Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Proposed Rules 22731 

Government property includes both 

Government-furnished property and 

Contractor-acquired property. Government 

property consists of material, equipment, 

special tooling, special test equipment, and 

real property. 

(b) Policy for Contractor Reporting of 

Government Property Lost, Stolen, Damaged, 

or Destroyed. 

(1) The Contractor shall use the Defense 

Contract Management Agency (DCMA) ‘‘eTools’’ software application for reporting of 

loss, theft, damage, or destruction of 

Government property. Reporting value shall 

be at acquisition cost. The ‘‘e-Tools’’ system 

can be accessed from the DCMA home page 

External Web Access Management 

application at http://www.dcma.mil. 

(2) Unless otherwise provided for in this 

contract, the requirements of paragraph (b) 

(1) of this clause do not apply to normal and 

reasonable inventory adjustments, i.e., losses 

of ‘‘low risk’’ consumable material such as 

common hardware, as agreed to by the 

Contractor and the Government Property 

Administrator. Such losses are typically a 

product of normal process variation. The 

Contractor shall ensure that its property 

management system provides adequate 

management control measures, e.g., statistical 

process controls, as a means of managing 

such variation. 

(3) Reporting requirements apply to losses 

outside such variation. For example, due to 

theft of; or when losses occur due to a failure 

to provide adequate storage or security, e.g., 

failure to repair a leaky roof; or due to ‘‘acts 

of God,’’ e.g., tornado damages warehouse or 

stockroom. 

(4) The aforementioned reporting 

requirements in no way change the liability 

provisions or reporting requirements under 

the clauses at FAR 52.245–1, Government 

Property, or FAR 52.245–2, Government 

Property Installation Operation Services. 

(End of clause) 

[FR Doc. 2010–9890 Filed 4–29–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

Docket No. 0907301201–91203–01 

RIN 0648–AY15 

Implementation of Fish and Fish 

Product Import Provisions of the 

Marine Mammal Protection Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; request for comments. 

SUMMARY: NMFS issues this advance 

notice of proposed rulemaking to 

announce that it is developing 

procedures to implement provisions of 

the Marine Mammal Protection Act for 

imports of fish and fish products. NMFS 

is seeking advance public comment on 

the development of these procedures 

and on the types of information to be 

considered in the process. 

DATES: Written comments must be 

received by 5 p.m. on June 29, 2010. 

ADDRESSES: You may submit comments 

by any of the following methods: 

(1) Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

(2) Mail: Director, Office of 

International Affairs, Attn: MMPA Fish 

Import Provisions, NMFS, F/IA, 1315 

East-West Highway, Silver Spring, MD 

20910 

(3) Fax: (301) 713–2313 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

FOR FURTHER INFORMATION CONTACT: 

Michael Simpkins at 

Michael.Simpkins@noaa.gov or 301– 

713–9090. 

SUPPLEMENTARY INFORMATION: 

Background 

The Marine Mammal Protection Act 

(MMPA), 16 U.S.C. 1361–1423h, 

contains provisions addressing bycatch, 

or the incidental mortality and serious 

injury, of marine mammals in both 

domestic and foreign fisheries. With 

respect to foreign fisheries, section 

101(a)(2) of the MMPA (16 U.S.C. 

1371(a)(2)) states that ‘‘[t]he Secretary of 

the Treasury shall ban the importation 

of commercial fish or products from fish 

which have been caught with 

commercial fishing technology which 

results in the incidental kill or 

incidental serious injury of ocean 

mammals in excess of United States 

standards. For purposes of applying the 

preceding sentence, the Secretary [of 

Commerce]- (A) shall insist on 

reasonable proof from the government of 

any nation from which fish or fish 

products will be exported to the United 

States of the effects on ocean mammals 

of the commercial fishing technology in 

use for such fish or fish products 

exported from such nation to the United 

States.’’ 

