding ‘‘10 U.S.C.
3457(c)’’ in its place.
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Notice of Supply Chain Risk (DEC 2022)
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252.232–7017
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[Amended]
252.232–7015
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Indemnification Under 10 U.S.C.
3861—Fixed Price (DEC 2022)
164. Amend section 252.232–7013—
a. By removing the clause date ‘‘(APR
2020)’’ and adding ‘‘(DEC 2022)’’ in its
place; and
■ b. In paragraph (b) by removing ‘‘10
U.S.C. 2307(b)(4)(A)’’ and adding ‘‘10
U.S.C. 3802(c)’’ in its place.
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252.235–7001 Indemnification Under 10
U.S.C. 3861—Cost Reimbursement.
[Amended]
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252.232–7012
252.235–7000 Indemnification Under 10
U.S.C. 3861—Fixed Price.
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Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 / Rules and Regulations
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(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 kellie.foster-taylor@
noaa.gov 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
VerDate Sep<11>2014
17:07 Dec 15, 2022
Jkt 259001
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 Ma¯ui dolphin’s range because the
GNZ 2012 regulations allegedly were
insufficient to protect the Ma¯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 Ma¯ui
dolphin bycatch and was proposing a
revised regulatory program which, when
fully implemented, would likely further
reduce risk to Ma¯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
PO 00000
Frm 00081
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76999
of Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯ui
dolphin’s range. Under the CIT order,
E:\FR\FM\16DER1.SGM
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77000
Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1
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 Ma¯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: https://www.fisheries.noaa.gov/
foreign/marine-mammal-protection/
seafood-import-restrictions. 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
VerDate Sep<11>2014
17:07 Dec 15, 2022
Jkt 259001
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 https://
www.fisheries.noaa.gov/foreign/marinemammal-protection/seafood-importrestrictions. 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 Ma¯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.
PO 00000
Frm 00082
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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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 221208–0265]
RIN 0648–BL41
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Whiting Utilization in the At-Sea
Sectors
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule implements
regulatory amendments that apply to the
Pacific Coast Groundfish Trawl
Rationalization Program participants
that operate in the non-tribal Pacific
whiting fishery. This rulemaking adjusts
the primary Pacific whiting season start
date for all sectors of the Pacific whiting
fishery north of 40°30′ N latitude (lat.)
from May 15 to May 1, removes from
regulation the mothership catcher vessel
(MSCV) processor obligation deadline of
November 30, removes from regulation
the Mothership (MS) processor cap of 45
percent, and provides the ability to
operate as a Catcher/Processor (CP) and
an MS in the same year. This action is
necessary to provide MS sector
participants with greater operational
flexibility by modifying specific
regulations that have been identified as
potentially contributing to lower
attainment of the Pacific whiting
allocation compared to the CP and
shoreside Pacific whiting sectors. This
final rule is intended to promote the
goals and objectives of the MagnusonStevens Fishery Conservation and
Management Act, the Pacific Coast
Groundfish Fishery Management Plan,
and other applicable laws.
DATES: This final rule is effective
January 17, 2023.
ADDRESSES: This rule is accessible via
the Office of the Federal Register
website at https://
www.federalregister.gov/. Background
information and analytical documents
(Analysis) are available at the NMFS
SUMMARY:
E:\FR\FM\16DER1.SGM
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]]>Agencies
[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 [www.gpo.gov]
[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.
-----------------------------------------------------------------------
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 [email protected] 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: https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. 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 https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. 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
