Proposed Rule2022-02162
International Fisheries; Pacific Tuna Fisheries; Purse Seine Observer Exemptions in the Eastern Pacific Ocean
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
February 4, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS proposes regulations under the authority of the Marine Mammal Protection Act (MMPA) and the Tuna Conventions Act (TCA) of 1950, as amended, to allow NMFS to issue temporary exemptions from purse seine observer requirements in the eastern Pacific Ocean (EPO) in accordance with procedures adopted by Parties to the Agreement on the International Dolphin Conservation Program (AIDCP) and members of the Inter-American Tropical Tuna Commission (IATTC). This proposed rule is necessary for the continuity of fishing activities for large U.S. purse seine vessels and for the United States to satisfy its obligations as a member of the IATTC.
Full Text
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<title>Federal Register, Volume 87 Issue 24 (Friday, February 4, 2022)</title>
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[Federal Register Volume 87, Number 24 (Friday, February 4, 2022)]
[Proposed Rules]
[Pages 6474-6479]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02162]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 300
[Docket No. 220128-0036]
RIN 0648-BK88
International Fisheries; Pacific Tuna Fisheries; Purse Seine
Observer Exemptions in the Eastern Pacific Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations under the authority of the Marine
Mammal Protection Act (MMPA) and the Tuna Conventions Act (TCA) of
1950, as amended, to allow NMFS to issue temporary exemptions from
purse seine observer requirements in the eastern Pacific Ocean (EPO) in
accordance with procedures adopted by Parties to the Agreement on the
International Dolphin Conservation Program (AIDCP) and members of the
Inter-American Tropical Tuna Commission (IATTC). This proposed rule is
necessary for the continuity of fishing activities for large U.S. purse
seine vessels and for the United States to satisfy its obligations as a
member of the IATTC.
DATES: Comments on the proposed rule must be submitted in writing by
March 7, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2021-0111, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter ``NOAA-NMFS-2021-0111'' in the Search
box. Click on the ``Comment'' icon, complete the required fields, and
enter or attach your comments.
<bullet> Mail: Submit written comments to William Stahnke, NMFS
West Coast Region (WCR), Long Beach Office, 501 W Ocean Blvd., Suite
4200, Long Beach, CA 90802. Include the identifier ``NOAA-NMFS-2021-
0111'' in the comments.
Instructions: Comments must be submitted by one of the above
methods
[[Page 6475]]
to ensure they are received, documented, and considered by NMFS.
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 <a href="http://www.regulations.gov">www.regulations.gov</a> without
change. All personal identifying information (e.g., name, address,
etc.) submitted voluntarily by the sender will be publicly accessible.
Do not submit confidential business information, or otherwise sensitive
or protected information. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Copies of supporting documents that were prepared for this proposed
rule, including the Regulatory Impact Review, are available via the
Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>, docket NOAA-NMFS-
2021-0111, or contact William Stahnke, NMFS WCR, Long Beach Office, 501
W Ocean Blvd., Suite 4200, Long Beach, CA 90802, or <a href="/cdn-cgi/l/email-protection#46110514680e0b15062829272768212930"><span class="__cf_email__" data-cfemail="ecbbafbec2a4a1bfac82838d8dc28b839a">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: William Stahnke, NMFS WCR, at (562)
980-4088.
SUPPLEMENTARY INFORMATION:
Background on the AIDCP and IATTC
The AIDCP has been ratified or acceded by 14 countries, including
the United States, and is applied provisionally by another two. Among
the objectives of the AIDCP are to reduce dolphin mortalities and
ensure the long-term sustainability of the tuna stocks within the AIDCP
Agreement Area.\1\ The full text of the AIDCP is available online at:
<a href="https://www.iattc.org/PDFFiles/AIDCP/_English/AIDCP.pdf">https://www.iattc.org/PDFFiles/AIDCP/_English/AIDCP.pdf</a>.
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\1\ Defined as waters of the EPO within the area bounded by the
west coast of the Americas and by 50[deg] N latitude, 150[deg] W
longitude, and 50[deg] S latitude.