This rulemaking would define the 

‘‘United States standards’’ referred to in 

MMPA section 101(a)(2), along with any 

associated criteria by which the United 

States would assess foreign fisheries 

that supply fish and fish product 

imports to the United States (hereafter 

‘‘import-supplying fisheries’’) with 

respect to marine mammal bycatch. The 

rule also would describe procedures for 

ensuring the established standards and 

their associated criteria are met, as well 

as procedures for developing 

recommendations regarding import 

prohibitions if those standards and 

associated criteria are not met. In 

defining the standards and associated 

criteria by which marine mammal 

bycatch in import-supplying fisheries 

would be evaluated, this rulemaking 

would consider U.S. statutory 

provisions and regulations applied to 

the management of incidental mortality 

and serious injury of marine mammals, 

including provisions of the MMPA, the 

Endangered Species Act (ESA), and the 

High Seas Driftnet Fishing Moratorium 

Protection Act (HSDFMPA). 

This rulemaking also would recognize 

existing bilateral or multilateral 

arrangements to address marine 

mammal bycatch in foreign fisheries as 

well as the potential for such 

arrangements in the future. In the case 

of eastern tropical Pacific yellowfin tuna 

purse seine fisheries, marine mammal 

bycatch is covered by section 

101(a)(2)(B) and Title III of the MMPA 

(16 U.S.C. 1371(a)(2)(B) & 1411–1417, 

respectively), which incorporate 

requirements adopted under the 

auspices of the Agreement on the 

International Dolphin Conservation 

Program (AIDCP). 

U.S. Incidental Marine Mammal 

Mortality and Serious Injury Statutory 

Provisions 

Section 2 of the MMPA describes 

several broad goals, including (1) 

maintaining the health and stability of 

the marine ecosystem; (2) retaining 

marine mammals as a significant 

functioning element in the ecosystem of 

which they are a part; and (3) ensuring 

that marine mammals can remain at or 

recover to their optimum sustainable 

population. The term ‘‘optimum 

sustainable population’’ is defined in 

section 3(9) (16 U.S.C. 1362(9), 50 CFR 

216.3) of the MMPA as ‘‘the number of 

animals which will result in the 

maximum productivity of the 


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population or the species, keeping in 

mind the carrying capacity of the habitat 

and the health of the ecosystem of 

which they form a constituent element.’’ 

Sections 117 and 118 (16 U.S.C. 1386 

and 1387) of the MMPA describe the 

current U.S. program for regulating 

bycatch in domestic commercial 

fisheries. The program includes (1) 

evaluating marine mammal stock status; 

(2) evaluating bycatch in commercial 

fisheries; (3) developing bycatch 

reduction measures and regulations 

following consultation with 

stakeholder-based take reduction teams; 

and (4) implementing emergency 

regulations when necessary. 

MMPA section 118(f)(2) defines both 

short- and long-term goals for take 

reduction plans created by take 

reduction teams. The short-term goal is 

to reduce and maintain marine mammal 

bycatch below the potential biological 

removal level for a given stock. MMPA 

section 3(20) defines ‘‘potential 

biological removal’’ (PBR) as ‘‘the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population.’’ The long-term goal is to 

reduce bycatch ‘‘to insignificant levels 

approaching a zero mortality and 

serious injury rate,’’ often referred to as 

the zero-mortality rate goal. MMPA 

section 118(f)(3) provides NMFS with 

discretion to prioritize and develop take 

reduction plans based on available 

funding. MMPA section 118(f)(2) 

provides additional discretion with 

respect to the long-term goal by 

requiring NMFS to take into account 

‘‘the economics of the fishery, the 

availability of existing technology, and 

existing State or regional fishery 

management plans.’’ 

Section 118(g) of the MMPA 

empowers NMFS to prescribe 

emergency regulations to reduce marine 

mammal bycatch in a fishery if the 

Secretary of Commerce finds that such 

bycatch is having, or is likely to have, 

an immediate and significant adverse 

impact on a stock or species. 

