[Federal Register Volume 85, Number 52 (Tuesday, March 17, 2020)]
[Notices]
[Pages 15116-15124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05380]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 200309-0071; RTID 0648-XQ007]
Fish and Fish Product Import Provisions of the Marine Mammal
Protection Act 2020 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 2020 List of Foreign Fisheries
(LOFF), as required by the regulations implementing the Fish and Fish
Product Import Provisions of the Marine Mammal Protection Act (MMPA).
The draft 2020 LOFF reflects new information received from nations
submitting their 2019 Progress Reports on interactions between
commercial fisheries exporting fish and fish products to the United
States and marine mammals, and updates the 2017 LOFF. NMFS classified
each commercial fishery in this draft 2020 LOFF into one of two
categories, either ``export'' or ``exempt,'' based upon frequency and
likelihood of incidental mortality and serious injury of marine mammals
likely to occur incidental to each fishery. The classification of a
fishery on the draft 2020 LOFF determines which regulatory requirements
will be applicable to that fishery for it to receive a comparability
finding necessary to export fish and fish products to the United States
from that fishery.
DATES: Written comments must be received by 5 p.m. Eastern Time on May
1, 2020.
ADDRESSES: The draft 2020 LOFF can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
You may submit comments on this document, identified by NOAA-NMFS-
2020-0001, 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-2020-0001, 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). 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
[email protected], [email protected], 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 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 its fisheries producing fish and fish
products exported to the United States. Specifically, fish or fish
products cannot 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 United States standards. 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 2016 final 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.
This draft 2020 LOFF (see https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries) makes updates to the
final 2017 LOFF, which was published on March 16, 2018 (83 FR 11703).
What is the List of Foreign Fisheries?
Based on information provided by nations, industry, the public, and
other readily available sources, NMFS identified nations with
commercial fishing operations that export fish and fish products to the
United States and 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 economy),
constitutes the LOFF.
[[Page 15117]]
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.\1\
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\1\ With respect to all references to ``nation'' or ``nations''
in the rule, it should be noted that the Taiwan Relations Act of
1979, Public Law 96-8, Section 4(b)(1), provides that [w]henever the
laws of the United States refer or relate to foreign countries,
nations, states, governments, territories or similar entities, such
terms shall include and such laws shall apply with respect to
Taiwan. 22 U.S.C. 3303(b)(1). This is consistent with the United
States' one-China policy, under which the United States has
maintained unofficial relations with Taiwan since 1979.
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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 a marine
mammal. All fisheries that export to the United States must be on the
LOFF. A harvesting nation must apply for and receive a comparability
finding for each of its export and exempt fisheries on the LOFF to
continue to export fish and fish products from those fisheries to the
United States.
What do the classifications of ``exempt fishery'' and ``export
fishery'' mean?
The classifications of ``exempt fishery'' or ``export fishery''
determine the criteria that a 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 for
exempt and export fisheries differ.
For an exempt fishery, the criteria to receive a comparability
finding are limited only to conditions related to the prohibition of
intentional killing or injury of marine mammals (see 50 CFR
216.24(h)(6)(iii)(A)). For an export fishery, the criteria to receive a
comparability finding include the conditions related to the prohibition
of intentional killing or injury of marine mammals (see 50 CFR
216.24(h)(6)(iii)(A)) and the requirement to develop and 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)). The definitions of ``exempt fishery'' and ``export
fishery'' are stated in the Definitions below.
What type of fisheries are included in the List of Foreign Fisheries?
The LOFF contains only those commercial fishing operations
authorized by the harvesting nation to fish and export fish and fish
products to the United States. 50 CFR 18.3 defines ``commercial fishing
operation'' as the lawful harvesting of fish from the marine
environment for profit as part of an on-going business enterprise. Such
term shall not include sport fishing activities whether or not carried
out by charter boat or otherwise, and whether or not the fish so caught
are subsequently sold. 50 CFR 229.2 also defines ``commercial fishing
operation'' as the catching, taking, or harvesting of fish 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 harvested. The
term includes licensed commercial passenger fishing vessel (as defined
in section 216.3 of 50 CFR 216) activities and aquaculture activities.
Per the application of these two definitions, the LOFF contains export
and exempt fisheries that are engaged in the lawful and authorized
commercial harvest of fish from the marine environment. The term
``commercial fishing operation'' is used in the definitions of exempt
fishery and export fishery (see Definitions below).
How did NMFS classify a fishery if a harvesting nation did not provide
information?
Information on the frequency or likelihood of interactions or
bycatch in most foreign fisheries was lacking or incomplete. Absent
such information, NMFS used readily available information, noted below,
to classify fisheries, which included drawing analogies to similar U.S.
fisheries and gear types interacting with similar marine mammal stocks.
