[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 Nina.Young@noaa.gov 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