Rule2022-06337
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
March 25, 2022
Effective
March 25, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues 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 final 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 58 (Friday, March 25, 2022)</title>
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[Federal Register Volume 87, Number 58 (Friday, March 25, 2022)]
[Rules and Regulations]
[Pages 17018-17023]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-06337]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 300
[Docket No. 220322-0076]
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: Final rule.
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SUMMARY: NMFS issues 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 final 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: Effective March 25, 2022.
ADDRESSES: Copies of supporting documents that were prepared for this
final 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#702733225e383d23301e1f11115e171f06"><span class="__cf_email__" data-cfemail="1a4d5948345257495a74757b7b347d756c">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: William Stahnke, NMFS WCR, at (562)
980-4088.
SUPPLEMENTARY INFORMATION:
Background
On February 4, 2022, NMFS published a proposed rule in the Federal
Register (87 FR 6474) to revise regulations at 50 CFR part 216, subpart
C and 50 CFR part 300, subpart C, 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). The
30-day public comment period for the proposed rule closed on March 7,
2022.
The final rule is implemented under the authority of the Marine
Mammal Protection Act (16 U.S.C. 1361 et seq.), and the Tuna
Conventions Act (16 U.S.C. 951 et seq.). This final rule applies to
U.S. large purse seine vessels (i.e., those greater than 400 short ton
carrying capacity) fishing for tuna in the IATTC Convention Area. The
IATTC Convention Area is defined as waters of the eastern Pacific Ocean
(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.
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%20Jun%202003.pdf">https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20Jun%202003.pdf</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 Ocean (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
[[Page 17019]]
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 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 written exemptions on an
individual, case-by-case basis to the U.S. regulatory requirements for
observer coverage of large U.S. tuna purse seine vessels fishing in the
EPO. This process, which NMFS is maintaining under this rule, is
discussed in greater detail in the next section of this preamble.
Amendments to Regulations at 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 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. Without this final rule, NMFS would no longer
have the authority to issue exemptions from observer requirements to
large purse seine vessels fishing in the EPO upon expiration of the
NMFS Emergency Rule and the United States would likely be the only
AIDCP Party and IATTC Member unable to issue these exemptions to its
purse seine vessels. Therefore, this rule is necessary to allow NMFS to
continue issuing temporary exemptions from the observer requirements
beyond the NMFS Emergency Rule expiration date in March 2022.
These temporary exemptions are 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 finalizes an amendment to 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 are available to U.S. large purse
seine vessels that are used to catch tropical tuna in the IATTC
Convention Area and will grant a single vessel an exemption 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 exemption
provision will not expire, it is only applicable for the duration that
AIDCP and IATTC observer exemption procedures are effective. In other
words, this provision only gives 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 will 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 will 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
[[Page 17020]]
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 to obtaining certification from the IATTC Director that
placement of an observer is not possible, U.S. large purse seine
vessels must also obtain from NMFS WCR an individual exemption from
domestic regulatory observer coverage requirements. As discussed
previously, NMFS has been issuing those exemptions under the authority
of the NMFS Emergency Rule; however, this rule provides NMFS the
authority to continue issuing such exemptions while AIDCP/IATTC
exemption procedures are in effect. NMFS will 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#e6b1a5b4c8aeabb5a688898787c8818990"><span class="__cf_email__" data-cfemail="6a3d2938442227392a04050b0b440d051c">[email protected]</span></a>.
NMFS anticipates working in coordination with the IATTC and being
able to provide individual vessel 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 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.
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 rule incorporates that
requirement into 50 CFR part 300, subpart C, which contains regulations
governing eastern Pacific tuna fisheries. Specifically, this rule
finalizes the addition of a provision in Sec. 300.25, Fisheries
Management, that re-states, and cross-references to, the observer
coverage requirement in Sec. 216.24(e)(1). This provision, found at
Sec. 300.25(d), clarifies that the requirements in Sec. 216.24(e)(1)
apply within the IATTC Convention Area. A prohibition against operating
a large purse seine vessel in the IATTC Convention Area in
contravention of applicable observer requirements is also now included
in Sec. 300.24(n).
