[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80193-80194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25399]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 231109-0265]
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 two years, the exemption period to 
end December 31, 2025.

DATES: This final rule is effective November 17, 2023.

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

SUPPLEMENTARY INFORMATION:

Background

The 2016 Final Rule

    On August 15, 2016, NMFS published a final rule (81 FR 54390) 
implementing the MMPA Import Provisions (Section 101(a)(2)). Section 
101(a)(2) of the MMPA prohibits ``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.'' 16 
U.S.C. 1371(a)(2). In the 2016 final rule, NMFS explained that ``a fish 
or fish product caught with commercial fishing technology which results 
in the incidental mortality or incidental serious injury of marine 
mammals in excess of U.S. standards is any fish or fish product 
harvested in an exempt or export fishery for which a valid 
comparability finding is not in effect.'' 50 CFR 216.24(h)(1)(i). A 
``comparability finding'' is ``a finding by the Assistant Administrator 
[for Fisheries] that the harvesting nation for an export or exempt 
fishery has met the applicable conditions specified in [50 CFR 
216.24(h)(6)(iii)] subject to the additional considerations for 
comparability determinations set out in [50 CFR 216.24(h)(7)].'' Id. 
Sec.  216.3. The 2016 final rule set forth those conditions in detail, 
which measure the effectiveness of the harvesting nation's regulatory 
program as compared to the U.S. regulatory program, as well as the 
procedure for issuing a comparability finding. The rule established 
that fish and fish products from fisheries identified in the List of 
Foreign Fisheries (LOFF) can be imported into the United States only if 
the harvesting nation has applied for and received such a comparability 
finding from NMFS.
    The 2016 final rule provided, however, that this import prohibition 
``shall not apply during the exemption period'' (50 CFR 
216.24(h)(2)(ii)), which the rule initially defined as a five-year 
period. NMFS explained that this exemption period was necessary to 
provide harvesting nations with adequate time to assess marine mammal 
stocks, estimate bycatch, and develop regulatory programs that mitigate 
that bycatch. The 2016 final rule stated that NMFS ``shall determine 
whether to issue'' comparability findings ``[n]o later than November 
30th of the year when the exemption period . . . is to expire.'' Id. 
Sec.  216.24(h)(6)(ii); see also 50 CFR 216.24(h)(8)(i) (``No later 
than November 30th of the year when the exemption period . . . is to 
expire, the Assistant Administrator shall publish in the Federal 
Register, by harvesting nation, a notice of the harvesting nations and 
fisheries for which it has issued or denied a comparability finding and 
the specific fish and fish products that as a result are subject to 
import prohibitions under paragraphs (h)(1) and (9) of this 
section.'').

Subsequent Extensions of the Exemption Period

    On November 3, 2020, NMFS issued an interim final rule (IFR) (85 FR 
69515), which extended the exemption period for one year and requested 
public comment. The 2020 interim final rule sought to provide 
additional time for harvesting nations to apply for comparability 
findings and to comply with the requirements for such findings set 
forth in the 2016 final rule in light of the disruptions caused by the 
coronavirus pandemic. On October 21, 2022, NMFS issued a final rule (87 
FR 63955), which responded to the comments received in response to the 
2020 IFR and revised that rule to extend the exemption period by an 
additional year, until December 31, 2023, to give NMFS additional time 
to complete its assessment of the applications for comparability 
findings.
    Under the current exemption period, therefore, NMFS must 
``determine whether to issue'' comparability findings by ``[n]o later 
than November 30th of'' 2023 (50 CFR 216.24(h)(6)(ii)).

Current Rule: Further Extension of the Exemption Period

    NMFS received 134 applications for comparability findings from 
nations involving almost 2,500 foreign fisheries. Nations apply for 
comparability findings for each of their fisheries on the LOFF; 
however, comparability determinations are made on a fishery-by-fishery 
basis, not by country. Thus, individual determinations need to be made 
for each fishery. To review applications for comparability findings, 
NMFS evaluates each nation's regulatory programs to address incidental 
and intentional mortality and serious injury of marine mammals in each 
fishery that exports fish and fish products to the United States. The 
evaluation includes assessing information provided in the applicants' 
submissions and readily available