The ESA contains provisions that 

apply more broadly to any direct or 

incidental serious injury or mortality of 

species listed as endangered or 

threatened under the ESA. Specifically, 

section 7 of the ESA (16 U.S.C. 1536) 

requires Federal agencies to ensure that 

any action authorized, funded, or 

carried out by such agencies is not 

likely to jeopardize the continued 

existence of any species listed as 

endangered or threatened under the 

ESA, or any species proposed for such 

listing. If an action is determined to 

likely result in jeopardy to a species that 

has been listed or proposed to be listed 

under the ESA, the responsible 

Secretary (of Interior or Commerce) is 

required to develop reasonable and 

prudent alternatives, as necessary or 

appropriate, to mitigate such impact. If 

there is no reasonable and prudent 

alternative available, then section 7 of 

the ESA also provides that the 

Endangered Species Committee may 

decide whether to grant an exemption 

from the jeopardy prohibition. 

Under section 610 of the HSDFMPA 

(16 U.S.C. 1826k), the Secretary of 

Commerce is required to identify 

nations whose fishing vessels engage in 

fishing activities or practices that result 

in bycatch of protected living marine 

resources (PLMRs), including marine 

mammals. In determining whether a 

nation’s vessels have engaged in bycatch 

of a PLMR, the Secretary must 

determine whether the fishing activities 

in question result in bycatch of PLMRs 

in waters beyond any national 

jurisdiction or whether the bycatch 

involves stocks that are shared by the 

United States and occur beyond the 

exclusive economic zone of the United 

States. Such nations are identified if (1) 

the fishing activity in question occurred 

during the preceding calendar year; (2) 

the relevant international organizations 

for managing the fisheries or protecting 

the bycaught species have failed to 

implement effective measures to end or 

reduce such bycatch, or the nation is not 

a party or cooperating member of such 

organization; and (3) the nation has not 

adopted a regulatory program to reduce 

bycatch that is comparable to that of the 

United States, taking into account 

different conditions. 

After a nation has been identified, the 

HSDFMPA requires that the Secretary, 

acting through the Secretary of State, 

notify and consult with the identified 

nation for the purpose of entering into 

treaties to protect the PLMRs in 

question. The HSDFMPA also 

authorizes the Secretary of Commerce to 

provide appropriate assistance to 

identified nations to assist those nations 

in qualifying for positive HSDFMPA 

certification, described below. Such 

assistance may include cooperative 

research, technology transfer, and 

assistance in designing and 

implementing fish harvesting plans. 

Following consultation, an identified 

nation is certified positively only if it 

provides documentary evidence that the 

nation has adopted a regulatory program 

to conserve PLMRs that is comparable to 

that of the United States, taking into 

account different conditions, and also 

has established a management plan that 

will assist in gathering species-specific 

data to support international stock 

assessments and conservation efforts for 

PLMRs. 

Failure by a nation to receive a 

positive certification under the 

HSDFMPA may result in denial of port 

privileges and prohibition of imports of 

some fish or fish products. 

Possible Standards for Evaluating 

Marine Mammal Bycatch Associated 

with Fish and Fish Product Imports 

NMFS is considering whether the 

statutory provisions described above 

rise to the level of ‘‘United States 

standards,’’ and, if so, NMFS is 

considering several possible standards 

that could be used when evaluating 

marine mammal bycatch in importsupplying fisheries for the purposes of 

implementing MMPA section 101(a)(2). 

NMFS also is considering whether to 

use only one of these standards or a 

combination of two or more standards 

when evaluating marine mammal 

bycatch in import-supplying fisheries. 

The options under consideration as 

possible standards are described below. 

Several possible standards that NMFS 

is considering are derived from the 

short- and long-term goals of take 

reduction plans developed under 

section 118(f)(2) of the MMPA. 

Specifically, NMFS is considering 

evaluating whether marine mammal 

bycatch in import-supplying fisheries is 

maintained at a level below PBR for 

impacted marine mammal stocks 

(option 1). Alternatively, NMFS is 

considering evaluating whether such 

bycatch has been reduced to 

insignificant levels approaching a zero 

mortality and serious injury rate to the 

extent feasible, taking into account 

different conditions (option 2). NMFS 

recognizes that these two goals have 

been met for many, but not all, U.S. 

domestic fisheries. Another alternative 

possible standard NMFS is considering 

is to evaluate whether marine mammal 

bycatch in import-supplying fisheries is 

maintained at levels below PBR or at 

levels comparable to those actually 

achieved in comparable U.S. fisheries, 

whichever is higher (option 3). With 

respect to all three of these possible 

standards, NMFS recognizes that section 

118(f)(3) of the MMPA provides NMFS 

with discretion to prioritize and develop 

take reduction plans for domestic U.S. 

fisheries to achieve these goals subject 

to available funding. 