Public Comments and Responses
NMFS received six public comments on the proposed rule during the
public comment period which ended on March 7, 2022. One comment from
the American Tunaboat Association expressed support for the proposed
rule and the maintenance of the ability for the U.S. to issue
exemptions to the observer requirements, separately from the NMFS
Emergency Rule, and in accordance with adopted AIDCP/IATTC exemption
procedures. Five comments were in opposition, four submitted by an
individual commenter (a student at the City University of New York
School of Law) and one submitted by Earthjustice, an environmental non-
governmental organization. Issues expressed in these comments pertained
to the negative impacts of gaps in observer data and using electronic
monitoring as a means to supplement gaps, concern with exemption
procedures lasting indefinitely, concern that the exemption procedures
would ultimately lead to overfishing and illegal, unreported and
unregulated (IUU) fishing, and concerns with dolphin-safe status of the
catch. A summary of the comments and NMFS' responses can be found
below.
Comment 1: Observer Data Gaps
Concerns regarding gaps in observer data were expressed in comments
submitted by Earthjustice and the individual commenter. Commenters
highlighted that low observer coverage on vessels causes large-scale
logistical and environmental issues and that gaps in observer data from
a lack of observers' reporting will disrupt important scientific
research and policymaking, essential for fisheries management and
compliance with government standards. Commenters mentioned that because
U.S. purse seine vessels do not land their catch on the U.S. West
Coast, and NMFS does not have ready access to cannery receipts to
verify landings, observer data is needed to corroborate self-reporting
in logbooks. Commenters also referenced IATTC recommendations for the
necessity to increase observer coverage in the longline fleet as
justification for not allowing decreases in observer coverage due to
observer exemptions in the purse seine fleet.
[[Page 17021]]
Response
NMFS shares concerns with the commenters that lack of observer data
in IATTC purse seine fisheries is a concern for reliable and accurate
data collection. The IATTC and AIDCP require 100 percent observer
coverage on large purse seine vessels fishing in the IATTC Convention
Area. NMFS would like to highlight that IATTC/AIDCP observer exemptions
adopted since April 2020 are provided on a case-by-case basis and in
2020 and 2021 about 94 percent of all IATTC large purse seine trips
have been observed. NMFS would also like to highlight that, per the
AIDCP/IATTC memorandum implementing and extending exemption procedures,
as well as existing regulations at 50 CFR 300.22, vessel captains are
required to collect, record, and report data and information for each
trip on tuna catches and bycatch of other species, by gear, fishing
area and type of set, to be submitted to the IATTC at the end of each
trip. Additionally, the resolution for tropical tuna adopted by the
IATTC in October 2021 (Resolution C-21-04) included requirements for
purse seine vessels to provide cannery data to the IATTC on a near
real-time basis, which will also provide more data to the IATTC on all
vessel trips, including those without observers.
After the current AIDCP/IATTC exemption procedures expire, NMFS
would only have the ability to grant observer exemptions if the AIDCP/
IATTC once again adopts emergency observer exemption procedures to
address global or regional health, safety, and security concerns in
association with some other international emergency or crises. The
U.S., as a member of those organizations, will have a role in shaping
any exemption procedures prior to adoption, and is able to block
consensus on agreement if needed. After adoption of AIDCP/IATTC
exemption procedures, NMFS will issue exemptions from the domestic
observer requirement on a case-by-case basis for a single fishing trip
in accordance with AIDCP/IATTC exemption procedures in effect at the
time.
With respect to comments on longline observer coverage in IATTC
fisheries, the IATTC did not adopt exemption procedures for longline
vessels, and the existing 5 percent observer coverage on longline
vessels remains in place per Resolution C-19-08. However, NMFS agrees
with the commenter and recommendations from the IATTC scientific staff
that 20 percent observer coverage on longline vessels would provide
more complete data. The United States typically has about 20 percent
observer coverage on its large longline vessels. In 2020, that figure
decreased by roughly 4 percent, but is expected to rise again.
Comment 2: The Action Will Lead to IUU Fishing
An individual commenter asserted that the proposed regulation will
allow fisheries to bypass the regulatory requirements to carry an
onboard observer for EPO trips, and that the resulting lack of
government oversight of commercial fishing will most likely lead to IUU
practices to the detriment of the fishing industry, its consumers, and
the environment.