Where no analogous fishery or fishery information existed, NMFS
classified the commercial fishing operation as an export fishery until
information becomes available to properly classify the fishery.
Henceforth, in the year prior to the year in which a determination is
required on a comparability finding application (e.g., 2020 and 2024),
NMFS will revise the LOFF. When revising the LOFF, NMFS may reclassify
a fishery if a harvesting nation provides reliable information to
reclassify the fishery or such information is readily available to NMFS
(e.g., during the comment periods, consultations, or in Progress
Reports).
Overview of the 2020 Draft LOFF
The 2020 draft LOFF is composed of 906 exempt fisheries and 1990
export fisheries from 129 nations (or economies). Ninety-six nations
submitted their 2019 Progress Reports, and NMFS used information from
those reports to revise the 2017 LOFF and create the updated draft 2020
LOFF. The 2017 LOFF and the draft 2020 LOFF, as well as a list of
Intermediary nations (or economies) and their associated products and
sources of those products, and a list of fisheries and nations where
the rule does not apply, can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
Nations Failing To Respond
More than 37 nations (or economies) \2\ failed to submit a 2019
Progress Report. These nations include: Azerbaijan, Bahrain, British
Virgin Islands, Cameroon, Cape Verde, Colombia, Dominican Republic,
Egypt, Fiji, French Polynesia, France, Ghana, Haiti, Iran, Israel,
Kiribati, Libya, Lithuania, Malaysia, Mauritania, Mozambique, New
Caledonia, Nicaragua, Papua New Guinea, Romania, Russian Federation,
Saudi Arabia, Senegal, Solomon Islands, South Africa, Saint Kitts
Nevis, Saint Pierre Miquelon, Tanzania, Tunisia, Turks and Caicos
Islands, and Venezuela. Some nations, such as Colombia, France, French
Polynesia, Ghana, Senegal, Tunisia, and the Russian Federation, were in
various stages of completing their 2019 Progress Reports at the time of
the deadline.
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\2\ The term ``nation or harvesting nation'' includes foreign
countries, nations, states, governments, territories, economies, or
similar entities that have laws governing the fisheries operating
under their control.
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The following nations are solely intermediary nations and were not
technically required to submit a 2019 Progress Report: Belarus, Monaco,
Reunion, and Switzerland. Switzerland submitted a 2019 Progress Report
requesting the deletion of all of its intermediary products, which NMFS
denied because U.S. trade records clearly indicate that these products
are exports from Switzerland.
Of the 37 nations listed above, approximately 26 failed to submit
to NMFS either their 2019 Progress Reports or information for
development of the LOFF. These nations are: Azerbaijan, Bahrain,
British Virgin Islands, Cameroon, Cape Verde, Dominican Republic,
Egypt, Fiji, Haiti, Israel, Kiribati, Lithuania, Luxembourg,
[[Page 15118]]
Mauritania, Nicaragua, Papua New Guinea, Romania, Russian Federation,
Saudi Arabia, Solomon Islands, Saint Helena, Saint Kitts Nevis, Saint
Lucia, Saint Pierre Miquelon, Tanzania, and Tunisia. If any of these
nations fail to submit information or comments on this 2020 draft LOFF,
these nations will not be on a positive trajectory toward receiving a
comparability finding for their commercial fisheries.
Approximately 17 nations have a limited or sporadic history of
exporting fish and fish products to the United States over the last 20
years. In the 2017 Draft LOFF, NMFS proposed several of these nations
for removal from the LOFF and provided its rationale (82 FR 39762,
August 22, 2017). These nations are: Albania, Bermuda, Cambodia, French
Guiana, Jordan, Kazakhstan, Libya, Macedonia, Malta, Moldova, Mongolia,
Montserrat, Rwanda, Slovakia, Somalia, Togo, and Yemen. NMFS urge these
nations to contact NMFS or the Department of State to clarify whether
they intend to continue to export fish and fish products to the United
States.
Approximately 72 nation have no record of exporting fish and fish
products to the United States. These nations are: Afghanistan, Algeria,
Andorra, Angola, Anguilla, Aruba, Bhutan, Bolivia, Bosnia and
Herzegovina, Botswana, Burkina Faso, Burundi, Cayman Islands, Chad,
Congo, Cuba, Djibouti, Dominica, East Timor, Equatorial Guinea,
Eritrea, Ethiopia, French Indian Ocean Area, French Pacific Islands,
French Southern Territories, French West Indies, Gabon, Gaza Strip,
Georgia, Gibraltar, Guadeloupe, Guinea-Bissau, Heard and McDonald
Islands, Iraq, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Lesotho,
Liechtenstein, Luxembourg, Malawi, Mali, Martinique, Mayotte,
Montenegro, Nauru, Nepal, Netherlands Antilles, Niger, Niue, North
Korea, Paraguay, Qatar, San Marino, Serbia, Sudan, Svalbard Jan Mayen,
Swaziland, Syria, Tajikistan, Tokelau, Trust Territories of Pacific
Islands, Tuvalu, Uzbekistan, Vatican City, Wallis and Futuna, West
Bank, Western Sahara, Zambia, and Zimbabwe.
