[Federal Register Volume 85, Number 213 (Tuesday, November 3, 2020)]
[Rules and Regulations]
[Pages 69515-69517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24210]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 201023-0279]
RIN 0648-BK06


Modification of Deadlines Under the 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: Interim final rule; request for comments.

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SUMMARY: NMFS issues this interim final rule to revise the regulations 
implementing the import provisions of the Marine Mammal Protection Act 
(MMPA). This interim final rule extends, by one year, the five-year 
exemption period to end December 31, 2022, and changes the deadline for 
comparability finding applications from March 1 of the year of 
expiration of a comparability finding to November 30 of the year prior 
to the expiration of a comparability finding, moving the comparability 
finding application deadline to November 30, 2021.

DATES: This interim final rule is effective November 3, 2020. Written 
comments must be received by 5 p.m. Eastern Time on December 3, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0127, by the following methods:
    (1) Electronic Submissions: Submit all electronic public comments 
via the Federal e-Rulemaking Portal at http://www.regulations.gov. Go 
to the URL http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-
0127, and click the ``Comment Now!'' icon, complete the required fields 
and enter or attach your comments.
    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 http://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).
    Anyone who is unable to comment through http://www.regulations.gov 
may contact the FOR FURTHER INFORMATION CONTACT below to discuss 
potential alternatives for submitting comments.

FOR FURTHER INFORMATION CONTACT: Nina Young, Office of International 
Affairs and Seafood Inspection, NMFS at [email protected] or 301-427-
8383.

SUPPLEMENTARY INFORMATION:

Background

    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 (hereafter referred to as the MMPA 
Import Provisions), which prohibit the import of fish or fish products 
from commercial fishing operations that result in the incidental 
mortality or serious injury of marine mammals in excess of United 
States standards. Specifically, 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. Fish and fish products from export and exempt 
fisheries identified by the Assistant Administrator for Fisheries in 
the List of Foreign (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.

Exemption Period

    Under the MMPA Import Provisions, NMFS established an initial five-
year exemption period similar to the Interim Exemption for domestic 
fisheries that occurred in 1988 prior to implementation of the 
framework for addressing marine mammal bycatch in U.S. commercial 
fisheries. Currently, the exemption period expires December 31, 2021. 
This interim final rule would extend the exemption period one year to 
end December 31, 2022. During the exemption period, the prohibitions of 
the MMPA Import Provisions do not apply to imports from the harvesting 
nation. NMFS established the five-year

[[Page 69516]]

exemption period to provide nations with adequate time to assess marine 
mammal stocks, estimate bycatch, and develop regulatory programs to 
mitigate that bycatch.
    NMFS is extending the exemption period by one year. This change is 
warranted because foreign nations have experienced delays or 
interruptions in the implementation of programs to comply with the MMPA 
Import Provisions because of the coronavirus pandemic. Necessary 
diversion of resources in response to the pandemic has resulted in 
significant disruptions to foreign government operations for nearly 
every nation exporting seafood products to the United States. These 
disruptions included inability to access government buildings, lack of 
telework capabilities, and inability to access data requested to meet 
the MMPA Import Provisions benchmarks. Additionally, legislative 
processes were suspended or postponed in some nations, preventing the 
adoption of laws aimed at implementing regulatory provisions necessary 
for nations to develop regulatory programs comparable in effectiveness 
to the U.S. regulatory program. There were also disruptions to 
scientific research cruises, fishery observer or bycatch monitoring 
programs, and experimental trials to develop marine mammal bycatch 
mitigation devices.
    The rate of response by nations also declined during 2020. In 2019, 
96 out of approximately 130 trading partners submitted progress reports 
in compliance with the MMPA Import Provisions. In 2020, only 85 nations 
submitted updates to their LOFF. Approximately 55 nations (or 
economies) did not update the information in their LOFF.\1\ More than 
17 nations requested that the deadline for the submission of updates to 
their LOFF be extended or expressed concern about being able to meet 
the deadline due to operational disruptions attributable to the 
pandemic. For the 55 nations that did not respond, we cannot determine 
if extenuating circumstances affected their ability to update their 
LOFF. Given these impacts, providing nations with additional time to 
implement the MMPA Import Provisions will result in fewer disruptions 
to international seafood trade and a more predictable impact to U.S. 
seafood wholesalers and retailers when the regulation enters into full 
effect.
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    \1\ See 85 FR 22290, October 8, 2020 for a list of nations.
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Modification to the Deadline for Comparability Finding Applications