NMFS also is considering possible 

standards derived from the population 

status goal described in MMPA section 

2. Specifically, NMFS is considering 

evaluating whether marine mammal 

bycatch in import-supplying fisheries 

either causes the depletion of a marine 


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mammal stock below its optimum 

sustainable population or impedes the 

ability of a depleted stock to recover to 

its optimum sustainable population 

(option 4). Domestically, the United 

States manages marine mammal bycatch 

based on PBR levels to achieve the goal 

of allowing marine mammal stocks to 

reach or maintain their optimum 

sustainable populations. However, 

NMFS recognizes that foreign nations 

may have other approaches to achieving 

the same goal, and that some of these 

might be commensurate with the U.S. 

marine mammal bycatch management 

program. 

NMFS also is considering possible 

standards derived from the trigger for 

emergency regulations in MMPA section 

118(g). Specifically, NMFS is 

considering evaluating whether bycatch 

in import-supplying fisheries has, or is 

likely to have, an immediate and 

significant adverse impact on a marine 

mammal stock (option 5). 

NMFS also is considering possible 

standards derived from the jeopardy 

criteria described in ESA section 7. 

Specifically, NMFS is considering 

evaluating whether bycatch in importsupplying fisheries is likely to 

jeopardize the continued existence of 

any endangered or threatened marine 

mammal species (option 6). For this 

option, NMFS is considering whether 

and how to apply such possible 

standards uniformly to bycatch of 

foreign or international marine mammal 

species that are endangered or 

threatened, but have not been evaluated 

or listed under the ESA. Alternatively, 

NMFS is considering evaluating more 

broadly whether bycatch by importsupplying fisheries is likely to 

jeopardize the continued existence of a 

marine mammal species (option 7). 

NMFS also is considering possible 

standards derived from HSDFMPA 

section 610. Specifically, NMFS is 

considering evaluating whether marine 

mammal bycatch in a foreign nation’s 

import-supplying fisheries is managed 

effectively by a relevant international 

fisheries management or conservation 

organization, or by the fishing nation 

itself (option 8). For this possible 

standard, NMFS would evaluate 

whether effective measures have been 

implemented by a relevant international 

fisheries management or conservation 

organization to which the nation is a 

party or cooperating member. If the 

relevant organization has not 

implemented effective measures, or the 

fishing nation is not a party or 

cooperating member of the organization, 

then NMFS would also evaluate 

whether the nation has adopted a 

regulatory program to reduce marine 

mammal bycatch that is comparable to 

that of the United States, taking into 

account different conditions. 

Finally, NMFS is considering possible 

standards derived from regulations 

implemented to manage marine 

mammal bycatch in U.S. domestic 

fisheries. Specifically, NMFS is 

considering evaluating whether foreign 

nations that supply fish and fish 

product imports to the United States 

have implemented regulations to 

address marine mammal bycatch in the 

nations’ import-supplying fisheries that 

are comparable to regulations 

implemented by the United States, 

taking into account different conditions 

(option 9). These U.S. domestic 

regulations are developed and applied 

on a regional and fishery-by-fishery 

basis, recognizing that different regional 

and fishery conditions bear on the 

effectiveness of the measures. 

To the extent that the options 

described above are determined to rise 

to the level of ‘‘United States standards,’’ 

NMFS anticipates selecting one or more 

of the possible standards described 

above to apply when evaluating marine 

mammal bycatch in a foreign nation’s 

import-supplying fisheries and, in turn, 

to define those standards as ‘‘United 

States standards’’ for the purposes of 

section 101(a)(2)(A). NMFS intends to 

select clear standards and associated 

criteria that could be applied uniformly 

to all foreign fisheries that supply fish 

and fish product imports to the United 

States. NMFS also intends to select only 

standards and associated criteria that 

have been met by U.S. domestic 

fisheries. 