In these latter two cases (of having limited or sporadic history of
exporting to the United States over the last 20 years, or of having no
records of exporting to the United States), NMFS urges nations to
examine their exports to the United States over the last two decades
and include all fisheries or processors and processed product, which
have, are, or in the future may be the source of fish and fish products
exported to the United States. To ensure that no fisheries or processed
products 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 on the LOFF. Nations on these
lists should send a letter to NMFS to confirm that they do not intend
to export fish and fish products to the United States between January
1, 2022, and January 1, 2026. If any nation on these lists intends to
export fish and fish products to the United States, they should contact
and work with NMFS to ensure their fisheries are on the LOFF and that
they apply for and receive a comparability finding.
General Changes From the 2017 LOFF
Nations submitted their 2019 Progress Reports through the NMFS
International Affairs Information Capture and Reporting System
(IAICRS). IAICRS was developed, in part, to achieve greater consistency
and standardization in the reporting of target species, gear types,
area of operation, and marine mammal interactions. Nations were
instructed to revise their fisheries to reflect the fishery management
regime within that harvesting nation. Consequently, nearly every
harvesting nation that submitted a 2019 Progress Report updated the
information on the LOFF. These modifications significantly improved the
quantity, quality, consistency, and accuracy of the draft 2020 LOFF.
Although the modifications are too numerous and fine-scale to enumerate
in detail within this Federal Register notice, a record of all
modifications are retained within IAICRS. The modifications are
summarized below.
The target species listed on the 2017 Draft LOFF were initially
identified based on the fish and fish products exported to the United
States from that harvesting nation. Nations were requested to link
those exported seafood products to specific fisheries and the target
species of those fisheries. In some instances, the exported product was
a non-target species harvested in a fishery. Therefore, in the 2019
Progress Report, harvesting nations were requested to identify target
and non-target species for each fishery. If a particular fishery was a
multi-species fishery, harvesting nations were instructed to include
all species harvested or authorized to be harvested in that fishery.
NMFS still encourages nations to aggregate multi-species fisheries into
one fishery, as appropriate.
The 2017 LOFF included fisheries with unknown gear types or that
used parochial names for certain gear types. In contrast, IAICRS uses
the Food and Agriculture (FAO) definitions of fishing gear, grouped by
categories, in accordance with the FAO-recommended classification
system, the International Standard Statistical Classification of
Fishing Gear (ISSCFG). These FAO definitions and FAO-recommended
classifications are valid on a worldwide basis for fisheries in both
inland waters and oceans, as well as for small-, medium- and large-
scale fisheries. Therefore, using IAICRS, harvesting nations updated
their gear types using these FAO definitions for gear types.
NMFS discourages harvesting nations from combining gear types with
dissimilar bycatch risk profiles. For example, exempt gear types should
not be listed with export gear types with high bycatch risk profiles
(e.g., gillnets), because this could result in fisheries using these
exempt gear types being classified as export fisheries. Therefore,
harvesting nations are urged to review their gear types and separate
exempt gear types from export gear types.
IAICRS denotes area of operation using the FAO major fishing areas
and subareas, and allows nations to designate management areas within
their EEZ within those FAO fishing subareas. Harvesting nations were
requested to use this construct to designate their area of operation.
Nearly every harvesting nation submitting a 2019 Progress Report
updated its area of operation for the LOFF.
Harvesting nations were requested to review the 2017 LOFF and
identify fisheries that could be consolidated by area or target
species, especially multi-species fisheries (e.g., fisheries with
permits issued to one gear type to fish multiple target species) or
fisheries that should be eliminated because the fisheries are solely
for domestic consumption. NMFS also requested that harvesting nations
add fisheries that export fish and fish products or intend in the
future to export such products to the United States.