Response
As described under response to comment 1, NMFS agrees that lack of
observer coverage is a concern for accurate data. Given that IUU
activities are secretive in nature, it is difficult to predict or know
when they may occur. NMFS reminds the commenter that observer
exemptions are temporary (for a single vessel during a single fishing
trip) and aimed to address the impacts of a global pandemic or other
international emergencies or crisis. In the short term, the observer
coverage rate is expected to rise as pandemic-related travel
restrictions are lifted and more observers are available for placement,
until ultimately observer exemptions are no longer needed. Please refer
to the response to comment 1 above for further information.
Comment 3: The Action Will Lead to Overfishing
Earthjustice and an individual commenter suggested that the
proposed regulation will make the effective prevention of overfishing
more difficult and potentially impossible, which will have negative
environmental impacts and result in decreased fishing opportunities.
Response
As noted in an earlier response, the IATTC recently adopted a new
tropical tuna management resolution for the years 2022-2024 (Resolution
C-21-04), which comes with a suite of new and robust measures to
prevent overfishing from occurring. As a member of the IATTC, the
United States is obligated to implement and comply with these measures.
The IATTC scientific staff will continue to provide stock status
indicators for bigeye, yellowfin, and skipjack tunas on an annual basis
to the Scientific Advisory Committee to monitor any changes in the EPO
tuna stocks. Based on the 2020 assessments conducted by the IATTC
Scientific Staff, NMFS determined that yellowfin and bigeye tuna stocks
in the EPO, which the affected vessels target, are not subject to
overfishing or overfished, nor are they approaching an overfished
condition. In addition, the next stock assessments for bigeye and
yellowfin tuna are expected in 2024, which will provide an update on
the stock status and reveal the effect of additional management
measures adopted by the IATTC in 2021.
Comment 4: COVID-19 Not Ending Leads to Exemptions Not Ending
An individual commenter asserted that due to progress in management
of the pandemic, an extension of the emergency exemption to observer
requirements is no longer justified. The commenter claimed that,
because there is no indication that the Secretary of HHS will ever
declare the end of COVID-19, NMFS should not wait to reimplement
observer requirements that existed before the issuance of the Emergency
Rule, and should instead strengthen them.
Response
NMFS understands that pandemic circumstances within the United
States are different from those of other IATTC member countries. NMFS
reminds the commenter, however, that the United States does not have
its own national observer program for the large purse seine vessel tuna
fishery in the EPO and therefore 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.
Therefore, travel restrictions that constrain the ability of observers
to enter ports, such as in American Samoa, as well as other pandemic-
related constraints that impact the IATTC's ability to place observers
on vessels, are outside of the control of the United States.
These regulations are separate from the broader NMFS Emergency
Rule, which applies to both domestic and international fisheries and
expires March 26, 2022, or when the Secretary of Health and Human
Services determines that the COVID-19 Pandemic is no longer a public
health emergency, whichever is earlier. These regulations apply only to
the international large U.S. purse seine fleet that fishes for tuna in
the EPO and, although they do not have a specific expiration date, they
are only applicable while AIDCP/IATTC exemption procedures are in
effect. NMFS expects the existing AIDCP/IATTC exemption
[[Page 17022]]
procedures will be extended beyond their current expiration date to
address ongoing travel restrictions and other pandemic-related health
and safety concerns impacting the IATTC's ability to place observers on
purse seine vessels in the EPO.
Comment 5: Electronic Monitoring (EM) Should Be Used To Supplement Gaps
in Observer Data
Earthjustice asserted that if NMFS continues to extend the observer
waiver, the agency must require alternative methods for data collection
and monitoring that can fulfill the functions of observers and provide
a check on the industry. Earthjustice recommended, at a minimum, that
NMFS require EM on all purse seine trips without an observer. They
encouraged NMFS to consider EM as a necessary tool to supplement
observers, as well to implement EM in conjunction with regulations
(such as proper use and handling of EM equipment on board and
prohibiting tampering) which make EM more effective.