NMFS requests comments on the 

standards to be used when evaluating 

foreign import-supplying fisheries, 

including any suggestions of other 

standards or associated criteria NMFS 

should consider or modifications of the 

standards suggested above; and whether 

to apply one or more standards. 

Potential Procedures for Ensuring that 

U.S. Marine Mammal Bycatch 

Standards Are Met for Foreign Imports 

NMFS is considering developing a 

process for evaluating bycatch in foreign 

import-supplying fisheries that would 

be consistent with both the U.S. process 

for managing domestic marine mammal 

bycatch, outlined in MMPA sections 

117 and 118, and the process for 

assessing and certifying nations for 

bycatch of protected living marine 

resources, outlined in HSDFMPA 

section 610. In particular, NMFS is 

considering a process that would 

include (1) requesting that nations 

whose fisheries supply imports to the 

United States provide reasonable proof 

of the impact of those fisheries on 

marine mammals; (2) initiating 

consultation with nations who fail to 

provide such reasonable proof or whose 

import-supplying fisheries are known or 

likely to not meet U.S. marine mammal 

bycatch standards; (3) allowing some 

time for nations undergoing 

consultation to meet U.S. marine 

mammal bycatch standards by 

providing acceptable ‘‘reasonable proof’’ 

of the impacts of their import-supplying 

fisheries on marine mammals, by 

improving their assessment capabilities 

in order to provide such proof, or by 

implementing effective bycatch 

mitigation measures; and (4) 

recommending that the import of certain 

fish and fish products from a nation or 

fishery into the United States be 

prohibited if that nation or fishery fails 

to meet U.S. marine mammal bycatch 

standards after consultation. 

With regard to (1) above, NMFS is 

considering defining ‘‘reasonable proof’’ 

as information that indicates that a 

nation’s import-supplying fisheries meet 

U.S. marine mammal bycatch standards. 

With respect to (2) above, NMFS is 

considering initiating consultation with 

nations to encourage each nation to take 

the necessary corrective action to meet 

the U.S. marine mammal bycatch 

standards. Such consultation would 

likely consider the efficacy of marine 

mammal bycatch measures adopted 

under multilateral agreements to which 

the nation is a party, as well as the 

nation’s implementation of those 

measures. Such consultation also would 

likely identify different conditions that 

NMFS may consider when making 

decisions regarding foreign fisheries 

imports, including existing scientific 

capacity within the nation, differences 

in fishing practices, logistical and 

technical challenges to assessing status 

or bycatch of specific marine mammal 

stocks, and logistical and technical 

challenges to mitigating bycatch for 

some stocks or fisheries. As necessary, 

appropriate, and feasible, NMFS may 

provide capacity building, training, or 

technology transfer to address issues 

identified during consultation. Such 

consultation and capacity building 

would be consistent with the approach 

described in HSDFMPA section 610 for 

identifying and certifying nations for 

bycatch of protected living marine 

resources. Further, U.S. domestic 

consultations with take reduction teams 

also consider similar conditions, such as 

the quality of data available, logistical or 

technological challenges, and the 

feasibility of mitigation measures. 

NMFS also provides scientific support 

during domestic take reduction team 

consultations. 


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The time allotted in (3) above 

recognizes the need for some nations to 

improve their capacity to conduct 

suitable assessments, implement 

effective mitigation measures, or 

address unique challenges. NMFS is 

considering whether to include time to 

address these issues within the 

consultation period or to allow some 

time after consultation to assess the 

effectiveness of newly implemented 

measures before making import 

determinations. Both MMPA section 

118(f) and HSDFMPA section 610 allow 

time for consultation before action is 

taken. 