NMFS maintains that the fisheries on the LOFF should reflect the
commercial fisheries authorized by the harvesting nation, according to
their fishery management system, to commercially fish and export fish
and fish products to the United States. A list of commercial fisheries
that were deleted or added can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
After harvesting nations revised the LOFF as part of the 2019
Progress Reports, NMFS reviewed fisheries and identified gear types
indicated in a fishery that should be classified as an
[[Page 15119]]
export fishery rather than as an exempt fishery, or vice-a-versa. NMFS
reclassified such fisheries from export to exempt or from exempt to
export as appropriate. A list of commercial fisheries with revised
classifications can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
Instructions to Nations Reviewing the Draft 2020 LOFF and Actions
Needed by Nations
In the draft 2020 LOFF, the vast majority of fisheries (1990
fisheries) are classified as export fisheries, in accordance with 50
CFR 216.24(h)(3) and 216.3. To ensure that all of the information for
their fisheries is complete and can be appropriately classified,
harvesting nations should review carefully the draft 2020 LOFF within
IAICRS (https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries), together with this Federal Register notice,
and make any revisions in IAICRS. Harvesting nations may also submit
detailed comments on their commercial fishing and processing operations
in writing (see ADDRESSES above) or in IAICRS.
The final 2020 LOFF will be the last LOFF prior to the deadline for
submission of comparability finding applications by nations. The 2020
LOFF will be the foundation for all responses that nations must provide
as part of their comparability finding application. Therefore, NMFS
urges nations to update the draft 2020 LOFF and provide the information
that is lacking for their nation. NMFS further urges nations to provide
as much detail as possible about the fishery, its operational
characteristics, and, in particular, its interactions with and bycatch
of marine mammals, including applicable references. It is in the
interest of nations to provide the requested information, because the
information allows NMFS to determine whether the MMPA import rule
applies to all of the fish and fish products exported to the United
States or only to a particular fishery or fisheries, what fishery
classification is appropriate, whether the nation is only a processor
of that fish or fish product, or if the nation is a harvester and
processor of that fish or fish product. Specifically, we request that
harvesting nations:
Update their marine mammal abundance estimates using the
new tool in IAICRS containing a look-up feature that provides the
``best available'' marine mammal abundance estimates for marine mammal
populations/stock in their waters;
Update their bycatch limit, using the guidance (provided
in IAICRS) to calculate a bycatch limit and the new look-up feature
that will automatically calculate the bycatch limit for the selected
marine mammal stock;
Update their marine mammal bycatch estimates for each
fishery on the LOFF, including adding additional years of data (e.g.,
at least five years);
Provide and update bycatch estimates including information
on the number of marine mammals killed, injured, and released alive in
the fishery (note that any fishery for which a nation indicated that an
observer program exists should be accompanied by bycatch estimates);
Provide information in any category where the data set is
labelled ``none provided'' or ``unknown'';
Provide gear types for any gear listed as Unknown/Gear not
known/Not provided; and
Update and include information on distant water fisheries
that are operating under a licensing or access agreement (even if
nations are uncertain whether this product is exported to the United
States).
We know that nations may have submitted deletion requests for
fisheries and intermediary products (see below), and that NMFS declined
requests due to inadequate information to support the deletion request
or due to the existence of contrary trade data demonstrating that the
fish and fish products were exported to the United States. For example,
Hong Kong, while submitting its 2019 Progress Report, did so by
requesting the deletion of all of its fisheries. NMFS denied these
deletion requests because the U.S. trade data (https://www.fisheries.noaa.gov/national/sustainable-fisheries/foreign-fishery-trade-data) indicate that Hong Kong exports these products to the
United States. If appropriate, nations are encouraged to use the
deletion request system to request a fishery deletion or an
intermediary product deletion. In addition, as stated above, nations
are encouraged to review and revise their marine mammal lists under the
``Manage Marine Mammals'' tab in IAICRS. Many nations failed to submit
marine mammal population abundance estimates and bycatch limit
estimates, even when the estimate could be found in the scientific
literature. NMFS has developed a new tool in IACRS where nations can
look up the marine mammal stock, click on the appropriate stock, and
populate the data fields with the abundance estimate, maximum net
reproductive rate, recovery factor, and bycatch limit for that marine
mammal stock.
Description of the Columns on the LOFF and Additional Instructions
The draft 2020 LOFF, like the 2017 LOFF, is again organized by
nation, and has listed for each nation its exempt and export fisheries.
This list contains the following seven columns.
``Target Species or Product'' is a list of the target species and
the non-target species associated with that exempt or export fishery.
For standardization purposes, this list includes common and scientific
names for the fisheries' target and non-target species.
``Gear Type'' is the list of fishing gears used to harvest the
target species. As previously discussed, the gears are designated
according to the FAO definitions of fishing gear, and are grouped by
categories in accordance with the FAO-recommended ISSCFG classification
system.
``Number of Vessels/Licenses/Participants, Aquaculture Facilities''
is an estimate of the number of vessels authorized to fish in this
fishery, the number of fishing permits or licenses issued by the nation
for vessels or number of participants authorized to legally fish or
operate in this fishery. In the case of aquaculture, it is the number
of facilities authorized by the nation to operate aquaculture
operations. Nations are requested to provide at least one of these data
points.
