Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80193 

PART 396—INSPECTION, REPAIR, 

AND MAINTENANCE 

■ 96. The authority citation for part 396 

continues to read as follows: 

Authority: 49 U.S.C. 504, 31133, 31136, 

31151, 31502; sec. 32934, Pub. L. 112–141, 

126 Stat. 405, 830; sec. 5524, Pub. L. 114–94, 

129 Stat. 1312, 1560; and 49 CFR 1.87. 

§ 396.9 [Amended] 

■ 97. Amend § 396.9 by, in paragraph 

(a), removing the words ‘‘appendix B to 

this subchapter’’ and adding in their 

place ‘‘appendix B to part 390 of this 

chapter’’. 

PART 398—TRANSPORTATION OF 

MIGRANT WORKERS 

■ 98. The authority citation for part 398 

continues to read as follows: 

Authority: 49 U.S.C. 13301, 13902, 31132, 

31133, 31136, 31502, 31504; sec. 204, Pub. L. 

104–88, 109 Stat. 803, 941; sec. 212, Pub. L. 

106–159, 113 Stat. 1748, 1766; and 49 CFR 

1.87. 

§ 398.8 [Amended] 

■ 99. Amend § 398.8 by, in paragraph 

(a), removing the words ‘‘Appendix B of 

chapter III of this title’’ and adding in 

their place ‘‘appendix B to part 390 of 

this chapter’’. 

Issued under authority delegated in 49 CFR 

1.87. 

Robin Hutcheson, 

Administrator. 

[FR Doc. 2023–24160 Filed 11–16–23; 8:45 am] 

BILLING CODE 4910–EX–P 

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. 

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 mmpa.loff@noaa.gov 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. § 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. § 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 fisheryby-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 


khammond on DSKJM1Z7X2PROD with RULES
80194 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

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 

■ 1. The authority citation for part 216 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq., unless 

otherwise noted. 

■ 2. In § 216.3, the definition for 

‘‘Exemption period’’ is revised to read 

as follows: 

§ 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 § 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 


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