Finally, (4) refers to the 

implementation of import prohibitions 

themselves. NMFS would coordinate 

with other Federal agencies to make 

decisions regarding possible import 

prohibitions. NMFS also is considering 

whether and what kind of alternative 

procedures to establish for 

implementing import prohibitions on a 

shipment-by-shipment, shipper-byshipper, or other basis if such imports 

were harvested by practices that do not 

result in marine mammal bycatch or 

were harvested by practices that are 

comparable to those of the United 

States. The HSDFMPA allows for the 

development of such alternative 

procedures. 

NMFS is considering if and how 

intermediary nations should be 

addressed by the procedures under 

consideration. Intermediary nations are 

those that serve as intermediaries in reexporting fish or fish products to the 

United States from the nation whose 

fisheries originally harvested the fish. 

With respect to yellowfin tuna 

harvested in the eastern tropical Pacific 

purse seine fisheries, section 

101(a)(2)(D) of the MMPA requires that 

any intermediary nation certify and 

provide reasonable proof that ‘‘it has not 

imported, within the preceding six 

months, any yellowfin tuna or yellowfin 

tuna products that are subject to a direct 

ban on importation to the United 

States.’’ NMFS is considering using a 

similar approach to ensure that imports 

from intermediary nations meet U.S. 

marine mammal bycatch standards. 

NMFS is requesting comments on the 

procedures under consideration for 

ensuring that foreign fisheries imports 

meet U.S. marine mammal bycatch 

standards, including whether to apply 

one or more of the possible standards 

when evaluating import-supplying 

fisheries to make decisions regarding 

initiating consultation or banning 

imports, which standards to apply, and 

whether to apply different standards for 

making the decision to initiate 

consultation than are used to make the 

decision to ban imports. Further, NMFS 

is requesting comments on what issues 

and conditions should be considered 

during consultation and whether and 

what kind of alternative procedures 

should be established for implementing 

import prohibitions on a shipment-byshipment or shipper-by-shipper basis. 

Finally, NMFS is requesting comments 

regarding if and how intermediary 

nations should be addressed by the 

procedures under consideration. 

Petition for Rulemaking 

On March 5, 2008, the U.S. 

Department of Commerce and other 

relevant Departments were petitioned to 

initiate rulemaking to ban importation 

of swordfish and swordfish products 

from countries that have not satisfied 

the MMPA section 101(a)(2) 

requirement. The petition for 

rulemaking under the Administrative 

Procedure Act was submitted by two 

nongovernmental organizations, the 

Center for Biological Diversity and the 

Turtle Island Restoration Network. The 

complete text of the petition is available 

via the internet at the following web 

address: http://www.nmfs.noaa.gov/ia/. 

Copies of this petition may also be 

obtained by contacting NMFS [see 

ADDRESSES]. 

On December 15, 2008, NMFS 

published a notification of receipt of the 

petition, with a January 29, 2009, 

deadline for comments (73 FR 75988). 

NMFS subsequently reopened the 

comment period from February 4 to 

March 23, 2009 (74 FR 6010, February 

4, 2009). 

Although the petition only requested 

action regarding imports of swordfish 

and swordfish products, the import 

provisions of MMPA section 101(a)(2) 

apply more broadly to imports from 

other foreign fisheries that use 

‘‘commercial fishing technology which 

results in the incidental kill or 

incidental serious injury of ocean 

mammals in excess of United States 

standards’’. Therefore, this rulemaking 

would be broader in scope than the 

petition. Comments received on the 

petition were considered during the 

development of this advance notice of 

proposed rulemaking. Many of the 

comments were limited to the scope of 

the petition, but others are more broadly 

applicable. We have summarized all 

comments on the petition below. 

Summary of Comments Received on 

Petition 

NMFS received almost 45,000 

comments on the petition during the 

two public comment periods, including 

comments from individual members of 

the public, environmental and industry 

groups, members of Congress, and 

swordfish exporting nations. The vast 

majority of public comments were 

submitted in association with mass 

comment campaigns by the Center for 

Biological Diversity and the Natural 

Resources Defense Council. NMFS 

developed this advance notice of 

proposed rulemaking in response to the 

comments received on the petition. 