``Area of Operation'' is the FAO global fishing area and sub-
regional statistical area or division where the fishery operates.
Nations may also include fishery management areas specific to their
laws and management structure with the FAO area, division or subarea.
``Marine Mammal Interactions or Co-occurrence by Group, Species or
Stock'' is a listing by marine mammal species or stock of known marine
mammals whose distribution overlaps the area of operation of the
fishery during the time when the fishery is in operation. This list
does not need to be an exhaustive list of all of the marine mammal
species/stock that may be found in or migrate through a nation's
waters, but it should reflect the marine mammals that have a regular
and significant co-occurrence with this fishery, depredate on bait or
catch, are captured and released alive, or are killed or injured in the
fishery. Co-occurrence data is useful to develop risk assessment models
in the absence of bycatch estimates. Nations are requested to review
and update this list.
``Marine Mammal Bycatch Estimates'' are the marine mammal species/
stocks and the average annual bycatch estimate
[[Page 15120]]
for that species as provided by the harvesting nation. This list is
likely to be a subset of the marine mammal species/stocks listed in the
``Marine Mammal Interactions or Co-occurrence by Group, Species or
Stock'' column. In IAICRS, nations are requested to carefully review
their existing submission and edit this data to provide marine mammal
mortality and injury data for no less than five years. Nations are also
requested to calculate an average annual mortality estimate or average
annual mortality and injury estimate for all of the years where data is
provided in the IAICRS. NMFS expects that, for any fishery for which
there is an observer program, nations will provide bycatch estimates
using that observer data, and will extrapolate the observed bycatch
data/rate to estimate bycatch in the entire fleet.
``RFMO'' indicates that the fishery is operating under the
jurisdiction of, or adhering to the management measures of, one or
several regional fishery management organizations (RFMO). If the
fishery is operating under an RFMO, nations should indicate each RFMO
associated with that fishery.
Instruction for Intermediary Nations and Products for Nations That Are
Processing Fish and Fish Products
For the purposes of identifying intermediary nations, if a nation
exports a fish or fish product (for which it is the processor) to the
United States, or if the nation is the harvester and processor, or if
the fish in that product is harvested elsewhere and transshipped
through that nation, NMFS strongly encourages that nation to identify
those products and the source fisheries and nations for those products.
Providing this information may allow NMFS to reclassify a nation as an
intermediary nation for that specific fish or fish product. In
addition, the intermediary nation list and the product feature in
IAICRS also identify whether the specific fish or fish product was
harvested in the nation's waters under an ``Access/License/Charter
Agreement or Bilateral/Permitting Agreement.'' Nations should indicate
whether the product was harvested by another nation operating under an
agreement, and should indicate which nations are actively fishing in
its waters for this product. If the product was not harvested in a
nation's waters, but rather was imported into a nation from another
nation for the purposes of processing, that nation should indicate
which nations provided the product or raw material. If the product was
transshipped through a nation's border (i.e., transport only, with no
value added), thus changing the product's origin so that it becomes a
product of the nation through which it is transshipped, that nation
should indicate that it is solely a transshipper of the product. If a
nation is performing some form of value-added processing of the
product, that nation should not indicate that it is a transshipper.
Finally, if a nation is also the harvester of this product, that nation
should indicate that it is sourcing this product from other nations and
possibly co-mingling the product with product from its own active-
harvest fisheries already on the LOFF. The intermediary nation and the
product feature came online in IAICRS mid-way through the 2019 Progress
Report reporting period. NMFS strongly encourages nations to use IAICRS
to complete or update their list of intermediary products. The current
list of intermediary products is at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
Instructions for Fisheries Listed in ``Rule Does Not Apply''
The MMPA import provisions do not apply to any land-based or
freshwater aquaculture operations, as these commercial fishing
operations do not occur in marine mammal habitat. Nevertheless, NMFS is
attempting to account for all fish and fish products exported by a
nation to the United States in one of three categories: (1) LOFF
(exempt and export fisheries); (2) Intermediary (processed products);
(3) Rule Does Not Apply (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 operations have been included in the LOFF,
nations should indicate such fisheries and operations and provide the
necessary documentary evidence so NMFS can include them on the LOFF
under ``Rule Does Not Apply''. However, nations wishing to designate a
fishery under ``Rule Does Not Apply'' cannot use as a rationale that it
occurs in an estuary, has no documented marine mammal bycatch, or
exports small quantities of fish and fish products.
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 draft 2020 LOFF, they provide as much detail and supporting
documentary evidence as possible. While literature contains references
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.
Frequently Asked Questions About the LOFF and the MMPA Import
Provisions Definitions Within the MMPA Import Provisions
What is a ``comparability finding''?