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The United States is a member of the IATTC, which was established
under the 1949 Convention for the Establishment of an Inter-American
Tropical Tuna Commission (1949 Convention). The 1949 Convention was
updated by the Convention for the Strengthening of the IATTC
Established by the 1949 Convention between the United States of America
and the Republic of Costa Rica (Antigua Convention). The full text of
the Antigua Convention is available online at: <a href="https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20vJun%202003.vpdf">https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20vJun%202003.vpdf</a>.
The IATTC consists of 21 member nations and five cooperating non-
member nations. The IATTC facilitates scientific research, as well as
the conservation and management, of tuna and tuna-like species in the
IATTC Convention Area.\2\ The IATTC maintains a scientific research and
fishery monitoring program and regularly assesses the status of tuna,
sharks, and billfish stocks in the IATTC Convention Area to determine
appropriate catch limits and other measures deemed necessary to promote
sustainable fisheries and prevent the overexploitation of these stocks.
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\2\ Defined as waters of the EPO within the area bounded by the
west coast of the Americas and by 50[deg] N latitude, 150[deg] W
longitude, and 50[deg] S latitude.
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International Obligations of the United States Under the Antigua
Convention and AIDCP
As a Party to the Antigua Convention and AIDCP and a Member of the
IATTC, the United States is legally bound to implement decisions of the
IATTC under the Tuna Conventions Act (16 U.S.C. 951 et seq.) and
decisions of the Parties to the AIDCP under the Marine Mammal
Protection Act (16 U.S.C. 1361 et seq.). The Tuna Conventions Act
directs the Secretary of Commerce, in consultation with the Secretary
of State and, with respect to enforcement measures, the U.S. Coast
Guard, to promulgate such regulations as may be necessary to carry out
the United States' obligations under the Antigua Convention, including
recommendations and decisions adopted by the IATTC. The authority of
the Secretary of Commerce to promulgate such regulations has been
delegated to NMFS. The MMPA directs the Secretary of Commerce to issue
regulations, and revise those regulations as may be appropriate, to
implement the International Dolphin Conservation Program. As with the
TCA, the authority of the Secretary of Commerce to promulgate such
regulations has been delegated to NMFS.
AIDCP and IATTC Observer Program and U.S. Observer Requirements
U.S. large purse seine vessels (i.e., those greater than 400 short
ton carrying capacity) fishing for tuna in the EPO are subject to 100
percent observer coverage obligations under Annex II, paragraph 2 of
the AIDCP and IATTC Resolution C-09-04, Resolution on the International
Dolphin Conservation Program. The United States implemented this
requirement for 100 percent observer coverage into domestic regulation
at 50 CFR 216.24(e)(1), which requires vessel permit holders to allow
an authorized observer to accompany the vessel on all fishing trips in
the Eastern Tropical Pacific (ETP) for the purpose of collecting
information pertaining to research and observing operations and
prohibits vessels that fail to carry an observer in accordance with
these requirements from engaging in fishing operations. The United
States does not have its own national observer program for the large
tuna purse seine fishery and relies solely on the AIDCP/IATTC program
to place observers on U.S. large purse seine vessels. The observers are
typically foreign nationals that board U.S. vessels at ports throughout
Central and South America, as well as American Samoa.
AIDCP and IATTC Agreement for Exemptions and NMFS Emergency Observer
Exemption Rule
On April 16, 2020, the IATTC issued a memorandum (Ref.: 0173-420)
\3\ indicating that the AIDCP Parties and the IATTC Members adopted
procedures to provide for the temporary exemption, on a case-by-case
basis, from purse seine observer requirements in the EPO for each
vessel and trip where it is not possible to place an observer due to
operational and logistical constraints arising from actions taken by
governments or organizations to safeguard health in response to the
COVID-19 Pandemic. Under these exemption procedures, owners and
operators of vessels must continue requesting the placement of
observers in accordance with pre-existing procedures. An AIDCP/IATTC
exemption is considered granted when the IATTC Director, or the head of
the field office and the national observer program office of AIDCP
Parties, certify the unavailability of an observer for the vessel.
These procedures were set to expire June 1, 2020, but the AIDCP/IATTC
issued several subsequent memoranda extending the procedures, most
recently until March 31, 2022 (0564-420; December 16, 2021), and they
are expected to be extended further. The current AIDCP/IATTC exemption
procedures are discussed in greater detail in the next section of this
preamble.