    The MMPA Import Provisions establish March 1st of the year when the 
``exemption period or comparability finding is to expire'' as the 
deadline by which a harvesting nation must submit to the Assistant 
Administrator an application for each of its export and exempt 
fisheries. This application requires the nation to submit documentary 
evidence demonstrating that the harvesting nation has met the 
conditions specified in the MMPA Import Provisions to receive a 
comparability finding, including reasonable proof as to the effects on 
marine mammals of the commercial fishing technology in use in the 
fishery for fish or fish products exported from such nation to the 
United States.
    According to the MMPA Import Provisions, NMFS must conduct 
comparability findings for all 953 exempt and 1,852 export fisheries on 
the LOFF. For exempt fisheries, the nation need only demonstrate that 
they prohibit the intentional mortality or serious injury of marine 
mammals in the course of commercial fishing operations or have 
procedures to reliably certify that exports of fish and fish products 
to the United States are not the product of an intentional killing or 
serious injury of a marine mammal. For export fisheries, NMFS must 
undertake a detailed evaluation of the regulatory program governing 
that fishery and determine whether that program is comparable in 
effectiveness to the U.S. regulatory program. Currently, the MMPA 
Import Provisions provide NMFS only eight months from the submission of 
the comparability finding application to the publication of the Federal 
Register notice to identify which nations and fisheries have either 
received or been denied a Comparability Finding and, if denied, the 
import restrictions associated with those fisheries. Based on NMFS' 
recent experience reviewing, issuing, and revoking Comparability 
Findings for certain fisheries of Mexico, this amount of time is 
insufficient given the number of export fisheries that must be 
evaluated. By this interim final rule, NMFS would change the deadline 
for submission of comparability finding applications from March 1 of 
the year when the exemption period or comparability finding is to 
expire to November 30 of the preceding year. As a result, the original 
comparability finding application deadline of March 1, 2021, would move 
to November 30, 2021, with this interim final rule's extension of the 
exemption period to December 31, 2022.

Classification

    This rule is published under the authority of the Marine Mammal 
Protection Act, 16 U.S.C. 1371. The NMFS Assistant Administrator has 
determined that this interim final rule is consistent with the Marine 
Mammal Protection Act and other applicable laws. Under NOAA 
Administrative Order (NAO 216-6), the promulgation of regulations that 
are procedural and administrative in nature are categorically excluded 
from the requirement to prepare an Environmental Assessment.

Administrative Procedure Act

    NOAA finds good cause to issue this interim final rule to extend 
the exemption period and revise the deadline for applications without 
advance notice in a proposed rule or the prior opportunity for public 
comment, and to make the rule effective immediately without providing a 
30-day delay, because of the need to provide exporting nations with 
sufficient advance notice of the additional time to submit their 
comparability finding applications. Currently nations must submit their 
comparability finding applications in a few months by March 1, 2021. 
Advance notice and prior opportunity for comment, or delayed 
effectiveness, would not serve the purposes of the extension and would 
be contrary to the public interest, requiring exporting nations submit 
incomplete comparability finding applications without sufficient time. 
This interim final rule extends the comparability finding application 
deadline until November 30, 2021, and the exemption period until 
December 31, 2022. These extensions give exporting nations time to 
gather the needed information and data during the pandemic crisis. 
Furthermore, any delay in notifying exporting nations may adversely 
affect U.S. trade. However, NMFS is requesting public comments on this 
interim final rule and will consider whether any changes are warranted 
when issuing a final rule.

Executive Order 12866

    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.

Paperwork Reduction Act

    This interim final rule contains no new or revised collection-of-
information requirements subject to the Paperwork Reduction Act.

[[Page 69517]]

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Exports, Marine Mammals, 
Reporting and recordkeeping requirements.

    Dated: October 26, 2020.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.


0
2. In Sec.  216.3, revise the definition for ``Exemption period'' to 
read as follows:


Sec.  216.3  Definitions.

* * * * *
    Exemption period means the one-time, six-year period that commences 
January 1, 2017 and ends December 31, 2022, during which commercial 
fishing operations that are the source of exports of commercial fish 
and fish products to the United States will be exempt from the 
prohibitions of Sec.  216.24(h)(1).
* * * * *

0
3. In Sec.  216.24, paragraphs (h)(6)(i) and (h)(8)(v) are revised to 
read as follows:


Sec.  216.24  Taking and related acts in commercial fishing operations 
including tuna purse seine vessels in the eastern tropical Pacific 
Ocean.

* * * * *
    (h) * * *
    (6) * * *
    (i) Procedures to apply for a comparability finding. On November 30 
of the year prior to when the exemption period or comparability finding 
is to expire, a harvesting nation, shall submit to the Assistant 
Administrator an application for each of its export and exempt 
fisheries, along with documentary evidence demonstrating that the 
harvesting nation has met the conditions specified in paragraph 
(h)(6)(iii) of this section for each of such fisheries, including 
reasonable proof as to the effects on marine mammals of the commercial 
fishing technology in use in the fishery for fish or fish products 
exported from such nation to the United States. The Assistant 
Administrator may require the submission of additional supporting 
documentation or other verification of statements made in an 
application for a comparability finding.
* * * * *
    (8) * * *
    (v) Renewal of comparability finding. To seek renewal of a 
comparability finding, every 4 years or prior to the expiration of a 
comparability finding, the harvesting nation must submit to the 
Assistant Administrator the application and the documentary evidence 
required pursuant to paragraph (h)(6)(i) of this section, including, 
where applicable, reasonable proof as to the effects on marine mammals 
of the commercial fishing technology in use in the fishery for fish or 
fish products exported to the United States, by November 30 of the year 
prior to the expiration date of its current comparability finding.
* * * * *

[FR Doc. 2020-24210 Filed 11-2-20; 8:45 am]
BILLING CODE 3510-22-P