[[Page 80194]]

scientific information. The process also includes, when necessary, 
consulting with applicant nations to clarify ambiguous statutory or 
regulatory text, address data gaps, or request elaboration on their 
marine mammal bycatch mitigation regulatory program. Ultimately, the 
Nation's regulatory program, as described in its application, must be 
evaluated for consistency with the MMPA import provisions and the MMPA 
domestic statutory and regulatory provisions governing marine mammal 
bycatch in U.S. fisheries.
    After careful deliberation, the Department of Commerce and NMFS 
have determined that additional time is necessary to complete the 
evaluation process, given the large number of foreign fisheries, the 
evolving nature of fisheries data, and the practical challenges of 
assessing the comparability of the regulatory programs in foreign 
countries. This extension would allow time to ensure that comparability 
determinations are fairly and consistently applied across harvesting 
nations and their fisheries. In the event NMFS identifies a need to 
further extend the exemption period or otherwise amend the 2016 final 
rule to ensure the effectiveness of the regulatory measures of foreign 
fisheries, NMFS intends to provide prior notice, solicit public 
comment, and finalize any such amendments within the extended exemption 
period provided under this rule.
    Therefore, NMFS is extending the exemption period by two years to 
December 31, 2025.

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

    This final rule is exempt from the provisions of the Administrative 
Procedure Act (APA) that require advance notice and prior opportunity 
for public comment, as well as a 30-day delay in effectiveness, because 
it involves a ``foreign affairs function of the United States'' under 5 
U.S.C. 553(a)(1). Courts have held that this foreign affairs exception 
covers certain rules involving restrictions on importation of foreign 
goods. See Am. Ass'n of Exporters & Importers-Textile & Apparel Grp. v. 
United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (applying the 
foreign affairs exemption because ``[p]rior disclosure of the 
Government's intention . . . to impose stricter import restrictions 
would `provoke definitely undesirable international consequences' ''); 
Mast Industries, Inc. v. Regan, 596 F. Supp. 1567, 1583 (Ct. Int'l 
Trade 1984) (``to the extent that the interim regulations define or 
alter quantitative limitations in bilateral trade agreements or 
unilaterally imposed restrictions on textile imports, they `clearly and 
directly' involve a `foreign affairs function' and are exempt from the 
prior notice and comment provisions of the APA'').
    This rule falls under that exception. Under the 2016 final rule, as 
subsequently amended, the current exemption period is set to expire on 
December 31, 2023. And as explained above, NMFS is not able to finalize 
comparability findings by November 30, 2023 (as currently required 
under the 2016 final rule). Thus, if an extension of that exemption 
period is not in effect by December 31, 2023, importation of fish and 
fish products from all fisheries in the 134 countries that have applied 
for a comparability finding would be banned, thereby impairing U.S. 
trade interests and prompting ``definitely undesirable international 
consequences.'' H.R. Rep. No. 79-1980, at 257 (1946) (explaining that 
the foreign affairs exception applies to `` `affairs' which so affect 
the relations of the United States with other governments that, for 
example, public rulemaking would provoke definitely undesirable 
international consequences'').
    Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), NMFS also finds good 
cause to issue this final rule without advance notice or prior 
opportunity for public comment, as well as a 30-day delay in 
effectiveness, because such notice and public procedure would be 
contrary to the public interest. Were NMFS to seek public comment, the 
inherent delay attendant to such procedure would make it practically 
infeasible to issue a final rule before the expiration of the current 
exemption period on December 31, 2023. And because NMFS is not able to 
issue comparability findings by November 30, 2023, without an 
extension, it would be unlawful as of January 1, 2024, for all 134 
applicant nations to export fish or fish products from any of the 
approximately 2,500 fisheries to the United States. Such consequences 
would undermine U.S. trade and adversely affect U.S. consumers.
    Finally, this final rule is not subject to the 30-day delay in 
effectiveness for the additional reason pursuant to 5 U.S.C. 553(d)(1) 
that it ``relieves a restriction.'' This final rule does so by 
extending the current exemption period and thereby avoiding the 
impending ban on importation of fish and fish products from fisheries 
on the LOFF.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866, as amended by Executive Order 14094.

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: November 13, 2023.
Janet Coit,
Assistant Administrator for Fisheries, 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., unless otherwise noted.


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, 
2025.
* * * * *
[FR Doc. 2023-25399 Filed 11-16-23; 8:45 am]
BILLING CODE 3510-22-P