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\3\ Copies of IATTC Memo #0173-420 as well as the original NMFS
exemption procedures can be found in the docket for this rulemaking.
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In addition to the AIDCP/IATTC procedures, NMFS needed authority to
provide exemptions from domestic regulations requiring observer
coverage. On March 27, 2020, NMFS published a
[[Page 6476]]
temporary rule for an emergency action in response to the COVID-19
Pandemic (85 FR 17285) that provides the authority to waive observer
coverage requirements implemented under certain statutes, including the
MMPA and TCA (``NMFS Emergency Rule''). That NMFS Emergency Rule
permits NMFS to waive observer coverage requirements if:
(1) Placing an observer conflicts with travel restrictions or other
requirements addressing COVID-19 related concerns issued by local,
state, or national governments, or the private companies that deploy
observers pursuant to NMFS regulations; or
(2) No qualified observer(s) are available for placement due to
health, safety, or training issues related to COVID-19.
That temporary NMFS Emergency Rule was extended and is currently in
effect until March 26, 2022, or until the Secretary of Health and Human
Services determines that the COVID-19 Pandemic is no longer a public
health emergency, whichever is earlier (March 29, 2021; 86 FR 16307).
Pursuant to the NMFS Emergency Rule, and in accordance with exemption
procedures adopted by the AIDCP/IATTC, NMFS West Coast Region (WCR)
established a process, subject to revocation or extension as
circumstances warrant, for issuing temporary exemptions on an
individual basis to the U.S. regulatory requirements for observer
requirements for large U.S. tuna purse seine vessels in the EPO. This
process, which NMFS is proposing to maintain under the proposed rule,
is discussed in greater detail in the next section of this preamble.
Proposed Amendment to 50 CFR 216.24(e) To Allow for Exemptions From
Purse Seine Observer Requirements in the EPO
Though difficult to predict, NMFS expects travel restrictions will
likely continue in American Samoa and other port States where observers
are placed on purse seine vessels beyond March 26, 2022. As noted, the
AIDCP/IATTC exemptions procedures have been extended until March 31,
2022, and are expected to be extended further. However, the temporary
NMFS Emergency Rule that provides the United States domestic authority
to waive observer coverage for large EPO purse seine vessels will
expire on March 26, 2022. After this time, NMFS will no longer have the
authority to issue exemptions from observer requirements to large purse
seine vessels fishing in the EPO. Without the authority to issue
observer exemptions, the United States would likely be the only AIDCP
Party and IATTC Member unable to issue these exemptions to its purse
seine vessels. This proposed rule is therefore necessary to allow NMFS
to continue issuing temporary exemptions from the observer requirements
beyond the NMFS Emergency Rule expiration date in March 2022 in
accordance with continuing AIDCP/IATTC exemption procedures and,
potentially, in accordance with exemption procedures adopted in the
future. Because the AIDCP contains an unqualified requirement for 100
percent observer coverage, NMFS anticipates that the AIDCP/IATTC will
only adopt exemption procedures in the future under emergency
circumstances similar to the COVID-19 pandemic and that those
procedures would be similarly limited to single fishing trips for which
it would be impossible to place an observer on a vessel.
This rule is proposed under the authorities of the MMPA and TCA.
This rule would amend Sec. 216.24(e)(1) to add a provision that will
allow NMFS to issue temporary exemptions from purse seine observer
requirements, on a case-by-case basis, in accordance with procedures
adopted by the Parties to the AIDCP and Members of the IATTC. These
temporary exemptions would apply to U.S. large purse seine vessels that
are used to catch tropical tuna in the IATTC Convention Area and would
exempt a single vessel from the requirement to carry an observer during
a single fishing trip, provided the vessel complies with AIDCP/IATTC
exemption procedures and with other applicable regulations and
requirements. Although the proposed provision would not expire, it
would only be applicable for the duration that AIDCP and IATTC observer
exemption procedures are effective. In other words, the proposed
provision would only give NMFS the authority to grant an exemption: (1)
If the Parties to the AIDCP and Members of the IATTC have collectively
agreed to adopt procedures for exempting observer coverage requirements
under certain emergency circumstances; and (2) in accordance with the
specific procedures adopted by AIDCP/IATTC for granting those
exemptions.