A comparability finding is a finding by NMFS that the harvesting
nation has implemented a regulatory program for an export or exempt
fishery that 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. 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 requirement may be met by developing,
implementing and 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).
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.
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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 a foreign commercial fishing operation not on the
LOFF. 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.
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).
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
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 2020 List of Foreign Fisheries
How is the List of Foreign Fisheries organized?
NMFS organized the LOFF by harvesting nation (or economy). The LOFF
may include ``exempt fisheries'' and ``export fisheries'' for each
harvesting nation. The fisheries are defined by target species,
geographic location of harvest, gear-type or a combination thereof.
Where known, the LOFF also includes a list of the marine mammals that
co-occur with the fishery, a list of marine mammals that interact
(e.g., depredate the fishing gear, are killed or injured in, or are
released from the fishery) with each commercial fishing operation, and,
when available, numerical estimates of the 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 LOFF?
NMFS reviewed and considered documentation provided by nations
during the development of the 2017 LOFF and the 2019 Progress Report.
NMFS also reviewed and considered the information provided by 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 entities and documents, transshipment vessel
workers and fish importers; government vessel registries; RFMO or
intergovernmental agreement documents, reports, national reports, and
statistical document programs; appropriate catch certification
programs; 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 determine which species or stocks are included as
incidentally or intentionally killed or seriously injured in a fishery?
The LOFF includes a column consisting of a list of marine mammals
that co-occur with the commercial fisheries, that is, the distribution
of marine mammals that overlaps with the distribution of commercial
fishing activity. The marine mammals that co-occur with a fishery may
or may not interact with, or be incidentally or intentionally killed or
injured in, the fishery. The LOFF also 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 (for inclusion in
the 2017 LOFF and in their 2019 Progress Report) and readily available
scientific information including co-occurrence models demonstrating
distributional overlap of commercial fishing operations and marine
mammals to determine which species or stocks to include as incidentally
or intentionally killed or 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
Definitions above or 50 CFR 216.3).
How often will NMFS revise the List of Foreign Fisheries?
NMFS will re-evaluate foreign commercial fishing operations and
publish in the Federal Register the year prior to the expiration of the
exemption period (e.g., this year and again in 2024)
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a notice of availability of the draft for public comment and a notice
of availability of the final revised LOFF. 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 January
1, 2022, all fisheries wishing to export to the United States must be
on the LOFF and have a comparability finding. (see 50 CFR
216.24(h)(1)).
After publication of the LOFF, if a nation wishes to commence
exporting fish and fish products to the United States from a fishery
not currently included in 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 (preferably
over a five-year period), 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, 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. Data from
independent onboard observer programs documenting marine mammal
interaction and bycatch is preferable and is given higher consideration
than self-reports, logbooks, fishermen interviews, or sales tickets or
dockside interviews. Such data can be summarized and averaged over at
least a five-year period and include information on the observer
program including the percent coverage, number of vessels and sets or
hauls observed. Nations should also indicate whether bycatch estimates
from observer data are observed minimum counts or extrapolated
estimates for the entire fishery. Nations submitting logbook
information should include details about the reporting system,
including examples of forms and requirements for reporting. Nations may
make formal requests to NMFS to reconsider a fishy classification.
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.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries.
Process When Only Incidental Mortality and Serious Injury Estimates
Were Available
For most commercial fisheries, NMFS is still lacking detail
regarding marine mammal interactions, and/or lacking quantitative
information on the frequency of interactions. Where nations provided
estimates of bycatch 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.
Alternative Approaches When Estimates of Marine Mammal Bycatch Are
Unavailable
As bycatch estimates are 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 as a measure of risk (Komoroske & Lewison 2015; FAO 2010;
Watson et al., 2006; Read et al., 2006; Reeves et al., 2004); (2)
analogous gear, evaluation of records of bycatch and assessment of
risk, where such information exists, in analogous U.S. fisheries (MMPA
List of Fisheries found at: https://www.fisheries.noaa.gov/action/list-fisheries-2019) 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). NMFS also evaluated other relevant information including,
but not limited to information on fishing techniques, gear used,
methods used to deter marine mammals, target fish species, and seasons
and areas fished; qualitative data from logbooks or fisher reports;
stranding data; and information on the species and distribution of
marine mammals in the area, or other factors. 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 levels of risk by
location, season, fishery, and gear.
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.
Global Classifications for Some Fishing Gear Types
Due to a lack of information about marine mammal bycatch, NMFS used
gear types to classify fisheries as either export or exempt. The
detailed rationale for these classifications by gear type were provided
in the Federal Register notice for the draft 2017 LOFF (82 FR 39762;
August 22, 2017) and are summarized here. In the absence of specific
information showing a remote likelihood of marine mammal bycatch in a
particular fishery, NMFS classified fisheries using these gear types as
export. Exceptions to those
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classifications are included in the discussion below.