(1) Support for the petition—The vast 

majority of public comments supported 

the petition and recommended that 

NMFS implement the MMPA import 

provisions. Most of those comments 

recommended banning swordfish 

imports immediately, although a few 

comments recommended that NMFS 

request and evaluate information from 

nations before banning imports. 

Some comments in support of the 

petition indicated that implementing 

the MMPA import provisions would (1) 

provide an incentive for foreign 

fisheries to implement bycatch 

reduction measures and data 

requirements similar to those of the 

United States; (2) provide added 

protection for marine mammals outside 

of U.S. waters; (3) level the ‘‘playing 

field’’ and protect U.S. fishers from 

unfair competition; and (4) ensure that 

U.S. consumers do not unwittingly 

contribute to the depletion of marine 

mammal populations as a result of 

poorly regulated fisheries. Several 

comments claimed that NMFS had 

failed to implement the MMPA import 

provisions and, thereby, had promoted 

the destruction of marine mammal 

populations and placed U.S. fishers at a 

significant competitive disadvantage. 

One comment suggested that NMFS did 

not need to develop regulations to 

implement a ban on swordfish imports 

because NMFS could ‘‘readily compare’’ 

foreign fishing operations to U.S. marine 

mammal bycatch standards. 

(2) Suggested alternative approaches 

to addressing international marine 

mammal bycatch—Several comments 

suggested that working cooperatively 

with trading partners would be more 

effective than banning imports. Some of 

those comments suggested that the 

United States work to address 

international marine mammal bycatch 

through international organizations, 

such as regional fishery management 

organizations. 

One comment suggested a capacitybuilding effort to bring about change in 

the fishing practices of trading partners. 

Another comment suggested developing 

a coalition of fish-importing companies 

in the United States to encourage 

suppliers in other countries to buy fish 

caught with ‘‘mammal safe’’ gear, which 

it suggested could be provided, 


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installed, and demonstrated by the U.S. 

government, industry, or nongovernmental organization partners. 

(3) Possible standards—A few 

comments pointed out the need to 

clearly define the ‘‘United States 

standards’’ regarding marine mammal 

bycatch in the context of section 

101(a)(2) of the MMPA. Two comments 

recommended that NMFS consider the 

fisheries and fishing conditions of 

individual nations when evaluating 

those fisheries against U.S. marine 

mammal bycatch standards. 

The majority of comments suggested 

that ‘‘United States Standards’’ should 

include consideration of the bycatch 

mitigation measures implemented by 

exporting nations. Comments suggested 

that foreign measures should be 

comparable to those used in U.S. 

fisheries, which include pingers 

(acoustic deterrents), net extenders, 

limits on longline length, time-area 

closures, safe handling and release 

training and equipment, and observer 

coverage. 

Many comments suggested applying 

either the short- or long-term bycatch 

reduction goal of MMPA section 118 as 

a standard. The short-term goal specifies 

that bycatch should be reduced below a 

marine mammal stock’s PBR level, 

while the long-term goal specifies that 

bycatch should be reduced to 

insignificant levels approaching a zero 

mortality and serious injury rate 

(sometimes referred to as the ‘‘zero 

mortality rate goal’’). In contrast, one 

comment suggested that it would be 

inappropriate to hold exporting nations 

to the long-term goal until U.S. fisheries 

have achieved it. One comment 

recommended applying additional 

MMPA standards, including (1) 

maintaining the health and stability of 

the marine ecosystem; (2) recovering 

populations to, and maintaining them 

at, optimum sustainable populations; (3) 

ensuring that authorized take levels do 

not disadvantage affected stocks; and (4) 

requiring development of take reduction 

plans for fisheries that exceed a stock’s 

PBR level. Several comments also 

pointed out that MMPA section 

101(a)(2)(B) establishes standards for the 

eastern tropical Pacific purse seine 

fishery for tuna. Another comment 

suggested using the standards described 

in section 610 of the HSDFMPA. 