NMFS will notify the affected fleet via email when the current
AIDCP/IATTC emergency exemption procedures are no longer in effect.
NMFS will also notify the affected fleet via email and the public by
publication of a notice in the Federal Register if new exemption
procedures are adopted by the Parties to the AIDCP and Members of the
IATTC. New exemptions would not be issued by NMFS when AIDCP/IATTC
exemption procedures are not in effect and exemptions issued by NMFS
while AIDCP/IATTC exemption procedures are in effect would only be
effective for as long as the AIDCP/IATTC procedures remain in effect.
Process for Obtaining an Observer Exemption From the IATTC
As previously noted, the AIDCP Parties and the IATTC Members
adopted procedures for the temporary exemption, on a case-by-case
basis, of the requirement to carry an observer for trips where it is
not possible to place an observer on a vessel. The process for a vessel
to be granted an exemption from the IATTC is outlined below:
<bullet> Vessel owners/operators planning a fishing trip in the EPO
are to contact the IATTC Director and Observer Coordinator to request
an observer.
<bullet> If the IATTC Director, or the head of the field office and
the national program office, certifies, in coordination with Flag State
Authorities, that it is not possible to place an observer on the
vessel, then an exemption from AIDCP observer requirements will be
considered granted for the fishing trip.
Process for Obtaining an Observer Exemption From NMFS
In addition, U.S. large purse seine vessels must also obtain from
NMFS WCR an individual exemption from regulatory observer coverage
requirements. As discussed previously, NMFS has been issuing those
exemptions under the authority of the NMFS Emergency Rule; however, if
finalized, this proposed rule would provide NMFS the authority to
continue issuing such exemptions while AIDCP/IATTC exemption procedures
are in effect. NMFS would continue using the existing process for a
U.S. vessel to obtain an exemption from domestic regulations, as
outlined below:
<bullet> Once NMFS West Coast Region receives certification from
the IATTC or the vessel owner/operator that an exemption has been
granted, NMFS will confirm that the vessel owner/operator meets the
criteria set forth in the AIDCP/IATTC exemption procedures.
<bullet> If the criteria are met, NMFS will issue the permit holder
a letter documenting that the requirement to carry an observer has been
exempted for that vessel trip.
<bullet> A NMFS observer exemption may be requested from the NMFS
West Coast Region, Sustainable Fisheries Division, Highly Migratory
Species (HMS) Branch, via <a href="/cdn-cgi/l/email-protection#b5e2f6e79bfdf8e6f5dbdad4d49bd2dac3"><span class="__cf_email__" data-cfemail="acfbeffe82e4e1ffecc2c3cdcd82cbc3da">[email protected]</span></a>.
NMFS anticipates working in coordination with the IATTC and being
able to provide individual vessel
[[Page 6477]]
exemptions without significant delay to U.S. large purse seine vessels.
Any changes to these procedures will be notified by email directly and/
or via relevant email distribution lists to vessel owners, operators,
and permit holders.
Dolphin-Safe Requirements
It should be noted that although these proposed regulations will
allow NMFS to waive the regulatory requirements in Sec. 216.24(e)(1)
to carry an observer, tuna caught in the ETP on a trip without an
AIDCP-approved observer will be ineligible for a United States dolphin-
safe label or an AIDCP Dolphin-Safe Tuna Certificate. With respect to
the U.S. dolphin-safe label, any tuna harvested by large purse seine
vessels fishing in the ETP is subject to U.S. dolphin-safe labeling
requirements at 50 CFR part 216, subpart H, and also subject to the
authority of the International Dolphin Conservation Program Act (ICDPA;
16 U.S.C. 1417). Without an AIDCP-approved observer on a fishing trip
(even with an observer exemption), the Tuna Tracking Forms (TTFs)
cannot be completed by an observer for that trip and, thus, the tuna
would be ineligible for a dolphin-safe label. TTFs are necessary for
the issuance of the U.S.-required IDCP-member nation certification to
accompany the NOAA Form 370 for tuna harvested by large purse seine
vessels in the ETP. However, such tuna harvested in the ETP without an
observer may still be legally sold in the United States as non-dolphin-
safe, provided it was harvested in accordance with other relevant
requirements.