NMFS classi fied as export all trap and pot fisheries because the
risk of entanglement in float/buoy lines and groundlines is more than
remote, especially in areas of co-occurrence with large whales. While
many nations assert that marine mammals cannot enter the trap and
become entangled, the risk is not from the trap but from the surface
buoy line and the groundlines (line that connects the trap). These
lines represent an entanglement risk to large whales and some small
cetaceans. However, NMFS classified as exempt trap and pot fisheries
operating in the Gulf of Mexico and Caribbean due to the low co-
occurrence with large whales in this region and an analogous U.S.
Category III mixed species and lobster trap/pot fishery operating in
the Gulf of Mexico and Caribbean. NMFS classifies as exempt small-scale
fish, crab, and lobster pot fisheries using mitigation strategies to
prevent large whale entanglements, including seasonal closures during
migration periods, ropeless fishing, and vertical line acoustic release
technology.
NMFS classified as export longline gear and troll line fisheries
because the likelihood of marine mammal bycatch is more than remote.
However, NMFS classified as exempt longline and troll fisheries with
demonstrated bycatch rates that are less than remote or the fishery is
analogous (by area, gear type, and target species) to U.S. Category III
fishery operating in the area where the fishery occurs. The
entanglement rates from marine mammals depredating longline gear is
largely unknown. NMFS classifies as exempt snapper/grouper bottom-set
longline fisheries operating in the Gulf of Mexico and the Caribbean
because they are analogous to U.S. Category III bottom-set longline
gear operating in these areas. NMFS also classifies as exempt longline
fisheries using a cachalotera system, which prevents and, in some
cases, eliminates marine mammal hook depredation and entanglement.
NMFS uniformly classified as export all gillnet, driftnet, set net,
fyke net, trammel net, and pound net fisheries because the likelihood
of marine mammal bycatch in this gear type is more than remote. No
nation provided evidence that the likelihood of marine mammal bycatch
in these gillnet and set net fisheries was less than remote.
NMFS classified purse seine fisheries as export, unless the fishery
is operating under an RFMO that has implemented conservation and
management measures prohibiting the intentional encirclement of marine
mammals by a purse seine. In those instances, NMFS classifies the purse
seine fisheries as exempt because the evidence suggests that, where
purse seine vessels do not intentionally set on marine mammals, the
likelihood of marine mammal bycatch is generally remote. However, if
there is documentary evidence that a nation's purse seine fishery
continues to incidentally kill or injure marine mammals despite such a
prohibition, NMFS classified the fishery as an export fishery.
Similarly, if any nation demonstrated that it had adopted and
implemented a regulatory measure prohibiting the intentional
encirclement of marine mammals by a purse seine vessel, that fishery
would be designated as exempt, absent evidence that it continued to
incidentally kill or injure marine mammals.
NMFS classified as export all trawl fisheries, including bream
trawls, pair trawls, and otter trawls, because the marine mammal
bycatch in this gear type is more than remote, and this gear type often
co-occurs with marine mammal stocks. However, the krill trawl fishery
operating under changes to Commission for the Conservation of Antarctic
Marine Living Resources (CCAMLR) in subareas 48.1-4 of CCAMLR is
classified as exempt due to the conservation and management measure
requiring marine mammal excluding devices and levels of marine mammal
mortalities that are less than ten percent of the bycatch limit/PBR for
marine mammal stocks that interact with that fishery.
There are several gear types that NMFS classified as exempt because
they are highly selective, have a remote likelihood of marine mammal
bycatch, and have analogous U.S. Category III fisheries. These gear
types are: Hand collection, diving, manual extraction, hand lines, hook
and line, jigs, dredges, clam rakes, beach-operated hauling nets, ring
nets, beach seines, small lift nets, cast nets, bamboo weir, and
floating mats for roe collection.
NMFS classified Danish seine fisheries as exempt based on the
remote likelihood of marine mammal bycatch because of a lack of
documented interactions with marine mammals. The exception are Danish
seine fisheries with documentary evidence of marine mammal
interactions, which NMFS classified as export.
Finally, NMFS classified as exempt most forms of aquaculture,
including lines and floating cages, unless documentary evidence
indicates marine mammal interactions or entanglement, particularly of
large whale entanglement in aquaculture seaweed or shellfish lines, or
nations permit aquaculture facilities to intentionally kill or injure
marine mammals.
General Trends and Observations Related to the LOFF and the 2019
Progress Report
Gillnets represent the vast majority of the export fisheries with
documented marine mammal bycatch. Mitigation measures for gillnets are
few. Active sound emitters such as ``pingers'' are used in gillnet
fisheries to reduce small cetacean bycatch. However, pingers are not
effective for all small cetacean species and may be less effective in
operational fisheries than research programs (Dawson et al., 2013).