(4) Trade and economic issues— 

Several comments discussed the 

relevance of the MMPA import 

provisions to intermediary nations. One 

comment recommended that NMFS 

apply the provisions to intermediary 

nations by requiring those nations to 

provide documentation as to how 

swordfish or swordfish products they 

export to the United States were 

harvested and what impact those 

fisheries had on marine mammals. 

Another comment suggested that 

harvesting nations should be 

responsible for issuing ‘‘mammal-free 

certifications’’ to vessels and that 

importers in intermediary nations 

should be required to obtain such 

‘‘certifications’’ prior to landing fish at 

the nations’ ports. 

Numerous comments stated that a ban 

on swordfish imports would cause 

economic hardship for exporting 

nations. Another comment claimed that 

banning imports would financially harm 

importing companies in the United 

States because foreign harvesters would 

sell their fish to alternative markets. 

Some comments voiced concern that 

implementing the MMPA import 

provisions could result in ‘‘unlawful 

barriers to international trade.’’ Some 

comments suggested that any measures 

taken should not hamper trade in 

swordfish or any other fish caught by 

‘‘proper fishing devices.’’ A comment 

from one nation suggested that banning 

imports of swordfish would contradict 

the existing spirit of partnership and 

good relations with the United States. In 

contrast, one comment suggested that a 

ban on swordfish imports could be 

implemented in a manner consistent 

with the General Agreement on Tariffs 

and Trade and the World Trade 

Organization. That comment further 

suggested that NMFS is obligated to 

implement the MMPA import 

provisions, even if a ban on swordfish 

imports were found to be in conflict 

with international trade agreements. 

(5) Inaccuracies in petition and 

counter claims—During its review of the 

petition, NMFS noted that the petition 

contained some factual errors. For 

example, some of the swordfish import 

amounts reported for Taiwan (referred 

to as China-Taipei in the petition), 

Mauritius, Mexico, New Zealand, and 

South Africa were incorrect. Corrections 

are available at http:// 

www.st.nmfs.noaa.gov/st1/trade/. 

NMFS also noted some discrepancies 

in the petition’s description of the scope 

and timing of some U.S. fishery closures 

described in the petition. In particular, 

the description on page eleven of the 

petition underestimated the extent of 

longline closures in the Pacific, ignoring 

areas closed to longline fishing in Guam 

and the Northwestern and Main 

Hawaiian Islands. The description on 

page eight of the petition failed to 

recognize that the gillnet prohibition in 

the western Pacific fishery management 

area includes all U.S. EEZ waters 

around Hawaii, Guam, American 

Samoa, Commonwealth of the Northern 

Mariana Islands, and U.S. Pacific remote 

island areas. Further, the description on 

the same page of the timing of drift 

gillnet fishery closures on the U.S. west 

coast during El Nin ̃o events was 

incorrect; those closures are 

implemented from June 1 through 

August 31 when NMFS has forecasted 

or announced the occurrence of an El 

Nin ̃ o event. 

Several exporting nations offered 

counterclaims to those listed in the 

petition. Brazil noted that the petition 

claimed that Brazil expanded its 

longline fleet by leasing vessels from 

flag of convenience countries. In its 

comments, Brazil cited a law 

prohibiting vessels operating for 

Brazilian fishing companies from 

registering in other countries under flags 

of convenience. Taiwan provided 

comments questioning the validity of 

bycatch estimates for Taiwan fisheries 

in the petition. Taiwan argued that the 

estimates were derived using incorrect 

methods and data. Two nations 

commented that they believed there was 

no valid justification for the measures 

proposed by the petitioners. 

A number of nations commented that 

their marine mammal protection 

programs were comparable to those of 

the United States. Those nations 

provided a variety of supporting 

information regarding their laws, 

regulations, and/or bycatch management 

measures. 

One nation suggested that the 

provision of reasonable proof regarding 

the effects of fisheries on marine 

mammals is not a prior obligation of 

exporting nations, although the United 

States is entitled to request such 

information. 

Classification 

This advance notice of proposed 

rulemaking has been determined to be 

not significant for purposes of Executive 

Order 12866. 

Dated: April 26, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2010–10158 Filed 4–29–10; 8:45 am] 

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