With respect to the AIDCP Dolphin-Safe Tuna Certificate, it should
also be noted that the AIDCP Parties did not waive the requirement for
the observer's role in verifying the dolphin-safe status of the catches
under the AIDCP Dolphin-Safe Tuna Certification Program. Therefore, any
trip by a vessel of an AIDCP Party that is made without an observer
would not have valid TTFs and, thus, no valid AIDCP Dolphin-Safe Tuna
Certificate can be issued by a Party for any catches made on that
particular fishing trip.
Proposed Amendments to 50 CFR 300.24 and 300.25 To Incorporate Existing
Purse Seine Observer Requirements Into the Regulations That Govern
Eastern Pacific Tuna Fisheries
As noted earlier, the regulatory requirement for large purse seine
vessels to carry observers during fishing operations in the EPO are
found in 50 CFR part 216, which contains regulations governing the
taking and importing of marine mammals. This proposed rule would
incorporate that requirement into 50 CFR part 300, subpart C, which
contains regulations governing eastern Pacific tuna fisheries.
Specifically, NMFS proposes to add to Sec. 300.25, Fisheries
Management, a provision that re-states, and cross-references to, the
existing observer coverage requirement in Sec. 216.24(e)(1). This
provision would clarify that the requirements in Sec. 216.24(e)(1)
apply within the IATTC Convention Area. NMFS also proposes to add to
Sec. 300.24(n) a prohibition against operating a large purse seine
vessel in the IATTC Convention Area in contravention of applicable
observer requirements.
Classification
The NMFS Assistant Administrator has determined that this proposed
rule is consistent with the Marine Mammal Protection Act, Tuna
Conventions Act of 1950, and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
There are no new collection-of-information requirements associated
with this action that are subject to the Paperwork Reduction Act (PRA),
and the existing collection-of-information requirements still apply
under Office of Management and Budget (OMB) Control Numbers 0648-0148
(West Coast Region Pacific Tuna Fisheries Logbook, Fish Aggregating
Device Form, and Observer Safety Reporting) and 0648-0335 (Fisheries
Certificate of Origin). Notwithstanding any other provision of the law,
no person is required to respond to, and no person shall be subject to
penalty for failure to comply with, a collection of information subject
to the requirements of the PRA, unless that collection of information
displays a currently valid OMB control number. All currently approved
NOAA collections of information may be viewed at: <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>.
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
Chief Counsel for Regulation of the Department of Commerce certified to
the Chief Counsel for Advocacy of the Small Business Administration
that this proposed rule, if adopted, would not have a significant
economic impact on a substantial number of small entities. The
rationale for the certification is provided in the following
paragraphs.
As previously mentioned, NMFS expects that travel restrictions due
to the COVID-19 pandemic will likely continue in American Samoa and
foreign ports where observers are placed on purse seine vessels into
the foreseeable future. NMFS also expects that the AIDCP/IATTC will
extend their observer exemptions procedures beyond the current March
31, 2022, expiration date. With the NMFS Emergency Rule that provides
the United States domestic authority to waive observer coverage for
large EPO purse seine vessels expiring on March 26, 2022, NMFS will no
longer have the authority to issue exemptions from observer
requirements to large purse seine vessels fishing in the or EPO after
that date. This proposed rule will allow NMFS to continue issuing
temporary exemptions from the observer requirements. The absence of
this proposed rule would result in NMFS being unable to issue
exemptions in cases where no observer is available, preventing U.S.
large purse seine vessels from legally fishing, thereby decreasing
fishing opportunities and putting the U.S. fleet at a competitive
disadvantage.
The United States Small Business Administration (SBA) defines a
``small business'' (or ``small entities'') as one with annual revenue
that meets or is below an established size standard. NMFS has
established that the small business size standard for all businesses
primarily engaged in the commercial fishing industry (NAICS 11411) for
Regulatory Flexibility Act (RFA) compliance purposes (80 FR 81194,
December 29, 2015), is $11 million in annual gross receipts. The
standard is to be used in place of the U.S. SBA standards of $20.5
million, $5.5 million, and $7.5 million for the finfish (NAICS 114111),
shellfish (NAICS 114112), and other marine fishing (NAICS 114119)
sectors, respectively, of the U.S. commercial fishing industry.