Given the limited mitigation options, nations should consider
substituting gillnets with other non-entangling fishing gear, where
there is overlap between operational area of the fishery and the
distribution of marine mammal populations.
The LOFF highlights the clear need for bycatch monitoring programs
to better estimate marine mammal bycatch and to identify where
mitigation efforts are most needed. For example, several nations
recommended that longline and purse seine fisheries be classified as
exempt fisheries because there are few interactions with marine
mammals. However, the logbook and observer data and reports from
various RFMOs that NMFS received did not fully substantiate that the
likelihood of bycatch in these fisheries is remote.
NMFS believes accurate classification of longline fisheries,
especially for tuna, and purse seine fisheries for pelagic species
would benefit from monitoring programs (e.g., observer programs) or
analyses of observer and logbook programs to assess the bycatch rates
associated with these gear types. RFMOs are well-situated to evaluate
marine mammal bycatch rates in tuna and swordfish longline fisheries.
Information from these sources could be used to determine whether the
likelihood of marine mammal bycatch is remote. Nations should strongly
consider bycatch monitoring programs, especially observer and
electronic video monitoring, as a core element in any regulatory
program and a key to the appropriate classification of their fisheries.
There is a growing volume of information available on marine mammal
bycatch mitigation. The most comprehensive report is that of the Expert
Workshop on the Means and Methods for Reducing Marine Mammal Mortality
in Fishing and Aquaculture Operations (FAO 2018), which reviewed the
current state of knowledge on the issue of marine mammal bycatch, and
[[Page 15124]]
evaluated the efficacy and implementation of different strategies and
measures for mitigating bycatch. The workshop produced some key
technical outputs, including an extensive review of techniques across
different gear types and species, together with a summary table and a
draft decision-making tool (decision tree) which could be used to
support management decision-making processes. The workshop recommended
that FAO develop technical guidelines on means and methods for
prevention and reduction of marine mammal bycatch and mortality in
fishing and aquaculture operations in support of FAO's Code of Conduct
for Responsible Fisheries, which are currently under development.
References
CCAMLR. 2015a. Krill fishery report 2015.
D'agrosa, Caterina, C.E. Lennert-Cody, and O. Vidal. 2000 Vaquita
Bycatch in Mexico's Artisanal Gillnet Fisheries: Driving a Small
Population to Extinction. Conservation Biology Vol. 14 1110-1119.
Dawson, S.M., S. Northridge, D. Waples, and A.J. Read. (2013) To
ping or not to ping: The use of active acoustic devices in
mitigating interactions between small cetaceans and gillnet
fisheries. Endangered Species Research Vol. 19 201-221.
FAO. 2018. Report of the Expert Workshop on Means and Methods for
Reducing Marine Mammal Mortality in Fishing and Aquaculture
Operations Rome, 20-23 March 2018.
IUCN. 2008. Arctocephalus gazella: Hofmeyr, G.: The IUCN Red List of
Threatened Species 2014: e.T2058A45223888.
Koschinski, S. & Strempel, R. (2012): Strategies for the Prevention
of Bycatch of Seabirds and Marine Mammals in Baltic Sea Fisheries.
ASCOBANS AC19/Doc.4-17 (S). 19th ASCOBANS Advisory Committee
Meeting, Galway, Ireland, 20-22 March. 69 pp.; Herr, H., Siebert, U.
& Benke, H. (2009b): Stranding numbers and bycatch implications of
harbor porpoises along the German Baltic Sea coast. Document AC16/
Doc.62 (P). 16th ASCOBANS Advisory Committee Meeting, Brugge,
Belgium, 20-24 April 2009. ASCOBANS, Bonn. 3 pp.).
SCAR EGS. 2004. Scientific Committee on Antarctic Research Expert
Group on Seals (SCAR EGS): Scientific Committee for Antarctic
Research--Expert Group on Seals Report.
Skora, K.E., Kuklik, I. (2003) Bycatch as a potential threat to
harbor porpoises (Phocoena phocoena) in Polish Baltic waters. NAMMCO
Scientific Publications 5: 303-315.
Vanhatalo, J., Vetemaa, M., Herrero, A., Aho, T., Tiilikainen, R.
2014.) By-catch of grey seals (Halichoerus grypus) in Baltic
fisheries--a Bayesian analysis of interview survey. Plos One.
Vinther (1999, Bycatches of harbor porpoises (Phocoena phocoena L.)
in Danish set-net fisheries. J. Cetacean Res. Manage. 1: 123-135.)
Dated: March 10, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2020-05380 Filed 3-16-20; 8:45 am]
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