[Federal Register Volume 87, Number 203 (Friday, October 21, 2022)]
[Rules and Regulations]
[Pages 63955-63957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22965]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 221017-0216]
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: Final rule.

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SUMMARY: NMFS issues this final rule to revise the regulations 
implementing the import provisions of the Marine Mammal Protection Act 
(MMPA). This final rule extends, by one year, the exemption period to 
end December 31, 2023.

DATES: This final rule is effective October 21, 2022.

FOR FURTHER INFORMATION CONTACT: Kellie Foster-Taylor, Office of 
International Affairs, Trade, and Commerce NMFS by email at 
[email protected] or by phone at 301-427-7721.

SUPPLEMENTARY INFORMATION:

[[Page 63956]]

Background

    On August 15, 2016, NMFS published a final rule (81 FR 54389) 
implementing the MMPA Import Provisions (16 U.S.C. 1371 (a)(2)). These 
provisions 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 (hereafter 
referred to as bycatch) 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 
Fisheries (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 applicable to the harvesting 
nation.

Exemption Period

    Under the MMPA Import Provisions, NMFS established an initial five-
year exemption period for foreign nations to develop, as appropriate, 
fishery regulatory programs governing the bycatch of marine mammals 
that are comparable in effectiveness to U.S. regulations. During the 
exemption period, the prohibitions of the MMPA Import Provisions do not 
apply to imports from the harvesting nation. NMFS established the 
exemption period to provide nations with adequate time to assess marine 
mammal stocks, estimate bycatch, and develop regulatory programs to 
mitigate that bycatch.
    NMFS issued an interim final rule on November 3, 2020 (85 FR 
69515), to extend the exemption period and to allow more time for 
nations to implement regulatory programs and apply for comparability 
findings for their fisheries. Additional information on the basis for 
the extension was provided in the interim final rule and is not 
repeated here. The interim final rule established a 30-day comment 
period and NMFS considered those comments in making determinations 
about this subsequent final rule.

Responses to Comments

    NMFS received submissions from three commenters on the interim 
final rule. Commenters included one non-governmental organization, one 
industry group, and one private citizen. One commenter raised an issue 
that was not germane to this action, because it addressed prior 
decision-making on the timeline of the previously-issued final rule 
implementing the MMPA Import Provisions (81 FR 54389; August 15, 2016). 
The other comments either supported or opposed the deadline extensions 
under the interim final rule. Comments received on the interim final 
rule are available for public review at https://www.regulations.gov/ 
under the docket identifier ``NOAA-NMFS-2020-0127''. In the following 
sections, NMFS summarizes and responds to issues raised by commenters 
which are relevant to the 2020 decision to extend the exemption period.

Modification of Deadlines

    Comment 1: One commenter supported the modification of deadlines 
under the MMPA Import Provisions. These modifications include: (1) 
extending the five-year exemption period by one year through December 
31, 2022; and (2) changing the initial comparability finding 
application deadline from March 1 to November 30, 2021. Another 
commenter opposed both extensions, and urged the agency to maintain the 
original comparability finding application deadline of March 1, 2021, 
and the original exemption period end date of December 31, 2021, as 
established in the final rule implementing the MMPA Import Provisions 
(81 FR 54389; August 15, 2016).
    Response: NMFS finds that extending the exemption period and the 
comparability finding application deadline is warranted and necessary 
due to delays in administrative actions attributable to diversion of 
governmental resources in response to the unprecedented COVID-19 
pandemic. The pandemic has caused significant strains on foreign 
nations' operations and disruptions in research, legislative and 
regulatory processes. Providing nations with additional time to 
implement regulatory programs will allow more nations to meet the 
requirements of the MMPA Import Provisions and thereby enhance marine 
mammal conservation.

Effects of the COVID-19 Pandemic on Seafood Trade and Marine Mammals

    Comment 1: One commenter noted that the COVID-19 pandemic has 
disrupted the global seafood supply chain. They expressed concerns 
that, without the modification of the deadlines, imposition of trade 
restrictions could cause further disruptions in the seafood supply 
chain. They noted such an impact could also affect U.S. seafood 
exporters.
    Response: NMFS concurs that the pandemic affected the global 
seafood supply chain and continues to affect supply chains with labor 
shortages and transit delays. As such, NMFS believes extending the 
deadlines can reduce further disruptions to trade and additional 
burdens on the supply chain.
    Comment 2: One commenter expressed a concern that the original 
five-year exemption period in the 2016 final rule implementing the MMPA 
Import Provisions was a poor decision. The commenter also disagreed 
with the extension of the exemption period and the revised deadline for 
comparability finding applications as specified in the interim final 
rule. In allowing for the original exemption periods, they asserted 
NMFS' action led to the loss of millions of marine mammals, and that 
the decision to extend the exemption period and the deadline for 
comparability finding applications will lead to the killing of, or 
cause serious injury to, over half a million marine mammals.
    Response: NMFS has no supporting information to conclude that 
extending the exemption period and the deadline for comparability 
finding applications will result in mortality or serious injury of over 
half a million marine mammals. On the contrary, NMFS believes that 
allowing more time for nations to develop regulatory programs governing 
the bycatch of marine mammals that are comparable in effectiveness to 
U.S. regulations is likely to achieve more robust conservation efforts 
for marine mammals. If nations are subject to the original deadlines, 
and cannot achieve comparable regulatory programs in time, trade 
restrictions could reduce the incentive for additional actions to 
conserve marine mammals. Further, it is not likely that loss of access 
to the U.S. market would, by itself, result in a shutdown of foreign 
fisheries that interact with marine mammals.
    Comment 3: One commenter wrote that a procedure included in the 
final rule implementing the MMPA Import Provisions (81 FR 54389, 
54393)--that NMFS will consult with nations unlikely to receive a 
comparability finding--is the sufficient mechanism to remedy any 
trouble to meet deadlines due to the pandemic instead of an extension.