The entities directly affected by the actions of this proposed
action are U.S. large (i.e., well volume greater than 425 cubic meters)
tuna purse seine vessels that are required to carry fisheries
observers, pursuant to the AIDCP and U.S. regulations at Sec.
216.24(e). Per the $11 million size standard, these purse seine vessels
are both large and small businesses.
Estimates of ex-vessel revenues for large U.S. purse seine vessels
fishing in the IATTC Convention Area before 2015 have been confidential
and may not be publicly disclosed because of the small number of
vessels in the fishery. However, beginning in 2015, more than three
large purse seine vessels fished either exclusively in the EPO, or
fished in both the EPO and WCPO. Thus, information from 2015 to 2020 is
not confidential.
Ex-vessel price information specific to individual large U.S. purse
seine vessels are not available to NMFS because these
[[Page 6478]]
vessels did not land on the U.S. West Coast and the cannery receipts
are not available through the IATTC. However, Regional Purse Seine
Logbook (RPL) data from NMFS Pacific Islands Fisheries Science Center
(PIFSC), and observer data from the IATTC may be used as a proxy for
fish landings by large U.S. purse seiners, in lieu of cannery receipts.
Since neither gross receipts nor ex-vessel price information specific
to individual fishing vessels are available to NMFS, NMFS applied
indicative regional cannery prices--as approximations of ex-vessel
prices--to annual catches of individual vessels obtained from RPLs and
IATTC observer data, to estimate the vessels' annual receipts.
Indicative regional cannery prices are available through 2020
(developed by the Pacific Islands Forum Fisheries Agency; available at
(<a href="https://www.ffa.int/node/425">https://www.ffa.int/node/425</a>). NMFS estimated vessels' annual receipts
during 2019-2020. Using this approach, NMFS estimates that among the
affected vessels, the range in annual average receipts in 2019-2020 was
$400,000 to $15 million with an average of approximately $8 million.
U.S. EPO purse seine vessels that carry observers in the IATTC
Convention Area are both large and small entities. While vessels often
fluctuate from year to year as being classified as a large or small
entity, the majority of large U.S. purse seine vessels typically fall
under the small entity category.
As of December 2021, there are 17 U.S. purse seine vessels on the
IATTC active purse seine register that are expected to be impacted by
this action. These vessels are large, size class 6 purse seine vessels,
registered to fish in the IATTC Convention Area, and primarily based in
the western and central Pacific Ocean (WCPO). They are subject to the
100 percent observer coverage requirement pursuant to the AIDCP and
U.S. domestic regulations at Sec. 216.24(e)(1).
As described in the previous section, even though NMFS would exempt
the regulatory requirements in Sec. 216.24(e) to carry an observer, if
there are any tuna caught on a trip in the ETP, it would be ineligible
for a U.S. dolphin-safe label or an AIDCP Dolphin-Safe Tuna Certificate
if no observer was on board. However, such tuna harvested in the ETP
without an observer may still be legally sold in the United States,
provided it was harvested in accordance with other relevant
requirements.
Despite these restrictions for use of the U.S. dolphin-safe label
or an AIDCP Dolphin-Safe Tuna Certificate, some U.S. purse seine
vessels have made determinations that there is still a market for tuna
caught without an observer. Out of the 87 trips by U.S. vessels that
occurred since the observer exemptions were approved in March 2020, the
United States has issued 17 observer exemptions under the authority of
the NMFS Emergency Rule. Of those exemptions, approximately one third
were not utilized, i.e., no fishing occurred in the IATTC Convention
Area during the trip for which the exemption was issued. For trips
where no observer was deployed, vessels are required to submit directly
to the IATTC an IATTC bridge log and a fish aggregating device (FAD)
form that contains fields that would have otherwise been collected by
the observer. The compliance rate with these requirements is 100
percent as of December 2021.
Lastly, beyond the aforementioned IATTC bridge log, FAD form, and
NOAA Form 370 that are already collected for large purse seine trips,
there are no new recordkeeping or reporting requirements associated
with this action. There are also no relevant Federal rules that may
duplicate, overlap, or conflict with this action.
