[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