[[Page 63957]]

    Response: While NMFS will consult with countries unlikely to 
receive a comparability finding, having consultations without an 
extension continues to exert burdens on many nations due to delays 
cascading from the pandemic and subsequent labor shortages (including 
within foreign fishery ministries) and supply chain issues. As a 
result, nations need more time to establish comparable regulatory 
programs. The extension will increase the likelihood that nations will 
be able to implement comparable regulatory programs after consultations 
with NMFS.

Administrative Procedure Act (APA)

    Comment 1: One commenter wrote that NMFS' decision to issue the 
interim final rule was arbitrary and capricious under the APA. They 
asserted that NMFS violated the APA by waiving the usual 30-day 
opportunity for public comment, and that NMFS' application of the good 
cause exception under the APA is inappropriate.
    Response: NMFS found good cause to issue the interim final rule to 
extend the exemption period and revise the deadline for applications 
without advance notice or the prior opportunity for public comment, as 
well as good cause to make the rule effective immediately without 
providing a 30-day delay. The basis for these findings was the need to 
expeditiously notify exporting nations of the extended time for 
submitting their comparability finding applications. Advance notice and 
prior opportunity for comment, or delayed effectiveness, would not have 
served the purposes of the extension and would have been contrary to 
the public interest in allowing exporting nations sufficient planning 
time to submit complete comparability finding applications so as to 
implement fully effective programs to mitigate marine mammal bycatch.

Further Extension of the Exemption Period

    NMFS continued its outreach and technical consultations with 
seafood exporting nations during the extended exemption period to 
assist them in submitting applications for comparability findings by 
the extended deadline of November 30, 2021. Many nations submitted 
applications by the deadline and a few others were able to complete 
applications after follow-up consultations with NMFS. Ultimately, NMFS 
received applications for comparability findings from 132 nations and 
for 2,504 foreign fisheries.
    NMFS staff reviewing applications have encountered a significant 
need to further consult with nations while evaluating the 2,504 foreign 
fisheries regarding the marine mammal bycatch mitigation programs 
described in their submissions. To complete review and evaluate 
comparability, staff have raised questions regarding species of marine 
mammals interacting with fishing gear, abundance estimates for those 
species, fishery monitoring programs to measure bycatch, and measures 
of effectiveness for the applied bycatch mitigation techniques. In 
addressing these questions, NMFS staff have experienced time delays in 
communicating with foreign counterparts and for translation of 
submitted responses.
    Therefore, NMFS is extending the exemption period by one additional 
year. This change is warranted because of the need for clarity on all 
foreign fishery regulatory programs and for more time so that all 
applications from the 132 nations and the 2,504 foreign fisheries can 
be reviewed fairly and consistently.

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 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 issues this final rule to extend the exemption period without 
a 30-day delay in effective date. A delay in effective date is not 
required under section 553(d)(1) of the Administrative Procedure Act 
because this final rule grants an exemption by extending the exemption 
period through December 31, 2023. This extension will give NMFS more 
time to ensure consistency in its evaluations of foreign nation 
regulatory programs and give exporting nations more time to adjust 
supply chains in response to any trade restrictions that might be 
applied. Furthermore, NOAA finds good cause to issue this final rule 
without a delay in effective date under section 553(d)(3) of the 
Administrative Procedure Act because such delay would not serve the 
purposes of the extension and would be contrary to the public interest 
in avoiding confusion about near term deadlines faced by exporting 
nations.

Executive Order 12866

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

Paperwork Reduction Act

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

List of Subjects in 50 CFR Part 216

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

    Dated: October 18, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, the interim rule amending 
50 CFR part 216, which was published at 85 FR 69515 on November 3, 
2020, is adopted as final with the following change:

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, the definition for ``Exemption period'' is revised 
to read as follows:


Sec.  216.3  Definitions.

* * * * *
    Exemption period means the period 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). The exemption period extends through December 31, 
2023.
* * * * *
[FR Doc. 2022-22965 Filed 10-20-22; 8:45 am]
BILLING CODE 3510-22-P