This proposed action is not expected to substantially change the
typical fishing practices of affected vessels or have a significant
impact on the profitability of the affected U.S. vessels, as a
relatively small number of U.S. vessels have been issued observer
exemptions for trips under the NMFS Emergency Rule since March 2020.
Though observer exemptions make catch of tuna in the EPO ineligible for
U.S. dolphin safe label and AIDCP dolphin safe certificate, U.S.
vessels and other IATTC members have found markets for catch without
these labels/certificates and continue to request exemptions. The
proposed action would allow U.S. large purse seine vessels to continue
fishing activities in cases where it is not possible to place an
observer. As such, this action is not expected to have a significant
economic impact on a substantial number of small entities and will not
have a disproportionate economic impact on small business entities
relative to the large entities. Therefore, an Initial Regulatory
Flexibility Analysis is not required and none has been prepared.
List of Subjects in 50 CFR Parts 216 and 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: January 28, 2022.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, the National Marine
Fisheries Service proposes to amend 50 CFR parts 216 and 300 as
follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
Subpart C--General Exceptions
0
1. The authority citation for 50 CFR part 216, subpart C, continues to
read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Amend Sec. 216.24(e)(1) by adding paragraphs (i) and (ii) 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.
* * * * *
(e) * * *
(1) * * *
(i) Exemption from observer requirement. The Administrator, West
Coast Region (or designee), may issue a temporary written exemption
from the observer requirement in paragraph (e)(1) of this section if
the Parties to the AIDCP and/or Members of the IATTC have adopted
emergency observer exemption procedures to address relevant global or
regional health, safety, and security concerns, as well as other
international emergencies and crises. Such exemptions will be issued on
a case-by-case basis for a single fishing trip, in accordance with the
AIDCP/IATTC exemption procedures in effect at the time of the request.
Exemptions from the requirement in paragraph (e)(1) of this section
will only be issued when AIDCP/IATTC exemption procedures are in effect
and are only valid for as long as the AIDCP/IATTC exemption procedures
remain in effect. NMFS will notify the affected fleet via email when
existing AIDCP/IATTC exemption procedures expire. NMFS will also notify
the affected fleet via email and the public by publication of a notice
in the Federal Register if new exemption procedures are adopted by the
Parties to the AIDCP and/or the Members of the IATTC. Requests for
exemption must be made to the Administrator, West Coast Region, via
email at <a href="/cdn-cgi/l/email-protection#d3849081fd9b9e8093bdbcb2b2fdb4bca5"><span class="__cf_email__" data-cfemail="dc8b9f8ef294918f9cb2b3bdbdf2bbb3aa">[email protected]</span></a>, or in a manner acceptable to the
Administrator, West Coast Region.
(ii) [Reserved]
* * * * *
[[Page 6479]]
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Eastern Pacific Tuna Fisheries
0
3. The authority citation for 50 CFR part 300, subpart C, continues to
read as follows:
Authority: 16 U.S.C. 951 et seq.
0
4. In Sec. 300.24, revise paragraph (n) to read as follows:
Sec. 300.24 Prohibitions.
* * * * *
(n) Use a fishing vessel of class size 4-6 to fish with purse seine
gear in the Convention Area in contravention of the observer
requirements in Sec. 300.25(d) or the purse seine closure period
requirements in Sec. 300.25(e)(1), (2), or (5).
* * * * *
0
5. In Sec. 300.25, add paragraph (d) to read as follows:
Sec. 300.25 Fisheries management.
* * * * *
(d) Observer requirements.
(1) Purse seine vessels.
(i) The holder of an eastern tropical Pacific Ocean vessel permit,
as required by Sec. 216.24(b) of this title, must allow an observer
duly authorized by the Administrator, West Coast Region, to accompany
the vessel on all fishing trips in the IATTC Convention Area for the
purpose of conducting research and observing operations, including
collecting information that may be used in civil or criminal penalty
proceedings, forfeiture actions, or permit sanctions, pursuant to the
requirements in Sec. 216.24(e) of this title. A vessel that fails to
carry an observer in accordance with these requirements may not engage
in fishing operations unless an exemption has been granted from these
requirements as provided for in Sec. 216.24(e)(1)(i) of this title.
(ii) [Reserved].
(2) [Reserved].
* * * * *
[FR Doc. 2022-02162 Filed 2-3-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on February 4, 2022.
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