Rule2022-22965
Modification of Deadlines Under the Fish and Fish Product Import Provisions of the Marine Mammal Protection Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 21, 2022
Effective
October 21, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 203 (Friday, October 21, 2022)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22965]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
<a href="/cdn-cgi/l/email-protection#aac1cfc6c6c3cf84ccc5d9decfd887decbd3c6c5d8eac4c5cbcb84cdc5dc"><span class="__cf_email__" data-cfemail="7b101e1717121e551d14080f1e09560f1a021714093b15141a1a551c140d">[email protected]</span></a> 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
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
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 21, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.