Response
NMFS is supportive of progress towards developing EM for IATTC
purse seine and longline fisheries. The IATTC held its first EM
workshop in 2021 and developed a 4-year workplan to progress the
implementation of EM in IATTC fisheries. Because there are various
considerations for EM such as compliance, data confidentiality, costs,
best practices, etc., a series of discussions is necessary before EM
can be implemented in a consistent and successful manner. NMFS has been
working with the Hawaii longline fleet on the use of EM concurrently
with observers. The IATTC also sponsored a pilot study of EM of the
activities on purse seine vessels and is currently in the process of
conducting similar work on several longline vessels. For fishing trips
without observers, paragraph 5 of the AIDCP/IATTC memorandum
implementing and extending exemption procedures calls for continued
reporting of EM data to the IATTC on board purse seine vessels equipped
with those systems.
Comment 6: Dolphin-Safe Concerns
An individual commenter expressed concerns regarding the dolphin-
safe status of the catch, highlighting that the harvested tuna will not
be eligible for dolphin-safe labels, yet the proposed rule will allow
for it to still be legally sold. The commenter also expressed concern
that most of the tuna in supermarket shelves would be non-dolphin-safe,
and asserted that the action would be putting dolphins' lives at risk
and allow for overfishing in violation of the Sustainable Fisheries
Act.
Response
Please refer to the responses to comments 1 and 2 above for
information on the observer coverage rates on purse seine vessels
during the pandemic, which remain high. NMFS agrees with the commenter
that tuna harvested in the International Dolphin Conservation Program
(IDCP) Agreement Area by a large purse seine vessel, without an IDCP-
approved observer on board during the entire fishing trip, will be
ineligible for a dolphin-safe label in the U.S. marketplace. NMFS
disagrees with the commenter's assertion that this rule knowingly,
willingly, and intentionally allows for dolphins' lives to be put at
risk. The United States was an original signatory Party to the IDCP
Agreement in 1998. The United States still strongly supports the
Agreement's objectives to progressively reduce incidental dolphin
mortalities in the tuna purse-seine fishery in the Agreement Area, with
the goal of eliminating dolphin mortality in this fishery, and to
ensure the long-term sustainability of the tuna stocks in the Agreement
Area.
Changes From the Proposed Rule
This final rule contains no changes from the proposed rule.
Classification
The NMFS Assistant Administrator has determined that this rule is
consistent with the Marine Mammal Protection Act, Tuna Conventions Act
of 1950, and other applicable laws.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
Under section 553(d)(3) of the Administrative Procedure Act, an
agency must delay the effective date of regulations for 30 days after
publication, unless the agency finds good cause to make the regulations
effective sooner. The Assistant Administrator for Fisheries determined
that good cause exists to make this rule effective immediately upon
publication in the Federal Register without providing a 30-day delay
after publication. NMFS is obligated to implement these measures
immediately to avoid a lapse in our ability to issue purse seine
observer exemptions in the EPO, which constitutes good cause. Not
making the rule effective immediately would result in NMFS being unable
to issue exemptions to U.S. vessels in cases where no observer is
available, thereby harming those vessels by preventing them from
legally fishing. In addition, because this rule will not change the
emergency observer exemption process currently in place, a delay in the
effective date--the purpose of which is to give affected persons a
reasonable amount of time to comply with the rule or take any other
action that issuance of the rule may prompt--is contrary to the public
interest.
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
during the proposed rule stage that this rule would not have a
significant economic impact on a substantial number of small entities.
The factual basis for the certification was published in the proposed
rule and is not repeated here. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis was not
required and none was 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: March 22, 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 amends 50 CFR parts 216 and 300 as follows:
[[Page 17023]]
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
Subpart C--General Exceptions
0
1. The authority citation for part 216, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Amend Sec. 216.24 by adding paragraph (e)(1)(i) and reserved
paragraph (e)(1)(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 this paragraph (e)(1) 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 this paragraph (e)(1) 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 document 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#306773621e787d63705e5f51511e575f46"><span class="__cf_email__" data-cfemail="95c2d6c7bbddd8c6d5fbfaf4f4bbf2fae3">[email protected]</span></a>, or in a manner acceptable to the
Administrator, West Coast Region.
(ii) [Reserved]
* * * * *
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Eastern Pacific Tuna Fisheries
0
3. The authority citation for part 300, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.
0
4. Amend Sec. 300.24 by revising 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. Amend Sec. 300.25 by adding 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. 2022-06337 Filed 3-24-22; 8:45 am]
BILLING CODE 3510-22-P
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